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8 United States District Court 9 Central District of California

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11 LUIS MARQUEZ, Case № 2:20-CV-05589-ODW (GJSx)

12 Plaintiffs,

ORDER GRANTING MOTION TO

13 v.

DISMISS [17]

14 HAYRAPT GREGORIAN, et al., ZIBA GREGORIAN, et al., 15

Defendants. 16

17 18 I. INTRODUCTION 19 Now pending before the Court is Defendants Hayrapt Gregorian and Ziba 20 Gregorian’s Motion to Dismiss Plaintiff Luis Marquez’s Complaint alleging 21 Defendants violated the Americans with Disabilities Act (“ADA”). (Mot. to Dismiss 22 (“Motion” or “Mot.”), ECF No. 17.) Marquez opposes the Motion. (Opp’n to Mot. 23 (Opp’n”), ECF No. 27.) For the reasons below, the Court GRANTS the Motion.1 24 II. BACKGROUND 25 Marquez is a paraplegic who uses a wheelchair for mobility. (Compl. ¶ 1, ECF 26 No. 1.) Defendants own the real property located at 10530 Carmenita Road in 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 Whittier, California. (Id. ¶ 3.) In February 2020, Marquez went “to the property to 2 shop at Top Tires . . . with the intention to avail himself of its good[s] or services and 3 to assess the business for compliance with the disability access laws.” (Id. ¶ 8.) Top 4 Tires is a business establishment open to the public and a place of public 5 accommodation. (Id. ¶ 9.) On the date Marquez visited Top Tires, Defendants “failed 6 to provide wheelchair accessible sales counters in conformance with the ADA 7 Standards.” (Id. ¶ 10.) As a wheelchair user, Marquez “personally encountered these 8 barriers,” which “relate to and impact [his] disability.” (Id. ¶¶ 12–13.) Marquez 9 alleges that he “will return to Top Tires [to] avail himself of its goods or services and 10 to determine compliance with the disability access laws once it is represented to him 11 that Top Tires and its facilities are accessible.” (Id. ¶ 17.) However, Marquez is 12 “currently deterred from doing so because of his knowledge of the existing barriers.” 13 (Id.) 14 Based on these allegations, Marquez sued Defendants for violating the ADA.2 15 (Id. ¶¶ 19–25.) Defendants move to dismiss Marquez’s Complaint for lack of 16 standing and failure to state a claim. (Mot. 1.) 17 III. LEGAL STANDARD 18 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) allows a defendant to seek 19 dismissal of a complaint for lack of subject matter jurisdiction. A defendant may 20 bring a Rule 12(b)(1) motion to dismiss based on a lack of standing. See White v. Lee, 21 227 F.3d 1214, 1242 (9th Cir. 2000) (“Because standing . . . pertain[s] to a federal 22 court’s subject-matter jurisdiction under Article III, [it is] properly raised in a motion 23 to dismiss under [Rule] 12(b)(1), not Rule 12(b)(6).”). “A Rule 12(b)(1) jurisdictional 24 attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 25 (9th Cir. 2004) (citing White, 227 F.3d at 1242). A facial attack is based on the 26 challenger’s assertion that allegations in the complaint are “insufficient on their face 27 2 Marquez also asserted a claim for violation of the California Unruh Civil Rights Act (id. ¶¶ 26–29), 28 which the Court dismissed after declining to exercise supplemental jurisdiction (Order Dismiss, ECF No. 26). 1 to invoke federal jurisdiction.” Id. “By contrast, in a factual attack, the challenger 2 disputes the truth of the allegations that, by themselves, would otherwise invoke 3 federal jurisdiction.” Id. 4 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 5 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 6 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 7 survive a 12(b)(6) motion, a complaint need only satisfy the minimal notice pleading 8 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 9 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 10 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 11 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 13 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 14 The determination of whether a complaint satisfies the plausibility standard is a 15 “context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. at 679. A court is generally limited to the 17 pleadings and must construe all “factual allegations set forth in the complaint . . . as 18 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 19 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 20 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 21 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 Where a district court grants a motion to dismiss, it should generally provide 23 leave to amend unless it is clear the complaint could not be saved by any amendment. 