Case No. 5:14-cv-03988-EJD (N.D. Cal. Jul. 27, 2015)

Case No. 5:14-cv-03988-EJD


RAFAEL ARROYO, JR., Plaintiff, v. DAVID G. SILVA, et al., Defendants.


Re: Dkt. Nos. 21, 24, 27

Defendants David G. Silva, Rosa Duran and 5 Spot Chivas Grill, Inc. (collectively, "Defendants") are the proprietors of a restaurant, aptly called "5 Spot Chivas Grill," located on South First Street in San Jose, California. In this action, Plaintiff Rafael Arroyo, Jr. ("Plaintiff") alleges that Defendants failed to maintain features of the restaurant in a condition that provides ready access to persons with disabilities.

Federal jurisdiction arises pursuant to 28 U.S.C. § 1331. Presently before the court are two largely-identical motions filed by Defendants, both of which seek dismissal of Plaintiff's First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). See Dkt. Nos. 21, 24. The court found these matters suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b) and previously vacated the associated hearing date. Having carefully reviewed Defendants' arguments in light of the liberal pleading standards that must be applied, the court will deny the Motions to Dismiss for the reasons explained below.

Defendants' unopposed motion to strike Plaintiff's untimely opposition (Docket Item No. 27) is GRANTED. --------


Plaintiff is a California resident with physical disabilities and uses a wheelchair for mobility. See FAC, at ¶¶ 1-2. He has been issued a handicap placard by the State of California. See id.

Plaintiff alleges that he "went" to 5 Spot Chivas Grill to eat on or about December 29, 2012. Id. at ¶ 11. His plans were disrupted, however. Plaintiff claims he was denied full and equal access to 5 Spot Chivas Grill because the one handicap parking space offered by the restaurant to its customers was not accessible. Id. at ¶ 14. Specifically, Plaintiff alleges that Defendants "placed objects and items on top of the parking space, and "have a history" of placing items on the space, such as "logs, dumpsters, machinery, planters, and so forth." Id. at ¶ 16. Plaintiff ended up leaving 5 Spot Chivas Grill without going in due to the lack of handicap-accessible parking. Id. at ¶ 17. He would like to return and patronize 5 Spot Chivas Grill but is deterred from visiting until Defendants cure the violation. Id. at ¶ 19.

Plaintiff filed the original Complaint on September 3, 2014. See Dkt. No. 1. After Defendants moved to dismiss the original Complaint, Plaintiff filed the FAC on October 15, 2014. See Dkt. No. 18. He asserts the following causes of action: (1) violation of the Americans with Disabilities Act ("ADA") (42 U.S.C. § 12101 et seq.), (2) violation of the Unruh Civil Rights Act (Cal. Civ. Code §§ 51-53), and (3) violation of the California Disabled Persons Act (Cal. Civ. Code §§ 54-54.8).


A. Federal Rule of Civil Procedure 12(b)(1)

Under Rule 12(b)(1), a party may file a motion to dismiss for lack of subject matter jurisdiction. A Rule 12(b)(1) motion may be either facial or factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to extrinsic evidence. Id. When a defendant makes a facial challenge, all material allegations in the complaint are assumed true, and the court must determine whether lack of federal jurisdiction appears from the face of the complaint itself. Id.

Federal courts are courts of limited jurisdiction, adjudicating only cases which the Constitution and Congress authorize. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). If a court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3).

B. Federal Rule of Civil Procedure 12(b)(6)

On a Rule 12(b)(6) motion to dismiss for failure to state a claim, the complaint is construed in the light most favorable to the non-moving party, and all material allegations in the complaint are taken to be true. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986); see Fed. R. Civ. P. 12(b)(6). This rule does not apply to legal conclusions - "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). While a complaint does not need detailed factual allegations to survive a 12(b)(6) motion, plaintiffs must provide grounds demonstrating their entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the plaintiff must allege sufficient factual allegations "to raise a right to relief above the speculative level." Id. This threshold is reached when the complaint contains sufficient facts to allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678.


A. Rule 12(b)(1) Argument

The court first addresses Defendants' arguments under Rule 12(b)(1) because those arguments are jurisdictional in nature. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) ("A suit brought by a plaintiff without Article III standing is not a 'case or controversy,' and an Article III federal court there-fore lacks subject matter jurisdiction over the suit."); Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 431 (2007) ("[J]urisdictional questions ordinarily must precede merits determinations in dispositional order."). Under a facial challenge to the FAC, Defendants argue that Plaintiff's allegations are insufficient to establish standing for an ADA claim under Article III of the Constitution. Defendants are mistaken.

Generally, the inquiry critical to any standing issue is "'whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Allen v. Wright, 468 U.S. 737, 750-51 (1984) (quoting Warm v. Seldin, 422 U.S. 490, 498 (1975)). Standing under Article III has three basic elements: (1) an "injury in fact," which is neither conjectural or hypothetical, (2) causation, such that a causal connection between the alleged injury and offensive conduct is established, and (3) redressability, or a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To satisfy the "injury in fact" element, "the plaintiff must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979). For redressability, the plaintiff must do more than demonstrate the possibility of some "psychic satisfaction" from a positive outcome. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107 (1998). Instead, the relief sought must actually remedy the injury alleged. Id.

Since "[t]he existence of federal standing 'often turns on the nature and source of the claim asserted,'" (Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 944 (9th Cir. 2011) (quoting Warm, 422 U.S. at 500)), the statutory scheme governing Plaintiff's claim has bearing on this analysis. The purpose of the ADA is to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). As relevant here, Title III of the ADA "prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations." Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005) (citing 42 U.S.C. § 12182(a)). Because the ADA is a civil rights statute, the Supreme Court has instructed federal courts to take "a broad view" of a plaintiff's standing since, in reality, "private enforcement suits 'are the primary method of obtaining compliance with the Act.'" Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).

