Langer v. Honey Baked Ham, Inc.

1 □ .

FILED

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6

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10 8

11 || CHRIS LANGER, ) Case No.: 3:20-CV-1627-BEN-AGS

Plaintit, ORDER DENYING IN PART AND

13 || V. ) GRANTING IN PART

14 |} HONEY BAKED HAM, INC., a DISMING MOTION TO

15 California corporation; and DOES 1-10, )

16 Defendant. ) [ECF No. 8]

17 INTRODUCTION :

18 Plaintiff Chris Langer (‘Plaintiff’) brings this action for violations of (1) the

19 Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seg. (“ADA”), and (2)

20 | Unruh Civil Rights Act, Civ. Code, § 51, et seg. (“UCRA”), against Defendant Honey

21 Baked Ham, Inc., a California corporation (“Defendant”). ECF No. 1.

22 Before the Court is Defendant’s Motion to Dismiss Plaintiff's First Amended

23 ||Complaint pursuant to Federal Rules of Civil Procedure Rules 12(b)(1), 12(b)(6), |

24 |] 12(h)(3), and 28 U.S.C. section 1367(c) (the “Motion”). ECF No.8.

25 The motions were submitted on the papers without oral argument pursuant to Civil

26 ||Local Rule 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. ECF No.

27 After considering the papers submitted, supporting documentation, and applicable

28 the Court GRANTS in part and DENIES in part Defendant’s Motion.

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| BACKGROUND

2 A. Factual Background □

3 _ Defendant owns a Honey Baked Ham store in La Mesa, which provides “take out

4 |l and delivery of hams and ham related products.” ECF No. 5 at 1:18-20.

> Plaintiff alleges that he is a paraplegic, uses a wheelchair, and requires a specially

equipped van with a ramp for mobility. ECF No. 6 at 1:22-26. Plaintiff further alleges

7 that on July 3, 2020, he went to Defendant’s store, located at 5119 Jackson Drive, La

8 Mesa, California 91941 to make some purchases. Id. at 2:27-28. However, Plaintiff

9 || contends that during his visit, he encountered several problems which prevented him from

10 patronizing Defendant’s store, including but not limited to (1) a lack of van accessible

II parking spaces, (2) “massive slopes through the common access aisle,” and (3) a common

12 access aisle that was too small to allow him to deploy his van ramp. Jd. at 3:5-4:4.

13 Plaintiff pleads that because he “could not safely park at this location, he ended up going

14 to the Honey Baked Ham in Clairemont and made his purchase there.” Jd. at at □□□□□□□□

15 | Plaintiff also alleges that he “lives 15 minutes from this Honey Baked Ham location and

16 frequents this area ona constant and ongoing basis.” Jd. at at 4:14-15.

17 B. Procedural History

18 On August 21, 2020, Plaintiff filed his complaint alleging claims for relief for

19 || violations of (1) the ADA and (2) UCRA. ECF No. 1. Plaintiff seeks (1) injunctive relief

20 || under the ADA, (2) a statutory penalty in the amount of $4,000.00 under the UCRA, and |

21 reasonable attorney fees, litigation expenses, and costs of suit, pursuant to section 52

22 ll of the UCRA. ECF No. 6 at 7:1-8.

23 Defendant was served with the complaint on August 27, 2020, and on September

24 2020, timely filed this Motion to Dismiss Plaintiff's Complaint. ECF No. 5. However,

25 |/on September 10, 2020, Plaintiff filed a First Amended Complaint, ECF No. 6 (the

26 ||“FAC”), and Notice of Filing First Amended Complaint in Lieu of Opposing Motion to

27 ||Dismiss, noting that the “amended complaint supersedes the original complaint and moots

28 || [the] pending Rule 12 motion,” ECF No. 7 at 1:24-28. Accordingly, on October 8, 2020,

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| |i this Court issued an order denying Defendant’s initial motion to dismiss as moot due to

2 || Plaintiff's filing of the FAC. ECF No. 10.

3 On September 23, 2020, Defendant filed a Motion to Dismiss the FAC pursuant to

4 |/Rules 12(b)(1), 12(b)(6), 12(h)(3) and 28 U.S.C. § 1367. ECF No. 8. To date, Plaintiff

> not filed a response in opposition to Defendants’ Motion to Dismiss.

6 i. LEGAL STANDARD

A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction Under Rule

g it 12(b)(1)

9 Rule 12(b)(1) allows a defendant to seek dismissal of a claim or lawsuit by asserting

10 ||the defense of lack of subject matter jurisdiction. FED. R. Civ. P. 12(b)(1). “If the court

11 j|determines at any time that it lacks subject matter-jurisdiction, the court must dismiss the

12 |laction.” FED. R. Civ. P. 12(h)\(3). “Dismissal for lack of subject matter jurisdiction is

13 |lappropriate if the complaint, considered in its entirety, on its face fails to allege facts

14 sufficient to establish subject matter jurisdiction.” Jn re Dynamic Random Access Memory

15 || (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). “Although the defendant

16 the moving party in a motion to dismiss brought under Rule 12(b)(1), the plaintiff is the

17 || party invoking the court’s jurisdiction.” Brooke v. Kashl Corp., 362 F. Supp. 3d 864, 871

18 Cal. 2019). “As a result, the plaintiff bears the burden of proving that the case is

19 ||properly in federal court.” Jd; see also DRAM, 546 F.3d at 984 (“The party asserting

20 ||jurisdiction bears the burden of establishing subject matter jurisdiction on a motion to

21 dismiss for lack of subject matter jurisdiction.”),

2 “A court can only exercise subject matter jurisdiction over a plaintiff's claim if the

93 || plaintiff meets constitutional standing requirements.” Rutherford v. Leal, No. 3:20-CV-

24 ||0688-GPC-RBB, 2020 WL 5544204, at *2 (S.D. Cal: Sept. 16, 2020); see also Lujan v.

25 ||Defs. of Wildlife, 504 U.S. 555, 560 (1992) (providing that the Constitution limits

26 ||jurisdiction of federal courts to cases and controversies, and “standing is an essential and.

