Zamora v. Wendy's International, LLC

• Court: District Court, N.D. California
• Decided: June 25, 2020
• Docket: 5:19-cv-06133
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 JESSE ZAMORA, et al., Case No. 19-CV-06133-LHK

13 Plaintiffs, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 14 v. Re: Dkt. No. 20 15 WENDY'S INTERNATIONAL, LLC, 16 Defendant. 17 18 Plaintiffs Jesse Zamora, Lonia Smith, Roy Rios, and Daniel Onn (collectively, “Plaintiffs”) 19 filed this putative class action against Defendant Wendy’s International, LLC (“Defendant”). 20 Plaintiffs are individuals with visual impairments who allege that Defendant violated Plaintiffs’ 21 rights under the Americans with Disabilities Act (“ADA”) and California’s Unruh Act because 22 Defendant’s restaurants only permit “drive-thru” service after certain hours at night. Before the 23 Court is Defendant’s motion to dismiss Plaintiffs’ amended complaint.1 ECF No. 20. Having 24 25 1 Defendant’s motion to dismiss contains a notice of motion that is separately paginated from the 26 memorandum of points and authorities in support of the motion. See ECF No. 20. Civil Local Rule 7-2(b) provides that the notice of motion and the points and authorities in support of the 27 motion must be contained in one document with a combined limit of 25 pages. See Civ. Loc. R. 7- 2(b). 1 considered the submissions of the parties, the relevant law, and the record in this case, the Court 2 GRANTS Defendant’s motion to dismiss with leave to amend. 3 I. BACKGROUND 4 A. Factual Background 5 Plaintiffs Jesse Zamora, Lonia Smith, Roy Rios, and Daniel Onn are California residents 6 who have visual impairments that render them unable to operate a motor vehicle. ECF No. 15 7 ¶¶ 10–13 (“FAC”). Defendant Wendy’s International, LLC is a corporation with its headquarters 8 in Ohio. Id. ¶ 14. 9 According to the First Amended Complaint (“FAC”), more than 270 Wendy’s-branded 10 restaurants are located in California. Id. ¶ 16. Plaintiffs allege Wendy’s restaurants offer both 11 counter service and “drive-thru” service. Id. ¶¶ 26–29. Late at night, many Wendy’s restaurants 12 remain open but counter service is not available to serve food. Id. ¶ 32. Instead, customers must 13 use the drive-thru to obtain food. Id. ¶ 32. The restaurants, however, do not permit pedestrians to 14 use the drive-thru, with the result that pedestrians are unable to obtain food during these late-night 15 periods. Id. ¶¶ 33–35. 16 Plaintiffs allege that Defendant “owns, operates and/or leases” Wendy’s restaurants and 17 requires all Wendy’s-branded restaurants to follow a “system of rules, directives, and/or 18 commands” called the “Wendy’s System.” Id. ¶¶ 15, 18–24. The FAC however, does not allege 19 any of the content of the “Wendy’s System” or whether the “Wendy’s System” concerns 20 accessibility related issues. Id. ¶¶ 19–24. Instead, the FAC only alleges that the “‘Wendy’s 21 System’ does not include any policy, procedure, protocols, or infrastructure for assisting, aiding, 22 or serving visually-impaired would-be customers of Wendy’s-branded restaurants.” Id. ¶ 25. 23 In approximately March 2019, Plaintiff Zamora sought to obtain food from the Wendy’s 24 restaurant at 800 Bellevue Road, Atwater, California during its late-night opening time, but was 25 unable to obtain food independently because the lobby doors were locked and he was unable to 26 operate a motor vehicle. Id. ¶¶ 40–43. Plaintiff Zamora visits this Wendy’s location once a week 27 during the late-night hours and requires assistance from a third party to access it. Id. ¶ 44. 1 In June 2019, Plaintiff Smith sought to obtain food from the Wendy’s restaurant at 1001 2 Redwood Street, Vallejo, California, but was unable to obtain food independently because the 3 lobby doors were locked and she was unable to operate a motor vehicle. Id. ¶¶ 49–52. Plaintiff 4 Smith visits this Wendy’s location regularly and has walked there from her mother’s house. Id. 5 ¶¶ 49, 53, 55. 6 In May 2019, Plaintiff Rios sought to obtain food from the Wendy’s restaurant at 7570 7 Orangethorpe Avenue, Buena Park, California, but was unable to obtain food independently 8 because the lobby doors were locked and he was unable to operate a motor vehicle. Id. ¶¶ 61–64. 9 Plaintiff Rios visits this Wendy’s location frequently and has walked there from his home. Id. 10 ¶¶ 65, 67. 11 In mid-2019, Plaintiff Onn sought to obtain food from the Wendy’s restaurant at 782 S. 12 Bascom Avenue, San Jose, California at about 11:00 p.m., but was unable to obtain food 13 independently because the lobby doors were locked and he was unable to operate a motor vehicle. 