1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 20-cv-06584-SVK
8 Plaintiff, ORDER ON DEFENDANT'S MOTION 9 v. TO DISMISS FIRST AMENDED COMPLAINT 10 LITTLE ORCHARD BUSINESS PARK OWNERS ASSOCIATION, Re: Dkt. No. 27 11 Defendant. 12 13 In this Americans with Disabilities Act (“ADA”) case, Plaintiff Scott Johnson alleges that 14 he encountered barriers to access in the parking lot of the Little Orchard Business Park and with 15 respect to door hardware and sales counters at California’s Finest Detail Supply. Dkt. 23 (First 16 Amended Complaint (“FAC”)). The Defendants originally named in the suit were Straight Arrow 17 Properties, LLC (“Straight Arrow”) and Little Orchard Business Park Owners Association (the 18 “Association”). Id. Plaintiff has dismissed Straight Arrow from the case. Dkt. 12, 26. The 19 Association now moves to dismiss the FAC under Rule 12(b)(6) for failure to state a claim. Dkt. 20 27.1 All parties remaining in the case have consented to the jurisdiction of a magistrate judge. 21 Dkt. 7, 21. 22 Pursuant to Civil Local Rule 7-1(b), the Court deems this matter suitable for determination 23 without oral argument. For the reasons that follow, the Association’s motion to dismiss the FAC 24 is GRANTED WITH LEAVE TO AMEND. 25 //// 26 //// 27 I. BACKGROUND 1 Plaintiff’s allegations relate to his visits to the Little Orchard Business Park in January 2 2020, March 2020, and July2020. FAC ¶ 8. He alleges that he went to the site on those dates 3 “with the intention to avail himself of its goods or services, including at the California’s Finest 4 Detail Supply.” Id. Plaintiff alleges that Straight Arrow and the Association “owned portions of 5 the real property located at or about 1847 Little Orchard St, San Jose, California, and did between 6 January 2002 and July 2020,” although the FAC does not specifically state that the Little Orchard 7 Business Park or California’s Finest Detail Supply are located at that address. Id. ¶ 2. Plaintiff 8 further alleges that the Association “operates all the commercial common areas including the 9 relevant parking spaces challenged in this case.” Id. ¶ 3. Plaintiff’s allegations relate to the 10 parking lot at the office park (id. ¶¶ 10-16) and the door hardware and sales counters at 11 California’s Finest Detail Supply (id. ¶¶ 17-21). 12 Following Plaintiff’s filing of the original complaint in this case, Plaintiff dismissed 13 Defendant Straight Arrow. Dkt. 12. The remaining Defendant, the Association, filed a motion to 14 dismiss the original complaint. Dkt. 15. Plaintiff filed the FAC in lieu of opposing the 15 Association’s motion to dismiss the original complaint. Dkt. 23, 24. The FAC again named 16 Straight Arrow as a Defendant, despite Plaintiff’s earlier dismissal of that Defendant. Following 17 the filing of the FAC, Plaintiff again dismissed Straight Arrow. Dkt. 26. 18 The FAC contains causes of action for violation of the ADA and California’s Unruh Civil 19 Rights Act. Dkt. 23. The Association now moves to dismiss the FAC. Dkt. 27-31 (Motion and 20 supporting documents); Dkt. 35 (Reply). Plaintiff opposes the motion. Dkt. 33. 21 II. LEGAL STANDARD 22 Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim 23 upon which relief can be granted. In ruling on a motion to dismiss, the court may consider only 24 “the complaint, materials incorporated into the complaint by reference, and matters of which the 25 court may take judicial notice.” Metzler Inv. GmbH v. Corinthian Colls., Inc., 540 F.3d 1049, 26 1061 (9th Cir. 2008). In deciding whether the plaintiff has stated a claim, the court must assume 27 the plaintiff’s allegations are true and draw all inferences in the plaintiff’s favor. Usher v. City of 1 L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true 2 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 3 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). 4 To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege “enough facts 5 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 6 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to 7 “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009). 