Block v. Salem

• Court: District Court, E.D. California
• Decided: March 21, 2023
• Docket: 1:22-cv-01596
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HENDRIK BLOCK, Case No. 1:22-cv-01596-JLT-BAM 12 Plaintiff, ORDER TO SHOW CAUSE RE SUPPLEMENTAL JURISDICTION 13 v. Deadline: April 11, 2023 14 MOHAMED NASSER SALEM, individually and dba QUICK MART, 15 Defendant. 16 17 On December 31, 2022, Plaintiff Hendrik Block initiated this action against Defendant 18 Mohamed Nasser Salem, individually and dba Quick Mart. (Doc. 1.) The Complaint asserts 19 claims for injunctive relief under the Americans with Disabilities Act of 1990 (“ADA”) and the 20 California Health & Safety Code and a claim for statutory damages under California’s Unruh 21 Civil Rights Act (“Unruh Act”). (Id.) Defendant has not appeared in this action, and default has 22 been entered. (Doc. 8.) 23 Based upon the recent Ninth Circuit opinion in Vo v. Choi, this Court will order Plaintiff 24 to show cause why the Court should not decline to exercise supplemental jurisdiction over 25 Plaintiff’s Unruh Act and California Health & Safety Code claims. See 28 U.S.C. § 1367(c); Vo v. 26 Choi, 49 F.4th 1167 (9th Cir. 2022) (holding the district court properly declined to exercise 27 supplemental jurisdiction in a joint Unruh Act and ADA case). 28 In the Unruh Act, a state law cause of action expands the remedies available in a private 1 action. California, in response to the resulting substantial volume of claims asserted under the 2 Unruh Act and the concern that high-frequency litigants may be using the statute to obtain 3 monetary relief for themselves without accompanying adjustments to locations to assure 4 accessibility to others, enacted filing restrictions designed to address that concern. Arroyo v. 5 Rosas, 19 F.4th 1202, 1211–12 (9th Cir. 2021). These heightened pleading requirements apply to 6 actions alleging a “construction-related accessibility claim,” which California law defines as “any 7 civil claim in a civil action with respect to a place of public accommodation, including but not 8 limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged 9 violation of any construction-related accessibility standard.” Cal. Civ. Code § 55.52(a)(1). 10 Moreover, California imposes additional limitations on “high-frequency litigants,” defined 11 as:

12 A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the 13 filing of the current complaint alleging a construction-related accessibility violation. 14 15 Cal. Civ. Proc. Code § 425.55(b)(1). The definition of “high-frequency litigant” also extends to 16 attorney who represent “as attorney of record 10 or more high-frequency litigant plaintiffs in 17 actions that were resolved within the 12-month period immediately preceding the filing of the 18 current complaint alleging a construction-related accessibility violation . . . .” Cal. Civ. Proc. 19 Code § 425.55(b)(2). “High-frequency litigants” are subject to a special filing fee and further 20 heightened pleading requirements. See Cal. Gov. Code § 70616.5; Cal. Civ. Proc. Code § 21 425.50(a)(4)(A). By enacting restrictions on the filing of construction-related accessibility 22 claims, California has expressed a desire to limit the financial burdens California’s businesses 23 may face for claims for statutory damages under the Unruh Act. See Arroyo v. Rosas, 19 F.4th at 24 1206-07, 1212. The Ninth Circuit has also expressed “concerns about comity and fairness” by 25 permitting plaintiffs to circumvent “California’s procedural requirements.” Vo v. Choi, 49 F.4th at 26 1171. Plaintiffs who file these actions in federal court evade these limits and pursue state law 27 damages in a manner inconsistent with the state law’s requirements. See generally, Arroyo v. 28 Rosas, 19 F.4th at 1211–12; Vo v. Choi, 49 F.4th at 1171-72. 1 Plaintiff’s claims under Cal. Health & Safety Code §§ 19955 and 19959 are “construction- 2 related accessibility claims” that are subject to the same pleading and filing requirements as 3 Plaintiff’s Unruh Act claim. See Gilbert v. Singh, No. 1:21-cv-01338-AWI-HBK, 2023 WL 4 2239335, at *2 (E.D. Cal. Feb. 27, 2023). 5 In an action over which a district court possesses original jurisdiction, that court “shall 6 have supplemental jurisdiction over all other claims that are so related to claims in the action 7 within such original jurisdiction that they form part of the same case or controversy under Article 8 III of the United States Constitution.” 28 U.S.C. § 1367(a). Even if supplemental jurisdiction 9 exists, however, district courts have discretion to decline to exercise supplemental jurisdiction. 10 28 U.S.C. § 1367(c). Such discretion may be exercised “[d]epending on a host of factors” 11 including “the circumstances of the particular case, the nature of the state law claims, the 12 character of the governing state law, and the relationship between the state and federal claims.” 13 City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997). 14 According to the filings with this Court, it appears that Plaintiff Block has filed at least 15 eleven (11) construction-related accessibility cases in this district within the 12-month period 16 immediately preceding the filing of this action on December 13, 2022. 17 For these reasons, IT IS HEREBY ORDERED as follows: 18 1. Plaintiff is ORDERED to show cause, in writing, no later than April 11, 2023, why 19 the Court should not decline to exercise supplemental jurisdiction over Plaintiff’s 20 Unruh Act and California Health & Safety Code claims; 21 2. In responding to the show cause order, Plaintiff is further ORDERED to: 22 a. identify the amount of statutory damages Plaintiff seeks to recover; and 23 b. provide declarations from Plaintiff and Plaintiff’s counsel, signed under 24 penalty of perjury, providing all facts necessary for the Court to determine if 25 each is a “high-frequency litigant;” and 26 3. Plaintiff is cautioned that the failure to respond may result in a recommendation to 27 dismiss of the entire action without prejudice. Fed. R. Civ. P. 41(b) (stating that 28 dismissal is warranted “[i]f the plaintiff fails to … comply with … a court order”); see 1 also Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2 2005). Further, an inadequate response will result in the Court recommending that 3 supplemental jurisdiction over Plaintiff’s Unruh Act and Cal. Health & Safety Code 4 claims be declined and that those claims be dismissed pursuant to 28 U.S.C. § 1367(c). 5 IT IS SO ORDERED. 6

7 Dated: March 21, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 8

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