1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No. 1: 21-cv-01740-JLT-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING (1) DEFENDANT’S 13 v. MOTION TO STRIKE NEW CLAIMS IN PLAINTIFF’S SECOND AMENDED 14 KOHL’S INC., COMPLAINT AND FOR DISMISSAL OF ORIGINAL CLAIMS FOR FAILURE TO 15 Defendant. STATE A CLAIM, OR IN THE ALTERNATIVE FOR SUMMARY 16 JUDGMENT AND DISMISSAL PURSUANT TO THE COURT’S POWER 17 TO SANCTION AND (2) PLAINTIFF’S CROSS MOTION FOR SUMMARY 18 JUDGMENT 19 (Docs. 38, 40) 20 FOURTEEN-DAY DEADLINE 21 22 Currently pending before the Court is Defendant Kohl’s Inc.’s motion to strike, or in the 23 alternative, dismissing or granting judgment on Plaintiff Fernando Gastelum’s second amended 24 complaint. (Doc. 38.) Plaintiff filed an opposition and cross motion for summary judgment on 25 May 4, 2023. (Doc. 40.) Defendant replied on May 12, 2023. (Doc. 41.) The motions were 26 referred to the undersigned for findings and recommendations. (Doc. 43.) The matter was 27 deemed submitted on the papers. (Doc. 42.) 28 1 Having considered the record and briefing in this matter, the Court will recommend 2 granting Defendant’s motion to strike certain allegations and claims in the second amended 3 complaint, granting Defendant’s motion to dismiss second amended complaint without leave to 4 amend, and denying the parties’ motions for summary judgment as moot. 5 I. FACTUAL AND PROCEDURAL BACKGROUND 6 A. Original Complaint 7 Plaintiff, proceeding pro se, initiated the present action pursuant to the Americans with 8 Disabilities Act (“ADA”) and California civil rights law against Defendant on December 8, 2021. 9 Plaintiff resides in Casa Grande, Arizona. (Doc. 1 at 1.) He reports that he is “missing a leg” and 10 uses “a wheelchair for mobility.” (Id. at 1, ¶ 1.) Plaintiff alleges he visited the Kohl’s store 11 located at 9400 Rosedale Highway in Bakersfield, California (“Bakersfield store”) on July 1, 12 2021.1 (Id. at 1, ¶¶ 2-3.) According to Plaintiff, when he visited the Bakersfield store, he “noted 13 it was not compliant” in various respects “with the Americans with Disabilities Act and the 14 California’s civil rights laws and California disabled person’s law.” (Id. at 1, ¶ 4.) 15 Defendant answered the complaint on January 19, 2022. (Doc. 5.) 16 On March 28, 2022, Plaintiff sought leave to amend his complaint to (1) state the true 17 name of Defendant; (2) add standing allegations; and (3) add additional barriers to accessibility 18 experienced by Plaintiff at the Kohl’s store located at 808 E. Danenberg Drive in El Centro, 19 California (“El Centro store”), which Plaintiff visited on February 24, 2022. (Doc. 13.) 20 Defendant filed a statement of non-opposition to the motion, which the Court granted on October 21 13, 2022. (Docs. 18, 19.) 22 B. First Amended Complaint 23 Plaintiff’s first amended complaint (“FAC”) was filed on October 13, 2022. (Doc. 20.) In 24 the FAC, Plaintiff reports that he is “missing a leg” and “uses a wheelchair for mobility when 25 locations are wheelchair accessible and a prosthetic leg and a cane when the location is not 26 wheelchair accessible.” (Doc. 20 at 1, ¶ 1.) Plaintiff alleges he visited the Kohl’s Bakersfield 27 1 In subsequent complaints, Plaintiff alleges he visited the Bakersfield store on July 2, 2021. (See Doc. 20 28 at 2, ¶¶ 5, 10; Doc. 37 at 3, ¶ 12 and 8, ¶ 26.) 1 store on July 2, 2021, and the Kohl’s El Centro store on February 24, 2022. (Id. at 2, ¶¶ 5, 10.) 2 According to Plaintiff, when he visited the Bakersfield and El Centro stores, he discovered 3 that each of the stores was “not compliant with the disability access laws in conformance with the 4 ADA Standards as it relates to wheelchair users like the Plaintiff.” (Doc. 20 at 3, ¶¶ 11, 12.) 5 Specifically, Plaintiff asserts he identified the following barriers at the Bakersfield store:
6 a. The operable part of the restroom door requires the twisting of the wrist to operate. This condition makes it more difficult for Plaintiff to 7 open the door. This condition violates accessibility standards at 309.4.
8 b. Fitting room door requires twisting of the wrist. This condition makes it more difficult for Plaintiff to open the door. This condition violates 9 accessibility standards at 309.4.
