1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THERESA BROOKE, Case No. 25-cv-0060-BAS-BLM

12 Plaintiff, ORDER DECLINING 13 v. SUPPLEMENTAL JURISDICTION 14 HOSPITALITY INVESTORS TRUST INC., 15 Defendant. 16

17 18 I. BACKGROUND 19 Plaintiff Theresa Brooke (“Brooke” or “Plaintiff”) filed this action against American 20 Realty Capital Properties LLC (“American Realty”), alleging violations of the Americans 21 with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”). 22 (ECF No. 1.) Soon after, American Realty filed an Answer, stating that it did not own the 23 hotel that was the subject of Plaintiff’s Complaint. (ECF No. 5.) That same day, Plaintiff 24 amended her Complaint as a matter of right, filing her First Amended Complaint (“FAC”) 25 and naming Hospitality Investors Trust Incorporated as the new defendant. (FAC, ECF No. 26 6.) The clerk issued an amended summons on the next day. (ECF No. 7.) 27 Plaintiff, who uses a wheelchair, alleges that Defendant’s hotel “does not have a 28 compliant access aisle at the passenger loading zone adjacent to the hotel lobby,” which 1 deterred her from entering the hotel when she visited it in late October 2024. (FAC ¶¶ 1, 7, 2 10, 12.) She alleges that Defendant’s lack of an access aisle constitutes a violation of the 3 ADA ,

et seq., and the Unruh Act, Cal. Civ. Code §§ 51–52. (FAC 4 ¶¶ 16–28.) Plaintiff seeks declaratory and injunctive relief under the ADA and statutory 5 damages under the Unruh Act. (Id. ¶¶ 21, 27.) The FAC asserts that this Court has 6 jurisdiction “pursuant to

and

.” (Id. ¶ 3.)1 7 After Plaintiff filed her initial Complaint, however, this Court issued an Order to 8 Show Cause as to why the Court should exercise supplemental jurisdiction over Plaintiff’s 9 Unruh Act claim. (ECF No. 3.) Prior to filing an FAC, Plaintiff timely responded to this 10 Order. (ECF No. 4.) Because the Complaint and FAC are identical, excepting the named 11 defendant, Plaintiff’s response to the Court’s Order to Show Cause is still relevant, and the 12 Court shall consider it in determining whether to exercise supplemental jurisdiction over 13 the Unruh Act claim. 14 Before the Court is Plaintiff’s response to this Court’s Order to Show Cause as to 15 why it should not decline to exercise supplemental jurisdiction over Plaintiff’s Unruh Act 16 claim, given the binding Ninth Circuit cases of Arroyo v. Rosas,

(9th Cir. 17 2021), and Vo v. Choi,

(9th Cir. 2022). (ECF Nos. 3, 4.) For the following 18 reasons, this Court declines to exercise supplemental jurisdiction over Plaintiff’s Unruh 19 Act claim. 20 21 22 23

24 1 The Court notes that the FAC’s assertion of jurisdiction is incomplete. Section 1331 grants federal 25 courts jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United States,” known as “federal question jurisdiction.”

, meanwhile, provides for civil 26 enforcement of the ADA. Indeed, the Court has original jurisdiction in the form of federal question jurisdiction over Brooke’s ADA claim. However, the FAC does not state the basis for the Court’s 27 jurisdiction over Brooke’s Unruh Act claim. Because the claim does not arise under federal law, and because the parties are not completely diverse, the Court could only have power to hear this claim by 28 1 II. LEGAL STANDARD 2 A district court may exercise supplemental jurisdiction over “all other claims that 3 are so related to the claims in the action within such original jurisdiction that form part of 4 the same case or controversy under Article III of the U.S. Constitution.”

1367(a). That a court may exercise supplemental jurisdiction, however, “does not mean 6 that the jurisdiction must be exercised in all cases.” City of Chicago v. Int’l Coll. of 7 Surgeons,

(1997). Supplemental jurisdiction is ultimately “a doctrine of 8 discretion, not of plaintiff’s right.” United Mine Workers of Am. v. Gibbs,

, 9 726 (1966). “Needless decisions of state law should be avoided both as a matter of comity 10 and to promote justice between the parties.”