9 Leave to amend must be granted unless it is clear that the complaint’s defects cannot be 10 cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). 11 III. DISCUSSION 12 A. Request for Judicial Notice 13 In deciding a motion to dismiss under Rule 12(b)(6), the Court normally cannot consider 14 matters outside of the pleadings without converting the motion into a motion for summary 15 judgment. See Fed. R. Civ. P. 12(b)(6); 12(d); see also Ramirez v. United Airlines, Inc., 416 F. 16 Supp. 2d 792, 795 (N.D. Cal. 2005). However, the Ninth Circuit has held courts may consider 17 materials submitted with and attached to the complaint. U.S. v. Corinthian Colleges, 655 F.3d 18 984, 999 (9th Cir. 2011). A court may also consider unattached evidence on which the complaint 19 “necessarily relies” if: “(1) the complaint refers to the document; (2) the document is central to 20 the plaintiff’s claim; and (3) no party questions the authenticity of the document.” Id. The Court 21 may also “take judicial notice of documents on which allegations in the complaint necessarily rely, 22 even if not expressly referenced in the complaint, provided that the authenticity of those 23 documents is not in dispute.” Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL 24 1626930, at *8 (N.D. Cal. June 9, 2006) (citation omitted). 25 In support of it motion to dismiss, the Association asks the Court to take judicial notice of 26 three documents: (1) the enabling declaration for the Association, recorded May 15, 1986 in the 27 records of the County of Santa Clara; (2) the original complaint in this case; and (3) the FAC in 1 recorded document and is properly the subject of judicial notice. Quinto v. JPMorgan Chase 2 Bank, No. 11-CV-02920-LHK, 2011 WL 6002599, at *5 (N.D. Cal. Nov. 30, 2011). It is not 3 necessary for the Court to judicially notice the original complaint or FAC filed in this case 4 because they are already properly before the Court as part of the case record. See Perez v. Auto 5 Tech. Co., No. CV 13-0678 MMM (VBKx), 2014 WL 12588644, at *2 (C.D. Cal. July 14, 2014). 6 Indeed, the FAC “is the very subject of [the Association’s] motion.” Mulato v. Wells Fargo Bank, 7 N.A., 76 F. Supp. 3d 929, 941 (N.D. Cal. 2014). 8 B. ADA Claim 9 To prevail on a claim for violation of the ADA, a plaintiff must show that (1) he is disabled 10 within the meaning of the ADA; (2) the defendant is a public entity that owns, leases, or operates a 11 place of public accommodation; and (3) the plaintiff was denied public accommodations by the 12 defendant because of her disability. Arizona ex rel Goddard v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 20-cv-06584-SVK
8 Plaintiff, ORDER ON DEFENDANT'S MOTION 9 v. TO DISMISS FIRST AMENDED COMPLAINT 10 LITTLE ORCHARD BUSINESS PARK OWNERS ASSOCIATION, Re: Dkt. No. 27 11 Defendant. 12 13 In this Americans with Disabilities Act (“ADA”) case, Plaintiff Scott Johnson alleges that 14 he encountered barriers to access in the parking lot of the Little Orchard Business Park and with 15 respect to door hardware and sales counters at California’s Finest Detail Supply. Dkt. 23 (First 16 Amended Complaint (“FAC”)). The Defendants originally named in the suit were Straight Arrow 17 Properties, LLC (“Straight Arrow”) and Little Orchard Business Park Owners Association (the 18 “Association”). Id. Plaintiff has dismissed Straight Arrow from the case. Dkt. 12, 26. The 19 Association now moves to dismiss the FAC under Rule 12(b)(6) for failure to state a claim. Dkt. 20 27.1 All parties remaining in the case have consented to the jurisdiction of a magistrate judge. 21 Dkt. 7, 21. 22 Pursuant to Civil Local Rule 7-1(b), the Court deems this matter suitable for determination 23 without oral argument. For the reasons that follow, the Association’s motion to dismiss the FAC 24 is GRANTED WITH LEAVE TO AMEND. 