1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ORLANDO GARCIA, 7 Case No. 21-cv-05539-JCS Plaintiff, 8 v. ORDER GRANTING MOTION TO 9 DISMISS PURSUANT TO FRCP QUONG FOOK TONG, 12(b)(1) AND (h)(3) 10 Defendant. Re: Dkt. No. 27 11
12 13 I. INTRODUCTION 14 Defendant Quong Fook Tong brings a Motion to Dismiss Pursuant to FRCP 12(b)(1) and 15 (h)(3) (“Motion”), asking the Court to dismiss Plaintiff Orlando Garcia’s First Amended 16 Complaint for lack of subject matter jurisdiction. A hearing on the Motion was held on August 17 26, 2022. For the reasons discussed below, Tong’s motion is GRANTED.1 18 II. BACKGROUND 19 A. Factual Background 20 Plaintiff Orlando Garcia suffers from cerebral palsy, cannot walk, has manual dexterity 21 issues, and uses a wheelchair for mobility. First Amended Complaint (FAC”) ¶ 1. Defendant 22 Quong Fook Tong owns the property in San Francisco on which a lingerie store called Tartas’ 23 Secret (“the Business”) operates. Id. ¶ 3. In the FAC, Garcia alleges that he went to the Business 24 “in June 2021 with the intention to avail himself of its goods or services motivated in part to 25 determine if the defendants comply with the disability access laws.” FAC ¶ 8. He further alleges 26 that he “encountered unlawful barriers in June 2021.” In particular, according to Garcia, “on the 27 1 date of the plaintiff’s visit, the defendants failed to provide wheelchair accessible paths of travel in 2 conformance with the ADA Standards as it relates to wheelchair users like the plaintiff.” Id. ¶ 10. 3 Plaintiff alleges that although he “wanted to return and patronize the [B]usiness several times” he 4 was “specifically deterred due to his actual personal knowledge of the barriers gleaned from his 5 encounter with them.” Id. ¶ 8. 6 In Opposition to the Motion, Garcia supplied a declaration containing additional details 7 about his visit to Tartas’ Secret. According to Garcia, he visits Northern California, including San 8 Francisco, regularly “for vacation and to eat and shop” and for his activity as “an active ADA 9 litigator.” Declaration of Orlando Garcia in Opposition to Motion to Dismiss First Amended 10 Complaint (“Garcia Decl.”) ¶ 5. Garcia states that he went to the Business on June 12, 2021 with 11 his friend Marilyn, “who wanted to look around the store,” and that he “was also motivated in part 12 to assess the business for compliance with access laws.” Garcia Decl. ¶ 2. Garcia states that he 13 “saw that the path of travel leading to the entrance was sloped” and that he “was worried about 14 being able to navigate it in [his] wheelchair.” Id. ¶ 3. Because of the slope, Garcia states, he 15 waited outside while his friend went into the Business and shopped. Id. Garcia states that 16 “[w]henever it is represented [to him] that the store is brought into compliance, [he] will return to 17 the store to shop and to also check and make sure that the store has fixed the slope at the 18 entrance.” Id. ¶ 6 19 As an attachment to his declaration, Garcia has provided three photographs that he says his 20 friend took of the store entrance using Garcia’s cell phone on June 12, 2021. Garcia Decl. ¶ 4 & 21 Ex. 1. Two of the photographs show a sloped sidewalk seemingly outside the entrance to a store, 22 and the third photograph shows the storefront of the Business with its name on the awning as well 23 as a glass storefront through which merchandise is visible. Id. The sidewalk is not visible in the 24 third photograph. Id. In these photographs, the Business is not boarded up and the door is 25 propped open. Id. 26 Garcia has also submitted a declaration and photographs by Corey Taylor, a private 27 investigator hired by Garcia, who went to the Business on July 26, 2021, approximately one 1 Support of Plaintiff’s Opposition to Motion to Dismiss (“Taylor Decl.”) ¶¶ 1-3 & Ex. 2. Taylor 2 states that on that date, “the store was boarded up and closed,” he saw “that there was still 3 merchandise inside the store,” and “the ramp leading to the door . . . had a slope of 17.5% and a 4 cross-slope of 5.8%.” Id. at 4-5. Taylor submitted six photographs, all of which feature 5 prominent date stamps reflecting that they were taken on July 26, 2021. Id. The first photograph 6 shows the storefront of the Business with its name on the awning and the windows and doors 7 boarded