1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SCOTT JOHNSON, Case No. 5:20-cv-08117-EJD

9 Plaintiff, ORDER DENYING MOTION TO

DISMISS; SUA SPONTE DISMISSING

10 v. WITHOUT PREJUDICE PLAINTIFF’S

STATE LAW CLAIM

11 RIGHT CRONS INC., 12 Defendant. Re: Dkt. No. 22

13 Plaintiff Scott Johnson (“Plaintiff”) alleges that Defendant Right Crons Inc. (“Defendant”) 14 violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the 15 California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51–53. See First Amended 16 Complaint for Damages and Injunctive Relief (“FAC”), Dkt. No. 21. Before the Court is 17 Defendant’s motion to dismiss Plaintiff’s First Amended Complaint. Defendant Right Crons 18 Inc.’s Notice of Motion and Motion to Dismiss Plaintiff’s First Amended Complaint (“Mot.”), 19 Dkt. No. 22. Plaintiff filed an opposition, to which Defendant filed a reply. Plaintiff’s Opposition 20 to the Defense Motion to Dismiss (“Opp.”), Dkt. No. 24;1 Defendant’s Reply in Support of Motion 21 to Dismiss (“Reply”), Dkt. No. 25.2 Having considered the Parties’ submissions, the relevant law, 22 and the record in this case, the Court DENIES Defendant’s motion to dismiss. However, the 23 Court sua sponte dismisses Plaintiff’s Unruh Act claim. 24

25 1 Plaintiff argues in his opposition that Defendant released his address in a “vile attempt to intimidate” him. Opp. at 1. Plaintiff asks that this disclosure be sealed. The Court directs 26 Plaintiff to N.D. Cal. Civil Local Rule 79-5(f). 2 On June 22, 2022, this Court found this motion appropriate for decision without oral argument 27 pursuant to Civil Local Rule 7-1(b). See Dkt. No. 31. Case No.: 5:20-cv-08117-EJD 1 I. BACKGROUND 2 Plaintiff is a level C-5 quadriplegic with physical disabilities. FAC ¶ 1. He uses a 3 wheelchair for mobility and has a specially equipped van. FAC ¶ 1. Defendant owns real 4 property located at or about 244 N. Jackson Ave, San Jose, California, where the business 5 “Luminance Aesthetics” operates. FAC ¶¶ 2, 3. 6 Plaintiff alleges that he went to Luminance Aesthetics in April 2019, June 2019, and July 7 2020, with the intention to avail himself of its goods or services. FAC ¶ 8. Plaintiff alleges that 8 on the dates of his visits, Defendant failed to provide wheelchair accessible parking in 9 conformance with ADA standards. FAC ¶¶ 11, 12. Specifically, there were not enough parking 10 spaces for wheelchair users in the parking lot, and the parking stall and access aisle marked and 11 reserved for persons with disabilities had slopes that exceeded 2.1%. FAC ¶ 13. During his visits, 12 the only wheelchair parking space was in use. FAC ¶ 13. Plaintiff further alleges that on the dates 13 of his visits, Defendant failed to provide wheelchair accessible common-area restrooms in 14 conformance with ADA standards. FAC ¶ 16. Specifically, the restroom door hardware had a 15 traditional round knob handle, there were no toilet grab bars, and the restroom sink did not provide 16 any knee clearance for wheelchair users. FAC ¶ 18. Defendant also allegedly failed to provide 17 wheelchair accessible door hardware in conformance with ADA standards on the dates of 18 Plaintiff’s visits. FAC ¶ 21. Specifically, the entrance door had a traditional round knob handle, 19 which is not ADA compliant. FAC ¶¶ 22, 23. 20 Plaintiff alleges that these barriers relate to and impact his disability. FAC ¶ 26. Plaintiff 21 plans to return to Luminance Aesthetics to avail himself of its goods and services but is currently 22 deterred from doing so because of the alleged barriers. FAC ¶ 31. 23 II. LEGAL STANDARD 24 A. Federal Rule of Civil Procedure 12(b)(1) 25 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) tests whether the 26 court has subject matter jurisdiction. Although lack of “statutory standing” requires dismissal for 27 Case No.: 5:20-cv-08117-EJD 1 failure to state a claim under Rule 12(b)(6), lack of Article III standing requires dismissal for want 2 of subject matter jurisdiction under Rule 12(b)(1). See Nw. Requirements Utilities v. F.E.R.C., 3 798 F.3d 796, 808 (9th Cir. 2015) (“Unlike Article III standing, however, ‘statutory standing’ does 4 not implicate our subject-matter jurisdiction.”) (citing Lexmark Int’l, Inc. v. Static Control 5 Components, Inc., 572 U.S. 118, 128 n.4 (2014))); Maya v. Centex Corp., 658 F.3d 1060, 1067 6 (9th Cir. 2011). A Rule 12(b)(1) jurisdictional attack may be factual or facial. Safe Air for 7 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 8 “[I]n a factual attack, the challenger disputes the truth of the allegations that, by 9 themselves, would otherwise invoke federal jurisdiction.” Id. In resolving such an attack, unlike 10 with a motion to dismiss under Rule 12(b)(6), a court “may review evidence beyond the complaint 11 without converting the motion to dismiss into a motion for summary judgment.” Id. Moreover, 12 the court “need not presume the truthfulness of the plaintiff’s allegations.” Id. When the 13 defendant moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the 14 plaintiff bears the burden of establishing the court’s jurisdiction. See Chandler v. State Farm Mut. 15 Auto Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). “Once the moving party has converted the 16 motion to dismiss into a factual attack by presenting affidavits or other evidence properly brought 17 before the court, the party opposing the motion must furnish affidavits or other evidence necessary 18 to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High 19 Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). The court may not, 20 however, “resolve genuinely disputed facts where ‘the question of jurisdiction is dependent on the 21 resolution of factual issues going to the merits.’” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th 22 Cir. 1987) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983)). 23 “In a facial attack,” on the other hand, “the challenger asserts that the allegations contained 24 in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone, 25 373 F.3d at 1039. The court “resolves a facial attack as it would a motion to dismiss under Rule 26 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the 27 Case No.: 5:20-cv-08117-EJD 1 plaintiff’s favor, the court determines whether the allegations are sufficient as a legal matter to 2 invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 3 B. Supplemental Jurisdiction 4 When a federal court has original jurisdiction over a claim, the court “shall have 5 supplemental jurisdiction over all other claims that are so related to claims in the action . . . that 6 they form part of the same case or controversy.” 28 U.S.C. § 1367(a). State claims are part of the 7 same case or controversy as federal claims “‘when they derive from a common nucleus of 8 operative fact and are such that a plaintiff would ordinarily be expected to try them in one judicial 9 proceeding.’” Kuba v. 1–A Agric. Ass’n, 387 F.3d 850, 855–56 (9th Cir. 2004) (quoting Trs. of 10 the Constr. Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 11 333 F.2d 923, 925 (9th Cir. 2003)). Supplemental jurisdiction is mandatory unless prohibited by 12 § 1367(b),3 or unless one of the exceptions in § 1367(c) applies. Schutza v. Cuddeback, 262 F. 13 Supp. 3d 1025, 1028 (S.D. Cal. 2017). Under § 1367(c), a district court may “decline 14 supplemental jurisdiction over a claim” if:

15 (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the 16 district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in 17 exceptional circumstances, there are other compelling reasons for declining jurisdiction. 18 28 U.S.C. § 1367(c). 19 A district court’s discretion to decline to exercise supplemental jurisdiction over state law 20 “is informed by the Gibbs values ‘of economy, convenience, fairness, and comity.’” Acri v. 21 Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (quoting United Mine Workers 22 v. Gibbs, 383 U.S. 715, 726, (1966)). A court may decline to exercise supplemental jurisdiction 23 under § 1367(c) “under any one of [the statute’s] four provisions.” San Pedro Hotel Co., Inc. v. 24 25

26 3 28 U.S.C. § 1367(b) applies to civil actions where a district court has original jurisdiction founded solely on 28 U.S.C. § 1332 (diversity jurisdiction). Because the Court’s jurisdiction over 27 this case is founded on 28 U.S.C. § 1331 (federal question jurisdiction), § 1367(b) is inapplicable. Case No.: 5:20-cv-08117-EJD 1 City of L.A., 159 F.3d 470, 478–79 (9th Cir. 1998). When dismissing a state-law claim pursuant to 2 subparts (1) through (3), a district court need not state its reason for dismissal. Id. If a district 3 court declines to exercise supplemental jurisdiction under § 1367(c)(4), however, the court must 4 “articulate why the circumstances of the case are exceptional.” Exec. Software N. Am., Inc. v. U.S. 5 Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994), overruled on other grounds by Cal. Dep’t of 6 Water Res. v. Powerex Corp., 533 F.3d 1087, 1095 (9th Cir. 2008). The Ninth Circuit has 7 cautioned that declining supplemental jurisdiction based on § 1367(c)(4) should be the exception, 8 not the rule. Id. at 1558. 9 III. DISCUSSION 10 A. ADA Claim 11 Defendant moves to dismiss Plaintiff’s first amended complaint for lack of Article III 12 standing, arguing that Plaintiff has not remediated the problems identified by this Court in its 13 August 2021 order. The Court disagrees. 14 In its motion to dismiss, Defendant argues that Plaintiff lacks standing to bring this action 15 because he never visited the facility, and thus has not suffered an injury-in-fact. Mot. at 3-4. A 16 disabled person claiming access discrimination must establish Article III standing to maintain a 17 suit under the ADA. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 18 2011). To establish Article III standing, Plaintiff must demonstrate that:

