Martin Vogel v. Winchell's Donut Houses Operating Company, LP

Filing 41

ORDER re: Defendant's Motion for Summary Judgment, or, in the Alternative, Summary Adjudication 32 by Judge Ronald S.W. Lew: the Court GRANTSDefendants Motion for Summary Judgment as to the entire Complaint 32 . SEE ORDER FOR DETAILS. (jre)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 MARTIN VOGEL,
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Plaintiff,

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v.
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16 WINCHELL’S DONUT HOUSES
OPERATING COMPANY, LP,
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Defendant.

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CV 16-00887-RSWL-AJWx
ORDER re: Defendant’s
Motion for Summary
Judgment, or, in the
Alternative, Summary
Adjudication [32]

Currently before the Court is Defendant Winchell’s

22 Donut Houses Operating Company, LP (“Defendant”) Motion
23 for Summary Judgment, or, in the Alternative, Summary
24 Adjudication (“Motion”) [32] as to all claims in the
25 Complaint.

Having reviewed all papers submitted

26 pertaining to this Motion, the Court NOW FINDS AND
27 RULES AS FOLLOWS: the Court GRANTS Defendant’s Motion.
28 ///
1

1

I. BACKGROUND

2 A.

Factual Background

3

Plaintiff Martin Vogel (“Plaintiff”) is a

4 “physically disabled” T-3 paraplegic who requires the
5 use of a wheelchair when traveling in public.
6 8, ECF No. 1.

Compl. ¶

Defendant owns, operates, and/or leases

7 a Pizza Hut Restaurant in Norwalk, California (the
8 “Restaurant”).
9

Id. at ¶ 2.

Plaintiff visited the Restaurant on January 3,

10 2016.

Decl. of Martin Vogel (“Vogel Decl.”) ¶ 2, ECF

11 No 33-1.

Plaintiff alleges that both the Restaurant’s

12 disabled parking space and the access aisle are too
13 steep, mainly due to an encroaching built-up ramp.
14 Compl. ¶ 10.

Because the parking space and access

15 aisle are not level, Plaintiff cannot easily transfer
16 from a vehicle because his wheelchair rolls, or a lift
17 platform for his wheelchair cannot sit level.

Id.

18 These barriers prevented Plaintiff from full and equal
19 access to the Restaurant, violating the Americans with
20 Disabilities Act (“ADA”) and related state-law
21 disability claims.
22

Id.

After Plaintiff filed this lawsuit, Defendant

23 repaved the disabled parking space and access aisle so
24 that both comply with current accessibility standards.
25 Decl. of Tim Stockton (“Stockton Decl.”) ¶ 1, ECF No.
26 32-3.

Currently, the parking space and access aisle

27 slopes are no steeper than 1:48, in conformity with the
28 ADA and California Building Code (“CBC”) standards.
2

1 Id. at ¶ 2, Exs. A, B, ECF. Nos. 32:4-5.
2 B.

Procedural Background

3

On February 9, 2016, Plaintiff filed this

4 Complaint, alleging Defendant violated the following:
5 (1) the Americans with Disabilities Act (“ADA”), 42
6 U.S.C. § 12101, et seq., by denying him “full and equal
7 enjoyment” of the Restaurant premises; (2) the
8 California Disabled Persons Act (“CDPA”), California
9 Civil Code § 54; (3) the Unruh Civil Rights Act (“Unruh
10 Act”), California Civil Code § 51, and (4) denial of
11 full and equal access to public facilities, California
12 Health & Safety Code § 19955 et seq.

Compl. ¶¶ 17, 36-

13 38, 43-45, 48-51.
14

Plaintiff seeks declaratory judgment that Defendant

15 violated the ADA.

Id. at ¶ 31.

For each CDPA offense,

16 Plaintiff seeks actual damages, statutory minimum
17 damages of $1,000, declaratory relief, and any other
18 relevant remedies.

Id. at ¶ 37; Cal. Civ. Code § 54.3.

