1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 BRIAN WHITAKER, 7 Case No. 19-cv-07183-SK Plaintiff, 8 v. ORDER GRANTING MOTION TO 9 DISMISS AND DENYING MOTION TO KRIKOR ARAM OHANESSIAN, et al., DECLINE SUPPLEMENTAL 10 JURISDICTION Defendants. 11 Regarding Docket No. 11
12 This matter comes before the Court upon consideration of the motion to dismiss filed by 13 Defendants Krikor Aram Ohanessian, Jennifer Anne Monahan Ohanessian, and C&F Restaurant 14 (collectively referred to as “Defendants”). Having carefully considered the parties’ papers, 15 relevant legal authority, and the record in the case, and having had the benefit of oral argument, 16 the Court hereby GRANTS IN PART AND DENIES IN PART Defendants’ motion for the 17 reasons set forth below. 18 BACKGROUND 19 Plaintiff Brian Whitaker (“Plaintiff”) alleges that in September 2019, he went to the 20 restaurant China Fun Express located at 211 Kearny Street in San Francisco, California, which is 21 owned by Defendants. (Dkt. No. 1, ¶¶ 2-7, 12.) Plaintiff further alleges that he suffers from a C-4 22 spinal cord injury, is a quadriplegic, and uses a wheelchair for mobility. (Id., ¶ 1.) He states that 23 on the date of his visit, Defendants “failed to provide accessible dining surfaces.” (Id., ¶ 14.) 24 Plaintiff does not allege facts to explain how the dining surfaces were inaccessible. Plaintiff 25 brings a claim for injunctive relief under the Americans with Disabilities Act (“ADA”) and a 26 claim for damages under the California Unruh Act, California Civil Code Section 51, et seq. 27 /// 1 ANALYSIS 2 A. Applicable Legal Standard on Motion to Dismiss. 3 A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 4 pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under 5 Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to 6 the non-moving party and takes as true all material allegations in the complaint. Sanders v. 7 Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule 8 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 9 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 10 will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 11 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to 12 relief that is plausible on its face.” Id. at 570. 13 “The plausibility standard is not akin to a probability requirement, but it asks for more than 14 a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that 15 are merely consistent with a defendant’s liability, it stops short of the line between possibility and 16 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 17 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to 18 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g. 19 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N. 20 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 21 B. Defendants’ Motion to Dismiss. 22 Defendant moves to dismiss Plaintiff’s claims on the ground that Plaintiff fails to allege 23 facts sufficient to state a claim under the ADA or the Unruh Act. Namely, Plaintiff alleges the 24 legal conclusion that Defendants failed to provide accessible dining surfaces but fails to allege any 25 facts which, if true, would demonstrate this legal conclusion. The Court agrees. Plaintiff fails to 26 allege where the purported barrier is located, in what manner the surface is inaccessible, and how 27 Plaintiff was denied full and complete access to the restaurant’s services. Cf. Whitaker v. Reeder, 1 accessible dining tables was insufficient to establish standing because he did not “allege[] what the 2 barrier was (i.e., what was wrong with the table) and how Plaintiff’s disability was affected by the 3 barrier (i.e., how Plaintiff personally suffered).”). Therefore, the Court GRANTS Defendants’ 4 motion to dismiss with leave to amend. 5 C. Defendants’ Alternative Motion to Decline Supplemental Jurisdiction over Unruh Act Claim. 6 Alternatively, Defendants move the Court to decline supplemental jurisdiction pursuant to 7 28 U.S.C. § 1367 over Plaintiff’s state-law claim under the Unruh Act. Although the Court is 8 granting Defendants’ motion to dismiss, the Court will address this alternative argument to 9 provide guidance if Plaintiff elects to file an amended complaint. 10 28 U.S.C. § 1367(a) provides that: 11 in any civil action of which the district courts have original 12 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within 13 such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. 