Cervantes v. 546 Holding Co., LLC ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DANIEL CERVANTES, an individual, No. 2:22-CV-00890-JAM-KJN 10 Plaintiff, 11 v. ORDER DENYING MOTION TO DISMISS 12 546 HOLDING CO., LLC, d/b/a TAMARINE, a California limited 13 liability company; and DOES 1 to 10, inclusive, 14 Defendants. 15 16 546 Holding Co., LLC (“Defendant”) moves the Court to 17 dismiss Daniel Cervantes’s (“Plaintiff”) first amended complaint 18 (“FAC”) for lack of subject matter jurisdiction and failure to 19 state a claim upon which relief can be granted. See Mot. to 20 Dismiss (“Mot.”), ECF No. 17. Plaintiff opposed the motion. See 21 Opp’n, ECF No. 20. Defendant replied. See Reply, ECF No. 21. 22 For the reasons set forth below, this Court DENIES 23 Defendant’s motion to dismiss.1 24 I. FACTUAL ALLEGATIONS 25 Plaintiff is a visually impaired and legally blind 26 individual who requires screen-reading software to read online 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for February 14, 2023. 1 content. FAC, ECF No. 14, ¶ 1. Defendant is a California-based 2 limited liability company that owns and operates Tamarine 3 Restaurant in Palo Alto. Id. ¶ 5. The restaurant serves the 4 public and is a public accommodation falling under the 5 jurisdiction of the Americans with Disabilities Act (ADA). Id. 6 ¶ 7. The restaurant’s website purports to offer several features 7 to customers, including reservations, online orders, gift card 8 purchasing, private dining inquiries, catering service inquiries, 9 lunch and dinner menus, photo galleries, social media pages, 10 contact information, access to the restaurant’s reviews and 11 rewards, and information about the restaurant’s location, hours 12 and operation, and origin. Id. ¶ 5. Plaintiff alleges that he 13 visited Defendant’s website in May 2022 through Google’s TalkBack 14 screen-reader in order to make a reservation for Plaintiff and 15 his friends during his upcoming visit to Palo Alto; Plaintiff 16 also wanted to check the menu and look at pickup options. Id. 17 ¶ 23. Plaintiff alleges that he encountered multiple barriers on 18 the website that denied him full and equal access to the 19 restaurant, namely: (1) misplaced and unclickable webpage links, 20 including the menu and telephone links; (2) unlabeled graphics 21 and links; (3) images without alternative text in the photo 22 gallery; (4) inseparable strings of links read consecutively by 23 the screen-reader; and (5) a reservations tab with an inoperable 24 link. Id. ¶¶ 24-28. Plaintiff asserts that these barriers 25 prevented him from navigating Defendant’s website and have 26 deterred him from both accessing the website and visiting the 27 restaurant’s physical location. Id. ¶ 30. Plaintiff states that 28 he has traveled to Palo Alto in the past and travels to Palo Alto 1 approximately four times per year. Id. ¶ 35. 2 3 II. OPINION 4 A. Legal Standard 5 In considering a motion to dismiss for lack of subject 6 matter jurisdiction under FRCP 12(b)(1) in a federal-question 7 case, dismissal is appropriate where the alleged federal claim 8 “clearly appears to be immaterial and made solely for the purpose 9 of obtaining federal jurisdiction or where such claim is wholly 10 insubstantial and frivolous.” Safe Air for Everyone v. Meyer, 11 373 F.3d 1035, 1039 (9th Cir. 2004). 12 In considering a motion to dismiss for failure to state a 13 claim upon which relief can be granted under FRCP 12(b)(6), the 14 Court must accept the allegations in the FAC as true and draw all 15 reasonable inferences in favor of Plaintiff. Moss v. U.S. Secret 16 Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009)). The FAC must possess more than 18 “a formulaic recitation of the elements of a cause of action;” it 19 must contain non-conclusory, factual allegations sufficient “to 20 raise a right to relief above the speculative level.” Bell 21 Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). 