1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 CENTENO, Case No.: 3:21-cv-1022-L-DEB

10 Plaintiff,

11 v.

ORDER ON PLAINTIFF’S MOTION

12 CITY OF CARLSBAD, et al., TO REMAND AND DEFENDANTS’ 13 Defendants. MOTIONS TO DISMISS 14 15 Pending before the Court is Plaintiff’s motion to remand and Defendants’ motions 16 to dismiss. The Court decides the matter on the papers submitted without oral argument. 17 See Civ. L. R. 7.1. For the reasons stated below, the Court DENIES Plaintiff’s motion 18 (ECF 5) and GRANTS Defendants’ motions (ECFs 3 and 6). 19 Background 20 This action relates to a pending civil rights case against Defendant City of Carlsbad 21 (“City”) that this Court is presiding over (19-cv-2098). (See ECF 1-2, First Amended 22 Complaint). Plaintiff contends City and Daniel S. Modafferi (“DSM”), its counsel in the 23 related case, violated his rights when they failed to provide his counsel, Genaro Lara 24 (“Lara”), with a hearing aid for Lara’s use during a civil deposition. Id. 25 Motion to Remand 26 City removed this action from San Diego Superior Court under 42 U.S.C. section 27 1441(a) (federal question). (ECF 1). DSM joined in the removal. (ECF 7). Plaintiff now 28 seeks to remand this action. 1 Federal courts have limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 2 Am., 511 U.S. 375, 377 (1994). The party seeking to remove the case bears the burden of 3 establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 4 1992). The removal statute is construed against removal, and any doubts are resolved in 5 favor of remand. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 6 2006); 28 U.S.C. § 1447(c). 7 Plaintiff argues the Court must remand this action because it lacks subject matter 8 jurisdiction and DSM failed to submit a declaration with City’s notice to show he 9 consented to the removal. (ECF 4). The Court will address each argument. 10 First, the amended complaint contains claims under the Americans with 11 Disabilities Act and 42 U.S.C. section 1983. (ECF 1-2). The Court therefore has subject 12 matter jurisdiction over this action. See 28 U.S.C. § 1331; Caterpillar Inc. v. Williams, 13 482 U.S. 386, 392 (1987); Holcomb v. Bingham Toyota, 871 F.2d 109, 110 (9th Cir. 14 1989) (“as a general proposition, the federal question must appear from the face of the 15 plaintiff’s complaint.”) 16 Second, City’s notice – which its counsel signed – asserted DSM consented to the 17 removal. (ECF 1). Defendants therefore satisfied the requirements under 28 U.S.C. 18 section 1446. Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009) 19 (“the filing of a notice of removal can be effective without individual consent documents 20 on behalf of each defendant. One defendant’s timely removal notice containing an 21 averment of the other defendants’ consent and signed by an attorney of record is 22 sufficient.”) DSM was not required to submit a declaration. Id. For these reasons, the 23 Court DENIES Plaintiff’s motion to remand. 24 Motions to Dismiss 25 Defendants move to dismiss Plaintiff’s amended complaint, arguing he failed to 26 state a plausible claim. (ECF 1-2); Fed. R. Civ. P. 12. 27 In general, a complaint must contain a “short and plain statement of the claim 28 showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 1 (2009) (internal quotation marks and citation omitted). “A pleading that offers ‘labels and 2 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” 3 Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The 4 allegations “must be enough to raise a right to relief above the speculative level.” 5 Twombly, 550 U.S. at 555. 6 The Court must accept as true all factual allegations in the complaint and draw 7 reasonable inferences from those allegations in Plaintiff’s favor. Skilstaf, Inc. v. CVS 8 Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). 9 Plaintiff asserts four claims against Defendants: Americans with Disabilities Act 10 (claims two and four), 42 U.S.C. section 1983 (claim three), and California Civil Code 11 sections 51 and 54.8 (claim one). The Court will start with the federal claims. 12 Americans with Disabilities Act, Title II (Second Claim) 13 To state a Title II claim, Plaintiff must allege: “(1) he is a ‘qualified individual 14 with a disability’; (2) he was either excluded from participation in or denied the benefits 15 of a public entity’s services, programs, or activities, or was otherwise discriminated 16 against by the public entity; and (3) such exclusion, denial of benefits, or discrimination 17 was by reason of his disability.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 18 2001). 19 Here, Plaintiff’s claim is based on Lara’s alleged disability. And the allegations are 20 that Defendants failed to provide a hearing aid to Lara during a civil deposition. That is, 21 Plaintiff does not allege he was denied any benefit or service based on his disability. 22 Even so, a public entity’s participation via counsel as a defendant in a civil 23 deposition is not a plausible service, program, or activity. Daubert v. Lindsay Unified 24 Sch. Dist., 760 F.3d 982, 987 (9th Cir. 2014) (the inquiry is whether the service, program, 25 or activity “is a normal function of a governmental entity . . . experiences that are merely 26 incidental to normal government functions are not fairly characterized as government 27 programs.”) (internal quotation marks and citation omitted). For these reasons, the second 28 claim is dismissed. 1 42 U.S.C. Section 1983 (Third Claim) 2 Plaintiff asserts a civil rights claim against Defendants under 42 U.S.C. section 3 1983. That section is not a source of substantive rights. Baker v. McCollan, 443 U.S. 137, 4 144 n.3 (1979). Instead, it is a mechanism to vindicate federal or constitutional rights. Id. 5 To state a claim, Plaintiff must allege Defendants: (1) were acting under the color 6 of state law, and (2) deprived him of a constitutional or federal right. West v. Atkins, 487 7 U.S. 42, 48 (1988). 8 Plaintiff relies, in part, on his Title II claim to support this one. (FAC at ¶¶ 24-25). 9 But again, that claim is not viable. And section 1983 cannot be used to assert a claim 10 under the Americans with Disabilities Act. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th 11 Cir. 2002); Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012). 12 Plaintiff also argues DSM’s alleged acts – ridiculing, mocking, and disparaging 13 Lara at a deposition – violated his due process rights. (FAC at ¶ 26). But that alleged 14 conduct does not amount to a plausible constitutional violation. This action does not 15 concern any deprivation of a constitutionally protected life, liberty, or property interest. 16 Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003); Shanks v. Dressel, 540 F.3d 1082, 17 1087 (9th Cir. 2008). Plaintiff has no constitutional right to have his counsel treated in a 18 professional manner by a public entity’s counsel.1 For these reasons, the third claim is 19 dismissed. 20 Retaliation under the Americans with Disabilities Act (Fourth Claim) 21 To plead a retaliation claim against Defendants under the Americans with 22 Disabilities Act, Plaintiff must allege: (1) he engaged in a protected activity; (2) he was 23 subjected to an adverse action; and (3) there was a causal link between the protected 24 activity and the adverse action. Brown v. City of Tucson, 336 F.3d 1181, 1186 (9th Cir. 25 2003). 26

