Johnson v. Rando

• Court: District Court, N.D. California
• Decided: July 15, 2021
• Docket: 5:21-cv-00673
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 SCOTT JOHNSON, Case No. 21-cv-00673-BLF

8 Plaintiff, ORDER DENYING MOTION TO DISMISS 9 v. [Re: ECF 11] 10 MARISSA RANDO, in individual and representative capacity as trustee of The 11 Marissa Rando 2015 Revocable Trust dated January 26, 2015, 12 Defendant. 13

14 Plaintiff Scott Johnson alleges that Defendant Marissa Rando, in individual and 15 representative capacity as trustee of The Marissa Rando 2015 Revocable Trust dated January 26, 16 2015, has violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and 17 the California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51 et seq. See Compl., 18 ECF 1. Defendant, representing herself pro se, now seeks to dismiss all claims in the Complaint. 19 See Mot., ECF 11. Pursuant to Civil Local Rule 7-1(b), the Court finds this motion suitable for 20 decision without oral argument and VACATES the hearing scheduled for August 5, 2021. For the 21 reasons set forth below, the Court DENIES Defendant’s motion to dismiss. 22 I. BACKGROUND 23 Plaintiff alleges that he is a level C-5 quadriplegic who cannot walk and has significant 24 manual dexterity impairments. Compl. ¶ 1. He uses a wheelchair for mobility and has a specially 25 equipped van. Id. According to Plaintiff, Defendant, in individual and representative capacity as 26 trustee of The Marissa Rando 2015 Revocable Trust dated January 26, 2015, owned the real 27 property located at or about 354 Umbarger Rd, San Jose, California, upon which “354 Umbarger 1 Rd Center” operates, in July and August 2020 and currently owns the property. Id. ¶¶ 2–3. 2 Plaintiff alleges that in July and August 2020, he personally visited 354 Umbarger Rd Center 3 (“Business Center”), a place of public accommodation. Id. ¶¶ 8–9. During his visit, he allegedly 4 discovered that Defendant failed to provide wheelchair accessible parking in compliance with the 5 ADA. Id. ¶¶ 10–11. Plaintiff alleges that although there was ADA signage in front of a parking 6 space at the Business Center, “[t]he ADA parking space, if it ever existed, has been allowed to 7 fade to oblivion.” Id. ¶ 12. Plaintiff alleges that the existence of the barriers and the potential 8 existence of other barriers currently deter him from visiting the Business Center and he “will 9 return to the Busines Center . . . once it is represented to him that the Business Center and its 10 facilities are accessible.” Id. ¶ 20. 11 On January 28, 2021, Plaintiff filed the Complaint, alleging violations of (1) the ADA, 42 12 U.S.C. § 12101 et seq., and (2) the Unruh Act, California Civil Code § 51 et seq. Compl. ¶¶ 5–6. 13 On March 3, 2021, Defendant moved to dismiss the Complaint. See Mot. Defendant concurrently 14 submitted a declaration in support of her motion. See Decl. of Marissa Rando, ECF 12. On March 15 17, 2021, Plaintiff filed an opposition to Plaintiff’s motion to dismiss. See Opp., ECF 15. On 16 March 25, 2021, Defendant filed a reply to Plaintiff’s opposition. See Reply, ECF 17. On April 1, 17 2021, Mike Miyaki, Frank Rando, and Dianna Rando each submitted a declaration in support of 18 Defendant’s motion to dismiss. See Decl. of Mike Miyaki, ECF 19; see Decl. of Frank Rando, 19 ECF 20; see Decl. of Diana Rando, ECF 21. 20 II. LEGAL STANDARD 21 A. Federal Rule of Civil Procedure 12(b)(1): Lack of Subject Matter Jurisdiction 22 Federal courts can adjudicate only those cases which the Constitution and Congress 23 authorize them to adjudicate: those involving diversity of citizenship or a federal question, or 24 those to which the United States is a party. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 376–77 25 (2012); see also Chen-Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415 (9th 26 Cir. 1992) (“Federal courts have no power to consider claims for which they lack subject matter 27 jurisdiction.”). The Court has a continuing obligation to ensure that it has subject matter 1 matter jurisdiction by motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. 2 The plaintiff bears the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian 3 Life Ins., 511 U.S. 375, 377 (1994). 4 A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 5 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the Court determines whether the 6 allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, 7 accepting all material allegations in the complaint as true and construing them in favor of the party 8 asserting jurisdiction. Id.; see also Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is 9 factual, however, “the court need not presume the truthfulness of the plaintiff’s allegations.” Safe 10 Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject 11 matter jurisdiction, the Court may review extrinsic evidence beyond the complaint without 12 converting a motion to dismiss into one for summary judgment. Id. Once the moving party has 13 made a factual challenge by offering affidavits or other evidence to dispute the allegations in the 14 complaint, the party opposing the motion must “present affidavits or any other evidence necessary 15 to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” St. 16 Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Savage v. Glendale Union High 17 Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). 18 B. Federal Rule of Civil Procedure 12(b)(6): Failure to State a Claim 19 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 20 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 21 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 22 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as 23 true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. 24 Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court 25 needs not “accept as true allegations that contradict matters properly subject to judicial notice” or 26 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 27 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation 1 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 2 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 3 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Id. On a motion to 5 dismiss, the Court’s review is limited to the face of the complaint and matters judicially 6 noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. 7 Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 8 C. ADA Claim 9 “The ADA includes three main sections – Title I, which concerns employment 10 discrimination, 42 U.S.C. § 12111 et seq.; Title II, which governs access to public services, id. § 11 12131 et seq.; and Title III, which governs access to privately operated public accommodations, 12 such as restaurants and movie theaters, id. § 12181 et seq.” Gilstrap v. United Air Lines, Inc., 709 13 F.3d 995, 1002 (9th Cir. 2013). Plaintiff’s claim is asserted under Title III. 14 Title III of the ADA states that “[n]o individual shall be discriminated against on the basis 15 of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 16 advantages, or accommodations of any place of public accommodation by any person who owns, 17 leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The 18 ADA defines discrimination to include:

