1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRIS LANGER, Case No.: 3:22-cv-02050-RBM-DDL

12 Plaintiff,

ORDER GRANTING MOTION TO

13 v. REMAND 14 ROYA NIKZAD PHD ALLERGY &

ACUPUNCTURE,

15 Defendant. 16 [Doc. 9] 17 18 19 Before the Court is Plaintiff Chris Langer’s (“Plaintiff”) Motion to Remand. (Doc. 20 9.) Defendant Roya Nikzad PHD Allergy & Acupuncture (“Defendant”) has filed an 21 Opposition (Doc. 12), and Plaintiff filed a Reply (Doc. 13). Additionally, Defendant filed 22 a Sur-Reply. (Doc. 16.) For the reasons set forth below, the Motion to Remand is 23 GRANTED and this case is REMANDED to state court. 24 I. BACKGROUND 25 A. Procedural History 26 Plaintiff’s Complaint was initially filed in San Diego Superior Court and then 27 removed by Defendant to this Court. (Doc. 1.) Defendant’s Notice of Removal asserts 28 1 this Court has subject matter jurisdiction based on federal question. (Doc. 1 at 2. ) Shortly 2 after the case was removed, Defendant filed a Motion to Dismiss based on failure to state 3 a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 7.) Plaintiff then filed the 4 instant Motion to Remand requesting the Court remand the case back to state court. (Doc. 5 9.) Plaintiff argues the removal was improper because Plaintiff alleges no federal claims. 6 (Id.) 7 B. Plaintiff’s Complaint 8 The Complaint alleges two state-law claims: (1) violation of the Unruh Civil Rights 9 Act, California Civil Code § 51 (“Unruh Act”) (Compl. ⁋⁋ 44–51); and (2) violation of the 10 California Disabled Persons Act, California Civil Code § 54.1 (“CDPA”) (id. ⁋⁋ 52–55). 11 The Complaint alleges Plaintiff is hard of hearing and “relies on subtitles and closed 12 captioning to consume audio and recorded content.” (Id. ⁋⁋ 14–15.) Plaintiff explains he 13 attempted to view video content on Defendant’s website—“About Us” and “Brain Fog and 14 insomnia NEAT treatment–Stephanie P,” but the videos were inaccessible because they 15 lacked closed captioning. (Id. ⁋⁋ 16–22, 26.) The Complaint asserts that because 16 Defendant has failed to provide an accessible website in usable condition for people with 17 disabilities, Plaintiff has been denied the use and enjoyment of the facilities, goods, 18 services, and benefits offered by Defendants. (Id. ⁋⁋ 23–25, 28.) The Complaint further 19 alleges Plaintiff has been deterred from Defendant’s services because of the inaccessible 20 website. (Id. ⁋⁋ 27, 29, 31.) 21 Additionally, the Complaint contends that the industry standards for website design 22 are well-known, and Defendant’s website was “intentionally designed, and based on 23 information and belief, it is the Defendant’s policy and practice to deny” website access, 24 including low-cost closed captioning. (Id. ⁋⁋ 32–38.) Plaintiff seeks compliance with all 25 federal and state accessibility laws and asserts that compliance with W3C Web Content 26 27 28 1 Accessibility Guidelines (“WCAG”) 2.0 AA standards is a viable remedy for the 2 deficiencies. (Id. ⁋⁋ 30, 32–33.) In the Prayer of the Complaint, Plaintiff seeks injunctive 3 relief—ongoing compliance with WCAG 2.0+, that new video postings have closed 4 captioning, employee training on access to customers with disabilities—statutory damages 5 under the Unruh Act or CDPA, and reasonable attorney’s fees, litigation expenses, and 6 costs of suit under California Civil Code § 52 and 42 U.S.C. § 12205. (Doc. 1-2 at 10–11.) 7 II. LEGAL STANDARDS 8 A. Removal 9 A civil case brought in state court can be removed to federal court if the federal court 10 has original jurisdiction. 28 U.S.C. § 1441. A removed case may be remanded for lack of 11 subject matter jurisdiction at any time before final judgment. 28 U.S.C. 1447(c). “As a 12 general rule, absent diversity jurisdiction, a case will not be removable if the complaint 13 does not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 14 1, 6 (2003) (Explaining narrow exceptions based on specific federal statutes and 15 preemption). 16 “[R]emoval statutes should be construed narrowly in favor of remand to protect the 17 jurisdiction of state courts.” Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th 18 Cir. 2005) (citation omitted); Academy of Country Music v. Cont’l Cas. Co., 991 F.3d 1059, 19 1068 (9th Cir. 2021) (“Other than for cases under the Class Action Fairness Act of 2005 20 (CAFA), we strictly construe the removal statute against removal jurisdiction.”) (citations 21 omitted); Gaus v. Miller, 980 F.2d 564, 566 (9th Cir. 1992). Even though a plaintiff is 22 generally the moving party on a motion to remand, “[t]he ‘strong presumption’ against 23 removal jurisdiction means that the defendant always has the burden of establishing that 24 removal is proper.” Gaus, 980 F.2d at 566. Additionally, as the party asserting this Court 25 has jurisdiction, Defendant has the burden of establishing subject matter jurisdiction. 26 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“It is presumed that 27 a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests 28 1 upon the party asserting jurisdiction.”) “[T]he court resolves all ambiguity in favor of 2 remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 3 B. Federal Question Jurisdiction 4 Defendant’s Notice of Removal asserts this Court has subject matter jurisdiction 5 based on federal question. (Doc. 1 at 2 (citing 28 U.S.C. § 1331).) “The presence or 6 absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, 7 which provides that federal jurisdiction exists only when a federal question is presented on 8 the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 9 U.S. 386, 392 (1987) (citations omitted). 10 Federal courts have subject matter jurisdiction based on federal question over 11 “actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 12 § 1331. Although federal question jurisdiction is generally based on the presence of a 13 federal claim, “[a] case may also arise under federal law where ‘it appears that some 14 substantial, disputed question of federal law is a necessary element of one of the well- 15 pleaded state claims.’” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (quoting 16 Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 17 1, 13 (1983)). “However, the ‘mere presence of a federal issue in a state cause of action 18 does not automatically confer federal-question jurisdiction.’” Id. (quoting Merrell Dow 19 Pharm. Inc v. Thompson, 478 U.S. 804, 813 (1986)). 20 III. DISCUSSION 21 Defendant argues this Court has subject-matter jurisdiction based on federal question 22 because the Complaint alleges violations of the Americans with Disabilities Act (“ADA”), 23 seeks injunctive relief, lacks intentional discrimination under state law, and the 24 Complaint’s prayer cites an attorney’s fee provision under federal law. (Doc. 12 at 2–7.) 25 Plaintiff argues allegations of ADA violations are insufficient to create federal question 26 jurisdiction when only state law claims are asserted, including when injunctive relief is 27 sought, and that a multitude of district courts have remanded cases like this one. (Doc. 9- 28 1 at 4–6, Doc. 13 at 2–3.) 1 Plaintiff’s Complaint does not assert any federal claims, only two state law claims. 2 The question then is whether Plaintiff’s state law claims arise under federal law for any of 3 the reasons advanced by Defendant in attempting to meet its burden to establish federal 4 question jurisdiction: (1) reliance on the ADA; (2) lacking intentional discrimination; (3) 5 seeking injunctive relief; and (4) citation of federal statute in the prayer. 6 A. Reliance on ADA violations for State Law Claims 7 The Complaint does reference the ADA, including under each state claim. (Compl. 8 ⁋⁋ 46, 53.) However, Plaintiff’s state claims being “premised on ADA violations do[es] 9 not create federal question jurisdiction.” Rutherford v. La Jolla Riviera Apartment House 10 LLC, Case No. 19cv1349 JM (MDD), 2019 WL 6125255, at *2–3 (S.D. Cal. Nov. 19, 11 2019) (collecting cases finding state claims premised on ADA violations do not create 12 federal question jurisdiction). 