Langer v. YM Holdings, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRIS LANGER, Case No.: 18-CV-1114 JLS (KSC) 12 Plaintiff, ORDER GRANTING YM 13 v. HOLDINGS, LLC’S MOTION TO DISMISS 14 YM HOLDINGS, LLC; DONG SOO LEE; SUJIN LEE; AND DOES 1-10, 15 (ECF No. 7) Defendants. 16 17 18 Presently before the Court are Defendant YM Holdings, LLC’s Motion to Dismiss 19 Plaintiff’s Complaint, (“Mot.,” ECF No. 7), and Plaintiff’s Opposition to Defendant’s 20 Motion. (“Opp’n,” ECF No. 12). The Court decides this matter without oral argument, 21 pursuant to Civil Local Rule 7.1(d)(1). After reviewing Plaintiff’s Complaint, Defendant’s 22 Motion, and Plaintiff’s Opposition, the Court finds that Plaintiff lacks Article III standing. 23 Accordingly, the Court GRANTS Defendant’s motion. 24 BACKGROUND 25 Plaintiff is a paraplegic and uses a wheelchair for mobility. Compl. ¶ 1, ECF No. 1. 26 Defendant YM owns the real property located at 4706 Ruffner Street, San Diego, 27 California, and owned the property in September 2017. Id. ¶ 2–3. Color Print & Signs is 28 a public business establishment located at 4706 Ruffner Street. Id. ¶ 10. 1 In September 2017, Plaintiff went to Color Print & Signs to place a printing order. 2 Id. ¶ 10–11. Plaintiff alleges that there were no accessible parking spots reserved for 3 persons with disabilities that served Color Print & Signs. Id. ¶ 14. He alleges that “[t]his 4 inaccessible parking lot denied [him] full and equal access and caused him difficulty, 5 discomfort, and embarrassment.” Id. ¶ 21. Plaintiff also alleges that the path of travel to 6 the accessible entrance of Color Print & Signs required, and still requires, use of a ramp 7 with a slope greater than 8.33%. Id. ¶¶ 23–24. Plaintiff “did not personally confront th[is] 8 barrier,” but is aware of it based “on information and belief.” Id. ¶ 24. Plaintiff alleges 9 that these barriers have deterred him from returning to Color Print & Signs. Id. ¶ 26. 10 Plaintiff filed his Complaint against Defendant YM and the owners of Color Print & 11 Signs, Dong Soo Lee and Sujin Lee,1 on May 30, 2018. Id. ¶¶ 4–5. Plaintiff alleges the 12 lack of accessible parking and path of travel to an accessible entrance violates the 13 Americans with Disabilities Act (“ADA”), see id. ¶¶ 32–40, as well as the Unruh Civil 14 Rights Act (“Unruh”). Id. ¶¶ 41–44. 15 Defendant YM filed the present Motion to Dismiss on September 25, 2018. See 16 generally Mot. Plaintiff filed his Opposition on November 8, 2018. See generally Opp’n. 17 After filing its Opposition, Defendant YM’s counsel requested to withdraw. ECF No. 14. 18 The Court granted the request. ECF No. 15. Because Defendant is a corporation and must 19 appear through counsel, the Court ordered Defendant YM to obtain new counsel before it 20 moved forward with the case. Id. at 3. New counsel has now appeared on behalf of 21 Defendant; see ECF No. 16; therefore, the Court now addresses the Motion to Dismiss. 22 LEGAL STANDARD 23 Federal courts are courts of limited jurisdiction and, as such, have an obligation to 24 dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, 25 718 F.2d 964, 965 (9th Cir. 1983). Because the issue of standing pertains to the subject- 26 27 28 1 On October 12, 2018, default was entered against Defendants Dong Soo Lee and Sujin Lee. See ECF 1 matter jurisdiction of a federal court, motions raising lack of standing are properly brought 2 under Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th 3 Cir. 2000). The plaintiff bears the burden of establishing he has standing to bring the claims 4 asserted. Takhar v. Kessler, 76 F.3d 995, 1000 (9th Cir. 1996); see also In re Dynamic 5 Random Access Memory Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) (“The party 6 asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a 7 motion to dismiss for lack of subject matter jurisdiction.”). 8 Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for 9 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger 10 asserts that the allegations contained in a complaint are insufficient on their face to invoke 11 federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the 12 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. Here, 13 Defendant’s challenge is facial because it disputes whether Plaintiff’s alleged harm is 14 sufficiently particularized to confer Article III standing. See Motion at 5–7. Accordingly, 15 the Court will assume the truth of Plaintiff’s factual allegations, and draw all reasonable 16 inferences in favor of Plaintiff. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 17 2005); Safe Air for Everyone, 373 F.3d at 1039. 