1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FERNANDO GASTELUM, Case No. 1:23-cv-00244-ADA-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. DECLINING SUPPLEMENTAL JURISDICTION AND DISMISSING 14 BEST BUY, INC., STATE LAW CLAIMS WITHOUT PREJUDICE 15 Defendant. 16
17 18 On February 17, 2023, Plaintiff Fernando Gastelum, proceeding pro se, initiated this 19 action against Defendant Best Buy, Inc. (Doc. 1.) The Complaint asserts claims for injunctive 20 relief under the Americans with Disabilities Act of 1990 (“ADA”), a claim for statutory damages 21 under California’s Unruh Civil Rights Act (“Unruh Act”), and a claim for damages under 22 California Disabled Persons Act pursuant to California Civil Code §§ 54-54.3. (Id.) Defendant 23 has not yet appeared in this action, and it appears that Plaintiff served Defendant’s agent. (Doc. 24 7.) 25 On February 24, 2023, the Court ordered Plaintiff to show cause why the Court should not 26 decline to exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim for the reasons 27 stated in Vo v. Choi, 49 F.4th 1167 (9th Cir. 2022) and Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 28 1 2021). (Doc. 4.) Plaintiff filed a response on March 9, 2023. (Doc. 5.) In his response, Plaintiff 2 argues for the Court’s retention of jurisdiction over his Unruh Act claims as other California 3 District Courts have exercised supplemental jurisdiction over his Unruh Act claims, the Gibbs 4 factors favor exercising supplemental jurisdiction, and the Court has diversity jurisdiction over 5 these claims. (Id.) The same day, Plaintiff also filed a First Amended Complaint, alleging 6 Diversity Jurisdiction pursuant to 28 U.S.C. § 1332 and Federal Question Jurisdiction pursuant to 7 28 U.S.C. § 1331. (Doc. 6.) For the reasons discussed below, the Court recommends finding that 8 that the Court does not have diversity jurisdiction, declining supplemental jurisdiction and 9 dismissing Plaintiff’s state law claims without prejudice. 10 I. LEGAL STANDARD FOR DIVERSITY JURISDICTION 11 For a federal court to exercise diversity jurisdiction, the citizens must be of different states 12 and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a). The amount in 13 controversy is generally determined from the face of the pleadings. See Crum v. Circus Circus 14 Enterprises, 231 F.3d 1129, 1131 (9th Cir. 2000). The Ninth Circuit noted that the party 15 asserting diversity jurisdiction must prove that the amount in controversy exceeds $75,000 and 16 cautioned that “[c]onclusory allegations as to the amount in controversy are insufficient.” 17 Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090–91 (9th Cir. 2003) (citing Gaus 18 v. Miles, Inc., 980 F.2d 564, 566–67 (9th Cir. 1992)). 19 II. DISCUSSION OF DIVERSITY JURISDICTION 20 Plaintiff alleges that the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), 21 as Plaintiff is a citizen of Arizona, Defendant is a citizen of Minnesota, and the amount in 22 controversy “to the best of Plaintiff’s estimate, exceed[s] the statutory threshold of $75,000.00.” 23 (Doc. 6 ¶ 11, Doc. 5 at 8-11.) Plaintiff’s First Amended Complaint states that he seeks: (1) 24 injunctive relief pursuant to the ADA and Unruh Act; (2) damages under the Unruh Act “which 25 provides for actual damages and a statutory minimum of $4,000 for each encounter, trebled to 26 $12,000;” (3) statutory damages pursuant to the Disabled Persons Act; (4) punitive damages to 27 punish Defendant and deter others in “an amount to be proven at trial;” and (5) in “the event 28 Plaintiff is required to hire counsel, for reasonable attorney fees, litigation expenses and costs of 1 suit, pursuant to 42 U.S.C. § 12205.” (Doc. 6 at 7-8.) The Court will address the each form of 2 requested relief in turn in determining whether Plaintiff’s complaint exceeds the statutory 3 threshold. 