1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ORLANDO GARCIA, Case No. 21-cv-04575-CRB

9 Plaintiff, ORDER DENYING MOTION TO 10 v. DISMISS, TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT, TO IMPOSE 11 PETER J. BECK, et al., SANCTIONS, AND TO DECLINE SUPPLEMENTAL JURISDICTION 12 Defendants.

13 Plaintiff Orlando Garcia, an individual with physical disabilities who uses a wheelchair, 14 brought suit against Defendants Peter J. Beck, Regia Beck, and Lola’s Chicken Shack, LLC for 15 violation of the Americans with Disabilities Act (ADA) and the Unruh Civil Rights Act. See 16 Comp. (dkt. 1). The case stems from a visit Garcia made to Lola’s Chicken Shack, a restaurant in 17 Alameda, California, in May of 2021. Id. ¶¶ 5, 10. Garcia alleges that, on the date of his visit, the 18 restaurant failed to provide wheelchair accessible paths of travel and failed to provide wheelchair 19 accessible outside dining surfaces. Id. ¶¶ 12–14, 17–19. Garcia alleges that he visited the 20 restaurant “with the intention to avail himself of its goods or services motivated in part to 21 determine if the defendants comply with the disability access laws,” id. ¶ 10, and that he “will 22 return . . . to avail himself of its goods or services and to determine compliance with the disability 23 access laws once it is represented to him that the Restaurant and its facilities are accessible,” id. ¶ 24 27. He adds: “Plaintiff is currently deterred from doing so because of his knowledge of the 25 existing barriers and his uncertainty about the existence of yet other barriers on the site.” Id. 26 Defendants have responded with a long motion1 that asks for several things. Mot. (dkt. 16- 27 1 1). Defendants argue that the Court should dismiss the ADA claim as moot, because “each and 2 every claimed barrier no longer exists.” Id. at 10. They next ask the Court to deem Garcia a 3 vexatious litigant due to the number of ADA cases he has brought. Id. at 10–22. They ask the 4 Court to sanction Garcia’s counsel for bringing so many ADA cases against Alameda businesses. 5 Id. at 22–23. And finally, they ask the Court to decline to exercise supplemental jurisdiction over 6 the Unruh Act claim once it dismisses the ADA claim as moot. Id. at 23. The Court finds this 7 matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1, and 8 VACATES the hearing currently set for November 18, 2021. 9 1. Mootness 10 Defendants argue that the ADA claim is moot because, after Garcia sued, the restaurant 11 hired a consultant and made a number of changes. See Mot. at 2. It now has “an electric door to 12 it[s] entrance such that a level landing is not needed,” and “an ADA compliant outdoor table” with 13 a “new sign directing the disabled to the table.” Id. It also has an ADA policy manual, on which 14 all of its employees have been trained, and an agreement to have the consultant return yearly to 15 check the restaurant’s ADA compliance. Id. at 3–4. Defendants argue that Garcia’s claims are 16 now “moot and should be dismissed for lack of subject matter jurisdiction.” Id. at 10. 17 The actions Defendants claim to have taken are commendable. But they are not 18 necessarily undisputed. “Jurisdictional finding of genuinely disputed facts is inappropriate when 19 ‘the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is 20 dependent on the resolution of factual issues going to the merits of the action.” Sun Valley 21 Gasoline, Inc. v. Ernst Enterprises, Inc.,

(9th Cir. 1983) (internal quotation 22 marks omitted). Here, the same disputed material facts bear on both jurisdiction and the merits. 23 Garcia maintains that the restaurant violates the ADA, while Defendants maintain that it does not. 24 “Defendant[s are] correct that this Court would lack jurisdiction over Plaintiff’s ADA claim if all 25 of the barriers Plaintiff identifies in the FAC have been remediated; but whether the barriers have 26 been adequately remediated is at the heart of the merits of Plaintiff’s ADA claim.” See Johnson v. 27 1 SSR Grp., Inc., No. 15-CV-05094-MEJ,

, at *2 (N.D. Cal. July 11, 2016). 2 Accordingly, the Court will not dismiss the ADA claim as moot. 3 Nor will the Court convert the motion into one for summary judgment. See Mot. at 8–9; 4 Rosales v. United States,

