Brian Whitaker v. Mind Games, LLC

• Court: District Court, C.D. California
• Decided: April 13, 2022
• Docket: 2:20-cv-11794
• Status: Unknown

Opinion

Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 1 of 13 Page ID #:291 'O' 1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 2:20-cv-11794-RSWL-MRWx 12 BRIAN WHITAKER, ORDER re: 13 Plaintiff,

DEFENDANT’S MOTION TO 14 v. DISMISS PLAINTIFF’S FIRST 15 MIND GAMES, LLC, AMENDED COMPLAINT [28] 16 Defendant. 17 18 Plaintiff Brian Whitaker (“Plaintiff”) brings this 19 Action against Defendant Mind Games, LLC (“Defendant”), 20 alleging violations of: (1) the Americans with 21 Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101; and 22 (2) the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. 23 Code §§ 51-53. See generally First Amen. Compl. (“FAC”) 24 ¶ 1, ECF No. 26. 25 Currently before the Court is a Motion to Dismiss 26 Plaintiff’s First Amended Complaint (“FAC”) for lack of 27 subject matter jurisdiction (“Motion”) [28] filed by 28 1 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 2 of 13 Page ID #:292

1 Defendant.

2 Having reviewed all papers submitted pertaining to

3 the Motion, the Court NOW FINDS AND RULES AS FOLLOWS: 4 the Court GRANTS Defendant’s Motion without leave to 5 amend. 6 I. BACKGROUND 7 A. Factual Background 8 Plaintiff alleges the following in his FAC: 9 Plaintiff is a quadriplegic and uses a wheelchair 10 for mobility. FAC ¶ 1. Defendant owned a Mind Games 11 retail store (“Store”) located at or about 6600 Topanga 12 Canyon Blvd., Unit 2004, Canoga Park, California (“Unit 13 2004”). Id. ¶ 2. 14 In December 2020, Plaintiff went to Unit 2004 to 15 purchase goods and assess the business for disability 16 access law compliance. Id. ¶¶ 8-9. Plaintiff was 17 unable to access a sales counter with his wheelchair 18 because the counter was too high and there was no 19 lowered portion suitable for wheelchair users. Id. ¶¶ 20 10-12. These barriers impacted Plaintiff’s disability 21 by denying him full and equal access, creating 22 difficulties and discomfort, and deterring him from 23 returning. Id. ¶¶ 16-18, 21. 24 On June 25, 2021, Defendant’s Store moved within 25 the same mall from Unit 2004 to Unit 87. Id. ¶ 13. 26 Plaintiff’s investigator took photographs of the new 27 location, whereupon Plaintiff reviewed the photographs 28 and stated that he was deterred from going to Unit 87 2 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 3 of 13 Page ID #:293

1 due to the high sales counter. Id. Despite the Store

2 having moved its physical location by a few feet,

3 Plaintiff will return to Unit 87 to avail himself of its 4 goods and to determine compliance with the disability 5 access laws once it is represented to him that Unit 87 6 and its facilities are accessible. Id. ¶ 21. 7 B. Procedural Background 8 On December 31, 2020, Plaintiff filed his initial 9 Complaint [1] against Defendant, alleging violations of: 10 (1) the ADA; and (2) the Unruh Act. 11 On August 2, 2021, Defendant moved to dismiss [19] 12 the Complaint pursuant to Federal Rule of Civil 13 Procedure (“Rule”) 12(b)(1) and requested that the Court 14 decline supplemental jurisdiction over Plaintiff’s Unruh 15 Act claim. On October 27, 2021, this Court granted [24] 16 Defendant’s First Motion to Dismiss with leave to amend 17 the ADA claim and declined supplemental jurisdiction 18 over the Unruh Act claim. This Court found that the ADA 19 claim was deficient because: (1) it was moot given Unit 20 2004’s permanent closure; and (2) Plaintiff lacked 21 Article III standing because his injury could not be 22 redressed due to the permanent closure. 23 Plaintiff filed the FAC [26] on November 23, 2021. 24 Defendant filed the instant Motion [28] on December 7, 25 2021. Plaintiff filed his Opposition [29] on December 26 21, 2021, and Defendant replied [31] on December 28, 27 2021. 28 /// 3 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 4 of 13 Page ID #:294

