Gastelum v. Pinnacle Hotel Circle LP

• Court: District Court, S.D. California
• Decided: May 20, 2022
• Docket: 3:21-cv-01458
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No.: 21-CV-1458 JLS (DEB)

12 Plaintiff, ORDER (1) DENYING DEFENDANT’S 13 v. REQUEST FOR JUDICIAL NOTICE; (2) DENYING AS MOOT 14 PINNACLE HOTEL CIRCLE LP, dba DEFENDANT’S EVIDENTIARY Comfort Inn and Suites San Diego Zoo 15 OBJECTIONS; AND (3) GRANTING SeaWorld Area, DEFENDANT’S MOTION TO 16 Defendant. DISMISS 17 (ECF Nos. 3, 3-4, 8) 18 19 20 Presently before the Court are Defendant Pinnacle Hotel Circle LP’s Motion to 21 Dismiss for Lack of Standing (“Mot.,” ECF No. 3) and Request for Judicial Notice (“RJN,” 22 ECF No. 3-4). Plaintiff Fernando Gastelum filed an Opposition to the Motion (“Opp’n,” 23 ECF No. 6) and the Declaration of Fernando Gastelum (“Gastelum Decl.,” ECF No. 6 at 24 9–16), and Defendant filed a Reply in Support of the Motion (“Reply,” ECF No. 7) and 25 Evidentiary Objections to Plaintiff’s Declaration (“Objs.,” ECF No. 8). The Court took 26 the matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). 27 See ECF No. 9. Having carefully reviewed Plaintiff’s Complaint (“Compl.,” ECF No. 1), 28 the Parties’ arguments, and the law, the Court DENIES Defendant’s Request for Judicial 1 Notice, DENIES AS MOOT Defendant’s Evidentiary Objections, and GRANTS the 2 Motion. 3 BACKGROUND 4 Plaintiff is sixty-one years old, is missing a leg, and must use a wheelchair for 5 mobility. Compl. ¶ 1. Plaintiff does not allege where he resides in the Complaint; however, 6 the caption of his Complaint lists Plaintiff’s address as being in Casa Grande, Arizona. Id. 7 at 1; see also Docket (identifying Casa Grande, Arizona, as Plaintiff’s mailing address). 8 Defendant owns or operates a hotel located at 2485 Hotel Circle Place, San Diego, 9 California 92108 (the “Hotel”). Compl. ¶ 2. Plaintiff visited the Hotel on July 2, 2021, at 10 which time he discovered it was compliant with neither the Americans with Disabilities 11 Act (“ADA”) nor state law. Id. ¶¶ 3–4. Specifically, the Hotel’s access aisle slope is too 12 steep and does not connect to an accessible route, and a curb ramp is located on the 13 accessible parking access aisle. Id. ¶ 4(a)–(c). These conditions denied Plaintiff equal 14 access to the Hotel. Id. ¶ 5. Plaintiff notes he will not “want to revisit” to the Hotel 15 “because it is not fully compliant with the Americans with Disabilities Act and the 16 California’s civil rights laws and California civil rights laws.” Id. ¶ 6. Plaintiff requests 17 an injunction requiring Defendant to comply with state and federal law, his costs and 18 expenses, and “[d]amages under California law for $4,000 per violation.” Id. at 2 (“Relief 19 I Request”). 20 LEGAL STANDARD 21 Federal courts are courts of limited jurisdiction and, as such, have an obligation to 22 dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, 23 718 F.2d 964, 965 (9th Cir. 1983). Because the issue of standing pertains to the subject- 24 matter jurisdiction of a federal court, motions raising lack of standing are properly brought 25 under Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th 26 Cir. 2000). The plaintiff bears the burden of establishing he has standing to bring the claims 27 asserted. Takhar v. Kessler, 76 F.3d 995, 1000 (9th Cir. 1996); see also In re Dynamic 28 Random Access Memory Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) (“The party 1 asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a 2 motion to dismiss for lack of subject matter jurisdiction.”). 3 Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for 4 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger 5 asserts that the allegations contained in a complaint are insufficient on their face to invoke 6 federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the 7 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. 8 ANALYSIS 9 Here, Defendant argues that Plaintiff lacks standing because he does not allege a 10 bona fide intent to return to the hotel.1 See Mot. at 5–9. Accordingly, the Court will assume 11 the truth of Plaintiff’s factual allegations and draw all reasonable inferences in favor of 12 Plaintiff.2 Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005); Safe Air for 13 Everyone, 373 F.3d at 1039. 14 I. Standing 15 “A party invoking federal jurisdiction has the burden of establishing that [he] has 16 satisfied the ‘case-or-controversy’ requirement of Article III of the Constitution; standing 17 is a ‘core component’ of that requirement.” D’Lil v. Best W. Encina Lodge & Suites, 538 18 19 20 1 Additionally, Defendant makes a factual attack on Plaintiff’s Complaint. See generally Mot. Defendant argues that Plaintiff’s Complaint “misrepresent[s] his disabilities and the barriers that he claims to have 21 experienced.” Mot. at 1. Defendant argues that Plaintiff is not exclusively a wheelchair user because he “also uses a cane.” Id. at 16. Defendant contends that Plaintiff “might have had a part of his left leg 22 amputated, [but] he was certainly walking without any difficulty at all[.]” Id. Defendant also attacks Plaintiff’s credibility, see id. at 12–15, and requests the Court take judicial notice of Plaintiff’s litigation 23 history in federal court and complaints he filed in other actions, see RJN. As the Court finds that Plaintiff 24 has not pleaded adequate facts to establish standing or state a claim under the ADA or the Unruh Act on the face of the Complaint, see infra, the Court declines to reach these arguments and DENIES Defendant’s 25 Request for Judicial Notice (ECF No. 3-4).

