Gastelum v. Tri-County Hospitality

• Court: District Court, N.D. California
• Decided: February 1, 2023
• Docket: 5:21-cv-05291
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 FERNANDO GASTELUM, Case No. 21-cv-05291-VKD

9 Plaintiff, ORDER DENYING MOTION TO 10 v. DISMISS FIRST AMENDED COMPLAINT 11 TRI-COUNTY HOSPITALITY, Re: Dkt. No. 23, 28 Defendant. 12

13 14 Mr. Gastelum challenges accessibility barriers he claims he encountered at a hotel, the 15 Quality Inn & Suites, allegedly owned or operated by defendant Tri-County Hospitality (“Tri- 16 County”) in Gilroy, California.1 Tri-County moves pursuant to Rule 12(b)(1) to dismiss Mr. 17 Gastelum’s first amended complaint (“FAC”) for lack of standing to seek injunctive relief under 18 the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12182, et seq. Dkt. No. 23. 19 Tri-County also argues that the Court should dismiss Mr. Gastelum’s claim under the California 20 Unruh Civil Rights Act (“Unruh Act”) or decline to exercise supplemental jurisdiction over that 21 claim. Mr. Gastelum opposes Tir-County’s motion to dismiss for lack of subject matter 22 jurisdiction. Dkt. No. 25.2 Having considered the moving and responding papers, the Court 23 denies Tri-County’s motion to dismiss Mr. Gastelum’s ADA claim. However, the Court declines 24 to exercise supplemental jurisdiction over his Unruh Act claim. 25

26 1 All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 11, 34. 27 1 I. BACKGROUND 2 According to his pleadings, Mr. Gastelum is a man in his sixties, who is missing one leg, 3 uses a wheelchair for mobility, and has a specially equipped sport utility vehicle. Dkt. No. 20 ¶ 1. 4 Mr. Gastelum says that “[s]ince 2015, [he] has been using a wheelchair for mobility in locations 5 that are designed for wheelchair use.” Id. ¶ 2. His claims are based primarily on accessibility 6 barriers as “relates to wheelchair users like [himself].” Id. ¶ 9. 7 In his FAC, Mr. Gastelum claims he encountered accessibility barriers during a June 29, 8 2021 visit to the Quality Inn & Suites in Gilroy, California (“the hotel”). Mr. Gastelum says the 9 barriers he encountered are that “[t]here is no pool lift”; “[d]oors require twisting of the wrist”; 10 “[t]here are open risers on stairs”; “[t]here are no bottom handrail extensions for stairs”; “[n]o top 11 handrail extensions for stairs”; “[the] [o]ffice door requires a force greater than 5 lbs of force to 12 open”; and “[t]here is no clear floor space for [the] washing machine.” Id. ¶ 9(a)-(g). Mr. 13 Gastelum asserts claims under Title III of the ADA and the Unruh Act. Id. ¶¶ 18-23, 24-27. Mr. 14 Gastelum alleges that he first visited the hotel “with the intention to avail himself of their goods or 15 services” and was “motivated in part to determine if the Facility complies with the disability 16 access laws.” Id. ¶ 8. He alleges that “[a]s a wheelchair user,” he was denied full and equal 17 access to the hotel due to barriers he encountered. Id. ¶¶ 11-13. The FAC further alleges that Mr. 18 Gastelum “will return to the Facility to avail himself of its goods and services and to determine 19 compliance with the disability access laws once it is represented to him that the Facility is 20 accessible.” Id. ¶ 16. He alleges that he is “currently deterred from doing so because of his 21 knowledge of the existing barriers and his uncertainty about the existence of yet other barriers on 22 the site.” Id. Finally, Mr. Gastelum alleges that he “is often in the area where the Facility is 23 located.” Id. ¶ 15. 24 Mr. Gastelum seeks injunctive relief under the ADA and the Unruh Act; “equitable 25 nominal damages for violation of civil rights”; $4,000 in damages for each offense under the 26 Unruh Act; and, in the event he is required to hire counsel, reasonable attorney’s fees, costs and 27 litigation expenses. Id. at 6. 1 ADA claim must be dismissed because Mr. Gastelum fails to establish his standing to seek 2 injunctive relief. Tri-County argues that if the ADA claim is dismissed, the Unruh Act claim must 3 also be dismissed, or, alternatively, it requests that the Court decline to exercise supplemental 4 jurisdiction over that claim. 5 II. LEGAL STANDARD 6 Standing is a jurisdictional issue properly addressed under a Rule 12(b)(1) motion. 