8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 FERNANDO GASTELUM, Case No. 1:22-cv-01194-JLT-SAB
12 Plaintiff, ORDER REQUIRING PLAINTIFF TO SHOW CAUSE RE SUPPLEMENTAL 13 v. JURISDICTION
14 COTTON ON USA, INC., DEADLINE: TWENTY-ONE DAYS
15 Defendant.
16 17 On September 21, 2022, Plaintiff Fernando Gastelum, proceeding pro se, filed a 18 Complaint against Defendant Cotton On USA, Inc. (ECF No. 1.) The Complaint asserts claims 19 under: (1) the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; (2) the 20 California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51–53; and (3) the 21 California Disabled Persons Act, Cal. Civ. Code §§ 54–54.3. (Id.) Plaintiff is seeking both 22 injunctive relief and monetary damages. On December 19, 2022, Defendant filed an answer. 23 (ECF No. 6.) 24 Based upon the recent Ninth Circuit opinion in Vo v. Choi, the Court shall require 25 Plaintiff to show cause why the Court should not decline to exercise supplemental jurisdiction 26 over Plaintiff’s Unruh Act claim. See 28 U.S.C. § 1367(c); Vo v. Choi, 49 F.4th 1167 (9th Cir. 27 2022) (holding the district court properly declined to exercise supplemental jurisdiction in a joint Unruh Act and ADA case). 1 In an action over which a district court possesses original jurisdiction, that court “shall 2 have supplemental jurisdiction over all other claims that are so related to claims in the action 3 within such original jurisdiction that they form part of the same case or controversy under Article 4 III of the United States Constitution.” 28 U.S.C. § 1367(a). Even if supplemental jurisdiction 5 exists, however, district courts have discretion to decline to exercise supplemental jurisdiction. 6 28 U.S.C. § 1367(c). Such discretion may be exercised “[d]epending on a host of factors” 7 including “the circumstances of the particular case, the nature of the state law claims, the 8 character of the governing state law, and the relationship between the state and federal claims.” 9 See, e.g., City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997). 10 Unlike the ADA, the Unruh Act permits the recovery of monetary damages, in the form of 11 actual and treble damages, at a statutory minimum of at least $4,000.00 per violation. Cal. Civ. 12 Code § 52(a); Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007). After passage of the 13 ADA in 1990, the Unruh Civil Rights Act and California Disabled Persons Act were amended to 14 provide that a violation of the ADA constitutes a violation of the Unruh Civil Rights Act. Pickern 15 v. Best W. Timber Cove Lodge Marina Resort, 194 F. Supp. 2d 1128, 1131 (E.D. Cal. 2002); Cal. 16 Civ. Code § 54.1(d) (“A violation of the right of an individual under the Americans with 17 Disabilities Act of 1990 . . . also constitutes a violation of this section.”); Rodriguez v. Barrita, 18 Inc., 10 F. Supp. 3d 1062, 1074 (N.D. Cal. 2014) (stating same as to California Disabled Persons 19 Act). 20 More recently, California, in response to the resulting substantial volume of claims 21 asserted under the Unruh Act and the concern that high-frequency litigants may be using the 22 statute to obtain monetary relief for themselves without accompanying adjustments to locations 23 to assure accessibility to others, enacted filing restrictions designed to address that concern. See 24 Arroyo v. Rosas, 19 F.4th 1202, 1211–12 (9th Cir. 2021). These heightened pleading 25 requirements apply to actions alleging a “[c]onstruction-related accessibility claim,” which 26 California law defines as “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, 1 standard.” Cal. Civ. Code § 55.52(a)(1). 2 Moreover, California imposes additional limitations on “high-frequency litigants,” 3 defined as: “A plaintiff who has filed 10 or more complaints alleging a construction-related 4 accessibility violation within the 12-month period immediately preceding the filing of the current 5 complaint alleging a construction-related accessibility violation.” Cal. Civ. Proc. Code § 6 425.55(b)(1). The definition of “high-frequency litigant” also extends to attorneys. See Cal. 7 Civ. Proc. Code § 425.55(b)(2). “High-frequency litigants” are subject to a special filing fee and 8 further heightened pleading requirements. See Cal. Gov. Code § 70616.5; Cal. Civ. Proc. Code § 9 425.50(a)(4)(A). By enacting restrictions on the filing of construction-related accessibility 10 claims, California has expressed a desire to limit the financial burdens California’s businesses 11 may face for claims for statutory damages under the Unruh Act. See Arroyo v. Rosas, 19 F.4th 12 at 1206-07, 1212. 