Whitaker v. Gundogdu, Inc. ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 BRIAN WHITAKER, Case No. 21-cv-03132-JSC 9 Plaintiff, ORDER RE: MOTION TO DISMISS v. 10 Re: Dkt. No. 24 11 GUNDOGDU, INC., Defendant. 12 13 14 Brian Whitaker brings this lawsuit under the Americans with Disabilities Act (“ADA”) and 15 the California Unruh Civil Rights Act (“Unruh Act”), alleging that he encountered barriers during 16 a visit to Gundogdu, Inc.’s establishment, Van Ness Café & Gyros. Now before the Court is 17 Defendant’s motion to dismiss the ADA and Unruh Act claims for lack of subject matter 18 jurisdiction.1 (Dkt. No. 24.2) After carefully considering the parties’ briefs and the relevant legal 19 authority, the Court GRANTS the motion to dismiss. As Plaintiff’s ADA claim is moot it must be 20 dismissed. In light of that dismissal, the Court declines to exercise supplemental jurisdiction of 21 the Unruh Act claim. 22 BACKGROUND 23 As alleged in the complaint, Plaintiff is a C-4 quadriplegic who uses a wheelchair for 24 mobility. (Complaint ¶ 1.) Defendant is the owner of Van Ness Café & Gyros in San Francisco, 25 California. (Id. ¶ 2.) Plaintiff visited the restaurant in April 2021 to avail himself of its goods and 26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 7, 10.) 1 services but encountered unlawful barriers. (Id. ¶ 8.) Specifically, the establishment lacked 2 wheelchair accessible outside dining surfaces in conformance with ADA standards. (Id. ¶ 12.) 3 Plaintiff served Defendant with the summons and complaint on May 11, 2021. (Dkt. No. 4 12.) On May 26, 2021, Defendant retained a Certified Access Specialist (“CASp”), Mike Miyaki, 5 who inspected the Restaurant on June 4, 2021. (Dkt. No. 24-2 ¶¶ 6, 8.) Mr. Miyaki prepared a 6 CASp report, which concluded that the Restaurant had sufficient indoor and outdoor accessible 7 dining surfaces. (Dkt. No. 24-4 at 4-7.) On September 10, 2021, both parties participated in a 8 joint site inspection where Plaintiff’s accessibility consultant and Mr. Miyaki found no existing 9 access barriers at the Restaurant. (Dkt. No. 24-2 at ¶ 14.) After no barriers were found, Defendant 10 requested that Plaintiff dismiss the ADA claim, but Plaintiff declined. (Dkt. No. 24-6.) 11 Subsequently, Defendant filed the now pending motion to dismiss for lack of subject matter 12 jurisdiction. (Dkt. No. 24.) Because Defendant’s reply brief included additional evidence, the 13 Court granted Plaintiff leave to file a response to this supplemental evidence. (Dkt. Nos. 30.) 14 Plaintiff filed a response on December 14, 2021. (Dkt. No. 31.) 15 LEGAL STANDARD 16 If a federal “court determines at any time that it lacks subject-matter jurisdiction, the court 17 must dismiss the action.” Fed. R. Civ. P. 12(h)(3). The Federal Rules of Civil Procedure also 18 allow a defendant to raise the lack of subject matter jurisdiction by motion. Fed. R. Civ. P. 19 12(b)(1). A challenge to subject matter jurisdiction may be facial or factual. See Safe Air for 20 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the court 21 determines whether the allegations contained in the complaint are sufficient on their face to invoke 22 federal jurisdiction, accepting all material allegations in the complaint as true and construing them 23 in favor of the party asserting jurisdiction. See id. at 1039. Where the attack is factual, however, 24 “[t]he court need not presume the truthfulness of the plaintiff’s allegations,” and may review 25 extrinsic evidence beyond the complaint without converting a motion to dismiss into one for 26 summary judgment. Id. Once the moving party has made a factual challenge by offering 27 affidavits or other evidence to dispute the allegations in the complaint, the party opposing the 1 subject matter jurisdiction.” Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 2 1039 n.2 (9th Cir. 2003). 3 DISCUSSION 4 Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss 5 Plaintiff’s complaint on the grounds that Plaintiff’s ADA claim is moot and that the Court should 6 not exercise jurisdiction of the Unruh Act claim. “A federal court lacks jurisdiction to hear a case 7 that is moot.” Bishop Paiute Tribe., 863 F.3d 1144, 1155 (9th Cir. 2017). “A case is moot where 8 no actual or live controversy exists.” Id. (internal citation and quotation marks omitted). If it is no 9 longer possible that the plaintiff can obtain relief for his claim, the claim is moot and must be 10 dismissed for lack of jurisdiction. Id. “Mootness has been described as standing set in a time 11 frame: The requisite personal interest that must exist at the commencement of the litigation 12 (standing) must continue throughout its existence (mootness).” Id. (cleaned up). Because 13 mootness pertains to a federal court’s subject-matter jurisdiction under Article III, it is properly 14 raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). See White v. Lee, 15 227 F.3d 1214, 1242 (9th Cir. 2000). 