Rutherford v. Leal et al, No. 3:2020cv00688 - Document 18 (S.D. Cal. 2020)

Court Description: ORDER Granting in Part Defendant's 10 Motion to Dismiss. The Court vacates the hearing set for September 18, 2020. Signed by Judge Gonzalo P. Curiel on 9/15/20. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 JAMES RUTHERFORD, an individual, Plaintiff, v. Case No. 3:20-CV-0688 GPC RBB ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS MARIBEL LEAL, an individual, ISRAEL RODRIGUEZ, an individual, PAUL RODRIGUEZ, an individual; and DOES 1-10, inclusive Defendants. 18 19 20 21 22 23 24 25 26 27 28 On July 31, 2020, Defendants moved the Court for an order dismissing Plaintiff’s complaint for lack of standing and failure to state a claim upon which relief could be granted, and for an order declining supplemental jurisdiction and dismissing Plaintiff’s state law claim. ECF No. 10. On September 4, 2020, Plaintiff filed his opposition, several days after the deadline set by the Court’s order. ECF No. 11. Because Plaintiff filed the document late without seeking leave of the Court to extend the deadline, the document was struck from the record and the Court does not consider it in deciding the instant motion. ECF No. 14. The Court finds this motion suitable for disposition without oral argument. Civ. LR 7.1(d)(1). The Court DENIES Defendants’ motion to dismiss for lack of 1 Case No. 3:20-CV-688-GPC-RBB 1 standing and failure to state a claim. The Court further declines to exercise 2 supplemental jurisdiction and GRANTS Defendants’ motion to dismiss Plaintiff’s 3 state law claim. 4 I. 5 Background Plaintiff is an individual with disabilities that limit his ability to walk, stand, 6 ambulate, and sit, as well as to twist, turn, and grasp objects. ECF No. 1 (“Compl.”) 7 ¶ 1. Plaintiff relies on mobility devices, including at times a wheelchair, to 8 ambulate. Id. Plaintiff has been issued a Disabled Person Parking Placard. Id. On or about March 7, 2019, Plaintiff went to Armando’s Mexican Food (“the 9 10 Restaurant”), located at 1426 Mission Ave., Oceanside, CA 92058, a property 11 owned by Defendants.1 Id. ¶¶ 2, 8. Plaintiff alleges that although the Restaurant 12 had parking spaces reserved for patrons, there were no spaces available for persons 13 with disabilities that complied with the requirements of the Americans with 14 Disabilities Act (“ADA”), including requirements related to the use of accessible 15 parking spaces, the slope and condition of accessible parking spaces and accessible 16 paths to the entrance, and the proximity of accessible parking spaces to the 17 accessible entrance. Id. ¶¶ 11–12, 17. Plaintiff states that he personally 18 encountered these parking-related barriers and that he is deterred from patronizing 19 the Restaurant. Id. ¶¶ 16, 19. Plaintiff asserts the alleged violations “are easily removed without much 20 21 difficulty or expense.” Id. ¶ 23. Plaintiff states he “intends to return to the 22 [Restaurant] for the dual purpose of availing himself of the goods and services 23 offered to the public and to ensure that the [Restaurant] ceases evading its 24 responsibilities under federal and state law” within 45 days of being informed that 25 the Restaurant has become accessible. Id. ¶ 19–20. Plaintiff further asserts that he 26 27 1 28 Plaintiff also names Does 1 through 10 as Defendants, asserting that the Doe Defendants are responsible in some capacity for the alleged violations or are necessary parties for obtaining relief. Compl. ¶ 4. 2 Case No. 3:20-CV-688-GPC-RBB 1 believes there are “other violations and barriers in the site that relate to his 2 disability,” and that he will amend the complaint to include claims for those 3 violations once he conducts a site inspection. Id. ¶ 24. 4 Plaintiff asserts two causes of action. First, he alleges Defendants failed to 5 ensure the Restaurant had accessible parking spaces and access aisles usable by 6 persons with disabilities like Plaintiff as required by the ADA, 42 U.S.C. §12181, et 7 seq. Id. ¶¶ 26–31. Second, Plaintiff alleges that Defendants, by violating the ADA 8 and by discriminating against Plaintiff on the basis of a disability, also violate 9 California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51, et seq. Id. 10 ¶¶ 32–35. Plaintiff seeks injunctive relief prohibiting Defendants from further 11 violating the ADA and Unruh Act, as well as an award of actual and statutory 12 damages under the Unruh Act of not less than $4,000 per offense. Id. at 9. Plaintiff 13 also seeks $4,000 in additional deterrence damages, plus attorneys’ fees, litigation 14 expenses, and costs of suit pursuant to 42 U.S.C. § 12205 and Cal. Civ. Code § 52. 