Strojnik v. Moraya Investments, LLC

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PETER STROJNIK, Case No. 20-cv-01291-DMR

8 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR 10 MORAYA INVESTMENTS, LLC, JUDGMENT ON THE PLEADINGS 11 Defendant. Re: Dkt. No. 47-49

12 13 On February 20, 2020, self-represented Plaintiff Peter Strojnik filed this case against 14 Defendant Moraya Investments, LLC, doing business as the Jack London Inn (“Moraya”), alleging 15 violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and related 16 state laws. Compl. [Docket No. 1.] On January 20, 2022, the court granted Moraya’s motion for 17 judgment on the pleadings and ordered Strojnik to file an amended complaint and plead his best 18 case. [Docket No. 37 (“1/20/2022 Order”).] On January 27, 2022, Strojnik filed his amended 19 complaint (“FAC”), and on February 9, 2022, Moraya filed its answer. [Docket Nos. 38, 39.] 20 Moraya now moves for summary judgment or alternatively judgment on the pleadings pursuant to 21 Federal Rules of Civil Procedure 56 and 12(c). [Docket No. 47 (“Mot.”).] Strojnik filed a cross- 22 motion for summary judgment and opposition to Moraya’s motion. [Docket No. 49 (“Opp’n”).]1 23 [Docket No. 34.] Moraya did not file a reply or opposition to Strojnik’s cross-motion. This matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, 24 25 1 Strojnik also submitted a one-page document styled as “Objection to Defendant’s Statement of 26 Facts/Conclusions of Law ECF 47-2.” [Docket No. 48.] Strojnik’s objection is procedurally 27 improper because it is not contained within the opposition brief. See Civ. L.R. 7-3(a). The court nevertheless considers it because his opposition brief and objection altogether fall within the total 1 Moraya’s motions are denied. Strojnik’s cross-motion is also denied. 2 I. BACKGROUND 3 Neither party offered any evidence in support of their cross-motions for summary 4 judgment; as a result, the following facts come from the FAC. Strojnik resides in Maricopa 5 County, Arizona. FAC ¶ 3. He alleges that he is “legally disabled by virtue of a severe right- 6 sided neural foraminal stenosis with symptoms of femoral neuropathy, prostate cancer and renal 7 cancer, missing part of a limb (prosthetic right knee) and pleurisy.” Id. When active, these 8 physical impairments require Strojnik to use a wheelchair for mobility purposes. Id. ¶¶ 5, 9. 9 When the impairments are mitigated, Strojnik “walks and stands with difficulty and pain” and “requires compliant mobility accessible features at places of public accommodation.” Id. ¶ 9. 10 Moraya owns and operates a hotel in Oakland, California (the “Hotel”). Id. ¶ 5. 11 Strojnik explains that he is retired, and that before the COVID-19 pandemic, he “regularly 12 travelled to Oakland as a final destination or an interim resting area on the way to and from 13 Northern California, including San Francisco and Napa.” FAC ¶ 23. During those travels “he 14 evaluates public accommodations, particularly hotels, for ADA and Unruh [Act] compliance.” Id. 15 According to Strojnik, he “visited the Oakland area in the September 28-29, 2019 time 16 frame.” FAC ¶¶ 18, 28. He reviewed booking websites in advance of his trip to evaluate which of 17 the lodgings identify their “mobility accessible features” so that he could “assess independently 18 whether a given hotel or guest room meets his accessibility needs.” Id. ¶ 29. He selected an 19 unnamed competitor hotel and stayed there. Id. ¶¶ 18, 30. He alleges that he encountered 20 accessibility barriers at the competitor hotel, and then went to the Hotel to determine whether it 21 had adequate accessibility features for Strojnik’s “next trip to the Oakland area.” Id. ¶¶ 20, 31. 22 However, he encountered accessibility barriers at the Hotel too. Id. ¶¶ 21, 32. Specifically, 23 Strojnik “personally observed that the bar counter at Defendant’s hotel was too high[] as it did not 24 have a lowered portion or access.” Id. ¶ 33. The height of the bar counter prohibited wheelchair 25 access and “require[ed] him to stand at the bar counter or climb on a high bar stool.” Id. ¶ 34. 26 Also, Strojnik asked an “agent” of Moraya’s how many of the rooms at the Hotel were ADA 27 accessible. Id. ¶ 35. The agent replied that two of the 108 hotel rooms were ADA accessible, 1 although none had a roll-in shower, of which Strojnik took note. Id. The FAC includes two 2 photographs related to the alleged barriers. Id. ¶¶ 33, 35. 