Pomponio v. Brand Motors, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 MERYL POMPONIO, Case No. 19-cv-04750-LB 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS WITH LEAVE TO AMEND 14 BRAND MOTORS, LLC, and BAKU AS, Re: ECF No. 12 15 Defendants. 16 17 INTRODUCTION 18 This case concerns the accessibility of Brand Motors to disabled patrons. Plaintiff Meryl 19 Pomponio — who has paraneoplastic syndrome — visited the establishment and alleges that she 20 encountered barriers there, generally involving a lack of accessible parking and accessible routes.1 21 She sued the defendants, Brand Motors and the property owner (Baku As), claiming violations of 22 the Americans with Disabilities Act (“ADA”), the California Disabled Persons Act, and 23 California’s Unruh Civil Rights Act based on the alleged barriers.2 The defendants moved to 24 dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), essentially on the ground 25 26 1 Compl. – ECF No. 1 at 4 (¶ 13), 7–8 (¶ 24). Citations refer to material in the Electronic Case File 27 (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 2 Id. at 2 (¶ 2), 3 (¶¶ 8–9). 1 that the plaintiff did not plead that the business is a “public accommodation” (and according to 2 them, the facts show that it is not).3 The court held a hearing on February 13, 2020. The court 3 grants the motion. 4 5 STATEMENT 6 Ms. Pomponio suffers from paraneoplastic syndrome.4 She cannot walk and uses a mobility 7 device to complete her day-to-day activities.5 Brand Motors “operate[s] as a business 8 establishment” and has “substantial control over the interior and exterior of the building, the 9 parking lot, and all spaces adjacent to such building” at 22250 Mission Boulevard, Hayward, 10 California (the “Property”).6 Mr. As owns the Property.7 11 In April 2018, Ms. Pomponio “desired to go to and use the services, and/or buy products” from 12 Brand Motors and was allegedly “denied the full and equal access to” the Property.8 She “had 13 difficulty parking because she could not find any accessible parking stalls in the lot. In addition, 14 there was no way for Ms. Pomponio to reach the business entrance as there were only stairs and no 15 ramps, making it impossible for her to access in her wheeled device.”9 She alleges that the 16 defendants had the following barriers at the real property: 17 a. The alleged unauthorized vehicle signage is not posted in a conspicuous place at the entrance to off-street parking or immediately adjacent to on-site accessible 18 parking and visible from each parking space in violation of 2013 CBC 11B-502.8 and 2016 CBC 11B-502.8; 19 b. There is no accessible route provided within the site from accessible parking 20 spaces and accessible passenger loading zones, public streets and sidewalks, and public transportation stops to the accessible building or facility entrance they serve 21 22 23 3 See Consents – ECF Nos. 10, 18, 26. 24 4 Compl. – ECF No. 1 at 2 (¶ 1). 25 5 Id. 26 6 Id. at 3 (¶ 8). 7 Id. (¶ 9). 27 8 Id. at 2 (¶ 2), 4 (¶ 14). in violation of 1991 ADAAG 4.3.2(1), 2010 ADAS 206.2.1, 2013 CBC 11B- 1 206.2.1 and 2016 CBC 11B-206.2.1; 2 c. The accessible route connecting accessible buildings, accessible facilities, accessible elements, and accessible spaces on the same site is not provided in 3 violation of 1991 ADAAG 4.1.2 (2), 2010 ADAS 206.2.2, 2013 CBC 11B- 206.2.2 4 and 2016 CBC 11B-206.2.2; 5 d. There are no accessible parking spaces and access aisles provided in violation of 1991 ADAAG 4.6.3, 2010 ADAS 208.1, 2013 CBC 11B-208.1 2016 CBC 11B- 6 208.1; 7 e. The accessible parking space identification signage is not provided in violation of 1991 ADAAG 4.6.4, 2010 ADAS 502.6, 2013 CBC 11B-502.6 and 2016 CBC 8 11B-502.6; 9 f. The parking space identification signage “VAN ACCESSIBLE” designation is not provided in violation of 1991 ADAAG 4.6.1, 2010 ADAS 502.6, 2013 CBC 10 11B-502.6, 2016 CBC 11B-502.6; 11 g. The parking space identification “MINIMUM FINE $250” signage is not provided in violation of 2013 CBC 11B-502.6.2, 2016 CBC 11B-502.6.2; 12 h. The Tactile Exit signage is not provided in violation of 1991 ADAAG 13 4.1.3(16)(a), 2010 ADAS 216.4.1, 2013 CBC 11B-216.4.1 and 2016 CBC 11B- 14 216.4.1.10 15 Ms. Pomponio alleges