Strojnik v. Kamla Hotels, Inc.

Filing 23

ORDER: (1) Granting Defendant's Motion Dismiss Plaintiff's First Amended Complaint (Doc. No. 8 ); and (2) Denying Plaintiff's Motion to Strike Notice of Supplemental Authority, (Doc. No. 18 ). The Court grants Defendant's motion to dismiss. The Court declines to exercise supplemental jurisdiction over Plaintiff's claims under the Unruh Act, California's Disabled Persons Act, and Plaintiff's negligence claim. These claims are hereby dismissed without prejudice and without leave to amend. The Court retains jurisdiction over Plaintiff's ADA claim. As to the ADA claim, Plaintiff's claim is dismissed with leave to amend. If Plaintiff so desires, he may file a Second Amended Complaint curing the defi ciencies noted herein within 21 days of this order. Furthermore, the Court finds no reason to strike Defendant's supplemental authority, and as such, the Court denies Plaintiff's motion to strike. Signed by Judge Anthony J. Battaglia on 1/8/2021. (jrm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PETER STROJNIK, Plaintiff, 12 13 14 15 16 Case No.: 19-cv-02212-AJB-AHG ORDER: v. (1) GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT, (Doc. No. 8 ); AND KAMLA HOTELS, INC., DBA GLORIETTA BAY INN CORONADO ISLAND, Defendant. (2) DENYING PLAINTIFF’S MOTION TO STRIKE NOTICE OF SUPPLEMENTAL AUTHORITY, (Doc. No. 18) 17 18 19 20 21 Presently before the Court are: (1) Defendant Kamla Hotels, Inc.’s (“Defendant”) 22 motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), 23 (Doc. No. 8); and (2) Plaintiff Strojnik’s (“Plaintiff”) motion to strike notice of 24 supplemental authority, (Doc. No. 18). For the reasons set forth below, the Court GRANTS 25 Defendant’s motion to dismiss, and DENIES Plaintiff’s motion to strike. 26 I. BACKGROUND 27 Plaintiff “has filed thousands of disability discrimination cases against hotel 28 defendants in state and federal courts,” Strojnik v. Bakersfield Convention Hotel, 436 F. 1 19-cv-02212-AJB-AHG 1 Supp. 3d 1332, 1336 (E.D. Cal. 2020), and based on those filings, has been declared a 2 vexatious litigant in at least the United States District Court for the Northern District of 3 California, see Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983-DMR, 2020 WL 4 2838814, at *6–13 (N.D. Cal. June 1, 2020), and the United States District Court for the 5 Central District of California. See Strojnik v. SCG Am. Constr. Inc., No. 6 SACV191560JVSJDE, 2020 WL 4258814, at *8 (C.D. Cal. Apr. 19, 2020). 7 Additionally, Plaintiff is a disabled veteran who suffers from severe right-sided 8 neural foraminal stenosis with symptoms of femoral neuropathy, prostate cancer, and renal 9 cancer. (First Amended Complaint (“FAC”), Doc. No. 6, ¶ 1–2.) He also has a prosthetic 10 right knee. (Id. ¶ 3.) A resident of Maricopa County, Arizona, Plaintiff is retired and travels 11 extensively for recreation, pleasure, and ADA testing. (Id.) Defendant owns, operates 12 leases, or leases to a lodging business, a hotel located at 1630 Glorietta Blvd., Coronado, 13 CA 92118 (“Hotel”). (Id. ¶ 7.) Plaintiff maintains he visited the “Coronado area” on June 14 25 and 26, 2019.1 (Id. ¶ 17.) Plaintiff alleges he is deterred from visiting the Hotel based 15 on his knowledge that the Hotel is not ADA or State Law compliant for his disability. (Id. 16 ¶ 13.) He intends to visit Defendant’s Hotel at a specific time when the Defendant’s Hotel 17 becomes fully ADA compliant. (Id. ¶ 14.) In his FAC, Plaintiff asserts four claims for 18 violations of (1) the American with Disabilities Act, 42 U.S.C. § 12101 et seq., (2) the 19 California Unruh Civil Rights Act, California Civil Code § 51, 52 (“Unruh Act”), (3) the 20 California Disabled Persons Act, California Civil Code §§ 54.54.3 (“DPA”), and (4) a 21 negligence claim. (Id. ¶ 15–41.) 22 On March 17, 2020, Defendant filed a motion to dismiss all claims with prejudice 23 and without leave to amend pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). 