-GGH Johnson v. California Welding Supply, Inc. et al, No. 2:2011cv01669 - Document 18 (E.D. Cal. 2011)
Court Description: ORDER denying 8 Motion to Dismiss signed by Judge William B. Shubb on 10/27/11. (Kaminski, H)
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-GGH Johnson v. California Welding Supply, Inc. et al Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 ----oo0oo---SCOTT JOHNSON, NO. CIV. 2:11-01669 WBS GGH 13 14 15 Plaintiff, v. ORDER RE: MOTION TO DISMISS 17 CALIFORNIA WELDING SUPPLY, INC., individually and d/b/a CALIFORNIA WELDING SUPPLY COMPANY; RAYMOND INVESTMENT CORP., a California corporation, 18 Defendants. 16 / 19 20 ----oo0oo---- 21 Plaintiff Scott Johnson brought this action alleging 22 failure by defendants to remove access barriers to their welding 23 supply store and seeking relief under the Americans with 24 Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., and 25 California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code 26 §§ 51, 52. 27 pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure 28 on the grounds that the court no longer has subject matter Defendants now move to dismiss plaintiff’s Complaint 1 Dockets.Justia.com 1 jurisdiction over plaintiff’s claims. 2 I. Factual and Procedural Background 3 Plaintiff is a quadriplegic and is thus a “person with 4 a disability” and a “physically handicapped person” according to 5 the ADA. (Compl. ¶ 1; 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 6 36.104.) As a result of his disability, plaintiff has 7 substantial limitations on major life activities, including 8 standing, breathing, and reaching. 9 with these difficulties, plaintiff requires the use of a service (Compl. ¶ 1.) To function 10 animal, electric wheelchair, and a full-size van with hand- 11 controls and a wheelchair lift. 12 (Id.) Twice in the past year, plaintiff claims he has visited 13 California Welding Supply Company (“California Welding”), a 14 welding supply and retail store. 15 visits, one of which occurred on or about April 3, 2011, 16 plaintiff alleges that he encountered multiple barriers that made 17 it difficult for him to make full and equal use of the premises. 18 (Id. ¶ 4.) 19 disability, the entrance door, pathways through the store, the 20 service counter, signage, and striping caused him to experience 21 difficulty, discomfort, and embarrassment. 22 (Id. ¶¶ 2, 4.) During these Specifically, plaintiff claims that because of his (Id.) Plaintiff also claims that the customer parking and 23 customer restroom he and his companion used during his April 3, 24 2011, visit were out of compliance with applicable disability 25 laws. 26 provided customer restrooms or customer parking. 27 ¶¶ 6,7.) 28 (Id.) Defendants contend that they do not and have never (Garcia Decl. As a result of these barriers, plaintiff further claims 2 1 that he has been deterred from making two additional visits in 2 the past year. 3 (Compl. ¶ 4.) According to the plaintiff, he mailed a letter to 4 defendants on December 5, 2010, informing them that their store 5 was inaccessible to him and asking that they bring it into 6 conformity with applicable disability laws. 7 Defendants claim that they never received the letter as the 8 address to which the letter was mailed was no longer a valid 9 address. 10 (Id. ¶ 4, Ex. C.) (Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss at 3.) 11 Plaintiff filed this Complaint on June 20, 2011. 12 (Docket No. 1.) 13 not yet been served, allege that they were contacted by an 14 attorney who informed them that they were named as defendants in 15 a complaint alleging ADA violations. 16 of Defs.’ Mot. to Dismiss at 3.) 17 contacted a disability accessability specialist and asked him to 18 perform a survey of California Welding. 19 The initial survey identified several areas in which the premises 20 were not in compliance with the ADA or the California Building 21 Code. 22 4; Simms Decl. Ex. A.) 23 they do not provide public-use parking or restrooms, the 24 specialist found that no changes were needed with respect to 25 parking or restroom facilities. 26 Some time that same month, defendants, who had (Mem. of P. & A. in Supp. In response, defendants (Id.; Garcia Decl. ¶ 8) (Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss at 3Relying upon defendants’ assertion that (Simms Decl. ¶¶ 5, 9.) According to defendants, all of the access barriers 27 identified in the specialist’s report were removed by July 18, 28 2011. (Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss at 4.) 3 1 The accessability specialist made a follow-up visit to California 2 Welding on July 20, 2011, and reported that as of that date the 3 premises were in compliance with the ADA and the California 4 Building Code. 5 disputes defendants’ claim that they are now in substantial 6 compliance with the ADA and the California Business Code on 7 several grounds. 