3 Strojnik claims that after COVID-19 restrictions end, he “will travel to Napa via Oakland 4 and would stay at Defendant’s hotel on the way to Napa and upon return from Napa but for the 5 fact that Defendant’s ADA violations deter him from staying there.” Id. ¶ 23. The FAC alleges 6 claims for violations of the ADA, the California Unruh Act, and the California Disabled Persons 7 Act (“CDPA”), as well as for negligence. 8 II. LEGAL STANDARDS 9 A. Motion for Summary Judgment 10 A court shall grant summary judgment “if . . . there is no genuine dispute as to any material 11 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden 12 of establishing the absence of a genuine issue of material fact lies with the moving party. 13 Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 14 U.S. 317, 323 (1986)). The court must view the evidence in the light most favorable to the non- 15 moving party. Fresno Motors, LCC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 16 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A genuine factual issue 17 exists if sufficient evidence favors the non-movant such that “a reasonable [judge or] jury could 18 return a verdict for the nonmoving party. Cline v. Indus. Maint. Eng’g & Contracting Co., 200 19 F.3d 1223, 1229 (9th Cir. 2000) (alteration in original) (quoting Anderson, 477 U.S. at 248). The 20 court may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. 21 City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Anderson, 22 477 U.S. at 255). 23 To defeat summary judgment once the moving party has met its burden, the nonmoving 24 party may not simply rely on the pleadings, but must point to specific facts, by affidavit or as 25 otherwise provided by Federal Rule of Civil Procedure 56, showing that a genuine issue of 26 material fact exists. Devereaux, 263 F.3d at 1076. More than a “scintilla of evidence” must exist 27 to support the non-moving party’s claims. Pomona, 750 F.3d at 1049 (quoting Anderson, 477 1 will not suffice. In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (quoting 2 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “Where the 3 record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there 4 is no genuine issue for trial.” Pomona, 750 F.3d at 1049-50 (quoting Matsushita, 475 U.S. at 5 587). 6 Where, as here, the parties have filed cross-motions for summary judgment, “each motion 7 must be considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside 8 Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quotation omitted). “In fulfilling its duty to review 9 each cross-motion separately, the court must review the evidence submitted in support of each 10 cross-motion.” Id. 11 B. Motion for Judgment on the Pleadings 12 “After the pleadings are closed—but early enough not to delay trial—a party may move for 13 judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is properly 14 granted when, accepting all factual allegations in the complaint as true, there is no issue of 15 material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Chavez 16 v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012). The court must construe all factual 17 allegations “in the light most favorable to the non-moving party.” Fleming v. Pickard, 581 F.3d 18 922, 925 (9th Cir. 2009). 19 “Rule 12(c) is functionally identical to Rule 12(b)(6) and . . . the same standard of review 20 applies to motions brought under either rule.” U.S. ex. rel. Cafasso v. Gen. Dynamics C4 Sys., 21 Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Accordingly, the court “court must assess whether 22 the complaint ‘contains sufficient factual matter, accepted as true, to state a claim to relief that is 23 plausible on its face.’” Chavez, 683 F.3d at 1108 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 24 (2009)). “Mere conclusory statements in a complaint and ‘formulaic recitations of the elements of 25 a cause of action’ are not sufficient.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 26 (2007)). 27 “A Rule 12(c) motion for judgment on the pleadings may assert a lack of subject matter 1 (N.D. Cal. Mar. 17, 2021) (citing 5C Wright & Miller, Fed. Prac. & Proc. § 1350 (3d ed.)). “The 2 Court’s analysis of a Rule 12(c) motion that raises a question of subject matter jurisdiction 3 conforms to the analysis required for a Rule 12(b)(1) motion.” Id. (citing Wright & Miller, Fed. 4 Prac. & Proc. § 1367). 