Rutherford v. Kelly

• Court: District Court, S.D. California
• Decided: February 9, 2021
• Docket: 3:20-cv-00293
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES RUTHERFORD, Case No.: 3:20-cv-00293-L-BGS

12 Plaintiff, ORDER DENYING DEFENDANT’S 13 v. MOTION TO DISMISS

14 LAWRENCE W. KELLY, et al., [ECF No. 8] 15 Defendants. 16 17 Pending before the Court is Defendant Michael K. Murphy’s (“Murphy”) motion 18 to dismiss Plaintiff’s complaint under Rule 12(b)(1) and (6) of the Federal Rules of Civil 19 Procedure. Plaintiff opposed the motion and Defendants replied. The Court decides the 20 matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). For 21 the reasons stated below, Defendants’ motion to dismiss is DENIED. 22 I. BACKGROUND 23 Plaintiff suffers from various disabilities and at times relies on mobility devices for 24 mobility including a wheelchair. He alleges that he twice visited O’Sullivan’s Irish Pub 25 of Carlsbad (“O’Sullivan’s”) and encountered several access barriers, including no ASA- 26 compliant disabled parking spaces, no disabled-accessible route connecting parking to the 27 patio, a 13% slope, lack of handrails at stairs or ramps, and lack of grab bars in the 28 restroom, all in violation of the Americans with Disabilities Act, 42 U.S.C. section 12101 1 et seq. (“ADA”) and its implementing regulations. Plaintiff alleges he has been deterred 2 from patronizing O’Sullivan’s due to these barriers. 3 Plaintiff filed a complaint against Murphy and Lawrence W. Kelly alleging they 4 own the property where O’Sullivan’s is located. Plaintiff asserts two causes of action: (1) 5 violation of the ADA; and (2) violation of California’s Unruh Civil Rights Act, Cal. Civ. 6 Code section 51 et seq. (“Unruh Act” or “Unruh”). He seeks damages and injunctive 7 relief to remedy the access barriers. The Court has jurisdiction over Plaintiff’s ADA 8 claim under 28 U.S.C. § 1331. 9 Murphy filed a motion to dismiss challenging Plaintiff’s constitutional standing to 10 assert his claims, and this Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367 11 over the Unruh Act claim. 12 II. DISCUSSION 13 A. Article III Standing 14 Murphy challenges Plaintiff’s Article III standing for purposes of injunctive relief 15 under the ADA. A federal court "may not decide a cause of action before resolving 16 whether the court has Article III jurisdiction." RK Ventures, Inc. v. City of Seattle, 307 17 F.3d 1045, 1056 n.6.1 Federal jurisdiction under Article III depends on the existence of a 18 case or controversy. SEC v. Med. Comm. for Human Rights, 404 U.S. 403, 407 (1972). 19 Standing is required to establish a case or controversy. RK Ventures, 307 F.3d at 1056 20 n.6. Accordingly, the Court first turns to Murphy's argument that Plaintiff has not alleged 21 Article III standing. 22 Article III “requires federal courts to satisfy themselves that the plaintiff has 23 alleged such a personal stake in the outcome of the controversy as to warrant his 24 invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 25 / / / / / 26 27 1 Unless otherwise noted, internal quotation marks, ellipses, brackets, citations and 28 1 493 (2009). Three elements constitute the “irreducible constitutional minimum” of 2 standing: 3 First, the plaintiff must have suffered an “injury in fact” . . .. Second, there must be a causal connection between the injury and the conduct complained 4 of . . .. Third, it must be likely, as opposed to merely speculative, that the 5 injury will be redressed by a favorable decision.