10 c. Clear width of accessible routes was less than 36” between displays of merchandise. This condition makes it more difficult for Plaintiff to 11 move between displays of merchandise. This condition violates accessibility standards at 403.5.1. 12 d. There are numerous protruding objects that reduce clear width of 13 accessible routes between rows of merchandising displays. This condition makes it more difficult for Plaintiff to move between the 14 rows of merchandise. This condition violates accessibility standards at 307.5. 15 e. The benches near the entrance are completely inaccessible to a 16 wheelchair which makes it impossible for Plaintiff to use them. 17 (Id. at 3, ¶ 11.) Plaintiff asserts he identified the following barriers at the El Centro store:
18 a. Clear width of accessible routes was less than 36” between displays of merchandise. This condition makes it more difficult for Plaintiff to 19 move between displays of merchandise. This condition violates accessibility standards at 403.5.1. 20 b. The operable part of the fitting room door requires the twisting of the 21 wrist to operate. This condition makes it more difficult for Plaintiff to open the door. This condition violates accessibility standards at 309.4. 22 c. The bathroom door requires the push-pull force greater than 5 lbs. 23 This condition makes it more difficult for plaintiff to open the door. This condition violates accessibility standards at 309.4.2. 24 25 (Id. at 3-4, ¶ 12.) Plaintiff alleges he “personally encountered these barriers,” and they “relate to 26 and impact [his] disability.” (Id. at 4, ¶ 13.) He asserts that “[b]y failing to provide accessible 27 facilities, the defendants denied the plaintiff full and equal access.” (Id. at 4, ¶ 15.) 28 Plaintiff additionally alleges he “is often in the area where the Stores are located.” (Doc. 1 20 at 4, ¶ 19.) He contends that he “will return to the Stores to avail himself of its goods and 2 services and to determine compliance with the disability access laws once it is represented to him 3 that the Stores are accessible.” (Id., ¶ 20.) According to Plaintiff, he “is currently deterred … 4 because of his knowledge of the existing barriers and his uncertainty about the existence of yet 5 other barriers at the Stores.” (Id.) Plaintiff’s FAC included claims for violation of the ADA and 6 for violation of California’s Unruh Civil Rights Act. (Id. at 5-7.) 7 Defendant answered the FAC on April 28, 2022, (Doc. 21), and filed an amended answer 8 on May 9, 2022, (Doc. 22). 9 On June 14, 2022, Defendant filed a motion seeking judgment on the pleadings pursuant 10 to Rule 12(c) of the Federal Rules of Civil Procedure, arguing Plaintiff lacked standing to pursue 11 his claims and the court lacked subject matter jurisdiction. (Doc. 23.) Plaintiff opposed the 12 motion. (Doc. 25.) 13 On March 20, 2023, the district court granted Defendant’s motion for judgment on the 14 pleadings. (Doc. 36.) The court determined that the allegations in the FAC were insufficient to 15 demonstrate that Plaintiff suffered an injury-in-fact necessary to demonstrate standing for 16 purposes of his ADA claim. (Id. at 12.) In so doing, the court explained that because Plaintiff did 17 not allege he used a wheelchair while visiting the stores, the court was “unable to conclude that 18 the identified barriers—which Gastelum acknowledges related to ‘wheelchair users’ (Doc. 20 at 19 3, ¶¶ 11, 12)—related to his disability.” (Id. at 11.) As detailed by the court, Plaintiff “identified 20 barriers that related to wheelchair users—such as the width of aisles, merchandise protruding 21 from displays, and inaccessible bench—without alleging that he used his wheelchair at the 22 stores.” (Id. at 11.) Plaintiff also included no allegations to support a conclusion that the other 23 barriers, which related to opening various doors, related to his disability: the loss of part of his 24 leg. (Id. at 12.) The court therefore dismissed Plaintiff’s claim for a violation of the ADA, but 25 granted him an “opportunity to file an amended complaint that cures the deficiencies related to 26 standing identified in [the court’s] order.” (Id. at 19.) The court also dismissed Plaintiff’s claim 27 for a violation of California’s Unruh Act without leave to amend, but without prejudice to refiling 28 before the state court. (Id.) 1 C. Second Amended Complaint2 2 Plaintiff filed a second amended complaint (“SAC”) on April 10, 2023. (Doc. 37.) In the 3 SAC, Plaintiff reports that he is “missing his left leg” and “his impairment has been ameliorated 4 by mitigating measures, including: a. The use of wheelchair; or b. Prosthetic leg and a cane.” 5 (Id. at 1, ¶¶ 2, 4.) Plaintiff alleges he is a frequent shopper at Kohl’s stores, and he shopped at 6 Kohl’s stores more than 20-30 times prior to August 2021. (Id. at 4, ¶¶ 20, 21.) He reportedly 7 began taking photographs of Kohl’s stores at the following locations on the following dates: 8 9400 Rosedale Highway in Bakersfield, California on 7/2/2021 and 11/17/2022; 303 E. 9 Danenberg Drive in El Centro, California on 2/24/2022 and 7/31/2022; 2701 Ming Avenue in 10 Bakersfield California on 11/17/2022; 1479 E. 2nd Street in Beaumont, California on 8/11/2021 11 and 11/18/2022; 1051 N. Milliken Avenue in Ontario, California on 1/24/2023; and 5611 Sta. 12 Theresa Boulevard in San Jose, California on 1/25/2023. (Id. at 5, ¶ 24.) According to Plaintiff, 13 during each visit he noted that “each store failed to provide a 36” wide space between the rows of 14 merchandise in violation of accessibility standards at 403.5.1.” (Id. at 5, ¶ 25.) 15 Plaintiff alleges that he visited the Kohl’s Bakersfield store on July 2, 2021, and then 16 again on November 17, 2022, and the Kohl’s El Centro store on February 24, 2022, and again on 17 July 31, 2022. (Doc. 37 at 8, ¶ 27; 10, ¶ 35; 13, ¶ 42; 15, ¶ 50.) 18 Plaintiff asserts that he shopped at the Bakersfield store on July 2, 2021, he had a specific 19 intent to return to the store and did so on November 17, 2022, and he “used his wheelchair while 20 shopping.” (Id. at 8, ¶¶ 17-29.) Plaintiff alleges that he noted the following architectural barrier:
21 a. The clear width of accessible routes between rows of merchandise were less than 36 inches. This condition made it more difficult for 22 Plaintiff to move between the rows of merchandise and shop in his wheelchair or with the aid of the prosthesis and the cane. 23 24 (Id. at 9-10, ¶ 30.) Plaintiff further asserts that he returned and shopped at the Bakersfield store 25 on November 17, 2022, and “used his wheelchair while shopping.” (Id. at 10-11, ¶¶ 35, 36.) 26 Plaintiff again alleges that he encountered the same architectural barrier regarding width of 27
28 2 The SAC includes numerous photographs purporting to support Plaintiff’s allegations. 1 accessible routes between rows of merchandise. (Id. at 11, ¶ 37.) Plaintiff contends that he is 2 unable to maneuver his wheelchair or with the prosthesis and a cane in the narrow spaces 3 between rows of merchandise. (Id. at 10, ¶ 31; 12, ¶ 38.) 4 Additionally, Plaintiff alleges that he shopped at the Kohl’s El Centro store on February 5 24, 2022. (Doc. 37 at 13, ¶ 42.) Plaintiff reports he “requested his son to go into the store to 6 determine whether it was accessible for Plaintiff in his wheelchair. Plaintiff’s son discovered that 7 the Store . . . was not compliant with the disability access laws in conformance with the ADA as 8 it relates to wheelchair users like the Plaintiff.” (Id. at 13, ¶ 44.) Plaintiff asserts his son advised 9 him of the following barriers:
10 a. The clear width of accessible routes between rows of merchandise were less than 36 inches. This condition made it more difficult for 11 Plaintiff to move between the rows of merchandise and shop in his wheelchair or with the aid of the prosthesis and the cane. 12 b. Restroom door required greater than 5 lbs of force to open. For 13 reasons stated above, this condition made it more difficult for Plaintiff to open the restroom door to use the facility in his wheelchair or by the 14 use of the prosthesis with the aid of a cane.