19 [A] failure to make reasonable modifications in policies, practices, or procedures, 20 when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless 21 the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or 22 accommodations[.]

23 42 U.S.C. § 12182(b)(2)(A)(ii). To establish a claim under this provision, Plaintiff must show that 24 (1) he is disabled within the meaning of the ADA; (2) Defendant is a private entity that owns, 25 leases, or operates a place of public accommodation; and (3) Plaintiff was denied full and equal 26 treatment by Defendant because of his disability. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 27 III. DISCUSSION 1 The Court will first address Defendant’s argument for lack of subject matter jurisdiction before 2 turning to the argument that Plaintiff has failed to state a claim under the ADA. 3 A. Rule 12(b)(1): Lack of Subject Matter Jurisdiction 4 Article III standing “is a necessary component of subject matter jurisdiction.” In re 5 Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011). The Supreme Court has repeatedly 6 stated that the “irreducible constitutional minimum of standing” consists of three elements. Lujan 7 v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The plaintiff must have (1) suffered an injury in 8 fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to 9 be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 10 (2016). These elements are often referred to as injury in fact, causation, and redressability. See 11 Planned Parenthood of Greater Washington & N. Idaho v. U.S. Dep’t of Health & Human Servs., 12 946 F.3d 1100, 1108 (9th Cir. 2020). Plaintiff, as the party invoking federal jurisdiction, bears the 13 burden of establishing the existence of Article III standing and at the pleading stage “must clearly 14 allege facts demonstrating each element.” Spokeo, 136 S. Ct. at 1547 (internal quotation marks and 15 citation omitted); see also Baker v. United States, 722 F.2d 517, 518 (9th Cir. 1983) (“The facts to 16 show standing must be clearly apparent on the face of the complaint.”). 17 Because injunctive relief is the only relief available to private ADA plaintiffs, a plaintiff 18 alleging ADA violations must establish standing to pursue injunctive relief. “Standing for 19 injunctive relief requires a plaintiff to establish a ‘real and immediate threat of repeated injury.’” 20 Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983-DMR, 2020 WL 2838814, at *5 (N.D. 21 Cal. June 1, 2020) (quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 22 2004)). Ninth Circuit case law establishes that an ADA plaintiff may establish standing “either by 23 demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a 24 noncompliant facility.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). 25 A claim may become moot if (1) subsequent events have made it absolutely clear that the 26 allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief or 27 events have completely and irrevocably eradicated the effects of the alleged violation. Norman- 1 Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1998) (citing United States v. 2 Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968); Lindquist v. Idaho State Bd. Of 3 Corrections, 776 F.2d 851, 854 (9th Cir. 1985)). In the context of a complaint brought under the 4 ADA, “because a private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier) 5 under the ADA, a defendant’s voluntary removal of alleged barriers prior to trial can have the 6 effect of mooting a plaintiff’s ADA claim.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th 7 Cir. 2011). 8 Defendant alleges that Plaintiff’s ADA claim is moot because ADA compliant parking was 9 implemented before the filing of the Complaint. Mot. 5. Plaintiff objects on the ground that (1) the 10 evidence that Defendant uses to prove that the parking is now compliant with the ADA is an 11 unsworn receipt, not an access survey conducted by a Certified Access Specialist (“CASp”), and 12 (2) it is inappropriate to dismiss the ADA claim at this early stage because jurisdiction issues are 13 intertwined with substantive issues. Opp. 2. The Court agrees with Plaintiff that Defendant has no 14 undisputed evidence and it is not absolutely clear that the allegedly wrongful behavior cannot 15 reasonably be expected to recur. 16 Defendant’s October 15, 2020 CASp inspection report details the general parking upgrades 17 that must be made for the Business Center to become ADA compliant. See Decl. of Melissa 18 Rando, Ex. C, CASp Report 11–12, 14–15, 17–18, 20, ECF 12-1.1 But the CASp Report does not 19 clearly establish that those changes have been made—it only establishes that the changes need to 20 be made. 21 The January 22, 2021 receipt from Asphalt Consultants & Contractors, Inc., see Ex. B, 22 Receipt, ECF 12-1, does not clearly establish that the parking lot is now ADA compliant. The 23 Receipt shows that Asphalt “[p]rovide(d) striping for three (3) Handicap stalls with adjacent 24 unloading zone, path of travel across drive lanes, three (3) concrete wheel stops, install[ed] one (1) 25 R 100 Entrance/Tow Sign, [and] install[ed] one (1) R99c van accessible sign and two (2) R99b 26

