Whitfield v. Saleh

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2

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4

5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF CALIFORNIA

7

8 STEVEN WHITFIELD, Case No. 1:22-cv-00141-KES-CDB

9 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS ACTION WITH PREJUDICE

10 v. FOR PLAINTIFF’S FAILURE (1) TO STATE

A CLAIM AND (2) TO PROSECUTE AND

11 KHALIB SALEH, et al., TO OBEY COURT ORDERS AND LOCAL

RULES

12 Defendants.

(Doc. 43)

13

14-DAY OBJECTION PERIOD

14

15 Plaintiff Steven Whitfield (“Plaintiff”), proceeding pro se and in forma pauperis, initiated

16 this action with the filing of a complaint on February 2, 2022. (Docs. 1, 4). On February 24,

17 2023, the Court directed the United States Marshal to serve service documents upon individual

18 Defendants Kimberly Long and Darrell Long (“individual Defendants”) and Defendant Khalib

19 Saleh, owner of CaliMex Supermarket (“Defendant” or “Saleh”). (Doc. 16). Summons returned

20 executed were filed on May 3, 2023, with all responses to the complaint due on May 16, 2023.

21 (Doc. 18). Individual Defendants filed their unopposed motion to dismiss on June 6, 2023.1 (Doc.

22 23). Thereafter, Plaintiff filed a motion for leave to amend (Doc. 37) and therewith lodged a

23 proposed first amended complaint (Doc. 38) on May 6, 2025. Individual Defendants opposed the

24 motion to amend on May 19, 2025. (Doc. 40).

25 On June 12, 2025, the Court granted Plaintiff’s motion for leave to amend and entered the

26 first screening order, finding that Plaintiff has failed to cognizably plead and establish standing to

27

1 The undersigned has issued findings and recommendations, now pending disposition

1 plead an ADA claim and has failed to plead why the Court should exercise supplemental

2 jurisdiction over Plaintiff’s Unruh Act and related state law claims. (Doc. 43). Because the Court

3 found that Plaintiff may be able to cure the identified deficiencies of his complaint, Plaintiff was

4 granted leave to amend his complaint. Id. at 16. Plaintiff was provided 21 days from entry of the

5 order to file any amended complaint and was forewarned that “[i]f Plaintiff fails to timely

6 comply with this order, the Court will recommend that this action be dismissed for failure

7 to state a claim, failure to obey a court order and/or failure to prosecute.” Id. at 17.

8 Plaintiff failed to file any amended complaint, and the time to do so has now passed. The

9 Court construes Plaintiff’s failure to file an amended complaint as an expression of his desire to

10 proceed on the complaint as filed and screened. For the reasons set forth below, the undersigned

11 will recommend this action be dismissed for Plaintiff’s failure to state a claim and his failure to

12 obey a court order and to prosecute the action.

13 I. Screening Requirement

14 As Plaintiff was advised in the Court’s screening order (Doc. 43), federal courts must

15 screen in forma pauperis complaints and dismiss any case that is “frivolous or malicious,” “fails

16 to state a claim on which relief may be granted” or seeks monetary relief against an immune

17 defendant. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (“[S]ection

18 1915(e) not only permits but requires a district court to dismiss an [IFP] complaint that fails to

19 state a claim.”); see also id. at 1129 (“section 1915(e) applies to all in forma pauperis complaints,

20 not just those filed by prisoners.”).

21 A complaint must contain “a short and plain statement of the claim showing that the

22 pleader is entitled to relief…” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

23 required but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

24 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

25 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint may be dismissed as a matter

26 of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2)

27 insufficient facts under a cognizable legal theory. See Balisteri v. Pacifica Police Dep’t, 901 F.2d

1 Pleadings by self-represented litigants are to be liberally construed. See Haines v. Kerner,

2 404 U.S. 519, 520-21 (1972). However, “the liberal pleading standard . . . applies only to a

3 plaintiff’s factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n .9

4 (1989). Furthermore, “a liberal interpretation of a civil rights complaint may not supply essential

5 elements of the claim that were not initially pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d

6 1251, 1257 (9th Cir. 1997) (internal quotation marks & citation omitted), and courts “are not

7 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681

8 (9th Cir. 2009) (internal quotation marks & citation omitted).

9 II. Plaintiff’s Allegations2

10 In the operative complaint,3 Plaintiff asserts seven claims for relief, including: disability

11 discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.

12 (Count 1); violation of California’s Unruh Civil Rights Act (“Unruh Act”) (Count 2); violation of

13 California’s Disabled Persons Act (“CDPA”) (Count 3); respondeat superior (Count 4); premises

14 liability (Count 5); res ispa loquitur (Count 6); and intentional/negligent infliction of emotional

15 distress (Count 7). (Doc. 1 at 11-13). Plaintiff also asserts supplemental state law personal injury

16 claims under California Civil Code Section 714 against Defendants. Id. at 13-15.

