CV 20-4710-RSWL-RAO x ANTHONY BOUYER, an individual, ORDER re: Defendant’s Motion to Dismiss Plaintiff, Plaintiff’s Complaint and v. Declare Plaintiff a Vexatious Litigant [19] ROCKY’S RACQUET WORLD, a Limited Partnership; and DOES 1-10, inclusive, Defendants. Plaintiff Anthony Bouyer (“Plaintiff”) claims that Defendant Rocky’s Racquet World (“Defendant”) violated the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”). Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint and Declare Plaintiff a Vexatious Litigant (the “Motion”) [19]. Having reviewed all papers submitted pertaining to the Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS in part and DENIES in part Defendant’s
Motion.
A. Factual Background Plaintiff, a California resident, is a paraplegic who requires a wheelchair for mobility. Compl. ¶ 1, ECF No. 1. Defendant owns real property located at 8001 Laurel Canyon Blvd., North Hollywood, California 91605 (the “Property”). Id. ¶ 2. On or about May 18, 2020, Plaintiff went to a Boost Mobile store (the “Business”) located on the Property to inquire about phones and confirm that the Business was accessible to persons with disabilities. Id. ¶ 8. Plaintiff alleges that, although the Property reserved parking spaces for patrons, the Property had no designated parking spaces for persons with disabilities that complied with the 2010 Americans with Disabilities Act Accessibility Guidelines (“ADAAG” or “ADA Standards”). Id. ¶ 11. Plaintiff personally encountered the following architectural barriers: a built-up curb ramp projects from the sidewalk into the access aisle; the curb ramp exceeds the maximum grade allowed by ADAAG specifications; and an access aisle is not properly marked. Id. ¶¶ 12, 16. Plaintiff claims that the architectural barriers deny him his right to enjoy accessible conditions at a place of public accommodation. Id. ¶ 16. Plaintiff alleges that he is deterred from patronizing the Business and its accommodations but intends to return to
the Business for the dual purpose of availing himself of
its goods and services and ensuring that it complies with federal and state law. Id. ¶ 19. Plaintiff plans to return as a “tester” within forty-five days of being informed that the Property has become fully and equally accessible. Id. ¶ 20. According to Plaintiff, the violations can be easily removed without much difficulty or expense, and if complete removal were not achievable, numerous alternative accommodations could be made to provide a greater level of access. Id. ¶ 23. B. Procedural Background On May 27, 2020, Plaintiff filed his Complaint [1], asserting two claims for relief: (1) violations of the ADA, 42 U.S.C. § 12181 et seq.; and (2) violation of the Unruh Act, Cal. Civ. Code § 51 et seq. On October 20, 2020, Defendant filed the instant Motion [19]. Plaintiff filed his Opposition [22] on November 3, 2020, and Defendant replied [23] on November 10, 2020. A. Legal Standard 1. Federal Rule of Civil Procedure 12(b)(1) Federal Rule of Civil Procedure (“Rule”) 12(b)(1) allows a party to seek dismissal of an action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A jurisdictional challenge under Rule 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
A facial attack asserts that the allegations in a
complaint “are insufficient on their face to invoke federal jurisdiction,” whereas a factual attack “disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. To resolve a facial attack, the court accepts the allegations in the complaint as true and construes them in favor of the party opposing dismissal. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). Conversely, in resolving a factual attack, the court “need not presume the truthfulness of the plaintiff’s allegations” and “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039 (citations omitted). If the moving party brings a factual attack by presenting extrinsic evidence, “the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id. (quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). Where, however, “the jurisdictional issue and substantive claims are so intertwined that resolution of the jurisdictional question is dependent on factual issues going to the merits,” Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987), the court “must ‘assume [ ] the truth of the allegations in a complaint
. . . unless controverted by undisputed facts in the
record.’” Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987)). Under those circumstances, the court should grant the motion to dismiss for lack of subject matter jurisdiction “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Rosales, 824 F.2d at 803. 2. Supplemental Jurisdiction District courts have supplemental jurisdiction over “claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A district court in its discretion can decline to exercise supplemental jurisdiction if: (1) the claim raises a novel of complex issue of state law; (2) the claim substantially predominates over the 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 underlie the Supreme Court’s earlier jurisprudence concerning pendent jurisdiction.
City of Chicago v. Int’l Coll. of Surgeons, 522 U.S.