that “[d]espite [her] wish to patronize the businesses in the future, the 16 abovementioned barriers constitute deterrents to access to the business, rendering the business’ 17 goods, services, facilities, privileges, advantages, and accommodations unavailable to physically 18 disabled patrons such as herself.”11 She further alleges that: 19 [O]n information and belief, that Defendants knew that such barriers existed and that Defendants’ failure to remove the barriers was intentional as the particular 20 barriers mentioned above were intuitive and obvious. Additionally, Defendants exercised control and dominion over the condition of the real property and building 21 and had the financial resources to remove such barriers. Furthermore, Ms. 22 Pomponio alleges, on information and belief, that such modifications were readily achievable as removal of the above barriers could have been achieved without 23 much difficulty or expense.12 24 25 26 10 Id. at 7–8 (¶¶ 24(a)–(h)). 27 11 Id. at 5 (¶ 16). 12 Id. (¶ 17). 1 Ms. Pomponio filed this lawsuit on August 13, 2019, claiming (1) a violation of the Title III of 2 ADA, 42 U.S.C. § 12101, et seq., based on the barriers, (2) a violation of the Unruh Civil Rights 3 Act, Cal. Civ. Code § 51, et seq, based on the alleged ADA violations, and (3) a violation of the 4 Disabled Persons Act, Cal. Civ. Code § 54, et seq, on the same grounds.13 5 The defendants moved to dismiss the complaint for lack of jurisdiction under Federal Rule of 6 Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6), generally because the 7 property is not a “public accommodation” under the ADA.14 All parties have consented to 8 magistrate-judge jurisdiction.15 9 10 STANDARD OF REVIEW 11 1. Rule 12(b)(1) 12 A complaint must contain a short and plain statement of the ground for the court’s jurisdiction 13 (unless the court already has jurisdiction and the claim needs no new jurisdictional support). Fed. 14 R. Civ. P. 8(a)(1). The plaintiff has the burden of establishing jurisdiction. Kokkonen v. Guardian 15 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exchange v. Portage La Prairie Mut. 16 Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). A defendant’s Rule 12(b)(1) jurisdictional attack can 17 be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “A ‘facial’ attack 18 asserts that a complaint’s allegations are themselves insufficient to invoke jurisdiction, while a 19 ‘factual’ attack asserts that the complaint’s allegations, though adequate on their face to invoke 20 jurisdiction, are untrue.” Courthouse News Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014). 21 Under a facial attack, the court “accept[s] all allegations of fact in the complaint as true and 22 construe[s] them in the light most favorable to the plaintiffs.” Warren v. Fox Family Worldwide, 23 Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In a factual attack, the court “need not presume the 24 truthfulness of the plaintiff’s allegations” and “may review evidence beyond the complaint without 25 26 13 Id. at 5–9 (¶¶ 19–32). 27 14 Mot. – ECF No. 12. Mr. As joined the motion to dismiss. Joinder – ECF No. 23. 15 Consents – ECF Nos. 10, 18, 26. 1 converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone v. 2 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The defendants make a facial attack, and they also 3 make a factual attack because they rely on extrinsic evidence to show that the court lacks subject- 4 matter jurisdiction.16 5 6 2. Rule 12(b)(6) 7 A complaint must contain a “short and plain statement of the claim showing that the pleader is 8 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 9 which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A 10 complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the 11 ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic 12 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 13 raise a claim for relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal 14 citations omitted). 