1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 DARREN GILBERT, Case No. 1:22-cv-00319-ADA-SKO 9 Plaintiff, ORDER VACATING HEARING AND 10 GRANTING PLAINTIFF’S v. UNOPPOSED MOTION FOR LEAVE 11 TO FILE FIRST AMENDED GABRIEL CASTREJON dba El Marisquero, et COMPLAINT 12 al., (Doc. 22) 13 Defendants. ORDER TO SHOW CAUSE RE 14 SUPPLEMENTAL JURISDICTION
15 14 DAY DEADLINE 16 17 I. INTRODUCTION 18 19 Darren Gilbert (“Plaintiff”) filed this action alleging violations of the Americans with 20 Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and state law. (Doc. 1.) Currently before the 21 Court is Plaintiff’s motion for leave to file a first amended complaint. (Doc. 22.) No opposition to 22 the motion has been filed. (See Docket.) This matter has been referred to the undersigned pursuant 23 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 The Court, having reviewed the record, finds this matter suitable for decision without oral 25 argument. See E.D. Cal. Local Rule 230(g). Accordingly, the previously scheduled hearing set on 26 March 8, 2023, will be vacated. For the reasons set forth below, Plaintiff’s unopposed motion will 27 be granted. The Court will also order Plaintiff to show cause why the Court should not decline to 28 exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim 1 2 Plaintiff filed the complaint in this action against Gabriel Castrejon, doing business as El 3 Marisquero (“Castrejon”); Ignacio Castrejon Alvarez (“Alvarez”), doing business as El Marisquero; 4 and Guaranty Holdings of California, Inc. (“Guaranty”) (collectively, “Defendants”) on March 18, 5 2022. (Doc. 1.) The complaint asserts a claim for injunctive relief arising out of an alleged violation 6 of the ADA and a claim for damages pursuant to California’s Unruh Act. (Id.) Defendant Guaranty 7 filed an answer to the complaint on June 1, 2022. (Doc. 7.) Defendants Castrejon and Alvarez filed 8 their answers on September 6, 2022, after entry of default against those defendants was set aside per 9 stipulation. (See Docs. 14, 16.) 10 The Mandatory Scheduling Conference, originally set for June 30, 2022, was continued on 11 two occasions “to allow [the parties] to engage in further settlement discussions.” (See Docs. 13 & 12 21.) The Mandatory Scheduling Conference is currently set for March 9, 2023. (Doc. 21.) 13 On January 26, 2023, Plaintiff filed a motion for leave to file a first amended complaint. 14 (Doc. 22.) No opposition to the motion has been filed. (See Docket.) 15 III. MOTION FOR LEAVE TO AMEND 16 A. Legal Standard 17 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend their pleading 18 once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 19 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent of the 20 adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 21 In determining whether to grant leave to amend after an answer has been filed, the court 22 considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility 23 of amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. 24 Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); accord Madeja v. Olympic Packers, LLC, 310 F.3d 25 628, 636 (9th Cir. 2002); Washington State Republican Party v. Washington State Grange, 676 F.3d 26 784, 797 (9th Cir. 2012). The factors are not given equal weight and futility alone is sufficient to 27 justify the denial of a motion to amend. Washington v. Lowe’s HIW Inc., 75 F. Supp. 3d 1240, 1245 28 (N.D. Cal. 2014). “[I]t is the consideration of prejudice to the opposing party that carries the greatest 1 weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent 2 prejudice, or a strong showing of any of the remaining [ ] factors, there exists a presumption under 3 Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC, 316 F.3d at 1052. 4 B. Discussion 5 Plaintiff moves to amend the complaint to allege additional barriers to his access to El 6 Marisquero, located at 601 Tully Road in Modesto, California (“the Facility”). (See Doc. 22-1 at 7 1–2; Doc. 22-4 at ¶ 11.) 8 1. Bad Faith and Undue Delay 9 Here, there is no evidence that Plaintiff has sought amendment of the complaint in bad faith 10 or with undue delay. There has been no scheduling order entered in this case, as the Mandatory 11 Scheduling Conference has been continued to allow for the parties’ continued settlement 12 discussions. Since the motion was filed before the expiration of any deadline to amend, Rule 15(a) 13 governs and leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 14 The Ninth Circuit has stressed that Rule 15 favors amendments, and that this policy is to be applied 15 with extreme liberality. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 16 2001); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). The Court has 17 no basis upon which to find Plaintiff unduly delayed seeking amendment, or that he engaged in bad 18 faith in doing so. 19 2. Futility 20 The Ninth Circuit has held that “for purposes of Rule 8, a plaintiff must identify the barriers 21 that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a 22 defendant is not deemed to have fair notice of barriers identified elsewhere.” Moeller v. Taco Bell 23 Corp., 966 F.Supp.2d 899, 904 (N.D. Cal. 2013) (quoting Oliver v. Ralphs Grocery Co., 654 F.3d 24 909 (9th Cir. 2011)). A complaint provides fair notice to the defendant where each non-compliant 25 architectural feature is alleged in the complaint. Oliver, 654 F.3d at 908. 26 A plaintiff need not have encountered every barrier that bars an access to seek an injunction 27 to remove the barriers. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002). 28 “[W]hen an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him 1 of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for 2 injunctive relief as to that barrier and other barriers related to his disability. . . .” Chapman v. Pier 3 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011).