97 \junchanging part of the case-or-controversy requirement of Article IIT”). “The party

2g ||invoking federal jurisdiction bears the burden of establishing” standing. Lujan, 504 U.S.

3.

561. “To establish standing, a plaintiff must demonstrate (1) a concrete and

2 particularized injury that is actual or imminent, not conjectural or hypothetical: (2) a causal

3 connection between the injury and the defendant’s challenged conduct; and (3) a likelihood

4 |ithat a favorable decision will redress that injury.” Nat’! Family Farm Coalition v. EPA,

> F.3d 893, 908 (9th Cir. 2020) (quoting Pyramid Lake Paiute Tribe of Indians □□ Nev.,

6 || Dep't of Wildlife, 724 F.3d 1181, 1187 (9th Cir. 2013). The evidence relevant to the

7 || standing inquiry consists of “the facts as they existed at the time the plaintiff filed the

8 complaint.” D’Lil v, Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008).

9 “[M]otivation is irrelevant to the question of standing under Title III of the ADA.” Civil

10 | Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1102 (9th Cir. 2017).

1 ADA plaintiff secking an injunction requiring a place of public accommodation to

12 comply with the ADA has satisfied the redressability requirement for standing. Id.

13 || _ Even where a plaintiff establishes standing sufficient to make the court’s exercise of

14 jurisdiction over federal claims appropriate, the court retains discretion over whether to

15 | exercise supplemental jurisdiction over related state law claims pursuant to 28 □□□□□□ §

16 |} 1367(a); see also Gilder v. PGA Tour, Inc., 936 F.2d 417, 421 (9th Cir. 1991) (noting that

17 “[p]endent jurisdiction [over state law claims] exists where there is a sufficiently

18 || substantial federal claim to confer federal jurisdiction, and a common nucleus of operative

19 || fact between the state and’ federal claims.”) District courts may decline to exercise

20 supplemental jurisdiction over related claims where (1) the related “claim raises a novel or

2! complex issue of State law,” (2) “the claim substantially predominates over the claim or

22 claims over which the district court has original jurisdiction,” (3) “the district court has

23 dismissed all claims over which it has original jurisdiction,” or (4) “in exceptional

24 || circumstances, there are other compelling reasons for declining jurisdiction.” 28 □□□□□□ §

25 |}1367(c). “The decision to retain jurisdiction over state law claims is within the district

26 court’s discretion, weighing factors such as economy, convenience, fairness, and comity.”

27 || Brady v. Brown, 51 F.3d 810, 816 (9th Cir, 1995). Further, district courts do not need to

28 “articulate why the circumstances of [the] case are exceptional” to dismiss state-law claims

4.

| pursuant to 28 U.S.C. section 1367(c)(1)-(3). See San Pedro Hotel Co., Inc. v. City of L.A.,

* F.3d 470, 478-79 (9th Cir. 1998)).

3 B. Motion to Dismiss for Failure to State a Claim Under Rule 12(b)(6)

4 Under Rule 12(b)(6), a complaint must be dismissed when a plaintiff's allegations

> || fail to set forth a set of facts which, if true, would entitle the complainant to relief. Bell

6 || Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679

7 (2009) (holding that a claim must be facially plausible to survive a motion to dismiss). The

8 || pleadings must raise the right to relief beyond the speculative level; a plaintiff must provide

9 “more than labels and conclusions, and a formulaic recitation of the elements of a cause of

10 |l action will not do.” 7 wombly, 550 U.S. at 555 (citing Papasan vy. Allain, 478 U.S. 265,

1 286 (1986)). On a motion to dismiss, a court accepts as true a plaintiff's well-pleaded

12 || factual allegations and construes all factual inferences in the light most favorable to the

13 plaintiff. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir,

14 2008). A court is not required to accept as true legal conclusions couched as factual

1) || allegations. Igbal, 556 U.S. 678.

16 In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of

17 the complaint and material properly submitted with the complaint. Van Buskirk v. Cable

18 || News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard

19 Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). When a motion to dismiss

20 |/is granted, the court must decide whether to grant leave to amend. The Ninth Circuit has a

21 || liberal policy favoring amendments and, thus, leave to amend should be freely granted.

22 || DeSoto v. Yellow Freight System, Inc., 957 F.2d 655, 658 (9th Cir. 1992). However, a

23 need not grant leave to amend when permitting a plaintiff to amend would be an

24 exercise in futility. Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d.729, 738 (9th Cir.

25 || 1987).

26 ||IV. DISCUSSION .

27 Defendant argues that “[t]he present lawsuit should be dismissed for a trifecta of

28 || independently fatal deficiencies: pleading, jurisdictional, and factual.” ECF No. 8-1 at

5.

I 4:6-7. The gist of Defendant’s argument is that the federal court-has discretion to decline

2 IIto exercise supplemental jurisdiction and should do so here because the majority of recent

3 federal ADA cases have been declining to exercise supplemental jurisdiction over pendent

4 | state law claims. Id. at 4. Defendant also asks the Court to require Plaintiff to make an

5 evidentiary showing under oath, establishing his intent to return to Defendant’s business

© Il as to the remaining federal claims. /d. at 8:9-15. The Court denies Defendant’s Motion

7 Il to Dismiss pursuant to Rule 12(b)(6) on the basis that Defendant failed to argue how or

8 || why the allegations of the FAC fail to state a-claim for relief. However, the Court grants

? Defendant’s Rule 12(b)(1) Motion to Dismiss the pendent state law claims only because,

10 discussed below, (1) Plaintiff failed to oppose Defendant’s request that the Court

1] decline exercising supplemental jurisdiction over the pendent state law claims and (2) the

12 1 Court agrees that the state law issues predominate and judicial comity and fairness

13 supports the Court’s decision to decline to exercise supplemental jurisdiction.

