Anthony Bouyer v. Rockys Racquet World

• Court: District Court, C.D. California
• Decided: March 25, 2021
• Docket: 2:20-cv-04710
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 20-4710-RSWL-RAO x 12 ANTHONY BOUYER, an individual, ORDER re: Defendant’s 13 Motion to Dismiss Plaintiff, 14 Plaintiff’s Complaint and v. Declare Plaintiff a 15 Vexatious Litigant [19] 16 ROCKY’S RACQUET WORLD, a Limited Partnership; and 17 DOES 1-10, inclusive, 18 Defendants. 19 20 Plaintiff Anthony Bouyer (“Plaintiff”) claims that 21 Defendant Rocky’s Racquet World (“Defendant”) violated 22 the Americans with Disabilities Act (“ADA”) and 23 California’s Unruh Civil Rights Act (“Unruh Act”). 24 Before the Court is Defendant’s Motion to Dismiss 25 Plaintiff’s Complaint and Declare Plaintiff a Vexatious 26 Litigant (the “Motion”) [19]. 27 Having reviewed all papers submitted pertaining to 28 the Motion, the Court NOW FINDS AND RULES AS FOLLOWS: 1 the Court GRANTS in part and DENIES in part Defendant’s

2 Motion.

3 I. BACKGROUND 4 A. Factual Background 5 Plaintiff, a California resident, is a paraplegic 6 who requires a wheelchair for mobility. Compl. ¶ 1, ECF 7 No. 1. Defendant owns real property located at 8001 8 Laurel Canyon Blvd., North Hollywood, California 91605 9 (the “Property”). Id. ¶ 2. 10 On or about May 18, 2020, Plaintiff went to a Boost 11 Mobile store (the “Business”) located on the Property to 12 inquire about phones and confirm that the Business was 13 accessible to persons with disabilities. Id. ¶ 8. 14 Plaintiff alleges that, although the Property reserved 15 parking spaces for patrons, the Property had no 16 designated parking spaces for persons with disabilities 17 that complied with the 2010 Americans with Disabilities 18 Act Accessibility Guidelines (“ADAAG” or “ADA 19 Standards”). Id. ¶ 11. Plaintiff personally 20 encountered the following architectural barriers: a 21 built-up curb ramp projects from the sidewalk into the 22 access aisle; the curb ramp exceeds the maximum grade 23 allowed by ADAAG specifications; and an access aisle is 24 not properly marked. Id. ¶¶ 12, 16. 25 Plaintiff claims that the architectural barriers 26 deny him his right to enjoy accessible conditions at a 27 place of public accommodation. Id. ¶ 16. Plaintiff 28 alleges that he is deterred from patronizing the 1 Business and its accommodations but intends to return to

2 the Business for the dual purpose of availing himself of

3 its goods and services and ensuring that it complies 4 with federal and state law. Id. ¶ 19. Plaintiff plans 5 to return as a “tester” within forty-five days of being 6 informed that the Property has become fully and equally 7 accessible. Id. ¶ 20. 8 According to Plaintiff, the violations can be 9 easily removed without much difficulty or expense, and 10 if complete removal were not achievable, numerous 11 alternative accommodations could be made to provide a 12 greater level of access. Id. ¶ 23. 13 B. Procedural Background 14 On May 27, 2020, Plaintiff filed his Complaint [1], 15 asserting two claims for relief: (1) violations of the 16 ADA, 42 U.S.C. § 12181 et seq.; and (2) violation of the 17 Unruh Act, Cal. Civ. Code § 51 et seq. On October 20, 18 2020, Defendant filed the instant Motion [19]. 19 Plaintiff filed his Opposition [22] on November 3, 2020, 20 and Defendant replied [23] on November 10, 2020. 21 II. DISCUSSION 22 A. Legal Standard 23 1. Federal Rule of Civil Procedure 12(b)(1) 24 Federal Rule of Civil Procedure (“Rule”) 25 12(b)(1) allows a party to seek dismissal of an action 26 for lack of subject matter jurisdiction. Fed. R. Civ. 27 P. 12(b)(1). A jurisdictional challenge under Rule 28 12(b)(1) may be facial or factual. Safe Air for 1 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

