1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA SANCHEZ, an individual, Case No.: 20-cv-01621-H-WVG Plaintiff, 12 ORDER GRANTING MOTION TO v. 13 DISMISS STATE LAW CLAIM VENTURE PLUS INC., a California 14 Corporation doing business as ARCO on [Doc. No. 4.] 54th; and DOES 1-10, inclusive, 15 Defendants. 16
17 On January 20, 2021, Defendant Venture Plus Inc. filed a motion to dismiss the state 18 law claim in Plaintiff Maria Sanchez’s complaint pursuant to Federal Rule of Civil 19 Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. No. 4.) On February 3, 20 2021, Plaintiff filed a response in opposition to Defendant’s motion to dismiss. (Doc. No. 21 9.) A hearing on Defendant’s motion to dismiss is currently scheduled for February 22, 22 2021 at 10:30 a.m. The Court, pursuant to its discretion under Civil Local Rule 7.1(d)(1), 23 determines the matter is appropriate for resolution without oral argument, submits the 24 motion on the parties’ papers, and vacates the hearing. For the reasons below, the Court 25 grants Defendant’s motion to dismiss Plaintiff’s state law claim for lack of subject matter 26 jurisdiction. 27 /// 28 1 BACKGROUND 2 The following facts are taken from the allegations in Plaintiff’s complaint. Plaintiff 3 Maria Sanchez is mobility impaired and relies upon mobility devices to ambulate. (Doc. 4 No. 1, Compl. ¶¶ 1, 8.) Plaintiff alleges that as a result of her disability, she requires ADA- 5 complaint access to businesses to utilize their goods, services, and facilities. (Id. ¶ 9.) 6 Defendant is a California corporation that operates a gasoline service station in San Diego, 7 California. (Id. ¶¶ 11-16.) 8 In August 2020, Plaintiff visited Defendant’s gas station with the intention to avail 9 herself of the facilities’ goods and services, but she encountered numerous barriers. (Id. 10 ¶¶ 21, 27.) Specifically, Plaintiff alleges: (1) the curb ramps and hazardous vehicle ways 11 did not have a detectable warning surface from the sidewalk to the parking lot as required 12 by the ADA Accessibility Guidelines; (2) the accessible parking signage did not have the 13 proper signage with the appropriate information as required by the ADA Accessibility 14 Guidelines; (3) the cross slope and the running slope in the accessible parking stall and the 15 access aisle exceeded 2%; and (4) defendant failed to provide wheelchair accessible paths 16 of travel leading to the entrance of the facility in conformance with the ADA Standards. 17 (Id. ¶¶ 23, 25-26.) Plaintiff alleges that these barriers denied her full and equal access to 18 the facility and caused her difficulty, discomfort, and embarrassment. (Id. ¶ 28.) Plaintiff 19 further alleges that she plans to return and patronize Defendant’s business, but she is 20 deterred from doing so due to her knowledge that these barriers exist. (Id. ¶¶ 29, 31.) 21 On August 20, 2020, Plaintiff filed a complaint against Defendant, alleging claims 22 for: (1) violations of the American With Disabilities Act, 42 U.S.C. § 12101 et seq.; and 23 (2) violations of the Unruh Civil Rights Act, California Civil Code § 51 et seq. (Doc. No. 24 1, Compl. ¶¶ 33-48.) By the present motion, Defendant moves pursuant to Federal Rule of 25 Civil Procedure 12(b)(1) to dismiss Plaintiff’s Unruh Act claim for lack of subject matter 26 jurisdiction. (Doc. No. 4-1 at 3.) 27 /// 28 /// 1 DISCUSSION 2 I. Legal Standards for a Rule 12(b)(1) Motion to Dismiss 3 Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims for 4 lack of subject matter jurisdiction. “Rule 12(b)(1) jurisdictional attacks can be either facial 5 or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the 6 challenger asserts that the allegations contained in a complaint are insufficient on their face 7 to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the 8 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” 9 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 10 Here, Defendant’s Rule 12(b)(1) motion focuses solely on the allegations in the 11 Plaintiff’s complaint, and, thus, Defendant makes a facial attack under Rule 12(b)(1). (See 12 Doc. No. 4-1 at 3-8.) “In deciding a Rule 12(b)(1) facial attack motion, a court must 13 assume the facts alleged in the complaint to be true and construe them in the light most 14 favorable to the nonmoving party.” Strojnik v. Kapalua Land Co. Ltd, 379 F. Supp. 3d 15 1078, 1082 (D. Haw. 2019) (citing Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 16 1139 (9th Cir. 2003)); see Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa 17 Cty., 343 F.3d 1036, 1039 (9th Cir. 2003); Rimac v. Duncan, 319 F. App’x 535, 536 (9th 18 Cir. 2009). 