Chavez v. Won

• Court: District Court, E.D. California
• Decided: September 1, 2020
• Docket: 1:19-cv-00595
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 RORY CHAVEZ, ) Case No.: 1:19-cv-0595 JLT ) 12 Plaintiff, ) ORDER VACATING THE HEARING DATE OF ) SEPTEMBER 4, 2020 13 v. ) ) ORDER DENYING DEFENDANTS’ MOTION 14 YONG KYUN WON, et al., ) FOR PARTIAL SUMMARY JUDGMENT AND ) REQUEST TO DECLINE SUPPLEMENTAL 15 Defendants. ) JURISDICTION ) (Doc. 32) 16 )

17 Rory Chavez asserts he encountered disability access barriers when visiting Havana House 18 Smoke Shop and seeks to hold Yong Kyun Wong, Young Ae Wong, and GIJ Enterprises liable for 19 violations of the Americans with Disabilities Act and Unruh Civil Rights Act. (See Doc. 1) Defendants 20 seek summary adjudication of Plaintiff’s claim under the ADA. (Doc. 30) Plaintiff opposes the motion, 21 asserting there is no admissible evidence that Defendants’ property complies with the ADA. (Doc. 37) 22 The Court finds the matter suitable for decision without oral arguments, and the matter is taken 23 under submission pursuant to Local Rule 230(g). Therefore, the hearing date of September 4, 2020 is 24 VACATED. For the reasons set forth below, Defendants’ motion is DENIED. 25 /// 26 /// 27 /// 28 1 I. Background and Undisputed Facts1 2 Plaintiff “is a California resident with physical disabilities” and he “uses a wheelchair for 3 mobility.” (Doc. 1 at 1, ¶ 1; DSF 1) Plaintiff alleges that in December 2018, he visited Havana House 4 Smoke Shop, which is located at 3221 Niles Street in Bakersfield, California. (Id. at 2-3, ¶¶ 5, 10) The 5 real property at that location is owned by Yong Kyun Wong and Young Ae Wong, while defendant GIJ 6 Enterprises operated Havana House Smoke Shop at the time of Plaintiff’s visit. (Id. at 2, ¶¶ 3-5; see 7 also Doc. 30-1 at 6; Doc. 38) 8 Plaintiff asserts he went to Havana House Smoke Shop “with the intention to avail himself of its 9 goods or services and to assess the business for compliance with the disability access laws.” (Doc. 1 at 10 3, ¶ 10) He reports the store “is a facility open to the public, a place of public accommodation, and a 11 business establishment.” (Id., ¶ 11) Plaintiff alleges “[p]arking spaces are one of the facilities, 12 privileges, and advantages offered by Defendants to patrons of the Store.” (Id., ¶ 12) According to 13 Plaintiff, on the date of his visit, “the defendants did not provide accessible parking in conformance 14 with the ADA Standards.” (Id., ¶ 13) In addition, Plaintiff reports that “the defendants did not provide 15 accessible paths of travel leading to the entrance of the Store in conformance with the ADA Standards.” 16 (Id., ¶ 16) Plaintiff “personally encountered” the identified barriers, which “denied the plaintiff full and 17 equal access” to the store. (Id., ¶¶ 18-19) 18 At the time of the complaint was filed in May 2019, Plaintiff reported the barriers remained and 19 Defendants did not provide accessible parking or accessible paths of travel in compliance with the 20 ADA standards. (Doc. 1 at 3, ¶¶ 14, 17) Plaintiff asserts he would return to Havana House Smoke 21 Shop “to avail himself of goods or services and to determine compliance with the disability access laws 22 once it is represented to him that the Store and its facilities are accessible.” (Id. at 4, ¶ 23) However, 23 he was “deterred from doing so because of his knowledge of the existing barriers and his uncertainty 24 about the existence of yet other barriers on the site.” (Id.) Thus, Plaintiff seeks to hold Defendants 25 liable for violations of the ADA and California’s Unruh Civil Rights Act. (See generally Doc. 1) 26 27 1 The parties did not prepare a Joint Statement of Undisputed Facts. However, Defendants prepared a separate 28 statement of facts. (Doc. 30-2 at 2) To the extent the Court finds the facts are undisputed and admissible evidence supports the facts, such facts are identified as DSF. 1 Defendants filed their motion for summary adjudication now pending before the Court on 2 August 3, 2020. (Doc. 30) Defendants contend Plaintiff’s request “for injunctive relief must be 3 dismissed because … all of the paint striping and signage for the accessible parking spaces at the 4 [Store] presently comply with current accessibility standards under both federal and state law.” (Doc. 5 30-1 at 6) In addition, Defendants assert “the Court should decline to exercise supplemental 6 jurisdiction over Plaintiff’s state law claims.” (Id.) Plaintiff filed his opposition to the motion on 7 August 21, 2020. (Doc. 37) Defendants not file a reply. 8 II. Legal Standards for Summary Judgment 9 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to 10 see whether there is a genuine need for trial.” Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 11 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is “no 12 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 13 R. Civ. P. 56(a). In addition, Rule 56 allows a court to grant summary adjudication, or partial summary 14 judgment, when there is no genuine issue of material fact as to a particular claim or portion of that 15 claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) 16 (“Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of 17 a single claim…”) (internal quotation marks and citation omitted). The standards that apply on a 18 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. Civ. 19 P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 20 Summary judgment, or summary adjudication, should be entered “after adequate time for 21 discovery and upon motion, against a party who fails to make a showing sufficient to establish the 22 existence of an element essential to that party’s case, and on which that party will bear the burden of 23 proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the “initial 24 responsibility” of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 25 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find 26 for the non-moving party, while a fact is material if it “might affect the outcome of the suit under the 27 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem 28 Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A party demonstrates summary adjudication is 1 appropriate by “informing the district court of the basis of its motion, and identifying those portions of 2 ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, 3 if any,’ which it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 4 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)). 5 If the moving party meets its initial burden, the burden then shifts to the opposing party to 6 present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); 7 Matsuhita, 475 U.S. at 586. An opposing party “must do more than simply show that there is some 8 metaphysical doubt as to the material facts.” Id. at 587. The party is required to tender evidence of 9 specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention 10 that a factual dispute exits. Id. at 586 n.11; Fed. R. Civ. P. 56(c). The opposing party is not required to 11 establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual 12 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 13 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 14 However, “failure of proof concerning an essential element of the nonmoving party’s case necessarily 15 renders all other facts immaterial.” Celotex, 477 U.S. at 323. 16 The Court must apply standards consistent with Rule 56 to determine whether the moving party 17 demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. 18 Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary 19 judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 20 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 21 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed “in the light most favorable to the 22 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. Orr, 23 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 24 III. Evidence before the Court 25 Pursuant to Rule 56(c) of the Federal Rules of the Civil Procedure, “an affidavit or declaration 26 used to support or oppose a motion must be made on personal knowledge, set out facts that would be 27 admissible in evidence, and show that the affiant or declarant is competent to testify on the matters 28 stated.” 1 A. Expert Opinions 2 Under the Federal Rules, “[i]f scientific, technical, or other specialized knowledge will assist 3 the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an 4 expert by knowledge, skill, experience, training, or education may testify thereto in the form of an 5 opinion or otherwise.” Fed. R. Evid. 702. However, “an expert witness cannot give an opinion as to [a] 6 legal conclusion, i.e., an opinion on an ultimate issue of law.” Nationwide Transp. Fin. v. Cass Info. 7 Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008); see also Crow Tribe of Indians v. Racicot, 87 F.3d 8 1039, 1045 (9th Cir. 1996) (“Expert testimony is not proper for issues of law.... They do not testify 9 about the law.”) (citations and quotation marks omitted). 10 B. Statements of Jong Park 11 Plaintiff objects to statements made by Jong Park in his declaration and the Certified Access 12 Specialist Inspection Report dated July 9, 2020 (“the CASp Report”). (Doc. 37-2) Mr. Park reports he 13 “personally visited and inspected the property located at 3221 Nile Street, Bakersfield California… on 14 July 9, 2020 and took measurements.” (Doc. 30-5 at 3, Park Decl. ¶ 4) He prepared the CASp Report, 15 in which Mr. Park indicated: 16 1. Designated parking stall: Provided a van accessible parking space as required, and complies with 2010 ADA STD & 2016 CA Title 24 Part2-11B-502.2 17 2. Dimensions of the accessible parking space: Met the required dimensions for van 18 accessible parking space with access aisle, and, in compliance with 2010 ADA STD and 2016 CA Title 24 Part 2-11 B-502.2 and 502.3 19 3. Provided International Symbols (ISA) over the surface of the accessible parking stall 20 per 2010 ADA STD and 2016 CA Title 24 Part 2-118-502.6.4.1 and 502.6.4.2