5 III. DISCUSSION 6 As noted above, neither Moraya’s motion for summary judgment nor Strojnik’s cross- 7 motion for summary judgment rely on any competent supporting evidence. Instead, both motions 8 cite only to allegations in the FAC. “[A]llegations in a complaint are not evidence that can be 9 used to support or oppose summary judgment.” Briggs v. Blomkamp, 70 F. Supp. 3d 1155, 1166 10 (N.D. Cal. 2014). Strojnik’s unverified FAC and unsupported allegations are insufficient to show 11 that a dispute of material fact exists or does not exist. See Fed. R. Civ. P. 56(c)(1) (“A party 12 asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to 13 particular parts of materials in the record, including depositions, documents, electronically stored 14 information, affidavits, or declarations, stipulations . . . . , admissions, interrogatory answers, or 15 other materials; or (B) showing that the materials cited do not establish the absence or presence of 16 a genuine dispute”); Celotex, 477 U.S. at 324. The Northern District of California’s Civil Local 17 Rules require that “[f]actual contentions made in support of or in opposition to any motion must 18 be supported by an affidavit or declaration and by appropriate references to the record.” Civ. L.R. 19 7-5(a). Because Moraya’s motion for summary judgment does not rely on any record evidence, 20 including affidavits, it is denied. See Fed. R. Civ. P. 56(e)(4). Strojnik’s cross-motion is also 21 denied for the same reason.2 22 Moraya also moves for judgment on the pleadings, arguing that Strojnik failed to allege 23 facts establishing Article III standing for his ADA claim.3 The court previously dismissed 24

25 2 That Strojnik “verifies under the penalty of perjury that the [opposition’s] facts are true and correct to the best of his knowledge, memory and belief,” Opp’n at 9, does not change this 26 outcome because the facts in the opposition are not supported by record evidence or affidavit, see 27 Fed. R. Civ. P. 56(c)(1); Civ. L.R. 7-5(a). 1 Strojnik’s complaint after concluding that Strojnik did not adequately establish Article III 2 standing. 1/20/2022 Order at 9. Strojnik filed the FAC, and Moraya filed an answer to the FAC. 3 Taken as true, the allegations in the FAC plausibly allege Strojnik’s standing to claim a violation 4 of the ADA. 5 A. Legal Standards for ADA Standing 6 “Title III of the ADA prohibits discrimination on the basis of disability in the ‘full and 7 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 8 any place of public accommodation’ with a nexus in interstate commerce.” Oliver v. Ralphs 9 Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 12182(a)). “[A] 10 disabled individual claiming discrimination must satisfy the case or controversy requirement of 11 Article III by demonstrating his standing to sue at each stage of the litigation.” Chapman v. Pier 1 12 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (en banc). 13 The question of standing is “an essential and unchanging part of the case-or-controversy 14 requirement of Article III [of the U.S. Constitution].” Lujan v. Defenders of Wildlife, 504 U.S. 15 555, 560 (1992). Courts assess the sufficiency of a plaintiff’s Article III standing through the 16 following test:

17 First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, 18 and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct 19 complained of. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 20 Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) (quoting Lujan, 504 U.S. at 560-61).4 For 21 22 23 claim. 1/20/2022 Order at 9. The FAC re-alleges claims for violations of the Unruh Act and CDPA, and negligence—contrary to Moraya’s contention that the ADA claim is “Plaintiff’s only 24 remaining claim.” Mot. at 10. 25 4 A party challenging subject matter jurisdiction may make a facial or factual attack challenging subject matter jurisdiction. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial challenge 26 asserts that “the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “The district 27 court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6).” Leite v. Crane 1 an injury to be ‘particularized,’ it “must affect the plaintiff in a personal and individual way.’” 2 Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560 n.1). Moreover, 3 “a ‘concrete’ injury must be de facto; that is, it must actually exist.” Id. at 340 (citation omitted). 