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Johnson v. Hernandez

United States District Court, E.D. California

November 24, 2014

SCOTT JOHNSON, Plaintiff,
v.
FLORENCE B. HERNANDEZ, et al., Defendants

For Scott Johnson, Plaintiff: Mark D. Potter, LEAD ATTORNEY, Center for Disability Access, San Diego, CA; Phyl Grace, LEAD ATTORNEY, Potter Handy LLP, San Diego, CA.

For Florence B. Hernandez, in her individual and representative capacity as Trustee--Florence B Hernandez Trust, Stop the Presses, Inc., a California Corporation, Defendants: David Anthony Rishwain, LEAD ATTORNEY, Rishwain & Rishwain, Stockton, CA.

Page 1031

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., CHIEF JUDGE, UNITED STATES DISTRICT COURT.

Plaintiff Scott Johnson (" Plaintiff" ) initiated this action against Defendants Florence B. Hernandez, in her individual and representative capacity as Trustee of the Florence B. Hernandez Trust, and Stop the Presses, Inc. (collectively " Defendants" ) seeking damages and injunctive

Page 1032

relief for violations of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq.; California's Unruh Civil Rights Act, California Civil Code § § 51-53; California's Disabled Persons Act, California Civil Code § § 54-54.8; and for negligence. Presently before the Court is Defendants' Motion to Dismiss for lack of subject matter jurisdiction (ECF No. 7). For the following reasons, the Motion is DENIED.[1]

BACKGROUND[2]

Plaintiff is a quadriplegic who cannot walk and has significant dexterity impairments. He uses a wheelchair for mobility and has a specially equipped van. Together, Defendants own and/or lease the property on which a Stop the Presses Printing Company (" Stop the Presses" ) is located.[3] Stop the Presses is a business establishment and place of public accommodation.

Plaintiff avers that he has frequented Stop the Presses on more than one occasion and encountered barriers to access. More specifically, although parking is provided to Stop the Presses patrons, no functioning and compliant handicap parking space is available. According to Plaintiff, whether through neglect, apathy or otherwise, the defendants have permitted the handicap parking spaces and signage to either deteriorate to the point of being non-functioning or to be maintained incorrectly. Plaintiff also complains that the door hardware and transaction counter are noncompliant. Plaintiff has thus been deterred from additional attempts at patronage. As a result, Plaintiff initiated this action alleging violations of state and federal law.

Defendants now move to dismiss Plaintiff's ADA claim on the grounds that each of the purported barriers allegedly has been modified so that the parking lot, door, and transaction counter all comply with federal law. In support, Defendants offer the declaration of Randall Stout, President of Construction Services & Investigations, Inc., a construction defect consulting company, who avers that he " coordinated and oversaw the necessary repairs and renovations" and " all of the items identified in the complaint as being noncompliant with the ADA [have] been resolved so that they [are] fully compliant . . . ." Decl. of Randall Stout, ECF No. 7-4 ¶ ¶ 3-4. Mr. Stout further opined that " a handicap accessible parking space with compliant signage, slope and path of travel was installed, an accessible business service transaction counter was added, and the entry door hardware was renovated to be compliant." Id. ¶ 4. " [A]dditional renovations were also completed, including installation of compliant path of travel designations from the public right of way to the Premises, including truncated domes, and the leveling of the slope at the landing area adjacent to the entry doors to the Premises." Id.[4]

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Since the only remedy sought under the ADA is an injunction, and since, given their remedial efforts Defendants contend there is no likelihood of future harm, Defendants ask that the ADA claim be dismissed, essentially as moot, and that the Court decline to exercise supplemental jurisdiction over Plaintiffs' state law claims. Plaintiff contends dismissal of the ADA claim would be improper because, among other things, the jurisdictional question is intertwined with the merits and should not be resolved at this early juncture and ...


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