SCOTT JOHNSON, Case No. 19-cv-06214-EJD Plaintiff, ORDER RE CONVERTED MOTION v. FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO MONTPELIER ONE LLC, DISMISS Defendant. Re: Dkt. No. 21
Defendant Montpelier One LLC was sued by Plaintiff Scott Johnson for failing to ensure the real property at 2380 Montpelier Drive, San Jose, California complied with the accessibility requirements imposed by the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”). This is the Court’s second order regarding Defendant’s motion to dismiss the suit, which the Court has converted in part into a motion for summary judgment. See Dkt. No. 28. Plaintiff has now had an opportunity to request deferral of the Court’s summary judgment ruling and to respond to the evidence Defendant attached to its Reply brief. Because Plaintiff has not availed himself of that opportunity, the Court will proceed based on the parties’ original submissions. For the reasons below, the Court will dismiss the ADA claim as moot under the summary judgment standard and then decline supplemental jurisdiction over the Unruh Act claim. The operative Complaint, Dkt. No. 1 (“Compl.”), which was filed on September 30, 2019, alleges the following. Case No.: 19-cv-06214-EJD Plaintiff Scott Johnson is a quadriplegic. Compl. ¶ 1. As a consequence, he cannot walk, he uses a wheelchair for mobility, and he drives a “specially equipped van.” Id. Plaintiff also has “significant manual dexterity impairments.” Id. Plaintiff attempted to visit a chiropractor’s office located at 2380 Montpelier Drive in San Jose, California (“the Chiropractor”) on two occasions, once in January 2019 and once in April 2019. Compl. ¶ 9. During those two visits, Plaintiff personally encountered various barriers to accessibility. Id. ¶ 17. Specifically, Plaintiff alleges that the property (1) failed and currently fails “to provide accessible parking,” (2) failed and currently fails “to provide accessible door hardware at the Chiropractor,” and (3) “failed and currently fails “to provide accessible paths of travel leading into the Chiropractor.” Id. ¶¶ 12-16. Based on the foregoing, Plaintiff sued Defendant Montpelier One LLC, the owner of the real property at 2380 Montpelier Drive at the time of the visits and at present. Compl. ¶¶ 2-4; Dkt. No. 10 (“Answer”) ¶¶ 2-4. The Complaint alleges (1) a violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182(a), see Compl. ¶¶ 24-34, and (2) a violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53, see Compl. ¶¶ 35-39. As to the ADA claim, Plaintiff requests injunctive relief—the only form of relief the ADA affords private plaintiffs, Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); 42 U.S.C. § 12188(a). See Compl. at 7. Plaintiff also seeks an unspecified amount of statutory damages under the Unruh Act, Cal. Civ. Code § 52. See id. On March 25, 2020, Defendant filed a motion to dismiss the entire Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. No. 21; Dkt. No. 21-1 (“Mot.”). In that motion, Defendant attests that after it received the Complaint, it hired Certified Access Specialist (“CASp”) Steve Moncur and voluntarily remedied the three barriers identified therein. See id. at 3; Dkt. No. 21-3 (“Nguyen Decl.”). Defendant further avers that the parties conducted a joint site inspection (as required by General Order 56) on February 4, 2020 and that the inspection confirmed Defendant’s remediation of the barriers. Dkt. No. 27 (“Reply”) at 4; Mot. at 3, 6. Case No.: 19-cv-06214-EJD According to Defendant, “Plaintiff’s counsel was accompanied by its expert Tim Wegman and Defendant was accompanied by its expert Steve Moncur, CASp” at the joint site inspection. Reply at 4. Defendant therefore moves for dismissal of the ADA claim (Count 1) as moot, see Oliver, 654 F.3d at 905 (“Because a private plaintiff can sue only for injunctive relief . . . , a defendant’s voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim.”); it also argues in the alternative that Plaintiff had not sufficiently pleaded his standing to seek injunctive relief. Mot. at 6-7. Defendant then asks this Court to decline supplemental jurisdiction over the Unruh Act claim (Count 2), a California state law claim. Id. at 9-11. This Court first considered Defendant’s motion in an Order issued on June 17, 2020. Dkt. No. 28 (“First Order re MTD”). There, the Court determined that Defendant’s motion to dismiss the ADA claim for mootness must be treated as a motion for summary judgment. Id. at 4; see Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); accord Johnson v. Barrita, No. C 18-06205 WHA, 2019 WL 931769, at *2 (N.D. Cal. Feb. 26, 2019). Because Defendant attached new evidence to its Reply and in order to give Plaintiff an opportunity to request deferral of the Court’s ruling pursuant to Federal Rule of Civil Procedure 56(d), the