Spikes v. Essel Commercial, L.P.

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 KAREL SPIKES, Case No.: 19cv1592 JM(MSB)

12 Plaintiff,

ORDER ON MOTION TO DISMISS

13 v.

14 ESSEL COMMERCIAL, L.P.; HECTOR

SANCHEZ doing business as

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PRECISION MOTOR; and DOES 1-10,

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Defendants.

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18 Presently before the court is a motion to dismiss pursuant to Federal Rules of Civil

19 Procedure 12(b)(1) and 12(b)(6) filed by Defendants Essel Commercial, L.P., (“Essel”),

20 and Hector Sanchez dba Precision Motor (“Precision Motor”), (collectively “Defendants”).

21 (Doc No. 8.) The motion has been fully briefed and the court finds it suitable for

22 submission on the papers and without oral argument in accordance with Civil Local Rule

23 7.1(d)(1). For the reasons set forth below, the motion is granted in part and denied in part.

24 Background

25 On August 24, 2019, Plaintiff filed this lawsuit asserting violation of the Americans

26 with Disabilities Act (“ADA”) of 1990, 42 U.S.C. §12101, et seq., along with claims for

27 violation of the California’s Unruh Civil Rights Act (“Unruh”), violation of the California

28 Disabled Persons Act (“DPA”), violation of California Health and Safety Code section

1 19955, et seq., negligence per se, negligence, declaratory relief, and injunctive relief. (Doc.

2 No. 1.)

3 In response to Defendants’ motion to dismiss, on October 23, 2019, Plaintiff filed

4 an amended complaint (“FAC”). (Doc. No. 4.). The FAC alleges the same claims as the

5 original complaint. (FAC at ¶¶ 25-58.)

6 On January 30, 2019, Plaintiff, a below the knee amputee who uses a wheelchair,

7 went to the automobile repair and service business known as Precision Motor. (FAC at

8 ¶¶ 4, 14.) Precision Motor is located at 619 K St, Chula Vista, California, 91910 (the

9 “subject property”). (Id. at ¶ 4.) It is alleged that Essel is the fee owner of the subject

10 property and that Precision Motor is a place of public accommodation “operated by and/or

11 under the control of and/or with the cooperation of” Essel. (Id. at ¶¶ 5, 6.)

12 Plaintiff alleges that on the day he decided to patronize Precision Motor, he drove to

13 the business and began searching the parking lot provided by the business for an accessible

14 parking space. (Id. at ¶ 16.) Plaintiff was unable to find a spot because there was no

15 designated accessible handicapped parking on the site and no signs indicating that there

16 was handicapped parking available as required by the Americans with Disabilities Act

17 Accessibility Guidelines (“ADAAG”) for Building and Facilities section 4.6.4. (Id. at

18 ¶¶ 14, 16.) Plaintiff alleges that he became very anxious in anticipation of being forced to

19 use a non-accessible spot because his disability means he requires extra space to enter and

20 exit his vehicle safely. (Id. at ¶ 16.) It is alleged that being forced to use a non-accessible

21 parking space caused Plaintiff difficulty maneuvering and made him fearful that the lack

22 of space would result in a serious injury. (Id.) It is also alleged that there are approximately

23 6 or more marked parking spaces serving the business. (Id. at ¶ 15.)

24 Plaintiff also alleges that Defendants failed to provide an accessible route from the

25 parking lot, or signage indicating such a route, to the business entrance as required by

26 ADAAG section 216.6. (Id. at ¶ 17.) It is alleged that as a result of searching for a

27 designated path to accommodate his special needs, Plaintiff became increasingly frustrated,

28 angry and upset. (Id.) Plaintiff maintains that his lack of mobility means he requires a flat,

1 smooth surface in order to reach a business entrance safely, and that he experienced fear at

2 the thought of encountering hazardous obstacles and sustaining serious injury when

3 travelling to the entrance of Precision Motor. (Id.) Relatedly, it is alleged that “Defendant

4 has a policy and/or practice of parking the vehicles which are awaiting service in the spots

5 provided for customers…This practice, coupled with a lack of designated accessible

6 parking, results in a situation where disabled customers who require additional space to

7 enter and exit their vehicle are unable to safely park in the space provided.” (Id. at ¶ 18.)

