Kohler v. CJP, Ltd.

• Decision Date: 19 July 2011
• Docket Number: Case No. CV 10–09106 MMM (Ex).
• Citation: Kohler v. CJP, Ltd., 818 F. Supp. 2d 1169 (C.D. Cal. 2011)
• Parties: Chris KOHLER, Plaintiff, v. CJP, LIMITED, Defendant.
• Court: U.S. District Court — Central District of California

818 F.Supp.2d 1169

Chris KOHLER, Plaintiff,

v.CJP, LIMITED, Defendant.

Case No. CV 10–09106 MMM (Ex).

United States District Court, C.D. California.

July 19, 2011.

Scottlynn J. Hubbard IV, Lynn Hubbard III, Law Offices of Lynn Hubbard, Chico, CA, for Plaintiff.

Deborah SueSkanadore Reisdorph, Skanadore Reisdorph Law Offices, Huntington Beach, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

MARGARET M. MORROW, District Judge.

On November 24, 2010, Chris Kohler commenced this civil rights action against CJP, Limited(“CJP”).¹On February 23, 2011, Kohler filed a first amended complaint alleging violations of his rights under the Americans with Disabilities Act of 1990(“ADA”), 42 U.S.C. §§ 12101 et seq.; the California Unruh Civil Rights Act(“Unruh Act”), California Civil Code § 51; the California Disabled Persons Act (“DPA”), California Civil Code § 54;andCalifornia Health and Safety Code §§ 19955– 19959.5.²On April 5, 2011, defendant filed a motion to dismiss under Rules 12(b)(1)and12(b)(6) of the Federal Rules of Civil Procedure.³Plaintiff opposes the motion.⁴

I.FACTUAL BACKGROUND

Kohler is a paraplegic who requires the use of a wheelchair to travel in public.⁵CJP is the owner of the Potomac Square Shopping Center (“Shopping Center”).⁶Kohler alleges that, on an unspecified date, he“visited the Shopping Center and encountered barriers ... that interfered with ... his ability to use and enjoy the goods, services, privileges, and accommodations offered at the facility.”⁷He asserts that “the barriers at the Shopping Center include, but are not limited to, the following:

• The tow away signage posted is incorrect.Without the correct signage displayed, Kohler cannot have vehicles towed that are illegally parked in disabled parking spaces;

• The tow away signage is completely obstructed from view by bushes.Without the correct signage clearly displayed and visible, Kohler cannot have vehicles towed that are illegally parked in disabled parking spaces;

• The signage in front of at least one disabled parking space is obstructed by the bushes in which it is posted.Without signage that is visible, Kohler cannot determine which spaces are intended to be accessible to him.Moreover, with signage that is not visible, non-disabled drivers can park in these spaces, leaving none available for Kohler;

• The signage in front of at least one disabled parking space is incorrect and uses the term ‘handicapped.’This term is insulting to disabled persons, causing possible emotional harm and/or injury;

• The signage on numerous disabled parking spaces is incorrect.Without correct signage, Kohler cannot determine which spaces are intended to be accessible to him.Moreover, with signage that is not correct, non-disabled drivers can park in these spaces, leaving none available for Kohler;

• Most (if not all) of the access aisles have slopes and cross slopes that exceed 2.0 % due to an encroaching built-up curb ramp.Without a level access aisle, Kohler has a difficult time transferring from his vehicle to his wheelchair;

• The slopes of most (if not all) of the built-up ramps leading from the disabled parking spaces to the sidewalk are too steep, making them difficult for Kohler to traverse;

• The slopes and cross slopes of most (if not all) of the disabled parking spaces exceed 2.0% due to encroaching built-up curb ramps.Without a level parking space, it is difficult for Kohler to transfer from his vehicle to his wheelchair;

• There are no parking spaces designated as being van accessible.Without these spaces, Kohler cannot unload from a lift when traveling by van; and

• None of the access aisles have the words “no parking” painted on them.Without this language clearly displayed, vehicles can park in the access aisle, rendering it (and the adjacent parking spaces) unusable by Kohler.”⁸

Kohler alleges that these barriers not only prevented him from enjoying full and equal access to the Shopping Center, but also deterred him from visiting the Shopping Center “because of the future threat[ ] of injury created by the [ ] barriers.”⁹He contends that “CJP, Limited knew that these elements and areas of the Shopping Center were inaccessible, violate[d] state and federal law, and interfere[d] with ... access [for] the physically disabled.”He asserts additionally that “CJP, Limited has the financial resources to remove the[ ] barriers ...,” but has refused to do so or to “seek an unreasonable hardship exemption to excuse non-compliance.”¹⁰Kohler asserts that “CJP, Limited has intentionally maintained the Shopping Center in its current condition,”¹¹ and that “the (continued) presence of barriers at the shopping center is so obvious as to establish CJP, Limited's discriminatory intent.”¹²

Kohler seeks damages, injunctive and declaratory relief, attorneys' fees and costs.¹³

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7–15, the court finds this matter appropriate for decision without oral argument.The hearing scheduled for July 25, 2011 is therefore vacated and taken off calendar.

