Strojnik v. Hotel Circle GL Holdings, LLC

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. NO. 8)

         This matter is before the court on defendant Hotel Circle GL Holdings, LLC's (“defendant”) motion to dismiss pro se plaintiff Peter Strojnik Sr.'s (“plaintiff”) complaint. A hearing on the motion was held on November 19, 2019. Plaintiff appeared telephonically on his own behalf, and attorney Philip Stillman appeared telephonically on behalf of defendant. The court has considered the parties' briefs and oral arguments and, for the reasons set forth below, will grant defendant's motion to dismiss with leave to amend.

         BACKGROUND

         Plaintiff's complaint alleges as follows. Plaintiff is a person which physical disabilities, including “severe right-sided neural foraminal stenosis with symptoms of femoral neuropathy, prostate cancer and renal cancer, [and a] degenerative right knee . . . .” (Doc. No. 1 (“Compl.”) at ¶¶ 2, 3.) These disabilities “substantially limit [plaintiff's] major life activities, ” in that he “walks with difficulty and pain and requires compliant mobility accessible features at places of public accommodation.” (Id. at ¶ 4.) Defendant owns, operates, or leases a hotel located at 300 S. Court Street, Visalia, CA 93291 (the “Hotel”). (Id. at ¶ 5.) On or about June 8, 2019, plaintiff visited the Hotel and encountered barriers to accessibility. (Id. at ¶¶ 15, 16.) Plaintiff has attached to his complaint an “Addendum A, ” wherein he includes photographs of these alleged barriers to accessibility. (See Id. at 8-10.) As a result of these barriers, plaintiff “is deterred from visiting the Hotel based on [his] knowledge that the Hotel is not . . . compliant [with the Americans with Disabilities Act (‘ADA') and California's Unruh Act] as such compliance relates to Plaintiff's disability.” (Id. at ¶ 11.) “Plaintiff intends to visit Defendant's Hotel at a specific time when the Defendant's noncompliant Hotel becomes fully compliant with [ADA Accessibility Guidelines (“ADAAG”)] . . . .” (Id. at ¶ 12.)

         On August 30, 2019, plaintiff commenced this action, asserting claims under the ADA, the Unruh Act, and the California Disabled Persons Act (“DPA”) as well as a negligence claim against defendant. (Id. at 3-7.) On October 9, 2019, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), defendant moved to dismiss the complaint, arguing that: (1) plaintiff lacks standing to assert his ADA, Unruh Act, and DPA claims; and (2) the ADA and negligence claims fail to state cognizable claims. On October 18, 2019, plaintiff filed his opposition to the pending motion, and on November 12, 2019, defendant filed its reply thereto. (Doc. Nos. 10, 15.)

         LEGAL STANDARD

         “Rule 12(b)(1) permits a defendant to seek dismissal of a complaint for lack of subject-matter jurisdiction, ” and “[a] defendant may bring a Rule 12(b)(1) motion to dismiss based on a lack of standing.” Borden v. Horwitz, No. 2:10-cv-00141-JHN-PLAx, 2010 WL 11459325, at *2 (C.D. Cal. May 18, 2010) (citing Young v. Crofts, 64 Fed.Appx. 24, 25 (9th Cir. 2003)); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (“Because standing and mootness both pertain to a federal court's subject-matter jurisdiction under Article III, they are properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6).”).

         “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 383 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): [a]ccepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite v. Crane Co., 797 F.3d 1117, 1121 (9th Cir. 2014). As in a Rule 12(b)(6) motion, the court need not assume the truth of legal conclusions cast in the form of factual allegations. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. Notably, extrinsic evidence is heard on factual attacks and the court may review “any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (emphasis added) (citing Land v. Dollar, 330 U.S. 731 (1947)).^[1]

         ANALYSIS

         Here, defendant asserts a facial challenge to jurisdiction because it contends that the complaint's allegations, when accepted as true and all reasonable inferences are drawn in plaintiff's favor, fail to (1) adequately allege an injury-in-fact as required to confer plaintiff standing under Article III; and (2) adequately allege standing to seek injunctive relief, which is the only remedy available to plaintiff under Title III of the ADA. (Doc. No. 8-1 at 9-19.) The court addresses each of these arguments below.

