Whitaker v. Gundogdu, Inc.

Background

Brian Whitaker, who uses a wheelchair, alleged that he encountered unlawful accessibility barriers when he visited Gundogdu, Inc.’s Van Ness Café & Gyros in April 2021. Specifically, he alleged that the restaurant lacked an outdoor dining surface accessible to wheelchair users under the Americans with Disabilities Act (ADA). He brought claims under the ADA and California’s Unruh Civil Rights Act.

After being served with the lawsuit, Gundogdu retained a Certified Access Specialist, who inspected the restaurant. The specialist reported that the restaurant had sufficient accessible indoor and outdoor dining surfaces. The parties later conducted a joint site inspection, and both accessibility consultants found no remaining access barriers. Gundogdu then asked Whitaker to dismiss the ADA claim, but he declined.

ADA Claim

Gundogdu moved under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction. It argued that Whitaker’s ADA claim was moot because the alleged barrier had been removed and was not reasonably likely to recur.

The court explained that a private ADA plaintiff may seek injunctive relief—an order requiring removal of an access barrier—and attorney’s fees, but not damages under the claim at issue. Because the alleged barriers had been corrected, the claim would be moot unless Whitaker showed a real and immediate threat that he would face a similar injury again.

Because Gundogdu’s mootness argument involved facts closely connected to the underlying ADA allegations, the court applied the standard used for summary judgment. Under that standard, the court had to draw reasonable inferences in Whitaker’s favor and could not resolve genuine factual disputes.

The court nevertheless concluded that Gundogdu had shown there was no genuine dispute that the barriers had been removed. Neither accessibility consultant identified any remaining access barrier, and Whitaker did not provide evidence that any barrier remained. The court also found no genuine dispute that the violation was unlikely to recur. Gundogdu had promptly hired an access consultant, installed an accessible outdoor table, stated that it intended to keep the table while it operated the restaurant or was allowed to offer outdoor tables on the sidewalk, and had a history of providing accessible indoor dining.

The court rejected Whitaker’s argument that he needed additional discovery. It noted that he had not identified any discovery that could create a genuine factual dispute about jurisdiction. The court therefore dismissed the ADA claim as moot.

Unruh Act Claim

The court stated that Whitaker’s Unruh Act claim remained live because that claim seeks damages for past harm. However, after dismissing the federal ADA claim, the only stated basis for federal jurisdiction over the Unruh Act claim was supplemental jurisdiction, which allows a federal court to hear related state-law claims in the same case.

The court declined to exercise that discretionary jurisdiction because it had dismissed all claims over which it had original federal jurisdiction. It dismissed the Unruh Act claim without prejudice to refiling in state court. The court also denied Whitaker’s request to stay the case while the Ninth Circuit considered a related matter.

Disposition

The court granted Gundogdu’s motion to dismiss, dismissed Whitaker’s ADA claim, and dismissed his state-law Unruh Act claim without prejudice to refiling in state court. The order disposed of Docket No. 24.