14 State-law claims form part of the same case or controversy as federal claims “when they derive 15 from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected 16 to try them in one judicial proceeding.” Kuba v. 1-A Agr. Ass’n, 387 F.3d 850, 855-56 (9th Cir. 17 2004) (quoting Trs. of the Constr. Indus. & Laborers Health & Welfare v. Desert Valley 18 Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir.2003)). Here, Plaintiff’s claims under the 19 ADA and the Unruh Act derive from the same common nucleus of operative facts – Plaintiff’s 20 visit to the restaurant and the allegation that the dining surfaces were inaccessible. Therefore, the 21 Court shall exercise supplemental jurisdiction unless there is an applicable exception under 22 Section 1367(c). See Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1028 (S.D. Cal. 2017) 23 (“Supplemental jurisdiction is mandatory unless prohibited by § 1367(b), or unless one of the 24 exceptions in § 1367(c) applies.”). 25 A district court may decline to exercise supplemental jurisdiction over state-law claims 26 pursuant to Section 1367(c) where: (1) a novel or complex issue of state law is raised; (2) the 27 claim substantially predominates over the federal claim; (3) the district court dismisses the federal 1 claims; or (4) under exceptional circumstances. See 28 U.S.C. § 1367(c). In order to make this 2 determination, courts should consider factors such as “economy, convenience, fairness, and 3 comity.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 BRIAN WHITAKER, 7 Case No. 19-cv-07183-SK Plaintiff, 8 v. ORDER GRANTING MOTION TO 9 DISMISS AND DENYING MOTION TO KRIKOR ARAM OHANESSIAN, et al., DECLINE SUPPLEMENTAL 10 JURISDICTION Defendants. 11 Regarding Docket No. 11
12 This matter comes before the Court upon consideration of the motion to dismiss filed by 13 Defendants Krikor Aram Ohanessian, Jennifer Anne Monahan Ohanessian, and C&F Restaurant 14 (collectively referred to as “Defendants”). Having carefully considered the parties’ papers, 15 relevant legal authority, and the record in the case, and having had the benefit of oral argument, 16 the Court hereby GRANTS IN PART AND DENIES IN PART Defendants’ motion for the 17 reasons set forth below. 18 BACKGROUND 19 Plaintiff Brian Whitaker (“Plaintiff”) alleges that in September 2019, he went to the 20 restaurant China Fun Express located at 211 Kearny Street in San Francisco, California, which is 21 owned by Defendants. (Dkt. No. 1, ¶¶ 2-7, 12.) Plaintiff further alleges that he suffers from a C-4 22 spinal cord injury, is a quadriplegic, and uses a wheelchair for mobility. (Id., ¶ 1.) He states that 23 on the date of his visit, Defendants “failed to provide accessible dining surfaces.” (Id., ¶ 14.) 24 Plaintiff does not allege facts to explain how the dining surfaces were inaccessible. Plaintiff 25 brings a claim for injunctive relief under the Americans with Disabilities Act (“ADA”) and a 26 claim for damages under the California Unruh Act, California Civil Code Section 51, et seq. 27 /// 1 ANALYSIS 2 A. Applicable Legal Standard on Motion to Dismiss. 3 A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 4 pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under 5 Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to 6 the non-moving party and takes as true all material allegations in the complaint. Sanders v. 7 Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule 8 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 9 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 10 will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 11 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to 12 relief that is plausible on its face.” Id. at 570. 13 “The plausibility standard is not akin to a probability requirement, but it asks for more than 14 a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that 15 are merely consistent with a defendant’s liability, it stops short of the line between possibility and 16 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 17 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to 18 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g. 19 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N. 20 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 21 B. Defendants’ Motion to Dismiss. 