19 For each Unruh Act violation, Plaintiff seeks statutory
20 minimum damages of $4,000.
21 § 52.

Compl. ¶ 45; Cal. Civ. Code

Plaintiff also seeks injunctive relief and

22 attorneys’ fees for any violation of California Health
23 & Safety Code § 19955.

Compl. ¶ 51; Cal. Health &

24 Safety Code § 19953.
25

On March 20, 2017, Defendant filed its Motion [32].

26 On March 28, 2017, Plaintiff filed his Opposition [33].
27 On April 4, 2017, Defendant filed its Reply and
28 Evidentiary Objections [35-1] to the Vogel Declaration
3

1 [33-1].
2

II. FINDINGS OF FACT

3 1.

Plaintiff’s Complaint identifies two alleged

4

barriers: (1) a disabled parking space has

5

excessive slopes due at least in part to an

6

encroaching built-up curb ramp; (2) the access

7

aisle has excessive slopes due mainly to an

8

encroaching built-up curb ramp.

9

Uncontroverted Facts (“Def.’s SUF”) ¶ 1, ECF No.

Def.’s Stmt. of

10

32-2; Pl.’s Stmt. of Genuine Disputes (“Pl.’s

11

Facts”) ¶¶ 1-2, ECF No. 33-4; Compl. ¶ 10.

12

III. DISCUSSION

13 A.

Legal Standard

14

Federal Rule of Civil Procedure 56 states that a

15 “court shall grant summary judgment” when the movant
16 “shows that there is no genuine dispute as to any
17 material fact and the movant is entitled to judgment as
18 a matter of law.”

Fed. R. Civ. P. 56(a).

A fact is

19 “material” for purposes of summary judgment if it might
20 affect the outcome of the suit, and a “genuine issue”
21 exists if the evidence is such that a reasonable fact
22 finder could return a verdict for the non-moving party.
23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
24 (1986).

The evidence, and any inferences based on

25 underlying facts, must be viewed in the light most
26 favorable to the opposing party.

Twentieth Century-Fox

27 Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 (9th Cir.
28 1983).

In ruling on a motion for summary judgment, the
4

1 court’s function is not to weigh the evidence, but only
2 to determine if a genuine issue of material fact
3 exists.
4

Anderson, 477 U.S. at 255.

Under Rule 56, the party moving for summary

5 judgment has the initial burden to show “no genuine
6 dispute as to any material fact.”

Fed. R. Civ. P.

7 56(a); see Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
8 210 F.3d 1099, 1102-03 (9th Cir. 2000).

The burden

9 then shifts to the non-moving party to produce
10 admissible evidence showing a triable issue of fact.
11 Nissan Fire & Marine Ins., 210 F.3d at 1102-03; see
12 Fed. R. Civ. P. 56(a).

Summary judgment “is

13 appropriate when the plaintiff fails to make a showing
14 sufficient to establish the existence of an element
15 essential to [their] case, and on which [they] will
16 bear the burden of proof at trial.”

Cleveland v.

17 Policy Mgmt. Sys. Corp., 526 U.S. 795, 805–06 (1999);
18 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
19 The standard “provides that the mere existence of some
20 alleged factual dispute between the parties will not
21 defeat an otherwise properly supported motion for
22 summary judgment; the requirement is that there be no
23 genuine issues of material fact.”

Anderson, 477 U.S.

24 at 247-48.
25 B.

Discussion

26

1.

27

Defendant objects to the Vogel Declaration in its

Defendant’s Evidentiary Objections

28 entirety, to Paragraphs 3 and 4, and to Exhibit A
5

1 depicting the alleged access barriers at the
2 Restaurant.
3 35-1.

See generally Def.’s Evid. Objs., ECF No.

Defendant objects on the following grounds: (1)

4 the Vogel Declaration is a sham declaration that
5 contradicts his deposition testimony; (2) Vogel did not
6 sign his declaration; (3) Vogel did not respond to
7 Defendant’s Statement of Undisputed Facts, thus deeming
8 them admitted; (4) the declaration lacks foundation and
9 proffers mere legal conclusions.
10

Id. at ¶¶ 1-4.