7 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). A Rule 12(b)(1) motion to dismiss 8 challenges a federal court’s jurisdiction over the subject matter of a plaintiff’s complaint. A 9 jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings (a 10 “facial attack”) or by presenting extrinsic evidence (a “factual attack”). Warren v. Fox Family 11 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 12 (9th Cir. 2000)). “In a facial attack, the challenger asserts that the allegations contained in a 13 complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. 14 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a facial attack on jurisdiction, the record 15 is limited to the complaint and materials that may be judicially noticed. See Hyatt v. Yee, 871 F.3d 16 1067, 1071 n.15 (9th Cir. 2017). Additionally, the Court accepts well-pled allegations of the 17 complaint as true, draws all reasonable inferences in Mr. Gastelum’s favor, and determines 18 whether his allegations are sufficient to support standing. Id. 19 “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 20 themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 21 1039. “In resolving a factual attack on jurisdiction, the district court may review evidence beyond 22 the complaint without converting the motion to dismiss into a motion for summary judgment” and 23 “need not presume the truthfulness of the plaintiff’s allegations.” Id. “Once the moving party has 24 converted the motion to dismiss into a factual motion by presenting affidavits or other evidence 25 properly brought before the court, the party opposing the motion must furnish affidavits or other 26 evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id. (internal 27 quotations and citation omitted). 1 establishing its existence. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 2 III. DISCUSSION 3 Tri-County makes a factual attack on Mr. Gastelum’s allegations concerning his standing 4 to pursue an ADA claim, and maintains that, in any event, the FAC does not allege sufficient facts 5 to support standing. 6 A. Standing re ADA Claim 7 Under Article III of the Constitution, federal courts have jurisdiction to decide only actual 8 cases or controversies, U.S. Const., art. III, § 2, and Mr. Gastelum has standing to sue if he 9 “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 10 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. 11 Robins, 578 U.S. 330, 338 (2016); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 12 (1992). Mr. Gastelum’s claimed injury must be both “particularized” and “concrete.” A 13 “particularized” injury is one that “‘affect[s] the plaintiff in a personal and individual way.’” 14 Spokeo, Inc., 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560 n.1). A “concrete” injury “must 15 actually exist” and must be “real, and not abstract.” Id. at 340. 16 Additionally, in the context of injunctive relief, which is the only remedy available to Mr. 17 Gastelum under Title III of the ADA, he “must demonstrate a ‘real and immediate threat of 18 repeated injury’ in the future.” Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 946 (9th 19 Cir. 2011) (quoting Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)); see 20 also Lujan, 504 U.S. at 564 (“Past exposure to illegal conduct does not in itself show a present 21 case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present 22 adverse effects.”) (internal quotation marks omitted)). Thus, an ADA plaintiff may establish 23 standing “either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an 24 intent to return to a noncompliant facility.” Chapman, 631 F.3d at 944. While courts take a broad 25 view of constitutional standing in disability access cases, “the ADA’s reach is not unlimited.” Id. 26 at 946. 27 1. Barriers Related to Mr. Gastelum’s Disability 1 indicating that Mr. Gastelum used a wheelchair during the alleged visit to the hotel and that he 2 suffered any injury-in-fact as a wheelchair user. Tri-County contends that Mr. Gastelum is not 3 exclusively a wheelchair user and is able to move using a prosthetic leg and cane. Tri-County asks 4 the Court to review a surveillance video, submitted by a defendant in another of Mr. Gastelum’s 5 accessibility lawsuits, which reportedly shows Mr. Gastelum checking into another hotel using a 6 prosthesis and cane, rather than a wheelchair. See Dkt. No. 23-3 ¶¶ 2-3. 7 The Court does not find it appropriate or necessary to consider the video. Tri-County 8 impliedly suggests that the Court may consider the video, and accept it as proper evidence, simply 9 because a defendant in another case filed a declaration about it. See Dkt. No. 23-1 at 3, 10, 11 n.4. 