15 To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which 16 when accepted as true, “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 17 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when 18 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 19 defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a 20 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 21 unlawfully.” Id (quoting Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are 22 merely consistent with a defendant’s liability, it stops short of the line between possibility and 23 plausibility of ‘entitlement to relief.’” Id (quoting Twombly, 550 U.S. at 557) (internal quotations 24 omitted). 25 26 27 1 3. Leave to Amend 2 If a court dismisses a complaint, it should give leave to amend unless the “pleading could not 3 possibly be cured by the allegation of other facts.” Yagman v. Garcetti, 852 F.3d 859, 863 (9th 4 Cir. 2017) (citations and internal quotation marks omitted). 5 6 ANALYSIS 7 The issue is whether the property is a public accommodation. The defendants say that it is not: 8 they mount factual and facial challenges to the jurisdictional allegations under Rule 12(b)(1), and 9 they contend that dismissal is appropriate under Rule 12(b)(6) because the plaintiff does not 10 plausibly plead that the business is a public accommodation.17 The court dismisses the complaint 11 under Rule 12(b)(6) with leave to amend. 12 Title III of the ADA prohibits discrimination against disabled individuals in public 13 accommodations. 42 U.S.C. §12182(a). Landlords and tenants are both liable for failing to provide 14 accessible facilities at public accommodations. 28 C.F.R. § 36.201(b). 15 To recover on an ADA discrimination claim, a plaintiff must prove that (1) he or she is 16 disabled within the meaning of the statute, (2) the defendants are private entities that own, lease 17 (as landlord or tenant), or operate a place of public accommodation, and (3) the plaintiff was 18 denied public accommodation by the defendants because of his or her disability. Arizona ex rel. 19 Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). 20 “Title III provides an extensive list of ‘public accommodations’ in [42 U.S.C.] § 12181(7).” 21 Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); see 42 U.S.C. § 22 12181(7) (listing twelve categories of private establishments that are considered “public 23 accommodations” if the establishment affects interstate commerce, such as “sales or rental 24 establishment[s]”). The Ninth Circuit has explained that “public accommodations” for purposes of 25 the statute are “actual, physical places where goods or services are open to the public, and places 26 where the public gets those goods or services.” Id. 27 1 The complaint here asserts that Brand Motors is a public accommodation, but it alleges no 2 || facts to support that conclusion. 42 U.S.C. § 12182(a). In short, the allegations are only 3 conclusions, and thus Ms. Pomponio does not plausibly plead a claim. The court appreciates that 4 || often, the “public accommodation” element is more obvious due to the nature of the business, and 5 as a result, in the more ordinary case, plaintiffs satisfy Rule 8(a) more easily. That is not the case 6 || here. It is not obvious, for example, that a business such as Brand Motors (perhaps plausibly, as 7 the plaintiff suggests, an automotive sales or repair shop) necessarily is a place of public 8 accommodation at this location, especially given the defendants’ jurisdictional challenge. Because 9 Ms. Pomponio did not allege facts in her complaint that plausibly plead that the defendants 10 || operate a “public accommodation” within the meaning of the ADA, see Weyer, 198 F.3d at 1114, 11 she does not plausibly plead a claim under the ADA. 12 The court grants the defendants’ motion to dismiss. At this stage, the court declines to exercise 5 13 supplemental jurisdiction over the remaining state-law claims. Sanford v. MemberWorks, Inc., 625 14 || F.3d 550, 561 (9th Cir. 2010) (citation omitted). 2 15 16 CONCLUSION 5 17 The court grants the motion to dismiss with leave to amend. Ms. Pomponio may file an 3 18 amended complaint by March 16, 2020. If she files an amended complaint, she must file as an 19 || attachment a blackline of her new amended complaint against her First Amended Complaint. 20 This disposes of ECF No. 12. 21 22 IT ISSO ORDERED. 23 Dated: February 26, 2020 Lp 24 LAUREL BEELER 25 United States Magistrate Judge 26 27 28