19 II. Analysis 20 In the complaint, Plaintiff alleges: (1) a claim under federal law for violations of the 21 ADA; and (2) a claim under California state law for violations of the Unruh Act, California 22 Civil Code § 51 et seq. (Doc. No. 1, Compl. ¶¶ 33-48.) Because Plaintiff’s ADA claim 23 presents a federal question, the Court has subject matter jurisdiction over that claim and 24 the action pursuant to 28 U.S.C. § 1331. See Grable & Sons Metal Prod., Inc. v. Darue 25 Eng’g & Mfg., 545 U.S. 308, 312 (2005). 26 Defendant moves to dismiss Plaintiff’s Unruh Act claim pursuant to Rule 12(b)(1) 27 for lack of subject matter jurisdiction. (Doc. No. 4-1 at 3-8.) In response, Plaintiff asserts 28 that the Court has subject matter jurisdiction over her Unruh Act claim, because the Court 1 should exercise supplemental jurisdiction over the claim pursuant to 28 U.S.C. § 1367. 2 (Doc. No. 9 at 5-8.) 3 Under Section 1367, federal courts may exercise supplemental jurisdiction over 4 “claims that are so related to claims in the action within such original jurisdiction that they 5 form part of the same case or controversy under Article III of the United States 6 Constitution.” 28 U.S.C. § 1367(a). However, a district court may decline to exercise 7 supplemental jurisdiction if “(1) the claim raises a novel or complex issue of State law, (2) 8 the claim substantially predominates over the claim or claims over which the district court 9 has original jurisdiction, (3) the district court has dismissed all claims over which it has 10 original jurisdiction, or (4) in exceptional circumstances, there are other compelling 11 reasons for declining jurisdiction.” Id. § 1367(c); see Acri v. Varian Assocs., Inc., 114 12 F.3d 999, 1001 (9th Cir. 1997) (en banc) (““[A] federal district court with power to hear 13 state law claims has discretion to keep, or decline to keep, them under the conditions set 14 out in § 1367(c).”). “[A] district court can decline jurisdiction under any one of four 15 provisions” set forth in section 1367(c). San Pedro Hotel Co. v. City of Los Angeles, 159 16 F.3d 470, 478 (9th Cir. 1998).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA SANCHEZ, an individual, Case No.: 20-cv-01621-H-WVG Plaintiff, 12 ORDER GRANTING MOTION TO v. 13 DISMISS STATE LAW CLAIM VENTURE PLUS INC., a California 14 Corporation doing business as ARCO on [Doc. No. 4.] 54th; and DOES 1-10, inclusive, 15 Defendants. 16
17 On January 20, 2021, Defendant Venture Plus Inc. filed a motion to dismiss the state 18 law claim in Plaintiff Maria Sanchez’s complaint pursuant to Federal Rule of Civil 19 Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. No. 4.) On February 3, 20 2021, Plaintiff filed a response in opposition to Defendant’s motion to dismiss. (Doc. No. 21 9.) A hearing on Defendant’s motion to dismiss is currently scheduled for February 22, 22 2021 at 10:30 a.m. The Court, pursuant to its discretion under Civil Local Rule 7.1(d)(1), 23 determines the matter is appropriate for resolution without oral argument, submits the 24 motion on the parties’ papers, and vacates the hearing. For the reasons below, the Court 25 grants Defendant’s motion to dismiss Plaintiff’s state law claim for lack of subject matter 26 jurisdiction. 27 /// 28 1 BACKGROUND 2 The following facts are taken from the allegations in Plaintiff’s complaint. Plaintiff 3 Maria Sanchez is mobility impaired and relies upon mobility devices to ambulate. (Doc. 4 No. 1, Compl. ¶¶ 1, 8.) Plaintiff alleges that as a result of her disability, she requires ADA- 5 complaint access to businesses to utilize their goods, services, and facilities. (Id. ¶ 9.) 