United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE; [DOC.
NO. 40] DENYING DEFENDANT'S MOTION FOR SANCTIONS; AND
[DOC. NO. 44] DENYING PLAINTIFF'S MOTION FOR SANCTIONS
[DOC. NO. 47]
Michael M. Anello United States District Judge.
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.
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”),
which superseded the original complaint, and rendered moot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.
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
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.
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.
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.
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, ¶
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, “yelp.com,
yellowpages.com, carlsbad-ca.abcd4.com, apartmentcloud.org,
[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.
on the foregoing allegations, the TAC alleges claims for
violations of the ADA, FHA, and California's Unruh Civil
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)).
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).
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).
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).
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).
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