Szwanek et al v. Jack in the Box, Inc. et al, No. 3:2020cv02953 - Document 45 (N.D. Cal. 2020)
Court Description: ORDER GRANTING 35 DEFENDANTS' MOTION TO DISMISS Signed by Judge William Alsup. (whalc4, COURT STAFF) (Filed on 9/30/2020)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 United States District Court Northern District of California 11 JUDY SZWANEK, and JAMES LOPEZ II, individually and on behalf of all others similarly situated, Plaintiffs, 12 13 14 15 16 No. C 20-02953 WHA v. JACK IN THE BOX, INC., DIFFERENT RULES LLC, ARGO HOSPITALITY SERVICES, INC., and THREE FOODS, INC., ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Defendants. 17 18 INTRODUCTION 19 20 This putative class action alleges that defendants’ restaurants’ late-night practice of providing service via “drive-thru” only, violates the Americans with Disabilities Act and the 21 Unruh Civil Rights Act, because it discriminates against visually impaired patrons, like 22 plaintiffs, who cannot drive because of their disability. The complaint seeks monetary, 23 declaratory, and injunctive relief. Defendants move to dismiss or, in the alternative, for 24 judgment on the pleadings. To the extent stated herein, defendants’ motion to dismiss is 25 GRANTED. 26 27 28 STATEMENT 1 United States District Court Northern District of California 2 The following allegation are from the operative complaint (Dkt. No. 17). Defendant Jack 3 in the Box, Inc. “owns, operates and/or leases Jack in the Box restaurants at thousands of 4 locations throughout the United States.” Defendant Different Rules LLC became the successor 5 company to Jack in the Box, Inc. in July 2019. Both companies have the right to enforce 6 franchise agreements. Defendants Argo Hospitality Services, Inc., and Three Powers Foods, 7 Inc. (hereinafter “franchisee defendants”) are California-based franchisees of Jack in the Box 8 restaurants, located in El Sobrante and Montebello, respectively (id. ¶¶ 12–15). 9 Jack in the Box restaurants offer both lobby service and “drive-thru” service. During late 10 night and early morning hours, however, many Jack in the Box restaurants provide only service 11 through the drive-thru. That is, patrons cannot physically enter Jack in the Box restaurants and 12 can order food only by using the drive-thru. The drive-thru, in turn, is only accessible to motor 13 vehicles. Jack in the Box restaurants do not allow pedestrians to use the drive-thru (id. ¶¶ 2, 14 22). The complaint does not allege the exact operational hours Jack in the Box restaurants 15 begin their drive-thru-only service period. 16 Plaintiffs Judy Szwanek and James Lopez II are California residents who have visual 17 impairments that render them unable to operate a motor vehicle (id. ¶¶ 10–11, 46, 59). The 18 Jack in the Box restaurant in El Sobrante is a six-minute walk from Szwanek’s home, and the 19 one in Montebello is an eleven-minute walk from Lopez’s home. Plaintiffs regularly patronize 20 the Jack in the Box restaurants near their respective homes. In 2018, Szwanek walked to the 21 Jack in the Box restaurant near her home during a late-night drive-thru-only service period. 22 Because “Szwanek is blind and unable to lawfully operate a motor vehicle, she was unable to 23 independently access” the Jack in the Box restaurant in El Sobrante (id. ¶ 46). 24 Similarly, in 2019, when Lopez walked to the Jack in the Box restaurant in Montebello 25 during a late-night drive-thru-only service period, he could not independently access Jack in 26 the Box’s services because he was unable to drive a motor vehicle as a result of his disability 27 (id. ¶ 59). 28 2 1 2 defendants’ services during late-night hours because “the blind are unable to drive or walk up 3 to the drive-thru window, and because Jack in the Box interiors are closed during late-night 4 operating times” (id. ¶ 26). 5 Plaintiffs further allege that “modest accommodations,” such as “installing a walk-up 6 window; allowing blind customers to access the lobby; and/or establishing a phone number or 7 other ordering system by which the blind can order food and have it delivered to them through 8 the front door” would allow the blind access during late-night hours (id. ¶ 27). 9 United States District Court Northern District of California Plaintiffs allege that the blind are barred from independently using or enjoying Accordingly, plaintiffs brought this putative class action against defendants for alleged 10 violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181, et seq., and 11 the Unruh Civil Rights Act, Cal. Civ. Code, §§ 51 et seq. Franchisor defendants move to 12 dismiss the complaint with prejudice for failure to state a claim or, in the alternative, for 13 judgment on the pleadings. Franchisee defendants filed motions to join franchisor defendants’ 14 motion. This order follows full briefing and oral argument. 15 1. 16 A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” LEGAL STANDARD. 