Brian Whitaker v. Mind Games, LLC

• Court: District Court, C.D. California
• Decided: October 27, 2021
• Docket: 2:20-cv-11794
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 20-11794-RSWL-M RWx 12 BRIAN WHITAKER, ORDER re: Motion to 13 Plaintiff, Dismiss for Lack of 14 v. Subject Matter Jurisdiction [19] 15 MIND GAMES, LLC, 16 Defendant. 17 18 Plaintiff Brian Whitaker (“Plaintiff”) brought this 19 Action against Defendant Mind Games, LLC (“Defendant”) 20 alleging: (1) violation of the Americans with 21 Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101; and 22 (2) violation of the Unruh Civil Rights Act (“Unruh 23 Act”), Cal. Civ. Code §§ 51-53. See generally Compl. ¶ 24 1, ECF No. 1. Currently before the Court is Defendant’s 25 Motion to Dismiss for lack of subject matter 26 jurisdiction (“Motion”) [19]. Having reviewed all 27 papers submitted pertaining to this Motion, the Court 28 1 NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS

2 Defendant’s Motion. 3 I. BACKGROUND 4 Brian Whitaker (“Plaintiff”) is a quadriplegic and 5 uses a wheelchair for mobility. Compl. ¶ 1. Mind 6 Games, LLC (“Defendant”) owned a Mind Games retail store 7 (“Unit 2004”) located at or about 6600 Topanga Canyon 8 Blvd., Unit 2004, Canoga Park, California. Id. ¶ 2; 9 Decl. of Sassan Aria in Supp. of Defendant’s Mot. to 10 Dismiss (“Aria Decl.”), Ex. A, ECF No. 19-2. Plaintiff 11 alleges the following in his Complaint: 12 In December 2020, Plaintiff went to Unit 2004, a 13 public business establishment, to purchase goods and 14 assess the business for disability access law 15 compliance. Id. ¶¶ 8-9. Plaintiff was unable to access 16 a sales counter with his wheelchair because the counter 17 was too high and there was no lowered portion suitable 18 for wheelchair users. Id. ¶ 12. These barriers 19 impacted Plaintiff’s disability by denying him full and 20 equal access, creating difficulties and discomfort, and 21 deterring him from returning to Unit 2004. Id. ¶¶ 16- 22 20. On December 11, 2020, an investigator for 23 Plaintiff, Evens Louis (“Louis”), assessed Unit 2004 for 24 accessibility and found that the sales counters exceeded 25 thirty-six inches in height. Decl. of Evens Louis 26 (“Louis Decl.”) ¶ 2, ECF No. 20-2. 27 On December 31, 2020, Plaintiff filed his Complaint 28 [1] against Defendant, alleging: (1) violation of the 1 American with Disabilities Act (“ADA”) of 1990, 42

2 U.S.C. § 12101; and (2) violation of the Unruh Civil

3 Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53. See 4 generally Compl. 5 On or about April 20, 2021, a co-owner of 6 Defendant, Sassan Aria (“Aria”), received a notice of 7 lease termination from the landlord of the retail outlet 8 requiring Defendant to vacate the premises by May 20, 9 2021. Aria Decl. ¶ 2. Unit 2004 was permanently closed 10 by May 20, 2021, and Defendant will not reopen at that 11 location. Id. ¶¶ 3-4. 12 Since June 25, 2021, Defendant has opened and 13 operated a Mind Games store in a new unit within the 14 same mall, located at 6600 Topanga Canyon Blvd., Unit 87 15 (“Unit 87”). Def.’s Reply in Supp. of Mot. (“Reply”) 16 2:16-20, ECF No. 22. On August 6, 2021, Louis went to 17 the mall to verify whether Unit 2004 was still in 18 operation but found that the Mind Games store was 19 operating in Unit 87, around the corner from where Unit 20 2004 had been. Louis Decl. ¶¶ 3-4. Louis did not see 21 any differences to the sales counter in Unit 87 compared 22 to that in Unit 2004, but saw an additional “pedestal- 23 style round glass table” in front of a closed cash 24 register with a sign implying it could be used by people 25 with disabilities. See id. ¶ 6. Plaintiff has not 26 alleged in his Complaint that he has visited Unit 87, 27 encountered any barriers therein, or personally observed 28 the condition of Unit 87. Reply at 2:27-3:1. 1 Defendant filed the instant Motion [19] on August

