United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS ADA CLAIM FOR LACK
OF SUBJECT MATTER JURISDICTION; DISMISSING REMAINING STATE
LAW CLAIM PURSUANT TO 28 U.S.C. §1367 RE: DKT. NO.
J. DAVILA UNITED STATES DISTRICT JUDGE
Cocassia, Inc., 1082 El. Camino Real, L.P., and Hankook
Center Management Company, LLC move to dismiss the complaint
for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1). The Court finds it
appropriate to take the motion under submission for decision
without oral argument pursuant to Civil Local Rule 7-1(b).
For the reasons set forth below, the motion is granted.
Scott Johnson's complaint includes the following
allegations. Plaintiff is a level C-5 quadriplegic. He cannot
walk and has significant manual dexterity impairments. He
uses a wheelchair for mobility and has a specially equipped
van. Plaintiff has gone to the Hankook Supermarket
(“Hankook”) located at 1092 E. El Camino Real,
Sunnyvale, California, on a number of occasions between
August 2016 and January 2017. Plaintiff went to Hankook to
shop. Plaintiff alleges that “the parking stalls and
access aisles for use by persons with disabilities are not
level with each other because there is a built up curb ramp
that runs into the access aisle and parking stall. This
results in slopes greater than 2.1%.” Complaint at
¶23. Plaintiff alleges that these conditions on the
property are “barriers, ” which existed during
each of his visits to Hankook. Plaintiff further alleges that
he is and has been deterred from returning and patronizing
Hankook because of the barriers.
initiated this action on March 15, 2017, asserting two claims
for disability discrimination: violation of the Americans
with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§12101, et seq.; and violation of
California's Unruh Civil Rights Act, Cal. Civ. Code
§51-53 (“Unruh Act”). A Joint Site
Inspection was held on November 29, 2017. Defendants move to
dismiss the ADA claim and request that the Court decline to
exercise supplemental jurisdiction over the remaining Unruh
Act claim pursuant to 28 U.S.C. §1367(c)(1)-(4).
12(b)(1), Fed.R.Civ.P., authorizes a motion to dismiss for
lack of subject matter jurisdiction. “Mootness . . .
pertain[s] to a federal court's subject-matter
jurisdiction under Article III, [so it is] properly raised in
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(1).” White v. Lee, 227 F.3d 1214, 1242
(9th Cir. 2000). A Rule 12(b)(1) motion may be either a
facial or factual challenge to jurisdiction. Id.
When a facial Rule 12(b)(1) motion to dismiss is presented,
inquiry is confined to the allegations in the complaint.
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
2004). When a factual Rule 12(b)(1) motion is presented, such
as the one made by Defendants here, the Court may look beyond
the complaint and need not presume the truthfulness of the
plaintiff's allegations. White, 227 F.3d at
1242. Faced with a factual challenge, the party opposing the
motion to dismiss must produce affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction. Safe Air For Everyone v. Meyer,
373 F.3d. 1035, 1039 (9th Cir. 2004).
when the jurisdictional issue is intertwined with the merits,
a court “must apply the summary judgment standard in
deciding the motion to dismiss.” Johnson v.
California Welding Supply, Inc., No. 11-1669 WBS, 2011
WL 5118599 (E.D. Cal. Oct. 27, 2011). Plaintiff's claim
in this case and jurisdiction are both premised on the ADA,
and so jurisdiction and substance are intertwined.
Accordingly, the Court will apply the summary judgment
standard to Defendants' motion to dismiss for lack of
subject matter jurisdiction.
contend that the ADA claim is moot. In support of the
mootness challenge, Defendants submit an Accessibility Report
prepared by a Certified Access Specialist dated April 24,
2017, that contains a list of recommended changes to the
Hankook property and a second Accessibility Report dated
December 26, 2017, verifying that the recommended changes
opposes the motion on two grounds. First, Plaintiff contends
that the motion is premature because he has not had an
opportunity to confirm the findings in the December
Accessibility Report nor had an opportunity to depose its
author. Dkt. 40, p. 3. To obtain postponement or denial of a
motion for summary judgment based on the need for further
discovery, a party must submit a declaration showing, among
other things, facts indicating a likelihood that
controverting evidence exists. See Tatum v. City &
County of San Francisco, 441 F.3d 1090, 1101 (9th Cir.
2006). Plaintiff has not submitted any declaration showing a
likelihood that controverting evidence exists. Therefore, the
Court is not required to postpone or deny Defendants'
Plaintiff contends that the motion to dismiss is barred by
the stay under General Order 56, which imposes a stay on
“[a]ll other discovery and proceedings.” At least
two courts in this district have concluded that General Order
56 does not impose a stay on the filing of a responsive
pleading. See Moralez v. Whole Foods Market, Inc.,
897 F.Supp.2d 987, 993, n.2 (N.D. Cal. 2012) (holding that
the cited language “plainly refers to discovery issues,
and does not bar a defendant from moving to dismiss on
res judicata grounds); Che v. San Jose/Evergreen
Community College District Foundation, et al., No.
17-381 BLF (N.D. May 26, 2017) (finding the stay imposed by
General Order 56 does not clearly encompass the filing of an
answer or motion in response to a complaint). This Court also
finds that General Order 56 does not preclude Defendants from
bringing the instant motion to dismiss for lack of subject
to the merits of the motion, the undisputed evidence shows
that Defendants have corrected the sole alleged access
barrier alleged in the complaint. The ADA claim is therefore