Sepulveda v. Perez

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICHARD SEPULVEDA, Case No. 23-cv-03897-EMC

8 Plaintiff, ORDER RE SUPPLEMENTAL 9 v. BRIEFING AND/OR EVIDENCE

10 ENCARNACION PEREZ, et al., Docket No. 35 11 Defendants.

12 13 14 The Court has reviewed Plaintiff’s motion for default judgment on the remaining ADA 15 claim. Having reviewed such, the Court hereby orders that Plaintiff provide supplemental briefing 16 and/or evidence on the issues below. The supplemental briefing and/or evidence shall be filed 17 and served on Defendants within a week of the date of this order. 18 A. Standing 19 At the time the complaint was filed, Plaintiff alleged that he had visited the restaurant at 20 issue, located in Oakland, on two different dates (June 2023 and July 2023) and encountered 21 barriers to access. See Compl. ¶ 12. He also alleged that he planned to return to the restaurant 22 once it is made accessible and asserted that these plans are substantiated by the fact that he lives in 23 Oakland – about six miles away from the restaurant – and “travels regularly to and through [the] 24 city on business and pleasure trips.” Compl. ¶ 14. 25 Based on the pending motion, it now appears that Plaintiff no longer lives in Oakland. 26 Plaintiff’s counsel has submitted a declaration in which he states as follows:

27 My client, Richard Sepulveda, lived, at the time of the filing of the Manteca, California, about sixty-four miles away, but he returns 1 regularly to Oakland, where he lived for many years, to visit friends and for medical appointments. This business is on Foothill Blvd., 2 the main thoroughfare in Oakland. 3 MacBride Decl. ¶ 3. 4 Although the Court appreciates counsel’s candor, a declaration from counsel is not 5 sufficient. Rather, a declaration should have been provided by Plaintiff himself. The Court 6 therefore orders Plaintiff to file a declaration, submitted under penalty of perjury. The declaration 7 should address, inter alia, when Plaintiff moved to Manteca, how many times has he visited 8 Oakland since then and the reasons therefor, and his reasonable expectations about visits to 9 Oakland in the future and the reasons therefor. See Chapman v. Pismo Food Store, 710 F. App'x 10 769, 770 (9th Cir. 2018) ("Chapman . . . failed to demonstrate an intent to return to the store. 11 Chapman failed to establish any regularity in his visits to Pismo Beach, where the store is located, 12 and likewise failed to present sufficient evidence of more than a vague desire to return to the 13 store."). If there are any confidential matters in the declaration (e.g., related to medical 14 appointments), Plaintiff may ask for the confidential portions to be filed under seal. 15 B. Lease 16 In his motion, Plaintiff asks that injunctive relief be issued – “to the extent each Defendant 17 has the legal right to do so under the lease and state law” and/or “to the extent that the tenant 18 and/or the landlord has control over these aspects of the property under the lease and state law.” 19 Mot. at 18. Plaintiff’s concern here seems to relate to Kohler v. Bed Bath & Beyond of Cal., LLC, 20 780 F.3d 1260, 1264 (9th Cir. 2015). There, the Ninth Circuit noted that a landlord cannot 21 “contract away its responsibility under the ADA” but that a tenant can only be held responsible for 22 the part of the property it has leased. Id. at 1264 (“BB&B, like any tenant, has no preexisting 23 control of a property. Absent a lease, it lacks any legal relationship at all to the property. That it 24 takes control of a part of the property, subject to a lease, imposes ADA compliance obligations on 25 it for that part of the property it controls”). 26 While it is a reasonable inference (based on the allegations in the complaint) that at least 27 some of the defendants have control over the restaurant, which would give them the right to make 1 parking lot? Is there any evidence that any defendant’s control over the restaurant extends to the 2 || parking lot? Is it Plaintiff’s burden to show that a defendant has control over the parking lot? 3 Plaintiff shall immediately serve a copy of this order on Defendants and file a proof of 4 || service with the Court. 5 6 IT IS SO ORDERED. 7 8 Dated: October 4, 2024 9 10 EDWA ~CHEN 11 United States District Judge a 12

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