Fernando Gastelum v. Stephen’s Chicken, LP

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No.: 25-CV-1459 JLS (LR)

12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS

14 STEPHEN’S CHICKEN, LP, (ECF No. 7) 15 Defendant. 16 17

18 19 Presently before the Court are Defendant Stephen’s Chicken, LP’s Motion to 20 Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (“Mot.,” ECF 21 No. 7) and Request for Judicial Notice (“RJN,” ECF No. 7-1). Plaintiff Fernando Gastelum 22 filed a Response to Defendant’s Motion to Dismiss (“Opp’n,” ECF No. 9), and Defendant 23 filed a Reply to Opposition to Motion to Dismiss (“Reply,” ECF No. 11). Having carefully 24 reviewed Plaintiff’s Complaint (“Compl.,” ECF No. 1), the Parties’ arguments, and the 25 law, the Court GRANTS Defendant’s Motion (ECF No. 7) WITH LEAVE TO AMEND. 26 / / / 27 / / / 28 / / / 1 BACKGROUND 2 Plaintiff resides in Casa Grande, Arizona, and is missing a leg. Compl. ¶¶ 2, 4. 3 Since 2015, Plaintiff has used a wheelchair for mobility. Id. ¶ 5. Because of Plaintiff’s 4 physical disabilities, Plaintiff has difficulty walking, reaching, pushing, and doing other 5 musculoskeletal activities. Id. ¶ 6. 6 Defendant owns a Popeyes Louisiana Kitchen located at 1117 Imperial Ave. W, 7 Calexico, CA 92231 (the “Restaurant”). Id. ¶ 7. Plaintiff claims he visited the Restaurant 8 on May 7, 2025. Id. ¶ 14. On the date of his visit, Plaintiff allegedly discovered the 9 Restaurant was not compliant with the Americans with Disabilities Act’s (“ADA”) 10 regulations concerning wheelchair accessibility. Id. Specifically, Plaintiff claims: the 11 service counter did not provide sufficient knee and toe space; the service counter was 12 cluttered with merchandise and equipment; the bathroom door required a push-pull force 13 greater than five pounds; there were exposed pipes underneath the bathroom sink; and the 14 outside seating failed to provide clear ground space of at least 30-by-48 inches and 15 sufficient knee and toe space. Id. ¶ 14(A)–(F). 16 Plaintiff filed the Complaint on June 5, 2025. See generally Compl. The Complaint 17 alleges violations of the ADA, the California Unruh Civil Rights Act (the “Unruh Act”), 18 and the California Disabled Persons Act (the “DPA”). Id. ¶ 10. On June 27, 2025, 19 Defendant filed the instant Motion, arguing that Plaintiff lacks standing under the ADA. 20 See generally Mot. 21 REQUEST FOR JUDICIAL NOTICE 22 The Court first addresses Defendant’s Request for Judicial Notice. See generally 23 RJN. Generally, a district court cannot rely on evidence outside the pleadings in ruling on 24 a Rule 12(b)(6) motion without converting the motion into a Rule 56 motion for summary 25 judgment. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (citing Fed. R. 26 Civ. P. 12(b)). “A court may, however, consider certain materials—documents attached to 27 the complaint, documents incorporated by reference in the complaint, or matters of judicial 28 notice—without converting the motion to dismiss into a motion for summary judgment.” 1 Id. at 908 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002)). Federal Rule of 2 Evidence 201(b) provides that “[t]he court may judicially notice a fact that is not subject 3 to reasonable dispute because it: (1) is generally known within the trial court’s territorial 4 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 5 cannot reasonably be questioned.” 6 In support of its Motion, Defendant requests that the Court take judicial notice of the 7 following exhibits: (1) a page from Google Maps showing the distance between Plaintiff’s 8 address in Casa Grande, Arizona, and the Restaurant’s address in Calexico, California; and 9 (2) a page from Google Maps showing the distance between Plaintiff’s address and a 10 nearby Popeyes Louisiana Kitchen located at 2223 E Florence Blvd, Casa Grande, AZ 11 85122. See RJN, Exs. 1, 2. 