Gilbert v. Akhnana

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 DARREN GILBERT, Case No. 1:22-cv-00876-ADA-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATION TO DECLINE SUPPLEMENTAL JURISDICTION 13 v. OVER PLAINTIFF’S UNRUH ACT AND HEALTH AND SAFETY CODE CLAIMS 14 EDWARD Y. AKHNANA, Trustee of the AKHNANA FAMILY 2012 FOURTEEN-DAY OBJECTION PERIOD 15 REVOCABLE TRUST, dba E & J KWIK SERV; JAMILA Y. AKHNANA, Trustee 16 of the AKHNANA FAMILY 2012 REVOCABLE TRUST, dba E & J KWIK 17 SERV, 18 Defendants. [19] 20 On July 14, 2022, Plaintiff Darren Gilbert commenced this action by filing a complaint 21 against Defendants Edward Y. Akhnana, Trustee of the Akhnana Family 2012 Revocable Trust, 22 doing business as E & J Kwik Serv., and Jamila Y. Akhnana, Trustee of the Akhnana Family 23 2012 Revocable Trust, doing business as E & J Kwik Serv (collectively “Defendants”), alleging 24 violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq 25 (Count I); the California Unruh Act, California Civil Code § 51 et seq. (Count II); and California 26 Health & Safety Code §§ 19955, 19959 (Count III). (Doc. No. 1, “Complaint”). Plaintiff seeks 27 an award of statutory damages, costs of suit, attorney’s fees, litigation expenses, injunctive or 28 preventative relief, and interest at the legal rate from the date of filing of the Complaint. (Id. at 81 9). Plaintiff, noting this Court has original jurisdiction over the ADA claims, seeks to have this 2 Court exercise supplemental jurisdiction over Plaintiff’s state law Unruh Act Claim and the 3 California Health & Safety Code claim. (Id. at 2). 4 On December 21, 2022, Plaintiff filed a motion for default judgment. (Doc. No. 10). On 5 March 13, 2023, the undersigned ordered Plaintiff to show cause, within fourteen days, why the 6 undersigned should recommend the district court exercise supplemental jurisdiction over 7 Plaintiff’s Unruh Act Claim (Count II) and Health and Safety Code claim (Count III). (Doc. No. 8 12). Plaintiff was also ordered to include with his response declarations from both Plaintiff and 9 Plaintiff’s counsel, signed under the penalty of perjury, that include all facts necessary for the 10 Court to determine whether each is a “high frequency litigant.” (Id.). The undersigned warned 11 Plaintiff that a failure to respond to the March 13, 2023 Order would be deemed a non-opposition 12 to the undersigned recommending the district court decline to exercise supplemental jurisdiction 13 over Plaintiff’s related state law claims. (Id.). Plaintiff filed no response to the Court’s March 14 13, 2023 Order to Show Cause and the time to do so has expired. See docket. For the reasons set 15 forth below, the undersigned recommends the District Judge decline to exercise supplemental 16 jurisdiction over Plaintiff’s Unruh Act and Health and Safety Code claims. 17 APPLICABLE LAW 18 A district court presiding over a civil action in which it has original jurisdiction “shall 19 have supplemental jurisdiction over all other claims that are so related to claims in the action 20 within such original jurisdiction that they form part of the same case or controversy under Article 21 II of the United States Constitution.” 28 U.S.C. § 1367 (a). Nonetheless, a district court may 22 decline to exercise supplemental jurisdiction over a claim if: 23 (1) the claim raises a novel or complex issue of State law, 24 (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, [25] (3) the district court has dismissed all claims over which it has 26 original jurisdiction, or 27 (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. [1] 28 U.S.C. § 1367 (c). 2 “[P]endent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” United Mine 3 Workers v. Gibbs, 383 U.S. 715, 726 (1996). A district court conducts a two-part inquiry when 4 evaluating whether to exercise supplemental jurisdiction under § 1367(c)(4). Arroyo Jr. v. Rosas, [5] 19 F.4th 1202, 1210 (9th Cir. 2021). First, the court “must ‘articulate why the circumstances of 6 the case are exceptional’ within the meaning of § 1367(c)(4).” Id. (quoting Executive Software N. 7 Arm., Inc. v. U.S. Dist. Ct., 24 F.3d 1545 , 1558 (9th Cir. 1994)) (other citation omitted). Second, 8 the court must provide compelling reasons to decline jurisdiction by weighing the principles of 9 judicial