8 9 (Id.; Simms Decl. ¶ 10, Ex. A.) Plaintiff (Pl’s Opp. to Mot. to Dismiss ¶¶ 2-4.) First, the specialist’s report found that the horizontal pull handle on the outside of the entrance door could 10 be opened without “tight grasping or pinching, or twisting of the 11 wrist” and was therefore in compliance. 12 Plaintiff, however, claims that the handle was difficult for him 13 to use because of his limited hand grasping ability and is thus a 14 barrier to access. 15 Decl. ¶ 9.) 16 (Simms Decl. ¶ 6.) (Pl.’s Opp. to Mot. to Dismiss ¶ 4; Johnson Second, plaintiff takes issue with the specialist’s 17 reliance on defendants’ assertion that they do not provide public 18 parking or public restrooms. 19 Welding does provide such facilities. 20 this position, plaintiff has filed a declaration stating that 21 when he visited the premises on April 3, 2011, he was permitted 22 to park in a parking lot outside of the store and that when his 23 companion asked if there was a customer-use restroom, she was 24 directed to a restroom inside the store. 25 Kem Decl. ¶¶ 2, 4.) 26 plaintiff claims to have parked is a loading dock and point to 27 the “No Public Restrooms” sign on the store front’s window. 28 (Mem. of P. & A. in Supp. of Defs’ Mot. to Dismiss at 4-5; Ambriz Plaintiff contends that California (Id. ¶ 4.) In support of (Johnson Decl. ¶¶ 4, 7; Defendants respond that the area in which 4 1 Decl. Ex. B.) At oral argument, the parties also disagreed as to 2 whether the bathroom in question is a unisex or women-only 3 facility. 4 II. Legal Standard 5 Rule 12(h)(3) of the Federal Rules of Civil Procedure 6 provides that “[i]f the court determines at any time that it 7 lacks subject-matter jurisdiction, the court must dismiss the 8 action.” 9 Rule 12(h)(3) motion and a Rule 12(b)(1) motion is simply that Fed. R. Civ. P. 12(h)(3). “The distinction between a 10 the former may be asserted at any time and need not be responsive 11 to any pleading of the other party.” 12 M.V. Hakusan II, 954 F.2d 874, 880, n.3 (3d Cir. 1992); see also 13 Kairy v. SuperShuttle Int’l, Inc., 721 F. Supp. 2d 884, 885 (N.D. 14 Cal. 2009) (applying a single standard to a motion to dismiss 15 pursuant to Rules 12(b)(1) and 12(h)(3)). 16 Berkshire Fashions, Inc. v. Under Federal Rule of Civil Procedure 12(b)(1), a 17 complaint must be dismissed once it is determined that a court 18 lacks subject matter jurisdiction to adjudicate the claims. 19 R. Civ. P. 12(b)(1). 20 until the party asserting jurisdiction proves otherwise, and, 21 once subject matter jurisdiction has been challenged, the burden 22 of proof is placed on the party asserting that jurisdiction 23 exists. 24 376 (1994); 25 (holding that “the party seeking to invoke the court’s 26 jurisdiction bears the burden of establishing that jurisdiction 27 exists”). 28 Fed. The court presumes a lack of jurisdiction Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) Ordinarily, when a Rule 12(b)(1) motion is ruled upon, 5 1 “no presumptive truthfulness attaches to plaintiff’s allegations, 2 and the existence of disputed material facts will not preclude 3 the trial court from evaluating for itself the merits of 4 jurisdictional claims.” 5 1074, 1077 (9th Cir. 1983) (quoting Thornhill Publ’g Co. v. Gen. 6 Tel. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). 7 free to “review any evidence, such as affidavits and testimony, 8 to resolve factual disputes concerning the existence of 9 jurisdiction.” 10 11 Augustine v. United States, 704 F.2d The court is McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “[W]here a statute provides the basis for both the 12 subject matter jurisdiction of the federal court and the 13 plaintiff’s substantive claim for relief,” however, the “question 14 of jurisdiction and the merits of an action are intertwined.” 15 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039–40 (9th Cir. 16 2004) (quoting Timberland Lumber Co. v. Bank of Am., 549 F.2d 17 597, 602 (9th Cir. 1976)). 18 “assumes the truth of the allegations in a complaint . . . unless 19 controverted by undisputed facts in the record.” 20 Advancement of Minorities with Disabilities v. Brick Oven Rest., 21 406 F. Supp. 2d 1120, 1125 (S.D. Cal. 2005) [hereinafter “Brick 22 Oven”] (citing Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th 23 Cir. 1987)). 24 court “must apply the summary judgment standard in deciding the 25 motion to dismiss,” 26 16822, 1993 WL 173724, at *1 (9th Cir. May 24, 1993), and may not 27 resolve any genuinely disputed material facts. 28 F.3d at 1309 (explaining that because jurisdictional and In such circumstances, the court Org. for When jurisdiction is intertwined with merits, a Miller v. Lifestyle Creations, Inc., No. 90- 6 Safe Air, 373 1 substantive issues were intertwined, the district court should 2 have treated the motion to dismiss for lack of jurisdiction as a 3 motion for summary judgment). 4 Plaintiff’s substantive claims and this court’s 5 jurisdiction are both premised upon the ADA, and so jurisdiction 6 and substance are intertwined. 