2 A facial attack asserts that the allegations in a

3 complaint “are insufficient on their face to invoke 4 federal jurisdiction,” whereas a factual attack 5 “disputes the truth of the allegations that, by 6 themselves, would otherwise invoke federal 7 jurisdiction.” Id. 8 To resolve a facial attack, the court accepts the 9 allegations in the complaint as true and construes them 10 in favor of the party opposing dismissal. Leite v. 11 Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 12 Conversely, in resolving a factual attack, the court 13 “need not presume the truthfulness of the plaintiff’s 14 allegations” and “may review evidence beyond the 15 complaint without converting the motion to dismiss into 16 a motion for summary judgment.” Safe Air for Everyone, 17 373 F.3d at 1039 (citations omitted). If the moving 18 party brings a factual attack by presenting extrinsic 19 evidence, “the party opposing the motion must furnish 20 affidavits or other evidence necessary to satisfy its 21 burden of establishing subject matter jurisdiction.” 22 Id. (quoting Savage v. Glendale Union High Sch., 343 23 F.3d 1036, 1039 n.2 (9th Cir. 2003)). 24 Where, however, “the jurisdictional issue and 25 substantive claims are so intertwined that resolution of 26 the jurisdictional question is dependent on factual 27 issues going to the merits,” Rosales v. United States, 28 824 F.2d 799, 803 (9th Cir. 1987), the court “must 1 ‘assume [ ] the truth of the allegations in a complaint

2 . . . unless controverted by undisputed facts in the

3 record.’” Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 4 1136, 1139 (9th Cir. 2003) (quoting Roberts v. 5 Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987)). Under 6 those circumstances, the court should grant the motion 7 to dismiss for lack of subject matter jurisdiction “only 8 if the material jurisdictional facts are not in dispute 9 and the moving party is entitled to prevail as a matter 10 of law.” Rosales, 824 F.2d at 803. 11 2. Supplemental Jurisdiction 12 District courts have supplemental jurisdiction over 13 “claims that are so related to claims in the action 14 within such original jurisdiction that they form part of 15 the same case or controversy under Article III of the 16 United States Constitution.” 28 U.S.C. § 1367(a). A 17 district court in its discretion can decline to exercise 18 supplemental jurisdiction if: (1) the claim raises a 19 novel of complex issue of state law; (2) the claim 20 substantially predominates over the claims over which 21 the district court has original jurisdiction; (3) the 22 district court has dismissed all claims over which it 23 has original jurisdiction; or (4) in exceptional 24 circumstances, there are other compelling reasons for 25 declining jurisdiction. 28 U.S.C. § 1367(c). The 26 Supreme Court has described 28 U.S.C. § 1367(c) as a 27 codification of the principles of “economy, convenience, 28 fairness, and comity” that underlie the Supreme Court’s 1 earlier jurisprudence concerning pendent jurisdiction.

2 City of Chicago v. Int’l Coll. of Surgeons, 522 U.S.

3 156, 172–73 (1997) (quoting Carnegie-Mellon Univ. v. 4 Cohill, 484 U.S. 343, 357 (1988)). 5 3. Vexatious Litigant Motion 6 “Federal courts can ‘regulate the activities of 7 abusive litigants by imposing carefully tailored 8 restrictions under . . . appropriate circumstances.’” 9 Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 10 1057, 1061 (9th Cir. 2014) (quoting De Long v. 11 Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). Under 12 28 U.S.C. § 1651(a), district courts may enter pre- 13 filing orders enjoining vexatious litigants. See id. at 14 1061-62; Weissman v. Quail Lodge Inc., 179 F.3d 1194, 15 1197 (9th Cir. 1999). However, “[o]ut of regard for the 16 constitutional underpinnings of the right to court 17 access, ‘pre-filing orders should rarely be filed.’” 18 Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 19 912 F.2d at 1147). 20 The Ninth Circuit requires a district court to 21 comply with the following procedural and substantive 22 requirements before imposing such an order: “(1) give 23 litigants notice and ‘an opportunity to oppose the order 24 before it [is] entered’; (2) compile an adequate record 25 for appellate review, including ‘a listing of all the 26 cases and motions that led the district court to 27 conclude that a vexatious litigant order was needed’; 28 (3) make substantive findings of frivolousness or 1 harassment; and (4) tailor the order narrowly so as ‘to

2 closely fit the specific vice encountered.’” Id.

