Hernandez v. ARS Hospitality, Inc.

• Court: District Court, E.D. California
• Decided: February 22, 2022
• Docket: 2:20-cv-02390
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 11 GERARDO HERNANDEZ, No. 2:20-cv-02390-TLN-JDP 12 Plaintiff,

13 v. ORDER ARS HOSPITALITY, INC. dba 14 HAMPTION INN SUITES CAL EXPO,

15 Defendant. 16

19 This matter is before the Court pursuant to Defendant ARS Hospitality, Inc., dba Hampton

20 Suites Cal Expo’s (“Defendant”) motion to dismiss Gerardo Hernande z’s (“Plaintiff”) complaint. 21 (ECF No. 5.) Plaintiff filed an opposition. (ECF No. 8.) Defendant filed a reply. (ECF No. 10.) 22 For the reasons set forth below, the Court DENIES Defendant’s motion. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND1 2 Plaintiff alleges he is “‘physically disabled.’” (ECF No. 1 at 2.) He states he is 3 “substantially limited in his ability to walk” and “must use a wheelchair for mobility.” (Id.) 4 Plaintiff alleges Defendant owns and operates the Hampton Inn Suites Cal Expo (“Hotel”). (Id.) 5 Plaintiff alleges he visited the Hotel on July 4, 2020, for the purpose of resting for the night. (Id.) 6 Plaintiff alleges the Hotel’s “check-in counter was too high, which made it hard for Plaintiff to 7 use.” (Id. at 3.) Plaintiff further alleges he specifically requested an accessible guestroom, but 8 the room he received was not an accessible room. (Id.) 9 Plaintiff claims he experienced several barriers upon entering his hotel room. (Id.) He 10 states that the bathroom’s interior was not accessible, and the shower did not have a removable 11 handheld showerhead. (Id.) Additionally, Plaintiff alleges there were no grab bars at the toilet in 12 the room, and the toilet was too short. (Id.) 13 Plaintiff alleges that he regularly travels to the area where the Hotel is located. (Id. at 2). 14 However, Plaintiff states he is deterred from staying at the Hotel due to the barriers he 15 experienced. (Id. at 3). He alleges he will return to the facility once the barriers are removed. 16 (Id.) 17 On December 1, 2020, Plaintiff filed a complaint alleging Defendant violated Title III of 18 the Americans with Disabilities Act (“ADA”), the California Unruh Act (“Unruh Act”), and 19 California Health and Safety Codes § 1955 and § 1959. See 42 U.S.C. §§ 12182-12189; Cal. Civ. 20 Code §§ 51-52; (ECF No. 1.) On April 15, 2021, Defendant moved to dismiss Plaintiff’s claims 21 pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and Rule 12(b)(6) for lack of 22 subject matter jurisdiction or in the alternative failure to state a claim upon which relief can be 23 granted. (ECF No. 5-1.) Plaintiff subsequently filed an Opposition to Defendant’s Motion to 24 Dismiss on April 29, 2021. (ECF No. 8.) Defendant filed a Reply in Support of Motion to 25 Dismiss on April 24, 2021. (ECF No. 10.) 26 /// 27 1 The following of recitation of facts is taken, sometimes verbatim, from Plaintiff’s 28 Complaint. (ECF No. 1.) 1 II. STANDARD OF LAW 2 A. Motion to Dismiss Pursuant to Rule 12(b)(1) 3 A motion under Rule 12(b)(1) allows defendants to seek dismissal of a claim or action for 4 a lack of subject matter jurisdiction. Fed. R. Civ. P. (12)(b)(1); Brooke v. Kashl Corp., 362 F. 5 Supp. 3d 864, 871 (S.D. Cal. 2019). The objection that a federal court lacks subject matter 6 jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the 7 litigation, even after trial and the entry of judgment. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 8 (2006). The challenge can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 9 2000). 10 “When subject matter jurisdiction is challenged under Federal Rule of [Civil] Procedure 11 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the 12 motion.” Tosco Corp. v. Communities for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) 13 (abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010)). “‘Unless the 14 jurisdictional issue is inextricable from the merits of a case, the court may determine jurisdiction 15 on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1)[.]’” Robinson v. U.S., 586 16 F.3d 683, 685 (9th Cir. 2009) (internal citations omitted). “A suit brought by a plaintiff without 17 Article III standing is not a ‘case or controversy,’ and an Article III federal court therefore lacks 18 subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 19 2004). If a court determines at any time that it lacks subject matter jurisdiction, “the court must 20 dismiss the action.” Fed. R. Civ. P. 12(h)(3). 21 B. Motion to Dismiss Pursuant to 12(b)(6) 22 A motion to dismiss for failure to state a claim upon which relief can be granted under 23 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 24 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 25 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also Ashcroft v. Iqbal, 26 556 U.S. 662, 677-78 (2009). Under notice pleading in federal court, the complaint must “give 27 the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 28 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). 