Theroux Jr. v. Mar-Con Products, Inc. ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 VERN ROBERT THEROUX, JR., an Case No.: 19-cv-1810-H-AHG 11 individual, 12 ORDER GRANTING MOTION TO Plaintiff, DISMISS PLAINTIFF’S STATE 13 v. LAW CLAIM 14 MAR-CON PRODUCTS, INC., a [Doc. No. 4.] 15 California corporation; and DOES 1-10, 16 Defendants. 17 18 On September 18, 2019, Plaintiff Vern Robert Theroux, Jr. commenced this civil 19 action against Defendant Mar-Con Products, Inc. and Does 1-10 (“Defendants”) alleging 20 violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”), 21 and California’s Unruh Civil Rights Act §§ 51–53 (“Unruh Act”). Defendant Mar-Con now 22 moves to dismiss the state law claim for lack of subject matter jurisdiction under 28 U.S.C. 23 § 1367.1 Plaintiff has not opposed. Pursuant to its discretion under Local Rule 7.1(d)(1), 24 the Court determines that the motion is fit for resolution without oral argument. 25 Accordingly, the Court submits the motion on the parties' papers and vacates the scheduled 26 27 28 1 The Court notes that the present motion is untimely but since this objection has not been raised by 1 hearing. For the following reasons, the Court GRANTS Defendant’s motion to dismiss 2 Plaintiff’s state law claim. 3 I. BACKGROUND 4 Plaintiff Theroux relies upon mobility devices to ambulate and suffers from a 5 “qualified disability” under the ADA. (Doc. No. 1 ¶ 8.) Defendant Mar-Con Products 6 (“Mar-Con”), is a California corporation with its principal place of business at 1615 La 7 Mirada Drive, San Marcos, CA 92078. (Id. ¶11) 8 In September 2019, Plaintiff went to Mar-Con with the intention of availing himself 9 of its retail services. (Id. ¶ 19.) Plaintiff alleges that he was unable to access or use the 10 property because of various access barriers, including barriers in at the transaction counter 11 and in the parking lot. (Id. ¶21-26.) Plaintiff contends that he personally encountered said 12 problems, and consequently, was denied full and equal access of the property. (Id. ¶ 28.) 13 On September 18, 2019, Plaintiff sued Defendants for violations of the ADA and the 14 Unruh Act. Plaintiff seeks monetary damages under the Unruh Act, injunctive relief under 15 the ADA, and attorneys fees. (Id. ¶ 34-48.) 16 On November 13, 2019, Defendant Mar-Con filed a motion to dismiss Plaintiff’s 17 state law claim pursuant to 28 U.S.C. § 1367(c). Defendant primarily contend that: (1) the 18 state law claim substantially predominates over the federal law claim because Plaintiff is 19 seeking statutory damages only available under California law and (2) Plaintiff is engaging 20 in forum shopping. (Doc. No. 4.) 21 II. LEGAL STANDARD 22 The federal supplemental jurisdiction statute provides: 23 [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that 24 are so related to claims in the action within such original jurisdiction that they 25 form part of the same case or controversy under Article III of the United States Constitution. 26 27 28 1 28 U.S.C. § 1367(a). Supplemental jurisdiction is mandatory unless prohibited by § 2 1367(b), or unless one of the exceptions in § 1367(c) applies. Under § 1367(c), a district 3 court may decline supplemental jurisdiction over a state law claim if: 4 (1) the claim raises a novel or complex issue of State law, 5 (2) the claim substantially predominates over the claim or claims over which the 6 district court has original jurisdiction, 7 (3) the district court has dismissed all claims over which it has original jurisdiction, 8 or 9 (4) in exceptional circumstances, there are other compelling reasons for declining 10 jurisdiction. 11 28 U.S.C. § 1367(c). Underlying the § 1367(c) inquiry are considerations of judicial 12 economy, convenience and fairness to litigants, and comity. “[I]f these are not present a 13 federal court should hesitate to exercise jurisdiction over state law claims[.]” United Mine 14 Workers v. Gibbs, 383 U.S. 715, 726 (1966). 15 Under § 1367(c), “a district court can decline jurisdiction under any one of [the 16 statute’s] four provisions.” San Pedro Hotel Co. v. City of L.A., 159 F.3d 470, 478 (9th 17 Cir. 1998). When a district court declines supplemental jurisdiction over a state law claim 18 pursuant to one of the first three provisions of the statute—that is, §§ 1367(c)(1)–(3)—the 19 court need not state its reasons for dismissal. Id. However, when the court declines 20 supplemental jurisdiction pursuant to the statute’s “exceptional circumstances” 21 provision—that is, § 1367(c)(4)—the court must “articulate why the circumstances of the 22 case are exceptional,” and consider whether values of judicial economy, convenience, 23 fairness, and comity provide compelling reasons for declining jurisdiction. Exec. Software 24 N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1552 (9th Cir. 1994). 