4 First, Plaintiff seeks injunctive relief “to compel Defendants to comply with the 5 Americans with Disabilities Act and the Unruh Civil Rights Act” and injunctive relief “requiring 6 Defendant to adopt written and enforceable ‘reasonable modifications in policies, practices, or 7 procedures, when such modifications are necessary to afford goods, services, facilities, privileges, 8 advantages, or accommodations to individuals with disabilities.” (Doc. 6 at 7.) In actions 9 seeking declaratory or injunctive relief, the amount in controversy is measured by the value of the 10 object of the litigation. Corral v. Select Portfolio Serv’g, Inc., 878 F.3d 770, 775 (9th Cir. 2017); 11 Chapman v. Deutsche Bank Nat’l Trust Co., 651 F.3d 1039, 1045 n.2 (9th Cir. 2011). Generally, 12 the amount in controversy is assessed through the “either viewpoint rule,” meaning that the 13 amount in controversy in the case is the pecuniary result to either party which the judgment 14 would directly produce. Corral, 878 F.3d at 775; In re Ford Motor. Co./Citibank (S. Dakota), 15 N.A., 264 F.3d 952, 958 (9th Cir. 2001). In recent Unruh Act cases where courts have remanded 16 and ruled on the amount in controversy requirement with respect to injunctive relief, parties have 17 submitted documentation or declarations to support their estimated injunctive relief values. See 18 Martinez v. Epic Games, Inc., No. CV1910878CJCPJWX, 2020 WL 1164951, at *3–4 (C.D. Cal. 19 Mar. 10, 2020) (examining declarations containing estimates for making websites compliant with 20 ADA and Unruh Act standards); Mejico v. Online Labels, Inc., No. 518CV02636ODWSHKX, 21 2019 WL 3060819, at *4 (C.D. Cal. July 12, 2019) (finding remediation costs and bid estimates 22 to be relevant to the amount in controversy). 23 Here, Plaintiff’s complaint does not estimate the value or discuss the nature of injunctive 24 relief beyond a broad request to compel Defendants to comply with statutory requirements. (Doc. 25 6 at 3, 7.) At the pleading stage, Plaintiff does not submit supporting estimates or declarations, 26 but in his Response to the Court’s Order to Show Cause (“OSC”), Plaintiff notes that the 27 “compliance cost with the ADA injunctive relief is within the knowledge of the Defendant, but 28 common sense and good reason lead to a conclusion that general remedy sought… and the 1 specific remedy sought… are certain to exceed $75,000.” (Doc. 5 at 9-10.) In his response to the 2 OSC, without an estimate or citation to authority, Plaintiff speculates that “[j]ust the requirement 3 that Best Buy adopt written and enforceable ‘reasonable modifications in policies, practices, or 4 procedures, when such modifications are necessary to afford goods, services, facilities, privileges, 5 advantages, or accommodations to individuals with disabilities’ would require each of Best Buy’s 6 store[s] to properly space the merchandise and modify the accessibility to service counters to 7 spend the jurisdictional amount by a factor of 10.” (Id.) However, Plaintiff’s complaint also 8 alleges that the “barriers identified above are easily removed without much difficulty or expense. 9 They are the types of barriers that are readily achievable to remove.” (Doc. 6 ¶ 21.) It is, 10 therefore, speculative whether remedying these challenged barriers will require minor, 11 inexpensive fixes or major, costly construction. (Doc. 6 ¶¶ 16-18.) Further, as explained more 12 fully below, Plaintiff seeks to extrapolate additional barriers beyond the barriers encountered 13 solely at Best Buy Store #121 at 7660 N. Blackstone Ave., Fresno, CA 93720 to achieve the 14 requisite amount in controversy. (Doc. 5 at 9, 10.) However, this action involves barriers 15 Plaintiff encountered at a single Best Buy store, and not barriers encountered across a vast 16 spectrum of Best Buy stores. Accordingly, the request for injunctive relief is too speculative for 17 the Court to appropriately include it in the amount in controversy. See Matheson, 319. F.3d at 18 1090-91; Jackson v. Am. Bar Ass'n, 538 F.2d 829, 831 (9th Cir. 1976) (finding the amount in 19 controversy requirement not met when the protected rights asserted “appear to be intangible, 20 speculative, and lack the capability of being translated into monetary value”). 