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following sua sponte order to show cause why the court should not decline to exercise supplemental jurisdiction over plaintiff's Unruh Act claim, dismissing Unruh Act claim without prejudice to refiling in state court and retaining jurisdiction over ADA claim only
Summary of this case from Gastelum v. Cotton on U.S., Inc.Opinion
Case No.: SACV 20-01168-CJC-KES
2020-10-05
Luis MARQUEZ, Plaintiff, v. KBMS HOSPITALITY CORPORATION and Does 1-10 inclusive, Defendants.
Russell C. Handy, Amanda Lockhart Seabock, Dennis Jay Price, II, Raymond George Ballister, Jr., Center for Disability Access, San Diego, CA, for Plaintiff. Richard Alan Smith, Law Offices of Darshan Patel APC, San Diego, CA, for Defendants.
Russell C. Handy, Amanda Lockhart Seabock, Dennis Jay Price, II, Raymond George Ballister, Jr., Center for Disability Access, San Diego, CA, for Plaintiff.
Richard Alan Smith, Law Offices of Darshan Patel APC, San Diego, CA, for Defendants.
ORDER DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S UNRUH ACT CLAIM
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION & BACKGROUND
On June 30, 2020, Plaintiff Luis Marquez filed this action against Defendant KBMS Hospitality Corporation and unnamed Does, alleging violations of the Americans with Disabilities Act ("ADA") and California's Unruh Civil Rights Act ("Unruh Act"). (Dkt. 1 [Complaint].) Plaintiff alleges that he went to Anaheim National Inn—a motel Defendant owns—in May 2020 "with the intention to avail himself of its goods or services and to assess the business for compliance with the disability access laws." (Id. ¶¶ 5, 10.) However, Plaintiff alleges that "the defendants failed to provide wheelchair accessible outside transaction counters in conformance with the ADA Standards as it relates to wheelchair users like the plaintiff." (Id. ¶ 12.) He asserts that this failure violates the ADA and the Unruh Act. (Id. ¶¶ 31, 34.) Plaintiff seeks injunctive relief under the ADA and statutory damages under the Unruh Act. (Id. at 7.) He contends that this Court has federal question jurisdiction over his ADA claim and supplemental jurisdiction over his Unruh Act claim. (Id. ¶¶ 7–8; see generally Dkt. 16.)
Before the Court is Plaintiff's response to this Court's order to show cause as to why it should not decline to exercise supplemental jurisdiction over his Unruh Act claim (Dkt. 15). (Dkt. 16.) For the following reasons, the Court declines to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim.
II. LEGAL STANDARD
A. Supplemental Jurisdiction
In an action over which a district court possesses original jurisdiction, that court "shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). However, supplemental jurisdiction "is a doctrine of discretion, not of plaintiff's right." United Mine Workers v. Gibbs , 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). District courts have discretion to decline to exercise supplemental jurisdiction if: "(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c). "In order to decide whether to exercise jurisdiction over pendent state law claims, a district court should consider ... at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity." Nishimoto v. Federman-Bachrach & Assocs. , 903 F.2d 709, 715 (9th Cir. 1990) (internal quotation omitted).
District courts may decline to exercise jurisdiction over supplemental state law claims based on various factors, including "the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims." City of Chicago v. Int'l Coll. of Surgeons , 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). The Ninth Circuit does not require an "explanation for a district court's reasons [for declining supplemental jurisdiction] when the district court acts under" 28 U.S.C. §§ 1367(c)(1)–(3). San Pedro Hotel Co. v. City of Los Angeles , 159 F.3d 470, 478 (9th Cir. 1998). However, it does require a district court to "articulate why the circumstances of the case are exceptional in addition to inquiring whether the balance of the Gibbs values provide compelling reasons for declining jurisdiction in such circumstances." Exec. Software N. Am. Inc. v. U.S. Dist. Court for the Cent. Dist. of Cal. , 24 F.3d 1545, 1558 (9th Cir. 1994), overruled on other grounds by Cal. Dep't of Water Res. v. Powerex Corp. , 533 F.3d 1087 (9th Cir. 2008). This "inquiry is not particularly burdensome." Id.
B. ADA and Unruh Act Claims
The ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Under the ADA, "damages are not recoverable ... only injunctive relief is available." Wander v. Kaus , 304 F.3d 856, 858 (9th Cir. 2002).