The “sham affidavit rule” states that a party

11 cannot create an issue of fact by proffering an
12 affidavit contradicting his prior deposition testimony.
13 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th
14 Cir. 1991).

There are two caveats to a district

15 court’s discretion to invoke the sham affidavit rule:
16 (1) the rule does not apply when a contradictory
17 affidavit is introduced to explain portions of earlier
18 deposition testimony; and (2) the inconsistency between
19 a party's deposition testimony and subsequent affidavit
20 must be clear and unambiguous to justify striking the
21 affidavit.

Van Asdale v. Int'l Game Tech., 577 F.2d

22 989, 998-999 (9th Cir. 2009).

Here, the

23 inconsistencies between the declaration and excerpted
24 portions of Vogel’s deposition testimony are not clear;
25 indeed, Defendant makes no effort to unpack the alleged
26 inconsistencies.

Plaintiff’s deposition testimony—that

27 he competes in wheelchair races requiring him to jump
28 off a curb—would seemingly contradict the allegation in
6

1 his declaration that the access barriers’ slopes were
2 too steep for him to transfer from his vehicle.
3 Compare Vogel Dep., Ex. D. to Decl. of Michael J.
4 Chilleen (“Chilleen Decl.”), at 32:2-6, with Compl. ¶
5 10.

But upon a closer reading of the Complaint,

6 Plaintiff does not complain of the access barriers in
7 terms of his ability to maneuver over the curbs as he
8 would during a wheelchair race; rather, he complains
9 that he is unable to transfer or unload from his
10 vehicle.

Thus, the connection between the deposition

11 testimony and allegations in the declaration is too
12 tenuous to render the inconsistencies clear.
13

For declarations signed by individuals other than

14 CM/ECF Filers, Local Rule 5-4.3.4 requires a hand15 signed signature.

It appears that Plaintiff is not a

16 registered CM/ECF filer.

Defendant asks the Court to

17 strike the Vogel Declaration because Plaintiff has
18 failed to properly sign it.

But Defendant does not

19 sufficiently develop this objection to compel the Court
20 to strike the declaration in its entirety.

Similarly,

21 Defendant’s remaining objections regarding legal
22 conclusion and lacks foundation are “devoid of any
23 specific argument or analysis as to why any particular
24 exhibit or assertion in a declaration should be
25 excluded.”

United States v. HVI Cat Canyon, Inc., 213

26 F. Supp. 3d 1249, 1257 (C.D. Cal. 2016).

As to the

27 argument that Plaintiff did not respond to Defendant’s
28 Statement of Undisputed Facts, Plaintiff appropriately
7

1 filed a Statement of Genuine Disputes pursuant to Local
2 Rule 56-2.

Accordingly, the Court

3 OVERRULES Defendant’s objections in their entirety [354 1].
5

2.

ADA Claim

6

Plaintiff raises a claim for violation of Title III

7 of the ADA, which prohibits discrimination in any place
8 of public accommodation.

Grove v. De La Cruz, 407 F.

9 Supp. 2d 1126, 1130 (C.D. Cal. 2005); 42 U.S.C. §
10 12182.

In order to sustain a prima facie case for

11 discrimination under Title III of the ADA, the
12 plaintiff must show that (1) he or she is disabled
13 within the meaning of the ADA; (2) the defendant is a
14 private entity that owns, leases, or operates a place
15 of public accommodation; and (3) the defendant denied
16 public accommodations to the plaintiff because of his
17 or her disability.

See 42 U.S.C. § 12182(a); Molski v.

18 M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).
19 Monetary damages are not available in private suits
20 under Title III, Wander v. Kaus, 304 F.3d 856, 858 (9th
21 Cir. 2002), but the ADA gives courts the discretion to
22 award injunctive relief, attorneys’ fees, litigation
23 expenses, and costs to the prevailing parties.

See 42

24 U.S.C. § 12205; Molski, 481 F.3d at 730.
25

Plaintiff points to two barriers which prevented

26 him from enjoying the Restaurant accommodations: (1)
27 the disabled parking space’s slopes/cross-slopes are
28 too steep, due to an encroaching built-up curb ramp;
8

1 (2) the access aisle’s slopes/cross-slopes are too
2 steep, due to an encroaching built-up curb ramp.
3 Compl. ¶ 10.

