1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 BRIAN WHITAKER, Case No.: 19cv1299-MMA (KSC) 10 ORDER GRANTING IN PART AND 11 Plaintiff, DENYING IN PART DEFENDANTS’ v. MOTION TO DISMISS 12 PLAINTIFF’S FIRST AMENDED S.F. PARTNERS, a Limited Partnership, a COMPLAINT 13 California Limited Liability Company; FULLMER INVESTMENTS LLC, a [Doc. No. 12] 14 California Limited Liability Company; ANNE S. MEYERS; and DOES 1-10, 15 16 Defendants. 17 18 Plaintiff Brian Whitaker (“Plaintiff”) brings this disability discrimination action 19 against the purported owner/operators of Lappert’s Ice Cream in San Diego, California. 20 See Doc. No. 7 (hereinafter “FAC”). Defendants S.F. Partners, a Limited Partnership 21 (“S.F. Partners”) and Fullmer Investments LLC (“Fullmer”) (collectively, “Defendants”) 22 move to dismiss Plaintiff’s claims based on the failure to state a plausible claim for relief 23 under Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 12. Plaintiff filed an 24 opposition, to which Defendants replied. See Doc. Nos. 15, 16. The Court found the 25 matter suitable for determination on the papers and without oral argument pursuant to 26 Civil Local Rule 7.1.d.1. See Doc. No. 17. For the reasons set forth below, the Court 27 GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss. 28 1 BACKGROUND1 2 This action arises out of events related to Plaintiff’s patronage of Lappert’s Ice 3 Cream, located at 12265 Scripps Poway Parkway, San Diego, California. Plaintiff is a 4 quadriplegic who is substantially limited in his ability to walk and uses a wheelchair for 5 mobility. FAC ¶ 1. In May 2019, Defendants S.F. Partners and Fullmer owned and 6 currently own the real property at 12265 Scripps Poway Parkway, San Diego, California. 7 Id. ¶¶ 2-3. 8 In May 2019, Plaintiff visited Lappert’s Ice Cream to avail himself of the store’s 9 goods, motivated in part to determine if Defendants comply with the disability access 10 laws. Id. ¶ 10. Plaintiff alleges that he encountered obstacles to accessing various 11 facilities, privileges, and advantages offered by Defendants to patrons of Lappert’s Ice 12 Cream. Id. ¶¶ 12, 15, 21. Specifically, Plaintiff alleges that Defendants “failed to 13 provide accessible dining tables.” Id. ¶ 13. Plaintiff also contends that Defendants 14 “failed to provide accessible door hardware at the entrance of Lappert’s Ice Cream.” Id. 15 ¶ 16. Plaintiff claims that these inaccessible conditions denied him full and equal access 16 and caused him difficulty and discomfort. Id. ¶¶ 19-20. Plaintiff further alleges that 17 Defendants “fail[ed] to provide accessible hand sanitizers and napkins that are kept on a 18 service counter.” Id. ¶ 22. Plaintiff states that he is currently deterred from returning to 19 Lappert’s Ice Cream “because of his knowledge of the existing barriers” and his 20 uncertainty about other existing barriers. Id. ¶ 25. 21 Based on these allegations, Plaintiff brings causes of action against Defendants for 22 violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. 23 and the California Unruh Civil Rights Act, Cal. Civ. Code § 51-53. See FAC. 24 Defendants move to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil 25 26 1 Because this matter comes before the Court on a motion to dismiss, the Court must accept as 27 true all material allegations in Plaintiff’s FAC and must also construe the FAC, and all reasonable inferences drawn therefrom, in the light most favorable to Plaintiff. Thompson v. Davis, 295 F.3d 890, 28 1 Procedure 12(b)(6), arguing that Plaintiff fails to plead specific facts in support of his 2 claims and fails to articulate recognizable barriers under the ADA. 3 LEGAL STANDARD 4 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 5 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 6 statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 7 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 8 plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 9 570 (2007). The plausibility standard thus demands more than a formulaic recitation of 10 the elements of a cause of action, or naked assertions devoid of further factual 11 enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must 12 contain allegations of underlying facts sufficient to give fair notice and to enable the 13 opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 14 2011). 