NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE VELEZ, No. 19-55344

Plaintiff-Appellant, D.C. No. 3:18-cv-01840-CAB-

MDD

v.

IL FORNAIO (AMERICA) MEMORANDUM*

CORPORATION; TARTINE, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Jose Velez appeals pro se from the district court’s order dismissing his

action alleging violations of the Americans with Disabilities Act (“ADA”) and

state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

district court’s dismissal for lack of standing. D’Lil v. Best W. Encina Lodge &

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Suites, 538 F.3d 1031, 1035 (9th Cir. 2008). We vacate and remand.

Velez sufficiently alleges Article III standing in his ADA claim against

defendant Il Fornaio (America) Corporation because he pleads that he was deterred

from visiting defendant’s restaurant because of its alleged ADA violations. See

Civil Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1102 (9th

Cir. 2017) (“[Plaintiffs] have alleged . . . that they intend to visit the relevant

hotels, but have been deterred from doing so by the hotels’ noncompliance with the

ADA. They further allege that they will visit the hotels when the non-compliance

is cured. . . . [C]onstruing the factual allegations in the complaint in favor of the

plaintiffs, as we must at this preliminary stage, we conclude that [plaintiffs] have

sufficiently alleged injury in fact. . . . We also conclude that motivation is

irrelevant to the question of standing under Title III of the ADA.”).

Velez also sufficiently alleges statutory standing under the ADA against

defendant because he pleads that his morbid obesity substantially limits his ability

to walk and stand. See Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir.

2014) (“‘An impairment is a disability . . . if it substantially limits the ability of an

individual to perform a major life activity as compared to most people in the

general population.’” (quoting 29 C.F.R. § 1630.2(j)(1)(ii))); see also 42 U.S.C.

§ 12102(2)(A) (listing walking and standing as major life activities per the ADA);

Bragdon v. Abbott, 524 U.S. 624, 641 (1998) (“When significant limitations result

2 19-55344 from the impairment, the definition is met even if the difficulties are not

insurmountable.”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Velez’s motion to consolidate this case with Taylor v. Burlington, Appeal

No. 16-35205, is denied.

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

3 19-55344