4 “[A] disabled person suffers an injury in fact when he ‘encounters a barrier’ at a place of public 5 accommodation ‘that deprives him of full and equal enjoyment of the facility due to his particular 6 disability.’” Oliver, 654 F.3d at 907 (quoting Chapman, 631 F.3d at 944). Article III requires that 7 the injury must be “related to the plaintiff’s disability.” Chapman, 631 F.3d at 949. “[O]nce a 8 disabled plaintiff has encountered a barrier violating the ADA, ‘that plaintiff will have a personal 9 stake in the outcome of the controversy’ so long as his or her suit is limited to barriers to that 10 person’s particular disability.’” Id. at 947 (quoting Doran, 524 F.3d at 1044). 11 Injunctive relief is the only relief available to private ADA plaintiffs; therefore, a plaintiff 12 alleging ADA violations must also establish a “real and immediate threat of repeated injury” and 13 “a sufficient likelihood that he will again be wronged in a similar way.” Chapman, 631 F.3d at 14 946, 948; see also id. at 949 (“Article III . . . requires a sufficient showing of likely injury in the 15 future related to the plaintiff’s disability to ensure that injunctive relief will vindicate the rights of 16 the particular plaintiff rather than the rights of third parties.”). In other words, “the plaintiff must 17 allege ‘continuing, present adverse effects’ stemming from the defendant’s actions.” C.R. Educ. & 18 Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1098 (9th Cir. 2017) (“CREEC”) (quoting City 19 of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). “‘[S]ome day’ intentions—without any 20 description of concrete plans, or indeed even any specification of when the some day will be—do 21 not support a finding of the ‘actual or imminent’ injury.” Lujan, 504 U.S. at 564 (emphasis in 22 original). “Alternatively, a plaintiff can demonstrate sufficient injury to pursue injunctive relief 23 when discriminatory architectural barriers deter him from returning to a noncompliant 24 accommodation.” Chapman, 631 F.3d at 950; Doran, 524 F.3d at 1041 (“Allegations that a 25 plaintiff has visited a public accommodation on a prior occasion and is currently deterred from 26 visiting that accommodation by accessibility barriers establish that a plaintiff’s injury is actual or 27 1 imminent.”). A plaintiff must allege “actual knowledge of illegal barriers.” CREEC, 867 F.3d at 2 1098. “So long as the discriminatory conditions continue, and so long as a plaintiff is aware of 3 them and remains deterred, the injury under the ADA continues.” Id. (quoting Pickern, 897 F.3d 4 at 1099). 5 B. Analysis 6 The FAC sufficiently pleads a concrete and particularized injury with a likelihood of 7 repetition. Strojnik alleges that he suffers from multiple impairments that substantially limit his 8 ability to walk and stand and sometimes require him to use a wheelchair. FAC ¶¶ 5, 9. He alleges 9 that he visited Oakland on September 28-29, 2019 and went to the Hotel while staying at a 10 competitor hotel. Id. ¶¶ 18, 20, 28, 31-32. According to Strojnik, he then personally encountered 11 accessibility barriers that specifically related to his impairments. Id. ¶¶ 33-34. Namely, he 12 “personally observed” that Hotel’s bar was too high for his wheelchair. Id. ¶ 34. Consequently, 13 the bar’s height violated the ADA Standards for Accessible Design (“ADAAG”) § 904.5 ADAAG 14 § 904 applies to check-out aisles and sales and service counters.6 Strojnik does not specify which 15 5 The ADAAG standards “lay out the technical structural requirements of places of public 16 accommodations.” Chapman, 631 F.3d at 945. To prove a violation of the ADA’s accessibility 17 requirements, a plaintiff must show a violation of the applicable accessibility standards. Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011) (citing Chapman, 631 F.3d at 945). 18 Buildings with new construction or post-January 1992 alterations must comply with either the 1991 or 2010 ADAAG standards, depending on the date the construction or alterations began. 28 19 C.F.R. § 36.406; Love v. Marriott Hotel Servs., Inc., 40 F.4th 1043, 1048 n.1 (9th Cir. 2022). Facilities must conform to the updated 2010 ADAAG standards unless they have not been altered 20 since March 15, 2012 and comply with the 1991 standards. Kohler v. Flava Enters., Inc., 779 21 F.3d 1016, 1019 (9th Cir. 2015). Existing facilities that were altered after January 26, 1992 are also required, “to the maximum extent feasible, to be ‘readily accessible to and useable by’ 22 individuals with disabilities.” Moeller, 816 F. Supp. 2d at 847 (citing 42 U.S.C. § 12183(a)(2)). “Facilities that were constructed prior to January 1993 and have not been altered are not required 23 to comply with the 1991 or 2010 Standards but must still ‘remove architectural barriers ... where such removal is readily achievable.’” Love, 40 F.4th at 1048 n.1 (quoting Chapman, 631 F.3d at 24 945); see 42 U.S.C. § 12182(b)(2)(A)(iv). 