Sullivan v. Storer Transit Systems

Opinion

1 2 3 6 7 FATIMA SULLIVAN, Case No. 20-cv-00143-JCS

8 Plaintiff, ORDER REGARDING MOTION TO 9 v. DISMISS FIRST AMENDED COMPLAINT 10 STORER TRANSIT SYSTEMS, et al., Re: Dkt. No. 24 Defendants. 11

13 Plaintiff Fatima Sullivan brings this action against Defendant Storer Transit Systems 14 (“Storer”) asserting disability discrimination in violation of the Americans with Disabilities Act 15 (“ADA”) and related claims under California law. On a motion by Storer, the Court previously 16 dismissed Sullivan’s complaint with leave to amend. Sullivan has now filed a first amended 17 complaint, and Storer once again moves to dismiss for lack of subject matter jurisdiction under 18 Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under 19 Rule 12(b)(6), and moves to strike portions of Sullivan’s complaint under Rule 12(f). The Court 20 finds the matter suitable for resolution without oral argument and VACATES the hearing 21 previously set for June 19, 2020. For the reasons discussed below, Storer’s motion is DENIED.1 22 The case management conference previously set for June 19, 2020 at 9:30 AM is 23 CONTINUED to 2:00 PM the same day. The Clerk will separately provide instructions for the 24 parties to appear remotely at that conference. 25 26

27 1 The parties have consented to the undersigned magistrate judge presiding over the case for all 2 A. Factual Allegations and Previous Order 3 Sullivan, a resident of San Francisco, is a regular patron of the Graton Resort & Casino 4 (“Graton”) in Sonoma County, where she enjoys “platinum card” privileges. 1st Am. Compl. 5 (“FAC,” dkt. 23) ¶¶ 7, 15. Sullivan asserts that she is disabled due to injuries to her left knee and 6 right hand. Id. ¶ 10–12. 7 Sullivan first injured her left knee on April 19, 2008, when she was struck by a motor 8 vehicle. Id. ¶ 10. Following the injury, Sullivan was treated with physical therapy. Id. In 9 May 2012, Sullivan underwent surgery on her left knee to treat her continuing knee pain. Id. As a 10 result of the surgery, Sullivan claims that her left knee occasionally buckles. Id. ¶ 11. In 11 May 2015, Sullivan’s left knee buckled causing her to fall, and Sullivan was then prescribed a 12 brace for her knee. Id. In August 2018, Sullivan applied for a disabled person placard and license 13 plates from the California Department of Motor Vehicles (“DMV”). Id. ¶ 13. In her application, 14 Sullivan’s primary care physician described Sullivan’s relevant illness or disability as “[a]dvanced 15 osteoarthritis (L) knee.” Id. The DMV approved Sullivan’s application and issued Sullivan a 16 disabled person parking placard and license plates, which expired on June 30, 2019. Id. ¶ 14. 17 Sullivan first injured her right hand when she fell in May 2015. Id. ¶ 11. Sullivan 18 fractured her right hand during the fall. Id. On May 29, 2018, Sullivan further injured her hand 19 while pulling a wheel block at work. Id. ¶ 12. Sullivan complained of radiating pain and 20 numbness. Id. Sullivan’s right hand was found to be 5% permanently disabled. Id. 21 Storer operates shuttle bus transportation from San Francisco to Graton, among other bus 22 routes. Id. ¶ 8. Sullivan boarded a Storer bus around 7:15 PM on October 20, 2018 and traveled 23 from San Francisco to Graton without incident, riding in the front of the bus in the “priority 24 seating” area. Id. ¶ 15. Sullivan attempted shortly before midnight to return to San Francisco on a 25 Storer bus and sat in the same area at the front, in order to alleviate her knee and hand problems by 26 reducing the distance she needed to walk and her need to grasp objects while walking to a seat 27 further back on the bus. Id. ¶ 16. The bus driver, however, shouted at her that she could not sit 1 as disabled and attempted to show the driver documentation that she had in her purse, but the 2 driver said that Sullivan did not “have a walker or a cane” and called a Graton security guard. Id. 3 ¶¶ 17–18. Another passenger also shouted at Sullivan to go to the back of the bus. Id. ¶ 17. 4 When the security guard arrived, the driver told the guard that Sullivan threatened other 5 passengers and the driver feared for his life. Id. ¶ 18. Sullivan denied threatening passengers “and 6 said that the driver was not being truthful,” but the guard told Sullivan to leave the bus, that “we’ll 7 do it just like they did at Starbucks,”2 and that he would call law enforcement if Sullivan refused. 8 Id. When a supervisor from Graton arrived, the supervisor believed the bus driver’s version of 9 events and told Sullivan that she was trespassing and would be banned from the casino. Id. ¶ 19. 10 Sullivan eventually left the bus and had to wait until 3:00 AM for another bus to take her home to 11 San Francisco. Id. ¶¶ 19, 22. Another passenger, who was not disabled, was allowed to sit in the 12 priority seating area of the bus that Sullivan was forced to vacate. Id. ¶ 20. 