6 Defendant is a California corporation that operates a gasoline service station in San Diego, 7 California. (Id. ¶¶ 11-16.) 8 In August 2020, Plaintiff visited Defendant’s gas station with the intention to avail 9 herself of the facilities’ goods and services, but she encountered numerous barriers. (Id. 10 ¶¶ 21, 27.) Specifically, Plaintiff alleges: (1) the curb ramps and hazardous vehicle ways 11 did not have a detectable warning surface from the sidewalk to the parking lot as required 12 by the ADA Accessibility Guidelines; (2) the accessible parking signage did not have the 13 proper signage with the appropriate information as required by the ADA Accessibility 14 Guidelines; (3) the cross slope and the running slope in the accessible parking stall and the 15 access aisle exceeded 2%; and (4) defendant failed to provide wheelchair accessible paths 16 of travel leading to the entrance of the facility in conformance with the ADA Standards. 17 (Id. ¶¶ 23, 25-26.) Plaintiff alleges that these barriers denied her full and equal access to 18 the facility and caused her difficulty, discomfort, and embarrassment. (Id. ¶ 28.) Plaintiff 19 further alleges that she plans to return and patronize Defendant’s business, but she is 20 deterred from doing so due to her knowledge that these barriers exist. (Id. ¶¶ 29, 31.) 21 On August 20, 2020, Plaintiff filed a complaint against Defendant, alleging claims 22 for: (1) violations of the American With Disabilities Act, 42 U.S.C. § 12101 et seq.; and 23 (2) violations of the Unruh Civil Rights Act, California Civil Code § 51 et seq. (Doc. No. 24 1, Compl. ¶¶ 33-48.) By the present motion, Defendant moves pursuant to Federal Rule of 25 Civil Procedure 12(b)(1) to dismiss Plaintiff’s Unruh Act claim for lack of subject matter 26 jurisdiction. (Doc. No. 4-1 at 3.) 27 /// 28 /// 1 DISCUSSION 2 I. Legal Standards for a Rule 12(b)(1) Motion to Dismiss 3 Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims for 4 lack of subject matter jurisdiction. “Rule 12(b)(1) jurisdictional attacks can be either facial 5 or factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the 6 challenger asserts that the allegations contained in a complaint are insufficient on their face 7 to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the 8 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” 9 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 10 Here, Defendant’s Rule 12(b)(1) motion focuses solely on the allegations in the 11 Plaintiff’s complaint, and, thus, Defendant makes a facial attack under Rule 12(b)(1). (See 12 Doc. No. 4-1 at 3-8.) “In deciding a Rule 12(b)(1) facial attack motion, a court must 13 assume the facts alleged in the complaint to be true and construe them in the light most 14 favorable to the nonmoving party.” Strojnik v. Kapalua Land Co. Ltd, 379 F. Supp. 3d 15 1078, 1082 (D. Haw. 2019) (citing Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 16 1139 (9th Cir. 2003)); see Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa 17 Cty., 343 F.3d 1036, 1039 (9th Cir. 2003); Rimac v. Duncan, 319 F. App’x 535, 536 (9th 18 Cir. 2009). 19 II. Analysis 20 In the complaint, Plaintiff alleges: (1) a claim under federal law for violations of the 21 ADA; and (2) a claim under California state law for violations of the Unruh Act, California 22 Civil Code § 51 et seq. (Doc. No. 1, Compl. ¶¶ 33-48.) Because Plaintiff’s ADA claim 23 presents a federal question, the Court has subject matter jurisdiction over that claim and 24 the action pursuant to 28 U.S.C. § 1331. See Grable & Sons Metal Prod., Inc. v. Darue 25 Eng’g & Mfg., 545 U.S. 308, 312 (2005). 26 Defendant moves to dismiss Plaintiff’s Unruh Act claim pursuant to Rule 12(b)(1) 27 for lack of subject matter jurisdiction. (Doc. No. 4-1 at 3-8.) In response, Plaintiff asserts 28 that the Court has subject matter jurisdiction over her Unruh Act claim, because the Court 1 should exercise supplemental jurisdiction over the claim pursuant to 28 U.S.C. § 1367. 2 (Doc. No. 9 at 5-8.) 3 Under Section 1367, federal courts may exercise supplemental jurisdiction over 4 “claims that are so related to claims in the action within such original jurisdiction that they 5 form part of the same case or controversy under Article III of the United States 6 Constitution.” 