15 16 (Id. at 13-14, ¶ 45.) Plaintiff claims he is “unable to maneuver his wheelchair or with the 17 prosthesis and a cane in the narrow spaces between rows of merchandise or exert necessary 18 pressure on the door to open the bathroom door, either from his wheelchair or with his prosthesis 19 and a cane.” (Id. at 14-15, ¶ 46.) Plaintiff further asserts that he returned to the El Centro store 20 on July 31, 2022, and “used his wheelchair while shopping.” (Doc. 37 at 15, ¶ 50.) Plaintiff 21 alleges he noted the following architectural barrier:
22 a. The clear width of accessible routes between rows of merchandise were less than 36 inches. This condition made it more difficult for 23 Plaintiff to move between the rows of merchandise and shop in his wheelchair or with the aid of the prosthesis and the cane. 24 25 (Id. at 15, ¶ 52.) 26 The SAC forwards claims for violation of the ADA, the Unruh Act, and the California 27 Disabled Persons Act. (Doc. 37 at 18-21.) 28 On April 24, 2023, Defendant filed the instant motion, and seeks to strike the new 1 allegations in Plaintiff’s SAC under Rule 12(f) and dismiss the original allegations. In the 2 alternative, Defendant requests the Court either dismiss the SAC in its entirety under Rule 3 12(b)(6) for failure to establish standing, dismiss the SAC in part related to the original visit to 4 the El Centro store, or grant summary judgment in Defendant’s favor on Plaintiff’s original store 5 visits under Rule 56 and dismiss the remainder of the SAC with prejudice because Plaintiff 6 reportedly makes false allegations regarding his alleged wheelchair use and store visits. (Doc. 7 38-1.) Plaintiff opposes the motion and seeks summary judgment against Defendant. (Doc. 40.) 8 II. DEFENDANT’S MOTION TO STRIKE NEW ALLEGATIONS 9 A. Legal Standard 10 Rule 12(f) of the Federal Rules of Civil Procedure provides that a court may, by motion or 11 on its own initiative, “strike from a pleading an insufficient defense or any redundant, immaterial, 12 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of a 12(f) motion to 13 strike is to avoid the expenditure of time and money that must arise from litigating spurious issues 14 by dispensing with those issues prior to trial[.]” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 15 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), 16 rev’d on other grounds, 510 U.S. 517 (1994)). A decision on whether to strike certain material is 17 committed to the sound discretion of the district court. Id.; Fed. Sav. & Loan Ins. Corp. v Gemini 18 Mgmt., 921 F.2d 241, 244 (9th Cir. 1990). 19 B. Analysis 20 Defendant argues that Plaintiff’s SAC exceeds the scope of amendment permitted by the 21 district court. In particular, Defendant contends that instead of properly correcting the 22 deficiencies related to standing, Plaintiff’s SAC asserts new visits to the Kohl’s stores at issue, 23 (see Doc. 37 at 8, ¶¶ 26, 28; 10-13, ¶¶ 35-41; 15-17, ¶¶ 50-56), alleges claims under the Unruh 24 Act despite the district court’s explicit declination of supplemental jurisdiction regarding that 25 claim, and adds a new claim under the California Disabled Persons Act. Defendant argues that 26 because the district court specifically limited Plaintiff’s leave to amend to correct deficiencies 27 related to standing in his ADA claim, all of Plaintiff’s claims relating to (1) his two new alleged 28 store visits, (2) the Unruh Act, and (3) the California Disabled Persons Act must be stricken under 1 Rule 12(f). (Doc. 38-1 at 13-14.) 2 “Generally, a court looks to the language of the prior order to determine whether leave to 3 amend was granted with or without limitation.” Jimenez v. Buttiegieg, No. 2:19-cv-01458-TLN- 4 KJN, 2023 WL 2717503, at *6 (E.D. Cal. Mar. 30, 2023) (citing Jameson Beach Prop. Owners 5 Ass’n v. United States, No. 2:13-cv-01025-MCE, 2014 WL 4925253, at *3 (E.D. Cal. 2014)). 6 Where a prior court order granted limited leave to amend, district courts in this circuit generally 7 strike or dismiss new claims or parties contained in an amended complaint when the plaintiff did 8 not seek leave to amend. White v. City of W. Sacramento, No. 2:20-cv-02383-MCE-AC, 2022 9 WL 16748701, at *2 (E.D. Cal. Nov. 7, 2022); Jameson, 2014 WL 4925253, at *3. Indeed, when 10 the language of an order “clearly states that a plaintiff may only amend to address certain 11 deficiencies identified in the order, courts have held that a plaintiff is barred from adding new 12 claims or parties.” Id. at *4. District courts have “frequently exercised their power under Rule 13 12(f) to strike pleadings that exceed the scope of a permitted amendment.” Cholakyan v. 14 Mercedes-Benz USA, LLC, No. CV 10-05944 MMM (JCx), 2012 WL 12861143, at *7 (C.D. Cal. 15 Jan. 12, 2012) (collecting cases). 16 In the district court’s prior order, the court granted Defendant’s motion for judgment on 17 the pleadings, but indicated Plaintiff would “be given an opportunity to file an amended 18 complaint that cures the pleading deficiencies related to standing identified in [the court’s] order.” 19 (Doc. 36 at 19.) However, the court explicitly stated, “leave to amend is limited to only the claim 20 arising under the ADA.” (Id.) (emphasis in original). The district court also declined 21 supplemental jurisdiction over Plaintiff’s state law Unruh Act claim, dismissing it “without leave 22 to amend, and without prejudice to refiling before the state court.” (Id.) 23 In the prior order, the district court was specific about the purpose of amending the 24 complaint; that is, only to cure the pleading deficiencies related to standing as to Plaintiff’s claim 25 arising under the ADA. Within the order itself, the court found the allegations in the FAC 26 insufficient to demonstrate Plaintiff suffered an injury-in-fact. The court specifically identified 27 the deficiencies to be cured with respect to the ADA claim, explaining that “Gastelum identifies 28 barriers that relate to wheelchair users—such as the width of aisles, merchandise protruding from 1 displays, and inaccessible bench—without alleging he used his wheelchair at the stores,” (id. at 2 11), and concluding there were “no allegations to support a conclusion that the other barriers, 3 which related to opening various doors, relate to Gastelum’s disability: the loss of part of his 4 leg,” (id. at 11-12). 