Brian Whitaker v. Bhupinder S. Mac et al, No. 2:2019cv03002 - Document 22 (C.D. Cal. 2019)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS 15 by Judge Otis D. Wright, II: Defendants Motion to Dismiss for lack for subject matter jurisdiction is DENIED and Defendants request that this Court decline to exercise supplemental jurisdiction over Whitakers Unruh Act Claim is GRANTED. (lc). Modified on 10/1/2019 (lc).
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Brian Whitaker v. Bhupinder S. Mac et al Doc. 22 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 Brian Whitaker, 12 Case No. 2:19-cv-03002-ODW (Ex) Plaintiff, 13 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [15] v. 14 Bhupinder S. Mac; Apro, LLC, 15 Defendants. 16 17 I. 18 INTRODUCTION 19 Defendants Bhupinder S. Mac and Apro, LLC (“Defendants”) move to dismiss 20 Plaintiff Brian Whitaker’s complaint for lack of subject matter jurisdiction under 21 Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) and ask the Court to decline to 22 exercise supplemental jurisdiction over his California Unruh Act claim. (See generally 23 Defs.’ Mot. to Dismiss (“Mot.”), ECF No. 15.) For the reasons below, Defendants’ 24 Motion is DENIED in Part and GRANTED in Part.1 25 26 27 28 1 After carefully considering the papers filed in support of the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Dockets.Justia.com II. 1 FACTUAL BACKGROUND 2 Brian Whitaker (“Whitaker”) initiated this action on April 18, 2019, for 3 violations of the Americans with Disabilities Act (“ADA”) and related state-law claims. 4 (See generally Compl., ECF No. 1.) On June 7, 2019, Defendants moved to dismiss for 5 lack of subject matter jurisdiction and decline supplemental jurisdiction. (See generally 6 Mot.) 7 Whitaker is a California resident with physical disabilities. (Compl. ¶ 1.) 8 Whitaker is substantially limited in his ability to walk and requires the use of a 9 wheelchair for mobility. (Compl. ¶ 1.) In March 2019, Whitaker visited Chevron, 10 located at 14505 Ventura Blvd., Sherman Oaks, California. (Compl. ¶¶ 5, 10.) During 11 his visit, Whitaker alleges that he encountered inaccessible paths of travel that do not 12 comply with handicap accessibility requirements under the ADA. (Compl. ¶ 13.) 13 Whitaker alleges that he will return to avail himself of goods or services but is currently 14 deterred from visiting because of his knowledge of the existing barriers. (Compl. ¶ 20.) 15 Defendants argue that this Court should dismiss Whitaker’s claims because he lacks 16 standing. (Mot. 1.) Specifically, Defendants argue that Whitaker has not sufficiently 17 plead an injury in fact to satisfy the Article III standing requirement. (Mot. 3–6.) 18 Defendants also request that the Court decline to exercise supplemental jurisdiction 19 over Whitaker’s Unruh Act claim. (Mot. 7.) III. 20 LEGAL STANDARD 21 A. Subject Matter Jurisdiction 22 Pursuant to FRCP 12(b)(1), a party may move to dismiss a case for lack of subject 23 matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Article III, Section 2, of the United States 24 Constitution restricts the federal “judicial power” to the resolution of “Cases” and 25 “Controversies,” and this case-or-controversy requirement is met where the plaintiff has 26 standing to bring his or her suit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 27 (1992); see also Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). Like all 28 plaintiffs, ADA plaintiffs must establish standing at each stage of the litigation, but the 2 1 “Supreme Court has instructed us to take a broad view of constitutional standing in civil 2 rights cases, especially where, as under the ADA, private enforcement suits ‘are the 3 primary method of obtaining compliance with the Act.’” Doran v. 7-Eleven, Inc., 524 4 F.3d 1034, 1039 (9th Cir. 2008) (quoting Trafficante v. Metro Life Ins. Co., 409 U.S. 5 205, 209 (1972)). 6 Under FRCP 12(b)(1), a complaint may be dismissed for lack of subject matter 7 jurisdiction. “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air 8 for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the 9 challenger asserts that the allegations contained in a complaint are insufficient on their 10 face to invoke federal jurisdiction.” Id. “[I]n a factual attack, the challenger disputes 11 the truth of the allegations that, by themselves, would otherwise invoke federal 12 jurisdiction.” Id. 13 B. 14 In an action over which a district court possesses original jurisdiction, that court 15 “shall have supplemental jurisdiction over all other claims that are so related to claims 16 in the action within such original jurisdiction that they form part of the same case or 17 controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). 