15 Id. 16 II. 17 Motion to Dismiss for Lack of Standing and Failure to State a Claim Defendants state in their motion that “Plaintiff fails to plead facts sufficient to 18 allege the standing requirement of an injury-in-fact” and cite to Fed. R. Civ. P. 19 12(b)(1). ECF No. 10-1 at 2–3. Defendants also cite “Failure to state a claim upon 20 which relief may be granted” and Fed. R. Civ. P. 12(b)(6) as a basis for their motion 21 to dismiss. Id. at 3. However, Defendants fail to argue either of these grounds in 22 the body of their motion. The Court therefore declines to consider Defendants’ 23 motion under 12(b)(6) and DENIES the motion to dismiss for failure to state a 24 claim. But because the Court has an independent duty to ensure it properly has 25 subject matter jurisdiction over the claims before it, see Fed. R. Civ. P. 12(h)(3), the 26 Court will consider whether Plaintiff has standing to bring his claims. 27 28 A. Legal Standard A court can only exercise subject matter jurisdiction over a plaintiff’s claim if 3 Case No. 3:20-CV-688-GPC-RBB 1 the plaintiff meets constitutional standing requirements. See Lujan v. Defenders of 2 Wildlife, 504 U.S. 555, 560 (1992). “[T]o satisfy Article III’s case or controversy 3 requirement, [a plaintiff] needs to show that he has suffered an injury in fact, that 4 the injury is traceable to the challenged action of [the defendant], and that the injury 5 can be redressed by a favorable decision.” Fortune v. Am. Multi-Cinema, Inc., 364 6 F.3d 1075, 1081 (9th Cir. 2004) (quoting Bird v. Lewis & Clark College, 303 F.3d. 7 1015, 1019 (9th Cir. 2002)). An ADA “plaintiff who has encountered or has 8 personal knowledge of at least one barrier related to his or her disability when he 9 files a complaint and who has been deterred from attempting to gain access to the 10 public accommodation because of that barrier, has suffered an injury in fact for the 11 purposes of Article III.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 12 2008). When a plaintiff seeks an injunction mandating that a public accommodation 13 comply with the ADA, the plaintiff has shown their injuries can be redressed by a 14 favorable decision. See Civil Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr., 867 15 F.3d 1093, 1102 (9th Cir. 2017). 16 17 B. Discussion Defendants do not make any arguments regarding standing. In his complaint, 18 Plaintiff alleges that he personally encountered non-accessible parking spaces and 19 related barriers that inhibited his access to the Restaurant as a person with a mobility 20 disability, that he was deterred from patronizing the Restaurant, and that he will 21 return within 45 days after being informed that the Restaurant is accessible. Compl. 22 ¶¶ 12, 14, 19–20. The Court finds that Plaintiff has adequately alleged that he 23 encountered a barrier at the Restaurant related to his disability, and that he is 24 deterred from gaining access to the Restaurant because of the barrier, which 25 constitutes an actual and imminent injury. See Doran, 524 F.3d at 1041. 26 Additionally, Plaintiff’s requested injunctive relief would remedy the harms alleged 27 by removing the barriers and by giving Plaintiff full and equal access to the 28 Restaurant. Accordingly, the Court finds Plaintiff has established standing at the 4 Case No. 3:20-CV-688-GPC-RBB 1 motion to dismiss stage. 2 III. Motion to Dismiss State Law Claim and Decline Supplemental 3 Jurisdiction under 28 U.S.C. § 1367(c) 4 Defendants argue that the Court should decline to exercise supplemental 5 jurisdiction over Plaintiff’s Unruh Act claim and dismiss the state law claim 6 pursuant to 28 U.S.C. § 1367(c). 7 8 A. Legal Standard A federal court has supplemental jurisdiction over state law claims that are so 9 related to claims over which the court has original jurisdiction that they form the 10 same case or controversy under Article III of the U.S. Constitution. 28 U.S.C. § 11 1367(a). However, a court can decline to exercise supplemental jurisdiction over a 12 state law claim if: “(1) the claim raises a novel or complex issue of State law, (2) the 13 claim substantially predominates over the claim or claims over which the district 14 court has original jurisdiction, (3) the district court has dismissed all claims over 15 which it has original jurisdiction, or (4) in exceptional circumstances, there are other 16 compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c). In determining 17 whether to decline jurisdiction pursuant to 28 U.S.C. § 1367(c), a court should 18 consider whether the exercise of jurisdiction would promote judicial economy, 19 convenience and fairness to litigants, and comity. See United Mine Workers of 20 America v. Gibbs, 383 U.S. 715 (1966); City of Chicago v. Int’l College of 21 Surgeons, 522 U.S. 156, 172–73 (1997). 