(9th Cir. 1987) (“if the jurisdictional issue and 5 substantive claims are so intertwined that resolution of the jurisdictional question is dependent on 6 factual issues going to the merits, the district court should employ the standard applicable to a 7 motion for summary judgment and grant the motion to dismiss the lack of jurisdiction only if the 8 material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a 9 matter of law.”) (emphasis added). The facts in this case remain disputed. See Opp’n at 6 10 (“Garcia alleges that Defendants’ restaurant [violates the ADA]. . . If that is true, Garcia can 11 prevail and obtain an injunction. If that is wrong, Garcia loses.”). And, as Garcia points out, 12 discovery is stayed pursuant to General Order 56. See id. at 8 (adding that “[i]f notice had been 13 given that a Rule 56 motion was being brought, Johnson would file a 56(d) declaration.”). Garcia 14 also notes that he “desires to have an expert site inspection under Rule 34 to assess the 15 accessibility of the business as well as the recent changes made.” Id. The Court encourages 16 Garcia to do so as soon as possible so that the parties can move the case forward—particularly 17 given his representation that he “will return . . . once it is represented to him that the Restaurant 18 and its facilities are accessible.” See Compl. ¶ 27. 19 2. Vexatious Litigant 20 Defendants ask the Court to deem Garcia a vexatious litigant because he has, according to 21 Defendants, brought 732 ADA cases since 2014, including 31 against business in Alameda in 22 May. See Mot. at 1. Many of those cases “are textually and factually similar.” Id. at 17. And in 23 many or all of those cases, Defendants dispute whether Garcia truly intended to “enjoy” the 24 services of the businesses he visited. Id. at 11–14.2 25

26 2 In their reply brief, Defendants also make the rather insensitive argument that Garcia “failed to mitigate his damages and kept placing himself in harm’s way by traveling over non-compliant 27 public sidewalks.” Reply (dkt. 31) at 5. One would imagine that Garcia would prefer to travel on 1 Defendants do not nearly come close to establishing that Garcia is a vexatious litigant. See 2 Fink v. Gomez,

(9th Cir. 2001) (sanctions appropriate for “frivolousness, 3 harassment, or an improper purpose.”). “[T]he simple fact that a plaintiff has filed a large number 4 of complaints, standing alone, is not a basis for designating a litigant as “vexatious.” Molski v. 5 Evergreen Dynasty Corp.,

(9th Cir. 2007). Garcia does not deny that he is an 6 ADA tester. See Opp’n at 2. Defendants do not approve of this, see Mot. at 12 (“Unfortunately, 7 [the ADA] has been re-written to allow for testers”), but the law permits it, see Civ. Rights Educ. 8 & Enf’t Ctr. v. Hosp. Properties,

, 1101–02 (9th Cir. 2017). The Ninth Circuit has 9 recognized that “[f]or the ADA to yield its promise of equal access for the disabled, it may indeed 10 be necessary and desirable for committed individuals to bring serial litigation advancing the time 11 when public accommodations will be compliant with the ADA.” Molski,

. ADA 12 testers can still be vexatious litigants, just like any litigant can be. But Defendants have failed to 13 demonstrate that Garcia’s cases generally are—or that this case in particular is—meritless, 14 harassing, or improper. Indeed, Defendants here claim to have taken action to bring their 15 restaurant into compliance with the ADA as a direct result of the lawsuit. Mot. at 2–3. 16 Accordingly, the Court will not deem Garcia a vexatious litigant.3 17 3. Sanctions 18 For the same reasons the Court will not deem Garcia a vexatious litigant, it will not 19 sanction Garcia’s counsel “for their actions of filing thirty-one complaints against Alameda 20 County business, including Lola’s, for harassment purposes to extort early settlement without any 21 intention of litigation on the merits.” See Mot. at 22. Garcia and his counsel are permitted to 22 bring ADA cases. It is unfortunate that Defendants “incurred $2000 for the vexatious motion,” 23

24 3 The Court further observes that Defendants’ complaints about Garcia’s impropriety are contained in an oversized brief that on several occasions strikes an uncivil tone. See, e.g., Mot. at 5 (“Since 25 when did it become a civil right to cruise around [and] look for disabled access problems to then decide to visit the business to set it up for an ADA lawsuit?”); id. at 7 (“Not only did Garcia hunt 26 down unsuspecting businesses in Alameda County, but he apparently had time to visit forty-three (43) businesses located in Oakland, California” . . . “The Oakland victims” . . . “Garcia hit China 27 Town”); id. at 21 (“Garcia is also operating his inspection business without an Alameda County 1 id., but Garcia is not responsible for that expenditure. 2 4. Supplemental Jurisdiction 3 Finally, Defendants ask the Court to decline to exercise supplemental jurisdiction over the 4 || Unruh Act claim. See id. at 23. Because the Court is not now dismissing the ADA claim, there is 5 still federal question jurisdiction in this case. See

. 6 The Motion is DENIED. 7 IT ISSO ORDERED. ao kK 8 Dated: November 15 , 2021 CHARLES R. BREYER 9 United States District Judge 10 1] 3s 12

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