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Anglin v. Bakersfield Prosthetics & Orthotics Center Inc.

United States District Court, Ninth Circuit

December 30, 2013

DEBRA ANGLIN, Plaintiff,
BAKERSFIELD PROSTHETICS & ORTHOTICS CENTER INC., a California Corporation; ASHOK J DHOKIA, in his individual and representative capacity as Trustee; USHA DHOKIA, in her individual and representative capacity as Trustee; and DOES 1-10, Defendants.


JOHN A. MENDEZ, District Judge.

This matter is before the Court on Defendants Bakersfield Prosthetics & Orthotics Center, Inc. ("Defendant Bakersfield"), Ashok Dhokia, and Usha Dhokia's (collectively "Defendants") Motion to Dismiss (Doc. #5) Plaintiff Debra Anglin's ("Plaintiff") Complaint (Doc. #1) pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(4) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). Defendants' motion also urges the Court to decline supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. 1367(c). Plaintiff opposes the motion ("Opposition") (Doc. #9). Defendants have filed a reply (Doc. #12). For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.[1]


Plaintiff is a California resident with physical disabilities. Compl. ¶ 1. She is significantly impaired in her ability to walk and she uses a wheelchair for mobility. Compl. ¶ 1. Bakersfield Prosthetics ("Defendant Bakersfield") is a business establishment and a place of public accommodation. Compl. ¶ 7. Defendants Ashok Dhokia and Usha Dhokia are the "owners, operators, lessors and/or lessees" of Defendant Bakersfield. Compl. ¶ 2. Plaintiff alleges that Defendants have failed to maintain sufficient parking for persons with disabilities. Compl. ¶ 9. Specifically, Plaintiff alleges that the 25-space front parking lot has one space intended for use by persons with disabilities. Compl. ¶ 9-10. However, the mandated "NO PARKING" lettering does not exist on the access aisle, the mandated pole-mounted signage is too low, and the required tow-away signage does not exist. Compl. ¶ 10. The 6-space rear parking lot has the same deficiencies. Compl. ¶ 11. Furthermore, Plaintiff alleges that there is no wheelchair accessible path of travel from the rear handicap parking space to the rear door. Compl. ¶ 12. Plaintiff alleges that she has "patronized and purchased items at [Defendant Bakersfield] on several occasions, including two a visit in July and August of 2013." Compl. ¶ 14. Plaintiff further alleges that she "experienced difficulty and discomfort in struggling with the violations, " which denied her full and equal access to the facilities. Compl. ¶ 15. Moreover, Plaintiff alleges that she is "currently being deterred" from patronizing Defendant Bakersfield. Compl. ¶ 16.

On September 6, 2013, Plaintiff filed the Complaint in this Court. Plaintiff's Complaint includes the following causes of action: (1) Violation of the Americans with Disabilities Act of 1990; (2) Violation of the Unruh Civil Rights Act; (3) Violation of the California Disabled Persons Act; and (4) Negligence. The Court has original jurisdiction under 28 U.S.C. § 1331 because Plaintiff has asserted a claim for relief under the Americans with Disabilities Act. Pursuant to 28 U.S.C. § 1367, the Court has supplemental jurisdiction over Plaintiff's state law claims.


A. Legal Standard

1. Subject Matter Jurisdiction

Dismissal is appropriate under Rule 12(b)(1) of the FRCP when a district court lacks subject matter jurisdiction over the claim. When a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff has the burden of establishing subject matter jurisdiction. See Rattlesnake Coal. v. U.S. E.P.A. , 509 F.3d 1095, 1102 n.1 (9th Cir. 2007) ("Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence."). There are two permissible jurisdictional attacks under Rule 12(b)(1): a facial attack, where the court's inquiry is limited to the allegations in the complaint; or a factual attack, which permits the court to look beyond the complaint at affidavits or other evidence. Savage v. Glendale Union High Sch. , 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).

If the moving party asserts a facial challenge, the court must assume that the factual allegations asserted in the complaint are true and must construe those allegations in the light most favorable to the plaintiff. Li v. Chertoff , 482 F.Supp.2d 1172, 1175 (S.D. Cal. 2007) (citing United States v. One 1997 Mercedes E420 , 175 F.3d 1129, 1130-31 & n.1 (9th Cir. 1999) and Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003)). If the moving party asserts a factual attack, the court "is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Id . (citing Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004)).

2. Failure to State a Claim

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the FRCP. To survive a motion to dismiss a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 556 U.S. 662, 570 (2007). In considering a motion to dismiss, a district court must accept all the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer , 468 U.S. 183 (1984); Cruz v. Beto , 405 U.S. 319, 322 (1972). "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must sufficiently allege underlying facts to give fair notice and enable the opposing party to defend itself effectively." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 , 182 L.Ed.2d 882 (U.S. 2012). "Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Id . Assertions that are mere "legal conclusions" are therefore not entitled to the presumption of truth. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Dismissal is appropriate when a plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department , 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, a court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear... that the complaint could not be saved by ...

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