21 Second, Plaintiff seeks trebled damages from Unruh Act violations and points to four 22 barriers to accessibility: (1) “Clear width of accessible routes was less than 36” between doors, 23 columns, counters and columns and displays of merchandise;” (2) “The bathroom door required 24 the push-pull force greater than 5 lbs;” (3) “The bathroom door required the twisting of the 25 wrist;” and (4) “The service counters were cluttered with merchandise and equipment and were 26 unusable.” (Doc. 6 ¶ 17.) The Unruh Act provides for “actual damages ... up to a maximum of 27 three times the amount of actual damage but in no case less than four thousand dollars” for “each 28 and every offense” of prohibited discrimination. Cal. Civ. Code § 52(a). While the phrase “each 1 offense” is undefined, courts have interpreted it according to its most natural reading as “each 2 violation.” Doran v. Embassy Suites Hotel, 2002 WL 1968166, at *5 (N.D. Cal. Aug. 26, 2002); 3 Langer v. Joy Hosp. Inc., No. 2:19-CV-08950-SK, 2021 WL 5873079, at *2 (C.D. Cal. Oct. 29, 4 2021). Construed in this manner, § 52(a) “provides for statutory damages based on each specific 5 instance of non-compliance” under the Unruh Act. Id. However, district courts have been 6 disinclined to award treble damages on motions for default judgment where the record is 7 undeveloped. See Spikes v. Shockley, No. 19-CV-523 DMS (JLB), 2019 WL 5578234, at *6 8 (S.D. Cal. Oct. 28, 2019) (“while Defendant bears the burden of this default judgment due to his 9 failure to respond, there is no indication Plaintiff’s injury would not be adequately redressed with 10 statutory minimum damages, attorney’s fees, and injunctive relief. Therefore, the Court declines 11 to award treble damages for Plaintiff and finds the award of statutory damages is sufficient.”); 12 Spikes v. Mann, No. 19-CV-633 JLS (RBB), 2020 WL 5408942, at *6 (S.D. Cal. Sept. 9, 2020) 13 (“there is no indication the Plaintiff’s injury cannot be redressed with the statutory minimum 14 damages, injunctive relief, and attorney’s fees. Therefore, the Court declines to award statutory 15 treble damages…”). At this stage of the pleadings, where the record is underdeveloped, it is 16 difficult to infer that Plaintiff is entitled to treble damages. From the face of the complaint and 17 Plaintiff’s allegations, it appears that Plaintiff would be entitled to statutory damages of $4,000 18 for each of the four barriers to accessibility he encountered, adding up to approximately $16,000 19 for Unruh Act violations. (Doc. 6 at 8.) Even assuming arguendo that Plaintiff’s statutory 20 damages were trebled, this would amount to $64,000, which by itself is under the $75,000 amount 21 in controversy threshold. (Id.) 22 Third, Plaintiff seeks statutory damages pursuant to the California Disabled Persons Act. 23 (Doc. 6 at 8.) However, “[i]f a plaintiff prevails on a damages claim under both [Unruh Act and 24 California Disabled Persons Act] statutes, double recovery is not permitted.” Rodriguez v. 25 Barrita, Inc., 10 F. Supp. 3d 1062, 1074 (N.D. Cal. 2014) (citing Munson v. Del Taco, Inc., 46 26 Cal. 4th 661, 675, 208 P.3d 623, 632 (2009). Accordingly, Plaintiff could not derive statutory 27 damages from both Unruh Act and California Disabled Persons Act violations and cannot include 28 both statutory damages in the amount in controversy. 1 Fourth, Plaintiff seeks punitive damages pursuant to California Civil Code § 3294 “for the 2 sake of example and by way of punishing Defendant in an amount sufficient to deter, make 3 example of, and punish Defendant in an amount to be proven at trial but no less than sufficient to 4 punish, deter, and make example of Defendant for its egregious misconduct” and “in order to 5 deter other similarly situated public accommodations from continuing their unrelented assault on 6 the disabled in an amount to be proven at trial but no less than sufficient to punish, deter, and 7 make example of Defendant for its egregious misconduct.” (Doc. 6 at 8., Doc. 5 at 11.) 