1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

6

7 BRIAN WHITAKER, Case No. 21-cv-03711-PJH 8 Plaintiff,

9 v. ORDER DENYING DEFENDANT’S MOTION TO DISMISS 10 MARSO LLC, Re: Dkt. No. 12 11 Defendant. 12

13 14 Before the court is defendant’s motion to dismiss plaintiff’s complaint. The matter 15 is fully briefed and suitable for decision without oral argument. Accordingly, the hearing 16 set for October 7, 2021, is VACATED. Having read the parties’ papers and carefully 17 considered their arguments and the relevant legal authority, and good cause appearing, 18 the court hereby rules as follows. 19 I. BACKGROUND 20 As alleged in the complaint, plaintiff Brian Whitaker “is a California resident with 21 physical disabilities. He is substantially limited in his ability to walk. He suffers from a C-4 22 spinal cord injury. He is a quadriplegic. He uses a wheelchair for mobility.” Compl. ¶ 1. 23 Defendant Marso, LLC, owned restaurant Vitality Bowls located at or about 835 24 Middlefield Rd, Redwood City, California, in May 2021. 25 Plaintiff visited Vitality Bowls in May 2021. Compl. ¶ 8. He encountered physical 26 barriers in the form of dining surfaces that were inaccessible to persons using 27 wheelchairs. Compl. at ¶ 10. Specifically, the outside dining surface options lacked 1 Relevant to this motion, plaintiff pleads that he “will return to the Restaurant to 2 avail himself of its goods or services and to determine compliance with the disability 3 access laws once it is represented to him that the Restaurant and its facilities are 4 accessible.” Compl. ¶ 20. 5 The complaint in this action was filed May 18, 2021. Dkt. 1. It alleges (1) a 6 violation of the Americans with Disabilities Act (“ADA”),

(a), Compl. ¶¶ 7 22-28, and (2) a violation of the Unruh Civil Rights Act (“Unruh Act”),

51-53, Compl. ¶¶ 29-32. As to the ADA claim, plaintiff requests injunctive relief—the only 9 form of relief the ADA affords private plaintiffs, Oliver v. Ralphs Grocery Co.,

903, 905 (9th Cir. 2011);

(a). See Compl. at p.7. Plaintiff also seeks 11 an unspecified amount of statutory damages under the Unruh Act,

. 12 See Compl. at p.7. Defendant did not answer the complaint, instead filing the motion 13 now at issue. In the instant motion, defendant asks the court to dismiss the entirety of 14 plaintiff’s complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. 15 In support of its motion, defendant submits (1) a chart showing a list of ADA 16 lawsuits filed by plaintiff, Brian Whitaker, and (2) a copy of selected pages of the 17 deposition of Brian Whitaker taken in the case of Whitaker v. Cohen, No. CV 20-98 MWF 18 (MRWX),

(C.D. Cal. 2020), which was in turn filed and used by the 19 court in the matter of Whitaker v. BPP East Union, LLC, Case No. 2:20-cv-06818-MWF 20 (Ex) (C.D. Cal. 2020). See Dkt. 12-3 & 12-4. Defendant does not submit a request for 21 judicial notice. 22 In support of his opposition, plaintiff submits a declaration describing his monthly 23 travel to the Bay Area and his affinity for healthy food such as that served at Vitality 24 Bowls. Dkt. 15-1. 25 II. DISCUSSION 26 Defendant argues that the case should be dismissed for lack of subject matter 27 jurisdiction where plaintiff lacks Article III standing to pursue his ADA claim. Defendant 1 return to the restaurant. 2 A. Legal Standard 3 The court has an ongoing obligation to ensure that it has subject matter jurisdiction 4 such that “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the 5 court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). A challenge to subject matter 6 jurisdiction may be facial or factual. Safe Air for Everyone v. Meyer,

, 1039 7 (9th Cir. 2004). Where the attack is factual, “the court need not presume the truthfulness 8 of the plaintiff's allegations,” and may review extrinsic evidence beyond the complaint 9 without converting a motion to dismiss into one for summary judgment.