18 Even if supplemental jurisdiction exists, district courts have discretion to decline to 19 exercise supplemental jurisdiction: 20 21 22 23 24 25 26 27 28 Supplemental Jurisdiction The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). The Supreme Court has described 28 U.S.C. § 1367(c) as a “codification” of the principles of “‘economy, convenience, fairness, and comity’” that 3 1 underlie the Supreme Court’s earlier jurisprudence concerning pendent jurisdiction. 2 City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 172–73 (1997) (quoting 3 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988)); see also United Mine 4 Workers v. Gibbs, 383 U.S. 715, 726 (1966) (citation omitted) (“It has consistently been 5 recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. 6 Its justification lies in considerations of judicial economy, convenience and fairness to 7 litigants; if these are not present a federal court should hesitate to exercise jurisdiction 8 over state claims, even though bound to apply state law to them. Needless decisions of 9 state law should be avoided both as a matter of comity and to promote justice between 10 the parties, by procuring for them a surer-footed reading of applicable law.”). 11 District courts may decline to exercise jurisdiction over supplemental state law 12 claims “[d]epending on a host of factors” including “the circumstances of the particular 13 case, the nature of the state law claims, the character of the governing state law, and the 14 relationship between the state and federal claims.” City of Chicago, 522 U.S. at 173. 15 The supplemental jurisdiction statute “reflects the understanding that, when deciding 16 whether to exercise supplemental jurisdiction, ‘a federal court should consider and 17 weigh in each case, and at every stage of the litigation, the values of judicial economy, 18 convenience, fairness, and comity.’” Id. (quoting Cohill, 484 U.S. at 350). 19 The Ninth Circuit does not require an “explanation for a district court’s reasons 20 [for declining supplemental jurisdiction] when the district court acts under” 28 U.S.C. 21 §§ 1367(c)(1)-(3), San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 478 (9th 22 Cir. 1998), but does require a district court to “articulate why the circumstances of the 23 case are exceptional in addition to inquiring whether the balance of the Gibbs values 24 provide compelling reasons for declining jurisdiction in such circumstances.” Exec. 25 Software N. Am. Inc. v. U.S. Dist. Court for the Cent. Dist. of Cal., 24 F.3d 1545, 1558 26 (9th Cir. 1994). According to the Ninth Circuit, this “inquiry is not particularly 27 burdensome.” Id. When declining to exercise supplemental jurisdiction under 28 28 U.S.C. § 1367(c)(4), “the court must identify the predicate that triggers the applicability 4 1 of the category (the exceptional circumstances), and then determine whether, in its 2 judgment, the underlying Gibbs values are best served by declining jurisdiction in the 3 particular case (the compelling reasons).” Id. IV. 4 5 6 7 8 9 10 A. DISCUSSION Subject Matter Jurisdiction To establish Article III standing, Whitaker must demonstrate that: (1) he has suffered an “injury in fact” that is concrete and particularized and actual or imminent; (2) the injury is fairly traceable to the challenged actions of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 11 Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 868–69 (9th Cir. 2002) (citing Friends 12 of the Earth, Inc. v. Laidlaw Env’t Servs. Inc., 528 U.S. 167, 180–81 (2000)). Once a 13 defendant moves to dismiss for lack of subject matter jurisdiction, the plaintiff bears the 14 burden of establishing the court’s subject matter jurisdiction. 15 Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Chandler v. State Farm Mut. Auto. 16 Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). See Kokkonen v. 17 Additionally, in order for ADA plaintiffs to establish standing to pursue 18 injunctive relief, which is the only relief available under the ADA, they must 19 demonstrate a “real and immediate threat of repeated injury” in the future. Fortyune v. 20 American Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (quoting O’Shea v. 21 Littleton, 414 U.S. 488, 496 (1974)). 