27 1 Since the CASp Report does not have page numbers, the Court refers to the page numbers of the 1 handicap signs mounted on wall.” See Receipt. However, there is no evidence, such as 2 photographs of the parking lot or a declaration from a CASp, establishing that those features are 3 compliant with the ADA. Therefore, the Court finds that Plaintiff’s ADA claim is not moot 4 because whether the parking is now ADA compliant is still disputed. 5 Had Defendant submitted undisputed evidence, such as a second CASp inspection report 6 confirming that the changes made brought the parking lot into ADA compliance, Plaintiff’s ADA 7 claim would be moot. See Johnson v. 1082 El Camino Real, LP, 5:17-cv-01391-EJD, 2018 WL 8 1091267, at *2 (N.D. Cal. Feb. 28, 2018) (finding an ADA claim moot where “the undisputed 9 evidence” of a second CASp Report “show[ed] that Defendants ha[d] corrected the sole alleged 10 access barrier alleged in the complaint”); see also Johnson v. Techbusiness Res., LLC, No. 20-CV- 11 06048-BLF, 2020 WL 7013596, at *2 (N.D. Cal. Nov. 28, 2020) (finding an ADA claim moot 12 because plaintiff submitted a declaration from a CASp stating that none of the alleged access 13 barriers were present and plaintiff “cannot plausibly expect to encounter the alleged barrier in the 14 future”). However, Defendant has not submitted such undisputed evidence, and the Court DENIES 15 Defendant’s motion to dismiss on the mootness theory under Rule 12(b)(1). 16 B. Rule Under Rule 12(b)(6): Failure to State a Claim 17 Next, Defendant raises several arguments properly evaluated under the Rule 12(b)(6) 18 standard for failure to state a claim. The Court finds that Defendant’s arguments raise factual 19 issues that are inappropriate to decide as a matter of law at the motion to dismiss stage. 20 i. Whether Plaintiff has sued the Proper Defendant 21 Defendant alleges that she is not a proper defendant for the ADA claim because (1) neither 22 she nor The Marissa Rando 2015 Revocable Trust dated January 26, 2015 has a business interest 23 in the Business Center, and (2) she, as trustee, “has no authority or ability to direct any of the 24 tenant[s] to conduct business in any particular manner, including compliance with the ADA or 25 Unruh,” and Plaintiff “has not included any of the tenant[s] as a defendant in this complaint.” Mot. 26 4. Plaintiff responds that (1) Defendant, as the landlord, is responsible for her tenants’ non- 27 compliance with the ADA, even she has no interest in her tenants’ businesses, and (2) even if her 1 The Court finds that Defendant, as the landlord, is a proper defendant for the ADA claim, 2 even if she has no business interest in or control over the Business Center. “The ADA imposes 3 concurrent obligations on landlords and tenants, and . . . a landlord, as an owner of the property, 4 should be liable for ADA compliance even on property leased to, and controlled by, a tenant.” 5 Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260, 1264 (9th Cir. 2015) (citing 6 Botosan v. Paul McNally Real., 216 F.3d 827, 832–34 (9th Cir. 2000). As to Defendant’s capacity 7 as a trustee, the question of whether she is a proper defendant under the ADA depends on whether 8 she “owns, leases (or leases to), or operates a place of public accommodation” within the meaning 9 of the ADA. 42 U.S.C. § 12182(a). Here, Plaintiff has alleged that Defendant, in individual and 10 representative capacity as trustee of The Marissa Rando 2015 Revocable Trust dated January 26, 11 2015, owns the Business Center. Compl. ¶ 3. Accordingly, accepting Plaintiff’s well-pled facts as 12 true, the Court find that Plaintiff has alleged Defendant is a proper defendant for the ADA claim. 13 ii. Whether the Business Center is a Place of Public Accommodation 14 Defendant alleges that Plaintiff lacks standing because the Business Center is not a place 15 of public accommodation under the ADA. Mot. 5. While Defendant categorizes this as a 16 “standing” challenge, the Court finds that this is a factual question that should be resolved under 17 the Rule 12(b)(6) standard. See Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048 (9th Cir. 2008) 18 (treating question of whether facility is partially open to the public as a question of fact), Marshall 19 v. Ross Stores, Inc., No. CV 20-4703 PSG (PLAx), 2020 WL 8173022, at *4 (C.D. Cal. Oct. 14, 20 2020) (same). 