Johnson v. Canciamilla ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 SCOTT JOHNSON, Case No. 4:20-cv-01742-YGR 5 Plaintiff, ORDER: (1) DENYING MOTION TO DISMISS; 6 vs. AND (2) GRANTING MOTION FOR PUBLICATION OF SUMMONS 7 ANTHONY CANCIAMILLA ET. AL., 8 Defendants. Re: Dkt. Nos. 13, 18 9 10 Plaintiff Scott Johnson brings this action seeking damages and injunctive relief against 11 defendants Anthony Canciamilla, Maria Canciamilla, El Buen Gusto Corporation, Mohamed 12 Jallab, and does for violation of federal disability access laws under the American with Disabilities 13 Act of 1990 (“ADA”) and state disability access laws under the Unruh Civil Rights Act. 14 Now before the Court are the following motions. First, Jallab moves to dismiss Johnson’s 15 complaint pursuant to Federal Rules of Civil Procedure Rule 12(b)(6). (Dkt. No. 13.) Second, 16 Johnson moves to authorize publication of summons for defendants Anthony Canciamilla and 17 Maria Canciamilla. (Dkt. No. 18.) Having carefully considered the pleadings in this action and 18 the papers submitted on each motion, and for the reasons set forth below, the Court ORDERS as 19 follows: Jallab’s motion to dismiss is DENIED; and Johnson’s request for publication of summons 20 is GRANTED. 21 I. BACKGROUND 22 The following facts are based on the allegations found in Johnson’s complaint. (See Dkt. 23 No. 1 (“Compl.”).) Johnson has physical disabilities. (Comp. at ¶ 1.) He is a quadriplegic, cannot 24 walk, and has significant manual dexterity impairments. (Id.) He uses a wheelchair and has a 25 specially equipped van. (Id.) Johnson alleges that in January 2019, March 2019, and April 2019, 26 he went to Cigarette Express and El Buen Gusto Taqueria intending to avail himself of their 27 business, motivated in part to assess whether defendants complied with disability access laws. (Id. 1 establishments located at 1710 Berryessa Rd., San Jose, California. (Id. at ¶¶ 5, 6, 13.) 2 Ownership of the real property and the businesses on the days Johnson visited is as 3 follows: Anthony Canciamilla and Maria Canciamilla, in individual and representative capacity as 4 trustees of the Canciamilla Trust, owned and currently own the real property located at 1710 5 Berryessa Rd. (Id at ¶ 3.) El Buen Gusto Corporation owned and currently owns El Buen Gusto 6 Taqueria. (Id. at ¶¶ 6, 7.) Jallab owned and currently owns Cigarette Express. (Id. at ¶ 5.) 7 Johnson does not know the true names of defendants, their business capacities, ownership 8 connection to the property and business, or responsibilities in causing access violations. (Id. at 9 ¶ 8.) He alleges joint venture and common enterprise in the violations. (Id.) Johnson will seek to 10 amend the complaint when the information is ascertained. (Id.) 11 The relevant allegations pertain to Jallab as follow: on the dates Johnson visited Cigarette 12 Express, Jallab failed to provide wheelchair accessible parking and wheelchair accessible entrance 13 door hardware. (Id. at ¶ 14, 16.) Johnson, on information and belief, alleges that Jallab still fails 14 to meet standards for disability access. (Id. at ¶¶ 15, 17.) Johnson also alleges that given the 15 blatant nature of the violations, there are other violations on site. (Id. at ¶ 29.) Johnson will 16 amend the complaint once he conducts an inspection. (Id.) 17 Johnson commenced the instant action on March 11, 2020. 18 II. MOTION TO DISMISS 19 Jallab avers that Johnson has not alleged sufficient facts from which the court could grant 20 relief under either the ADA or the Unruh Act. Johnson counters that Jallab’s motion should 21 denied because Jallab does not address the adequacy of the complaint’s allegations, rather, he 22 makes factual claims not alleged in the complaint. 23 A. Legal Standard 24 Rule 12(b)(6) tests the legal sufficiency of claims asserted in the complaint. Ileto v. Glock, 25 Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Generally, review is limited to the allegations in 26 the complaint, which are “taken as true and construed in the light most favorable to the plaintiff." 27 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Courts assume that 1 v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). All inferences favoring the 2 non-moving party must be considered. Ileto, 349 F. 3d at 1200. But “unreasonable inferences” 3 and “legal conclusions cast in the form of factual allegations” are not accepted. Id. Courts “need 4 not accept as true allegations contradicting documents that are referenced in the complaint or that 5 are properly subject to judicial notice.” Lazy Y Ranch Ltd. v. Behrens, 546 F. 3d 580, 588 (9th 6 Cir. 2008). 7 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 8 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 9 662, 678 (U.S. 2009) (internal quotations omitted). A claim is plausible “when the plaintiff pleads 10 factual content that allows the court to draw the reasonable inference that the defendant is liable 11 for the misconduct alleged.” Id. Dismissal is appropriate when “the allegations . . . however true, 12 could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 13 (2007). 