Court allowed Plaintiff to file a sur-reply by June 24, 2020. First Order re MTD at 6. The deadline has now passed without any such filing by Plaintiff. Accordingly, the Court will proceed to resolve the motion on the papers before it. See Dkt. No. 21-1 (Mot.); Dkt. No. 26 (“Opp.”); Dkt. No. 27 (Reply). The Court first rules on Defendant’s mootness argument as to the ADA claim and then turns to Defendant’s request that the Court decline supplemental jurisdiction over the Unruh Act claim. A. Mootness of the ADA Claim As explained in the Court’s prior Order, a defendant’s voluntary removal of alleged barriers prior to trial can moot a plaintiff’s ADA claim for injunctive relief. See Oliver, 654 F.3d Case No.: 19-cv-06214-EJD at 905; Johnson v. Gallup & Whalen Santa Maria, No. 17-CV-01191-SI, 2018 WL 2183254, at *4 (N.D. Cal. May 11, 2018) (“There can be no effective relief here, where defendants have already removed the architectural barriers that plaintiff identified in the complaint.”). In particular, where the remediation required structural changes to the premises, this Court and others have generally been satisfied that the barriers “could not reasonably be expected to recur,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). See, e.g., Johnson v. Holden, No. 5:18-CV-01624-EJD, 2020 WL 1288404, at *4 (N.D. Cal. Mar. 18, 2020); Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2013 WL 6056660, at *2 (N.D. Cal. Nov. 15, 2013). The Court therefore agreed with Defendant “that if Defendant could establish the fact of its remediation”—i.e., that “the parking, the door hardware, and the paths of travel leading into the Chiropractor have indeed been made ADA-compliant”—“Plaintiff’s ADA claim would be moot.” First Order re MTD at 3-4. Importantly, Defendant must establish those facts under the summary judgment standard. See Fed. R. Civ. P. 56 (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”). Becaus
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SCOTT JOHNSON, Case No. 19-cv-06214-EJD Plaintiff, ORDER RE CONVERTED MOTION v. FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO MONTPELIER ONE LLC, DISMISS Defendant. Re: Dkt. No. 21
Defendant Montpelier One LLC was sued by Plaintiff Scott Johnson for failing to ensure the real property at 2380 Montpelier Drive, San Jose, California complied with the accessibility requirements imposed by the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”). This is the Court’s second order regarding Defendant’s motion to dismiss the suit, which the Court has converted in part into a motion for summary judgment. See Dkt. No. 28. Plaintiff has now had an opportunity to request deferral of the Court’s summary judgment ruling and to respond to the evidence Defendant attached to its Reply brief. Because Plaintiff has not availed himself of that opportunity, the Court will proceed based on the parties’ original submissions. For the reasons below, the Court will dismiss the ADA claim as moot under the summary judgment standard and then decline supplemental jurisdiction over the Unruh Act claim. The operative Complaint, Dkt. No. 1 (“Compl.”), which was filed on September 30, 2019, alleges the following. Case No.: 19-cv-06214-EJD Plaintiff Scott Johnson is a quadriplegic. Compl. ¶ 1. As a consequence, he cannot walk, he uses a wheelchair for mobility, and he drives a “specially equipped van.” Id. Plaintiff also has “significant manual dexterity impairments.” Id. Plaintiff attempted to visit a chiropractor’s office located at 2380 Montpelier Drive in San Jose, California (“the Chiropractor”) on two occasions, once in January 2019 and once in April 2019. Compl. ¶ 9. During those two visits, Plaintiff personally encountered various barriers to accessibility. Id. ¶ 17. Specifically, Plaintiff alleges that the property (1) failed and currently fails “to provide accessible parking,” (2) failed and currently fails “to provide accessible door hardware at the Chiropractor,” and (3) “failed and currently fails “to provide accessible paths of travel leading into the Chiropractor.” Id. ¶¶ 12-16. Based on the foregoing, Plaintiff sued Defendant Montpelier One LLC, the owner of the real property at 2380 Montpelier Drive at the time of the visits and at present. Compl. ¶¶ 2-4; Dkt. No. 10 (“Answer”) ¶¶ 2-4. The Complaint alleges (1) a violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182(a), see Compl. ¶¶ 24-34, and (2) a violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53, see Compl. ¶¶ 35-39. As to the ADA claim, Plaintiff requests injunctive relief—the only form of relief the ADA affords private plaintiffs, Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); 42 U.S.C. § 12188(a). See Compl. at 7. Plaintiff also seeks an unspecified amount of statutory damages under the Unruh Act, Cal. Civ. Code § 52. See id. On March 25, 