156, 172–73 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988)). 3. Vexatious Litigant Motion “Federal courts can ‘regulate the activities of abusive litigants by imposing carefully tailored restrictions under . . . appropriate circumstances.’” Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014) (quoting De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). Under 28 U.S.C. § 1651(a), district courts may enter pre- filing orders enjoining vexatious litigants. See id. at 1061-62; Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999). However, “[o]ut of regard for the constitutional underpinnings of the right to court access, ‘pre-filing orders should rarely be filed.’” Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 912 F.2d at 1147). The Ninth Circuit requires a district court to comply with the following procedural and substantive requirements before imposing such an order: “(1) give litigants notice and ‘an opportunity to oppose the order before it [is] entered’; (2) compile an adequate record for appellate review, including ‘a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed’; (3) make substantive findings of frivolousness or harassment; and (4) tailor the order narrowly so as ‘to
closely fit the specific vice encountered.’” Id.
(quoting De Long, 912 F.2d at 1147-48). In evaluating the third and fourth factors, the Ninth Circuit has held that the following five considerations “provide[] a helpful framework”: “(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.” Id. (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1058 (9th Cir. 2007) (per curiam)). Local Rule 83-8.3 states that an order declaring a party a vexatious litigant “shall be based on a finding that the litigant to whom the order is issued has abused the Court’s process and is likely to continue such abuse, unless protective measures are taken.” B. Discussion 1. Defendant’s Evidentiary Objections Defendant objects to the Declaration of Janis Kent [22-5] and the Report of Janis Kent [22-6] on the grounds that they lack foundation, see Fed. R. Evid. 602, and are based on insufficient facts or data, see
Fed. R. Evid. 702(b). See generally Evidentiary Objs.,
ECF No. 24. Because the Court does not rely on the objected-to evidence in reaching its conclusions in this Order, the Court OVERRULES as moot Defendant’s evidentiary objections. 2. Motion to Dismiss a. ADA Claim Defendant moves to dismiss Plaintiff’s ADA claim for lack of standing on the grounds that: (1) the barriers identified in the Complaint do not presently exist; and (2) the threat of repeated injury lacks factual credibility. Mot. to Dismiss Compl. and Declare Pl. a Vexatious Litigant (“Mot.”) 6:11-8:26, 18:7-19:16, 20:5-14, ECF No. 19. “The ‘irreducible constitutional minimum of standing’ includes three elements: (1) injury in fact; (2) causation; and (3) redressability.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 907 (9th Cir. 2011) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). To establish standing to seek injunctive relief, a plaintiff must also demonstrate a “real and immediate threat of repeated injury” in the future. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011) (citing Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). Thus, “[b]ecause a private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier) under the ADA, a defendant’s voluntary removal of
alleged barriers prior to trial can have the effect of
mooting a plaintiff’s ADA claim.” Oliver, 654 F.3d at 905 (internal citation omitted). Defendant first argues that Plaintiff’s request for injunctive relief is moot, asserting that “[w]hile [D]efendant would dispute whether the alleged original ‘injury’ ever occurred at all and whether the relevant space was even in violation to begin with, . . . the barriers sued upon in [P]laintiff’s allegations are, at a minimum, not existing in the present.” Mot. 8:18-26. In support of its argument, Defendant provides a declaration from Defendant’s counsel, photographs of a van parking space and signage, and a declaration from Defendant’s managing partner purporting to demonstrate that the van-accessible parking space at the site does not have the alleged barriers. Id. at 8:10-17; see Bryan Decl. Exs. B-F, N, ECF No. 20. Here, the question of subject matter jurisdiction is intertwined with the substantive issues because Defendant’s argument regarding subject matter jurisdiction hinges on whether its parking facilities are ADA-compliant, which goes to the heart of Plaintiff’s ADA claim. See Safe Air for Everyone, 373 F.3d at 1039 (“[J]urisdiction and the merits of an action are intertwined where ‘a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff’s substantive claim for relief.’” (quoting Sun Valley Gasoline, Inc. v. Ernst
Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983))).