17 Plaintiff alleges that, as an individual “with significant related mobility[,]” he was denied

18 “the full and equal enjoyment of the goods” and “services” of CaliMex Supermarket on the basis

19 of his disability due to “architectural barriers” and Defendants’ policies and practices “that result

20 in a[n inaccessible] supermarket … in violation of the [ADA] and [the CDPA].” Id. at 6. He

21 alleges that Defendants “have ha[d] substantial notice that the issues alleged in [his c]omplaint

22 violates the ADA and various state disability laws” and “as of the date of filing [the c]omplaint

23 Defendants have not taken any corrective actions towards remedying the problem as … alleged.”

24 Id. The complaint asserts that subject matter jurisdiction attaches under Title III of the ADA and

25 that the Court “has supplemental [jurisdiction] over the state law claims pursuant to 28 U.S.C.

26

2 References to the complaint herein are to the CM/ECF-assigned page number.

27

3 The undersigned accepts Plaintiff’s allegations in the complaint as true only for the

1 Section 1367, because these claim[s] are so related to the ADA claims[.]” Id. at 7. The

2 complaint alleges that the Court has personal jurisdiction over Defendants “because [CaliMex]

3 Supermarket, lessee [and] lessor are both citizens of the County of Kern[.]” Id.

4 The complaint alleges that CaliMex Supermarket violates the ADA based on its

5 inaccessible restrooms and lack of designated handicap parking spaces at the facility. Id. at 8, 11.

6 Specifically, Plaintiff alleges the restrooms are inaccessible “because they are too small, contain

7 inaccessible fixtures, or are closed altogether” as the restrooms lack handicap signage and

8 railings. Id. at 8. “These features, individually and together, deny individuals with mobility

9 disabilities the opportunity to safely and independently use the restroom facilities[.]” Id. As to

10 the parking spaces, Plaintiff alleges there are an “insufficient number of handicap parking spaces”

11 and “individuals such as Plaintiff who are dependent on handicap parking spaces face significant

12 difficulty when attempting to visit Defendant’s store.” Id. Plaintiff also alleges the store’s sinks

13 “are too high” and the “sink pipes are not insulated” such that “individuals as Plaintiff could be

14 burned by scalding pipes[.]” Id. He alleges that “the failure to remove architectural barriers,

15 failure to provide any []handicap parking spaces whatsoever, signage and communication

16 barriers … in existing facilities, and transportational barriers in existing vehicles” constitutes

17 Defendants’ lessee and lessor’s discrimination against him. Id.

18 Counts 1, 2, and 3 are asserted against Defendant “lessee and lessor” of CaliMex

19 Supermarket for discrimination on the basis of disability under the ADA (Count 1), violation of

20 the Unruh Act (Count 2), and for violation of the CDPA (Count 3). Id. at 11. The complaint

21 identifies Defendant Khalib Saleh as the owner of CaliMex Supermarket and also an unknown

22 Defendant as “lessee to [Defendant] Khalib Saleh—[l]essor and owner and operator [of

23 CaliMex].” Id. at 2.

24 In Count 4, Plaintiff asserts that Defendant Kimberly Long is liable under the doctrine of

25 res ispa loquitor as Long “was in exclusive control of her vehicle that caused Plaintiff’s injuries

26 and damages” which “would not have ordinarily occurred but for [her] negligence and” were “not

27 due to [Plaintiff’s] actions or contribution.” Id. at 12.

1 of CaliMex Supermarket and alleges that the “premises was a dangerous and/or a hazardous

2 condition at the time of the injuries and damages and were the cause[] or contributed to Plaintiff’s

3 injuries and damages” and “Plaintiff has sustained grievous injury to his body and mind … as a

4 direct result[.]” Id.

5 In Count 6, Plaintiff asserts Defendants lessee and lessor of CaliMex Supermarket and

6 Long are liable under the doctrine of res ispa loquitor and reasserts allegations in Count 4 that

7 Long “was in exclusive control of the vehicle … that caused Plaintiff’s injuries and damages.”

8 Id.

9 In Count 7, Plaintiff asserts an intentional/negligent infliction of emotional distress claim

10 against Defendants lessee and lessor and alleges both Defendants “were negligent” and their

11 conduct “was reckless and outrageous.” Id.