8 Plaintiff alleges that as a result of these barriers he was denied full and equal access

9 to a place of public accommodation. (Id. at ¶ 13.) Plaintiff alleges he lives in Spring

10 Valley, near Precision Motor, and will return and continue to visit it in the future “for the

11 purposes of using and enjoying the facility’s accommodations, and to evaluate the facility’s

12 accessibility to individuals with disabilities or to determine if other forms of discrimination

13 exist.” (Id. at ¶¶ 11, 14.)

14 On October 24, 2019, Defendants filed a motion seeking to dismiss the complaint in

15 its entirety under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

16 (Doc. No. 8.) Plaintiff filed his opposition to the motion, (Doc. No. 9), and Defendants

17 filed a reply, (Doc. No. 10).

18 Legal Standard

19 Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss based on

20 the court’s lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “[T]hose who seek

21 to invoke the jurisdiction of the federal courts must satisfy the threshold requirement

22 imposed by Article III of the Constitution by alleging an actual case or controversy.” City

23 of L.A. v. Lyons, 461 U.S. 95, 101 (1983). Article III requires that: “(1) at least one named

24 plaintiff suffered an injury in fact; (2) the injury is fairly traceable to the challenged

25 conduct; and (3) the injury is likely to be redressed by a favorable decision.” Lujan v.

26 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quotation marks and citation omitted).

27 Plaintiff has the burden of establishing that the court has subject matter jurisdiction over

28 an action. Ass’n of Med. Colls. v. U.S., 217 F.3d 770, 778-79 (9th Cir. 2000). “For

1 purposes of ruling on a motion to dismiss for want of standing, both the trial judge and

2 reviewing courts must accept as true all material allegations of the complaint and must

3 construe the complaint in favor of the complaining party.” Maya v. Centex Corp., 658 F.3d

4 1060, 1068 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). “At the

5 pleadings stage, general factual allegations of injury resulting from the defendant’s conduct

6 may suffice, for on a motion to dismiss we presume that general allegations embrace those

7 specific facts that are necessary to support the claim.” Id. (internal citation and quotation

8 marks omitted).

9 Under Federal Rule of Civil Procedure 12(b)(6), a party may bring a motion to

10 dismiss based on the failure to state a claim upon which relief may be granted. A Rule

11 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege “enough facts

12 to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

13 544, 570 (2007). Ordinarily, for purposes of ruling on a Rule 12(b)(6) motion, the court

14 “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the

15 light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins.

16 Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But even under the liberal pleading standard of

17 Rule 8(a)(2), which requires only that a party make “a short and plain statement of the

18 claim showing that the pleader is entitled to relief,” a “pleading that offers ‘labels and

19 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”

20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

21 “Determining whether a complaint states a plausible claim for relief … [is] a context-

22 specific task that requires the reviewing court to draw on its judicial experience and

23 common sense.” Id. at 679.

24 Requests for Judicial Notice

25 Defendants make two separate requests for judicial notice.

26 First, Defendants ask the court to take judicial notice of: Exhibit A, the complaint

27 filed in Schutza v. Cuddeback, Case No. 16-cv-2746-BAS-KSC (S.D. Cal. Nov. 7, 2016)

28 (Doc. No. 8-3). Defendants move for judicial notice under Federal Rule of Evidence 201

1 because a court may take judicial notice of matters of public record. See Fed. R. Evid.

2 201(b), Lee v. City of L.A., 250 F.3d 668, 689-690 (9th Cir. 2001) (taking judicial notice

3 of exhibits attached to the motion to dismiss that were undisputed matters of public record).