Because the jurisdictional inquiry is coextensive with the merits of Plaintiff’s ADA claim, dismissal for lack of subject matter jurisdiction is proper only if the allegations in the Complaint are controverted by undisputed facts showing that Defendant is entitled to prevail as a matter of law. See Vera v. Bureau of Indian Affs., 738 F. App’x 431, 432 (9th Cir. 2018) (stating that under such circumstances, “challenges to the presence of jurisdictional facts must be treated as motions for summary judgment with the corresponding protections for the nonmoving party.” (citing Safe Air for Everyone, 373 F.3d at 1039)). As an initial matter, the parties dispute the location of the alleged barriers. According to Defendant, Plaintiff’s counsel communicated to Defendant’s counsel that the source of the injury was the lack of compliant van-accessible parking and at no point corrected Defendant’s understanding of the facts. Mot. 7:23-8:1; Reply 12:21-13:18, ECF No. 23; see Bryan Decl. ¶ 10, Ex. A. Plaintiff, for his part, contends that the violations he encountered actually exist on the eastern portion of the parking lot, in front of the Business, whereas the van-accessible parking space referred to in Defendant’s Motion is located on the western side away from store entrances. Pl.’s Opp’n to Mot. to Dismiss (“Opp’n”) 2:15-26, ECF No. 22; see Bouyer Decl. ¶ 8, Ex. 2, ECF No. 22-8.
Although Defendant has taken steps to assure its
parking facilities are ADA-compliant, see Bryan Decl. ¶ 12, Exs. B-F, the Court cannot conclude that the barriers identified in the Complaint do not presently exist. Plaintiff’s ADA claim is based in part on the steepness of the curb ramp. With respect to the van- accessible parking in the western lot, the declaration from Defendant’s counsel provides only a conclusory statement that “there is no curb ramp in excess of the maximum grade allowed by the ADAAG specifications,” Bryan Decl. ¶ 12(b), and Defendant’s photographs provide no specific measurements or details sufficient to confirm ADA compliance, see Byran Decl. Exs. B-F. On this basis, Defendant has not met the “heavy burden” of establishing that Plaintiff’s request for injunctive relief is moot. See Rosemere Neighborhood Ass’n v. U.S. Env’t Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (“The party alleging mootness bears a ‘heavy burden’ in seeking dismissal.” (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000))). With respect to the eastern parking lot in front of the Business, Defendant argues in its Reply that the barriers do not exist there because it complies with the 1991 ADA Standards. See Reply 13:27-15:20. In support, Defendant submits a declaration from Defendant’s managing partner, Alvin T. Dickens, III, stating that the parking lot was completed in 1988, the parking
facilities predate the ADA of 1991, and it is his
understanding that the parking lot was in compliance with the 1991 ADA Standards. See Dickens Reply Decl. ¶¶ 5-6, ECF No. 23-1. This is insufficient, however, to establish that the 2010 ADA Standards are wholly inapplicable. As Defendant himself points out, the Safe Harbor provision of the 2010 ADA Standards states that “[e]lements that have not been altered in existing facilities on or after March 15, 2012 and that comply with the corresponding technical and scoping specifications for those elements in either the 1991 Standards . . . are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.” 28 C.F.R. § 35.150(b)(2)(i). Without knowing if any alterations have been made, the Court cannot conclude at this juncture that the 1991 ADA Standards apply. The Court declines to assess whether the alleged barriers exist under the 1991 ADA Standards, particularly where Defendant first argues for the applicability of the 1991 ADA Standards in its Reply despite having notice since the filing of the Complaint that Plaintiff is alleging violations under the 2010 ADA Standards. See Compl. ¶ 11. In short, there are disputes over material facts inappropriate for resolution on a Rule 12(b)(1) motion. See Safe Air for Everyone, 373 F.3d at 1039 (“[J]urisdictional finding of genuinely disputed facts is inappropriate when ‘the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits’ of an action.” (quoting Sun Valley, 711 F.2d at 139)). At this time, the Court cannot conclude that the alleged barriers do not exist and that the ADA claim is moot. Finally, Defendant argues that Plaintiff lacks standing to seek injunctive relief under the ADA on the independent basis that the threat of repeated injury lacks factual credibility. Mot. 18:7-19:16. Defendant contends that Plaintiff’s allegations regarding intent to return are insincere, pointing to Plaintiff’s extensive ADA litigation history and the absence of facts indicating past patronage, close proximity to Plaintiff’s home, or a need to inquire about phones. Id. “[A]n ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.” Chapman, 631 F.3d at 944. “Where ‘the public accommodation being sued is far from the plaintiff’s home,’ a plaintiff shows ‘actual or imminent injury sufficient to establish standing’ when he or she ‘demonstrates an intent to return to the geographic area where the accommodation is located and a desire to visit the accommodation if it were made accessible.’” Feezor
v. Sears, Roebuck & Co., 608 F. App’x 476, 477 (9th Cir.
