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8 United States District Court 9 Central District of California

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11 CHRIS LANGER, Case № 2:21-cv-02716-ODW (PLAx)

12 Plaintiff,

ORDER GRANTING

13 v.

DEFENDANT’S MOTION TO

14 B.R. GUEST, DISMISS FOR LACK OF SUBJECT 15 MATTER JURISDICTION [18] Defendant. 16 17 I. INTRODUCTION 18 On March 30, 2021, Plaintiff Chris Langer brought suit against Defendant B.R. 19 Guest. (Compl., ECF No. 1.) On June 1, 2021, Plaintiff filed the operative First 20 Amended Complaint (“FAC”), which Defendant now moves to dismiss pursuant to 21 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and 12(b)(6). (FAC, ECF No. 17; 22 Mot. Dismiss (“Mot.”), ECF No. 18.) For the reasons that follow, the Court GRANTS 23 the Motion and dismisses the action. 24 II. FACTUAL AND PROCEDURAL BACKGROUND 25 The essential allegations of this case are uncontested and include the following. 26 Plaintiff is hard of hearing. (FAC ¶ 10.) Defendant is the owner of a hotel in Santa 27 Barbara and operates a website which can be used to access information about the hotel 28 and make reservations. (FAC ¶¶ 12–13.) In February 2021, Plaintiff visited 1 Defendant’s website and attempted to view a video titled “Pacific Crest Hotel Santa 2 Barbara.” (FAC ¶ 17.) Plaintiff struggled to view and understand the video because it 3 lacked closed captioning. (FAC ¶¶ 16–17.) Plaintiff alleges that the lack of closed 4 captioning constitutes an access barrier in violation of the Americans with Disabilities 5 Act (“ADA”). (FAC ¶¶ 18–24.) Thereupon, Plaintiff asserts two causes of action: one 6 for violation of the ADA (FAC ¶¶ 35–41a) and the second for violation of California’s 7 Unruh Civil Rights Act (“Unruh Act”) (FAC ¶¶ 41b–44). 8 Defendant seeks to dismiss both claims on the alternative grounds of Rule 9 12(b)(1) for lack of standing and Rule 12(b)(6) for failure to state a claim. For the 10 reasons that follow, the Court dismisses the claims with prejudice on the basis of Rule 11 12(b)(1). The Court does not decide whether the FAC would also be dismissed under 12 Rule 12(b)(6). 13 III. LEGAL STANDARD 14 Pursuant to Rule 12(b)(1), a district court must dismiss a complaint when the 15 court lacks subject matter jurisdiction, which includes when a plaintiff lacks 16 constitutional standing. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 17 2000) (“Because standing . . . pertain[s] to a federal court’s subject-matter jurisdiction 18 under Article III, [it is] properly raised in a motion to dismiss under [Rule] 12(b)(1).”); 19 Lammey v. Valdry, No. 2:20-cv-10655-RGK-AS, 2021 WL 840436, at *2 (C.D. Cal. 20 Feb. 4, 2021) (approving, for same reason, use of Rule 12(b)(1) motion as mechanism 21 for raising mootness). To satisfy Article III standing, a plaintiff must show that (1) he 22 has suffered an “injury in fact” that is concrete and particularized and actual or 23 imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 24 challenged actions of the defendant; and (3) it is likely, as opposed to merely 25 speculative, that the injury will be redressed by a favorable decision. Bernhardt v. 26 County of Los Angeles, 279 F.3d 862, 868–69 (9th Cir. 2002). 