3 (quoting De Long, 912 F.2d at 1147-48). 4 In evaluating the third and fourth factors, the 5 Ninth Circuit has held that the following five 6 considerations “provide[] a helpful framework”: “(1) the 7 litigant’s history of litigation and in particular 8 whether it entailed vexatious, harassing or duplicative 9 lawsuits; (2) the litigant’s motive in pursuing the 10 litigation, e.g., does the litigant have an objective 11 good faith expectation of prevailing?; (3) whether the 12 litigant is represented by counsel; (4) whether the 13 litigant has caused needless expense to other parties or 14 has posed an unnecessary burden on the courts and their 15 personnel; and (5) whether other sanctions would be 16 adequate to protect the courts and other parties.” Id. 17 (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 18 1047, 1058 (9th Cir. 2007) (per curiam)). 19 Local Rule 83-8.3 states that an order declaring a 20 party a vexatious litigant “shall be based on a finding 21 that the litigant to whom the order is issued has abused 22 the Court’s process and is likely to continue such 23 abuse, unless protective measures are taken.” 24 B. Discussion 25 1. Defendant’s Evidentiary Objections 26 Defendant objects to the Declaration of Janis Kent 27 [22-5] and the Report of Janis Kent [22-6] on the 28 grounds that they lack foundation, see Fed. R. Evid. 1 602, and are based on insufficient facts or data, see

2 Fed. R. Evid. 702(b). See generally Evidentiary Objs.,

3 ECF No. 24. Because the Court does not rely on the 4 objected-to evidence in reaching its conclusions in this 5 Order, the Court OVERRULES as moot Defendant’s 6 evidentiary objections. 7 2. Motion to Dismiss 8 a. ADA Claim 9 Defendant moves to dismiss Plaintiff’s ADA claim 10 for lack of standing on the grounds that: (1) the 11 barriers identified in the Complaint do not presently 12 exist; and (2) the threat of repeated injury lacks 13 factual credibility. Mot. to Dismiss Compl. and Declare 14 Pl. a Vexatious Litigant (“Mot.”) 6:11-8:26, 18:7-19:16, 15 20:5-14, ECF No. 19. 16 “The ‘irreducible constitutional minimum of 17 standing’ includes three elements: (1) injury in fact; 18 (2) causation; and (3) redressability.” Oliver v. 19 Ralphs Grocery Co., 654 F.3d 903, 907 (9th Cir. 2011) 20 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 21 (1992)). To establish standing to seek injunctive 22 relief, a plaintiff must also demonstrate a “real and 23 immediate threat of repeated injury” in the future. 24 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 25 (9th Cir. 2011) (citing Fortyune v. Am. Multi-Cinema, 26 Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)). Thus, 27 “[b]ecause a private plaintiff can sue only for 28 injunctive relief (i.e., for removal of the barrier) 1 under the ADA, a defendant’s voluntary removal of

2 alleged barriers prior to trial can have the effect of

3 mooting a plaintiff’s ADA claim.” Oliver, 654 F.3d at 4 905 (internal citation omitted). 5 Defendant first argues that Plaintiff’s request for 6 injunctive relief is moot, asserting that “[w]hile 7 [D]efendant would dispute whether the alleged original 8 ‘injury’ ever occurred at all and whether the relevant 9 space was even in violation to begin with, . . . the 10 barriers sued upon in [P]laintiff’s allegations are, at 11 a minimum, not existing in the present.” Mot. 8:18-26. 12 In support of its argument, Defendant provides a 13 declaration from Defendant’s counsel, photographs of a 14 van parking space and signage, and a declaration from 15 Defendant’s managing partner purporting to demonstrate 16 that the van-accessible parking space at the site does 17 not have the alleged barriers. Id. at 8:10-17; see 18 Bryan Decl. Exs. B-F, N, ECF No. 20. 19 Here, the question of subject matter jurisdiction 20 is intertwined with the substantive issues because 21 Defendant’s argument regarding subject matter 22 jurisdiction hinges on whether its parking facilities 23 are ADA-compliant, which goes to the heart of 24 Plaintiff’s ADA claim. See Safe Air for Everyone, 373 25 F.3d at 1039 (“[J]urisdiction and the merits of an 26 action are intertwined where ‘a statute provides the 27 basis for both the subject matter jurisdiction of the 28 federal court and the plaintiff’s substantive claim for 1 relief.’” (quoting Sun Valley Gasoline, Inc. v. Ernst

2 Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983))).