Without a level parking space or access

4 aisle, it is difficult for Plaintiff to transfer from
5 his vehicle, as his wheelchair cannot roll or his lift
6 platform cannot sit level.

Id.

Before reaching the

7 merits of Plaintiff’s ADA claim, the Court discusses
8 Defendant’s arguments regarding standing and mootness.
9
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a.

Standing

In order to have constitutional standing, Plaintiff

11 must demonstrate that (1) he has suffered an injury-in
12 fact that is both concrete and particularized and
13 actual or imminent; (2) the injury is traceable to the
14 defendant's challenged action; and (3) it is likely
15 that a favorable decision will redress the injury.
16 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
17 (1992).

In ADA cases, courts have been instructed “to

18 take a broad view of constitutional standing . . .
19 especially where, as under the ADA, private enforcement
20 suits are the primary method of obtaining compliance
21 with the Act.”

Chapman v. Pier 1 Imports (U.S.) Inc.,

22 631 F.3d 939, 946 (9th Cir. 2011)(internal quotation
23 marks and citations omitted).

The Ninth Circuit has

24 explained that there are two ways an ADA plaintiff can
25 show a cognizable injury-in-fact: (1) by showing
26 injury-in-fact plus an intent to return to the facility
27 at issue; or (2) showing that he was deterred from
28 visiting the facility because he encountered barriers
9

1 relating to his disability there.
2

Id. at 949.

Defendant argues that Plaintiff has no concrete

3 plans to return to the Restaurant; thus, he has not
4 suffered an injury-in-fact and lacks standing under the
5 first “type” recognized by the Ninth Circuit.
6 Mot. for Summ. J. (“Mot.”) 5:16-18.

Def.’s

Plaintiff counters

7 that he has standing because he alleged that he was
8 deterred from returning to the Restaurant after
9 encountering the access barriers on his January 3, 2016
10 visit.

Pl.’s Opp’n to Mot. For Summ. J. (“Opp’n”)

11 6:26-28.
12

The record is sparse as to Plaintiff’s genuine

13 intent to return to the Restaurant.

To flesh out a

14 plaintiff’s intent to return, a court may look at the
15 proximity of the facility to the plaintiff’s residence,
16 plaintiff’s past patronage, plaintiff’s concrete plans,
17 and plaintiff’s frequency of travel near the facility.
18 Molski v. Mandarin Touch Restaurant, 385 F. Supp. 2d
19 1042, 1045 (C.D. Cal. 2005).

The Restaurant–part of a

20 national chain—is in Norwalk, and Plaintiff could
21 easily find a closer location to Pasadena, his stated
22 residence.
23 32-8.

Chilleen Decl. Ex. B, at 4:19-20, ECF No.

Nor does Plaintiff provide a reason for frequent

24 travel to Norwalk.

And Plaintiff’s past patronage of

25 the Restaurant is unclear—he does not indicate whether
26 the January 3, 2016 visit was an isolated incident or
27 ///
28 ///
10

1 part of frequent visits to the Restaurant.1

Although

2 Plaintiff “enjoy[s] the Restaurant as well as the food
3 they sell” and intends to return in the future, he
4 admits that he does not have specific plans to return
5 at this time.
6 at 9:17-18.

Vogel Decl. ¶ 3; Chilleen Decl. Ex. B,
These facts do not evince a clear intent

7 to return found in other cases.

Cf. Doran v. 7-Eleven,

8 Inc., 524 F.3d 1034, 1040-41 (9th Cir. 2008)(sincere
9 intent to return where plaintiff had visited 7-Eleven
10 store ten to twenty times previously, the store was
11 near his favorite restaurant and near Disneyland where
12 he planned to visit at least once a year, and he
13 testified in deposition that he would return to the
14 store once the access barriers were fixed).