13 The Ninth Circuit has also expressed “concerns about comity and fairness” by permitting 14 plaintiffs to circumvent “California’s procedural requirements.” Vo v. Choi, 49 F.4th at 1171. 15 Plaintiffs who file these actions in federal court evade these limits and pursue state law damages 16 in a manner inconsistent with the state law’s requirements, as the Ninth Circuit has observed: 17 As the district court recognized, the recent confluence of several California-law rules have combined to create a highly unusual 18 systemic impact on ADA-based Unruh Act cases that clearly threatens to have a significant adverse impact on federal-state 19 comity. Congress crafted the ADA so that the only remedy available in private suits is prospective injunctive relief, and 20 damages are only available in suits that the Government elects to bring. See supra at 1205–06 & 1206 n.1. As it is entitled to do, 21 California chose a different route—it created, in the Unruh Act, a state law cause of action that relies dispositively on the ADA's 22 substantive rules but that expands the remedies available in a private action. Not only are “actual damages” available, but also an 23 additional award of up to treble damages, and the total monetary award may not be less than $4,000 per occasion. See CAL. CIV. 24 CODE § 52(a); id. § 55.56(a), (f). In response to the resulting substantial volume of claims asserted under the Unruh Act, and the 25 concern that high-frequency litigants may be using the statute to obtain monetary relief for themselves without accompanying 26 adjustments to locations to assure accessibility to others, California chose not to reform the underlying cause of action but instead to 27 impose filing restrictions designed to address that concern. Because these procedural restrictions apparently have not been 1 these various laws, taken together, was to make it very unattractive to file such Unruh Act suits in state court but very attractive to file 2 them in federal court.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 FERNANDO GASTELUM, Case No. 1:22-cv-01194-JLT-SAB
12 Plaintiff, ORDER REQUIRING PLAINTIFF TO SHOW CAUSE RE SUPPLEMENTAL 13 v. JURISDICTION
14 COTTON ON USA, INC., DEADLINE: TWENTY-ONE DAYS
15 Defendant.
16 17 On September 21, 2022, Plaintiff Fernando Gastelum, proceeding pro se, filed a 18 Complaint against Defendant Cotton On USA, Inc. (ECF No. 1.) The Complaint asserts claims 19 under: (1) the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; (2) the 20 California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51–53; and (3) the 21 California Disabled Persons Act, Cal. Civ. Code §§ 54–54.3. (Id.) Plaintiff is seeking both 22 injunctive relief and monetary damages. On December 19, 2022, Defendant filed an answer. 23 (ECF No. 6.) 24 Based upon the recent Ninth Circuit opinion in Vo v. Choi, the Court shall require 25 Plaintiff to show cause why the Court should not decline to exercise supplemental jurisdiction 26 over Plaintiff’s Unruh Act claim. See 28 U.S.C. § 1367(c); Vo v. Choi, 49 F.4th 1167 (9th Cir. 27 2022) (holding the district court properly declined to exercise supplemental jurisdiction in a joint Unruh Act and ADA case). 1 In an action over which a district court possesses original jurisdiction, that court “shall 2 have supplemental jurisdiction over all other claims that are so related to claims in the action 3 within such original jurisdiction that they form part of the same case or controversy under Article 4 III of the United States Constitution.” 28 U.S.C. § 1367(a). Even if supplemental jurisdiction 5 exists, however, district courts have discretion to decline to exercise supplemental jurisdiction. 6 28 U.S.C. § 1367(c). Such discretion may be exercised “[d]epending on a host of factors” 7 including “the circumstances of the particular case, the nature of the state law claims, the 8 character of the governing state law, and the relationship between the state and federal claims.” 9 See, e.g., City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997). 10 Unlike the ADA, the Unruh Act permits the recovery of monetary damages, in the form of 11 actual and treble damages, at a statutory minimum of at least $4,000.00 per violation. Cal. Civ. 12 Code § 52(a); Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007). After passage of the 13 ADA in 1990, the Unruh Civil Rights Act and California Disabled Persons Act were amended to 14 provide that a violation of the ADA constitutes a violation of the Unruh Civil Rights Act. Pickern 15 v. Best W. Timber Cove Lodge Marina Resort, 194 F. Supp. 2d 1128, 1131 (E.D. Cal. 2002); Cal. 16 Civ. Code § 54.1(d) (“A violation of the right of an individual under the Americans with 17 Disabilities Act of 1990 . . . also constitutes a violation of this section.”); Rodriguez v. Barrita, 18 Inc., 10 F. Supp. 3d 1062, 1074 (N.D. Cal. 2014) (stating same as to California Disabled Persons 19 Act). 