3 Because the jurisdictional inquiry is coextensive with 4 the merits of Plaintiff’s ADA claim, dismissal for lack 5 of subject matter jurisdiction is proper only if the 6 allegations in the Complaint are controverted by 7 undisputed facts showing that Defendant is entitled to 8 prevail as a matter of law. See Vera v. Bureau of 9 Indian Affs., 738 F. App’x 431, 432 (9th Cir. 2018) 10 (stating that under such circumstances, “challenges to 11 the presence of jurisdictional facts must be treated as 12 motions for summary judgment with the corresponding 13 protections for the nonmoving party.” (citing Safe Air 14 for Everyone, 373 F.3d at 1039)). 15 As an initial matter, the parties dispute the 16 location of the alleged barriers. According to 17 Defendant, Plaintiff’s counsel communicated to 18 Defendant’s counsel that the source of the injury was 19 the lack of compliant van-accessible parking and at no 20 point corrected Defendant’s understanding of the facts. 21 Mot. 7:23-8:1; Reply 12:21-13:18, ECF No. 23; see Bryan 22 Decl. ¶ 10, Ex. A. Plaintiff, for his part, contends 23 that the violations he encountered actually exist on the 24 eastern portion of the parking lot, in front of the 25 Business, whereas the van-accessible parking space 26 referred to in Defendant’s Motion is located on the 27 western side away from store entrances. Pl.’s Opp’n to 28 Mot. to Dismiss (“Opp’n”) 2:15-26, ECF No. 22; see 1 Bouyer Decl. ¶ 8, Ex. 2, ECF No. 22-8.

2 Although Defendant has taken steps to assure its

3 parking facilities are ADA-compliant, see Bryan Decl. ¶ 4 12, Exs. B-F, the Court cannot conclude that the 5 barriers identified in the Complaint do not presently 6 exist. Plaintiff’s ADA claim is based in part on the 7 steepness of the curb ramp. With respect to the van- 8 accessible parking in the western lot, the declaration 9 from Defendant’s counsel provides only a conclusory 10 statement that “there is no curb ramp in excess of the 11 maximum grade allowed by the ADAAG specifications,” 12 Bryan Decl. ¶ 12(b), and Defendant’s photographs provide 13 no specific measurements or details sufficient to 14 confirm ADA compliance, see Byran Decl. Exs. B-F. On 15 this basis, Defendant has not met the “heavy burden” of 16 establishing that Plaintiff’s request for injunctive 17 relief is moot. See Rosemere Neighborhood Ass’n v. U.S. 18 Env’t Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) 19 (“The party alleging mootness bears a ‘heavy burden’ in 20 seeking dismissal.” (quoting Friends of the Earth, Inc. 21 v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 22 (2000))). 23 With respect to the eastern parking lot in front of 24 the Business, Defendant argues in its Reply that the 25 barriers do not exist there because it complies with the 26 1991 ADA Standards. See Reply 13:27-15:20. In support, 27 Defendant submits a declaration from Defendant’s 28 managing partner, Alvin T. Dickens, III, stating that 1 the parking lot was completed in 1988, the parking