4 Plaintiff oppose the request for judicial notice, asserting that “Defendants do not provide

5 the Court with sufficient information to determine whether any of the facts set forth in

6 Cuddeback are undisputed and should be a proper subject of judicial notice.” (Doc. No. 9

7 at 7.1) The complaint in Cuddeback serves no purpose to the court, and does not, as

8 Defendants suggest, provide the court with persuasive legal authority of anything.

9 Accordingly, the court declines to take judicial notice of the Cuddeback complaint.

10 Second, Defendants ask the court to take judicial notice of: Exhibit B, the complaint

11 filed in Bentley v. Essel Commerical, L.P., et al., Case No. 37-2019-00045315-CU-CR-

12 CTL, in the Superior Court of San Diego, Central Branch on August 19, 2019. (Doc. No.

13 10-2.) Defendants again move under Rule 201(b). Accordingly, the court takes judicial

14 notice of the Bentley complaint. 2

15 Discussion

16 Defendants attack the complaint on standing and failure to state a claim grounds and

17 urge the court to decline supplemental jurisdiction over the state law claims. The court will

18 address each argument in turn.

19 1. Plaintiff’s Standing to Bring a Claim

20 First, Defendants assert that Plaintiff lacks standing because he does not state facts

21 showing redressability, causation, or injury-in-fact. (Doc. No. 8-1 at 10-14.) The court is

22 not persuaded.

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25 1 Document numbers and page references are to those assigned by CM/ECF for the docket

entry.

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27 2 The relevance of Plaintiff’s counsel’s decision to sue Defendants in a personal capacity

is discussed in more detail below and is why the court is taking judicial notice of the Bentley

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1 “There is no subject matter jurisdiction without standing, and the “irreducible

2 constitutional minimum” of standing consists of three elements.” Romero v. Securus

3 Technologies, Inc., 216 F. Supp. 1078, 1085 (2016). A plaintiff must have “(1) suffered

4 an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

5 (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robbins,

6 136 S. Ct. 1540, 1547 (2016). At the pleading stage, the plaintiff must clearly allege facts

7 demonstrating each element. Id.

8 “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion

9 of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,

10 not conjectural or hypothetical.’” Id. (quoting Lujan, 504 U.S. at 560). “A ‘concrete’

11 injury must be ‘de facto’; that is, it must actually exist.” Id.

12 In ADA cases, within the Ninth Circuit,

13 once a disabled individual has encountered or become aware of alleged ADA

violations that deter his patronage of or otherwise interfere with his access to

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a place of public accommodation, he has already suffered an injury in fact

15 traceable to the defendant’s conduct and capable of being redressed by the

courts, and so he possesses standing under Article III….

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17 Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1042 n.5 (9th. Cir. 2008). But a barrier only

18 amounts to such interference if it affects the plaintiff’s full and equal enjoyment of facility

19 on account of his particular disability. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d

20 939, 947 (9th Cir. 2011); see also Oliver v. Ralphs Grocery Co., 654 F.3d 903, 948 (9th

21 Cir. 2011) (an ADA plaintiff must show he “personally encountered barriers … that

22 impaired his full and equal enjoyment of the facility due to his particular disability”).3

23 Because the ADAAG “establishes the technical standards required for ‘full and equal

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3 See also Doran, 524 F.3d at 1047 (“[a]n ADA plaintiff who has Article III standing as a

27 result of at least one barrier at a place of public accommodation may, in one suit,

permissibly challenge all barriers in that public accommodation that are related to his or

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1 enjoyment,’ if a barrier violating these standards relates to a plaintiff's disability, it will

2 impair the plaintiff's full and equal access, which constitutes ‘discrimination’ under the

3 ADA.’” Chapman, 631 F.3d at 648. Such discrimination will satisfy the injury-in-fact

4 element.

5 Here, for Plaintiff to have Article III standing, the FAC must allege facts

6 demonstrating that he suffered a concrete injury as a result of the ADA violations alleged

7 in the FAC and how the ADA violations were a barrier to his full and equal enjoyment.

8 The FAC satisfies these requirements. Plaintiff claims Precision Motor is not accessible

9 to him because the Defendants failed to comply with ADAAG sections 4.6.4 and 216.6.