14 As Jallab is proceeding pro se, the Court construes Jallab’s motion to dismiss liberally. 15 See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally 16 construed . . . .”). 17 B. Analysis 18 Under federal law, the ADA provides that “no individual shall be discriminated against on 19 the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 20 advantages, or accommodations of any place of public accommodation by any person who owns, 21 leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). 22 Discrimination includes the following: First, “failure to make reasonable modifications in policies, 23 practices, or procedures, when such modifications are necessary to afford such goods, services, 24 facilities, privileges, advantages, or accommodations to individuals with disabilities unless the 25 entity can demonstrate that such modifications would would fundamentally alter the nature of such 26 goods, services, facilities, privileges, advantage, or accommodations.” 42 U.S.C. 27 § 12182(b)(2)(A)(ii). Second, failure to remove architectural barriers where such removal is 1 manner that, “to the maximum extent feasible, the altered portions of the facility are readily 2 accessible to and usable by individuals with disabilities, including individuals who use 3 wheelchairs.” 42 U.S.C. § 12183(a)(2). 4 Under California law, the Unruh Civil Rights Act provides that persons with disabilities 5 are “entitled to entitled to full and equal accommodations, advantages, facilities, privileges, or 6 services in all business establishment of every kind whatsoever. Cal. Civ. Code §51(b). The 7 Unruh Act provides that a violation of the ADA is a violation of the Unruh Act. Cal. Civ. Code, 8 § 51(f). 9 Here, Johnson alleges in his complaint that Jallab failed to provide accessible door 10 hardware and accessible parking on dates he visited Cigarette Express. On these grounds, he 11 raises a plausible claim for which relief could be granted under the ADA and Unruh Civil Rights 12 Act. See 42 U.S.C. §§ 12182(b)(2)(A)(ii), 42 U.S.C. § 12183(a)(2); Cal. Civ. Code, § 51(f); 13 Compl. ¶¶ 4, 16. 14 Jallab’s motion attacking these allegations does not persuade for three reasons: 15 First, Jallab argues that there is no “architectural barrier.” The Court disagrees. The 16 alleged failure to provide accessible door hardware and a parking spot satisfies that requirement. 17 Second, Jallab simply denies facts. He does not indicate why, even if true, they would not 18 state a claim. Jallab misunderstands the well-settled rule that the Court, at this stage in the 19 proceedings, must construe the allegations in the light most favorable to the plaintiff. See 20 Sprewell, 266 F.3d at 988. 21 Finally, Jallab argues “facts” outside the complaint, circumventing the general rule that a 22 12(b)(6) motion is generally limited to the complaint. Id. at 988.1 The Court is prohibited from 23 accepting as true Jallab’s “facts.” That would require the Court to engage in a merits-based 24 25 1 The gravamen of his motion relies on certain facts, namely that: (i) per the lease 26 agreement the Canciamillas were responsible for wheelchair accessible parking, not him; (ii) the door hardware was ADA compliant and the door was always opened; and (iii) he sold Cigarette 27 Express in February 2019. (See Dkt. No 13 at 4, 8, and the “exhibits” attached to the motion and 1 analysis, which at this juncture, for this case, is inappropriate. 2 Indeed, as part of his motion, Jallab relies on documents not referenced in the complaint. 3 Jallab cites Cortec, a Second Circuit case, but misapplies the doctrine. Cortec holds that where 4 “plaintiff has actual notice of all the information in the movant’s papers and has relied” on them 5 defendant may produce the documents in the motion to dismiss. Cortec Industries, Inc. v. Sum 6 Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991). The Ninth Circuit has similar exceptions to the 7 general rule that courts may not consider material outside the complaint when assessing a 12(b)(6) 8 motion. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). The 9 incorporation by reference doctrine and judicial notice under Federal Rule of Evidence 201 allow 10 courts to consider material outside the complaint. Id. The first allows courts to treat certain 11 documents as if “they are part of the complaint.” Id. at 1002. However, if the documents only 12 create “a defense to the well-pled allegations in the complaint, then that[those] document[s] did 13 not necessarily form the basis of the complaint.” Id. Accepting such documents would merely 14 allow defendants to “insert their own version of events into the complaint to defeat otherwise 15 cognizable claims.” Id. The second exception allows courts to notice “an adjudicative fact” if not 16 “subject to reasonable dispute,” such as, for instance, matters of public record. Id. at 999 (citing 17 Fed. R. Evid. 201(b)). Documents not attached to a complaint “may be considered if no party 18 questions their authenticity and the complaint relies on those documents.” Harris v. County of 19 Orange, 682 F.3d 1126,1132 (9th Cir. 2012). 