Garcia v. Quong Fook Tong

Background

Orlando Garcia, who uses a wheelchair and has cerebral palsy and other mobility-related limitations, sued Quong Fook Tong under the Americans with Disabilities Act (ADA). Tong owns the property where a lingerie store called Tartas’ Secret operates. Garcia alleged that he visited the business in June 2021 and encountered an excessively sloped path to the entrance that lacked required accessibility features. He alleged that he wanted to return and shop there but was deterred by the barrier.

Garcia’s original complaint also asserted a claim under California’s Unruh Civil Rights Act and alleged different access barriers. In an April 5, 2022 order, the court declined to exercise supplemental jurisdiction over the state-law claim, leaving only the ADA claim.

Garcia submitted declarations and photographs concerning his visit and later investigations. His declaration stated that he waited outside while a friend entered the business because he was concerned about navigating the sloped entrance. A private investigator later measured the slope. In response to an order seeking evidence that the business was not permanently closed, another investigator reported finding the business open in July 2022 and making a purchase there.

Motion and positions

Tong moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and Rule 12(h)(3) for lack of subject-matter jurisdiction. Tong argued that Garcia lacked Article III standing—the constitutional requirement that a plaintiff show a concrete, defendant-caused injury that is likely to be addressed by the court—because Garcia had not shown a genuine intent to return. Tong also argued that the business was closed when Garcia allegedly visited, that Garcia had sued many businesses after traveling to the Bay Area, and that a city inspection record showed the entrance complied with ADA standards.

Garcia disputed that the business was closed during his visit. He argued that his photographs showed the business was open and that decisions recognizing standing for ADA testers supported his case. He also stated that he regularly visited Northern California for vacation, eating, shopping, and his work identifying possible ADA violations.

Judicial notice

The court denied Tong’s request to take judicial notice of a complaint filed by district attorneys against Garcia’s law firm because that complaint contained unproven allegations and had no direct enough connection to the standing issue.

The court granted Tong’s request to take judicial notice of deposition excerpts from an earlier related proceeding involving Garcia, but only to recognize what Garcia said—not to accept Tong’s conclusions about those statements. The court also granted Tong’s request concerning the city inspection record because courts may take judicial notice of state and local agency records, and Garcia did not challenge that document’s authenticity.

Court’s analysis

The court explained that a Rule 12(b)(1) motion challenges subject-matter jurisdiction. A factual jurisdictional challenge allows the court to consider evidence outside the complaint and does not require the court to assume that the complaint’s allegations are true.

For an ADA plaintiff seeking an injunction, encountering an accessibility barrier can establish an injury in fact, but the plaintiff must also show a real and immediate threat of being injured again. A plaintiff may do this by showing that the barrier deters a return or that the plaintiff intends to return. General or conclusory statements about returning are not enough.

The court found that Garcia’s allegations and evidence were sufficient to show a concrete and personal injury. Garcia stated that he wanted to enter the business but waited outside because of the sloped ramp, and the investigator’s later photographs and measurements supported his account. Because Garcia uses a wheelchair, the alleged barrier was sufficiently connected to his disability.

The court nevertheless found that Garcia had not shown a genuine intent to return to Tartas’ Secret. Garcia testified that he lived in Los Angeles, nearly 400 miles away. His statement that he regularly visited Northern California and that his ADA-related activities brought him to the area was too general. The court found no specific evidence showing why Garcia intended to return to this particular business, such as an interest in its merchandise or the convenience or attractiveness of its location. The court also noted that Garcia’s declaration said his friend wanted to look around the store, while Garcia’s stated interest appeared focused on checking for ADA compliance.

The court distinguished a Ninth Circuit decision involving a facial jurisdictional challenge because this case involved evidence beyond the complaint. The court therefore concluded that Garcia had not shown imminent injury and lacked standing.

Disposition

The court granted Tong’s motion to dismiss. The case was dismissed, the Clerk was directed to enter judgment for Tong and close the file, and the court did not reach Tong’s alternative argument based on the city inspection record and alleged ADA compliance.