13 Sullivan alleges that these events caused her humiliation and to experience symptoms of a 14 panic attack. Id. ¶ 21. Sullivan later experienced difficulty sleeping, agitation, and passive 15 suicidal ideation and was subsequently diagnosed with post-traumatic stress disorder. Id. 16 ¶¶ 21, 23. 17 The FAC asserts three claims: (1) discrimination based on disability by “failing to provide 18 full and equal enjoyment of . . . goods, services, facilities, privileges, advantages, or 19 accommodations”—specifically, the Storer bus—in violation of the ADA, id. ¶¶ 24–28; (2) 20 disability discrimination based on the same conduct in violation of sections 54 and 54.1 of the 21 California Civil Code, id. ¶¶ 29–35; and (3) negligent infliction of emotional distress, id. ¶¶ 36– 22 40. 23 The Court previously dismissed Sullivan’s claims with leave to amend for failure to state a 24 claim on which relief may be granted. Order Granting Mot. to Dismiss (dkt. 22).3 The Court held 25

26 2 The reference to Starbucks is not explained in the FAC or briefing. 3 Sullivan v. Storer Transit Sys., No. 20-cv-00143-JCS, 2020 WL 1531366 (N.D. Cal. Mar. 31, 27 2020). Citations herein to the Court’s previous order refer to page numbers of the version filed in 1 that Sullivan had not sufficiently alleged disability under the ADA and stated, “[a]ny amended 2 complaint should clearly identify the disability or disabilities underlying Sullivan’s ADA claim, 3 explain how they limit a major life activity, and clarify Sullivan’s theory of how Storer failed to 4 provide her equal access on account of those disabilities.” Id. at 8–9. 5 B. Parties’ Arguments 6 1. Storer’s Motion 7 Storer argues that Sullivan’s ADA claim is not sufficiently alleged in two respects and 8 should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. (dkt. 24) at 6. 9 First, Storer contends that Sullivan has not sufficiently alleged that she is disabled under the ADA. 10 Id. at 8. Storer provides the definition of disability under the ADA and argues that Sullivan has 11 not alleged that she is substantially limited in performing a major life activity. Id. Instead, Storer 12 argues that Sullivan has only described her medical issues and, thus, failed to allege, beyond 13 conclusory allegations, how these issues are a substantial limitation on her performing major life 14 activities. Id. 15 Second, Storer argues that Sullivan has failed to allege that she was discriminated against 16 because of her disability. Id. at 9. Storer asserts that Sullivan’s claim must allege either 17 intentional discrimination by Storer or a failure to provide appropriate modifications by Storer to 18 accommodate those with disabilities. Id. Storer argues that Sullivan fails to allege intentional 19 discrimination by Storer because Storer’s employee did not perceive Sullivan to be disabled and 20 argues that Sullivan fails to allege a lack of appropriate modifications by Storer because Sullivan 21 alleges that Storer indeed provided preferred seating to the disabled. Id. 22 Storer then turns to Rule 12(b)(1) of the Federal Rules of Civil Procedure and argues that 23 Sullivan’s complaint should be dismissed for lack of subject matter jurisdiction because there is no 24 actual case or controversy before the Court. Id. Storer argues that Sullivan can only seek 25 injunctive relief under the ADA and such relief cannot be granted because Storer has already 26 voluntarily complied with the injunction Sullivan seeks. Id. at 9–10. Storer claims that if a 27 defendant voluntarily ceases its wrongful conduct and meets its burden in showing that its 1 that it has changed its policies in December 2018 to allow any passenger self-identifying as 2 disabled to use the bus seats reserved for the disabled. Kelley Decl. (dkt. 24-1) ¶ 3. Additionally, 3 Storer claims to have trained its bus drivers and communicated its new policy in January 2019. Id. 4 ¶ 5. As a result, Storer contends, there remains no possibility that a Storer bus employee could ask 5 Sullivan again to change her seat on the basis of any perceived lack of a disability. Mot. (dkt. 24) 6 at 10. Storer concludes that, because Storer has shown compliance with the ADA, there is no 7 further remedy available to Sullivan, and thus her ADA claim is moot. Id. at 11. 8 Additionally, Storer argues that if Sullivan’s ADA claim is dismissed, the Court should 9 decline to exercise supplemental jurisdiction over Sullivan’s remaining state law claims and 10 dismiss them. Id. Finally, Storer moves that the Court strike Sullivan’s request for compensatory 11 damages under Title III of the ADA, because Storer argues that the ADA only provides for 12 injunctive relief. Id. 13 2. Sullivan’s Opposition Brief 14 Sullivan first argues that she adequately pleaded her ADA claim in the FAC. Opp’n 15 (dkt. 25) at 4. Sullivan reiterates the injuries to her left knee and right hand set out in the FAC and 16 the resulting physical impairments that limit her ability to perform major life activities. Id. at 5. 