Johnson v. Reimal Family Limited Partnership et al, No. 3:2020cv01192 - Document 38 (N.D. Cal. 2021)

Court Description: ORDER GRANTING MOTION TO DISMISS ADA CLAIM AS MOOT AND GRANTING PARTIAL MOTION FOR SUMMARY JUDGMENT REGARDING UNRUH ACT STATUTORY DAMAGES by Judge William H. Orrick granting 28 Motion to Dismiss.(jmdS, COURT STAFF) (Filed on 2/8/2021)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Plaintiff, 8 9 10 v. REIMAL FAMILY LIMITED PARTNERSHIP, et al., 11 United States District Court Northern District of California Case No. 20-cv-01192-WHO Defendants. ORDER GRANTING MOTION TO DISMISS ADA CLAIM AS MOOT AND GRANTING PARTIAL MOTION FOR SUMMARY JUDGMENT REGARDING UNRUH ACT STATUTORY DAMAGES Re: Dkt. No. 28 12 13 14 INTRODUCTION Defendants Reimal Family Limited Partnership, Reimal Family Limited Partnership, and 15 M. William Reimal (“defendants”) move to dismiss plaintiff Scott Johnson’s ADA claim under 16 Rule 12(b)(1) as moot because they have fixed the issues Johnson identified. They also move for 17 partial summary judgment to limit statutory damages on his Unruh Act claim to $4000 because it 18 would be unreasonable to allow a veteran ADA plaintiff like Johnson to stack damages when he 19 did not tell the property owners, nor the chiropractic office he was allegedly trying to access – 20 which is open by appointment only 2-3 days a week – of the accessibility issues he encountered 21 after the first of his four visits. Johnson opposed the motion to dismiss on the bases that he has not 22 yet inspected the improvements to the property and that defendants have failed to submit adequate 23 admissible evidence to support a finding of mootness. He did not oppose defendants’ summary 24 judgment motion. I agree with defendants: their motion to dismiss the ADA claim as moot is 25 GRANTED and their motion for partial summary judgment on the issue of statutory damages is 26 GRANTED. 27 BACKGROUND 28 Plaintiff Scott Johnson is a California resident with physical disabilities. Dkt. No. 17 1 (“FAC”) ¶ 1. He cannot walk and has significant manual dexterity impairments. Id. He uses a 2 wheelchair for mobility and has a specially equipped van. Id. Defendant Reimal Family Limited 3 Partnership owned the real property located at 8010 Wayland Ln, Gilroy, California (the 4 “Property”) between May 2019 through October 2019 and Reimal Family Limited Partnership 5 currently owns the Property. Id. ¶¶ 2-3. Defendant M. William Reimal was a general partner of 6 Reimal Family Limited Partnership between May 2019 through October 2019 and is currently a 7 general partner of Reimal Family Limited Partnership. Id. ¶¶ 4-5. 8 United States District Court Northern District of California 9 Johnson went to the Property in May 2019, June 2019, and twice in October 2019 with the intention to avail himself of the goods and services at Gilroy Family Chiropractic, located at the 10 Property in Suite 1B. Id. ¶ 10. On the dates Johnson visited, the Property did not have wheelchair 11 accessible parking and wheelchair accessible paths of travel leading to Gilroy Family Chiropractic 12 in conformance with ADA standards. Id. ¶¶ 12-26. In his First Amended Complaint (“FAC”), 13 based on these alleged barriers to access the Property, Johnson brings claims under the ADA and 14 California Unruh Civil Rights Act, which provides that a violation of the ADA is a violation of the 15 Unruh Act. FAC ¶¶ 30-46. 16 Johnson’s FAC was filed in May 2020. See FAC. Prior to filing his initial complaint 17 Johnson did not notify defendants to inform them of the ADA violations at the Property or of his 18 attempts to access the Property. Dkt. No. 28-4 (“Reimal Decl.”) ¶ 2. Nor did Johnson ever 19 contact Gilroy Family Chiropractic, which is only open 2-3 days a week and by appointment only. 20 Id. ¶ 19. 21 In May 2020, Reimal hired an architect and a Certified Access Specialist (“CASp”), Kelly 22 Bray, to inspect the property and create plans and specifications to remove the barriers identified 23 in Johnson’s FAC. Id. ¶ 5. On May 6, 2020, Reimal sent a sworn declaration to Johnson to notify 24 him that defendants were taking steps to remove the barriers at the property. Id. ¶ 7. By June 25 2020, defendants were able to complete the improvements to the property. Id. ¶ 11. 