The Unruh Act declares that all persons in California "are free and equal, and no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code § 51(b). A violation of the ADA constitutes a violation of the Unruh Act. See Cal. Civ. Code § 51(f). Unlike the ADA, the Unruh Act permits both injunctive relief and monetary damages. A plaintiff may recover actual damages for each offense "up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars." Cal. Civ. Code § 52(a). "The litigant need not prove she suffered actual damages to recover the independent statutory damages of $4,000." Molski v. M.J. Cable, Inc. , 481 F.3d 724, 731 (9th Cir. 2007).
III. DISCUSSION
A. The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff's Unruh Act Claim
The Court finds that this case presents "exceptional circumstances" and that "there are compelling reasons" for declining to exercise jurisdiction over Plaintiff's Unruh Act claim. 28 U.S.C. § 1367(c)(4). Most significantly, California has established a detailed statutory scheme regarding construction-related accessibility complaints for damages, and it deserves the opportunity to enforce that scheme. See Schutza v. Cuddeback , 262 F. Supp. 3d 1025, 1031 (S.D. Cal. 2017). Specifically, in 2012, California adopted heightened pleading requirements for construction-related accessibility claims "in an attempt to deter baseless claims and vexatious litigation." See Velez v. Il Fornanio (Am.) Corp. , 2018 WL 6446169, at *6 (S.D. Cal. Dec. 10, 2018), rev'd on other grounds , 808 F. App'x 581 (2020). California law defines "construction-related accessibility claims" to include "any civil claim in a civil action with respect to a place of public accommodation, including but not limited to, a claim brought under Section 51, 54, 54.1, or 55, based wholly or in part on an alleged violation of any construction-related accessibility standard." Cal. Civ. Code § 55.52(a)(1). California's heightened pleading standards for these claims require a plaintiff to include specific facts, including the specific barriers encountered or how the plaintiff was deterred and each date on which the plaintiff encountered each barrier or was deterred. See Cal. Civ. Proc. Code § 425.50(a). California law also requires plaintiffs alleging construction-related accessibility claims to verify their complaints. See Cal. Civ. Proc. Code § 425.50(b)(1). A complaint alleging construction-related accessibility claims that is not verified is subject to a motion to strike. Id.
When these heightened pleading requirements did not substantially reduce vexatious filings, California enacted additional restrictions in 2015. See Cal. Civ. Proc. Code § 425.50. These restrictions specifically targeted "high-frequency litigants," i.e. , plaintiffs who file more than ten construction-related accessibility complaints and attorneys who represent ten or more high-frequency litigant plaintiffs during a twelve-month period. See Cal. Civ. Proc. Code § 425.55(b)(1)–(2). Specifically, California imposed a "high-frequency litigant fee" requiring high-frequency litigants to pay a $1,000 filing fee with the initial complaint, in addition to the standard filing fees. Cal. Gov't Code § 70616.5. California law also requires complaints filed by high-frequency litigants to allege certain additional facts, including (1) "whether it is filed by or on behalf of a high-frequency litigator; (2) the number of complaints alleging a construction related accessibility claim that were filed by the high-frequency litigator in the past twelve months; (3) the reason the high-frequency litigator was in the region of the defendant's business; and (4) the specific reason that the high-frequency litigator desired access to the defendant's business." See Johnson v. Morning Star Merced, LLC , 2018 WL 4444961, at *5 (E.D. Cal. Sept. 14, 2018) (citing Cal. Civ. Proc. Code § 425.50(a)(4)(A) ). The California Legislature gave this justification for imposing these burdens on high-frequency litigants:
According to information from the California Commission on Disability Access, more than one-half, or 54 percent, of all construction-related accessibility complaints filed between 2012 and 2014 were filed by two law firms. Forty-six percent of all [construction-related accessibility] complaints were filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a disproportionately large number of the construction-related accessibility claims in the state, from 70 to 300 lawsuits each year. Moreover, these lawsuits are frequently filed against small businesses on the basis of boilerplate complaints, apparently seeking quick cash settlements rather than correction of the accessibility violation. This practice unfairly taints the reputation of other innocent disabled consumers who are merely trying to go about their daily lives accessing public accommodations as they are entitled to have full and equal access under the state's Unruh Civil Rights Act ( Section 51 of the Civil Code ) and the federal Americans with Disability Act of 1990 ( Public Law 101-336 ).