Thus,

15 Plaintiff has not demonstrated a concrete injury.
16

The Court is satisfied, however, that Plaintiff has

17 standing under the second “type” announced by the Ninth
18 Circuit.

“[A]n ADA plaintiff who has encountered or

19 has personal knowledge of at least one barrier related
20 to his or her disability when he files a complaint and
21 who has been deterred from attempting to gain access to
22 the public accommodation because of that barrier, has
23
24
25
26
27
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1

While not dispositive, the fact that Plaintiff has filed
529 ADA-related lawsuits since 2012—countless of them against
fast-food chains and other chain stores that can be visited
throughout California—also undercuts his intent to return to this
specific Restaurant. Chilleen Decl. Ex. A; Mandarin Touch, 385
F. Supp. 2d at 1045 (“[Plaintiff] professes an intent to return
to each [of the 400] business[es] that he sues . . . one would
have to believe that he had a genuine desire to return to each
business he sued.”)
11

1 suffered an injury in fact under Article III of the
2 ADA.”

Doran, 524 F.3d at 1047.

Plaintiff encountered

3 the alleged ADA violations when he visited the
4 Restaurant on January 3, 2016 and took photographs.
5 Vogel Decl. Ex. A.

And Plaintiff explains how the

6 specific barriers relate to his disability as a
7 wheelchair-bound paraplegic—the disabled parking space
8 and access aisle have slopes/cross-slopes that are too
9 steep, due to an encroaching built-up curb ramp, which
10 make it difficult for Plaintiff to exit his vehicle, as
11 his wheelchair rolls or his lift platform cannot sit
12 level.

Compl. ¶ 10; Kohler v. Bed Bath & Beyond of

13 Cal., LLC, No. 11–4451 RSWL (Spx), 2012 WL 3018320, at
14 *2 (C.D. Cal. July 23, 2012)(injury-in-fact satisfied
15 where slope and cross-slope of disabled parking space
16 exceeded maximum).

Moreover, Plaintiff states that he

17 would return to the Restaurant were it made accessible
18 to him.

Vogel Decl. ¶ 3.

Considered together, this

19 evidence makes it plausible that Plaintiff would be
20 deterred from returning to the Restaurant.

Thus,

21 Plaintiff has standing to raise his ADA claim.
22
23

b.

Mootness

Defendant next argues that Plaintiff’s ADA claim is

24 moot because Defendant repaved the allegedly
25 noncompliant disabled parking space and access aisle.
26 Mot. 4:9-10.

Plaintiff concedes that Defendant removed

27 the access barriers after he filed his Complaint, but
28 argues that even if his ADA claim is moot, his right to
12

1 statutory minimum damages under the state-law claims
2 are not.
3

See Opp’n 3:4-7.

Because a plaintiff can only sue for injunctive

4 relief in an ADA case, the Ninth Circuit has explained
5 that “a defendant’s voluntary removal of alleged
6 barriers prior to trial can have the effect of mooting
7 a plaintiff’s ADA claim.”

Oliver v. Ralphs Grocery

8 Co., 654 F.3d 903, 905 (9th Cir. 2011); see also
9 Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134, 1145
10 (S.D. Cal. 2006)(defendant repaired ramp slope from
11 public sidewalk to store entrance, which was too steep,
12 thus mooting the ADA claim).
13

Previously, the disabled parking space and access

14 aisle slopes were too steep, due at least to an
15 encroaching built-up curb ramp.

Compl. ¶ 10.

16 Defendant proffers a declaration from Tim Stockton,
17 Defendant’s Senior Director of Real Estate and
18 Development, who personally supervised the repaving of
19 the disabled parking space and access aisle.
20 Decl. ¶ 2.

Stockton

Defendant also presents photographs that

21 show the disabled parking space and access aisle slopes
22 are currently no steeper than 1:48, in compliance with
23 the ADA Accessibility Guidelines (“ADAAG”).

Id. at ¶¶

24 1-2, Exs. A-B, ECF Nos. 32:3-5; ADAAG § 502.4 (“[for
25 parking spaces and access aisles] [s]lopes not steeper
26 than 1:48 shall be permitted.”)

