Whitaker v. Nick The Greek Santa Clara LLC

Background

Brian Whitaker, who uses a wheelchair for mobility, alleged that he visited Nick The Greek in November 2021 and encountered outdoor dining surfaces without enough knee or toe clearance for wheelchair users. He alleged that the barriers violated the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act. He sought an injunction requiring compliance with the ADA, equitable nominal damages under the ADA, statutory damages under the Unruh Act, and attorney’s fees and costs.

The defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the court lacked subject-matter jurisdiction because Whitaker lacked standing to seek injunctive relief. The defendant specifically challenged whether Whitaker genuinely intended to return to the restaurant. Whitaker opposed the motion and submitted a sworn declaration stating that he frequently traveled to the Bay Area and intended to return to the restaurant after receiving assurance that it was accessible.

Judicial Notice

The court granted the defendant’s request for judicial notice as to Exhibits 1 through 8, which included case lists, court filings, and other public records. The court stated that these materials would not be accepted as proof of the truth of the factual statements or legal conclusions contained in them. The court denied the request as to Exhibits 9 through 14 because those documents were not properly referenced or attached in the relevant filings.

Standing Analysis

For an ADA plaintiff seeking injunctive relief, standing requires a real and immediate threat of repeated injury. The court explained that an ADA plaintiff may establish this by showing either that accessibility barriers deterred the plaintiff from returning or that the plaintiff suffered an injury and intends to return to the noncompliant facility.

Because the defendant made a factual challenge to jurisdiction, the court could consider evidence outside the complaint. Whitaker therefore had to provide evidence supporting his standing. The court found that his sworn declaration was direct evidence of his intent to return, even though his statements were somewhat broad.

The defendant relied on Whitaker’s litigation history, testimony from other cases, and evidence concerning his plans and intentions regarding other businesses. The court found this evidence insufficient to overcome Whitaker’s sworn declaration because it was circumstantial and did not directly address whether he intended to return to this particular restaurant. The court also declined to require additional standing factors that some other district courts had used, finding that the Ninth Circuit had not adopted those extra requirements.

The court concluded that Whitaker had alleged and supported enough facts to establish standing to seek injunctive relief at this stage. Because the ADA claim could proceed, and because an ADA violation constitutes a violation of the Unruh Act under the authority cited by the court, the court also declined to dismiss the Unruh Act claim.

Disposition

The court DENIED the defendant’s Motion to Dismiss.