22 Defendant moves to dismiss Plaintiff’s claims on the ground that Plaintiff fails to allege 23 facts sufficient to state a claim under the ADA or the Unruh Act. Namely, Plaintiff alleges the 24 legal conclusion that Defendants failed to provide accessible dining surfaces but fails to allege any 25 facts which, if true, would demonstrate this legal conclusion. The Court agrees. Plaintiff fails to 26 allege where the purported barrier is located, in what manner the surface is inaccessible, and how 27 Plaintiff was denied full and complete access to the restaurant’s services. Cf. Whitaker v. Reeder, 1 accessible dining tables was insufficient to establish standing because he did not “allege[] what the 2 barrier was (i.e., what was wrong with the table) and how Plaintiff’s disability was affected by the 3 barrier (i.e., how Plaintiff personally suffered).”). Therefore, the Court GRANTS Defendants’ 4 motion to dismiss with leave to amend. 5 C. Defendants’ Alternative Motion to Decline Supplemental Jurisdiction over Unruh Act Claim. 6 Alternatively, Defendants move the Court to decline supplemental jurisdiction pursuant to 7 28 U.S.C. § 1367 over Plaintiff’s state-law claim under the Unruh Act. Although the Court is 8 granting Defendants’ motion to dismiss, the Court will address this alternative argument to 9 provide guidance if Plaintiff elects to file an amended complaint. 10 28 U.S.C. § 1367(a) provides that: 11 in any civil action of which the district courts have original 12 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within 13 such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. 14 State-law claims form part of the same case or controversy as federal claims “when they derive 15 from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected 16 to try them in one judicial proceeding.” Kuba v. 1-A Agr. Ass’n, 387 F.3d 850, 855-56 (9th Cir. 17 2004) (quoting Trs. of the Constr. Indus. & Laborers Health & Welfare v. Desert Valley 18 Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir.2003)). Here, Plaintiff’s claims under the 19 ADA and the Unruh Act derive from the same common nucleus of operative facts – Plaintiff’s 20 visit to the restaurant and the allegation that the dining surfaces were inaccessible. Therefore, the 21 Court shall exercise supplemental jurisdiction unless there is an applicable exception under 22 Section 1367(c). See Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1028 (S.D. Cal. 2017) 23 (“Supplemental jurisdiction is mandatory unless prohibited by § 1367(b), or unless one of the 24 exceptions in § 1367(c) applies.”). 25 A district court may decline to exercise supplemental jurisdiction over state-law claims 26 pursuant to Section 1367(c) where: (1) a novel or complex issue of state law is raised; (2) the 27 claim substantially predominates over the federal claim; (3) the district court dismisses the federal 1 claims; or (4) under exceptional circumstances. See 28 U.S.C. § 1367(c). In order to make this 2 determination, courts should consider factors such as “economy, convenience, fairness, and 3 comity.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (internal quotations and 4 citations omitted). 5 Defendants argue that the Court should decline to exercise supplemental jurisdiction under 6 Section 1367(c)(2) because Plaintiff’s claims under the Unruh Act predominate and under Section 7 1367(c)(4) because Plaintiff’s avoidance of California’s High Frequent Litigant Statute provides 8 exceptional circumstances. The Court, however, finds that neither exception warrants the 9 declination of supplemental jurisdiction. 10 1. State-Law Predominance. 11 State issue predominate if they predominate “in terms of proof, of the scope of the issues 12 raised, or of the comprehensiveness of the remedy sought[.]” United Mine Workers of Am. v. 13 Gibbs, 383 U.S. 715, 726-27 (1966). Defendants argue that, because Plaintiff may obtain an 14 award of damages under the California Unruh Act but can only recover injunctive relief under the 15 ADA and because Plaintiff must demonstrate that he personally encountered the alleged barrier 16 under the Unruh Act, state law issues predominate. Although some courts have held that Unruh 17 Act claims predominate over claims under the ADA, this Court finds that those cases finding to 18 the contrary are more persuasive. Compare Cuddeback, 262 F. Supp. 3d at 1030 (holding that 19 monetary damages of $36,000 sought by a plaintiff under the Unruh Act substantially 20 predominated over federal injunctive relief sought under the ADA) and Vogel v. Winchell’s Donut, 21 252 F. Supp. 3d 977, 986 (C.D. Cal. 2017) (holding that a plaintiff’s state-law claims substantially 