2 facilities predate the ADA of 1991, and it is his

3 understanding that the parking lot was in compliance 4 with the 1991 ADA Standards. See Dickens Reply Decl. ¶¶ 5 5-6, ECF No. 23-1. This is insufficient, however, to 6 establish that the 2010 ADA Standards are wholly 7 inapplicable. 8 As Defendant himself points out, the Safe Harbor 9 provision of the 2010 ADA Standards states that 10 “[e]lements that have not been altered in existing 11 facilities on or after March 15, 2012 and that comply 12 with the corresponding technical and scoping 13 specifications for those elements in either the 1991 14 Standards . . . are not required to be modified in order 15 to comply with the requirements set forth in the 2010 16 Standards.” 28 C.F.R. § 35.150(b)(2)(i). Without 17 knowing if any alterations have been made, the Court 18 cannot conclude at this juncture that the 1991 ADA 19 Standards apply. The Court declines to assess whether 20 the alleged barriers exist under the 1991 ADA Standards, 21 particularly where Defendant first argues for the 22 applicability of the 1991 ADA Standards in its Reply 23 despite having notice since the filing of the Complaint 24 that Plaintiff is alleging violations under the 2010 ADA 25 Standards. See Compl. ¶ 11. 26 In short, there are disputes over material facts 27 inappropriate for resolution on a Rule 12(b)(1) motion. 28 See Safe Air for Everyone, 373 F.3d at 1039 1 (“[J]urisdictional finding of genuinely disputed facts 2 is inappropriate when ‘the jurisdictional issue and 3 substantive issues are so intertwined that the question 4 of jurisdiction is dependent on the resolution of 5 factual issues going to the merits’ of an action.” 6 (quoting Sun Valley, 711 F.2d at 139)). At this time, 7 the Court cannot conclude that the alleged barriers do 8 not exist and that the ADA claim is moot. 9 Finally, Defendant argues that Plaintiff lacks 10 standing to seek injunctive relief under the ADA on the 11 independent basis that the threat of repeated injury 12 lacks factual credibility. Mot. 18:7-19:16. Defendant 13 contends that Plaintiff’s allegations regarding intent 14 to return are insincere, pointing to Plaintiff’s 15 extensive ADA litigation history and the absence of 16 facts indicating past patronage, close proximity to 17 Plaintiff’s home, or a need to inquire about phones. 18 Id. 19 “[A]n ADA plaintiff can establish standing to sue 20 for injunctive relief either by demonstrating 21 deterrence, or by demonstrating injury-in-fact coupled 22 with an intent to return to a noncompliant facility.” 23 Chapman, 631 F.3d at 944. “Where ‘the public 24 accommodation being sued is far from the plaintiff’s 25 home,’ a plaintiff shows ‘actual or imminent injury 26 sufficient to establish standing’ when he or she 27 ‘demonstrates an intent to return to the geographic area 28 where the accommodation is located and a desire to visit 1 the accommodation if it were made accessible.’” Feezor

2 v. Sears, Roebuck & Co., 608 F. App’x 476, 477 (9th Cir.

3 2015) (quoting D’Lil v. Best W. Encina Lodge & Suites, 4 538 F.3d 1031, 1037 (9th Cir.2008)). However, “‘some 5 day’ intentions—without any description of concrete 6 plans, or indeed even any specification of when the some 7 day will be—do not support a finding” of actual or 8 imminent injury. Lujan, 504 U.S. at 564. 9 Plaintiff alleges that he uses a wheelchair for 10 mobility, he visited the Business, he personally 11 encountered barriers related to his disability— 12 inaccessible parking, and he is being deterred from 13 patronizing the Business but intends to return “for the 14 dual purpose of availing himself of the goods and 15 services offered to the public and to ensure that the 16 Business ceases evading its responsibilities under 17 federal and state law.” Compl. ¶¶ 1, 8, 11-12, 16-17, 18 19. Plaintiff further alleges that “[u]pon being 19 informed that the [Business] has become fully and 20 equally accessible, he will return within 45 days as a 21 ‘tester’ for the purpose of confirming . . . 22 accessibility.” Id. ¶ 20. Plaintiff thus articulates a 23 “concrete plan[]” to return, not just “‘some day’ 24 intentions.” Lujan, 504 U.S. at 564. At the motion to 25 dismiss stage, Plaintiff’s allegations are sufficient to 26 establish standing. 27 The Court rejects Defendant’s argument that 28 Plaintiff’s allegations are implausible because of his 1 past ADA litigation. See Antoninetti v. Chipotle

2 Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010)