21 4. Paint striping over the accessible parking stall and aisle: Provided complete paint striping per 2010 ADA STD and 2016 CA Title 24 Part 2-118-502.3, 502.3.3 22 5. “NO PARKING” words on surface of the access aisle: Provided over access aisle 23 (loading and unloading area) and in compliance with 2010 ADA STD and 2016 CA Title 24 Part 2-11 B-502.3.3 24 6. Signage-identification of parking space for off-street parking facilities: Provided wall 25 mounted sign that is containing “International Symbol of Accessibility”, “Van Accessible” and “Minimum Fine $250” per 2016 CA Title 24 Part 2-11 B- 502.6 26 7. Appropriately completed Unauthorized Vehicle Warning sign is installed and in 27 compliance with 2010-2016 CA Title 24 Part 2-11 B-502.8

28 8. Provided required access aisle on the passenger side for the van accessible parking 1 space and in compliance with 2010 CA Title 24 Part 2-118-502.3.4

2 9. Surface conditions on the accessible parking and aisle: Removed existing built up ramp from the access aisle, repaved, achieved required surface conditions and the 3 accessible parking is in compliance with 2010 ADA STD 302, 502.4, 2016 CA Title 24 Part 2-11 B-302 and 502.4. The surfaces are sloped not more than 2 % and in 4 compliance.

5 10. Provided an accessible route (accessible path of travel) from accessible parking to the entrance, and, in compliance with 2010 ADA STD 403 (1-5) and 206.2.1. 6 Conclusion: In the opinion of the inspector, the facilities and accessible features listed 7 above are in compliance with 2010 ADA STD and 2016 CA Title 24, Part 2-11 B accessibility requirements for existing facilities. 8