economy, convenience, fairness, and comity, “‘which underlie the pendent jurisdiction 10 doctrine’ articulated in [United Mine Workers v.] Gibbs.” Id. (quoting City of Chicago v. 11 International Coll. of Surgeons, 522 U.S. 156, 172-73 (1997)) (citing Acri v. Varian Assocs., Inc., [12] 144 F.3d 999, 1001 (9th Cir. 1997) (en banc) (referring to these four factors as the “Gibbs 13 values.”)). Courts only need to “‘articulate why the circumstances of the case are exceptional in 14 addition to inquiring whether the balance of the Gibbs values provides compelling reasons for 15 declining jurisdiction in such circumstances.’” Id. at 1211 (quoting Executive Software, 24 F.3d 16 at 1558) (bracket omitted). 17 The Ninth Circuit affirmed a district court’s finding of “extraordinary circumstances” and 18 “compelling reasons” to decline supplemental jurisdiction under the Unruh Act over accessibility 19 related discrimination claims for high frequency litigators. See Vo v. Choi, 49 F. 4th 1167 , 1174 20 (9th Cir. 2022); see also Arroyo, 19 F.4th at 1206 (finding “extraordinary circumstances”). 21 Significant to the courts’ decisions were the additional filing and heightened pleading 22 requirements California law imposes on high frequency litigators. Vo, 49 F. 4th at 1172-74; 23 Arroyo, 19 F. 4 1211-14 . 24 The same additional filing and heightened pleading requirements are not limited to claims 25 under the Unruh Act but also apply to other statutes for “construction-related accessibility 26 claims.” Arroyo, 19 F.4th at 1206 ; see also Cal. Proc. Civ. Code § 425.50 (a); Cal. Civ. Code § 27 55.2. A “construction-related accessibility standard” means “a provision, standard, or regulation 28 under state or federal law requiring compliance with standards for making new construction and 1 existing facilities accessible to people with disability, including, but not limited to, any provision, 2 standard, or regulation set forth in [Cal. Civ. Code §] 51 . . . [Cal. Health and Safety Code §] 3 19955.5 . . . the federal [ADA] . . ..” Cal. Civ. Code. § 55.52 (a)(6). Both §§ 19955 and 19959 4 were enacted to safeguard that certain facilities are accessible to disabled individuals and § 5 19955.5 is expressly included as subject to the “construction-related accessibility standard.” 6 ANALYSIS 7 Here, the first prong of the two-part § 1367(c) inquiry is satisfied because exceptional 8 circumstances exist. Supra, the Ninth Circuit already acknowledged that California’s heightened 9 pleading requirements imposed on high frequency litigants who allege construction-related 10 accessibility violations satisfies exceptional circumstances. See Vo, 49 F. 4th at 1172-74; Arroyo, [11] 19 F. 4 1211-14 . A high frequency litigant subject to the heightened pleading requirements is 12 defined under California law as: 13 A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month 14 period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation. [16] Cal. Civ. Proc. Code § 425.55 (b)(2). The definition also extends to attorneys. Id. § 425.55(b)(2). 17 As noted, Plaintiff did not respond to the Court’s March 13, 2023 Order to Show Cause. 18 However, the Court takes judicial notice1 of the other construction-related accessibility actions 19 filed by Plaintiff in this Court to find Plaintiff meets the definition of a high frequency litigant 20 under California law. Plaintiff commenced this action on July 14, 2022. (Doc. No. 1). A review 21 of this Court’s case management electronic case filing system (CM/ECF) for the twelve months 22 preceding Plaintiff’s commencement of this action reveals Plaintiff filed more than 10 complaints 23 in this district alone alleging a construction-related accessibility violation. See (1) Gilbert v. Next [24] 25 1 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not subject to reasonable dispute” because they are either “generally known within the trial court's territorial 26 jurisdiction,” or they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court may take judicial notice of a pertinent law or 27 regulations at any stage of the proceedings. Id.; see also National Agricultural Chemicals Assn. v. Rominger, 500 F.Supp. 465, 472 (E.D. Cal. 1980). The Court may take judicial notice on its own or at the 28 request of any party. Id. at 201(c). 