18 DISCUSSION 19 In its Motion, Defendant YM asserts that Plaintiff lacks standing because he does 20 not state facts showing redressability, causation, or injury-in-fact. See Motion at 5–7. 21 Defendant also asserts that Plaintiff failed to state a claim under the ADA because he has 22 not pled sufficient facts. See id. at 8–11. Lastly, Defendant asserts that the Court should 23 decline to exercise supplemental jurisdiction over the state law claim. See id. at 11–13. 24 The Court addresses the threshold issue of standing first. 25 To establish Article III standing, “a plaintiff must show (1) [he] has suffered an 26 ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not 27 conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the 28 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be 1 redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. 2 (TOC), Inc., 528 U.S. 167, 180–81 (2000). The plaintiff bears the burden of establishing 3 each element of standing “with the manner and degree of evidence required at the 4 successive stages of the litigation.” Lujan, 504 U.S. at 561. Where a plaintiff seeks only 5 declaratory and injunctive relief, he must show “a very significant possibility of future 6 harm,” not merely the existence of a past injury. See San Diego Cty. Gun Rights Comm. v. 7 Reno, 98 F.3d 1121, 1126 (9th Cir. 1996). 8 Under the ADA, a plaintiff can only seek injunctive relief. Barnes v. Marriott Hotel 9 Servs., Inc., No. 15-CV-01409-HRL, 2017 WL 635474, at *7 (N.D. Cal. Feb. 16, 2017). 10 “An ADA plaintiff can establish standing to sue for injunctive relief either by 11 demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to 12 return to a noncompliant facility.” Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 944 13 (9th Cir. 2011). An ADA plaintiff cannot establish standing by alleging an injury “based 14 only on conclusory statements unsupported by specific facts.” Barnes, 2017 WL 635474, 15 at *7. 16 In the present case, Plaintiff alleges he personally experienced the lack of accessible 17 parking, see Compl. ¶ 20, but did not experience the lack of accessible pathway. See id. 18 ¶ 24. Further, Plaintiff asserts he “plans to return and patronize Color Print & Signs but is 19 deterred from visiting until the defendants remove the barriers.” Id. ¶ 26. It is therefore 20 unclear from the language of the Complaint whether Plaintiff seeks to establish standing 21 based on injury-in-fact and an intent to return or deterrence. Regardless, the Court finds 22 that, under either theory, Plaintiff does not include sufficient factual details to establish a 23 genuine intent to return to the store and, thus, a likelihood of future harm. 24 An ADA Plaintiff may establish a likelihood of future harm by “demonstrating an 25 intent to return to a noncompliant accommodation.” Chapman, 631 F.3d at 949. When 26 evaluating whether the intent to return is genuine, “a court must engage in a fact-intensive 27 inquiry to determine whether the plaintiff . . . would return to the establishment if the 28 establishment were compliant with the ADA.” Vogel v. Salazar, No. SACV 14-00853- 1 CJC (DMFx), 2014 WL 5427531, at *2 (C.D. Cal. Dec. 9, 2014). “‘[S]ome day’ intentions 2 [to return to a noncompliant facility] . . . are insufficient to establish standing.” Barnes, 3 2017 WL 635474, at *7. An ADA plaintiff therefore “lacks standing if he is indifferent to 4 returning to the store or if his alleged intent to return is not genuine.” Chapman, 631 F.3d 5 at 953. 6 Here, Plaintiff asserts that he is “deterred from visiting [Color Print & Signs],” 7 Compl. ¶ 26, and “will return to the business to assess ongoing compliance with the ADA 8 and will return to patronize Color Print & Signs as a customer once the barriers are 9 removed.” See Compl. ¶ 30. Regarding Plaintiff’s intent to return as a customer, the Court 10 finds Plaintiff’s allegations are not sufficient to confer standing. Unlike cases in which 11 courts typically find a genuine intent to return, plaintiff has not pled specific facts 12 evidencing a genuine desire to return to the subject property. Compare, e.g., Doran v. 7- 13 Eleven, Inc., 524 F.3d 1034, 1040–41 (9th Cir. 2008) (holding plaintiff had standing where 14 he alleged he had visited a store on ten to twenty prior occasions, the store was near his 15 favorite fast food restaurant in Anaheim, he visited Anaheim at least once a year, and he 16 was deterred from visiting the store because of accessibility barriers), and Parr v. L&L 17 Drive-Inn Rest., 96 F. Supp. 2d 1065, 1079 (D. Haw. 2000) (finding future injury likely 18 where plaintiff lived close to the restaurant, enjoyed the taste of a restaurant’s food, had 19 visited other restaurants in the chain, and intended to visit the restaurant in the future), with 20 Vogel, 