12 Courts have taken judicial notice of a geographic location or distance measurement 13 as compiled by Google or a similar website. See, e.g., Pahls v. Thomas, 718 F.3d 1210, 14 1216 n.1 (10th Cir. 2013) (taking judicial notice of a map provided by Google Maps); 15 Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1218 n.2 (10th 16 Cir. 2007) (taking judicial notice of distance calculation which relied on information 17 provided by Google Maps); Tesoro Ref. & Mktg. Co. v. City of Long Beach, 334 F. Supp. 18 3d 1031, 1042 (C.D. Cal. 2017) (“Courts may judicially notice locations using maps and 19 satellite images.” (citations omitted)). Exhibits 1 and 2 are printouts directly from Google 20 Maps. See RJN, Exs. 1, 2. Accordingly, the Court GRANTS Defendant’s Request for 21 Judicial Notice and takes judicial notice of Exhibits 1 and 2. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 MOTION TO DISMISS 2 I. Legal Standard 3 A motion to dismiss for lack of standing is brought pursuant to Federal Rule of Civil 4 Procedure 12(b)(1). See Salazar v. Victoria’s Secret & Co., No. 23-CV-06654-MMC, 5 2024 WL 3748348, at *2 (N.D. Cal. Aug. 9, 2024) (citation omitted). Although Defendant 6 did not move to dismiss Plaintiff’s claims under Rule 12(b)(1),1 “[f]ederal courts are 7 required sua sponte to examine jurisdictional issues such as standing.” Bernhardt v. Cnty. 8 of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (internal quotation marks and citation 9 omitted). “If the court determines at any time that it lacks subject-matter jurisdiction, the

10 court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). 11 Under Rule 12(b)(1), a party may raise by motion the defense that the complaint 12 “lack[s] subject-matter jurisdiction,” and may do so via a facial or factual attack. White v. 13 Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “A ‘facial’ attack asserts that a complaint’s 14 allegations are themselves insufficient to invoke jurisdiction.” Courthouse News Servs. v. 15 Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014) (citing Safe Air for Everyone v. Meyer, 373 16 F.3d 1035, 1039 (9th Cir. 2004)). “The district court resolves a facial attack as it would a 17 motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and 18 drawing all reasonable inferences in the plaintiff’s favor, the court determines whether the 19 allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane 20 Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th 21 Cir. 2013)). 22 To have standing, a plaintiff must satisfy three elements: (1) “injury in fact” that is 23 “concrete and particularized,” and “actual or imminent”; (2) causality between the injury 24 and the conduct at issue; and (3) likeliness that the injury will be redressed by a favorable 25 26 1 Defendant brings its Motion pursuant to Federal Rule of Civil Procedure 12(b)(6) but advances arguments only as to standing. See generally Mot. Accordingly, the Court will address Defendant’s 27 arguments under Federal Rule of Civil Procedure 12(b)(1), which addresses jurisdictional issues. See Fed. 28 R. Civ. P. 12(b)(1) (“[A] party may assert the following defenses by motion . . . lack of subject-matter 1 result. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–561 (1992). “In the context of a suit 2 for injunctive relief, [the actual and imminent injury] requirement may only be satisfied 3 where a plaintiff demonstrates ‘a sufficient likelihood that he will again be wronged in a 4 similar way.’” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 5 2008) (quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). 6 “For injunctive relief under the ADA, ‘a plaintiff must establish a sufficient future injury 7 by alleging that they are either currently deterred from visiting the place of public 8 accommodation because of a barrier, or that they were previously deterred and that they 9 intend to return to the place of public accommodation, where they are likely to reencounter 10 the barrier.’” Jones v. Diab, No. 23-55096, 2024 WL 566502, at *1 (9th Cir. Feb. 13, 11 2024) (quoting Langer v. Kiser, 57 F.4th 1085, 1094 (9th Cir. 2023)). These are referred 12 to, respectively, as the “deterrent effect doctrine” and the “intent to return doctrine.” 13 Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 949 (9th Cir. 2011). 14 Here, Plaintiff asserts he has standing under the deterrent effect doctrine. See Opp’n 15 at 5; see also Compl. ¶¶ 10, 18, 21. The deterrent effect doctrine requires allegations that 16 (1) the plaintiff visited an accommodation in the past; (2) the plaintiff is currently deterred 17 from returning to the accommodation because of ADA violations; and (3) the plaintiff 18 would return if the ADA violations were remedied. Doran v. 7-Eleven, Inc., 524 F.3d 19 1034, 1041 (9th Cir. 2008) (first citing Pickern v. Holiday Quality Foods Inc., 293 F.3d 20 1133, 1138 (9th Cir. 2002); and then citing Molski v. Arby’s Huntington Beach, 359 F. 21 Supp. 2d 938, 947 (C.D. Cal. 2005)). 