up, gated, and padlocked, and it also shows the sidewalk with a sloped portion near the 8 door. Id. The second photograph shows a level measuring tool on the sidewalk perpendicular to 9 the door, and the third photograph is a closeup of the level reading “17.5%.” Id. The fourth 10 photograph shows a level measuring tool on the sidewalk parallel to the door, and the fifth 11 photograph is a closeup of the level reading “5.8%.” Id. The sixth photograph shows the 12 storefront of the Business, taken at an angle from the right side, and the neighboring door and 13 mailboxes with the same address as the Business are also visible. Id. 14 Finally, in response to the Court’s Order to Show Cause, in which the Court requested 15 evidence that Tartas’ Secret is not permanently closed, Garcia submitted a report from another 16 investigator, Robert Marquis, who visited the Business on July 21, 2022. Declaration of Robert 17 Marquis (“Marquis Decl.”). Marquis went to the Business on that date and found that it was 18 “open for business” and “ma[d]e a small purchase from” the Business. Id. ¶ 3. Marquis supplied 19 three photographs that he took during this visit. Id., Ex. 1. The first and second photographs 20 show the front of the Business, including the name and address on the awning, the glass door and 21 windows without any boards or gates, and a sign lit up that says “Open.” Id. The third 22 photograph is a receipt that Marquis states is from the purchase he made, and it includes the name 23 and address of the Business, as well as the date, and the amount of $47.00. Id. 24 B. Procedural History 25 In his original complaint, filed on July 20, 2020, Garcia asserted claims under the 26 Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act, alleging that 27 two barriers prevented his entry to the Business: 1) it did not have “wheelchair accessible paths of 1 hardware” as “the entrance door hardware had a traditional round knob handle that required tight 2 grasping and twisting of the wrist to operate.” Complaint ¶¶ 12, 14-17. In the FAC, filed on 3 March 22, 2022, Garcia amended his factual allegations to allege that the Business had only one 4 barrier to entry, “an excessively sloped ramp, with no handrails or landings.” FAC ¶ 12. On 5 April 5, 2022, the Court filed an order declining to exercise supplemental jurisdiction over the 6 state law claim, leaving only the ADA claim in the case. 7 Tong now brings a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil 8 Procedure, arguing that the Court does not have subject matter jurisdiction over Garcia’s 9 remaining claim because he has not demonstrated that he has standing to seek injunctive relief, 10 which is the only relief available under the ADA. Motion at 7-8. In particular, he asserts that 11 Garcia cannot establish an injury in fact because he has not demonstrated an intent to return to 12 Tartas’ Secret. Id. at 9. Tong contends, “Plaintiff filed suit against a closed business, and [in the 13 original complaint] alleged ADA Compliance issues that did not exist on the Subject Property.” 14 Id. at 4. In support of the contention that the Business was closed on the date of Garcia’s visit, 15 Tong points to the photographs taken by Taylor on July 26, 2020, which were produced by Garcia 16 with his initial disclosures. Id. at 5 (citing Whang Declaration in Support of Motion to Dismiss 17 (“Whang Decl.”) ¶ 2 & Ex. A).2 18 In addition to the evidence Tong contends showed that the Business was closed and 19 boarded up when Garcia visited it, Tong points to deposition testimony by Garcia in another case, 20 Garcia v. Maciel, et. al., Case No. 3:21-cv-03743-JCS, that Tong contends establishes that Garcia 21 did not have an intent to return to return to Tartas’ Secret. Id. (citing Request for Judicial Notice 22 (“RJN”), Ex. A (Garcia Dep. Excerpts)). In particular, in his November 18, 2021 deposition in 23 Garcia v. Maciel, Garcia testified that “he made a trip to the Bay Area in June 2021 and visited 15 24 2 Counsel states in his declaration that “[o]n February 17, 2022, in conjunction with Plaintiff's 25 Initial Disclosures, Plaintiff’s counsel provided photographs taken by Plaintiff on the date of his alleged visit to Tartas’ Secret supposedly located at 751 Clay Street, San Francisco, California . . . 