United States District Court, E.D. California
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
JOHN A. MENDEZ, District Judge.
Defendants Kellie Anne Jacobs ("Jacobs"), in her individual and representative capacity as Trustee of the Kellie Anne Revocable Trust, and Valley Brewing Company, Inc. ("Valley Brewing") (collectively "Defendants") contend the Court lacks subject matter jurisdiction over the claims in Plaintiff Scott Johnson's ("Plaintiff") complaint (Doc. #1) and have moved to dismiss (Doc. #8) pursuant to Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)"). In his opposition (Doc. #9), Plaintiff argues this attack on the merits of his claims is premature and is better suited as a motion for summary judgment. The Court agrees.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Valley Brewing Company is a business establishment and place of public accommodation owned and operated by Defendants. Plaintiff is a California resident with physical disabilities. As a C-5 quadriplegic, he uses a wheelchair for mobility.
Plaintiff alleges there are significant accessibility issues at Valley Brewing Company involving features of the bar/counter, tables and bathroom. Plaintiff alleges he ate at Valley Brewing on two occasions and encountered these barriers. As a result, Plaintiff experienced difficulty and discomfort and has been deterred from visiting on subsequent occasions. The complaint states four causes of action arising out of these encounters: (1) violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq.; (2) violation of the Unruh Civil Rights Act, California Civil Code §§ 51-53; (3) violation of the California Disabled Persons Act, California Civil Code §§ 54-54.8; and (4) negligence.
A. Legal Standard
Dismissal is appropriate under Rule 12(b)(1) when a district court lacks subject matter jurisdiction over the claim. When a defendant brings a Rule 12(b)(1) motion, 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)).
In resolving a factual attack, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Safe Air for Everyone, 373 F.3d at 1039 (citing Savage, 343 F.3d at 1039 n.2). Courts consequently need not presume the truthfulness of plaintiff's allegations. Id . (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). "Once the moving party has converted a motion to dismiss into a factual motion by presenting affidavits or other evidence properly before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id . (quoting Savage, 343 F.3d at 1039 n.2).
However, "jurisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and the substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action." Safe Air for Everyone, 373 F.3d at 1039 (internal citations and quotations omitted). Jurisdiction and the merits of an action are intertwined where "a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Id . (internal citations and quotations omitted).
1. Jurisdiction and Standing
Defendants first contend that Plaintiff's ADA allegations are "moot." Defendants then argue that their expert "disagrees that any of Plaintiff's allegations of ADA violations pled in his Complaint are true, and as a matter of law, he is correct." MTD at p.7. Upon thorough analysis of Defendants' motion, in conjunction with the declaration filed by Defendants' counsel (Doc. #8-2) and the attached exhibits, it appears Defendants are contending that whatever barriers may have previously existed, "each and every claimed barrier to access has been altered to comply with applicable accessibility requirements." MTD at p. 9. Exhibit C (Doc. #8-6) to the declaration of Defendants' counsel is a "Unilateral Stipulation of Voluntary ADA/Title 24 Compliance Prior to Service of Summons and Complaint" in which Defendants state that by the time they were served "Ms. Jacobs had made all relevant changes, but also more ...