1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 GERARDO HERNANDEZ, Case No. 20-cv-07432-LB
12 Plaintiff, ORDER DENYING MOTION TO 13 v. DISMISS FOR MOOTNESS WITHOUT PREJUDICE 14 SANDHU BROTHERS LIQUOR INC., et al., Re: ECF No. 15 15 Defendants. 16 17 INTRODUCTION 18 Plaintiff Gerardo Hernandez — who uses a wheelchair for mobility — encountered barriers at 19 Mission Food & Liquor in the form of a lack of accessible parking and a route of travel to the 20 business’s entrance that had uneven asphalt and an improperly configured ramp. He sued the 21 defendants, claiming violations of the Americans with Disabilities Act (ADA) and California law.1 22 The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) on the ground 23 that the ADA claim is moot because it remediated the barriers.2 The court denies the motion to 24 dismiss for mootness in part because the declarations do not establish definitively that all barriers 25 26 27 1 Compl. – ECF No. 1 at 4–8 (¶¶ 16–46). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 have been remediated and in part to allow the plaintiff to counter the defendants’ extrinsic 2 evidence. The court allows jurisdictional discovery to resolve the jurisdictional facts.3 3 4 STATEMENT 5 On August 3, 2020, Mr. Hernandez visited Mission Food & Liquor (located in a commercial 6 building in Union City) to purchase snacks and encountered the following barriers that interfered 7 with his ability to “use and enjoy the goods, services, privileges, and accommodations offered” at 8 the store: 9 a) The plaintiff could not locate any accessible parking in the Facility’s parking lot and had to park in a standard stall, which was more difficult due to the lack of an access aisle within 10 which to unload into his wheelchair. 11 b) The route of travel from Plaintiff’s vehicle to the Facility entrance contained uneven asphalt and an improperly configured ramp, which made it difficult for Plaintiff to 12 maneuver his wheelchair to and from the entrance.4 13 The defendants contend that they remediated both barriers and submitted declarations to 14 support that contention.5 15 The building is owned by a living trust that also is a named defendant.6 (Family members 16 bought the property as tenants in common in 1986 and transferred the property into the trust in 17 1995.7) In 1987, the owners engaged an architect to remodel the 1500-square-foot commercial 18 space to add a 1000-square-foot addition and a “concrete handicapped accessible ramp and [a] 19 dedicated parking spot adjoining this ramp with attendant signage.” The architect designed the 20
21 3 The plaintiff does not dispute that he should have sued Surjit Sandhu, who is the tenant on the commercial lease, not Sandhu Brothers Liquor, and asks for leave to amend. Mot. – ECF No . 15-1 at 22 11–13; Sandhu Decl. – ECF No. 15-5 at 2 (¶¶ 3–5); Betchart Decl. – ECF No. 15-2 at 2 (¶ 11); Commercial Lease, Ex. A to Betchart Decl. – ECF No. 15-2 at 6, 11, 12; Opp’n – ECF No. 18 at 9. 23 The court grants leave to amend. 24 4 Compl. – ECF No. 1 at 3 (¶ 10(a)–(b)). 5 The parties dispute whether the court may consider the evidence submitted by the defendants on a 25 motion to dismiss. Opp’n – ECF No. 18 at 6–7; Reply – ECF No. 20 at 2–3. As discussed below, the court can consider the defendants’ evidence in support of their jurisdictional challenge to the 26 complaint. Johnson v. Case Ventures, LLC, No. 5:19-CV-02876-EJD, 2020 WL 4747908, at *2 (N.D. Cal. Aug. 17, 2020) (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). 27 6 Compl. – ECF No. 1 at 2 (¶ 2); Betchart Decl. – ECF No. 15-2 at 2 (¶ 2). 1 project “to code” and was responsible for ensuring that the construction was “properly permitted 2 and designed within strict California guidelines for disabled patrons.” “Every effort was made to 3 comply with the accessibility requirements in both [the architect’s] plans and in the actual 4 construction.” “[A]ll aspects of the construction were permitted, inspected, and approved by the 5 Building Department of the City of Union City, California.” The renovation work was completed 6 in 1989, and the relevant authorities “signed off” on the permits for the completed remodel.8 7 In a supplemental declaration, the architect submitted the parking-space measurements that he 8 used and that California law required (because the ADA — enacted July 26, 1990 — was not yet 9 in effect).9 That diagram shows that