1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL URIARTE-LIMON, Case No.: 24-cv-01423-AJB-DEB Plaintiff, 12

ORDER GRANTING DEFENDANTS’

13 v. MOTION TO DISMISS PLAINTIFF’S

STATE LAW CAUSE OF ACTION

14 2 TM TOBACCO INC.; BASIM 15 KHOURY; ESTHER KHOURY; (Doc. No. 5) GEORGETTE BARGHOUT; and DOES 16 1-10, 17 Defendants. 18 19 Before the Court is Defendants 2 TM Tobacco, Inc., Basim Khoury, Esther Khoury, 20 and Georgette Barghout’s (collectively, “Defendants”) motion to dismiss Plaintiff Raul 21 Uriarte-Limon’s (“Plaintiff”) state law cause of action. (Doc. No. 5.) The motion is fully 22 briefed. (See Doc. Nos. 5, 7, 8.) The Court, pursuant to its discretion under Civil Local 23 Rule 7.1.d.1, determines the matter is suitable for resolution without need for oral 24 argument, submits the motion on the parties’ papers, and vacates the hearing. For the 25 following reasons, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s state law 26 cause of action. 27 / / / 28 / / / 1 I. BACKGROUND 2 This case is an action alleging violations of the Americans with Disabilities Act of 3 1990 (“ADA”) and the Unruh Civil Rights Act (“Unruh Act”). (Complaint, (“Compl.”), 4 Doc. No. 1, ¶¶ 39–60.) 5 Plaintiff cannot walk due to paraplegia and uses a wheelchair for mobility. (Id. ¶ 1.) 6 Defendant 2TM Tabacco Inc. is a smoke shop known as Tommy’s Tabacco, located at or 7 about 1297 Imperial Beach Boulevard, Imperial Beach, CA (“Subject Property”). (Id. ¶¶ 8 2–5; see also Motion to Dismiss (“Mot.”), Doc. No. 5-1, at 6.) Defendants Basim Khoury, 9 Esther Khoury, and Georgette Barghout are owners and landlords of the Subject Property. 10 (Compl. ¶¶ 2–5; Mot. at 6–7.) Tommy’s Tabacco is a business establishment open to the 11 public. (Compl. ¶ 11.) 12 On May 15, 2024, Plaintiff went to Tommy’s Tabacco and purchased a beverage. 13 (Id. ¶ 12.) Plaintiff alleges Defendants failed to provide an accessible and ADA compliant 14 parking space designated for disabled persons. (Id. ¶ 19.) Specifically, Plaintiff alleges the 15 following deficiencies: (1) the designated accessible parking space was “so badly 16 deteriorated it c[ould]not be clearly identified,” (Id. ¶ 20); (2) the designated accessible 17 parking space’s adjacent access aisle did not say “No Parking,” or the paint was “so 18 deteriorated it c[ould]not be clearly identified,” (id. ¶ 21); (3) there was no ADA compliant 19 parking signage, (id. ¶ 22); and (4) there was no sign “in a conspicuous place at the entrance 20 to the facility. . . stating that vehicles parked in designated accessible spaces not displaying 21 a disabled placard or license plate will be towed,” (id. ¶ 23). Defendants’ alleged failure to 22 provide accessible and compliant parking and access aisle caused Plaintiff difficulty getting 23 in and out of his vehicle, discomfort, and embarrassment. (Id. ¶ 26.) Plaintiff “intends to 24 return to the Subject Property in the near future” but “is currently deterred from returning 25 because of the knowledge of the barriers to equal access that relate to Plaintiff’s disabilities. 26

27 1 The following facts are taken from Plaintiff’s Complaint, which the Court construes as true for the limited purpose of resolving the instant motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013). 28 1 . . .” (Id. ¶ 28.) 2 On August 9, 2024, Plaintiff filed a complaint with this Court. (Compl.) On 3 September 10, 2024, Defendants filed a motion to dismiss Plaintiff’s state law cause of 4 action. (Mot.) Defendants also filed a request for judicial notice of the other lawsuits 5 Plaintiff filed in this District from August 30, 2019, through August 9, 2024. (Doc. No. 5- 6 2.) Plaintiff filed a response in opposition to Defendants’ motion to dismiss on September 7 25, 2024. (Opposition, (“Opp’n”), Doc. No. 7.) Defendants filed their reply on October 2, 8 2024. (Doc. No. 8.) In conjunction with Defendants’ reply brief, Defendants filed a request 9 for judicial notice of Governor Newsom’s January 23, 2024 Proclamation of a State of 10 Emergency in San Diego and Ventura counties following widespread flooding. (Doc. No. 11 8-1.) 12 II. LEGAL STANDARD FOR SUPPLEMENTAL JURISDICTION 13 The federal supplemental jurisdiction statute provides: 14 [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that 15 are so related to claims in the action within such original jurisdiction that they 16 form part of the same case or controversy under Article III of the United States Constitution. 17

