Saniefar v. Moore et al, No. 1:2017cv00823 - Document 72 (E.D. Cal. 2018)

Court Description: MEMORANDUM DECISION and ORDER Denying Plaintiff's 56 Motion to Strike Affirmative Defenses and Granting Plaintiff's 57 Motion for Judgment on the Pleadings with Respect to Defendants' Counterclaims, signed by Chief Judge Lawrence J. O'Neill on 6/15/18. (Gonzalez, R)
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1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 FATEMEH SANIEFAR, 1:17-cv-00823-LJO-BAM MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S 7 v. MOTION TO STRIKE AFFIRMATIVE DEFENSES AND GRANTING 8 RONALD D. MOORE, TANYA E. MOORE, PLAINTIFF’S MOTION FOR KENNETH RANDOLPH MOORE, MAREJKA JUDGMENT ON THE PLEADINGS 9 SACKS, ELMER LEROY FALK, ZACHARY WITH RESPECT TO DEFENDANTS’ M. BEST, MOORE LAW FIRM, a California COUNTERCLAIMS 10 Professional Corporation, MISSION LAW FIRM, a California Professional Corporation, 11 GEOSHUA LEVINSON, RICK D. MOORE, (ECF Nos. 56, 57) WEST COAST CASP AND ADA SERVICES, a 12 California Corporation, RONNY LORETO, and DOES 1 THROUGH 100, inclusive, 13 14 Plaintiff, Defendants. 15 I. INTRODUCTION 16 17 18 Plaintiff Fatemeh Saniefar (“Plaintiff” or “Saniefar”) brings this action under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, against Defendants Ronald D. Moore, Tanya E. Moore, Kenneth Randolph (“Randy”) Moore, Marejka Sacks, Elmer Leroy Falk, 19 Zachary M. Best, Moore Law Firm, Mission Law Firm, Geoshua Levinson, Rick D. Moore, West Coast 20 21 22 CASp and ADA Services (“West Coast CASp”), Ronny Loreto, and Does 1 to 100 (collectively, “Defendants”). The First Amended Complaint (“FAC”) alleges that Defendants participated in a RICO conspiracy to extort ADA settlements from small businesses. Defendants’ motion to dismiss the FAC 23 was denied. Plaintiffs filed an answer identifying certain affirmative defenses, and alleging 24 counterclaims for retaliation under the ADA and the Unruh Act. Now before the Court are Plaintiff’s 25 26 1 1 motion strike certain affirmative defenses, and motion for judgment on the pleadings with respect to the 2 same counterclaims. This matter is now ripe for review and is suitable for disposition without oral 3 argument. See Local Rule 230(g). II. BACKGROUND 4 5 A. Prior Federal ADA Action Plaintiff and her late husband owned Zlfred’s, a restaurant located in Fresno, California. In July 6 7 2014, Ronald Moore filed an action against Plaintiff and others in federal court, alleging violations of 8 the Americans with Disabilities Act (“ADA”) and related state law claims (“Federal ADA Action”) 9 stemming from an alleged visit to Zlfred’s. Moore v. Saniefar, No. 1:14-CV-01067-DAD-SKO (E.D. 10 Cal.). The restaurant subsequently closed, and the court granted Plaintiff’s motion for judgment on the 11 pleadings as to the ADA claim on June 2, 2015, noting that “the fact that the Restaurant is no longer in 12 operation extinguishes Plaintiff's claim for prospective injunctive relief against the owners and operators 13 of the Restaurant under Title III of the ADA.” Moore v. Saniefar, No. 1:14-CV-01067-SKO, 2015 WL 14 3487066, at *3 (E.D. Cal. June 2, 2015). The case proceeded on the state law claims. Id. Ultimately, 15 the court declined to exercise jurisdiction over the state law claims, and Ronald Moore filed a complaint 16 in Fresno Superior Court against Plaintiff alleging a violation of the Unruh Act. That action is currently 17 pending. 18 B. The Instant Action 19 Plaintiff filed this action on June 20, 2017, alleging that Defendants violated RICO by filing 20 lawsuits based on false allegations against Zlfred’s and other small businesses for the purpose of 21 extorting settlements. (ECF Nos. 1, 33.) The crux of Plaintiff’s allegations are that 1) ADA plaintiff 22 Ronald Moore is not a disabled person, and that Defendants here made false statements about his 23 disability in the underlying Federal ADA Action, and 2) that Ronald Moore and others falsely claimed 24 that he actually visited Zlfred’s and experienced barriers there when in fact he did not. The Court 25 dismissed the original complaint with leave to amend (ECF No. 29), and Plaintiff filed the FAC on 26 2 1 January 3, 2018. Defendants moved to dismiss the RICO claim in the FAC on three grounds: (1) the 2 suit is barred by collateral estoppel; (2) the suit is barred because Defendants are immune from suit 3 under the Noerr-Pennington doctrine; and (3) Plaintiff fails to state a claim under RICO. (ECF No. 42- 4 1.) The Court denied the motion. (ECF No. 46.) Defendants filed an answer asserting various 5 affirmative defenses including failure to state a claim, statute of limitations, estoppel, laches, unclean 6 hands, failure to mitigate, immunity, and waiver. (ECF No. 53.) Defendants also filed counterclaims 7 alleging retaliation under the ADA and Unruh Act. Plaintiff now moves to strike three of Defendants’ 8 affirmative defenses (ECF No. 56) and moves for judgment on the pleadings as to Defendants’ 9 counterclaims for retaliation under the ADA and the Unruh Act (ECF No. 57). 