14 Id. ¶¶ 74–78. This Wendy’s location closes its lobby at 10:00 p.m. but stays open for drive-thru 15 service until midnight. Id. ¶ 77. Plaintiff Onn travels to San Jose approximately twice per month 16 to visit friends and often attends movies that last until after 10:00 p.m. in a shopping center near 17 this Wendy’s location. Id. ¶¶ 73, 79. 18 B. Procedural History 19 Plaintiffs filed their initial complaint on September 26, 2019. ECF No. 1. Plaintiffs 20 asserted claims (1) under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 21 §§ 12181 et seq.; (2) under California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code 22 §§ 51 et seq.; and (3) for declaratory relief. Id. ¶¶ 94–115. Plaintiffs also sought to certify a 23 nationwide class of Wendy’s customers who were unable to drive due to a visual disability and a 24 California class of Wendy’s customers who were unable to drive due to a visual disability. Id. 25 ¶ 84. 26 On November 22, 2019, Defendant filed a motion to dismiss Plaintiffs’ complaint. ECF 27 No. 14. In that motion, Defendant also requested, in the alternative, to transfer the case to the 1 Southern District of Ohio or to stay the case on the grounds that a similar case, Davis v. Wendy’s 2 International, LLC, No. 19-CV-04003 (N.D. Ill. filed Jun. 14, 2019), was then in progress in the 3 Northern District of Illinois. Id. 4 On December 6, 2019, Plaintiffs filed the First Amended Complaint, ECF No. 15 (“FAC”), 5 which mooted Defendant’s motion to dismiss, see ECF No. 24. In the FAC, Plaintiffs again assert 6 claims (1) under Title III of the ADA, (2) under the Unruh Act, and (3) for declaratory relief. Id. 7 ¶¶ 94–115. In the FAC, Plaintiffs no longer seek to certify a nationwide class. Instead, Plaintiffs 8 seek to certify: (1) an “ADA Class” of “all California residents who are unable to drive by reason 9 of visual disability and who are unable to access a Wendy’s restaurant located in the state of 10 California by virtue of Wendy’s drive-thru-only hours,” and (2) an “Unruh Class” of “all 11 California residents who are unable to drive by reason of visual disability and who have been 12 denied access or deterred from accessing one or more Wendy’s restaurants in the state of 13 California by virtue of Wendy’s drive-thru-only hours.” Id. ¶ 84. 14 On December 20, 2019, Defendant filed the instant motion to dismiss the FAC. ECF No. 15 20 (“Mot.”). Plaintiffs filed their opposition on January 3, 2020. ECF No. 21 (“Opp.”). On 16 January 10, 2020, Defendant filed its reply. ECF No. 22 (“Reply”). 17 II. LEGAL STANDARD 18 A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) 19 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a 20 short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint 21 that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 22 12(b)(6). The United States Supreme Court has held that Rule 8(a) requires a plaintiff to plead 23 “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. 24 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads 25 factual content that allows the court to draw the reasonable inference that the defendant is liable 26 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility 27 standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a 1 defendant has acted unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling 2 on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and 3 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 4 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 5 The Court, however, need not “assume the truth of legal conclusions merely because they 6 are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) 7 (per curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and 8 unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 9 F.3d 1179, 1183 (9th Cir. 2004). 10 B. Leave to Amend 11 If the Court determines that a complaint should be dismissed, the Court must then decide 12 whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave 13 to amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose 14 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 15 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 16 marks omitted). When dismissing a complaint for failure to state a claim, “a district court should 17 grant leave to amend even if no request to amend the pleading was made, unless it determines that 18 the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 19 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 20 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 21 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 22 (9th Cir. 2008). 