1 “This simplified notice pleading standard relies on liberal discovery rules and summary judgment 2 motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz 3 v. Sorema N.A., 534 U.S. 506, 512 (2002). 4 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 5 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 6 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 7 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 8 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 9 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 10 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 11 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 12 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 13 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 14 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 15 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 16 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 17 statements, do not suffice.”). Thus, “conclusory allegations of law and unwarranted inferences 18 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355, 19 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 20 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 21 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 22 Council of Carpenters, 459 U.S. 519, 526 (1983). 23 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 24 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 25 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 27 678. While the plausibility requirement is not akin to a probability requirement, it demands more 28 than “a sheer possibility that a defendant has acted unlawfully.” Id. This plausibility inquiry is “a 1 context-specific task that requires the reviewing court to draw on its judicial experience and 2 common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or her] claims . . . 3 across the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680 4 (internal quotations omitted). 5 In ruling on a motion to dismiss, a court may consider only the complaint, any exhibits 6 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 7 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 8 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998); see also Daniels- 9 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (the court need not accept as true 10 allegations that contradict matters properly subject to judicial notice). 11 If a complaint fails to state a plausible claim, “‘a district court should grant leave to amend 12 even if no request to amend the pleading was made, unless it determines that the pleading could 13 not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 1130 (9th 14 Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); see also 15 Gardner v. Martino, 563 F.3d 981, 992 (9th Cir. 2009) (finding no abuse of discretion in denying 16 leave to amend when amendment would be futile). Although a district court should freely give 17 leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to deny such 18 leave is ‘particularly broad’ where the plaintiff has previously amended its complaint[.]” 19 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 20 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 21 III. ANALYSIS 22 Plaintiff seeks injunctive relief and statutory damages against Defendant for 23 discrimination on the basis of his disability in the full and equal enjoyment of the Defendant’s 24 hotel. (ECF No. 1 at 8.) Defendant filed a motion to dismiss under Rule 12(b)(1) and Rule 25 12(b)(6). (ECF No. 5 at 2.) Additionally, Defendant requests the Court not take supplemental 26 jurisdiction over Plaintiff’s Unruh Act claim. (ECF No. 5-1 at 19.) Accordingly, the Court will 27 address each motion separately. 28 /// 1 A. 12(b)(1) Motion 2 Defendant moves to dismiss Plaintiff’s claim under Title III of the ADA, arguing the 3 Court does not have subject matter jurisdiction over this matter because Plaintiff does not have 4 standing. (ECF No. 5-1 at 9.) Defendant further contends that the Court does not have subject 5 matter jurisdiction over the matter because Plaintiff’s claim is moot. (ECF No. 5-1 at 18-19.) 6 “[T]o invoke the jurisdiction of the federal courts, a disabled individual claiming 7 discrimination must satisfy the case or controversy requirement[s] of Article III by demonstrating 8 his standing to sue at each stage of the litigation.