the parking spot is nine-feet wide (108 inches) with an 10 adjacent aisle that is five-feet wide (60 inches).10 11 In early 2020, the trust did maintenance work on the parking lot. The surface paving “had 12 become cracked and was slightly uneven (but not to the point that a physically challenged person 13 could not navigate into the building).” The “Handicapped Only” parking sign had been stolen. The 14 trust’s plan was to fix the paving repairs and then repaint the (now faint but still visible) parking 15 lines and replace the sign. The parking spot remained usable. The trust hired a paving company 16 that “essentially walked off the job” after the pandemic hit (pending CDC guidance about how to 17 keep its employees safe). The trust tried to find a company to complete the work, was unsuccessful 18 initially, and ultimately — by November 2020 — was able to repave the handicapped space, 19 repaint the stripes, and install a new handicapped parking sign. (The trust was served with the 20 lawsuit on November 11, 2020.)11 The trust submitted a photograph taken on February 21, 2021 21 showing the parking space and sign and “demonstrate[ing] that the handicapped parking space — 22 lines, ramp, and signage — have been repaired.”12 23 24 8 Id. (¶¶ 4–10); McGillis Decl. – ECF No. 15-4 at 2–3 (¶¶ 5–11). 25 9 McGillis Supp. Decl. – ECF No. 20-1 at 2 (¶¶ 4–6); Parking Schematic, Ex. A to id. – ECF No. 20-1 26 at 4–5. 10 Parking Schematic, Ex. A to id. – ECF No. 20-1 at 4–5. 27 11 Betchart Decl. – ECF No. 15-2 at 3 (¶¶ 13–21). 1 Mr. Hernandez filed this lawsuit, claiming violations of the ADA and California law.13 The 2 defendants moved to dismiss the complaint under Rule 12(b)(1) on the ground that the ADA 3 claims are moot, and the court thus lacks jurisdiction over the state-law claims.14 The court held a 4 hearing on March 25, 2021. All parties consented to magistrate-judge jurisdiction.15 5 6 LEGAL STANDARD 7 A complaint will be dismissed if, looking at the complaint as a whole, it lacks federal 8 jurisdiction “facially” or “factually.” Thornhill Pub’g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 9 F.2d 730, 733 (9th Cir. 1979). When the complaint is challenged for lack of subject-matter 10 jurisdiction on its face, all material allegations in the complaint will be taken as true and construed 11 in the light most favorable to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 12 But in deciding a Rule 12(b)(1) motion which mounts a factual attack on jurisdiction, “no 13 presumption of truthfulness attaches to plaintiff’s allegations, and the existence of disputed material 14 facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. 15 Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Mortensen 16 v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); see St. Clair v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 GERARDO HERNANDEZ, Case No. 20-cv-07432-LB
12 Plaintiff, ORDER DENYING MOTION TO 13 v. DISMISS FOR MOOTNESS WITHOUT PREJUDICE 14 SANDHU BROTHERS LIQUOR INC., et al., Re: ECF No. 15 15 Defendants. 16 17 INTRODUCTION 18 Plaintiff Gerardo Hernandez — who uses a wheelchair for mobility — encountered barriers at 19 Mission Food & Liquor in the form of a lack of accessible parking and a route of travel to the 20 business’s entrance that had uneven asphalt and an improperly configured ramp. He sued the 21 defendants, claiming violations of the Americans with Disabilities Act (ADA) and California law.1 22 The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) on the ground 23 that the ADA claim is moot because it remediated the barriers.2 The court denies the motion to 24 dismiss for mootness in part because the declarations do not establish definitively that all barriers 25 26 27 1 Compl. – ECF No. 1 at 4–8 (¶¶ 16–46). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 have been remediated and in part to allow the plaintiff to counter the defendants’ extrinsic 2 evidence. The court allows jurisdictional discovery to resolve the jurisdictional facts.3 3 4 STATEMENT 5 On August 3, 2020, Mr. Hernandez visited Mission Food & Liquor (located in a commercial 6 building in Union City) to purchase snacks and encountered the following barriers that interfered 7 with his ability to “use and enjoy the goods, services, privileges, and accommodations offered” at 8 the store: 9 a) The plaintiff could not locate any accessible parking in the Facility’s parking lot and had to park in a standard stall, which was more difficult due to the lack of an access aisle within 10 which to unload into his wheelchair. 