# Whitfield v. Saleh

> District Court, E.D. California · July 11, 2025

URL: https://www.frixlaw.com/law-library/cases/11098777

## Case

- **Court:** District Court, E.D. California
- **Decided:** July 11, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11098777

## How later opinions describe it (automated extraction)

- noting that plaintiff must suffer an injury that is “concrete and 27 particularized,” not conjectural or hypothetical
- noting that the Gibb’s values did not 21 support declining supplemental jurisdiction where the case was at a “very late stage”

## Opinion text

1
2
3
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11098777. Public record. Not legal advice.