1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMIEN MINNA, No. 2:21-cv-01329-DAD-CKD 12 Plaintiff, 13 v. ORDER DENYING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

14 LONDA RAE ROWLEY, et al., AND DISMISSING PLAINTIFF’S UNRUH

ACT CLAIM

15 Defendants. (Doc. Nos. 34, 35) 16 17 This matter is before the court on the motion for summary judgment filed by defendants 18 on December 13, 2022. (Doc. No. 34.) On February 1, 2023, defendants’ motion was taken 19 under submission on the papers. (Doc. No. 39.) For the reasons explained below, the court will 20 deny defendants’ motion for summary judgment. 21 FACTUAL BACKGROUND1 22 Plaintiff Damien Minna is a quadriplegic and relies on a wheelchair for mobility. (PUF 23 ¶ 1.) On March 31, 2021, plaintiff’s wife made a hotel reservation online for herself and plaintiff 24 to stay at defendants’ Mossbrae hotel in Dunsmuir, California that evening, while plaintiff was in 25 the area on business. (PUF ¶¶ 2, 3; DUF ¶ 9.) Defendants Londa Rae Rowley and Marc Joaquin 26

27 1 This factual background is undisputed, except where otherwise noted. The court will cite to plaintiff’s response to defendants’ undisputed facts (Doc. No. 36-1), referring to defendants’ 28 undisputed facts as “DUF” and plaintiff’s undisputed facts as “PUF.” 1 Rowley own the Mossbrae hotel, which is a small boutique hotel in the old 1925 Jones building in 2 the historic district on Dunsmuir (the “hotel”). (DUF ¶¶ 1, 2.) The hotel has only seven boutique 3 rooms; six of the rooms are upstairs and only one room, Room 7, is on the ground floor and is 4 purported to be the ADA-accessible room. (DUF ¶ 3.) Due to its small size, the hotel does not 5 have an elevator, and it was only required to have one ADA-accessible room, which is provided 6 on the ground floor. (DUF ¶¶ 4, 6.) 7 Plaintiff’s wife used the website booking.com to book the hotel’s “Deluxe King Studio” 8 room, though the parties dispute whether that website’s description of that room states that it is on 9 the second floor and is only accessible by stairs. (DUF ¶ 9.) Plaintiff and his wife arrived at the 10 hotel late in the evening on March 31, 2021. (DUF ¶ 10; PUF ¶ 5.) When they sought to check 11 in, defendant Londa Rowley told them that they had reserved a specific room on the second floor, 12 which was only accessible by stairs. (DUF ¶ 10; PUF ¶ 5.) Defendant Londa Rowley told 13 plaintiff that the hotel does have an ADA-accessible room (Room 7), but they did not reserve that 14 room and it was occupied by another visitor. (DUF ¶ 10.) Although plaintiff’s wife’s reservation 15 was non-refundable, as clearly stated on the booking.com website for all of the hotel’s rooms, 16 defendant Londa Rowley did not charge plaintiff’s wife’s credit card and apologized that she 17 could not provide them with an ADA room because it was rented to another guest with mobility 18 restrictions. (DUF ¶ 11.) Plaintiff and his wife left the hotel, without ever entering or seeing 19 Room 7. (DUF ¶¶ 11, 12.) 20 Plaintiff lives in Orange County, California, approximately 630 miles south of Dunsmuir. 21 (DUF ¶¶ 13, 24.) Plaintiff had never been to Dunsmuir before March 23, 2021 and had never 22 stayed at the hotel. (DUF ¶¶ 14, 23.) 23 On June 7, 2021, an investigator for plaintiff’s counsel went to the hotel, investigated 24 Room 7, took various measurements, and identified purported accessibility barriers for 25 wheelchair uses in that room. (PUF ¶¶ 7–12.) Plaintiff was later informed that Room 7 does not 26 (allegedly) comply with ADA standards. (PUF ¶ 13.) According to plaintiff, he would like to 27 patronize this hotel whenever he is in town again for business, and he would also like to return to 28 confirm that the hotel complies with disability access laws so that a similar incident does not 1 happen to him or another disabled patron in the future. (PUF ¶ 14.) In addition, according to 2 plaintiff, he is currently deterred from returning to the hotel based on his knowledge that the hotel 3 is still inaccessible. (Id.) 4 On July 29, 2021, plaintiff filed a complaint initiating this action against defendants (Doc. 5 No. 1), and on December 30, 2021, plaintiff filed the operative first amended complaint (“FAC”) 6 (Doc. No. 13). In his FAC, plaintiff asserts a claim under the Americans with Disabilities Act 7 (“ADA”) and California’s Unruh Civil Rights Act (“the Unruh Act”). (Doc. No. 13.) 