1 II. DISCUSSION

2 A. Legal Standard

3 1. Rule 12(b)(1) Motion to Dismiss 4 Rule 12(b)(1) allows a party to seek dismissal of 5 an action for lack of subject matter jurisdiction. Fed. 6 R. Civ. P. 12(b)(1). Although lack of statutory 7 standing requires dismissal for failure to state a claim 8 under Rule 12(b)(6), lack of Article III standing 9 requires dismissal for want of subject matter 10 jurisdiction under Rule 12(b)(1). See Maya v. Centex 11 Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). The 12 plaintiff bears the burden of proving that the court has 13 subject matter jurisdiction. See Kekkonen v. Guardian 14 Life Ins. Co., 511 U.S. 375, 377 (1994). 15 A Rule 12(b)(1) “jurisdictional attack may be 16 facial or factual.” Safe Air for Everyone v. Meyer, 373 17 F.3d 1035, 1039 (9th Cir. 2004). A facial attack is 18 based on the challenger’s assertion that allegations in 19 the complaint are “insufficient on their face to invoke 20 federal jurisdiction.” Id. “By contrast, in a factual 21 attack, the challenger disputes the truth of the 22 allegations that, by themselves, would otherwise invoke 23 federal jurisdiction.” Id. When evaluating a facial 24 attack, the court “must accept all of the plaintiff’s 25 factual allegations as true.” Dreier v. U.S., 106 F.3d 26 844, 847 (9th Cir. 1996) (citation omitted). When 27 considering a factual attack, however, the court is not 28 restricted to the face of the pleadings and may review 4 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 5 of 13 Page ID #:295

1 any evidence properly before the court. St. Clair v.

2 City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

3 B. Discussion 4 “[A] disabled individual claiming discrimination 5 [under the ADA] must satisfy the case or controversy 6 requirement of Article III [of the United States 7 Constitution] by demonstrating his standing to sue at 8 each stage of the litigation.” Chapman v. Pier 1 9 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) 10 (citations omitted). To establish Article III standing, 11 a plaintiff “must demonstrate that he has suffered an 12 injury-in-fact, that the injury is traceable to the 13 [defendant’s] actions, and that the injury can be 14 redressed by a favorable decision.” Id. (citation 15 omitted). 16 “In addition to establishing standing to pursue 17 injunctive relief, which is the only relief available to 18 private plaintiffs under the ADA, [a plaintiff] must 19 demonstrate a real and immediate threat of repeated 20 injury in the future.” Id. (quoting O’Shea v. 21 Littleton, 414 U.S. 488, 496 (1974)). “[A]n ADA 22 plaintiff can show a likelihood of future injury in one 23 of two ways: (1) by demonstrating that ‘he intends to 24 return to a noncompliant accommodation and is therefore 25 likely to reencounter a discriminatory architectural 26 barrier,’ or (2) by demonstrating ‘sufficient injury to 27 pursue injunctive relief when discriminatory 28 architectural barriers deter him from returning to a 5 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 6 of 13 Page ID #:296