27 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 28 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White, 227 F.3d at 1 1242). A facial attack is based on the challenger’s assertion that allegations in the 2 complaint are “insufficient on their face to invoke federal jurisdiction.” Id. “By 3 contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 4 themselves, would otherwise invoke federal jurisdiction.” Id. 5 To make a factual attack, the moving party must present affidavits or other 6 evidence to dispute the allegations in the complaint. St. Clair v. City of Chico, 880 F.2d 7 199, 201 (9th Cir. 1989). Then, the burden shifts to the non-moving party to present 8 evidence showing that the court does in fact possess subject matter 9 jurisdiction. Id. Alternatively, parties may establish mootness if the plaintiff concedes 10 that the claim has already been resolved. Hernandez v. Polanco Enters., 19 F. Supp. 3d 11 918, 925–26 (N.D. Cal. 2013). 12 IV. DISCUSSION 13 As a preliminary matter, Plaintiff’s Opposition brief is rife with single-spaced 14 block quotations in violation of Central District Local Rule 11-3.6 regarding spacing. 15 If lined up end-to-end, the single-spaced block quotes in the Opposition brief would 16 span at least five pages. The Court finds that this practice circumvents the page 17 limitations provided by the Local Rules and the ODW Courtroom Rules and that 18 Plaintiff’s Opposition brief is therefore five pages over the limit. Accordingly, the Court 19 disregards the last five pages of the Opposition brief. 20 A. The ADA Claim is dismissed pursuant to a factual attack on subject matter 21 jurisdiction. 22 Substantively, Defendant mounts a factual attack against subject matter 23 jurisdiction by presenting evidence that it has corrected the ADA violation at issue, thus 24 depriving Plaintiff of constitutional standing and depriving this Court of subject matter 25 jurisdiction. Defendant’s argument is well taken. 26 Plaintiffs bringing suit under the ADA are limited to injunctive relief and are not 27 entitled to monetary damages. Bryant v. Yosemite Falls Café, Inc., No. 1:17-cv-01455- 28 LJO, 2018 WL 372704, at *3 (E.D. Cal. Jan. 11, 2018). This limitation on remedies 1 available under the ADA means that “a defendant’s voluntary removal of alleged 2 barriers prior to trial can have the effect of mooting a plaintiff’s ADA claim.” Vogel v. 3 Winchell’s Donut Houses Operating Co., LP, 252 F. Supp. 3d 977, 985 (C.D. Cal. 2017); 4 Bryant, 2018 WL 372704, at *3. “Once a defendant has remedied all ADA violations 5 complained of by a plaintiff, the plaintiff’s claims become moot and he or she loses 6 standing, meaning the court no longer has subject matter jurisdiction over the ADA 7 claims.” Bryant, 2018 WL 372704, at *3; accord Grove v. DeLa Cruz, 407 F. Supp. 2d 8 1126, 1130–31 (C.D. Cal. 2005). 9 However, “the party asserting mootness bears the heavy burden of persuading the 10 court that the challenged conduct cannot reasonably be expected to start up again.” 11 Lammey, 2021 WL 840436, at *3 (quoting White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 12 2000)) (cleaned up)1; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 13 528 U.S. 167, 190 (2000) (requiring plaintiffs demonstrating mootness to make 14 “absolutely clear the alleged wrongful behavior could not reasonably be expected to 15 recur”). In the ADA context, this requires “some evidence by the defendant, or 16 concession by the plaintiff” that the violation was corrected. Lammey, 2021 WL 17 840436, at *3. 18 No bright-line rule exists regarding whether modifications to a website moot an 19 ADA claim. Some courts have been “reluctant to find that an ADA plaintiff’s claims 20 have been mooted where the alleged barriers are not structural in nature, since 21 nonstructural barriers (such as policy changes or features on a website) are more likely 22 to reoccur.” Langer v. Pep Boys Manny Moe & Jack of Cal., No. 20-cv-06015-DMR, 23 2021 WL 148237, at *3 (N.D. Cal. Jan. 15, 2021). Ultimately, “[w]hen considering 24 whether a violation is likely to reoccur, a court should consider ‘the bona fides of the 25

