United States District Court, E.D. California
ORDER (ECF NO. 18)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
before the court is defendants' motion to dismiss, for
declaratory relief, and for attorneys' fees. (ECF No.
18.) The issues have been fully briefed and the court held a
hearing on the motion on December 6, 2019. For the following
reasons the court: (1) denies defendants' motion in its
entirety; and (2) stays the proceedings for the parties to
complete a site inspection and submit to the court's
Voluntary Dispute Resolution Program (VDRP), as jointly
agreed to by the parties at the hearing.
plaintiff's complaint alleges that plaintiff, who uses a
scooter for daily activities, attempted to buy products from
DD's Discounts at 520 S. Cherokee Lane, Lodi CA. (ECF No.
1 at 2, 4). While in the parking lot plaintiff asserts she
encountered “alleged accessible parking stalls and
alleged access aisles” with “improper slopes
making it more difficult for [plaintiff] to use her wheeled
device.” (Id. at 5.) Plaintiff also alleges
she encountered an entry door that was difficult to open in
her wheeled device due to the door's weight.
(Id.) Plaintiff claims she wishes to patronize the
business in the future, but due to the barriers mentioned
above she cannot. (Id.) Plaintiff's first
amended complaint is substantially similar, but includes the
following additional barriers: unauthorized vehicle signage,
an inaccessible route, inaccessible parking spaces, and
inaccessible parking access aisles. (ECF No. 24 at 7-8.)
defendants filed their motion to dismiss, plaintiff and
defendant Ross Stores, Inc. entered into a settlement
agreement, dismissing Ross Stores from the present action.
(ECF No. 23.) The remaining defendants, J and J Holdings,
LLC, TLWP Investments, LP, and Shane Anderson, are the
landlord-owners of the property in question. (ECF No. 18-2 at
Motion to Dismiss Defendants move to dismiss on two
grounds: (1) that the complaint does not comply with the
pleading requirements of Rule 8; and (2) that defendants have
“upgraded” the parking lot since the visit
described in plaintiff's complaint, mooting her ADA
Rules of Civil Procedure 12(b)(1) allows for a motion to
dismiss based on lack of subject matter jurisdiction. It is a
fundamental precept that federal courts are courts of limited
jurisdiction. K2 Am. Corp. v. Roland Oil & Gas,
653 F.3d 1024, 1027 (9th Cir. 2011). Limits upon federal
jurisdiction must not be disregarded or evaded. Jones v.
Giles, 741 F.2d 245, 248 (9th Cir. 1984). “It is
presumed that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the
party asserting jurisdiction.” Kokkonen v. Guardian
Life Ins. Co., 511 U.S. 375, 377 (1994); K2
Am., 653 F.3d at 1027.
12(b)(1) motions may be either facial, where the inquiry is
confined to the allegations in the complaint, or factual,
where the court is permitted to look beyond the complaint to
extrinsic evidence. See Leite v. Crane Co., 749 F.3d
1117, 1121 (9th Cir. 2014); Safe Air For Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When a
defendant challenges jurisdiction “facially, ”
all material allegations in the complaint are assumed true,
and the court determines whether the factual allegations are
sufficient to invoke the court's subject matter
jurisdiction. See Leite, 392 F.3d at 362;
Meyer, 373 F.3d at 1039. When a defendant makes a
factual challenge “by presenting affidavits or other
evidence properly brought before the court, the party
opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction.” Meyer, 373 F.3d at 1039.
The court need not presume the truthfulness of the
plaintiff's allegations under a factual attack. Wood
v. City of San Diego, 678 F.3d 1075, 1083 n.2 (9th Cir.
2011). The plaintiff must show by a preponderance of the
evidence each requirement for subject-matter jurisdiction,
and as long as the dispute is not intertwined an element of
the plaintiff's cause of action, the court may resolve
any factual disputes itself. Leite, 749 F.3d at
complaint states a claim for relief
first point asserts the complaint does not put them on notice
of the claims being asserted and the grounds upon which the
claims rest. Defendants argue that plaintiff failed to allege
how the barriers “affected her disability in any
way.” (ECF No. 18-2 at 7.) Defendants also take issue
with the complaint being silent about what type of device
plaintiff used on the date in question. They argue that if
plaintiff is using a “mobility scooter, her claim for
relief would be eviscerated.” (Id.)
Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir.
2011), the Ninth Circuit addressed the standing requirements
for ADA cases. The court noted that a complaint does not
allege an injury in fact by merely including a list of
barriers without identifying which barriers an ADA plaintiff
encountered. Id. at 907. Thus, if a plaintiff only
lists barriers but does not “explain how his disability
was affected by [any of] them so as to deny him full and
equal access . . . [plaintiff's] complaint [is]
jurisdictionally defective.” Id. (internal
citations and quotations omitted).
defendants' arguments are better addressed on a motion
for summary judgment. Plaintiff's complaint sufficiently
puts defendants on notice of her claims: that the incline was
too steep, the door was too heavy, and the numerous
allegations in plaintiff's amended complaint. The
complaint specifically states that plaintiff
“personally encountered” the barriers alleged.
(ECF No. 24 at 4-5.) Thus, plaintiff, who is required to use
a mobility scooter due to her disability, has sufficiently
named the barriers and shown how they prevented her from
having full access to the store as a result of her
disability. See Oliver, 654 F.3d at 907. What type
of device plaintiff used may be relevant to whether plaintiff
was sufficiently hindered but has little effect on whether
plaintiff has pleaded facts sufficient to put defendants on
notice of her claims. Accordingly, the court denies this
ADA cause of action is ...