26 On July 21, 2020, Reimal sent a sworn declaration to Johnson notifying him of the changes 27 made to the Property and informing him that the barriers alleged in the FAC had been resolved. 28 Id. ¶ 13; see also Dkt. No. 28-2, Ex. B (“July 21, 2020 Reimal Decl.”). Reimal attached to this 2 1 declaration the inspection and re-inspection reports prepared by CASp Kelly Bray, see July 21, 2 2020 Reimal Decl., Exs. A-B, and invited Johnson and his counsel to come to the Property for an 3 inspection to confirm that all barriers had been removed. Id. ¶ 13. Reimal also informed Johnson 4 that defendants had contracted with Bray to return once a year for a three-year period to inspect 5 the Property and to confirm compliance with the ADA. Id. In November 2020, defendants’ 6 counsel contacted Johnson’s counsel to again invite Johnson to inspect the Property. Dkt. No. 28 7 (“Corfee Decl.”) ¶ 3; Dkt. No. 28-2, Ex. C. Johnson did not inspect the property. On November 23, 2020, defendants filed an Amended Answer to the FAC. See Dkt. No. 8 United States District Court Northern District of California 9 27 (“AA”). Defendants admit Johnson’s allegations regarding the physical barriers he 10 experienced at the Property, but deny that any barriers remain and note, in response to Johnson’s 11 allegation that he visited the Property four times, that the court must determine whether multiple 12 visits were reasonable given Johnson’s duty to mitigate damages. See e.g., id. ¶ 10-20. On 13 December 9, 2020, defendants filed the present motion. See Dkt. No. 28-6 (“Mot.”). LEGAL STANDARD 14 15 16 I. MOOTNESS A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure is a 17 challenge to the court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts 18 are courts of limited jurisdiction,’ and it is “presumed that a cause of action lies outside this 19 limited jurisdiction.” Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The 20 party invoking the jurisdiction of the federal court bears the burden of establishing that the court 21 has the authority to grant the relief requested. Id. 22 A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d 23 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the 24 allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 25 The challenger asserts that the allegations in the complaint are insufficient “on their face” to 26 invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 27 2004). To resolve a facial challenge, the court assumes that the allegations in the complaint are 28 true and draws all reasonable inferences in favor of the party opposing dismissal. In contrast, with 3 United States District Court Northern District of California 1 a factual attack, a court may “look beyond the complaint to matters of public record without 2 having to convert the motion into one for summary judgment” and “need not presume the 3 truthfulness of the plaintiffs’ allegations.” White, 227 F.3d at 1242. “Once the moving party has 4 converted the motion to dismiss into a factual motion by presenting affidavits or other evidence 5 properly brought before the court, the party opposing the motion must furnish affidavits or other 6 evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. 7 Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). 8 “Jurisdictional finding of genuinely disputed facts is inappropriate when ‘the jurisdictional 9 issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the 10 resolution of factual issues going to the merits’ of an action.” Safe Air for Everyone, 373 F.3d at 11 1039 (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 140 (9th Cir. 1983)). 12 II. 13 SUMMARY JUDGMENT Summary judgment on a claim or defense is appropriate “if the movant shows that there is 14 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 15 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 16 the absence of a genuine issue of material fact with respect to an essential element of the non- 17 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 18 persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has 19 made this showing, the burden then shifts to the party opposing summary judgment to identify 20 “specific facts showing there is a genuine issue for trial.” Id. 324. 