18 28 U.S.C. § 1367. “Supplemental jurisdiction is mandatory unless prohibited by § 1367(b), 19 or unless one of the exceptions in § 1367(c) applies.” Schutza v. Cuddeback, 262 F. Supp. 20 3d 1025, 1028 (S.D. Cal. 2017). Under 28 U.S.C. § 1367(c), a district court may decline to 21 exercise supplemental jurisdiction over a state law claim if: (1) the claim raises a novel or 22 complex issue of state law; (2) the claim substantially predominates over the claim or 23 claims over which the district court has original jurisdiction; (3) the district court has 24 dismissed all claims over which it has original jurisdiction, or (4) in exceptional 25 circumstances, there are other compelling reasons for declining jurisdiction. See 28 U.S.C. 26 § 1367(c). 27 “Under this statute [28 U.S.C. § 1367(c)], a district court can decline jurisdiction 28 under any one of four provisions.” San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 1 470, 478 (9th Cir. 1998). A district court need not provide an explanation for declining 2 supplemental jurisdiction under any of the first three provisions of U.S.C. § 1367(c). Id. at 3 478–79. However, if the court declines jurisdiction under 28 U.S.C. § 1367(c)(4), the court 4 “must articulate why the circumstances of the case are exceptional” and consider whether 5 values of judicial economy, convenience, fairness, and comity provide compelling reasons 6 for declining jurisdiction. See Exec. Software N. Am., Inc. v. U.S. Dist. Ct. for Cent. Dist. 7 of California, 24 F.3d 1545, 1558 (9th Cir. 1994), overruled on other grounds by California 8 Dep’t of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008); see also Arroyo v. 9 Rosas, 19 F.4th 1202, 1210 (9th Cir. 2021). 10 III. DISCUSSION 11 The Court will first address Defendants’ requests for judicial notice. Then, the Court 12 will address Defendants’ motion to dismiss. 13 A. Defendants’ Requests for Judicial Notice 14 Under the Federal Rules of Evidence, courts may take judicial notice of a “fact that 15 is not subject to reasonable dispute because it: (1) is generally known within the trial court’s 16 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 17 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Specifically, matters of 18 public record and judicial proceedings in other courts have been recognized as acceptable 19 facts the court may judicially notice. See Wheeler v. Premiere Credit of North America, 80 20 F. Supp. 3d 1108, 1112 (S.D. Cal. 2015) (stating a federal appellate opinion was a matter 21 of public record and was capable of accurate and ready determination, and therefore the 22 court could take judicial notice of the opinion); Rosales-Martinez v. Palmer, 753 F.3d 890, 23 894 (9th Cir. 2014) (stating the court may take judicial notice of judicial proceedings in 24 other courts) (citing Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006)); U.S. ex 25 rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 26 1992). 27 The Court takes judicial notice of the existence of Plaintiff’s similar lawsuits filed 28 in this District from August 30, 2019, through August 9, 2024. (Doc. No. 5-2.) These 1 lawsuits are accurately and readily determinable from this District’s PACER system, the 2 accuracy of which cannot reasonably be questioned. Defendants’ moving papers indicate 3 Plaintiff has filed 36 similar lawsuits (including this case) between August 30, 2019, and 4 August 9, 2024. (Id.) Accordingly, the Court GRANTS Defendants’ request for judicial 5 notice. 6 Defendants also request the Court take judicial notice of Governor Newsom’s 7 January 23, 2024 Proclamation of a State of Emergency in San Diego and Ventura counties, 8 (Doc. No. 8-2), but as the Court does not rely on the document in reaching its conclusion, 9 the Court DENIES the request as moot. 10 B. The Unruh Civil Rights Act 11 California’s Unruh Act provides in part that “[a]ll persons within the jurisdiction of 12 this state are free and equal, and no matter what their . . . disability . . . are entitled to the 13 full and equal accommodations, advantages, facilities, privileges, or services in all business 14 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). A violation of the 15 federal ADA is also considered a violation of the Unruh Act in California. Id. § 51(f). 