3 (“Courts must tread carefully before construing a 4 Disability Act plaintiff’s history of litigation against 5 him.”); D’Lil, 538 F.3d at 1040 (“The attempted use of 6 past litigation to prevent a litigant from pursuing a 7 valid claim in federal court warrants our most careful 8 scrutiny.”). The Ninth Circuit has held that an ADA 9 plaintiff can claim “tester standing,” which allows a 10 plaintiff whose “only motivation for visiting a facility 11 is to test it for ADA compliance” to assert standing. 12 C.R. Educ. & Enf’t Ctr. v. Hosp. Props. Tr., 867 F.3d 13 1093, 1096 (9th Cir. 2017). Even if Plaintiff’s only 14 motivation for visiting the Business was to test it for 15 ADA compliance, “motivation is irrelevant to the 16 question of standing under Title III of the ADA.” Id. 17 at 1102. Because Plaintiff has sufficiently established 18 standing at this stage, Defendant’s Motion to Dismiss 19 the ADA claim is DENIED. 20 b. Unruh Act Claim 21 Defendant argues that the Court should decline to 22 exercise supplemental jurisdiction over, and therefore 23 dismiss, the Unruh Act claim on any of three independent 24 grounds under 28 U.S.C. § 1367(c)(2)-(4). Mot. 1:13-18, 25 2:23-6:9. The Court agrees with Defendant that 26 “exceptional circumstances” exist and declines to 27 exercise supplemental jurisdiction over Plaintiff’s 28 Unruh Act claim. See 28 U.S.C. § 1367(c)(4). 1 “In 2012, in an attempt to deter baseless claims 2 and vexatious litigation, California adopted heightened 3 pleading requirements for disability discrimination 4 lawsuits under the Unruh Act.” Velez v. Il Fornanio 5 (Am.) Corp., No. 3:18-CV-1840-CAB-MDD, 2018 WL 6446169, 6 at *6 (S.D. Cal. Dec. 10, 2018). These heightened 7 pleading requirements apply to actions alleging a 8 “construction-related accessibility claim,” which 9 California law defines as “any civil claim in a civil 10 action with respect to a place of public accommodation, 11 including, but not limited to, a claim brought under 12 Section 51, 54, 54.1, or 55, based wholly or in part on 13 an alleged violation of any construction-related 14 accessibility standard.” Cal. Civ. Code § 55.52(a)(1). 15 When California continued to experience large numbers of 16 these actions, California imposed additional limitations 17 on “high-frequency litigants.”1 In support of its 18 imposition of additional requirements on high-frequency 19 litigants, the California Legislature found and 20 declared: 21 [M]ore than one-half, or 54 percent, of all construction-related accessibility complaints 22 filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all complaints 23 were filed by a total of 14 parties. Therefore, a very small number of plaintiffs 24 25 1 A high-frequency litigant is defined as a plaintiff who has filed ten or more complaints alleging a construction-related 26 accessibility violation within the twelve-month period immediately preceding the filing of the current complaint 27 alleging a construction-related accessibility violation. Cal. 28 Civ. Proc. Code § 425.55(b)(1). 1 the construction-related accessibility claims in the state, from 70 to 300 lawsuits each 2 year. Moreover, these lawsuits are frequently filed again st small businesses on the basis of 3 boilerplate complaints, apparently seeking quick cash settlements rather than correction 4 of the accessibility violation. This practice unfairly taints the reputation of other 5 innocent disabled consumers who are merely trying to go about their daily lives accessing 6 public accommodations . . . . 7 Cal. Civ. Proc. Code § 425.55(a)(2). In response to the 8 “special and unique circumstances” surrounding 9 disability access litigation, id. § 425.55(3), 10 California imposed a “high-frequency litigant fee,” 11 requiring high-frequency litigants2 to pay a $1,000 12 filing fee in addition to the normal fee at the time of 13 filing a complaint. Cal. Gov’t Code § 70616.5. 14 In enacting restrictions and additional fees for 15 the filing of construction-related accessibility claims, 16 California sought to limit the burden these types of 17 cases put on its businesses. But, in filing these 18 actions in federal courts, plaintiffs have managed to 19 avail themselves of the state statutory damages while 20 circumventing the limitations imposed by the state 21 legislature. This situation, as well as the increased 22 burden on federal courts due to the increasing number of 23 these cases, presents the type of “exceptional 24

25 2 Plaintiff qualifies as a high-frequency litigant. See Decl. of Anthony Bouyer in Supp. of Resp. to OSC re Suppl. 26 Jurisdiction ¶ 2, ECF No. 10-2 (“I have filed more than 10 complaints alleging construction-related accessibility violations 27 within the 12-month period immediately preceding the filing of 28 the complaint in this action.”). 1 circumstances” and “compelling reasons” that justify a