24 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 25 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 26 determines that the allegation of other facts consistent with the challenged pleading 27 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 28 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 1 denied . . . if amendment would be futile.” Carrico v. City and Cnty. of San Francisco, 2 656 F.3d 1002, 1008 (9th Cir. 2011). 3 IV. DISCUSSION 4 Defendants move to dismiss Marquez’s Complaint for lack of standing and 5 failure to state a claim. (Mot. 1.)3 The Court addresses each issue in turn. 6 A. Standing 7 Defendants contend Marquez lacks standing to seek injunctive relief under the 8 ADA because he fails to sufficiently allege that he suffered an injury-in-fact based on 9 either deterrence or an intent to return to Top Tires. (See Mot. 11–12, 15–16.) 10 “The ‘irreducible constitutional minimum of standing’ includes three elements: 11 (1) injury in fact; (2) causation; and (3) redressability.” Oliver v. Ralphs Grocery Co., 12 654 F.3d 903, 907 (9th Cir. 2011) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 13 560–61 (1992)). Courts must “take a broad view of constitutional standing in civil 14 rights cases, especially where, as under the ADA, private enforcement suits ‘are the 15 primary method of obtaining compliance with the Act.’” Chapman v. Pier 1 Imports 16 (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (quoting Doran v. 7–Eleven, Inc., 524 17 F.3d 1034, 1039 (9th Cir. 2008)). 18 An ADA plaintiff suffers an injury-in-fact when he encounters a barrier at a 19 place of public accommodation “that deprives him of full and equal enjoyment of the 20 facility due to his particular disability.” Id. at 944, 949; Whitaker v. Tesla Motors, 21 Inc., --- F.3d ---, 2021 WL 235777, at *5 (9th Cir. Jan. 25, 2021) (applying Chapman 22 to find standing based on wheelchair-user plaintiff’s alleged encounter with 23 inaccessible service counters). He can establish standing to sue to remove such 24 3 Defendants improperly attach exhibits to the Motion, rather than to a supporting declaration, and 25 fail to properly identify the exhibits. (See ECF No. 17-1–17-3). Defendants’ counsel also filed an untimely declaration and attached an illegible document as an exhibit. (See Decl. of Michele A. 26 Dobson Ex. A, ECF No. 25-1.) The Court declines to consider Defendants’ improperly submitted exhibits or Dobson’s declaration, as they all fail to comply with the Local Rules of this Court. See 27 C.D. Cal. L.R. 7-6, 7-12, 11-3, 11-5. The Court also DENIES Defendants’ Request for Judicial 28 Notice of other cases filed by Marquez’s counsel, Center for Disability Access, because they are irrelevant to the disposition of this Motion. (See Mot. 11.) 1 barriers by demonstrating either: (1) deterrence, or (2) an injury-in-fact coupled with 2 an intent to return. Chapman, 631 F.3d at 949, 953. A plaintiff may establish 3 deterrence where he has actual knowledge “of discriminatory conditions . . . at a 4 public accommodation, and is . . . deterred from visiting or patronizing that 5 accommodation.” Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136–37 6 (9th Cir. 2002); Chapman, 631 F.3d at 950, 953. 7 In Whitaker v. Tesla Motors, Inc., the Ninth Circuit recently reaffirmed this 8 standard. 2021 WL 235777, at *5. The court in Whitaker found the plaintiff had 9 standing where he “allege[d] that he uses a wheelchair for mobility, that he visited the 10 defendant’s premises, that he personally encountered a barrier related to his 11 disability—inaccessible service counters—and that the barrier deters him from 12 returning.” Id. 13 As in Whitaker, Marquez’s allegations here are sufficient to establish standing 14 based on deterrence. Marquez alleges that he uses a wheelchair for mobility, (Compl. 15 ¶ 1), he visited Top Tires, (id. ¶ 8), he personally encountered a barrier related to his 16 disability—wheelchair inaccessible sales counters, (id. ¶¶ 10–12), and his knowledge 17 of the existing barriers deters him from returning, (id. ¶ 17). “These allegations are 18 sufficient to establish injury-in-fact for purposes of standing.” Whitaker, 2021 WL 19 235777, at *5 (citing Chapman, 631 F.3d at 954). Accordingly, Marquez sufficiently 20 alleges standing under the ADA.4 21 B. Failure to State a Claim under Rule 12(b)(6) 22 Defendants also move to dismiss Marquez’s Complaint under Rule 12(b)(6) for 23 failure to state a claim. (Mot. 1, 14.) Specifically, Defendants argue that “[t]he 24 Complaint does not allege what was deficient about the City of Whittier’s customer 25 parking . . . [and] does not . . . allege that the parking is within the scope and control 26 of [Defendants].” (Mot. 14.) Defendants are correct, but only because Marquez 27

