Dytch v. Moussaka Mediterranean Kitchen LLC

Background

Albert Dytch brought a disability-access action against Moussaka Mediterranean Kitchen LLC; Croce Bevilacqua, trustee of the 2003 Bevilacqua Family Trust; and Marisa Bevilacqua, trustee of the 2003 Bevilacqua Trust. Dytch alleged that he has muscular dystrophy, uses a wheelchair, and encountered six barriers during a February 28, 2020 visit to Moussaka Mediterranean Kitchen in San Leandro, California.

His claims arose under Title III of the Americans with Disabilities Act, the California Unruh Civil Rights Act, and California Government Code § 4450 and/or California Health and Safety Code § 19955. After the parties conducted a site inspection and mediation, Dytch moved for leave to file a First Amended Complaint adding access barriers identified after the lawsuit began. The defendants did not oppose the motion.

Legal standard

Under Federal Rule of Civil Procedure 15, once the period for amending a pleading as a matter of course has passed, a party generally needs the opposing party’s consent or the court’s permission to amend. Courts should freely grant permission when justice requires. Relevant factors include undue delay, bad faith, prejudice to the opposing party, whether the amendment would be futile, and whether the party previously failed to correct deficiencies.

The court also discussed Ninth Circuit precedent concerning disability-access claims. That precedent allows a person who has standing based on alleged access barriers to conduct discovery regarding other barriers that existed when the claim was brought. The barriers together may support a single alleged injury based on the failure to remove architectural barriers.

Court’s reasoning

The court concluded that Dytch was entitled to add the later-identified barriers. The motion was timely, there was no evidence of bad faith or a delaying motive, the case remained in its early stages, and the amendment was unlikely to affect the schedule. Because the defendants did not oppose the motion, they did not argue that the amendment would prejudice them, and the court saw no apparent prejudice.

The court also found that the amendment did not appear futile because the proposed complaint would add factual allegations supporting Dytch’s existing claims rather than introduce an unrelated legal theory. The court stated that allowing the amendment would avoid piecemeal litigation and further the purpose of the Americans with Disabilities Act.

Disposition

The court granted Dytch’s motion for leave to file a First Amended Complaint. It ordered him to file the amended complaint within seven days of the order. The order addressed permission to amend the pleadings; it did not decide the ultimate merits of Dytch’s disability-access claims.