23 III. DISCUSSION 24 Plaintiffs assert claims under Title III of the ADA and the California Unruh Act. Title III 25 of the ADA provides in part that “[n]o individual shall be discriminated against on the basis of 26 disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, 27 or accommodations of any place of public accommodation by any person who owns, leases (or 1 leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). 2 Plaintiffs’ Unruh Act claims are largely based on their ADA claims. FAC ¶¶ 109–110. “A 3 violation of the ADA is, by statutory definition, a violation of . . . the Unruh Act.” Cullen v. 4 Netflix, Inc., 880 F. Supp. 2d 1017, 1023 (N.D. Cal. 2012) (citing Cal. Civ. Code §§ 51(f), 5 54.1(d)). “Because the Unruh Act is coextensive with the ADA and allows for monetary damages, 6 litigants in federal court in California often pair state Unruh Act claims with federal ADA claims.” 7 Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007). The parties agree that if Plaintiffs’ 8 ADA claims fail, so do Plaintiffs’ Unruh Act claims. As a result, the Court follows the parties’ 9 arguments and focuses its analysis on Plaintiffs’ ADA claims. See also Smith v. Pride Mobility 10 Prod. Corp., No. 16-CV-04411-LHK, 2016 WL 6393549, at *6 (N.D. Cal. Oct. 28, 2016) 11 (dismissing an Unruh Act claim that was premised on an ADA violation when plaintiff failed to 12 state a claim under the ADA). 13 “To prevail on a discrimination claim under Title III, a plaintiff must show that: (1) he is 14 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 15 operates a place of public accommodation; and (3) the plaintiff was denied public 16 accommodations by the defendant because of his disability.” Doe One v. CVS Pharmacy, Inc., 17 348 F. Supp. 3d 967, 986 (N.D. Cal. 2018) (citing Molski, 481 F.3d at 730). The parties do not 18 dispute that Plaintiffs are disabled within the meaning of the ADA or that Wendy’s restaurants are 19 places of public accommodation. 20 Rather, Defendant moves the Court to dismiss Plaintiffs’ ADA claims on two grounds 21 related to the second and third elements. First, Defendant argues that Plaintiffs “fail to allege that 22 Wendy’s discriminated against them on the basis of disability.” Mot. at 1. Second, Defendant 23 contends that Plaintiffs “do not allege that Wendy’s owned, leased, or operated the restaurant 24 locations at issue.” Id. Because the Court agrees with the second contention that Plaintiffs do not 25 adequately allege that Defendant owned, leased, or operated the relevant restaurants at issue in the 26 instant case, the Court need not reach Defendant’s first argument. 27 A. The FAC Does Not Adequately Plead that Defendant Owns, Leases, or Operates the Relevant Restaurants Within the Meaning of Title III of the ADA 1 Title III’s prohibition of discrimination applies to “any person who owns, leases (or leases 2 to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Plaintiffs contend that 3 the FAC sufficiently alleges that Defendant “owns” or “operates” the restaurants at issue. Opp. at 4 8–9. The Court first addresses whether the FAC adequately pleads that Defendant “owns” the 5 relevant restaurants before analyzing Plaintiffs’ remaining argument that Defendant “operates” the 6 relevant restaurants. 7 1. Plaintiffs Do Not Adequately Plead that Defendant “Owns” The Relevant 8 Restaurants 9 Defendant argues that “Plaintiffs do not allege [Defendant] owns . . . the restaurants they 10 visited” and instead, the FAC simply alleges that Defendant “owns . . . some restaurants.” Mot. at 11 9 (emphasis in original). The Court agrees. 12 The FAC’s only allegation regarding Defendant’s ownership of restaurants appears in 13 paragraph 17, where Plaintiffs plead that “[s]ome Wendy’s restaurants are owned and operated 14 entirely by the Defendant, while others are co-owned and/or co-operated by franchisees and 15 Wendy’s.” FAC ¶ 17. Notably absent is any allegation that Defendant owns or co-owns the four 16 specific restaurants where the named plaintiffs allegedly experienced discrimination. Indeed, 17 Plaintiffs’ own opposition acknowledges that the FAC only pleads that “Wendy’s owns some if its 18 restaurants” and “owns other restaurants together with franchisees.” Opp. at 9. Plaintiffs do not 19 argue—in either the FAC or their opposition—that Defendant owns the restaurants at issue in this 20 litigation. Furthermore, the