22 Whitaker has suffered an injury in fact. Whitaker alleged he visited Chevron in 23 March 2019. (Compl. ¶ 10.) During the visit, Whitaker allegedly encountered an access 24 barrier on Defendants’ premise which prevented him a safe wheelchair accessible route 25 of travel to the entrance of the Gas Station store. (Compl. ¶¶ 1, 13 n.1, 15.) Whitaker 26 alleges that the barrier denied him full and equal access to the entrance of the store and 27 caused him difficulty and frustration. (Compl. ¶¶ 16–17.); see Chapman v. Pier 1 28 Imports (U.S.) Inc., 631 F.3d 939, 947 (9th Cir. 2002) (holding that alleged barriers 5 1 “need only interfere with the plaintiff’s ‘full and equal enjoyment’ of the facility” for a 2 plaintiff to suffer an injury in fact). Thus, Whitaker has suffered an injury in fact, and 3 the first standing element is met. 4 Whitaker’s injury is also traceable to the actions of Defendants and is redressable 5 by the courts. See Doran, 524 F.3d at 1042 n.5 (holding that once an ADA plaintiff has 6 encountered or becomes aware of alleged barriers that deter him from visiting the 7 establishment or interfere with his access to the premises, he has suffered an injury in 8 fact traceable to the defendant’s conduct and redressable by the courts). 9 Although an encounter with barriers in violation of the ADA is sufficient to show 10 an injury in fact for the purpose of standing, since an ADA plaintiff seeks injunctive 11 relief, he must also show “a sufficient likelihood that he will again be wronged in a 12 similar way.” Chapman, 631 F.3d at 948 (quoting City of Los Angeles v. Lyons, 461 13 U.S. 95, 111 (1983)). To satisfy this standard, an ADA plaintiff must show a “real and 14 immediate threat of repeated injury.” Lyons, 461 U.S. at 102. Thus, an ADA plaintiff 15 can show that “either he is deterred from returning to the facility or that he intends to 16 return to the facility and is therefore likely to suffer repeated injury.” Chapman, 631 17 F.3d at 953. 18 Whitaker need not return to the store, it is enough that he is deterred from visiting 19 the store due to the alleged barriers. However, an ADA plaintiff “lacks standing if he 20 is indifferent to returning to the store or if his alleged intent to return is not genuine, or 21 if the barriers he seeks to enjoin do not pose a real and immediate threat to him due to 22 his particular disability.” Id. “So long as the discriminatory conditions continue, and 23 so long as a plaintiff is aware of them and remains deterred, the injury under the ADA 24 continues.” Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 (9th Cir. 25 2002). Whitaker alleges that he “will return to the Gas Station to avail himself of goods 26 or services and to determine compliance with the disability access laws once it is 27 represented to him that the Gas Station and its facilities are accessible.” (Compl. ¶ 20.) 28 However, Whitaker is deterred from visiting because his knowledge of these violations 6 1 prevents him from returning until the barriers are removed. (Compl. ¶ 20.) Whitaker 2 has adequately alleged that he is deterred from visiting Chevron. 3 4 5 Accordingly, Whitaker has demonstrated standing. Therefore, the Court DENIES Defendants’ motion to dismiss for lack of subject matter jurisdiction. B. Supplemental Jurisdiction 1. 6 California’s Limitations on the Filing of Construction-Related Accessibility Claims 7 8 “In 2012, in an attempt to deter baseless claims and vexatious litigation, 9 California adopted heightened pleading requirements for disability discrimination 10 lawsuits under the Unruh Act.” Velez v. Il Fornaio (America) Corp., CV 3:18-1840 11 CAB (MDD), 2018 WL 6446169, at *6 (S.D. Cal. Dec. 10, 2018). These heightened 12 pleading requirements apply to actions alleging a “construction-related accessibility 13 claim,” which California law defines as “any civil claim in a civil action with respect to 14 a place of public accommodation, including, but not limited to, a claim brought under 15 Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any 16 construction-related accessibility standard.” Cal. Civ. Code § 55.52(a)(1). California’s 17 heightened pleading standard for construction-related accessibility claims require a 18 plaintiff to include specific facts concerning the plaintiff’s claim, including the specific 19 barriers encountered or how the plaintiff was deterred and each date on which the 20 plaintiff encountered each barrier or was deterred. See Cal. Civ. Proc. Code § 425.50(a). 21 California law requires plaintiffs to verify their complaints alleging construction-related 22 accessibility claims. See Cal. Civ. Proc. Code § 425.50(b)(1). A complaint alleging 23 construction-related accessibility claims that is not verified is subject to a motion to 24 strike. Id. 25 When California continued to experience large numbers of these actions, 26 California imposed additional limitations on “high-frequency litigants.” 