Garcia v. Quong Fook Tong

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ORLANDO GARCIA, 7 Case No. 21-cv-05539-JCS Plaintiff, 8 v. ORDER DENYING MOTION TO 9 DISMISS AS MOOT AND DISMISSING QUONG FOOK TONG, STATE LAW CLAIM 10 Defendant. Re: Dkt. No. 16 11

12 13 Plaintiff brings this action under the Americans with Disabilities Act (“ADA”) and 14 California’s Unruh Civil Rights Act (“Unruh Act”), alleging that real property owned by 15 Defendant does not meet the accessibility requirements of those statutes. Defendant filed a 16 Motion to Dismiss (“Motion”), which was noticed for hearing on April 15, 2022. Instead of 17 opposing the Motion, Plaintiff filed an amended complaint. Defendant asserts in his Reply brief 18 that the amendment does not cure the defects identified in the Motion and therefore, the Court 19 should grant the Motion and dismiss the amended complaint. The Local Rules do not allow the 20 Court to grant the relief requested by Defendant, however, as the Motion does not address the 21 operative pleading and Plaintiff has not had an opportunity to respond to Defendant’s argument 22 that the amended complaint should be dismissed. Therefore, the Court DENIES the Motion on the 23 basis that it is moot. To challenge the adequacy of the amended complaint, Defendant must file a 24 renewed motion to dismiss that addresses the adequacy of that pleading consistent with the Civil 25 Local Rules of this Court governing motion practice. 26 Nonetheless, the Court declines to exercise supplemental jurisdiction over Plaintiff’s state 27 law claim under the Unruh Act. The Court notes that Plaintiff’s response to the Court’s Order to 1 Maciel, No. 21-cv-03743-JCS (N.D. Cal.). In that case, the undersigned rejected the plaintiff’s 2 || response and declined to exercise supplemental jurisdiction over the state law Unruh Act claim for 3 the reasons stated in Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 2021). See Case No. 21-cv-03743- 4 JCS, N.D. Cal., Dkt. No. 37. For the reasons stated in Garcia v. Marciel, the Court reaches the 5 same conclusion here. The Unruh Act claim is therefore dismissed without prejudice to Plaintiff 6 asserting that claim in state court. 7 IT IS SO ORDERED. 8 9 || Dated: April 5, 2022 10 € J PH C. SPERO 11 ief Magistrate Judge 12

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