16 I. ADA CLAIM 17 Under the ADA, a plaintiff may seek only injunctive relief and attorney’s fees. See 42 18 U.S.C. §§ 12188(a)(2), 12205. “Because a private plaintiff can sue only for injunctive relief (i.e., 19 for removal of the barrier) under the ADA, a defendant’s voluntary removal of alleged barriers 20 prior to trial can have the effect of mooting a plaintiff’s ADA claim.” Oliver v. Ralphs Grocery 21 Co., 654 F.3d 903, 905 (9th Cir. 2011). The voluntary removal of the barriers only moots the 22 ADA claim, however, where there is no “sufficient likelihood that [the plaintiff] will again be 23 wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). “That is, [the 24 plaintiff] must establish a ‘real and immediate threat of repeated injury.’” Fortyune v. Am. Multi- 25 Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (quoting O’Shea v. Littleton, 414 U.S. 488, 496 26 (1974)). “Of course, ‘[a] defendant claiming that its voluntary compliance moots a case bears a 27 formidable burden.’” Johnson v. Case Ventures, LLC, No. 5:19-CV-02876-EJD, 2020 WL 1 Environmental Servs., 528 U.S. 167, 170 (2000)). 2 As a preliminary matter, the Court observes, as Plaintiff emphasizes, that Defendant’s 3 mootness argument is intertwined with the merits. In these circumstances, the Court must apply 4 the Rule 56 summary judgment standard to Defendant’s 12(b)(1) motion; that is, all reasonable 5 inferences from the evidence must be drawn in Plaintiff’s favor and the Court may not resolve 6 disputes of fact. See Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987) (“[I]f the 7 jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional 8 question is dependent on factual issues going to the merits, the district court should employ the 9 standard applicable to a motion for summary judgment and grant the motion to dismiss for lack of 10 jurisdiction only if the material jurisdictional facts are not in dispute and the moving party is 11 entitled to prevail as a matter of law.”); see also Whitaker v. John’s of Willow Glen Inc., No. 21- 12 CV-04850-RS, 2021 WL 4990239, at *2 (N.D. Cal. Oct. 27, 2021) (applying summary judgment 13 standard to 12(b)(1) motion to dismiss in an ADA action because jurisdictional argument was 14 intertwined with the merits). Applying the summary judgment standard, Defendant has 15 established that Plaintiff’s ADA claim is moot. 16 First, Defendant has met its burden of showing that there is no genuine dispute that there is 17 no longer any barrier to access at Defendant’s establishment. The parties’ accessibility consultants 18 performed a joint site inspection and certified that the accessibility barriers Plaintiff alleged in the 19 complaint were remedied. (Dkt. No. 24-2 ¶ 14.) Neither consultant “identif[ied] any existing 20 barriers to access at the [p]remises.” (Id.) Plaintiff’s counsel subsequently confirmed via email 21 that “[w]e have completed the Joint Site Inspection and everything looks good.” (Dkt. No. 24-6 at 22 2.) Plaintiff has not identified any evidence that supports an inference that any access barriers 23 remain. See Johnson v. DiVittorio, No. 21-CV-02026-SVK, 2021 WL 4749414, at *2 (N.D. Cal. 24 Oct. 12, 2021) (finding that the declaration by a licensed access specialist stating that the premise 25 was ADA compliant was sufficient to show that the alleged barriers were removed). 26 Second, Defendant has met its burden of showing that the access barriers are not 27 reasonably likely to reoccur; that is, a “real and immediate threat of repeated injury.” Fortyune, 1 structural modifications are made, then it is absolutely clear the allegedly wrongful behavior could 2 not reasonably be expected to occur in the future since structural modification[s] undo the 3 offending conduct.” Zaldivar v. City of San Diego, No. 15-CV-67-GPC, 2016 WL 5118534, at 4 *10 (S.D. Cal. Sept. 21, 2016). “When considering non-structural features, on the other hand, 5 courts have found that ‘voluntary remediation of’ these violations do ‘not moot an issue’ because 6 the violations ‘could easily reoccur.’” Moore v. Saniefar, No. 1:14-CV-01067-SKO, 2017 WL 7 1179407, at *6 (E.D. Cal. Mar. 29, 2017) (quoting Zaldivar, 2016 WL 5118534, at *10). Even 8 with non-structural barriers, however, if the evidence is undisputed that the ADA violations could 9 not reasonably be expected to recur, the ADA claim will still be moot. See, e.g, DiVittorio, 2021 10 WL 4749414, at *3 (“In this case, the evidence of Defendants’ remediations shows that the ADA 11 violations are not reasonably likely to recur” such that “the voluntary cessation doctrine does not 12 apply to avoid the Court’s determination that Plaintiff’s ADA claim is moot.”); Johnson v. Opa 13 Campbell LP, No. 21-CV-01619-PJH, 2021 WL 3493712, at *4 (N.D. Cal. Aug. 9, 2021) (“based 14 on the evidence of defendants’ remediations, the ADA violations are not reasonably likely to 15 recur. Defendants took affirmative steps to become compliant and prevent future violations”); 16 Johnson v. 1082 El Camino Real, L.P, No. 5:17-CV-01391-EJD, 2018 WL 1091267, at *2 (N.D. 17 Cal. Feb. 28, 2018) (dismissing the ADA claim as moot where “the undisputed evidence shows 18 that Defendants have corrected the sole alleged access barrier alleged in the complaint.”). 19 Here, drawing all inferences in Plaintiff’s favor, Defendant’s remediation was not 20 structural and the now accessible tables “can be moved—or removed—in an instant.” (Dkt. No. 21 26 at 9.) Nonetheless, based on the record before the Court, there is no genuine dispute that that 22 the alleged violation is not likely to recur and thus that injunctive relief is inappropriate. 23 Defendant retained a disability access consultant within three seeks of service of the summons and 24 complaint. (Dkt. No. 24-2 at ¶ 6.) When the consultant inspected the premises just over a week 25 later to evaluate the barriers alleged in the Complaint, he concluded that the premises provided an 26 outdoor accessible table in compliance with the 2010 ADA Standards for Accessible Design and 27 the 2010 California Building Code. (Id. at ¶¶ 8-10.) At the parties’ subsequent joint site 1 Premises. (Id. at ¶ 14.) 2 Defendant’s reply brief included a declaration from one of Defendant’s officers, Baris 3 Halifeoglu, who attests that Defendant has a history of providing accessible indoor dining and was 4 not aware that they “were required to also have an accessible table outside.” (Dkt. No. 29-1 ¶¶ 3, 5 5.) According to Mr. Halifeoglu, it was “not until the onset of the COVID pandemic that we 6 began to offer outdoor seating at the Restaurant,” and they did not understand that they were 7 required to have an accessible table outside in addition to their accessible table inside. (Id. at ¶¶ 8 4-5.) However, once they were served with the lawsuit, they “installed an outdoor table that was 9 accessible and had legs, as opposed to a pedestal base” within a few days. (Id. ¶ 6.) Further, 10 Defendant “intend[s] to keep this outdoor accessible table at the Restaurant as long as we operate 11 the Restaurant or as long as we are allowed to offer outdoor tables on the sidewalk.” (Id.) In 12 response, Plaintiff argues that there is a “cloudy history of when Defendant first began offering 13 outdoor dining and [an] admitted delay in complying with the ADA,” but this these arguments are 14 belied by Defendant’s evidence. (Compare Dkt. No. 31 at 4 with Dkt. No. 29-1 at ¶ 5 (“[a]fter the 15 onset of the pandemic…we quickly installed outdoor tables”; Dkt. No. 24-2 at ¶ 8 (attesting that 16 Defendant had accessible outdoor seating by June 4, 2021—less than a month after service of the 17 summons and complaint). 18 Given Defendant’s prompt remediation of the access barrier, attestation that it intends to 19 maintain the outdoor accessible table as long as the restaurant is able to do so, its long-standing 20 commitment to providing accessible indoor dining, and Plaintiff’s failure to offer any contrary 21 evidence, “any conclusion that defendants would take action to remove the table or otherwise 22 cause their dining surfaces to fall into ADA noncompliance would be pure speculation.” 23 DiVittorio, 2021 WL 4749414, at *3; see also Opa Campbell LP, 2021 WL 3493712, at *3 24 (finding it was unlikely that the violation would recur because defendant promptly hired a CASp, 25 installed accessible outdoor surfaces, and defendant’s briefing indicated he never intended to 26 discriminate against people with disabilities); Johnson v. Mo’s TBJ Campbell LP, No. 5:21-CV- 27 01621-EJD, 2021 WL 4846855, at *3 (N.D. Cal. Oct. 18, 2021) (finding that the violations were 1 and there was no evidence of a history of ADA violations). 