The alleged ADA

27 violations have been corrected, and Plaintiff does not
28 dispute this, even stating that he “does not deny that
13

1 [the barriers] alleged in this Complaint were
2 eventually removed.”

Opp’n 3:4-5; compare Def.’s SUF

3 ¶¶ 2-3, with Pl.’s Facts.

The Court thus GRANTS

4 summary judgment as to the ADA claim.2

Additionally,

5 Plaintiff is correct that the ADA claim’s mootness does
6 not moot the CDPA, Unruh Act, and state-law claims for
7 damages.

Kohler v. Presidio Int’l, Inc., No. CV

8 10–4680 PSG (PJWx), 2013 WL 228120, at *2 (C.D. Cal.
9 Jan. 22, 2013).

Thus, the Court proceeds with an

10 analysis of those remaining claims.
11

3.

12

Defendant also moves for summary judgment as to the

State-Law Claims

13 state-law claims under the CDPA, the Unruh Act, and the
14 California Health & Safety Code.

Because the Court

15 grants summary judgment as to Plaintiff’s ADA claim,
16 the only remaining issue is whether the Court may
17 exercise supplemental jurisdiction over the pendent
18 state-law claims.
19

The Court has supplemental jurisdiction “over all

20 other claims that are so related to claims in the
21 action within such original jurisdiction that they form
22 part of the same case or controversy . . . .”

28

23
24
25
26
27
28

2

Because Defendant has fixed the barriers affecting the
disabled parking space and access aisle, the Court will not
entertain the parties’ arguments whether, in Plaintiff’s prima
facie case for its ADA claim, the access barriers violated
construction-related accessibility standards. See Parr v. L&L
Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1087 (D. Haw.
2000)(discussing the accessibility compliance of only nonremediated, non-mooted access barriers).
14

1 U.S.C. § 1367(a).

The ADA claims and state-law claims

2 share a common nucleus of operative fact and are “part
3 of the same case or controversy;” both use identical
4 factual allegations and violations of the ADA
5 constitute violations of the parallel sections in the
6 Unruh Act and CDPA.
7 54(c).

See Cal. Civ. Code §§ 51(f),

Nevertheless, once the court acquires

8 supplemental jurisdiction, it may decline to exercise
9 it if:
10
11

(1) the claim raises a novel or complex issue of
State law;

12

(2) the claim substantially predominates over the

13

claim or claims over which the district court

14

has original jurisdiction;

15
16
17
18

(3) the district court has dismissed all claims
over which it has original jurisdiction, or;
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.

19 28 U.S.C. § 1367(c).

The decision to retain

20 jurisdiction over state-law claims is within the
21 district court’s discretion, weighing factors such as
22 economy, convenience, fairness, and comity.

Brady v.

23 Brown, 51 F.3d 810, 816 (9th Cir. 1995).
24

Defendant argues that the Court should dismiss the

25 remaining state-law claims as it has dismissed the ADA
26 claim over which it has original jurisdiction.
27 Plaintiff responds that “economy, convenience,
28 fairness, and comity” dictate that the Court retain the
15

1 state-law claims, as they are borne out of the same
2 facts as the ADA claims and because discovery and
3 motion practice are complete and the case is set for
4 trial.
5

Here, the Court granted summary judgment on the ADA

6 claim, the only claim over which it has original
7 jurisdiction.

Thus, the Court declines to exercise

8 supplemental jurisdiction over the state-law claims, as
9 it “has dismissed all claims over which it has original
10 jurisdiction.” 28 U.S.C. § 1367(c)(1).

See, e.g.,

11 Oliver, 654 F.3d at 910 (finding district court did not
12 abuse its discretion in dismissing state-law claims
13 under the Unruh Act and CDPA after losing original
14 jurisdiction over ADA claim); see also Rodgers v.
15 Chevys Restaurants, LLC, No. C13–03923 HRL, 2015 WL
16 909763 (N.D. Cal. Feb. 24, 2015)(“In a Title III ADA
17 action, a district court may properly decline
18 supplemental jurisdiction over related state-law access
19 claims once the ADA claim has been dismissed.”).
20 Nevertheless, to ensure “values of economy,
21 convenience, fairness, and comity,” the Court considers
22 the parties’ remaining arguments as to the supplemental
23 jurisdiction inquiry.
24

First, Plaintiff is correct that the Court should

25 not decline to exercise supplemental jurisdiction on
26 the “novel or complex issues of state law” factor in
27 section 1367(c)(1).