8 California Civil Code Section 3294 states: “In an action for the breach of an obligation not 9 arising from contract, where it is proven by clear and convincing evidence that the defendant has 10 been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may 11 recover damages for the sake of example and by way of punishing the defendant.” Cal. Civ. 12 Code § 3294. However, district courts have called into question whether punitive damages are 13 recoverable in addition to treble damages under the Unruh Act. See Doran v. Embassy Suites 14 Hotel, No. C-02-1961 EDL, 2002 WL 1968166, at *1-3 (N.D. Cal. Aug. 26, 2002); Peters v. CJK 15 Assocs., LLC, No. CIV.S 03 1388 LKK/KJ, 2003 WL 24205920, at *3-4 (E.D. Cal. Oct. 29, 16 2003); Aguilar v. Marinello Sch. of Beauty, No. CV0900854DMGAJWX, 2010 WL 11582978, at 17 *10 (C.D. Cal. Mar. 29, 2010) (“Where, as here, the social objectives pursued by two categories 18 of damages sought in one cause of action are the same, an award for both would create an 19 impermissible double recovery… Accordingly, the Court agrees with the other district courts that 20 have considered this issue and finds Plaintiff ineligible for punitive damages under section 21 3294.”). In Doran v. Embassy Suites Hotel, the district court noted that “the Legislature took the 22 importance of disability rights into account when it crafted the stringent remedies of minimum 23 statutory damages, even in the absence of actual damages, and treble actual damages and 24 attorney’s fees, which can be a sizeable amount.” Doran, 2002 WL 1968166, at *3. “At the same 25 time that the Legislature specifically provided for these several types of damages in Civil Code 26 sections 52(a) and 54.3(a), it chose not to provide for unlimited punitive damages.” Id. The court 27 also compared the remedies in other similar statutes, and concluded that the “Unruh Act, like the 28 MRL and other statutes such as the Song–Beverly Act and the Unfair Business Practices Act, 1 expressly provide for judicial remedies that are punitive in nature, rendering the catchall 2 punitive damages remedy of Civil Code section 3294 unavailable.” Id. It is therefore unclear 3 whether Plaintiff may recover any punitive damages in this case. 4 Moreover, Plaintiff’s allegations regarding his entitlement to punitive damages appear to 5 rest upon four sentences in his complaint: 6 40. Defendant intentionally violates the civil rights of the disabled 7 community, including Plaintiff, subjecting it to punitive damages 8 pursuant to Cal. Civ. Code Article 3, § 3294. 41. Plaintiff alleges that voluntary and intentional segregation and discrimination of the 9 type alleged here, and indeed any segregation and discrimination against any member of a disability class, is malicious and oppressive 10 as a matter of law. 42. Plaintiff seeks punitive damages for the sake of example and by way of punishing Defendant in an amount 11 sufficient to deter, make example of, and punish Defendant. 43. 12 Punitive damages are necessary to deter other similarly situated public accommodations from continuing their unrelenting assault on 13 the disabled. 14 (Doc. 6 ¶¶ 40-43.) While a complaint does not need detailed factual allegations, “a plaintiff’s 15 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 16 conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Bell Atl. 17 Corp. v. Twombly, 550 U.S. 544, 545 (2007). These allegations correspond to the grounds for 18 Section 3294 relief, but they are a mere formulaic recitation of Section 3294 requirements. For 19 the above reasons, Plaintiff’s request for punitive damages is too speculative and conclusory for 20 the Court to appropriately include it in the amount in controversy. See Matheson, 319. F.3d at 21 1090-91; Jackson v. Am. Bar Ass'n, 538 F.2d 829, 831 (9th Cir. 1976). 22 Fifth, Plaintiff’s complaint requests “reasonable attorney fees, litigation expenses and 23 costs of suit, pursuant to 42 U.S.C. § 12205” in “the event Plaintiff is required to hire counsel.” 24 (Doc. 6 at 8.) “[As] a general rule, attorneys’ fees are excludable in determining the amount in 25 controversy because, normally, the successful party does not collect his attorneys’ fees in addition 26 to or as part of the judgment.” Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155 (9th Cir. 1998) 27 (quoting Velez v. Crown Life Ins. Co., 599 F.2d 471, 474 (1st Cir. 1979)). But, “attorneys’ fees 28 can be taken into account in determining the amount in controversy if a statute [or contract] 1 authorizes fees to a successful litigant.” Id. (quoting Goldberg v. CPC Int’l Inc., 678 F.2d 1365, 2 1367 (9th Cir. 1992), cert. denied, 459 U.S. 945 (1982)). The Unruh Act permits recovery of 3 attorney’s fees. Cal. Civ Code § 52(a); Molski, 481 F.3d at 731. However, Plaintiff is 4 representing himself pro se and has not indicated an intent to hire counsel. Accordingly, the 5 request for attorney’s fees, expenses, and costs is too speculative and conclusory for the Court to 6 appropriately include it in the amount in controversy. See Matheson, 319. F.3d at 1090-91; 7 Jackson v. Am. Bar Ass'n, 538 F.2d 829, 831 (9th Cir. 1976). 8 Finally, Plaintiff argues that “remedies are requested against Best Buys, Inc. not just 9 against the individual store,” appearing to argue that Defendant is liable for every Best Buy store 10 rather than the store in which Plaintiff encountered barriers to accessibility. (Doc. 5 at 9, 10.) 11 Plaintiff contends that the “particular store itself is not the ‘public accommodation’ against whom 12 remedies are sought, it is but a single place of public accommodation,” and this “distinction is 13 relevant to the amount of controversy insofar as the remediation required by the ADA and Unruh 14 is not limited to ‘places of public accommodation’ but to the ‘public accommodations’ 15 themselves.” (Id at 9.) 16 The ADA requires: “No individual shall be discriminated against on the basis of disability 17 in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 18 accommodations of any place of public accommodation by any person who owns, leases (or 19 leases to), or operates a place of public accommodation.” 42 U.S.C.A. § 12182(a). The 20 definition for a “public accommodation” includes “a bakery, grocery store, clothing store, 21 hardware store, shopping center, or other sales or rental establishment.” 42 U.S.C.A. § 22 12181(7)(E). This singular definition and the remainder of the statute suggest liability against the 23 single store or owner in which an individual encountered discrimination. Additionally, Plaintiff’s 24 complaint notes, “Store [Best Buy Store #121 at 7660 N. Blackstone Ave., Fresno, CA 93720] is 25 a place of public accommodation.” (Doc. 6 ¶ 9.) The factual allegations in Plaintiff’s complaint 26 all pertain to Plaintiff’s travel to and barriers encountered at this single store. (Id. ¶¶ 15-25.) 27 From the face of his complaint, Plaintiff alleges ADA and Unruh Act liability against this 28 individual store only, and his belief that he may impose liability on every Best Buy store through 1 this complaint is misplaced. For the amount in controversy, Plaintiff’s allegations are accordingly 2 limited to the barriers to accessibility he encountered at Best Buy Store #121 at 7660 N. 3 Blackstone Ave., Fresno, CA 93720, and he may not multiply the statutory damages by the 4 number of Best Buy stores in California. 5 Examining the amount in controversy from the face of Plaintiff’s complaint, Plaintiff has 6 only demonstrated an amount of approximately $16,000 to $64,000 resulting from Unruh Act 7 statutory damages. For these reasons, the $75,000 amount in controversy is not met and the Court 8 should find that it does not have diversity jurisdiction over Plaintiff’s Unruh Act claim, California 9 Disabled Persons Act claim, and any other state law construction-related accessibility claim. See 10 28 U.S.C. § 1332(a). 11 III. LEGAL STANDARD FOR SUPPLEMENTAL JURISDICTION 12 In an action over which a district court possesses original jurisdiction, that court “shall 13 have supplemental jurisdiction over all other claims that are so related to claims in the action 14 within such original jurisdiction that they form part of the same case or controversy under Article 15 III of the United States Constitution.” 28 U.S.C. § 1367(a). Even if supplemental jurisdiction 16 exists, district courts have discretion to decline to exercise supplemental jurisdiction: 17 The district courts may decline to exercise supplemental jurisdiction over a 18 claim under subsection (a) if— 19 (1) the claim raises a novel or complex issue of State law, 20 (2) the claim substantially predominates over the claim or claims over which 21 the district court has original jurisdiction,
22 (3) the district court has dismissed all claims over which it has original jurisdiction, or 23