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 DARREN GILBERT, Case No. 1:22-cv-00319-ADA-SKO 9 Plaintiff, ORDER VACATING HEARING AND 10 GRANTING PLAINTIFF’S v. UNOPPOSED MOTION FOR LEAVE 11 TO FILE FIRST AMENDED GABRIEL CASTREJON dba El Marisquero, et COMPLAINT 12 al., (Doc. 22) 13 Defendants. ORDER TO SHOW CAUSE RE 14 SUPPLEMENTAL JURISDICTION
15 14 DAY DEADLINE 16 17 I. INTRODUCTION 18 19 Darren Gilbert (“Plaintiff”) filed this action alleging violations of the Americans with 20 Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) and state law. (Doc. 1.) Currently before the 21 Court is Plaintiff’s motion for leave to file a first amended complaint. (Doc. 22.) No opposition to 22 the motion has been filed. (See Docket.) This matter has been referred to the undersigned pursuant 23 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 The Court, having reviewed the record, finds this matter suitable for decision without oral 25 argument. See E.D. Cal. Local Rule 230(g). Accordingly, the previously scheduled hearing set on 26 March 8, 2023, will be vacated. For the reasons set forth below, Plaintiff’s unopposed motion will 27 be granted. The Court will also order Plaintiff to show cause why the Court should not decline to 28 exercise supplemental jurisdiction over Plaintiff’s Unruh Act claim 1 2 Plaintiff filed the complaint in this action against Gabriel Castrejon, doing business as El 3 Marisquero (“Castrejon”); Ignacio Castrejon Alvarez (“Alvarez”), doing business as El Marisquero; 4 and Guaranty Holdings of California, Inc. (“Guaranty”) (collectively, “Defendants”) on March 18, 5 2022. (Doc. 1.) The complaint asserts a claim for injunctive relief arising out of an alleged violation 6 of the ADA and a claim for damages pursuant to California’s Unruh Act. (Id.) Defendant Guaranty 7 filed an answer to the complaint on June 1, 2022. (Doc. 7.) Defendants Castrejon and Alvarez filed 8 their answers on September 6, 2022, after entry of default against those defendants was set aside per 9 stipulation. (See Docs. 14, 16.) 10 The Mandatory Scheduling Conference, originally set for June 30, 2022, was continued on 11 two occasions “to allow [the parties] to engage in further settlement discussions.” (See Docs. 13 & 12 21.) The Mandatory Scheduling Conference is currently set for March 9, 2023. (Doc. 21.) 13 On January 26, 2023, Plaintiff filed a motion for leave to file a first amended complaint. 14 (Doc. 22.) No opposition to the motion has been filed. (See Docket.) 15 III. MOTION FOR LEAVE TO AMEND 16 A. Legal Standard 17 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend their pleading 18 once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 19 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent of the 20 adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 21 In determining whether to grant leave to amend after an answer has been filed, the court 22 considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility 23 of amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. 24 Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); accord Madeja v. Olympic Packers, LLC, 310 F.3d 25 628, 636 (9th Cir. 2002); Washington State Republican Party v. Washington State Grange, 676 F.3d 26 784, 797 (9th Cir. 2012). The factors are not given equal weight and futility alone is sufficient to 27 justify the denial of a motion to amend. Washington v. Lowe’s HIW Inc., 75 F. Supp. 3d 1240, 1245 28 (N.D. Cal. 2014). “[I]t is the consideration of prejudice to the opposing party that carries the greatest 1 weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent 2 prejudice, or a strong showing of any of the remaining [ ] factors, there exists a presumption under 3 Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC, 316 F.3d at 1052. 4 B. Discussion 5 Plaintiff moves to amend the complaint to allege additional barriers to his access to El 6 Marisquero, located at 601 Tully Road in Modesto, California (“the Facility”). (See Doc. 22-1 at 7 1–2; Doc. 22-4 at ¶ 11.) 