         A. Plaintiff Has Failed to Allege an “Injury-in-Fact” and He Does Not Have Standing to Seek Injunctive Relief under the ADA.

         “[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). To satisfy the case or controversy requirement, a plaintiff must show that he has suffered an injury-in-fact that is concrete and particularized; that the injury is traceable to the challenged action of the defendant; and that the injury is likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). “In addition, to establish standing to pursue injunctive relief, which is the only relief available to private plaintiffs under the ADA, [a plaintiff] must demonstrate a ‘real and immediate threat of repeated injury' in the future.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (footnote and citation omitted). “[A]n ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.” Id. at 944.

         Defendant first argues that plaintiff has not alleged an injury-in-fact in his complaint. (Doc. No. 8-1 at 9-13.) Specifically, defendant contends that plaintiff has not identified any alleged barriers to accessibility at the subject Hotel that relate to plaintiff's disability and “it is not even clear what that disability is.” (Id. at 10-11.) In this regard, plaintiff alleges in his complaint the following facts with respect to his alleged disability or disabilities and how that disability or disabilities relate to the alleged barriers to accessibility he encountered at the Hotel: (1) plaintiff is “legally disabled by virtue of a severe right-sided neural foraminal stenosis with symptoms of femoral neuropathy, prostate cancer and renal cancer, [and a] degenerative right knee”; (2) he “walks with difficulty and pain and requires compliant mobility accessible features at places of public accommodation”; (3) “Plaintiff's impairment is constant”; (4) “Plaintiff requires an ADA compliant lodging facility particularly applicable to his mobility, both ambulatory and wheelchair assisted”; (5) “Plaintiff encountered barriers to accessibility [at the Hotel] documented in Addendum A” and those barriers “related to Plaintiff's disability and interfere with Plaintiff's full and complete enjoyment of the Hotel”; and (6) “The ADAAG and Unruh violations in this Complaint relate to barriers to Plaintiffs [sic] mobility.” (Doc. No. 10 at 5-6; Compl. at ¶¶ 3, 4, 10, 11, 14, 16, 17.) The court finds that these allegations are insufficient to support a claim that plaintiff suffered an injury-in-fact.

         First, although the complaint alleges that plaintiff is physically disabled, the extent of his disability is not clear from his allegations. For example, plaintiff alleges that he “requires . . . both ambulatory and wheelchair assist[ance]” (Compl. at ¶ 14), but does not allege how often he requires ambulatory assistance versus wheelchair assistance, nor does he allege that he required ambulatory or wheelchair assistance when he visited the subject Hotel. This deficiency clouds whether plaintiff has suffered an injury-in-fact. See, e.g., Rutherford v. Cesar's Mexican Rest., LLC, No. 19-cv-1416-LAB (JLB), 2019 WL 4193392, at *1 (S.D. Cal. Sept. 3, 2019) (finding that a plaintiff failed to establish Article III standing where he did not allege if he used a wheelchair at the defendant's facility despite pointing out barriers to accessibility that related to wheelchair users).

         Second, plaintiff does not allege what barriers to accessibility he encountered at the Hotel. Plaintiff merely directs the court's attention to Addendum A to his complaint which contains, as in other cases filed by plaintiff, “a series of [fifteen] grainy, murky photographs titled ‘Personal Barrier Encounters,' with brief captions” of barriers he purportedly encountered at the Hotel, but “does not identify any barriers that would affect Strojnik, deny him equal access, or deter him from staying at the hotel.” Strojnik v. 1315 Orange LLC, No. 19-cv-1991-LAB (JLB), 2019 WL 5535766, at *2 (S.D. Cal. Oct. 25, 2019). Indeed, the captions under each of the fifteen photographs-such as “Security latch too high, ” “Not everyone is welcome, ” “Grab bar - plumbing interference, ” “flush control on the wrong side of tank, ” etc. (Compl. at 8-11)-are bare legal conclusions cast in the form of factual allegations, with no specification as to how any alleged barrier violates any aspect of the ADA or any related accessibility guidelines. Although plaintiff references the ADAAG in his ...