22 predominated over an ADA claim because the remedies available under state law were more 23 expansive and the ADA claim added no unique remedy to the suit), with Schoors v. Seaport Vill. 24 Operating Co., LLC, 2017 WL 1807954 (S.D. Cal. May 5, 2017) (holding that although a 25 plaintiff’s Unruh Act claim offered more comprehensive remedies than their ADA claim, the 26 Unruh Act claim did not substantially predominate over the ADA claim because it involved 27 identical facts, witnesses, and evidence) and Castillo-Antonio v. Hernandez, 2019 WL 2716289 1 As the court in Castillo-Antonio reasoned: 2 Though the remedies Plaintiff seeks pursuant to his state-law claims exceed those available under the ADA, the federal and state claims 3 involve nearly identical facts, witnesses, and evidence because Plaintiff’s Unruh Act . . . claims are premised on proving a violation 4 of the ADA. . . . To prove his Unruh Act and CDPA claims, Plaintiff need only make an additional showing of the particular occasions on 5 which he encountered the barrier or was deterred from visiting the market to establish statutory damages. . . .Thus, even though the state- 6 law claims provide for more comprehensive remedies, they do not substantially predominate over the ADA claim because the proof 7 required for both the state and federal claims is nearly identical. 8 Castillo-Antonio, 2019 WL 2716289, at *7 (citations omitted). Similarly, here, the proof required 9 for Plaintiff’s Unruh Act and ADA claims is nearly identical. Therefore, the Court finds that the 10 Unruh Act claim does not predominate over the ADA claim. 11 2. Exceptional Circumstances. 12 Defendants also argue that Plaintiff’s efforts to avoid the heightened procedural 13 requirements of California’s High Frequent Litigant Statute provides exceptional circumstances to 14 decline the exercise of supplemental jurisdiction. The High Frequent Litigant Statute, California 15 Code of Civil Procedure § 425.50, imposes the following pleading requirements: 16 (1) complaint must allege whether it is filed by or on behalf of a high- frequency litigator; (2) the number of complaints alleging a 17 construction related accessibility claim that were filed by the high frequency litigator in the past twelve months; (3) the reason the high 18 frequency litigator was in the region of the defendant’s business; and (4) the specific reason that the high frequency litigator desired access 19 to the defendant’s business. Cal. Code Civ. P. § 425.50(a)(4). Additionally, a high frequency litigator must verify his complaint and 20 pay an additional filing fee. See Cal. Code Civ. P. § 425.50(b); Cal. Gov. Code § 70616.5. 21 Johnson v. Morning Star Merced, LLC, 2018 WL 4444961, at *5 (E.D. Cal. Sept. 14, 2018). 22 Federal Courts have not applied these pleading requirements but instead apply the Federal Rules 23 of Civil Procedure. Castillo-Antonio, 2019 WL 2716289, at *9. 24 There is a split of authority among district courts within the Ninth Circuit on whether the 25 avoidance of California’s High Frequent Litigant Statute provides exceptional circumstances. 26 This Court finds persuasive the cases in the Northern District of California which have examined 27 this issue and found that there were no exceptional circumstances warranting declination of 1 supplemental jurisdiction. See Castillo-Antonio v. Hernandez, 2019 WL 27162839, at * 9 (finding 2 || that although comity concerns weigh in favor of declining supplemental jurisdiction, 3 considerations of fairness and efficiency outweigh those concerns); Johnson v. Mariani, 2017 WL 4 2929453 (N.D. Cal. July 10, 2017) (same). “[H]aving two proceedings, one in state court and one 5 in federal court, to litigate nearly identical cases would be unduly inconvenient and unfair. An 6 || exercise of supplemental jurisdiction would also serve the purpose of judicial economy to avoid 7 || the wasteful duplication in parallel proceedings.” Johnson, 2017 WL 2929453, at *4. Therefore, 8 || the Court DENIES Defendants’ alternative motion to decline supplemental jurisdiction over the 9 || Unruh Act claim. 10 CONCLUSION 11 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss and 12 || DENIES their alternative motion to decline to exercise supplemental jurisdiction. Plaintiff shall 5 13 file his amended complaint, if any, by no later than January 29, 2020. IT IS SO ORDERED. 3 15 Dated: January 8, 2020 ° Artin evn SALLIE KIM 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28