7 at 1126. 8 standard to defendants’ motion to dismiss for lack of 9 jurisdiction. 10 III. Analysis 11 See Brick Oven, 406 F. Supp. 2d The court will therefore apply the summary judgment Under the ADA, plaintiffs may only seek injunctive 12 relief and attorney’s fees. See 42 U.S.C. § 12188(a)(1); Newman 13 v. Piggie Park Enters., Inc., 390 U.S. 400, 401-02 (1968). 14 a defendant has remedied all ADA violations complained of by a 15 plaintiff, the plaintiff’s claims become moot and he or she loses 16 standing, meaning the court no longer has subject matter 17 jurisdiction over the ADA claims. 18 Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) (citing cases).1 Once Grove v. De La Cruz, 407 F. “A 19 20 21 22 23 24 25 26 27 28 1 Relying on Chapman, plaintiff also claims that “he has standing to seek injunctive relief as to all mobility related architectural barriers whether or not they have been identified in the complaint or whether known to the Plaintiff at this time.” (Pl.’s Opp. to Mot. to Dismiss ¶ 1.) According to plaintiff, under Chapman, he has standing because an unidentified expert, who it does not appear has yet visited the California Welding premises, “may identify additional architectural barriers which relate to the Plaintiff’s mobility disability.” (Id.) While it is true that the court in Chapman held that plaintiffs may have standing to bring ADA claims on the basis of barriers that they discover after their initial claim is filed, Chapman, 631 F.3d at 953, plaintiff cannot use hypothetical barriers that a hypothetical expert might find if he inspected the premises at some point in the future to show a concrete, particularized, and actual injury as required to establish standing, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Chapman did not relieve plaintiffs of the burden of “show[ing] at each stage of the proceedings” that they suffer 7 1 defendant claiming that its voluntary compliance moots a case 2 bears a formidable burden.” 3 Laidlaw Envtl. Services, 528 U.S. 167, 170 (2000). 4 Friends of the Earth, Inc. v. Defendants rely upon their accessibility specialist’s 5 report to show that their facility is now compliant with all 6 applicable disability laws. 7 their facility is now ADA compliant, plaintiff can no longer 8 obtain injunctive relief and has therefore lost his standing to 9 bring his ADA claims. They further contend that because However, the accessibility specialist’s 10 finding is based in part on defendants’ claim that they do not 11 provide public parking or public-use restrooms and therefore do 12 not need to make any changes to those aspects of their facility, 13 a claim which plaintiff disputes. 14 Plaintiff presents evidence that during his April 3, 15 2011, his companion was allowed to use the unisex restroom the 16 defendants claim is not available for public use and is a women- 17 only restroom. 18 creates access barriers related to his disability that prevent 19 him from making full and equal use of the premises. 20 divergent allegations create a genuine dispute as to a material 21 fact. 22 outside the entrance to California Welding is a loading dock Further, he claims that the restroom facility The parties’ Similarly, although defendants claim that the paved area 23 24 25 26 27 28 from an injury-in-fact sufficient to support standing or of satisfying applicable pleading standards. Chapman, 631 F.3d at 953-54 (plaintiff had no standing where he “never allege[d] what [the] barriers were and how his disability was affected by them so as to deny him the ‘full and equal’ access that would satisfy the injury-in-fact requirement”); see also Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978) (“An opposing party’s mere hope that further evidence may develop prior to trial is an insufficient basis upon which to justify denial of a motion for summary judgment.”). 8 1 where customer parking is not and cannot be permitted, plaintiff 2 alleges that he was allowed to park in that area during his April 3 3, 2011, visit. 4 The parties’ disagreements are not limited to questions 5 surrounding the parking and restroom facilities. In addition to 6 the dispute over whether the entry doors have door handles that 7 are “easy to grasp with one hand,” (Simms Decl. ¶ 6), plaintiff 8 disputes defendants’ claim that the lowered service counter they 9 now provide offers plaintiff “full and equal access,” (Simms 10 Decl. ¶ 7). 11 credit card reader at the new counter. 12 issues of material fact in this action where the jurisdictional 13 and substantive issues are intertwined, the court cannot dismiss 14 this action for lack of subject matter jurisdiction. 15 Specifically, plaintiff complains of the lack of a Because of these disputed IT IS THEREFORE ORDERED that defendants’ motion to 16 dismiss be, and the same hereby is, DENIED. 17 DATED: October 27, 2011 18 19 20 21 22 23 24 25 26 27 28 9
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