26 .” Whang Decl. ¶ 2. As the original Complaint alleged that Garcia visited the Business in June 2021, the date stamps on the photographs suggest they were taken after Garcia’s visit. It is not 27 clear why Tong’s counsel apparently believed the photographs were taken when Garcia visited the 1 to 20 businesses, which he then filed suit against each of these businesses.” Id. (citing RJN, Ex. A 2 at pp.10:1-21, 11:24-14:19). According to Tong, Garcia also testified in his deposition that he had 3 never visited the Bay Area until about May 2021, at which point he began making monthly trips to 4 the area, “‘passing-by’ numerous small businesses to file suit against for alleged ADA violations.” 5 Id. (citing RJN, Ex. A at pp. 8:19-9:18; 14:23-15:17). Tong asserts in the Motion that it is likely 6 that Defendant is one of the businesses Plaintiff “passed-by” in his attempt to sue as many small 7 businesses as possible during his brief trip to the Bay Area in June 2021. Id. Tong argues that 8 under these circumstances Garcia couldn’t have had an intent to patronize the Business, let alone 9 return. Id. Instead, Tong argues, Garcia is a vexatious litigant who has “grossly exaggerated” his 10 injury to coerce a settlement from Tong. Id. at 10. 11 Tong further asserts that “[e]ven if Plaintiff amended his Complaint and sued the correct 12 property, Defendant obtained a permit from City and County of San Francisco Department of 13 Building Inspection stating Tartas’ Secret’s entrance complies with all ADA Standards.” Id. 14 (citing Whang Declaration, Ex. B (permit)). According to Defendant’s counsel, Christopher 15 Whang, the permit states that the Business “is ADA Compliant,” and that “on January 31, 2020, 16 the City and County of San Francisco issued a determination that Tartas’ Secret[] has approved 17 alternatives to accommodate any alleged inaccessibility issues to the entrance.” Whang Decl. ¶ 4. 18 The attached exhibit appears to be an inspection history for Tartas’ Secret and reflects that the 19 most recent inspection took place on March 11, 2021. Whang Decl., Ex. B. Under the heading 20 “Inspection Description[,]” the report reads “FINAL INSPECT/APPRVD”; however, under 21 “Inspection Status” the report reads, “CORRECTION REQUIRED.” Id. 22 In his Opposition, Garcia rejects the contention that the Business was closed and boarded 23 up when he visited it in June 2021, pointing to the photographs that his friend took with his phone 24 when they visited together on June 12, 2021, discussed above. Opposition at 2-3. Garcia points 25 out that in those photographs the business was not boarded up and closed but instead, was 26 obviously open. Id. Thus, Garcia asserts, Tong is merely making the argument that many ADA 27 defendants make, namely, that the case should be dismissed because Garcia is a serial litigant. Id. 1 addressing standing in ADA cases, which have found that ADA testers are not deprived of 2 standing simply because they are serial litigants. Id. at 4-5, 8-11 (citing, inter alia, Chapman v. 3 Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011); D’Lil v. Best Western Encina Lodge & 4 Suites, 538 F.3d 1031, 1037 (9th Cir. 2008); Civ. Rights Educ. And Enf’t Ctr. v. Hosp. Properties 5 Tr., 867 F.3d 1093, 1096 (9th Cir. 2017) (“CREEC”)). Garcia also contends “the Ninth Circuit 6 recently found that allegations virtually identical to those pleaded (and supported) here sufficiently 7 allege standing. Id. at 6-8 (citing Whitaker v. Panama Joes Inv’rs LLC, 2021 WL 238401, at *2 8 (9th Cir. Jan. 25, 2021)). 9 In his Reply, Tong argues that even with the “new photographs” showing that the Business 10 was open when Garcia visited, the Court should dismiss the case based on lack of standing 11 because Garcia is a serial litigant who “has no intention of testing ADA issues and returning to 12 these small businesses, and is simply out to collect a settlement payment.” Reply at 2. Tong 13 points to the lawsuit filed by the District Attorneys of Los Angeles and San Francisco against the 14 firm that represents Garcia, as well as Judge Chhabria’s order to show cause in Whitaker v. Cardo, 15 Inc. N.D. Cal. No. 21-cv-07587-VC, involving the same plaintiffs’ counsel, finding that the 16 district attorneys’ complaint was well pled and requiring the plaintiff to provide declarations on 17 the question of standing. Reply