8 On December 13, 2022, defendants filed the pending motion for summary judgment as to 9 both claims, arguing that defendants lack standing under Article III, the ADA, and the Unruh Act. 10 (Doc. No. 34.) On December 27, 2022, plaintiff filed an opposition to the pending motion, and 11 on January 5, 2023, defendants filed a reply thereto. (Doc. Nos. 36, 37.) 12 LEGAL STANDARD 13 A. Summary Judgment 14 Summary judgment is appropriate when the moving party “shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 16 Civ. P. 56(a). 17 In summary judgment practice, the moving party “initially bears the burden of proving the 18 absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 19 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party 20 may accomplish this by “citing to particular parts of materials in the record, including 21 depositions, documents, electronically stored information, affidavits or declarations, stipulations 22 (including those made for purposes of the motion only), admissions, interrogatory answers, or 23 other materials,” or by showing that such materials “do not establish the absence or presence of a 24 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 25 Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, as 26 plaintiff does here, “the moving party need only prove that there is an absence of evidence to 27 support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 28 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after 1 adequate time for discovery and upon motion, against a party who fails to make a showing 2 sufficient to establish the existence of an element essential to that party’s case, and on which that 3 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 4 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 5 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 6 “so long as whatever is before the district court demonstrates that the standard for the entry of 7 summary judgment . . . is satisfied.” Id. at 323. 8 If the moving party meets its initial responsibility, the burden then shifts to the opposing 9 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 10 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 11 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 12 of its pleadings but is required to tender evidence of specific facts in the form of affidavits or 13 admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. 14 P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 15 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for 16 summary judgment.”). The opposing party must demonstrate that the fact in contention is 17 material, i.e., a fact that might affect the outcome of the suit under the governing law, see 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. 19 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the 20 evidence is such that a reasonable jury could return a verdict for the non-moving party, see 21 Anderson, 477 U.S. at 250; Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 22 In the endeavor to establish the existence of a factual dispute, the opposing party need not 23 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 24 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 25 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 26 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 27 Matsushita, 475 U.S. at 587 (citations omitted). 28 ///// 1 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 2 court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. 