A, By Failing to Respond, Plaintiff Waived Any Argument in Opposition to

15 □ the Motion. □ □

16 Local Rule 7.1(£)(3)(a) requires a party opposing a motion to either file a (1) written

7 opposition or (2) “written statement that the party does not oppose the motion.” If an

18° opposing party fails to file the papers in the manner required by the local rules, “that failure

19 may constitute a consent to the granting of a motion or other request for ruling by the

court.” §.D. Cal. Civ. R. 7.1((3)(c); see also V. VV. & Sons Edible Oils Lid. v. Meenakshi

Overseas, LLC, 946 F.3d 542, 547 (9th Cir. 2019) (noting that claims can be abandoned if

3 their dismissal is unopposed); Jenkins v. Cty. of Riverside, 398 F.3d 1093, 1095 n. 4 (9th

33 Cir. 2005) (“Jenkins abandoned her other two claims by not raising them in opposition to

the County’s motion for summary judgment.”). As such, for purposes of ruling on this

35 Motion, the Court treats Defendant’s arguments as unopposed but examines the merits of

those arguments nonetheless.

26 B. Defendant Fails to Argue Why Plaintiff Failed to State a Claim for Relief

27 Under Rule 12(b)(6).

28 Although Plaintiff's failure to oppose the Motion would justify the Court in granting

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it, the Court declines doing so, in part, because Defendant fails to set forth how or why

2 | Plaintiffs FAC should be dismissed pursuant to Rule 12(b)(6).

3 “An individual alleging discrimination under Title III must show that: (1) he is

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

5 leases, or operates a place of public accommodation; (3) the defendant employed a

6 discriminatory policy or practice; and (4) the defendant discriminated against the plaintiff

7 \lbased upon the plaintiffs disability by (a) failing to make a requested reasonable

8 || modification that was (b) necessary to accommodate the plaintiff's disability.” Fortyune v.

9 Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004). Here, Plaintiff has alleged

10 |) that (1) he is disabled and uses a wheelchair, ECF No. 6 at 1:22-26, (2) the defendant is a

private entity that owns a place of public accommodation, id. at 3:1-2, and (3) Defendant

12 employed a discriminatory practice (e.g., “massive slopes”), id. at 3:3-8. The FAC does

13 |! not explicitly allege that Defendant discriminated against Plaintiff based upon his disability

14 by (a) failing to make a requested reasonable modification that was (b) necessary. to

13 accommodate the plaintiff's disability. ‘However, under the ADA, “fiJt shall be

16 || discriminatory to subject an individual or class of individuals on the basis of a disability .

directly, or through contractual . . . arrangements, to a denial of the opportunity of the

18 individual or class to participate in or benefit from the goods, services, facilities, privileges,

19 || advantages, or accommodations of an entity.” 42 U.S.C. § 12182. Here, Plaintiff alleges

20 || that he “could not safely park at this location,” as “[t]here was no ADA accessible parking

21 the lot and plaintiff could not use this parking space without extreme difficulty and.

22 || discomfort—if he was to able to use it all.” Jd. at 4:2-4, 12. Thus, Plaintiff's allegations

23 |icreate a plausible claim he was discriminated against by virtue of being denied the

24 opportunity to benefit from the goods due to his disability. Further, while there are no

25 explicit allegations that (1) Plaintiff requested the modifications be made and/or (2) the

26 || modifications are necessary to accommodate Plaintiff's disability, the Court likewise

27 || construes the factual allegations as creating a plausible claim for relief under the ADA.

Because, as discussed below, the Court declines the exercise of supplemental

7. oe

| jurisdiction with respect to the claims brought under the UCRA, the Court declines to

2 analyze whether Plaintiff pled sufficient facts to state a claim for relief as to those claims.

3 C. Because _the State Law Claims Predominate, the Court □□□□□□□□

4 Supplemental Jurisdiction.

5 Defendant correctly argues that not only does the Court have discretion to decline

6 || exercising supplemental jurisdiction, but many recent district court decisions are declining

-7 || the exercising of supplemental jurisdiction in similar cases. ECF No. 8-1 at 5..Defendant

8 also argues that the UCRA state law claims predominate over Plaintiffs ADA claim, and

9 || this Court, like many other courts, agrees. Id. at 5:1-2.

10 1. Plaintiff Has Pled Sufficient Facts to Establish Standing.

1 As an initial matter, because standing is a jurisdictional issue, and Defendant moves

12 Court pursuant to Rule 12(b){1) for lack of jurisdiction, the Court analyzes Plaintiff's

13 Standing. “Federal courts are required sua sponte to examine jurisdictional issues such as

14, standing.” D’Lil, 53 8 F.3d at 1035 (internal quotations omitted). “[A]s with other civil

15 |{tights statutes, to invoke the jurisdiction of ‘the federal courts, a disabled. individual

16 claiming discrimination must satisfy the case or controversy requirement[s] of Article II

by demonstrating his standing to sue at each stage of the litigation.” Kashi, 362 F. Supp.

1g at 872. Establishing standing in ADA cases seeking injunctive relief requires the

19 ||Plaintiff to plead (1) a concrete and particularized injury in fact that is both actual or

99 || imminent as opposed to conjectural or hypothetical; (2) a causal connection between the

alleged injury and the defendant’s challenged conduct; (3) a likelihood that a favorable

decision will redress that injury, and (4) a sufficient likelihood the plaintiff will be wronged

53 a similar way by showing a real and immediate threat of repeated injury. EPA, 966 F.3d

at 908; Kashl, 362 F, Supp. 3d at 872; Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075,

95 || 1082 (9th Cir. 2004). .

