United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE
LABSON FREEMAN, UNITED STATES DISTRICT JUDGE
the Court is Defendant Fernando Gonzalez's
(“Gonzalez”) motion to dismiss Plaintiff Jose
Trujillo's (“Plaintiff”) Complaint in this
action brought pursuant to the Americans with Disabilities
Act (“ADA”), the California Unruh Civil Rights
Act (“Unruh Act”), and California's Health
and Safety Code. See ECF 35 (“Mot.”).
The Court previously found this motion suitable for
disposition without oral argument pursuant to Civil Local
Rule 7-1(b) and vacated the hearing scheduled for February
22, 2018. See ECF 24. For the reasons that follow,
Defendant's motion to dismiss the Complaint is DENIED.
following facts are taken from Plaintiff's Complaint and
are accepted as true on a motion to dismiss. See ECF
1 (“Compl.”). Plaintiff brings this civil rights
action for discrimination at the business complex known as
Taqueria Los Grullenses in Hollister, California (the
“Facility”). Compl. ¶ 1. Plaintiff is
substantially limited in his ability to walk, and uses a
wheelchair or cane for mobility. Id. ¶ 8.
Plaintiff visited the Facility on or about July 24, 2016 for
the purpose of having dinner with family and friends.
Id. ¶ 10. During his visit, Plaintiff
encountered several barriers that interfered with or denied
his ability to use and enjoy the public accommodation.
Id. ¶¶ 9-10.
example, Plaintiff could not find accessible parking in the
Facility shopping complex, and he had difficulties
maneuvering his wheelchair from his regular parking space to
the entrance of the Facility because the pavement had
deteriorated. Id. ¶ 10(a)-(b). Plaintiff
further alleges that there was no ramp to the entrance of the
facility, and that the loose carpet inside the Facility's
entrance made it difficult to enter and exit the restaurant.
Id. ¶ (c)-(d). Once inside, Plaintiff
encountered further obstacles such as a transaction counter
and napkin dispensers that were too high, aisles that were
too narrow, and problems with the restroom that made it
difficult if not impossible for Plaintiff to maneuver his
wheelchair, pay for his meal, reach napkins, or use the
restroom. Id. ¶ 10(e)-(j).
filed his Complaint on January 11, 2017, bringing claims
under the ADA, Unruh Act, and Health and Safety Code against
Defendants Armando Perez Garcia, Jose de Jesus Perez Garcia,
and Francisco Ramos, d/b/a Taquiera Los Grullenses
(collectively “Settled Defendants”) and their
landlord, Fernando Gonzalez (“Gonzalez”). See
generally Compl. Following a resolution with the Settled
Defendants, Plaintiff dismissed his claims against those
Defendants and only his claims against Gonzalez remain in
this action. See ECF 13. After completing service of
the Complaint on Gonzalez, Gonzalez failed to timely respond
to the Complaint and Plaintiff obtained an entry of default
against Gonzalez from the Clerk on April 19, 2017.
See ECF 18.
moved for default judgment against Gonzalez on July 17, 2017,
and Magistrate Judge Howard Lloyd issued a Report &
Recommendation that this Court grant default judgment.
See ECF 25. Once the case was reassigned to this
Court, Gonzalez appeared in this action pro se and
filed a timely objection to Magistrate Judge Lloyd's
Report & Recommendation. See ECF 30. Once
Gonzalez appeared, Plaintiff and Gonzalez stipulated to set
aside the entry of default so that the matter could proceed
on the merits. See ECF 32. Gonzalez then filed the
instant motion to dismiss the Complaint. See ECF 35
motion to dismiss under Rule 12(b)(6) concerns what facts a
plaintiff must plead on the face of the complaint. Under Rule
8(a)(2) of the Federal Rules of Civil Procedure, a complaint
must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Any
complaint that does not meet this requirement can be
dismissed pursuant to Rule 12(b)(6). A “short and plain
statement” demands that a plaintiff plead “enough
facts to state a claim to relief that is plausible on its
face, ” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007), which requires that “the plaintiff
plead factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The Court must “accept factual
allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
motion to dismiss, Gonzalez argues that Plaintiff's
lawsuit should be dismissed because the requested remedy is
“already dealt with” in another lawsuit.
See Mot. at 3. Gonzalez explains that there are two
adjoining parcels of retail space at the Facility, Parcel A
and Parcel B, of which Gonzalez owns Parcel B and rents it
out to the Settled Defendants who own Taquiera Los
Grullenses. Id. Parcel A and Parcel B share a
parking lot. Id. According to Gonzalez, Plaintiff
already sued the owners and businesses of Parcel A, and
settled those claims as well as his claims against the other
Defendants in this case. Id. As part of the
settlement with the owner of Parcel A, Gonzalez participated
in an assessment of the parking lot. Id. at 4.
Gonzalez argues that he and the owner of Parcel A acted as a
“partnership” in order to complete the work that
needed to be done in the Facility's parking lot.
Id. Gonzalez argues that it is unjust to allow
Plaintiff to recover twice for the parking lot issue that has
already been resolved. Id. Although Gonzalez does
not cite to any law in support of his motion, the Court
construes his argument to mean that Plaintiff is barred by
the doctrine of res judicata in light of Plaintiff's
prior settlement with the owner of Parcel A, or that some
other doctrine applies to bar Plaintiff's claims related
to the parking lot allegations.
entire motion goes beyond the pleadings in this case and
requires a factual record in order for the Court to determine
whether Plaintiff's claims against Gonzalez are barred by
res judicata, or if some other doctrine prevents double
recovery. In other words, this Court cannot grant
Gonzalez's motion to dismiss without converting it into a
motion for summary judgment. Without any factual record
before it, the Court cannot make any such determination that
Plaintiff's claims against Gonzalez are barred at this
stage. Accordingly, Gonzalez's motion to
dismiss the action for failure to state a claim is DENIED.
support for his motion, Gonzalez apparently requests that the
Court take judicial notice of a news article, a receipt or
invoice, and a check, all of which are unauthenticated and
are not incorporated by reference into the Complaint. The
Court finds that these documents are not properly subject to
judicial notice on a motion to dismiss pursuant to Rule
12(b)(6). See Fed. R. Evid. 201. Gonzalez's
request for the Court to take judicial notice of these
documents is DENIED.
the Court were to consider Gonzalez's evidence, the Court
cannot determine from the materials submitted whether the
alleged work conducted on the Facility's parking lot
resolves Plaintiff's claims against Gonzalez. Based on
the factual record before the Court, it is impossible to
determine whether the Facility's parking lot is actually
compliant and accessible to persons with disabilities. As
Plaintiff points out, Gonzalez does not indicate what type of
parking was installed, where it was installed, or how many
spaces were installed. See ECF 39 at 5