27 additional restrictions became effective on October 15, 2015. Under California law, a 28 “high-frequency litigant” is defined as: 7 These 1 2 3 4 5 6 7 A plaintiff who has filed 10 or more complaints alleging a constructionrelated accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation. Cal. Civ. Proc. Code § 425.55(b)(1). The definition of high-frequency litigant also extends to attorneys. See Cal. Civ. Proc. Code § 425.55(b)(2). In support of its imposition of additional requirements on high-frequency litigants, the California Legislature found and declared: 8 9 10 11 12 13 14 15 16 17 18 19 According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state’s Unruh Civil Rights Act (Section 51 of the Civil Code) and the federal Americans with Disability Act of 1990 (Public Law 101-336). 20 Cal. Civ. Proc. Code § 425.55(a)(2). In response to these “special and unique 21 circumstances,” Cal. Civ. Proc. Code § 425.55(3), California imposed a “high- 22 frequency litigant fee” requiring high-frequency litigants to pay a $1,000 filing fee at 23 the time of the filing of the initial complaint in addition to the standard filing fees. Cal. 24 Gov’t Code § 70616.5. California law also requires complaints filed by high-frequency 25 litigants to allege certain additional facts, including whether the action is filed by, or on 26 behalf of, a high-frequency litigant, the number of construction-related accessibility 27 claims filed by the high-frequency litigant in the preceding 12 months, the high- 28 frequency litigant plaintiff’s reason for being in the geographic area of the defendant’s 8 1 business, and the reason why the high-frequency litigant plaintiff desired to access the 2 defendant’s business. See Cal. Civ. Proc. Code § 425.50(a)(4)(A). Here, Whitaker falls 3 within the definition of a high-frequency litigant. (Pl.’s Opp’n to Mot. 15.) 4 2. Supplemental Jurisdiction 5 The Court declines to exercise supplemental jurisdiction over Whitaker’s Unruh 6 Act claim because California’s heightened pleading standards and increased filing fees 7 do not apply in federal court, plaintiffs can circumvent the restrictions California has 8 imposed on Unruh Act claims alleging construction-related accessibility claims simply 9 by relying on § 1367(a)’s grant of supplemental jurisdiction to file their Unruh Act 10 claims in federal court when they combine an Unruh Act claim with an ADA claim for 11 injunctive relief. The number of construction-related accessibility claims filed in the 12 Central District has skyrocketed both numerically and as a percentage of total civil 13 filings since California began its efforts to curtail the filing of such actions. According 14 to statistics compiled by the Clerk’s Office, in 2013, the first year in which California’s 15 initial limitations on such cases were in effect, there were 419 ADA cases filed in the 16 Central District, which constituted 3% of the civil actions filed. Filings of such cases 17 increased from 928 (7% of civil cases) in 2014, the year before the imposition of the 18 additional $1,000 filing fee and additional pleading requirements for high-frequency 19 litigants, to 1,386 (10% of civil cases) in 2016, the first full year of those requirements. 20 The number and percentage of such cases filed in the Central District has increased in 21 each year since California acted to limit the filings by high-frequency litigants, reaching 22 1,670 (12% of civil cases) in 2017, 1,670 (18% of civil cases) in 2018, and 1,868 cases 23 (24% of civil cases) in the first six months of 2019. 24 By enacting restrictions on the filing of construction-related accessibility claims, 25 California has expressed a desire to limit the financial burdens California’s businesses 26 may face for claims for statutory damages under the Unruh Act. By filing these actions 27 in federal court, Whitaker has evaded these limits and sought a forum in which he can 28 claim these state law damages in a manner inconsistent with the state law’s 9 1 requirements. This situation, and the burden the ever-increasing number of such cases 2 poses to the federal courts, presents “exceptional circumstances” and “compelling 3 reasons” that justify the Court’s discretion to decline to exercise supplemental 4 jurisdiction over Whitaker’s Unruh Act claim in this action under 28 U.S.C. § 5 1367(c)(4). 6 Declining to exercise supplemental jurisdiction over Whitaker’s Unruh Act claim 7 in these circumstances supports the values of judicial economy, convenience, fairness, 8 and comity: 9 10 11 12 13 As a high-frequency litigant . . . the Court finds it would be improper to allow Plaintiff to use federal court as an end-around to California’s pleading requirements. Therefore, as a matter of comity, and in deference to California’s substantial interest in discouraging unverified disability discrimination claims, the Court declines supplemental jurisdiction over Plaintiff’s Unruh Act claim. 