26 1 This Order uses (cleaned up) to indicate that internal quotation marks, brackets, ellipses, and citations have been omitted from quotations. See, e.g., Mo. State Conference of the Nat’l Assn. for the 27 Advancement of Colored People v. Ferguson-Florissant Sch. Dist., 894 F.3d 924, 930 (8th Cir. 2018); 28 United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017); Guevara v. Chaffey Joint Union High Sch. Dist., No. ED CV 20-1929 FMO (SPx), 2021 WL 4439230, at *4 (C.D. Cal. Aug. 10, 2021). 1 expressed intent to comply, the effectiveness of the discontinuance and, in some cases, 2 the character of the past violations.’” Id. at *4 (quoting United States v. W. T. Grant 3 Co., 345 U.S. 629, 633 (1953)). 4 Here, Plaintiff’s evidence consists primarily of a declaration by Greg Mishkin, a 5 principal of Defendant. (Decl. Greg Mishkin (“Mishkin Decl.”), ECF No. 18-2.) The 6 declaration indicates that the video in question was a YouTube video that was embedded 7 into Defendant’s website such that a visitor could view the video either on Defendant’s 8 website or directly on YouTube’s website. (Mishkin Decl. ¶¶ 4–5.) “[A]t some point,” 9 Mishkin declares, “the coding became corrupted,” and the video as embedded on 10 Defendant’s website stopped allowing activation of closed captioning, a feature which 11 is customary of most YouTube videos. (Mishkin Decl. ¶¶ 3, 5.) This lawsuit alerted 12 Mishkin to the problem, and he immediately corrected the error, making closed 13 captioning once again available on the video on Defendant’s website. (Mishkin Decl. 14 ¶ 6.) Mishkin declares that Defendant has “no interest in, and will not, alter [sic] the 15 coding on our website to eliminate closed captioning. . . . [T]he coding change is 16 permanent and will not be changed.” (Mishkin Decl. ¶ 7.) Mishkin further declares 17 that Defendant has never been sued before and has no history of ADA violations. (Id.) 18 Plaintiff does not dispute the foregoing presentation with any evidence. Plaintiff 19 argues, or perhaps concedes, that the website has been “revised” and that the current 20 version of the website is not the same web page referenced in his Complaint. (Opp’n 21 1.) Although this argument might be relevant to the disposition of this Motion under 22 Rule 12(b)(6), it does little to help Plaintiff under Rule 12(b)(1), because when only 23 injunctive relief is available, mootness (and therefore standing, and therefore subject 24 matter jurisdiction) goes to whether a plaintiff’s claim is moot in the present moment, 25 not whether it was moot when the case was filed. See Winchell’s Donut Houses, 252 F. 26 Supp. 3d at 985. 27 Plaintiff’s lack of countervailing evidence means, for the purpose of this Motion, 28 that the Court accepts the facts demonstrated by Defendant’s evidence as true. 1 Relatedly, Plaintiff’s objection to Mishkin’s testimony as improper expert opinion 2 testimony, (Opp’n 10–11), is not well taken because Mishkin’s testimony is not opinion 3 testimony in the first place. It is acceptable factual testimony that relates to the state of 4 the video and is based on Mishkin’s own direct observation. See April in Paris v. 5 Becerra, 494 F. Supp. 3d 756, 769–70 (E.D. Cal. 2020) (“It is necessary that a lay 6 witness’s opinions are based upon direct perception of the event, are not speculative, 7 and are helpful to the determination of factual issues before the jury.” (ellipsis omitted).) 8 Thus, Defendant has corrected the violation in a way that makes amply clear that 9 the alleged violation is corrected and will not happen again. This finding is buttressed 10 primarily by the uncontroverted showing that the video did, at one point in the past, 11 provide an option for closed captioning, but that that option was deactivated through 12 inadvertence or excusable neglect. The evidence shows Defendant intended at all 13 relevant times to provide an option for closed captioning on its video, and moreover, 14 there is no showing that making closed captioning available imposes any costs or burden 15 on Defendant. In this case, “Plaintiff identified [a] barrier[] to his use and enjoyment 16 of the Website. Defendant removed those barriers . . . and commits to . . . ensur[ing] 17 that visually-impaired individuals have equal access to the Website. On this record, 18 Defendant has met the stringent showing required by the Supreme Court’s mootness 19 precedents.” Diaz v. Kroger Co., No. 18 Civ. 7953 (KPF), 2019 WL 2357531, at *5 20 (S.D.N.Y. June 4, 2019). 