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 9 F.3d 939, 946 (9th Cir. 2011) (citing U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 10 U.S. 555, 560 (1992)). A plaintiff must demonstrate that (1) he suffered an injury in fact, (2) the 11 injury is traceable to the defendant’s conduct, and (3) that the injury can be redressed by a 12 favorable decision. Chapman, 631 F.3d at 946. However, once a disabled individual encounters 13 a barrier that deters his patronage of or otherwise interferes with his access to a place of public 14 accommodation, “he has already suffered an injury in fact traceable to the defendant’s conduct 15 and capable of being redressed by the courts, and so he possesses standing under Article III.” Id. 16 at 947 (quoting Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1042 n.5 (9th Cir. 2008)). Since the 17 ADA only provides a plaintiff with injunctive relief as a remedy for noncompliance, the plaintiff 18 must further demonstrate there is a “‘real and immediate threat of repeated injury.’” Fortyune v. 19 Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (quoting O’Shea v. Littleton, 414 20 U.S. 488, 496 (1974)). A plaintiff can establish standing to sue for injunctive relief either by 21 demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a 22 noncompliant facility. Chapman, 631 F.3d at 944. 23 i. Injury in fact 24 At issue is whether Plaintiff suffered an injury in fact. Defendant argues Plaintiff does not 25 meet the injury-in-fact element for standing to bring an ADA claim because Plaintiff did not 26 suffer an actual injury. (ECF No. 5-1 at 9-10.) Defendant contends it is implausible Plaintiff 27 suffered an actual injury because the Hotel is ADA compliant and had accessible rooms available 28 the night Hernandez stayed at the Hotel. (Id.) Additionally, Defendant argues that no injury is 1 traceable to its conduct. Id. Defendant states that even if Plaintiff was placed in a non-ADA- 2 accessible room on accident, he could have been moved to an accessible room if he asked. (ECF 3 No. 10 at 4.)2 Plaintiff argues that during his visit to the hotel, he encountered barriers which 4 interfered with his “ability to use and enjoy the goods, services, privileges, and accommodations 5 offered” at the Hotel. (ECF No. 1 at 2.) 6 To allege an injury-in-fact, a plaintiff must demonstrate he encountered a barrier related to 7 his disability that affected him and that it interfered with his “full and equal enjoyment” of the 8 facility. Chapman, 631 F.3d at 947−48. Once a plaintiff encounters such a barrier, “he has 9 already suffered an injury in fact traceable to the defendant’s conduct and capable of being 10 redressed by the courts, and so he possesses standing under Article III.” Id at 946. 11 Here, Plaintiff alleges he encountered three barriers that affected him and interfered with 12 his use and enjoyment of the hotel: (1) the check-in counter was too high which made it hard for 13 him to use; (2) the shower in his room did not have a detachable shower head; and (3) the toilet 14 was too low and lacked grab bars. (ECF No. 1 at 3.) Other district courts within the Ninth 15 Circuit recognized similar barriers as sufficient to meet the injury-in-fact element for Article III 16 standing under the ADA. See Barajas v. Ashford TRS Walnut Creek LLC, No. 20-cv-01676- 17 CRB, 2021 WL 2711734, at *4 (N.D. Cal. July 1, 2021) (reasoning that lack of grab bars in a 18 bathroom and unavailable counter space were sufficiently connected to plaintiff’s disability of 19 being wheelchair bound). Here, Plaintiff has sufficiently connected the barrier of the Hotel’s 20 check-in counter height with his disability of being in a wheelchair, making the check-in counter 21 difficult for Plaintiff to use. Like the plaintiff in Barajas, Plaintiff has sufficiently demonstrated 22 he encountered ADA violations at the Hotel related to his disability, thus he has met the injury-in- 23 fact element. 24 /// 25

2 Defendant offers a declaration and photos of the Hotel in support of its argument. 26 However, the Court declines to consider these documents at the motion to dismiss stage. Monzon 27 v. S. Wine & Spirits of Cal., 834 F. Supp. 2d 934, 941 (N.D. Cal. 2011) (holding that the court could not consider new facts and documents the defendant introduced in its reply that were not 28 referenced by or incorporated into the complaint). 1 ii. Intent to return/Deterrence 2 Defendant contends Plaintiff has not sufficiently alleged his intent to return to the Hotel. 3 (ECF No. 5-1 at 11.) Additionally, Defendant argues that Plaintiff has not alleged facts to show 4 he is deterred from returning to the Hotel. (Id at 15.) Defendant points to a four-part test laid out 5 in Strojnik v. Four Sisters Inns, Inc., to argue Plaintiff failed to allege a likelihood of returning to 6 a facility and thus cannot establish standing. (ECF No. 5-1 at 12); Strojnik v. Four Sisters Inns, 7 Inc., No. 2:19-CV-02991-ODW (JEMx), 2019 WL 6700939, at *4 (C.D. Cal. Dec. 9, 2019) 8 (assessing “(1) the proximity of [defendant’s business] to plaintiff's residence, (2) plaintiff's past 9 patronage of defendant’s business, (3) the definitiveness of plaintiff’s plans to return, and (4) the 10 plaintiff’s frequency of travel near defendant”) (internal quotations omitted). 