Johnson v. Tom

N.D. California

Johnson v. Tom

DecidedSeptember 30, 2019

Docket5:18-cv-01297

StatusUnknown

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Johnson v. Tom, (N.D. Cal. 2019).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 SCOTT JOHNSON, 8 Case No. 5:18-cv-01297-EJD Plaintiff, 9 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS UNDER FED. R. 10 CIV. P. 12(b)(1) FOR LACK OF LEONARD TOM, et al., SUBJECT-MATTER JURISDICTION 11 Defendants. Re: Dkt. No. 29 12

13 Defendants Leonard and Pearl Lai Tom move to dismiss the complaint for lack of subject- 14 matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).1 Memorandum of Points 15 and Authorities in Support of Defendants’ Motion to Dismiss (“Mot.”), Dkt. 29. The Court finds 16 it appropriate to take the motion under submission for decision without oral argument pursuant to 17 Civil Local Rule 7-1(b). For the reasons set forth below, the motion is GRANTED. 18 I. BACKGROUND 19 Plaintiff Scott Johnson is a level C-5 quadriplegic. Complaint for Damages and Injunctive 20 Relief (“Compl.”) ¶ 1, Dkt. 1. He cannot walk, has significant manual dexterity impairments, uses 21 a wheelchair, and has a specially equipped van. Id. 22 Plaintiff went to the Forever Young Salon (“Salon”) seven times between April 2017 and 23 January 2018. Id. ¶¶ 22, 41–47. Plaintiff alleges that although there were reserved parking spots 24 for salon patrons, there were “no compliant, accessible handicap parking spaces available for 25 persons with disabilities that complied with the Americans with Disability Act Accessibility 26

27 1 This Court does not address the request for judicial notice as the documents sought to be notice relate to Defendants’ standing argument, an argument which this Court does not reach. 1 Guidelines (ADAAG)” during Plaintiff’s visits. Id. ¶ 25. Plaintiff initiated this action on 2 February 28, 2018, asserting violations of the Americans with Disabilities Act of 1990 (“ADA”), 3 42 U.S.C. § 12101, et seq., and California’s Unruh Civil Rights Act, Cal. Civ. Code § 51-53 4 (“Unruh Act”). 5 II. LEGAL STANDARDS 6 A. Rule 12(b)(1) 7 To contest a plaintiff’s showing of subject matter jurisdiction, a defendant may file a Rule 8 12(b)(1) motion. Fed. R. Civ. P. 12(b)(1). A defendant may either challenge jurisdiction 9 “facially” by arguing the complaint “on its face” lacks jurisdiction or “factually” by presenting 10 extrinsic evidence (affidavits, etc.) demonstrating the lack of jurisdiction on the facts of the case. 11 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d 12 1035, 1039 (9th Cir. 2004). In resolving a factual attack, the district court may review evidence 13 beyond the complaint without converting the motion to dismiss into one for summary judgment. 14 Safe Air, 373 F.3d at 1039. No presumptive truthfulness attaches to the plaintiff’s allegations and 15 the existence of disputed material facts will not preclude the trial court from evaluating the merits 16 of jurisdictional claims. Gregory Vill. Partners, L.P. v. Chevron, U.S.A., Inc., 805 F. Supp. 2d 17 888, 895 (N.D. Cal. 2011). Further, once the defendant presents extrinsic evidence, the plaintiff, 18 must establish jurisdiction with evidence from other sources. Id.; see also Savage v. Glendale 19 Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). 20 B. Mootness 21 Mootness is raised under Rule 12(b)(1). Id. Federal courts are “without power to decide 22 questions that cannot affect the rights of litigants in the case before them.” DeFunis v. Odegaard, 23 416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971). The 24 inability to review moot cases derives from Article III’s requirement that a “case or controversy” 25 exist between the parties. DeFunis, 416 U.S. at 316. A case is moot “if subsequent events [make] 26 it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” 27 United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968). A defendant’s 1 voluntary cessation of allegedly wrongful conduct is unlikely to moot a case. Already, LLC v. 2 Nike, Inc., 568 U.S. 85, 91 (2013). A defendant claiming its voluntary compliance moots a case 3 bears the formidable burden of showing the wrongful conduct will not recur. Friends of the Earth, 4 Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). 5 III. DISCUSSION 6 Defendants contend Plaintiff’s ADA claim is moot. Mot. at 3. Defendant Pearl Lai Tran’s 7 Declaration creates a factual challenge to subject-matter jurisdiction—she states that the Salon is 8 no longer operating, and she has no intention of reletting the space to the Salon. Amended 9 Declaration of Pearl Lai Tom (“Lai Decl.”) ¶ 4. Instead, Defendants are in the process of 10 converting the real property into a forty-four-unit residential property and are obtaining permits 11 and approval to begin construction. Id. ¶ 5, Ex. A; cf. Trostenetsky v. Keys Condo. Owners Ass’n, 12 2018 WL 2234599, at *2 (N.D. Cal. May 16, 2018) (“Under federal law, apartments and 13 condominiums do not, generally speaking, constitute public accommodations within the meaning 14 of the ADA.”). The Salon’s permanent closure, and the fact that the building replacing falls 15 outside the ADA, renders the claim moot because there is “no longer a reasonable expectation the 16 [ADA] violation[s] will recur.” Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979); Oliver v. Ralphs 17 Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011) (noting that private plaintiff may only sue for 18 injunctive relief under the ADA); Johnson v. Lake Tahoe Partners, 2014 WL 2548830, at *3 (E.D. 19 Cal. June 5, 2014) (“Courts have found ADA cases to be moot when the challenged premises have 20 closed with no plans to reopen or lease to new tenants.”). 21 In rebuttal, Plaintiff argues there is “no evidence” to determine if the Salon has actually 22 ceased operation and that this Court should disregard the “self-serving” Declaration. Opposition 23 to Motion to Dismiss (“Opp.”) at 3, Dkt. 33. This, however, is not the standard for a factual Rule 24 12(b)(1) challenge. The Court may consider properly presented extrinsic evidence, i.e., 25 declarations. See Safe Air, 373 F.3d at 1039. Moreover, Plaintiff provides no basis for this Court 26 to disregard the declarations; he does not allege any facts to support the inference that Defendants 27 have perjured themselves. Instead, as Exhibit A shows, Defendants are actively seeking to build ] on their property, thus mooting Plaintiff's claim, a showing which Plaintiff does not actually 2 || contest. See Gregory Vill. Partners, 805 F. Supp. 2d at 895 (“[T] he plaintiff, who bears the 3 || burden of proof that jurisdiction does in fact exist, must establish jurisdiction with evidence from 4 || other sources.”).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 SCOTT JOHNSON, 8 Case No. 5:18-cv-01297-EJD Plaintiff, 9 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS UNDER FED. R. 10 CIV. P. 12(b)(1) FOR LACK OF LEONARD TOM, et al., SUBJECT-MATTER JURISDICTION 11 Defendants. Re: Dkt. No. 29 12