12 In the claim labeled “supplemental state law personal injury claims general negligence of

13 Defendants,” Plaintiff asserts a personal injury/property damage claim against Defendants

14 Kimberly Long as the driver of the vehicle, Darrell Long as the owner of the vehicle, and

15 CaliMex Supermarket and its servants, agents, and employees. Id. at 13. He alleges that Darrell

16 Long “had a common law duty to only ‘entrust’ his motor vehicle to be driven by another who

17 possessed the skill, experience and carefulness to make a car collision likely[.]” Id. He further

18 alleges that Defendant Khalib Saleh “had a legal duty to make his property safe patronage and

19 eliminate any known dangerous conditions existing on the property” as the particular location of

20 the business is “overcrowded” and “a safety hazard and/or a dangerous condition to members of

21 the general public and prospective patrons” of the business. Id. at 13, 14. He alleges that on

22 February 5, 2021, he “suffered an automobile accident” with Defendant Kimberly Long at the

23 place of business and that prior to the accident, Plaintiff took a friend to the business “at least

24 [four] times[.]” Id. at 14. He alleges that on the date of the accident, Defendant CaliMex

25 Supermarket “allowed his employee(s) to illegally park on the blacktop” near the business “to

26 avoid any … damages to their vehicles while at work[.]” Id. at 15.

27 Plaintiff seeks damages under the Unruh Civil Rights Act, the Persons with Disabilities

1 damages, $7,000 for negligent infliction of emotional distress and negligent entrustment, and for

2 attorney’s fees and costs. Id. at 15-16. The complaint is signed and dated January 28, 2022. Id.

3 at 16.

4 III. Discussion

5 A. Failure to File a First Amended Complaint

6 Plaintiff failed to file a first amended complaint following the Court’s issuance of its first

7 screening order and order granting Plaintiff’s motion for leave to amend. (See Doc. 43 at 17).

8 The undersigned construes Plaintiff’s failure to file a first amended complaint as an expression of

9 his desire to proceed on the complaint as filed. Thus, the undersigned recommends that the

10 complaint be dismissed for failure to state a cognizable claim and for failure to obey a court order

11 and to prosecute as set forth below.

12 B. Failure to State a Claim

13 1. American with Disabilities Act (“ADA”)

14 a. ADA Governing Law

15 The ADA was enacted in response to a “compelling need” for a “clear and comprehensive

16 national mandate” to eliminate discrimination against disabled individuals. PGA Tour, Inc. v.

17 Martin, 532 U.S. 557, 577 (2009). “To effectuate its sweeping purpose, the ADA forbids

18 discrimination against disabled individuals in major areas of public life, among them employment

19 (Title I of the Act), public services (Title II), and public accommodations (Title III).” Id. Title III

20 of the ADA prohibits discrimination against persons with disabilities and provides: “No

21 individual shall be discriminated against on the basis of disability in the full and equal enjoyment

22 of the goods, services, facilities, privileges, advantages, or accommodations of any place of

23 public accommodation by any person who owns, leases (or leases to), or operates a place of

24 public accommodation.” 42 U.S.C. § 12182(a). The ADA requires business facilities be “readily

25 accessible to and usable by individuals with disabilities,” unless it would be “structurally

26 impracticable.” 42 U.S.C. § 12183(a)(1); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th

27 Cir. 2011). “In general, a facility is readily accessible to and usable by individuals with

1 Accessibility Guidelines,’ or the ‘ADAAG.’” Oliver, 654 F.3d at 905. These standards are

2 codified at 28 C.F.R. Pt. 36, Appendix A, and are “essentially an encyclopedia of design

3 standards.” See id.

4 For purposes of Title III, discrimination also includes “a failure to remove architectural

5 barriers … in existing facilities … where such removal is readily achievable.” 42 U.S.C. §

6 12182(b)(2)(A)(iv).

7 The Ninth Circuit has articulated the elements of an ADA discrimination claim as follows:

8

To prevail on a Title III discrimination claim, the plaintiff must

9 show that (1) she is disabled within the meaning of the ADA; (2)

the defendant is a private entity that owns, leases, or operates a

10 place of public accommodation; and (3) the plaintiff was denied

public accommodations by the defendant because of her disability.

11

12 Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). A plaintiff need not show

13 intentional discrimination to establish an ADA violation. Lentini v. California Ctr. for the Arts,

14 Escondido, 370 F.3d 837, 846 (9th Cir. 2004).

15 b. ADA Standing

16 A court’s jurisdiction “is to be assessed under the facts existing when the complaint is

17 filed.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.4 (1992). Consequently, “[t]he

18 requisite personal interest”—standing—“must exist at the commencement of the litigation.”

19 Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167, 214 (2000)

20 (citation omitted); see Langer v. Kiser, 57 F.4th 1085, 1098 (9th Cir. 2023) (“standing ordinarily

21 depends on the facts that exist at the time the complaint is filed”) (internal quotation and citation

22 omitted); Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 850 (9th Cir. 2007) (the

23 court “must consider the facts as they existed at that time the complaint was filed”).