27 1 Regardless, Plaintiff does not contend DSM acted under the color of state law. See West, 487 U.S. at 28 1 Defendants raised several arguments as to this claim. Plaintiff declined to oppose 2 them. The Court construes that as a wavier and an abandonment of the claim. See Jenkins 3 v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005). The Court therefore 4 dismisses the fourth claim. 5 Regardless, the retaliation claim is based on the purported Title II violation that, 6 per above, is not viable. Moreover, this action seeks to enforce Plaintiff’s purported 7 rights. Pardi v. Kaiser Permanente Hosp., Inc., 389 F.3d 840, 850 (9th Cir. 2004) 8 (“pursuing one’s rights . . . constitutes a protected activity.”) But Defendants sought 9 sanctions – the alleged adverse action – against Lara due to his alleged misconduct. (FAC 10 at ¶¶ 33-34). That is, Plaintiff failed to plead he was subjected to an adverse action. And 11 there is no plausible link between the alleged acts. These reasons also warrant dismissal. 12 See Brown, 336 F.3d at 1186. 13 The Court must next decide whether it should exercise jurisdiction over the state 14 law claim. See 28 U.S.C. § 1367(c)(3). It is well settled that federal courts have discretion 15 to retain jurisdiction over state law claims even after the federal question basis for 16 removal jurisdiction is dismissed. Harrell v. 20th Century Insurance Co., 934 F.2d 203, 17 205 (9th Cir. 2001); Nishimoto v. Federman-Bachrach & Associates, 903 F.2d 709, 715 18 (9th Cir. 1990). Courts should consider several factors, including judicial “economy, 19 convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 20 (1988); Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995). 21 Here, it would be more efficient, fair, and convenient to retain jurisdiction. There 22 would be a delayed resolution if the case was remanded. And the parties briefed the 23 issues as to the state law claim. Moreover, Plaintiff declined to oppose several pertinent 24 arguments Defendants raised in their motions. Also, the state law claim relies, in part, on 25 the federal claims. Furthermore, it involves alleged conduct that occurred in a related 26 case that the Court continues to preside over. (See Docket, 19-cv-2098). But “needless 27 decisions of state law should be avoided . . . as a matter of comity.” United Mine 28 Workers v. Gibbs, 383 U.S. 715, 726 (1966); 28 U.S.C. § 1367(c)(1). Upon due 1 consideration of judicial economy, convenience, fairness, and comity, the Court finds on 2 balance it is more appropriate to retain jurisdiction. It will therefore exercise 3 supplemental jurisdiction over the state law claim. 4 California Civil Code Sections 51 and 54.8 (First Claim) 5 Plaintiff relies on the alleged Title II violation to support his state law claim. Cal. 6 Civ. Code § 51(f) (“a violation of the right of any individual under the [Americans with 7 Disabilities Act] shall also constitute a violation of this section.”); Brennon B. v. Superior 8 Court, 57 Cal. App. 5th 367, 398 (2020). The claim is therefore subject to dismissal for 9 the above reasons.2 10 Plaintiff also relies on section 54.8, which states: “in any administrative hearing of 11 a public agency, where a party, witness, attorney, judicial employee, judge, juror, or other 12 participant who is deaf or hard of hearing, the individual who is deaf or hard of hearing, 13 upon his or her request, shall be provided with a functioning assistive listening system or 14 a computer-aided transcription system.” Cal. Civ. Code § 54.8(a).3 But the allegations do 15 not involve Plaintiff’s impairment. And that section relates to administrative hearings, not 16 depositions in civil cases. Regardless, there is no private cause of action under that 17 section. Sexton v. Cnty. of Santa Clara, 7 F. App'x 736, 738 (9th Cir. 2001).4 For these 18 reasons, the first claim is dismissed. 19 Leave to Amend 20 Under Federal Rule of Civil Procedure 15(a), courts “should freely give leave 21 when justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be applied with 22