8 1. Bad Faith and Undue Delay 9 Here, there is no evidence that Plaintiff has sought amendment of the complaint in bad faith 10 or with undue delay. There has been no scheduling order entered in this case, as the Mandatory 11 Scheduling Conference has been continued to allow for the parties’ continued settlement 12 discussions. Since the motion was filed before the expiration of any deadline to amend, Rule 15(a) 13 governs and leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 14 The Ninth Circuit has stressed that Rule 15 favors amendments, and that this policy is to be applied 15 with extreme liberality. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 16 2001); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). The Court has 17 no basis upon which to find Plaintiff unduly delayed seeking amendment, or that he engaged in bad 18 faith in doing so. 19 2. Futility 20 The Ninth Circuit has held that “for purposes of Rule 8, a plaintiff must identify the barriers 21 that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a 22 defendant is not deemed to have fair notice of barriers identified elsewhere.” Moeller v. Taco Bell 23 Corp., 966 F.Supp.2d 899, 904 (N.D. Cal. 2013) (quoting Oliver v. Ralphs Grocery Co., 654 F.3d 24 909 (9th Cir. 2011)). A complaint provides fair notice to the defendant where each non-compliant 25 architectural feature is alleged in the complaint. Oliver, 654 F.3d at 908. 26 A plaintiff need not have encountered every barrier that bars an access to seek an injunction 27 to remove the barriers. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002). 28 “[W]hen an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him 1 of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for 2 injunctive relief as to that barrier and other barriers related to his disability. . . .” Chapman v. Pier 3 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). Accordingly, Plaintiff may amend his 4 complaint to allege all identified barriers that relate to his disability to seek injunctive relief as to 5 those barriers. 6 3. Prejudice 7 This is Plaintiff’s first request to amend the complaint. The Court finds no prejudice to 8 Defendants by allowing amendment of the complaint, and they have not rebutted the presumption 9 in favor of granting leave to amend (as evidenced by their failure to oppose the motion). See 10 Eminence Capital, 316 F.3d at 1052 (Absent prejudice, or a strong showing of any of the remaining 11 factors, a presumption exists under Rule 15(a) in favor of granting leave to amend.). 12 IV. ORDER TO SHOW CAUSE 13 Based upon the recent Ninth Circuit opinion in Vo v. Choi, the Court will order Plaintiff to 14 show cause why the Court should not decline to exercise supplemental jurisdiction over Plaintiff’s 15 Unruh Act claim. See 28 U.S.C. § 1367(c); Vo v. Choi, 49 F.4th 1167 (9th Cir. 2022) (holding the 16 district court properly declined to exercise supplemental jurisdiction in a joint Unruh Act and ADA 17 case). 18 In the Unruh Act, a state law cause of action expands the remedies available in a private 19 action. California, in response to the resulting substantial volume of claims asserted under the Unruh 20 Act and the concern that high-frequency litigants may be using the statute to obtain monetary relief 21 for themselves without accompanying adjustments to locations to assure accessibility to others, 22 enacted filing restrictions designed to address that concern. Arroyo v. Rosas, 19 F.4th 1202, 1211– 23 12 (9th Cir. 2021). These heightened pleading requirements apply to actions alleging a 24 “construction-related accessibility claim,” which California law defines as “any civil claim in a civil 25 action with respect to a place of public accommodation, including but not limited to, a claim brought 26 under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction- 27 related accessibility standard.” Cal. Civ. Code § 55.52(a)(1). 28 1 Moreover, California imposes additional limitations on “high-frequency litigants,” defined 2 as: 3 A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the 4 filing of the current complaint alleging a construction-related accessibility violation. 