2015) (quoting D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir.2008)). However, “‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding” of actual or imminent injury. Lujan, 504 U.S. at 564. Plaintiff alleges that he uses a wheelchair for mobility, he visited the Business, he personally encountered barriers related to his disability— inaccessible parking, and he is being deterred from patronizing the Business but intends to return “for the dual purpose of availing himself of the goods and services offered to the public and to ensure that the Business ceases evading its responsibilities under federal and state law.” Compl. ¶¶ 1, 8, 11-12, 16-17, 19. Plaintiff further alleges that “[u]pon being informed that the [Business] has become fully and equally accessible, he will return within 45 days as a ‘tester’ for the purpose of confirming . . . accessibility.” Id. ¶ 20. Plaintiff thus articulates a “concrete plan[]” to return, not just “‘some day’ intentions.” Lujan, 504 U.S. at 564. At the motion to dismiss stage, Plaintiff’s allegations are sufficient to establish standing. The Court rejects Defendant’s argument that Plaintiff’s allegations are implausible because of his past ADA litigation. See Antoninetti v. Chipotle
Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010)
(“Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him.”); D’Lil, 538 F.3d at 1040 (“The attempted use of past litigation to prevent a litigant from pursuing a valid claim in federal court warrants our most careful scrutiny.”). The Ninth Circuit has held that an ADA plaintiff can claim “tester standing,” which allows a plaintiff whose “only motivation for visiting a facility is to test it for ADA compliance” to assert standing. C.R. Educ. & Enf’t Ctr. v. Hosp. Props. Tr., 867 F.3d 1093, 1096 (9th Cir. 2017). Even if Plaintiff’s only motivation for visiting the Business was to test it for ADA compliance, “motivation is irrelevant to the question of standing under Title III of the ADA.” Id. at 1102. Because Plaintiff has sufficiently established standing at this stage, Defendant’s Motion to Dismiss the ADA claim is DENIED. b. Unruh Act Claim Defendant argues that the Court should decline to exercise supplemental jurisdiction over, and therefore dismiss, the Unruh Act claim on any of three independent grounds under 28 U.S.C. § 1367(c)(2)-(4). Mot. 1:13-18, 2:23-6:9. The Court agrees with Defendant that “exceptional circumstances” exist and declines to exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim. See 28 U.S.C. § 1367(c)(4). “In 2012, in an attempt to deter baseless claims and vexatious litigation, California adopted heightened pleading requirements for disability discrimination lawsuits under the Unruh Act.” Velez v. Il Fornanio (Am.) Corp., No. 3:18-CV-1840-CAB-MDD, 2018 WL 6446169, at *6 (S.D. Cal. Dec. 10, 2018). These heightened pleading requirements apply to actions alleging a “construction-related accessibility claim,” which California law defines as “any civil claim in a civil action with respect to a place of public accommodation, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction-related accessibility standard.” Cal. Civ. Code § 55.52(a)(1). When California continued to experience large numbers of these actions, California imposed additional limitations on “high-frequency litigants.”1 In support of its imposition of additional requirements on high-frequency litigants, the California Legislature found and declared: [M]ore 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 1 A high-frequency litigant is defined as a plaintiff who has filed ten or more complaints alleging a construction-related accessibility violation within the twelve-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 construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed again st 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 . . . . Cal. Civ. Proc. Code § 425.55(a)(2). In response to the “special and unique circumstances” surrounding disability access litigation, id. § 425.55(3), California imposed a “high-frequency litigant fee,” requiring high-frequency litigants2 to pay a $1,000 filing fee in addition to the normal fee at the time of filing a complaint. Cal. Gov’t Code § 70616.5. In enacting restrictions and additional fees for the filing of construction-related accessibility claims, California sought to limit the burden these types of cases put on its businesses. But, in filing these actions in federal courts, plaintiffs have managed to avail themselves of the state statutory damages while circumventing the limitations imposed by the state legislature. This situation, as well as the increased burden on federal courts due to the increasing number of these cases, presents the type of “exceptional
