Organization for Adv. Of Minorities v. Brick Oven

• Decision Date: 15 September 2005
• Docket Number: No. 05-CV-1224IEGBLM.,05-CV-1224IEGBLM.
• Citation: 406 F.Supp.2d 1120
• Parties: ORGANIZATION FOR THE ADVANCEMENT OF MINORITIES WITH DISABILITIES SUING ON BEHALF OF ITS MEMBERS; and David Singletary, an individual, Plaintiffs, v. The BRICK OVEN RESTAURANT, et al., Defendants.
• Court: U.S. District Court — Southern District of California

406 F.Supp.2d 1120

ORGANIZATION FOR THE ADVANCEMENT OF MINORITIES WITH DISABILITIES SUING ON BEHALF OF ITS MEMBERS; and David Singletary, an individual, Plaintiffs, v. The BRICK OVEN RESTAURANT, et al., Defendants.

No. 05-CV-1224IEGBLM.

United States District Court, S.D. California.

September 15, 2005.

COPYRIGHT MATERIAL OMITTED

David C. Wakefield, Pinnock and Wakefield, San Diego, CA, for Plaintiffs.

David Warren Peters, Lawyers Against Lawsuit Abuse, William A. Adams, Norton Adams and Downey, San Diego, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

[Doc. No. 5.]

GONZALEZ, Chief Judge.

Presently before the Court is the motion of defendants Barney Scardino and Mary Scardino (collectively "defendants") to dismiss the complaint for lack of subject matter jurisdiction.¹ For the following reasons the Court grants in part and denies in part defendants' motion.

BACKGROUND

A. Factual Background

Plaintiff David Singletary uses a wheelchair for mobility because he is a paraplegic and unable to walk. (David Singletary Declaration ISO Opp. ¶ 3.) Defendants, through the Barney L. & Mary L. Scardino Trust, own the real property located at 915 S. Escondido Boulevard, Escondido, California 92025. (Compl.¶ 3.) Defendants' real property houses The Brick Oven Restaurant (the "restaurant").² Id.

On July 7, 2004, Singletary patronized the restaurant. (Compl.¶ 9.) As a result of Singletary's disability, he found it difficult to utilize the goods and services the restaurant offered. Singletary complains that the restaurant did not comply with the Americans with Disabilities Act of 1990 ("ADA") Guidelines for Buildings and Facilities. Id. at 10. Singletary claims to have personally encountered various access barriers. Specifically, Singletary alleges to have experienced access barriers in the parking lot, at the front entrance doors, in the restaurant itself, and in the men's restroom. Id. at 11-14. Singletary notified his attorney, David Wakefield, about the ADA violations he experienced at the restaurant. In response, Wakefield hired a consulting firm to confirm the existence of accessibility problems. (David Wakefield Declaration ISO Opp. ¶ 2.) The consultant identified at least fourteen ADA violations in addition to those Singletary personally experienced. (Compl.¶ 15.)

Defendants have an eighteen year old grandson with cerebral palsy who is confined to a wheelchair and a disabled forty-three year old daughter. (Declaration of Barny Scardino ISO Motion ¶ 2.) Accordingly, defendants maintained the restaurant so that there were no real or actual barriers to entry. Id. For example, at the time of Singletary's alleged visit, the restaurant had two disabled parking spaces, an eight foot wide marked accessible pathway, a level path of travel from the parking spaces into the restaurant, a wide double door entry, accessible seating, accessible passageways and doors to the bathrooms, and accessibility upgrades in the bathroom. Id.

On January 18, 2005, Wakefield mailed a "Notice Letter" to defendants identifying the barriers of access Singletary personally experienced at the restaurant.³ (Wakefield Decla. ¶ 5.) Wakefield did not receive a response. Id. Nevertheless, defendants are in the process of making modifications to the restaurant to ensure that it is in technical compliance with the ADA and California disability statutes. Defendants anticipate that said modifications will be completed by October 2005. (Scardino Decla. ¶ 2.)

Plaintiffs' complaint alleges: (1) violations of the ADA; (2) violations of California's Disabled Persons Act; and (3) violations of the California Unruh Civil Rights Act. Plaintiffs seek the following relief: (1) general damages; (2) damages of $4,000.00 pursuant to Cal. Civil Code § 52 for each and every offense of Cal. Civil Code § 51, Title 24 of the California Building Code, the ADA, and ADA Accessibility Guidelines; (3) injunctive relief, (4) attorneys' fees pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12205, and Cal. Civil Code § 55; and (5) treble damages pursuant to Cal. Civil Code §§ 52(a) and 54.3(a). (Compl. at 15-16.)

