Spector v. NG & MG Investments LLC

• Court: District Court, E.D. California
• Decided: April 30, 2024
• Docket: 2:23-cv-02950
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PAUL SPECTOR, No. 2:23-cv-02950 WBS DB 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: MOTION TO DISMISS FIRST 15 NG & MG INVESTMENTS LLC dba AMENDED COMPLAINT OUTSIDE INN, 16 Defendant. 17

18 ----oo0oo---- 19 Plaintiff Paul Spector brought this action against 20 defendant NG & MG Investments, LLC, doing business as Outside 21 Inn, alleging violations of the Americans with Disabilities Act 22 (“ADA”), 42 U.S.C. § 12101 et seq., and the Unruh Civil Rights 23 Act. (First Am. Compl. (“FAC”) (Docket No. 10).) Defendant 24 moves to dismiss plaintiff’s ADA claim on the grounds that he 25 lacks standing and has failed to state a claim. (Docket No. 26 11.)1 27

28 1 Defendant does not move to dismiss the Unruh Act claim. 1 I. Factual and Procedural Background2 2 Plaintiff was in a serious car accident in 2012 that 3 left him with pain and weakness in his left knee and has 4 arthritis, which interfere with his ability to walk, balance, and 5 stand. (FAC ¶ 11.) He has a trained service dog named 6 “Kokobat,” nicknamed “Koko,” to assist with these impairments. 7 (See id.) Plaintiff has had Koko for two years and typically 8 takes Koko with him whenever he is in public. (Id. ¶¶ 14, 17.) 9 On December 6, 2023, plaintiff and his partner traveled 10 to Nevada City with Koko. (Id. ¶ 18.) They sought to stay the 11 night at the Outside Inn, a hotel located in Nevada City, 12 California, and went there to inquire about room rates and 13 availability. (See id. ¶¶ 19-20.) The employees told plaintiff 14 that the only available room, “The Cabin,” did not allow dogs in 15 order to maintain a room suitable for individuals with dog 16 allergies. (Id. ¶ 20.) The Outside Inn has a total of fifteen 17 rooms, but The Cabin is unique among them because it is a 18 separate structure with a private entrance and a private deck. 19 (See id. ¶ 21.) Because he was denied accommodation at Outside 20 Inn, plaintiff sought accommodation elsewhere in Nevada City. 21 (Id. ¶ 23.) However, there were no other rooms available in 22 Nevada City due to a festival occurring that day, and plaintiff 23 and his partner instead sought accommodation in a different city. 24 (See id. ¶ 22-23.) 25 II. Amended Versus Supplemental Pleading 26 Rule 15(d) provides that “[o]n motion and reasonable 27 2 All facts recited herein are as alleged in the First 28 Amended Complaint. 1 notice, the court may, on just terms, permit a party to serve a 2 supplemental pleading setting out any transaction, occurrence, or 3 event that happened after the date of the pleading to be 4 supplemented.” Fed. R. Civ. P. 15(d). Amended pleadings “relate 5 to matters that occurred prior to the filing of the original 6 pleading and entirely replace the earlier pleading,” while 7 supplemental pleadings “deal with events subsequent to the 8 pleading to be altered and represent additions to or 9 continuations of the earlier pleadings.” Charles Wright & Arthur 10 Miller, Fed. Prac. & Proc. Civ. § 1504 (3d ed.); see also Eid v. 11 Alaska Airlines, Inc., 621 F.3d 858, 874 (9th Cir. 2010) (“Rule 12 15(d) provides a mechanism for parties to file additional causes 13 of action based on facts that didn’t exist when the original 14 complaint was filed.”). 15 Defendant argues that plaintiff’s allegations in 16 support of standing, addressed in greater detail below, were 17 improperly included in the First Amended Complaint because they 18 concern actions that plaintiff took following the initiation of 19 the action. Defendant’s point is well taken. If plaintiff’s 20 efforts to bolster his standing occurred following the filing of 21 the initial complaint, allegations concerning those efforts must 22 be treated as a supplemental rather than amended pleading. 23 Exercising its “broad discretion in allowing supplemental 24 pleadings . . . [as] a tool of judicial economy and convenience,” 25 the court will consider plaintiff’s supplemental standing 26 allegations in ruling on this motion. See Keith v. Volpe, 858 27 F.2d 467, 473 (9th Cir. 1988). 28 1 III. Standing 2 Federal Rule of Civil Procedure 12(b)(1) governs 3 motions for lack of subject matter jurisdiction. See Fed. R. 4 Civ. P. 12(b)(1). To have standing to sue in federal court, a 5 plaintiff must have “(1) suffered an injury in fact, (2) that is 6 fairly traceable to the challenged conduct of the defendant, and 7 (3) that is likely to be redressed by a favorable judicial 8 decision.” See Spokeo v. Robbins, 136 S. Ct. 1540, 1547 (2016) 9 (internal citations omitted). In the context of injunctive 10 relief, plaintiff must additionally demonstrate “a sufficient 11 likelihood that [she] will again be wronged in a similar way.” 12 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 13 2004). The party invoking federal jurisdiction must establish 14 each element with the manner and degree of evidence required at 15 the successive stages of the litigation. See Carrico v. City and 16 Cnty. of San Francisco, 656 F.3d 1002, 1006 (9th Cir. 2011). 