24 To show standing, a plaintiff “must demonstrate that he has suffered an injury-in-fact, that

25 the injury is traceable to the [defendant’s] action, and that the injury can be redressed by a

26 favorable decision.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011)

27 (en banc). An injury-in-fact is “an invasion of a legally protected interest which is (a) concrete

and particularized, and (b) ‘actual or imminent’ not ‘conjectural’ or ‘hypothetical.’” Lujan, 504

1 U.S. at 560 (internal citations omitted). An injury is “concrete and particularized” when a

2 plaintiff suffers discrimination due to architectural barriers at a public accommodation and those

3 barriers have deterred plaintiff from returning. Doran v. 7-Eleven, 524 F.3d 1034, 1041 (9th Cir.

4 2008).

5 A plaintiff suffers an “actual and imminent” injury under the ADA when he alleges “(1)

6 that he visited an accommodation in the past; (2) that he was currently deterred from returning to

7 the accommodation because of ADA violations; and (3) that he would return if the ADA

8 violations were remedied.” Doran, 524 F.3d at 1041 (citing Molski v. Arbys Huntington Beach,

9 359 F. Supp. 2d 938, 947 (C.D. Cal. 2005)). For standing purposes, an ADA plaintiff must allege

10 sufficient facts to demonstrate that an accessibility barrier “interfere[s] with [his] ‘full and equal

11 enjoyment’ of the facility” in question. Chapman, 631 F.3d at 947 (quoting 42 U.S.C. §

12 12182(a)). A barrier amounts “to such interference if it affects the plaintiff’s full and equal

13 enjoyment of the facility on account of his particular disability.” Id.

14 The ADAAG “establish[ ] the technical standards required for ‘full and equal

15 enjoyment.’” Id. If a barrier violating the ADAAG standards “relates to a plaintiff’s disability, it

16 will impair the plaintiff’s full and equal access, which constitutes ‘discrimination’ under the

17 ADA. That discrimination satisfies the ‘injury-in-fact’ element.” Id.

18 c. Analysis

19 Plaintiff asserts claims for violations under Title III of the ADA, namely for

20 discrimination on the basis of a disability in Count 1, violation of the Unruh Act predicated upon

21 the ADA violation in Count 2, and violation of the CDPA predicated upon the ADA violation in

22 Count 3 against Defendants “lessee[, who is not identified,] and lessor[, i.e., Saleh.]” (Doc. 1 at

23 11); (see id. at 2).

24 Plaintiff sufficiently alleges that he is disabled under the ADA as “a person with

25 disabilities” with “physical impairments that substantially limits one or more of his major life

26 activities” and “is forced to use a [four-wheeled walker] for mobility[.]” (Id. at 7); (see id. at 8

27 [“Plaintiff is disabled as that term is defined by Title III of the ADA.”] and 9 [“Plaintiff’s

1 (unless aided by a four-wheeled walker), and with significant lack of dexterity in both legs or

2 performing manual tasks and therefore qualifying as a disability.”]). See Daubert v. Lindsay

3 Unified Sch. Dist., 760 F.3d 982, 984 (9th Cir. 2014) (plaintiff who uses wheelchair for mobility

4 is disabled under ADA). Plaintiff also sufficiently alleges that Defendant Saleh and the unnamed

5 lessee are private entities that own, lease, or operate CaliMex Supermarket. (Id. at 8)

6 (“Defendant-lessee of [CaliMex] Supermarket and its building owner-lessor [Defendant Saleh]

7 discriminated against Plaintiff[.]”); (see id. at 9) (“[CaliMex] Supermarket is a private entity that

8 is owned, leased, or operated as a place of public accommodation.”). Thus, the first two factors

9 to state a Title III ADA claim are sufficiently alleged. Molski, 481 F.3d at 730.

10 However, Plaintiff has failed to adequately allege that he was denied public

11 accommodations by Defendant Saleh and the unnamed lessee because of his disability and fails to

12 demonstrate standing as to the ADA claims.

13 Regarding Defendant’s parking spaces that Plaintiff claims violate the ADA, Plaintiff

14 alleges that he visited Defendant’s store location “at least 4 times before the February 5, 2021 car

15 accident,” and that during those visits, his passenger (Ms. Thompson) entered the store and

16 completed her shopping within a short time. (Doc. 1 at 14). The fact that Plaintiff has completed

17 at least five successful shopping visits to Defendant’s premises undermines his contrary

18 allegations that the nature and number of handicap parking spaces at that location present a

19 “significant difficulty” (id. at 8) in Plaintiff’s ability to park at or to access Defendant’s store. See

20 Sacco v. Mouseflow, Inc., No. 2:20-cv-02330-TLN-KJN, 2022 WL 4663361, at *2 (E.D. Cal.

21 Sept. 30, 2022) (“Though a Court must generally accept allegations in a complaint as true at the

22 motion to dismiss stage, the Court need not accept inconsistent allegations in a complaint as

