1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 21-cv-01546-HSG

8 Plaintiff, ORDER DENYING MOTION TO DISMISS 9 v. Re: Dkt. No. 15 10 GARDEN COURT INN LLC, 11 Defendant.

12 13 Pending before the Court is Defendant Garden Court Inn, LLC’s motion to dismiss. Dkt. 14 No. 15. The Court finds this matter appropriate for disposition without oral argument and the 15 matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court 16 DENIES the motion. 17 I. BACKGROUND 18 Plaintiff Scott Johnson filed this case on March 4, 2021, and amended the complaint on 19 May 16, 2021. See Dkt. No. 11 (“FAC”). Plaintiff is a level C-5 quadriplegic, and uses a 20 wheelchair to get around. Id. at ¶ 1. Plaintiff alleges that on July 2, 2019, he visited the Best 21 Western Plus Garden Court Inn located in Fremont, California, which is owned by Defendant. Id 22 at ¶¶ 3, 8. Although when booking the hotel room on June 29 Plaintiff noted that only one king- 23 sized room was identified as being “accessible,” he requested a room with two queen beds, and in 24 the special request area, Plaintiff identified his disability and requested an accessible room with 25 two beds. Id. at ¶ 12. Plaintiff alleges that when he arrived, “the reserved parking was not 26 accessible because of the presence of slopes in the stalls and access aisles that exceeded 2.1%.” 27 Id. at ¶ 13. An employee subsequently told him that there were no accessible rooms with two beds 1 requested an accessible room. Id. at ¶ 16. However, when he arrived “the parking was still 2 inaccessible due to the slopes and location,” and he was told that his request for a room with two 3 beds could not be accommodated because it “was taken.” Id. at ¶ 17. Plaintiff said he returned a 4 month later, and the parking issue was not fixed. Id. at ¶ 18. Plaintiff also asserts that the hotel’s 5 online reservation system is inadequate for him to “assess independently whether a given hotel or 6 guest room meets his accessibility needs.” Id. at ¶ 29. He further alleges that he would return to 7 the hotel “when it has been represented to him that the hotel’s website reservation system is 8 accessible.” Id. at ¶ 31. 9 On the basis of these facts, Plaintiff brings causes of action for violations of (1) the 10 American with Disabilities Act of 1990,

, et seq.; and (2) the Unruh Civil 11 Rights Act, Cal. Civ. Code §§ 51–53. Id. at ¶¶ 35–49. Defendant now moves to dismiss 12 Plaintiff’s complaint. Dkt. No. 15. 13 II. DISCUSSION 14 Defendant argues that the Court lacks subject matter jurisdiction over this case and that 15 Plaintiff lacks Article III standing to pursue his ADA claim. More specifically, Defendant 16 contends that this ADA action is moot because its hotel fully complies with the requirements 17 under the ADA. See Dkt. No. 15 at 6–7. And in the alternative, Defendant asserts that Plaintiff 18 lacks standing because he has not adequately alleged an intent to return to the hotel. See id. at 8– 19 12. Lastly, Defendant argues that the Court should dismiss Plaintiff’s state law claim for lack of 20 supplemental jurisdiction. See id. at 14–17. 21 A. Mootness 22 Defendant first moves to dismiss Plaintiff’s ADA claim under Federal Rule of Civil 23 12(b)(1), arguing that the claim is moot because the hotel complies with the ADA, and the 24 “alleged violations either do not exist or are false.” Dkt. No. 15 at 6–7. “Mootness is a 25 jurisdictional issue, and federal courts have no jurisdiction to hear a case that is moot, that is, 26 where no actual or live controversy exists.” See Foster v. Carson,

(9th Cir. 27 2003) (quotation omitted). 1 subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either 2 facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court 3 is permitted to look beyond the complaint to extrinsic evidence. See Wolfe v. Strankman,

(9th Cir. 2004); Savage v. Glendale Union High School Dist. No. 205,

, 5 1040 n.2 (9th Cir. 2003). In a factual challenge “the challenger disputes the truth of the 6 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for 7 Everyone v. Meyer,

(9th Cir. 2004). In evaluating a facial attack, “[t]he court 8 need not presume the truthfulness of the plaintiff’s allegations.”

