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Cross v. HFLP - Dolphin Beach, LLC

United States District Court, S.D. California

June 28, 2017

DIANE CROSS, Plaintiff,


          Hon. Michael M. Anello United States District Judge.

         Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant HFLP - Dolphin Beach, LLC moves to dismiss Plaintiff Diane Cross's Third Amended Complaint (“TAC”), which alleges claims for violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. 12101 et seq., the Fair Housing Act and the Fair Housing Amendments Act (collectively, the “FHA”), 42 U.S.C. §§ 3600 et seq., and California's Unruh Civil Rights Act, California Civil Code § 51 et seq. See Doc. No. 40. Defendant also moves to strike or dismiss Plaintiff's state law claims. See Doc. No. 40. Each party also moves for sanctions under Federal Rule of Civil Procedure 11. See Doc. Nos. 44, 47. The Court found these matters suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss and to strike, Doc. No. 40, DENIES Defendant's motion for sanctions, Doc. No. 44, and DENIES Plaintiff's motion for sanctions, Doc. No. 47.

         Procedural History

         On October 9, 2015, Plaintiff commenced this action in the Superior Court for the State of California, County of San Diego, case number 37-2015-00034063-CU-CR-CTL, against Defendant. On November 5, 2015, Defendant removed the case to this Court. On November 20, 2015, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), alleging the Court lacked subject matter jurisdiction over the action. Doc. No. 2. However, Plaintiff subsequently filed the First Amended Complaint (“FAC”), [1] which superseded the original complaint, and rendered moot Defendant's motion to dismiss the original Complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). The FAC included claims for violations of the ADA, the FHA, and California's Unruh Civil Rights Act.

         Defendant then filed a motion to dismiss the FAC, which the Court granted. See Doc. No. 13. The Court dismissed Plaintiff's ADA claims without prejudice pursuant to Rule 12(b)(1) on the grounds that Plaintiff had not sufficiently alleged standing. Specifically, the Court found Plaintiff failed to sufficiently allege a “real and immediate threat of repeated injury, ” as required in ADA cases where injunctive relief is the only remedy available to private plaintiffs. See Doc. No. 13; Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). Additionally, the Court dismissed without prejudice Plaintiff's FHA claims pursuant to Federal Rule of Civil Procedure 8, concluding that Plaintiff's allegations did not provide Defendant with adequate notice of her claims or their grounds. The Court declined to address Plaintiff's claims arising under California law at that stage. The Court allowed Plaintiff to amend claims dismissed without prejudice.

         Subsequently, Plaintiff filed a Second Amended Complaint (“SAC”), and Defendant moved to dismiss the SAC. Before the Parties completed briefing on Defendant's motion to dismiss, Plaintiff filed a motion for leave to file a Third Amended Complaint (“TAC”). The Court granted Plaintiff's motion, and denied Defendant's motion to dismiss as moot. See Doc. No. 38. Plaintiff filed the TAC, and Defendant now moves to dismiss Plaintiff's federal claims pursuant to Rules 12(b)(1) and 12(b)(6), and moves to strike Plaintiff's state law claims pursuant to California law. See TAC, Doc. No. 39; Doc. No. 40. Nearly two months later, Defendant filed a motion for sanctions pursuant to Federal Rule of Civil Procedure 11. See Doc. No. 44. Soon after, Plaintiff also filed a Rule 11 motion for sanctions. See Doc. No. 47. After multiple scheduling conflicts regarding the hearing date for the pending motions, the Court set a special briefing schedule and took all matters under submission on the papers. See Doc. No. 46.


         In the TAC, Plaintiff alleges Defendant owns, operates, and/or leases Dolphin Beach Apartments, located at 662 Tamarack Avenue in Carlsbad, California. Plaintiff states that she suffers physical impairments that render her unable to walk and require her to use a wheelchair. Plaintiff also alleges she has impaired vision, and has a “companion service dog.” See TAC, ¶ 53.

         “On or about September 15 2015, ” Plaintiff alleges she went to Dolphin Beach Apartments “to utilize their goods and/or services.” See TAC, ¶ 10. Plaintiff alleges she “went to the Defendants' [sic] subject property to obtain an application to lease a rental unit” and “to determine if the general accessibility of the property would be accessible to Plaintiff if she were to successfully obtain a rental unit.” See TAC, ¶ 10. However, Plaintiff contends that when she arrived, “she was denied equal access to and had difficulty using the public accommodations' facilities.” See TAC, ¶ 10. Specifically, Plaintiff alleges Defendant has a rental office at the location of the apartments. Plaintiff alleges Defendant did not have “the required compliant Van Accessible disabled parking space or regular disabled parking space” or the requisite signage for such parking spaces, which caused Plaintiff to have a difficult time parking because she risked being precluded from exiting or reentering her vehicle if someone else parked improperly. See TAC, ¶ 11. Further, “there was a high step at the entrance threshold to the leasing office and an office doorway that was too narrow to be accessible.” See TAC, ¶ 11. Also, the door to the office “has a round door knob that [she] is unable to twist due to her disability.” See TAC, ¶ 11. Accordingly, Plaintiff alleges she “is unable to enter the leasing office.” See TAC, ¶ 11. Finally, Plaintiff alleges the rental units were inaccessible “since they had a high threshold.” Id.