24 (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 25 26 28 U.S.C. § 1367(c). The Supreme Court has described 28 U.S.C. § 1367(c) as a “codification” 27 of the principles of “economy, convenience, fairness, and comity” that underlie the Supreme 28 Court’s earlier jurisprudence concerning pendent jurisdiction. City of Chicago v. Int’l Coll. of 1 Surgeons, 522 U.S. 156, 172-73 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 2 357 (1988)); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Gibbs”). In 3 Gibbs, the Supreme Court noted that it “has consistently been recognized that pendent jurisdiction 4 is a doctrine of discretion, not of plaintiff’s right.” Gibbs, 383 U.S. at 726. The justification for 5 pendent jurisdiction “lies in considerations of judicial economy, convenience and fairness to 6 litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state 7 claims, even though bound to apply state law to them.” Id. The Court emphasized that 8 “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote 9 justice between the parties, by procuring for them a surer-footed reading of applicable law.” Id. 10 District courts may decline to exercise jurisdiction over supplemental state law claims 11 “[d]epending on a host of factors” including “the circumstances of the particular case, the nature 12 of the state law claims, the character of the governing state law, and the relationship between the 13 state and federal claims.” City of Chicago, 522 U.S. at 173. The supplemental jurisdiction statute 14 “reflects the understanding that, when deciding whether to exercise supplemental jurisdiction, ‘a 15 federal court should consider and weigh in each case, and at every stage of the litigation, the 16 values of judicial economy, convenience, fairness, and comity.’” Id. (quoting Cohill, 484 U.S. at 17 350). 18 The Ninth Circuit does not require an “explanation for a district court’s reasons [for 19 declining supplemental jurisdiction] when the district court acts under” 28 U.S.C. §§ 1367(c)(1)- 20 (3), San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998), but does 21 require a district court to “articulate why the circumstances of the case are exceptional in addition 22 to inquiring whether the balance of the Gibbs values provide compelling reasons for declining 23 jurisdiction in such circumstances.” Executive Software N. Am. Inc. v. U.S. Dist. Court for the 24 Cent. Dist. of Cal., 24 F.3d 1545, 1558 (9th Cir. 1994); Vo, 49 F.4th at 1169-1170 (“a district 25 court must: (1) sufficiently explain ‘why the circumstances of the case are exceptional’ under § 26 1367(c)(4); and (2) show that ‘the balance of the Gibbs values provides compelling reasons for 27 declining jurisdiction in such circumstances.’”). According to the Ninth Circuit, this “inquiry is 28 not particularly burdensome.” Executive Software N. Am. Inc, 24 F.3d at 1558; Vo, 49 F.4th at 1 1171. When declining to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(4), “the 2 court must identify the predicate that triggers the applicability of the category (the exceptional 3 circumstances), and then determine whether, in its judgment, the underlying Gibbs values are best 4 served by declining jurisdiction in the particular case (the compelling reasons).” Executive 5 Software N. Am. Inc, 24 F.3d at 1558. 6 IV. DISCUSSION OF SUPPLEMENTAL JURISDICTION 7 This Court concludes, as have numerous courts before it, the circumstances here are 8 exceptional. See e.g., Garcia v. Maciel, No. 21-CV-03743-JCS, 2022 WL 395316, at *2 (N.D. 9 Cal. Feb. 9, 2022) (collecting cases). The Ninth Circuit has held that a district court properly 10 declined supplemental jurisdiction in a joint Unruh Act and ADA case based upon the heightened 11 pleading requirements California imposes upon high-frequency litigants. Vo, 49 F.4th. The 12 “high-frequency litigants” subject to those heightened pleading requirements are defined as:
13 A plaintiff who has filed 10 or more complaints alleging a construction- related accessibility violation within the 12-month period immediately 14 preceding the filing of the current complaint alleging a construction-related 15 accessibility violation.