2 2, 2021. Plaintiff filed his Opposition [20] on August

3 24, and Defendant replied [22] on August 27. 4 II. DISCUSSION 5 A. Legal Standard 6 1. Rule 12(b)(1) Motion to Dismiss 7 Rule 12(b)(1) allows a party to seek dismissal of 8 an action for lack of subject matter jurisdiction. Fed. 9 R. Civ. P. 12(b)(1). Although lack of statutory 10 standing requires dismissal for failure to state a claim 11 under Rule 12(b)(6), lack of Article III standing 12 requires dismissal for want of subject matter 13 jurisdiction under Rule 12(b)(1). See Maya v. Centex 14 Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). The 15 plaintiff bears the burden of proving that the court has 16 subject matter jurisdiction. See Kekkonen v. Guardian 17 Life Ins. Co., 511 U.S. 375, 377 (1994). 18 A Rule 12(b)(1) “jurisdictional attack may be 19 facial or factual.” Safe Air for Everyone v. Meyer, 373 20 F.3d 1035, 1039 (9th Cir. 2004). A facial attack is 21 based on the challenger’s assertion that allegations in 22 the complaint are “insufficient on their face to invoke 23 federal jurisdiction.” Id. “By contrast, in a factual 24 attack, the challenger disputes the truth of the 25 allegations that, by themselves, would otherwise invoke 26 federal jurisdiction.” Id. When evaluating a facial 27 attack, the court “must accept all of the plaintiff’s 28 factual allegations as true.” Dreier v. U.S., 106 F.3d 1 844, 847 (9th Cir. 1996) (citation omitted). When

2 considering a factual attack, however, the court is not

3 restricted to the face of the pleadings and may review 4 any evidence properly before the court. St. Clair v. 5 City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). 6 2. Supplemental Jurisdiction 7 Under 28 U.S.C. § 1367, where a district court has 8 original jurisdiction over a claim, it also “shall have 9 supplemental jurisdiction over all other claims that are 10 so related to claims in the action within such original 11 jurisdiction that they form part of the same case or 12 controversy under Article III of the United States 13 Constitution.” 28 U.S.C. § 1367. Supplemental 14 jurisdiction is mandatory unless prohibited by 15 § 1367(b), or unless one of the exceptions in § 1367(c) 16 applies. See Schutza v. Cuddeback, 262 F. Supp. 3d 17 1025, 1028 (S.D. Cal. 2017). 18 Under § 1367(c), “the district courts may decline 19 supplemental jurisdiction [over a state law claim] if: 20 (1) the claim raises a novel or complex issue of State 21 law, (2) the claim substantially predominates over the 22 claim or claims over which the district court has 23 original jurisdiction, (3) the district court has 24 dismissed all claims over which it has original 25 jurisdiction, or (4) in exceptional circumstances, there 26 are other compelling reasons for declining 27 jurisdiction.” 28 U.S.C. §1367(c). “Underlying the 28 § 1367(c) inquiry are considerations of judicial 1 economy, convenience and fairness to litigants, and