11 b) The route of travel from Plaintiff’s vehicle to the Facility entrance contained uneven asphalt and an improperly configured ramp, which made it difficult for Plaintiff to 12 maneuver his wheelchair to and from the entrance.4 13 The defendants contend that they remediated both barriers and submitted declarations to 14 support that contention.5 15 The building is owned by a living trust that also is a named defendant.6 (Family members 16 bought the property as tenants in common in 1986 and transferred the property into the trust in 17 1995.7) In 1987, the owners engaged an architect to remodel the 1500-square-foot commercial 18 space to add a 1000-square-foot addition and a “concrete handicapped accessible ramp and [a] 19 dedicated parking spot adjoining this ramp with attendant signage.” The architect designed the 20
21 3 The plaintiff does not dispute that he should have sued Surjit Sandhu, who is the tenant on the commercial lease, not Sandhu Brothers Liquor, and asks for leave to amend. Mot. – ECF No . 15-1 at 22 11–13; Sandhu Decl. – ECF No. 15-5 at 2 (¶¶ 3–5); Betchart Decl. – ECF No. 15-2 at 2 (¶ 11); Commercial Lease, Ex. A to Betchart Decl. – ECF No. 15-2 at 6, 11, 12; Opp’n – ECF No. 18 at 9. 23 The court grants leave to amend. 24 4 Compl. – ECF No. 1 at 3 (¶ 10(a)–(b)). 5 The parties dispute whether the court may consider the evidence submitted by the defendants on a 25 motion to dismiss. Opp’n – ECF No. 18 at 6–7; Reply – ECF No. 20 at 2–3. As discussed below, the court can consider the defendants’ evidence in support of their jurisdictional challenge to the 26 complaint. Johnson v. Case Ventures, LLC, No. 5:19-CV-02876-EJD, 2020 WL 4747908, at *2 (N.D. Cal. Aug. 17, 2020) (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). 27 6 Compl. – ECF No. 1 at 2 (¶ 2); Betchart Decl. – ECF No. 15-2 at 2 (¶ 2). 1 project “to code” and was responsible for ensuring that the construction was “properly permitted 2 and designed within strict California guidelines for disabled patrons.” “Every effort was made to 3 comply with the accessibility requirements in both [the architect’s] plans and in the actual 4 construction.” “[A]ll aspects of the construction were permitted, inspected, and approved by the 5 Building Department of the City of Union City, California.” The renovation work was completed 6 in 1989, and the relevant authorities “signed off” on the permits for the completed remodel.8 7 In a supplemental declaration, the architect submitted the parking-space measurements that he 8 used and that California law required (because the ADA — enacted July 26, 1990 — was not yet 9 in effect).9 That diagram shows that the parking spot is nine-feet wide (108 inches) with an 10 adjacent aisle that is five-feet wide (60 inches).10 11 In early 2020, the trust did maintenance work on the parking lot. The surface paving “had 12 become cracked and was slightly uneven (but not to the point that a physically challenged person 13 could not navigate into the building).” The “Handicapped Only” parking sign had been stolen. The 14 trust’s plan was to fix the paving repairs and then repaint the (now faint but still visible) parking 15 lines and replace the sign. The parking spot remained usable. The trust hired a paving company 16 that “essentially walked off the job” after the pandemic hit (pending CDC guidance about how to 17 keep its employees safe). The trust tried to find a company to complete the work, was unsuccessful 18 initially, and ultimately — by November 2020 — was able to repave the handicapped space, 19 repaint the stripes, and install a new handicapped parking sign. (The trust was served with the 20 lawsuit on November 11, 2020.)11 The trust submitted a photograph taken on February 21, 2021 21 showing the parking space and sign and “demonstrate[ing] that the handicapped parking space — 22 lines, ramp, and signage — have been repaired.”12 23 24 8 Id. (¶¶ 4–10); McGillis Decl. – ECF No. 15-4 at 2–3 (¶¶ 5–11). 25 9 McGillis Supp. Decl. – ECF No. 20-1 at 2 (¶¶ 4–6); Parking Schematic, Ex. A to id. – ECF No. 20-1 26 at 4–5. 10 Parking Schematic, Ex. A to id. – ECF No. 20-1 at 4–5. 27 11 Betchart Decl. – ECF No. 15-2 at 3 (¶¶ 13–21). 