23 true.”) (citing cases). Further, Plaintiff’s allegations are phrased as “individuals such as Plaintiff”

24 are challenged by Defendant’s parking spaces - not that Plaintiff himself, in fact, actually

25 encountered difficulty when attempting to visit Defendant’s store on any particular occasion. See

26 Lujan, 504 U.S. at 560 (noting that plaintiff must suffer an injury that is “concrete and

27 particularized,” not conjectural or hypothetical). Thus, because Plaintiff’s allegations undermine

1 he would return if the ADA violations were remedied, and because Plaintiff’s allegations are

2 general and conclusory, Plaintiff fails to adequately plead standing to bring an ADA claim based

3 on Defendant’s parking spaces. Doran, 524 F.3d at 1041.

4 Regarding Defendant’s allegedly inaccessible restrooms, there are no allegations in the

5 complaint from which the Court reasonably can infer that Plaintiff himself attempted to but was

6 unable to adequately access the restrooms. As noted above, Plaintiff’s allegations appear to

7 indicate that only his passenger (Ms. Thompson) exited his vehicle and conducted shopping

8 during Plaintiff’s visits to Defendant’s store. Also, like his allegations regarding Defendant’s

9 parking spaces, Plaintiff pleads only in general terms that the nature of Defendant’s restrooms

10 “deny individuals with mobility disabilities the opportunity” to use the restrooms - not that he

11 attempted to access and was denied use of a restroom on any specific occasion, or that he is

12 deterred from entering and shopping at Defendant’s store because of inaccessible restrooms.

13 Similarly, Plaintiff pleads only that “individuals as Plaintiff could be burned by scalding pipes”

14 due to their lack of insulation, not that Plaintiff actually ever was in close proximity to

15 uninsulated pipes in Defendant’s restrooms or that he was deterred from using Defendant’s store

16 restrooms because of uninsulated pipes.

17 Thus, Plaintiff has failed to cognizably plead, and establish standing to plead, an ADA

18 claim in Count 1 against Defendant Saleh and the unnamed lessee.

19 2. Unruh Act

20 a. Governing Law

21 Count 2 asserts a claim under the Unruh Act predicated on the ADA violation asserted in

22 Count 1 of Plaintiff’s complaint. “The Unruh Act has been described as ‘coextensive with the

23 ADA,’ and in the disability context, ‘operates virtually identically to the ADA.’” Arafiles v.

24 Safeway, Inc., No. 2:24-cv-02801-TLN-SCR, 2025 WL 457834, at *2 (E.D. Cal. Jan. 27, 2025)

25 (citing Molski, 481 F.3d at 731). “As the Unruh Act allows for monetary damages, ‘litigants in

26 federal court in California often pair state Unruh Act claims with federal ADA claims.’” Id.; see

27 Williams v. Amazone.com Inc., No. 2:20-cv-513-JDP PS, 2020 WL 5909060, at *1 (E.D. Cal.

1 Oct. 6, 2020) (“[A]ny violation of the ADA necessarily constitutes a violation of the Unruh

2 Act.”).

3 Under 28 U.S.C. § 1367(a), a court that has original jurisdiction over a civil action “shall

4 have supplemental jurisdiction over all other claims that are so related to claims in the action

5 within such original jurisdiction that they form part of the same case or controversy under Article

6 III of the United States Constitution.” The Ninth Circuit has concluded that ADA and Unruh Act

7 claims that derive from a common nucleus of operative fact “form part of the ‘same case or

8 controversy’ for purposes of § 1367(a).” Arroyo v. Rosas, 19 F.4th 1202, 1209 (9th Cir. 2021).

9 However, even where supplemental jurisdiction over a claim exists under § 1367(a), the

10 Court may decline jurisdiction over the claim if:

11 (1) the claim raises a novel or complex issue of State law,

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

13 district court has original jurisdiction,

14 (3) the district court has dismissed all claims over which it has original jurisdiction, or

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

16 jurisdiction.

17 § 1367(c)(1)-(4).

18 Pertinent here, a court deciding whether to apply § 1367(c)(4) must undertake “a two-part

19 inquiry.” Arroyo, 19 F.4th at 1210. “First, the district court must articulate why the

20 circumstances of the case are exceptional within the meaning of § 1367(c)(4).” Id. (citations and

21 internal quotation marks omitted). “Second, in determining whether there are compelling reasons

22 for declining jurisdiction in a given case, the court should consider what best serves the principles

23 of economy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine

24 articulated in [United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966)].” Id. (citations and

25 internal quotation omitted).