26 2 In light of this, the Court need not, and thus declines to, consider any evidence outside of Plaintiff’s Complaint, including the Declaration of Fernando Gastelum, which aims to substantiate various 27 allegations in the Complaint. See generally Gastelum Decl. As the Court does not rely on Plaintiff’s 28 Declaration, the Court therefore DENIES AS MOOT Defendant’s Evidentiary Objections to Plaintiff’s 1 F.3d 1031, 1036 (9th Cir. 2008) (citation omitted). Further, courts “have an independent 2 obligation ‘to examine jurisdictional issues such as standing [sua sponte].’” Wilson v. 3 Lynch, 835 F.3d 1083, 1091 (9th Cir. 2016) (alteration in original) (quoting B.C. v. Plumas 4 Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999)). “Only injunctive relief is 5 available under Title III of the ADA.” Barnes v. Marriott Hotel Servs., Inc., No. 15-CV- 6 01409-HRL, 2017 WL 635474, at *7 (N.D. Cal. Feb. 16, 2017). To establish standing to 7 seek injunctive relief, a plaintiff must show that “he [i]s likely to suffer future injury.” See 8 City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “[A]n ADA plaintiff can establish standing 9 to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury- 10 in-fact coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1 11 Imports, Inc., 631 F.3d 939, 944 (9th Cir. 2011). “‘[S]ome day’ intentions [to return to a 12 noncompliant facility] . . . are insufficient to establish standing.” Barnes, 2017 WL 13 635474, at *7. An ADA plaintiff therefore “lacks standing if he is indifferent to returning 14 to the store or if his alleged intent to return is not genuine.” Chapman, 631 F.3d at 953. 15 Further, an ADA plaintiff cannot establish standing by alleging an injury “based only on 16 conclusory statements unsupported by specific facts.” Barnes, 2017 WL 635474, at *7. 17 Here, Plaintiff has failed to allege an intent to return to the Hotel. See generally 18 Compl. Accordingly, Plaintiff lacks standing, and therefore the Court lacks subject-matter 19 jurisdiction over Plaintiff’s ADA claim and must dismiss it. See Langer v. YM Holdings, 20 LLC, No. 18-CV-1114 JLS (KSC), 2020 WL 3498165, at *4 (S.D. Cal. June 29, 2020) 21 (dismissing ADA complaint for lack of subject-matter jurisdiction premised on lack of 22 standing). 23 The Court further notes that, even if Plaintiff cures this basic pleading deficiency, 24 issues may persist later in this action with regard to establishing a genuine intent to return, 25 given that the Hotel is located in San Diego, California, see Compl. ¶ 2, while Plaintiff 26 apparently resides some distance away in Casa Grande, Arizona. “In determining whether 27 a plaintiff’s likelihood of return is sufficient to confer standing, courts have examined 28 factors including: (1) the proximity of the business to the plaintiff’s residence, (2) the 1 plaintiff’s past patronage of the business, (3) the definitiveness of the plaintiff’s plans to 2 return, and (4) the plaintiff’s frequency of travel near the defendant.” Crandall v. Starbucks 3 Corp., 249 F. Supp. 3d 1087, 1106 (N.D. Cal. 2017) (citation and footnote omitted). When 4 evaluating whether the intent to return is genuine, “a court must engage in a fact-intensive 5 inquiry to determine whether the plaintiff . . . would return to the establishment if the 6 establishment were compliant with the ADA.” Vogel v. Salazar, No. SACV 14-00853- 7 CJC (DMFx), 2014 WL 5427531, at *2 (C.D. Cal. Dec. 9, 2014). 8 Unlike cases in which courts typically find a genuine intent to return, Plaintiff has 9 not pled specific facts evidencing a genuine desire to return to the Hotel. Compare, e.g., 10 Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1040–41 (9th Cir. 2008) (holding plaintiff had 11 standing where he alleged he had visited a store on ten to twenty prior occasions, the store 12 was near his favorite fast food restaurant in Anaheim, he visited Anaheim at least once a 13 year, and he was deterred from visiting the store because of accessibility barriers), and 14 Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1079 (D. Haw. 2000) (finding future 15 injury likely where plaintiff lived close to the restaurant, enjoyed the taste of a restaurant’s 16 food, had visited other restaurants in the chain, and intended to visit the restaurant in the 17 future), with Vogel, 2014 WL 5427531, at *2 (plaintiff lacked standing where he “merely 18 attest[ed] that because of ‘physical and intangible’ barriers, he has been ‘deterred’ and 19 ‘continues to be deterred from visiting the Restaurant’”), and Strojnik v. Bakersfield 20 Convention Hotel I, LLC, 436 F. Supp. 3d 1332, 1342 (E.D. Cal. 2020) (finding plaintiff 21 lacked standing to bring ADA claim against hotel when he did not allege concrete plans to 22 travel to the property). Plaintiff gives no reasons why he would return to San Diego, or 23 why he would patronize Defendant, rather than neighboring hotels. Indeed, Plaintiff offers 24 no factual details showing an intent to patronize the Hotel in the first instance, making his 25 allegation wholly conclusory. Cf. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 26 1138 (9th Cir. 2002) (finding standing where plaintiff alleged a preference to shop at the 27 defendant’s grocery stores over other grocery chains). Given the conclusory nature of 28 /// 1 Plaintiff’s allegations, the Court finds that Plaintiff has not demonstrated a genuine intent 2 to return as a customer. 3 Plaintiff contends that even if he has not shown an intent to return as a customer, he 4 may still show what is known as “tester standing.” See Opp’n at 2. Regardless of 5 Plaintiff’s motivation, “tester status, alone, is not enough to confer standing.” See Johnson 6 v. Alhambra & O Assocs., No. 2:19-CV-00103-JAM-DB, 2019 WL 2577306, at *3 (E.D. 7 Cal. June 24, 2019) (discussing ADA standing under C.R. Educ. & Enf’t Ctr. v. Hosp. 8 Properties Tr., 867 F.3d 1093 (9th Cir. 2017)). Thus, even if Plaintiff is alleging tester 9 standing, he must still show an “intent to visit [Comfort Inn and Suites San Diego Zoo 10 SeaWorld Area] once they provide [accessible parking and an accessible pathway] for the 11 disabled . . . .” See C.R. Educ. & Enf’t Ctr., 867 F.3d at 1099. Indeed, the Ninth Circuit 12 implied that even when tester standing is alleged, district courts must make a “case-by- 13 case” determination of whether a plaintiff’s injury is imminent, including “whether a 14 plaintiff suing under the ADA . . . was likely to actually visit” the complained of business. 15 See id. at 1100 (citing Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335–37 (11th 16 Cir. 2013) (noting various factors to determine whether a plaintiff had intent to return, 17 “including prior visits, proximity of residence to store, plans for future visits, and status as 18 an ‘ADA tester who has filed many similar lawsuits’”)). 19 As with Plaintiff’s motivation to return as a customer, the Court finds Plaintiff’s 20 intent to return as a tester to be lacking. Plaintiff gives no specific reason to visit the Hotel, 21 even for the sole purpose of assessing compliance. Cf. Houston, 733 F.3d at 1336 (finding 22 ADA tester was likely to return to noncompliant business because it was located near the 23 plaintiff’s lawyer’s office, and plaintiff intended to visit the office “in the near future”). 24 Notably, Plaintiff appears to be a resident of Arizona, see Compl. at 1, making it impossible 25 for the Court to determine whether his proximity to the business makes it likely he will 26 “return to the business to assess ongoing compliance with the ADA.” See D’Lil, 538 F.3d 27 at 1037 (noting that where a plaintiff’s home is far from the public accommodation, he 28 must “demonstrate[ ] an intent to return to the geographic area where the accommodation 1 is located”). Because Plaintiff has not alleged a sufficient intent to return, the Court finds 2 that Plaintiff has failed to allege standing. 3 Having found that Plaintiff lacks standing to pursue his ADA claims, the Court 4 declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law claim(s). 5 See, e.g., Barnes, 2017 WL 635474, at *13 (declining to exercise supplemental jurisdiction 6 under 28 U.S.C. § 1367(c) over remaining state law claim after dismissing ADA claim for 7 lack of standing). 8 II. ADA Claim 9 Even were standing not an issue, Plaintiff fails to state a claim under the ADA. Title 10 III of the ADA prohibits discrimination by places of public accommodation. Vogel v. Rite 11 Aid Corp., 992 F. Supp. 2d 998, 1007 (C.D. Cal. 2014). “To prevail on a Title III 12 discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning 13 of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 14 public accommodation; and (3) the plaintiff was denied public accommodations by the 15 defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th 16 Cir. 2007). Where, as here, the plaintiff seeks to establish discrimination based on an 17 architectural barrier, “the plaintiff must also prove that: (1) the existing facility at the 18 defendant’s place of business presents an architectural barrier prohibited under the ADA, 19 and (2) the removal of the barrier is readily achievable.” Parr, 96 F. Supp. 2d at 1085 20 (citing Gilbert v. Eckerd Drugs, No. CIV. A. 97–3118, 1998 WL 388567, at *2 (E.D. La. 21 July 8, 1998)). 