FINDINGS AND RECOMMENATIONS THAT THE COURT DENY DEFENDANTS' MOTIONS TO DISMISS
SANDRA M. SNYDER, Magistrate Judge.
On July 29, 2013, Plaintiff Scott Johnson ("Plaintiff") filed a complaint in the Sacramento division of this District. Doc. 1. The defendants are Carlos Roque, Magdalena Fernandez, and Triple S Golden State Corporation ("Defendants"). On October 9, 2013, the case was transferred to this, the Fresno division. Doc. 21; Local Rule 120(d). Before the Court are two motions to dismiss, one filed by Roque and Fernandez, the other by Triple S. Docs. 8, 10. Plaintiff opposed. Doc. 14, 24. No replies were filed. Pursuant to Local Rule 230(g), the Court vacated the November 27, 2013 hearing.
Alongside their motions to dismiss, Defendants also moved for Rule 11 sanctions. Docs. 6, 9. Plaintiff opposed and cross-moved for sanctions. Doc. 15. Defendants later withdrew their motions for sanctions. Docs. 29, 30. Plaintiff's remains on calendar. It is currently stayed pending the resolution of the present motions to dismiss. Doc. 28.
For the reasons stated below, the undersigned recommends that Defendants' motions to dismiss be DENIED. The stay on Plaintiff's motion for sanctions will remain in place pending consideration of these Findings and Recommendations by the Honorable Anthony W. Ishii, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
According to the complaint, Plaintiff is a California resident with physical disabilities. He is a level C-5 quadriplegic. He cannot walk and has significant manual dexterity impairments. He uses a wheelchair for mobility and has a specially equipped van.
The complaint relates to the Antojitos-Subway restaurant at 7154 McCracken Road, Westley, California. Of the two "possible" handicap parking spaces that exist, neither is van accessible, and the access aisle for the handicap parking stalls is not level with the parking stall. Plaintiff alleges that the failure to remove these barriers was intentional.
Plaintiff has personally encountered these violations. He has "been to the Antojitos-Subway on at least three occasions during the 2013 calendar year, " and "[t]hese violations denied [him] full and equal access to facilities, privileges and accommodations offered." He states that the restaurant "is in a desirable location for him and he will continue to patronize the businesses there and will continue to encounter the unlawful barriers and discriminatory conditions there so long as they remain."
Plaintiff's first cause of action is for a violation of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101, et seq. ), arising from Defendants' failure to provide a van accessible parking space and the failure to provide an access aisle level with the adjacent parking stall. His second and third causes of action incorporate these same allegations as violations of California's Unruh Civil Rights Act (Cal. Civ. Code §§51-53) and Disabled Persons Act (Cal. Civ. Code §§ 54.1). Both causes of action allege that Plaintiff seeks civil penalties because he was caused "difficulty, discomfort, or embarrassment." The fourth cause of action is for negligence.
DEFENDANTS' MOTIONS TO DISMISS
Defendants begin with general remarks about the ADA. They note that "ADA violations are largely unregulated [and]... not corrected, " and that "[t]his has created a big business for Plaintiff and others like him... to sue for ADA violations after they have been damaged." Defendants Roque and Fernandez ask the court to take judicial notice of public records which, they say, show "the similarity of the claims" in four cases that Plaintiff has filed, as well as to take notice of the fact that Plaintiff is or has been a party in thousands of cases. Doc. 11.
Defendants' substantive objection to the ADA claim is that Plaintiff has failed to allege that he has visited the place of business. But, Defendants immediately modify this argument, acknowledging that Plaintiff does allege "that he visited at least three times in the last eight months;" yet, instead, he fails to "support his claims with dates and times." These, Defendants state, are " a minimum evidentiary showing necessary to make his boilerplate complaint valid " (emphasis in original). They assert, without authority, that it is "now well known" that Plaintiff's " modus operandi " is not to personally visit the "majority of businesses he sues." They then explain that they want the dates and times "to ascertain the veracity of Plaintiff's claims and possibly move for summary judgment " (emphasis added).
As to all four claims, Defendants also argue that Plaintiff cannot show damages. For the ADA claim, this is because Plaintiff "does not allege that he was unable to enter the restaurant" and because he omits the amount of damage claimed. As to the remaining claims, Defendants take issue with Plaintiff's allegation that he suffered "difficulty, discomfort or embarrassment." This, they say, represents emotional or special damages which must be "specifically stated." FRCP 9(g). In this context, they assert, Plaintiff must plead the ...