Whitaker
Whitaker v. John's of Willow Glen Inc.
Opinion
Trial Court Opinion
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
BRIAN WHITAKER,
Case No. 21-cv-04850-RS Plaintiff, 11 v. ORDER DENYING MOTION TO DISMISS JOHN'S OF WILLOW GLEN INC., 13 Defendant.
15 Plaintiff Brian Whitaker, a quadriplegic who uses a wheelchair for mobility, brought this suit under the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”) against John’s of Willow Glen, Inc., which owns a restaurant by the same name in San Jose, California. Defendant moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 16. At this juncture, dismissal pursuant to Rule 12(b)(1) based on a lack of standing is premature, as Plaintiff not only contests whether Defendant possesses wheelchair-accessible tables, but also whether Defendant provides such tables. Further, Defendant forfeited its Rule 12(b)(6) argument by raising the argument for the first time in the reply brief. Accordingly, the…