         Plaintiff contends she returned to the property on June 14, 2016 to find the same barriers, and thus was deterred from visiting the property in October 2015, November 2015, February 2016, and is presently deterred from visiting because of the above-described barriers. She states that she plans to return to Defendant's facilities “on August 12, 2016 to obtain leasing application materials.” See TAC, ¶ 14. The TAC alleges Plaintiff intends to return on October 14, 2016 “for the same reason, ” on August 18, 2017, and at the conclusion of this litigation to verify that it is accessible and to “obtain rental applications and leasing information.” See TAC, ¶¶ 14. Plaintiff states that she currently “resides in a rental unit located approximately only Twenty-Seven (27) miles” from the subject property and is in the “immediate area of Defendant's property at least once a month.” See TAC, ¶ 14. She alleges that she “has been searching for a new rental facilities [sic] prior to September 2015 due to her impending departure from her current” unit. See TAC, ¶ 14. She states that her “current leasehold was originally to terminate in January 2016.” See TAC, ¶ 14. Plaintiff alleges she would like to move into that area, if not into a unit at Defendant's property. See TAC, ¶ 14.

         Also, around September 2015, Plaintiff states she went online in order to determine whether Defendant had any apartments available to rent, and to assess the accessibility of Defendant's facilities and apartments. See TAC, ¶ 10. Plaintiff contends “Defendants' [sic] Internet advertising uses selective media or content exclusively to cater to the majority population without disabilities.” See TAC, ¶ 50. Plaintiff lists webpages on which “Defendant advertises the subject property, ” such as, “,,,, [and etcetera].” See TAC, ¶ 51. On a couple of the websites, Plaintiff states that “the equal housing opportunity logo” appears. See TAC, ¶ 51. Plaintiff also alleges “the said advertising uses catch words, symbols or logotypes and colloquialisms that suggest a preference for people without disabilities, ” and “the selective placement of the equal housing opportunity logo” also suggests such a preference. See TAC, ¶ 50. “For example, ” the TAC alleges, “Defendants advertise statements such as it is only a walking distance to Carlsbad Village, restaurants, cafes, stores, Jefferson Elementary School, High Schools, parks, etc.” See TAC, ¶ 52. Also, the TAC alleges “[s]ome advertisements say the property was built in 1994 and others state 1970.” See TAC, ¶ 52. Plaintiff states:

Defendants [sic] internet advertises that the property has amenities that include off street parking, private balcony/patio, dishwasher, refrigerator, range, spacious closets, walk in closet, new bathrooms, cabinets, counter tops, sinks, fans, new flooring throughout the unit, oven, garbage disposal, refrigerator, washer & dryer hookup, wall heater and 12 months lease term.

See TAC, ¶ 52. Additionally, the TAC alleges Defendant advertises that “[i]t is a pet friendly community, ” and “has a pet policy, but it does not state whether Defendant's policy makes an exception for companion or service dogs.” See TAC, ¶ 53. “Further, ” Plaintiff alleges, “none of the human models used in the said advertising have a known disability.” See TAC, ¶ 50. The advertisements also allegedly “show access barriers without any reasonable accommodation notice.” See TAC, ¶ 53. Lastly, Plaintiff contends “Defendant's internet website [notices, statements, and advertisements] are not accessible visually since one is not able to click and increase the [] font size to make it more readable for persons with impaired vision.” See TAC, ¶ 54.

         Based on the foregoing allegations, the TAC alleges claims for violations of the ADA, FHA, and California's Unruh Civil Rights Act.

         Legal Standard

         A. Rule 12(b)(1)

         Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction “either on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Where the party asserts a facial challenge, the court limits its inquiry to the allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “If the challenge to jurisdiction is a facial attack . . . the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of the Interior, 905 F.Supp.2d 1158, 1167 (E.D. Cal. 2012) (internal citation and quotation omitted). “Lack of standing is a defect in subject-matter jurisdiction and may be properly challenged under Rule 12(b)(1).” Wright v. Incline Village Gen. Imp. Dist., 597 F.Supp.2d 1191, 1199 (D. Nev. 2009) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)).

         B. Rule 12(b)(6)

         A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible on its face.” Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard thus demands more than a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain allegations of underlying facts sufficient to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

         In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Where dismissal is appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. See Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

         C. Rule 11

         Federal Rule of Civil Procedure 11 provides in pertinent part, that when an attorney or unrepresented party presents a signed paper to a court, that attorney or unrepresented party is certifying that to the best of his or her “knowledge, information and belief, formed after an inquiry reasonable under the circumstances” that:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing law or for establishing new law; [and]
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

See Fed. R. Civ. P. 11(b)(1)-(3).

         When one party seeks sanctions against another, a court must first determine whether any provision of Rule 11(b) has been violated. Warren v. Guelker, 29 F.3d 1386, 1389 (9th Cir. 1994). A finding of subjective bad faith is not required under Rule 11. See Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994) (“Counsel can no longer avoid the sting of Rule 11 sanctions by operating under the guise of a pure heart and empty head.”). “Instead, the question is whether, at the time the paper was presented to the Court (or later defended) it lacked evidentiary support or contained ‘frivolous' legal arguments.” Odish v. CACH, LLC, 2012 WL 5382260, at *3 (S.D. Cal. Nov. 1, 2012). If the court determines a Rule 11 violation ...

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