20 More recently, California, in response to the resulting substantial volume of claims 21 asserted under the Unruh Act and the concern that high-frequency litigants may be using the 22 statute to obtain monetary relief for themselves without accompanying adjustments to locations 23 to assure accessibility to others, enacted filing restrictions designed to address that concern. See 24 Arroyo v. Rosas, 19 F.4th 1202, 1211–12 (9th Cir. 2021). These heightened pleading 25 requirements apply to actions alleging a “[c]onstruction-related accessibility claim,” which 26 California law defines as “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, 1 standard.” Cal. Civ. Code § 55.52(a)(1). 2 Moreover, California imposes additional limitations on “high-frequency litigants,” 3 defined as: “A plaintiff who has filed 10 or more complaints alleging a construction-related 4 accessibility violation within the 12-month period immediately preceding the filing of the current 5 complaint alleging a construction-related accessibility violation.” Cal. Civ. Proc. Code § 6 425.55(b)(1). The definition of “high-frequency litigant” also extends to attorneys. See Cal. 7 Civ. Proc. Code § 425.55(b)(2). “High-frequency litigants” are subject to a special filing fee and 8 further heightened pleading requirements. See Cal. Gov. Code § 70616.5; Cal. Civ. Proc. Code § 9 425.50(a)(4)(A). By enacting restrictions on the filing of construction-related accessibility 10 claims, California has expressed a desire to limit the financial burdens California’s businesses 11 may face for claims for statutory damages under the Unruh Act. See Arroyo v. Rosas, 19 F.4th 12 at 1206-07, 1212. 13 The Ninth Circuit has also expressed “concerns about comity and fairness” by permitting 14 plaintiffs to circumvent “California’s procedural requirements.” Vo v. Choi, 49 F.4th at 1171. 15 Plaintiffs who file these actions in federal court evade these limits and pursue state law damages 16 in a manner inconsistent with the state law’s requirements, as the Ninth Circuit has observed: 17 As the district court recognized, the recent confluence of several California-law rules have combined to create a highly unusual 18 systemic impact on ADA-based Unruh Act cases that clearly threatens to have a significant adverse impact on federal-state 19 comity. Congress crafted the ADA so that the only remedy available in private suits is prospective injunctive relief, and 20 damages are only available in suits that the Government elects to bring. See supra at 1205–06 & 1206 n.1. As it is entitled to do, 21 California chose a different route—it created, in the Unruh Act, a state law cause of action that relies dispositively on the ADA's 22 substantive rules but that expands the remedies available in a private action. Not only are “actual damages” available, but also an 23 additional award of up to treble damages, and the total monetary award may not be less than $4,000 per occasion. See CAL. CIV. 24 CODE § 52(a); id. § 55.56(a), (f). In response to the resulting substantial volume of claims asserted under the Unruh Act, and the 25 concern that high-frequency litigants may be using the statute to obtain monetary relief for themselves without accompanying 26 adjustments to locations to assure accessibility to others, California chose not to reform the underlying cause of action but instead to 27 impose filing restrictions designed to address that concern. Because these procedural restrictions apparently have not been 1 these various laws, taken together, was to make it very unattractive to file such Unruh Act suits in state court but very attractive to file 2 them in federal court. Given that the Unruh Act borrows the ADA’s substantive standards as the predicate for its cause of 3 action, a federal forum is readily available simply by pairing the Unruh Act claim with a companion ADA claim for injunctive 4 relief. See 28 U.S.C. § 1331. As the statistics cited by the district court demonstrate,5 the apparent result has been a wholesale 5 shifting of Unruh Act/ADA cases into the U.S. District Court for the Central District of California (and perhaps the other California 6 federal courts as well). 