United States District Court, C.D. California
Present: Honorable ANDRÉ BIROTTE JR., United States
CIVIL MINUTES - GENERAL
[In Chambers] Order to Show Cause Why This Case
Should Not Be Dismissed for Lack of Subject
filed this action on December 23, 2015, alleging violations
of the Americans with Disabilities Act (“ADA”)
and the Disabled Persons Act, the Unruh Civil Rights Act, and
Health and Safety Code § 19955(a) under California law.
Plaintiff asserted jurisdiction under 28 U.S.C. § 1331
and 1343 as to the ADA claim and supplemental jurisdiction
under 28 U.S.C. § 1367 as to the state law claims. (Dkt.
No. 1, Compl. ¶¶ 3, 4.)
December 12, 2016, Plaintiff filed a motion for summary
judgment as to the ADA and Unruh Act claims. (Dkt. No. 29.)
Having considered the evidence presented by Plaintiff, all of
which was uncontroverted by Defendant, the Court granted the
motion and entered judgment in favor of Plaintiff. (Dkt. Nos.
40, 42.) Plaintiff then filed a motion for attorneys'
fees under the ADA and the Unruh Act. (Dkt. No. 44.) In
support of his motion, Plaintiff submitted materials that
call into question the Court's jurisdiction to hear this
case. Specifically, the Court questions whether Plaintiff has
standing to maintain this case against Defendant.
has the burden of establishing he has standing to pursue his
claims. Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). To do so, a plaintiff must show he has
suffered an “injury in fact” that is concrete and
particularized, and “actual or imminent, not
conjectural or hypothetical, ” that the injury is
“fairly traceable to the challenged action of the
defendant, ” and that the injury is likely to be
“redressed by a favorable decision” by the court.
Id. at 560-61 (citations omitted). Because these
elements are a prerequisite to the exercise of the
Court's jurisdiction, and not mere pleading requirements,
“each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of
proof.” Id. at 561.
provides for injunctive relief and the recovery of
attorneys' fees, so to establish standing under the ADA,
“a plaintiff must allege that a public accommodation
has discriminated against him and that there is a ‘real
or immediate threat that the public accommodation will again
subject him to discrimination.” Molski v.
Arby's Huntington Beach, 359 F.Supp.2d 938, 946
(C.D. Cal. 2005) (citing Bird v. Lewis & Clark
College, 303 F.3d 1015, 1019 (9th Cir. 2002)). To
establish “actual or imminent injury, ” a
plaintiff must show he is “currently deterred from
patronizing a public accommodation due to a defendant's
failure to comply with the ADA, ” or that he is
threatened with future harm “because of existing or
imminently threatened non-compliance with ADA.”
Pickern v. Holiday Quality Foods, Inc. 293 F.3d
1031, 1133, 1137-38 (9th Cir. 2002). Courts consider a
plaintiff's stated intention to return to a particular
place, in addition to factors such as: “(1) the
proximity of the place of public accommodation to
plaintiff's residence, (2) plaintiff's past patronage
of defendant's business, (3) the definitiveness of
plaintiff's plans to return, and (4) the plaintiff's
frequency of travel near defendant.”
Arby's, 359 F.Supp.2d 947 at n.10. Should
Plaintiff here fail to establish standing under the ADA, the
Court would not have jurisdiction to hear the claim and could
decline to exercise supplemental jurisdiction over the state
law claims. 28 U.S.C. § 1367(c).
the only evidence Plaintiff presented at summary judgment was
a declaration that he visited the subject property located at
9202-9218 Alondra Boulevard, Bellflower, CA 90706, three
times, one of which was for the purpose of documenting the
alleged ADAAG violations for purposes of litigating this
case. (Dkt. No. 29-2, Declaration of Martin Vogel
(“Vogel Decl.”) ¶ 2.) Plaintiff also stated
“I enjoy the Shopping Center's location as well as
the shops and restaurants contained within it. I intend to
return to the Facility, however, I would like to see it made
accessible to me.” (Id. at ¶ 3.)
Plaintiff did not submit receipts that would corroborate his
stated enjoyment of the shopping center, nor did he name any
of the businesses he purported to visit. Because Defendant
failed to meaningfully oppose the motion or present any
evidence to dispute Plaintiff's statements, the Court
accepted Plaintiff's representations.
the materials Plaintiff submitted in support of his
subsequent motion for attorneys' fees indicate Plaintiff
may not have standing. For example, Plaintiff's
counsel's record of incurred fees demonstrates that Lynn
and Scottlynn Hubbard had a phone call with Plaintiff,
traveled to the property to inspect it, and prepared a fee
agreement and a letter to Plaintiff before Plaintiff ever
visited the property and encountered any barriers to access.
(See Dkt. No. 44-6, Declaration of Scottlynn Hubbard
(“Hubbard Decl.”) ¶ 53, Ex. 4 at 1.)
Moreover, in cases representing this Plaintiff, counsel has
represented that Plaintiff had actually patronized a
particular location and encountered barriers to access when,
in fact, it was counsel, not Plaintiff, who had ever visited
the location at issue. See, e.g., Vogel v.
Tulaphorn, Inc., 637 F.App'x 344, 345 (9th Cir.
2016), cert. denied, 137 S.Ct. 173 (2016). These
factors also call into question Plaintiff's stated intent
to return to the subject property and, consequently, further
bear on the standing inquiry.
on the thin record before it, and without the benefit of
discovery, the Court finds Plaintiff has not established he
has standing to pursue his claims. Accordingly, the Court
ORDERS Plaintiff to show cause why the case should not be
dismissed for lack of subject matter jurisdiction. Plaintiff
shall file a response, which may include additional briefing
and evidence as he deems necessary to meet his burden, within
fourteen (14) days of the issuance of this order. The Court
will decide whether this matter merits a hearing once it has