22 II. Discussion 23 Defendant argues that Plaintiff has not demonstrated a likelihood of future harm 24 because Plaintiff lives over 200 miles away from the Restaurant. Mot. at 4–5. While 25 proximity of a plaintiff’s residence to the place of public accommodation is not dispositive, 26 it is a factor courts routinely analyze to determine whether a plaintiff has demonstrated a 27 likelihood of future harm sufficient to establish standing. Jones, 2024 WL 566502, at *2 28 (collecting cases). 1 The Ninth Circuit in Langer considered the pleading requirements for situations 2 where the defendant’s place of public accommodation “is far from a plaintiff’s home.” 3 Langer, 57 F.4th at 1093. Langer cites to the D’Lil standard, which finds an “actual or 4 imminent injury sufficient to establish standing where a plaintiff demonstrates an intent to 5 return to the geographic area where the accommodation is located and a desire to visit the 6 accommodation if it were made accessible.” D’Lil, 538 F.3d at 1037; see also Langer, 57 7 F.4th at 1093. To “show the actual and imminent nature of her injury,” the plaintiff in 8 D’Lil was required to “demonstrate her intent to return to the Santa Barbara area and, upon 9 her return, her desire to stay at the Best Western Encina if it is made accessible.” D’Lil, 10 538 F.3d at 1037. The plaintiff resided in Sacramento yet demonstrated her intent to return 11 to Santa Barbara through “the regularity with which she visited the city before, during, and 12 after her stay at the Best Western Encina.” Id. Likewise, the plaintiff also “gave detailed 13 reasons as to why she would prefer to stay at the Best Western Encina during her regular 14 visits to Santa Barbara if it were made accessible including the hotel’s style, price, and 15 location.” Id. at 1039. 16 Langer also cited to the comparable case Doran. See Langer, 57 F.4th at 1092; 17 Doran, 524 F.3d 1034. In Doran, the defendant’s store was located “more than 500 miles 18 away from [plaintiff’s] home,” and the plaintiff asserted standing under the deterrent effect 19 doctrine. Doran, 524 F.3d at 1039. The Ninth Circuit did not end the standing analysis 20 simply because the plaintiff alleged that he was deterred. Id. at 1040. When determining 21 “whether [the plaintiff’s] injury [was] actual or imminent,” the Ninth Circuit looked to 22 several factors other than an allegation of current deterrence, including the plaintiff’s 23 allegations that he had visited the store ten to twenty times previously, the store was located 24 near one of his favorite restaurants in Anaheim, and he planned to visit Anaheim at least 25 once a year during his annual Disneyland trips. Id. The Ninth Circuit concluded that 26 “[n]otwithstanding the distance between Doran’s home and the 7–Eleven, there is an actual 27 or imminent threat that, during his planned future visits to Anaheim, Doran will suffer harm 28 as a result of the alleged barriers.” Id. at 1041. 1 Even in Pickern, which Langer explains “established what became known as the 2 deterrent effect doctrine for ADA standing,” the Ninth Circuit looked to the plaintiff’s 3 particular intent and desire to return to the defendant store location when assessing actual 4 or imminent injury. Langer, 57 F.4th at 1092; see Pickern, 293 F.3d at 1138. Despite 5 living seventy miles away from the defendant store, the plaintiff demonstrated his intent to 6 return to the geographical area by explaining that his “grandmother lives in Paradise, and 7 [the plaintiff] visits Paradise frequently to see her.” Pickern, 293 F.3d at 1135. Further, 8 the Ninth Circuit explicitly considered the plaintiff’s statement “that he prefers to shop at 9 Holiday markets and that he would shop at the Paradise market if it were accessible,” in 10 addition to the standard deterrence elements (actual knowledge of the barrier and an 11 explanation of how the plaintiff obtained that knowledge) to conclude that the plaintiff 12 sufficiently “establish[ed] actual or imminent injury for purposes of standing.” Id. at 1138. 