9 (Doc. 30-5 at 4; Doc. 30-6 at 3) (emphasis omitted) Furthermore, Mr. Park states in his declaration: 10 “Based on my inspect and report, the elements of the Facility identified in Plaintiff’s Complaint are 11 compliant under federal and state accessibility standards. Presently, the Facility has, among others, 12 accessible path of travel leading to the entrance of the former Havana House Smoke Shop...” (Doc. 30- 13 5 at 3, Park Decl. ¶ 6) 14 Plaintiff objects to the statements in Paragraph 6 of Park’s declaration, asserting he offers only 15 legal conclusions regarding the accessibility of a path of travel and compliance with the federal and 16 state standards. (Doc. 37-1 at 2-3; Doc. 37-2) Plaintiff contends the CASp Report suffers the same 17 infirmities because Mr. Park fails to provide any information regarding the measurements taken or “the 18 facts or data for the facilities at issue.” (Doc. 37-1 at 3) 19 C. Analysis 20 An expert may not offer a legal conclusion or testimony on “issues of law.” Crow Tribe of 21 Indians, 87 F.3d at 1045; see also United States v. Duncan, 42 F.3d 97, 101 (2d Cir.1994) (“When an 22 expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, 23 but rather attempts to substitute the expert’s judgment for the jury’s.”). Significantly, whether there is 24 compliance with ADA regulations is “a legal conclusion.” See, e.g., See Anderson v. Rochester- 25 Genesee Reg'l Transp. Auth., 337 F.3d 201, 216 (2d Cir. 2003) (“ADA compliance” was a "legal 26 conclusion[]”); Arroyo v. Denaco, LLC, 2020 WL 2477682 at *2 (C.D. Cal. Mar. 20, 2020) (identifying 27 accessibility and “in conformance with the ADA standards” as “legal conclusions,” not facts). 28 Courts have repeatedly stricken statements from experts regarding ADA compliance where the 1 expert failed to identify any factual support for the opinions. See, e.g., Kalani v. Starbucks Corp., 81 2 F.Supp. 3d 876, 881-84 (N.D. Cal. 2015) (excluding statements from an expert “as impermissible legal 3 conclusions”); Sharp v. Islands Cal. Ariz. LP, 900 F. Supp. 2d 1101, 1112 (S.D. Cal. 2012) (statement 4 that the “waiting area is accessible to wheelchair users and complies with all ADAAG requirements” 5 was an improper legal conclusion); Feltenstein v. City of New Rochelle, 254 F.Supp. 3d 647, 657 6 (N.Y.S.D. 2017) (finding the expert “makes legal conclusions of compliance with the ADA without 7 providing sufficient detail” and denying summary judgment); see also Miller v. California Speedway 8 Corp., 453 F. Supp. 2d 1193 (C.D. Cal. 2006), reversed on other grounds by 536 F.3d 1020 (9th Cir. 9 2008) (concluding the expert offered an impermissible conclusion of law where the expert opined that 10 “the subject seating does in fact comply with the applicable” laws and regulations, without identifying 11 any factual support for that conclusion). 12 For example, in Kalani, the Northern District court excluded “several paragraphs of Defendant's 13 expert’s declaration as impermissible legal conclusions that cannot support a finding of summary 14 judgment.” Id., 81 F.Supp. 3d at 884. In Kalani, the expert indicated: 15 A) Plaintiff's allegations in his First Amended Complaint (Court Docket No. 32-1) are without merit. 16 B) The subject store fully complies with all federal and state access regulations as 17 Plaintiff ROBERT KALANI alleges them and as they relate to his disability of a mobility impaired person who uses an automatic wheelchair. As of November 4, 2014, 18 the facility is free of non-compliant issues.

19 C) The disabled, van accessible parking spot and access aisle in front of the store complies with all applicable access requirements after the renovation. A proper 20 accessible route is provided from this parking spot to the front door.

21 Id. at 882. The court found no factual support for the expert’s opinions, where no information was 22 provided regarding measurements. Id. In contrast, the court noted the expert’s statement that a pick-up 23 counter … complies with access regulations” was supported where the expert also indicated the counter 24 “now provides a length of 36 inches and a height of 34 inches.” Id. Given the lack of measurements or 25 other factual support regarding the parking spot and an accessible pathway, the court sustained the 26 objections to the expert’s statements in Paragraphs A, B, and C as “impermissible legal conclusions 27 lacking factual support.” Id. at 883. Thus, the court concluded the expert’s statements were “an 28 insufficient basis on which to grant summary judgment.” Id. (citing Sharp, 900 F. Supp. 2d at 1112). 1 Mr. Park failed to provide any information regarding the measurements taken of the parking 2 area, the ramp, or the route from the parking lot to the entrance of Havana House Smoke Shop. (See 3 Doc. 30-5 at 3-4; Doc. 30-6 at 30) Mr. Park offers only his conclusion that the parking and paths of 4 travel “are compliant under federal and state accessibility standards.” (Doc. 30-5 at 3, Park Decl. ¶ 6; 5 see also Doc. 30-5 at 4) Given the lack of factual support, the statements from Mr. Park are no more 6 than improper legal conclusions. See Kalani, 81 F.Supp.3d at 884; Sharp, 900 F.Supp.2d at 1112. 7 Plaintiff’s objections to the statements found in Paragraph 6 of Mr. Park’s declaration and the CASp 8 Report are SUSTAINED. 9 D. Evidence Considered by the Court 10 The Court, as a matter of course, has not factored into its analysis any statements identified by 11 either party that are speculative or represent a legal conclusion. See Burch, 433 F. Supp.2d at 1119 12 (“statements in declarations based on speculation or improper legal conclusions, or argumentative 13 statements, are not facts and likewise will not be considered on a motion for summary judgment.”) 14 (citation omitted, emphasis in original). Thus, the Court has relied upon only evidence it has deemed 15 admissible.2 In addition, the Court will consider only those facts that are supported by admissible 16 evidence and to which there is no genuine dispute. 17 IV. Discussion and Analysis 18 Defendants seek summary adjudication of Plaintiff’s claim under Title III of the ADA, asserting 19 his claim for injunctive relief is moot. (Doc. 30-1 at 7-10) In addition, Defendants argue the Court 20 should decline to exercise jurisdiction over Plaintiff’s claim for a violation of California’s Unruh Civil 21 Rights Act, seek dismissal of Plaintiff’s state law claim. (Id. at 10-15) 22 A. First Cause of Action: Violations of the ADA 23 Title III of the ADA prohibits discrimination against persons with disabilities in places of public 24 accommodation, and provides in relevant part: “No individual shall be discriminated against on the 25 basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 26 2 For example, Defendants attached several photos as Exhibit 1 to their motion. (Doc. 30-4) However, there is no 27 information regarding when these photos were taken, and the photos have not been authenticated. Thus, the photographs are not deemed admissible. In addition, Plaintiff submitted a declaration in support of his opposition to the motion, but the 28 declaration was not signed or dated. (See Doc. 37-4 at 2) 1 advantages, or accommodations of any place of public accommodation by any person who owns, leases 2 (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). For purposes of 3 Title III, discrimination includes “a failure to remove architectural barriers . . . in existing facilities . . . 4 where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). Thus, the Ninth Circuit 5 determined: 6 To prevail on a Title III discrimination claim, the plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, 7 leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability. 8