13 The Complaint asserts the Unruh Act and CDPA provide that a violation of the ADA 14 is a violation of each state law. (⁋ 46 (citing Cal. Civ. Code § 51(f) (Unruh Act)), ⁋ 53 15 (citing § 54.1(d) (CDPA)).) However, Plaintiff’s state law claims do not rely solely on 16 violations of the ADA. Not only do these state laws themselves provide alternative ways 17 to violate them independent of the ADA, but the Complaint itself states as much by also 18 relying on § 51(b) for the Unruh Act claim (Compl. ⁋ 45) and § 54.1 for the CDPA claim 19 (Compl. ⁋ 52). These are alternative and independent state law theories. “When a claim 20 can be supported by alternative and independent theories – one of which is a state law 21 theory and one of which is a federal law theory – federal question jurisdiction does not 22 attach because federal law is not a necessary element of the claim.” Rains v. Criterion Sys., 23 Inc., 80 F.3d 339, 346 (9th Cir. 1996) (emphasis added); see also Wander, 304 F.3d at 858 24 (“[T]he mere presence of a federal issue in a state cause of action does not automatically 25 confer federal-question jurisdiction.”) (citations omitted). 26 /// 27 /// 28 /// 1 Additionally, despite Defendant’s accusations that Plaintiff is engaging in 2 “gamesmanship” and “purposefully try[ing] to divest this Court of jurisdiction” (Doc. 12 3 at 6), Plaintiff has simply filed a case asserting two state law claims and chosen not to 4 assert any federal claims on the same basis. That is his choice. See Rains, 80 F.3d at 344 5 (“[Plaintiff] chose to bring a state claim rather than a [federal] claim, and was entitled to 6 do so.”) (citations omitted). Plaintiff has not omitted a “federal law essential to his claim 7 or … cast[] in state law terms a claim that can be made only under federal law.” Id. 8 (Explaining artful pleading doctrine) (emphasis added). Rather, Plaintiff has brought state 9 claims and relies on the violation of the ADA as an alternative basis for violation of the 10 state claims along with a state law basis. Because this is not artful pleading, the Court need 11 not recharacterize Plaintiff’s state law claims as federal claims. Id. (“An artfully pleaded 12 state law claim may be recharacterized as a federal claim by the court to which it is 13 removed,” but finding instead that defendant improperly rewrote “plaintiff’s properly 14 pleaded claim in order to remove it to federal court.”). 15 Because Plaintiff’s Complaint includes a state law theory that is not based on a 16 violation of the ADA, and an ADA violation is not a necessary element of Plaintiff’s state 17 law claims, federal question jurisdiction is not established. 18 B. Intentional Discrimination 19 Defendant attempts to distinguish this case from the many others that have been 20 remanded by arguing “Plaintiff has not pled intentional discrimination which is required to 21 have a ‘stand alone’ Unruh violation.” (Doc. 12 at 4.) Defendant asserts that without the 22 ADA violation Plaintiff must prove intentional discrimination to prevail under the Unruh 23 Act. Not only has Defendant not supported this assertion with any cases finding federal 24 question jurisdiction on this basis, but numerous courts have rejected this argument in 25 remanding similar cases. Some courts have engaged in a Rule 12(b)(6) analysis of the 26 allegations of the Complaint to assess whether the plaintiff has alleged a plausible claim 27 for intentional discrimination under the Unruh Act and found the plaintiffs have done so. 28 Thurston v. ClearPath Lending, Inc., Case No. SACV 18-2094 JVS (JDEx), 2019 WL 1 366405, at *2 (C.D. Cal. Jan. 28, 2019) (citing Greater Los Angeles Agency for Deafness, 2 Inc., 742 F.3d 414, 425 (9th Cir. 2014)); Martinez v. Adidas Am., Inc., Case No. EDCV 3 19-841 JGB (KKx), 2019 WL 3002864, at *4 (C.D. Cal July 9, 2019); Rutherford, 2019 4 WL 6125255, at *5 (“Although the words ‘intentional,’ ‘willful,’ or the like do not appear 5 in the Complaint, Plaintiff nonetheless pleads a plausible claim for intentional 6 discrimination.”). Other courts have suggested the viability of intentional discrimination 7 is not an issue to resolve in assessing federal question jurisdiction. Arroyo v. Capitol 8 Regency, No. 2:21-cv-00983-KJM-KJN, 2012 WL 3737679, at *3 (E.D. Cal. Aug. 24, 9 2021) (“[T]his court is not convinced federal question jurisdiction exists simply because 10 [Plaintiff] … does not allege intentional discrimination.”); Licea v. J&P Park Acquisitions, 11 Inc., Case No. CV 19-68-R, 2019 WL 1296876, at *1 (C.D. Cal. Mar. 20, 2019) (“The 12 [Unruh Act] may be violated in a number of ways, with an ADA violation being just one 13 possibility. See Cal. Civ. Code § 51. Whether Plaintiffs have a viable claim under the 14 [Unruh Act] is a question for the state court and has no bearing on the issue of federal 15 jurisdiction.”). 