17 Accordingly, Sullivan concludes that she adequately alleged her disability under the ADA. Id. 18 at 6. In response to Storer’s contention that Sullivan was not denied transportation by Storer on 19 account of her disability, Sullivan argues that she told the Storer bus driver that she was disabled 20 and offered to show the bus driver evidence from her purse. Id. at 6–7. Sullivan contends that 21 because the bus driver did not believe that she was disabled and continued to demand that she sit 22 in a different seat, Storer was discriminated against because of her disability. Id. 23 With respect to Storer’s assertion that her ADA claim is moot, Sullivan first disputes that 24 Storer has voluntarily complied with the ADA. Id. Sullivan questions the credibility of the 25 declaration and policy memorandum submitted with Storer’s present motion, which evidence 26 Storer’s claim that Storer’s policy change satisfies the ADA. Id. Because the parties have not had 27 an opportunity for discovery and because Sullivan raises issues of fact, Sullivan concludes that the 1 matter jurisdiction. Id. 2 Sullivan then argues that, even if Storer’s factual assertions are true, Storer has not met its 3 burden in asserting voluntary cessation. Id. at 9. Sullivan contends that Storer cannot moot the 4 claim by simply ending its wrongful conduct. Id. Rather, Sullivan argues that Storer must meet a 5 high burden and demonstrate that its wrongful conduct cannot reasonably be expected to return. 6 Id. at 9–10. Sullivan argues that Storer has not done so because (1) it is unclear that all of Storer’s 7 drivers have received the policy memorandum updating its ADA policy, (2) Storer has not shown 8 that employees hired after January 2019 have been trained with respect to the updated ADA 9 policy, and (3) Storer is free to revert to its wrongful conduct at any time. Id. at 10. 10 Finally, Sullivan argues that Storer’s motion to strike should be denied. Id. at 11. Sullivan 11 contends that the Darby case Storer cites does not support the proposition that a court may strike a 12 request for damages beyond what is provided for by statute. Id.; see Darby v. City of Torrance, 13 810 F. Supp. 271 (C.D. Cal. 1992), rev’d on other grounds, 46 F.3d 1140 (9th Cir. 1995). Further, 14 Sullivan briefly argues that Storer’s request to strike falls outside what is allowed under Federal 15 Rule of Civil Procedure 12(f). Opp’n at 12. Finally, Sullivan asserts that Storer has not shown 16 that it has been prejudiced by the inclusion of the request for damages. Id. 17 3. Storer’s Reply 18 In Storer’s reply brief, Storer reasserts that Sullivan has failed to state a claim on which 19 relief can be granted. Reply (dkt. 26) at 3. Storer argues that, while Sullivan detailed her previous 20 injuries more thoroughly in the FAC than in her initial complaint, Sullivan still fails to allege how 21 she is substantially limited in her performance of major life activities. Id. Storer contends that 22 Sullivan’s description of her physical limitations remains a “formulaic recitation of the elements 23 of the causes of action.” Id. at 4 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 24 Storer maintains that Sullivan’s ADA claim is moot and that Storer has met its burden to 25 show voluntary cessation. Id. at 5. Storer argues that it is not reasonable to expect Storer to revert 26 to its challenged policy in the future. Id. Storer also contends that because its employee asked 27 Sullivan to change seats for the purpose of keeping the seats available to those with a disability, 1 expands its standing argument to also assert that Sullivan must show a “real or immediate threat” 2 of Storer wronging her in the future as a standing requirement under Title III of the ADA. Id. at 5. 3 Storer concludes its mootness arguments by disputing Sullivan’s contention that the motion is 4 premature. Id. at 5. Storer argues that questions of subject matter jurisdiction may be raised at 5 any time. Id. at 6. Storer’s final section reasserts that the Court should strike Sullivan’s request 6 for damages under the ADA because the ADA does not provide for damages. Id. 8 A. Storer’s Motion to Dismiss for Lack of Subject Matter Jurisdiction 9 1. Legal Standard Under Rule 12(b)(1) 10 Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a district court must 11 dismiss an action if it lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P. 12 12(b)(1). “Subject matter jurisdiction can never be forfeited or waived and federal courts have a 13 continuing independent obligation to determine whether subject-matter jurisdiction exists.” 