9 Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). A plaintiff need not show intentional 10 discrimination to make out an ADA violation. Lentini v. California Ctr. for the Arts, Escondido, 370 11 F.3d 837, 846 (9th Cir. 2004). 12 1. Plaintiff’s prima facie case 13 Defendants do not argue Plaintiff fails to satisfy the elements of a Title III claim. (See Doc. 30- 14 1 at 7) It is undisputed Plaintiff is paralyzed from his chest down and uses a wheelchair for mobility. 15 Yong Kyun Won and Young Ae Won are the owners of the real property, and the Havana House 16 Smoke Shop was operated by GIJ Enterprises at the time Plaintiff visited the store. (See Doc. 30-1 at 6; 17 Doc. 38) Further, Havana House Smoke Shop was a place of public accommodation, as a retail store 18 and sales establishment. See 42 U.S.C. § 12181(7)(E). Finally, Defendants do not dispute Plaintiff 19 encountered barriers that caused him to be denied access to the store, including parking that was not 20 accessible and greater slope that permissible in the path of travel.3 (See Doc. 30-1 at 7; Doc. 37 at 5) 21 2. Injunctive relief 22 The ADA authorizes only injunctive relief for disabled individuals who suffer prohibited 23 discrimination and does not provide for the recovery of monetary damages by private individuals. See 24 42 U.S.C. § 12188(a)(2); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 (9th Cir. 2002). 25 Defendants contend Plaintiff’s request for injunctive relief is moot, because of the barriers Plaintiff 26 encountered were removed. (Doc. 30-1 at 8-9) 27

