“Conclusory opinions that the ‘facility is free of non- 17 compliant issues,’ or that particular features, e.g., the accessible parking or point of sale, ‘comply 18 with all applicable access requirements,’” are “an insufficient basis on which to grant summary 19 judgment.”
How later courts described this case
- “Conclusory opinions that the ‘facility is free of non- 17 compliant issues,’ or that particular features, e.g., the accessible parking or point of sale, ‘comply 18 with all applicable access requirements,’” are “an insufficient basis on which to grant summary 19 judgment.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ORLANDO GARCIA, Case No. 21-cv-05081-SI
8 Plaintiff,
ORDER CONVERTING PLAITNIFFS’
9 v. MOTION TO DISMISS INTO MOTION
FOR SUMMARY JUDGMENT AND
10 JACK DUDUM, et al., SETTING ADDITIONAL DEADLINES
AND BRIEFING
11 Defendants.
Re: Dkt. No. 17, 34
12
13 Plaintiff Orlando Garcia sues (1) defendant Jack and Sylvia Dudum, in their individual and
14 representative capacity as trustee/owners of the real property at 2412 Webb Avenue, Alameda,
15 California (“the Property”) and (2) defendant Michael Lee, owner of the Sandwich Board located at
16 the Property. Dkt. No. 1 at ¶¶ 2-3. Plaintiff alleges various barriers to accessibility at the Property
17 under the Americans with Disabilities Act (“ADA”) and California state law.
18 Before the Court is defendants’ motion to dismiss pursuant to Federal Rule of Civil
19 Procedure 12(b)(3). Defendant argues (1) plaintiff should be declared a vexatious litigant, (2) the
20 ADA claims should be dismissed as moot, and (3) the Court should decline to exercise supplemental
21 jurisdiction over the California Unruh Act claim. Having reviewed the parties’ submissions and the
22 applicable law, the Court find the defendants’ motion to dismiss on mootness grounds must be
23 converted to a motion for summary judgment and hereby VACATES the October 29, 2021 hearing.
24
25 BACKGROUND
26 Plaintiff is a California resident who suffers from Cerebral Palsy, resulting in manual
27 dexterity issues, an inability to walk, and requiring use of a wheelchair for mobility. Dkt. No. 1 ¶ 1.
1 filed in the Central District of California. Dkt. No. 19 ¶ 1 (Corfee Decl. ISO MTD)
2 Defendants Jack and Sylvia Dudum own the Property at which defendant Michael Lee owns
3 and operates the business the Sandwich Board. Dkt. No. 1 ¶¶ 2-3. Plaintiff allegedly went to
4 Sandwich Board in May 2021 “to avail himself of its good or services …” Dkt. No. 1 ¶ 10. During
5 that visit, plaintiff personally encountered barriers to accessibility, specifically a lack of: (1)
6 wheelchair accessible counters and (2) wheelchair accessible dining surfaces. Dkt. No. 1 ¶¶ 12-21.
7 Plaintiff filed the instant action on June 30, 2021 alleging causes of action for violation of
8 (1) the Americans with Disability Act (ADA) and (2) California’s Unruh Civil Rights Act. Dkt. No.
9 1. On July 1, 2021, a scheduling order was issued in the matter stating the “[l]ast day for the parties
10 and counsel to hold a joint site inspection of premises” was 60 days after service of the complaint.
11 Dkt. No. 5. On July 2, 2021, the matter was reassigned from Magistrate Judge Beeler to the
12 undersigned judge. Dkt. No. 8 (Notice of Re-Assignment). While the clerk’s notice reassigning the
13 matter vacated hearing dates, it left the ADA specific deadlines within the July 1, 2021 scheduling
14 order intact. Id. Thus, the ADA deadlines should have been honored by the parties. Id. Plaintiff
15 filed the service of summons on July 27, 2021; the joint site inspection should have taken place on
16 or before September 25, 2021 (60 days after July 27). Dkt. No. 13.
17
18 DISCUSSION
19 I. Failure to Comply with Scheduling Order
20 The docket and plaintiff’s opposition to the motion to dismiss indicate the parties have not
21 conducted a joint site inspection. Dkt. No. 28 at 181 (Opposition to MTD). The parties are therefore
22 ORDERED to conduct a joint site inspection as directed in the July 1, 2021 scheduling order on or
23 before December 17, 2021. The parties must also comply with the other deadlines in the July 1,
24 2021 scheduling order.2
25
26
1 For ease of reference, page numbers refer to the ECF branded number in the upper right
corner of the page.
27
II. Mootness & Conversion of Motion to Dismiss into Motion for Summary Judgment
1
Because a private plaintiff can sue only for injunctive relief under the ADA, a defendant’s
2
voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s ADA
3
claim. Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); see, e.g., Johnson v. Gallup
4
& Whalen Santa Maria, No. 17-CV-01191-SI, 2018 WL 2183254, at *4 (N.D. Cal. May 11, 2018)
5
(“There can be no effective relief here, where defendants have already removed the architectural
6
barriers that plaintiff identified in the complaint.”). That is because a plaintiff only has Article III
7
standing for injunctive relief if he can “demonstrate a sufficient likelihood that he will again be
8
wronged in a similar way. That is, he must establish a real and immediate threat of repeated injury.”
9
Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). The threat of future injury
10
dissipates if the barriers to accessibility have been remediated. See Johnson v. Holden, No. 5:18-
11
CV-01624-EJD, 2020 WL 1288404, at *4 (N.D. Cal. Mar. 18, 2020).