24 (Doc. No. 8.) Defendant also asks the Court to issue an OSC re Sanctions because Plaintiff 25 26 27 28 In Plaintiff’s response to Defendant’s motion to dismiss, Plaintiff does not mention his June 25 and 26, 2019 visit to the Coronado area, but rather, maintains he visited the Hotel on July 26-27, 2019, and personally encountered sixteen barriers to accessibility. (Doc. No. 12 at 1.) 1 2 19-cv-02212-AJB-AHG 1 is a vexatious litigant. (Doc. No. 8-1 at 4.) Defendant also submitted several notices of 2 supplemental authorities, showing various orders from different courts dismissing nearly 3 identical claims brought by Plaintiff. (Doc. Nos. 15, 19, 20–22.) Plaintiff asks the Court to 4 strike Defendant’s notice of supplemental authorities. (Doc. Nos. 18, 12.) 5 II. LEGAL STANDARD 6 A defendant may seek to dismiss a complaint based on lack of standing under 7 Federal Rule of Civil Procedure 12(b)(1). See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 8 2000). A Rule 12(b)(1) jurisdictional attack can be either facial or factual. Id. In a facial 9 attack, the defendant asserts that legal allegations are insufficient on their face to invoke 10 federal jurisdiction. See Safe Air For Everyone v. Meyer, 373 F.3 1035, 1039 (9th Cir. 11 2004). In a factual attack, the district court may review extrinsic evidence beyond the 12 complaint. See White, 227 F.3d at 1242. In addition, the court need not presume the 13 truthfulness of the plaintiff’s allegations. Id. “Once the moving party has converted the 14 motion to dismiss into a factual motion by presenting affidavits or other evidence properly 15 brought before the court, the party opposing the motion must furnish affidavits or other 16 evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Safe 17 Air for Everyone, 373 F.3 at 1039 (quoting Savage v. Glendale Union High Sch., 343 F.3d 18 1036, 1039 n.2 (9th Cir. 2003)). 19 Furthermore, a defendant may seek to dismiss a complaint for failure to state a claim 20 under Federal Rule of Civil Procedure 12(b)(6). A complaint generally must satisfy the 21 minimal notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2) to evade 22 dismissal under a Rule 12(b)(6) motion. See A.E. ex rel. Hernandez v. Cnty. of Tulare, 666 23 F.3d 631, 637 (9th Cir. 2012). Rule 8(a)(2) requires that a pleading stating a claim for relief 24 contain “a short and plain statement of the claim showing that the pleader is entitled to 25 relief.” Fed R. Civ. P. 8(a)(2). While a complaint need not contain detailed factual 26 allegations, the grounds of entitlement requires more than legal conclusions. See Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements 28 of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. 3 19-cv-02212-AJB-AHG 1 Iqbal, 556 U.S. 662, 679 (2009) (citing Twombly, 550 U.S. at 555). The complaint should 2 provide enough facts as to raise a reasonable expectation that discovery will reveal 3 evidence. See Twombly, 550 U.S. at 556. “Factual allegations must be enough to raise a 4 right to relief above the speculative level.” Id. at 555 (citing 5 C. Wright & A. Miller, 5 Federal Practice and Procedure § 1216, pp. 235–36 (3d ed. 2004)). 6 III. DISCUSSION Defendant’s Motion to Dismiss Under Rule 12(b)(1) For Lack of Standing 7 A. 8 Title III of the ADA prohibits discrimination on the basis of disability in “any place 9 of public accommodation.” 42 U.S.C. § 12182(a). Under the ADA, when a disabled person 10 encounters an accessibility barrier, for standing purposes, the barrier need not entirely 11 preclude the plaintiff from entering or using the facility. See Chapman v. Pier 1 Imports 12 (U.S.) Inc., 631 F.3d 939, 947 (9th Cir. 2011). The barrier need only interfere with the 13 plaintiff’s “full and equal enjoyment” of the facility. Id. A plaintiff invoking federal 14 jurisdiction bears the burden of proof. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 15 561 (1992). To satisfy Article III standing, a plaintiff must prove three elements: (1) an 16 “injury-in-fact;” (2) the injury is traceable to the defendant’s actions; and (3) the injury is 17 “likely” not merely “speculative” and will be redressed by a favorable judicial decision. Id. 18 at 560–61. An ADA plaintiff can establish standing in two ways: by either (demonstrating 19 (1) an injury-in-fact alongside an intent to return to a noncompliant facility; or (2) by 20 demonstrating deterrence. See Chapman, 631 F.3d at 944. 