10 (FAC ¶¶ at 16, 17.) The FAC alleges that on the date of Plaintiff’s visit, the 6 or more

11 marked parking lot spaces provided by Precision Motor had “no designated accessible

12 handicapped parking” nor was “there any signage indicating that there was handicapped

13 parking available.” (Id. at ¶¶ 14-16.) Plaintiff then explains how he searched for an

14 accessible parking spot, was unable to find one, and was forced to use a non-accessible

15 parking space. (Id. at ¶ 16.) When using the non-accessible spot, Plaintiff alleges that

16 because he requires extra space to enter and exit his vehicle safely, he “had difficulty

17 maneuvering and was fearful that the lack of space would result in falling and sustaining

18 serious injury.” (Id. at ¶16.) The FAC alleges that after exiting the vehicle, Plaintiff began

19 searching for an accessible route of travel to the business but was unable to find one. (Id.

20 at ¶ 17.) Plaintiff alleges that because of his disability and lack of mobility he “requires a

21 flat, smooth surface in order to reach a business entrance safely.” (Id.) These allegations

22 are sufficient to show how these are barriers to accessibility under ADAAG. Plaintiff has

23 also identified what difficulty the parking barriers and lack of accessible route of travel

24 created for him. See, e.g., Safer Chemicals, Healthy Families v. U.S. Envtl. Prot. Agency,

25 943 F.3d 397, 411 (9th Cir. 2019) (“A ‘particularized’ injury is one that ‘affect[s] the

26 plaintiff in a personal and individual way.’”).

27 Additionally, Plaintiff has traced the challenged conduct of each Defendant to

28 himself. See Spokeo, 136 S. Ct. at 1547 (plaintiff’s injury must be “fairly traceable to the

1 challenged conduct of the defendant.”) Plaintiff has alleged that it is Essel who owns the

2 subject property from which Precision Motor operates and that the parking lot is provided

3 by “the Business and located on the Subject Property.” (See FAC at ¶¶ 6, 15.)

4 Finally, “[to] establish standing to pursue injunctive relief, which is the only relief

5 available to private plaintiffs under the ADA, [a plaintiff] must demonstrate a ‘real and

6 immediate threat of repeated injury’ in the future.” Chapman, 631 F.3d at 946. As the

7 Ninth Circuit has explained, “under the ADA, once a plaintiff has actually become aware

8 of discriminatory conditions existing at a public accommodation, and is thereby deterred

9 from visiting or patronizing that accommodation, the plaintiff has suffered an injury.”

10 Pickern v. Holiday Quality Foods Inc., 292 F.3d 1133, 1136-37 (9th Cir. 2002). As long

11 as the discriminatory conditions continue, and as long as plaintiff is aware of them and

12 remains deterred, the injury continues. Id. at 1137. Here, Plaintiff has alleged that he lives

13 in Spring Valley, near Precision Motor, that he intends to continue to visit this place of

14 public accommodation and will do so in the future to enjoy its accommodations and to

15 “evaluate the facility’s accessibility to individuals with disabilities or to determine if other

16 forms of discrimination exist.” (FAC at ¶¶ 11, 14.) These facts present a reasonable

17 likelihood that Plaintiff will return.

18 Accordingly, the motion to dismiss the complaint, made pursuant to Rule 12(b)(1),

19 is DENIED.

20 2. Plaintiff has Stated a Claim under the ADA

21 Second, Defendants assert that Plaintiff has not pled facts sufficient to state a claim

22 under the ADA4. (Doc. No. 8-1 at 12-17.) The court disagrees.

23 Title III of the ADA prohibits discrimination against disabled persons in any place

24 of public accommodation. 42 U.S.C. § 12182. The definition of the term “public

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27 4 Because the court is declining supplemental jurisdiction over the state law claims, the

court declines to address Defendants’ arguments regarding whether these claims are

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1 accommodation” is expansive and includes places of recreation, exercise, establishments

2 serving food and/or drink, and sales or rental establishments. See id. § 12181(7)(A)-(L).