16 Here, Plaintiff specifically pleads a claim under § 51(b), a separate provision of the 17 Unruh Act that does not rely on an ADA violation. Additionally, the Complaint alleges 18 Defendant intentionally designed its website without following well-known industry 19 standards and has a practice and policy of denying website access despite the ability to 20 provide access easily and at a low cost. (Compl. ⁋⁋ 32–38.) The Court finds these 21 allegations and Plaintiff’s reliance on state law provisions that are independent of the ADA 22 provide an “alternative and independent … state law theory” sufficient that “federal 23 question jurisdiction does not attach.” Rains, 80 F.3d at 346; see also Rutherford, 2019 24 WL 6125255, at *2 (“[S]ection 51(b) guarantees specific rights to persons with disabilities 25 and can serve as a basis for a claim independent of the ADA.”) (citing Munson v. Del Taco, 26 208 P.3d 623, 627 (Cal. 2009) and Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024 (N.D. 27 Cal. 2012)). 28 1 C. Injunctive Relief 2 Defendant argues this Court has federal question jurisdiction because Plaintiff is 3 seeking injunctive relief, including compliance with the ADA. (Doc. 12 at 2–6.) However, 4 Defendant does not cite any cases where a court has actually found federal question 5 jurisdiction existed because the plaintiff sought injunctive relief. Defendant relies on a 6 footnote in Pickern v. Best Western Timber Code Lodge Marianan Resort, where the court 7 indicates that injunctive relief premised solely on a violation of the ADA would create 8 federal jurisdiction. 194 F.2d 1128, 1133 n. 5 (E.D. Cal. 2002). However, as discussed 9 above, Plaintiff’s claims are not premised solely on a violation of the ADA. (See III.A.1.) 10 “Unlike the situation referenced in Pickern, … Plaintiff’s Unruh Act claim for injunctive 11 relief is not based solely on a violation of the ADA; he also alleges that Defendant’s 12 conduct violates the Unruh Act based on the act’s own provisions.” Rios v. New York and 13 Co., Inc., Case No. 2:17-cv-04676-ODW (AGRx), 2017 WL 3575220, at *2 (C.D. Cal. 14 Aug.17, 2017); see also Castillo v. Lundt and Sprungli USA Inc., Case No. 2:19-cv-08483- 15 SVW-KS, 2019 WL 6910354, at *2 (C.D. Cal. Dec. 18, 2019) (Describing this finding in 16 Pickern as a hypothetical situation where there was no independent state law basis for 17 jurisdiction under the Unruh Act); see also ClearPath, 2019 WL 366405, at *3 (“[T]he 18 crucial difference between that theoretical scenario and the case at bar is that Plaintiff 19 alleges multiple theories upon which Defendant may be liable.”). 20 Here, “[t]his court follows the substantial weight of district court precedent holding 21 that a claim for injunctive relief potentially premised on ADA violations incorporated into 22 the Unruh Act does not create federal jurisdiction.” Castillo, 2019 WL 6910354, at *2 23 (citing Rutherford, 2019 WL 6125255, at *3–4 and ClearPath, 2019 WL 366405, at *4). 24 “[T]here is no good reason to deviate from the multitude of other district courts finding 25 that Unruh Act claims premised on the ADA, including those seeking injunctive relief, are 26 outside the court’s federal question jurisdiction.” Rutherford, 2019 WL 6125255, at *4. 27 Plaintiff’s request for injunction relief does not create federal question jurisdiction. 