26 After considering § 1367(c)(4) and California’s requirements for bringing Unruh Act

27 claims, “numerous district courts in California ‘have declined to exercise supplemental

1 Invest. Co., No. 1:22-cv-1419 JLT SAB, 2023 WL 8675398, at *4 (E.D. Cal. Dec. 15, 2023)

2 (quoting Rutherford v. Nuway Ins. Agency Inc., No. SACV 21-00576-CJC-JDE, 2021 WL

3 4572008, at *1 (C.D. Cal. Apr. 1, 2021)). Underlying these decisions is “the recent confluence of

4 several California-law rules [that] have combined to create a highly unusual systemic impact on

5 ADA-based Unruh Act cases that clearly threatens to have a significant adverse impact on

6 federal-state comity.” Arroyo, 19 F.4th at 1211.

7 Notably, Congress adopted the ADA to address the discrimination encountered by persons

8 with disabilities, providing a private cause of action to seek injunctive, but not monetary, relief.

9 See id. at 1205 (discussing background and relief available under the ADA). And the Unruh Act

10 likewise prohibits disability discrimination, containing a provision, Cal. Civ. Code § 51(f), stating

11 that a violation of the ADA also violates the Unruh Act. However, unlike the ADA, the Unruh

12 Act allows a plaintiff to recover “up to a maximum of three times the amount of actual damage

13 but in no case less than four thousand dollars.” Cal. Civ. Code § 52(a).

14 In response to perceived abuses of the Unruh Act, California has enacted requirements for

15 bringing such claims, which requirements the Ninth Circuit has assumed, without deciding,

16 “apply only in California state court.” Vo v. Choi, 49 F.4th 1167, 1170 (9th Cir. 2022). For

17 example, provisions were added (1) regarding the contents of demand letters, Cal. Civ. Code §

18 55.31; (2) imposing heightened pleading requirements, Cal. Civ. Code § 425.50(a); and (3)

19 requiring an additional filing fee of $1,000 for so called “high-frequency litigants,” Cal. Gov’t

20 Code § 70616.5(b), see Cal. Civ. Code § 425.55(b) (defining a high-frequency litigant to include

21 “[a] plaintiff who has filed 10 or more complaints alleging a construction-related accessibility

22 violation within the 12-month period immediately preceding the filing of the current complaint

23 alleging a construction-related accessibility violation”).

24 All of these requirements4 apply to claims alleging a construction-related accessibility

25 violation, defined as involving “a provision, standard, or regulation under state or federal law

26 requiring compliance with standards for making new construction and existing facilities

27 accessible to persons with disabilities,” including those related to the ADA. Cal. Civ. Code

1 § 55.52(a)(1), (6); see Cal. Civ. Code § 55.3(a)(2). By enacting such restrictions, California has

2 expressed a “desire to limit the financial burdens California’s businesses may face from claims

3 for statutory damages under the Unruh Act.” Arroyo, 19 F.4th at 1209 (internal quotations

4 omitted). However, “Unruh Act plaintiffs have evaded these limits by filing in a federal forum in

5 which [they] can claim these state law damages in a manner inconsistent with the state law’s

6 requirements.” Id. at 1213 (internal quotation omitted). Consequently, “the procedural strictures

7 that California put in place have been rendered largely toothless, because they can now be readily

8 evaded.” Id.

9 The Ninth Circuit has provided substantial guidance on this issue in Vo v. Choi in

10 affirming a district court’s order denying supplemental jurisdiction over an Unruh Act claim

11 under § 1367(c)(4). Vo, 49 F.4th at 1168. In that case, the district court declined supplemental

12 jurisdiction over the Unruh Act claim after giving the plaintiff the opportunity to respond and

13 before addressing the merits of the case. Id. at 1168-69. In reviewing the district court’s

14 decision, the Ninth Circuit held that the district court sufficiently explained why the

15 circumstances of the case were exceptional under § 1367(c)(4), agreeing with the district court

16 that “it would not be ‘fair’ to defendants and ‘an affront to the comity between federal and state

17 courts’ to allow plaintiffs to evade California’s procedural requirements by bringing their claims

18 in federal court.” Id. at 1171. The Court also affirmed the district court’s finding that the balance

19 of the Gibbs values—economy, convenience, fairness, and comity—provided compelling reasons

20 to decline supplemental jurisdiction, stating that “the district court [properly] analyzed Vo’s

21 situation under the Gibbs values and determined that the values of fairness and comity favored

22 not retaining jurisdiction over the claim.” Id. at 1172. Accordingly, “[g]iven these very real

23 concerns, in addition to the deferential standard of review, [the Ninth Circuit saw] no reason to

24 hold that the district court abused its discretion in determining there were compelling reasons to

25 decline jurisdiction over the Unruh Act claim.” Id.