25 //// 26 //// 27 I. BACKGROUND 1 Plaintiff’s allegations relate to his visits to the Little Orchard Business Park in January 2 2020, March 2020, and July2020. FAC ¶ 8. He alleges that he went to the site on those dates 3 “with the intention to avail himself of its goods or services, including at the California’s Finest 4 Detail Supply.” Id. Plaintiff alleges that Straight Arrow and the Association “owned portions of 5 the real property located at or about 1847 Little Orchard St, San Jose, California, and did between 6 January 2002 and July 2020,” although the FAC does not specifically state that the Little Orchard 7 Business Park or California’s Finest Detail Supply are located at that address. Id. ¶ 2. Plaintiff 8 further alleges that the Association “operates all the commercial common areas including the 9 relevant parking spaces challenged in this case.” Id. ¶ 3. Plaintiff’s allegations relate to the 10 parking lot at the office park (id. ¶¶ 10-16) and the door hardware and sales counters at 11 California’s Finest Detail Supply (id. ¶¶ 17-21). 12 Following Plaintiff’s filing of the original complaint in this case, Plaintiff dismissed 13 Defendant Straight Arrow. Dkt. 12. The remaining Defendant, the Association, filed a motion to 14 dismiss the original complaint. Dkt. 15. Plaintiff filed the FAC in lieu of opposing the 15 Association’s motion to dismiss the original complaint. Dkt. 23, 24. The FAC again named 16 Straight Arrow as a Defendant, despite Plaintiff’s earlier dismissal of that Defendant. Following 17 the filing of the FAC, Plaintiff again dismissed Straight Arrow. Dkt. 26. 18 The FAC contains causes of action for violation of the ADA and California’s Unruh Civil 19 Rights Act. Dkt. 23. The Association now moves to dismiss the FAC. Dkt. 27-31 (Motion and 20 supporting documents); Dkt. 35 (Reply). Plaintiff opposes the motion. Dkt. 33. 21 II. LEGAL STANDARD 22 Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim 23 upon which relief can be granted. In ruling on a motion to dismiss, the court may consider only 24 “the complaint, materials incorporated into the complaint by reference, and matters of which the 25 court may take judicial notice.” Metzler Inv. GmbH v. Corinthian Colls., Inc., 540 F.3d 1049, 26 1061 (9th Cir. 2008). In deciding whether the plaintiff has stated a claim, the court must assume 27 the plaintiff’s allegations are true and draw all inferences in the plaintiff’s favor. Usher v. City of 1 L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true 2 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 3 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). 4 To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege “enough facts 5 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 6 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to 7 “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009). 9 Leave to amend must be granted unless it is clear that the complaint’s defects cannot be 10 cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). 11 III. DISCUSSION 12 A. Request for Judicial Notice 13 In deciding a motion to dismiss under Rule 12(b)(6), the Court normally cannot consider 14 matters outside of the pleadings without converting the motion into a motion for summary 15 judgment. See Fed. R. Civ. P. 12(b)(6); 12(d); see also Ramirez v. United Airlines, Inc., 416 F. 16 Supp. 2d 792, 795 (N.D. Cal. 2005). However, the Ninth Circuit has held courts may consider 17 materials submitted with and attached to the complaint. U.S. v. Corinthian Colleges, 655 F.3d 18 984, 999 (9th Cir. 2011). A court may also consider unattached evidence on which the complaint 19 “necessarily relies” if: “(1) the complaint refers to the document; (2) the document is central to 20 the plaintiff’s claim; and (3) no party questions the authenticity of the document.” Id. The Court 21 may also “take judicial notice of documents on which allegations in the complaint necessarily rely, 22 even if not expressly referenced in the complaint, provided that the authenticity of those 23 documents is not in dispute.” Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL 24 1626930, at *8 (N.D. Cal. June 9, 2006) (citation omitted). 