14 Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1031 (S.D. Cal. 2017); see also Gibbs, 15 383 U.S. at 726. Although some plaintiffs and their counsel have argued that they file 16 in federal court not to evade California’s restrictions, but because of the quality of the 17 judges, the ease of the ECF system for filing, and the prevalence of federal ADA 18 decisional authority, the Court finds such arguments unpersuasive and belied by the 19 recent nature of the dramatic increase in the filing of such cases in federal court. Indeed, 20 those reasons, if true at all, do not explain why nearly nine times more construction- 21 related accessibility actions are being filed in the Central District in 2019 than were 22 filed in 2013. As one district court recently explained: 23 24 25 26 27 28 In attempting to show that his decision to file in federal court is not simply an attempt to evade California’s heightened pleading rules, Schutza insists the ‘quality of judges [and] the quality of legal rulings’ is higher in federal court. This argument, of course, flies in the face of our judicial system’s equal respect for state and federal courts. The convenience of electronic filing and the widespread availability of published opinions—other arguments Schutza advances—may be creature comforts that make filing 10 6 in federal court more enticing, but they hardly outweigh the disservice that is done to California’s efforts to implement and interpret its own law when federal courts exercise supplemental jurisdiction over these claims. If Schutza were able to articulate a persuasive reason for his decision to file in federal court, perhaps this would be a different story. As it stands, though, the Court can discern no basis for the state law claim being filed in federal court other than to prevent California from being able to apply and enforce its own rules. 7 Schutza v. Alessio Leasing, Inc. (Alessio Leasing), CV 18-2154 LAB (AGS), 2019 WL 8 1546950, at *3 (S.D. Cal. Apr. 8, 2019); see also Schutza, 262 F. Supp. 3d at 1031 (“It 9 is unclear what advantage—other than avoiding state-imposed pleading requirements— 10 Plaintiff gains by being in federal court since his sole remedy under the ADA is 11 injunctive relief, which is also available under the Unruh Act.”). “Federal courts may 12 properly take measures to discourage forum-shopping, and here, where Plaintiff has 13 filed over one hundred disability discrimination cases, and settled more than fifty of 14 them in a two-year period, the Court finds this to be a compelling reason to decline 15 supplemental jurisdiction.” Schutza, 262 F. Supp. 3d at 1031 (footnote omitted) (citing 16 Hanna v. Plumer, 380 U.S. 460, 467–68 (1965)). 1 2 3 4 5 17 California’s elected representatives, not this Court, have enacted laws restricting 18 construction-related accessibility claims, and, as a result, dictated that these claims be 19 treated differently than other actions. That the astronomical growth in the filing of these 20 cases in federal court has coincided with California’s limitations on construction-related 21 accessibility claims suggests that it is precisely because the federal courts have not 22 adopted California’s limitations on such claims that federal courts have become the 23 preferred forum for them. 24 The Court therefore concludes that “exceptional circumstances” and “compelling 25 reasons” support the Court’s decision to decline to exercise supplemental jurisdiction 26 over Whitaker’s Unruh Act claim under 28 U.S.C. § 1367(c)(4). 27 Exercising the Court’s discretion to decline supplemental jurisdiction does not 28 deprive Whitaker of any remedies. Nor does it allow an ADA claim for injunctive relief 11 1 to go unaddressed. The ADA claim remains pending in this Court. Moreover, by 2 declining to exercise supplemental jurisdiction, the Court is merely restoring the 3 balance Congress struck when it enacted the ADA and provided a private right of action 4 for injunctive relief and an award of attorneys’ fees, but did not allow for the recovery 5 of statutory damages. 6 7 Accordingly, the Court GRANTS Defendants’ motion to decline supplemental jurisdiction. V. 8 CONCLUSION 9 For the reasons discussed above, Defendants’ Motion to Dismiss for lack for 10 subject matter jurisdiction is DENIED and Defendants’ request that this Court decline 11 to exercise supplemental jurisdiction over Whitaker’s Unruh Act Claim is GRANTED. 12 13 IT IS SO ORDERED. 14 15 16 17 October 1, 2019 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 12
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