1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ORLANDO GARCIA, Case No. 21-cv-03743-JCS

6 Plaintiff, ORDER DECLINING TO EXERCISE 7 v. SUPPLEMENTAL JURISDICTION AND DISMISSING STATE CLAIM 8 JESUS GARCIA MACIEL, et al.,

Defendants. 9

10 I. INTRODUCTION 11 On January 3, 2022, the Court ordered Plaintiff Orlando Garcia to show cause why the 12 Court should not decline to exercise supplemental jurisdiction over Garcia’s state-law Unruh Civil 13 Rights Act claim for the reasons stated in Arroyo v. Rosas,

(9th Cir. 2021). See dkt. 14 33. As ordered, Garcia has addressed that question in his opposition to Defendants’ motion to 15 dismiss on other grounds. The Court finds the matter suitable for resolution without oral 16 argument. For the reasons discussed below, the Court declines to exercise supplemental 17 jurisdiction, and DISMISSES Garcia’s Unruh Act claim sua sponte, without prejudice to pursuing 18 that claim in state court.1 19 Resolving Defendants’ pending motion to dismiss Garcia’s ADA claim would require an 20 evidentiary hearing to assess the credibility of Garcia’s stated intent to return to the business, 21 which the Court previously set for February 11, 2022. In light of the dismissal of Garcia’s Unruh 22 Act claim, however, it is not obvious whether Garcia would want to continue pursuing his ADA 23 claim separately, rather than proceeding solely on his Unruh Act claim in state court or filing both 24 claims in state court.2 The evidentiary hearing on Defendants’ motion is therefore CONTINUED 25

26 1 The parties have consented to the jurisdiction of a magistrate judge for all purposes under

(c). 27 2 This order does not reach the question of whether the same outcome as to supplemental 1 to March 4, 2022 at 9:30 AM, to occur via Zoom webinar. Garcia is ORDERED to file no later 2 than February 18, 2022 either: (1) a motion or stipulation to dismiss his ADA claim; or (2) a status 3 report indicating that he would like to proceed on that claim in this Court. If Garcia elects to 4 proceed, he shall appear at the March 4th hearing prepared to testify under oath. 5 II. LEGAL STANDARD 6 When a federal court has original jurisdiction over a claim, the court “shall have 7 supplemental jurisdiction over all other claims that are so related to claims in the action . . . that 8 they form part of the same case or controversy.”

(a). State claims are part of the 9 same case or controversy as federal claims “‘when they derive from a common nucleus of 10 operative fact and are such that a plaintiff would ordinarily be expected to try them in one judicial 11 proceeding.’” Kuba v. 1–A Agric. Ass’n,

, 855–56 (9th Cir. 2004) (quoting Trs. of 12 the Constr. Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 13

(9th Cir. 2003)). 14 Supplemental jurisdiction is mandatory unless prohibited by § 1367(b),3 or unless one of 15 the exceptions in § 1367(c) applies. Schutza v. Cuddeback,

(S.D. Cal. 16 2017). Under § 1367(c), a district court may “decline supplemental jurisdiction over a claim” if:

17 (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which 18 the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in 19 exceptional circumstances, there are other compelling reasons for declining jurisdiction. 20 21

(c). 22 A district court’s discretion to decline to exercise supplemental jurisdiction over state law 23 “is informed by the Gibbs values ‘of economy, convenience, fairness, and comity.’” Acri v. 24 Varian Assocs., Inc.,

(9th Cir. 1997) (en banc) (quoting United Mine Workers 25 v. Gibbs,

, (1966)). A court may decline to exercise supplemental jurisdiction 26

27 3

(b) applies to civil actions where a district court has original jurisdiction 1 under § 1367(c) “under any one of [the statute’s] four provisions.” San Pedro Hotel Co., Inc. v. 2 City of Los Angeles,

, 478–79 (9th Cir. 1998). When dismissing a state-law claim 3 pursuant to subparts (1) through (3), a district court need not state its reason for dismissal.

If a 4 district court declines to exercise supplemental jurisdiction under § 1367(c)(4), however, the court 5 must “articulate why the circumstances of the case are exceptional.” Exec. Software N. Am., Inc. 6 v. U.S. Dist. Court,

, 1557 (9th Cir. 1994), overruled on other grounds by Cal. Dep’t 7 of Water Res. v. Powerex Corp.,