16 Cal. Civ. Proc. Code § 425.55(b)(1). “High-frequency litigants” are subject to a special filing fee 17 and further heightened pleading requirements. See Cal. Gov. Code § 70616.5; Cal. Civ. Proc. 18 Code § 425.50(a)(4)(A). 19 Although Plaintiff’s response to the Court’s OSC did not include the number of 20 complaints alleging a construction-related accessibility violation within the 12-month period 21 immediately preceding the filing of the complaint in this action, a Pacer review shows that 22 Plaintiff filed at least 19 cases in California District Courts. Plaintiff would thus be classified as a 23 “high-frequency litigant” had he filed this case in California state court. Indeed, as noted in the 24 OSC, “at least one Eastern District court has indicated that Plaintiff appears to be a high- 25 frequency litigant.” (Doc. 4 at 3 (citing Gastelum v. Cotton On USA, Inc., 1:22-cv-01194-JLT- 26 SAB, Doc. 11 at p. 4).) 27 Even if Plaintiff were not a high-frequency litigant, the Ninth Circuit has held that district 28 1 courts need not adjudicate this threshold matter. Forcing the district court to determine if Plaintiff 2 is a high-frequency litigant would itself run afoul of the Gibbs values—especially comity. 3 Accord Brooke v. Sarodia Suncity LLC, No. ED CV-22-1374 JGB SPX, 2022 WL 17363913, at 4 *4 (C.D. Cal. Nov. 3, 2022), citing Vo, 49 F.4th at 1173. As Gibbs explains, “[n]eedless decisions 5 of state law should be avoided both as a matter of comity and to promote justice between the 6 parties, by procuring for them a surer-footed reading of applicable law” by the state courts. Vo, 7 49 F.4th at 1173–74, citing Gibbs, 383 U.S. at 726. If the federal district court is required to 8 adjudicate these threshold matters, it will “deprive the state courts of their critical role in 9 effectuating the policies underlying those reforms.” Id., citing Arroyo, 19 F.4th at 1213. 10 If this Court were to exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim, 11 the “distinctive configuration of California-law rules—which pair a damages remedy with special 12 procedural requirements aimed at limiting suits by high-frequency litigants—would be rendered 13 ineffectual.” See Arroyo, 19 F.4th at 1211–12. Indeed, courts have recognized that California’s 14 heightened pleading and filing requirements are not limited to accessibility related Unruh Act 15 claims and apply to all construction-related accessibility claims. See Gastelum v. TJX Companies, 16 No. 21CV1435-GPC(BLM), 2022 WL 2906492, at *8 (S.D. Cal. July 22, 2022) (“To the extent 17 Plaintiff, without explanation, seeks to amend the FAC to allege a violation of the Disabled 18 Persons Act (“DPA”), Cal. Civ. Code § 54 et seq., the heightened pleading requirement also 19 applies to the DPA.”); Gastelum v. TJX Companies, Inc., No. 21-CV-06714-VKD, 2023 WL 20 411345, at *10 n. 5 (N.D. Cal. Jan. 25, 2023) (“In any event, California’s heightened pleading 21 requirement also applies to the Disabled Persons Act.”); Gilbert v. Singh, No. 1:21-CV-01338 22 AWI HBK, 2023 WL 2239335, at *2 (E.D. Cal. Feb. 27, 2023) (noting that a plaintiff’s claims 23 under “Cal. Health & Safety Code §§ 19955 and 19959 are ‘construction-related accessibility 24 claims’ that are subject to the same pleading and filing requirements as Plaintiff's Unruh Act 25 claim”) (citing Arroyo, 19 F.4th at 1206); see Cal. Civ. Code § 55.52(a)(1) (“‘Construction- 26 related accessibility claim’ means any civil claim in a civil action with respect to a place of public 27 accommodation, including, but not limited to, a claim brought under Section 51, 54, 54.1, or 55 28 ...”). 1 “By enacting restrictions on the filing of construction-related accessibility claims, 2 California has expressed a desire to limit the financial burdens California’s businesses may face 3 for claims for statutory damages under the Unruh Act. Plaintiffs who file these actions in federal 4 court evade these limits and pursue state law damages in a manner inconsistent with the state 5 law’s requirements.” Arroyo, 19 F.4th at 1206-07, 1212; (Doc. 4, OSC at 2.) It is not, under the 6 Gibbs factors, “fair” to defendants that a plaintiff may pursue construction-related accessibility 7 claims in this Court while evading the limitations California state law has imposed on such 8 claims. In addition, to allow federal courts to become an “escape hatch” for plaintiffs is also an 9 affront to the comity between federal and state courts. Vo, 49 F.4th 1169 (affirming the district 10 court holding that allowing federal courts to be an ‘escape hatch’ for plaintiffs seeking to avoid 11 the heightened requirements would be an “affront to the comity between federal and state 12 courts.”) 