22 With respect to disability claims, California’s Unruh Civil 23 Rights Act operates identically to the ADA and “borrows the ADA’s 24 substantive standards as the predicate for its cause of action” 25 such that a violation of the ADA “necessarily constitutes a 26 violation of” the Unruh Civil Rights Act. Molski v. M.J. Cable, 27 Inc., 481 F.3d 724, 731 (9th Cir. 2007), Arroyo v. Rosas, 19 28 F.4th 1202, 1212 (9th Cir. 2021). 1 B. Analysis 2 1. Subject Matter Jurisdiction 3 Defendant claims that this Court lacks subject matter 4 jurisdiction because Plaintiff cannot establish that he has 5 suffered an injury in fact. Mot. at 7-14. Defendant raises 6 several issues with the FAC, namely: (1) the purported coding 7 issues Plaintiff alleges do not exist, upon a review by 8 Defendant’s expert on December 9, 2022; (2) Plaintiff has not 9 alleged that he intends to return to Defendant’s restaurant; 10 (3) Plaintiff has not alleged that he was deterred from returning 11 due to knowledge of illegal barriers to access to the restaurant; 12 and (4) there is no immediate threat of future injury. Id. 13 Plaintiff first responds that Defendant’s argument is 14 procedurally improper because it goes to the merits of the case 15 instead of standing. Opp’n at 4-6. Nevertheless, Plaintiff 16 asserts that he has demonstrated an injury in fact because he 17 encountered barriers related to his disability that interfered 18 with his full and equal enjoyment of Defendant’s restaurant, 19 namely: (1) unclickable links for ordering online, browsing the 20 menu, and making reservations and (2) unlabeled images, graphics, 21 and links. Id. at 7. Plaintiff argues that these barriers 22 deterred him from making an order online or making a reservation. 23 Id. Plaintiff then refutes the mootness claims of Defendant’s 24 expert with his own expert, who claims that the purported 25 barriers still exist. Id. at 8. Plaintiff also claims that he 26 has sufficiently pled an intent to return to Defendant’s 27 restaurant because he has traveled to Palo Alto in the past and 28 visits the area four times per year on average. Id. at 11-13. 1 The Court finds Plaintiff’s argument persuasive. A party 2 may assert a factual attack on subject matter jurisdiction 3 without converting their motion to dismiss into a motion for 4 summary judgement and submit evidence outside of the pleadings 5 for the court to review. Safe Air for Everyone v. Meyer, 373 6 F.3d 1035, 1039 (citing Savage v. Glendale Union High Sch., 343 7 F.3d 1036, 1039 n. 2 (9th Cir.2003)). When a factual attack is 8 mounted, the opposing party must submit “affidavits or other 9 evidence necessary to satisfy its burden of establishing subject 10 matter jurisdiction.” Id. To establish standing under the ADA, 11 a plaintiff must demonstrate either (1) that they are currently 12 deterred from visiting the defendant’s establishment by 13 accessibility barriers or (2) an injury-in-fact and an intent to 14 return to the defendant’s establishment. Doran v. 7-Eleven, 15 Inc., 524 F.3d 1034, 1041 (9th Cir. 2008), Feezor v. Sears, 16 Roebuck & Co., 608 F. App'x 476, 477 (9th Cir. 2015). The Ninth 17 Circuit has stated that it is not necessary for an ADA plaintiff 18 to visit the physical location of an establishment to establish 19 deterrence; it is sufficient for a plaintiff to have “actual 20 knowledge” of an accessibility barrier that deters their use of 21 the establishment. C.R. Educ. & Enf't Ctr. v. Hosp. Properties 22 Tr., 867 F.3d 1093, 1099 (9th Cir. 2017). 23 Defendant has mounted a factual challenge to the Court’s 24 subject matter jurisdiction and submitted the declaration of its 25 expert, Craig Davis, to support its contention that Plaintiff’s 26 purported barriers do not exist. See Davis Declaration, Exhibit 27 1 to Mot. Plaintiff has responded to this challenge with the 28 declaration of his own expert, Kannan Arumugam, who, upon review 1 of Davis’ declaration and Defendant’s website, asserts that 2 Plaintiff’s purported barriers still exist. See Arumugam 3 Declaration, Exhibit 1 to Opp. Plaintiff has also stated that 4 these purported barriers, of which he has actual knowledge, are 5 currently deterring him from visiting Defendant’s restaurant. In 6 light of Plaintiff’s allegations and his expert’s declaration, 7 the Court finds that Plaintiff has established standing under the 8 deterrence theory. Thus, Defendant’s subject matter jurisdiction 9 challenge fails. 