25 In support of it motion to dismiss, the Association asks the Court to take judicial notice of 26 three documents: (1) the enabling declaration for the Association, recorded May 15, 1986 in the 27 records of the County of Santa Clara; (2) the original complaint in this case; and (3) the FAC in 1 recorded document and is properly the subject of judicial notice. Quinto v. JPMorgan Chase 2 Bank, No. 11-CV-02920-LHK, 2011 WL 6002599, at *5 (N.D. Cal. Nov. 30, 2011). It is not 3 necessary for the Court to judicially notice the original complaint or FAC filed in this case 4 because they are already properly before the Court as part of the case record. See Perez v. Auto 5 Tech. Co., No. CV 13-0678 MMM (VBKx), 2014 WL 12588644, at *2 (C.D. Cal. July 14, 2014). 6 Indeed, the FAC “is the very subject of [the Association’s] motion.” Mulato v. Wells Fargo Bank, 7 N.A., 76 F. Supp. 3d 929, 941 (N.D. Cal. 2014). 8 B. ADA Claim 9 To prevail on a claim for violation of the ADA, a plaintiff must show that (1) he is disabled 10 within the meaning of the ADA; (2) the defendant is a public entity that owns, leases, or operates a 11 place of public accommodation; and (3) the plaintiff was denied public accommodations by the 12 defendant because of her disability. Arizona ex rel Goddard v. Harkins Amusement Enters., Inc., 13 603 F.3d 666, 670 (9th Cir. 2010). The Association argues that Plaintiff failed to adequately plead 14 facts in the FAC to show that (1) the Association is an owner of a property or an owner, lessor, 15 lessee, or operator of a place of business; (2) the real property owned by the association is the 16 property where Plaintiff’s alleged damages occurred; or (3) the Association is a public 17 accommodation. Dkt 28 at 3-7. 18 The Court finds that the allegations of the FAC are insufficient in several respects. As an 19 initial matter, the Court notes that neither party has described the nature of the property involved 20 in this action in any detail. From the limited information available to the Court, it appears that 21 both commercial buildings and condominiums are located at the site. See FAC ¶ 18, 21 (referring 22 to “sales counters” at Finest Detail and Supply); Dkt. 28 at 2-3 (“The Association is a nonprofit 23 mutual benefit corporation created to manage the Association project for the benefit of the 24 individual condominium owners”); Ex. 1 to Dkt. 30 at Preamble ¶ B (“The property will contain 25 six (6) commercial buildings with twenty-seven (27) condominiums …); id. at Article II § 2.2(B) 26 (referring to condominium units and common area.) 27 First, the FAC does not adequately identify the location where the alleged ADA violations 1 Business Park” as well as sales counters and door hardware at a location identified as “California’s 2 Finest Detail Supply.” FAC ¶¶ 11, 17. The FAC never identifies the location of the Little 3 Orchard Business Park or California’s Finest Detail Supply. 4 Second, and relatedly, the FAC does not establish what interest, if any, the Association has 5 in the property where the alleged ADA violations occurred. According to the FAC, the 6 Association, along with now-dismissed Defendant Straight Arrow, at relevant times “owned 7 portions of the real property located at or about 1847 Little Orchard St, San Jose, California.” 8 FAC ¶ 2. However, as discussed above, the FAC does not allege that the Little Orchard Business 9 Park or California’s Finest Detail Supply, where the alleged ADA violations occurred, are located 10 at this address. Moreover, this vague allegation is insufficient to establish that the Association (as 11 opposed to Straight Arrow or another person or entity) owns the portions of the property that are at 12 issue in this lawsuit. Contrary to the suggestion in the Association’s motion to dismiss, Plaintiff is 13 not necessarily required to “incorporate[] a deed to the real property into his FAC or provide[] 14 some other documentation to support his conclusion that the Association is the owner of the real 15 property.” Dkt. 28 at 4. However, Plaintiff’s vague assertion as to the Association’s ownership of 16 unspecified “portions” of the Little Orchard Street property is insufficient under the facts of this 17 case. 18 This defect is not remedied by the fact that the FAC also alleges that the Association 19 “operates all the commercial common areas including the relevant parking spaces