28 U.S.C. § 1367(a). However, a district court may decline to exercise 7 supplemental jurisdiction if “(1) the claim raises a novel or complex issue of State law, (2) 8 the claim substantially predominates over the claim or claims over which the district court 9 has original jurisdiction, (3) the district court has dismissed all claims over which it has 10 original jurisdiction, or (4) in exceptional circumstances, there are other compelling 11 reasons for declining jurisdiction.” Id. § 1367(c); see Acri v. Varian Assocs., Inc., 114 12 F.3d 999, 1001 (9th Cir. 1997) (en banc) (““[A] federal district court with power to hear 13 state law claims has discretion to keep, or decline to keep, them under the conditions set 14 out in § 1367(c).”). “[A] district court can decline jurisdiction under any one of four 15 provisions” set forth in section 1367(c). San Pedro Hotel Co. v. City of Los Angeles, 159 16 F.3d 470, 478 (9th Cir. 1998). 17 In exercising its discretion to retain or decline jurisdiction, a district court may 18 consider the “circumstances of the particular case, the nature of the state law claims, the 19 character of the governing state law, and the relationship between the state and federal 20 claims.” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997). In addition, 21 a district court’s exercise of direction is informed by the values “of economy, convenience, 22 fairness, and comity” outlined in United Mine Workers of Am. v. Gibbs, 383 U.S. 715 23 (1966). Acri, 114 F.3d at 1001 (citations omitted). 24 Here, Plaintiff’s Unruh Act claim substantially predominates over her ADA claim. 25 Both entitle her to injunctive relief; however, only the Unruh Act allows her to recover 26 statutory damages. “Unlike the ADA, the Unruh Act permits the recovery of monetary 27 damages, in the form of actual and treble damages or statutory damages of $4,000 per 28 violation.” Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1011 (C.D. Cal. 2014) (citing 1 Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007); Cal Civ. Code 52(a)). Thus, 2 in light of the remedies provided under the federal and state laws, the state law claim[] 3 predominate[s].” Langer v. Honey Baked Ham, Inc., No. 3:20-CV-1627-BEN-AGS, 2020 4 WL 6545992, at *8 (S.D. Cal. Nov. 6, 2020); see Brooke v. CWI 2 La Jolla Hotel LP, No. 5 19-CV-2433-CAB-MDD, 2019 WL 6918005, at *1 (S.D. Cal. Dec. 19, 2019) (“[T]he state 6 claim and the issues related thereto substantially predominate over the ADA claim, which 7 appears to be a secondary claim included to justify filing the complaint in this Court, rather 8 than a necessary (let alone predominant) claim in this lawsuit.”); Schutza v. Cuddeback, 9 262 F. Supp. 3d 1025, 1030 (S.D. Cal. 2017) (“[T]he Court finds that Plaintiff’s state law 10 claim under the Unruh Act substantially predominates over his federal claim under the 11 ADA.”); see also Gibbs, 383 U.S. at 726-27 (“[I]f it appears that the state issues 12 substantially predominate, whether in terms of proof, of the scope of the issues raised, or 13 of the comprehensiveness of the remedy sought, the state claims may be dismissed without 14 prejudice and left for resolution to state tribunals.”). 15 Also, compelling interests in comity and deterring forum shopping support declining 16 jurisdiction over Plaintiff’s Unruh Act claim. “California has a strong interest in protecting 17 its citizens and businesses from abusive litigation and also in preventing its own laws from 18 being misused for unjust purposes.” Brooke, 2019 WL 6918005, at *2. In light of this, the 19 Unruh Act requires high-frequency litigants, such as Plaintiff,1 to meet heightened pleading 20 21 22 1 California imposes heightened pleading requirements for disability-discrimination lawsuits brought by “high-frequency litigants,” defined as, inter alia, “[a] plaintiff who has filed 10 or more 23 complaints alleging a construction-related accessibility violation within the 12-month period immediately 24 preceding the filing of the current complaint alleging a