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether a complaint states a 18 plausible claim for relief . . . requires the reviewing court to draw on its judicial experience and 19 common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A court ruling on a motion to 20 dismiss must accept factual allegations in the complaint as true and construe the pleadings in the 21 light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 22 F.3d 1025, 1030–31 (9th Cir. 2008). Conclusory allegations or “formulaic recitation of the 23 elements” of a claim, however, are not entitled to the presumption of truth. Iqbal, 556 U.S. at 681. 24 ANALYSIS 25 The complaint alleges violations of Title III of the Americans with Disabilities Act, 42 26 U.S.C. §§ 12181, et seq. Plaintiffs’ Unruh Act claims as well as their claims for declaratory 27 relief are also predicated on their ADA claims. 28 3 United States District Court Northern District of California 1 Title III provides: “[n]o individual shall be discriminated against on the basis of disability 2 in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 3 accommodations of any place of public accommodation by any person who owns, leases (or 4 leases to), or operates a place of public accommodation.” Id. 12182(a). Accordingly, “[t]o 5 prevail on a Title III discrimination claim, the plaintiff must show that (1) she is disabled 6 within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 7 operates a place of public accommodation; and (3) the plaintiff was denied public 8 accommodations by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 9 F.3d 724, 730 (9th Cir. 2007) (citation omitted). 10 Defendants argue that plaintiffs’ ADA claims fail because (1) “the allegedly 11 discriminatory practice — not allowing pedestrians to use the drive-through — does not 12 discriminate against persons ‘on the basis of disability’”; and (2) because plaintiffs are not 13 disabled within the meaning of the ADA, as their claims are predicated not on “seeing,” but on 14 “driving,” which they assert is not a major life activity (Dkt. No. 35 at 4). This order agrees. 15 First, plaintiffs fail to show they were discriminated against on the basis of their 16 disability. In McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004), our court of appeals 17 held that the plaintiff had sufficiently alleged that he was discriminated against “by reason of” 18 his disability where a facially neutral policy burdened him in a manner “different from and 19 greater than it burdened non-disabled residents.” In so holding, McGary explained that our 20 court of appeals has “repeatedly recognized that facially neutral policies may violate the ADA 21 when such policies unduly burden disabled persons, even when such policies are consistently 22 enforced.” Id. at 1265. 23 Plaintiffs argue that defendants’ late-night policy of providing drive-thru-only service 24 burdens them “ ‘in a manner different from and greater’ than non-disabled pedestrians. Unlike 25 non-disabled pedestrians, [p]laintiffs are categorically unable to independently operate a motor 26 vehicles under any set of circumstances” (Opp. at 4). Defendants respond that the burden 27 placed on all pedestrians, disabled or not, is exactly the same; that is, neither group can gain 28 access to Jack in the Box’s services during the wee hours unless they either drive, ride as a 4 1 passenger in someone else’ car, or utilize a food delivery service. For instance, as defendants 2 argued during oral argument, a non-disabled fifteen-year-old pedestrian who cannot drive 3 because of her age bears the same burden as plaintiffs. 4 5 that bear the burden of defendants’ policy: night-owls who do not or cannot drive for any 6 numbers of reasons, who are within walking distance of a Jack in the Box and are willing to 7 venture into the darkness during the most dangerous parts of the day to buy a burger and take it 8 back home. Those outside walking distance are not burdened by the policy. 9 United States District Court Northern District of California This order agrees with defendants and notes that it is even a narrower group of people Comparison to Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996), is instructive in 10 further illustrating this point. There, the visually impaired plaintiffs used guide dogs. They 11 alleged that Hawaii’s imposition of a 120-day quarantine on carnivorous animals entering the 12 state discriminated against them on the basis of their disability in violation of the ADA. Our 13 court of appeals agreed, reasoning that the blind plaintiffs were burdened in a manner different 14 than and greater than others because given their “unique dependence” on guide dogs, the 15 quarantine requirement effectively denied them meaningful access to state services, while such 16 services “remain[ed] open and easily accessible by others.” Id. 1484. Here, by contract, the 17 burden visited upon all pedestrians, blind and nonblind, is not disproportionate but rather the 18 same. 19 Thus, defendants’ policy does not burden the blind in a manner different than or greater 20 than it affects non-disabled pedestrians. See, e.g., Davis v. Wendy’s Int’l, LLC, 2019 WL 21 6769689 (N.D. Ill. Dec. 12, 2019) (Judge Marvin E. Aspen) (observing that Wendy’s similar 22 late-night drive-thru-only policy “affects non-disabled and disabled pedestrians identically.”). 