22 23 B. Discussion Defendants do not dispute that Plaintiff’s Unruh Act claim forms a part of the 24 same case or controversy as his ADA claim as is required for supplemental 25 jurisdiction to exist under 28 U.S.C. § 1367(a). However, Defendants argue that the 26 Court should decline to exercise supplemental jurisdiction over the Unruh Act claim 27 pursuant to 28 U.S.C. § 1367(c). ECF No. 10-1 at 2. Defendants argue that 28 Plaintiff’s state law claim predominates over the federal claim, that the state law 5 Case No. 3:20-CV-688-GPC-RBB 1 claim presents novel and complex issues of state law, and that there are compelling 2 reasons to decline supplemental jurisdiction, namely that Plaintiff, as a “high 3 frequency litigant” under state law, would be subject to more stringent pleading 4 requirements in state court and therefore should not be permitted to evade 5 California’s procedural rules by proceeding in federal court. Id. at 5–7. The Court first considers whether Plaintiff’s status as a serial litigant, who 6 7 would be subject to a heightened pleading standard in California state court, serves 8 as a compelling reason for this Court to decline supplemental jurisdiction over 9 Plaintiff’s Unruh Act claim. Under the California Code of Civil Procedure, 10 California courts impose special requirements on “high frequency litigants,” defined 11 as plaintiffs who filed 10 or more complaints alleging a construction-related 12 accessibility violation within the 12-month period immediately preceding the 13 lawsuit. Cal. Civ. Proc. Code § 425.55(b)(1). Among other requirements, high 14 frequency litigants and their attorneys are required to state with greater specificity 15 the basis for their construction-related accessibility claims and to verify the 16 allegations in the complaint. Cal. Civ. Proc. Code § 425.50. California adopted 17 these provisions in an attempt to discourage the small number of plaintiffs and law 18 firms who file a disproportionately large number of the construction-related 19 accessibility lawsuits in the state from filing boilerplate complaints against small 20 businesses. Cal. Civ. Proc. Code § 425.55(a)(2). 21 Defendants argue that the reasoning expressed in numerous district court 22 cases supports their position that Plaintiff, as a high frequency litigant, should not be 23 permitted to evade these state court pleading requirements.2 ECF No. 10-1 at 5. A 24 plaintiff is “the master of the claim” and is entitled to choose among available fora. 25 White v. Wisco Restaurants, Inc., No. 17-cv-103-L-JMA, 2018 WL 1510611, at *4 26 27 2 28 The Court notes that Plaintiff has filed nearly 20 other complaints in this district in the 12 months preceding the filing of this lawsuit, according to PACER. 6 Case No. 3:20-CV-688-GPC-RBB 1 (S.D. Cal. Mar. 27, 2018) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 2 (1987)). A plaintiff’s selection of the most advantageous forum is neither improper 3 nor an “unusual circumstance.” Id. Further, exercising supplemental jurisdiction 4 over closely related state law claims can often preserve judicial resources, as well as 5 those of the parties, by preventing duplicative litigation. See Gibbs, 383 U.S. at 726. 6 However, comity and fairness are also important considerations underlying the 7 decision to exercise supplemental jurisdiction. Id. at 726. Comity may constitute a 8 compelling circumstance to decline jurisdiction when the case presents strong 9 reasons to have the state court interpret state law or when the plaintiff engaged in 10 forum shopping. Org. for Advancement of Minorities, 406 F. Supp. at 1132; see 11 also Feezor v. Tesstab Operations Group, Inc., 524 F. Supp. 2d. 1222, 1225–26 12 (S.D. Cal. 2007). Numerous district court cases have recognized that exercising 13 supplemental jurisdiction over a high frequency litigant’s Unruh Act claims would 14 frustrate California’s policy, as codified by statute, of subjecting such claims to 15 stricter pleading standards and allow serial litigants to “use the federal court system 16 as a loophole to evade California’s pleading requirements.” Rutherford v. Ara 17 Lebanese Grill, No. 18-cv-01497-AJB, 2019 WL 1057919, at *4–5 (S.D. Cal. Mar. 18 6, 2019); see, e.g., Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1031 (S.D. Cal. 19 2017); Org. for Advancement of Minorities, 406 F. Supp. 2d at 1132; Theroux v. 20 Mar-Con Prod., Inc., No. 19-cv-1810-H, 2019 WL 6829096, at *3 (S.D. Cal. Dec. 21 13, 2019). 22 The Court recognizes that Plaintiff’s ADA and Unruh Act claims arise out of 23 the same facts and require application of similar standards, and that exercising 24 supplemental jurisdiction would allow these claims to be heard together in federal 25 court. However, exercising jurisdiction over Plaintiff’s Unruh Act claim would 26 undermine the procedures established for hearing such claims in California. It 27 would be unfair to allow Plaintiff to enjoy “those parts of California law that benefit 28 him while disallowing the parts purposefully enacted to protect Defendants.” 