Opinion
22-cv-00919-PJH
06-01-2022
ORLANDO GARCIA, Plaintiff, v. ESTHER GOMEZ, et al., Defendants.
ORDER
RE: DKT. NO. 19
PHYLLIS J. HAMILTON, United States District Judge
The court is in receipt of defendants' request to continue the hearing set for their motion to dismiss. The request is procedurally defective, as it should have been filed as a motion for administrative relief pursuant to Civil Local Rule 7-11 and it should have been filed further in advance of the hearing date for defendants' motion. However, considering defense counsel's trial obligations and good cause appearing, the court GRANTS the request. The hearing on defendants' motion to dismiss (Dkt. 13) is hereby continued to a future date.
Defendants' motion to dismiss is based on a factual challenge to plaintiff's standing to pursue injunctive relief under the Americans with Disabilities Act. See D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008). In their moving papers, defendants raise several factual issues related to plaintiff's likelihood of returning to their place of public accommodation, and they request an evidentiary hearing limited to the issue of standing. Dkt. 13-1 at 19. The court GRANTS this request. See Hohlbein v. Hosp. Ventures LLC, 248 Fed.Appx. 804, 806 & n.2 (9th Cir. 2007) (“because the evidentiary burden to demonstrate standing remains on [plaintiff], the district court may revisit the issue of standing in an evidentiary hearing or at trial, where the controverted facts ‘must be supported adequately by the evidence adduced' there.” (quoting Lujan, 504 U.S. at 561)).
The evidentiary hearing will take place on July 7, 2022, at 1:30pm via Zoom. The court will “examine factors such as (1) the proximity of defendant's business to plaintiff's residence, (2) plaintiff's past patronage of defendant's business, (3) the definitiveness of plaintiff's plans to return, and (4) the plaintiff's frequency of travel near defendant.” Johnson v. Mantena LLC, No. 5:19-CV-06468-EJD, 2020 WL 1531355, at *4 (N.D. Cal. Mar. 31, 2020) (citation and quotation marks omitted). Plaintiff is ORDERED to appear. The court will determine after the evidentiary hearing whether further briefing or hearing on the motion to dismiss is necessary.
IT IS SO ORDERED.