1 Mr. Hernandez filed this lawsuit, claiming violations of the ADA and California law.13 The 2 defendants moved to dismiss the complaint under Rule 12(b)(1) on the ground that the ADA 3 claims are moot, and the court thus lacks jurisdiction over the state-law claims.14 The court held a 4 hearing on March 25, 2021. All parties consented to magistrate-judge jurisdiction.15 5 6 LEGAL STANDARD 7 A complaint will be dismissed if, looking at the complaint as a whole, it lacks federal 8 jurisdiction “facially” or “factually.” Thornhill Pub’g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 9 F.2d 730, 733 (9th Cir. 1979). When the complaint is challenged for lack of subject-matter 10 jurisdiction on its face, all material allegations in the complaint will be taken as true and construed 11 in the light most favorable to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 12 But in deciding a Rule 12(b)(1) motion which mounts a factual attack on jurisdiction, “no 13 presumption of truthfulness attaches to plaintiff’s allegations, and the existence of disputed material 14 facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. 15 Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Mortensen 16 v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); see St. Clair v. City of Chico, 17 880 F.2d 199, 201 (9th Cir. 1989) (“It then becomes necessary for the party opposing the motion to 18 present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, 19 in fact, possesses subject matter jurisdiction.”). 20 Generally, “[i]n resolving a factual attack on jurisdiction, the district court may review evidence 21 beyond the complaint without converting the motion to dismiss into a motion for summary 22 judgment.” Safe Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); see McCarthy v. United States, 23 850 F.2d 558, 560 (9th Cir. 1988) (“[W]hen considering a motion to dismiss pursuant to Rule 24 12(b)(1) the district court is not restricted to the face of the pleadings, but may review any evidence, 25 26 13 Compl. – ECF No. 1 at 4–8 (¶¶ 16–46). 27 14 Mot. – ECF No. 15. 1 such as affidavits and testimony, to resolve factual disputes concerning the existence of 2 jurisdiction.”). The standard applies to an ADA case: when the court is resolving a factual attack on 3 a complaint, it may review evidence beyond the complaint without converting a Rule 12(b) motion 4 into a motion for summary judgment. Johnson v. Case Ventures, LLC, No. 5:19-CV-02876-EJD, 5 2020 WL 4747908, at *2 (N.D. Cal. Aug. 17, 2020) (citing Safe Air for Everyone v. Meyer, 373 6 F.3d 1035, 1039 (9th Cir. 2004)). “Once the defendant presents extrinsic evidence, the plaintiff 7 must establish jurisdiction with evidence from other sources.” Id. When the jurisdictional issue is 8 intertwined with the merits — as is the case here because the court’s jurisdiction and the substantive 9 claims are both premised on the ADA — the court “must apply the summary judgment standard in 10 deciding the motion to dismiss.” Id. (cleaned up). 11 If a court dismisses a complaint, it should give leave to amend unless the “pleading could not 12 possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 13 848 F.3d 1161, 1182 (9th Cir. 2016) (cleaned up). 14 15 ANALYSIS 16 Remediating barriers can moot an ADA claim. Oliver v. Ralph’s Grocery Co., 654 F.3d 903, 17 905 (9th Cir. 2011). “A case is moot if subsequent events [make] it absolutely clear that the 18 allegedly wrongful behavior could not reasonably be expected to recur.” Johnson v. Mantena LLC, 19 No. 5:19-CV-06468-EJD, 2020 WL 1531355, at *2 (N.D. Cal. Mar. 31, 2020) (citing United 20 States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)). 21 The parties do not dispute that remediating the alleged parking, pavement, and ramp barriers is 22 “readily achievable.”16 28 C.F.R. § 36.304(b)(1) & (18) (“installing ramps” and “creating 23 designated accessible parking spaces” are readily achievable). They dispute only whether the 24 defendants remediated the barriers (the parking space, the uneven pavement, and the ramp) and 25 mooted the case.17 The court denies the defendants’ motion without prejudice in part because the 26