9 Defendant contends that its hotel has the required number of accessible parking spaces; the 10 parking lot meets all applicable slope requirements; and the hotel has the correct number of ADA 11 accessible rooms, including those with two beds. See Dkt. No. 15 at 6–7. In support of these 12 assertions, Defendant proffers a declaration from Roman Garcia, the general manager of the hotel. 13 See Dkt. No. 15-2 (“Garcia Decl.”). Mr. Garcia attaches photographs of the parking lot, and 14 contends that the hotel’s parking “meets all applicable design standards including slope 15 requirement,” and “[n]o part of the accessible parking spaces or access aisles has a slope greater 16 than 1:50 . . . .” Id. at ¶ 2; see also id. at ¶ 6(a); Dkt. No. 15-2, Ex. 1. Mr. Garcia also states that 17 the hotel provides ADA accessible rooms, including three “‘Double Queen’ rooms.” See id. at 18 ¶¶ 3–4, 6(b)–(c). 19 In essence, Defendant suggests that the Court should decide the merits of Plaintiff’s case at 20 the motion to dismiss stage before any site inspection has occurred and before any discovery has 21 been taken. The Ninth Circuit has explained that “[j]urisdictional finding of genuinely disputed 22 facts is inappropriate when the jurisdictional issue and substantive issues are so intertwined that 23 the question of jurisdiction is dependent on the resolution of factual issues going to the merits of 24 an action.” Id. (quotation omitted). “The question of jurisdiction and the merits of an action are 25 intertwined where a statute provides the basis for both the subject matter jurisdiction of the federal 26 court and the plaintiff’s substantive claim for relief.” Id. 27 Defendant acknowledges that here, the jurisdictional facts overlap with the merits of the 1 Nevertheless, Defendant contends that the Court may resolve these factual issues because Plaintiff 2 did not provide its own, competing evidence. See Dkt. No. 21 at 1–4. Defendant concludes that 3 there are therefore no factual disputes for the Court to resolve. Id. 4 The Ninth Circuit has cautioned that “[j]urisdictional dismissals in cases premised on 5 federal-question jurisdiction are exceptional,” Safe Air,

(quotation omitted), and 6 the Court declines the invitation to wade into the merits based on this record. The Court finds that 7 Mr. Garcia’s declaration is of little evidentiary value. It lacks detail and is conclusory in nature. 8 Moreover, although Mr. Garcia concludes that the hotel is ADA compliant, he does not explain 9 why he is competent to make such evaluations or how he reached these conclusions. He does not 10 appear to be offered as an expert in ADA compliance. And the Court has concerns about adopting 11 the self-serving statements of the general manager of the hotel. To the extent Defendant suggests 12 that Plaintiff nevertheless should have provided his own external evidence, the Court notes that 13 under General Order No. 56, all discovery is still stayed. Plaintiff also indicates that the parties 14 have not conducted the site inspection yet, see Dkt. No. 20 at 4, and Defendant does not appear to 15 contest this. Plaintiff, therefore, has not had an opportunity to develop the evidence he may need 16 to rebut Defendant’s asserted facts. 17 Defendant cites several ADA cases in which district courts granted motions to dismiss on 18 mootness grounds under Rule 12(b)(1). See Dkt. No. 20 at 1–4. But even if the Court found their 19 reasoning persuasive, they are factually distinguishable. These cases do not suggest that the Court 20 can rely solely on a defendant’s own assertions that it complies with the ADA to dismiss an ADA 21 claim on mootness grounds. Rather, the defendants in these cases provided evidence from 22 accessibility specialists and other experts. See, e.g., Johnson v. Techbusiness Res., LLC, No. 20- 23 CV-06048-BLF,

, at *2 (N.D. Cal. Nov. 28, 2020); Johnson v. Case Ventures, 24 LLC, No. 5:19-CV-02876-EJD,