2020, Defendant filed a motion to dismiss the entire Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Dkt. No. 21; Dkt. No. 21-1 (“Mot.”). In that motion, Defendant attests that after it received the Complaint, it hired Certified Access Specialist (“CASp”) Steve Moncur and voluntarily remedied the three barriers identified therein. See id. at 3; Dkt. No. 21-3 (“Nguyen Decl.”). Defendant further avers that the parties conducted a joint site inspection (as required by General Order 56) on February 4, 2020 and that the inspection confirmed Defendant’s remediation of the barriers. Dkt. No. 27 (“Reply”) at 4; Mot. at 3, 6. Case No.: 19-cv-06214-EJD According to Defendant, “Plaintiff’s counsel was accompanied by its expert Tim Wegman and Defendant was accompanied by its expert Steve Moncur, CASp” at the joint site inspection. Reply at 4. Defendant therefore moves for dismissal of the ADA claim (Count 1) as moot, see Oliver, 654 F.3d at 905 (“Because a private plaintiff can sue only for injunctive relief . . . , a defendant’s voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim.”); it also argues in the alternative that Plaintiff had not sufficiently pleaded his standing to seek injunctive relief. Mot. at 6-7. Defendant then asks this Court to decline supplemental jurisdiction over the Unruh Act claim (Count 2), a California state law claim. Id. at 9-11. This Court first considered Defendant’s motion in an Order issued on June 17, 2020. Dkt. No. 28 (“First Order re MTD”). There, the Court determined that Defendant’s motion to dismiss the ADA claim for mootness must be treated as a motion for summary judgment. Id. at 4; see Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); accord Johnson v. Barrita, No. C 18-06205 WHA, 2019 WL 931769, at *2 (N.D. Cal. Feb. 26, 2019). Because Defendant attached new evidence to its Reply and in order to give Plaintiff an opportunity to request deferral of the Court’s ruling pursuant to Federal Rule of Civil Procedure 56(d), the Court allowed Plaintiff to file a sur-reply by June 24, 2020. First Order re MTD at 6. The deadline has now passed without any such filing by Plaintiff. Accordingly, the Court will proceed to resolve the motion on the papers before it. See Dkt. No. 21-1 (Mot.); Dkt. No. 26 (“Opp.”); Dkt. No. 27 (Reply). The Court first rules on Defendant’s mootness argument as to the ADA claim and then turns to Defendant’s request that the Court decline supplemental jurisdiction over the Unruh Act claim. A. Mootness of the ADA Claim As explained in the Court’s prior Order, a defendant’s voluntary removal of alleged barriers prior to trial can moot a plaintiff’s ADA claim for injunctive relief. See Oliver, 654 F.3d Case No.: 19-cv-06214-EJD at 905; Johnson v. Gallup & Whalen Santa Maria, No. 17-CV-01191-SI, 2018 WL 2183254, at *4 (N.D. Cal. May 11, 2018) (“There can be no effective relief here, where defendants have already removed the architectural barriers that plaintiff identified in the complaint.”). In particular, where the remediation required structural changes to the premises, this Court and others have generally been satisfied that the barriers “could not reasonably be expected to recur,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). See, e.g., Johnson v. Holden, No. 5:18-CV-01624-EJD, 2020 WL 1288404, at *4 (N.D. Cal. Mar. 18, 2020); Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2013 WL 6056660, at *2 (N.D. Cal. Nov. 15, 2013). The Court therefore agreed with Defendant “that if Defendant could establish the fact of its remediation”—i.e., that “the parking, the door hardware, and the paths of travel leading into the Chiropractor have indeed been made ADA-compliant”—“Plaintiff’s ADA claim would be moot.” First Order re MTD at 3-4. Importantly, Defendant must establish those facts under the summary judgment standard. See Fed. R. Civ. P. 56 (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”). Because Defendant bears the burden of establishing mootness, see In re Pintlar Corp., 124 F.3d 1310, 1312 (9th Cir. 1997), it must “affirmatively demonstrate” that there is no genuine dispute that the relevant accessibility barriers no longer exist. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see, e.g., Miller v. Lifestyle Creations, Inc., 993 F.2d 883 (9th Cir. 1993). The Court must view the evidence in the light most favorable to Plaintiff and draw all reasonable inferences in Plaintiff’s favor. Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1002 (9th Cir. 2019). This Court’s prior Order evaluated the evidence Defendant offers to show that it remediated the accessibility issues identified in the Complaint. The Court found that the initial declaration from Steve Moncur attached to Defendant’s Motion, see Dkt. No. 21-2 (“First Moncur Decl.”), was “too conclusory to support a finding that Defendant is now in compliance with the Case No.: 19-cv-06214-EJD ADA.” First Order re MTD at 5. That declaration simply stated that “all of the areas identified as architectural barriers alleged by plaintiff have been corrected and are now fully compliant” without describing Mr. Moncur’s examination or providing any factual support. Accord Kalani v. Starbucks Corp., 81 F. Supp. 3d 876, 882–83 (N.D. Cal. 2015), aff’d sub nom. Kalani v. Starbucks Coffee Co., 698 F. App’x 883 (9th Cir. 2017) (“Conclusory opinions that the ‘facility is free of non-compliant issues,’ or that particular features, e.g., the accessible parking or point of sale, ‘comply with all applicable access requirements,’” are “an insufficient basis on which to grant summary judgment.”). However, after Plaintiff objected to the conclusory nature of the First Moncur Declaration in his Opposition, see Opp. at 4-5, Defendant provided a detailed supplemental declaration from Mr. Moncur in conjunction with its Reply. See Dkt. No. 27-1 (“Supp. Moncur Decl.”). In that declaration, Mr. Moncur describes the particular features of each barrier that he examined, the measurements he took and how he took them, and the applicable ADA and California state law standards he applied. See id. For example, he states that on February 9, 2020, he “inspected the van and car accessible parking space for length, width and levelness in all directions” and “found the van ADA stall to be 216 inches long and 108 inches wide” in strict compliance with “both California Title 24 11B-502.2 and ADA 2010 design manual 502.2.” Id. ¶¶ 3-4. Mr. Moncur also attached to his declaration photographs of each of the three relevant areas. Dkt. Nos. 27-2 (photograph of accessible parking space), 27-3 (photograph of accessible pathway), 27-4 (photograph of Chiropractor door). With this additional factual detail and support, Mr. Moncur’s supplemental declaration suffices to support a finding that the relevant barriers are no longer present at 2380 Montpelier Drive. As noted above, the Court specifically invited Plaintiff to rebut or otherwise object to the evidence in the Supplemental Moncur Declaration. Plaintiff has failed to do so. Accordingly, the Court will consider the Supplemental Moncur Declaration and concludes that Defendants have shown there is no genuine dispute as to the fact of remediation. See Getz v. Boeing Co., 654 F.3d Case No.: 19-cv-06214-EJD 852, 868 (9th Cir. 2011) (no error in district court’s reliance on new evidence submitted in reply paper where the party failed to object). Plaintiff’s ADA claim for injunctive relief is thus moot and must be dismissed for lack of jurisdiction. B. Supplemental Jurisdiction over Unruh Act Claim Turning to Plaintiff’s Unruh Act claim, this count remains live “[b]ecause a claim for damages under the Unruh Act looks to past harm.” Arroyo v. Aldabashi, No. 16-CV-06181-JCS, 2018 WL 4961637, at *5 (N.D. Cal. Oct. 15, 2018). As a state law claim, though, it is before this Court pursuant to the Court’s supplemental jurisdiction. See 28 U.S.C. § 1367(a). Such jurisdiction is discretionary, Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997), supplemented, 121 F.3d 714 (9th Cir. 1997), and Defendant asks the Court to decline to exercise jurisdiction over the Unruh Act claim. Mot. at 9-11. District courts “may”—and often do—“decline to exercise supplemental jurisdiction” if, as here, they have “dismissed all claims over which it has original jurisdiction,” id. § 1367(c)(3). See, e.g., Oliver, 654 F.3d at 911; Yates v. Delano Retail Partners, LLC, No. C 10-3073 CW, 2012 WL 4944269, at *3 (N.D. Cal. Oct. 17, 2012); R.K., ex rel. T.K. v. Hayward Unified Sch. Dist., No. C 06-07836 JSW, 2008 WL 1847221, at *2 (N.D. Cal. Apr. 23, 2008). As the Supreme Court and the Ninth Circuit have “often repeated,” “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors will point toward declining to exercise jurisdiction over the remaining state-law claims.” Acri, 114 F.3d at 1001 (quoting Carnegie–Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (alterations omitted)). Plaintiff has not shown that this is other than the “usual case.” As the Court has not considered the merits of the Unruh Act claim, there is no interest in judicial economy in retaining the case. Nor has Plaintiff articulated any significant inconvenience that he would face in refiling in state court. The Court will, therefore, decline to exercise supplemental jurisdiction over Plaintiff’s Unruh Act and dismiss it without prejudice. Case No.: 19-cv-06214-EJD I. CONCLUSION For the reasons set forth above, the Court DISMISSES AS MOOT Plaintiff?s ADA claim 2 and DISMISSES his state law claims without prejudice for refiling in state court. 3 4 IT IS SO ORDERED. 5 6 Dated: June 28, 2020 7 9 United States District Judge 10 11 a 12
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