ORDER RE MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND VACATING HEARING

WILLIAM ALSUP, District Judge.

In this ADA action, plaintiff seeks leave to file a first amended complaint. Defendants oppose. For the foregoing reasons, plaintiff's motion is GRANTED

Plaintiff Gerardo Hernandez initiated this action in December 2018 against defendants Saberi Oil and Thomas Saberi. Plaintiff has alleged among other claims violations of Title III of the ADA by Jefferson Gas & Shop in Redwood City which is owned, operated, and/or leased by defendants. In March 2019, the parties conducted a joint site inspection of the gas station pursuant to General Order 56. Plaintiff filed the instant motion on July 19. This order follows full briefing. Pursuant to our local civil rule 7-1(b), this order finds plaintiff's motion suitable for submission without oral argument and hereby VACATES the September 12 hearing.

Plaintiff seeks leave to file a first amended complaint adding allegations regarding access barriers identified at the joint site inspection. FRCP 15(a)(2) permits a party to amend its pleading with the court's leave, stating that "[t]he court should freely give leave when justice so requires." In the FRCP 15 context, our court of appeals has instructed that "[f]ive factors are frequently used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment[,] and (5) whether plaintiff has previously amended his complaint." Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). These factors weigh in favor of granting leave.

First, defendants argue granting leave would be futile because plaintiff does not have standing to add the new barriers alleged in his proposed first amended complaint. This motion seeks only to add barriers at the same gas station already the subject of the lawsuit. It does not seek to add additional parking lots or businesses. These additional barriers came to light during the site inspection under General Order 56. Contrary to defendants' arguments, plaintiff does have standing to add these barriers at the gas station because plaintiff testified he had visited the same gas station many times. He was also able to see the doorway to the restroom and that it was inaccessible. But even if plaintiff had not seen the doorway to the restroom, he would have standing because of the frequency in which he had visited the gas station, and in due course can be expected to need to use the restroom. This is not a case, at least according to plaintiff's deposition testimony, where the ADA plaintiff merely drives by a previously unknown store and adds it to the list of ADA target defendants.

Second, defendants argue that they will be prejudiced if leave to amend is granted by merely contending further discovery would be required and plaintiff's deposition has already been taken. Accordingly, plaintiff may be deposed for three more hours. For the reasons stated above, plaintiff's motion for leave to amend the complaint is GRANTED. The hearing scheduled for September 12 is VACATED. Plaintiff shall file the first amended complaint attached to her motion as a separate docket entry by AUGUST 23 AT NOON.

IT IS SO ORDERED.