For this case, Plaintiff's obligation to satisfy the Article III standing requirement is twofold. Aside from demonstrating the standard standing elements - that he "has suffered an injury-in-fact, that the injury is traceable to [Defendant's] actions, and that the injury can be redressed by a favorable decision" - he must also show a "real and immediate threat of repeated injury" because an injunction "is the only relief available to private plaintiffs under the ADA." Chapman, 631 F.3d at 946. Taking a "broad view" of the FAC with these elements in mind, the court concludes that Plaintiff sufficiently establishes each of these elements.

In the FAC, Plaintiff alleges that he is a paraplegic who uses a wheelchair, and that he was unable to eat at 5 Spot Chivas Grill because the one handicap parking space was being used as a storage or refuse area. Since Plaintiff attributes the creation of this barrier to Defendants' conduct, these allegations satisfy both the injury-in-fact and traceability requirements. Id. at 947 (holding that an injury-in-fact under the ADA exists when a disabled person encounters an accessibility barrier that interferes with the "full and equal enjoyment" of the facility on account of the person's specific disability). Plaintiff has also adequately alleged redressability because he asserts the present inability to use the handicap parking space prevents him from returning to 5 Spot Chivas Grill, even though he would like to patronize the restaurant during his travels through San Jose. See Hernandez v. Vallco Int'l Shopping Ctr., LLC, No. 10-CV-02848-LHK, 2011 U.S. Dist. LEXIS 30262, at *14, 2011 WL 890720 (N.D. Cal. Mar. 14, 2011) (finding redressablility adequately pled when plaintiff alleged removal of barriers would permit him to visit store without hindrance). In addition, Plaintiff has demonstrated a "real and immediate threat of repeated injury" because, although he would return to 5 Spot Chivas Grill if the handicap parking space was available for use, he is deterred from doing so by his knowledge of the barrier and Defendants' history of blocking the space. See Doran, 524 F.3d at 1041 ("Allegations that a plaintiff has visited a public accommodation on a prior occasion and is currently deterred from visiting that accommodation by accessibility barriers establish that a plaintiff's injury is actual or imminent."); see also Chapman, 631 F.3d. at 950 ("[A]n ADA plaintiff can show a likelihood of future injury when he intends to return to a noncompliant accommodation and is therefore likely to reencounter a discriminatory architectural barrier.").

Relying on Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939 (9th Cir. 2011), Defendants argue the FAC inadequately describes an injury-in-fact because it does not reveal how Plaintiff was traveling when he encountered the barrier at 5 Spot Chivas Grill. While Defendant is correct that a "barrier" will only constitute an ADA violation "if it affects the plaintiff's full and equal enjoyment of the facility on account of his particular disability" (Chapman, 631 F.3d at 947), explicit allegations on this topic are unnecessary. The reasonable inference that arises from the other allegations, including the facts that Plaintiff resides somewhere other than San Jose and needed the use the handicap parking space before he could enter the restaurant, is that Plaintiff was using a vehicle equipped to accommodate his wheelchair. Wolfe, 392 F.3d at 362 (holding the federal court accepts the allegations in the complaint as true and draws all reasonable inferences in plaintiff's favor for a facial Rule 12(b)(1) motion).

Defendants' challenge to redressability is similarly unpersuasive. It may be true that Plaintiff has filed several other ADA cases against other business establishments in San Jose. But it does not follow merely from the existence of those actions that Plaintiff does not intend to re-patronize 5 Spot Chivas Grill. Indeed, the Ninth Circuit has specifically cautioned against reading too much into an ADA plaintiff's history of litigation, and has specifically rejected this exact argument under similar circumstances. D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1039-40 (9th Cir. 2008). This court, therefore, must reject Defendants' argument here.

At this phase of the litigation, Plaintiff has sufficiently alleged facts supporting Article III standing for a claim under Title III of the ADA. Defendants' 12(b)(1) motion will be denied.

B. Rule 12(b)(6) Argument

The court now turns to Defendants' argument under Rule 12(b)(6). "To prevail on a discrimination claim under Title III, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability." Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010).

Defendants contend the FAC's lack of an explicit allegation addressing Plaintiff's mode of travel renders the Title III claim insufficiently pled. For reasons similar to those discussed with respect to standing, however, the court disagrees. As with Defendants' motion under Rule 12(b)(1), a motion under Rule 12(b)(6) also mandates that all reasonable inferences be drawn in Plaintiff's favor. Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014). The reasonable inference drawn from the FAC is that Plaintiff was traveling in a vehicle appropriately tailored to his disability.

Defendants also take issue with the allegation suggesting they have a "history" of restricting access to the handicap parking space and 5 Spot Chivas Grill, which they believe is unsupported and exceeds the statute of limitations. To the extent this allegation is necessary to state a claim under Title III, it is neither inadequately supported nor a violation of the statute of limitations in this context. In alleging Defendants' history of violating the ADA, Plaintiff provides a description of the barrier that is sufficient for Defendants to determine the subject and nature of the claim. Moreover, the fact that some of the alleged conduct may fall outside the limitations period does not mean the other, timely-filed allegations should be altogether ignored.

Considering the facts alleged by Plaintiff in the FAC, the court must conclude that Plaintiff has sufficiently demonstrated each element of a Title III claim.


Based on the foregoing, Defendants' Motions to Dismiss (Docket Item Nos. 24, 27) are DENIED.


Dated: July 27, 2015



United States District Judge