7 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Murphy contends that 8 Plaintiff has not sufficiently alleged these elements. 9 The elements of standing “must be supported at each stage of the litigation in the 10 same manner as any other essential elements of the case.” Civil Rights Educ. and 11 Enforcement Ctr. v. Hospitality Prop. Trust, 867 F.3d 1093, 1099 (9th Cir. 2017) 12 (quoting Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)). 13 Because this case is at the pleading stage, the Court applies the standard applicable to 14 Rule 12(b)(6) motions. 15 A motion under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. 16 Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted where the complaint 17 lacks a cognizable legal theory. Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 18 1035, 1041 (9th Cir. 2010). Alternatively, a complaint may be dismissed if it presents a 19 cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. 20 Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). A pleading must contain 21 “a short and plain statement of the grounds for the court’s jurisdiction . . ..” Fed. R. Civ. 22 P. 8(a)(1). Plaintiff’s allegations must provide “fair notice” of the claim being asserted 23 and the “grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 24 555 (2007). 25 In reviewing a Rule 12(b)(6) motion, the Court must assume the truth of all factual 26 allegations and construe them most favorably to the nonmoving party. Huynh v. Chase 27 Manhattan Bank, 465 F.3d 992, 997, 999 n.3 (9th Cir. 2006). However, legal 28 conclusions need not be taken as true merely because they are couched as factual 1 allegations. Twombly, 550 U.S. at 555. Similarly, “conclusory allegations of law and 2 unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. Fed. 3 Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998). 4 Article III “requires that the party seeking review be himself among the injured.” 5 Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972). A plaintiff has sustained an injury 6 in fact only if he can establish “an invasion of a legally protected interest which is (a) 7 concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” 8 Lujan, 504 U.S. at 560. 9 Where, as here, a party seeks injunctive relief, “past exposure to illegal conduct 10 does not in itself show a present case or controversy.” Los Angeles v. Lyons, 461 U.S. 11 95, 102 (1983). Instead, the plaintiff must allege “continuing, present adverse effects” 12 stemming from the defendant's actions. Id. A plaintiff experiences continuing adverse 13 effects where a defendant's failure to comply with the ADA deters him from making use 14 of the defendant's facility. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 953 (9th 15 Cir. 2011) (en banc). This is referred to as the “deterrent effect doctrine.” Id. at 949–50. 16 [W]hen a plaintiff who is disabled within the meaning of the ADA has actual knowledge of illegal barriers at a public accommodation to which he or she 17 desires access, that plaintiff need not engage in the “futile gesture” of 18 attempting to gain access in order to show actual injury.