23 For this reason, this order agrees with defendants that their late-night policy of operating 24 via the drive-thru-only, “affects people based on, at most, their inability to drive for any 25 reason, not on the basis of any disability” (Dkt. No. 35 at 6–7). Accordingly, the complaint 26 does not plausibly establish that defendants excluded plaintiffs by reason of their disability, i.e. 27 for being visually impaired. 28 5 United States District Court Northern District of California 1 Secondly, plaintiffs’ claims fail for the additional reason that they are not disabled within 2 the meaning of the ADA. To be sure, the complaint sufficiently alleges that plaintiffs have 3 visual impairments. But, in determining whether an individual is disabled as defined under the 4 ADA, courts must examine three elements: (1) determine whether a plaintiff’s condition 5 constitutes a physical or mental impairment; (2) identify the life activity upon which the 6 plaintiff relies and determine whether or not it constitutes a major life activity; and (3) whether 7 the impairment substantially limited the identified major life activity. See Bragdon v. Abbot, 8 524 U.S. 624 (1998). 9 While the first element is unquestionably met, the complaint fails on the second element. 10 Specifically, as a matter of judicial common sense, plaintiffs’ claims rely on the life activity of 11 driving, not seeing. Indeed, plaintiffs’ own opposition brief illustrates this point: stating that 12 “[p]laintiffs allege that the impairment is substantial in that it prevents them from safely 13 operating motor vehicles” (Opp. at 6). So, too, do the allegations in the complaint (see Dkt. 14 No. 17 at ¶¶ 2–3, 10–11, 26, 46, 59). Importantly, however, driving is not a major life activity 15 enumerated under the ADA. See 42 U.S.C. § 12102(2)(A). And, while the ADA list of major 16 life activities is non-exhaustive, plaintiffs fail to show that driving in this context — to access a 17 drive-thru for the purpose of enjoying a late-night burger — is a major life activity under the 18 ADA. See, e.g., Morey v. McDonald’s Corp., 2020 WL 2542161 (N.D. Ill. May 19, 2020) 19 (Judge Joan H. Lefkow) (finding that driving did not constitute a major life activity based on 20 an analogous scenario); see also Mandujano v. Geithner, 2011 WL 2550621, at *5 (N.D. Cal. 21 June 27, 2011) (Magistrate Judge Laurel Beeler) (citations omitted) (citing to decisions that 22 “have held that driving by itself does not constitute a major life activity under the ADA.”). 23 Plaintiffs’ reliance on our court of appeals’ unpublished opinion in Livingston v. Fred 24 Meyer Stores, Inc., 388 F.App’x 738 (9th Cir. 2010), is misplaced. There, our court appeals 25 held that “seeing” was undoubtedly a major life activity, but explicitly held off considering the 26 plaintiff’s alternative argument that “her vision impairment substantially limit[ed] her major 27 life activit[y] of . . . driving[.]” Id. at 740 n.1. 28 6 1 2 notwithstanding their allegations that they are limited in the major life activity of seeing, their 3 claims are predicated on driving, which is not a major life activity. 4 United States District Court Northern District of California Accordingly, plaintiffs are not disabled within the meaning of the ADA because Lastly, it bears mentioning that the only other decisions that either party cites to that have 5 considered whether or not a restaurant’ late-night policy of offering services via the drive-thru 6 only discriminates against the blind, found against the plaintiffs. In Morey v. McDonald’s 7 Corp., 2020 WL 2542161 (N.D. Ill. May 19, 2020) (Judge Joan H. Lefkow), for instance, the 8 court reasoned that the visually impaired plaintiff was not disabled within the meaning of the 9 ADA because driving, the life activity at issue, did not constitute a major life activity. And, in 10 Davis v. Wendy’s Int’l, LLC, 2019 WL 6769689 (N.D. Ill. Dec. 12, 2019) (Judge Marvin E. 11 Aspen), the court held that defendant’s policy did not discriminate on the basis of the 12 plaintiff’s visual impairment, but on the basis of being a pedestrian/non-driver. Put differently, 13 the court found that the plaintiff’s visual impairment was not the “but for” cause of his inability 14 to gain access to the defendant’s drive-thru. Id. 5–6. 15 True, these decisions are non-binding and applied Seventh Circuit law. But, there, as 16 here, the courts were presented with an issue of first impression and grappled with the same 17 issue: whether or not a drive-thru-only policy discriminates against the blind in contravention 18 of the ADA. And, in the absence of direct authority on point, they ultimately construed the 19 language of the ADA and applied tests elucidated by the Supreme Court to find that the 20 plaintiffs’ ADA claims failed. As such, this order finds their reasoning persuasive. 21 In sum, plaintiffs have failed to state a claim under the ADA. CONCLUSION 22 23 For the foregoing reasons, plaintiffs have failed to state a claim under the ADA. 24 Similarly, plaintiffs’ claims under the Unruh Act and for declaratory relief also fail because 25 they are based on their ADA claims. Accordingly, this order GRANTS defendants’ motion to 26 dismiss. Leave to amend would be futile. No further amendments will be allowed. 27 28 IT IS SO ORDERED. 7 1 2 Dated: September 30, 2020. 3 4 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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