21 Defendant relies on the CASp Report dated on October 15, 2020, which states that “[t]he 22 spaces are used as storage and do not have public access” and “recommend[s] providing a sign on 23 each door stating ‘No Public Access.’” Mot. 3; CASp Report 9. Plaintiff responds that the 24 inspection report is hearsay which “lacks foundation and personal knowledge.” Opp. 2. He further 25 argues that even if the inspection report is admissible, (1) the “No Public Access” statement only 26 applies to “the entry doors off the public way” but not the other doors; (2) since the inspection 27 report states that “not all areas are open to the public,” there must be some areas open to the 1 public, and the inspection report recommends installing three accessible parking spaces. Opp. 3. 2 The Court finds Defendant’s extrinsic evidence inappropriate to consider at the motion to 3 dismiss stage and that Plaintiff has adequately alleged that the Business Center is at least partially 4 open to the public. Compl. ¶ 9. Additionally, whether those spaces are not open to the public does 5 not address Plaintiff’s claim in this case that the parking lot is not ADA compliant. 6 Defendant is correct that if a facility is not public, employees can refuse to let customers 7 with disabilities use the facility without violating the ADA. See Doran, 524 F.3d 1034, 1048 (9th 8 Cir. 2008) (finding that “the exclusion of a disabled plaintiff from an employees-only restroom 9 does not violate the ADA” because “where only part of the facility is open to the public, the 10 portion that is closed to the public is not a place of public accommodation and thus is not subject 11 to Title III of the ADA”); Marshall, 2020 WL 8173022, at *4 (“Defendant is correct that if a 12 facility is not public, employees can refuse to let customers with disabilities use the facility 13 without violating the ADA”). However, it is inappropriate to resolve this contested factual dispute 14 at this stage of the case, as the Court must accept all factual allegations as true on a motion to 15 dismiss. Marshall, 2020 WL 8173022, at *4 (citing Skilstaf, Inc. v. CVS Caremark Corp., 669 16 F.3d 1005, 1024 (9th Cir. 2012)). At this stage, the Court assumes that the Business Center, and its 17 parking lot, is at least partially open to the public. See Marshall, 2020 WL 8173022, at *4. 18 iii. Whether Plaintiff has Accurately Pled Facts Regarding ADA Signage in the Parking Lot 19 Defendant alleges that it is impossible for Plaintiff to have seen ADA signage in front of a 20 parking space at the Business Center in July and August 2020 because the ADA signage was put 21 in place for the first time on January 21, 2021. Mot. 4. Defendant has also submitted several 22 declarations in support of her claim. Decl. of Mike Miyaki; Decl. of Frank Rando; Decl. of Diana 23 Rando. When determining whether Plaintiff has stated a claim, the Court accepts all well-pled 24 factual allegations as true. Reese, 643 F.3d at 690. Therefore, it is inappropriate for the Court to 25 resolve this factual dispute at this stage of the complaint. 26 Accordingly, the Court DENIES Defendant’s motion to dismiss Plaintiff’s ADA claim 27 under Rule 12(b)(6). IV. UNRUH ACT CLAIM A violation of the ADA constitutes a per se violation of the Unruh Act. Lentini v. 2 California Ctr. for the Arts, Escondido, 370 F.3d 837, 847 (9th Cir. 2004) (“[A] violation of the 3 ADA 1s, per se, a violation of the Unruh Act.”); Ridola v. Chao, No. 16-CV-02246-BLF, 2018 WL 4 2287668, at *11 (N.D. Cal. May 18, 2018) (applying Lentini). Defendant seeks dismissal of 5 Plaintiff's Unruh Act claim on the same grounds as the ADA claim. Since the Court has 6 determined Plaintiff's ADA claim may properly go forward, the Court DENIES Defendant’s 7 motion to dismiss Plaintiff's Unruh Act claim. 8 IV. ORDER 9 For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss. 10 11 IT IS SO ORDERED. a 12

Dated: July 15, 2021 én) hom La home

BETH LABSON FREEMAN 2 United States District Judge Q 16

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