10 C. Factual Basis for Counterclaims 11 In their counterclaims, Defendants allege that Plaintiff “brought a RICO action with the intention 12 of intimidating, threating, and interfering with [their] efforts enjoy the benefits conferred upon them by 13 the ADA, and/or on account of [them] having aided or encouraged Ronald Moore (and other persons 14 with disabilities) in the exercise and enjoyment of the rights granted by the ADA.” ECF No. at 50-64 15 (“Counterclaim”) ¶ 27. Defendants further allege that Plaintiff knew when she filed his RICO lawsuit 16 that it was meritless, and that the entire action is merely an effort to “damage [Defendants] reputation 17 within their communities and professional associations, as well as cost them significant amounts of 18 money to defend” the lawsuit. Id. ¶ 28. According to the Counterclaims, despite extensive investigation 19 and effort, Plaintiff has no evidence to support her claim that Ronald Moore is not disabled or that he did 20 not visit Zlfred’s as alleged in the FAC. Id. ¶¶ 35-36. 21 Defendants also allege that Plaintiff and her counsel worked with Fresno attorney Ty Kharazi to 22 put the Moore Law Firm and attorney Tanya E. Moore “out of business.” Id. ¶ 29. Their joint efforts 23 allegedly include Saniefar paying for Mr. Kharazi to represent Ronald Moore’s wife in divorce 24 proceedings against Ronald Moore in an effort to sway her testimony, among other schemes. Pointing 25 to statements that counsel for Plaintiff has made to the press, Defendants allege that Plaintiff and 26 3 1 Plaintiff’s counsel are motivated not by a legitimate claim, but by a desire to punish, intimidate, coerce, 2 and interfere with Defendants in an effort to prevent them from pursuing the rights promised by the 3 ADA. Id. ¶¶ 44-46. III. STANDARD OF DECISION 4 5 A. Motion To Strike Federal Rule of Civil Procedure 12(f) provides that a court may “order stricken from any 6 7 pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 8 “Immaterial matter is that which has no essential or important relationship to the claim for relief or the 9 defenses being pleaded . . . . Impertinent’ matter consists of statements that do not pertain, and are not 10 necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) 11 (citing 5A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL 12 2d, § 1382, pp. 706–07, 711 (1990)), rev’d. on other grounds, 510 U.S. 517 (1994). “Redundant” 13 allegations are those that are needlessly repetitive or wholly foreign to the issues involved in the action. 14 Gilbert v. Eli Lilly Co., Inc., 56 F.R.D. 116, 121, n.4 (D.P.R.1972). Immaterial matter “is that which has 15 no essential or important relationship to the claim for relief or the defenses being pleaded.” California 16 Dep’t of Toxic Substance Control v. ALCO Pacific, Inc., 217 F. Supp. 2d 1028, 1032 (C.D.Cal.2002) 17 (internal citations and quotations omitted). The purpose of a Rule 12(f) motion is to avoid the costs that 18 arise from litigating spurious issues by dispensing with those issues prior to trial. See Fogerty, 984 F.2d 19 at 1527; Sidney–Vinstein v. A .H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 20 B. Motion For Judgment On The Pleadings 21 Federal Rule of Civil Procedure 12(c) permits a party to seek judgment on the pleadings “[a]fter 22 the pleadings are closed-but early enough not to delay trial.” “A motion for judgment on the pleadings 23 should be granted where it appears the moving party is entitled to judgment as a matter of law.” Geraci 24 v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003). A “judgment on the pleadings is appropriate 25 when, even if all allegations in the complaint are true, the moving party is entitled to judgment as a 26 4 1 matter of law.” Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993). 