Spector v. NG & MG Investments LLC

Opinion

----oo0oo---- PAUL SPECTOR, No. 2:23-cv-02950 WBS DB Plaintiff, v. MEMORANDUM AND ORDER RE: MOTION TO DISMISS FIRST NG & MG INVESTMENTS LLC dba AMENDED COMPLAINT OUTSIDE INN, Defendant.

----oo0oo---- Plaintiff Paul Spector brought this action against defendant NG & MG Investments, LLC, doing business as Outside Inn, alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Unruh Civil Rights Act. (First Am. Compl. (“FAC”) (Docket No. 10).) Defendant moves to dismiss plaintiff’s ADA claim on the grounds that he lacks standing and has failed to state a claim. (Docket No. 11.)1

1 Defendant does not move to dismiss the Unruh Act claim. I. Factual and Procedural Background2 Plaintiff was in a serious car accident in 2012 that left him with pain and weakness in his left knee and has arthritis, which interfere with his ability to walk, balance, and stand. (FAC ¶ 11.) He has a trained service dog named “Kokobat,” nicknamed “Koko,” to assist with these impairments. (See id.) Plaintiff has had Koko for two years and typically takes Koko with him whenever he is in public. (Id. ¶¶ 14, 17.) On December 6, 2023, plaintiff and his partner traveled to Nevada City with Koko. (Id. ¶ 18.) They sought to stay the night at the Outside Inn, a hotel located in Nevada City, California, and went there to inquire about room rates and availability. (See id. ¶¶ 19-20.) The employees told plaintiff that the only available room, “The Cabin,” did not allow dogs in order to maintain a room suitable for individuals with dog allergies. (Id. ¶ 20.) The Outside Inn has a total of fifteen rooms, but The Cabin is unique among them because it is a separate structure with a private entrance and a private deck. (See id. ¶ 21.) Because he was denied accommodation at Outside Inn, plaintiff sought accommodation elsewhere in Nevada City. (Id. ¶ 23.) However, there were no other rooms available in Nevada City due to a festival occurring that day, and plaintiff and his partner instead sought accommodation in a different city. (See id. ¶ 22-23.) II. Amended Versus Supplemental Pleading Rule 15(d) provides that “[o]n motion and reasonable 2 All facts recited herein are as alleged in the First Amended Complaint. notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). Amended pleadings “relate to matters that occurred prior to the filing of the original pleading and entirely replace the earlier pleading,” while supplemental pleadings “deal with events subsequent to the pleading to be altered and represent additions to or continuations of the earlier pleadings.” Charles Wright & Arthur Miller, Fed. Prac. & Proc. Civ. § 1504 (3d ed.); see also Eid v. Alaska Airlines, Inc., 621 F.3d 858, 874 (9th Cir. 2010) (“Rule 15(d) provides a mechanism for parties to file additional causes of action based on facts that didn’t exist when the original complaint was filed.”). Defendant argues that plaintiff’s allegations in support of standing, addressed in greater detail below, were improperly included in the First Amended Complaint because they concern actions that plaintiff took following the initiation of the action. Defendant’s point is well taken. If plaintiff’s efforts to bolster his standing occurred following the filing of the initial complaint, allegations concerning those efforts must be treated as a supplemental rather than amended pleading. Exercising its “broad discretion in allowing supplemental pleadings . . . [as] a tool of judicial economy and convenience,” the court will consider plaintiff’s supplemental standing allegations in ruling on this motion. See Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988). III. Standing Federal Rule of Civil Procedure 12(b)(1) governs motions for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). To have standing to sue in federal court, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” See Spokeo v. Robbins, 136 S. Ct. 1540, 1547 (2016) (internal citations omitted). In the context of injunctive relief, plaintiff must additionally demonstrate “a sufficient likelihood that [she] will again be wronged in a similar way.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). The party invoking federal jurisdiction must establish each element with the manner and degree of evidence required at the successive stages of the litigation. See Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002, 1006 (9th Cir. 2011). Accordingly, at the motion to dismiss stage, the court will base its analysis on plaintiff’s First Amended Complaint, which the court accepts as true. See id. To demonstrate standing under Title III of the ADA (under which injunctive relief is the only available remedy), a plaintiff must “demonstrate the familiar requirements for standing -- injury-in-fact, traceability, redressability” -- as well as “‘a sufficient likelihood that he will be wronged again in a similar way.’” See Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (quoting Fortyune v. Am. Multi-Cinema, 364 F.3d at 1081). “That is to say, he must show he faces a ‘real and immediate threat of repeated injury.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). “An ADA plaintiff establishes such a real and immediate threat if ‘he intends to return to a noncompliant place of public accommodation where he will likely suffer repeated injury.’” Id. (quoting Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 948 (9th Cir. 2011)). “Alternatively, a plaintiff who ‘has visited a public accommodation on a prior occasion’ demonstrates a real and immediate threat if he ‘is currently deterred from visiting that accommodation by accessibility barriers.’” Id. (quoting Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008)). A. Injury-in-Fact The court first notes that plaintiff has adequately alleged that defendant’s exclusion of plaintiff’s service dog from The Cabin constituted discrimination under the ADA, thereby establishing an injury-in-fact. In reaching this conclusion, the court relies on guidance from the U.S. Department of Justice (“DOJ”) interpreting the ADA’s implementing regulations, which is “entitled to significant weight.” See Fortyune v. City of Lomita, 766 F.3d 1098, 1104 (9th Cir. 2014). According to DOJ’s guidance concerning service animals:

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility. Dep’t of Justice, ADA Requirements: Service Animals, https://www.ada.gov/resources/service-animals-2010-requirements/ (updated Feb. 28, 2020). Another DOJ publication further explains that hotels may not “assign designated rooms for guests with service animals” or restrict them to “pet-friendly” rooms “out of consideration for other guests” because a “guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities.” See Dep’t of Justice, Frequently Asked Questions about Service Animals and the ADA (“DOJ FAQ”), https://www.ada.gov/resources/service-animals-faqs/ (updated Feb. 28, 2020) (emphasis added). Defendant’s alleged conduct in refusing to rent an available room to plaintiff because of his service dog contravenes this guidance. B. Threat of Future Injury Defendant argues that plaintiff has failed to establish a real and immediate threat of future injury. This argument is unavailing. Plaintiff has pled that he plans to visit Nevada City from December 15th through 17th, 2024, and has booked The Cabin at the Outside Inn for those dates. (FAC ¶¶ 6, 24.) He alleges that he wants to stay at The Cabin because he is interested in the unique features of the room and wants to be able to select from any of the Outside Inn’s rooms, in the same manner as individuals without service dogs. (Id. ¶ 6.) Plaintiff says he believes he will be denied his reserved accommodation when he visits the Outside Inn because he is unaware of any change to the service dog policy (see id. ¶¶ 6-7, 24) and defendant has not indicated to the court that it has changed its policy such that plaintiff and his service dog would be permitted to stay at The Cabin. Plaintiff states that he “is deterred from returning to the hotel until [the service dog policy is changed] but will keep his specific plans for traveling to the Outside Inn on the presumption they will change their policy and follow the law, or that the Court will order them to do so before then.” (Id. ¶ 24.) At the motion to dismiss stage, these allegations are sufficient to establish standing under the ADA. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (ADA plaintiff had standing where he stated that he “ha[d] visited [defendant’s establishment] in the past,” “ha[d] actual knowledge of the barriers to access” at that location, and “prefers” to patronize that type of establishment and would do so in the future “if it were accessible”); cf. Ervine, 753 F.3d at 868 (ADA plaintiff lacked standing where he had “never been a patient” of defendant medical office and “ha[d] no imminent plans to return”); Grechko v. Calistoga Spa, Inc., No. 22-15295, 2023 WL 2755323, at *1 (9th Cir. Apr. 3, 2023) (affirming dismissal for lack of standing where ADA plaintiff alleged that she had frequented defendant’s business “for many years” and had “always requested and received” the accommodation at issue, and thus failed to allege any “real and immediate threat” that the accommodation would be denied in the future). That plaintiff could choose to book one of defendant’s other “dog-friendly” rooms does not defeat standing, as “it is not necessary for standing purposes that the barrier completely preclude the plaintiff from entering or from using a facility in any way.” See Chapman, 631 F.3d at 947. “Rather, the barrier need only interfere with the plaintiff’s ‘full and equal enjoyment’ of the facility.” Id. (quoting 42 U.S.C. § 12182(a)). See also DOJ FAQ (a hotel guest with a service animal “must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities”) (emphasis added). At issue here is a room that is allegedly singularly unique compared to the others available in the hotel (see FAC ¶ 21), which indicates that booking one of the other available rooms would not provide plaintiff with the opportunity for full and equal enjoyment. Based on the foregoing, the court concludes that plaintiff has pled sufficient facts to establish standing under the ADA. IV. Failure to State a Claim Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when the plaintiff’s complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the complaint has stated “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Although legal conclusions “can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. To succeed on a discrimination claim under Title III of the ADA, a plaintiff must show that “(1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodation by the defendant because of his disability.” See Arizona ex rel. Goddard v. Harkins Amusement Enters., 630 F.3d 666, 670 (9th Cir. 2011). Discrimination by a place of public accommodation under the ADA includes, inter alia, “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services,” unless such steps “would fundamentally alter” the nature of the goods, services, or privileges being offered or “would result in an undue burden.” 