25 The FAC does not offer any allegations to establish that the property was constructed or altered since 2012, which would trigger the Hotel’s obligation to meet the 2010 standards. See 26 Kohler, 779 F.3d at 1019. Instead, it claims simply that “[t]he removal of accessibility barriers . . . 27 is readily achievable.” FAC ¶ 38. Moraya does not challenge or address which ADAAG standard applies, and the court does not reach this question at this juncture. 1 type of counter and associated standard covers the Hotel’s bar, and Moraya does not address the 2 applicability of these ADAAG standard to the Hotel. Nevertheless, Strojnik claims that the bar’s 3 height related to his disability, and that the bar does not permit wheelchair access and limited his 4 major life activities “by requiring him to stand at the bar counter or climb on a high bar stool.” 5 FAC ¶ 34. 6 Strojnik also claims that the Defendant’s agent told him that only two of the hotel rooms 7 were ADA accessible and none had roll-in showers. FAC ¶ 35. ADAAG § 224.2, cited in the 8 FAC, applies to “transient lodging facilities” and includes a table specifying a minimum number 9 of accessible rooms with particular mobility features and rooms with roll-in showers required at 10 those facilities. See FAC ¶ 36. A hotel with 108 rooms, such as Defendant’s, must have at 11 minimum five accessible rooms without roll-in showers, and two accessible rooms with roll-in 12 showers, for a total of seven accessible rooms. ADAAG § 224.2. Strojnik claims that the Hotel’s 13 lack of accessible rooms relates to his disability because none accommodate a wheelchair and he 14 could not be assured that he would have an accessible room when he visited again. FAC ¶ 37. 15 Although sparse, the allegations establish for pleading purposes that two alleged barriers 16 violate the ADA’s accessibility standards, and they give fair notice to Moraya of their alleged non- 17 compliance. See Oliver, 654 F.3d at 908 (In ADA access cases, “we have held that the relevant 18 “grounds” are the allegedly non-compliant architectural features at the facility. Thus, in order for 19 the complaint to provide fair notice to the defendant, each such feature must be alleged in the 20 complaint.” (internal citation omitted)). The FAC also sufficiently explains how the bar’s height 21 and lack of adequate accessible hotel rooms prevents Strojnik from equal access at the Hotel and 22 relate to his particular disabilities.7 23

24 Act Accessibility Standards, U.S. Access Board, https://www.access-board.gov/ada/. 25 7 Moraya’s remaining arguments on this point are unavailing. First, Moraya argues that Strojnik’s impairments are “episodic,” and that FAC fails to allege that Strojnik’s physical impairments were 26 “active” at the time he visited. Mot. at 6; see FAC ¶¶ 5, 9. However, “whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of 27 mitigating measures” 42 U.S.C. § 12102(4)(E); see also 28 C.F.R. § 36.105(d)(1)(v) (“An 1 Finally, the FAC sufficiently pleads Strojnik’s standing to pursue injunctive relief under 2 either an intent to return or deterrence theory. The Ninth Circuit “ha[s] found actual or imminent 3 injury sufficient to establish standing where a plaintiff demonstrates an intent to return to the 4 geographic area where the accommodation is located and a desire to visit the accommodation if it 5 were made accessible.” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 6 2008). The plaintiff must provide some level of detail on his plan to return. See, e.g., Pickern v. 7 Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (plaintiff established an “actual 8 or imminent injury for the purposes of standing” where he had visited the defendant’s store in the 9 past, stated that he prefers to shop there, noted that the store is close to where his grandmother 10 lives, and alleged that he would like to visit the store when he visits her); cf. Doran, 524 F.3d at 11 1040 (holding that a plaintiff adequately established an intent to return when he “alleged that he 12 had visited the [defendant] store