II.DISCUSSION

A.Legal Standard Governing Motions To Dismiss UnderRule 12(b)(1)

The party mounting a Rule 12(b)(1) challenge to the court's jurisdiction may do so either on the face of the pleadings or by presenting extrinsic evidence for the court's consideration.SeeWhite v. Lee,227 F.3d 1214, 1242(9th Cir.2000)(“Rule 12(b)(1) jurisdictional attacks can be either facial or factual”);Thornhill Publishing co. v. General Tel. & Electronics,594 F.2d 730, 733(9th Cir.1979)(facial attack);Meliezer v. Resolution Trust Co.,952 F.2d 879, 881(5th Cir.1992)(challenge based on extrinsic evidence).The plaintiff bears the burden of demonstrating that the court has subject matter jurisdiction to hear the action.SeeKokkonen v. Guardian Life Ins. Co.,511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391(1994);Stock West, Inc. v. Confederated Tribes,873 F.2d 1221, 1225(9th Cir.1989).

There is an important difference between Rule 12(b)(1) motions attacking the complaint on its face and those that rely on extrinsic evidence.In ruling on the former, courts must accept the allegations of the complaint as true.SeeValdez v. United States,837 F.Supp. 1065, 1067(E.D.Cal.1993), aff'd, 56 F.3d 1177(9th Cir.1995).In deciding the latter, courts may weigh the evidence presented, and determine the facts in order to evaluate whether they have power to hear the case.SeeRoberts v. Corrothers,812 F.2d 1173, 1177(9th Cir.1987).The “court may not[, however,] resolve genuinely disputed facts where ‘the question of jurisdiction is dependent on the resolution of factual issues going to the merits.’ ”Id.(quotingAugustine v. United States,704 F.2d 1074, 1077(9th Cir.1983)).See alsoRosales v. United States,824 F.2d 799, 803(9th Cir.1987)(“A district court may hear evidence and make findings of fact necessary to rule on the subject matter jurisdiction question prior to trial, if the jurisdictional facts are not intertwined with the merits”).

Where jurisdiction is intertwined with the merits of the case, “the district court[must] assume[ ] the truth of the allegations in a complaint ... unless controverted by undisputed facts in the record,”Roberts,812 F.2d at 1177, or treat the motion as a motion for summary judgment, Careau Group v. United Farm Workers,940 F.2d 1291, 1293(9th Cir.1991)(“[W]here jurisdiction is so intertwined with the merits that its resolution depends on the resolution of the merits, ‘the trial court should employ the standard applicable to a motion for summary judgment’ ”).See alsoIslands, Inc. v. United States Bureau of Reclamation,64 F.Supp.2d 966, 968(E.D.Cal.1999)(“A court is required to convert a Rule 12(b)(1)motion to dismiss into a Rule 12(b)(6) motion or Rule 56summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case”), vacated on other grounds, 10 Fed.Appx. 491(9th Cir.2001);Laurence v. United States,No. C–93–0381–DLJ, 1993 WL 266657, *2(N.D.Cal.July 8, 1993)(same).

B.Legal Standard Governing Article III Standing

“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.”City of Los Angeles v. Lyons,461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675(1983).“[T]o satisfy Article III's standing requirements, a plaintiff must show (1)[he] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610(2000).Where a plaintiff seeks declaratory and injunctive relief, there is a further requirement.He must show a significant possibility of future harm; it is insufficient to demonstrate only a past injury.SeeSan Diego County Gun Rights Committee v. Reno,98 F.3d 1121, 1126(9th Cir.1996).The party invoking federal jurisdiction bears the burden of establishing that each element of standing is met.Lujan v. Defenders of Wildlife,504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992).

1.Whether Kohler Has Standing to Sue Under the ADA

CJP contends that Kohler lacks standing to sue under the ADA because he“has failed to allege ... that he personally suffered discrimination[ ] as to the encountered barriers” because the complaint contains “no allegations of any personal encounter....”¹⁴This argument is unavailing as the amended complaint specifically alleges that “Kohler visited the Shopping Center and encountered barriers ... that interfered with ... his ability to...