28 4 As Marquez sufficiently alleges standing based on deterrence, the Court need not reach the question of his alleged intent to return. 1 asserts a claim based on inaccessible sales counters, not inaccessible parking. (See 2 Compl. ¶ 11; Opp’n 1 (“[T]his case has nothing to do with [customer] parking” but 3 relates to “the lack of an accessible wheelchair sales counter.”).) Nevertheless, the 4 Court finds Marquez fails to state a claim for inaccessible sales counters because the 5 Complaint does not allege what was deficient about the sales counters or that 6 Defendants own, lease, or operate Top Tires. 7 To prevail on an ADA claim, a plaintiff must show that “(1) she is disabled 8 within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, 9 or operates a place of public accommodation; and (3) the plaintiff was denied public 10 accommodations by the defendant because of her disability.” Molski v. M.J. Cable, 11 Inc., 481 F.3d 724, 730 (9th Cir. 2007). Additionally, to succeed on an ADA barrier 12 discrimination claim, a plaintiff must show that: (1) defendant’s existing facility 13 “presents an architectural barrier prohibited under the ADA, and (2) the removal of 14 the barrier is readily achievable.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1008 15 (C.D. Cal. 2014). 16 The Ninth Circuit recently reaffirmed that the Twombly/Iqbal plausibility 17 pleading standard applies equally in ADA architectural barrier cases such as this one. 18 Whitaker, 2021 WL 235777, at *1, 3 (“Taken together, Iqbal and Twombly require 19 well-pleaded facts, not legal conclusions, that plausibly give rise to an entitlement to 20 relief.” (citations omitted)). In Whitaker, the plaintiff alleged the defendants “failed to 21 provide accessible service counters,” that plaintiff “‘personally encountered’ the 22 inaccessible service counters,” and that “he was denied ‘full and equal access.’” Id. 23 The court found these allegations insufficient to state a claim, as they “primarily 24 recited legal conclusions,” which did “little more than recite the elements of an ADA 25 claim, and [fell] short of putting [the defendant] on notice of how the counters 26 prevented [the plaintiff] from full and equal access.” Id. 27 Here, Marquez alleges nothing more than what was alleged in Whitaker, and 28 thus Marquez’s claim for inaccessible sales counters fails for the same reasons. 1 Marquez alleges Defendants “failed to provide wheelchair accessible sales counters,” 2 that he “personally encountered these barriers,” and that he was “denied . . . full and 3 equal access.” (Compl. ¶¶ 10, 12, 13.) But he does not allege “how the service 4 counters denied [him] full and equal enjoyment of the premises.” Whitaker, 2021 WL 5 235777, at *3 (emphasis added) (“Were the service counters too low? Or too high? 6 Were they positioned in an area that was inaccessible for another reason? Without 7 this sort of factual detail, the district court and [defendant] were left in the dark . . . .”). 8 Thus, as in Whitaker, Marquez’s allegations “do little more than recite the elements of 9 an ADA claim, and fall short of putting [Defendants] on notice of how the counters 10 prevent [Marquez] from full and equal access.” Id. Marquez fails to state a claim for 11 violation of the ADA. 12 Further, Marquez’s claim fails for the additional reason that he does not allege 13 Defendants own, lease, or operate Top Tires, the location of the barriers in question. 14 Molski, 481 F.3d at 730; (see generally Compl.). Marquez alleges Defendants “own 15 the real property located at or about 10530 Carmenita Rd., Whittier, California.” 16 (Compl. ¶ 3.) He also alleges that he “went to the property to shop at Top Tires.” (Id. 17 ¶ 8.) However, nothing in the Complaint provides that the “property” Marquez visited 18 is the same “real property” that Defendants allegedly own in Whittier, that Top Tires 19 is located on Defendants’ real property, or that Defendants own, lease, or operate the 20 business establishment Top Tires. (See generally Compl.) For this additional reason, 21 Marquez fails to state a claim for violation of the ADA. 22 Accordingly, the Court DISMISSES Marquez’s Complaint. As the Court does 23 not find that amendment would be futile, leave to amend is appropriate. 24 V. CONCLUSION 25 For the reasons discussed above, the Court GRANTS Defendants’ Motion to 26 Dismiss with leave to amend. (ECF No. 17.) Marquez may file an amended 27 complaint addressing the deficiencies identified herein within fourteen days of the 28 date of this Order. If Marquez timely files an amended complaint, Defendants must 1 || file their response(s) in accordance with Rule 15(a)(3). Failure by Marquez to timely 2 | amend will result in dismissal with prejudice and closing of this case. 3 4 IT IS SO ORDERED. 5 6 February 16, 2021 ’ Eo iH . ek tiail 9 OTIS D. W HT, 0 UNITED STATES DISTRICT JUDGE

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