2014 WL 5427531, at *2 (plaintiff lacked standing where he “merely attest[ed] that 21 because of ‘physical and intangible’ barriers, he has been ‘deterred’ and ‘continues to be 22 deterred from visiting the Restaurant’”). For example, Plaintiff gives no reasons why he 23 would patronize Color Print & Signs, rather than neighboring businesses offering similar 24 services, even though he alleges he “was able to place his printing order at another business 25 nearby.” Compl. ¶ 22. Indeed, Plaintiff offers no factual details showing an intent to 26 patronize the store in the first instance, making his allegation wholly conclusory. Cf. 27 Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (finding 28 standing where plaintiff alleged a preference to shop at defendant’s grocery stores over 1 other grocery chains). Given the conclusory nature of Plaintiff’s allegations, the Court 2 finds that Plaintiff has not demonstrated a genuine intent to return as a customer. 3 Plaintiff contends that even if he has not shown an intent to return as a customer, he 4 may still show what is known as “tester standing.” See Opp’n at 13–14. Plaintiff relies on 5 Civil Rights Education & Enforcement Center v. Hospitality Properties Trust, pointing to 6 its holding that an ADA plaintiff can claim “tester standing” even when the plaintiff’s only 7 motivation to visit a property is to test for ADA compliance. See 867 F.3d 1093, 1099– 8 1102 (9th Cir. 2017) (“CREEC”). Plaintiff, however, misconstrues the extent of that 9 holding’s effect. Regardless of Plaintiff’s motivation, “tester status, alone, is not enough 10 to confer standing.” See Johnson v. Alhambra & O Assocs., No. 2:19-CV-00103-JAM- 11 DB, 2019 WL 2577306, at *3 (E.D. Cal. June 24, 2019) (discussing ADA standing under 12 CREEC, 867 F.3d 1093). Thus, even if Plaintiff is alleging tester standing, he must still 13 show an “intent to visit [Color & Signs] once they provide [accessible parking and an 14 accessible pathway] for the disabled . . . .” See CREEC, 867 F.3d at 1099. Indeed, the 15 Ninth Circuit implied that even when tester standing is alleged, district courts must make 16 a “case-by-case” determination of whether a plaintiff’s injury is imminent, including 17 “whether a plaintiff suing under the ADA . . . was likely to actually visit” the complained 18 of business. See id. at 1100 (citing Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 19 1335–37 (11th Cir. 2013) (noting various factors to determine whether a plaintiff had intent 20 to return, “including prior visits, proximity of residence to store, plans for future visits, and 21 status as an ‘ADA tester who has filed many similar lawsuits’”)). 22 As with Plaintiff’s motivation to return as a customer, the Court finds Plaintiff’s 23 intent to return as a tester to be lacking. Plaintiff gives no specific reason to visit Color 24 Print & Signs, even for the sole purpose of assessing compliance. Cf. Houston, 733 F.3d 25 at 1336 (finding ADA tester was likely to return to noncompliant business because it was 26 located near the plaintiff’s lawyer’s office, and plaintiff intended to visit the office “in the 27 near future”). Notably, while Plaintiff asserts that he is a California resident, Compl. ¶ 1, 28 he does not state where in California he lives, making it impossible for the Court to 1 ||determine whether his proximity to the business makes it likely he will “return to the 2 || business to assess ongoing compliance with the ADA.” Jd. ¥ 30; see D’Lil v. Best Western 3 || Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008) (noting that where a plaintiff’ s 4 ||home is far from the public accommodation, he must “demonstrate[] an intent to return to 5 ||the geographic area where the accommodation is located”). Because Plaintiff has not 6 || alleged a sufficient intent to return, the Court finds that Plaintiff has failed to allege 7 || standing. 8 Having found that Plaintiff lacks standing to pursue his ADA claims, the court 9 ||declines to exercise supplement jurisdiction over Plaintiffs Unruh Claims. See, e.g., 10 || Barnes, 2017 WL 635474, at *13 (declining to exercise supplemental jurisdiction under 28 11 U.S.C. § 1367(c) over remaining state law claim after dismissing ADA claim for lack of 12 || standing). 13 CONCLUSION 14 For these reasons, the Court GRANTS Defendant’s Motion to Dismiss for lack of 15 |}/subject matter jurisdiction and DISMISSES WITHOUT PREJUDICE □□□□□□□□□□□ 16 |}Complaint for lack of standing. Plaintiff may file an amended complaint within 30 days 17 || of the date that this Order is electronically docketed. 18 IT IS SO ORDERED. 19 ||Dated: June 29, 2020 . tt 20 pee Janis L. Sammartino United States District Judge 22 23 24 25 26 27 28