(9th Cir. 2008). The Ninth Circuit has 8 cautioned that declining supplemental jurisdiction based on § 1367(c)(4) should be the exception, 9 not the rule. Id. at 1558. 10 III. EXCEPTIONAL CIRCUMSTANCES WARRANT DECLINING JURISDICTION 11 This case, like thousands of others filed in recent years in federal courts in California, 12 includes two claims: a federal claim under the Americans with Disabilities Act (“ADA”) for 13 failure to meet that statute’s requirements for ensuring that businesses are accessible to patrons 14 with disabilities, Compl. (dkt. 1) ¶¶ 27–35, and a state-law claim under California’s Unruh Act, 15 which incorporates the substantive requirements of the ADA but provides for statutory damages, 16 id. ¶¶ 36–39. As the Ninth Circuit noted in Arroyo, the number of such cases has greatly increased 17 in the years since California imposed “imposed additional procedural requirements on 18 ‘construction-related accessibility claims’ in order to address what it believed was continued abuse 19 by ‘high-frequency litigant[s],’” including a heightened pleading standard and an increased filing 20 fee. See Arroyo,

(quoting

(a)(2), (b)) (alteration in 21 original). Courts have generally held that, under the Erie doctrine, those requirements do not 22 apply in federal court. Whitaker v. Surf & Turf, LLC, No. 21-cv-03100-JCS,

, 23 at *5 (N.D. Cal. Aug. 5, 2021). A search of this Court’s electronic filing system indicates that 24 since the beginning of last year, Garcia has personally filed more than three hundred cases in this 25 district. 26 Before Arroyo, district courts were divided as to whether to exercise supplemental 27 jurisdiction over Unruh Act claims brought concurrently with ADA claims. This Court, along 1 cases. See, e.g., Whitaker v. Ramon Bravo, Inc., No. 21-cv-03714-JCS,

, at *6 2 (N.D. Cal. Sept. 10, 2021); Surf & Turf,

, at *4–5; Castillo-Antonio v. 3 Hernandez, No. 19-cv-00672-JCS,

, at *6–9 (N.D. Cal. June 28, 2019) (citing 4 Johnson v. Morning Star Merced, LLC, No. 1:18-CV-0558 AWI EPG,

(E.D. 5 Cal. Sept. 14, 2018); Schoors v. Seaport Vill. Operating Co., LLC, No. 16CV3089 (AJB), 2017

(S.D. Cal. May 5, 2017)). Other courts, largely in southern California, declined to 7 exercise supplemental jurisdiction on the grounds that state law issues predominated or 8 exceptional circumstances warranted declining jurisdiction. E.g., Schutza,

1029–32; Vogel v. Winchell’s Donut,

(C.D. Cal. 2017). 10 The Ninth Circuit held in Arroyo that, on one hand, the damages remedy under the Unruh 11 Act for violations of the ADA, and on the other hand, California’s heightened procedural 12 requirements for high-frequency disability access litigants, “have combined to create a highly 13 unusual systemic impact on ADA-based Unruh Act cases that clearly threatens to have a 14 significant adverse impact on federal-state comity.”

. Based on its review of 15 legislative history and codified law, the Ninth Circuit determined that California’s procedural 16 requirements were intended to discourage the filing of Unruh Act cases motivated by “quick cash 17 settlements rather than correction of the accessibility violation.”

at 1206–07 (quoting Cal. Civ. 18 Proc. Code § 425.55(a)(2). Because “retention of supplemental jurisdiction over ADA-based 19 Unruh Act claims threatens to substantially thwart California’s carefully crafted reforms in this 20 area and to deprive the state courts of their critical role in effectuating the policies underlying 21 those reforms,” the Ninth Circuit concluded that the circumstances presented “are ‘exceptional’ in 22 any meaningful sense of the term,” and failing to recognize them as such “would improperly 23 ignore the very substantial threat to federal-state comity that this overall situation presents.” Id. at 24 1213. The panel had “little difficulty concluding that the district court did not abuse its discretion 25 in concluding that the situation presented here involves ‘exceptional circumstances’ within the 26 meaning of § 1367(c)(4).” Id. at 1214. Based on the procedural posture of the case before it, 27 however—where the district court had already determined that the plaintiff was entitled to 1 Ninth Circuit held that the district court abused its discretion in declining supplemental 2 jurisdiction, because doing so at that late stage with no meaningful issues left to be determined 3 would frustrate the interests of judicial economy and convenience. Id. at 1214–17. 4 As far as this Court is aware, every decision thus far to consider the issue in light of 5 Arroyo—all from the Central District of California, and all after issuing to orders to show cause— 6 has declined to exercise supplemental jurisdiction. Valencia v. Desotovanowen Realty LLC, No. 7 CV 22-287 MWF (PVCx),

(C.D. Cal. Feb. 3, 2022); Cuevas v. DP 8 Grand Simi LP, No. CV 22-196 MWF (PVCx),

(C.D. Cal. Jan. 28, 9 2022); Kwon v. Leahy Assocs. LLC, No. 2:21-cv-09851-MCS-JPR,

10 (C.D. Cal. Jan. 13, 2022); Cuevas v. RIF, Inc., No. 2:21-cv-09900-MCS-PVC, 2022 U.S. Dist.