11 Regarding the Strojnik test, in Brooke v. Suites LP, the court held that similar four-part 12 tests to gauge a plaintiff’s intent to return to a business “are not definitive.” Brooke v. Suites LP, 13 No. 3:20-cv-01217-H-AHG, 2020 WL 6149963, at *4 (S.D. Cal. Oct. 19, 2020) (internal 14 quotations omitted). A plaintiff’s intent to return to a facility “may be demonstrated ‘in any 15 number of ways.’” Id. at *5 (quoting Harris v. Del Taco, Inc., 396 F. Supp. 2d 1107, 1115 (C.D. 16 Cal. 2005)). “A plaintiff’s nonspecific allegations of intent to visit a facility, deterrence by the 17 facility’s non-compliance, and desire to visit when the non-compliance is cured is sufficient to 18 establish standing.” Hernandez v. Welcome Sacramento, LLC, No. 2:20-cv-2061-KJM-JDP, 19 2021 WL 4318256, at *3 (E.D. Cal. Sept. 23, 2021). 20 Here, Plaintiff alleges he regularly travels to the area where the Hotel is located. (ECF 21 No. 1 at 2.) Additionally, Plaintiff states he is deterred from staying at the Hotel due to the 22 barriers he experienced, but he will return to the facility once the barriers are removed. (Id at 3.) 23 “[A] plaintiff’s vague allegations that they intended to visit a facility, are deterred by the facility’s 24 non-compliance, and would visit when non-compliance is cured are sufficient to establish 25 standing” at the pleadings stage of a case. Barajas, 2021 WL 2711734 at *3; see also Brooke, 26 2020 WL 6149963 at *4. Accordingly, Plaintiff’s statements that he intends to stay at the Hotel 27 once it removes its barriers are sufficient to meet the threshold to establish standing. Moreover, 28 because Plaintiff alleged he regularly visits the area the Hotel is located, and that he would return 1 to the Hotel once its barriers are removed, he has adequately pleaded his intent to return to the 2 Hotel. Therefore, the Court finds Plaintiff has sufficiently alleged standing to bring his ADA 3 claim. 4 iii. Mootness 5 Defendant contends the Court does not have subject matter jurisdiction over Plaintiff’s 6 claims because the claim is moot. (ECF No. 5-1 at 18-19.) Defendant states Plaintiff’s claims 7 “(1) that the hotel check-in counter was ‘too high’ and (2) that he asked for but was not given an 8 ADA accessible room” are moot because the Hotel’s check-in counter is fully ADA compliant, 9 and the Hotel has ADA accessible rooms.3 (Id.) In Barajas, the court reasoned that the defendant 10 made a factual attack on the plaintiff’s subject matter jurisdiction because the defendant disputed 11 plaintiff’s allegations about the hotel in question being ADA compliant. 2021 WL 2711734, at 12 *4. The defendant alleged that since its hotel had ADA compliant rooms the plaintiff had no 13 standing to bring a claim. Id. Similarly here, Defendant’s contention is a factual attack on 14 subject matter jurisdiction. 15 In a motion to dismiss “‘a [j]urisdictional finding of genuinely disputed facts is 16 inappropriate when the jurisdictional issue and substantive issues are so intertwined that the 17 question of jurisdiction is dependent on the resolution of factual issues going to the merits of an 18 action.’” Hopson v. Plaza, No. 2:14-cv-02988-TLN-KJN, 2016 WL 1599477, at *2 (E.D. Cal. 19 Apr. 21, 2016) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). 20 “In such a case, the district court assumes the truth of allegations in a complaint . . . unless 21 controverted by undisputed facts in the record.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th 22 Cir. 1987). 23 Here, the jurisdictional issue and the substantive issue are intertwined because the 24

25 3 Defendant requests that the Court take Judicial Notice of photographs of the hotel website and references a declaration from its Hotel manager that was not attached to its motion to dismiss. 26 (ECF No. 5-2 at 2.) However, the Court declines to consider these documents at this time. 27 Johnson v. Garden Ct. Inn LLC, No. 21-cv-01546-HSG, 2021 WL 3209721, at *2 (N.D. Cal. Jul. 29, 2021) (reasoning a general manager’s declaration and defendant’s photos regarding its hotel’s 28 ADA compliance are self-serving and not offered by experts). 1 question of the Court’s subject matter jurisdiction is dependent on the fact of whether the Hotel’s 2 check-in counter is ADA compliant. Accordingly, the Court cannot resolve the disputed facts the 3 Defendant raised at the pleading stage. 4 Therefore, the Court DENIES Defendant’s Motion to Dismiss for lack of subject matter 5 jurisdiction under Rule 12(b)(1). 