21 22 1. Injury-in-Fact and Intent to Return a) Injury-in-Fact 23 As his injury-in-fact, Plaintiff alleges he was deprived of ADA-compliant lodging 24 “applicable to his mobility, both ambulatory and wheelchair assisted.” (FAC ¶ 16.) The 25 Hotel, Plaintiff argues, failed to provide ADA-compliant lodging. Defendant counters 26 Plaintiff’s disability is not clear. (Doc. No. 8-1 at 14.) Defendant argues that although 27 Plaintiff lists medical problems, he does not claim to use a wheelchair, and his photographs 28 with vague captions such as “inaccessible counter” and “improper threshold” do not detail 4 19-cv-02212-AJB-AHG 1 how Plaintiff is impeded from accessing Hotel areas due to his specific disability. (Id. at 2 12.) Defendant also factually attacks Plaintiff’s allegations, providing website links to ABC 3 15 News where Plaintiff is able to walk without assistance. (Id. at 15–16.) 4 An injury-in-fact must be (a) concrete and particularized; and (b) “actual or 5 imminent,” not “conjectural” or “hypothetical.” Lujan, 504 U.S. at 560. Barriers 6 encountered must relate to Plaintiff’s specific disability. See Chapman, 631 F.3d at 947. A 7 plaintiff lacks standing when the barrier has not personally injured him. See Doran v. 7- 8 Eleven, Inc., 524 F.3d 1024, 1044 n.7 (holding that plaintiff, a wheelchair user, “cannot 9 challenge all of the ADA violations in the 7-Eleven store. . . . Doran may challenge only 10 those barriers that might reasonably affect a wheelchair user’s full enjoyment of the 11 store.”). 12 Plaintiff fails to allege an injury-in-fact because he does not explain which 13 accessibility features are required to accommodate his disability. First, Defendant mounts 14 a factual attack on Plaintiff’s purported standing, pointing out it is not clear what Plaintiff’s 15 disability is in the first instance. Defendant points to an ABC 15 news report showing 16 Plaintiff walking along a sidewalk with a briefcase over his shoulder, and also standing 17 unassisted in a courtroom.2 (Id. at 15–16.) Defendant argues these video clips are 18 inconsistent with Plaintiff’s claim that he suffers from ambulatory hindrances and 19 wheelchair needs. (Id.) Plaintiff does not put forth his own evidence to dispute Defendant’s 20 21 22 23 24 25 26 27 28 2 Defendant cites three website links. (Doc. No. 8-1 at 15–16.) The two ABC 15 website links, although different news stories, provide identical clips of Plaintiff walking along a sidewalk, carrying a shoulder bag. The third link to a “YouTube” video has a caption, which names a person at a hotel as Peter Strojnik. The YouTube clip shows the person standing at the front desk of the hotel. The Court may take judicial notice of facts that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). As to the YouTube video, the Court notes that there are reasons to question the accuracy of the source, particularly, the identification of Plaintiff. As such, the Court declines to take judicial notice of the YouTube video. As for the two ABC News website links, the Court will take judicial notice of the existence of these articles. See 2Die4Kourt v. Hillair Cap. Mgmt., LLC, No. 16-cv-1304-JVS-DFM, 2016 WL 4487895, at *1 n.1 (C.D. Cal. Aug. 23, 2016) (taking judicial notice of thirty-four online news articles and social media posts “solely for their existence and content, and not for the truth of any statements in the documents.”). 5 19-cv-02212-AJB-AHG 1 allegations. See Safe Air for Everyone, 373 F.3 at 1039 (“Once the moving party has 2 converted the motion to dismiss into a factual motion by presenting affidavits or other 3 evidence properly brought before the court, the party opposing the motion must furnish 4 affidavits or other evidence necessary to satisfy its burden of establishing subject matter 5 jurisdiction.”). 