2 “A judgment on the pleadings is a decision on the merits.” 3550 Stevens Creek Assocs. v. 3 Barclays Bank of Cal., 915 F.2d 1355, 1356 (9th Cir. 1990). A Rule 12(c) motion “is designed to 4 dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered 5 by looking to the substance of the pleadings and any judicially noticed facts.” Herbert Abstract Co. v. 6 Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per curiam). “[T]he central issue is whether, 7 in light most favorable to the plaintiff, the complaint states a valid claim for relief.” Hughes v. Tobacco 8 Inst., Inc., 278 F.3d 417,420 (5th Cir. 2001). “[A]ll allegations of fact of the opposing party are 9 accepted as true.” Austad v. United States, 386 F.2d 147, 149 (9th Cir. 1967). Thus, a motion for 10 judgment on the pleadings under Rule 12(c) is “functionally identical” to a motion to dismiss under Rule 11 12(b)(6). Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Although Rule 12(c) 12 does not mention leave to amend, courts have discretion to grant a Rule 12(c) motion with leave to 13 amend. See Carmen v. San Francisco Unified Sch. Dist., 982 F. Supp. 1396, 1401 (N.D. Cal. 1997). IV. DISCUSSION 14 15 A. Motion To Strike Affirmative Defenses 16 Plaintiff moves to strike Defendants’ first affirmative defense for failure to state a claim, fourth 17 affirmative defense for res judicata/collateral estoppel, and tenth affirmative defense for Noerr18 Pennington immunity on the grounds that the Court already rejected each of these arguments on legal 19 grounds in its Order denying Defendants motion to dismiss. 20 1. 21 Plaintiff argues that this defense should be stricken because the Court already determined that the First Affirmative Defense (Failure To State A Claim) 22 Complaint states a claim, and because “failure to state a claim” is not an affirmative defense. 23 Defendants concede that failure to state a claim is “technically” not an affirmative defense, but point out 24 that district courts in this circuit have declined to strike an affirmative defense for failure to state a 25 claim. (ECF No. 62 at 6 (citing Hernandez v. Balakian, No. CV-F-06-1383 OWW/DLB, 2007 WL 26 5 1 2 1649911 (E.D. Cal. 2007).) In Hernandez, the court recognized that Federal Rule of Civil Procedure 12(h)(2) provides that a 3 the defense of failure to state a claim may be made in any pleading permitted under Rule 7(a), which 4 includes the answer setting out affirmative defenses. Therefore, under the plain interpretation of the 5 rules, failure to state a claim can logically be pled in an answer. Id. at *2. 6 On the other hand, several courts have held that failure to state a claim is not an affirmative 7 defense. See Frazier v. City of Rancho Cordova, No. 2:15-cv-00873-TLN-KJN, 2016 WL 374567 (E.D. 8 Cal. Feb. 1, 2016) (collecting cases). Those courts have reasoned that failure to state a claim is more 9 properly characterized as a defect in plaintiff’s claim, not an affirmative defense. See Vogel v. 10 Huntington Oaks Del. Partners, LLC, 291 F.R.D. 438, 442 (C.D. Cal. 2013); see also Zivkovic v. S. Cal. 11 Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“that [a] plaintiff has not met its burden of proof as to 12 an element plaintiff is required to prove is not an affirmative defense”). 13 The Court agrees with the reasoning in Hernandez, and concludes that failure to state a claim can 14 be raised as an affirmative defense under a plain interpretation of the Federal Rules of Civil Procedure. 15 More importantly, as the Hernandez court recognized, “‘even when technically appropriate and well16 founded, Rule 12(f) motions often are not granted in the absence of a showing of prejudice to the 17 moving party.’” Id. at *1 (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and 18 Procedure § 1381 (3d ed.)); see also Weddle v. Bayer AG Corp., No. 11-CV-817JLS (NLS), 2012 WL 19 1019824, at *4 (S.D. Cal. 2012) (“Denials that are improperly pled as defenses should not be stricken on 20 that basis alone.”). The Court not persuaded that Defendants’ assertion of an affirmative defense for 21 failure to state a claim prejudices Plaintiff. Therefore, even if the Court had concluded that the defense 22 was improper, it would not have stricken it. 23 As to Plaintiff’s contention that failure to state a claim was raised and rejected by this Court in its 24 motion to dismiss order, the Court concludes that this is not an appropriate basis for striking the 25 affirmative defense. As Defendants point out, in denying its motion to dismiss, the Court considered the 26 6 1 facts in the light most favorable to Plaintiff. The Court does not consider the facts in the light most 2 favorable to Plaintiff in considering the instant motion to strike Defendants’ affirmative defenses. 