on ten to twenty prior occasions, that he is currently deterred 13 from visiting the store because of its accessibility barriers, that the store is conveniently located 14 near his favorite fast food restaurant in Anaheim, and that he plans to visit Anaheim at least once a 15 year on his annual trips to Disneyland”). Also, “evidence of concrete travel plans would be 16 sufficient to show that a disabled plaintiff intends to visit a facility, even if she has not travelled 17 there in the past.” CREEC, 867 F.3d at 1099-1100 (plaintiffs’ “intent to visit the hotels once they 18 provide equivalent shuttle service for the disabled renders their harm actual or imminent”). 19 Strojnik claims that he used to “regularly travel[] to Oakland as a final destination or an 20 interim resting area on the way to and from Northern California,” that he intends to do so again, 21 and that he “would stay at Defendant’s hotel on the way to Napa and upon return from Napa but 22 for the fact that Defendant’s ADA violations deter him from staying there.” FAC ¶ 23. As a 23 24 alleges that even with mitigating measures, Strojnik’s impairments substantially limit his ability to 25 walk and stand and require “mobility accessible features.” FAC ¶¶ 5, 9. As a result, the severity of his impairments at the time he visited the Hotel is irrelevant because the barriers denied him 26 equal access. See FAC ¶ 40. Second, Moraya challenges the sufficiency of the photographs in the 27 complaint “for standing purposes.” Mot. at 7. However, Strojnik is not required to include photographs of the barriers. The allegations that he personally encountered barriers related to his 1 result of these violations, he is “deterred from returning to Defendant’s hotel” and “from lodging 2 there.” Id. ¶¶ 24, 39.8 3 These allegations go beyond the “vague, generic facts” Strojnik alleged previously in this 4 case and in other cases. Compare 1/20/2022 Order at 7; Strojnik v. IA Lodging Napa First LLC, 5 No. 19-cv-3983-DMR, 2020 WL 906722, at *3-4 (N.D. Cal. Feb. 25, 2020) (finding that Strojnik 6 did not “allege[] a concrete plan to visit the Hotel in the future”, “proffer any reason as to why he 7 would patronize the Hotel in the future, such as frequent travel in the area or ‘specific ties’ to the 8 property,” or “adequately allege[] that he intends to visit the Hotel once it remedies the purported 9 violations”); Strojnik v. Portola Hotel, No. 19-cv-07579-VKD, 2021 WL 1022880, at *5 (N.D. 10 Cal. Mar. 3, 2021). Here, for pleading purposes, Strojnik adequately alleges that he regularly 11 visits this geographic region and would stay at the Hotel if it were made accessible. See D’Lil, 12 538 F.3d at 1037. 13 Altogether, Strojnik’s FAC “alleges that he uses a wheelchair for mobility [and has 14 difficulty walking and standing due to his impairments], that he visited the defendant’s premises, 15 that he personally encountered . . . barrier[s] related to his disability—inaccessible service 16 counters [and hotel rooms] —and that the barrier[s] deter[] him from returning.” Whitaker, 985 17 F.3d at 1179. With respect to a motion challenging the pleadings, where the FAC is taken as true, 18 such allegations are sufficient to confer Article III standing. As Moraya does not challenge the 19 FAC on any other basis, its Rule 12(c) motion is denied.9 20 IV. CONCLUSION 21 For the foregoing reasons, the court denies Moraya’s motion for summary judgment and 22 motion for judgment on the pleadings. The court also denies Strojnik’s cross-motion for summary 23

24 8 The court does not consider Plaintiff’s assertions in his opposition that he also intends to visit 25 Guerneville before the end of the year and to travel to Oakland to attend trial in this case but is deterred from staying at the Hotel due to the ADA violations, as they are outside the FAC. Cf. 26 Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s 27 moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss.”). 1 || judgment. The pretrial conference is advanced to October 14, 2022 at 2:30 p.m. via Zoom 2 || Videoconference. The pretrial deadlines set forth in the court’s amended case management 3 scheduling and pretrial order remain in effect. [Docket No. 42.] 4 KES DISTR Ic> AY 5 S oO Sy DIO 6 IT IS SO ORDERED. oS 0 ORDERE Zz yriss 7 || Dated: September 6, 2022 ~ I L? WWGHvy bora Z, 8 Z. kik 2 tes, Mavi st FYE \] oe 0 judge Vo 9 □□ 10 LF © sO 11 ISTRIC 12

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