20 Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002). “So long as 21 the discriminatory conditions continue, and so long as a plaintiff is aware of them and 22 remains deterred, the injury under the ADA continues.” Id. at 1137. 23 Courts take a broad view of constitutional standing in civil rights cases, especially 24 where, as under the ADA, private enforcement suits “are the primary method of obtaining 25 compliance with the Act.” Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972); 26 see also 42 U.S.C. § 12188(a) (providing private right of action for injunctive relief 27 against public accommodations that violate the ADA). 28 / / / / / 1 Where a plaintiff has not actually visited a place of public accommodation because 2 she was deterred by noncompliance with the ADA but intends to visit when non- 3 compliance is cured, the allegations are sufficient to allege an injury-in-fact for purposes 4 of Article III standing, even if the plaintiff did not personally encounter any access 5 barriers and the only reason she is motivated to visit is to test for ADA compliance. See 6 Civil Rights Educ., 867 F.3d at 1099; Pickern, 293 F.3d 1136-37 (“[O]nce a plaintiff has 7 actually become aware of discriminatory conditions existing at a public accommodation, 8 and is thereby deterred from visiting or patronizing that accommodation, the plaintiff has 9 suffered an injury.” . The injury continues so long as equivalent access is denied.”). 10 Further, a plaintiff’s status as ADA tester does not deprive him or her of standing. Civil 11 Rights Educ., 867 F.3d at 1102. 12 Here, Plaintiff alleged he went to O’Suillvan’s to purchase a drink and confirm that 13 it was accessible to persons with disabilities but encountered access barriers. (Compl. 14 (doc. no. 1) at 3-4.) In this regard, he “experienced” a “difficulty” and “is being deterred 15 from patronizing” O’Sullivan’s but intends to return “for the dual purpose of availing 16 himself of the goods and services offered to the public and to ensure [it] ceases evading 17 its responsibilities under federal and state law.” (Id. at 5.) These allegations are 18 sufficient to allege injury-in-fact and causation elements of Article III standing for 19 purposes of the ADA. 20 Murphy contends Plaintiff lacks standing because he failed to allege a likelihood 21 that the requested injunction enjoining Defendants from further violations of the ADA 22 would provide meaningful relief. (Mot. (doc. no. 8-1) at 7; cf. Compl. at 9.) The Court 23 disagrees because Plaintiff alleged he is likely to visit O’Sullivan’s again. First, he 24 alleged he actually went to O’Sullivan’s before filing this action. “[P]ast actions may 25 constitute evidence bearing on whether there is a real and immediate threat of repeated 26 injury.” Civil Rights Educ., 867 F.3d at 1100. Further, “plans for future visits and status 27 as an ‘ADA tester who has filed many similar lawsuits’” are also relevant. Plaintiff 28 alleged, “Upon being informed that [O’Sullivan’s] has become fully and equally 1 accessible, he will return within 45 days as a ‘tester’ for the purpose of confirming . . . 2 accessibility.” (Compl. at 5.) Murphy admits that Plaintiff has filed copious ADA 3 lawsuits against various businesses. (Reply (doc. no. 10) at 2.) Finally, Plaintiff requests 4 an injunction enjoining Defendants from further ADA violations. (Compl. at 9.) This is 5 sufficient to show that, if Plaintiff prevails and receives the requested relief, his injury 6 will be redressed. See Civil Rights Educ., 867 F.3d at 1102. 7 For the foregoing reasons, Plaintiff has sufficiently alleged Article III standing for 8 purposes of the ADA. 9 B. Supplemental Jurisdiction over the Unruh Claim 10 “[C]onsiderations of judicial economy, convenience and fairness to litigants 11 support a wide-ranging power in the federal courts to decide state-law claims in cases that 12 also present federal questions.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 13 (1988) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)). 14 Because the Court has federal subject matter jurisdiction over the ADA claim pursuant to 15 28 U.S.C. § 1331, it “shall have supplemental jurisdiction over all other claims that are so 16 related to claims in the action within such original jurisdiction that they form part of the 17 same case or controversy under Article III of the United States Constitution.” 28 U.S.C. 18 § 1367(a). 19 A state law claim is part of the same case or controversy when it shares a common 20 nucleus of operative facts with the federal claims and the state and federal claims would 21 normally be resolved in the same judicial proceeding. Trustees of the Constr. Indus. and 22 Laborers Health and Welfare Trust v. Desert Valley Landscape & Maint., Inc., 333 F.3d 23 923, 925 (9th Cir. 2003). Plaintiff’s State law Unruh claim shares the same nucleus of 24 operative facts with his ADA claim; accordingly, the Court has supplemental jurisdiction. 25 Defendant requests the Court to decline to exercise supplemental jurisdiction 26 arguing that the Unruh claim substantially predominates over the ADA claim and 27 exceptional circumstances warrant declining jurisdiction. 28 / / / / / 1 The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— 2