1 noncompliant accommodation.” Whitaker v. Farm-to-Table

2 Eats, Inc., 2020 WL 12893775, at *3 (C.D. Cal. Aug. 24,

3 2020) (quoting Chapman, 631 F.3d at 950). Thus, the 4 Ninth Circuit has clarified that “an ADA plaintiff can 5 establish standing to sue for injunctive relief either 6 by demonstrating deterrence, or by demonstrating injury- 7 in-fact coupled with an intent to return to a 8 noncompliant facility.” Chapman, 631 F.3d at 944. 9 Here, the Court finds that Plaintiff lacks standing 10 under both theories and therefore GRANTS Defendant’s 11 Motion to Dismiss. 12 1. Injury-in-fact and Intent to Return 13 “Once a disabled individual . . . encounter[s] or 14 become[s] aware of alleged ADA violations that deter his 15 patronage of or otherwise interfere with his access to a 16 place of public accommodation, he . . . suffer[s] an 17 injury in fact . . . .” Doran v. 7-Eleven, Inc., 524 18 F.3d 1034, 1042 (9th Cir. 2008). Plaintiff concedes 19 that he has not visited Unit 87 and has not personally 20 encountered barriers at Unit 87, yet argues that his 21 injury from Unit 2004 confers standing here. See Opp’n 22 2:17-21, ECF No. 29. Simply put, Plaintiff maintains 23 that because he encountered barriers at Unit 2004, he 24 may sue for all barriers at Unit 87 without having 25 encountered them. Id. at 3:17-22. 26 Indeed, the Ninth Circuit has held that where a 27 plaintiff encounters one barrier in a facility, they may 28 challenge all related barriers in that same facility. 6 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 7 of 13 Page ID #:297

1 Doran, 524 F.3d at 1047 (emphasis added) (“An ADA

2 plaintiff who has Article III standing as a result of at

3 least one barrier at a place of public accommodation 4 may, in one suit, permissibly challenge all barriers in 5 that public accommodation that are related to his or her 6 specific disability.”). But here, Unit 2004 and Unit 87 7 are located at separate storefronts, appear to be 8 different (e.g., Unit 87 has a round table that is 9 absent in Unit 2004), and cannot otherwise be treated as 10 the same facility. Thus, any barriers that Plaintiff 11 may have encountered at Unit 2004 cannot form the basis 12 of Plaintiff’s injury with respect to Unit 87. See 13 Moreno v. G & M Oil Co., 88 F. Supp. 2d 1116, 1116 (C.D. 14 Cal. 2000) (finding that a plaintiff who encountered an 15 accessibility barrier at one gas station could not then 16 sue for similar barriers at defendant’s other gas 17 stations without having encountered them). Put 18 differently, the purported barriers at Unit 87 fall 19 outside of the scope of Plaintiff’s standing to 20 challenge the barriers at Unit 2004. See id. 21 (“[S]tanding under this provision of the ADA is limited 22 to the specific location where a plaintiff suffers 23 actual ‘injury in fact.’”). 24 Further, Plaintiff did not even have standing to 25 challenge the barriers at Unit 2004, as this Court 26 previously found that due to the permanent closure of 27 Unit 2004, Plaintiff’s injury-if any—would not have been 28 redressable. See Order re: Mot. to Dismiss 8:23-27, ECF 7 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 8 of 13 Page ID #:298

1 No. 24. Because Plaintiff failed to establish Article

2 III standing with respect to Unit 2004, there can be no

3 discussion of whether the scope of standing at Unit 2004 4 should be expanded whatsoever. See Doran, 524 F.3d at 5 1047 (noting that only upon a showing of Article III 6 standing does the inquiry shift to the scope of such 7 standing). Accordingly, because Plaintiff did not have 8 Article III standing with respect to Unit 2004, because 9 Plaintiff’s purported injury at Unit 2004 cannot form 10 the basis of Plaintiff’s injury at Unit 87, and because 11 Plaintiff did not personally encounter any barriers at 12 Unit 87, Plaintiff has not suffered an injury-in-fact. 13 Separately and additionally, Plaintiff lacks 14 standing because he does not sufficiently allege an 15 intent to return to Unit 87. Plaintiff merely states in 16 his FAC that he “will return to [Unit 87] . . . once it 17 is represented to him that [Unit 87] and its facilities 18 are accessible.” FAC ¶ 21. Such bare and naked 19 assertions cannot survive dismissal. See Strojnik v. 20 Moraya Investments, LLC, 2022 WL 181260, at *4 (N.D. 21 Cal. Jan. 20, 2022) (“Some day intentions—without any 22 description of concrete plans, or indeed even a 23 specification of when the some day will be—do not 24 support a finding of the actual or imminent injury.”); 25 Strojnik v. Bakersfield Convention Hotel I, LLC, 436 F. 26 Supp. 3d 1332, 1342 (E.D. Cal. 2020) (“Plaintiff alleges 27 no concrete travel plan, let alone one that would be 28 sufficient to show he likely would return to the Hotel 8 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 9 of 13 Page ID #:299