fact that Plaintiffs spend only one paragraph in their opposition 21 arguing this point is further indication that the FAC does not adequately plead that Defendants 22 own or co-own the specific restaurants at issue here. 23 Accordingly, the Court concludes that Plaintiffs have failed to sufficiently allege that 24 Defendants own the four specific restaurants relevant to the instant case. As a result, insofar as 25 Plaintiffs seek to hold Defendant liable as an “owner” of the four Wendy’s-branded restaurants, 26 the FAC does not contain sufficient allegations to do so. 27 2. Plaintiffs Do Not Adequately Plead that Defendant “Operates” The Relevant Restaurants 1 The Court now turns to Plaintiffs’ argument that the FAC sufficiently alleges that 2 Defendant “operates” the four specific restaurants at issue here. 3 In the context of Title III, “[t]he Ninth Circuit has interpreted the term ‘to operate’ as ‘to 4 put or keep in operation,’ ‘to control or direct the functioning of,’ or ‘to conduct the affairs of; 5 manage.’” Lemmons v. Ace Hardware Corp., No. 12-cv-03936-JST, 2014 WL 3107842, at *6 6 (N.D. Cal. July 3, 2014) (quoting Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 849 7 (9th Cir. 2004)). Specifically, “[t]o be considered an ‘operator’ under this definition, a person or 8 entity must have an active and significant degree of control over the access[] related aspects of the 9 facility in question.” Id. (citing Lentini, 370 F.3d at 849). 10 In adopting this standard, the Ninth Circuit relied on the Fifth Circuit’s interpretation of 11 “operate” in Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995). Lentini, 370 12 F.3d at 849 (“We agree with the Fifth Circuit’s guidelines for defining the scope of the verb ‘to 13 operate’ in this context.”). District courts in the Ninth Circuit have therefore relied on Neff to 14 determine whether a franchisor “operated” a place of public accommodation for the purposes of 15 Title III of the ADA. See, e.g., Lemmons, 2014 WL 3107842, at *7 (applying the Neff standard); 16 Johnson v. Winchester Campbell Props., LLC, No. 18-cv-04153-VKD, 2018 WL 6619940, at *4. 17 (N.D. Cal. Dec. 18, 2018) (same); Johnson v. Compton, No. 16-CV-02961-JAM-CKD, 2017 WL 18 1353801, at *2 (E.D. Cal. Apr. 10, 2017) (same). 19 In Neff, the Fifth Circuit concluded that the term “operator” in the context of a franchise 20 agreement depended on whether the franchisor “specifically control[led] the modification of the 21 franchises to improve their accessibility to the disabled.” Neff, 58 F.3d at 1066. Based on this 22 reasoning, the Fifth Circuit determined that even though the franchise agreement gave the 23 franchisor “the right to set standards for building and equipment maintenance and to ‘veto’ 24 proposed structural changes,” the franchisor was not an “operator” under Title III of the ADA and 25 therefore could not be held liable. Id. at 1068. Indeed, even though the franchise agreement 26 permitted the franchisor to “disapprove any proposed modifications to the . . . [s]tore building and 27 1 equipment,” such “limited . . . control over structural modifications” was not enough to hold the 2 franchisor liable as an “operator” under Title III of the ADA. Id. 3 Therefore, in order to sufficiently allege that Defendant “operates” the relevant restaurants 4 through its “Wendy’s System,” the FAC must plead that through the “Wendy’s System,” 5 Defendant “specifically control[led] the modification of the franchises to improve their 6 accessibility to the disabled.” Neff, 58 F.3d at 1066; see also Lemmons, 2014 WL 3107842, at *6 7 (“To be considered an ‘operator’ under this definition, a person or entity must have an active and 8 significant degree of control over the access[] related aspects of the facility in question.” Id. 9 (citing Lentini, 370 F.3d at 849)). Any such allegations are wholly absent from the FAC. 10 Here, the FAC merely alleges that Defendant “operates all Wendy’s-branded restaurants by 11 implementing, maintaining, and enforcing the Wendy’s System as to all Wendy’s-branded 12 restaurants.” FAC ¶ 19. Notably absent are any allegations about the contents of the “Wendy’s 13 System,” such as whether it includes other ADA access-related policies, in what manner 14 franchisees “are required” to follow it, whether it dictates when drive-thrus and counters are open, 15 or whether it provides a protocol for drive-thru access. Indeed, the FAC appears to allege the 16 opposite—namely, that the “Wendy’s System does not include any policy, procedure, protocols” 17 relating to accessibility for visually impaired customers. Id. ¶ 25. Thus, Plaintiffs fail to allege 18 that Defendant exercises control over the access-related aspects of the facilities in question. 