19 (1) he has suffered an “injury-in-fact” that is concrete and particularized and actual or imminent; (2) the injury is fairly traceable 20 to the challenged actions of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a 21 favorable decision. 22 Bernhardt v. Cnty. of L.A., 279 F.3d 862, 868–69 (9th Cir. 2002) (citing Friends of the Earth, Inc. 23 v. Laidlaw Env’t Servs. Inc., 528 U.S. 167, 180–81 (2000)). Moreover, an ADA plaintiff can 24 establish standing to sue for injunctive relief, which is the only relief available to private plaintiffs 25 under the ADA, by demonstrating deterrence or injury-in-fact coupled with an intent to return to a 26 noncompliant facility. Chapman, 631 F.3d at 946. Although courts take a broad view of 27 Case No.: 5:20-cv-08117-EJD 1 constitutional standing in disability access cases, the ADA’s reach is “not unlimited.” Id. at 946. 2 1. Factual Attack 3 Defendant first brings a factual attack against Plaintiff’s complaint and presents the 4 declaration of Luminance Aesthetics’ owner, Dr. Anjali Dhar, in support of its challenge. See 5 Declaration of Anjali Dhar (“Dhar Decl.”), Dkt. No. 22-1. Luminance Aesthetics offers aesthetic 6 services, including injectables, light therapy, laser hair removal, and microdermabrasion. Dhar 7 Decl. ¶ 3. However, according to Dr. Dhar, Luminance does not accept walk-in patients and is by 8 appointment only. Id. ¶ 4. People who do not have an appointment are not able to use Luminance 9 facilities, including its restrooms. Id. ¶ 5. Luminance requires all patients to fill out 10 questionnaires regarding their health history and provide a credit card prior to every appointment. 11 Id. ¶ 6. Dr. Dhar maintains that Plaintiff has “never been a patient of [his] or of Luminance 12 Aesthetics” and that “Luminance Aesthetics [does not] have any health questionnaires []or credit 13 card information or any history of contact from [Plaintiff].” Id. ¶ 7; see also id. ¶ 8 (“Plaintiff 14 Scott Johnson did not make any appointments with Luminance Aesthetics in April 2019, June 15 2019, or July 2020.”). Pursuant to this declaration, Defendant argues that Plaintiff has not 16 established that he suffered an injury-in-fact sufficient to establish standing under Article III. 17 The Court continues to find that this question cannot be resolved on the current record. To 18 resolve this question would require the Court to resolve the underlying merits of Plaintiff’s claims. 19 This is improper. Miller v. Lifestyle Creations, Inc., 993 F.2d 883 (9th Cir. 1993) (“[W]hen the 20 jurisdictional issue and the merits are ‘intertwined,’ or when the jurisdictional question is 21 dependent on the resolution of factual issues going to the merits, the district court must apply the 22 summary judgment standard in deciding the motion to dismiss.” (quoting Augustine, 704 F.2d at 23 1077). Accordingly, Defendant has not presented sufficient evidence for the Court to conclude 24 that Plaintiff has failed to establish he suffered an injury-in-fact. 25 26 27 Case No.: 5:20-cv-08117-EJD 1 2. Facial Attack 2 Next, Defendant raises a facial attack to the complaint arguing that Plaintiff has not 3 demonstrated an intent to return to Luminance. Mot. at 4–7. This Court previously determined 4 that Plaintiff had not demonstrated an intent to return to Luminance. 5 “Although encounters with the noncompliant barriers related to one’s disability are 6 sufficient to demonstrate an injury-in-fact for standing purposes, a plaintiff seeking injunctive 7 relief must additionally demonstrate ‘a sufficient likelihood that he will again be wronged in a 8 similar way.’” Chapman, 631 F.3d at 948 (quoting City of L.A. v. Lyons, 461 U.S. 95, 111 9 (1983)). 10 To determine whether a plaintiff’s likelihood of returning to a place of public 11 accommodation is sufficient to confer standing, courts examine factors such as “(1) the proximity 12 of defendant’s business to plaintiff’s residence, (2) plaintiff’s past patronage of defendant’s 13 business, (3) the definitiveness of plaintiff’s plans to return, and (4) the plaintiff’s frequency of 14 travel near defendant.” Johnson v. Overlook at Blue Ravine, LLC, 2012 WL 2993890, at *3 (E.D. 15 Cal. 2012) (collecting cases); see also Johnson v. DTBA, LLC, 2019 WL 6311408, at *3–*5 (N.D. 16 Cal. Nov. 25, 2019) (applying factors). 