2% In ADA cases, the first prong of standing, or the “injury in fact” requirement,

requires the court to determine whether the plaintiff “demonstrated that [his or] her injury

ag || was ‘actual or imminent’ at the time that [he or] she filed [his or] her complaint.” D/’Zil,

| F.3d at 1036 (citing Lujan, 504 U.S. at 560). An ADA plaintiff seeking injunctive

2 II relief must satisfy this requirement by demonstrating the plaintiff has “a sufficient

3 Ihikelihood that he will again be wronged in a similar way” by establishing “a real and

4 immediate threat of repeated injury.” Fortyune, 364 F.3d at 1081 (quoting City of Los

5 Angeles v. Lyons, 461 U.S. 95, 111 (1983), and O’Shea v. Littleton, 414 U.S. 488, 496

6 (1974)). Under the Ninth Circuit’s deterrent effect doctrine, “a disabled individual who is

a currently deterred from patronizing a public accommodation due to a defendant’s failure

8 Il to comply with the ADA has suffered ‘actual injury.’” Doran v. 7-Eleven, Inc., 524 F.3d

? 1034, 1040 (9th Cir. 2008) (quoting Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133,

10 |! 1138 (9th Cir. 2002)). A person need not make a futile effort to encounter a barrier to show

i injury: “Once a disabled individual has .. . become aware of alleged ADA violations that

12 II deter his patronage of or otherwise interfere with his access to a place of public

13 |accommodation, he has already suffered an injury in fact traceable to the defendant’s

conduct and capable of being redressed by the courts.” Doran, 524 F.3d at 1042, n.5.

15 Under the second prong, an ADA plaintiff seeking injunctive relief must show a

16 and immediate threat of repeated injury,” Lyons, 461 U.S. at 102, by establishing a

17 likelihood of returning to the defendant’s premises, Leal, 2020 WL 5544204, at *2. The

18 |/Ninth Circuit has utilized a four-part test to analyze an ADA plaintifP s intent to return,

19 || which evaluates (1) the proximity of the place of the public accommodation to the

20 || plaintiff's residence, (2) the plaintiff's past patronage of the defendant’s business, (3) the

21 || definitiveness of plaintiff's plans to return, and (4) the plaintiff's frequency of travel near

22 || defendant. Molski v. Mandarin Touch Restaurant, 385 F.Supp.2d 1042, 1045 (2005)

23 || in part, dismissed in part sub nom, Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th

24 Cir. 2007). As to the third prong, a plaintiff seeking an injunction requiring a place of

25 public accommodation to comply with the ADA has satisfied the redressability requirement

26 || for standing. Civil Rights Educ., 867 F.3d at 1102.

27 In D’Lil, the plaintiff was a paraplegic who, like Plaintiff, required the use of a

28 || wheelchair for mobility. 538 F.3d at at 1033. The plaintiff worked as an “accessibility

1 consultant,” meaning that she contracted “with private attorneys and local governments to

2 || evaluate properties for barriers to disabled access.” Jd. at 1034 n. 1. She “traveled from

3 liher home in Sacramento to Santa Barbara, California in order to conduct a property

4 inspection for [an] attorney” and encountered numerous barriers to access. /d. at 1034.

After her trip, she filed suit against the defendant hotel, seeking, like Plaintiff

6 here, “injunctive relief under Title III of the ADA, injunctive relief and damages under

7 || California civil rights laws, as well as attorney’s fees, litigation expenses, and costs.” Id.

8 || When the plaintiff filed her motion for attorney’s fees, the district court, sua sponte,

9 expressed concern over whether the plaintiff had standing to sue. Id

10 On appeal, the Ninth Circuit reversed the district court’s finding that the plaintiff

11 | lacked standing. D'Lil, 538 F.3d at 1041. In the context of suits for injunctive relief filed

12 pursuant to the ADA, a plaintiff establishes the “actual or imminent” injury requirement

13 for standing by showing an ‘intent to return to the geographic area where the

14 | accommodation is located and a desire to visit the accommodation if it were made

15 |l accessible.” Id. at 1037. The court reviewed evidence in the record that the plaintiff had

16 given “detailed reasons as to why she would prefer to stay at the Best Western Encina

17 during her regular visits to Santa Barbara” and “testified to three upcoming trips that she

18 was planning to the Santa Barbra area.” id, at 1038. As a result, the court concluded that

19 the district court erred in finding that the plaintiff had “failed to provide evidence of her

20 || intent to return at the time that she filed suit.” Jd. at 1039. The plaintiff had “established

21 she suffered an ‘actual or imminent’ injury sufficient to confer standing.” Jd.

22 || Like the D’Lil plaintiff, who the Ninth Circuit found to have standing, Plaintiff here

23 alleged reasons why he would prefer to use the Honey Baked Ham in La Mesa. See

24 |/FAC at 4, J 16 (pleading that “[bJecause plaintiff could not safely park at this location, he

25 || ended up going to the Honey Baked Ham in Clairemont and made his purchase there,” but

26 ||lives “15 minutes from this [the La Mesa] Honey Baked Ham location”). Thus, at least at

27 || the pleading stage when courts must liberally construe all allegations in favor of a plaintiff,

28 || Manzarek, 519 F.3d at 1031, the FAC pleads sufficient facts to establish standing.

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Defendant is correct that other courts have required an evidentiary hearing in ADA

2 || cases so the plaintiff may present evidence of an intent to return, especially in cases filed

3 by high frequency litigants. See, e.g., Rutherford v. Evans Hotels, LLC, No. 18-CV-435

4 (MSB), 2020 WL 5257868, at *1 (S.D. Cal. Sept. 3, 2020) (“On April 29, 2019, the

> |! Court... ordered Plaintiffs to show cause why this action should not be dismissed for lack

© Article IL standing and subject-matter jurisdiction,” noting “it would appear that

7 || Plaintiffs cannot establish an intent to return or deterrence and therefore lack standing to

8 assert their ADA claims.”) (Sammartino, J.). However, courts have also held that if a

9 plaintiff “is going to be disbelieved on the issue of standing, it should be in the context of

10 factfinding, not in the context of a Rule 12(b)(1) motion.” Kashl, 362 F. Supp. 3d at 876.

di _ For example, in Kashi, the court denied the defendant’s motion to dismiss for lack

12 standing, which like the motion here, argued, in part, that “the welter of Plaintiff's other

13 |] ADA filings, in this judicial district and beyond,” belied “a legitimate intent to return to

14 any of the 605 hotels sued in the Californian district courts.” Jd. at 875. However, the

15. court noted that the plaintiff's “professed intentions to visit the other hotels—sincere or

16 || otherwise—are not before this Court.” Jd. at 875-76. This is because “flor the purposes

17 | of this Rule 12(b)(1) motion, the Court is only concerned whether Plaintiff has adduced