2 Plaintiff qualifies as a high-frequency litigant. See Decl. of Anthony Bouyer in Supp. of Resp. to OSC re Suppl. Jurisdiction ¶ 2, ECF No. 10-2 (“I have filed more than 10 complaints alleging construction-related accessibility violations within the 12-month period immediately preceding the filing of the complaint in this action.”). circumstances” and “compelling reasons” that justify a
court’s decision to decline to exercise supplemental
jurisdiction over any Unruh Act or other state law claims under 28 U.S.C. § 1367(c)(4). Declining to exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim under these circumstances furthers the values of judicial economy, fairness, convenience, and comity. See, e.g., Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1031 (S.D. Cal. 2017); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). Allowing federal courts to act as a haven for these claims is an affront to the comity between federal and state courts. California’s elected representatives, not this Court, have enacted laws restricting construction-related accessibility claims and, in doing so, have directed that these claims by high-frequency litigants be treated differently than other matters. Accordingly, the Court concludes that “exceptional circumstances” and “compelling reasons” exist to support the Court’s decision to decline to exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim. A significant number of judges both within the Central District of California and elsewhere have similarly declined to exercise supplemental jurisdiction over construction-related accessibility claims asserted under state law. See, e.g., Whitaker v. 7707 Sunset, Inc., No. CV 20-1149-DMG(AGRx), 2020 WL 5823566 (C.D. Cal. May 26, 2020) (Gee, J.); Garcia v. Thomas, No. 2:20-cv- 00684-VAP-PLAx, 2020 WL 5239175, (C.D. Cal. May 7, 2020)
(Phillips, J.); Fernandez v. McAuley, No. CV 20-1279 MWF
(GJSx), 2020 WL 3655492 (C.D. Cal. Mar. 30, 2020) (Fitzgerald, J.); Garcia v. Ross Stores, Inc., No. CV 20-00950 PA (GJSx), 2020 WL 5239863 (C.D. Cal. Feb. 12, 2020) (Anderson, J.); Langer v. Easton, No. CV 19-8562 PSG (ADSx), 2019 WL 7900274 (C.D. Cal. Nov. 7, 2019) (Gutierrez, J.); Zarian v. Triple M Props., No. 8:19-cv- 01951-JLS-DFM, 2019 WL 5538927 (C.D. Cal. Oct. 25, 2019) (Staton, J.); Whitaker v. ALO, LLC, No. CV 19-03312-RGK- GJS, 2019 WL 787737 (C.D. Cal. Oct. 4, 2019) (Klausner, J.); see also Langer v. Petras, No. 19-cv-1408-CAB-BGS, 2019 WL 3459107 (S.D. Cal. July 31, 2019) (Bencivengo, J.); Velez v. Cloghan Concepts, LLC, 387 F. Supp. 3d 1072, 1077-78 (S.D. Cal. June 10, 2019) (Moskowitz, J.); Reyes v. Flourshings Plus, Inc., No. 19cv261 JM (WVG), 2019 WL 1958284 (S.D. Cal. May 2, 2019) (Miller, J.); Schutza v. Alessio Leasing, Inc., No. 18cv2154-LAB(AGS), 2019 WL 1546950 (S.D. Cal. Apr. 8, 2019) (Burns, J.); Rutherford v. Ara Lebanese Grill, No. 18-CV-01497-AJB- WVG, 2019 WL 1057919 (S.D. Cal. Mar. 6, 2019) (Battaglia, J.); Schutza v. Lamden, No. 2:17-cv-2562-L- JLB, 2018 WL 4385377 (S.D. Cal. Sept. 14, 2018) (Lorenz, J.); Reyes v. Snoozetown, LLC, No. 3:18-cv-00498-H-JLB, 2018 WL 3438753 (S.D. Cal. July 16, 2018) (Huff, J.). The Court has not deprived Plaintiff of any remedies, as the ADA claim remains pending before this Court, and Plaintiff may pursue his Unruh Act claim in state court.3 Any resultant inefficiencies “are slight
in comparison to California’s weighty interest in