15 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 16 of all factual allegations and must construe them in the light most favorable to the 17 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 18 The court need not take legal conclusions as true merely because they are cast in the form 19 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 20 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to 21 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 22 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 23 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 24 908 (9th Cir. 2003). “A court may, however, consider certain materials—documents 25 attached to the complaint, documents incorporated by reference in the complaint, or 26 matters of judicial notice—without converting the motion to dismiss into a motion for 27 summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 28 2001). Where dismissal is appropriate, a court should grant leave to amend unless the 1 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of 2 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). 3 DISCUSSION 4 Defendants first argue that Plaintiff fails to state a plausible claim for relief with 5 respect to the dining tables and store entrance. See Doc. 12 at 7. Second, Defendants 6 contend that the hand sanitizer and napkins are not barriers under the ADA because they 7 are available only to employees. See id. at 9.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 BRIAN WHITAKER, Case No.: 19cv1299-MMA (KSC) 10 ORDER GRANTING IN PART AND 11 Plaintiff, DENYING IN PART DEFENDANTS’ v. MOTION TO DISMISS 12 PLAINTIFF’S FIRST AMENDED S.F. PARTNERS, a Limited Partnership, a COMPLAINT 13 California Limited Liability Company; FULLMER INVESTMENTS LLC, a [Doc. No. 12] 14 California Limited Liability Company; ANNE S. MEYERS; and DOES 1-10, 15 16 Defendants. 17 18 Plaintiff Brian Whitaker (“Plaintiff”) brings this disability discrimination action 19 against the purported owner/operators of Lappert’s Ice Cream in San Diego, California. 20 See Doc. No. 7 (hereinafter “FAC”). Defendants S.F. Partners, a Limited Partnership 21 (“S.F. Partners”) and Fullmer Investments LLC (“Fullmer”) (collectively, “Defendants”) 22 move to dismiss Plaintiff’s claims based on the failure to state a plausible claim for relief 23 under Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 12. Plaintiff filed an 24 opposition, to which Defendants replied. See Doc. Nos. 15, 16. The Court found the 25 matter suitable for determination on the papers and without oral argument pursuant to 26 Civil Local Rule 7.1.d.1. See Doc. No. 17. For the reasons set forth below, the Court 27 GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss. 28 1 BACKGROUND1 2 This action arises out of events related to Plaintiff’s patronage of Lappert’s Ice 3 Cream, located at 12265 Scripps Poway Parkway, San Diego, California. Plaintiff is a 4 quadriplegic who is substantially limited in his ability to walk and uses a wheelchair for 5 mobility. FAC ¶ 1. In May 2019, Defendants S.F. Partners and Fullmer owned and 6 currently own the real property at 12265 Scripps Poway Parkway, San Diego, California. 7 Id. ¶¶ 2-3. 8 In May 2019, Plaintiff visited Lappert’s Ice Cream to avail himself of the store’s 9 goods, motivated in part to determine if Defendants comply with the disability access 10 laws. Id. ¶ 10. Plaintiff alleges that he encountered obstacles to accessing various 11 facilities, privileges, and advantages offered by Defendants to patrons of Lappert’s Ice 12 Cream. Id. ¶¶ 12, 15, 21. Specifically, Plaintiff alleges that Defendants “failed to 13 provide accessible dining tables.” Id. ¶ 13. Plaintiff also contends that Defendants 14 “failed to provide accessible door hardware at the entrance of Lappert’s Ice Cream.” Id. 15 ¶ 16. Plaintiff claims that these inaccessible conditions denied him full and equal access 16 and caused him difficulty and discomfort. Id. ¶¶ 19-20. Plaintiff further alleges that 17 Defendants “fail[ed] to provide accessible hand sanitizers and napkins that are kept on a 18 service counter.” Id. ¶ 22. Plaintiff states that he is currently deterred from returning to 19 Lappert’s Ice Cream “because of his knowledge of the existing barriers” and his 20 uncertainty about other existing barriers. Id. ¶ 25. 