18 || enough support for the proposition that [he or] she is likely to return.” Jd. at 876. Thus,

19 Kashl court found the plaintiff had adequately alleged an intent to return and denied

20 || the motion to dismiss. Id. □□

21 Here, Plaintiffs allegations satisfy the Mo/ski factors by pleading facts as to (1) the

22 || proximity of the Honey Baked Ham to Plaintiff's residence, see FAC at 4:14 (“Plaintiff

23 15 minutes from this Honey Baked Ham location”); (2) Plaintiff's past patronage of

24 || Defendant’s business, namely, on July 3, 2020, id. at 2:27-28, (3) Plaintiff's plan to return

25 |lif the barriers are remedies, id. at 4:14-18 (“Plaintiff will return to the Honey Baked Ham

26 |Ito avail himself of its goods and to determine compliance with the disability access laws

27 |/ once it is represented to him that the Honey Baked ham and its facilities are accessible”),

28 |/and (4) Plaintiffs frequency of travel near Defendant, FAC at 4:14-15 (pleading that

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Plaintiff “frequents this area on a constant and ongoing basis”). Molski, 385 F.Supp.2d at

2 11045, Because the Court must accept all well-pled allegations as true on a motion to

3 dismiss, the Court finds that Plaintiff adequately pled an intent to return to establish

4 standing and denies Defendant’s Motion to dismiss all claims for failure to state a claim.

5 2. Because State Law Claims Predominate, the Court Declines

‘ Exercising Supplemental Jurisdiction.

7 Defendants note that since the decision in Schutza v. Cuddeback, 262 F. Supp. 3d

8 1025 (S.D. Cal. 2017) declining the exercise of supplemental jurisdiction over related state

9 claims in an ADA case, the tide has changed and over 931 cases have favorably cited

10 ||the decision rejecting supplemental jurisdiction. ECF No. 8-1 at 5:10-14. As such,

11 || Defendants ask the Court to decline exercising supplemental jurisdiction.

12 In federal court, a plaintiff is “the master of the claim,” and as such, may choose the

13 || forum in which he or she litigates. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

14 However, where a plaintiff brings related state law claims in federal court, courts must

15 || balance the efficiency of exercising supplemental jurisdiction over related state law claims

16 caused by the preservation of judicial resources with the principles of comity and fairness.

17 || United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (noting that where “state issues

1g || Substantially predominate, whether in terms of proof, of the scope of the issues raised, or

19 of the comprehensiveness of the remedy sought, the state claims may be dismissed without

20 prejudice and left for resolution to state tribunals”). “Pendent jurisdiction [over state law

31 {|¢laims] exists where there is a sufficiently substantial federal claim to confer federal.

99 jurisdiction, and a common nucleus of operative fact between the state and federal claims.”

Gilder, 936 F.2d at 421. However, comity represents a valid reason for district courts to

94 decline exercising supplemental jurisdiction where a case involves strong reasons to have

95 ||State courts interpret state law or the plaintiff has engaged in forum shopping. Org. for

Advancement of Minorities with Disabilities v. Brick Oven Rest., 406 F. Supp. 2d 1120,

7 1132 (S.D. Cal. 2005).

78 Recently, almost every district judge in the Southern District has declined to exercise

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| supplemental jurisdiction over supplemental state law claims in similar cases alleging

2 || violations of the ADA and UCRA. See, e. g, Velez v. Cloghan Concepts, LLC, 387 F. Supp.

3 1072, 1078 (S.D. Cal. 2019) (Moskowitz, J.) (declining “to exercise supplemental

4 jurisdiction out of deference to California’s heightened pleading requirements for disability

> | awsuits under the Unruh Act, and in the interest of comity, as California courts should

6 interpret the state’s disability laws”); Cuddeback, 262 F. Supp. 3d at 1027-32 (Bashant, J.)

(declining supplemental jurisdiction over the plaintiff’ s UCRA claim “as a matter of

8 comity, and in deference to California’s substantial interest in discouraging unverified

9 disability discrimination claims”); Schutza v..McDonald’s Corp., 133 F. Supp. 3d 1241,

10 || 1247-48 (S.D. Cal. 2015) (Hayes, J.) (holding that the state law claims predominated where

I California accessibility standards provided an independent basis for liability on state law

12 claims, plaintiff alleged intentional discrimination, and the plaintiff sought damages and

13 fees); Feezor v. Tesstab Operations Grp., Inc., 524 F. Supp. 2d 1222, 1224 (S.D. Cal. 2007)

14 (Lorenz, J.) (“Given the disparity in terms of comprehensiveness of the remedy sought,

13 law claims - substantially predominate over the ADA for purposes

16 || of 28 U.S.C. § 1367(c)(2).”); see also Brooke v. Suites LP, No. 3:20-CV-01217-H-AHG,

17 WL 6149963, at *5—6 (S.D. Cal. Oct. 19, 2020) (Huff, J) (declining supplemental

18 jurisdiction over the plaintiff's UCRA claim “because it substantially predominates over

19 || her federal claim under the ADA and exceptional circumstances favor dismissal, including

20 || the Court’s interests in comity and discouraging forum-shopping”); Brooke v. SDMV Hotel

21 || Partners LP, No. 20-CV-1904-CAB-AHG, 2020 WL 5709203, at *2 (S.D. Cal. Sept. 24,

22 || 2020) (Bencivengo, J.) (noting that “[o]ver the past five years, Ms. Brooke has filed over

23 || 100 disability discrimination cases in this court, including forty-six in 2020 alone,” and as

24 || such, “the need for California’s procedural protections appears particularly acute”); Leal,

25 ||2020 WL 5544204 at *4—5 (Curiel, J.) (“Numerous district court cases have recognized

26 || that exercising supplemental jurisdiction over a high frequency litigant’s Unruh Act claims

27 || would frustrate California’s policy, as codified by statute, of subjecting such claims to

28 || stricter pleading standards and allow serial litigants to ‘use the federal court system as a

4 .