Defendant generally argues that

28 the recently enacted Senate Bill 1186 (“SB”) presents
16

1 complex issues regarding how damages are calculated,
2 mot. 16:20-22, but does not unpack how SB 1186, and the
3 cited caselaw render the state-law claims complex with
4 respect to Plaintiff’s specific circumstances.

Thus,

5 the Court will not decline supplemental jurisdiction on
6 this ground.
7

However, the Court does decline to exercise

8 supplemental jurisdiction over the state-law claims
9 because the state-law claims substantially predominate
10 over the federal ADA claim.

Plaintiff argues that ADA

11 plaintiffs frequently join ADA, Unruh Act, and CDPA
12 claims in one lawsuit because they require the same
13 burden of proof and both the Unruh Act and CDPA allow
14 for damages based on ADA violations.

Opp’n 13:12-14.

15 “The mere fact that the Unruh Act incorporates
16 violations of the ADA does not give [the] Court federal
17 question jurisdiction over Plaintiff’s state law
18 claim.”

Carpenter v. Raintree Realty, LLC, No. CV

19 11–06798–RGK (MRWx), 2012 WL 2579179, at *2 (C.D. Cal.
20 July 2, 2012).

At the same time, the Court hesitates

21 to determine that the state-law claims predominate over
22 the ADA claim merely because the ADA claim allows for
23 injunctive relief, while the state law claims permit
24 monetary damages and more expansive remedies.

To do so

25 would “preclude a district court from ever asserting
26 supplemental jurisdiction over a state law claim under
27 the Unruh Act [or other state laws].”

Kohler v.

28 Islands Restaurants, LP, 956 F. Supp. 2d 1170, 1176
17

1 (S.D. Cal. 2013).

Thus, a more comprehensive look at

2 the facts at hand is necessary.
3

Molski v. EOS Estate Winery, No. CV 03-5880-GAF,

4 2004 WL 3952249, at *4 (C.D. Cal. July 14, 2005) is
5 instructive.

In that case, the court noted that

6 plaintiff’s ADA claim was merely a “jurisdictional
7 hook” into federal court, but the “predominant focus”
8 of the lawsuit was his damages under his state-law
9 claims, even though he voluntarily limited himself to
10 $4,000.

Id.

Moreover, all but one of the claims were

11 state-law claims and plaintiff could just as easily
12 have sought injunctive relief through the state-law
13 claims, rather than by tacking on an ADA claim; thus,
14 “the federal claim add[ed] nothing to the lawsuit that
15 could not be obtained in Superior Court.”

Id.

Here,

16 although Plaintiff similarly requested only $4,000 in
17 statutory damages for each Unruh Act offense, he seeks
18 more expansive remedies available under his state-law
19 claims, including mandatory attorneys’ fees pursuant to
20 the Unruh Act and CDPA’s fee-shifting provisions,
21 actual damages under the CDPA, and declaratory relief
22 under the CDPA.

Schutza v. McDonald’s Corp., 133 F.

23 Supp. 3d 1241, 1247 (S.D. Cal. 2015).

And Plaintiff

24 states in his Complaint that he seeks declaratory
25 relief under the ADA “in order to pursue damages under
26 [the Unruh Act or CDPA].”

Compl. ¶ 31.

The facts,

27 then, would suggest that Plaintiff’s state-law claims
28 predominate in a more meaningful way than a typical
18

1 case where Plaintiff tacks these state-law claims on to
2 his primary ADA claim.
3

Plaintiff cites a handful of cases where district

4 courts in this circuit concluded that Unruh Act and DPA
5 claims do not substantially predominate over the
6 federal ADA claims.