14 Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (internal 15 quotation marks and citations omitted). On a motion to dismiss for lack of subject matter 16 jurisdiction under Rule 12(b)(1), it is the plaintiff’s burden to establish the existence of subject 17 matter jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 18 2008). 19 A party challenging the court’s subject matter jurisdiction under Rule 12(b)(1) may bring a 20 facial challenge or a factual challenge. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In 21 evaluating a facial challenge to subject matter jurisdiction, the court accepts the factual allegations 22 in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2001). Where a 23 defendant brings a factual challenge, on the other hand, “a court may look beyond the complaint to 24 matters of public record without having to convert the motion into one for summary judgment.” 25 White, 227 F.3d at 1242 (citation omitted). Once the moving party has made a factual challenge 26 by offering affidavits or other evidence to dispute the allegations in the complaint, the party 27 opposing the motion generally must “present affidavits or any other evidence necessary to satisfy 1 Dep’t of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) (quoting St. Clair v. City of 2 Chico, 880 F.2d 199, 201 (9th Cir. 1989)).4 Here, Storer has presented extrinsic evidence, such as 3 the declaration of Dawn Kelley and the December 2018 ADA policy memorandum, to support its 4 argument that the Court lacks jurisdiction, so its challenge is factual. 5 The ADA was enacted to address Congress’s finding that although “physical or mental 6 disabilities in no way diminish a person’s right to fully participate in all aspects of society . . . 7 many people with physical or mental disabilities have been precluded from doing so because of 8 discrimination.” 42 U.S.C. § 12101(a)(1). The purpose of the ADA is to “provide a clear and 9 comprehensive national mandate for the elimination of discrimination against individuals with 10 disabilities.” 42 U.S.C. § 12101(b)(1). The Supreme Court has instructed courts to “take a broad 11 view of constitutional standing in civil rights cases, especially where, as under the ADA, private 12 enforcement suits ‘are the primary method of obtaining compliance with the Act.’” Doran v. 7-11, 13 Inc., 524 F.3d 1034, 1039 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 14 205, 209 (1972)). Nonetheless, a plaintiff asserting claims under the ADA must establish the 15 existence of a case or controversy under Article III of the Constitution. Chapman v. Pier 1 16 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (citing U.S. Const. art. III, § 2; Lujan v. 17 Defs. of Wildlife, 504 U.S. 555, 560 (1992)). 18 “A federal court does not have jurisdiction ‘to give opinions upon moot questions or 19 abstract propositions, or to declare principles or rules of law which cannot affect the matter in 20 issue in the case before it.’” Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th 21 Cir. 1997) (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)). “At any stage 22 of the proceeding a case becomes moot when ‘it no longer present[s] a case or controversy under 23 Article III, § 2 of the Constitution.’” Abdala v. I.N.S., 488 F.3d 1061, 1063 (9th Cir. 2007) 24 (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). “If an event occurs that prevents the court 25

26 4 While it is generally the plaintiff’s burden to provide evidence of standing, the particular doctrine that Storer has asserted here—voluntary cessation—places the burden on the defendant, as 27 discussed further below. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 1 from granting effective relief, the claim is moot and must be dismissed.” Am. Rivers, 126 F.3d 2 at 1123. “The central question of the mootness analysis is whether a change in circumstances 3 since the initiation of the claim or motion has rendered meaningless any relief the court would 4 otherwise grant.” Gerke v. Travelers Cas. Ins. Co. of Am., No. 3:10-CV-01035-AC, 2013 WL 5 6241983, at *5 (D. Or. Dec. 3, 2013) (citing West v. Sec’y of Dep’t of Transp., 206 F.3d 920, 926 6 n.4 (9th Cir. 2000)). 7 Where a party seeks injunctive relief, voluntary cessation of the challenged conduct 8 generally does not moot a case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 9 Inc., 528 U.S. 167, 189 (2000). Otherwise, a “defendant would be free to resume the conduct” 10 after dismissal. Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 11 1198 (9th Cir. 2019). The standard for evaluating voluntary cessation is stringent. Friends of the 12 Earth, 528 U.S. at 189. The party asserting mootness bears a “formidable burden” and must 13 persuade the court that “it is absolutely clear the allegedly wrongful behavior could not reasonably 14 be expected to recur.” Id. at 190 (quoting United States v. Concentrated Phosphate Export Ass’n, 15 393 U.S. 199, 203 (1968)). 16 An ADA claim is mooted when the defendant’s compliance is far more than simply 17 voluntary cessation of challenged conduct that allows the defendant to resume the challenged 18 conduct. See Hickman v. Missouri, 144 F.3d 1141, 1144 (8th Cir. 1998). Changing a policy alone 19 that can be “capriciously” reinstated is not sufficient. Wright v. RL Liquor, 887 F.3d 361, 363 (8th 20 Cir. 2018) (citing Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1183–84 (11th Cir. 21 2007). Structural changes, such as installing a disabled parking sign and painting a disabled 22 parking spot, however, can be sufficient. Wright, 887 F.3d at 363. 23 2. Storer Has Not Met Its Burden in Asserting Mootness 24 Storer’s argument that it voluntarily ceased its challenged conduct does not meet Storer’s 25 heavy burden in showing that the conduct could not reasonably be expected to recur. Storer 26 provides evidence that in December 2018, Storer amended its policies “to allow anyone to sit in 27 the ADA seating area if they self-identify as disabled.” Kelley Decl. ¶ 3. In addition, Storer 1 a memorandum to bus drivers communicating the policy changes, id. Ex. A. In January 2019, 2 Storer added headrest covers to certain seats indicating that they are reserved for the disabled. 3 Kelley Decl. ¶ 4. 4 Storer’s heavy burden in asserting mootness is illustrated in Already, LLC v. Nike, Inc. 5 568 U.S. 85, 93 (2013). In that case, Nike alleged that Already’s shoe designs violated a Nike 6 trademark. Id. at 88. Already’s counterclaim, which challenged the validity of the trademark, was 7 mooted when Nike issued a broad covenant not to sue Already. Id. at 88–89, 100. The covenant 8 was unconditional, irrevocable, and broad, and specified that Nike could not make any claim or 9 demand against Already, or any of its affiliates, for any claim for relief involving the disputed 10 trademark with respect to any past or present Already shoe or any colorable imitation thereof. Id. 11 at 93. The Court determined that Nike’s challenged conduct––the enforcement of its trademark 12 against Already––could not reasonably be expected to recur, given such a broad covenant. Id. 13 at 100. Accordingly, Already’s counterclaim challenging the validity of the trademark was moot. 14 Id. 15 In the context of the ADA, permanent structural changes can render a case moot. Wright, 16 887 F.3d at 363; Ramirez v. Golden Crème Donuts, 670 F. App’x 620, 621 (9th Cir. 2016). In 17 Wright, the plaintiff alleged that the defendant’s parking lot did not comply with the ADA. 887 18 F.3d at 362. The Eighth Circuit held that the defendant was successful in showing that its 19 challenged conduct “could not reasonably be expected to recur” when the defendant painted a van- 20 accessible parking spot and installed a handicap parking sign. Id. at 363 (quoting Friends of the 21 Earth, 528 U.S. at 189). Similarly, the Ninth Circuit has held, albeit in a nonprecedential decision, 22 that the installation of a permanent wall blocking the public’s access to an allegedly non-ADA 23 compliant bathroom mooted the issue because the wall made it “absolutely clear that the allegedly 24 wrongful behavior could not reasonably be expected to recur.” Ramirez, 670 F. App’x at 621 25 (quoting Friends of the Earth, 528 U.S. at 189). 26 In contrast to permanent structural changes, voluntary cessation only amounting to a 27 reversible policy change does not show that the challenged conduct cannot reasonably be expected 1 585 (9th Cir. 2015). In Sheely, the plaintiff challenged the defendant’s policy of forbidding 2 service animals beyond the waiting area of its medical facility under the ADA. 505 F.3d at 1178. 3 When the defendant later changed its policy to allow service animals shortly before moving to 4 dismiss the case as moot, the Eleventh Circuit expressed skepticism with respect to the 5 defendant’s motive in changing its policy and held that the defendant did not meet its burden in 6 showing that the policy cannot reasonably be expected to recur. Id. at 1187–89. 7 In Butler, another nonprecedential but persuasive decision by the Ninth Circuit, the court 8 underscored the importance of permanence in determining mootness in cases of voluntary 9 cessation. See 613 F. App’x at 586. The plaintiff in that case challenged the defendant’s “policy 10 prohibiting service animals from riding in grocery carts” under the ADA. Id. at 585. The court 11 held that, although the defendant granted the plaintiff a special exemption from the policy and 12 began training its staff to honor that exception, the case was not moot because the contested policy 13 was still in place, the special exemption was not “sufficiently entrenched and permanent,” and it 14 was “not ‘absolutely clear’ that such training cannot reasonably be expected to cease.” Id. at 586 15 (quoting Friends of the Earth, 528 U.S. at 190). 