challenged in 20 this case.” Id. ¶ 3. ADA liability extends to a defendant who operates a place public of 21 accommodation, even if the defendant does not own the property. See Arizona ex rel Goddard, 22 603 F.3d at 670. Plaintiff argues that “an operator is any entity that has sufficient ‘control’ or 23 ‘management’ of the operation that it has the ‘power to facilitate any necessary accommodation’ 24 or is ‘in a position to ensure nondiscrimination’ or has the ‘authority’ to ‘instruct’ those carrying 25 out the operations. Dkt. 34 at 5 (quoting Lentini v. Cal. Ctr. For the Arts, Escondido, 370 F.3d 26 837, 849 (9th Cir. 2004)). However, the FAC does not contain any facts supporting a conclusion 27 that the Association is an “operator” under this legal standard. Especially given the uncertainties 1 the Association “operates” the relevant commercial and parking areas is not sufficient. 2 Third, the FAC also fails to adequately allege that property owned and/or operated by the 3 Association (if any) is a public accommodation. The FAC alleges that “California’s Finest Detail 4 Supply and the Little Orchard Business Park itself is a place of public accommodation, facilities 5 open to the public, a and a business establishment (sic).” FAC ¶ 9. However, this allegation is 6 conclusory and is insufficient, especially in light of the fact (discussed above) that the site that is 7 the subject of the Association’s enabling declaration appears to include both condominiums and 8 commercial units. “Under federal law, apartments and condominiums do not, generally speaking, 9 constitute public accommodations within the meaning of the ADA,” however, certain portions of a 10 residential building may be covered by the ADA if “made available to the general public for rental 11 or use.” Macias v. KDF Foxdale LP, No. 5:18-cv-07712-EJD, 2020 WL 2097607, at *4 (N.D. 12 Cal. May 1, 2020 (citation omitted). Plaintiff must supply more information about where the 13 alleged ADA violations occurred and the factual basis for why those areas constitute a public 14 accommodation. 15 C. Unruh Civil Rights Act Claim 16 California’s Unruh Civil Rights Act provides in relevant part that “[a]ll persons within 17 [California] are free and equal, and no matter what their … disability … are entitled to the full and 18 equal accommodations, advantages, facilities, privileges, or services in all business establishments 19 of every kind whatsoever.” Cal. Civ. C. § 51(b). In general, the Unruh Act prohibits only 20 “intentional discrimination in access to public accommodations.” Love v. Mariott Ownership 21 Resorts, Inc., No. 20-cv-07523-CRB, 2021 WL 1176674, at *7 (N.D. Cal. Mar. 29, 2021) (quoting 22 Harris v. Capital Growth Investors XIV, 805 P.2d 873, 874 (Cal. 1991)). However, a violation of 23 the ADA is a per se violation of the Unruh Act regardless of whether the discrimination was 24 intentional. Cal. Civ. C. § 51(f); see also Love, 2021 WL 1176674, at *7 (citation omitted). 25 Plaintiff’s Unruh Act claim does not allege that the Association intentionally discriminated 26 against him. Instead, that claim is premised solely on the alleged violation of the ADA. See FAC 27 ¶ 41. Because Plaintiff has failed to adequately allege a violation of the ADA for the reasons 1 LEAVE TO AMEND. 2 || IV. CONCLUSION 3 For the foregoing reasons, the Court ORDERS as follows: 4 1. The Association’s motion to dismiss the FAC is GRANTED WITH LEAVE TO 5 AMEND. 6 2. If Plaintiff wishes to attempt to address the deficiencies identified in this order, and 7 if he can do so in compliance with the standard set forth in Federal Rule of Civil 8 Procedure 11, he may file a Second Amended Complaint (“SAC”) within 14 days 9 of the date of this order. 10 3. Following the filing of a SAC, the Association must file a response within 14 days. 11 4. Ifthe Association responds by filing a motion to dismiss the SAC, the normal 12 briefing schedule under Civil Local Rule 7 will apply. The Court will advise the 13 parties if a hearing is necessary. SO ORDERED. 15 Dated: May 3, 2021 16 Season □□□ SUSAN VAN KEULEN Z 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28