2 comity.” Shutza, 262 F. Supp. 3d at 1028. If these

3 factors are not present, “a federal court should 4 hesitate to exercise jurisdiction over state law 5 claims.” United Mine Workers of Am. v. Gibbs, 383 U.S. 6 715, 726 (1966). 7 B. Discussion 8 Defendant moves to dismiss Plaintiff’s Complaint 9 for lack of subject matter jurisdiction over the ADA 10 claim and because supplemental jurisdiction over the 11 remaining Unruh Act claim would be improper. See 12 generally Mem. of P. & A. in Supp. of Mot. to Dismiss 13 (“Mot.”), ECF No. 19-1. In opposition, Plaintiff argues 14 that Defendant’s Motion should be denied because the 15 matter is not moot, and Defendant misrepresents 16 Plaintiff’s state law claims. See generally Pl.’s Opp’n 17 to Def.’s Mot. to Dismiss (“Opp’n”), ECF No. 20. 18 a. ADA Claim 19 Because Defendant has permanently closed Unit 2004, 20 Defendant moves to dismiss Plaintiff’s ADA claim for two 21 reasons: (1) Plaintiff’s ADA claim is moot; and (2) 22 Plaintiff lacks Article III standing to continue this 23 Action. See Mot. at 1:24-2:5. The Court agrees. 24 i. Mootness 25 The doctrine of mootness stems from Article III’s 26 requirement that courts may only exercise jurisdiction 27 over live “cases or controversies.” U.S. Const. Art. 28 III. “A claim may become moot if (1) subsequent events 1 have made it absolutely clear that the allegedly

2 wrongful behavior cannot reasonably be expected to

3 recur, and (2) interim relief or events have completely 4 and irrevocably eradicated the effects of the alleged 5 violation.” Norman-Bloodsaw v. Lawrence Berkeley Lab., 6 135 F.3d 1260, 1274 (9th Cir. 1998). Defendant’s burden 7 to demonstrate mootness is “a heavy one.” Los Angeles 8 Cnty. v. Davis, 440 U.S. 625, 631 (1979). 9 In addition, “an ADA claim may become moot where a 10 defendant sells the property or permanently closes the 11 public accommodation operating at the property.” See, 12 e.g., Kohler v. Southland Foods, Inc., 459 F. App’x 617, 13 618 (9th Cir. 2011) (holding that plaintiff’s claim for 14 injunctive relief became moot once the restaurant ceased 15 operation). 16 Defendant brings a factual challenge to the Court’s 17 subject matter jurisdiction by arguing that it cannot be 18 liable for a Title III violation because Defendant 19 provides supporting evidence that Unit 2004 has been 20 permanently closed and vacated as of May 20, 2021. See 21 generally Mot.; Decl. of Sassan Aria in Supp. of Def.’s 22 Mot. to Dismiss (“Aria Decl.”), Ex. A, ECF No. 19-2. 23 The closure of Unit 2004 renders the alleged barriers 24 nonexistent, “irrevocably eradicating the effects of the 25 alleged violation.” Therefore, the only remedy 26 available to Plaintiff under Title III, injunctive 27 relief, is moot. See, e.g., Johnson v. 162 Los Gatos- 28 Saratoga Rd., LLC, No. 18-cv-04429-VKD, 2019 WL 2869949, 1 at *3 (N.D. Cal. July 3, 2019) (finding that ceasing

2 operations and vacating the property removed the alleged

3 barriers and therefore mooted the plaintiff’s ADA claim 4 for injunctive relief). As such, the Court GRANTS 5 Defendant’s Motion to Dismiss. Nevertheless, the Court 6 addresses the standing issue next. 7 ii. Standing 8 “The elements of Article III standing are as 9 follows: (1) [Plaintiff has] suffered an ‘injury in 10 fact’ that is (a) concrete and particularized and (b) 11 actual or imminent, not conjectural or hypothetical; (2) 12 the injury is fairly traceable to the challenged action 13 of the defendant; and (3) it is likely, as opposed to 14 merely speculative, that the injury will be redressed by 15 a favorable decision.” Friends of the Earth, Inc. v. 16 Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000). 17 In the ADA context, the plaintiff must also demonstrate 18 “a real or immediate threat that the plaintiff will be 19 wronged again—a ‘likelihood of substantial and immediate 20 irreparable injury.’” Molski v. Mandarin Touch Rest., 21 385 F. Supp. 2d 1042, 1045 (C.D. Cal. 2005) (quoting 22 City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). 23 Regarding Unit 2004, Plaintiff does not have 24 standing to seek injunctive relief. Even if the first 25 two elements are met, the third element must fail 26 because Unit 2004 is permanently closed and will not 27 reopen at that location. See Mot. at 3:5-9. 28 Plaintiff’s injury cannot be redressed by a favorable 1 decision, in other words, an injunction requiring