I loophole to evade California’s pleading requirements.’”); Rutherford v. Evans Hotels, LLC,

2 18-CV-435 ILS (MSB), 2020 WL 5257868, at *1 (S.D. Cal. Sept. 3, 2020)

3 (Sammartino, J.) (dismissing the second claim for relief for violation of the ADA for lack

4 lof standing, after holding an evidentiary hearing, declining to exercise supplemental

5 jurisdiction, and remanding to the superior court); Rutherford v. JC Resorts, LLC, No. 19-

6 CV-00665-BEN-NLS, 2020 WL 4227558, at *6 (S.D. Cal. July 23, 2020) (Benitez, J.)

7 (granting the defendant’s motion for summary judgment as to the ADA claim and declining

8 to retain supplemental jurisdiction over the UCRA claim); Whitaker v. Tesla Motors, Inc.,

19-CV-01 193-AJB-BLM, 2020 WL 2512205, at *3-4 (S.D. Cal. May 15, 2020)

10 (Battaglia, J.) (declining to exercise supplemental jurisdiction “out of deference to

11 I! California’s heightened pleading requirements for disability lawsuits, and in the interest of

12 comity, as California courts should interpret the state’s disability laws.”); Spikes v. Essel

13 Commercial, L.P., No. 19CV1592 JM(MSB), 2020 WL 1701693, at *6-8 (S.D. Cal. Apr.

14 2020) (Miller, J J (denying the defendants? motion to dismiss the ADA claim under Rules

id 12(b)(1) and 12(b)(6) while granting it in part as. to the state law claims because

16 “[d]eclining supplemental jurisdiction in this case prevents Plaintiff from filing in this court

17 circumvent the procedural protections present in state court.”); Schutza v. Alessio

8 || Leasing, Inc., No. 18CV2154-LAB (AGS), 2019 WL 1546950, at *3-4 (S.D. Cal. Apr. 8,

19 }/201 9) (Burns, Chief J.) (denying the motion to dismiss the ADA claim because the plaintiff

20 had stated a plausible claim for relief under the ADA, but declining to exercise

21 supplemental jurisdiction over the plaintiff's state law claim under the UCRA in the

22 |linterests of comity and dismissing that claim without prejudice); Schutza v. Lamden, No.

23 3:17-CV-2562-L-JLB, 2018 WL 4385377, at *5 (S.D. Cal. Sept. 14, 2018), appeal

24 || dismissed, No. 18-56338, 2019 WL 5105466 (9th Cir. Apr. 23, 2019) (Lorenz, J.) (noting

25 || that California’s “heightened pleading standard acts as a barrier to baseless and vexatious

26 || litigation,” and where the plaintiff intended to seek the same injunctive relief in both courts,

27 distinct advantages plaintiff gains by bringing his Unruh Act claim in federal court is

28 || skirting the state-imposed pleading requirements and a lower burden of proof to recover

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1 money damages”); Riazati v. Pub. Storage Inc., No, 18CV183-MMA (KSC), 2018 WL

2 827, at *5 (S.D. Cal. Feb. 5, 2018) (Anello, J.) (declining “to exercise supplemental

3 | jurisdiction over Plaintiff's remaining state law claims” because “[i]t appears that

4 |! Plaintiff's remaining claims are state tort claims governed by California law”). Thus,

> courts agree that they should decline supplemental jurisdiction where a plaintiff appears to

6 filing suit in federal court for the purpose of circumventing California state law.

Here, PlaintifP s federal claims arise under the ADA, while the state law claims arise

8 under the UCRA. As detailed below, in accordance with this district, this Court declines

9 exercising supplemental jurisdiction because (1) state law claims predominate, (2) comity

10 |} favors having the state court exercise jurisdiction over the state law claims, and (3)

compelling interests favor discouraging forum-shopping.

12. First, in light of the remedies provided under the federal and state laws, the state

13 claims predominate. Plaintiffs claims arising under California’s UCRA provide

14 || more expansive remedies than the claims brought under the ADA, and Plaintiff is

15 pursuing remedies under both laws. For example, California provides greater protection

16 |I than the ADA by allowing recovery of money damages, see Pickern, 194 F.Supp.2d at

17 |11131 , while “the only remedy available under the ADA is injunctive relief,” see Feezor, .

18 F.Supp.2d at 1224-25 (citing 42 U.S.C. § 12188(a)(1); Wander v. Kaus, 304 F.3d

19 |) 856, 858 (9th Cir. 2002)). As a result, the UCRA substantially predominates over the -

20 || ADA claim because the ADA claim “appears to be a second claim included to justify

21 |! filing the complaint in this Court, rather than a necessary (let alone predominant) claim

22 | in this lawsuit.” ‘Brooke v. Crestline Hotels & Resorts LLC., No. 20-cv-301-CAB-AGS,

23 U.S. Dist. LEXIS 34001, at *3 (S.D. Cal. Feb. 25, 2020).

24 Second, comity favors declining supplemental jurisdiction because the federal and

25 || state law claims may require different proof, and the state law claims are subject to a

26 ||heightened pleading standard. “[I]n 1992, the California Legislature amended California

27 || Civil Code Section 51 and added a provision that a defendant violates the Unruh Act

28 || whenever it violates the ADA.” Feezor, 524 F.Supp.2d at 1224-25 (citing Civ. CODE §

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I 1(f) (“A violation of the right of any individual under the federal Americans with

2 Disabilities Act of 1990 (P.L. 101-3361) shall also constitute a violation of this section.”).

3 Thus, a violation of the ADA violates the UCRA, but a violation of the UCRA does not

4 necessarily violate the ADA. Further, another important distinction between the federal

> lland state law claims is that while a violation of the ADA does not require intentional

6 discrimination, a claim under the UCRA may require such an intent. McDonald ’s, 133

Supp. 3d at 1247. Thus, intent to discriminate would only be relevant to the Plaintiff's

8 UCRA discrimination claims and would require application of state law standards. See,

9 Ile. g., Lentini vy. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 846 (9th Cir. 2004) (“It is

10 undisputed that a plaintiff need not show intentional discrimination in order to make out

11 |) 4 violation of the ADA.”) “When federal courts consider claims under state law, they are

12 apply federal procedural law and state substantive law.” O’Campo v. Chico Mall, LP,

13 11758 F.Supp.2d 976, 984-85 (E.D. Cal. 2010) (citing Erie R. Co. v. Tompkins, 304 US. 64

14 (1938)). ‘Here, given various issues of proof require application of state law, comity

15 favors having a state court, familiar with such standards, resolve those issues.

