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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 JOSE TRUJILLO, Case No. 1:19-cv-00891-SAB

12 Plaintiff, ORDER VACATING DECEMBER 4, 2019

HEARING AND GRANTING PLAINTIFF’S

13 v. MOTION FOR LEAVE TO FILE A FIRST

AMENDED COMPLAINT

14 MARISCOS COSTA AZUL INCORPORATED, et al., (ECF Nos. 21, 22, 24) 15 Defendants. FIVE DAY DEADLINE 16

17 18 Jose Trujillo (“Plaintiff”) filed this action alleging violations of the Americans with 19 Disabilities Act, 42 U.S.C. § 12101 et seq. and state law. Currently before the Court is 20 Plaintiff’s motion for leave to file a first amended complaint. 21 The Court, having reviewed the record, finds this matter suitable for decision without oral 22 argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on 23 December 4, 2019 will be vacated and the parties will not be required to appear at that time. 24 I. 25 PROCEDURAL HISTORY 26 Plaintiff filed the complaint in this action against Mariscos Costa Azul Incorporated, 27 Daniel Martin, Fernando Martin, Ronnie Martin, and Eduardo Martin (collectively “Defendants”) on June 28, 2019. (ECF No. 1.) Defendants filed answers to the complaint on 1 August 26, 2019. (ECF Nos. 10, 11, 13.) The parties have consented to the jurisdiction of the 2 magistrate judge and this matter has been reassigned to the undersigned for all purposes. (ECF 3 Nos. 12, 14, 16, 17.) On September 11, 2019, a scheduling order issued in the action. (ECF No. 4 20.) 5 On November 11, 2019, Plaintiff filed a motion for leave to file a first amended 6 complaint. (ECF No. 21.) On November 15, 2019, Defendants Daniel Martin, Fernando Martin, 7 Ronnie Martin, and Eduardo Martin filed an opposition to the motion to amend and Defendant 8 Mariscos Costa Azul Incorporated joined in the opposition. (ECF Nos. 22, 23.) On November 9 26, 2019, Plaintiff filed a reply. 10 II. 11 LEGAL STANDARD 12 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend their 13 pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. 14 Civ. P. 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent 15 of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 16 15(a)(2). 17 In determining whether to grant leave to amend after an answer has been filed, the court 18 considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) 19 futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” 20 Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); accord Madeja v. Olympic Packers, LLC., 21 310 F.3d 628, 636 (9th Cir. 2002); Washington State Republican Party v. Washington State 22 Grange, 676 F.3d 784, 797 (9th Cir. 2012). The factors are not given equal weight and futility 23 alone is sufficient to justify the denial of a motion to amend. Washington v. Lowe’s HIW Inc., 24 75 F.Supp.3d 1240, 1245 (N.D. Cal. 2014), appeal dismissed (Feb. 25, 2015). “[I]t is the 25 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 26 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent prejudice, or a 27 strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 15(a) in 1 III. 2 DISCUSSION 3 Plaintiff moves to amend the complaint to allege additional barriers to his access to the 4 facility that were identified during a site inspection that occurred on September 30, 2019. 5 Defendants have filed a limited opposition to the motion to amend on the ground that they 6 believe the additional barriers in the parking lot address a parking lot that is owned and 7 maintained by the City of Tulare. Defendants state that the issue is not properly before the Court 8 but they have filed the objection to preserve any and all rights and objections to the first 9 amended complaint. Plaintiff replies that Plaintiff’s opposition improperly raises issues of 10 disputed fact that are subject to proof. Plaintiff further contends that Defendants will not be 11 prejudiced by the inclusion of the additional barriers that have been identified as the original 12 complaint already alleges barriers in the parking lot. 13 Here, there is no evidence that Plaintiff has sought amendment of the complaint in bad 14 faith or with undue delay. The scheduling order provided that any motion to amend the 15 complaint must be filed no later than November 6, 2019. (ECF No. 20 at 2.) Since the motion 16 was filed prior to the expiration of the deadline to amend, Rule 15(a) governs and leave to amend 17 shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). The Ninth Circuit has 18 stressed that Rule 15 favors amendments, and that this policy is to be applied with extreme 19 liberality. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001); Ascon 20 Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). 21 Plaintiff filed a timely motion to amend to allege the additional barriers identified after a 22 site inspection. The inspection of the property occurred on September 30, 2019. Plaintiff sought 23 a stipulation for amendment of the complaint and, when the defendants refused to stipulate, the 24 motion to amend was filed. 25 The Ninth Circuit has held that “for purposes of Rule 8, a plaintiff must identify the 26 barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint 27 itself; a defendant is not deemed to have fair notice of barriers identified elsewhere.” Moeller v. 1 Co., 654 F.3d 909 (9th Cir. 2011)). A complaint provides fair notice to the defendant where each 2 non-compliant architectural feature is alleged in the complaint. Oliver, 654 F.3d at 908. 3 Further, a plaintiff need not have encountered every barrier that bars his access to seek an 4 injunction to remove the barriers. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 5 (9th Cir. 2002). “[W]hen an ADA plaintiff has suffered an injury-in-fact by encountering a 6 barrier that deprives him of full and equal enjoyment of the facility due to his particular 7 disability, he has standing to sue for injunctive relief as to that barrier and other barriers related 8 to his disability. . . .” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). 9 Accordingly, Plaintiff may amend his complaint to allege all identified barriers that relate to his 10 disability in order to seek injunctive relief as to those barriers. 11 This is Plaintiff’s first request to amend the complaint and Defendants have not argued 12 that they would be prejudiced in any manner if leave to amend is granted. As Plaintiff argues, 13 the original complaint alleges barriers in the parking lot and this is a matter that can be addressed 14 during discovery and raised on summary judgment. The Court finds no prejudice to Defendants 15 by allowing amendment of the complaint. 16 Finally, Defendants concede that the issue of whether the parking lot belongs to the 17 County of Tulare is not properly before this Court in the current motion. Defendants have not 18 rebutted the presumption in favor of granting leave to amend. See Eminence Capital, 316 F.3d at 19 1052 (Absent prejudice, or a strong showing of any of the remaining factors, a presumption 20 exists under Rule 15(a) in favor of granting leave to amend.). 21 IV. 22 CONCLUSION AND ORDER 23 For the reasons discussed, IT IS HEREBY ORDERED that: 24 1. The hearing set for December 4, 2019 is VACATED; 25 2. Plaintiff’s motion to amend, filed November 6, 2019, is GRANTED; 26 3. Plaintiff shall file the first amended complaint within five (5) days of the date of 27 entry of this order; and 1 4. Defendants shall file a responsive pleading within fourteen (14) days of the date 2 of service of Plaintiff’s amended complaint. 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ November 27, 2019

‘ UNITED STATES MAGISTRATE JUDGE

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