(C.D. Cal. Jan. 13, 2022); In Sun Kil v. Etehad LLC, No. CV 21-8075-DMG 12 (AGRx),

(C.D. Cal. Jan. 10, 2022); Yiun v. Ventura-Willis Props., 13 LLC, No. CV 21-7675-DMG (PLAx),

(C.D. Cal. Jan. 10, 2022); 14 Park v. Sim, No. 2:21-cv-09869-SB-GJS,

(C.D. Cal. Jan. 7, 2022); 15 Kim v. Shalabi, No. CV 21-9466 MWF (GJSx),

(C.D. Cal. Jan. 6, 2022); Vera v. 16 Woodley Ctr., LLC, No. CV 21-9594 MWF (AGRx),

(C.D. Cal. Jan. 17 6, 2022); Vera v. Woodley Ctr., LLC, No. CV 21-9594 MWF (AGRx),

8212 (C.D. Cal. Jan. 6, 2022); Hwan Kim v. Alike Shalabi, No. CV 21-9466 MWF (GJSx), 2022

(C.D. Cal. Jan. 6, 2022); Dorsey v. Vurgec Route 66, LLC, No. CV 21- 20 8352-DMG (PDx),

(C.D. Cal. Jan. 6, 2022); Dorsey v. F H Assocs., 21 LLC, No. CV 21-8320-DMG (Ex),

(C.D. Cal. Jan. 6, 2022); Kee 22 Sook Ahn v. Kai Hung Wons, No. CV 21-9439 MWF (MAAx),

(C.D. 23 Cal. Jan. 6, 2022); Zendejas v. SAB Inv. Prop. LLC, No. CV 21-9493 MWF (JCX),

194074 (C.D. Cal. Jan. 6, 2022); Cuevas v. W. L.A. Music, Inc., No. CV 21-9698 MWF (AGRx), 25

(C.D. Cal. Jan. 6, 2022); Valencia v. Balboa Square Partners LLC, 26 No. 2:21-cv-09758-SB-KS,

(C.D. Cal. Jan. 5, 2022); Back v. Singh, 27 No. 2:21-cv-09671-SB-MRW,

(C.D. Cal. Jan. 4, 2022); Ho v. The 1 2022); Jones v. Agape Mission Church, No. 2:21-cv-09081-SB-E,

2 (C.D. Cal. Jan. 4, 2022); Jones v. Main & 83rd LLC, No. 2:21-cv-06415-SB-MAR,

Dist. LEXIS 2366 (C.D. Cal. Jan. 4, 2022); Kee Sook Ahn v. Lopez, No. 2:21-cv-09703-SB-GJSx, 4

(C.D. Cal. Jan. 4, 2022); Walker v. Thrifty Oil Co., No. 2:21-cv- 5 09118-SB-SK,

(C.D. Cal. Jan. 4, 2022); Zendejas v. Crisp, No. 2:21- 6 cv-09542-SB-AS,

(C.D. Cal. Jan. 4, 2022); Zendejas v. Parthenia 7 Ctr., LLC, No. 2:21-cv-09188-SB-KS,

(C.D. Cal. Jan. 4, 2022); Kim 8 v. 7255 LLC, No. 2:21-cv-09399-MCS-MAA,

(C.D. Cal. Dec. 28, 9 2021); Zendejas v. Jenshar Ltd. P’ship, No. CV 21-09503-RSWL-PVC,

(C.D. 10 Cal. Dec. 22, 2021); Dunn v. Burnbaum, No. 2:21-cv-07464-MCS-MAA,

252016 (C.D. Cal. Dec. 13, 2021).4 12 Responding to this Court’s order to show cause, Garcia argues that supplemental 13 jurisdiction is appropriate despite Arroyo. Opp’n (dkt. 34) at 6–12. Portions of his response 14 amount to an argument that the Ninth Circuit simply got it wrong, and that California’s procedural 15 requirements are not particularly important or effective.

at 7–10. While Arroyo’s finding of 16 exceptional circumstances is perhaps dicta in light of its conclusion that the posture of that case 17 warranted retaining jurisdiction, this Court is not inclined to disregard a published, carefully 18 reasoned opinion of the Ninth Circuit, particularly given its unambiguous conclusion that the 19 “circumstances are ‘exceptional’ in any meaningful sense of the term” and failing to recognize 20 them as such in light of the threat posed to “federal-state comity” would be “improper[].” Arroyo, 21

. And while this Court has previously reached a different conclusion, it did so 22 where parties failed to present authority indicating that the California legislature intended to 23 reduce the burden of disability access litigation on defendants, rather than perhaps merely “to 24

25 4 Other decisions have cited Arroyo to bolster the conclusion that supplemental jurisdiction over an Unruh Act claim is not appropriate after the only federal claim has been dismissed, which is a 26 clearer question than where, as here, the ADA claim remains in the case. E.g., Strojnik v. Moraya Invs., LLC, No. 20-cv-01291-DMR,