6 However, the Court need not reach the factual challenge to find a lack of an injury- 7 in-fact because Defendant’s facial attack to standing also prevails. Specifically, the FAC 8 lacks any detail demonstrating an injury-in-fact. The photographs Plaintiff offers in his 9 FAC contain vague and generic captions that include no information about how the 10 depicted features violate the ADA or pose a barrier to him based on his disabilities. See 11 Chapman, 631 F.3d at 947 n.4 (“[A] plaintiff’s standing to claim an ADA violation is 12 necessarily linked to the nature of his disability.”). For example, Plaintiff alleges that the 13 Hotel has an “inaccessible check in counter” and “[n]o signage to accessible route” but 14 does not explain how those features relates to his own disability or how these barriers 15 personally injured him. (FAC ¶ 18.) Plaintiff includes a chart titled “Relation Between 16 Plaintiff’s ADA Disability and Major Life Activities,” which provides line items of his 17 physical ailments. The chart purports to detail what bodily functions are impaired. (FAC ¶ 18 2.) Although Plaintiff asserts the graph relates to barriers to Plaintiff’s mobility and ADA 19 violations, he does not describe a causal connection between his disability and the conduct 20 of Defendant. (Id. ¶ 3–4.) 21 22 23 Accordingly, the Court concludes that Plaintiff has not sufficiently alleged an injuryin-fact. b) Intent to Return 24 Because Plaintiff has not adequately pleaded an injury-in-fact, the Court need not 25 address whether he has sufficiently alleged an intent to return to the Hotel. See Chapman, 26 631 F.3d at 944 (holding that an ADA plaintiff may establish standing with respect to actual 27 encounters by “demonstrating injury-in-fact coupled with an intent to return to a 28 noncompliant facility”); Strojnik v. IA Lodging Napa First LLC, No. 19-CV-03983-DMR, 6 19-cv-02212-AJB-AHG 1 2 2020 WL 2838814, at *5 (N.D. Cal. June 1, 2020). 2. Deterrence 3 Alternatively, to establish an actual encounter with a barrier, an ADA plaintiff may 4 establish standing by pleading that he is deterred from visiting the facility. See Pickern v. 5 Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002). However, even under a 6 deterrence theory, a plaintiff must allege “actual knowledge of a barrier” and an intent to 7 visit a facility once it is ADA compliant. See Civil Rights Educ. & Enf’t Ctr. v. Hosp. 8 Properties Tr., 867 F.3d 1093, 1099 (9th Cir. 2017) (“CREEC”). A plaintiff’s assertions 9 cannot merely be hypothetical. See Vogel v. Salazar, No. SACV 14-00853-CJC, 2014 WL 10 5427531, at *2 (C.D. Cal. Oct. 24, 2014). Instead, the court “must engage in a fact-intensive 11 inquiry to determine whether the plaintiff is truly deterred and would return to the 12 establishment if the establishment were compliant with the ADA.” Id. 13 Plaintiff is retired and spends his time traveling for recreation and also ADA testing. 14 (FAC ¶ 4.) Plaintiff asserts he is deterred from visiting the Hotel based on Plaintiff’s 15 knowledge that the Hotel is not ADA compliant as it relates to Plaintiff’s disability. (Id.) 16 But Plaintiff does not explain why his disability deters him from visiting the Hotel. He has 17 not adequately shown how any feature of the Hotel is non-compliant with ADA or how it 18 relates to his disability. See Strojnik v. Hotel Circle Gl Holdings, LLC, No. 19 119CV01194DADEPG, 2020 WL 4339984, at *5 (E.D. Cal. July 28, 2020); Strojnik v. 20 Four Sisters Inns, Inc., No. 2:19-cv-02991-ODW-JEMx, 2019 WL 6700939, at *5 (C.D. 21 Cal. Dec. 9, 2019). Plaintiff fails to show he has suffered an “actual injury” because the 22 photographs and accompanying captions in the FAC are only conclusory statements. 23 Plaintiff has alleged no facts to support his threadbare legal conclusion that he would return 24 to the Hotel if it were brought into compliance. He also does not relate his disabilities to 25 the alleged offending barriers and fails to show what specific barriers would deter him from 26 returning to the hotel. Instead, based on his current pleading, his deterrence assertion is 27 merely hypothetical. 