7 Case No. 3:20-CV-688-GPC-RBB 1 Schutza v. Enniss Family Realty I LLC, No. 20-CV-0298 W (JBL), 2020 WL 2 3316969, at *3 (S.D. Cal. June 18, 2020). Accordingly, the Court finds that 3 California’s enhanced pleading requirement for high frequency litigants like 4 Plaintiff is a compelling reason to decline the exercise of supplemental jurisdiction 5 in this case. 6 The Court also considers Defendants’ argument that Plaintiff’s Unruh Act 7 claim substantially predominates over his ADA claim. Defendants cite to several 8 district court decisions that found the plaintiffs’ Unruh Act claims to predominate 9 over their ADA claims. ECF No. 10-1 at 4–5. A court may dismiss state law 10 claims when “in terms of proof, of the scope of the issues raised, or of the 11 comprehensiveness of the remedy sought,” the state law claims substantially 12 predominate over the federal claims. Rutherford, 2019 WL 1057919, at *4 (quoting 13 Gibbs, 383 U.S. at 726–27). In other cases, district courts have found plaintiffs’ 14 state law claims to predominate over their federal ADA claim where they seek 15 significant damages under state law and allege legal theories applicable only to state 16 law claims. See, e.g., Cuddeback, 262 F. Supp. 3d at 1029–30 (finding state law 17 claims predominated where plaintiff could potentially recover up to $36,000 for 18 Unruh Act claims and plaintiff alleged intentional discrimination); Schutza v. 19 McDonald’s Corp., 133 F. Supp. 3d 1241, 1247–48 (S.D. Cal. 2015) (finding state 20 law claims predominated where California accessibility standards provided 21 independent basis for liability on state law claims, plaintiff alleged intentional 22 discrimination, and plaintiff sought damages and fees). But see Chavez v. Suzuki, 23 No. 05CV1569 BTM(BLM), 2005 WL 3477848, at *2 (S.D. Cal. Nov. 30, 2005) 24 (finding state law claims did not predominate when claims were identical aside from 25 availability of statutory damages under state law); Johnson v. Makinen, No. 2:09– 26 CV–796 FCD KJM, 2009 WL 2137130, at *3 (E.D. Cal. 2007) (finding Unruh Act 27 claim did not predominate over ADA claim “where plaintiff has one state claim and 28 one federal claim, and both are still viable”). 8 Case No. 3:20-CV-688-GPC-RBB 1 Here, the legal theory underlying Plaintiff’s Unruh Act claim is that 2 Defendants violated the ADA. Compl. ¶ 34. However, Plaintiff also appears to 3 allege intentional discrimination as an alternative basis for his Unruh Act claim. Id. 4 ¶ 35 (“Despite this knowledge [that the Restaurant was inaccessible to Plaintiff], 5 Defendants maintain its premises in an inaccessible form, and Defendants have 6 failed to take action to correct these barriers”); cf. Hankins v. El Torito Restaurants, 7 Inc., 63 Cal. App. 4th 510, 518 (1998) (allegation that restaurant acted with 8 knowledge of the effect its conduct had on people with disabilities was sufficient to 9 plead intentional discrimination). Resolving the issue of intentional discrimination 10 may expand the scope of the issues and requisite proof beyond those relevant to the 11 ADA claim. Further, the Court notes that the complaint alleges “other violations 12 and barriers in the site that relate to his disability” that he may seek to add to the 13 lawsuit after a site inspection, indicating the amount of damages Plaintiff seeks may 14 increase substantially. Compl. ¶¶ 13, 24; cf. Schutza v. Alessio Leasing, Inc., No. 15 18-cv-2154-LA (AGS), 2019 WL 1546950, at *3 (S.D. Cal. Apr. 8, 2019) (finding 16 plaintiff’s Unruh Act claim substantially predominated over his ADA claim where 17 “the money damages available to him [were] open-ended”). In light of the potential 18 for Plaintiff to seek far greater state law damages and his inclusion of a state-law 19 specific legal theory, this Court finds that Plaintiff’s Unruh Act claim substantially 20 predominates over his ADA claim and declines to exercise jurisdiction on that 21 basis.3 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 27 28 3 Because Defendants do not specify what novel questions of state law the Court would need to resolve were it to exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim, the Court does not find for Defendants under 28 U.S.C. § 1367(c)(1). 9 Case No. 3:20-CV-688-GPC-RBB 1 IV. Conclusion 2 For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss 3 for lack of standing and DENIES Defendants’ motion to dismiss for failure to state 4 a claim. The Court GRANTS Defendant’s motion to decline supplemental 5 jurisdiction over Plaintiff’s state law claim and ORDERS that Plaintiff’s claim for 6 violation of the Unruh Act be dismissed without prejudice. 7 The Court further VACATES the hearing set for September 18, 2020. 8 IT IS SO ORDERED. 9 10 Dated: September 15, 2020 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Case No. 3:20-CV-688-GPC-RBB

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