3 Cent. Contra Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing 4 party’s obligation to produce a factual predicate from which the inference may be drawn. See 5 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 6 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do 7 more than simply show that there is some metaphysical doubt as to the material facts. . . . Where 8 the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 9 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 10 B. Standing under Article III and the ADA 11 “[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the 12 threshold requirement imposed by Article III of the Constitution by alleging an actual case or 13 controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). To satisfy the case or 14 controversy requirement, a plaintiff must show that he has suffered an injury-in-fact that is 15 concrete and particularized; that the injury is traceable to the challenged action of the defendant; 16 and that the injury is likely to be redressed by a favorable decision. See Lujan v. Defenders of 17 Wildlife, 504 U.S. 555, 560–61 (1992). “To confer standing, an injury in fact must be concrete, 18 particularized, and actual or imminent, not hypothetical.” Langer v. Kiser, — F.4th —, —, 2023 19 WL 353215 at *4 (9th Cir. 2023) (citing Lujan, 504 U.S. at 561). 20 “In addition, to establish standing to pursue injunctive relief, which is the only relief 21 available to private plaintiffs under the ADA, [a plaintiff] must demonstrate a ‘real and immediate 22 threat of repeated injury’ in the future.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 23 946 (9th Cir. 2011) (footnote and citation omitted). 24 Under the Ninth Circuit’s deterrent effect doctrine, a plaintiff may “establish actual or 25 imminent injury for purposes of standing” to bring an ADA claim against a place of public 26 accommodation if the plaintiff has actual knowledge of accessibility barriers and is “currently 27 deterred” from visiting that place of public accommodation because of those barriers. Pickern v. 28 Holiday Quality Foods Inc., 293 F.3d 1133, 1137–38 (9th Cir. 2002); Langer, 2023 WL 353215 1 at *4 (noting that in Pickern, the court “confirmed that a person with a disability need not engage 2 in the ‘futile gesture’ of trying to access a noncompliant place just to create an injury for 3 standing”). “An ADA plaintiff who has encountered or has personal knowledge of at least one 4 barrier related to his or her disability when he or she files a complaint, and who has been deterred 5 from attempting to gain access to the public accommodation because of that barrier, has suffered 6 an injury in fact for the purpose of Article III.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1047 (9th 7 Cir. 2008) (citing Pickern, 293 F.3d at 1138). The Ninth Circuit has clarified that a “personal 8 encounter” with a barrier is not required; “[i]t is the plaintiff’s ‘actual knowledge’ of a barrier, 9 rather than the source of that knowledge, that is determinative.” C.R. Educ. & Enf’t Ctr. v. Hosp. 10 Props. Tr. (“CREEC”), 867 F.3d 1093, 1099–1100 (9th Cir. 2017) (rejecting the defendant’s 11 “invitation to create a bright-line predicate of a ‘personal encounter’ with a barrier to access as a 12 requirement for standing under ADA Title III”). In CREEC, the Ninth Circuit held that the 13 named plaintiffs had ADA standing under the deterrent effect doctrine, even though they never 14 visited the defendant’s hotels, because they had telephoned the hotels and learned that the hotels 15 offered shuttle transportation for guests but did not provide wheelchair-accessible transportation 16 for guests who use wheelchairs. CREEC, 867 F.3d at 1096–1101. 17 In addition, in order to establish standing, a plaintiff must sufficiently describe the 18 accessibility barriers and how those barriers relate to their particular disability. Chapman, 631 19 F.3d at 955 (vacating “the district court’s grant of summary judgment and remand[ing] with 20 instructions to dismiss [the plaintiff’s] ADA claim for lack of jurisdiction” because the plaintiff 21 did “not even attempt to relate the alleged violations to his disability”). A plaintiff “lacks 22 standing if he is indifferent to returning to the [place of public accommodation] or if his intent to 23 return is not genuine, or if the barriers he seeks to enjoin do not pose a real and immediate threat 24 to him due to his particular disability.” Id. at 953. 25 “[A] plaintiff’s motivation for visiting a place of public accommodation is ‘irrelevant to 26 the question of standing.’” Langer, 2023 WL 353215 at *5 (quoting CREEC, 867 F.3d at 1101). 