Under the supplemental jurisdiction statute, 11 a district court may decline to exercise supplemental jurisdiction if: 12 (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district 13 court has original jurisdiction, (3) the district court has dismissed all claims 14 over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 15

16

§ 1367(c). 17 Where a district court invokes section 1367(c)(4)’s “exceptional circumstances” 18 provision, it must satisfy a two-part inquiry: (1) the “district court must articulate why the 19 circumstances of the case are exceptional within the meaning of § 1367(c)(4),” Arroyo, 19 20 F.4th at 1210 (citation omitted), and (2) “in determining whether there are compelling 21 reasons for declining jurisdiction . . . the court should consider what ‘best serves the 22 principles of economy, convenience, fairness, and comity which underlie the pendent 23 jurisdiction doctrine,’” id. (quoting Int’l Coll. of Surgeons, 522 U.S. at 172–73). To satisfy 24 this “case-specific” inquiry under Section 1367(c)(4), the court “needs to only identify the 25 exceptional circumstances [and compelling reasons] and confirm that they apply to the 26 particular case before it.” Vo, 49 F.4th at 1173. 27 28 1 III. ANALYSIS 2 A. The ADA and the Unruh Act 3 The ADA prohibits discrimination “on the basis of disability in the full and equal 4 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 5 any place of public accommodation by any person who owns, leases (or leases to), or 6 operates a place of public accommodation.”

(a). Under the ADA, 7 injunctive relief is the only remedy available to a private litigant.

§ 12188(a). 8 In passing the Unruh Act, however, California “chose a different route” and created 9 “a state law cause of action that relies dispositively on the ADA’s substantive rules but that 10 expands the remedies available in a private action.” Arroyo,

. Under the 11 Unruh Act, all persons in California, “no matter what their . . . disability . . . are entitled to 12 the full and equal accommodations, advantages, facilities, privileges, or services in all 13 business establishments of every kind whatsoever.”

(b). A violation of 14 the ADA constitutes a violation of Section 51 of the Unruh Act.

§ 51(f). Yet, unlike the 15 ADA, the Unruh Act not only provides for injunctive relief, but also allows for recovery 16 of monetary damages for every offense “up to a maximum of three times the amount of 17 actual damage but in no case less than four thousand dollars ($4,000).” Id. § 52(a). 18 In 2012 and 2015, California changed the procedural requirements for filing 19 construction-related accessibility claims under the Unruh Act to address the issue of some 20 attorneys “abusing the Unruh Act by demanding ‘quick money settlement[s]’ from 21 California business owners ‘without seeking and obtaining actual repair or correction of 22 the alleged violations on the site.’” Arroyo,

(citing Act of Sept. 19, 2012, 23 ch. 383, § 24,

, 3871). These changes included regulating the language 24 permissible in demand letters for construction-related accessibility claims, Cal. Civ. Code 25 § 55.31, and mandating that a notice for such claims be served along with the summons 26 and complaint, id. § 55.54. Critically, California provided additional procedural safeguards 27 where claims were brought by litigants deemed to be “high-frequency litigants” of 28 construction-related accessibility claims. See

. The 1 legislature included these safeguards “so as to ensure that the claims are warranted.”

2 § 425.55(b). Under the changes, high-frequency litigants are required to pay an additional 3 $1,000 filing fee “if the complaint alleges a construction-related accessibility claim.” Cal. 4 Gov’t. Code § 70616.5. 5 In this Court’s Order to Show Cause, the Court ordered Plaintiff to identify whether 6 California state courts would consider her a “high-frequency litigant” under the California 7 legislature’s procedural safeguards. (ECF No. 3.) Incredibly, Plaintiff responds that it is 8 “debatable” whether she would be labeled a high-frequency litigant in California courts 9 because she was not the one to file the more than ten construction-related accessibility 10 complaints, but rather her attorney was the one who filed these complaints on her behalf. 11 (ECF No. 4 at 1–2.) She supports this argument with no caselaw and this Court is 12 unpersuaded by the argument—yes, attorneys file complaints on their clients’ behalf, but 13 those plaintiffs are indisputably the ones initiating the lawsuits and not the attorneys or 14 even paralegals filing those lawsuits. 15 Brooke’s argument also flies in the face of the actual text of the rules. The California 16 legislature clearly sought to limit the litigants themselves, not just their attorneys, when it 17 created the new pleading and filing requirements. In promulgating these requirements, the 18 California legislature found and declared that “[f]orty-six percent of all complaints were 19 filed by a total of 14 parties. Therefore, a very small number of plaintiffs have filed a 20 disproportionately large number of the construction-related accessibility claims in the 21 state.”