25 III. Discussion 26 a. The ADA 27 The ADA prohibits discrimination “on the basis of disability in the full and equal 28 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 1 any place of public accommodation by any person who owns, leases (or leases to), or 2 operates a place of public accommodation.” 42 U.S.C. § 12182(a). A sales or rental 3 establishment is a “public accommodation” for purposes of the ADA. 42 U.S.C. § 4 12181(7)(E). 5 To prevail on a claim under the ADA, a plaintiff must prove that (1) he or she has a 6 disability; (2) the defendant operates, leases, or owns a place of public accommodation; 7 and (3) the plaintiff was denied appropriate accommodations by the defendant because of 8 his or her disability. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). “[A] plaintiff need not show intentional discrimination in order to make out a violation of the 9 ADA.” Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 846 (9th Cir. 2004). 10 Under the ADA, “damages are not recoverable . . . only injunctive relief is 11 available.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (citing 42 U.S.C. § 12 12188(a)(1)). 13 b. The Unruh Act 14 The Unruh Act provides in part that “[a]ll persons within the jurisdiction of 15 [California] are free and equal, and no matter what their . . . disability . . . are entitled to 16 the full and equal accommodations, advantages, facilities, privileges, or services in all 17 business establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). The Unruh Act 18 also provides that a violation of the federal ADA constitutes a violation of § 51 of the 19 Unruh Act. Cal. Civ. Code § 51(f). 20 As a general matter, a claim under the Unruh Act requires a plaintiff to allege an 21 intentional act or omission on behalf of defendant. See Org. for the Advancement of 22 Minorities v. Brick Oven Rest., 406 F.Supp.2d 1120, 1129 (S.D. Cal. 2005). Thus, “[a] 23 violation of the Unruh Act may be maintained independent of an ADA claim where a 24 plaintiff pleads ‘intentional discrimination in public accommodations in violation of the 25 terms of the [Unruh] Act.’ ” Schutza v. McDonald's Corp., 133 F.Supp.3d 1241, 1247 (S.D. 26 Cal. 2015) (citations omitted). However, a showing of intentional discrimination is not 27 required where a plaintiff brings an Unruh Act claim on the grounds that a defendant has 28 1 Lentini, 370 F.3d at 847 (“[N]o showing of intentional discrimination is required where 2 the Unruh Act violation is premised on an ADA violation.”). 3 Unlike the ADA, the Unruh Act allows for recovery of monetary damages. A 4 plaintiff may recover actual damages for each and every offense “up to a maximum of three 5 times the amount of actual damage but in no case less than four thousand dollars 6 ($4,000)[.]” Cal. Civ. Code § 52(a). “The litigant need not prove she suffered actual 7 damages to recover the independent statutory damages of $4,000.” Molski, 481 F.3d at 731 8 (citing Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir. 2000)). 9 IV. Analysis 10 a. Plaintiff’s State Law Claims Substantially Predominates 11 Defendant argues that Plaintiff’s state law claim substantially predominate over his 12 ADA claim under § 1367 (c)(2). The Court agrees. 13 The number of violations alleged by Plaintiff and the total amount of damages 14 available to him under the Unruh Act – a minimum of $4,000 for each offense – indicates 15 that Plaintiff’s predominant focus is recovering monetary damages under state law. At a 16 minimum, Plaintiff alleges the following four violations: (1) there are no truncated domes 17 as required by ADA guidelines (2) there are not lowered 36 inch transaction counters (3) 18 there is not proper ADA parking (4) there was no ADA signage. These four allegations, if 19 proven, would entitle him to an award of $16,000. Thus, under the circumstances 20 presented, the Court finds that the monetary damages sought by Plaintiff under the Unruh 21 Act substantially predominate over federal