21 The party opposing summary judgment must then present affirmative evidence from which 22 a jury could return a verdict in that party’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 23 (1986). On summary judgment, the Court draws all reasonable factual inferences in favor of the 24 non-movant. Id. at 255. “Credibility determinations, the weighing of the evidence, and the 25 drawing of legitimate inferences from the facts are jury functions, not those of a 26 judge.” Id. (citation omitted). “The mere existence of a scintilla of evidence in support of the 27 plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably 28 find for the plaintiff.” Id. at 242. 4 DISCUSSION 1 2 MOOTNESS 3 Defendants move to dismiss plaintiff’s claims under 12(b)(1), arguing that all the 4 complained of barriers have been remedied. See Mot. at 10. Defendants rely on the declarations 5 of attorney Catherine Corfee, defendant William Reimal, and expert Kelly Bray, to establish that 6 the Property is now ADA compliant. See Corfee Decl., Reimal Decl., Dkt. No. 28-5 (“Bray 7 Decl.”). 8 9 United States District Court Northern District of California I. A district court is “ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial,” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983), 10 including on a Rule 12(b)(1) motion to dismiss. However, the Ninth Circuit has cautioned that it 11 is inappropriate to resolve factual disputes on a motion to dismiss where “the jurisdictional issue 12 and substantive issues are so intertwined that the question of jurisdiction is dependent on the 13 resolution of factual issues going to the merits of an action.” Safe Air for Everyone, 373 F.3d at 14 1039 (internal quotation marks and citation omitted). 15 In ADA cases, the continuing existence of physical barriers is both a jurisdictional and 16 substantive issue and accordingly, courts generally decline to dismiss ADA claims on mootness 17 grounds unless there is no factual dispute that the alleged barriers have been remedied. See, 18 e.g. Ngoc Lam Che v. San Jose/Evergreen Cmty. Coll. Dist. Found., Case No. 17-cv-00381-BLF, 19 2017 WL 2954647, at *3 (N.D. Cal. July 11, 2017) (denying Rule 12(b)(1) motion where the 20 parties submitted competing expert declarations); Alcazar v. Bubba Gump Shrimp Co. 21 Restaurants, Inc., Case No. 20-cv-02771-DMR, 2020 WL 4601364, at *4 (N.D. Cal. Aug. 11, 22 2020) (denying motion to dismiss ADA claims for mootness where parties submitted competing 23 declarations regarding remedial measures); Powers v. Mad Vapatory LLC, Case No. 19-cv-05642- 24 VKD, 2020 WL 3402245, at *6 (N.D. Cal. June 19, 2020) (“the Court will not dismiss the action 25 at this juncture because the jurisdictional analysis is coextensive with the merits of Mr. Powers’s 26 ADA claim”); Johnson v. Case Ventures, LLC, Case No. 5:19-cv-02876-EJD, 2020 WL 4747908 27 (N.D. Cal. Aug. 17, 2020) (applying summary judgment standard to evidence re mootness of ADA 28 claims); see also Langer v. Nenow, Case No. 18-cv-01670-GPC-PGS, 2020 WL 708144, at *4 5 1 (S.D. Cal. Feb. 12, 2020) (finding that a plaintiff's ADA claim was moot where defendant 2 submitted that alleged violations had been cured and plaintiff did not submit competing evidence). 