Hopson v. Ross Stores, Inc.

          ORDER (ECF NO. 18)

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Presently 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.

         BACKGROUND

         Generally, plaintiff's complaint alleges that plaintiff, who uses a scooter for daily activities, attempted to buy products from DD's Discounts^[1] 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.)

         After 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 5.)

         DISCUSSION

         I. 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 claim.

         Federal 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.

         Rule 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 1121.

         Plaintiff's complaint states a claim for relief

         Defendants' 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.)

         In 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).

         Here, 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 point.

         Plaintiff's ADA cause of action is ...