22 First, the ADA defines a disability as “a physical or mental impairment that 23 substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Walking 24 is considered a “major life activit[y].” 42 U.S.C. § 12102(2)(A). Plaintiff is missing a leg 25 and must use a wheelchair for mobility, Compl. ¶ 1, and therefore he alleges that he is 26 disabled within the meaning of the ADA. See, e.g., Lozano v. C.A. Martinez Fam. Ltd. 27 P’ship, 129 F. Supp. 3d 967, 972 (S.D. Cal. 2015) (concluding plaintiff who could not walk 28 and used a wheelchair for mobility was “disabled” within the meaning of the ADA). 1 Second, Plaintiff adequately alleges that Defendant’s Hotel is a place of public 2 accommodation. Plaintiff asserts that Defendant owns or operates the Hotel, see Compl. 3 ¶ 2, and “an inn, hotel, motel, or other place of lodging” is a place of public accommodation 4 as defined within the ADA. 42 U.S.C. § 12181(7)(A). 5 As to the third and final element, Plaintiff alleges that he was denied access to the 6 Hotel due to ADA-prohibited architectural barriers. See, e.g., Compl. ¶ 4(a) (alleging curb 7 ramp is located on accessible parking access aisle); 36 C.F.R. Pt. 1191, App. D, § 406.5 8 (requiring curb ramps to not project into parking access aisles); Compl. ¶ 4(b) (alleging 9 access aisle does not connect to an accessible route); 36 C.F.R. Pt. 1191, App. D, § 502.3 10 (requiring access aisles to adjoin to an accessible route); Compl. ¶ 4(c) (alleging access 11 aisle slope is too steep); 36 C.F.R. Pt. 1191, App. D, § 502.4 (requiring access aisle be the 12 same level as the parking spaces it serves). However, Plaintiff fails to allege that removal 13 of these barriers is readily achievable. See generally Compl. Accordingly, Plaintiff fails 14 to state a claim under the ADA. 15 III. State Law Claim(s) 16 Plaintiff references violations of California law but does not specifically identify the 17 law(s) at issue. Given, however, Plaintiff’s request for “[d]amages under California law 18 for $4,000 per violation,” Compl. at 2, the Court presumes Plaintiff seeks to assert a claim 19 under California’s Unruh Act. See Cal. Civ. Code § 52 (providing statutory damages of 20 $4,000 for violations of, inter alia, the Unruh Act). 21 The Unruh Act states that “[a]ll persons within the jurisdiction of this state are free 22 and equal, and no matter what their . . . disability . . . are entitled to the full and equal 23 accommodations, advantages, facilities, privileges, or services in all business 24 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). A violation of the ADA 25 is also necessarily a violation of the Unruh Act. Cal. Civ. Code § 51(f); Vogel, 992 F. 26 Supp. 2d at 1011. Because Plaintiff does not sufficiently allege an ADA claim, see supra 27 Section II, he also fails to allege an Unruh Act claim. 28 /// 1 CONCLUSION 2 In light of the foregoing, the Court DENIES Defendant’s Request for Judicial Notice 3 || ECF No. 3-4), DENIES AS MOOT Defendant’s Evidentiary Objections (ECF No. 8), 4 |jand GRANTS Defendant’s Motion to Dismiss (ECF No. 2). The Court DISMISSES 5 || WITHOUT PREJUDICE Plaintiff's Complaint (ECF No. 1). The Court grants Plaintiff 6 || thirty (30) days from the date on which this Order is electronically docketed in which to 7 an amended complaint curing the deficiencies of pleading noted herein. Should 8 || Plaintiff fail to file an amended complaint in accordance with this Order, the Court will 9 || enter a final order dismissing this civil action without prejudice based on Plaintiff's failure 10 prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 11 }}427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 12 || opportunity to fix his complaint, a district court may convert the dismissal of the complaint 13 dismissal of the entire action.’’). 14 IT IS SO ORDERED. 15 Dated: May 20, 2022 . tt f te 16 on. Janis L. Sammartino 7 United States District Judge 18 19 20 21 22 23 24 25 26 27 28