Smith v. SFM LLC ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Maria Smith, No. 2:21-cv-01030-KJM-DB 12 Plaintiff, ORDER 13 v. Henry’s Holdings, LLC, 1S Defendant. 16 17 Maria Smith alleges she was removed from a grocery store in Sacramento because she 18 | was not wearing a mask. First Am. Compl. ff 1, 9, ECF No. 5. She alleges she has a 19 | “disability” or “medical exception” that prevents her from wearing a mask, but she does not 20 | identify her disability or medical condition. See id. J§ 1,2, 9. She brought this action under the 21 | Americans with Disabilities Act and the California Unruh Civil Rights Act. See id. 12-16. 22 | The store now moves to dismiss. See generally Mot., ECF No. 10; Mem., ECF No. 11. Its 23 | motion is fully briefed. See generally Opp’n, ECF No. 19; Reply, ECF No. 22. The court 24 | submits the motion without oral argument and grants it with leave to amend, as explained 25 | below. 26 The court turns first to the store’s jurisdictional argument that it has mooted Ms. Smith’s 27 | ADA claim by changing its mask policy to include an exception for people with disabilities. See 28 | Mem. at 14-16. This argument is a “factual” challenge; it “disputes the truth of the allegations 1 that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. 2 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a defendant mounts a factual challenge to a 3 complaint, the court may “look beyond the complaint to matters of public record without having 4 to convert the motion into one for summary judgment.” White v. Lee, 227 F.3d 1214, 1242 (9th 5 Cir. 2000). The court therefore grants the store’s request to take judicial notice of its publicly 6 available masking policy, which makes an exception for people “with disabilities or underlying 7 medical conditions.” See Request J. Notice ¶ 2 & Ex. 2 at 12, ECF Nos. 12, 12-2. 8 Even so, the store’s new policy does not moot the ADA claim. “[A] defendant cannot 9 automatically moot a case simply by ending its unlawful conduct once sued.” Already, LLC v. 10 Nike, Inc., 568 U.S. 85, 91 (2013). Otherwise “the courts would be compelled to leave ‘the 11 defendant free to return to his old ways.’” United States v. Concentrated Phosphate Exp. Ass’n, 12 393 U.S. 199, 203 (1968) (alterations omitted) (quoting United States v. W. T. Grant Co., 13 345 U.S. 629, 632 (1953)). “Given this concern,” the Supreme Court has “explained that ‘a 14 defendant claiming that its voluntary compliance moots a case bears the formidable burden of 15 showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be 16 expected to recur.’” Already, 568 U.S. at 91 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t 17 Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). The store has not carried that burden. This case is 18 unlike others in which defendants have mooted ADA claims by undertaking costly renovations 19 that almost certainly will not be reversed, such as widening an aisle in a parking lot. See, e.g., 20 Langer v. Encantado II, LLC, No. 14-2281, 2015 WL 1499182, at *3 (S.D. Cal. Apr. 1, 2015), 21 aff’d, 677 F. App’x 360 (9th Cir. 2017). 22 Although the ADA claim is not moot, the complaint does not state a claim on which relief 23 could be granted. See Fed. R. Civ. P. 12(b)(6). Plaintiffs must include more than “a formulaic 24 recitation of the elements” in their complaints. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 25 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Ms. Smith has not done so. She 26 alleges only that she is “disabled” and “cannot wear a mask over her face.” First Am. Compl. 27 ¶¶ 2, 9. Such generic claims do not permit the court to infer she has a “disability.” See Weaving 28 v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (summarizing statutory and regulatory 1 definitions of “disability” under the ADA); Roman v. BRE Properties, Inc., 237 Cal. App. 4th 2 1040, 1051–52 (2015) (summarizing statutory definitions of disability under the Unruh Act); see 3 also Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1175–78 (9th Cir. 2021) (affirming dismissal 4 of ADA discrimination claim pleaded in formulaic terms). Nor can the court infer a disability 5 was the reason Ms. Smith could not wear a mask, and thus the reason for her exclusion from the 6 store. The court therefore also cannot infer she was denied a public accommodation “because of” 7 her disability, an essential element of her claims. See Arizona ex rel. Goddard v. Harkins 8 Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010) (interpreting the ADA); Molski v. 9 M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007) (“[T]he Unruh Act is coextensive with the 10 ADA . . . .”). 11 Ms. Smith could potentially cure these defects in a further amended complaint. The 12 motion to dismiss is therefore granted with leave to amend. See Eminence Cap., LLC v. 13 Aspeon, Inc., 316 F.3d 1048, 1053 (9th Cir. 2003). Any further amended complaint must be filed 14 within 21 days. The pretrial (initial scheduling) conference is vacated and reset for December 15 16, 2021 at 2:30 p.m. 16 This order resolves ECF No. 10. 17 IT IS SO ORDERED. 18 DATED: October 26, 2021.