5 6 Cal. Civ. Proc. Code § 425.55(b)(1). The definition of “high-frequency litigant” also extends to 7 attorneys. See Cal. Civ. Proc. Code § 425.55(b)(2). “High-frequency litigants” are subject to a 8 special filing fee and further heightened pleading requirements. See Cal. Gov. Code § 70616.5; Cal. 9 Civ. Proc. Code § 425.50(a)(4)(A). By enacting restrictions on the filing of construction-related 10 accessibility claims, California has expressed a desire to limit the financial burdens California’s 11 businesses may face for claims for statutory damages under the Unruh Act. See Arroyo, 19 F.4th at 12 1206-07, 1212. The Ninth Circuit has also expressed “concerns about comity and fairness” by 13 permitting plaintiffs to circumvent “California’s procedural requirements.” Vo, 49 F.4th at 1171. 14 Plaintiffs who file these actions in federal court evade these limits and pursue state law damages in 15 a manner inconsistent with the state law’s requirements. See generally, Arroyo, 19 F.4th at 1211– 16 12; Vo v, 49 F.4th at 1171-72. 17 In an action in which a district court possesses original jurisdiction, that court “shall have 18 supplemental jurisdiction over all other claims that are so related to claims in the action within such 19 original jurisdiction that they form part of the same case or controversy under Article III of the 20 United States Constitution.” 28 U.S.C. § 1367(a). Even if supplemental jurisdiction exists, 21 however, district courts have discretion to decline to exercise supplemental jurisdiction. 28 U.S.C. 22 § 1367(c). Such discretion may be exercised “[d]epending on a host of factors” including “the 23 circumstances of the particular case, the nature of the state law claims, the character of the governing 24 state law, and the relationship between the state and federal claims.” City of Chicago v. Int’l Coll. 25 of Surgeons, 522 U.S. 156, 173 (1997). 26 Here, a review of Plaintiff Darren Gilbert’s prior cases from this District reveals that he has 27 filed ten or more complaints alleging a construction-related accessibility violation within the twelve- 28 month period immediately preceding the filing of the current complaint. Plaintiff also filed a 1 declaration in another case on January 13, 2023, acknowledging that he would be considered a high- 2 frequency litigant under California law. See Gilbert v. Bonfare Markets, Inc., 1:22-cv-00605-AWI- 3 BAM (Doc. 28-1, p. 2, Gilbert Declaration: “I have filed more than 10 complaints alleging a 4 construction-related accessibility violation within the 12-month period immediately preceding the 5 filing of the complaint in this action.”). See also id. (Doc. 28, p. 2, Gilbert response to order to show 6 cause: “Plaintiff acknowledges that he would be considered a high-frequency litigant under 7 California law as he filed more than ten construction-related accessibility claims in the twelve 8 months preceding the filing of the instant action.”); Jacobsen v. Mims, No. 1:13-CV-00256-SKO- 9 HC, 2013 WL 1284242, at *2 (E.D. Cal. Mar. 28, 2013) (“The Court may take judicial notice of 10 court records.”). 11 V. CONCLUSION AND ORDER 12 For the reasons set forth above, IT IS HEREBY ORDERED THAT: 13 1. The hearing set for March 8, 2023, is VACATED; 14 2. Plaintiff’s unopposed motion for leave to file a first amended complaint (Doc. 22) is 15 GRANTED; 16 3. Plaintiff shall file the first amended complaint, which is attached as Exhibit A to the 17 Moore Declaration (Doc. 22-4), within five (5) days of service of this order; 18 4. Defendants shall file a responsive pleading within fourteen (14) days of the date of 19 service of Plaintiff’s amended complaint; and 20 5. Plaintiff shall show cause, in writing, within fourteen (14) days of service of this 21 order, why the Court should not decline to exercise supplemental jurisdiction over 22 Plaintiff’s Unruh Act claim. Plaintiff is warned that a failure to respond may result 23 in a recommendation to dismiss of the entire action without prejudice. Fed. R. Civ. 24 P. 41(b) (stating that dismissal is warranted “[i]f the plaintiff fails to . . . comply with 25 . . . a court order”); see also Hells Canyon Pres. Council v. U.S. Forest Serv., 403 26 F.3d 683, 689 (9th Cir. 2005). An inadequate response may result in the undersigned 27 28 1 recommending that supplemental jurisdiction over Plaintiff’s Unruh Act claim be 2 declined and that the Unruh claim be dismissed without prejudice pursuant to 28 3 U.S.C. § 1367(c). 4 IT IS SO ORDERED. 5
6 Dated: February 23, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 7
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