3 4 United States District Court Northern District of California 5 Here, the facts are not meaningfully in dispute. Defendants have submitted evidence that all the ADA barriers have been removed and Johnson has failed to submit competing evidence. Johnson argues that the motion should be denied because he has not yet had an opportunity 6 to inspect the Property. Dkt. No. 29 (“Opp.”) at 4. This argument is not well taken. Defendants 7 invited Johnson to inspect the Property on multiple occasions and Johnson refused to do so. In 8 July 2020, defendant Reimal sent Johnson a formal declaration explaining that the barriers at the 9 Property had been cured and stating, “Plaintiff is invited and strongly encouraged to return and/or 10 his attorneys and/or CASp to verify if he does not believe the attached CASp report.”). See July 11 21, 2020 Reimal Decl. ¶ 10. In November 2020, defense counsel emailed Johnson’s counsel to 12 again “invite[] Plaintiff, your firm and/or a CASp to go [to the Property] anytime to re-inspect it.” 13 Corfee Decl., Ex. C. Johnson and his counsel had nearly six months to inspect the Property at the 14 explicit invitation of defendants prior to defendants filing this motion and declined to do so. 15 In his opposition, Johnson argues that defendants’ motion to dismiss is premature and that 16 it would have been inappropriate for Johnson to participate in an inspection of the Property, 17 because of the existing discovery stay imposed by General Order No. 56. See Opp. at 1. While 18 the Northern District’s General Order No. 56 does impose a stay of discovery in ADA cases, it 19 specifically does not stay “motions under Rule 12(b).” General Order 56 ¶ 3. Courts in this 20 district have repeatedly rejected the argument that General Order 56 poses a bar to motions to 21 dismiss. See Moralez v. Whole Foods Market, Inc., 897 F. Supp. 2d 987, 993 n.2 (N.D. Cal. 2012) 22 (rejecting argument that General Order 56 “bars motions to dismiss until after certain discovery is 23 complete”); Johnson v. 1082 El Camino Real, L.P., Case No. 17-cv-01391-EJD, 2018 WL 24 1091267, at *2 (N.D. Cal. Feb. 28, 2018) (“This Court also finds that General Order 56 does not 25 preclude Defendants from bringing the instant motion to dismiss for lack of subject matter 26 jurisdiction”); Johnson v. Torres Enterprises LP, Case No. 18-cv-02929-VKD, 2019 WL 285198, 27 *2 (N.D. Cal. Jan. 22, 2019) (“General Order 56 does not bar defendants from bringing a motion 28 to dismiss for lack of subject matter jurisdiction, but even if the Order did bar such motions, the 6 1 Court exercises its discretion to permit defendants’ challenge here.”); Johnson v. Winchester 2 Campbell Properties, LLC, Case No. 18-cv-04153-VKD, 2018 WL 6619940, at *2 (N.D. Cal. 3 Dec. 18, 2018) (“[J]udges in this District have concluded that General Order 56 does not bar the 4 filing of a motion challenging the pleadings”). Like these courts, I agree that General Order 56 5 does not bar a defendant from moving to dismiss on mootness grounds. United States District Court Northern District of California 6 Further, General Order 56 does not bar parties from engaging in voluntary site inspections 7 nor does it excuse Johnson’s failure to inspect the Property improvements here. The purpose of 8 General Order 56 is to encourage the parties to cooperate to resolve ADA claims quickly and 9 efficiently with minimal cost. See e.g. General Order 56 ¶ 5 (encouraging early settlement 10 discussions); ¶ 7 (requiring the parties to conduct a joint site inspection within 60 days of service 11 of the complaint). It should not be read as an impediment to engage in voluntary site visits or 12 inspections aimed at resolving claims. And even if the discovery stay could be read to prohibit 13 such voluntary inspections, the Order specifically permits the parties to “lift the stay to conduct 14 specific discovery” by submitting a request by stipulation or administrative motion to the court. 15 Id. ¶ 3. General Order No. 56 poses no barrier to good faith cooperation between the parties. 16 There is no reason Johnson and his counsel could not have reinspected the Property as defendants 17 repeatedly requested. Johnson’s failure to submit competing evidence regarding the current state 18 of the Property is the result of his own strategic choices and does not justify denying defendants’ 19 motion to dismiss. 20 Johnson’s other primary argument against the motion to dismiss is that defendants have not 21 submitted adequate admissible evidence to demonstrate that the ADA violations have been 22 resolved. Opp. at 4-5. Specifically, Johnson argues that Reimal’s declaration contains inadequate 23 layperson opinion testimony and hearsay. Id. And he argues that the declaration of CASp Bray is 24 inadequate because he declares that he inspected the property and determined there were no 25 remaining barriers, but his declaration does not contain the basis for his opinion, such as what 26 measurements he took at the Property. Id. at 5. 