17 Accordingly, at the motion to dismiss stage, the court will base 18 its analysis on plaintiff’s First Amended Complaint, which the 19 court accepts as true. See id. 20 To demonstrate standing under Title III of the ADA 21 (under which injunctive relief is the only available remedy), a 22 plaintiff must “demonstrate the familiar requirements for 23 standing -- injury-in-fact, traceability, redressability” -- as 24 well as “‘a sufficient likelihood that he will be wronged again 25 in a similar way.’” See Ervine v. Desert View Reg’l Med. Ctr. 26 Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (quoting 27 Fortyune v. Am. Multi-Cinema, 364 F.3d at 1081). “That is to 28 say, he must show he faces a ‘real and immediate threat of 1 repeated injury.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 2 488, 496 (1974)). “An ADA plaintiff establishes such a real and 3 immediate threat if ‘he intends to return to a noncompliant place 4 of public accommodation where he will likely suffer repeated 5 injury.’” Id. (quoting Chapman v. Pier 1 Imports (U.S.) Inc., 6 631 F.3d 939, 948 (9th Cir. 2011)). “Alternatively, a plaintiff 7 who ‘has visited a public accommodation on a prior occasion’ 8 demonstrates a real and immediate threat if he ‘is currently 9 deterred from visiting that accommodation by accessibility 10 barriers.’” Id. (quoting Doran v. 7–Eleven, Inc., 524 F.3d 1034, 11 1041 (9th Cir. 2008)). 12 A. Injury-in-Fact 13 The court first notes that plaintiff has adequately 14 alleged that defendant’s exclusion of plaintiff’s service dog 15 from The Cabin constituted discrimination under the ADA, thereby 16 establishing an injury-in-fact. In reaching this conclusion, the 17 court relies on guidance from the U.S. Department of Justice 18 (“DOJ”) interpreting the ADA’s implementing regulations, which is 19 “entitled to significant weight.” See Fortyune v. City of 20 Lomita, 766 F.3d 1098, 1104 (9th Cir. 2014). 21 According to DOJ’s guidance concerning service animals:

22 Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. 23 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 24 facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by 25 assigning them, if possible, to different locations within the room or different rooms in the facility. 26 27 Dep’t of Justice, ADA Requirements: Service Animals, 28 https://www.ada.gov/resources/service-animals-2010-requirements/ 1 (updated Feb. 28, 2020). 2 Another DOJ publication further explains that hotels 3 may not “assign designated rooms for guests with service animals” 4 or restrict them to “pet-friendly” rooms “out of consideration 5 for other guests” because a “guest with a disability who uses a 6 service animal must be provided the same opportunity to reserve 7 any available room at the hotel as other guests without 8 disabilities.” See Dep’t of Justice, Frequently Asked Questions 9 about Service Animals and the ADA (“DOJ FAQ”), 10 https://www.ada.gov/resources/service-animals-faqs/ (updated Feb. 11 28, 2020) (emphasis added). Defendant’s alleged conduct in 12 refusing to rent an available room to plaintiff because of his 13 service dog contravenes this guidance. 14 B. Threat of Future Injury 15 Defendant argues that plaintiff has failed to establish 16 a real and immediate threat of future injury. This argument is 17 unavailing. Plaintiff has pled that he plans to visit Nevada 18 City from December 15th through 17th, 2024, and has booked The 19 Cabin at the Outside Inn for those dates. (FAC ¶¶ 6, 24.) He 20 alleges that he wants to stay at The Cabin because he is 21 interested in the unique features of the room and wants to be 22 able to select from any of the Outside Inn’s rooms, in the same 23 manner as individuals without service dogs. (Id. ¶ 6.) 24 Plaintiff says he believes he will be denied his reserved 25 accommodation when he visits the Outside Inn because he is 26 unaware of any change to the service dog policy (see id. ¶¶ 6-7, 27 24) and defendant has not indicated to the court that it has 28 changed its policy such that plaintiff and his service dog would 1 be permitted to stay at The Cabin. Plaintiff states that he “is 2 deterred from returning to the hotel until [the service dog 3 policy is changed] but will keep his specific plans for traveling 4 to the Outside Inn on the presumption they will change their 5 policy and follow the law, or that the Court will order them to 6 do so before then.” (Id. ¶ 24.) 