16 Third, compelling interests of comity as well as discouraging forum shopping

17 support this Court’s decision to decline exercising supplemental jurisdiction over the

18 UCRA claims. See Gibbs, 383 U.S. at 726 (holding that comity is a factor to be considered

19 before exercising supplemental jurisdiction). “California has a strong interest in protecting

20 || its citizens and businesses from abusive litigation and also in preventing its own laws from

21 misused for unjust purposes.” Suites LP, 2020 WL 6149963 at *5-6. “In 2012,

22 |! California adopted heightened pleading requirements for disability discrimination lawsuits

23 || under the Unruh Act, including provisions requiring high-frequency litigants to verify and

24 |! specify their allegations.” Cuddeback, 262 F. Supp. 3d at 1031-32 (citing CAL. CODE CIv.

25 PROC. § 425 50). Under this standard, “[e[xcept in complaints that allege physical injury

26 || or damage to property, a complaint filed by or on behalf of a high-frequency litigant” must

27 || state: (1) “[w]hether the complaint is filed by, or on behalf of, a high-frequency litigant”;

28 “the number of complaints . . . alleging a construction-related accessibility claim that

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1 Wthe high-frequency litigant has filed during the 12 months prior to filing the complaint”;

2 | and (3) “the reason the individual was in the geographic area of the defendant’s business.”

3 |! CAL. CODE Civ. Proc. § 425.50(a){4) (noting that “high-frequency litigant” has the same

4 meaning as set forth in subdivision (b) of Section 425.55”); see also CAL. CODE Cr. PROC,

3° § 425.55(b) (defining a “high-frequency litigant” as either a plaintiff or attorney “who has

6 || filed 10 or more complaints alleging a construction-related accessibility violation within

T 12-month period immediately preceding the filing of the current complaint alleging a

8 || construction-related accessibility violation”). “The purpose of these heightened pleading

9 requirements is to deter baseless claims and vexatious litigation.” Cuddeback, 262 F. Supp.

10 at 1031. In 2015, “[t]he Unruh Act was amended again . . . to implement additional

procedural requirements for ‘high-frequency litigants,” requiring individuals who have

12 |! filed more than 10 accessibility-related complaints in the previous years, like Plaintiff, “to

13 || pay additional filing fees and plead even more specific information in their complaints,

i such as ‘the reason the individual was in the geographic area of the defendant’s business.’”

15 || Alessio Leasing, 2019 WL 1546950 *3 (citing CAL. Crv. PROC, CODE § 425.50(a)(4)(A)

16 (effective October 10, 2015)). “Unfortunately for California, its courts rarely get to

17 interpret the meaning and application of these provisions because creative plaintiffs are

18 |lable to evade the heightened standards by bootstrapping an Unruh Act claim to a

19 || federal ADA claim, taking advantage of the lower pleading standards that come with it”

20 || 7d. While there is nothing per se improper with a plaintiff's desire to proceed in federal

21 || court, there appears to be no reason to do so when “[t]he only relief available under

22 II the ADA is injunctive relief, which can also be secured in state court.” Jd. “Thus, ‘it would

23 improper to allow Plaintiff to use the federal court system as a loophole to evade

24 ||California’s pleading requirements.’” Suites LP,.2020 WL 6149963, at □□□□□ see

25 || also Org. for Advancement of Minorities with Disabilities v. Brick Oven Rest., 406 F. Supp.

26 1120, 1132 (S.D. Cal. 2005) (“Because a legitimate function of the federal courts is to

27 ||discourage forum shopping and California courts should interpret California law . . .

28 || compelling reasons exist to decline supplemental jurisdiction”).

-|7-

In Schutza v. Cuddeback, this district court held that the plaintiff's state law claim

2 substantially predominated over his ADA Title III claim, and as such, judicial economy,

3 convenience, fairness, and comity warranted the court declining supplemental jurisdiction

4 over the UCRA claims. 262 F,. Supp. 3d at 1027-32. Mr. Schutza,' like Plaintiff, is a

5 paraplegic who uses a wheelchair for mobility and filed a lawsuit alleging “he was unable

© |! to access or use the property because of various access barriers, including barriers in the

7 || parking lot, at the entrance door, in the establishment itself, and in the restroom area.” Id.

8 Hat 1027-28. Also like Plaintiff, Mr. Schutza filed suit seeking monetary damages under the

? || Unruh Act and injunctive relief under the ADA. Id.

10 The Cuddeback court noted that PACER records revealed that Mr. Schutza had (1)

11 a plaintiff in 127 cases as of March 27, 2017 alleging disability discrimination and

12 (2) settled 56 disability cases since 2015. 262 F. Supp. 3d at 1031, n. 4-5. It reasoned that

13 “[a]s a high-frequency litigant primarily seeking relief under state law, . . . it would be

14 improper to allow Plaintiff to use federal court as an end-around to California’s pleading

15) requirements” by exercising supplemental jurisdiction. Jd. The court also agreed with the

16 || defendants’ “contention that Plaintiff is engaging in forum-shopping by bringing his action

17 |l in federal court and attempting to avoid California’s heightened pleading requirements for

18 disability discrimination claims.” Jd. at 1031 (“It is unclear what advantage—other than

19 avoiding state-imposed pleading requirements—Plaintiff gains by being in federal court

20 || since his sole remedy under the ADA is injunctive relief, which is also available under the

21 Unruh Act”); see also Hanna y, Plumer, 380 U.S. 460, 467-68 (1965) (providing that

22 || federal courts may take measures to discourage forum-shopping); Brick Oven, 406

23 ||/F.Supp.2d at 1132 (noting that “[b]ecause a legitimate function of the federal courts is to

24 || :

25 1 Scott Schutza, like Plaintiff, is also a “frequent flyer” in the Southern District, who

notably is also represented by Plaintiff's counsel, Potter & Handy, LLP. Some courts have

26 noted that repeated actions filed by the same plaintiffs and counsel call into question the

27 ||integrity of the bar, injures the public’s view of the courts, and most importantly, creates

08 backlash against the disabled, “who rely on the ADA as a means of achieving equal

access.” Doran, 373 F.Supp.2d at 1031.