Cal. Civ. Proc. Code § 425.55(a)(2). These legislative enactments confirm that the state has a substantial interest in how the Unruh Act is enforced against local businesses.
Plaintiff concedes that he has filed more than 10 complaints alleging construction-related accessibility violations within the 12-month period immediately preceding the filing of the Complaint. (Dkt. 16-2 ¶ 2.) He therefore qualifies as a high-frequency litigant and would be subject to California's heightened pleading requirements and increased filing fee were he to litigate in state court. (See id. ¶ 4.) However, unlike the statutory damages provisions in the Unruh Act, California's pleading restrictions are procedural and do not apply in federal court. See Erie R.R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This enables high-frequency litigants like Plaintiff to duck the burdens of state law but still reap its benefits by filing ADA and Unruh Act claims together in federal court and invoking 28 U.S.C. § 1367(a). This type of gamesmanship significantly undermines California's significant efforts to reform construction-related accessibility litigation.
Unfortunately, there is considerable evidence that this has already occurred. According to statistics gathered by the Central District's Clerk's Office, in 2013, there were 419 ADA cases filed in the Central District, constituting only 3% of the civil actions filed. Since California's heightened pleading requirements took effect, that number has increased steadily each year. In 2014, the year before the imposition of the $1,000 filing fee and additional pleading requirements for high-frequency litigants, 928 such cases were filed, comprising 7% of civil cases filed in this district. By 2016, the first full year the requirements were in effect, the number was to 1,386, making up 10% of civil cases in this district. In 2017, the number of cases filed reached 1,670 (12% of civil cases), then 1,670 cases (18% of civil cases) in 2018, rising to 3,595 cases (24% of civil cases) in 2019, and 2,149 cases (an incredible 27% of civil cases) in the first six months of 2020. The only explanation for this phenomenon is the strategic evasion of California's procedural rules.
California's reforms, and the corresponding increase in federal filings, raise significant concerns about forum-shopping and related issues of comity. See Schutza , 262 F. Supp. 3d at 1031 ; Org. for Advancement of Minorities with Disabilities v. Brick Oven Rest. , 406 F. Supp. 2d 1120, 1131 (S.D. Cal. 2005). By enacting restrictions on the filing of construction-related accessibility claims, California has expressed a desire to limit the financial burdens California's businesses may face for claims for damages under the Unruh Act. The state legislature acted to protect local businesses from baseless and vexatious litigation. See Velez , 2018 WL 6446169. By filing these actions in federal court, plaintiffs evade these limits, yet are still able to claim state law damages. Importantly, combining an ADA claim with an Unruh Act claim does not increase the range of remedies available to a plaintiff. See Schutza v. Alessio Leasing, Inc. (Alessio Leasing) , 2019 WL 1546950, at *3 (S.D. Cal. Apr. 8, 2019) ("[T]here is no relief available to [plaintiff] in federal court that could not be secured in state court. Had he brought this suit in state court, there would have been only one suit pending and he would have been eligible to receive every form of relief he seeks: an injunction, money damages, and attorney's fees."). The ADA's only remedy is injunctive relief, which is equally available under the Unruh Act. Because the statutes are co-extensive in this respect, "[i]t is unclear what advantage—other than avoiding state-imposed pleading requirements—Plaintiff gains by being in federal court." See Schutza , 262 F. Supp. 3d at 1031 ; Brick Oven Rest. , 406 F. Supp. 2d at 1131.
Some plaintiffs and their counsel have argued that they file in federal court not to evade California's restrictions, but because of the quality of the judges, the ease of the ECF system for filing, and the availability of federal ADA decisional authority. These explanations are not persuasive. As one district court recently explained:
In attempting to show that his decision to file in federal court is not simply an attempt to evade California's heightened pleading rules, Schutza insists the ‘quality of judges [and] the quality of legal rulings’ is higher in federal court. This argument, of course, flies in the face of our judicial system's equal respect for state and federal courts. The convenience of electronic filing and the widespread availability of published opinions—other arguments Schutza advances—may be creature comforts that make filing in federal court more enticing, but they hardly outweigh the disservice that is done to California's efforts to implement and interpret its own law when federal courts exercise supplemental jurisdiction over these claims ... [T]he Court can discern no basis for the state law claim being filed in federal court other than to prevent California from being able to apply and enforce its own rules.