3 Moreover, the Defendants’ argument for dismissing the FAC for failure to state a claim was narrow, and 4 did not encompass every possible deficiency in the FAC. It is inappropriate to strike an affirmative 5 defense if any facts could be proved to support it. The defense of failure to state a claim is broad enough 6 to encompass arguments that may rest on disputed facts. Accordingly, the motion to strike the first affirmative defense for failure to state a claim is 7 8 DENIED. 9 2. 10 Plaintiff moves to strike the fourth affirmative defense for res judicata/collateral estoppel on the Fourth Affirmative Defense (Res Judicata/Collateral Estoppel) 11 grounds that the Court already rejected this defense in denying Defendants’ motion to dismiss. As 12 Defendants point out, the Court considered the facts in the light most favorable to Plaintiff and 13 determined that the record was insufficient to establish the elements of collateral estoppel. The Court 14 did not determine that Defendants’ collateral estoppel argument was legally insufficient under any set of 15 facts. Therefore, the motion to strike is DENIED. 16 3. 17 Plaintiff moves to strike the fourth affirmative defense for Noerr-Pennington on the grounds that Tenth Affirmative Defense (Noerr-Pennington) 18 the Court already rejected this defense in denying Defendants’ motion to dismiss. As with the 19 affirmative defense for collateral estoppel, the Court’s rejection of Defendants’ Noerr-Pennington 20 defense assumed the truth of Saniefar’s allegations. The Court does not make that assumption in 21 connection with this motion to strike. As noted, it is inappropriate to strike an affirmative defense if 22 facts could be proved to support it. Defendants contend, and are entitled to try to establish, that they are 23 entitled to Noerr-Pennington immunity. Accordingly, the motion to strike is DENIED. 24 B. Motion For Judgment On The Pleadings 25 Plaintiff moves for judgment on the pleadings as to Defendants’ two counterclaims for retaliation 26 7 1 under the ADA and the Unruh Act. Plaintiff makes five arguments for why judgment should be granted 2 in their favor: 1) the ADA does not apply to Saniefar and therefore she cannot be subject to a retaliation 3 claim under it; 2) even if the ADA does apply to Saniefar, Defendants do not adequately allege that 4 Plaintiff acted to “coerce, intimidate, threaten, or interfere” under 42 U.S.C. § 12203(b); 3) Defendants’ 5 counterclaims are barred by statute of limitations; 4) the alleged retaliatory acts are protected First 6 Amendment activity under the Noerr-Pennington doctrine; and 5) the California Anti-SLAPP statute 7 protects the underlying conduct with respect to the conduct complained of in Defendants’ Unruh Act 8 counterclaim. (ECF No. 57.) 9 1. Liability for Retaliation/Coercion Under The ADA, 42 U.S.C. § 12203(b) 10 Defendants bring their retaliation claim pursuant to Subchapter IV of the ADA, 42 U.S.C. § 11 12203(b). Counterclaim ¶ 46. Plaintiff argues that she is entitled to judgment on the pleadings with 12 respect to this counterclaim because she is not a covered person under Subchapter III1 of the ADA since 13 she no longer owns or operates a place of public accommodation. Therefore, Plaintiff argues, she is not 14 subject to the retaliation provision of the ADA, which draws its remedies directly from that Subchapter. 15 Defendants argue that Plaintiff’s reading of the retaliation provision of the ADA is too narrow, and that 16 it applies broadly to any person who retaliates in connection with an ADA claim, regardless of whether 17 they are otherwise subject to the statute. The ADA prohibits discrimination in three areas: employment (Subchapter I); public services 18 19 (Subchapter II); and public accommodations (Subchapter III). Subchapter IV sets forth miscellaneous 20 provisions. See, e.g., 42 U.S.C. §§ 12202, 12205, 12203. The retaliation and coercion provisions 21 appear in this “miscellaneous” subchapter and provide, in relevant part, that “[i]t shall be unlawful to 22 23 24 1 The Court refers to the various sections of the ADA, sometimes referred to as “Titles,” as “Subchapters.” See Van Hulle v. Pacific Telesis Corp., 124 F. Supp. 2d 642, 643 n.2 (N.D. Cal. 2000) (“The ADA initially was enacted as Public Law 101– 336 and was organized into Titles I through V. When the ADA was codified as 42 U.S.C. § 12101, et seq., the ‘Titles' were re-labeled as ‘Subchapters.’”). 