1 and suffer the same architectural barriers.”). Thus,

2 given that Plaintiff has failed to allege both an

3 injury-in-fact and an intent to return to Unit 87, 4 Plaintiff cannot establish Article III standing under 5 this theory. 6 2. Deterrence 7 “As an alternative to establishing an actual 8 encounter with a barrier, an ADA plaintiff may establish 9 standing by pleading that he was deterred from visiting 10 the facility in the first place.” Strojnik v. IA 11 Lodging Napa First LLC, 2020 WL 2838814, at *6 (N.D. 12 Cal. June 1, 2020). “[W]hen [an ADA plaintiff] has 13 actual knowledge of illegal barriers at a public 14 accommodation . . . that plaintiff need not engage in 15 the ‘futile gesture’ of attempting to gain access in 16 order to show actual injury . . . .” Pickern v. Holiday 17 Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002) 18 (quoting 42 U.S.C. § 12188(a)(1)). Still, even under a 19 deterrence theory of standing, a plaintiff must allege 20 “actual knowledge” of a barrier. C.R. Educ. & Enf't 21 Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1099 (9th 22 Cir. 2017) (“CREEC”). 23 Plaintiff has not adequately alleged actual 24 knowledge of the barriers at Unit 87. Plaintiff argues 25 that he has actual knowledge of the barriers at Unit 87 26 because he previously encountered similar barriers at 27 Unit 2004, Opp’n 3:17-24, but he has not verified that 28 the alleged barriers at Unit 87 violate the ADA or that 9 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 10 of 13 Page ID #:300

1 the two stores should otherwise be treated as the same.

2 Rather, Plaintiff’s allegations indicate that Unit 2004

3 and Unit 87 are different facilities given their 4 different locations and placement of a new table at Unit 5 87. See Decl. of Evens Louis (“Louis Decl.”) ¶ 6, ECF 6 No. 20-2 (noting a new “pedestal-style round glass 7 table” at Unit 87 that, “based on signs[,] [was] 8 purported[ly] . . . intended for the use of people with 9 disabilities.”). 10 Further, Plaintiff attempts to base his actual 11 knowledge of the alleged barriers at Unit 87 on a review 12 of photographs taken by his investigator. See FAC ¶ 21. 13 But a review of photographs, alone, cannot confer 14 sufficient knowledge of barriers at an accommodation. 15 See, e.g., Strojnik v. Vill. 1017 Coronado, Inc., 2020 16 WL 3250608, at *3 (S.D. Cal. June 16, 2020). Plaintiff 17 has not confirmed that the alleged barriers at Unit 87 18 exist nor attempted to see if alternate accommodations 19 could have been available to him, such as using the 20 pedestal-style table. Id. (“[Plaintiff] does not allege 21 he ever visited the Hotel. Instead, he apparently 22 looked online and took screenshots of photographs that 23 he believed showed some barriers to his entering the 24 property. He does not claim that he called and 25 confirmed that these barriers existed. He does not 26 allege that he attempted to see if alternate 27 accommodations were available to him.”); see also 28 Whitaker v. SQS LA LLC, 2020 WL 3802908, at *3 (C.D. 10 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 11 of 13 Page ID #:301