16 Storer’s actions do not meet its heavy burden in asserting voluntary cessation. Storer’s 17 asserted voluntary compliance consists of a change of policies, employee training, and the 18 installation of headrest covers. Kelley Decl. ¶¶ 3–5. Even if the Court assumes that Storer’s 19 changes bring it in compliance with the ADA, Storer has not met its burden to show that its 20 challenged policies cannot “reasonably be expected to recur.” See Friends of the Earth, 528 U.S. 21 at 189 (quoting Concentrated Phosphate, 393 U.S. at 203). Storer’s installation of headrest covers 22 are unlike the permanent installation of a handicap parking sign in Wright and the installation of 23 the wall blocking public access to the restroom in Ramirez that rendered those cases moot, both 24 because they do nothing to address Sullivan’s experience of a driver rejecting her claim that she is 25 disabled, and because they could easily be removed. See Wright, 887 F.3d at 363; see also 26 Ramirez, 670 F. App’x at 621. Storer’s changes in policy are also easily reversible, like the 27 withdrawn no-dogs policy in Sheely and the special exemption granted to the plaintiff in Butler. 1 Accordingly, Storer’s voluntary compliance does not render meaningless any relief the 2 Court could otherwise grant to Sullivan. See Gerke, 2013 WL 6241983, at *5 (citing West, 206 3 F.3d at 926 n.4). Further, Storer’s ability to revert to its previous policies is unlike the irrevocable 4 covenant not to sue in Already that made it “absolutely clear” that the case was moot. See 568 5 U.S. at 102. Because Storer has not met its burden in asserting mootness based on voluntary 6 cessation, Storer’s motion to dismiss for lack of subject matter jurisdiction is DENIED. 7 B. Storer’s Motion to Dismiss for Failure to State a Claim 8 1. Legal Standard Under Rule 12(b)(6) 9 A complaint may be dismissed for failure to state a claim on which relief can be granted 10 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss 11 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 12 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a claimant’s burden at the pleading stage 13 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 14 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 15 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 16 In ruling on a motion to dismiss under Rule 12(b)(6), the court takes “all allegations of 17 material fact as true and construe[s] them in the light most favorable to the non-moving party.” 18 Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a 19 lack of a cognizable legal theory or on the absence of facts that would support a valid theory. 20 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A pleading must “contain 21 either direct or inferential allegations respecting all the material elements necessary to sustain 22 recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) 23 (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). “A pleading 24 that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action 25 will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[C]ourts ‘are not 26 bound to accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. 27 at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it 1 (quoting Twombly, 550 U.S. at 557). Rather, the claim must be “‘plausible on its face,’” meaning 2 that the claimant must plead sufficient factual allegations to “allow the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 4 (quoting Twombly, 550 U.S. at 570). 5 2. Sullivan Has Adequately Alleged a Claim for Relief Under the ADA 6 A plaintiff claiming disability discrimination in public accommodations under the ADA 7 “must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a private 8 entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was 9 denied public accommodations by the defendant because of her disability.” Molski v. M.J. Cable, 10 Inc., 481 F.3d 724, 730 (9th Cir. 2007). While Sullivan of course need not prove those elements 11 with evidence at the pleading stage, she must present “either direct or inferential allegations 12 respecting all the material elements necessary to sustain recovery.” Twombly, 550 U.S. at 562. 