10 Even assuming the video shows what Tri-County says it does, it is irrelevant and does not 11 contradict Mr. Gastelum’s allegations that he uses a wheelchair, including on his visit to the hotel 12 at issue in this case. In his FAC, Mr. Gastelum alleges that he uses a wheelchair, except “[w]here 13 a facility is not designed for wheelchair use.” Dkt. No. 20 ¶ 2. In those instances, Mr. Gastelum 14 says he “is forced to use a prosthesis and a cane that cause him great discomfort and pain.” Id. 15 The fact that a surveillance video shows that Mr. Gastelum may have used his prosthesis 16 and cane on a different occasion at a different facility does not refute Mr. Gastelum’s allegations 17 indicating that he visited the hotel at issue using a wheelchair. See, e.g., Gastelum v. Blue 18 Diamond Hospitality, No. 5:21-cv-06234-EJD, 2022 WL 4292957, at *3-5 (N.D. Cal. Sept. 16, 19 2022) (concluding that surveillance video from another hotel was irrelevant to Mr. Gastelum’s 20 allegations that he used a wheelchair during the visit to the defendant’s hotel). 21 Tri-County nonetheless maintains that the FAC is deficient because Mr. Gastelum does not 22 expressly say that he used a wheelchair during his visits to the hotel and that the barriers he says 23 he encountered either do not exist or are not related to his disability. Dkt. No. 23-1 at 11-15. 24 With respect to use of a wheelchair, the Court is not persuaded that Mr. Gastelum is required to 25 plead the level of specificity Tri-County advocates. The FAC’s allegations, reasonably construed, 26 indicate that Mr. Gastelum uses a wheelchair for mobility and that he encountered barriers as a 27 wheelchair user on the visit at issue. Dkt. No. 20 ¶¶ 1, 2, 9-11. 1 Gastelum’s allegations concerning the existence of barriers to accessing the pool via a wheelchair 2 lift, accessing doors that require handle-twisting or force to open, and accessing the washing 3 machine. Dkt. No 23-1 at 11-15. In his opposition, Mr. Gastelum explains why each of these 4 alleged barriers interfered with his ability to access the hotel and how each is related to his 5 disability. Dkt. No. 25 at 8-11. Tri-County’s factual challenge to Mr. Gastelum’s allegations 6 would require the Court to make findings regarding the nature and extent of Mr. Gastelum’s 7 disability and the extent to which certain features of the hotel represented actual barriers to him. 8 Resolving disputed facts in the context of a jurisdictional challenge is not appropriate where “the 9 jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is 10 dependent on the resolution of factual issues going to the merits.” Sun Valley Gasoline, Inc. v. 11 Ernst Enterprises, Inc., 711 F.2d 138, 139 (9th Cir. 1983); see also Gastelum v. Parvarti Hosp. 12 Inc., No. 21-CV-06235-BLF, 2022 WL 2812176, at *4 (N.D. Cal. July 18, 2022) (declining to 13 resolve disputed facts on Rule 12(b)(1) motion challenging standing). 14 To the extent Tri-County argues that the FAC alleges barriers that obviously are not 15 barriers for wheelchair users, the motion to dismiss is denied on this ground as well. Mr. 16 Gastelum alleges that he has a disability that requires him to use either a wheelchair or a prosthesis 17 and cane for mobility. The allegations of the FAC are fairly understood as indicating that Mr. 18 Gastelum actually observed barriers at the hotel that relate to his disability and that interfere with 19 his access, whether he is using a prosthesis and cane to move or a wheelchair instead. Mr. 20 Gastelum’s personal knowledge of barriers to his access using a prosthesis and cane, even if he 21 was using a wheelchair when he learned of those barriers, supports the conclusion that he has 22 standing. See Rutherford v. Evans Hotels, LLC, No. 18-CV-435 JLS (MSB), 2020 WL 5257868, 23 at *16 (S.D. Cal. Sept. 3, 2020) (“It may be true that Mr. Rutherford need not have personally 24 encountered the alleged barrier, but he still must have personal knowledge of it to establish 25 standing.”) (citing Doran v. 7-Eleven, Inc., 524 F. 3d 1034, 1041–42 (9th Cir. 2008)). 26 In addition to its argument that Mr. Gastelum did not encounter barriers related to his 27 disability, Tri-County argues that Mr. Gastelum has no injury-in-fact because he did not attempt to 1 an injury. Dkt. No. 23 at 6. This argument is not well-taken. The Ninth Circuit has long- 2 recognized that “Title III explicitly provides that it does not require ‘a person with a disability to 3 engage in a futile gesture if such person has actual notice that a person or organization . . . does 4 not intend to comply’ with the ADA.” Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 5 1136 (9th Cir. 2002) (quoting 42 U.S.C. § 12188). “So long as the discriminatory conditions 6 continue, and so long as a plaintiff is aware of them and remains deterred, the injury under the 7 ADA continues.” Pickern at 1137. Mr. Gastelum alleges that he personally encountered barriers 8 at the hotel related to his disability. Dkt. No. 20 ¶ 8. This is sufficient injury-in-fact under the 9 ADA; Mr. Gastelum was not required to stay at the hotel despite these barriers in order to 10 establish standing. 11 2. Real and Immediate Threat of Repeated Injury 12 Tri-County also argues that Mr. Gastelum has not plausibly alleged facts nor presented any 13 evidence establishing that he faces a real and immediate threat of repeated injury, as required to 14 seek injunctive relief on his ADA claim. “Although encounters with the noncompliant barriers 15 related to one’s disability are sufficient to demonstrate an injury-in-fact for standing purposes, a 16 plaintiff seeking injunctive relief must additionally demonstrate a sufficient likelihood that he will 17 again be wronged in a similar way.” Chapman, 631 F.3d at 948 (quoting City of Los Angeles v. 18 Lyons, 461 U.S. 95, 111 (1983)). Courts “have Article III jurisdiction to entertain requests for 19 injunctive relief both to halt the deterrent effect of a noncompliant accommodation and to prevent 20 imminent ‘discrimination,’ as defined by the ADA, against a disabled individual who plans to visit 21 a noncompliant accommodation in the future.” Id. at 950. “Thus, an ADA plaintiff can show a 22 likelihood of future injury when he intends to return to a noncompliant accommodation and is 23 therefore likely to reencounter a discriminatory architectural barrier.” Id. “Alternatively, a 24 plaintiff can demonstrate sufficient injury to pursue injunctive relief when discriminatory 25 architectural barriers deter him from returning to a noncompliant accommodation.” Id. 26 Tri-County contends that the FAC’s allegations do not demonstrate that Mr. Gastelum has 27 a genuine intent to return to the hotel as a bona fide customer or that he is deterred from doing so 1 says only that he is “often” in the area of the hotel, but he does not allege any concrete plans to 2 return to the area to patronize the hotel in the future, or any genuine (as opposed to hypothetical) 3 desire to do so. Id. In his opposition, Mr. Gastelum states that he “intended to travel back to 4 Gilroy in the winter of 2021/2022, and did so on January 25, 2022, but was deterred from staying 5 at the Quality Inn based on by [sic] my own personal knowledge that the Hotel was not ADA 6 accessible.” Dkt. No. 25 at 3.3 In addition, Mr. Gastelum points to the allegation in the FAC in 7 which he asserts that he will return to the hotel “to determine compliance with the disability access 8 laws.” Id. at 3, 7. 9 “The existence of federal jurisdiction ordinarily depends on the facts as they exist when the 10 complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989); see also 11 Lujan, 504 U.S. at 570 n.4 (noting the “longstanding rule that jurisdiction is to be assessed under 12 the facts existing when the complaint is filed.”). Thus, “[t]he requisite personal interest,” i.e., 13 standing, “must exist at the commencement of the litigation[.]” Friends of the Earth, Inc. v. 14 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, (2000) (citation omitted); see also Skaff v. 15 Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007) (“The existence of 16 standing turns on the facts as they existed at the time the plaintiff filed the complaint.”). While 17 “[t]here is no past patronage or bona fide customer requirement to bring an ADA claim,” Langer 18 v. Kiser, — F.4th —, No. 21-55183, 2023 WL 353215, at *7 (9th Cir. Jan. 23, 2023) (citing 19 CREEC, 867 F.3d at 1102), a plaintiff “lacks standing if he is indifferent to returning to the 20 [facility] or if his alleged intent to return is not genuine . . . .” Chapman, 631 F.3d at 953. 