Alessio Leasing , 2019 WL 1546950, at *4.
Other firms have not even tried to hide the fact that they file in federal court to evade the burdens California has enacted. One firm that has filed over 1,400 actions asserting construction-related accessibility claims in the Central District since 2016 admitted in response to one court's order to show cause that it files such actions in federal court to avoid the "financial burden" of California's $1,000 high-frequency litigant fee. See Yiun v. Parisca , Case No. CV 19-1874 PA (MRWx), Dkt. 19 at 7. To allow federal courts to become an escape hatch that allows high-frequency litigants to pursue such claims without satisfying California's requirements is an affront to the comity between federal and state courts. What's more, filing these cases in federal court "deprive[s] the California state courts of the ability to interpret and settle unsettled issues of state law," Brick Oven Rest. , 406 F. Supp. 2d at 1132, and also threatens to nullify California's efforts to protect its small businesses from vexatious construction-related accessibility claims.
The Court also finds that whatever inefficiencies may arise from Plaintiff litigating his claims in two separate forums are slight in comparison to California's weighty interest in ensuring its laws are not circumvented, and in enforcing the detailed statutory regime it has set up for construction-related accessibility claims.
In light of the foregoing, the Court finds that there are "exceptional circumstances" and "compelling reasons" for the Court to decline to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim under 28 U.S.C. § 1367(c)(4). This is a state law claim. The state of California has spent significant time and resources creating a system to address a surge of similar claims in order to curtail baseless and vexatious litigation. The Court sees no reason why it should permit Plaintiff to create an end run around California's system for resolving Unruh Act and other construction-related accessibility claims by exercising supplemental jurisdiction over these claims. Of course, Plaintiff remains free to assert his Unruh Act claim in state court.
The Court's decision not to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim is in line with the growing number of federal courts in California that have done the same. See, e.g., Spikes v. Essel Commercial, L.P. , 2020 WL 1701693, at *7 (S.D. Cal. Apr. 8, 2020) ("[A]s a matter of comity, and in deference to California's substantial interest in discouraging unverified disability claims, the Court declines supplemental jurisdiction over Plaintiff's Unruh Act claim.") (internal quotation omitted); Estrada v. Fiesta III, LLC , 2020 WL 883477, at *5 (C.D. Cal. Jan. 9, 2020) (declining to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim because "exceptional circumstances" and "compelling reasons" existed, and stating that Plaintiff may "pursue his Unruh Act claim in state court—the appropriate forum for such claim under these circumstances"); Langer v. Mobeeus, Inc. , 2020 WL 641771, at *5 (C.D. Cal. Jan. 2, 2020) (similar); Langer v. Deddeh , 2019 WL 4918084, at *2 (S.D. Cal. Oct. 4, 2019) (declining to exercise supplemental jurisdiction because the Unruh Act claim predominates over the ADA claim and the interests of comity and discouraging forum shopping constitute exceptional circumstances); Theroux v. Oceanside Motel-9, LP , 2019 WL 4599934, at *2 (S.D. Cal. Sept. 20, 2019) (similar); Langer v. Petras , 2019 WL 3459107, at *2 (S.D. Cal. July 31, 2019) (similar); Spikes v. All Pro Auto Repair, Inc. , 2019 WL 4039664, at *2 (S.D. Cal. Aug. 26, 2019) (dismissing for these reasons various state law claims including claims for violation of the Unruh Act, California Health and Safety Code Section 19955, negligence per se, and negligence); Rutherford v. Ara Lebanese Grill , 2019 WL 1057919, at *5 (S.D. Cal. Mar. 6, 2019) (finding that "it would be improper to allow Plaintiff to use the federal court system as a loophole to evade California's pleading requirements"); see also Brick Oven Rest. , 406 F. Supp. 2d at 1131 (declining to exercise supplemental jurisdiction over an Unruh Act claim after finding that "discouraging forum-shopping is a legitimate goal for the federal courts").