2 Plaintiff’s lament that if he had been given notice of a summary judgment motion, rather 3 than a 12(b)(1) jurisdictional motion, he would have made a Rule 56(d) request for a continuance 4 to conduct discovery is unavailing. He could have asked the Court to allow for jurisdictional 5 discovery. See Am. W. Airlines, Inc. v. GPA Grp., Ltd., 877 F.2d 793, 801 (9th Cir. 1989) (stating 6 that district court has discretion to grant discovery where there is a dispute regarding the court’s 7 subject matter jurisdiction). His opposition, however, does not identify any discovery that could 8 give rise to a genuine dispute of fact. See Johnson v. 1082 El Camino Real, No. 5:17-cv-01391- 9 EJD, 2018 WL 1091267, at *2 (N.D. Cal. Feb. 28, 2018) (“Plaintiff has not submitted any 10 declaration showing a likelihood that controverting evidence exists” and “[t]herefore, the Court is 11 not required to postpone or deny Defendants’ motion.”). While “where pertinent facts bearing on 12 the question of jurisdiction are in dispute, discovery should be allowed,” Plaintiff has made no 13 showing that such facts are in dispute here. Am. W. Airlines, Inc., 877 F.2d at 801 (finding that 14 “the district court did not abuse its discretion in deciding the jurisdictional issue without allowing 15 additional time for discovery” where the plaintiff neither moved to compel discovery nor 16 requested time to conduct such discovery). Courts thus routinely grant motions to dismiss for lack 17 of subject matter jurisdiction where plaintiffs raise similar arguments but fail to offer a declaration 18 or even any argument regarding what additional evidence they would or could develop if given the 19 opportunity. See, e.g., DiVittorio, 2021 WL 4749414, at *2 (granting motion to dismiss plaintiff’s 20 ADA claim alleging defendant lacked accessible outdoor surfaces when defendant offered 21 sufficient evidence that the barriers were removed and plaintiff did not offer any argument to what 22 further evidence he needed to develop); Opa Campbell LP, 2021 WL 3493712, at *3 (same). 23 II. UNRUH ACT CLAIM 24 Plaintiff’s Unruh Act claim remains live even after cure of the alleged barriers “[b]ecause a 25 claim for damages under the Unruh Act looks to past harm.” Arroyo v. Aldabashi, No. 16-CV- 26 06181-JCS, 2018 WL 4961637, at *5 (N.D. Cal. Oct. 15, 2018). However, having dismissed the 27 federal ADA claim, the only basis for jurisdiction of the Unruh Act claim is supplemental 1 (2005) (“Section 1367(a) is a broad grant of supplemental jurisdiction over other claims within the 2 same case or controversy, as long as the action is one in which the district courts would have 3 original jurisdiction.”). Section 1367(a) “confirms the discretionary nature of supplemental 4 jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.” City 5 of Chicago v. Int. Coll. of Surgeons, 522 U.S. 156, 173 (1997). One such circumstance is when 6 “the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 7 1387(c). 8 As the federal ADA claim has been dismissed as moot, and there is no basis for 9 jurisdiction over the state law Unruh Act claim other than supplemental jurisdiction, the Court 10 declines to exercise that discretionary jurisdiction and instead dismisses the Unruh Act claim 11 without prejudice. See Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir.), supplemented, 12 121 F.3d 714 (9th Cir. 1997), as amended (Oct. 1, 1997) (“[S]tate law claims ‘should’ be 13 dismissed if federal claims are dismissed before trial.”) (emphasis omitted). 14 Plaintiff’s one-sentence request that the Court instead stay the case pending the Ninth 15 Circuit’s consideration of Arroyo v. Rosas, Ninth Cir. Case No. 19-55974, is unavailing. (Dkt. No. 16 26 at 1.) The Ninth Circuit decided the case on December 10, 2021, and the opinion does not 17 suggest that supplemental jurisdiction should be exercised. Arroyo v. Rosas, 2021 WL 5858598 18 (9th Cir. Dec. 10, 2021). In Arroyo, the district court had not dismissed the federal claim (the 19 ADA claim) over which original jurisdiction was based; thus section 1367(c) was not a basis for 20 declining jurisdiction. To the contrary, the district court had granted the plaintiff summary 21 judgment on the ADA claim. Here, the Court has not ruled that Defendant violated the ADA; 22 instead, the Court has ruled only that there is no evidence in the record of any current ADA 23 violation and, if there was a violation, the record reflects that it is not likely to recur. These are far 24 from the circumstances in Arroyo when all that remained was “the relatively ministerial task of 25 entering judgment on the foreordained Unruh Act claim.” Id. at * 11. 26 Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiff’s 27 Unruh Act claim. CONCLUSION For the reasons set forth above, the court DISMISSES Plaintiff?s ADA claim and 2 DISMISSES his state law claim without prejudice to refiling in state court. 3 This Order disposes of Docket No. 24. 4 IT IS SO ORDERED. 5 Dated: December 16, 2021 6 8 JACQUELINE SCOTT CORLE 9 United States Magistrate Judge 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28