12
In this case, defendants argue their voluntary remediation of the two barriers at issue—all
13
structural—has mooted plaintiff’s ADA claim. The Court agrees that if defendant can establish
14
remediation, plaintiff’s ADA claim is moot. The Court is satisfied defendants’ alleged changes
15
would not be mere “temporary fixes.” Sanchez v. Wendys No. 7421, No. 819CV00111JLSDFM,
16
2019 WL 6603177, at *2 (C.D. Cal. Sept. 3, 2019). However, defendants rely upon extrinsic
17
evidence from Gary Layman, CASp, in order to establish the Property is ADA compliant. Dkt. No.
18
21 (Layman Decl. ISO MTD). That is, defendants bring a factual attack on this Court’s jurisdiction
19
to hear plaintiff’s ADA claims. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)
20
(distinguishing between factual and facial attacks on jurisdiction).
21
As a general matter, “[i]n resolving a factual attack on jurisdiction, the district court may
22
review evidence beyond the complaint without converting the motion to dismiss into a motion for
23
summary judgment.” Safe Air for Everyone, 373 F.3d at 1039. “However, when the jurisdictional
24
issue and the merits are ‘intertwined,’ or when the jurisdictional question is dependent on the
25
resolution of factual issues going to the merits, the district court must apply the summary judgment
26
standard in deciding the motion to dismiss.” Miller v. Lifestyle Creations, Inc., 993 F.2d 883 (9th
27
Cir. 1993) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). “The question
1 of jurisdiction and the merits of an action are intertwined where a statute provides the basis for both
2 the subject matter jurisdiction of the federal court and the plaintiff’s substantive claim for relief.”
3 Safe Air for Everyone, 373 F.3d at 1039. In this case, the question of whether there are violations
4 of the ADA at the Property is determinative of both subject matter jurisdiction and the substantive
5 claim for relief. The Court will therefore convert the motion to dismiss for mootness to a motion for
6 summary judgment.
7 Applying the summary judgment standard, defendant must demonstrate there is no genuine
8 dispute of material fact regarding the relevant accessibility barriers. See Miller, 993 F.2d at 883. In
9 support of its argument to that effect, defendants submit a declaration from Gary Layman, CASp.
10 Dkt. No. 21 (Layman Decl. ISO MTD). Plaintiff argues the declaration fails to establish the barriers
11 are remediated. Dkt. No. 28 at 19 (Opposition). A conclusory declaration “stat[ing] that all ADA
12 violations have remedied, but . . . provid[ing] no exhibits or other evidence to support these
13 statements” is insufficient to support summary judgment on mootness grounds. Johnson v. Mantena
14 LLC, No. 5:19-CV-06468-EJD, 2020 WL 1531355, at *2 (N.D. Cal. Mar. 31, 2020); see also Kalani
15 v. Starbucks Corp., 81 F. Supp. 3d 876, 882–83 (N.D. Cal. 2015), aff’d sub nom. Kalani v. Starbucks
16 Coffee Co., 698 F. App’x 883 (9th Cir. 2017) (“Conclusory opinions that the ‘facility is free of non-
17 compliant issues,’ or that particular features, e.g., the accessible parking or point of sale, ‘comply
18 with all applicable access requirements,’” are “an insufficient basis on which to grant summary
19 judgment.”). The declaration must “provide factual support” in order to support a finding that the
20 property has come into compliance with the applicable ADA standards. Kalani, 81 F. Supp. 3d at
21 882 (offering the following example of a properly supported opinion: “the pick-up counter . . . as
22 modified now provides a length of 36 inches and a height of 34 inches, as such it complies with
23 access regulations.”). Such factual support is required regardless of whether the declarant is a
24 CASp-certified expert.
25 Pursuant to the principles just recited, Mr. Layman’s declaration is too conclusory to
26 determine whether the Property complies with the ADA. The Court needs more detailed
27 information, for example: the particular features of each barrier the CASp expert examined, the
1 standards applied. See Johnson v. Montpelier One LLC, No. 19-cv-06214-EJD, 2020 U.S. Dist.
2 || LEXIS 113363, at *8 (N.D. Cal. June 28, 2020). Photographs of the relevant areas would also be
3 || helpful. Jd.
4
5 CONCLUSION?
6 The Court hereby orders as follows:
7 (1) The parties shall conduct a joint site inspection on or before December 17, 2021. The
8 parties shall also comply with any and all deadlines subsequent to the joint site inspection
9 as detailed in the July 1, 2021 scheduling order;
10 (2) Once the parties have complied with (1) above, defendants are granted leave to file a
11 motion for summary judgment as discussed in section II above.
12
IT IS SO ORDERED.
14 |) Dated: October 26, 2021 Site tee
15
2 SUSAN ILLSTON
a 16 United States District Judge
= 17
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25 3 Defendants’ motion to declare plaintiff a vexatious litigant is DENIED. While plaintiff has
26 || filed a staggering number of cases there is insufficient evidence of substantive deficiencies of
plaintiffs filings in those cases. The Ninth Circuit has held that “[i]n light of the seriousness of
07 restricting litigants’ access to the courts, pre-filing orders should be a remedy of last resort.”
Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014). Additionally, at
2g || this time, the Court is DENYING defendants’ request for supplemental briefing on the vexatious
litigant issue. Dkt. No. 34.