27 16 Mot. – ECF No. 15-1 at 7–8; Opp’n – ECF No. 18 at 8. 1 declarations do not establish remediation definitively. The defendants may supplement their 2 evidence. Then, given the defendants’ “extrinsic evidence, the plaintiff must establish jurisdiction 3 with evidence from other sources.” Johnson, 2020 WL 1531355, at *2. The court allows 4 jurisdictional discovery to accomplish that objective. 5 6 1. Accessible Parking 7 The relevant rule (for a facility like Mission Food & Liquor, with fewer than 26 parking spaces) 8 is that it must have at least one “van parking space,” which either must be at least 132 inches wide 9 and adjacent to an aisle at least 60 inches wide or must be at least 96 inches wide and adjacent to an 10 aisle at least 96 inches wide. 36 C.F.R. App. B §§ 208.2, 208.2.4, 502.3, 502.3.1. The 11 accompanying sign must be at least 60 inches high measured from the ground to the bottom edge of 12 the sign and “contain the designation ‘van accessible.’” 36 C.F.R. Pt. 1191; App. D § 502.6; Arroyo 13 v. Aldabashi, No. 16-CV-06181-JCS, 2018 WL 4961637, at *4 (N.D. Cal. Oct. 15, 2018); Langer v. 14 Vergara, No. 18-CV-2401-L-BGS, 2020 WL 6712217, at *4 (S.D. Cal. Nov. 16, 2020). 15 The defendants’ diagram establishes that the parking space is nine feet wide (108 inches) next 16 to an aisle that is five feet wide (60 inches) for a typical accessible parking stall, or is nine feet 17 wide (108 inches) next to an aisle that is eight feet wide (96 inches) for a van accessible parking 18 stall.18 The latter measurement satisfies the ADA standard, but the declaration does not say that 19 this is the measurement of the parking space. (The court assumes it is, but the declaration must be 20 explicit.) (Also, the diagram does not have the height of the sign, but the plaintiff does not 21 challenge the height in the complaint.) 22 23 2. Uneven Pavement 24 The defendants submitted declarations that they repaved the parking space.19 The plaintiff 25 responded to this point only by contending that the court cannot consider the issue in a Rule 26 27 18 Parking Schematic, Ex. A to McGillis Supp. Decl. – ECF No. 20-1 at 4–5. 19 Betchart Decl. – ECF No. 15-2 at 3 (¶ 20); see Sandhu Decl. – ECF No. 15-5 at 2 (¶ 8) (“was aware 1 12(b)(6) motion.20 The court can consider the evidence because this is a Rule 12(b)(1) 2 jurisdictional challenge to the complaint.21 That said, the plaintiffs can counter the defendants’ 3 “extrinsic evidence . . . with evidence from other sources.” Johnson, 2020 WL 1531355, at *2. 4 5 3. Ramp 6 The defendants declare that “[t]he ramp, which was built to strict California standards in 1989, 7 has been there and maintained since 1989 and [is] not in dire need of repair and/or remodeling.”22 8 They also declare that “the remedial repairs and routine maintenance [] performed last year in 9 November [2020] demonstrate that the handicapped parking space — lines, ramp and signage — 10 have been repaired. . . . [P]hotographs that I took on Monday, February 19, 2021 (attached hereto 11 as Exhibit B) demonstrate that the remedial work has been completed.”23 The declarations do not 12 establish remediation of the ramp sufficiently. First, the motion does not have the ADA standard 13 for an accessible ramp. Second, the declaration — while an assertion of fact — is conclusory and 14 is not tethered to the relevant standard. 15 16 CONCLUSION 17 The court denies the motion to dismiss without prejudice. The court directs the parties to confer 18 and to establish a plan for limited jurisdictional discovery. (The parking lot is outside, and any 19 conference can be modest to facilitate — if necessary — the plaintiff’s unobstructed access to 20 evaluate the alleged remediation.) The defendants may supplement their declarations and may notice 21 the matter for a hearing on the normal five-week schedule. If they do, then the plaintiffs have the 22 ordinary two weeks to oppose the motion and submit evidence to counter the defendants’ evidence 23 and establish the court’s jurisdiction. Johnson, 2020 WL 1531355, at *2. The defendants may reply 24 one week later. Alternatively, the parties can continue on the ordinary General Order 56 track. 25 26 20 Opp’n – ECF No. 18 at 4–7. 21 See supra note 4. 27 22 Betchart Decl. – ECF No. 15-2 at 4 (¶ 22). 1 The court grants leave to the plaintiff to amend the complaint to name the correct tenant. The 2 || court suggests that if the defendants are going to pursue the jurisdictional challenge at the 3 || pleadings stage, the parties confer on a schedule to avoid unnecessary costs. 4 IT IS SO ORDERED. 5 Dated: March 25, 2021 LAE 6 LAUREL BEELER 7 United States Magistrate Judge 8 9 10 11 12
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