28 3 To the contrary, Defendants concede the barriers existed, but assert they have been removed. 1 Defendants observe, “The law is well established that a defendant’s remedial efforts will render 2 a plaintiff’s ADA claim for injunctive relief moot.” (Doc. 30-1 at 8, citing, e.g., Gasper v. Marie 3 Callendar Pie Shops, 2006 U.S. Dist. LEXIS 96929 at *4 (C.D. Cal. June 27, 2006)) Indeed, the 4 Supreme Court determined that a claim for injunctive is moot if “it is absolutely clear that the allegedly 5 wrongful behavior could not reasonably be expected to occur.” Friends of the Earth, Inc. v. Laidlaw 6 Environmental Services, 528 U.S. 167, 190 (2000). Thus, a claim for a violation of the ADA is 7 rendered moot where “all of plaintiff’s concerns … have been addressed and corrected.” Pickern v. 8 Best Western Timber Cove Lodge, 194 F. Supp. 2d 1128, 1130 (E.D. Cal. 2002). 9 Defendants assert that the barriers encountered by Plaintiff in the parking area and his path of 10 travel to the store have been removed and corrected. (See Doc. 30-1 at 9-10) However, Defendants fail 11 to present any admissible evidence demonstrating the barriers have been removed or corrective efforts 12 undertaken. Defendants have not provided “measurements for slopes, height, depth, and length of the 13 barriers’ alleged remediation.” (Doc. 37 at 6) Without such evidence, the Court is unable to determine 14 whether the parking area and slope on the path of travel are accessible and in compliance with the 15 standards provided by the ADA Accessibility Guidelines, which “provide valuable guidance for 16 determining whether an existing facility contains architectural barriers.” Chapman v. Starbucks Corp., 17 2011 U.S. Dist. LEXIS 3570 at *10 (E.D. Cal. Jan. 7, 2011) (citation omitted) Because Defendants fail 18 to establish the barriers no longer exist—or that Plaintiff’s request for injunctive relief is moot—the 19 request for summary adjudication of the ADA claim is DENIED. 20 B. Second Cause of Action: Violations of the Unruh Civil Rights Act 21 Plaintiff’s second claim in his Complaint is for a violation of California’s Unruh Civil Rights 22 Act, which provides “[a]ll persons within the jurisdiction of this state are free and equal, and no matter 23 what their …disability, or medical condition are entitled to the full and equal accommodations, 24 advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” 25 Cal. Civ. Code § 51(b). Notably, the Unruh Act provides that “[a] violation of the right of any 26 individual under the Americans with Disabilities … shall also constitute a violation of this section." 27 Cal. Civ. Code § 51(f). 28 Defendants request that the Court “decline to exercise supplemental jurisdiction over Plaintiff’s 1 state law claims” under the Unruh Act. (Doc. 30-1 at 10, emphasis omitted) The Court may decline 2 supplemental jurisdiction over a state law claim if: 3 (1) the claim raises a novel or complex issue of State law,

4 (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, 5 (3) the district court has dismissed all claims over which it has original jurisdiction, or 6 (4) in exceptional circumstances, there are other compelling reasons for declining 7 jurisdiction.