21 Based on these allegations, Plaintiff brings causes of action against Defendants for 22 violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. 23 and the California Unruh Civil Rights Act, Cal. Civ. Code § 51-53. See FAC. 24 Defendants move to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil 25 26 1 Because this matter comes before the Court on a motion to dismiss, the Court must accept as 27 true all material allegations in Plaintiff’s FAC and must also construe the FAC, and all reasonable inferences drawn therefrom, in the light most favorable to Plaintiff. Thompson v. Davis, 295 F.3d 890, 28 1 Procedure 12(b)(6), arguing that Plaintiff fails to plead specific facts in support of his 2 claims and fails to articulate recognizable barriers under the ADA. 3 LEGAL STANDARD 4 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 5 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 6 statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 7 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 8 plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 9 570 (2007). The plausibility standard thus demands more than a formulaic recitation of 10 the elements of a cause of action, or naked assertions devoid of further factual 11 enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must 12 contain allegations of underlying facts sufficient to give fair notice and to enable the 13 opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 14 2011). 15 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 16 of all factual allegations and must construe them in the light most favorable to the 17 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 18 The court need not take legal conclusions as true merely because they are cast in the form 19 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 20 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to 21 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 22 In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 23 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 24 908 (9th Cir. 2003). “A court may, however, consider certain materials—documents 25 attached to the complaint, documents incorporated by reference in the complaint, or 26 matters of judicial notice—without converting the motion to dismiss into a motion for 27 summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 28 2001). Where dismissal is appropriate, a court should grant leave to amend unless the 1 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of 2 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). 3 DISCUSSION 4 Defendants first argue that Plaintiff fails to state a plausible claim for relief with 5 respect to the dining tables and store entrance. See Doc. 12 at 7. Second, Defendants 6 contend that the hand sanitizer and napkins are not barriers under the ADA because they 7 are available only to employees. See id. at 9. 8 As the Supreme Court explained in Ashcroft, “[a] claim has facial plausibility 9 when the plaintiff pleads factual content that allows the court to draw the reasonable 10 inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 11 662. To state a plausible claim under Title III of the ADA, a plaintiff must allege that: 12 “(1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity 13 that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was 14 denied public accommodations by the defendant because of his disability.”2 Ariz. ex rel. 15 Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010). A violation 16 of the ADA gives rise to a claim under California’s Unruh Civil Rights Act. Cal. Civ. 17 Code § 51(f). The Court addresses Defendants’ arguments in turn. 18 1. Dining Tables and Store Entrance 19 Plaintiff alleges that Defendants “failed to provide accessible dining tables” and 20 “failed to provide accessible door hardware at the entrance of Lappert’s Ice Cream.” 21 FAC ¶¶13, 16. Defendants argue that Plaintiff fails to state a plausible claim for relief 22 under the ADA, claiming “Plaintiff has offered a conclusion as a fact[.]” Doc. 12 at 7. 23 In the Ninth Circuit, specific details regarding inaccessible features are not 24 required to fulfill notice pleading standards for ADA claims. See Skaff v. Meridien N. 25 Am. Beverly Hills, LLC., 506 F.3d 832, 841-42 (9th Cir. 2007). In Skaff, the plaintiff 26 fulfilled notice pleading standards by simply identifying features like the “guestroom, 27 28 1 bathroom, telephone, elevator, and signage” as “barriers to disabled access.” Id. at 840. 