(a)(2) (emphasis added). It makes little sense for the 22 legislature to highlight what it perceives as an issue (a disproportionate number of lawsuits 23 filed by relatively few parties or plaintiffs) and then not have the promulgated rules address 24 the highlighted issue. Therefore, the Court determines that Plaintiff must be a high- 25 frequency litigant under California law. 26 B. Supplemental Jurisdiction 27 The Court is similarly unpersuaded by Plaintiffs’ arguments that the Gibbs factors 28 favor the Court retaining jurisdiction over Plaintiff’s state-law claim. This case presents 1 “exceptional circumstances” and “there are compelling reasons,” primarily based on 2 comity and fairness, for declining jurisdiction over Plaintiff’s Unruh Act claim, which 3 outweigh the other factors.

(c)(4). The Court reaches this conclusion after 4 conducting the “two-part inquiry” laid out in Arroyo.

. 5 1. Exceptional Circumstances 6 First, the Court considers whether exceptional circumstances exist in this case. 7 “Exceptional circumstances” under section 1367(c)(4) include “at the very least . . . highly 8 unusual situations that threaten to have a substantial adverse impact on the core Gibbs 9 values of ‘economy, convenience, fairness, and comity.’” Arroyo,

10 (quoting Int’l Coll. of Surgeons, 522 U.S. at 172–73). 11 The Ninth Circuit agreed with the district court’s finding in Arroyo that the 12 circumstances were exceptional where “the distinctive configuration of California-law 13 rules . . . would be rendered ineffectual if the district court were to exercise supplemental 14 jurisdiction.” Arroyo,

. Here, as in Arroyo, those same California rules are 15 rendered ineffectual where a plaintiff such as Brooke is permitted to raise these claims in 16 federal court and thus skirt California’s rules. Indeed, it appears that Brooke has taken full 17 advantage of this workaround. Since 2015, for example, Plaintiff has filed over 200 cases 18 in this district alone, filing roughly 80 of them within the last year.2 Therefore, the 19 exceptional circumstances here are the same as they were in Arroyo—high-frequency 20 litigants like Brooke are still avoiding California’s requirements by bringing their 21 construction-related accessibility claims into federal court. By doing so, she has “thwarted 22 the California Legislature’s goal of providing damages relief for ADA violations while 23 limiting the financial burdens that California’s businesses may face from damages actions.” 24 Frazier v. Ramirez, No. 2:24-cv-06294-MRA-MAA,

, at *4 (C.D. Cal. 25 Aug. 27, 2024). 26 27 2 This number is derived from a search of PACER conducted on February 21, 2025, for Theresa 28 1 Therefore, this Court “cannot stray from Arroyo’s conclusion that the first prong of 2 the § 1367(c)(4) inquiry is met.” Vo, 49 F.4th at 1171. Accordingly, this Court finds that 3 exceptional circumstances justify the Court’s discretion to decline to exercise supplemental 4 jurisdiction over Plaintiff’s Unruh Act claim in this action under