2 court’s decision to decline to exercise supplemental

3 jurisdiction over any Unruh Act or other state law 4 claims under 28 U.S.C. § 1367(c)(4). 5 Declining to exercise supplemental jurisdiction 6 over Plaintiff’s Unruh Act claim under these 7 circumstances furthers the values of judicial economy, 8 fairness, convenience, and comity. See, e.g., Schutza 9 v. Cuddeback, 262 F. Supp. 3d 1025, 1031 (S.D. Cal. 10 2017); United Mine Workers v. Gibbs, 383 U.S. 715, 726 11 (1966). Allowing federal courts to act as a haven for 12 these claims is an affront to the comity between federal 13 and state courts. California’s elected representatives, 14 not this Court, have enacted laws restricting 15 construction-related accessibility claims and, in doing 16 so, have directed that these claims by high-frequency 17 litigants be treated differently than other matters. 18 Accordingly, the Court concludes that “exceptional 19 circumstances” and “compelling reasons” exist to support 20 the Court’s decision to decline to exercise supplemental 21 jurisdiction over Plaintiff’s Unruh Act claim. A 22 significant number of judges both within the Central 23 District of California and elsewhere have similarly 24 declined to exercise supplemental jurisdiction over 25 construction-related accessibility claims asserted under 26 state law. See, e.g., Whitaker v. 7707 Sunset, Inc., 27 No. CV 20-1149-DMG(AGRx), 2020 WL 5823566 (C.D. Cal. May 28 26, 2020) (Gee, J.); Garcia v. Thomas, No. 2:20-cv- 1 00684-VAP-PLAx, 2020 WL 5239175, (C.D. Cal. May 7, 2020)

2 (Phillips, J.); Fernandez v. McAuley, No. CV 20-1279 MWF

3 (GJSx), 2020 WL 3655492 (C.D. Cal. Mar. 30, 2020) 4 (Fitzgerald, J.); Garcia v. Ross Stores, Inc., No. CV 5 20-00950 PA (GJSx), 2020 WL 5239863 (C.D. Cal. Feb. 12, 6 2020) (Anderson, J.); Langer v. Easton, No. CV 19-8562 7 PSG (ADSx), 2019 WL 7900274 (C.D. Cal. Nov. 7, 2019) 8 (Gutierrez, J.); Zarian v. Triple M Props., No. 8:19-cv- 9 01951-JLS-DFM, 2019 WL 5538927 (C.D. Cal. Oct. 25, 2019) 10 (Staton, J.); Whitaker v. ALO, LLC, No. CV 19-03312-RGK- 11 GJS, 2019 WL 787737 (C.D. Cal. Oct. 4, 2019) (Klausner, 12 J.); see also Langer v. Petras, No. 19-cv-1408-CAB-BGS, 13 2019 WL 3459107 (S.D. Cal. July 31, 2019) (Bencivengo, 14 J.); Velez v. Cloghan Concepts, LLC, 387 F. Supp. 3d 15 1072, 1077-78 (S.D. Cal. June 10, 2019) (Moskowitz, J.); 16 Reyes v. Flourshings Plus, Inc., No. 19cv261 JM (WVG), 17 2019 WL 1958284 (S.D. Cal. May 2, 2019) (Miller, J.); 18 Schutza v. Alessio Leasing, Inc., No. 18cv2154-LAB(AGS), 19 2019 WL 1546950 (S.D. Cal. Apr. 8, 2019) (Burns, J.); 20 Rutherford v. Ara Lebanese Grill, No. 18-CV-01497-AJB- 21 WVG, 2019 WL 1057919 (S.D. Cal. Mar. 6, 2019) 22 (Battaglia, J.); Schutza v. Lamden, No. 2:17-cv-2562-L- 23 JLB, 2018 WL 4385377 (S.D. Cal. Sept. 14, 2018) (Lorenz, 24 J.); Reyes v. Snoozetown, LLC, No. 3:18-cv-00498-H-JLB, 25 2018 WL 3438753 (S.D. Cal. July 16, 2018) (Huff, J.). 26 The Court has not deprived Plaintiff of any 27 remedies, as the ADA claim remains pending before this 28 Court, and Plaintiff may pursue his Unruh Act claim in 1 state court.3 Any resultant inefficiencies “are slight