13 Sullivan adequately pleaded that she is disabled under the ADA. To be “disabled within 14 the meaning of the ADA,” see Molski, 481 F.3d at 730, a plaintiff must have “a ‘physical or 15 mental impairment that substantially limits one or more major life activities,’” such as “‘walking, 16 standing, lifting . . . and working.’” Valteirra v. Medtronic Inc., 934 F.3d 1089, 1091 (9th Cir. 17 2019) (quoting 42 U.S.C. § 12102) (ellipsis in original). “An impairment need not prevent, or 18 significantly or severely restrict, the individual from performing a major life activity in order to be 19 considered substantially limiting.” 29 C.F.R. § 1630.2(j)(ii). 20 In the FAC, Sullivan details a series of injuries to her left knee and right hand. ¶¶ 10–14. 21 In short, Sullivan’s knee was first injured after being struck by a vehicle in 2008. Id. ¶ 10. Over 22 the following years, she was treated with physical therapy, knee surgery, and a knee brace. Id. 23 ¶¶ 10–11. Sullivan alleges that her knee occasionally buckles. Id. ¶ 11. In Sullivan’s application 24 for disabled person placards or plates from the DMV, her primary care physician described her 25 condition as “[a]dvanced osteoarthritis (L) knee.” Id. ¶ 14. The DMV approved her application 26 and her placard expired in June 2019. Id. 27 Sullivan alleges that she first injured her right hand in May 2015 when her left knee 1 while performing a task at work in May 2018 and was determined to be 5% permanently disabled 2 in her right hand. Id. ¶ 12. As a result of her hand and knee injuries, Sullivan alleges that she is 3 substantially limited in performing major life activities, such as walking, standing, sleeping and 4 working. Id. ¶ 25. 5 When Sullivan’s allegations of her injuries are taken together, it is reasonable to infer that 6 she is plausibly disabled within the meaning of the ADA. Sullivan’s claim that she is substantially 7 limited in performing major life activities is not a “formulaic recitation” of the elements of her 8 claim for relief, as Storer argues, because Sullivan has adequately pleaded a medical history that 9 supports an inference that she would be substantially limited in walking and other major life 10 activities by her injuries. See Reply at 4 (quoting Iqbal, 556 U.S. at 678). 11 In addition, Sullivan adequately alleged that she “was denied public accommodations by 12 the defendant because of her disability.” See Molski, 481 F.3d at 730 (2007). Discrimination 13 under the ADA does not merely prohibit obvious and intentional discrimination, “such as a sign 14 stating that persons with disabilities are unwelcome or an obstacle course leading to a store’s 15 entrance.” Chapman, 632 F.3d at 945. Refusing access to disabled seating is actionable. 16 Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1087 (9th Cir. 2004). In Fortyune, a 17 wheelchair-bound moviegoer and his aide were unable to see a sold-out film when the theater 18 manager refused to move another customer from a “companion seat”5 next to a wheelchair space. 19 Id. at 1078–79. The theater’s policy prohibited the manager from moving the other customer 20 during a sold-out movie. Id. at 1079. The court held that because the theater’s policy did not 21 allow the wheelchair-bound patron to sit next to his aide, the policy was discriminatory in effect. 22 Id. at 1083. 23 Here, Sullivan alleges that Storer denied her access to the disabled seating because the bus 24 driver did not believe she was disabled. FAC ¶ 17. Similar to the theater’s policy in Fortyune, 25 Storer’s policy allowed its employees to deny access to disabled seating for its intended users. See 26 5 The companion seat was “intended for use by the companions of individuals with disabilities” 27 and a sign on the back of the seat communicated the intended use to patrons. Fortyune, 364 F.3d 1 Mot. 10–11. Sullivan, therefore, sufficiently alleges discrimination under the ADA because 2 Sullivan alleges that Storer’s policy was discriminatory in effect. What’s more, Sullivan alleges 3 that after she left the bus, Storer allowed a non-disabled passenger to sit in the reserved seating. 4 FAC ¶¶ 19–20. 5 Sullivan’s complaint could also be construed as asserting a claim that Storer failed to 6 provide reasonable modifications. A plaintiff can establish discrimination under Title III of the 7 ADA by showing that a defendant failed to make reasonable modifications of its policies 8 necessary to accommodate the plaintiff’s disability. Fortyune, 364 F.3d at 1082. To support a 9 claim, the modification must be necessary and reasonable, and must not fundamentally alter the 10 nature of the business. Id. Necessary modifications do not just include those strictly necessary to 11 provide physical access; rather, they include modifications necessary to provide a disabled 12 individual full and equal enjoyment of a public accommodation. Baughman v. Walt Disney World 13 Co., 685 F.3d 1131, 1134–35 (9th Cir. 2012). Reasonableness is a fact-specific inquiry that 14 considers the requested accommodation and the disabled individual’s circumstances. See Wong v. 15 Regents of the Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999). Broadly, an unreasonable 16 accommodation “imposes ‘undue financial and administrative burdens.’” Fortyune, 364 F.3d at 17 1083 (quoting School Bd. Of Nassau County v. Arline, 480 U.S. 273, 288 n.17 (1987)).6 18 Here, Sullivan adequately alleges facts to support a claim that Storer failed to provide a 19 reasonable modification. Taking Sullivan’s allegations as true, Storer had a policy of setting aside 20 seats at the front of its buses for disabled passengers at the time of the incident, but at least one 21 driver did not allow passengers whose disabilities were not visibly apparent to use those seats. 