5 The Court agrees with Defendant that the newly added visits to the Bakersfield store and 6 El Centro store, the renewed Unruh Act claim, and the new claim under the California Disabled 7 Persons Act exceed the scope of the limited leave to amend the district court granted in its prior 8 order on Defendant’s motion for judgment on the pleadings. (See Doc. 36 at 11-12, 19.) 9 Plaintiff appears to argue that the district court dismissed his federal and state law claims 10 solely as they relate to architectural barriers, but not for non-architectural claims, such as 11 discriminatory policies, practices, and procedures. (Doc. 37 at 4, ¶ 17 (“The Court has 12 discretionary supplemental jurisdiction. The Court has previously declined supplemental 13 jurisdiction over allegations of architectural barriers, but, to the best of Plaintiff’s understanding, 14 did not decline supplemental jurisdiction over non-architectural Unruh policy violations”); Doc. 15 40 at 3 (“The Court dismissed Plaintiff’s federal and state law claims based solely on subject 16 matter jurisdiction ground, and only as these claims relate to architectural barriers.”), 10-11.) 17 This argument is neither persuasive nor a fair reading of the district court’s prior order. The leave 18 granted by the district court was expressly limited to the injury-in-fact allegations of the ADA 19 claim, not any other claims or allegations. 20 Further, Plaintiff did not request leave to amend to add the new visits, to reassert an Unruh 21 Act claim, or to add a claim under the California Disabled Persons Act and is barred from adding 22 them without the court’s leave. See Fed. R. Civ. P. 15(a)(2). Even if Plaintiff had requested such 23 leave to amend, it would not be appropriate in the present circumstances. 24 The deadline to amend the pleadings in this action, whether by motion or stipulation, 25 expired on May 12, 2022. (Doc. 12.) As a result, the Court applies the standard for amending a 26 scheduling order under Federal Rule of Civil Procedure 16, before evaluating whether 27 amendment is appropriate under Rule 15. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 28 (9th Cir. 2000) (finding district court correctly addressed motion for leave to amend under Rule 1 16 because it had issued a pretrial scheduling order that established a timetable for amending the 2 pleadings and the motion was filed after the deadline had expired); Jackson v. Laureate, Inc., 186 3 F.R.D. 605, 607 (E.D. Cal. 1999) (“[O]nce the district court has filed a pretrial scheduling order 4 pursuant to Rule 16 which establishes a timetable for amending pleadings, a motion seeking to 5 amend pleadings is governed first by Rule 16(b), and only secondarily by Rule 15(a).”). 6 Under Rule 16(b), a scheduling order “may be modified only for good cause and with the 7 judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Green Aire for Air Conditioning W.L.L. v. 8 Salem, No. 1:18-cv-00873-LJO-SKO, 2020 WL 58279, at *3 (E.D. Cal. Jan. 6, 2020) (“Requests 9 to modify a scheduling order are governed by Rule 16(b)(4) of the Federal Rules of Civil 10 Procedure, which provides that a court may modify a scheduling order ‘only for good cause.’”). 11 The good cause inquiry under Rule 16(b) primarily considers the diligence of the party seeking to 12 modify the scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 13 1992). If there is good cause to modify the scheduling order pursuant to Rule 16(b), then the 14 court will “turn to Rule 15(a) to determine whether the movant’s requested amendment to the 15 pleading should be granted.” Ramos v. FCA US LLC, No. 1:17-CV-00973, 2019 WL 2106172, at 16 *5 (E.D. Cal. May 14, 2019) (citing Jackson, 186 F.R.D. at 607). 17 The Court does not find the requisite good cause. There is no indication of diligence to 18 support amendment, whether for the store “revisits” in 2022, the reassertion of the Unruh Act 19 claim, or the addition of the California Disabled Persons Act claim. Plaintiff provides no 20 explanation as to why the theories underlying his Unruh Act claim or his assertion of a claim 21 under the California Disabled Persons Act could not have been made prior to expiration of the 22 amendment deadline. Further, Plaintiff seemingly chose to “revisit” the Bakersfield and El 23 Centro stores only after expiration of the non-expert discovery deadline on July 28, 2022. (Doc. 24 12.) Plaintiff made no attempt to amend the scheduling order or amend his complaint to add 25 these claims until April 10, 2023, after the district court granted Defendant’s motion for judgment 26 on the pleadings. 27 Even assuming arguendo good cause exists to amend the scheduling order, the relevant 28 factors weigh against leave to amend under Rule 15. Federal Rule of Civil Procedure 15(a) 1 provides:
2 A party may amend its pleading once as a matter of course no later than: (A) 21 days after serving it; or (B) if the pleading is one to which a 3 responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of motion under Rule 12(b), (e) or (f), 4 whichever is earlier. 5 Fed. R. Civ. P. 15(a)(1). In all other cases, including the case here, a party may amend it pleading 6 only with the opposing party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). A 7 court “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The 8 United States Supreme Court has stated:
9 [i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 10 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of 11 amendment, etc.—the leave sought should, as the rules require, be “freely given.” 12 13 Foman v. Davis, 371 U.S. 178, 182 (1962). The intent of the rule is to “facilitate decision on the 14 merits, rather than on the pleadings or technicalities.” Chudacoff v. Univ. Med. Center of S. Nev., 15 649 F.3d 1143, 1152 (9th Cir. 2011). Consequently, the “policy of favoring amendments to 16 pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 17 (9th Cir. 1981). 18 Courts consider five factors in determining whether justice requires allowing amendment 19 under Rule 15(a): “bad faith, undue delay, prejudice to the opposing party, futility of amendment, 20 and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 21 1067, 1077 (9th Cir. 2004) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 22 1995) (citing Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)). 