7 Arroyo v. Rojas, 19 F.4th at 1211–12.1 The Court notes the growing trend amongst California 8 district courts to consider the state procedural requirements in ADA cases (similar to the instant 9 matter) as a basis for declining to exert supplemental jurisdiction over the plaintiff’s Unruh and 10 other state law claims. See, e.g., Brooke v. Tides Hosp. LLC, No. 8:21-cv-00755-JLS-JDE 11 (C.D. Cal. Jun. 4, 2021) (order to show cause why the court should not decline to exercise 12 supplemental jurisdiction over plaintiff’s Unruh Act claim); Marquez v. KBMS Hosp. Corp., 492 13 F. Supp. 3d 1058, 1062 (C.D. Cal. 2020) (“The Court finds that this case presents ‘exceptional 14 circumstances’ and that ‘there are compelling reasons’ for declining to exercise jurisdiction over 15 Plaintiff's Unruh Act claim . . . Most significantly, California has established a detailed statutory 16 scheme regarding construction-related accessibility complaints for damages, and it deserves the 17 opportunity to enforce that scheme.”); Dalfio v. Simco-Robinson, LLC, No. 21-CV-647-MMA 18 (DEB), 2021 WL 5178525, at *4 (S.D. Cal. Nov. 8, 2021) (granting motion to dismiss and 19 declining to exercise jurisdiction over Unruh Act Claim). According to the filings with this 20 Court, Plaintiff appears to be a high-frequency litigant.2 21
22 1 The Court notes that in consideration of judicial economy, convenience, fairness to litigants, and comity, the Ninth Circuit in Arroyo found that because a motion for summary judgment was already adjudicated and the court had 23 ruled in favor of the plaintiff on the ADA claim, “[f]rom the perspective of judicial economy and convenience, it makes no sense to decline jurisdiction, as the district court did, over a pendent state law claim that that court has 24 effectively already decided.” 19 F.4th at 1214.
25 2 This appears to be one of more than sixteen cases Plaintiff has initiated, in the Eastern District in 2022. See, e.g., Gastelum v. Veer Hosp. LLC, No. 1:22-cv-00112-DAD-BAK; Gastelum v. Easiness LP, No. 1:22-cv-00166-DAD- BAK; Gastelum v. Tilly’s, Inc., No. 1:22-cv-00178-ADA-CDB; Gastelum v. Penney OpCo, LLC, No. 1:22-cv- 26 00179-AWI-EPG; Gastelum v. Tractor Supply Co., No. 1:22-cv-00209-JLT-SAB; Gastelum v. Petco Animal Supplies Stores, Inc., No. 1:22-cv-00792-BAM; Gastelum v. Five Below, Inc., 1:22-cv-00825-AWI-SAB; Gastelum 27 v. Bed Bath & Beyond, Inc., No. 1:22-cv-01173-ADA-CDB; Gastelum v. Shop Q, Inc., 1:22-cv-01176-EPG; Gastelum v. Macy’s Inc., No. 2:22-cv-00065-KJM-DB; Gastelum v. Penney OpCo, LLC, No. 2:22-cv-00283-KJM- 1 As a final note, based on the parties’ filings, it is unclear whether both parties have 2 consented to Magistrate Judge jurisdiction. To consent or decline to magistrate judge 3 jurisdiction, a party may sign and file the consent form available on the Court’s website, at: 4 hhttp://www.caed.uscourts.gov/caednew/index.cfm/forms/civil/. Parties may consent, decline or 5 withhold consent without any adverse consequences. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff show cause, in writing, no later than twenty-one days of entry of this 8 order, as to why the Court should not decline to exercise supplemental 9 jurisdiction over Plaintiff’s Unruh Act claim and California Disabled Persons Act 10 claim; 11 2. Within such response, Plaintiff shall identify the amount of statutory damages 12 Plaintiff seeks to recover, and provide a declaration or declarations, signed under 13 penalty of perjury, providing all facts necessary for the Court to determine if 14 Plaintiff is a “high-frequency litigant”; 15 3. Within fourteen days of the service of Plaintiff’s filing in response to this order, 16 Defendant may file a response to Plaintiff’s filing; 17 4. Failure to respond may result in a recommendation to dismiss the entire action 18 without prejudice, Fed. R. Civ. P. 41(b) (stating that dismissal is warranted “[i]f 19 the plaintiff fails to … comply with … a court order”); Hells Canyon Pres. 20 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); Local Rue l10; 21 5. Further, an inadequate response will result in the Court recommending that 22 supplemental jurisdiction over Plaintiff’s Unruh Act claim be declined and that 23 the Unruh claim be dismissed pursuant to 28 U.S.C. § 1367(c); and 24 / / / 25 / / / 26 / / / 27 / / / 1 6. The parties are directed to file consent or declination of consent forms if they 2 wish to signify their intent to consent to Magistrate Judge jurisdiction. 3 4 IT IS SO ORDERED. FA. ee 5 Dated: _ February 1, 2023 "
‘ UNITED STATES MAGISTRATE JUDGE
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