19 Plaintiffs’ case is far weaker than in Neff. In Neff, the plaintiffs were able to point to a 20 franchise agreement that gave the franchisor “the right to set standards for building and equipment 21 maintenance and to ‘veto’ proposed structural changes.” Neff, 58 F.3d at 1068. Even that 22 provision, however, was insufficient to hold the franchisor liable as an “operator” under Title III. 23 Id. In the instant case, Plaintiffs lack any such allegations regarding whether Defendant 24 “specifically control[led] the modification of the franchises to improve their accessibility to the 25 disabled.” Id. at 1066. Accordingly, Plaintiffs have failed to allege that Defendant “operates” the 26 relevant restaurants at issue in the instant case. 27 Other courts within the Ninth Circuit have reached the same conclusion on similar facts. 1 See O’Byrne v. Reed, No. 09-CV-08406-DMG, 2010 WL 11596710, at *3 (C.D. Cal. Aug. 6, 2 2010) (“Thus, while Defendants ‘conduct the affairs of’ or ‘manage’ the vacation rentals in a 3 limited sense, they do not ‘operate’ the vacation rentals in the sense relevant to ADA liability, i.e., 4 their operation of the vacation rentals does not impact the discrimination at issue. It would be no 5 more reasonable to impose ADA liability on Defendants than on the employees working at the 6 front desk of a hotel, who—like Defendants—provide guests with keys and linens, manage 7 reservations, and collect payments on behalf of the owner.”); United States v. Days Inns of Am., 8 No. 96-CV-260-WBS, 1998 WL 461203, at *6 (E.D. Cal. Jan. 12, 1998) (“Therefore, even if Days 9 Inn were [sic] found to ‘control’ individual hotels’ day-to-day activities, Neff and other courts that 10 have considered the issue appropriately deem the relevant inquiry to be the control over the 11 discriminatory conditions. At most Days Inns has the same negative veto influence the Neff court 12 found inadequate to establish vicarious franchisor liability. Here Days Inns simply does not 13 exercise the type of control that would trigger ADA liability.” (citations omitted)). 14 For example, in Lemmons, the plaintiff argued that a franchising agreement that required 15 the franchisee “to abide by all federal and state laws, including those pertaining to disability 16 access” made the franchisor liable as an “operator” under Title III of the ADA. 2014 WL 17 3107842, at *7. The court disagreed because “while these contractual terms might provide an 18 additional incentive to [the franchisee] to comply with federal and state laws, they [did] not grant 19 [the franchisor] the ‘specific control’ necessary to impose liability.” Id. Specifically, the 20 franchising agreement did not show that the franchisor “retained the authority under the agreement 21 to dictate the physical layout of the store” or “otherwise participated in the alleged acts of 22 discrimination against [the plaintiff].” Id. 23 That same logic applies here with even greater force. Unlike Lemmons, Plaintiffs have not 24 included any allegations about the content of the “Wendy’s System.” At best, the FAC alleges 25 that the “Wendy’s System” does not include policies or procedures concerning accessibility for 26 visually impaired individuals, FAC ¶ 25, which, if anything, tends to demonstrate that Defendant 27 does not have “an active and significant degree of control over the access[] related aspects of the 1 facility in question.” Lemmons, 2014 WL 3107842, at *6. Plaintiffs have therefore failed to 2 allege that Defendant “operates” the relevant Wendy’s-branded restaurants within the meaning of 3 Title III of the ADA. Id. (holding that the contract “[did] not grant [the franchisor] the ‘specific 4 control’ necessary to impose liability”). 