13 Here, Plaintiff lives 231 miles away from the place of public accommodation owned 14 by Defendant. See RJN, Ex. 1. Because Plaintiff lives so far away, Plaintiff must 15 “demonstrate” his intent to return to the geographic location and his desire to visit the 16 Restaurant once it becomes ADA-compliant. See D’Lil, 538 F.3d at 1037. Plaintiff 17 provides no reasons in his Complaint why he, a resident of Casa Grande, Arizona, would 18 return to this specific location of Popeyes Louisiana Kitchen in Calexico, California. See 19 generally Compl. Nor does Plaintiff demonstrate an intent to visit the area, for reasons 20 such as the work opportunities and friends for which the D’Lil plaintiff visited Santa 21 Barbara, the annual Disneyland trips for which the Doran plaintiff visited Anaheim, or the 22 grandmother for whom the Pickern plaintiff visited Paradise. 23 Other than allegations of current deterrence, the only allegation relevant to the 24 “actual or imminent” standing analysis is that “Plaintiff intends to return to the Store 25 referenced when he is assured that it has become welcoming to Plaintiff and similarly 26 situated persons with disabilities who use a wheelchair.” Compl. ¶ 21. This allegation 27 does not demonstrate why Plaintiff intends to visit Calexico again. It also does not 28 demonstrate why Plaintiff desires to visit the Restaurant again. This allegation merely 1 recites an element of standing for the ADA claim, and conclusory recitals of elements of a 2 claim without any facts or specific information to explain the assertions are insufficient to 3 survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare 4 recitals of the elements of a cause of action, supported by mere conclusory statements, do 5 not suffice.”). 6 Accordingly, Plaintiff fails to plead an actual or imminent injury sufficient to confer 7 standing under the ADA, and Defendant’s Motion to Dismiss is hereby GRANTED with 8 leave to amend.2 Plaintiff may amend his Complaint to demonstrate his intent to return to 9 the geographic area of Calexico, CA, and demonstrate his desire to return to the Restaurant. 10 See, e.g., Gastelum v. TJX Cos., Inc., No. 21-CV-6714-VKD, 2023 WL 411345, at *7–9 11 (N.D. Cal. Jan. 25, 2023) (denying motion to dismiss where the same plaintiff specifically 12 alleged he intended to return to the store at issue and discussed his regular travels through 13 the area to visit family and conduct ADA testing); Jones, 2024 WL 566502, at *1–2 14 (finding standing when plaintiff alleged that he wanted to return to purchase products from 15 the store at issue and that he travels to the area several times a month to visit a friend). 16 CONCLUSION 17 In light of all the foregoing, the Court GRANTS Defendant’s Motion to Dismiss 18 (ECF No. 7) and DISMISSES Plaintiff’s ADA claim WITH LEAVE TO AMEND. 19 Within twenty-one (21) days of this Order, Plaintiff either (1) SHALL FILE an amended 20 complaint, or (2) SHALL INDICATE to the Court that he will not do so. Any amended 21 complaint must be complete in and of itself without reference to Plaintiff’s original 22 Complaint and claims not realleged in the amended complaint will be considered waived. 23 24 25 2 Defendant does not challenge the Court’s jurisdiction over Plaintiff’s related state law claims. Nonetheless, the Court is satisfied that it has diversity jurisdiction over the remaining state law claims 26 because Plaintiff is a citizen of Arizona, Defendant is a citizen of California, and the amount in controversy exceeds $75,000, as he cumulatively seeks injunctive relief to architecturally remedy Defendant’s 27 purported violations, statutory damages, punitive damages, and attorney’s fees. See Opp’n at 5–7; 28 Gastelum v. Kalthia Constr. & Mgmt. Co., LP, No. 25-CV-211-JO-LR, ECF No. 8 (S.D. Cal. March 27, 1 || See S.D. Cal. Civ LR 15.1; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 2 || (noting claims dismissed with leave to amend that are not realleged in an amended pleading 3 be “considered waived’’). 4 IT IS SO ORDERED. 5 Dated: March 16, 2026 : &L . 6 pen Janis L. Sammartino 7 United States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28