20 Here, the documents Jallab attaches do not fall within either exception and the Court 21 cannot substantively consider them. Jallab attaches a bill of sale of Cigarette Express, 22 photographs of the business and the door, and a lease agreement, and claims they are integral to 23 the complaint. (Dkt. No. 13, Exhibit 1 and Dkt. No. 16, Exhibit 1.) But they are not. Johnson did 24 not rely on them in the complaint, nor do they constitute a fact not “subject to reasonable dispute,” 25 such as the days in a week. Jallab uses the documents to construct his own narrative rather than 26 attack the adequacy of Johnson’s pleadings, which is inappropriate at this stage. See Khoja, 899 27 F.3d at 1002. III. MOTION FOR PUBLICATION OF SUMMONS 1 2 Johnson moves to authorize publications of summons for defendants Anthony and 3 Maria Canciamilla because defendants cannot be found despite reasonable diligence. 4 A. Legal Standard 5 Rule 4 of the Federal Rules of Civil Procedure governs the service of process. Emp. 6 Painters’ Trust v. Ethan Enters., 480 F.3d 993, 999 (9th Cir. 2007). An individual may be served 7 “following the state law for serving summons in an action brough in courts of general jurisdiction 8 in the state where the district court is located or where service is made.” Fed. Rules. Civ. Pro. 9 4(e)(1). 10 In California, “a summons may be served by publication if upon affidavit it appears to the 11 satisfaction of the court . . . that the party to be served cannot with reasonable diligence be served 12 in another manner.” Cal. Civ. Pro. § 415.50(a); see also Conzorsio Del Prosciutto Di Parma v. 13 Domain Name Clearing Co., 346 F.3d 1193, 1194 n.1 (9th Cir. 2003). Reasonable diligence 14 “denotes a thorough, systematic investigation and inquiry conducted in good faith by the part or 15 his agent or attorney.” Watts v. Crawford, 10 Cal.4th 743, 745 n.5 (Cal. 1995). Additionally, 16 there must be a cause of action against the party upon whom service is to be made or the party to 17 be served has or “claims an interest in real or personal property in California subject to jurisdiction 18 of the court or the relief demanded consists wholly or in part in excluding the party from any 19 interest in the property.” Cal. Civ. Pro. § 415.50(a)(1). The court shall order the publication of 20 summons in a named newspaper published in the state that is “most likely to give actual notice to 21 the party to be served.” Cal. Civ. Pro. § 415.50(b). 22 B. Analysis 23 Here, the Court is persuaded that Johnson has shown reasonable diligence attempting to 24 serve Anthony and Marcia Canciamilla. See Cal. Civ. Pro. § 415.50(a). Johnson’s counsel 25 searched business and property records using the TransUnion/TLO XP (TLO) search engine’s 26 California Ultimate Weapon Database, a comprehensive database used by law enforcement, 27 governmental agencies, law firms, and private detectives. (Dkt. No. 18-1 at 2-3.) The database 1 interests, legal and criminal cases, professional licenses, Board of Equalization licenses, utilities, 2 voting registration, driver’s license information, and deaths. (Dkt. No. 18-1 at 3.) 3 The search showed that Anthony and Marie Canciamilla own the real property in 4 || individual capacity and as trustees of the real property on 1710 Berryessa Rd. and have three other 5 mailing addresses in San Jose. Ud.) Johnson’s counsel and agents attempted various methods of 6 service of process at all addresses, including in person, mail, and phone numbers. (/d. at 3-4.) 7 || Employees and residents of the properties described Anthony and Maria as absentee landlords. 8 (Dkt. No. 18-4, at 5-6.) Johnson made dozens of attempts to serve the defendants at all four 9 addresses at various times of the day and evening. (See generally Dkt. 18-4.) For the foregoing 10 reasons, the Court authorizes publication of summons in the San Jose Mercury News, which 11 circulates in Anthony’s and Maria Canciamilla’s last known addresses and is likely to give notice. Accordingly, the motion to authorize publication of summons is GRANTED. 13 || IV. CONCLUSION 14 For the foregoing reasons, the Court HEREBY ORDERS as follows: 3 15 1. Jallab’s motion to dismiss is DENIED. Jallab shall answer the complaint by October 5, 16 2020, and, if appropriate, file any counterclaim against Anthony and Maria Canciamilla. 2 17 2. Johnson’s motion to authorize publication of summons is GRANTED. As part of the 18 substitute service, Johnson shall also serve a copy of this Order, the Summons, Complaint, 19 and all other required filings on Anthony and Maria Canciamilla: 20 a. By certified mail c/o TMC Property Management P.O. Box 20202, San Jose CA 21 95160; and 22 b. By first-class mail on all known addresses. 23 This Order terminates Docket Numbers 13 and 18. 24 IT Is SO ORDERED. 25 || Dated: September 15, 2020 Lene Hagtelfleces_ 26 YVONNE GONZALEZ ROGER UNITED STATES DISTRICT JUDGE 27 28