27 28 This argument is also not convincing. While Bray’s declaration is relatively sparse, he declares that he prepared a report regarding his examination of the property on July 16, 2020. 7 1 Bray Decl., ¶ 5. Defendants have separately submitted this report attached to Reimal’s July 21, 2 2020 declaration, which is attached as an exhibit to the declaration of defense counsel Corfee. See 3 July 21, 2020 Reimal Decl., Ex. B. The report contains a detailed account of Bray’s inspection of 4 the property, including measurements taken and photos. Id. While it may have been preferable 5 for defendants to attach the report directly to the Bray declaration, Johnson does not dispute that 6 the report – which was sent to him and his counsel back in July – is authentic, and its authenticity 7 is attested to by Reimal and Corfee in their respective declarations. The Bray declaration, together 8 with his CASp report, provide adequate support for his expert conclusion that the ADA barriers at 9 the Property have been resolved. Accordingly, I conclude that defendants have submitted 10 adequate evidence to demonstrate that there are no remaining barriers at the Property. Because there is no meaningful dispute that the barriers at the Property have been resolved, United States District Court Northern District of California 11 12 defendants’ motion to dismiss Johnson’s ADA claim for mootness is GRANTED. 13 II. 14 SUMMARY JUDGMENT Defendants move for summary judgment on the issue of whether Johnson acted reasonably 15 in returning to the Property four times, which is relevant to assessing defendants’ liability for 16 statutory damages on Johnson’s Unruh Act claim. Mot. at 10. Defendants have otherwise 17 admitted liability on the claim. Defendants argue that Johnson did not act reasonably by returning 18 to the Property multiple times without notifying either the defendants or the chiropractic office 19 that he was trying to access the Property and was experiencing physical barriers. Id. at 15. In his 20 opposition brief Johnson did not address or oppose this part of defendants’ motion. At the January 21 20, 2021 hearing on the motion, Johnson’s counsel argued that the motion is premature as the 22 parties have not conducted discovery. For the reasons discussed below, I conclude that Johnson 23 had a general duty to mitigate damages, but failed to do so in this instance. 24 California Civil Code § 52(a) establishes statutory damages of no less than $4,000 for each 25 violation of the Unruh Act, which may include multiple instances of visiting the same property or 26 from being deterred from visiting. See e.g., Yates v. Vishal, No. 11-cv-643-JCS, 2013 WL 27 6073516, at *3 (N.D. Cal. Nov. 18, 2013) (“In the hotel and restaurant context, a plaintiff can 28 recover separate statutory damages for each time a plaintiff visits (or is deterred from visiting) a 8 United States District Court Northern District of California 1 non-compliant establishment . . . .”). However, California common law establishes a general duty 2 to mitigate damages. See Green v. Smith, 261 C.A.2d 392, 396 (1968) (“A plaintiff cannot be 3 compensated for damages which he could have avoided by reasonable effort or expenditures.”). 4 The Unruh Act specifically does not alter this duty. Cal. Civ. Code § 55.56(h) (“This section does 5 not alter . . . any legal obligation of a party to mitigate damages.”). The Unruh Act instructs that, 6 for claims based on being “deterred from accessing a place of public accommodation on a 7 particular occasion,” Cal. Civ. Code § 55.56(d), and where the plaintiff claims multiple instances 8 of deterrence courts “shall consider the reasonableness of the plaintiff’s conduct in light of the 9 plaintiff’s obligation, if any, to mitigate damages.” Cal. Civ. Code § 55.56(i). The Act does not 10 specify whether courts must consider reasonableness when assessing liability for claims based on 11 actual visits to the property. 