23 These factors are not of equal weight as prejudice to the opposing party has long been held to be 24 the most critical factor in determining whether to grant leave to amend. Eminence Capital, LLC v. 25 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it is the 26 consideration of prejudice to the opposing party that carries the greatest weight”); Jackson v. 27 Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (“Prejudice to the opposing party is the 28 most important factor.”). Absent prejudice, or a strong showing of any of the remaining factors, a 1 presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, 316 2 F.3d at 1052. 3 Prejudice 4 Beginning with prejudice, the Court notes that the deadline to amend expired on May 12, 5 2022, fact discovery closed on July 28, 2022, and expert discovery closed on April 21, 2023. 6 (Docs. 12, 33.) If Plaintiff were allowed leave to amend to allege new visits to the stores and a 7 new claim, Defendant would not be able to conduct further discovery unless the Court were to re- 8 open discovery. Even if the Court were to reopen discovery, Defendant would then be required to 9 expend additional time and resources to address the new allegations. As suggested by Defendant, 10 “[a] need to reopen discovery and therefore delay the proceedings supports a district court’s 11 finding of prejudice from a delayed motion to amend the complaint.” Coleman, 232 F.3d at 1295 12 (citing Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999)). 13 Plaintiff failed to reply to Defendant’s argument as to prejudice and his cross motion does not 14 address whether additional discovery would be required. The Court therefore finds that Defendant 15 would be prejudiced by the amendments not expressly authorized by the district court. This 16 factor weighs strongly against amendment. 17 Undue Delay 18 In evaluating undue delay, the Court considers “whether the moving party knew or should 19 have known the facts and theories raised by the amendment in the original pleading.” Jackson, 20 902 F.2d at 1388. 21 Here, the record demonstrates that Plaintiff was aware of any claims or theories relative to 22 his Unruh Act or California Disabled Persons Act claims at the time of filing his original 23 complaint on December 8, 2021. (Doc. 1 at 1, ¶ 4 (“When I came there, I noted that it was not 24 compliant with the Americans with Disabilities Act and the California’s civil rights laws and 25 California disabled person’s law.”).) Plaintiff offers no explanation as to his delay in seeking to 26 add such claims or alternative theories for relief at least by the time Plaintiff filed the FAC in 27 April 2022. Additionally, Plaintiff offers no apparent explanation for re-visiting the stores after 28 the deadline to seek amendment of his pleadings or why he delayed in seeking amendment to add 1 those visits. The Court finds that the undue delay factor weights against amendment. 2 Bad Faith 3 A motion to amend is made in bad faith when there is evidence of a wrongful motive. See 4 Mendoza v. Cty. of Kings, No. 1:21-cv-00721-JLT-BAM, 2023 WL 6626170, at *5 (E.D. Cal. 5 Oct. 11, 2023); see also DCD Programs Ltd. v. Leighton, 833 F.2d at 187 (“Since there is no 6 evidence in the record which would indicate a wrongful motive, there is no cause to uphold the 7 denial of leave to amend on the basis of bad faith”); Trujillo v. SSSC, Inc., No. 1:21-cv-01691- 8 ADA-BAM, 2023 WL 346801, at *3 (E.D. Cal. Jan. 20, 2023) (finding nothing to suggest motion 9 to amend made in bad faith in the absence of evidence of any wrongful motive); Pizana v. 10 SanMedica Int’l LLC, --- F.R.D.. ---, 2022 WL 1241098, at *10 (finding no bad faith in absence 11 of evidence of any wrongful motive). 12 Defendant argues that Plaintiff’s motivation for adding entirely new store visits to his 13 SAC is an attempt “to shore up his admittedly false original allegations by adding additional visits 14 to the subject Stores.” (Doc. 38-1 at 15.) Defendant contends that Plaintiff’s bad faith actions 15 warrant complete dismissal of the new allegations and claims in his SAC. (Id.) While Defendant 16 may be correct that Plaintiff is attempting to “shore up” his allegations by adding additional 17 visits, the Court declines to attribute a bad faith motive to Plaintiff’s efforts at this juncture. This 18 factor therefore does not weigh against amendment. 19 Futility 20 The Ninth Circuit has articulated the test for futility as when “no set of facts can be proved 21 under the amendment to the pleadings that would constitute a valid and sufficient claim or 22 defense.” Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018) (citing Sweaney 23 v. Ada County, 119 F.3d 1385, 1393 (9th Cir. 1997)). 24 Defendant contends that Plaintiff’s attempt to add additional visits is futile and does not 25 support standing. Defendant argues that Plaintiff cannot create after-the-fact standing by making 26 additional visits to the stores as standing is assessed under the facts existing when the complaint 27 is filed, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.4 (1992). (Doc. 38-1 at 15- 28 16.) 1 As Defendant indicates, and the district court previously stated, “jurisdiction is to be 2 assessed under the facts existing when the complaint is filed.” Lujan, 504 U.S. at 570 n.4. 3 Consequently, “[t]he requisite personal interest”—standing—“must exist at the commencement 4 of the litigation.” Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 5 189 (2000) (citation omitted); see also Langer v. Kiser, 57 F.4th 1085, 1098 (9th Cir. 2023) 6 (“standing ordinarily depends on the facts that exist at the time the complaint is filed”) (internal 7 quotation marks, citation omitted). 8 The district court previously concluded that Plaintiff’s allegations in the FAC were 9 insufficient to demonstrate that Plaintiff suffered an injury-in-fact. (Doc. 36 at p. 12.) Because 10 standing is based on the time of filing the action (or in the case of the El Centro store, the time of 11 filing the FAC on April 13, 2022), Plaintiff’s allegations regarding return or subsequent visits to 12 the Bakersfield store on November 17, 2022, or the El Centro store on July 31, 2022, cannot be 13 used to cure the pleading deficiencies relative to an injury-in-fact, i.e., use of a wheelchair during 14 his visits. The Court therefore concludes that this factor weighs against amendment.3 15 Previous Amendments 16 Plaintiff previously amended his complaint by stipulation of the parties. (Doc. 20.) 17 Plaintiff also was granted an additional opportunity by the district court to cure the deficiencies in 18 his complaint relative to his ADA claim. (Doc. 36.) As Plaintiff has had multiple opportunities 19 to amend the complaint, the Court finds that this factor weighs against further amendment. The 20 Court’s discretion to deny an amendment is “particularly broad” where a party has previously 21 amended the pleading. Allen v. Cty. of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). 22 Because the district court was specific about the purpose of the limited leave granted and 23 further leave to amend is not warranted, the Court will recommend that Defendant’s motion to 24 strike be GRANTED and Plaintiff’s (1) two new alleged store visits (see, e.g., Doc. 37 at 8, ¶¶ 26, 25