2 As the circuit court explained, the plaintiff’s “allegations that he encountered the above 3 barriers, though succinct, gave [Defendant] notice of what Skaffs’ claims were and that 4 he had personally encountered barriers and thus had standing to pursue their elimination.” 5 Id. at 840-41. 6 Here, Plaintiff avers that Defendants “failed to provide accessible dining tables” 7 and “failed to provide accessible door hardware.” FAC ¶¶ 13, 16. Plaintiff claims that 8 the failure to provide accessible facilities “created difficulty and discomfort” for him. Id. 9 ¶ 20. Moreover, Plaintiff contends that these barriers are easily removed without much 10 difficulty or expense and there are “numerous alternative accommodations that could be 11 made to provide a greater level of access if complete removal were not achievable.” Id. ¶ 12 24. These allegations are sufficient given the broad pleading standard for ADA claims 13 articulated in Skaff. See Langer v. 6830 La Jolla Blvd., LLC, No. 19-cv-1790-GPC-NLS, 14 2020 WL 353601, at *2 (S.D. Cal. Jan. 21, 2020) (finding that as a matter of law, it is 15 sufficient for an ADA plaintiff to state that he encountered barriers to access and that he 16 was deterred by accessibility barriers from visiting the restaurant to survive a motion to 17 dismiss). Because Plaintiff has adequately pleaded his ADA claim, his Unruh Civil 18 Rights Act claim based on the dining tables and store entrance survives as well. See Org. 19 for Advancement of Minorities with Disabilities v. Brick Oven Rest., 406 F. Supp. 2d 20 1120, 1129 (S.D. Cal. 2005) (“[P]ursuant to § 51(f), a violation of an individual’s rights 21 under the ADA ‘shall also constitute a violation of [the Unruh Act].’”). Therefore, the 22 Court DENIES Defendants’ motion to dismiss Plaintiff’s claims with respect to the 23 dining tables and store entrance barriers. 24 2. Hand Sanitizer and Napkins 25 Plaintiff further alleges that “hand sanitizers and napkins are facilities, privileges, 26 and advantages offered by Defendants to patrons” and that “accessible hand sanitizers 27 and napkins have not been provided.” FAC ¶¶ 21, 34. Defendants, however, argue that 28 “no customer has access to the sand [sic] sanitizers” and that “the hand sanitizer and 1 napkins are not facilities or services offered openly to customers and are accessible only 2 ||to employees.” See Doc. 12 at 8-9 (emphasis added). 3 To constitute a barrier, goods and services must be in an area accessible to the 4 || public. Long v. Coast Resorts, 267 F.3d 918, 924 (9th Cir. 2001) (reversing judgment for 5 || one of five alleged ADA barriers because it was not in an area open to the public). Here, 6 || Plaintiff claims that Defendants “fail to provide accessible hand sanitizers and napkins 7 || that are kept on a service counter.”” FAC 4 22. However, Defendants argue that the hand 8 || sanitizer and napkins are accessible only to employees. It is unclear to the Court whether 9 || the hand sanitizers and napkins on the service counter Plaintiff references are directly 10 || accessible to all customers, or only employees as Defendants assert. Notably, Plaintiff 11 not respond to this argument in his opposition brief. Accordingly, the Court finds 12 || that Plaintiff fails to sufficiently allege that the napkins and hand sanitizer are available to 13 || all patrons and GRANTS Defendants’ motion to dismiss with respect to these barriers. 14 || Because Plaintiff may be able to allege sufficient additional facts with respect to the 15 |}napkins and hand sanitizer, dismissal is without prejudice and with leave to amend. 16 CONCLUSION 17 Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART 18 || Defendants’ motion to dismiss. Plaintiffs’ ADA and Unruh Civil Rights Act claims 19 || survive with respect to the dining tables and store entrance. The Court dismisses 20 || Plaintiffs claims based on the hand sanitizer and napkins without prejudice. Plaintiff 21 file a Second Amended Complaint addressing the deficiencies identified herein on or 22 || before February 27, 2020. 23 IT IS SO ORDERED. 24 25 || Dated: February 13, 2020 26 Mihul Ldillr HON. MICHAEL M. ANELLO 38 United States District Judge