10 2. Failure to State a Claim 11 Defendant argues that Plaintiff has failed to allege any 12 nexus between the alleged barriers on the Tamarine website and 13 its physical location, as required by ADA. Mot. at 5. Defendant 14 claims that the alleged technical problems that Plaintiff 15 identified have no relation to whether Plaintiff’s ability to 16 access the restaurant’s physical location has been impeded; 17 Plaintiff also failed to allege that he ever ordered food online 18 or tried to make a reservation. Id. at 6. As for reservations, 19 Defendant asserts that the website does not have a reservations 20 page because reservations are handled through a third-party, 21 Yelp.com, over which Defendant has no control; but Defendant 22 concedes that an inoperable reservations link might constitute a 23 barrier. Id. at 6-7. Defendant also notes that Plaintiff fails 24 to allege that he was unable to gather information necessary to 25 visit the physical location through the website or by contacting 26 the restaurant directly. Id. at 7. 27 Plaintiff responds that he has alleged a nexus between the 28 website barriers and Defendant’s restaurant through his 1 allegations that particular barriers located at particular 2 sections of the website prevented him from ordering takeout 3 online, placing a reservation, or calling the restaurant 4 directly. Opp’n at 3-4. Plaintiff claims that Defendant’s 5 reference to Yelp.com is immaterial because Defendant’s coding 6 practices prevented Plaintiff from navigating from the 7 reservation link on Defendant’s website, which Defendant has 8 complete control over, to Yelp.com; Defendant also concedes that 9 an inoperable reservations link may constitute a barrier to the 10 goods and services of the restaurant’s physical location. Id. 11 The Court again finds Plaintiff’s argument persuasive. The 12 FAC must contain non-conclusory, factual allegations sufficient 13 “to raise a right to relief above the speculative level.” 14 Twombly, 550 U.S. at 554. To prevail on an ADA claim, a 15 plaintiff must show that (1) they have a disability that falls 16 under the ADA; (2) the defendant is a private entity that owns, 17 operates, or leases a place of public accommodation; and (3) the 18 plaintiff was denied access to the place of public accommodation 19 due to their disability. Molski, 481 F.3d at 730 (citing 42 20 U.S.C. § 12182(a)–(b)). Defendant does not contest Plaintiff’s 21 demonstration of the first two elements. As for the third 22 element, the Ninth Circuit has stated that instances of website 23 inaccessibility must contain a nexus between an establishment’s 24 website and its physical location; the alleged inaccessibility of 25 the website must impede access to the goods and services of the 26 physical location. Robles v. Domino's Pizza, LLC, 913 F.3d 898, 27 905 (9th Cir. 2019). The Court finds that Plaintiff has 28 established the requisite nexus in the FAC in alleging that nee een meee ee EE EIR IEEE 1 Defendant’s coding practices for its restaurant’s website 2 prevented Plaintiff from (1) ordering takeout, (2) making a 3 reservation, and (3) calling the restaurant, all of which are 4 services connected to the physical location of Tamarine 5 Restaurant. Accordingly, the Court finds that Plaintiff has 6 alleged facts sufficient to maintain its ADA and state claims 7 against Defendant. 8 3. Supplemental Jurisdiction for State Claim 9 In light of the Court’s findings in favor of Plaintiff on 10 his ADA claim and the Ninth Circuit’s holding that an ADA 11 violation is a per se violation of the Unruh Civil Rights Act, 12 the Court will continue to exercise supplemental jurisdiction 13 over Plaintiff’s state claim. Lentini v. California Ctr. for the 14 Arts, Escondido, 370 F.3d 837, 847 (9th Cir. 2004). 15 Til. ORDER 16 For the reasons set forth above, the Court DENIES 17 Defendant’s motion to dismiss. 18 IT IS SO ORDERED. 19 Dated: March 2, 2023 20 open JOHN A. MENDEZ 22 SENIOR UNITED*STATES DISTRICT JUDGE 23 24 25 26 27 28