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discourage forum shopping and California courts should interpret California law”).

2 As another example, in Rutherford v. Leal, the Court recognized that the □□□□□□□□□□

3 “ADA and Unruh Act claims arise out of the same facts and require application of similar

4 standards, and that exercising supplemental jurisdiction would allow these claims to be

> heard together in federal court.” 2020 WL 5544204, at *4-5. However, the court noted

6 Ii that “exercising jurisdiction over Plaintiff's Unruh Act claim would undermine the

7 procedures established for hearing such claims in California.” Jd. This was because □□□□

8 would be unfair to allow Plaintiff to enjoy ‘those parts of California law that benefit him

9 || while disallowing the parts purposefully enacted to protect Defendants.’” Jd. Thus, the

10 || Court found that “California’s enhanced pleading requirement for high frequency litigants

11 like Plaintiff is a compelling reason to decline the exercise of supplemental jurisdiction in

12 || this case.” Id. It also noted that the state law claims predominated over the federal claims

13 |! because the remedies and proof are different in ADA and UCRA claims. Jd. at *4-5. “A

14 court may dismiss state law claims when ‘in terms of proof, of the scope of the issues

[5 raised, or of the comprehensiveness of the remedy sought,’ the state law claims

16 substantially predominate over the federal claims.” /d.at *4. It reasoned that other

17 ||“district courts have found plaintiffs’ state law claims to predominate over their federal

18 || ADA claim where they seek significant damages under state law and allege legal theories

19 applicable only to state law claims.”. Id. The court concluded by declining supplemental

20 || jurisdiction and finding the UCRA claim substantially predominated over the ADA claim

21 light of the potential for Plaintiff to seek far greater state law damages and his

22 inclusion of a state-law specific legal theory.” Id. at *5.

23 || Here, Plaintiff's FAC, like the complaints in Cuddeback and Leal, failed to include

24 || allegations by Plaintiff and his counsel regarding their status as high-volume litigants that

25 || would have otherwise been required under California law. See ECF No. 1, 6. This Court

26 ||recently took judicial notice of the fact that Plaintiff “Chris Langer is a plaintiff in 1,498

27 || federal cases.” See Langer v. Kiser, No. 318CV00195BENNLS, 2020 WL 6119889, at *3

28 || (S.D. Cal. Oct. 16, 2020) (noting that “PACER shows a total of 1,498 cases in which the

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| plaintiff is named ‘Chris Langer’ throughout all courts on PACER”). Since the court took

2 judicial notice of that fact, Public Access to Court Electronic Records (“PACER”) shows

3 || that Plaintiff has filed an additional ten lawsuits. Thus, the Court takes judicial notice of

4 the fact that as of the date of this order, PACER shows a total of 1,508 cases in which the

5 plaintiff is named Chris Langer. See, e.g., FED. R. EVID. 201(b)(1)-(2) (providing that at

6 any stage of a proceeding, courts may take judicial notice of (1) facts not subject to

7 | reasonable dispute and “generally known within the trial court's territorial jurisdiction” and

8 (2) adjudicative facts, which “can be accurately and readily determined from sources whose

9 accuracy cannot reasonably be questioned”); see also Asdar Group v. Pillsbury, Madison

10 Sutro, 99 F.3d 289, 290, fn. 1 (9th Cir. 1996) (taking judicial notice of court records).

11 Accordingly, the Court, like the Cuddeback and Leal courts, questions the propriety of

12 exercising supplemental jurisdiction over the state law claims where Plaintiff has failed to

13 comply with California’s heightened pleading requirements for high-volume litigants, like

14 Plaintiff. Given Plaintiff could seek the more rewarding remedies (e. g., money damages)

15 || in state court as well as injunctive relief (the only relief available in federal court), filing in

16 || federal court seems to be strategic avoidance of the heightened-pleading requirements that

17 || would otherwise need to be met in state court. See, e.g., Alessio Leasing, 2019 WL

18 || 1546950, at *4 (noting that “there is no relief available to Schutza in federal court that

19 || could not be secured in state court”). Further, just as the Leal court noted that different

20 || remedies require different proof, Plaintiff here likewise seeks different remedies that

21 || require different proof.

22 Thus, the Court declines to exercise supplemental jurisdiction over Plaintiff's state

23 claims brought under the UCRA and dismisses those claims without prejudice to

24 || Plaintiff re-filing them in state court. See, e.g., Molski v. Foster Freeze Paso Robles, 267

25 App’x 631, 633 (9th Cir. 2008) (noting that although a court may decline to exercise

26 || supplemental jurisdiction over state law claims, when it does, it must dismiss those claims

27 || without prejudice).

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lv. CONCLUSION

2 For the above reasons, the Court GRANTS in part and DENIES in part

3 || Defendant’s Motion as follows:

4 1. Defendant’s Motion to Dismiss Plaintiff's first claim for relief for violation

> |/ of the ADA is DENIED as Defendant failed to set forth how or why Plaintiff failed to state

6 claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. As pled, the

7 |i Court finds the SAC pleads sufficient facts to state a claim for relief under the ADA.

8 2. . Defendant’s Motion to Dismiss Plaintiff's second claim for relief for violation

the UCRA is GRANTED on the basis that the Court declines to exercise supplemental

10 jurisdiction over those claims. All claims pertaining to violation of the UCRA are

11 || dismissed without prejudice to being refiled in a California superior court,

12|| IT IS SO ORDERED. ,

13 || DATED: NovenineZZ, 202

14 | OGER T. BENITEZ

1s ||. : ited States District Judge

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