28 1 D. Citation of 42 U.S.C. § 12205 2 Plaintiff’s erroneous2 citation of a federal attorney’s fee provision, 42 U.S.C. 3 § 12205, in the Prayer also does not create federal question jurisdiction. Defendant argues 4 the citation of a federal statute in the Prayer creates federal question jurisdiction because it 5 means Plaintiff is asserting an ADA claim. (Doc. 12 at 3–4.) Defendant also argues in its 6 Sur-Reply that “Plaintiff has conceded that this court has subject-matter jurisdiction over 7 the current Complaint” because Plaintiff indicates the citation was in error and he is willing 8 to amend the Complaint to remove the citation but has not filed a motion for leave to amend 9 the Complaint.” (Doc. 16 at 2–3.) 10 However, Defendant cites no cases in support of finding federal question jurisdiction 11 based on citation in a prayer when there are no federal claims. Defendant asserts courts 12 can consider prayers in assessing jurisdiction, (Doc. 12 at 3), but the cases cited are not 13 assessing federal question jurisdiction. Two of the cases relied on are looking to the prayer 14 only for purposes of the amount in controversy for diversity jurisdiction, not for federal 15 question. Quinonez v. FCA US LLC, No. 2:19-cv-2032-KJM, 2020 WL 339756, *3 (E.D. 16 Cal. June 19, 2020); Gillings v. Time Warner Cable LLC, Case No. CV 10-5565 AG 17 (RNBx), 2011 WL 13273074, *3 (C.D. Cal. Jan. 6, 2011). The third case cited discusses 18 the prayer only to note it includes legal damages for purposes of abstention principles. Ng 19 v. Wells Fargo Bank, N.A., Case No. 12-cv-05630 NC, 2012 WL 12921072, *2 (N.D. Cal. 20 Nov. 27, 2012). 21 Defendant has not carried its burden in establishing federal question jurisdiction 22 based on this citation when there are no federal claims in the Complaint. In the absence of 23 any federal claims, “[a] request for attorney’s fees cannot be a basis for federal 24 jurisdiction.” Carter v. Health Net of Cal., 374 F.3d 830, 834 (9th Cir. 2004) (Explaining 25 that “[t]he valid exercise of federal question jurisdiction … depend[s] upon the substantive 26 27 2 Plaintiff’s Reply brief indicates that citation of this statute in the Prayer was an error. 28 1 ||claims raised” and “if the district court lacked jurisdiction over the petition, it could not 2 ||have exercised jurisdiction based on the request for fees.”); see also Pelloni v. WE: 3 || Women’s Ent. Network, No. CV 08-5612-GPS (AGRx), 2008 WL 4501845, at *4—-5 (C.D. 4 || Cal. Oct. 5, 2008) (Addressing a federal attorney’s fee provision in the prayer and finding 5 || “the fact that it was included in the prayer for relief does not change the nature of the claims 6 || and the federal questions they do or do not present.’’). The Pe//oni court also acknowledges 7 ||\the argument that Defendant makes here, “a sort of reverse incorporation” where the 8 || mention of the federal statute in the prayer suggests “there were indeed federal claims being 9 || brought.” 2008 WL 4501845, at *5. However, after noting the Ninth Circuit’s policy to 10 construe any doubt against removal, the court finds this does not create federal question 11 ||jurisdiction. Jd.; see also Thurston v. Container Store, Inc., Case No. 5:16-cv-02658- 12 || SVW-DTB, 2017 WL 658806, at *3 (C.D. Cal. Feb. 16, 2017) (Finding “it is ambiguous 13 ||... whether the ADA’s relation to the Plaintiff's state cause of action meets the standard 14 || for federal question jurisdiction when the claim is not brought under the ADA directly” 15 |}and remanding because “the court resolves all ambiguity in favor of remand to the state 16 |} court.) (quoting Hunter, 582 F.3d at 1042). The Court finds Defendant has not established 17 || federal question jurisdiction based on this citation in the prayer and even if the Court found 18 |/it ambiguous, that ambiguity favors remand. 19 None of the reasons advanced by Defendant create federal question jurisdiction over 20 || Plaintiff's state law claims. 21 IV. CONCLUSION 22 Plaintiff's Motion to Remand is GRANTED and the case is REMANDED to the 23 || Superior Court of California for the County of San Diego. The Clerk shall close the case. 24 IT IS SO ORDERED. 25 Dated: September 12, 2023 Fe Le ; ? L > 26 HON. RUTH BERMUDEZ MONTENEGRO 27 UNITED STATES DISTRICT JUDGE 28 10