8 28 U.S.C. § 1367(c). 9 A court may decline to exercise supplemental jurisdiction under Section 1367(c) “under any one 10 of [the statute’s] four provisions.” San Pedro Hotel Co., Inc. v. City of L.A., 159 F.3d 470, 478-79 (9th 11 Cir. 1998). When dismissing a state-law claim pursuant to Section 1367(c)(1)-(3), the court need not 12 state its reason for dismissal. Id. However, if a court declines to exercise supplemental jurisdiction 13 under Section 1367(c)(4), however, the court must “articulate why the circumstances of the case are 14 exceptional.” Exec. Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994). The 15 Ninth Circuit cautioned that declining supplemental jurisdiction based on Section 1367(c)(4) should be 16 the exception, rather than the rule. Id. at 1558. 17 Defendants argue “at least three of the four statutory grounds exist for this Court to decline 18 supplemental jurisdiction,” including: the dismissal of Plaintiff’s ADA claim, novelty and complexity 19 of the state law claim, and the state law claim predominating over the federal claim. (Doc. 30-1 at 10; 20 see also id. at 10-15) 21 1. Dismissal of claims over which the Court has original jurisdiction 22 As an initial matter, the Court did not find Plaintiff’s ADA claim is moot or dismiss the claim. 23 Consequently, this is not a ground for the Court to decline supplemental jurisdiction. 24 2. Whether the state claim predominates 25 Defendants argue Plaintiff’s state-law claim for a violation of the Unruh Civil Rights Act 26 substantially predominates over the ADA claim because the remedies under the state claim exceed 27 those under the federal claim. (Doc. 30-1 at 14-15) According to Defendants, because “Plaintiff is only 28 entitled to injunctive relief and attorneys’ fees” under the ADA and seeks “$4,000 in statutory damages 1 for each offense” under the Unruh Act, “the Court should… decline to exercise supplemental 2 jurisdiction.” (Id. at 14-15) 3 Courts in the Ninth Circuit have rejected the argument that a claim under the Unruh Act 4 predominates over a claim under the ADA simply because of the difference in available remedies. See, 5 e.g., Moore v. Dollar Tree Stores Inc. 85 F.Supp.3d 1175, 1194 (E.D. Cal. 2015) (“the mere fact that 6 the state claims allow for the recovery of monetary damages, whereas the ADA provides for injunctive 7 relief only, does not compel the conclusion that the state claims ‘substantially predominate’ over the 8 federal claim”); Castillo-Antonio v. Hernandez, 2019 WL 2716289 at *7 (N.D. Cal. June 28, 2019) 9 (“even though the state-law claims provide for more comprehensive remedies, they do not substantially 10 predominate over the ADA claim because the proof required for both the state and federal claims is 11 nearly identical”); Schoors v. Seaport Vill. Operating Co., LLC, 2017 WL 1807954 at *4 (S.D. Cal. 12 May 5, 2017) (holding that although an Unruh Act claim offered more remedies, the Unruh Act claim 13 did not substantially predominate over the ADA claim). Also, the burdens of proof for the ADA and the 14 Unruh Act are the same. Moore, 85 F.Supp. 3d at 1194. Furthermore, “[t]he Unruh claim and the 15 federal claim arise from the same nucleus of operating facts, have the same witnesses, the same 16 evidence, and the same parties.” (Doc. 37 at 17); see also Schoors, 2017 WL 1807954 at *4 (claims 17 under the Unruh Act and ADA “involve identical alleged facts, witnesses, and evidence”). As this 18 Court previously observed, accepting Defendants’ argument that difference in remedies mandates a 19 finding that the state claim predominates “would effectively preclude a district court from ever 20 asserting supplemental jurisdiction over a state law claim under the Unruh Act [in an ADA case].” 21 Johnson v. Barlow, 2007 WL 1723617 at *3 (E.D. Cal. June 9, 2007). Thus, the Court finds Defendants 22 fail to establish the Court should decline supplemental jurisdiction on this basis. 23 3. Whether novel or complex issues are raised 24 Defendants assert, “Courts have long recognized that claims brought pursuant to the Unruh 25 Civil Rights Act raise novel and complex issues of state law, providing another basis for this Court to 26 decline supplemental jurisdiction.” (Doc. 30-1 at 12) According to Defendants, “[i]t is well-settled 27 under California law that there is a conflict with regard to the manner in which damages are calculated” 28 under the Unruh Act. (Id.) In addition, Defendants assert “the passage of Senate Bill 1186 in 2012 1 presents … novel issues of state law.” (Id. at 13) 2 a. Damages calculation 3 The Unruh Act provides in relevant part that “[a] violation of the right of any individual under 4 the federal Americans with Disabilities Act of 1990 [] shall also constitute a violation of [the Unruh 5 Act].” Cal. Civ. Code § 51(f). The Unruh Act generally provides for a minimum of $4,000 in statutory 6 damages for each offense. See Cal. Civ. Code § 52. Defendants maintain the provision of damages “for 7 each and every offense” under the Unruh Act is “not well-defined,” and “two district courts have come 8 to conflicting conclusions when dealing with this language.” (Doc. 30-1 at 12) Defendants note that the 9 Southern District permitted recovery for daily damages, while the Northern District determined daily 10 damages were not permitted. (Id., comparing Botosan v. Fitzhugh, 13 F. Supp. 2d 1047 (S.D. Cal. 11 1998) with Doran v. Embassy Suites Hotel, 2002 WL 196166 at *4-5 (N.D. Cal. Aug. 26, 2002)). 