25 26 8 1 coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on 2 account of his or her having exercised or enjoyed, or on account of his or her having aided or 3 encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this 4 chapter.” 42 U.S.C. § 12203(b) (emphasis added).) The retaliation provision also outlines the remedies 5 available to a claimant alleging retaliation or coercion by referring the claimant to the remedial sections 6 of the appropriate subchapter. See Stern v. Cal. State Archives, 982 F. Supp. 690, 693 (E.D. Cal. 1997). 7 “An aggrieved party who complains that a ‘person’ retaliated against him or her in the context of public 8 accommodation is referred to Section 12188, the remedial provision for Subchapter III.” Id. Under 9 Subchapter III, the available remedy is injunctive relief. See 42 U.S.C. § 12188. 10 Plaintiff points out that Subchapter III applies only to “any person who owns, leases (or leases 11 to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Plaintiff argues that because 12 Plaintiff no longer operates a place of public accommodation, and is therefore no longer covered by 13 Subchapter III, she cannot be liable for retaliation under the ADA. 14 In support of her argument, Plaintiff relies primarily on the analysis in Van Hulle v. Pacific 15 Telesis Corp., 124 F. Supp. 2d 642 (N.D. Cal. 2000). Van Hulle concluded that plaintiff could not 16 maintain a retaliation claim against his group health plan insurance company, because the health plan 17 was not a good or service offered by a place of public accommodation, and therefore the company was 18 not covered by Subchapter III (or any other subchapter) of the ADA. See id. (noting that the alleged 19 retaliation “did not occur with respect to employment, public services, or public accommodations, (as 20 set forth in Subchapters I, II, and III of the ADA, respectively).”). Plaintiff argues based on that 21 decision that Saniefar, who no longer operates a place of public accommodation, is not covered by 22 Subchapter III and therefore cannot be the subject of a retaliation claim under 42 U.S.C. § 12203(b). 23 Van Hulle draws its reasoning from a line of cases concluding that a retaliation claim related to 24 employment (Subchapter I) cannot be brought against individual defendants because there is no remedy 25 against individuals under Subchapter I. See Stern v. California State Archives, 982 F. Supp. 690 (E.D. 26 9 1 Cal. 1997) (concluding that the only remedies available under the retaliation provision are those 2 available in the Subchapter referred to because “[w]hen Congress has explicitly provided remedies, there 3 is no need to imply remedies”); Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (“Because Title VII 4 does not authorize a remedy against individuals for violation of its provisions, and because Congress has 5 made the remedies available in Title VII applicable to ADA actions, the ADA does not permit an action 6 against individual defendants for retaliation for conduct protected by the ADA.”); Hiler v. Brown, 177 7 F.3d 542, 545-46 (6th Cir. 1999) (plaintiff’s argument that individuals could be sued for retaliation in 8 employment context did not “account for the statutory framework of the Rehabilitation Act, which 9 expressly provides that persons alleging retaliation under the Rehabilitation Act must look to the 10 enforcement provisions of Title VII”); see also Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1168-69 11 (11th Cir. 2003) (“That a statutory provision imposes such a duty . . . does not compel the further 12 conclusion that individual[s] . . . are amenable to private suit or otherwise liable for a breach of that 13 duty. For that, we must also examine the remedies created by the statute.”). 