at 2-3. Tong also asserts that to the extent the photographs show 18 the Business being open, they highlight the fact that in the original complaint the barriers Garcia 19 alleges he encountered (a round doorknob and curbed step) were not the ones shown in the 20 pictures, suggesting that Garcia intended to sue the business next door and “call[ing] into question 21 the validity of these photographs.” Id. at 3. Finally, Tong points out that Garcia did not address 22 the permit offered in support of the Motion that Tong contends shows the Business is in 23 compliance with the ADA. Id. 24 III. ANALYSIS 25 A. Legal Standard for Motion to Dismiss for Lack of Subject Matter Jurisdiction 26 A motion to dismiss filed pursuant to Rule 12(b)(1) challenges a court’s jurisdiction over 27 the subject matter of a plaintiff’s complaint. See Fed. R. Civ. P. 12(b)(1). “Federal courts are 1 matter jurisdiction. See Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377 (1994). 2 A jurisdictional challenge under Rule 12(b)(1) “can be either facial or factual.” White v. 3 Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the challenger asserts that the 4 allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” 5 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). However, “in a factual 6 attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise 7 invoke federal jurisdiction.” Id. “In resolving a factual attack on jurisdiction, the district court 8 may review evidence beyond the complaint without converting the motion to dismiss into a 9 motion for summary judgment.” Id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 10 1039 n. 2 (9th Cir. 2003)). To resolve a factual challenge, “[t]he court need not presume the 11 truthfulness of the plaintiff’s allegations.” Id. (citing White, 227 F.3d at 1242). 12 B. Request for Judicial Notice 13 In its Request for Judicial Notice (“RJN”), Tong asks the Court to take judicial notice of 14 the following: 1) the Civil Complaint filed by San Francisco District Attorney Chesa Boudin and 15 Los Angeles District Attorney George Gascon charging Potter Handy, LLP with fraudulent 16 litigation (“Exhibit A”); 2) Plaintiff’s deposition taken in Garcia v. Maciel, et. al., on November 17 18, 2021 (“Exhibit B”); and 3) the “City and County of San Francisco Department of Building 18 Inspection Permit issued to Tartas’ Secret” purportedly showing “compliance with Accessible 19 Entrance.” (“Exhibit C”). 20 Rule 201 of the Federal Rules of Evidence permits a court to notice of an adjudicative fact 21 if it is “not subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to 22 reasonable dispute” if it is “generally known,” or “can be accurately and readily determined from 23 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)-(2). A court 24 “may take notice of proceedings in other courts, both within and without the federal judicial 25 system, if those proceedings have a direct relation to matters at issue.” United States ex rel. 26 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 27 The Court DENIES Tong’s request for judicial notice of the complaint against Potter 1 directly related to this matter. The complaint contains allegations that ultimately may – or may 2 not – be proven; at this point, however, no judgment has been entered against Potter Handy and 3 therefore, the Court declines to rely on the allegations in that complaint to resolve the standing 4 question here. See Love v. CCMH Fisherman's Wharf LLC, No. 20-cv-07131-JCS, 2021 WL 5 1734924, at *2 (N.D. Cal. May 3, 2021) (declining to take judicial notice of a list of other cases 6 brought by a plaintiff as “wholly irrelevant to the resolution” of the motion). 7 The Court GRANTS Tong’s request for judicial notice of the deposition excerpts in 8 Exhibit B as these were filed on the public record in Garcia v. Marciel. Garcia does not dispute 9 that the trip in June 2021 that was the subject of some of his testimony in that deposition was the 10 one during which he visited Tartas’ Secret and therefore that testimony is directly relevant to the 11 question of whether Garcia has standing in this case. However, the Court notices the deposition 12 excerpts solely for the purpose of recognizing statements Garcia made in the deposition and not to 13 endorse the conclusions that Tong draws from those statements. See Crandall v. Starbucks Corp., 14 249 F. Supp. 3d 1087, 1099 (N.D. Cal. 2017) (taking judicial notice of a website solely to 15 establish what it said and not the defendant’s assertions based upon the website). 