27 Thus, plaintiffs who are motivated to visit places of public accommodation for the purpose of 28 testing for ADA compliance (so-called “ADA testers” or “serial litigants”) may nevertheless 1 establish standing. CREEC, 867 F.3d at 1101–02. Recently, in Langer, the Ninth Circuit 2 confirmed that “[b]eing an ADA tester is, in fact, a legitimate reason to go to a business,” and the 3 panel “expressly reject[ed] the ‘Harris test’ relied upon by [] district court[s] in the circuit that 4 attempts to measure the legitimacy of a plaintiff’s intent to return by considering factors such as 5 the plaintiff’s ‘past patronage of defendant’s business.” Langer, 2023 WL 353215 at *7 6 (rejecting Harris v. Del Taco, Inc., 396 F. Supp. 2d 1107, 1113 (C.D. Cal. 2005); Harris v. 7 Stonecrest Care Auto Ctr., LLC, 472 F. Supp. 2d 1208, 1216 (S.D. Cal. 2007)). 8 ANALYSIS 9 Defendants move for summary judgment as to both of plaintiff’s claims on the grounds 10 that plaintiff lacks standing under Article III, the ADA, and the Unruh Act. (Doc. No. 34-1.) 11 Defendants’ motion does not address the substantive merits of plaintiff’s claims. 12 A. Whether Plaintiff Lacks Standing for His ADA Claim 13 In their motion, defendants first argue that plaintiff lacks standing because he never 14 encountered any barriers at the hotel, and thus, he did not suffer an injury-in-fact as required for 15 Article III standing. (Doc. No. 34-1 at 11.) Although there is no genuine dispute of material fact 16 that the only accessibility barriers alleged by plaintiff are those inside Room 7 and that plaintiff 17 has never entered Room 7, these facts alone are insufficient to establish that plaintiff lacks 18 standing to bring his ADA claim. Under binding Ninth Circuit precedent and contrary to 19 defendants’ argument, a plaintiff need not personally encounter accessibility barriers to have 20 standing. See CREEC, 867 F.3d at 1099–1100 (9th Cir. 2017) (rejecting the defendant’s 21 “invitation to create a bright-line predicate of a ‘personal encounter’ with a barrier to access as a 22 requirement for standing under ADA Title III”). The undisputed fact that plaintiff did not 23 encounter the alleged accessibility barriers in Room 7 does not simply end the standing inquiry as 24 defendants suggest in their motion. It is also undisputed that after plaintiff’s visit to the hotel, on 25 June 7, 2021, an investigator hired by plaintiff’s counsel went to the hotel and identified several 26 purported accessibility barriers in Room 7, and those are the barriers described in plaintiff’s 27 complaint. (See Doc. No. 13 at 3–4.) It is further undisputed that plaintiff was informed that 28 ///// 1 Room 7 (allegedly) does not comply with the ADA standards.2 Thus, there is no genuine dispute 2 of material fact that plaintiff was aware of the alleged accessibility barriers when he filed his 3 original complaint on July 29, 2021 and the operative first amended complaint on December 30, 4 2021.3 Plaintiff has submitted evidence in the form of his declaration, in which he declares that 5 he is currently deterred from returning to the hotel due to the knowledge that Room 7 is still 6 (allegedly) inaccessible. These facts are sufficient to rebut defendants’ argument that plaintiff 7 lacked actual knowledge of the barriers. See CREEC, 867 F.3d at 1099 (“It is the plaintiff’s 8 ‘actual knowledge’ of a barrier, rather than the source of that knowledge, that is determinative.”); 9 see also Doran, 524 F.3d at 1042 (“Once a disabled individual has encountered or become aware 10 of alleged ADA violations that deter his patronage of or otherwise interfere with his access to a 11 place of public accommodation, he has already suffered an injury in fact traceable to the 12 defendant’s conduct and capable of being redressed by the courts, and so he possesses standing 13 under Article III to bring his claim for injunctive relief forward.”) (citing Lujan, 504 U.S. at 560– 14 61) (emphasis added). 15 Second, defendants argue that plaintiff has not made an adequate showing supported by 16 credible evidence of his intent to return to the hotel, in light of the undisputed facts that he has no 17 ties to the Dunsmuir area where the hotel is located, he lives over 600 miles from Dunsmuir, he 18 went to the hotel for the purpose of checking on its ADA compliance, and he has not been back to 19