3 The concept of discrimination under the ADA includes obviously exclusionary conduct

4 and “more subtle forms of discrimination – such as difficult-to-navigate restrooms and

5 hard-to-open doors that interfere with disabled individuals’ ‘full and equal enjoyment’ of

6 places of public accommodation.” Chapman, 631 F.3d at 945 (quoting §12182(a)). To

7 establish a violation of Title III of the ADA, a plaintiff must show that: “(1) he is disabled

8 as that term is defined by the ADA; (2) the defendant is a private entity that owns, leases,

9 or operates a place of public accommodation; (3) the defendant employed a discriminatory

10 policy or practice; and (4) the defendant discriminated against the plaintiff based upon the

11 plaintiff’s disability by (a) failing to make a requested reasonable modification that was (b)

12 necessary to accommodate the plaintiff's disability.” Fortyune v. Am. Multi-Cinema, Inc.,

13 364 F.3d 1075, 1082 (9th Cir. 2004).

14 Here, Defendants do not dispute that Plaintiff, as a below knee amputee who uses a

15 wheelchair, is qualified as an individual with a disability as provided by the Act. It is

16 alleged that Defendant Essel owns the subject property located at 619 K St., Chula Vista,

17 California, 91910 and that Precision Motor is the lessor or lessee of the property. (FAC at

18 ¶¶ 4, 6.) The FAC sufficiently alleges that Precision Motor is a place of public

19 accommodation because it identifies it as a business establishment which offers automobile

20 repair services to the public. (Id. at ¶ 5.) And, as discussed above, Plaintiff has sufficiently

21 alleged that Defendants have employed a discriminatory policy or practice by failing to

22 provide accessible parking spaces and paths of travel. (See id. at ¶ 5, 14-18.) Further,

23 Plaintiff has also adequately pled that his denial of access to the public accommodation

24 was motivated by his alleged disability. (Id.) Accordingly, Defendants’ motion to dismiss

25 Plaintiff’s ADA claim, made pursuant to Rule 12(b)(6), is DENIED.

26 3. Jurisdiction Over Plaintiff’s State Law Claims

27 Defendants move the court to decline to exercise supplemental jurisdiction over

28 Plaintiff’s state law claims. (Doc. No. 8-1 at 18-20.)

1 28 U.S.C. § 1367 allows a federal court to exercise supplemental jurisdiction over

2 state law claims when it has original jurisdiction over claims arising from the same case or

3 controversy. A district court may decline supplemental jurisdiction over a state law claim

4 under § 1367(c) if:

5 (1) the claim raises a novel or complex issue of state law,

(2) the claim substantially predominates over the claim or claims over which

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the district court has original jurisdiction,

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(3) the district court has dismissed all claims over which it has original

8 jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

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declining jurisdiction.

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11 28 U.S.C. § 1367(c). See also Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1028 (S.D.

12 Cal. 2017) (“Supplemental jurisdiction is mandatory unless prohibited by § 1367(b), or

13 unless one of the exceptions in § 1367(c) applies.”). Additional factors that district courts

14 should consider when deciding whether to exercise supplemental jurisdiction, “includ[e]

15 the circumstances of the particular case, the nature of the state law claims, the character of

16 the governing state law, and the relationship between the state and federal claims.” City of

17 Chi. v. Int’l Coll. of Surgeons., 522 U.S. 156, 173 (1997).

18 “While the presence of any of the conditions in § 1367(c) triggers the court’s

19 discretion to decline supplemental jurisdiction, it is informed by considering “the values of

20 economy, convenience, fairness, and comity.” Acri v. Varian Assocs., Inc., 114 F.3d 999,

21 1001 (9th Cir. 1997). A court may decline supplemental jurisdiction under the first three

22 provisions of § 1367(c) without explanation. San Pedro Hotel Co. v. City of L.A., 159

23 F.3d 470, 478 (9th Cir. 1998). If a court declines jurisdiction under the fourth provision,

24 it must articulate why the case presents exceptional circumstances. Id. (citing Exec.

