Dalfio v. Orlansky-Wax, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 VICTOR DALFIO, an individual, Case No.: 21cv1136 DMS (JLB) 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS 14 ORLANSKY-WAX, LLC, a California limited liability company; and DOES 115 10, [16] Defendants. [18] 19 This case comes before the Court on Defendant’s motion to dismiss. Plaintiff filed 20 an opposition to the motion, and Defendant filed a reply. For the reasons set out below, 21 the motion is granted. 22 I. 23 BACKGROUND 24 This case arises under the Americans with Disabilities Act (“ADA”). Plaintiff 25 Victor Dalfio “has had two hip replacements. He also dislocated his hip” and “has 26 difficulty walking and standing.” (First Am. Compl. (“FAC”) ¶1.) As a result, “Plaintiff 27 uses a cane most of the time and also uses a walker as needed.” (Id.) Plaintiff alleges he 28 visited Defendant’s property on two occasions in March 2021 to patronize the business on 1 the property, Los Alejandro’s Taco Shop, but he “encountered barriers, both physical and 2 intangible, that interfered with, and denied, Plaintiff the ability to use and enjoy the goods, 3 services, privileges, and/or accommodations offered at the Property.” (Id. ¶16.) Plaintiff’s 4 FAC alleges one claim under the ADA and another claim under California’s Unruh Civil 5 Rights Act. 6 II. 7 DISCUSSION 8 Defendant argues this case should be dismissed for lack of standing, and that the 9 ADA claim is moot. Absent the ADA claim, Defendant asserts the Court should decline 10 to exercise supplemental jurisdiction over Plaintiff’s state law claim. 11 A. Standing 12 “[T]o invoke the jurisdiction of the federal courts, a disabled individual claiming 13 discrimination must satisfy the case or controversy requirement of Article III by 14 demonstrating his standing to sue at each stage of the litigation.” Chapman v. Pier 1 15 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). “Under the oft-repeated standing 16 formulation, [the plaintiff] must demonstrate that he has suffered an injury-in-fact, that the 17 injury is traceable to the [defendant]’s actions, and that the injury can be redressed by a 18 favorable decision.” Id. “In addition, to establish standing to pursue injunctive relief, 19 which is the only relief available to private plaintiffs under the ADA, [the plaintiff] must 20 demonstrate a ‘real and immediate threat of repeated injury’ in the future.” Id. (quoting 21 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). An ADA 22 plaintiff can meet this requirement “either by demonstrating deterrence, or by 23 demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.” 24 Id. at 944. As noted in Chapman, a disabled person can establish Article III standing to 25 pursue injunctive relief by showing “he is deterred from visiting a noncompliant public 26 accommodation because he has encountered barriers related to his disability there.” Id. 27 Here, Defendant argues Plaintiff’s allegations are insufficient to show injury because 28 “Plaintiff makes no attempt to explain how those conditions affected his ability to ‘visit’ 1 the property,[ ] whether in the parking lot or other portions of the targeted property not just 2 once but multiple times.” (Mem. of P. & A. in Supp. of Mot. at 16.) The Court disagrees. 3 Throughout the FAC, Plaintiff explains how each of the alleged barriers affected his ability 4 to patronize the taco shop. (See, e.g., FAC at 5-7, 9-12) (explaining how barriers in routes 5 of travel interfered with Plaintiff’s ability to access the premises); (id. at 7) (explaining 6 how absence of directional signage affected Plaintiff’s ability to access the premises). 7 Contrary to Defendant’s argument, Plaintiff’s allegations are sufficient to establish injury 8 for the purpose of standing. 9 B. Mootness 10 Defendant’s second argument in support of its motion to dismiss is that the violations 11 alleged in the FAC have been remedied, therefore Plaintiff’s ADA claim is moot. 12 “’Mootness is a jurisdictional issue, and federal courts have no jurisdiction to hear a case 13 that is moot.’” Johnson v. Oishi, 362 F.Supp.3d 843, 848 (E.D. Cal. 2019) (quoting Foster 14 v. Carson, 347 F.3d 742, 745 (9th Cir. 2003)). “A claim is moot ‘when the issues presented 15 are no longer live or the parties lack a legally cognizable interest in the outcome.’” Id. 16 (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). In ADA cases, in particular, 17 “because a plaintiff can only obtain injunctive relief under the ADA, the defendant’s 18 voluntary cessation of an ADA violation may effectively moot a plaintiff’s ADA claim.” [19] Id. (citing Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011)). 20 Here, Defendant argues it has remedied the alleged barriers identified in the FAC, 21 therefore Plaintiff’s ADA claim is moot. In support of this argument, Defendant submits 22 a Declaration and Report from Craig Lobnow, a California state Certified Access 23 Specialist, who conducted a personal inspection of Defendant’s property on September 5, 24 2021, more than two months after Plaintiff filed the present case. (See Decl. of Craig 25 Lobnow in Supp. of Mot. ¶¶2, 4.) Based on that inspection, Mr. Lobnow concludes “the 26 elements of the Property targeted by Plaintiff’s Complaint are compliant under the current 27 federal and applicable state standards.” (Id. ¶7.) [28] 1 Plaintiff asserts Defendant’s reliance on evidence outside the pleadings is improper, 2 and the Court should not consider that evidence in ruling on the present motion. However, 3 Defendant is clearly mounting a factual attack to the Court’s subject matter jurisdiction, 4 (see Mem. of P. & A. in Supp. of Mot. at 4), and when presented with such an attack, “the 5 district court may review any evidence necessary, including affidavits and testimony, in 6 order to determine whether subject matter jurisdiction exists.” Johnson, 362 F.Supp.3d at 7 847 (citations omitted). 8 Perhaps anticipating that conclusion, Plaintiff states he has “obtained his own CASp 9 expert, who has identified the existence of several accessibility barriers at the subject 10 property.” (Opp’n to Mot. at 3.) Plaintiff also states he has “recently obtained a CASp 11 report identifying the barriers that presently exist on the Property,” but Plaintiff chose not 12 to submit that report to the Court “to avoid premature disclosure of expert reports to the 13 greatest extent possible.” (Id. at 7.) That was an unfortunate decision because as the party 14 opposing the motion, Plaintiff “has the burden of proving that subject matter jurisdiction 15 does exist, and must present any necessary evidence to satisfy this burden.” Johnson, 362 16 F.Supp.3d at 847 (citing St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). As 17 it presently stands, Plaintiff has failed to present any evidence to rebut Defendant’s 18 showing that the alleged violations have been rectified, and that this Court therefore has 19 jurisdiction over his ADA claim. Accordingly, Defendant’s motion to dismiss that claim 20 is granted.1 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / [27] 1 In light of this holding, the Court declines to exercise supplemental jurisdiction over [28] 1 III. 2 CONCLUSION AND ORDER 3 For these reasons, the Court grants Defendant’s motion to dismiss, and dismisses 4 case without prejudice. 5 IT IS SO ORDERED. 6 Dated: December 3, 2021 pm Bh 7 a Yn. Hon. Dana M. Sabraw, Chief Judge United States District Court [10] 1]