20 2 The parties dispute whether Room 7 in fact complies with the ADA, but that factual dispute is not material to the standing challenge advanced by defendants in their pending motion. 21 3 In their reply, defendants argue that to satisfy his deterrence theory, plaintiff had to have been 22 aware of the alleged accessibility barriers at the time of his visit in March 2021 and that his 23 subsequent learning of those alleged barriers is insufficient. (Doc. No. 37 at 3.) Defendants’ argument is misplaced, however, because “the proper focus in determining jurisdiction are the 24 facts existing at the time the complaint under consideration was filed,” CREEC, 867 F.3d at 1102, not the facts existing on the day of the alleged violation. See Gastelum v. TJX Cos., Inc., 25 No. 21-cv-06714-VKD, 2023 WL 411345, at *6 (N.D. Cal. Jan. 25, 2023) (finding that the plaintiff had alleged standing based on allegations in his amended complaint even though those 26 allegations “might be viewed as an attempt to retroactively create standing based on facts that did 27 not exist at the time [plaintiff] commenced this action”). Moreover, “[s]o long as the discriminatory conditions continue, and so long as a plaintiff is aware of them and remains 28 deterred, the injury under the ADA continues.” Pickern, 293 F.3d 1137. 1 Dunsmuir since his sole visit in March 2021. (Doc. No. 34-1 at 12–13.) Defendants argue that 2 plaintiff has provided no facts or evidence of any bona fide intent to return the hotel or the 3 Dunsmuir area. (Doc. No. 37.) Defendants emphasize that plaintiff is an ADA tester plaintiff, 4 having filed twelve ADA lawsuits in the past several years, and that plaintiff’s visit to the hotel 5 was motivated by his desire to “assess ADA compliance for yet another lawsuit.” (Id. at 6, 13.) 6 In support of their pending motion for summary judgment, defendants filed a request for judicial 7 notice of the dockets from plaintiff’s other ADA lawsuits. (Doc. No. 35.) Defendants point to 8 this evidence as an indication that plaintiff’s declared intent to return to the hotel is not credible or 9 genuine. (Doc. No. 34-1 at 6, 12–13.) However, the Ninth Circuit has made crystal clear that a 10 plaintiff’s motivation in visiting a place of public accommodation is irrelevant to the question of 11 standing—even when the plaintiff is motivated by a desire to identify ADA violations and initiate 12 lawsuits. See Langer, 2023 WL 353215 at *5; CREEC, 867 F.3d at 1101. Indeed, the Ninth 13 Circuit has “instructed district courts not to question an ADA plaintiff’s standing simply because 14 they file numerous ADA lawsuits or are an ADA tester.” Langer, 2023 WL 353215 at *9. 15 Accordingly, the court will deny defendants’ request for judicial notice because the documents 16 that defendants request be judicially noticed are irrelevant to the pending motion, which only 17 challenges plaintiff’s standing. 18 In support of his opposition to the pending motion for summary judgment, plaintiff 19 submitted his declaration, in which he declares that: 20 I would like to patronize this Hotel whenever I am in town again for business. I would also like to return to confirm the Hotel now 21 complies with access laws so that a similar incident does not happen to me or another disabled patron in the future. However, I 22 am currently deterred from returning right now knowing that the Hotel is still inaccessible. 23 24 (Doc. No. 36-2 at ¶ 9.) Plaintiff does not describe in his declaration what his business is or when 25 he might be “in town again for business.” Defendants argue that “‘some day’ intentions—without 26 any description of concrete plans, or indeed even any specification of when the some day will 27 be—do not support a finding of the ‘actual or imminent’ injury” that is required for standing. 