2 in comparison to California’s weighty interest in

3 ensuring its laws are not circumvented, and in enforcing 4 the detailed statutory regime it has set up for 5 construction-related accessibility claims.” Davidson v. 6 Cole, No. SACV-20-01733-CJC-(ADSx), 2020 WL 6588386, at 7 *4 (C.D. Cal. Sept. 28, 2020). The Court therefore 8 GRANTS Defendant’s Motion to Dismiss the Unruh Act 9 claim. 10 3. Motion to Declare Plaintiff a Vexatious Litigant 11 12 Lastly, Defendant asks the Court to declare 13 Plaintiff a vexatious litigant under Local Rule 83-8 and 14 direct the Clerk not to accept filings from Plaintiff 15 without review by an authorizing judge. Mot. 17:22-26. 16 At a minimum, Defendant argues, the Court should 17 prohibit Plaintiff from filing ADA-based state-law 18 claims for monetary damages. Id. at 17:27-28. 19 Defendant contends that Plaintiff’s “history and motive 20 demonstrate that he is a vexatious litigant,” pointing 21 out that Plaintiff has filed at least 411 lawsuits in 22 this district in 2020 and urging the Court to consider 23 Plaintiff’s motive “to extort quick cash settlements 24 3 Plaintiff encountered the barriers in May 2020. Compl. ¶ 25 8. Accordingly, the statute of limitations for Plaintiff’s Unruh Act claim has not lapsed, and Plaintiff is able to bring this 26 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) 27 (finding that Unruh Act claims “are subject to a two-year statute 28 of limitations” (citing Cal. Civ. Proc. Code § 335.1)). 1 from businesses . . . [and] to evade California state

2 court protections against such suits.” Id. at 10:2-

3 16:21. 4 It is indisputable that Plaintiff is a serial ADA 5 litigant who has filed numerous complaints alleging both 6 ADA and Unruh Act claims. But “[a]n injunction cannot 7 issue merely upon a showing of litigiousness. The 8 plaintiff’s claims must not only be numerous, but also 9 be patently without merit.” Molski v. Evergreen Dynasty 10 Corp., 500 F.3d 1047, 1059 (9th Cir. 2007) (per curiam) 11 (quoting Moy v. United States, 906 F.2d 467, 470 (9th 12 Cir. 1990)). Besides emphasizing the sheer volume of 13 complaints filed by Plaintiff and their apparent 14 boilerplate nature, Defendant has not provided 15 sufficient evidence that Plaintiff’s filings are 16 frivolous or without merit. Defendant highlights six 17 other lawsuits that Plaintiff initiated on May 18 and 18 19, 2020, but all six lawsuits have resulted in either 19 an agreement to bring premises into compliance with 20 disability access laws or an injunction for compliance. 21 Opp’n 15:13-16; Bouyer Decl. ¶¶ 10-19. Contrary to 22 Defendant’s suggestion, Mot. 15:21-25, a high settlement 23 rate is not “evidence of a lack of belief in the merits 24 . . . [but rather] a fact of modern litigation.” Wilson 25 v. Pier 1 Imps. (US), Inc., 411 F. Supp. 2d 1196, 1201 26 (E.D. Cal. 2006). 27 Defendant also takes issue with the fact that 28 Plaintiff always alleges a “dual purpose” for visiting a 1 business—to complete some task associated with the

2 business and to examine it for ADA violations—but the

3 “the textual and factual similarity of a plaintiff’s 4 complaints, standing alone, is not a basis for finding a 5 party to be a vexatious litigant.” Molski, 500 F.3d at 6 1061. Further, as discussed above, the Ninth Circuit 7 has not only cautioned against making credibility 8 determinations based on a plaintiff’s ADA litigation 9 history but also recognized “tester standing” as 10 entirely permissible. C.R. Educ. & Enf’t Ctr., 867 F.3d 11 at 1096; D’Lil, 538 F.3d at 1040. 12 At this juncture, there is insufficient evidence 13 for the Court to “make substantive findings of 14 frivolousness or harassment.” Ringgold-Lockhart, 761 15 F.3d at 1062. And “[i]n light of the seriousness of 16 restricting litigants’ access to the courts, pre-filing 17 orders should be a remedy of last resort.” Id. 18 Accordingly, the Court DENIES Defendant’s Motion to 19 Declare Plaintiff a Vexatious Litigant. 20 III. CONCLUSION 21 Based on the foregoing, the Court GRANTS in part 22 and DENIES in part the Motion as follows: 23 (1) Defendant’s Motion to Dismiss the ADA claim is 24 DENIED. 25 (2) Defendant’s Motion to Dismiss the Unruh Act claim 26 is GRANTED. The Court DECLINES to exercise 27 supplemental jurisdiction over the Unruh Act claim. 28 Plaintiff’s Unruh Act claim is DISMISSED. 1 (3) Defendant’s Motion to Declare Plaintiff a Vexatious 2 Litigant is DENIED. 3 4 IT IS SO ORDERED. 5 6 DATED: March 25, 2021 __/s_/ R__on_a_ld_ _S._W_._ L_e_w___________ HONORABLE RONALD S.W. LEW 7 Senior U.S. District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28