, at *6 (N.D. Cal. Jan. 20, 2022). In several 27 other cases, courts have issued orders to show cause that have not yet been resolved. E.g., Dorsey 1 alleviate congestion of the California courts”—a purpose that would be unimpaired, and perhaps 2 furthered, by allowing plaintiffs to pursue their claims in federal court instead. E.g., Castillo- 3 Antonio,

, at *9 n.7. The Ninth Circuit’s recognition of a legislative intent to 4 discourage cases motivated by cash settlements rather than removal of access barriers lays that 5 question to rest. Arroyo, 19 F.4th at 1206–07. 6 Garcia notes that the California legislature recognized that most Unruh Act access cases 7 identify actual violations of the law and that some of the information called for in the heightened 8 pleading requirements might not be otherwise admissible, Opp’n at 8–10 (citing legislative 9 committee reports), but the fact remains that the legislature passed the law establishing those 10 requirements. It is that official act of the legislature as a whole, rather than any doubts 11 acknowledged in reports of its various committees, that is entitled to deference under principles of 12 comity. 13 Taking into account the Ninth Circuit’s analysis in Arroyo, this Court “ha[s] little difficulty 14 concluding . . . that the situation presented here involves ‘exceptional circumstances’ within the 15 meaning of § 1367(c)(4).” See Arroyo,

. 16 Garcia also argues that, like in Arroyo, the Gibbs factors warrant exercising supplemental 17 jurisdiction despite those exceptional circumstances. He contends that he has already provided in 18 his deposition the same information that would be required under California’s pleading standard, 19 such that requiring him to refile in state court “would be the same sort of ‘pointless make-work’ 20 that the panel in Arroyo saw as sufficient to overturn the district court’s declination of 21 jurisdiction.” Opp’n at 11 (quoting Arroyo,

). But the only portion of Garcia’s 22 deposition that appears in the record, filed by Defendants with their motion, does not address “the 23 reason [he] was in the geographic area of the defendant[s’] business” during his May 2021 visit to 24 Oakland5 or “the number of complaints alleging a construction-related accessibility claim that [he] 25

26 5 In response to defense counsel’s question about a later trip to Oakland in October of 2021, Garcia stated generally that he likes the area, collects records, and goes to lowrider shows, Garcia 27 Dep. at 6:19–7:5, but the deposition does not include an explanation of his May 2021 visit 1 filed during the 12 months prior to filing the complaint,” to name two of California’s 2 requirements.

(a)(4)(A)(ii)–(iii); see generally Garcia Dep. (dkt. 3 32-3). To the contrary, when asked about the number of complaints he filed in other specific 4 periods of time, Garcia indicated that he could not recall. Most importantly, though, the merits of 5 Garcia’s ADA claim have not yet been fully adjudicated. Requiring him to pursue his Unruh Act 6 claim in state court therefore would not be “pointless” in the same way as in Arroyo, where 7 liability under the ADA and thus also under the Unruh Act had already been established, because 8 it would give the state court an opportunity to collect the information the legislature has required 9 and draw whatever conclusions from that information the court might find appropriate with 10 respect to the merits of Garcia’s claim. 11 Garcia also argues that fairness weighs against declining jurisdiction, because this Court’s 12 General Order 56, which governs ADA access cases, promotes the same goals as California’s 13 procedural requirements—in Garcia’s view, more effectively. Opp’n at 11–12. In the Court’s 14 view, however, comity does not permit this Court to substitute its judgment for that of the 15 California legislature in determining how best to achieve the legislature’s goals. 16 Under the circumstances of this case, which has not progressed beyond threshold questions 17 of standing and jurisdiction, the strong comity concerns identified by the Ninth Circuit in Arroyo 18 outweigh any countervailing considerations of economy and efficiency that might be adversely 19 affected by requiring Garcia to refile his Unruh Act claim in state court. Fairness also counsels in 20 favor of declining jurisdiction, because allowing Garcia to pursue his Unruh Act claim here would 21 countenance “a wholesale evasion of . . . critical limitations on damages relief” that the California 22 legislature has seen fit to impose for claims under that statute. Arroyo,

. 23 Accordingly, taking into account “the Gibbs values of economy, convenience, fairness, and 24 comity,” the Court declines to exercise supplemental jurisdiction over Garcia’s Unruh Act claim. 25 See Acri,

(cleaned up). 26 IV. CONCLUSION 27 For the reasons discussed above, Garcia’s claim under the Unruh Act is DISMISSED sua ] to dismiss is continued, and Garcia shall file an update regarding his ADA claim as discussed 2 || above. 3 IT ISSO ORDERED. 4 || Dated: February 9, 2022 5 CZ J PH C. SPERO 6 ief Magistrate Judge 7 8 9 10 1]

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