6 B. 12(b)(6) Motion 7 Defendant moves to dismiss Plaintiff’s complaint for failure to state a claim pursuant to 8 Rule 12(b)(6). (ECF No. 5 at 2.) 9 Title III of the ADA protects individuals from discrimination “on the basis of disability in 10 the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 11 accommodations of any place of public accommodation by any person who owns, leases (or 12 leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). For a Title III 13 claim to survive a motion to dismiss, a plaintiff must show that: “(1) [he] is disabled within the 14 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 15 public accommodation; and (3) the plaintiff was denied public accommodations by the defendant 16 because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). 17 Plaintiff has pleaded a prima facie case. Defendant does not dispute Plaintiff’s allegations 18 that pursuant to “all applicable California and United States laws” he is physically disabled and 19 “must use a wheelchair for mobility.” (ECF No. 1 at 2.) Nor does Defendant dispute Plaintiff’s 20 allegation Defendant owns, operates, and/or leases the Hotel and that the Hotel is “a public 21 accommodation as defined by applicable state and federal laws.” (Id.) At issue is whether 22 Plaintiff was denied public accommodation because of his disability. 23 Plaintiff alleges he encountered barriers related to his disability that “interfered with, if 24 not outright denied” his ability to use the Hotel’s accommodations. (Id.) Specifically, the Hotel’s 25 “check in counter was too high, which made it hard for Plaintiff to use.” (Id. at 3.) Defendant 26 disputes these allegations arguing the Hotel’s check in counter is fully ADA compliant. (ECF 27 No. 5-1 at 18.) However, these disputes are factual, and, in a Rule 12(b)(6) motion, the Court 28 must accept a plaintiff’s factual allegations in the complaint as true. Cruz, 405 U.S. at 322 1 (holding factual allegations of a complaint must be accepted as true). Defendant’s arguments are 2 “better suited for resolution when the record is more developed.” Brooke, 2020 WL 6149963, at 3 *7 (holding that defendant’s contention whether plaintiff was genuinely precluded from entering 4 lobby was factual, and the court must construe factual inferences from the complaint in plaintiff’s 5 favor). Thus, Plaintiff has alleged sufficient facts to support a Title III claim. 6 Therefore, the Court DENIES Defendant’s Motion to Dismiss, pursuant to Rule 12(b)(6), 7 for failure to state a claim upon which relief can be granted. 8 C. Supplemental Jurisdiction 9 Plaintiff’s remaining claims includes alleged violations of California Health and Safety 10 Code § 1955 and § 1959, and a claim of statutory damages under the Unruh Act. (ECF No. 1 at 11 6-8.) Defendant argues the Court should decline to exercise supplemental jurisdiction over 12 Plaintiff’s Unruh Act claims. (ECF No. 5-1 at 19.) Defendant argues Plaintiff is a serial litigant 13 and that declining to exercise supplemental jurisdiction over Plaintiff’s state law claims under 14 these circumstances “supports the values of judicial economy, convenience, fairness, and 15 comity.” (ECF No. 5-1 at 19). 16 The Court disagrees as it has “supplemental jurisdiction ‘over all other claims that are so 17 related to claims in the action within such original jurisdiction that they form part of the same 18 case or controversy.’” Vogel v. Winchell’s Donut Houses Operating Co., LP, 252 F. Supp. 3d 19 977, 985 (C.D. Cal. 2017) (quoting 28 U.S.C. § 1367(a)). 20 Here, the ADA claims and the state law claims “share a common nucleus of operative fact 21 and are part of the same case or controversy.” Id. This is because “[o]ther than the availability of 22 statutory damages under state law, the state and federal claims are identical.” Moore v. Dollar 23 Tree Stores Inc., 85 F. Supp. 3d 1176, 1194 (E.D. Cal. 2015). The burdens of proof and 24 standards of liability are the same for ADA claims and Unruh Act claims, and the Unruh Act 25 “specifically provides that a violation under the ADA also constitutes a violation of the Unruh 26 Act.” Id. (citing Cal. Civ. Code § 51(f)). Thus, the Court finds that the “state and federal claims 27 are so intertwined” that it would “best advance economy, convenience, fairness, and comity” to 28 exercise supplemental jurisdiction over Plaintiff's state law claims. Id. Therefore, the Court 1 | DENIES Defendant’s motion on this basis. 2 IV. CONCLUSION 3 For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss (ECF No. 4 | 5). Defendant is ordered to file an answer not later than twenty-one (21) days after the electronic 5 | filing date of this Order. 6 IT IS SO ORDERED. 7 | DATE: February 18, 2022 8 /) 9 “ □ thu

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