16 Finally, because courts may take judicial notice of state and local agency records, the Court 17 GRANTS Tong’s request with respect to Exhibit C, which is purportedly a City and County of 18 San Francisco Department of Building Inspection Permit. See Klean Waters, Inc. v. Orange Cnty. 19 Sanitation Dist., et al., No. SACV1500627JVSFFMX, 2016 WL 11607214, at *3 (C.D. Cal. Mar. 20 31, 2016) (citing Disabled Rts. Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 (9th 21 Cir. 2004)). The Court notes that Garcia did not oppose Tong’s request for judicial notice or 22 challenge the authenticity of the document. 23 C. Standing 24 “Article III standing is a necessary component of subject matter jurisdiction.” In re 25 Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011). A standing analysis considers 26 whether the plaintiff has shown “(i) that [they] suffered an injury in fact that is concrete, 27 particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and 1 S. Ct. 2190, 2203, (2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). An 2 injury in fact for standing purposes is one that is “real, and not abstract” and “actual or imminent, 3 not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339-40 (2016) (internal 4 quotation marks omitted). 5 In the ADA context, “encounters with the noncompliant barriers related to one’s 6 disability are sufficient to demonstrate an injury-in-fact for standing purposes.” Chapman v. Pier 7 1 Imports (U.S.) Inc., 631 F.3d 939, 948 (9th Cir. 2011). An ADA plaintiff may establish injury- 8 in-fact where he “personally suffered discrimination as a result of the barriers in place.” Bodley v. 9 Plaza Mgmt. Corp., 331 F. App’x 547 (9th Cir. 2009). “The injury suffered by disabled plaintiffs 10 is the discrimination under the ADA that results from an accommodation’s failure to remove 11 architectural barriers.” Chapman, 631 F.3d at 952. Plaintiffs must therefore establish that they 12 have personally encountered “at least one barrier related to plaintiff’s disability.” Whitaker v. 13 Panama Joes Invs., LLC, 840 F. App’x 961, 963 (9th Cir. 2021). 14 In addition, to demonstrate standing to seek injunctive relive, a plaintiff must establish 15 “real and immediate threat of repeated injury.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 16 1075, 1081 (9th Cir. 2004). This requirement is met where a plaintiff shows “either that he is 17 deterred from returning to the facility or that he intends to return to the facility and is therefore 18 likely to suffer repeated injury.” Chapman, 631 F.3d at 953. “To establish standing based on 19 deterrence, an ADA plaintiff must demonstrate that he would return but for the barrier.” Feezor v. 20 Sears, Roebuck & Co., 608 F. App’x 476, 477 (9th Cir. 2015). Conclusory statements that a 21 plaintiff intends to visit an establishment in the future are insufficient to make this showing. See 22 Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (finding 23 that an ADA plaintiff who encountered a barrier at a hospital but alleged no reason or intent to 24 return to the hospital in the future lacked standing for injunctive relief); Whitaker v. Slainte Bars 25 LLC, No. 21-CV-03750-JSC, 2022 WL 1426979, at *2 (N.D. Cal. May 5, 2022) (to establish 26 standing to pursue injunctive relief an ADA plaintiff must show he has a “genuine intent to return; 27 absent such intent, he does not have a likelihood of future injury and therefore no standing to 1 Where the plaintiff is “indifferent to returning” or if their “alleged intent to return is not 2 genuine,” no imminent threat exists. Chapman, 631 F.3d at 953. But a deterred plaintiff need not 3 engage in the “futile gesture” of returning or making concrete plans to return to the establishment 4 before the barrier is cured. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136 (9th Cir. 5 2002); see also Civil Rights Educ. & Enf't Ctr. v. Hosp. Props. Tr. (“CREEC”), 867 F.3d 1093, 6 1101 (9th Cir. 2017) (holding that alleged intent to return after a barrier has been cured validly 7 protects plaintiffs from engaging in a “futile gesture” and that the “injury continues so long as 8 equivalent access is denied”); Marquez v. Carwood Ctr., LLC, No. 2:20-cv-05948-VAP-JEMx, 9 2020 WL 8816340, at *6 (C.D. Cal. Oct. 19, 2020) (finding a plausible allegation of intent to 10 return sufficient for standing purposes at the pleading stage). 