21 Plaintiff is correct that Rule 12(b)(1) dismissal is inappropriate when the issue of 22 jurisdiction raises genuinely disputed factual issues and is intertwined with the ultimate 23 merits of the case. Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 – 40 24 (9th. Cir. 1983). Plaintiff maintains that resolving the jurisdictional issue is 25 inappropriate on this basis. (Opp’n 3–4.) But the two issues are not intertwined at all 26 in this case. The jurisdictional issue in this case is no more and no less than whether 27 Defendant remedied the violation, which is factually equivalent to the issue of the 28 website’s current state. This issue is separate from, and not intertwined with, whether 1 the website violated the ADA at the time the case was filed, which is the question raised 2 by the Complaint in this matter. The Court can resolve the jurisdictional issue on the 3 basis of the purely factual question of the website’s current state, without deciding 4 anything about what the website used to look like or whether it used to violate the ADA. 5 Thus, the issues are not intertwined, and the Court may properly make jurisdictional 6 factual findings. 7 Relatedly, Plaintiff asks for additional time to conduct discovery so that the 8 Motion may be treated more fully under Rule 56. (Opp’n 5.) Plaintiff asserts he would 9 conduct “basic discovery” to explore Defendant’s “policies, practices, enforcement and 10 oversight controls.” (Opp’n 9.) The Court finds it implausible that any such discovery 11 would potentially disturb the fundamental finding that restoration of closed captioning 12 on a single embedded YouTube video, backed by a clear intent to ensure the video 13 remains accessible, moots an ADA injunctive relief claim. 14 For these reasons, Plaintiff lacks standing, and this Court accordingly lacks 15 subject matter jurisdiction to decide his ADA claim. The Court therefore dismisses the 16 ADA claim with prejudice. 17 B. The Court declines to exercise supplemental jurisdiction over the Unruh 18 Act claim. 19 In an action over which a district court possesses original jurisdiction, that court 20 “shall have supplemental jurisdiction over all other claims that are so related to claims 21 in the action within such original jurisdiction that they form part of the same case or 22 controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). 23 Even if supplemental jurisdiction exists, district courts have discretion to decline to 24 exercise supplemental jurisdiction if, among other things, “the district court has 25 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). 26 After a district court dismisses all such claims, “the balance of factors to be considered 27 under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and 28 comity” will, in the usual case, “point toward declining to exercise jurisdiction over the 1 || remaining state-law claims.” Carnegie—Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 2 || (1988); Winchell’s Donut Houses, 252 F. Supp. 3d at 986 (declining supplemental 3 || jurisdiction over Unruh Act and other state-law claims after dismissing ADA claim as moot on summary judgment). 5 As the Court has dismissed the only claim over which it has original jurisdiction, 6 || the Court declines to exercise supplemental jurisdiction over Plaintiff's Unruh Act 7|| claim. Rodgers v. Chevys Restaurants, LLC, No. C13-03923 HRL, 2015 WL 909763, 8 | at *4(N.D. Cal. Feb. 24, 2015) (“Ina Title III ADA action, a district court may properly decline supplemental jurisdiction over related state-law access claims once 10 | the ADA claim has been dismissed.”). The Court therefore dismisses the Unruh Act 11 || claim without prejudice. 12 V. CONCLUSION 13 Pursuant to Federal Rule of Civil Procedure 12(b)(1), and based on the mootness 14 || of the controversy, the Court GRANTS Defendant’s Motion to Dismiss for lack of 15 || subject matter jurisdiction. (ECF No. 18.) The Court DISMISSES Plaintiff's ADA 16 || clam WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction 17 || over the Unruh Act claim and DISMISSES that clam WITHOUT PREJUDICE. The 18 || Court will issue Judgment consistent with this Order. 19 20 IT IS SO ORDERED. 21 22 October 26, 2021 □

5 OTIS D. HT, I

UNITED STATES DISTRICT JUDGE

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