17 In its earlier ruling, the Court determined that Plaintiff failed to show intent to return. 18 While Plaintiff still resides far away from Luminance and continues to fail to allege specific plans 19 to return to Luminance, he does allege facts that support an inference that he frequents the area 20 and that he has thrice frequented Luminance. Specifically, in his amended complaint, Plaintiff 21 alleges that he “frequents [San Jose] because he likes it, and he must for ongoing litigation.” FAC 22 ¶ 9. He further alleges that he “has visited San Jose more than 70 times since February 2021 and 23 is in the area multiple times a week.” FAC ¶ 9. Plaintiff “regularly patronizes a coffee shop 24 called Coffee Lovers situated five miles from Luminance Aesthetics.” FAC ¶ 9. On balance, 25 given the number of times Plaintiff alleges he went to Luminance and the specific ties he alleges 26 with San Jose, the Court finds that Plaintiff has pled that he suffered an injury-in-fact. 27 Case No.: 5:20-cv-08117-EJD 1 3. Conclusion 2 At this stage, the Court must take Plaintiff’s allegations as true. However, the Court 3 recognizes that questions remain about whether Plaintiff did, in fact, personally visit Defendant’s 4 establishment or whether he has a legitimate intent to return. To resolve these questions the Court 5 will allow jurisdictional discovery. Defendant shall notify the Court within 30 days of this Order 6 whether it would like a 3-month period of jurisdictional discovery or whether it would instead 7 prefer to move directly to an evidentiary hearing. If Defendant opts for jurisdictional discovery, it 8 will be permitted to take discovery on Plaintiff’s intent to return and whether Plaintiff visited 9 Luminance. Likewise, Plaintiff will be permitted to take discovery to show that he did, in fact, 10 visit Luminance. 11 B. Unruh Act Claim 12 Regardless of whether Defendant chooses to pursue jurisdictional discovery or an 13 evidentiary hearing, the Court declines to exercise supplemental jurisdiction over Plaintiff’s Unruh 14 Act claim and finds that exceptional circumstances warrant declining jurisdiction. See Arroyo v. 15 Rosas, 19 F. 4th 1202, 1211–14 (9th Cir. 2021). This case is in its early stages, so concerns of 16 judicial economy, convenience, fairness to litigants, and comity do not favor retaining jurisdiction. 17 See id. at 1214. And the facts of the case—“a frequent filer of ADA and Unruh Act claims 18 seeking federal jurisdiction to circumvent California's procedural barriers to such suits—present 19 the type of exceptional circumstances contemplated by section 1367(c)(4)” to decline 20 supplemental jurisdiction. Whitaker v. Alice & Olivia California Holdings LLC, 2022 WL 21 1135088, at *1 (N.D. Cal. Apr. 18, 2022); Garcia v. Maciel, 2022 WL 395316, at *3 (N.D. Cal. 22 Feb. 9, 2022) (collecting cases). Considering the dismissal of Plaintiff’s Unruh Act claim, it is not 23 obvious whether Plaintiff would want to continue pursuing his ADA claim separately, rather than 24 proceeding solely on his Unruh Act claim in state court or filing both in state court. Plaintiff is 25 therefore ORDERED to file within ten days either: (1) a motion or stipulation to dismiss his ADA 26 claim; or (2) a status report indicating that he would like to proceed on that claim in this Court. 27 Case No.: 5:20-cv-08117-EJD 1 IV. CONCLUSION 2 For the foregoing reasons, Plaintiff's claim under the Unruh Act is DISMISSED sua 3 sponte without prejudice to refiling in state court. Plaintiff is ORDERED to file within ten days 4 || either: (1) a motion or stipulation to dismiss his ADA claim; or (2) a status report indicating that 5 || he would like to proceed on that claim in this Court. 6 Defendant’s motion to dismiss is DENIED. Assuming Plaintiff elects to proceed with his 7 ADA claim before the undersigned, Defendant shall notify the Court within 30 days of this Order 8 whether it would like a 3-month period of jurisdictional discovery or whether it would instead 9 || prefer to move directly to an evidentiary hearing. 10 IT IS SO ORDERED. 11 Dated: June 27, 2022 12

EDWARD J. DAVILA

14 United States District Judge 15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 Case No.: 5:20-cv-08117-EJD 28 || ORDER DENYING MOTION TO DISMISS; SUA SPONTE DISMISSING WITHOUT

PREJUDICE PLAINTIFF’S STATE LAW CLAIM