14 This Court is only aware of one case to the contrary. In Ostrach v. Regents of the Univ. of 15 Cal., the court interpreted subsection (a) of the retaliation provision applying to “any person” to allow 16 for suit of individual defendants in connection with Subchapter I, even though there is no remedy 17 against individuals under Subchapter I. 957 F. Supp. 196 (E.D. Cal. 1997). The court reasoned that the 18 “plain meaning” of the retaliation provision was to provide a remedy against individuals. In Van Hulle, 19 the court noted that “virtually all other courts have disagreed with Ostrach, holding that the retaliation 20 provision does not create individual liability in the employment context.” 124 F. Supp. 2d at 645. In 21 Stern, the court likewise concluded that Ostrach failed to take into account the full statutory structure, 22 which “expressly provides . . . remedies for workplace retaliation claims.” 982 F. Supp. at 694. The 23 court agrees with the reasoning in Stern, Van Hulle, and other cases concluding that the retaliation and 24 coercion provisions of § 12203 are curtailed by the remedies that would otherwise be available under the 25 relevant provision of the ADA identified in the statute. 26 10 The Court is not aware of any case that has addressed the precise circumstance here – namely, 1 2 whether an individual not amenable to suit under Subchapter III (public accommodations) of the ADA 3 can still be subject to suit for retaliation. However, the reasoning drawn from the cases outlined above 4 compels the conclusion that an individual not covered by the subchapter dictating the available remedies 5 cannot be sued for retaliation or coercion under the ADA. Here, the remedies available for retaliation 6 are those outlined under § 12188. Section 12188 in turn refers to the remedies available under 42 U.S.C. 7 § 2000a-3. That statute provides for “a civil action for preventive relief, including an application for a 8 permanent or temporary injunction, restraining order, or other order.” 42 U.S.C. § 2000e–3(a). 9 However, those remedies are not available against persons not subject to Subchapter III of the ADA. 10 See Van Hulle, 124 F. Supp. 2d at 646 (“a plaintiff cannot maintain an ADA retaliation claim against 11 entities which are not otherwise subject to Subchapters I, II, and III of the ADA”). Subchapter III 12 applies to persons who “own[], lease[] (or lease[] to), or operate[] a place of public accommodation.” 13 Plaintiff is not covered by or subject to Subchapter III, since it is undisputed that she no longer owns or 14 operates Zlfred’s. See Moore v. Saniefar, No. 1:14-CV-01067-SKO, 2015 WL 3487066, at *3 (E.D. 15 Cal. June 2, 2015) (“the fact that the Restaurant is no longer in operation extinguishes [Moore’s] claim 16 for prospective injunctive relief against the owners and operators of the Restaurant under Title III of the 17 ADA”). The alleged retaliation in this case is the filing of the instant lawsuit alleging a cause of action 18 under RICO. This lawsuit was filed on June 20, 2017. At that point, Saniefar was not a covered person 19 under Subchapter III of the ADA. Therefore, she cannot be sued for retaliation or coercion under the 20 ADA. 21 To be clear, the Court does not conclude, as other courts have in connection with retaliation 22 claims related to employment, that Plaintiff cannot be held liable for retaliation because she is an 23 individual. See Stern, 982 F. Supp. at 692-93; Albra v. Advan, Inc., 490 F.3d 826, 833-34 (11th Cir. 24 2007). Subchapter III does not expressly limit liability for individuals, and the Court would not 25 conclude that Saniefar could not be subject to individual liability under § 12203 here if she were still 26 11 1 otherwise subject to the ADA. The problem here is that Saniefar cannot be an ADA defendant because 2 she does not own or operate a place of public accommodation. Although the reason that remedies are 3 inapplicable to Saniefar is different from the cases outlined above, the reasoning is the same. 4 Defendants who are not otherwise subject to ADA remedies cannot be sued for retaliation under the 5 ADA. See Van Hulle, 124 F. Supp. 2d at 646. 6 Defendants argue that interpreting the statute not to apply broadly to any person who retaliates in 7 connection with an ADA claim regardless of whether they are otherwise subject to the ADA would 8 produce an “absurd result.” (ECF No. 65 at 8.) Defendants offer a hypothetical by way of illustration: 9 What if, because of ADA litigation, restaurant owners were forced to close? If the now former restaurant owners decided to vandalize the ADA claimant’s car in retaliation and to intimidate him (ignoring other criminal penalties), could they escape 12203(b) liability, because at the time they vandalized the car, they were no longer restaurant owners? 