26 3 In light of the futility of adding additional or subsequent visits to cure standing issues related to injury-in- fact, the Court declines to assess the futility of amendment as to Plaintiff’s state law claims. The Court 27 notes, however, that leave to amend to add state law claims likely would be futile based on the district court’s decision to decline supplemental jurisdiction particularly with respect to the Unruh Act claim. 28 (Doc. 36 at 12-19.) 1 28; 10-13, ¶¶ 35-41; 15-17, ¶¶ 50-56), (2) the Unruh Act claim, and (3) the California Disabled 2 Persons Act claim be STRICKEN from the SAC under Rule 12(f). 3 III. DEFENDANT’S MOTION TO DISMISS 4 A. Legal Standard 5 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and 6 dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts 7 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 8 (9th Cir. 2011) (quotation marks and citations omitted). To survive a motion to dismiss, a 9 complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible 10 on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 11 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; 12 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). “A claim has facial plausibility 13 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 14 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While the 15 plausibility requirement is not akin to a probability requirement, it demands more than “a sheer 16 possibility that a defendant has acted unlawfully.” Id. This plausibility inquiry is “a context- 17 specific task that requires the reviewing court to draw on its judicial experience and common 18 sense.” Id. at 679. 19 In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), 20 the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 21 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins 22 v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 23 1999). However, the court need not credit “labels and conclusions” or “a formulaic recitation of 24 the elements of a cause of action.” See Twombly, 550 U.S. at 555. 25 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 26 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 27 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 28 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 1 B. Analysis 2 Defendant appears to suggest that if the Court grants the motion to strike, then the original 3 claims in the FAC should be dismissed. (See Doc. 38-1 at 1.) However, the Court does not 4 recommend striking the SAC in its entirety, only those allegations related to the second visits to 5 the Bakersfield and El Centro stores, the Unruh Act claim, and the California Disabled Persons 6 Act claim. With those limitations in mind, the Court finds it appropriate to first consider 7 Defendant’s argument that Plaintiff’s SAC should be dismissed in part because it fails to cure the 8 omission of wheelchair use in his original visit to the El Centro store on February 24, 2022, for 9 purposes of standing. 10 1. El Centro Store Visit on February 24, 2022 – No Injury-in-Fact Alleged 11 To show standing, a plaintiff “must demonstrate that he has suffered an injury-in-fact, that 12 the injury is traceable to the [defendant’s] action, and that the injury can be redressed by a 13 favorable decision.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en 14 banc). An injury-in-fact is “an invasion of a legally protected interest which is (a) concrete and 15 particularized, and (b) ‘actual or imminent’ not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. 16 at 560 (omitting internal citations). An injury is “concrete and particularized” when a plaintiff 17 suffers discrimination due to architectural barriers at a public accommodation and those barriers 18 have deterred plaintiff from returning. Doran v. 7-Eleven, 524 F.3d 1034, 1041 (9th Cir. 2008). A 19 plaintiff suffers an “actual and imminent” injury under the ADA when he alleges “(1) that he 20 visited an accommodation in the past; (2) that he was currently deterred from returning to the 21 accommodation because of ADA violations; and (3) that he would return if the ADA violations 22 were remedied.” Id. (citing Molski v. Arby’s Huntington Beach, 359 F. Supp. 2d 938, 947 (C.D. 23 Cal. 2005)). For standing purposes, an ADA plaintiff must allege sufficient facts to demonstrate 24 that an accessibility barrier “interfere[s] with [his] ‘full and equal enjoyment’ of the facility” in 25 question. Chapman, 631 F.3d at 947 (quoting 42 U.S.C. § 12182(a)). A barrier amounts “to such 26 interference if it affects the plaintiff’s full and equal enjoyment of the facility on account of his 27 particular disability.” Id. (emphasis added). 28 In the SAC, Plaintiff alleges he shopped at the Kohl’s El Centro store on February 24, 1 2022. (Doc. 37 at 13, ¶ 42.) On the date of that visit, “Plaintiff requested his son to go into the 2 store to determine whether it was accessible for Plaintiff in his wheelchair. Plaintiff’s son 3 discovered that the Store . . . was not compliant with the disability access laws in conformance 4 with the ADA as it relates to wheelchair users like the Plaintiff.” (Id. at 13, ¶ 44.) “Plaintiff’s 5 son advised that the store was not compliant with the ADA” in the following respects:
6 a. The clear width of accessible routes between rows of merchandise were less than 36 inches. This condition made it more difficult for Plaintiff to move 7 between the rows of merchandise and shop in his wheelchair or with the aid of the prosthesis and the cane. 8 b. Restroom door required greater than 5 lbs of force to open. For reasons stated 9 above, this condition made it more difficult for Plaintiff to open the restroom door to use the facility in his wheelchair or by the use of the prosthesis with 10 the aid of a cane.