26 With these legal standards in mind, the undersigned addresses whether the relevant

27 considerations of § 1367(c)(4) warrant declining the exercise of supplemental jurisdiction over

1 b. Analysis

2 The undersigned begins with the first part of the two-step inquiry under § 1367(c)(4)—

3 whether the circumstances here are exceptional. Vo, 49 F.4th at 1171.

4 As discussed above, California has enacted various requirements that apply to claims

5 alleging a construction-related accessibility violation. And if the Court were to exercise

6 jurisdiction over Plaintiff’s Unruh Act claim, Plaintiff would be permitted to avoid these

7 requirements. See Arroyo, 19 F.4th at 1213 (noting that potential evasion of California’s

8 requirements met exceptional-circumstances prong of § 1367(c)(4)). Further, such evasion would

9 undermine California’s policy interests in enforcing its requirements—providing monetary relief

10 but limiting burdens on small businesses and disincentivizing plaintiffs’ attorneys from obtaining

11 “monetary settlements at the expense of forward-looking relief that might benefit the general

12 public.” Id. Plaintiff fails to articulate in either his operative complaint or his lodged complaint

13 in connection with this pending motion to amend and basis for why such circumstances should

14 not be deemed exceptional, and there is “little doubt that the first prong [under § 1367(c)(4)] is

15 satisfied here.” Vo, 49 F.4th at 1171.

16 Turning to the second part of the inquiry—whether there are other compelling reasons for

17 declining jurisdiction—the Court considers the Gibbs values of economy, convenience, fairness,

18 and comity. Vo, 49 F.4th at 1171. Importantly, this case is an early stage of the litigation—no

19 Defendant has appeared, discovery has not commenced, and Plaintiff’s ADA/Unruh Act claims

20 have not been fully resolved. See Arroyo, 19 F.4th at 1214 (noting that the Gibb’s values did not

21 support declining supplemental jurisdiction where the case was at a “very late stage”); Block v.

22 Arsh & Jot LLC, No. 1:24-cv-0812 JLT SAB, 2024 WL 5195915, at *5 (E.D. Cal. Dec. 23, 2024)

23 (same). Thus, this is not a case “where it makes no sense to decline jurisdiction . . . over a

24 pendent state law claim that that court has effectively already decided.” Id.

25 Moreover, in light of the above discussion of California’s requirements for Unruh Act

26 claims, it would not be fair, nor would comity be served, by allowing Plaintiff’s Unruh Act claim

27 to proceed without the state court being able to enforce its policy interests as reflected in its

1 policy objectives in this area were being wholly thwarted” by plaintiffs being able to bring Unruh

2 Act claims in Federal court). Although it is unclear at this stage whether Plaintiff constitutes a

3 “high-frequency litigant,” the Court notes it need not determine whether he is in fact a high-

4 frequency litigant. Vo, 49 F.4th at 1174 (noting that court was not required to determine whether

5 the plaintiff was in fact a high-frequency litigant). Likewise, notwithstanding that this action is in

6 the Eastern District, the undersigned notes it need only determine whether California’s

7 requirements are implicated, not whether they are in fact met. As the Ninth Circuit noted in Vo,

8 whether a Plaintiff “has satisfied the heightened pleading requirements” imposed in California is

9 a question for the state court because “[f]orcing the district court to determine if [this is] in fact

10 true would itself run afoul of the Gibbs values—especially comity,” and would deprive California

11 of playing its “critical role in effectuating the policies underlying [its] reforms.” Vo, 49 F.4th at

12 1173-74 (internal citation omitted).

13 Accordingly, in light of the two-step inquiry under § 1367(c)(4), the undersigned

14 concludes that the circumstances of this case are exceptional and there are other compelling

15 reasons to decline supplemental jurisdiction over Plaintiff’s Unruh Act and related state law

16 claims. See, e.g., Orosco v. Monrroy Enters. LLC, No. 2:23-cv-07818-MEMF (KSx), 2023 WL

17 10407115, at *5 (C.D. Cal. Nov. 30, 2023) (declining to exercise supplemental jurisdiction over

18 and dismissing Plaintiff’s California Unruh Act, Disabled Persons Act, Health & Safety Code and

19 negligence claims following Vo/Arroyo analysis); Kim v. Vegara, No. EDCV 22-281 JGB

20 (SHKx), 2022 WL 17080182, at *5 (C.D. Cal. Oct. 5, 2022) (same); Benford v. Hall, No. CV 22-

21 03337-RSWL-ASx, 2022 WL 20273588, at *3 & n.3 (C.D. Cal. July 18, 2022) (same).