13 Defendants Leonard and Pearl Lai Tom move to dismiss the complaint for lack of subject- 14 matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).1 Memorandum of Points 15 and Authorities in Support of Defendants’ Motion to Dismiss (“Mot.”), Dkt. 29. The Court finds 16 it appropriate to take the motion under submission for decision without oral argument pursuant to 17 Civil Local Rule 7-1(b). For the reasons set forth below, the motion is GRANTED. 18 I. BACKGROUND 19 Plaintiff Scott Johnson is a level C-5 quadriplegic. Complaint for Damages and Injunctive 20 Relief (“Compl.”) ¶ 1, Dkt. 1. He cannot walk, has significant manual dexterity impairments, uses 21 a wheelchair, and has a specially equipped van. Id. 22 Plaintiff went to the Forever Young Salon (“Salon”) seven times between April 2017 and 23 January 2018. Id. ¶¶ 22, 41–47. Plaintiff alleges that although there were reserved parking spots 24 for salon patrons, there were “no compliant, accessible handicap parking spaces available for 25 persons with disabilities that complied with the Americans with Disability Act Accessibility 26

27 1 This Court does not address the request for judicial notice as the documents sought to be notice relate to Defendants’ standing argument, an argument which this Court does not reach. 1 Guidelines (ADAAG)” during Plaintiff’s visits. Id. ¶ 25. Plaintiff initiated this action on 2 February 28, 2018, asserting violations of the Americans with Disabilities Act of 1990 (“ADA”), 3 42 U.S.C. § 12101, et seq., and California’s Unruh Civil Rights Act, Cal. Civ. Code § 51-53 4 (“Unruh Act”). 5 II. LEGAL STANDARDS 6 A. Rule 12(b)(1) 7 To contest a plaintiff’s showing of subject matter jurisdiction, a defendant may file a Rule 8 12(b)(1) motion. Fed. R. Civ. P. 12(b)(1). A defendant may either challenge jurisdiction 9 “facially” by arguing the complaint “on its face” lacks jurisdiction or “factually” by presenting 10 extrinsic evidence (affidavits, etc.) demonstrating the lack of jurisdiction on the facts of the case. 11 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d 12 1035, 1039 (9th Cir. 2004). In resolving a factual attack, the district court may review evidence 13 beyond the complaint without converting the motion to dismiss into one for summary judgment. 14 Safe Air, 373 F.3d at 1039. No presumptive truthfulness attaches to the plaintiff’s allegations and 15 the existence of disputed material facts will not preclude the trial court from evaluating the merits 16 of jurisdictional claims. Gregory Vill. Partners, L.P. v. Chevron, U.S.A., Inc., 805 F. Supp. 2d 17 888, 895 (N.D. Cal. 2011). Further, once the defendant presents extrinsic evidence, the plaintiff, 18 must establish jurisdiction with evidence from other sources. Id.; see also Savage v. Glendale 19 Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). 20 B. Mootness 21 Mootness is raised under Rule 12(b)(1). Id. Federal courts are “without power to decide 22 questions that cannot affect the rights of litigants in the case before them.” DeFunis v. Odegaard, 23 416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971). The 24 inability to review moot cases derives from Article III’s requirement that a “case or controversy” 25 exist between the parties. DeFunis, 416 U.S. at 316. A case is moot “if subsequent events [make] 26 it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” 27 United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968). A defendant’s 1 voluntary cessation of allegedly wrongful conduct is unlikely to moot a case. Already, LLC v. 2 Nike, Inc., 568 U.S. 85, 91 (2013). A defendant claiming its voluntary compliance moots a case 3 bears the formidable burden of showing the wrongful conduct will not recur. Friends of the Earth, 4 Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). 