11 (Id. at 13-14, ¶ 45.) Plaintiff further alleges that “[u]pon return to the Store . . . Plaintiff will 12 again use his wheelchair.” (Id. at 15, ¶ 47.) 13 While Plaintiff attempts to imply that he shopped in the store and used his wheelchair, the 14 SAC does not specifically allege that Plaintiff used his wheelchair on that date or that he entered 15 the store and encountered barriers. Rather, Plaintiff’s allegations indicate that he requested his 16 son go into the store and relate to information relayed to Plaintiff by his son. Plaintiff’s 17 allegations, without more, are insufficient to demonstrate an injury-in-fact. When a plaintiff fails 18 to plead facts setting forth the barriers encountered, the allegations are insufficient to establish 19 standing. See Chapman, 631 F.3d at 954-55. The Court therefore recommends that Defendant’s 20 motion to dismiss Plaintiff’s allegations and claims related to his February 23, 2022 visit the El 21 Centro store be GRANTED, and those allegations and claims be dismissed without leave to 22 amend as it appears Plaintiff can allege no set of facts to cure the deficiency. 23 2. Threat of Future Harm 24 Defendant alternatively argues that even accepting the new allegations and claims, the 25 SAC should be dismissed because Plaintiff cannot establish standing based on a real and 26 immediate threat of repeated injury. (Doc. 38-1 at 17.) Given the Court’s recommendation that 27 Defendant’s motion to strike be granted and the allegations and claims relating to the El Centro 28 1 store be dismissed, the Court limits its discussion of Defendant’s standing argument to the 2 Bakersfield store.4 3 In addition to pleading an injury-in-fact, an ADA plaintiff’s complaint must also establish 4 standing to pursue injunctive relief, which is the only form of relief available to private ADA 5 plaintiffs. Chapman, 631 F.3d at 946. Standing for injunctive relief requires a plaintiff to 6 demonstrate “a real and immediate threat of repeated injury in the future.” Chapman, 631 F.3d at 7 946; see id. at 949 (“Article III...requires a sufficient showing of likely injury in the future related 8 to the plaintiff's disability to ensure that injunctive relief will vindicate the rights of the particular 9 plaintiff rather than the rights of third parties.” (footnote omitted)). The Ninth Circuit recognized 10 a plaintiff seeking injunctive relief under the ADA can show a likelihood of future injury in one 11 of two ways: (1) by showing “he intends to return to a noncompliant accommodation and is 12 therefore likely to reencounter a discriminatory architectural barrier,” or (2) by demonstrating 13 “sufficient injury to pursue injunctive relief when discriminatory architectural barriers deter him 14 from returning to a noncompliant accommodation.” Id. at 950. 15 a. Intent to Return 16 Intent to return requires a plaintiff to “demonstrate[ ] an intent to return to the geographic 17 area where the accommodation is located and a desire to visit the accommodation if it were made 18 accessible.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008); see 19 also Rutherford v. Evans Hotels, LLC, No. 18-435, 2020 WL 5257868, at *17 (S.D. Cal. Sept. 3, 20 2020) (citations omitted). Courts often examine the following factors to determine “intent to 21 return: (1) the proximity of the place of public accommodation to plaintiff’s residence, (2) 22 plaintiff’s past patronage of defendant’s business, (3) the definitiveness of plaintiff’s plans to 23 return, and (4) the plaintiff’s frequency of travel near defendant.” Rutherford, 2020 WL 5257868, 24 at *17 (quoting Antonio v. Vanareth Kim Yi, No. 2:14-4323, 2015 WL 13603781, at *2 (C.D. Cal. 25 Mar. 4, 2015) (collecting cases)). 26 The SAC’s only non-stricken assertions relevant to this subject is that Plaintiff “will return 27 4 The Court notes that its analysis would be equally applicable as to both the Bakersfield store and the El 28 Centro store. 1 to the Stores yet again . . . to avail himself of its goods and services and to determine compliance 2 with the disability access law once it is represented to him that the Stores in issue here . . . are 3 accessible.” (Doc. 37 at 18, ¶ 61.) A blanket allegation that Plaintiff intends to return to the 4 store, without more, is insufficient. See Gastelum v. Burlington Stores, Inc., No. 23-CV-2091- 5 CAB-DEB, 2024 WL 389229, at *3 (S.D. Cal. Feb. 1, 2024). In his opposition, Plaintiff argues 6 that his second visit to the store “confirms his actual intent to return.” (Doc. 40 at 11.) However, 7 even if the Court considered Plaintiff’s past patronage, there is no indication of how regularly 8 Plaintiff visits the Bakersfield area (or El Centro area) from Arizona or that he would return to the 9 area on any particular future date. “Regarding the first factor, generally, if the plaintiff resides 10 over one hundred miles away from the place of public accommodation, ‘the distance subverts a 11 professed intent to return.’ ” Strojnik v. Four Sisters Inns, Inc., No. 2:19-CV 02991 ODW JEMX, 12 2019 WL 6700939, at *4 (C.D. Cal. Dec. 9, 2019) (quoting Antonio v. Yi, No. 2:14-CV-04323- 13 SVW (ASx), 2015 WL 13603781, at *2 (C.D. Cal. Mar. 4, 2015). Thus, the Court finds that the 14 SAC does not sufficiently allege an intent to return. 15 b. Deterrence 16 Alternatively, an ADA plaintiff who “has visited a public accommodation on a prior 17 occasion demonstrates a real and immediate threat if he is currently deterred from visiting that 18 accommodation by accessibility barriers.” Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 19 753 F.3d 862, 867 (9th Cir. 2014) (citation omitted). Notably, “[t]o establish standing based on 20 deterrence, an ADA plaintiff must demonstrate that he would return but for the barrier.” Feezor v. 21 Sears, Roebuck & Co., 608 F. App’x 476, 477 (9th Cir. 2015); see also Doran, 524 F.3d at 1041 22 (“Allegations that a plaintiff has visited a public accommodation on a prior occasion and is 23 currently deterred from visiting that accommodation by accessibility barriers establish that a 24 plaintiff’s injury is actual or imminent”) (citing Pickern v. Holiday Quality Foods Inc., 293 F.3d 25 1133, 1138 (9th Cir. 2002)). Conclusory allegations of deterrence are insufficient. Feezor, 608 26 Fed. App’x at 477; see also Gastelum v. Tc Heritage Inn 2 of Bakersfield LLC, No. 1:21-cv-1230- 27 JLT-BAK (SAB), 2022 WL 541791, at *10 (E.D. Cal. Feb. 23, 2022) (“Conclusory allegations of 28 deterrence, however, are insufficient.”); Strojnik v. Bakersfield Convention Hotel I, LLC, 436 F. 1 Supp. 3d 1332, 1341 (E.D. Cal. 2020) (“conclusory assertions that an ADA plaintiff ... is deterred 2 from returning to a place are insufficient”). A plaintiff must allege more, such as frequency of 3 travel to a region or concrete travel plans, to support a determination that he is deterred from a 4 return due to the alleged barriers. See, e.g., Strojnik, 436 F. Supp. 3d at 1341-42; Whitaker v. 5 Ramon Bravo, Inc., No. 21-cv-03714-JCS, 2021 WL 4133871, at *4 (N.D. Cal. Sept. 10, 2021) 6 (finding a plaintiff sufficiently alleged imminent future injury based on allegations that he is an 7 ADA tester who frequently travels to the Bay Area, including the Redwood City area where the 8 restaurant was located). 9 Defendant presents no specific argument regarding deterrence, maintaining only that “the 10 SAC does not show that Plaintiff is deterred.” (Doc. 38-1 at 8.) Notwithstanding the perfunctory 11 argument, Defendant contends that Plaintiff fails to sufficiently allege a real and immediate threat 12 of repeated injury in the future. As deterrence is one means of establishing likelihood of future 13 injury, the Court will consider whether Plaintiff’s allegations are sufficient to support a 14 conclusion that he is deterred from returning to the Bakersfield store. 15 In the SAC, Plaintiff alleges that he “will return to the Stores yet again . . . to avail himself 16 of its goods and services and to determine compliance with the disability access laws once it is 17 represented to him that the Stores in issue here … are accessible.” (Doc. 37 at 18, ¶ 61.) Plaintiff 18 also alleges he “is currently deterred” from returning “because of his knowledge of the existing 19 barriers at the Stores that deny him full and equal access.” (Id. at ¶ 62.) Because Plaintiff offers 20 no more than a conclusory statement that he will return to the Bakersfield store (or El Centro 21 area) once it is represented to him that the store is accessible, he fails to allege facts sufficient to 22 support a conclusion that he has standing due to deterrence. See Feezor, 608 Fed. App’x at 477; 23 Strojnik, 436 F. Supp. 3d at 1341; Gastelum, 2022 WL 541791, at *10. 24 Accordingly, the Court recommends that Defendant’s motion to dismiss the remaining 25 allegations and claims in the SAC be GRANTED based on lack of standing. The Court finds that 26 further leave to amend is not warranted for the reasons discussed in the Court’s Rule 15 analysis. 27 /// 28 /// 1 IV. CROSS-MOTIONS FOR SUMMARY JUDGMENT 2 A. Defendant’s Motion for Summary Judgment and Dismissal 3 As a final matter, Defendant contends that if the Court has not determined to dismiss 4 and/or strike the entirety of Plaintiff SAC, then “the Court should grant judgment in Defendant’s 5 favor on Plaintiff’s new allegations in the SAC and dismiss the remainder of the SAC with 6 prejudice pursuant its inherent power to sanction egregious litigation conduct.” (Doc. 38-1 at 23.) 7 Based on the Court’s recommendations, it is unnecessary to reach Defendant’s alternative 8 argument that summary judgment should be granted. The Court will therefore recommend 9 Defendant’s motion for summary judgment be DENIED as moot. 10 B. Plaintiff’s Cross Motion for Summary Judgment 11 Plaintiff filed a cross motion for summary judgment based on reportedly “indisputable 12 statement of facts” in his verified SAC that includes purported photographs of Kohl’s stores. 13 (Doc. 40 at 6.) Given the Court’s recommendations herein, the Court also will recommend that 14 Plaintiff’s motion for summary judgment be DENIED as moot. 15 V. CONCLUSION AND RECOMMENDATION 16 Based on the foregoing, IT IS HEREBY RECOMMENDED as follows: 17 1. Defendant’s motion to strike be GRANTED. 18 2. Plaintiff’s (1) two new alleged store visits (see Doc. 37 at 8, ¶¶ 26, 28; 10-13, ¶¶ 19 35-41; 15-17, ¶¶ 50-56), (2) the Unruh Act claim, and (3) the California Disabled 20 Persons Act claim be STRICKEN from the SAC under Rule 12(f). 21 3. Defendant’s motion to dismiss Plaintiff’s allegations and claims related to his 22 February 23, 2022 visit the El Centro store be GRANTED, and those allegations 23 and claims be dismissed without leave to amend. 24 4. Defendant’s motion to dismiss the remaining allegations and claims in the SAC be 25 GRANTED based on lack of standing without further leave to amend. 26 5. Defendant’s alternative motion for summary judgment be DENIED as moot. 27 6. Plaintiff’s cross-motion for summary judgment (Doc. 40) be DENIED as moot. 28 /// 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 3 being served with these findings and recommendations, the parties may file written objections 4 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendations.” The parties are advised that the failure to file objections within the 6 specified time may result in the waiver of the “right to challenge the magistrate’s factual 7 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 8 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 IT IS SO ORDERED. 10
11 Dated: March 8, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12
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