28 (Doc. No. 34-1 at 13) (quoting Lujan, 504 U.S. at 564). Defendants’ argument in this regard as to 1 plaintiff’s stated intent to return to the hotel whenever he is in town again for business is well 2 taken because plaintiff had not traveled to the Dunsmuir area on business prior to his only trip 3 there in March 2021, and plaintiff’s declaration is utterly lacking any description or factual 4 support showing why plaintiff would anticipate ever being in Dunsmuir for business again. But 5 defendants do not address plaintiff’s other asserted basis underlying his intent to return to the 6 hotel. That is, plaintiff has also declared that he would like to return to the hotel to confirm ADA 7 compliance, but he is currently deterred from doing so because, according to him, the hotel is still 8 inaccessible. Again, according to binding Ninth Circuit precedent (which defendants do not 9 acknowledge or address), a plaintiff’s intent to return may be based upon a desire to confirm 10 ADA compliance. See Langer, 2023 WL 353215 at *7 (“Being an ADA tester is, in fact, a 11 legitimate reason to go to a business,” and “[t]here is no past patronage or bona fide customer 12 requirement to bring an ADA claim.”); see also D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 13 1031, 1037, 1040 (9th Cir. 2008) (rejecting the district court’s “purported adverse credibility 14 determination” “because the district court focused on [plaintiff’s] history of ADA litigation as a 15 basis for questioning the sincerity of her intent to return to the [hotel]”). 16 With respect to whether plaintiff is ultimately credible and whether his intent to return for 17 the purpose of assessing the hotel’s ADA compliance is genuine, these not issues raised by the 18 pending motion and would not be questions properly resolved by the court on summary judgment. 19 See T.W. Elec. Serv., Inc., 809 F.2d at 630 (“[A]t this [summary judgment] stage of the litigation, 20 the judge does not weigh conflicting evidence with respect to a disputed material fact. Nor does 21 the judge make credibility determinations with respect to statements made in affidavits, answers 22 to interrogatories, admissions, or depositions.”). 23 For these reasons, defendants’ motion for summary judgment in their favor as to 24 plaintiff’s ADA claim will be denied. To be clear, the court is not determining at this stage that 25 plaintiff in fact has standing to maintain his ADA claim, as that determination turns on the 26 credibility and the weighing of evidence, which are not evaluated by the court at the summary 27 judgment stage. Rather, the court concludes that defendants have not established that plaintiff 28 lacks standing under Article III and the ADA. The court notes that defendants’ failure in this 1 regard appears to be due in large part to their misunderstanding of the applicable legal standards 2 (e.g., believing that personal encounters of barriers is required) and their lack of awareness of 3 recent developments in Ninth Circuit authority addressing ADA standing issues (e.g., believing 4 that a plaintiff’s ADA litigation history is relevant and casts doubt on a plaintiff’s credibility). 5 B. Plaintiff’s Unruh Act Claim 6 In the pending motion, defendants also argue that because plaintiff lacks standing to bring 7 his ADA claim, he also lacks standing to bring his Unruh Act claim, which is predicated on the 8 alleged ADA violation. (Doc. No. 34-1 at 13–15.) In addition, defendants argue that plaintiff 9 failed to comply with the heightened pleading standards for disability discrimination lawsuits 10 brought under the Unruh Act, which are required by California Code of Civil Procedure § 425.50 11 and which are applied in California state courts. (Id.) Plaintiff does not address this latter 12 argument in his opposition. In their reply, defendants note that rather than address their standing 13 arguments as to plaintiff’s Unruh Act claim, the court may instead decline to exercise 14 supplemental jurisdiction over plaintiff’s Unruh Act claim. (Doc. No. 37 at 5.) 