13 Moreover, permitting high-frequency litigants to evade California’s limitations on 14 construction-related accessibility claims places tremendous strain on the federal courts. As noted, 15 Plaintiff has filed at least 19 cases in California district courts within the year preceding the filing 16 of this lawsuit. This high-frequency filing suggests that it is precisely because the federal courts 17 have not adopted California’s limitations on such claims that federal courts have become the 18 preferred forum for such claims. See generally Garibay v. Rodriguez, 2019 WL 5204294, at *4 19 (C.D. Cal. 2019) (“Indeed, those reasons, if true at all, do not explain why nearly 9 times more 20 construction-related accessibility actions are being filed in the Central District in 2019 than were 21 filed in 2013.”) Permitting federal courts “to become an escape hatch” that allows plaintiffs like 22 Gastelum to pursue such claims offends the comity between state and federal courts. Declining to 23 exercise supplemental jurisdiction over the state law claims early in the litigation preserves 24 federal judicial resources for the consideration of federal claims, while still allowing plaintiffs to 25 pursue their state law claims in state court. See e.g., Brooke, 2022 WL 17363913, at *5 26 (“Continuing to exercise supplemental jurisdiction in these extraordinary circumstances would 27 unnecessarily force this Court to expend resources to resolve state law claims for relatively 28 modest statutory damages and attorneys’ fees even after the federal claim is moot.”) 1 Plaintiff Gastelum argues that fairness, economy, and convenience disfavor declining 2 supplemental jurisdiction because litigating his claims in separate forums would duplicate work 3 and increase costs. (Doc. 5.) However, the Court finds that fairness favors declining jurisdiction 4 because Plaintiff can pursue identical remedies in state court. Exercising the Court’s discretion to 5 decline supplemental jurisdiction does not deprive Plaintiff of any remedies. Indeed, an ADA 6 claim for injunctive relief remains pending in this Court. 7 Accordingly, the Court concludes that California’s enactment of laws restricting 8 construction-related accessibility claims, combined with the burden the ever-increasing number of 9 such cases poses to the federal courts, presents “exceptional circumstances” and “compelling 10 reasons” that justify the Court’s discretion to decline to exercise supplemental jurisdiction over 11 Plaintiff’s Unruh Act claim under 28 U.S.C. § 1367(c)(4). See Schutza v. Cuddeback, 262 F. 12 Supp. 3d 1025, 1031 (S.D. Cal. 2017) (relying on Hanna v. Plummer, 380 U.S. 460, 467-68 13 (1965), for the proposition that federal courts are permitted to decline supplemental jurisdiction to 14 discourage improper forum-shopping, such as ADA plaintiffs’ “use [of] federal court as an end- 15 around to California’s pleading requirements”). Moreover, the Court sees no prejudice in 16 requiring Plaintiff Gastelum’s state-law claims be heard in state court. See Garibay, 2019 WL 17 5204294, at *6 (“[D]eclin[ing] supplemental jurisdiction does not deprive plaintiff of any 18 remedies. Nor does it allow an ADA claim for injunctive relief to go unaddressed.”). 19 For all of the foregoing reasons, it is hereby recommended that the Court, in its discretion, 20 decline to exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim, California 21 Disabled Persons Act claim, and any other state law construction-related accessibility claim and 22 that any such claims be dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c)(4). 23 V. CONCLUSION AND RECOMMENDATION 24 Based on the foregoing, the Court HEREBY RECOMMENDS as follows: 25 1. The Court find that it does not have diversity jurisdiction over Plaintiff’s Unruh 26 Act claim, California Disabled Persons Act claim, and any other state law 27 construction-related accessibility claim; 28 2. The Court decline to exercise supplemental jurisdiction over Plaintiff’s Unruh Act 1 claim, California Disabled Persons Act claim, and any other state law 2 construction-related accessibility claim; and 3 3. Plaintiff's Unruh Act claim, California Disabled Persons Act claim, and any other 4 state law construction-related accessibility claim be dismissed without prejudice, 5 pursuant to 28 U.S.C. § 1367(c)(4). 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 8 being served with these findings and recommendations, the parties may file written objections 9 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendations.” The parties are advised that the failure to file objections within the 11 specified time may result in the waiver of the “right to challenge the magistrate’s factual 12 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 13 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15
16 Dated: March 21, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17
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