2 Defendant to remove the barrier is not possible where

3 the alleged barriers at issue no longer exist. By the 4 same token, Unit 2004’s permanent closure eliminates any 5 chance of future harm or injury to Plaintiff. 6 Because there is no remaining case or controversy, 7 and because Plaintiff does not have standing with 8 respect to the ADA claim, the matter is nonjusticiable 9 and the Court cannot exercise subject matter 10 jurisdiction. 11 Of note is that the parties also argue about 12 whether Plaintiff has standing regarding Defendant’s new 13 location, Unit 87, within the same mall. Because 14 Plaintiff’s Complaint makes no allegations against Unit 15 87’s ADA compliance, the Court will not address the 16 parties’ arguments at this time, focusing only on the 17 claims against Unit 2004. Lujan v. Defs. of Wildlife, 18 504 U.S. 555, 569-70 n.4 (1992) (“The existence of 19 federal jurisdiction ordinarily depends on the facts as 20 they exist when the complaint is filed.”) (citing 21 Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 830 22 (1989)). 23 b. Jurisdiction Over the Remaining Unruh Act 24 Claim 25 Defendant also moves to dismiss Plaintiff’s Unruh 26 Act claim, a California state law claim. See generally 27 Mot. Because the interests of comity weigh against 28 exercising supplemental jurisdiction, the Court declines 1 to exercise supplemental jurisdiction over Plaintiff’s

2 Unruh Act claim.

3 A district court “may decline to exercise 4 supplemental jurisdiction” if it “has dismissed all 5 claims over which it has original jurisdiction.” 28 6 U.S.C. § 1367(c)(3). The Court also maintains 7 discretion to keep the state law claims and will 8 consider “judicial economy, convenience, fairness, and 9 comity.” United Mine Workers of Am. v. Gibbs, 383 U.S. 10 715, 726 (1966). Usually, where all federal law claims 11 are eliminated before trial, balancing the four factors 12 will point toward declining to exercise jurisdiction 13 over the remaining state law claims. Sanford v. 14 MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010). 15 Finally, a district court may decline exercising 16 supplemental jurisdiction if the state law issues 17 predominate the remaining claims. 28 U.S.C. § 18 1367(c)(2). 19 Here, because Plaintiff’s federal ADA claim is 20 dismissed, the Court no longer has subject matter 21 jurisdiction over the remaining state law claim. “In 22 order to obtain injunctive relief under Title III of the 23 ADA, Plaintiff must have standing and the case must not 24 be moot.” Hubbard v. Miandmo Invs. LLC, No. CV 20-05457 25 DSF (SPx), 2021 WL 2669296, at *2 (C.D. Cal. June 29, 26 2021) (citing Arroyo v. Vasquez, No. CV 18-2116 DSF 27 (EX), 2019 WL 6790688, at *3 (C.D. Cal. Aug. 14, 2019)). 28 Upon balancing the Gibbs factors, it is not in the 1 interest of judicial economy, convenience, and fairness