7 At the motion to dismiss stage, these allegations are 8 sufficient to establish standing under the ADA. See Pickern v. 9 Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) 10 (ADA plaintiff had standing where he stated that he “ha[d] 11 visited [defendant’s establishment] in the past,” “ha[d] actual 12 knowledge of the barriers to access” at that location, and 13 “prefers” to patronize that type of establishment and would do so 14 in the future “if it were accessible”); cf. Ervine, 753 F.3d at 15 868 (ADA plaintiff lacked standing where he had “never been a 16 patient” of defendant medical office and “ha[d] no imminent plans 17 to return”); Grechko v. Calistoga Spa, Inc., No. 22-15295, 2023 18 WL 2755323, at *1 (9th Cir. Apr. 3, 2023) (affirming dismissal 19 for lack of standing where ADA plaintiff alleged that she had 20 frequented defendant’s business “for many years” and had “always 21 requested and received” the accommodation at issue, and thus 22 failed to allege any “real and immediate threat” that the 23 accommodation would be denied in the future). 24 That plaintiff could choose to book one of defendant’s 25 other “dog-friendly” rooms does not defeat standing, as “it is 26 not necessary for standing purposes that the barrier completely 27 preclude the plaintiff from entering or from using a facility in 28 any way.” See Chapman, 631 F.3d at 947. “Rather, the barrier 1 need only interfere with the plaintiff’s ‘full and equal 2 enjoyment’ of the facility.” Id. (quoting 42 U.S.C. § 12182(a)). 3 See also DOJ FAQ (a hotel guest with a service animal “must be 4 provided the same opportunity to reserve any available room at 5 the hotel as other guests without disabilities”) (emphasis 6 added). At issue here is a room that is allegedly singularly 7 unique compared to the others available in the hotel (see FAC ¶ 8 21), which indicates that booking one of the other available 9 rooms would not provide plaintiff with the opportunity for full 10 and equal enjoyment. 11 Based on the foregoing, the court concludes that 12 plaintiff has pled sufficient facts to establish standing under 13 the ADA. 14 IV. Failure to State a Claim 15 Federal Rule of Civil Procedure 12(b)(6) allows for 16 dismissal when the plaintiff’s complaint fails to state a claim 17 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 18 The inquiry before the court is whether, accepting the 19 allegations in the complaint as true and drawing all reasonable 20 inferences in the plaintiff’s favor, the complaint has stated “a 21 claim to relief that is plausible on its face.” Bell Atl. Corp. 22 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard 23 is not akin to a ‘probability requirement,’ but it asks for more 24 than a sheer possibility that a defendant has acted unlawfully.” 25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 26 recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Id. Although legal 28 conclusions “can provide the framework of a complaint, they must 1 be supported by factual allegations.” Id. at 679. 2 To succeed on a discrimination claim under Title III of 3 the ADA, a plaintiff must show that “(1) he is disabled within 4 the meaning of the ADA; (2) the defendant is a private entity 5 that owns, leases, or operates a place of public accommodation; 6 and (3) the plaintiff was denied public accommodation by the 7 defendant because of his disability.” See Arizona ex rel. 8 Goddard v. Harkins Amusement Enters., 630 F.3d 666, 670 (9th Cir. 9 2011). 10 Discrimination by a place of public accommodation under 11 the ADA includes, inter alia, “a failure to take such steps as 12 may be necessary to ensure that no individual with a disability 13 is excluded, denied services, segregated or otherwise treated 14 differently than other individuals because of the absence of 15 auxiliary aids and services,” unless such steps “would 16 fundamentally alter” the nature of the goods, services, or 17 privileges being offered or “would result in an undue burden.” 18 42 U.S.C. § 12182(b)(2)(A)(iii). 19 Defendant argues that plaintiff has failed to allege 20 sufficient facts under the first and third prongs. Defendant 21 also argues that plaintiff’s ADA claim fails because relief would 22 require a fundamental alteration to its business. 23 A. Disability 24 Defendant argues that plaintiff does not have a 25 qualifying disability. An individual is disabled within the 26 meaning of the ADA when she has “a physical or mental impairment 27 that substantially limits one or more major life activities,” has 28 “a record of such an impairment,” or “[is] regarded as having 1 such an impairment.” 42 U.S.C. § 12102(1). Examples of “major 2 life activities” include “caring for oneself, performing manual 3 tasks, seeing, hearing, eating, sleeping, walking, standing, 4 lifting, bending, speaking, breathing, learning, reading, 5 concentrating, thinking, communicating, and working.” Id. § 6 12102(2)(A). “An impairment that substantially limits one major 7 life activity need not limit other major life activities in order 8 to be considered a disability.” Id. § 12102(4)(C). An 9 impairment’s effect is analyzed “[in comparison] to most people 10 in the general population. [It] need not prevent, or 11 significantly or severely restrict, the individual from 12 performing a major life activity in order to be considered 13 substantially limiting.” See Weaving v. City of Hillsboro, 763 14 F.3d 1106, 1111 (9th Cir. 2014) (quoting 29 C.F.R. § 15 1630.2(j)(1)(ii)). 