21 The Ninth Circuit’s recent decision in Langer suggests that Mr. Gastelum’s allegations, 22 while sparse, are sufficient to establish standing for purposes of injunctive relief at least with 23 respect to his intent to return to the hotel as an ADA tester, if not as a bona fide customer. In the 24 FAC, Mr. Gastelum alleges that he 25 will return to [the hotel] to avail himself of its goods and services and to determine compliance with the disability access laws once it is 26 represented to him that [the hotel] is accessible. Plaintiff is currently 27 deterred from doing so because of his knowledge of the existing 1 barriers and his uncertainty about the existence of yet other barriers on the site. If the barriers are not removed, the plaintiff will face 2 unlawful and discriminatory barriers again. 3 Dkt. No. 20 ¶ 16. Whether Mr. Gastelum’s allegations and statements regarding his intent to 4 return are credible is not a question the Court can answer on this record. Langer expressly notes 5 that credibility determinations may be made against a serial litigant, based on “something other 6 than the fact that the litigant files a lot of ADA cases to instill doubt in his testimony.” Langer, — 7 F.4th —, 2023 WL 353215 at *8. “But merely driving around, documenting ADA 8 noncompliance, and filing multiple lawsuits is not in and of itself a basis for being found 9 noncredible.” Id. However, “if a plaintiff alleged that he broke his leg multiple times in one day 10 from the same barrier at different locations . . . [o]r if [a plaintiff] had alleged personally 11 encountering [barriers] at businesses in California, Hawaii, and Alaska on the same day, an 12 adverse credibility determination would be well taken.” Id. 13 Tri-County points to evidence showing that Mr. Gastelum filed at least 13 ADA Title III 14 lawsuits in California based on alleged visits to hotels across California in the span of one week, 15 i.e., June 28-July 4, 2021, overlapping with his alleged visit to the hotel at issue in this case on 16 June 29, 2021. See Dkt. No. 23-1 at 7. Mr. Gastelum does not dispute the accuracy of Tri- 17 County’s evidence or address its significance. The Court has examined Tri-County’s evidence and 18 concludes that it does not rise to the level of implausibility contemplated by Langer. While the 19 Court agrees with Tri-County that Mr. Gastelum could not possibly have stayed overnight in all of 20 the places he claims to have visited during this period, the FAC alleges only that he visited the 21 hotel at issue—not that he stayed overnight. The Court is not prepared to find that this visit was 22 impossible in view of the timing of Mr. Gastelum’s other visits to other places. Evidence 23 undermining the plausibility of Mr. Gastelum’s allegations may arise as this case proceeds, but the 24 Court cannot conclude on this record that his allegations are not credible. 25 Nevertheless, the Court agress with Tri-County that Mr. Gastelum’s generic allegation 26 about his intent to patronize the hotel at some unspecified time in the future and his bare assertion 27 that he travels to the area “often,” without more, likely are insufficient to establish a genuine intent 1 to return to the hotel as a bona fide customer. However, in view of Mr. Gastelum’s allegations 2 that he intends to return to the hotel to assess compliance with disability laws, Langer counsels 3 against dismissal of Mr. Gastelum’s ADA claim. See id. at *7 (“Being an ADA tester is, in fact, a 4 legitimate reason to go to a business, and the district court’s insinuation otherwise is legally 5 flawed. Visiting the property to identify potential ADA violations is consistent with having a 6 credible intent to return; in other words, credibility is not mutually exclusive with being a tester.”). 7 Therefore, to the extent Tri-County contends that the ADA claim must be dismissed because Mr. 8 Gastelum has no genuine intent to return or is deterred from returning as a bona fide customer, the 9 motion to dismiss is denied. 10 B. Unruh Act Claim 11 Tri-County argues that, in any event, the Court should decline to exercise supplemental 12 jurisdiction over Mr. Gastelum’s Unruh Act claim because permitting Mr. Gastelum to proceed 13 with this claim would evade the restrictions California has recently placed on the availability of 14 damages relief under the Act. Dkt. No. 25 at 24-25. Mr. Gastelum does not respond to this part 15 of Tri-County’s motion. 16 Where a federal court has original jurisdiction over a claim pursuant to federal law, it also 17 has supplemental jurisdiction over related state law claims. 