Alejandro Diaz v. Jesus Gutierrez Jr et al
Filing
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ORDER DENYING DEFENDANTS MOTIONS TO DISMISS 8 , 10 by Judge Otis D. Wright, II . (lc). Modified on 1/14/2014 .(lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ALEJANDRO DIAZ ,
v.
Case No. 2:13-cv-08023-ODW(RZx)
Plaintiff,
ORDER DENYING DEFENDANTS’
MOTIONS TO DISMISS [8, 10]
JESUS GUTIERREZ, JESSICA
ANDJELKOVIC, JUAN IGNACIO
GARCIA, and DOES 1-10,
Defendants.
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I.
INTRODUCTION
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Plaintiff Alejandro Diaz filed the Complaint on October 30, 2013, alleging
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violations of the Americans with Disabilities Act and associated state law claims.
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(ECF No.1.) Plaintiff alleges that he is disabled, requiring a wheelchair for mobility,
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and that on August 13, 2013, he was unable to access a 99 Cent Store in Los Angeles,
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California, because it had no wheelchair ramp. (Compl. ¶¶ 1, 12–16.) Defendants
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Jesus Gutierrez and Jessica Andjelkovic are allegedly the owners of the property
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where the store is located. (Id. ¶¶ 4–5.) Defendant Juan Ignacio Garcia is allegedly
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the owner of the store. (Id. ¶ 3.) Before the Court are two nearly identical Motions to
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Dismiss—the first was filed by Garcia on November 26, 2013 and the second was
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filed by Gutierrez and Andjelkovic on December 6, 2013. (ECF Nos. 8, 10.) All of
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the Defendants are proceeding pro se. Having carefully considered the papers filed in
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support of and in opposition to the instant Motion, the Court deems the matter
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appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. For the
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reasons set forth below, the Court hereby DENIES both Motions to Dismiss.
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II.
DISCUSSION
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Defendants raise a handful of arguments in their Motions. First, Defendants
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contend that Plaintiff has failed to state a claim under Federal Rule of Civil Procedure
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12(b)(6). Defendants support this argument by stating that the factual allegations in
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the Complaint are untrue—specifically that Plaintiff never visited the 99 Cent Store.
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(See Garcia Decl. 2:8–17; Gutierrez Decl. 4:14–20.)
Defendants also appear to
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question this Court’s subject-matter jurisdiction under Rule 12(b)(1).
Finally,
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Defendants point out that Plaintiff has filed several similar cases, which they argue are
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all fraudulent. (Garcia Decl. 2:21–3:5; Gutierrez Decl. 3:22–4:7.)
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Since subject-matter jurisdiction is required in order for this Court to proceed,
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the Court addresses this argument first. The Complaint asserts four claims, including
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a violation of the ADA. The ADA is a federal law, which meets the requirements of
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federal-question jurisdiction under 28 U.S.C. § 1331. The Court has supplemental
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jurisdiction over “all other claims that are so related to claims in the action within
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such original jurisdiction that they form part of the same case or controversy . . . .” 28
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U.S.C. § 1367. The three other claims in this action are all related to the alleged ADA
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violations. The claims for violations of California’s Unruh Civil Rights Act and
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Disabled Persons Act are premised on a violation of the ADA. Plaintiff’s negligence
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claim is based on the same underlying facts that are allegedly a violation of the ADA,
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that Defendants failed to put a handicap access ramp at the entrance of the 99 Cent
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Store. Accordingly, the Court has subject-matter jurisdiction over this action.
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Defendants’ arguments that Plaintiff has failed to state a claim under Rule
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12(b)(6) are also unavailing. A court may dismiss a complaint under Rule 12(b)(6)
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for lack of a cognizable legal theory or insufficient facts pleaded to support an
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otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
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699 (9th Cir. 1990). But to survive a dismissal motion, a complaint need only satisfy
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the minimal notice pleading requirements of Rule 8(a)(2)—a short and plain statement
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of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Moreover, a court is
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generally limited to the pleadings and must construe all “factual allegations set forth
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in the complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v.
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City of L.A., 250 F.3d 668, 688 (9th Cir. 2001).
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Here, Defendants base their arguments for dismissal under Rule 12(b)(6) on
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facts not contained in the Complaint or any other pleading. But the Court does not
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have the power to consider facts beyond the pleadings. Instead, the Court must accept
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factual allegations in the Complaint as true. Id. In addition, the Court finds that
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Plaintiff has met the notice pleading standard under Rule 8(a)(2). The Complaint
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contains allegations of when and where the alleged ADA violations occurred and what
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is allegedly in violation. (See e.g., Compl. ¶¶ 1, 12–16.) This is sufficient to survive
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the present Motions to Dismiss.
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As to Defendants’ final grounds for dismissal, the Court is aware that Plaintiff
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is a frequent visitor to the Central District of California.1 Nevertheless, Defendants’
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contention that this case is fraudulent because Plaintiff has filed several similar
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lawsuits is unsupported at this time. Plaintiff and his counsel are subject to the
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requirements of Federal Rule of Civil Procedure 11, which means that the Complaint
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in this case was necessarily filed in good faith and without an improper purpose. The
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fact that Plaintiff has filed other lawsuits does not alone demonstrate a fraud on this
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Court.
III.
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For the reasons discussed above, Defendants’ Motions to Dismiss are
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CONCLUSION
DENIED. (ECF Nos. 8, 10.)
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As of this date, Plaintiff has the following cases pending in the Central District of California: 2:13cv-7575-RSWL (AJWx); 2:13-cv-7636-RGK (JCx); 2:13-cv-8021-GW (MRWx); 2:13-cv-8022FMO (MRWx); 2:13-cv-8023-ODW (RZx); 2:13-cv-8057-FMO (CWx); and 8:13-cv-1614-CJC
(JPRx).
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Finally, Defendants are advised that a Federal Pro Se Clinic is located in the
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United States Courthouse at 312 N. Spring Street, Room 525, Fifth Floor, Los
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Angeles, California 90012.
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Wednesdays, and Fridays from 9:30 a.m. to 12:00 p.m. and 2:00 p.m. to 4:00 p.m.
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The Federal Pro Se Clinic offers free, on-site information and guidance to individuals
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who are representing themselves in federal civil actions.
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Defendants may visit http://www.cacd.uscourts.gov/ and follow the link for “Pro Se
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Clinic – Los Angeles” or contact Public Counsel at 213-385-2977, extension 270.
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Defendants are encouraged to visit the clinic, or seek the advice of an attorney, as this
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The clinic is open for appointments on Mondays,
For more information,
case proceeds.
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IT IS SO ORDERED.
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January 14, 2014
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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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