5 Finally, Castaneda v. Burger King Corp., 597 F. Supp. 2d 1035 (N.D. Cal. 2009), a 6 decision denying a motion to dismiss in the context of a Title III ADA case, exemplifies Plaintiffs’ 7 pleading inadequacies. In that case, the court found that plaintiffs had adequately pleaded that 8 defendant operated the relevant restaurants. Id. at 1043. Specifically, the complaint in Castaneda 9 alleged the existence of common barriers across the various restaurants and that these restaurants 10 “were built according to one or a limited number of architectural design prototypes developed by 11 [the franchisor].” Id. (quotation marks omitted). Additionally, the complaint alleged that the 12 franchisor “exercised substantial control over . . . the leased restaurants, including over the 13 development, design, alteration, remodel, maintenance and operation of those restaurants” through 14 “enter[ing] into development agreements requiring construction of some or all of the California 15 restaurants or the performance of ‘re-imaging’ programs at those restaurants in accordance with 16 [the franchisor’s] designs.” Id. Finally, the complaint pleaded that the franchisor “provided 17 building plans used to construct some or all of those restaurants and provided construction teams 18 to aid in designing and building some or all of those restaurants.” Id. 19 To put it plainly, Plaintiffs include no analogous allegations in the FAC. The Court 20 therefore concludes that Plaintiffs have failed to allege that Defendant “operates” the relevant 21 restaurants. 22 Plaintiffs’ only response to these authorities is to argue that many of them were decided on 23 summary judgment and that the Court should therefore deny Defendant’s motion to dismiss. Mot. 24 at 8. The Court is not persuaded. To be sure, the procedural posture of a case can be relevant, but 25 here, the fact of the matter is that Plaintiffs have not adequately alleged that Defendant exercised 26 and possessed “an active and significant degree of control over the access[] related aspects of the 27 facility in question.” Lemmons, 2014 WL 3107842, at *6. 1 In other words, even taking all of Plaintiffs’ allegations in the FAC as true—which the 2 Court must do at the motion to dismiss stage—Plaintiffs have not stated a claim under Title III of 3 the ADA because the FAC does not include allegations that Defendant operates the relevant 4 restaurants at issue. See Castaneda, 597 F. Supp. 2d at 1043 (denying motion to dismiss because 5 the complaint alleged that defendant “exercised substantial control over . . . the leased restaurants, 6 including over the development, design, alteration, remodel, maintenance and operation of those 7 restaurants” through “enter[ing] into development agreements requiring construction of some or 8 all of the California restaurants, . . . ‘re-imaging’ programs at those restaurants in accordance with 9 [the franchisor’s] designs, . . . . provid[ing] building plans used to construct some or all of those 10 restaurants[,] and provid[ing] construction teams to aid in designing and building some or all of 11 those restaurants”). The fact that the aforementioned cases occurred at the summary judgment 12 stage does not absolve Plaintiffs from complying with Rule 8. As the United States Supreme 13 Court explained, “only a complaint that states a plausible claim for relief survives a motion to 14 dismiss” and “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing 15 more than conclusions.” Iqbal, 556 U.S. at 678–79. 16 Accordingly, Plaintiffs have failed to allege that Defendant owns, leases, or operates the 17 relevant Wendy’s-branded restaurants at issue in the instant case. As a result, the Court GRANTS 18 Defendant’s motion to dismiss Plaintiffs’ ADA claims. 19 Furthermore, as noted above, Plaintiffs’ claims under the Unruh Act are premised on their 20 ADA claims. Therefore, because Plaintiffs have failed to state a claim under the ADA, they have 21 also failed to state a claim under the Unruh Act. See Pride Mobility, 2016 WL 6393549, at *6 22 (dismissing an Unruh Act claim that was premised on an ADA violation when plaintiff failed to 23 state a claim under the ADA). As a result, the Court also GRANTS Defendant’s motion to 24 dismiss Plaintiffs’ Unruh Act claims. 25 Nonetheless, because amendment would not be futile, cause undue delay, or unduly 26 prejudice Defendant, and because Plaintiffs have not acted in bad faith, the Court GRANTS 27 Plaintiffs leave to amend. Leadsinger, 512 F.3d at 532. IV. CONCLUSION 1 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss with leave 2 to amend. Plaintiffs shall file any amended complaint within 30 days of this Order. Failure to file 3 an amended complaint within 30 days of this Order or failure to cure deficiencies identified herein 4 or in Defendant’s motion to dismiss will result in dismissal of the deficient claims with prejudice. 5 Plaintiffs may not add new causes of action or new parties without a stipulation or leave of the 6 Court. 7 IT IS SO ORDERED. 8

9 Dated: June 25, 2020 10 ______________________________________ 11 LUCY H. KOH United States District Judge 12

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