23 2 Section 51 only applies to business establishments. Brennon B., 57 Cal. App. at 398. But Plaintiff does 24 not argue City engages in activities that have sufficient commercial attributes. See Carter v. City of Los 25 Angeles, 224 Cal. App. 4th 808, 825 (2014) (“an organization has sufficient businesslike attributes to qualify as a business establishment when it ‘appears to have been operating in a capacity that is the 26 functional equivalent of a commercial enterprise.’”) (internal quotation marks and citation omitted). 3 The other portion under this section requires courts to provide hearing equipment during civil and 27 criminal proceedings. 4 If subsection (a) is not complied with, then “the proceedings shall not commence.” Cal. Civ. Code § 28 1 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th 2 Cir. 2003). The relevant factors to consider include undue delay, the movant’s bad faith, 3 prejudice to the opposing party, repeated failure to cure deficiencies, and futility. Foman 4 v. Davis, 371 U.S. 178, 182 (1962); Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 5 2004). The most important factor is prejudice. Eminence Capital, LLC, 316 F.3d at 1052. 6 Absent that, or a strong showing of the other factors, there is a “presumption . . . in favor 7 of granting leave to amend.” Id. (emphasis original). But “futility of amendment can, by 8 itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 9 845 (9th Cir. 1995). 10 Here, Plaintiff did not show an amendment could cure the above deficiencies. He 11 cannot assert a claim based on Lara’s purported injuries or rights. Warth v. Seldin, 422 12 U.S. 490, 499 (1975) (a “plaintiff generally must assert his own legal rights and interests, 13 and cannot rest his claim to relief on the legal rights or interests of third parties.”); United 14 States v. Taketa, 923 F.2d 665, 670 (9th Cir. 1991) (constitutional rights are personal.) 15 And there are no factual allegations that could support Plaintiff’s claims. That is, the 16 Court cannot “conceive of facts” that would render the claims viable.5 Balistreri v. 17 Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1988); Lopez v. Smith, 203 F.3d 1122, 18 1130 (9th Cir. 2000) (dismissal without leave is appropriate if the court “determines that 19 the pleading could not possibly be cured by the allegation of other facts.”) (internal 20 quotation marks and citation omitted). 21 Overall, leave to amend is not warranted as it would be futile. Bonin, 59 F.3d at 22 845; Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988); Cervantes v. 23 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“although leave to 24 amend should be given freely, a district court may dismiss without leave where a 25 26

27 5 Plaintiff’s failure to respond to several arguments suggests he is unable to plead other factual 28 | || plaintiff's proposed amendments would fail to cure the pleading deficiencies and 2 amendment would be futile.”’) 3 Conclusion 4 For the reasons stated above, Plaintiff's motion to remand is DENIED. 5 || Defendants’ motions to dismiss ae GRANTED WITHOUT LEAVE TO AMEND. 6 || This action is DISMISSED WITH PREJUDICE. 7 IT IS SO ORDERED. 8 || Dated: October 26, 2021 pee ep? 10 H . James Lorenz, United States District Judge

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