15 Declining to exercise supplemental jurisdiction over plaintiff’s Unruh Act claim here, 16 where the court has not yet determined the merits of plaintiff’s ADA claim, would be appropriate 17 and consistent with recent Ninth Circuit authority on this issue. See 28 U.S.C. § 1367(c)(4) (“The 18 district courts may decline to exercise supplemental jurisdiction over a claim [] if . . . in 19 exceptional circumstances, there are other compelling reasons for declining jurisdiction.”) In 20 particular, in Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 2021), the Ninth Circuit described in detail 21 the “backdrop of recent changes in California law governing Unruh Act claims,” and the fact that 22 the California Legislature “imposed additional procedural requirements on ‘construction-related 23 accessibility claims’ in order to address what it believed was continued abuse by ‘high-frequency 24 litigant[s].’” Arroyo, 19 F.4th at 1207 (quoting Cal. Civ. Proc. Code § 425.55(a)(2), (b)). The 25 court explained that because “the significant expense and burden of California’s newly imposed 26 rules . . . can be avoided by pairing the Unruh Act claim with a parallel federal ADA claim and 27 then filing the suit in federal court,” there has been a sharp increase in the number of ADA 28 lawsuits filed in federal courts in California. Id. (noting that the percentage of civil actions filed 1 in the Central District of California that were brought under the ADA increased in 2018 and 2019 2 from 3% to 22% of all civil actions). The panel concluded that “the procedural strictures that 3 California put in place have been rendered largely toothless, because they can now be readily 4 evaded.” Id. at 1213. The court further concluded that these circumstances are “exceptional.” Id. 5 Thus, in Arroyo the Ninth Circuit “ha[d] little difficulty concluding that the district court did not 6 abuse its discretion in concluding that the situation presented here involves ‘exceptional 7 circumstances’ within the meaning of § 1367(c)(4).” Id. at 1214. 8 Indeed, district courts who have addressed this issue post-Arroyo have declined to 9 exercise supplemental jurisdiction over Unruh Act claims where the litigation is not in the very 10 late stages and where the courts have not yet addressed or ruled on the merits of the ADA claim. 11 See Garcia v. Maciel, No. 21-cv-03743-JCS, 2022 WL 395316, at *5 (N.D. Cal. Feb. 9, 2022) 12 (collecting cases); see also Vo v. Choi, 49 F.4th 1167, 1172 (9th Cir. 2022) (affirming a district 13 court’s order declining to exercise supplemental jurisdiction over an Unruh Act claim because 14 “[t]he district court here declined supplemental jurisdiction over [plaintiff’s] Unruh Act claim 15 well before it ruled on the merits of the ADA claim”); cf. Whitaker v. Reeder, No. 20-55358, 16 2022 WL 2115045, at *1 (9th Cir. June 13, 2022) (reversing the district court’s decision to 17 decline the exercise of supplemental jurisdiction over the plaintiff’s Unruh claim because it did 18 not do so “until it had ruled on the merits of the ADA claim” and “[g]iven this timing, the values 19 of judicial economy and convenience favor retaining jurisdiction over the claim, and the concerns 20 of comity could not be properly addressed at the late stage of litigation”). 21 For these reasons, and consistent with the Ninth Circuit’s decision in Arroyo, the court 22 declines to exercise supplemental jurisdiction over plaintiff’s Unruh Act claim in this action. See 23 Garcia, 2022 WL 395316, at *5 (“Under the circumstances of this case, which has not progressed 24 beyond threshold questions of standing and jurisdiction, the strong comity concerns identified by 25 the Ninth Circuit in Arroyo outweigh any countervailing considerations of economy and 26 efficiency that might be adversely affected by requiring [plaintiff] to refile his Unruh Act claim in 27 state court.”). Therefore, the court will dismiss plaintiff’s Unruh Act claim, without prejudice to 28 plaintiff refiling that claim in state court. As a result of this determination, the court need not 1 || address the parties’ arguments with regard to whether plaintiff had established standing to 2 | maintain his Unruh Act claim. 3 CONCLUSION 4 For the reasons set forth above, 5 1. Defendants’ motion for summary judgment (Doc. No. 34) is denied; 6 2. Defendants’ request for judicial notice (Doc. No. 35) is denied; 7 3, Pursuant to 28 U.S.C. § 1367(c)(4), the court declines to exercise supplemental 8 jurisdiction over plaintiff's Unruh Act claim; and 9 4. Plaintiff's Unruh Act claims is dismissed without prejudice to plaintiff refiling that 10 claim in state court. 11 IT IS SO ORDERED. 2 Dated: _ February 1, 2023 Dal A. 2d, set 13 UNITED STATES DISTRICY JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13