1 Cal. Apr. 1, 2020) (finding no ADA violation where a

2 plaintiff did not first demand that a defendant make an

3 accessible counter available for its intended use); cf. 4 CREEC, 867 F.3d at 1099-1100 (finding sufficient 5 knowledge of an ADA violation where plaintiffs called a 6 hotel and confirmed that the hotel did not provide 7 accessible shuttle services). Accordingly, Plaintiff 8 has not sufficiently pled actual knowledge of the 9 alleged barriers at Unit 87 to establish Article III 10 standing under this theory either. 11 Nor does Plaintiff adequately plead deterrence to 12 establish standing. Plaintiff merely pleads that after 13 a review of the photographs taken by his investigator, 14 he “is currently deterred” from visiting Unit 87. FAC ¶ 15 21. Such a statement is vague and conclusory at best. 16 See Moraya Investments, LLC, 2022 WL 181260, at *5 17 (“[Plaintiff] only pleads vague, conclusory statements 18 that he was ‘deterred from visiting the Hotel based on 19 Plaintiff’s knowledge that the Hotel is not ADA or state 20 law compliant.’”). Moreover, Plaintiff does not 21 adequately plead that he continues to experience ongoing 22 harm due to the alleged barriers at Unit 87. See id. 23 (“[Plaintiff’s] conclusory allegations merely recite 24 legal conclusions without plausibly pleading that the 25 barriers deterred him from patronizing the hotel and 26 that he continues to experience harm as a result.”). 27 Rather, Plaintiff only states that “[i]f the barriers 28 are not removed, [that] [he] will face unlawful and 11 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 12 of 13 Page ID #:302

1 discriminatory barriers again.” FAC ¶ 21. Thus, as a

2 whole, Plaintiff does not adequately plead deterrence to

3 survive dismissal, and the Court GRANTS Defendant’s 4 Motion to Dismiss on this additional basis. 5 Contrary to Plaintiff’s argument, the Court need 6 not take Plaintiff’s allegations of deterrence as true. 7 When considering a Rule 12(b)(1) factual attack, courts 8 are not restricted to the face of the pleadings and may 9 review any evidence properly before the court. St. 10 Clair, 880 F.2d at 201. Plaintiff concedes that whether 11 his deterrence is reasonable is a question of fact. 12 Opp’n 4:7-9. Accordingly, considering the conclusory 13 nature of Plaintiff’s allegations of deterrence, and 14 given that the Court need not presume the truthfulness 15 of Plaintiff’s allegations, Plaintiff has not adequately 16 alleged that he is deterred from visiting Unit 87. 17 In sum, the Court concludes that Plaintiff lacks 18 Article III standing under both: (1) the injury-in-fact 19 and intent to return theory; and (2) the actual 20 knowledge and deterrence theory. As such, the Court 21 GRANTS Defendant’s Motion to Dismiss. 22 3. Leave to Amend 23 “The court should give leave [to amend] freely when 24 justice so requires.” Fed. R. Civ. P. 15(a)(2). In the 25 Ninth Circuit, “Rule 15’s policy of favoring amendments 26 to pleadings should be applied with ‘extreme 27 liberality.’” United States v. Webb, 655 F.2d 977, 979 28 (9th Cir. 1981). However, the court is not required to 12 Case 2:20-cv-11794-RSWL-MRW Document 38 Filed 04/13/22 Page 13 of 13 Page ID #:303

1 grant leave to amend if the court determines that

2 permitting a plaintiff to amend would be an exercise in

3 futility. See, e.g., Rutman Wine Co. v. E. & J. Gallo 4 Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“Denial of 5 leave to amend is not an abuse of discretion where the 6 pleadings before the court demonstrate that further 7 amendment would be futile.”). 8 Here, further amendment would be futile. As a 9 matter of law, Plaintiff did not suffer an injury-in- 10 fact at Unit 87, nor can he have actual knowledge of the 11 alleged barriers at Unit 87. Plaintiff has failed to 12 identify any facts in his Opposition to indicate that 13 leave to amend would not be futile. Thurston v. FCA US 14 LLC, 2018 WL 700939, at *5 n.6 (C.D. Cal. Jan. 26, 15 2018). Accordingly, the Court GRANTS Defendant’s Motion 16 to Dismiss without leave to amend. 17 18 III. CONCLUSION 19 Based on the foregoing, the Court GRANTS 20 Defendant’s Motion to Dismiss without leave to amend. 21 22 IT IS SO ORDERED. 23 24 DATED: April 13, 2022 _/s_/ _Ro_n_a_ld_ S_.W__. L_e_w_________________ HONORABLE RONALD S.W. LEW 25 Senior U.S. District Judge 26 27 28 13