, at *2 (N.D. Cal. Aug. 17, 2020); Shayler v. 25 Patel, No. 220CV00235ODWKSX,

, at *2 (C.D. Cal. July 31, 2020); Langer v. 26 Nenow,

, at *4–5 (S.D. Cal. Feb. 12, 2020); Johnson v. Melehan, No. 5:16-CV- 27 04064-HRL,

, at *1–2 (N.D. Cal. Aug. 22, 2017). As noted above, the Court 1 compliance. 2 The Court therefore denies Defendant’s motion on this basis.1 Accord Johnson v. Rando, 3 No. 21-CV-00673-BLF,

, at *4 (N.D. Cal. July 15, 2021). 4 B. Standing 5 Defendant next argues that Plaintiff lacks standing to bring an ADA claim or seek 6 injunctive relief. See Dkt. No. 15 at 7–14. 7 A disabled person claiming access discrimination must establish Article III standing to 8 maintain a suit under the ADA. See Chapman v. Pier 1 Imps. (U.S.) Inc.,

(9th 9 Cir. 2011). To establish Article III standing, a plaintiff must have “(1) suffered an injury in fact, 10 (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 11 redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

,

, 12 1547 (2016), as revised (May 24, 2016). Because the only remedy available to a private litigant 13 under the ADA is an injunction, the Ninth Circuit has held that a plaintiff “must demonstrate a real 14 and immediate threat of repeated injury in the future.” Chapman,

(quotations 15 omitted). He may do so by establishing that he has suffered an “injury-in-fact coupled with an 16 intent to return,” or alternatively, “deterrence from returning to the premises.”

. 17 Defendant argues that Plaintiff cannot show a real and immediate threat of repeated injury 18 because he has failed to establish either a genuine intent to return or that he has been deterred from 19 returning to the hotel. See Dkt. No. 15 at 7–14. In support of Defendant’s argument that Plaintiff 20 does not intend to return to the hotel, it cites the proximity of the hotel to Plaintiff’s residence, 21 Plaintiff’s past patronage of the business, and the indefinitiveness of his plans to return. See Mot. 22 at 9–12. At bottom, however, Defendant appears to suggest that the Court should look skeptically 23 at Plaintiff’s intent to return to the hotel based on his prior history of litigating ADA claims. See, 24 e.g.,

at 9 (citing “Johnson’s extensive litigation history and no ostensible reason to return to 25

26 1 In reply, Defendant appears to argue that Plaintiff’s claim that the hotel’s online reservation system is deficient should also be dismissed as moot because its website shows that the hotel has 27 seven ADA accessible rooms. See Dkt. No. 21 at 4–5. The Court does not consider arguments 1 Defendant’s business” as a reason to reject Plaintiff’s asserted intent to return); id. at 10 (asking 2 the Court to consider that “it appears to be Johnson’s standard procedure to visit a purportedly 3 non-compliant business three times before suing”); id. at 11 (noting “the sheer volume of 4 Johnson’s litigation in which he claims in every case that he intends to return to the defendant’s 5 business”). 6 The Ninth Circuit has specifically cautioned courts against relying on a plaintiff’s past 7 ADA litigation as a reason to question the sincerity of a plaintiff’s intent to return to an 8 establishment. See D’Lil v. Best W. Encina Lodge & Suites,

(9th Cir. 2008). 9 In D’Lil, the Court explained that “[f]or the ADA to yield its promise of equal access for the 10 disabled, it may indeed be necessary and desirable for committed individuals to bring serial 11 litigation advancing the time when public accommodations will be compliant with the ADA.”

12 Here, Plaintiff has acknowledged that he is “a veteran ADA tester” and “is aware that he 13 needs to return to the hotel website and to patronize the hotel in order to have standing to see that 14 the hotel comes into compliance with the ADA’s mandate regarding the accessibility of its hotel 15 and of its reservation policies.” See FAC at ¶ 31. He notes that as such, he “frequents businesses 16 to determine if they have complied with the anti-discrimination mandates of the ADA.” See