42 U.S.C. § 12182(b)(2)(A)(iii). Defendant argues that plaintiff has failed to allege sufficient facts under the first and third prongs. Defendant also argues that plaintiff’s ADA claim fails because relief would require a fundamental alteration to its business. A. Disability Defendant argues that plaintiff does not have a qualifying disability. An individual is disabled within the meaning of the ADA when she has “a physical or mental impairment that substantially limits one or more major life activities,” has “a record of such an impairment,” or “[is] regarded as having such an impairment.” 42 U.S.C. § 12102(1). Examples of “major life activities” include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A). “An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.” Id. § 12102(4)(C). An impairment’s effect is analyzed “[in comparison] to most people in the general population. [It] need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” See Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). According to the First Amendment Complaint, plaintiff “was injured in a very serious car accident in 2012 which left him with residual pain and weakness in his left knee and arthritis, all of which cause him difficulty in walking, balancing, and standing for long periods of time.” (FAC ¶ 11.) “While he can walk independently, [his] knee can give out while he is walking which could cause him to fall down.” (Id.) “Walking” and “standing” are both considered major life activities under the ADA. See 42 U.S.C. § 12102(2)(A). Whether plaintiff is in fact “substantially limited” in those activities will ultimately have to be decided by the trier of fact. At this stage of the proceedings, however, plaintiff has adequately met his burden of pleading that he is disabled within the meaning of the ADA by alleging that he has “difficulty” walking and standing, as a result of which he falls down more frequently than the general population and needs assistance with those activities (from his service dog). (See FAC ¶ 11.) B. Causation Defendant argues that plaintiff has failed to plead that he was denied public accommodation by reason of his disability because he has not adequately alleged that Koko is a true service dog. Federal law defines a “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” 28 C.F.R. § 36.104. According to the First Amended Complaint: Plaintiff relies upon his service dog [Koko] to assist him with certain tasks including pulling him upstairs and hills while they are walking that reduce his chances of falling. He also can assist Plaintiff with stabilizing his balance. Koko has been trained to walk on Plaintiff’s left side, and when [Plaintiff’s] knee begins to weaken, Koko leans his considerable weight against Plaintiff and allows him to lean against Koko which provides Plaintiff with necessary stability and support to take some pressure off of his weak left knee. Additionally, Koko is trained to assist Plaintiff in getting down to the floor and back up when he needs to retrieve dropped objects. Koko was professionally trained to be a service dog. (FAC ¶ 11.) Taken as true, plaintiff’s allegations establish that his dog assists with (1) “retrieving items” and (2) “providing physical support and assistance with balance and stability,” which are considered qualifying “tasks for the benefit of an individual with a disability” under the governing regulations. See 28 C.F.R. § 36.104. Accordingly, the court concludes that plaintiff has sufficiently pled that he uses a qualified service animal. C. Fundamental Alteration Finally, defendant argues that plaintiff’s requested modification of allowing service dogs into The Cabin would constitute a fundamental alteration not required by the ADA. Generally, “the determination of what constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry.” Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir. 1996). “Whether an accommodation fundamentally alters a service or facility is an affirmative defense,” Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004), and “ordinarily, affirmative defenses may not be raised on a motion to dismiss,” U.S. Commodity Futures Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019) (cleaned up). Accordingly, “[c]ase law and ADA regulations underscore that whether a requested policy modification or auxiliary aid or service would result in a fundamental alteration or undue burden is . . . inappropriate for disposition prior to discovery.” Martinez v. County of Alameda, 512 F. Supp. 3d 978, 985 (N.D. Cal. 2021) (citing, inter alia, 28 C.F.R. § 35.164; Lentini, 370 F.3d at 845). The court therefore declines to address the issue of fundamental alteration at this stage of the proceedings.3

3 Even if the court were to address the fundamental alteration defense at this stage, defendant has offered only bare legal assertions on the issue and has not established that a hotel not having a dog allergy-specific room would on its face constitute a fundamental alteration such that dismissal is appropriate. nnn nnn nee en enn nnn OO EI IERIE IE ED eee eee

IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Docket No. 11) be, and the same hereby is, DENIED. Dated: April 30, 2024 oh hte Hh. (hi. □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ UNITED STATES DISTRICT JUDGE 13