. 10 Once the moving party has made a factual challenge by offering affidavits or other 11 evidence to dispute the allegations in the complaint, the party opposing the motion must 12 “present affidavits or any other evidence necessary to satisfy its burden of establishing 13 that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of Chico, 14

(9th Cir. 1989); see also Savage v. Glendale Union High Sch. Dist. 15 No. 205,

, 1040 n.2 (9th Cir. 2003). 16 B. Analysis 17 As the Supreme Court has construed the “case” or “controversy” requirement of 18 Article III standing, a plaintiff must show three things in support of standing:

19 First [he must have] suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and 20 particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection 21 between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury 22 will be redressed by a favorable decision. 23 Lujan v. Defenders of Wildlife,

(1992) (quotations and citations 24 omitted). Because injunctive relief is the only relief available to private ADA plaintiffs, a 25 plaintiff alleging ADA violations must establish standing to pursue injunctive relief by 26 demonstrating “a real and immediate threat of repeated injury in the future.” Chapman v. 27 Pier 1 Imports (U.S.) Inc.,

(9th Cir. 2011); see also Fortyune v. Am. 1 standing “either by demonstrating deterrence, or by demonstrating injury-in-fact coupled 2 with an intent to return to a noncompliant facility.” Chapman,

. 3 Assessment of constitutional standing in civil rights cases is viewed broadly, “especially 4 where, as under the ADA, private enforcement suits ‘are the primary method of obtaining 5 compliance with the Act.’” Doran v. 7-Eleven, Inc.,

(9th Cir. 2008) 6 (quoting Trafficante v. Metro. Life Ins. Co.,

(1972)). 7 Specifically considering a standing challenge questioning an ADA plaintiff’s intent 8 to return to a noncompliant facility far from home, the Ninth Circuit has found standing 9 “where a plaintiff demonstrates an intent to return to the geographic area where the 10 accommodation is located and a desire to visit the accommodation if it were made 11 accessible.” D’Lil v. Best W. Encina Lodge & Suites,

(9th Cir. 12 2008); see also Pickern v. Holiday Quality Foods Inc.,

(9th Cir. 13 2002). In D’Lil, the appellate panel held that a Sacramento-based ADA tester 14 demonstrated her intent to return to the Santa Barbara area based on testimony that she 15 regularly visited the area prior to her stay at the offending hotel, including 1-3 annual 16 visits for both business and pleasure. Id. at 1037. Further, the ADA tester demonstrated 17 her intent to return to the defendant’s hotel once it was made accessible where she 18 declared her affinity for the hotel’s location, price, and amenities. Id. at 1038. The panel 19 additionally concluded that the plaintiff’s litigation history, including over 60 ADA lawsuits, 20 was not sufficient to impugn her credibility. Id. at 1040. 21 Here, defendant attacks plaintiff’s standing on the premise that he insufficiently 22 alleges his intent to return to Vitality Bowls. Whitaker lives some 360 miles away from 23 Vitality Bowls’ Redwood City location, and defendant suggests that it is both difficult and 24 unlikely for him to return. 25 Whitaker describes in his declaration that he frequently travels to the Bay Area 26 because he loves the area and is considering moving to Northern California. Dkt. 15-1 ¶¶ 27 3, 5. He describes his regular travel by various modes of transportation despite not 1 distance between Whitaker’s home and defendant’s restaurant, he has alleged his intent 2 to return to the Bay Area. The court will assess plaintiff’s credibility and sincerity on a 3 fuller factual record. For instance, discovery might reveal the actual infrequency of 4 plaintiff’s trips to the Bay Area. 5 Defendant additionally highlights that Whitaker has sued over 1400 businesses 6 based on alleged barriers to his disability, and he pleaded in each of those lawsuits an 7 improbable intent to return to each of those businesses. However, courts in this circuit 8 are specifically cautioned against relying on a plaintiff’s past ADA litigation as a reason to 9 question the sincerity of a plaintiff’s intent to return to an establishment. See D’Lil, 538 10 F.3d at 1040. In D’Lil, the panel explained that “[f]or the ADA to yield its promise of equal 11 access for the disabled, it may indeed be necessary and desirable for committed 12 individuals to bring serial litigation advancing the time when public accommodations will 13 be compliant with the ADA.” Id. 14 The court therefore finds that these allegations, when considered in the light most 15 favorable to plaintiff, as they should be at this stage, adequately allege an intention to 16 return to the restaurant. See D’Lil,

(finding allegations sufficient to 17 establish standing “where a plaintiff demonstrates an intent to return to the geographic 18 area where the accommodation is located and a desire to visit the accommodation if it 19 were made accessible”); Doran,

(finding plaintiff had standing despite 20 living 550 miles from the 7-Eleven at issue). 21 III. CONCLUSION 22 For the foregoing reasons, the court DENIES defendant’s motion to dismiss. 23 IT IS SO ORDERED. 24 Dated: September 20, 2021 25 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 26 United States District Judge

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