at 17 ¶ 30. Plaintiff alleges that he has reason to frequent Defendant’s hotel “to assess these policies 18 and facilities for compliance with the ADA,” but also because he travels to Fremont “on a regular 19 and consistent basis.” See id. at ¶¶ 15, 31–33. In fact, here, he alleges that he has stayed at this 20 specific hotel twice, and visited it a total of three times. See id. at ¶¶ 12–14, 16–17. And he 21 further alleges that he “will use the hotel’s website reservation system to book a room and travel to 22 the hotel when it has been represented to him that the hotel’s website reservation system is 23 accessible.” Id. at ¶ 31. 24 The Court finds that these allegations, when considered in the light most favorable to 25 Plaintiff, as they must be at this stage, constitute more than “[s]peculative, ‘some day’ intentions 26 of visiting a facility,” as Defendant urges. See Dkt. No. 15 at 8–9, 11. Plaintiff has adequately 27 alleged an intention to return to the hotel. See D’Lil,

(finding allegations 1 area where the accommodation is located and a desire to visit the accommodation if it were made 2 accessible”); Doran v. 7-Eleven, Inc.,

(9th Cir. 2008) (finding plaintiff had 3 standing despite living 550 miles from the 7-Eleven at issue). 4 The Court understands that Defendant questions Plaintiff’s motivation to return to the 5 hotel, but that is distinct from Plaintiff’s intention to return. See D’Lil,

. The 6 Ninth Circuit has explicitly stated that a plaintiff’s status as an “ADA tester” does not deprive him 7 of standing because “motivation is irrelevant to the question of standing under Title III of the 8 ADA.” See Civ. Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr.,

(9th Cir. 9 2017). Defendant is of course free to challenge the sincerity of Plaintiff’s intention to return to the 10 hotel later in this litigation, but the Court declines to make credibility determinations at this 11 preliminary stage.2 12 C. Supplemental Jurisdiction 13 Because the Court denies Defendant’s motion to dismiss Plaintiff’s federal claims for lack 14 of subject matter jurisdiction, it does not reach Defendant’s argument that the Court lacks 15 supplemental jurisdiction over the state law claim. See Mot. at 14–15. But Defendant also urges 16 the Court to decline supplemental jurisdiction over Plaintiff’s state law claim in any event. See

17 at 15–17. The Court is not persuaded. 18 Defendant argues that “exceptional circumstances” exist to decline supplemental 19 jurisdiction. See Dkt. No. 15 at 15–17 (citing

(c)(4)). Defendant argues that 20 Plaintiff’s state law Unruh Act claim meets this strict standard because “Plaintiff is forum 21 shopping his Unruh Act claim into federal court to avoid the pleading requirements of California 22 state court.” Id.; see also

Defendant also argues that the 23 monetary relief under the Unruh Act “substantially predominate[s] over federal injunctive relief” 24

25 2 To the extent that Defendant suggests that Plaintiff also lacks standing because the alleged barriers do not exist, see Dkt. No. 15 at 14, the Court reiterates that this is a fact question and 26 cannot be assessed on a motion to dismiss. 3 Under § 425.50, a “high-frequency litigant” plaintiff must allege: (1) the number of ADA 27 complaints that plaintiff filed in the past twelve months; (2) the reason plaintiff was in the region 1 in this case because injunctive relief is also available under the Unruh Act. See Dkt. No. 15 at 15- 2 17. Myriad courts in this district have considered and rejected this argument because a party’s 3 motive in seeking federal jurisdiction is generally immaterial, and having parallel proceedings in 4 two different fora would be needlessly inefficient. See, e.g., Johnson v. Medvill 1, LLC, No. 18- 5 CV-04150-LHK,

, at *7 (N.D. Cal. Dec. 28, 2020) (collecting cases). The 6 || Court finds the reasoning of these cases persuasive and adopts it here. Jd. The Court therefore 7 exercises supplemental jurisdiction over Plaintiff's Unruh Civil Rights Act claim. 8 || I. CONCLUSION 9 Accordingly, the Court DENIES the motion. The initial case management scheduling 10 order, Dkt. No. 5, remains in effect. 11 IT IS SO ORDERED. 12 Dated: 7/29/2021 Alan 5 Nhl) 14 HAYWOOD S. GILLIAM, JR. United States District Judge

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