1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRIAN WHITAKER, Case No. 21-cv-03045-JD

8 Plaintiff, ORDER RE MOTION TO DISMISS v. 9 Re: Dkt. No. 15 10 AMT TECH, INC., Defendant. 11

12 13 The motion to dismiss filed by defendant AMT Tech, Inc., Dkt. No. 15, is suitable for 14 decision without oral argument pursuant to Civil L.R. 7-1(b). The hearing set for August 19, 15 2021, is vacated, and the request to dismiss plaintiff Whitaker’s Americans with Disabilities Act 16 (ADA) claim is denied. 17 AMT’s main argument is that Whitaker v. Tesla Motors, Inc.,

(9th Cir. 18 2021), a case brought by the same plaintiff here, bars the ADA claim. In Whitaker, the circuit 19 panel affirmed a dismissal of Whitaker’s claims because the complaint alleged only that Tesla 20 “failed to provide accessible service counters,” without stating whether the counters were too low, 21 too high, or inaccessible for a different reason.

. The panel concluded that, “[w]ithout 22 this sort of factual detail,” Tesla was “left in the dark about how the service counters denied 23 Whitaker from full and equal enjoyment of the premises.”

24 Whitaker’s complaint here, Dkt. No. 1, does not suffer from the same paucity of facts. He 25 alleges that AMT’s restaurant was not accessible due to a “lack of sufficient knee or toe clearance 26 under the outside dining surfaces for wheelchair users.” Dkt. No. 1 ¶ 12. This is enough to put 27 AMT on notice and to state a plausible claim for relief under the ADA. 1 Business Administration indicates that certain ADA regulations apply only to fixed or built in 2 || elements of buildings and structures. See Dkt. No. 15 at 4 and Exs. B,C. AMT suggests that the 3 ADA claim should be dismissed because the complaint did not state whether the table was fixed or 4 || not. Dkt. No. 15 at 5. 5 The point is not well taken. To start, the sufficiency of a complaint for Rule 12(b)(6) 6 || purposes is determined in the first instance within the four corners of the complaint. See Meek v. 7 || SkyWest, Inc., No. 17-CV-01012-JD,

, at *3 (N.D. Cal. Dec. 16, 2019). AMT’s 8 || request for judicial notice of the online pamphlet, Dkt. No. 15 at 4, is denied. But even if the 9 || Court were to consider the pamphlet, AMT’s reliance on it is misplaced. It is true that the ADA 10 || regulations provide specifications for knee and toe clearance for “fixed or built in seating or 11 tables,” 28 C.F.R. 36.406(b); 36 C.F.R., Part 1191, Appendix D, § 226.1. However, the better 12 || reading of this provision is that fixed or built in elements (like a counter or booth) must comply 5 13 with those specifications, not that the ADA in general applies only to fixed or built in architectural 14 || elements, as AMT would have it. The regulations do not vitiate the broader duty imposed on 3 15 || public accommodations to “take reasonable steps to provide disabled guests with a like 16 experience.” Baughman vy. Walt Disney World Co.,

(9th Cir. 2012); see also 3 17 Fortyune v. Am. Multi-Cinema, Inc.,

(9th Cir. 2004). 18 The parties are directed to file by September 7, 2021 a joint proposed case scheduling 19 || order for the Court to consider 20 IT IS SO ORDERED. 21 Dated: August 16, 2021 22 23 JAMES/PONATO- United States District Judge 25 26 27 28