ensuring its laws are not circumvented, and in enforcing the detailed statutory regime it has set up for construction-related accessibility claims.” Davidson v. Cole, No. SACV-20-01733-CJC-(ADSx), 2020 WL 6588386, at *4 (C.D. Cal. Sept. 28, 2020). The Court therefore GRANTS Defendant’s Motion to Dismiss the Unruh Act claim. 3. Motion to Declare Plaintiff a Vexatious Litigant Lastly, Defendant asks the Court to declare Plaintiff a vexatious litigant under Local Rule 83-8 and direct the Clerk not to accept filings from Plaintiff without review by an authorizing judge. Mot. 17:22-26. At a minimum, Defendant argues, the Court should prohibit Plaintiff from filing ADA-based state-law claims for monetary damages. Id. at 17:27-28. Defendant contends that Plaintiff’s “history and motive demonstrate that he is a vexatious litigant,” pointing out that Plaintiff has filed at least 411 lawsuits in this district in 2020 and urging the Court to consider Plaintiff’s motive “to extort quick cash settlements 3 Plaintiff encountered the barriers in May 2020. Compl. ¶ 8. Accordingly, the statute of limitations for Plaintiff’s Unruh Act claim has not lapsed, and Plaintiff is able to bring this claim in state court. See Harris v. County of San Diego, No. CV 18-924-BTM-AHG, 2019 WL 6683367, at *4 (S.D. Cal. Dec. 5, 2019) (finding that Unruh Act claims “are subject to a two-year statute of limitations” (citing Cal. Civ. Proc. Code § 335.1)). from businesses . . . [and] to evade California state
court protections against such suits.” Id. at 10:2-
16:21. It is indisputable that Plaintiff is a serial ADA litigant who has filed numerous complaints alleging both ADA and Unruh Act claims. But “[a]n injunction cannot issue merely upon a showing of litigiousness. The plaintiff’s claims must not only be numerous, but also be patently without merit.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1059 (9th Cir. 2007) (per curiam) (quoting Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990)). Besides emphasizing the sheer volume of complaints filed by Plaintiff and their apparent boilerplate nature, Defendant has not provided sufficient evidence that Plaintiff’s filings are frivolous or without merit. Defendant highlights six other lawsuits that Plaintiff initiated on May 18 and 19, 2020, but all six lawsuits have resulted in either an agreement to bring premises into compliance with disability access laws or an injunction for compliance. Opp’n 15:13-16; Bouyer Decl. ¶¶ 10-19. Contrary to Defendant’s suggestion, Mot. 15:21-25, a high settlement rate is not “evidence of a lack of belief in the merits . . . [but rather] a fact of modern litigation.” Wilson v. Pier 1 Imps. (US), Inc., 411 F. Supp. 2d 1196, 1201 (E.D. Cal. 2006). Defendant also takes issue with the fact that Plaintiff always alleges a “dual purpose” for visiting a business—to complete some task associated with the
business and to examine it for ADA violations—but the
“the textual and factual similarity of a plaintiff’s complaints, standing alone, is not a basis for finding a party to be a vexatious litigant.” Molski, 500 F.3d at 1061. Further, as discussed above, the Ninth Circuit has not only cautioned against making credibility determinations based on a plaintiff’s ADA litigation history but also recognized “tester standing” as entirely permissible. C.R. Educ. & Enf’t Ctr., 867 F.3d at 1096; D’Lil, 538 F.3d at 1040. At this juncture, there is insufficient evidence for the Court to “make substantive findings of frivolousness or harassment.” Ringgold-Lockhart, 761 F.3d at 1062. And “[i]n light of the seriousness of restricting litigants’ access to the courts, pre-filing orders should be a remedy of last resort.” Id. Accordingly, the Court DENIES Defendant’s Motion to Declare Plaintiff a Vexatious Litigant. Based on the foregoing, the Court GRANTS in part and DENIES in part the Motion as follows: (1) Defendant’s Motion to Dismiss the ADA claim is (2) Defendant’s Motion to Dismiss the Unruh Act claim is GRANTED. The Court DECLINES to exercise supplemental jurisdiction over the Unruh Act claim. Plaintiff’s Unruh Act claim is DISMISSED. (3) Defendant’s Motion to Declare Plaintiff a Vexatious Litigant is DENIED. DATED: March 25, 2021 __/s_/ R__on_a_ld_ _S._W_._ L_e_w___________ HONORABLE RONALD S.W. LEW Senior U.S. District Judge