Garcia v. Gomez

• Court: District Court, N.D. California
• Decided: June 1, 2022
• Docket: 4:22-cv-00919
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 ORLANDO GARCIA, Case No. 22-cv-00919-PJH 8 Plaintiff,

9 v. ORDER

10 ESTHER GOMEZ, et al., Re: Dkt. No. 19 11 Defendants. 12

13 14 The court is in receipt of defendants’ request to continue the hearing set for their 15 motion to dismiss. The request is procedurally defective, as it should have been filed as 16 a motion for administrative relief pursuant to Civil Local Rule 7-11 and it should have 17 been filed further in advance of the hearing date for defendants’ motion. However, 18 considering defense counsel’s trial obligations and good cause appearing, the court 19 GRANTS the request. The hearing on defendants’ motion to dismiss (Dkt. 13) is hereby 20 continued to a future date. 21 Defendants’ motion to dismiss is based on a factual challenge to plaintiff’s 22 standing to pursue injunctive relief under the Americans with Disabilities Act. See D’Lil v. 23 Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008). In their moving 24 papers, defendants raise several factual issues related to plaintiff’s likelihood of returning 25 to their place of public accommodation, and they request an evidentiary hearing limited to 26 the issue of standing. Dkt. 13-1 at 19. The court GRANTS this request. See Hohlbein v. 27 Hosp. Ventures LLC, 248 F. App’x 804, 806 & n.2 (9th Cir. 2007) (“because the 1 revisit the issue of standing in an evidentiary hearing or at trial, where the controverted 2 facts ‘must be supported adequately by the evidence adduced’ there.” (quoting Lujan, 3 504 U.S. at 561)). 4 The evidentiary hearing will take place on July 7, 2022, at 1:30pm via Zoom. The 5 court will “examine factors such as (1) the proximity of defendant’s business to plaintiff’s 6 residence, (2) plaintiff’s past patronage of defendant’s business, (3) the definitiveness of 7 plaintiff’s plans to return, and (4) the plaintiff’s frequency of travel near defendant.” 8 Johnson v. Mantena LLC, No. 5:19-CV-06468-EJD, 2020 WL 1531355, at *4 (N.D. Cal. 9 Mar. 31, 2020) (citation and quotation marks omitted). Plaintiff is ORDERED to appear. 10 The court will determine after the evidentiary hearing whether further briefing or hearing 11 on the motion to dismiss is necessary. 12 IT IS SO ORDERED. 13 Dated: June 1, 2022 14 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 15 United States District Judge

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