2 to exercise supplemental jurisdiction over the Unruh Act

3 claim. First, unlike in Rivera v. Crema Coffee Co., 4 this case is still in its early stages and Plaintiff’s 5 state law claim may be remedied in state court.1 6 Second, California adopted heightened pleading 7 requirements for disability discrimination lawsuits 8 under the Unruh Act, which requires “high-frequency 9 litigants” to verify and specify their allegations in 10 order to “deter baseless claims and vexatious 11 litigation.” Shutza v. Cuddeback, 262 F. Supp. 3d 1025, 12 1030-31 (S.D. Cal. 2017) (citing Cal. Code. Civ. Proc. § 13 425.50)). The Court considers that Plaintiff has filed 14 over one thousand cases in California district courts 15 alleging disability discrimination.2 Since Plaintiff is 16 a high-frequency litigant primarily seeking monetary 17 relief under state law, it is in the interest of comity 18 for this Court to discourage vexatious litigation and 19 decline exercising supplemental jurisdiction over 20 Plaintiff’s Unruh Act claim. 21 Furthermore, Plaintiff does not assert an 22 independent Unruh Act violation for intentional 23 1 In Rivera v. Crema Coffee Co., the court exercised 24 supplemental jurisdiction over the Unruh Act claim because of the “advanced stage of [the] action and the parties’ substantial 25 efforts to brief and argue the merits of [plaintiff’s] motion for 26 summary judgment.” 438 F. Supp. 3d 1068, 1074 (N.D. Cal. 2020). 2 According to PACER, Plaintiff Brian Whitaker is a 27 plaintiff in 1,122 ADA cases in the Central District of 28 California (since 2014). 1 discrimination or willful misconduct,3 and Plaintiff’s

2 claim cannot provide an independent basis for federal

3 court jurisdiction “merely because it incorporates an 4 ADA violation.” See Johnson v. 162 Los Gatos-Saratoga 5 Rd., LLC, No. 18-cv-04429-VKD, 2019 WL 2869949 (N.D. 6 Cal. July 3, 2019); see also Munson v. Del Taco, Inc., 7 46 Cal. 4th 661, 668 (2009) (explaining that a violation 8 of the Unruh Act may be maintained independent of an ADA 9 claim only where a plaintiff pleads “intentional 10 discrimination in public accommodations in violation of 11 the terms of the Act.”). 12 With respect to Plaintiff’s argument that Defendant 13 made a “material misrepresentation” to the Court, 14 Plaintiff has failed to proffer any legal authority or 15 support for his substantive arguments. Opp’n at 2:1- 16 3:18. In any event, while Defendant’s declaration does 17 not “clearly and unambiguously” identify Unit 2004 as 18 the location, the attached exhibit does contain a notice 19 of termination letter clearly specifying Unit 2004 as 20 the subject property to be vacated and closed. See Aria 21 Decl. ¶ 3, Ex. A; Reply at 3:17-20. 22 Finally, the Court does not address Plaintiff’s 23 First Amendment argument because this is an ongoing 24 issue in the Ninth Circuit Court of Appeals. See Arroyo 25 3 Plaintiff’s Complaint bases the Unruh Act claim solely on 26 the ADA violation: “The Unruh Act provides that a violation of the ADA is a violation of the Unruh Act . . . Defendants’ acts 27 and omissions . . . have violated the Unruh Act by . . . 28 [violating the ADA].” Compl. ¶¶ 30-31. 1 v. Rosas, No. 19-55974 (9th Cir. argued July 8, 2020).

2 c. Leave to Amend

3 “The court should give leave [to amend] freely when 4 justice so requires.” Fed. R. Civ. P. 15(a)(2). In the 5 Ninth Circuit, “Rule 15’s policy of favoring amendments 6 to pleadings should be applied with ‘extreme 7 liberality,’” United States v. Webb, 655 F.2d 977, 979 8 (9th Cir. 1981). Against this extremely liberal 9 standard, the Court may consider “the presence of any of 10 four factors: bad faith, undue delay, prejudice to the 11 opposing party, and/or futility.” Owens v. Kaiser 12 Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 13 2001). 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Plaintiff requests leave to amend should the Court

2 grant Defendant’s Motion. Opp’n at 9:2-4. Because

3 there is no evidence that amendment would unduly 4 prejudice Defendant, cause undue delay, or be futile, 5 the Court GRANTS leave to amend as to Plaintiff’s ADA 6 claim only. 7 III. CONCLUSION 8 Based on the foregoing, the Court GRANTS 9 Defendant’s Motion to Dismiss with leave to amend 10 the ADA claim. 11 IT IS SO ORDERED. 12 13 14 DATED: October 27, 2021 _____/s_/ R_o_n_al_d _S._W_. _Le_w___________ HONORABLE RONALD S.W. LEW 15 Senior U.S. District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28