28 The Court holds Plaintiff lacks standing to bring his ADA claim. Accordingly, to the 7 19-cv-02212-AJB-AHG 1 extent Defendant seeks dismissal based on Rule 12(b)(1) for lack of subject matter 2 jurisdiction, Defendant’s motion is GRANTED, and Plaintiff’s ADA claim is 3 DISMISSED. 4 B. 5 Plaintiff’s Unruh Act Claim and Related State Law Claims 6 Under 28 U.S.C. § 1367, a district court may decline to exercise supplemental 7 jurisdiction over a state law claim if: (1) the claim raises a novel or complex issue of state 8 law; (2) the claim substantially predominates over the claim or claims over which the 9 district court has original jurisdiction; (3) the district court has dismissed all claims over 10 which it has original jurisdiction, or (4) in exceptional circumstances, there are other 11 compelling reasons for declining jurisdiction. See 28 U.S.C. § 1367(c). The decision to 12 decline supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) should be informed by the 13 values of economy, convenience, fairness, and comity. See United Mine Workers of Am. v. 14 Gibbs, 383 U.S. 715, 726 (1996). A district court “may decline to exercise supplemental 15 jurisdiction if it “has dismissed all claims over which it has original jurisdiction.” Sanford 16 v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (citing 28 U.S.C. § 1367(c)(3)). 17 The Court finds that this case presents “exceptional circumstances” and that “there 18 are compelling reasons,” primarily based on comity, for declining jurisdiction over 19 Plaintiff’s Unruh Act and related state law claims. See 28 U.S.C. § 1367(c)(4). The Unruh 20 Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and 21 no matter what their sex, race, color, religion, ancestry, national origin, disability, medical 22 condition, genetic information, marital status, or sexual orientation are entitled to the full 23 and equal accommodations, advantages, facilities, privileges, or services in all business 24 establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). “A violation of the right 25 of any individual under the federal Americans with Disabilities Act of 1990 (P.L. 101– 26 3361) shall also constitute a violation of this section.” Cal. Civ. Code § 51(f). “A violation 27 of the Unruh Act may be maintained independent of an ADA claim where a plaintiff pleads 28 ‘intentional discrimination in public accommodations in violation of the terms of the Act.” The Court Declines to Exercise Supplemental Jurisdiction Over 8 19-cv-02212-AJB-AHG 1 Earll v. eBay, Inc., 5:11–cv–00262, 2011 WL 3955485, at *3 (N.D. Cal. Sept. 7, 2011) 2 (quoting Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009)). 3 The Court declines to exercise supplemental jurisdiction over Plaintiff’s Unruh Act 4 claim because to do so would permit an end-around to California’s heightened pleading 5 standards requiring disability access plaintiffs to verify their complaints in state court. 6 Thus, the Court declines to exercise supplemental jurisdiction out of deference to 7 California’s heightened pleading requirements for disability lawsuits, and in the interest of 8 comity, as California courts should interpret the state’s disability laws. Indeed, the Court 9 will join other California district courts that have identified these factors as a “compelling 10 reason” to decline to exercise supplemental jurisdiction over disability claims arising under 11 the Unruh Act. See Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1030–31 (S.D. Cal. 2017) 12 (“[A]s a matter of comity, and in deference to California’s substantial interest in 13 discouraging unverified disability discrimination claims, the Court declines supplemental 14 jurisdiction over Plaintiff’s Unruh Act claim.”); Molski v. Hitching Post I Restaurant, Inc., 15 No. 04-cv-1077-SVWRNBX, 2005 WL 3952248 at *9 (C.D. Cal. May 25, 2005) 16 (“Because the California courts should be given an opportunity to interpret California’s 17 disability laws, because the calculated effort to avoid having California courts decide issues 18 of California law is to be discouraged, and because the parties themselves are entitled to a 19 surer-footed interpretation of California's disability laws, the Court finds that compelling 20 reasons exist to decline supplemental jurisdiction over [Plaintiff’s] state law claims.”). 