16 According to the First Amendment Complaint, plaintiff 17 “was injured in a very serious car accident in 2012 which left 18 him with residual pain and weakness in his left knee and 19 arthritis, all of which cause him difficulty in walking, 20 balancing, and standing for long periods of time.” (FAC ¶ 11.) 21 “While he can walk independently, [his] knee can give out while 22 he is walking which could cause him to fall down.” (Id.) 23 “Walking” and “standing” are both considered major life 24 activities under the ADA. See 42 U.S.C. § 12102(2)(A). Whether 25 plaintiff is in fact “substantially limited” in those activities 26 will ultimately have to be decided by the trier of fact. At this 27 stage of the proceedings, however, plaintiff has adequately met 28 his burden of pleading that he is disabled within the meaning of 1 the ADA by alleging that he has “difficulty” walking and 2 standing, as a result of which he falls down more frequently than 3 the general population and needs assistance with those activities 4 (from his service dog). (See FAC ¶ 11.) 5 B. Causation 6 Defendant argues that plaintiff has failed to plead 7 that he was denied public accommodation by reason of his 8 disability because he has not adequately alleged that Koko is a 9 true service dog. 10 Federal law defines a “service animal” as “any dog that 11 is individually trained to do work or perform tasks for the 12 benefit of an individual with a disability, including a physical, 13 sensory, psychiatric, intellectual, or other mental disability.” 14 28 C.F.R. § 36.104. 15 According to the First Amended Complaint: 16 Plaintiff relies upon his service dog [Koko] to assist him with certain tasks including pulling him upstairs and hills 17 while they are walking that reduce his chances of falling. He also can assist Plaintiff with stabilizing his balance. 18 Koko has been trained to walk on Plaintiff’s left side, and when [Plaintiff’s] knee begins to weaken, Koko leans his 19 considerable weight against Plaintiff and allows him to lean against Koko which provides Plaintiff with necessary 20 stability and support to take some pressure off of his weak left knee. Additionally, Koko is trained to assist 21 Plaintiff in getting down to the floor and back up when he needs to retrieve dropped objects. Koko was professionally 22 trained to be a service dog. 23 (FAC ¶ 11.) 24 Taken as true, plaintiff’s allegations establish that 25 his dog assists with (1) “retrieving items” and (2) “providing 26 physical support and assistance with balance and stability,” 27 which are considered qualifying “tasks for the benefit of an 28 individual with a disability” under the governing regulations. 1 See 28 C.F.R. § 36.104. Accordingly, the court concludes that 2 plaintiff has sufficiently pled that he uses a qualified service 3 animal. 4 C. Fundamental Alteration 5 Finally, defendant argues that plaintiff’s requested 6 modification of allowing service dogs into The Cabin would 7 constitute a fundamental alteration not required by the ADA. 8 Generally, “the determination of what constitutes reasonable 9 modification is highly fact-specific, requiring case-by-case 10 inquiry.” Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir. 11 1996). “Whether an accommodation fundamentally alters a service 12 or facility is an affirmative defense,” Lentini v. Cal. Ctr. for 13 the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004), and 14 “ordinarily, affirmative defenses may not be raised on a motion 15 to dismiss,” U.S. Commodity Futures Trading Comm’n v. Monex 16 Credit Co., 931 F.3d 966, 972 (9th Cir. 2019) (cleaned up). 17 Accordingly, “[c]ase law and ADA regulations underscore 18 that whether a requested policy modification or auxiliary aid or 19 service would result in a fundamental alteration or undue burden 20 is . . . inappropriate for disposition prior to discovery.” 21 Martinez v. County of Alameda, 512 F. Supp. 3d 978, 985 (N.D. 22 Cal. 2021) (citing, inter alia, 28 C.F.R. § 35.164; Lentini, 370 23 F.3d at 845). The court therefore declines to address the issue 24 of fundamental alteration at this stage of the proceedings.3

25 3 Even if the court were to address the fundamental alteration defense at this stage, defendant has offered only bare 26 legal assertions on the issue and has not established that a 27 hotel not having a dog allergy-specific room would on its face constitute a fundamental alteration such that dismissal is 28 appropriate. nnn nnn nee en enn nnn OO EI IERIE IE ED eee eee

1 IT IS THEREFORE ORDERED that defendant’s motion to 2 dismiss (Docket No. 11) be, and the same hereby is, DENIED. 3 Dated: April 30, 2024 oh hte Hh. (hi. 4 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13