11 Garcia ’s allegations of encountering a barrier at the Business are sufficient to establish 12 that his injury is “concrete and particularized” and “actual.” See Chapman, 631 F.3d at 953. He 13 has offered evidence, in the form of his own declaration, that on the date of his visit the Business 14 was open and that he wanted to enter to look around but instead had to wait outside while his 15 friend went into the Business because of the sloped ramp leading into the Business. Garcia Decl. 16 ¶¶ 2-3. He also has provided evidence of “an excessively sloped ramp, with no handrails or 17 landings[,]” which was documented by an investigator who visited the Business approximately 18 one month later. Taylor Decl. ¶ 5 & Ex. 2. Further, because Garcia is a wheelchair user and an 19 excessively sloped ramp would interfere with his access to the Business, his claim is sufficiently 20 related to his disability. See Doran, 524 F.3d at 1040 (finding that alleged barriers, which 21 included a steep wheelchair ramp, were sufficiently concrete and particularized). 22 On the other hand, based on the evidence in the record,3 the Court concludes that Garcia 23 has not established that he has a genuine intent to return to Tartas’ Secret. Where “the public 24 accommodation being sued is far from the plaintiff’s home, the Ninth Circuit has found actual or 25 imminent injury sufficient to establish standing “where a plaintiff demonstrates an intent to return 26 to the geographic area where the accommodation is located and a desire to visit the 27 1 accommodation if it were made accessible.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 2 1031, 1037 (9th Cir. 2008). For example, in D’Lil, the court found that the plaintiff had plausibly 3 established her intent to return to a Best Western hotel in Santa Barbara, California where she had 4 encountered barriers based on evidence that “she has been visiting the Santa Barbara area since the 5 early 1980s for both business and pleasure[,]” that between 1993 and 2000, “she visited 6 approximately 1–3 times per year in connection with her work for the state Department of 7 Rehabilitation[,]” that “in 2001, the year that D’Lil stayed at the Best Western Encina, she took 8 three trips to Santa Barbara to visit her friends the Marshes, to vacation with her children, and to 9 perform work for attorney Singleton[,]” that “[i]n the three years between her visit to the Best 10 Western . . . and the filing of her declaration in the case, D’Lil returned to Santa Barbara four 11 times to conduct business inspections and to visit the Marshes[,]” and that she had “three 12 upcoming trips that she was planning to the Santa Barbara area, including a vacation to visit the 13 Marshes, an evidentiary hearing for another trial, and a prospective work trip to Carpinteria.” 538 14 F.3d at 1037–38. In addition, the plaintiff in that case “explained her preference for staying at the 15 Best Western Encina during future trips to Santa Barbara was based on the hotel’s proximity to 16 downtown, its accessibility from the freeway, and its amenities, including lush gardening and 17 fresh country linen quilts.” Id. at 1038; see also Doran v. 7-Eleven, Inc., 524 F. 3d 1034 (9th Cir. 18 2008) (finding that the plaintiff established that he was deterred from returning to a 7-Eleven that 19 was 550 miles from his home given his allegations that he had visited the 7-Eleven 10-20 times in 20 the past, the 7-Eleven was located near his favorite restaurant in the area, and he intended to go to 21 the area during his annual Disneyland trips); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 22 1133, 1035 (9th Cir. 2002) (finding that the plaintiff adequately alleged that he was deterred from 23 visiting a grocery store located 70 miles from his home where he stated in his declaration that it 24 was his favorite grocery store and that he visited the area every week to see his grandmother). 