12 District court cases assessing whether a duty to mitigate applies to Unruh Act claims based 13 on actual visits to the property have reached different conclusions. Two district court cases 14 endorse the idea that the duty to mitigate damages applies to Unruh Act claims predicated on 15 actual encounters with physical barriers and that failure to notify the property owner of physical 16 barriers may be unreasonable. See Johnson v. Wayside Property, Inc., 41 F. Supp. 3d 973, 981-82 17 (E.D. Cal. 2014) (concluding there was fact issue as to whether plaintiff acted reasonably in 18 returning to property multiple times without notifying property owner and denying summary 19 judgment on issue of Unruh Act damages); Ramirez v. Sam’s for Play Café, Civ. No. 11-1370 20 MEJ, 2013 WL 4428858, at *8-9 (N.D. Cal. Aug. 15, 2013) (denying summary judgment on issue 21 of statutory damages and expressing skepticism as to reasonableness of defendant returning 22 multiple times to the property without notifying property owner). However, both of these cases 23 denied summary judgment on the issue of damages, concluding that whether the plaintiffs acted 24 reasonably was a question of fact. See id. 25 Additional courts have indicated that there may be a duty to mitigate, but have declined to 26 find a plaintiff’s repeat visits unreasonable where the defendants were aware of the physical 27 barriers or where there was no clear evidence that the plaintiff was engaged in “stacking” behavior 28 to inflate their potential statutory damages. See Johnson v. Sammy’s Restaurant, Inc., No. 2:159 1 cv-00147-TLN-KJN, 2019 WL 1517572, at *7 (E.D. Cal. Apr. 8, 2019) (granting summary 2 judgment on statutory damages where “Defendants were clearly on notice that Plaintiff had 3 encountered access barriers in 2011 that he expected would be removed”); Yates v. Bacco, No. C- 4 11-01573 DMR, 2014 WL 1089101, at *15 (N.D. Cal. Mar. 17, 2014) (assessing whether 5 plaintiff’s conduct was reasonable in light of duty to mitigate damages and concluding that 6 plaintiff was entitled to multiple statutory damage awards due to lack of evidence that plaintiff 7 “engaged in inappropriate behavior to ‘stack’ his damages”); Dytch v. Lazy Dog Restaurants, 8 LLC, Case No. 16-cv-03358-EDL, 2018 WL 9412715, at *13 (N.D. Cal. Apr. 18, 2018) 9 (acknowledging that statutes may impose duty to mitigate in extreme cases, but awarding full 10 United States District Court Northern District of California 11 statutory damages based on multiple visits). Still yet, some cases have rejected the idea that mitigation of damages applies to Unruh 12 Act claims. See Johnson v. Guedoir, 218 F. Supp. 3d 1096, 1102-03 (E.D. Cal. 2016) (“This 13 section [55.56] does not create a duty to mitigate, but merely states that where one exists the 14 section does not alter said duty.”); Schutza v. City of San Diego, Case No.: 3:13-cv-2992-CAB- 15 (KSC), 2017 WL 3149509, at *7 (S.D. Cal. July 24, 2017) (“there is no requirement that Plaintiff 16 mitigate damages when he is merely seeking statutory damages”). 17 I am not persuaded by the cases concluding that there is no duty to mitigate statutory 18 damages for Unruh Act claims. While California courts have not addressed this specific issue, 19 defendants have convincingly shown that California courts generally favor mitigation of damages 20 and that California common law establishes a general duty to mitigate. See e.g. Green, 261 C.A. 21 2d at 396 (“A plaintiff cannot be compensated for damages which he could have avoided by 22 reasonably effort or expenditures.”); State Dept. of Health Servs. v. Superior Court, 31 Cal. 4th 23 1026, 1049 (2003) (explaining that the generally duty to mitigate “applies broadly to many 24 different sorts of legal claims, including claims based on strict liability”). 