injunctive relief. See Schutza v. Cuddeback., 22 262 F.Supp.3d 1025, 1030 (S.D. Cal. 2017) (finding that statutory damages available under 23 the Unruh Act substantially predominated over injunctive relief available under the ADA 24 where the plaintiff alleged 9 allegations that, if proven, would entitle plaintiff to an award 25 of $36,000) In sum, the Court finds that Plaintiff’s state law claim under the Unruh Act 26 substantially predominates over his federal claim under the ADA. 27 b. There Are Exceptional Circumstances Supported by Compelling Reasons for 28 Declining Supplemental Jurisdiction 1 In considering values of judicial economy, convenience, fairness, and comity, the 2 Court finds compelling reasons for declining supplemental jurisdiction in this case. See 3 Exec. Software N. Am., Inc., 24 F.3d at 1557. 4 In 2012, California adopted heightened pleading requirements for disability 5 discrimination lawsuits under the Unruh Act, including provisions requiring high- 6 frequency litigants to verify and specify their allegations. See Cal. Code Civ. Proc. § 7 425.50.3. The purpose of these heightened pleading requirements is to deter baseless claims 8 and vexatious litigation. See e.g., SB 1186, Chapter 383 § 24 (Ca. 2012). 9 The Court notes that Plaintiff Theroux has filed over 30 cases, in the last year alone, 10 in this and other courts alleging disability discrimination. As a high-frequency litigant 11 primarily seeking relief under state law, the Court finds it would be improper to allow 12 Plaintiff to use federal court as an end-around to California’s pleading requirements. 13 Therefore, as a matter of comity, and in deference to California’s substantial interest in 14 discouraging unverified disability discrimination claims, the Court declines supplemental 15 jurisdiction over Plaintiff’s Unruh Act claim. See Cross v. Pac. Coast Plaza Invs., L.P., No. 16 06 CV 2543 JM RBB, 2007 WL 951772, at *5 (S.D. Cal. Mar. 6, 2007) (declining to 17 exercise supplemental jurisdiction over plaintiff’s Unruh Act claims in the interest of 18 comity and noting this interest has become more compelling “as the courts struggle to 19 resolve what is at the moment an irreconcilable tension between the ADA and the Unruh 20 Act”); Molski v. Hitching Post I Rest., Inc., 2005 WL 3952248, at *8–9 (C.D. Cal. May 21 25, 2005) (finding comity to be a compelling reason for declining supplemental jurisdiction 22 over state claims on the ground that California courts should have the ability to interpret 23 state disability laws). 24 Finally, and relatedly, the Court agrees with Defendant’s contention that Plaintiff is 25 engaging in forum-shopping by bringing his action in federal court and attempting to avoid 26 California’s heightened pleading requirements for disability discrimination claims. It is 27 unclear what advantage—other than avoiding state-imposed pleading requirements— 28 Plaintiff gains by being in federal court since his sole remedy under the ADA is injunctive 1 ||relief, which is also available under the Unruh Act. Federal courts may properly take 2 measures to discourage forum-shopping, see, e.g., Hanna v. Plumer, 380 U.S. 460, □□□□ 3 85 (1965), and here, where Plaintiff has filed over 30 disability discrimination cases, 4 Court finds this to be a compelling reason to decline supplemental jurisdiction. See, 5 Brick Oven Rest., 406 F.Supp.2d at 1132 (“Because a legitimate function of the 6 ||federal courts is to discourage forum shopping and California courts should interpret 7 ||California law . . . compelling reasons exist to decline supplemental jurisdiction over 8 || plaintiffs state law claims.’’). 9 || V. CONCLUSION 10 For the foregoing reasons, the Court finds that (1) Plaintiff's state law claim under 11 |/the Unruh Act substantially predominates over his federal claim under the ADA, and (2) 12 || there are otherwise exceptional circumstances—including comity and this Court’s interest 13 |/in discouraging forum-shopping—for declining supplemental jurisdiction over the Unruh 14 Act claim. Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff's 15 law claim under 28 U.S.C § 1367(c). The Court retains jurisdiction over the ADA 16 || claim. Defendants shall file an answer or otherwise respond to the ADA claim no later than 17 || January 30, 2019. 18 IT IS SO ORDERED. 19 || DATED: December 13, 2019 Nl al 21 UNITED STATES DISTRICT COURT 22 23 24 25 26 27 28