See, e.g., Wilson v. PFS LLC, No.

7 06CV1046WQH(NLS), 2006 WL 3841517, at *6 (S.D. Cal.
8 Nov. 2, 2006)(state law claims did not substantially
9 predominate over ADA claims, as both claims are
10 “identical” and an ADA violation constitutes a
11 violation of the parallel state laws).

However,

12 Plaintiff’s cases are distinguishable because there,
13 unlike here, the ADA claim remained in the case, or the
14 court declined to dismiss the ADA claim on standing or
15 mootness grounds; thus, the court still had original
16 jurisdiction over a claim in the case.

For instance,

17 in Johnson v. Makinen, No. 2:09–CV–796 FCD KJM, 2009 WL
18 2137130, at *3 (E.D. Cal. July 15, 2009)(emphasis
19 added), the court concluded that the state-law claims
20 did not substantially predominate over the ADA claim,
21 as plaintiff did not abandon either claim, the request
22 for injunctive relief was not moot, his federal claims
23 equaled in number the state law claims, and his federal
24 claim had not been dismissed.

Here, unlike Makinen and

25 the other cases on which Plaintiff relies, the ADA
26 claim has been mooted and dismissed and the state-law
27 claims far outnumber the federal claims.
28

Lastly, although not dispositive of the Court’s
19

1 decision to decline supplemental jurisdiction, the
2 Court notes that since 2012, Plaintiff has been a
3 litigant in 529 cases, countless of which involve
4 state-law claims for damages hitched to his ADA claims
5 and similar allegations of access barriers to his
6 wheelchair.

Vogel v. Rite Aid Corp., 992 F. Supp. 2d

7 998, 1004 (C.D. Cal. 2014)(Vogel filed suit with ADA,
8 CDPA, Unruh Act, and California Health & Safety Code
9 claims); Vogel v. Linden Optometry APC, CV 13-00295 GAF
10 SHX, 2013 WL 1831686, at *1 (C.D. Cal. Apr. 30,
11 2013)(same).

In EOS Estate Winery, 2005 WL 3952249, at

12 *4, the Court considered a serial ADA-plaintiff’s
13 litigation strategy as an “exceptional circumstance”
14 that would warrant declining supplemental jurisdiction
15 under section 1367(c)(4): “[Molski] has developed a
16 well-oiled system: [he] files a complaint in which he
17 always complains of lack of van-accessible parking . .
18 . he asks for injunctive relief and damages, and waits
19 for settlement . . . [h]is intentions are not to obtain
20 injunctive relief, since he could do so by merely
21 filing suit under the ADA . . .

Molski instead

22 attaches the ADA claim to his state claims for damages
23 so he can get into the federal system, which he then
24 uses to his advantage.”

While less extreme here,

25 Plaintiff often raises ADA and state-law claims while
26 complaining of disabled parking space and access aisle
27 slope steepness.

See, e.g., Vogel v. Salazar, No. SACV

28 14–00853–CJC (DFMx), 2014 WL 5427531, at *1 (C.D. Cal.
20

1 Oct. 24, 2014)(Vogel encountered access aisle and
2 parking spaces with slopes that prevented him from
3 unloading and transferring from his vehicle).

This

4 also counsels towards declining supplemental
5 jurisdiction over the state-law claims.
6

“[I]n the usual case in which federal-law claims

7 are eliminated before trial, the balance of factors . .
8 . will point toward declining to exercise jurisdiction
9 over the remaining state law claims.”

Carnegie-Mellon

10 Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
11 Bearing in mind the mooted ADA claim, and the above
12 analysis regarding the section 1367(c) factors, the
13 Court declines to exercise supplemental jurisdiction
14 over the remaining state-law claims and GRANTS
15 Defendant’s Motion as to the Unruh Act, CDPA, and
16 California Health & Safety Code claims.
17
18

IV. CONCLUSION
Based on the foregoing, the Court GRANTS

19 Defendant’s Motion for Summary Judgment as to the
20 entire Complaint [32].
21
22 DATED: May 18, 2017

s/ RONALD S.W. LEW

23

HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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