25 The question then is whether on the facts presented, plaintiff acted reasonably in light of 26 the general duty to mitigate damages. Defendants have submitted declaration testimony 27 explaining that Johnson did not notify either defendants, or the chiropractic office he was 28 attempting to access, that he wanted to access the Property or was experiencing physical barriers. 10 United States District Court Northern District of California 1 See Reimal Decl. ¶ 2, 6, 8-9, 18-19. Defendants have further explained that the chiropractic office 2 Johnson sought to access is by appointment only and that Johnson never contacted the business at 3 any point to attempt to make an appointment. Id. Defendants also note that Johnson lives more 4 than 150 miles away from the Property, and would have had to travel over 300 miles, round trip, 5 to visit the office. See Corfee Decl., Ex. E; Dkt. No. 28-3 (“RJN”).1 Despite this, Johnson alleges 6 that he made four separate visits to the Property in 2019. Plaintiff has not submitted any evidence 7 in opposition or in support of a finding that he acted reasonably to mitigate damages. 8 On these facts, I conclude that Johnson did not act reasonably to mitigate damages as a 9 matter of law. Courts have acknowledged that repeat visits to a property may be unreasonable 10 where the plaintiff does not notify the property owner of his attempts to access the property and of 11 the physical barriers he is experiencing. See Johnson v. Wayside Property, 41 F. Supp. 3d at 981- 12 82; Ramirez, 2013 WL 4428858, at *8-9. Here, as in Johnson v. Wayside Property and Ramirez, 13 Johnson made multiple visits to the same property, but did not notify the defendants that he was 14 attempting to access the property. While the courts in Johnson v. Wayside and Ramirez ultimately 15 concluded that the question of reasonableness should be left up to the fact finder, here, additional 16 facts make clear that Johnson’s conduct was not reasonable as a matter of law. The businesses at issue in Johnson v. Wayside and Ramirez were typical retail businesses 17 18 open to the general public on a walk-in basis. See Johnson v. Wayside Property, 41 F. Supp. 3d at 19 974 (relevant business was lumber store); Ramirez, 2013 WL 4428858, at *3 (relevant business 20 was restaurant). In contrast, the relevant business here is an appointment-only chiropractic office 21 that is only open part time. A reasonable consumer might visit such a business once without an 22 appointment to learn about the business or see if it can accommodate walk ins, but would not 23 return four times without ever contacting the business owner or attempting to schedule an 24 appointment. It is especially implausible that a reasonable consumer would drive over 150 miles 25 one way to visit an appointment-only chiropractic office without first calling ahead, let alone that 26 27 28 Defendants’ request for judicial notice regarding the distance between Mr. Johnson’s residence and the Property is granted as this information can be “accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b). 11 1 1 2 he would do so on four separate occasions. Johnson has been the plaintiff in over 1,439 ADA cases in this District alone, according to 3 ECF records, and is a sophisticated party. The facts in this case strongly indicate that Johnson 4 made repeat visits to the Property not to obtain chiropractic services, but to “stack” damages on 5 his claim. Given the general duty to mitigate damages, I conclude that Johnson did not act 6 reasonably in visiting the Property on four separate occasions without notifying the Property 7 owner or the chiropractic business of his attempts to access the Property. Accordingly, 8 defendants’ motion for summary judgment is GRANTED. Johnson may only recover statutory 9 damages for one instance of visiting the Property. CONCLUSION 10 United States District Court Northern District of California 11 For the reasons detailed above, defendants’ motion to dismiss the ADA claim as moot is 12 GRANTED. Defendants’ motion for partial summary judgment on the issue of statutory damage 13 son the Unruh Act claim is GRANTED. 14 15 IT IS SO ORDERED. Dated: February 8, 2021 16 17 William H. Orrick United States District Judge 18 19 20 21 22 23 24 25 26 27 28 12