22 First, Sullivan alleges facts sufficient to plausibly show that a modification to allow her—a 23 passenger with a non-obvious disability—to use those seats would be necessary to her full and 24 equal enjoyment because her alleged disability causes her difficulty in walking. FAC ¶ 25. 25 Second, Sullivan’s requested modification is plausibly reasonable because changing Storer’s 26 6 Although Arline addressed reasonableness under the Rehabilitation Act, the same standard 27 applies to reasonable accommodations within the meaning of the ADA. Fortyune 364 F.3d at 1 disabled seating policy to ensure that passengers with relevant disabilities can use the reserved 2 seats even if they “don’t have a walker or a cane,” cf. id. ¶ 17, could likely be accomplished 3 without undue burden. Indeed, Storer already has modified the policy. Kelley Decl. ¶ 3. Finally, 4 a policy allowing Storer access to the disabled seating would not fundamentally alter the 5 transportation services offered by Storer. Sullivan, thus, alleges facts sufficient to support a claim 6 that Storer failed to provide Sullivan reasonable modifications to accommodate her disability. 7 Storer cites no case that holds a company’s refusal to allow a disabled person to use 8 seating or other accommodations made available for the disabled is not discrimination prohibited 9 by the ADA. Sullivan’s allegations that she was not allowed to sit in a seat reserved for the 10 disabled despite communicating her disability to the bus driver are sufficient for pleading purposes 11 that she was denied “full and equal enjoyment of . . . services” on the basis her disability. 42 12 U.S.C. § 12182(a). Storer’s motion to dismiss for failure to state a claim is DENIED. 13 C. Storer’s Motion to Strike 14 A party may move the court to “strike from a pleading an insufficient defense or any 15 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of 16 a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from 17 litigating spurious issues by dispensing with those issues prior to trial . . . .” Whittlestone, Inc. v. 18 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 19 1524, 1527 (9th Cir. 1993)). “Motions to strike are generally regarded with disfavor because of 20 the limited importance of pleading in federal practice, and because they are often used as a 21 delaying tactic.” Mag Instrument, Inc. v. JS Prods., Inc., 595 F. Supp. 2d 1102, 1106 (C.D. Cal. 22 2008). “Ultimately, whether to grant a motion to strike lies within the sound discretion of the 23 district court.” Nguyen v. CTS Elecs. Mfg. Sols. Inc., No. 13-cv-03679-LHK, 2014 WL 46553, 24 at *3 (N.D. Cal. Jan. 6, 2014) (citing Whittlestone, 618 F.3d at 973). 25 Storer renews it motion to strike Sullivan’s request for damages under the ADA. As the 26 Court previously held in denying the same request in Storer’s previous motion, while Storer 27 remains correct that compensatory damages are not available under the ADA itself, see Molski, ] damages for violations of the ADA. A violation of the ADA is a per se violation of both the 2 Unruh Act, Cal. Civ. Code § 51(f), and the California Disabled Persons Act, Cal. Civ. Code 3 § 54.1(d), both of which allow a plaintiff to recover damages for such a violation. Federal 4 || pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal 5 || theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (per 6 || curiam). Although the Court previously requested that “Sullivan’s amended complaint should 7 || situate any requests for damages within claims under the statutes that directly allow for such 8 || recovery,” Order Granting Mot. to Dismiss at 10, the Court nevertheless still discerns little if any 9 || value in striking a request for damages to which Sullivan would be entitled if she proves her claim 10 || merely because it fails to reference all of the statutes relevant to such recovery. Storer’s motion to 11 strike is DENIED. 12 || IV. CONCLUSION 13 Based on the foregoing, Storer’s motion to dismiss and strike is DENIED. IT IS SO ORDERED. 3 15 Dated: June 16, 2020 5 Ze © a JQSEPH C. SPERO 17 ief Magistrate Judge 1B 19 20 21 22 23 24 25 26 27 28