25 Software N. Am., Inc. v. U.S. Dist. Ct., 24 F.3d 1545, 1557 (9th Cir. 1994)).

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1 Here, Defendants argue that Plaintiff’s state law claims substantially predominate

2 over his ADA claim.5 See 28 U.S.C § 1367(c)(2). The court agrees.

3 First, the proof and issues raised by Plaintiff’s ADA and state law claims differ. A

4 plaintiff may recover under the Unruh Act by showing either intentional discrimination or

5 a violation of the ADA, but an ADA plaintiff need not demonstrate intentional

6 discrimination. See CAL CIV CODE § 51(f); Cohen v. City of Culver City, 577 F. App’x

7 745, 746 (9th Cir. 2014); Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 846-47 (9th Cir.

8 2004); Munson v. Del Taco, Inc., 46 Cal. 4th 661, 664-66 (2009). Here, Plaintiff asserts

9 one federal claim, along with seven separate state law claims, although two of the state law

10 claims are in actuality “claims for declaratory relief and injunctive relief.” Plaintiff alleges

11 that Defendants’ violations of the Unruh Act were “willful and with conscious, deliberate

12 or reckless disregard for the rights of disabled persons.” (FAC at ¶ 33.) In addition,

13 Plaintiff alleges that Defendants acted with negligence and negligence per se. (Id. at ¶¶ 46,

14 51.) By alleging intentional and negligent conduct, Plaintiff raises issues that are irrelevant

15 to his ADA claim.

16 Second, Plaintiff primarily seeks relief unavailable under the ADA. Under the ADA,

17 a plaintiff may only seek injunctive relief and is not entitled to damages. Wander v. Kaus,

18 304 F.3d 856, 858 (9th Cir. 2002). However, the Unruh Act and DPA allow a plaintiff to

19 seek damages and attorneys’ fees. CAL. CIV. CODE §§ 52, 54.36; Kaus, 304 F.3d at 858.

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5 The court notes that in the Reply, Defendants reference how federal courts “have told this

23 same plaintiff that he should stop forum shopping,” citing Rutherford v. Ara Lebanese

Grill, No. 18-cv-01498-AJB-WVG, (Doc. No. 10 at 4), and referring to an order to show

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cause issued in Rutherford v. BLM Victorville, No. ED CV 19-2017-DMG (SPx) claiming

25 it was the “SAME PLAINTIFF,” (id. at 9). But Mr. Rutherford is not the Plaintiff here, it

is Mr. Spikes and he was not a plaintiff in those actions.

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27 6 Any violation of the ADA is also a violation of the Unruh Act. Munson, 46 Cal. 4th at

671. However, a plaintiff may obtain damages and other relief under the Unruh Act that

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1 Plaintiff seeks injunctive relief, statutory damages, punitive and exemplary damages,

2 attorneys’ fees, and treble damages under the Unruh Act and DPA. Plaintiff alleges at least

3 two violations of the AADAG related to the parking lot and paths of travel. If proven,

4 these violations would entitle Plaintiff to a minimum of $8,000 in statutory damages under

5 the Unruh Act. See CAL. CIV. CODE § 52(a) (The Unruh Act provides that a defendant is

6 “liable for each and every offense for the actual damages, and any amount that may be

7 determined by a jury, or a court sitting without a jury, up to a maximum of three times the

8 amount of actual damages but in no case less than four thousand dollars ($4,000).”).

9 Further, Plaintiff seeks an award of compensatory and punitive damages, and an award of

10 up to three times the amount of actual damages pursuant to the Unruh Act and the DPA.

11 (FAC at 13.) The monetary damages Plaintiff seeks under the Unruh Act, DPA, and

12 California common law substantially predominate over his request for injunctive relief

13 under the ADA. See also Cuddeback, 262 F. Supp. 3d at 1030 (finding that monetary

14 damages of $36,000 sought by plaintiff under the Unruh Act substantially predominate

15 over federal injunctive relief); Org. for Advancement of Minorities with Disabilities v.