5 III. DISCUSSION 6 Defendants contend Plaintiff’s ADA claim is moot. Mot. at 3. Defendant Pearl Lai Tran’s 7 Declaration creates a factual challenge to subject-matter jurisdiction—she states that the Salon is 8 no longer operating, and she has no intention of reletting the space to the Salon. Amended 9 Declaration of Pearl Lai Tom (“Lai Decl.”) ¶ 4. Instead, Defendants are in the process of 10 converting the real property into a forty-four-unit residential property and are obtaining permits 11 and approval to begin construction. Id. ¶ 5, Ex. A; cf. Trostenetsky v. Keys Condo. Owners Ass’n, 12 2018 WL 2234599, at *2 (N.D. Cal. May 16, 2018) (“Under federal law, apartments and 13 condominiums do not, generally speaking, constitute public accommodations within the meaning 14 of the ADA.”). The Salon’s permanent closure, and the fact that the building replacing falls 15 outside the ADA, renders the claim moot because there is “no longer a reasonable expectation the 16 [ADA] violation[s] will recur.” Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979); Oliver v. Ralphs 17 Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011) (noting that private plaintiff may only sue for 18 injunctive relief under the ADA); Johnson v. Lake Tahoe Partners, 2014 WL 2548830, at *3 (E.D. 19 Cal. June 5, 2014) (“Courts have found ADA cases to be moot when the challenged premises have 20 closed with no plans to reopen or lease to new tenants.”). 21 In rebuttal, Plaintiff argues there is “no evidence” to determine if the Salon has actually 22 ceased operation and that this Court should disregard the “self-serving” Declaration. Opposition 23 to Motion to Dismiss (“Opp.”) at 3, Dkt. 33. This, however, is not the standard for a factual Rule 24 12(b)(1) challenge. The Court may consider properly presented extrinsic evidence, i.e., 25 declarations. See Safe Air, 373 F.3d at 1039. Moreover, Plaintiff provides no basis for this Court 26 to disregard the declarations; he does not allege any facts to support the inference that Defendants 27 have perjured themselves. Instead, as Exhibit A shows, Defendants are actively seeking to build ] on their property, thus mooting Plaintiff's claim, a showing which Plaintiff does not actually 2 || contest. See Gregory Vill. Partners, 805 F. Supp. 2d at 895 (“[T] he plaintiff, who bears the 3 || burden of proof that jurisdiction does in fact exist, must establish jurisdiction with evidence from 4 || other sources.”). 5 Finally, Plaintiff again tries to argue to this Court that the motion to dismiss is barred by 6 || the stay under General Order 56, which imposes a stay on “[a]ll other discovery and proceedings.” 7 As this Court concluded in Johnson v. 1082 El Camino Real, L.P., 2018 WL 1091267, at *2 (N.D. 8 Cal. Feb. 28, 2018), General Order 56 does not impose a stay on the filing of responsive pleading. 9 IV. CONCLUSION 10 For the reasons set forth above, Plaintiff's ADA claim is dismissed. Pursuant to 28 U.S.C. 11 § 1367(c)(3), the Court declines to exercise supplemental jurisdiction over the remaining Unruh 12 || Act Claim and dismisses this state law claim without prejudice. The Clerk shall close the file. 13 IT ISSO ORDERED. 14 || Dated: September 30, 2019

United States District Judge

Z 18 19 20 21 22 23 24 25 26 27 28 Case No.: 5:18-cv-01297-EJD ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

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