construction-related accessibility violation.” See Cal. Civ. Proc. Code §§ 425.50(a)(4)(A), 425.55(b)(1). The Court takes judicial notice of the fact that 25 Plaintiff has filed six disability discrimination cases in the Southern District of California and at least five disability discrimination cases in the Superior Court of California, County of San Diego in the past year. 26 (See Doc. No. 4-2.) See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.2006) (“We may take judicial notice of court filings and other matters of public record.”); see, e.g., Roberson v. 27 City of Los Angeles, 220 F. App’x 522, 523 (9th Cir. 2007) (taking judicial notice of a state court docket 28 sheet). Thus, Plaintiff likely qualifies as a high-frequency litigant for the purposes of California’s Unruh 1 requirements. Cal. Civ. Proc. Code § 425.50; see Schutza, 262 F. Supp. 3d at 1030. Thus, 2 “it would be improper to allow Plaintiff to use the federal court system as a loophole to 3 evade California’s pleading requirements.” Rutherford v. Ara Lebanese Grill, No. 18-CV- 4 01497-AJB-WVG, 2019 WL 1057919, at *5 (S.D. Cal. Mar. 6, 2019); see Schutza, 262 F. 5 Supp. 3d at 1031 (“It is unclear what advantage—other than avoiding state-imposed 6 pleading requirements—Plaintiff gains by being in federal court since his sole remedy 7 under the ADA is injunctive relief, which is also available under the Unruh Act.”); Schutza 8 v. Enniss Family Realty I LLC, No. 20-CV-0298 W (JBL), 2020 WL 3316969, at *3 (S.D. 9 Cal. June 18, 2020) (“Allowing Plaintiff to bootstrap his Unruh Act claim onto an ADA 10 claim for the sole purpose of avoiding California’s procedural rules would allow Plaintiff 11 the enjoyment of those parts of California law that benefit him while disallowing the parts 12 purposefully enacted to protect Defendants.”); see also Org. for Advancement of Minorities 13 with Disabilities v. Brick Oven Rest., 406 F. Supp. 2d 1120, 1132 (S.D. Cal. 2005) 14 (“Because a legitimate function of the federal courts is to discourage forum shopping and 15 California courts should interpret California law . . . compelling reasons exist to decline 16 supplemental jurisdiction over plaintiff’s state law claims.”). 17 In sum, the Court declines to exercise supplemental jurisdiction over Plaintiff’s 18 Unruh Act claim because it substantially predominates over her federal claim under the 19 ADA and exceptional circumstances favor dismissal, including the Court’s interests in 20 comity and discouraging forum-shopping. See Langer, 2020 WL 6545992, at *7 21 (collecting cases and noting “[r]ecently, almost every district judge in the Southern District 22 has declined to exercise supplemental jurisdiction over supplemental state law claims in 23 similar cases alleging violations of the ADA and UCRA”); Marquez v. KBMS Hosp. Corp., 24 No. SACV2001168CJCKES, __ F. Supp. 3d __, 2020 WL 6594995, at *5 (C.D. Cal. Oct. 25 5, 2020). But see Castillo-Antonio v. Hernandez, No. 19-CV-00672-JCS, 2019 WL 26 27 28 subject to the heightened pleading requirements of California Code of Civil Procedure § 425.50. (See 1 || 2716289, at *4—9 (N.D. Cal. June 28, 2019). As such, the Court grants Defendant’s motion 2 ||to dismiss Plaintiff's Unruh Act claim. 3 CONCLUSION 4 For the reasons above, the Court grants Defendant’s motion to dismiss Plaintiffs 5 |}Unruh Act claim for lack of subject matter jurisdiction. The Court declines to exercise 6 ||supplemental jurisdiction over Plaintiff's Unruh Act claim, and the Court dismisses the 7 claim from the action without prejudice. See, e.g., Molski v. Foster Freeze Paso Robles, 8 ||267 F. App’x 631, 633 (9th Cir. 2008) (noting that although a court may decline to exercise 9 || supplemental jurisdiction over state law claims, when it does, it must dismiss those claims 10 || without prejudice). The action will proceed on Plaintiff's remaining claim for violations 11 the ADA. Defendant must a file an answer to Plaintiff's complaint within 30 days of 12 || the date this order is filed. 13 IT IS SO ORDERED. 14 || DATED: February 16, 2021 | 15 MARILYN ¥. HUFF Distri ge 16 UNITED STATES DISTRICT COURT 17 18 19 20 21 22 23 24 25 26 27 28