(c)(4). 5 2. Compelling Reasons 6 The Court next considers the second prong of the Section 1367(c)(4) inquiry, 7 whether there are “compelling reasons for declining jurisdiction” in this case 8 “consider[ing] what best serves the principles of economy, convenience, fairness, and 9 comity which underlie the pendent jurisdiction doctrine articulated in Gibbs.” Arroyo, 19 10 F.4th at 1210 (citation omitted). 11 Here, fairness and comity overwhelmingly weigh in favor of declining supplemental 12 jurisdiction over Plaintiff’s Unruh Act claim. In Vo, the Ninth Circuit affirmed a district 13 court opinion on similar facts, holding that: 14 it would not be “fair” to the defendants if plaintiffs could bypass the “limitations California state law has imposed” on Unruh Act claims by simply 15 bringing them in federal court. Moreover, the [district] court noted that 16 allowing federal courts to be an “escape hatch” for plaintiffs seeking to avoid the heightened requirements would be an “affront to the comity between 17 federal and state courts.” 18 19 Vo, 49 F.4th at 1168–69 (favorably citing the lower court’s decision declining to exercise 20 supplemental jurisdiction). In short, the Ninth Circuit has already held that in 21 circumstances such as these the values of fairness and comity weigh heavily in favor of 22 declining supplemental jurisdiction. Brooke’s response to this Court’s Order to Show 23 Cause wholly fails to distinguish the circumstances of this case from those of Vo. (See 24 generally ECF No. 4.) 25 As in Vo, this Court has the opportunity to decline supplemental jurisdiction over 26 the Unruh Act claim “well before [] rul[ing] on the merits of the ADA claim,” and therefore 27 the values of economy and convenience also weigh in favor of declining jurisdiction. Vo, 28 49 F.4th at 1172. In Vo, the Ninth Circuit clarified that “[t]he fatal flaw we identified in the 1 Arroyo district court’s order was that it waited until a ‘very late stage’ of the litigation to 2 decline supplemental jurisdiction.” Id. at 1171–72. In Arroyo, even though “many of the 3 Gibbs values could have been furthered by refusing supplemental jurisdiction over the 4 Unruh Act claim in that case, . . . doing so at that late point in the litigation would not 5 actually effectuate any of those values” because it would “merely create duplicative work 6 for the state court.” Id. at 1172 (citation omitted). In Arroyo, the district court declined to 7 exercise supplemental jurisdiction over the state-law claim after the case went through 8 summary judgment. Here, as in Vo, those concerns are not present because this case is still 9 in its very early stages—the defendant has yet to appear, and therefore declining 10 supplemental jurisdiction now “completely sidesteps the core concern articulated in 11 Arroyo.” Id. 12 Accordingly, at this early stage of litigation, the Gibbs values are best served by 13 declining supplemental jurisdiction over Plaintiff’s Unruh Act claim. Both exceptional 14 circumstances and compelling reasons exist for the Court to exercise its discretion to 15 decline supplemental jurisdiction over Plaintiff’s Unruh Act claim. 16 C. Preemption 17 Plaintiff asserts in her Response that “28 C.F.R. 36.103(c) expressly and very clearly 18 preempts Unruh’s lesser and unequal rights and procedures.” (ECF No. 4 at 3.) This 19 provision of the Code of Federal Regulations reads in its entirety: 20 (c) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State 21 common law) that provide greater or equal protection for the rights of 22 individuals with disabilities or individuals associated with them.

23

(c). The plain text of the regulation states that the law “does not 24 invalidate or limit” state laws that “provide greater or equal protection” to individuals with 25 disabilities.

(emphasis added). But the Unruh Act does not provide “greater or equal 26 protection.” It provides additional procedural requirements for certain individuals with 27 disabilities who are filing specific types of cases. This provision says nothing about the 28 1 || limitations on high-frequency litigants like the requirements California has in place. Per 2 || this provision, California’s additional Unruh Act claim procedures are not preempted. 3 4 ||IV. CONCLUSION 5 For the foregoing reasons, the Court declines to exercise supplemental jurisdiction 6 Plaintiff's Unruh Act claim. The claim is hereby DISMISSED WITHOUT 7 || PREJUDICE for Plaintiff to assert it in state court. The Court retains jurisdiction over 8 || Plaintiff's ADA claim. 9 IT IS SO ORDERED. 10 11 || DATED: February 24, 2025 pallu Bahan □□ 2 H n. Cynthia Bashant, Chief Judge United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Qo.