B. The Court Declines Plaintiff's Request to Certify a Purported Constitutional Question
Plaintiff also "requests that the court ask the Attorney General to file an amicus brief on the questions posed and assumptions made by the court concerning the imputed interest stated by numerous District Judges in the Central District of California of the state of California's desire in having all Unruh/ADA litigation filed in the California Superior Courts." (Dkt. 16 at 18.) The Court declines to do so. Plaintiff does not cite the basis for this request, but his counsel has previously invoked 28 U.S.C. § 2403(b) (" Section 2403") and Federal Rule of Civil Procedure 5.1 (" Rule 5.1") to ask that the Court certify to the California Attorney General the existence of a constitutional question. (Id. ) Section 2403 provides that when "the constitutionality of any statute of [a] State affecting the public interest is drawn in question ," and no state or agency, officer, or employee thereof is a party, "the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence" and "argument on the question of constitutionality." Id. (emphasis added). Rule 5.1 implements Section 2403, and requires a party "that files a pleading, written motion, or other paper drawing into question the constitutionality of a ... state statute" to promptly file a Notice of Constitutional Question. Fed. R. Civ. P. 5.1(a). When a party files a Notice of Constitutional Question implicating Section 2403, the Court "must ... certify to the appropriate attorney general that a statute has been questioned." Fed. R. Civ. P. 5.1(b).
The Court concludes that Section 2403 and Rule 5.1 do not apply here, and therefore declines to ask the California Attorney General to file an amicus brief as Plaintiff requests. "The validity of a statute is not drawn in question every time rights claimed under such statute are controverted." United States v. Lynch , 137 U.S. 280, 285, 11 S.Ct. 114, 34 L.Ed. 700 (1890). Rather, the validity of a statute is drawn in question only when the "constitutionality, or legality of such statute or authority is denied, and the denial forms the subject of direct inquiry. " Id. (emphasis added). Contrary to plaintiff's assertion, the Court's supplemental jurisdiction analysis does not "draw in question" the constitutionality of California's construction-related accessibility statutory scheme. See 28 U.S.C. § 2403(b). In assessing whether to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim, the Court does not apply the procedures California has adopted for the construction-related accessibility claims of high-frequency litigants. To the contrary, the Court recognizes that California's procedures do not apply here. The Court assesses its jurisdictional authority pursuant to 28 U.S.C. § 1367(c)(4), not California law.
The purpose of Rule 5.1 also confirms that it does not apply here. Rule 5.1 is intended to give the attorney general (whether of the United States or a state) a chance to intervene to defend the constitutionality of a statute before the Court declares it unconstitutional. See Fed. R. Civ. P. 5 Advisory Committee Notes ("The notice of constitutional question will ensure that the attorney general is notified of constitutional challenges and has an opportunity to exercise the statutory right to intervene at the earliest possible point in the litigation."); Fed. R. Civ. P. 5.1(c) ("Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional."). In this case, the Court will have no moment to rule on the constitutionality of California's statutory scheme regarding construction-related accessibility claims. That is simply not an issue in this case. Instead, Plaintiff's claims turn on whether the Anaheim Maingate Inn discriminated against him by failing to provide wheelchair-accessible transaction counters. Because the constitutionality of California's statutory scheme does not form "form[ ] the subject of direct inquiry" of this case, its constitutionality is not "drawn in question" under Section 2403. See Lynch , 137 U.S. at 285, 11 S.Ct. 114. Accordingly, the Court denies Plaintiff's request that the Court certify a constitutional question to California's Attorney General.
Specifically, in declining to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim, this Court is not applying the procedures California has adopted for the construction-related accessibility claims of high-frequency litigants. Indeed, the Court's recognition that it does not apply the procedures that California has adopted for high-frequency litigants, and that this difference in procedures is a basis for the Court to decline to exercise supplemental jurisdiction over plaintiff's state law claim, is an application of 28 U.S.C. § 1367(c)(4), not the California Civil Procedure Code, and does not "draw into question" the constitutionality of the California statute. The California Attorney General's views on the purpose of the high-frequency litigant statute or the ability of California's courts to handle an increasing number of construction-related accessibility claims would therefore have little if any relevance to the Court's decision to exercise its discretion to decline to exercise supplemental jurisdiction over the state law claims.
IV. CONCLUSION
For the foregoing reasons, the Court declines to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim. That claim is hereby DISMISSED WITHOUT PREJUDICE to Plaintiff asserting it in state court. The Court retains jurisdiction over Plaintiff's ADA claim.