3 [¶] (2) the claim substantially predominates over the claim or claims over which 4 the district court has original jurisdiction, 5 [¶] or (4) in exceptional circumstances, there are other compelling reasons for 6 declining jurisdiction. 7 8 28 U.S.C. § 1367(c). “[U]nless a court properly invokes a section 1367(c) category in 9 exercising its discretion to decline to entertain pendent claims, supplemental jurisdiction 10 must be asserted.” Executive Software N. Am, Inc. v. U.S. Dist. Ct. (Page), 24 F.3d 1545, 11 1556 (9th Cir. 1994), rev’d on other grounds (emph. added). 12 Murphy contends that the Unruh claim substantially predominates the ADA claim 13 for two reasons. First, while both statutes provide for injunctive relief, only the Unruh 14 Act also provides for damages. See Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) 15 (ADA); Botosan v. Paul McNally Realty, 216 F.3d 827, 834-35 (9th Cir. 2000) (Unruh 16 Act); Cal. Civ. Code § 52(a). If Plaintiff proves all violations he alleges in his complaint, 17 he could be entitled to recover a minimum of $36,000 in damages under the Unruh Act. 18 (See Compl. at 4, 9.) Second, Murphy argues that Plaintiff “places intentionality at the 19 heart of his claims for relief.” (Mtn at 4.) In this regard, Plaintiff alleges that 20 Defendants’ violations were knowing because they “have been previously put on notice 21 that [O’Sullivan’s] is inaccessible to Plaintiff.” (Compl. at 8.) 22 The Court is not persuaded by Murphy’s arguments. Murphy cites no binding 23 authority for the proposition that Unruh claims predominate ADA claims because of the 24 potential to recover substantial damages. (See Mtn. at 4-6; Reply at 3-5.) ADA 25 violations form the basis for both of Plaintiff’s claims. (See Compl. at 4, 8.) 26 Accordingly, Plaintiff will have to prove ADA violations to prevail on either of his 27 claims. Although Plaintiff is seeking damages under the Unruh Act, he does not have to 28 prove actual damages to recover statutory damages. See Botosan, 216 F.3d at 834-35. 1 Murphy further argues that the issue of intent is at the heart of Plaintiff’s Unruh claim, 2 suggesting that proof of intent is necessary to recover under the Unruh Act but not the 3 ADA. Although Plaintiff alleged that Defendants were on prior notice of the violations, 4 proof of intent is not required for either claim in this case. See Lentini v. Cal. Ctr for the 5 Arts, 370 F.3d 837, 846 (9th Cir. 2004) (ADA); Munson v. Del Taco, Inc., 46 Cal.4th 6 661, 670-73 (2009) (Unruh claim based on an ADA violation). The Court is not 7 persuaded that the allegation of prior notice renders the Unruh claim predominant so as to 8 justify burdening two courts with the same dispute and the risk of inconsistent rulings. 9 See Carnegie-Mellon Univ., 484 U.S. at 351 (“values of economy, convenience, fairness 10 and comity” (“Gibbs values”)). 11 Alternatively, Murphy argues the Court should decline to exercise supplemental 12 jurisdiction pursuant of 28 U.S.C. § 1367(c)(4), a “catchall” provision, Executive 13 Software, 24 F.3d at 1557, which applies to “exceptional circumstances” presenting 14 “other compelling reasons.” Under this provision, the grounds for declining jurisdiction 15 are “extended beyond the circumstances identified in subsections (c)(1)-(3) only if the 16 circumstances are quite unusual.” Id. at 1558. Accordingly, “declining jurisdiction 17 outside subsections (c)(1)-(3) should be the exception rather than the rule.” Id. To 18 properly decline supplemental jurisdiction under subsection (c)(4), a court “must 19 articulate why the circumstances of the case are exceptional in addition to inquiring 20 whether the balance of the Gibbs values provide compelling reasons for declining 21 jurisdiction in such circumstances.” Id. 22 Murphy argues this case presents exceptional circumstances because California 23 legislature “adopted more stringent pleading requirements to deter baseless claims and 24 vexatious litigation.” (Mtn at 5 (citing Cal. Civ. Proc. Code § 435.50).) Although 25 Murphy contends that Plaintiff is a frequent filer, having filed 100 cases in the past three 26 years in this District (Mtn at 5), he does not claim that Plaintiff is a vexatious litigant or 27 that his claims are baseless. Like state courts, federal courts have a process for curbing 28 vexatious litigation. Murphy has not availed himself of this process. Further, Murphy 1 || contends that Plaintiff is forum shopping. Plaintiff had two fora available to file this 2 ||action. Other than pointing to procedural advantages of the federal forum, Murphy does 3 contend that Plaintiff’s choice was unlawful or otherwise inappropriate. Murphy 4 ||cites no binding authority (see Mtn at 5-6), and the Court is aware of none, for the 5 || proposition that these circumstances are exceptional under subsection (c)(4) so as to 6 || justify declining supplemental jurisdiction. Finally, Murphy’s contention that retaining 7 || jurisdiction over the Unruh claim would be contrary to the Gibbs value of comity (Mtn at 8 is equally unsupported. Based on the foregoing, the Court does not find that this case 9 || presents exceptional circumstances or compelling reasons sufficient to justify burdening 10 courts with the same dispute and the risk of inconsistent rulings. 11 For the foregoing reasons, Defendant Michael K. Murphy’s motion to dismiss is 12 || denied. 13 IT IS SO ORDERED. 14 15 Dated: February 9, 2021 pee ep? 17 H . James Lorenz, ig United States District Judge

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