16 Under the Unruh Act, a plaintiff is required to show that the defendant performed an 17 intentional act or omission. See Org. for the Advancement of Minorities v. Brick Oven 18 Rest., 406 F. Supp. 2d 1120, 1129 (S.D. Cal. 2005). However, the ADA does not require a 19 plaintiff to show intentional discrimination if a plaintiff’s “Unruh Act violation is premised 20 on an ADA violation.” Lentini v. Cal. Center for the Arts, Escondido, 370 F.3d 837, 847 21 (9th Cir. 2004). 22 While the ADA only provides injunctive relief for plaintiffs, the Unruh Act allows 23 the additional recovery of monetary damages. Cal. Civ. Code § 52(a). A plaintiff may 24 recover actual damages for each Unruh Act violation “up to a maximum of three times the 25 amount of actual damage but in no case less than four thousand dollars ($4,000)[.]” Id. 26 However, a plaintiff “need not prove she suffered actual damages to recover the 27 independent statutory damages of $4,000.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 28 (9th Cir. 2007). 1 C. The Americans with Disabilities Act 2 The ADA bars discrimination against an individual “on the basis of disability in the 3 full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 4 accommodations of any place of public accommodation by any person who owns, leases 5 (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). An 6 establishment that serves food or drink, or a sales establishment, is a “public 7 accommodation” under the ADA. 42 U.S.C. § 12181(7)(B); id. § 12181(7)(E). 8 Prevailing on an ADA claim requires a plaintiff to prove that (1) he or she has a 9 disability, as defined under the ADA; (2) the defendant leases, owns, or operates a place of 10 public accommodation; and (3) the defendant denied public accommodations to the 11 plaintiff because of plaintiff’s disability. 42 U.S.C. §§ 12181(a)–(b); see Molski, 481 F.3d 12 at 730. Furthermore, a plaintiff is not required to show “intentional discrimination in order 13 to make out a violation of the ADA.” Lentini, 370 F.3d at 846. The available remedy under 14 the ADA does not include recovery of damages, but instead provides only injunctive relief. 15 Schutza, 262 F. Supp. 3d at 1029 (quoting Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 16 2002) (citing 42 U.S.C. § 12188(a)(1))). 17 D. Plaintiff’s Unruh Act Claim and Supplemental Jurisdiction 18 Defendants present two arguments as grounds to decline supplemental jurisdiction 19 over Plaintiff’s Unruh Act claim. First, Defendants contend that because Unruh Act claims 20 allow damages of $4,000 per violation, whereas the ADA only permits injunctive relief, 21 the California Unruh Act claim predominates over Plaintiff’s ADA claim, enabling the 22 Court to decline supplemental jurisdiction under 28 U.S.C. § 1367(c)(2). (Mot. at 10–12.) 23 Second, Defendants argue that exceptional circumstances support declining supplemental 24 jurisdiction under 28 U.S.C. § 1367(c)(4). Specifically, Defendants assert Plaintiff is a 25 “high-frequency litigant” as defined by the California legislature and his inclusion of his 26 Unruh Act claim constitutes impermissible forum shopping to avoid California’s 27 heightened pleading standards. (Id. at 12–15.) Plaintiff responds there is no basis for the 28 Court to decline supplemental jurisdiction over the Unruh Act claim and having both of 1 Plaintiff’s claims heard in the same court is more efficient. (Opp’n at 4–10.) The Court 2 agrees with Defendants. 3 a. Plaintiff’s Unruh Act Claim Substantially Predominates over 4 Plaintiff’s ADA Claim. 5 If a state claim “substantially predominates” over a federal claim “in terms of proof, 6 of the scope of the issues raised, or of the comprehensiveness of the remedy sought,” then 7 the Court may dismiss the state claims without prejudice. United Mine Workers of Am. v. 8 Gibbs, 383 U.S. 715, 726–27 (1966). In addition, there may be other reasons that are 9 “independent of jurisdictional considerations . . . that would justify separating state and 10 federal claims for trial.” Id. at 727. Here, if the Court exercises supplemental jurisdiction 11 over the Unruh Act claim, (1) Defendant’s intent, and (2) monetary damages would be 12 extraneous issues that would have to be litigated and yet not relevant to Plaintiff’s federal 13 ADA claim. See Whitaker v. Tesla Motors, Inc., No. 19-CV-01193-AJB-BLM, 2020 WL 14 2512205, at *3 (S.D. Cal. May 15, 2020). Further, because injunctive relief as well as 15 damages are available under the Unruh