21 Furthermore, state law issues will predominate over ADA claim issues if the state 22 law claims were permitted to proceed. If the Court exercises supplemental jurisdiction over 23 the Unruh Act claim, Defendants’ intent and monetary damages would be extraneous issues 24 that would have to be litigated, and yet, not relevant to the federal claim. As such, given 25 these additional elements necessary for an Unruh Act claim, the Court will decline to 26 exercise jurisdiction over the state law claims. See Feezor v. Tesstab Operations Grp., Inc., 27 524 F. Supp. 2d 1222, 1224 (S.D. Cal. 2007) (“Given the disparity in terms of 28 comprehensiveness of the remedy sought, state law claims substantially predominate over 9 19-cv-02212-AJB-AHG 1 the ADA for purposes of 28 U.S.C. § 1367(c)(2).”). 2 As the Court has dismissed Plaintiff’s federal claim, the Court declines to exercise 3 supplemental jurisdiction over Plaintiff’s state law claims, and they are DISMISSED 4 WITHOUT PREJUDICE. 5 C. 6 “Leave to amend should be granted if it appears at all possible that the plaintiff can 7 correct the defect.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1108 (9th Cir. 2003) 8 (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). The Court 9 will provide one final attempt for Plaintiff to cure the deficiencies in his Complaint. The 10 Court notes many other district courts have dismissed similar complaints of the Plaintiff as 11 the one before this Court. Some courts have given Plaintiff leave to amend, while others 12 have not. See Bakersfield Convention Hotel I, LLC, 436 F. Supp. 3d at 1344–45; Hotel 13 Circle Gl Holdings, LLC, 2020 WL 4339984, at *1 (E.D. Cal. July 28, 2020). At least one 14 court has warned Plaintiff he may be subject to sanctions, including Federal Rule of Civil 15 Procedure 11 if he re-asserts claims that have no basis in law or fact. See Strojnik v. 16 Bakersfield Convention Hotel I, LLC, 436 F. Supp. 3d at 1344. While the Court declines 17 Defendant’s request to issue an OSC re Sanctions at this time, this Court gives Plaintiff the 18 same admonition that he may not re-asserts claims that have no basis in law or fact. Any 19 repeated effort to do that in this case will lead to sanctions. Leave to Amend Will be Granted Plaintiff’s Motion to Strike 20 D. 21 Plaintiff also seeks for the Court to strike Defendant’s notice of supplemental 22 authority, apprising the Court of an order in another ADA case filed by Plaintiff in the 23 United States District Court for the Central District of California. See Strojnik v. SCG 24 American Construction, Inc., Case No. 19-1560 JVS (JDE) (C.D. Cal. April 19, 2020). In 25 that case, the Court dismissed Plaintiff’s FAC, declared Plaintiff a vexatious litigant, and 26 subjected him to a pre-filing order in the Central District of California. Plaintiff asks the 27 Court to strike the notice, arguing that notices are generally discouraged unless they 28 10 19-cv-02212-AJB-AHG 1 disclose a change in binding intervening law. The Court sees no reason to strike 2 Defendant’s notice, and so, DENIES Plaintiff’s motion to strike. 3 IV. CONCLUSION 4 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss. 5 (Doc. No. 8.) The Court declines to exercise supplemental jurisdiction over Plaintiff’s 6 claims under the Unruh Act, California’s Disabled Persons Act, and Plaintiff’s negligence 7 claim. These claims are hereby DISMISSED WITHOUT PREJUDICE AND 8 WITHOUT LEAVE TO AMEND. The Court retains jurisdiction over Plaintiff’s ADA 9 claim. As to the ADA claim, Plaintiff’s claim is DISMISSED WITH LEAVE TO 10 AMEND. If Plaintiff so desires, he may file a Second Amended Complaint curing the 11 deficiencies noted herein within 21 days of this order. Furthermore, the Court finds no 12 reason to strike Defendant’s supplemental authority, and as such, the Court DENIES 13 Plaintiff’s motion to strike. (Doc. No. 18.) 14 15 IT IS SO ORDERED. 16 Dated: January 8, 2021 17 18 19 20 21 22 23 24 25 26 27 28 11 19-cv-02212-AJB-AHG

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