28 U.S.C. § 1367(a). Nevertheless, 28 18 U.S.C. § 1367(c)(4) authorizes a district court to “decline to exercise supplemental jurisdiction 19 over a claim . . . if . . . in exceptional circumstances, there are other compelling reasons for 20 declining jurisdiction.” In Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 2021), the Ninth Circuit 21 recognized that a “recent confluence of several California-law rules have combined to create a 22 highly unusual systemic impact on ADA-based Unruh Act cases that clearly threatens to have a 23 significant adverse impact on federal-state comity,” id. at 1211. Recently enacted procedural 24 filing requirements in California state courts have resulted in “a wholesale shifting of Unruh 25 Act/ADA cases into . . . [California federal courts.]” Id. at 1212. As a consequence of this shift, 26 “the procedural strictures that California put in place have been rendered largely toothless, because 27 they can now be readily evaded.” Id. at 1212-13. The Ninth Circuit described these 1 that retention of supplemental jurisdiction over ADA-based Unruh Act claims threatens to 2 substantially thwart California’s carefully crafted reforms in this area and to deprive the state 3 courts of their critical role in effectuating the policies underlying those reforms.” Id. at 1213. 4 Accordingly, the Ninth Circuit held that the Central District of California acted within its 5 discretion to conclude that “this extraordinary situation threatens unusually significant damage to 6 federal-state comity and presents ‘exceptional circumstances’ within the meaning of [28 U.S.C.] 7 § 1367(c)(4).” Id. at 1213. 8 Mr. Gastelum does not dispute that, were he to file his Unruh Act claim in state court, he 9 would be subject to the “procedural strictures” established by the California legislature to further 10 the interests described in Arroyo, and he does not state any opposition to the relief Tri-County 11 seeks in its motion with respect to the question of supplemental jurisdiction. 12 Having considered the merits of Tri-County’s argument on this point, the early procedural 13 status of this case, and the strong comity concerns identified by the Ninth Circuit in Arroyo, the 14 Court concludes that these comity concerns outweigh any countervailing considerations of 15 economy and efficiency that might be adversely affected by requiring Mr. Gastelum, if he so 16 chooses, to refile his Unruh Act claim in state court. Furthermore, fairness also counsels in favor 17 of declining jurisdiction over Mr. Gastelum’s Unruh Act claim. Allowing Mr. Gastelum to pursue 18 his state law claim here would “countenance ‘a wholesale evasion of . . . critical limitations on 19 damages relief’ that the California legislature has seen fit to impose for claims under that statute.” 20 Garcia v. Maciel, No. 21-cv-03743-JCS, 2022 WL 395316, at *5 (N.D. Cal. Feb. 9, 2022) 21 (quoting Arroyo, 19 F.4th at 1213). 22 Accordingly, the Court declines to exercise supplemental jurisdiction over Mr. Gastelum’s 23 Unruh Act claim and dismisses that claim without prejudice to filing in state court. 24 IV. TRI-COUNTY’S MOTION TO STRIKE MR. GASTELUM’S SUR-REPLY 25 Following the filing of Tri-County’s reply brief, Mr. Gastelum filed a “supplemental 26 memorandum in opposition / response.” Dkt. No. 27. In this submission, Mr. Gastelum says that 27 Tri-County’s counsel attempted to “coerce” him to withdraw his complaint. Id. at 2. He also 1 portions of the ADA Accessibility Guidelines. /d. at 2-5. In response, Tri-County filed an 2 || administrative motion to strike Mr. Gastelum’s sur-reply, Dkt. No. 28, to which Mr. Gastelum 3 filed an objection, Dkt. No. 29. 4 A sur-reply is not permitted, Civil Local Rule 7-2(d), and the Court did not consider Mr. 5 Gastelum’s sur-reply in resolving this motion. Tri-County’s motion to strike (Dkt. No. 28) is 6 || therefore denied as moot. 7 WY. CONCLUSION 8 Based on the foregoing, Tri-County’s Rule 12(b)(1) motion to dismiss Mr. Gastelum’s 9 || ADA claim for lack of subject matter jurisdiction is denied. The Court declines to exercise 10 || supplemental jurisdiction over Mr. Gastelum’s Unruh Act claim, without prejudice to his re-filing 11 that claim in state court. 12 Tri-County shall file its answer to the ADA claim in the FAC no later than 21 days from 5 13 || the date of this order. IT IS SO ORDERED. 3 15 Dated: February 1, 2023 16 17 Uniagaiia E MuMarche: 8 VIRGINIA K. DEMARCHI United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28