25 In contrast, in Whitaker v. Lonely Planet LLC, the court found that the plaintiff’s alleged 26 intent to return to a restaurant in Oakland, California was not plausible where the plaintiff lived 27 370 miles away and “alleged no specific connection to Oakland, no specific plan to return to 1 2022 WL 3084316, at *4 (N.D. Cal. Aug. 3, 2022). Under those circumstances, the court found 2 that the plaintiff’s “conclusory statement [was] insufficient to confer standing.” Id. (citing 3 CREEC, 867 F.3d at 1100 for proposition that the district courts may make “case-by-case 4 determinations about whether a particular plaintiff's injury is imminent”; and Strojnik v. Pasadena 5 Robles Acquisition, LLC, No. 2:19-CV-02067-AB (PJWx), 2019 U.S. Dist. LEXIS 213070, at *8 6 (C.D. Cal. Aug. 14, 2019) (Judge André Birotte Jr.), aff’d, 801 F. App’x 569 (9th Cir. 2020) for 7 the holding “that ADA plaintiff failed to show standing under deterrence theory where he ‘failed 8 to point to any facts’ showing that the alleged deterrence was ‘not merely hypothetical’”); see 9 also Whitaker v. Slainte Bars LLC, No. 21-CV-03750-JSC (finding after holding an evidentiary 10 hearing that the same plaintiff (Brian Whitaker) had not plausibly established an intent to return to 11 an establishment in Redwood City, California, where he “did not testify as to any specific 12 connection to Redwood City, any specific plan to return to Redwood City, or any specific reason 13 to return to the Alhambra Irish House in Redwood City.”). 14 Here, Garcia states in his declaration that “[w]henever it is represented [to him] that the 15 store is brought into compliance, [he] will return to the store to shop and to also check and make 16 sure that the store has fixed the slope at the entrance.” Garcia Decl. ¶ 6. However, Garcia 17 testified in Garcia v. Maciel that he lives in Los Angeles, almost 400 miles away from the 18 Business. RJN, Ex. B (Garcia Dep.) at 8. Garcia states in his declaration that he “visit[s] 19 Northern California regularly, including San Francisco, for vacation and to eat and shop” and that 20 because he is “an active ADA litigator, . . . his efforts to identify law-breaking businesses brings 21 [him] to this geographical area on a continuing and ongoing basis.” Garcia Decl. ¶ 5. However, 22 this broad statement is too general to be plausible. Unlike the facts in D’Lili, Dornan and Pickern, 23 there is no specific evidence in the record in this case showing that Garcia has a genuine intent to 24 return to this particular business, such as the nature of the merchandise sold at Tartas’ Secret or the 25 convenience or attractiveness of its particular location. Indeed, in Garcia’s declaration, he does 26 not state that he wanted to shop at the store; rather, it was his friend who wanted to “look around,” 27 whereas Garcia’s interest appears to have been exclusively to check for ADA compliance. Garcia 1 therefore concludes that Garcia has failed to demonstrate imminent injury and lacks standing in 2 || this case. 3 The Court also finds that Garcia’s reliance on Whitaker v. Panama Joes Invs. LLC, is 4 || misplaced. In that case, the Ninth Circuit held that “[aJn allegation that the plaintiff is currently 5 deterred from visiting a facility because he is aware of discriminatory conditions there suffices to 6 || demonstrate an imminent injury for purposes of surviving a motion to dismiss pursuant to Rule 7 12(b)(1).” 840 F. App’x at 963-964. There, however, the court was considering a facial challenge 8 || under Rule 12(b)(1). See id. at 963 (setting forth legal standard governing facial challenge under 9 Rule 12(b)(1)). In contrast, the parties here have presented evidence to support their positions. As 10 || discussed above, a different standard applies when the Court goes beyond the allegations in the 11 |] complaint.* 12 || Iv. CONCLUSION 5 13 For the reasons discussed above, the motion to dismiss is GRANTED. The case is 14 || therefore dismissed. The Clerk shall enter judgment in favor of Defendant and close the file. 3 15 IT IS SO ORDERED. 16
= 17 Dated: August 26, 2022 18 5 ZA Cao J PH C. SPERO 19 ief Magistrate Judge 20 21 22 23 24 25 26 27 4 Because the court finds that Garcia does not have standing, it does not reach Tong’s alternative 2g || argument based on the City and County of San Francisco Department of Building Inspection Permit that Tong says establishes the Business is in compliance with the ADA.