16 Brick Oven Rest., 406 F. Supp. 2d 1120, at 1131 (S.D. Cal. 2005) (holding that potential

17 statutory damage award of $56,000 under Unruh Act substantially predominated over

18 injunctive relief under the ADA); Rutherford v. Ara Lebanese Grill, No. 18cv1497 AJB

19 (WVG), 2019 WL 1057919, at *4 (S.D. Cal. Mar. 6, 2019) (holding that potential statutory

20 damage award of over $32,000 under Unruh Act substantially predominated over

21 injunctive relief under the ADA); Schutza v. Lamden, Case No.: 3:17-cv-2562-L-JLB, 2018

22 WL 4385377, at *4 (S.D. Cal. 2018) (“Considering proof of the presently alleged violations

23 would entitle him to a minimum of $ 12,000—a minimum of $ 4,000 for each offense,

24 plaintiff’s allegations indicate his predominant focus is uncovering as many possible

25 violations as possible and recovery of money damages under the Unruh Act.”).

26 Furthermore, the important interests of comity and the discouragement of forum

27 shopping provide additional reasons for declining supplemental jurisdiction. See United

28 Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (holding that comity is a factor to be

1 considered before exercising supplemental jurisdiction.) In 2012, in order to protect its

2 citizens and businesses from abusive litigation and to deter baseless claims, California

3 adopted heightened pleading requirements for disability discrimination lawsuits under the

4 Unruh Act. See CAL. CIV. P. CODE § 425.504; SB 1186, Chapter 383, § 24 (Cal. 2012).

5 Plaintiff and his counsel’s practice of filing duplicative actions against the same defendants

6 in both federal court and state court suggests that California’s procedural protections are

7 especially warranted when the court considers the 31 complaints the duo have filed since

8 2019.7 Notwithstanding the 15 actions listed, there are other disability discrimination cases

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11 7 In Spikes v. Arabo, 19cv1594-W-MDD (S.D. Cal. Jan 27, 2020), Magistrate Judge

Dembin issued an order to show cause (CM/ECF Dkt Entry No. 6) wherein he details the

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15 instances (including this action) where Mr. Bentley has filed a case in the Southern

13 District of California on behalf of Mr. Spikes for violation of the ADA and related state

law claims and then proceeded to file a lawsuit on his own behalf nearly identical to the

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federal action in San Diego Superior Court against the same defendants. The list of

15 lawsuits are: Bentley v. 123 Broadway Partners LLC, Case No. 37-2019-00006107-CU-

CR-CTL; Spikes v. 123 Broadway LLC, et al., Case No. 19cv194-CAB-KSC; Bentley v.

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ABU Noah Investments LLC, Case No. 37-2019-00046244-CU-CR-CTL; Spikes v. ABU

17 Noah Investments, LLC, et al., Case No. 19cv1672-BAS-WVG; Bentley v. All Pro Auto

Repair Inc., Case No. 37-2019-00045301-CU-CR-CTL; Spikes v. All Pro Auto Repair Inc.,

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et al., Case No. 19cv1591-CAB-WVG; Bentley v. Boden, Case No. 37-2019-00016319-

19 CU-CR-CTL; Spikes v. Boden, Case No. 19cv630-AJB-MDD; Bentley v. Carl A. Chase

Living Trust 12-10-14, Case No. 37-2019-0045334-CU-CR-CTL; Spikes v. Carl A. Chase

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Living Trust (12-00010-14) et al., Case No. 19cv1597-W-BGS; Bentley v. Chula Vista

21 Rentals, Case No. 37-2019-00018021-CU-CR-CTL; Spikes v. Chula Vista Rentals, LLC,

et al., Case No. 19cv641-H-BGS; Bentley v. El Mexicano Newspaper, Inc., Case No. 37-

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2019-00006099-CU-CTL; Spikes v. El Mexicano Newspaper, Inc. et al., Case No.