B. Procedural Background

The Organization for the Advancement of Minorities with Disabilities ("OAMD") and Singletary ("plaintiffs"), filed the instant civil action on June 15, 2005.⁴ (Doc. No. 1.) On July 28, 2005, defendant The Brick Oven Restaurant, defendant Mahmoodtorabi, and defendant Edith Mahmoodtorabi filed an answer to the complaint. (Doc. No. 3.) Defendants filed the instant motion to dismiss for lack of subject matter jurisdiction on August 4, 2005. (Doc. No. 5.) Plaintiffs filed an opposition on August 29, 2005, and defendants filed a reply on September 2, 2005. While oral argument was scheduled to be heard on September 12, 2005 before the Honorable Irma E. Gonzalez, the Court determined that oral argument was not necessary and took the matter under submission pursuant to Civil Local Rule 7.1(d)(1).

DISCUSSION

A. Legal Standards

1. Fed.R.Civ.P. 12(b)(1)

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. Of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Rule 12(b)(1) provides that a district court may dismiss a plaintiff's claim if the Court finds that it lacks subject matter jurisdiction to adjudicate the claim. FED. R. CIV. PROC. 12(b)(1). A motion to dismiss under Rule 12(b)(1) can be either "factual" or "facial." Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); 2 Moore's Federal Practice § 12.30 (2004). If the defendant brings a facial attack, arguing that the allegations in the complaint are insufficient to demonstrate the existence of jurisdiction, the Court's inquiry is much the same as when ruling on a motion to dismiss brought under Rule 12(b)(6). Moore's Federal Practice § 12.30. Specifically, the Court must assume that the factual allegations in the complaint are true and construe them in the light most favorable to the plaintiff. Id.; Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000).

Where a defendant brings a "facial attack," the court's decision is based on extrinsic evidence quite apart from the pleadings. Gould, 220 F.3d at 176. In ruling on a facial attack, a court can consider extrinsic evidence, and generally may weigh the evidence and determine the facts in order to satisfy itself as to its power to hear the case. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). However, this standard does not apply to the resolution of jurisdiction questions when "issues of jurisdiction and substance are intertwined." Id.

Where federal question jurisdiction depends on facts that are also an essential element of the federal claim, the jurisdictional and factual issues are said to be intertwined. Normally, the question of jurisdiction and the merits of an action are considered intertwined where the same statute provides the basis for both the subject matter jurisdiction and the plaintiff's substantive claim for relief. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003). Where jurisdiction is intertwined with the merits, the court "assumes the truth of the allegations in a complaint ... unless controverted by undisputed facts in the record." Roberts, 812 F.2d at 1177. Thus, "jurisdictional dismissals in cases premised on federal-question jurisdiction are exceptional," and must satisfy the requirements specified in Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939, (1946). Id. In Bell v. Hood, the Supreme Court held that such dismissals are permitted "where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous." 327 U.S. at 682-83, 66 S.Ct. 773.

Accordingly, a court should not resolve disputed facts where the question of jurisdiction is dependent on the resolution of the factual issues going to the merits. Roberts, 812 F.2d at 1177. Where there are disputed facts, the court shall apply the Fed.R.Civ.P. 56 "summary judgment standard," i.e., the moving party must establish that there are no material facts in dispute and that he or she is entitled to prevail as a matter of law. Id.

2. Supplemental Jurisdiction Under 28 U.S.C. § 1367

Under 28 U.S.C. § 1367, where a district court has original jurisdiction over a claim, it also "shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367. The Ninth Circuit mandates that the exercise of supplemental jurisdiction unless it is prohibited by section 1367(b), or unless one of the exceptions in section 1367(c) applies. Executive Software N. Am., Inc. v. United States Dist. Ct. for the Cent. Dist. of Cal., 24 F.3d 1545, 1555-56 (9th Cir.1994). Thus, "unless a court properly invokes a § 1367(c) category in exercising its discretion to decline to entertain pendent claims, supplemental jurisdiction must be asserted." Id. at 1556. Under section 1367(c) a court my decline to exercise supplemental jurisdiction over a state claim if:

(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 district court has original jurisdiction;

(3) the district court has dismissed all claims over which it has original jurisdiction; or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

B. Analysis

1. Subject Matter Jurisdiction

Standing is a jurisdictional limitation; it is "an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d...