10 11 12 (ECF No. 65 at 8.) Plaintiff contends, in response to the questions posed by this hypothetical, that “the 13 statute and common sense say no.” (Id.) The Court disagrees. Although the Court is sympathetic to 14 Defendants’ point that the remedies available under the statute seem to undermine the broad language of 15 the retaliation and coercion provisions themselves in this case, the Court cannot expand the scope of the 16 remedies expressly outlined by Congress to solve the apparent puzzle. It may seem unfair to Defendants 17 that the claimants whose cars were vandalized in this hypothetical situation could not file a retaliation 18 claim under the ADA in connection with that activity. However, that apparent unfairness does not 19 render the result absurd. As the court noted Van Hulle, “[t]he most reasonable inference to be drawn 20 from the absence of a remedial provision is that Congress never intended to create a cause of action in 21 such cases.” 124 F. Supp. 2d at 646. The Court infers here that Congress did not intend to create a 22 remedy for retaliation allegedly perpetrated by individuals not covered by Subchapter III. 23 Moreover, allowing individuals not covered by the statute to be subject to liability for retaliation 24 under the ADA is a proposition without a logical endpoint. Could anyone – even someone with no 25 connection to Plaintiff, Zlfred’s, or any of the disputes between the parties to this lawsuit – be liable for 26 12 1 retaliation or coercive conduct taken against Defendants in connection with their claim? For example, 2 what if someone with no connection to the action read about the lawsuit in the newspaper and decided to 3 retaliate. Could that person be liable under the ADA? The answer to that question, under a reasonable 4 reading of the statute, is no. The statute expressly offers remedies drawn from the respective 5 subchapters of the ADA dealing with employment, public services, and public accommodations. Courts 6 have interpreted those remedies to be limited by the scope of the subchapter to which the alleged 7 retaliatory action is related. See, e.g., Van Hulle, 124 F. Supp. 2d at 646; Albra v. Advan, Inc., 490 F.3d 8 at 833; Stern, 982 F. Supp. at 694. As an individual no longer covered by any of the subchapters of the 9 ADA, there is no principled distinction under the statute between Plaintiff and a person reading about 2 10 Defendants’ ADA claims in the newspaper. The remedies provided by Congress under 12203(b) are 11 defined by statute, and Plaintiff falls outside the scope of individuals subject to those remedies. See 12 Stern, 982 F. Supp. at 693-94. For the reasons set forth above, the Court GRANTS judgment on the pleadings for Plaintiff as to 13 14 the first counterclaim for retaliation under the ADA. Defendants’ counterclaim under the Unruh Act is predicated on the Unruh Act’s incorporation of 15 16 the ADA. Cal. Civ. Code § 51(f). The retaliation provision under the Unruh Act is coextensive with the 17 retaliation provision under the ADA as it relates to public accommodations. Therefore, because Plaintiff 18 is entitled to judgment on the ADA retaliation counterclaim, Defendants’ counterclaim for retaliation 19 under the Unruh Act also fails, and Plaintiff’s motion for judgment on the pleadings as to the second 20 counterclaim under the Unruh Act is likewise GRANTED. Because the Court concludes that Plaintiff is entitled to judgment on the pleadings as to both 21 22 counterclaims, it need not address the remaining arguments in favor of judgment on the pleadings. 23 24 25 26 2 It is also worth noting that in the hypothetical situation posed by Defendants, the former restaurant owner would be subject to civil tort, and potentially criminal, liability for their outrageous activity. Retaliation under the ADA is certainly not the exclusive remedy available to address tortious or criminal conduct motivated by a desire to coerce or intimidate individuals bringing ADA claims. 13 V. CONCLUSION AND ORDER 1 2 For the reasons stated above, 3 1. Plaintiff’s motion to strike Defendants’ affirmative defenses (ECF No. 56) is DENIED. 4 2. Plaintiff’s motion for judgment on the pleadings as to Defendants’ counterclaims (ECF No. 57) is GRANTED. 5 6 7 8 IT IS SO ORDERED. Dated: June 15, 2018 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14