23 19cv195-DMS-MSB; Bentley v. Essel Commercial LP, Case No. 37-2019-00045315-CU-

CR-CTL; Spikes v. Essel Commercial L.P., et al., Case No. 19cv1592-JM-MSB; Bentley

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v. Lavenant, 37-2019-00006114-CU-CR-CTL; Spikes v. Lavenant, 19cv197-L-MSB;

25 Bentley v. Terrence William Mann Trustee of the Terrence William Mann Trust and Trustee

of the Mann Family Trust 3-13-04, Case No. 37-2019-00016311-CU-CR-CTL; Spikes v.

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Mann, et al., Case No. 19cv633-JLS-RBB; Bentley v. PGN198 Inc., 37-2019-00016522-

27 CU-CR-CTL; Spikes v. PGN198, Inc. et al., Case No. 19cv543-MMA-AHG; Bentley v.

Rosam LLC., Case No. 37-2019-00045065-CU-CR-CTL; Spikes v. Rosam, LLC. et al.,

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1 that Plaintiff has filed within this district, and an online search of cases filed by “Karel

2 Spikes” in San Diego County Superior Court reveals 12 cases filed since 20178.

3 “Therefore, as a matter of comity, and in deference to California’s substantial interest in

4 discouraging unverified disability claims, the Court declines supplemental jurisdiction over

5 Plaintiff’s Unruh Act claim.” Cuddeback, 262 F. Supp. 3d at 1031.

6 Finally, “federal courts may properly take measures to discourage forum shopping.”

7 Rutherford v. Econolodge, No. 18cv147 LAB (JMA), 2019 WL 950329, at * 3 (S.D. Cal.

8 Feb 27, 2019) (citing Hanna v. Plumer, 380 U.S. 460, 467-68) (1965)). Declining

9 supplemental jurisdiction in this case prevents Plaintiff from filing in this court to

10 circumvent the procedural protections present in state court. See Cuddeback,

11 262 F. Supp. 3d at 1031 (holding that plaintiff who had filed numerous ADA actions in

12 federal court was engaging in forum shopping “to avoid California’s heightened pleading

13 requirements for disability discrimination claims.”); Ara Lebanese Grill, 2019 WL

14 1057919, at *5 (“it would be improper to allow Plaintiff to use the federal court system as

15 a loophole to evade California’s pleading requirements.”)

16 In sum, because Plaintiff’s state law claims predominate over his federal claim under

17 the ADA, and the interests of comity and discouraging forum shopping constitute

18 exceptional circumstances, the court has determined that declining supplemental

19 jurisdiction over claims one through eight in the FAC is warranted.

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2019-00014337-CU-CR-CTL; Bentley v. San Diego Investments, LLC., Case No. 37-2019-

23 00014352-CU-CR-CTL; Spikes v. San Diego Investments LLC., et al., Case No. 19cv634-

H-MSB; Bentley v. Sanchez, 37-2019-00016207-CU-CR-CTL; Spikes v. Sanchez et al.,

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Case No. 19cv535-MMA-MDD; Bentley v. Shockley, Case No. 37-2019-00014346-CU-

25 CR-CR-CTL; Spikes v. Shockley, et al., Case No. 19cv523-DMS-JLB. Judge Dembin

noted that the 15 duplicative cases were the ones that the court had been made aware of

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and that there may be additional cases.

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8 Two of these cases appear to have been filed in 2019 by Mr. Spikes after federal district

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1 Conclusion

2 In accordance with the forgoing, Defendants’ motion to dismiss, (Doc. No. 8) is

3 || granted in part and denied in part. The motion to dismiss the ADA claim under either

4 ||Rules 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure is DENIED. However,

5 ||since the court is declining supplemental jurisdiction over Plaintiff's state law claims,

6 || Plaintiffs claims for violation of the Unruh Act, violation of California Health and Safety

7 ||Code section 19955, et seq., negligence per se, negligence, declaratory relief, and

8 ||injunctive relief ae DISMISSED WITHOUT PREJUDICE to refiling in state court.

9 IT IS SO ORDERED.

10 || Dated: April 8, 2020 .

1 Pela tae

12 n. Jeffreyf. Miller

nited States District Judge

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