12 Plaintiff notes that his “Unruh claim is for a single statutory penalty of $4,000 against both the 13 Wons and GIJ Enterprises, Inc.” (Doc. 37 at 18) Because Plaintiff does not seek damages for repeated 14 visits to Havana House Smoke Shop, the issue identified by Defendants is irrelevant and does not 15 support a conclusion that the Court should decline supplemental jurisdiction. See Moore, 85 F.Supp. 16 3d at 1193 (the issue was “irrelevant to the case at had because Plaintiff does not seek to stack claims 17 across multiple visits”). 18 b. Senate Bill 1186 19 According to Defendants, “the passage of Senate Bill 1186 in 2012 presents additional novel 20 issues of state law,” as “this law codified new procedural requirements for disability discrimination 21 lawsuits, including pre-litigation demands for money and the veracity of complaints.” (Doc. 30-1 at 22 13) Defendants observe the bill “codified new procedural requirements for disability discrimination 23 lawsuits, including pre-litigation demands for money and the veracity of complaints.” (Id.) 24 The amendments to Cal. Code Civ. Proc. § 425.50 require a plaintiff to identify “[t]he way in 25 which the barrier denied the individual full and equal use or access, or in which it deterred the 26 individual on each particular occasion” and the specific date “on which the encountered the specific 27 access barrier.” Cal. Code Civ. Proc. § 425.50(a)) In addition, California law requires a complaint to 28 be verified by the plaintiff, and “[a] complaint filed without verification shall be subject to a motion to 1 strike.” Id. § 425.50(b)) Defendants argue “Plaintiff’s complaint is deficient under § 425.50 in the 2 following ways: (1) Plaintiff’s complaint is not verified; (2) Plaintiff failed to specify the date []he 3 allegedly encountered barriers; [and] (3) Plaintiff failed to state the manner in which the alleged 4 condition denied [him] access on a particular occasion.” (Id.) According to Defendants, the Court 5 should not permit “a plaintiff to litigate the only remaining claims in this forum, which are state law 6 claims, while avoiding the requirements imposed on the litigating of those very state claims in state 7 court.” (Doc. 30-1 at 14) 8 However, Plaintiff’s Unruh Act claim is not the only claim remaining at this juncture. Further, 9 the pleading standards set forth in the Federal Rules of Civil Procedure govern complaints filed in the 10 federal courts, even when state laws are included in the complaint. See Marsh v. San Diego County, 11 432 F.Supp.2d 1035, 1059 (S.D. Cal. 2006) (applying the Federal Rules of Civil Procedure to evaluate 12 the adequacy of the pleadings for the plaintiff’s claim under the Unruh Act); see also M.J. v. Clovis 13 Unified Sch. Dist., 2007 WL 1033444 at *12 (E.D. Cal. Mar. 28, 2007) (“the liberal notice pleading 14 standard set forth in Federal Rule of Civil Procedure 8 applies to claims brought under the Unruh Act in 15 federal court”). Thus, the pleading requirements under California law are irrelevant, and any pleading 16 deficiencies in Plaintiff’s complaint following the passage of Senate Bill 1186 does not support a 17 conclusion that the Court should decline supplemental jurisdiction. 18 4. Other compelling reasons 19 Defendants contend the “state court provides a more efficient forum for Plaintiff’s state law 20 claim.” (Doc. 30-1 at 15, emphasis omitted) However, with the federal claim remaining in the action, 21 this argument is not well-taken. 22 The Unruh Act provides that a violation under the ADA is a violation of the Unruh Act. Cal. 23 Civ. Code § 51(f). If Plaintiff establishes a claim for a violation of the ADA, he also establishes a 24 violation of the Unruh Act. See id. Consequently, “[t]he state and federal claims are so intertwined 25 that it makes little sense to decline supplemental jurisdiction.” Moore, 85 F.Supp. 3d at 1194. 26 Declining supplemental jurisdiction “would create the danger of multiple suits,” an increase in 27 litigation costs for the parties, and “wasted judicial resources.” Id. Thus, contrary to Plaintiff’s 28 assertion, it would be more efficient for Plaintiff’s Unruh Act claim to remain in the federal court. 1 V. Conclusion and Order 2 Defendants fail to present admissible evidence to establish that Plaintiff’s claim for injunctive 3 relief under the ADA is moot. In addition, the Court retains supplemental jurisdiction over Plaintiff’s 4 claim under California’s Unruh Act. 5 Based upon the foregoing, the Court ORDERS: Defendants’ motion for partial summary 6 judgment and request for the Court to decline jurisdiction (Doc. 30) is DENIED. 7 8 IT IS SO ORDERED.

9 Dated: August 31, 2020 /s/ Jennifer L. Thurston 10 UNITED STATES MAGISTRATE JUDGE

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