Act, “the ADA claim appears to be a secondary 16 claim used to justify filing in this [C]ourt,” and “[a]s such, the state claim substantially 17 predominates over the ADA claim.” Schutza v. Enniss Fam. Realty I LLC, No. 20-CV- 18 0298 W (JBL), 2020 WL 3316969, at *2 (S.D. Cal. June 18, 2020). Indeed, another court 19 in this District declined supplemental jurisdiction over Plaintiff’s Unruh Act claim, finding 20 that because the Unruh Act provides for the same injunctive relief as the ADA, the 21 inclusion of the ADA claim in Plaintiff’s lawsuit “appears to serve no purpose other than 22 forum shopping by Plaintiff.” Raul Uriarte-Limon v. Arnold J. Schmidt et al. Case No. 24- 23 cv-00774, Doc. No. 7 (S.D. Cal. May 20, 2024). Given the additional elements necessary 24 for an Unruh Act claim, the Court will decline to exercise jurisdiction over the state law 25 claim pursuant to 28 U.S.C. § 1367(c)(2). See Feezor v. Tesstab Operations Grp., Inc., 524 26 F. Supp. 2d 1222, 1224 (S.D. Cal. 2007) (“Given the disparity in terms of 27 comprehensiveness of the remedy sought, state law claims substantially predominate over 28 the ADA for purposes of 28 U.S.C. § 1367(c)(2).”). 1 b. Exceptional Circumstances and Compelling Reasons Warrant Not 2 Exercising Supplemental Jurisdiction. 3 In 2015, the California legislature found that between 2012 and 2014, a small 4 number of plaintiffs had filed a “disproportionately large number of the construction- 5 related accessibility claims in the state[.]” Cal. Civ. Proc. § 425.55(a)(2). In response, the 6 California legislature created additional pleading and court filing requirements for high- 7 frequency litigants “to ensure that the claims are warranted.” Cal. Civ. Proc. § 425.55(b); 8 see also Uriarte-Limon v. United Cap. Invs., LLC, No. 5:21-CV-00276-MAA, 2021 WL 9 6103533, at *4 (C.D. Cal. Nov. 12, 2021) (“By enacting restrictions on the filing of 10 construction-related accessibility claims, California has expressed a desire to limit the 11 financial burdens California’s businesses may face from claims for statutory damages and 12 attorneys’ fees under the Unruh Act and related state law claims brought by serial 13 litigants.”) Courts have accordingly declined supplemental jurisdiction over plaintiffs’ 14 state law claims in the interest of comity and in deference to the State of California’s 15 objective in “discouraging unverified disability discrimination claims.” Schutza, 262 F. 16 Supp. 3d at 1031; see also Molski v. Hitching Post I Rest., Inc., No. CV 04- 17 1077SVWRNBX, 2005 WL 3952248, at *8–*9 (C.D. Cal. May 25, 2005) (finding comity 18 to be a compelling reason for declining supplemental jurisdiction over state claims on the 19 ground that California courts should have the opportunity to interpret state disability laws). 20 Here, Plaintiff concedes he is a “high-frequency litigant.” (Opp’n at 5.) Of the 36 21 cases Plaintiff has filed in this District between August 30, 2019, and August 9, 2024, 22 including four before this Court, 26 cases have settled and closed within months of filing 23 and without reaching a trial on the merits. (See Doc. No. 5-2.) The majority of the 24 remaining cases filed by Plaintiff in this District were voluntarily dismissed. Id. “The Court 25 finds this ‘sue, settle, and move onto the next suit[]’ pattern to be a compelling reason to 26 decline supplemental jurisdiction.” See Rutherford v. Ara Lebanese Grill, No. 18-CV- 27 01497-AJB-WVG, 2019 WL 1057919, at *5 (S.D. Cal. Mar. 6, 2019). Therefore, out of 28 deference to California’s heightened pleading requirements for disability lawsuits, and in 1 || the interest of comity, as California courts should interpret California’s disability laws, the 2 Court will decline to exercise supplemental jurisdiction over Plaintiff's Unruh Act claim. 3 Schutza, 262 F. Supp. 3d at 1030-31. Because the Court declines to exercise 4 supplemental jurisdiction over Plaintiff's Unruh Act claim, itis DISMISSED WITHOUT 5 || PREJUDICE. 6 CONCLUSION 7 In light of the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss 8 || Plaintiff's Unruh Act claim. (Doc. No. 5.) Plaintiff's Unruh Act claim is DISMISSED 9 || WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND. 10 IT IS SO ORDERED. 11 1D Dated: December 2, 2024 Og A Neco lias 13 Hon. Anthony J.Battaglia 4 United States District Judge

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