22 Because Plaintiff was provided an opportunity to remedy his pleadings to demonstrate

23 that exceptional circumstances do not warrant declining supplemental jurisdiction over his Unruh

24 Act and related state law claims or that other compelling reasons favor exercising supplemental

25 jurisdiction, and he has failed to do so, the undersigned recommends against exercising

26 jurisdiction over Plaintiff’s Unruh Act, CDPA, and related state causes of action. Further, after

27 noting Plaintiff’s deficiencies in his pleading and granting him leave to amend (see Doc. 43),

1 undersigned assesses that leave to amend would be futile. See Hartman v. CDCR, 707 F.3d

2 1114, 1129-30 (9th Cir. 2013).

3 C. Failure to Obey Court Orders and Failure to Prosecute

4 Apart from Plaintiff’s failure to state a claim upon which relief may be granted, he has

5 failed to comply with this Court’s order to file an amended complaint and, as such, has failed to

6 prosecute this action. Accordingly, the undersigned will recommend Plaintiff’s complaint be

7 dismissed on this separate, independent ground.

8 1. Governing Authority

9 Local Rule 110, corresponding with Federal Rule of Civil Procedure 11, provides that

10 “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may

11 be grounds for imposition by the Court of any and all sanctions . . . within the inherent power of

12 the Court.” E.D. Cal. Local Rule 110. The Court has the inherent power to control its docket and

13 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the

14 action. Bautista v. Los Angeles Cnty., 216 F.3d 837, 841 (9th Cir. 2000). A court may dismiss an

15 action based on a party’s failure to prosecute an action, obey a court order, or comply with local

16 rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure

17 to comply with a court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128,

18 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan,

19 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local

20 rules).

21 “In determining whether to dismiss an action for lack of prosecution, the district court is

22 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation;

23 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

24 policy favoring disposition of cases on their merits; and (5) the availability of less drastic

25 sanctions.” Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (internal quotation marks &

26 citation omitted). These factors guide a court in deciding what to do and are not conditions that

27 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products

1 2. Analysis

2 Here, Plaintiff has failed to comply with the Court’s orders and Local Rules. Plaintiff has

3 filed no response to the Court’s order granting him leave to amend his complaint and the time to

4 do so has passed. There are no other reasonable alternatives available to address Plaintiff’s

5 failure to respond and otherwise obey this Court’s orders. Thus, the first and second factors—the

6 expeditious resolution of litigation and the Court’s need to manage its docket—weigh in favor of

7 dismissal. Carey, 856 F.2d at 1440.

8 The third factor, risk of prejudice to Defendants, also weighs fairly in favor of dismissal

9 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an

10 action. See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). This matter cannot proceed

11 further without Plaintiff’s participation to prosecute the case and file an amended complaint

12 curing the deficiencies identified in the Court’s first screening order. The presumption of injury

13 holds given Plaintiff’s unreasonable delay in prosecuting this action. Thus, the third factor—a

14 risk of prejudice to the Defendants—also weighs in favor of dismissal. Carey, 856 F.2d at 1440.

15 The fourth factor usually weighs against dismissal because public policy favors

16 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However,

17 “this factor lends little support to a party whose responsibility it is to move a case toward

18 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460

19 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. He has

20 instead failed to comply with this Court’s orders and the Local Rules and, thus, is impeding the

21 progress of this action. Therefore, the fourth factor—the public policy favoring disposition of

22 cases on their merits—also weighs in favor of dismissal. Carey, 856 F.2d at 1440.

23 Finally, the Court’s warning to a party that failure to obey the court’s order will result in

24 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262.

25 Here, the Court’s order granting Plaintiff leave to amend and requiring a response from Plaintiff

26 cautioned: “If Plaintiff fails to timely comply with this order, the Court will recommend that

27 this action be dismissed for failure to state a claim, failure to obey a court order and/or

1 | timely file an amended complaint could result in terminating sanctions.

2 | IV. Conclusion and Recommendation

3 For the reasons given above, IT IS RECOMMENDED as follows:

4 1. The Court DISMISS this action with prejudice for Plaintiff's failure to state a claim upon

5 which relief may be granted and futility of further amendment, or in the alternative,

6 without prejudice for his failure to prosecute this action and to comply with the Court’s

7 orders and Local Rules. See Local Rule 110; and

8 2. The Clerk of the Court be DIRECTED to close this case.

9 These Findings and Recommendations will be submitted to the United States District

10 || Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days

11 | after being served with a copy of these Findings and Recommendations, a party may file written

12 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to

13 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without

14 || leave of Court and good cause shown. The Court will not consider exhibits attached to the

15 | Objections, but a party may refer to exhibits in the record by CM/ECF document and page

16 | number. Any pages filed in excess of the 15-page limitation may be disregarded by the District

17 | Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)()(C). A

18 | party’s failure to file any objections within the specified time may result in the waiver of certain

19 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

20 | IT Is SO ORDERED.

21 | } ) Bo

Dated: _ July 10, 2025

22 UNITED STATES MAGISTRATE JUDGE

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