1 Level Parts, Inc., Case No. 1:21-cv-01301-DAD-SKO (E.D. Cal. Aug. 27, 2021); (2) Gilbert v. 2 Abdulqawi, Case No. 1:21-cv-01304-AWI-SAB (E.D. Cal. Aug. 27, 2021); (3) Gilbert v. Rashid, 3 Case No. 1:21-cv-01328-JLT-HBK (E.D. Cal. Sept. 2, 2021); (4) Gilbert v. Muthana, Case No. 4 1:21-cv-01333-JLT-SKO (E.D. Cal. Sept. 2, 2021); (5) Gilbert v. Balahi, Case No. 1:21-cv5 01334-ADA-BAM (E.D. Cal. Sept. 3, 2021); (6) Gilbert v. Singh, Case No. 1:21-cv-01338-AWI6 HBK (E.D. Cal. Sept. 3, 2021); (7) Gilbert v. HBA Enterprises, Inc., Case No. 1:21-cv-013587 JLT-HBK (E.D. Cal. Sept. 10, 2021); (8) Gilbert v. K & R Beer & Wine LLC, Case No. 1:21-cv8 01360-DAD-BAM (E.D. Cal. Sept. 10, 2021); (9) Gilbert v. Harbor Freight Tools USA, Inc., 9 Case No. 1:21-cv-01363-AWI-SKO (E.D. Cal. Sept. 10, 2021); (10) Gilbert v. Shahi Associates 10 Incorporated, Case No. 1:21-cv-01375-ADA-SAB (E.D. Cal. Sept. 14, 2021); (11) Gilbert v. 11 Essmail, Case No. 1:21-cv-01376-JLT-BAM (E.D. Cal. Sept. 14, 2021); (12) Gilbert v. Rangel 12 Insurance Agency, Inc., Case No. 1:21-cv-01500-JLT-SKO (E.D. Cal. Oct. 8, 2021); (13) Gilbert 13 v. Liquor Lord Inc., Case No. 1:21-cv-01546-DAD-SKO (E.D. Cal. Oct. 10, 2021); (14) Gilbert 14 v. CBS Enterprises, Inc., Case No. 1:21-cv-01620-AWI-SKO (E.D. Cal. Nov. 5, 2021); and (15) 15 Gilbert v. Dollar Tree Stores, Inc., Case No. 1:21-cv-01640-EPG (E.D. Cal. Nov. 10, 2021) 16 If this Court was to exercise supplemental jurisdiction over Plaintiff’s Unruh Act and 17 Health and Safety Code Claims, it would permit Plaintiff to circumvent the requirements 18 California established for high frequency litigants and subvert California’s policy interests. Such 19 circumstances are exceptional and satisfies the first prong of the two-part inquiry. See Gilbert v. 20 Bola, 2023 WL 1931013 , at *3 (E.D. Cal. Feb. 10, 2023) (recommending first prong of the two21 part inquiry met because plaintiff was a high frequency litigant and permitting him to proceed on 22 his Unruh Act claim undermines California’s policy interests), findings and recommendation 23 adopted by 2023 WL 2392824 (E.D. Cal. Mar 7, 2023). 24 Turning to the second prong of the two-part inquiry, the undersigned finds there are 25 compelling reasons to decline supplemental jurisdiction over Plaintiff’s claims. Neither fairness 26 nor comity would be served if Plaintiff is permitted to proceed on his Unruh Act and Health and 27 Safety Code Claims. Arroyo, 19 F.4th at 1213-14 (finding that California’s policy goals were not 28 accomplished because of the shift of ADA-based Unruh Act cases to federal court and “the 1 procedural strictures that California put in place have been rendered largely toothless, because 2 they can now be readily evaded.”). California has expressed a “desire to limit the financial 3 burdens California’s businesses may face from claims for statutory damages” under these state 4 related statutes. Id. at 1206-07, 09 (internal quotation marks omitted). It is not fair to permit 5 Plaintiff to evade these state-imposed limitations and pursue state remedies in federal court. 6 Essentially, if the Court exercises supplemental jurisdiction over Plaintiff’s state-related claims, it 7 permits Plaintiff to use the federal courts as an “escape hatch” to avoid California’s heightened 8 pleading requirements. Such an action constitutes an affront to comity. See Vo, 49 F.4th at 1169, 9 1171-73. Further, allowing Plaintiff to have his state-related claims heard by this Court and 10 escape the special procedural requirements imposed by California on high frequency litigants, 11 places an additional strain on this already over-burdened Court. As noted by the Central District, 12 federal courts have now become the preference for high frequency litigants due to the federal 13 courts failure to enforce California’s procedural limitations. See generally Garibay v. Rodriguez, [14] 2019 WL 5204294 , at *4 (C.D. Cal. 2019) (noting 9x increase in construction related accessibility 15 actions in the Central District in 2019 compared with 2013). And Plaintiff suffers no prejudice 16 from the dismissal of his state-law claims because he may seek his state-related remedy in state 17 court. Id. Thus, the Gibbs values of comity and fairness weigh in favor of this Court declining to 18 exercise supplemental jurisdiction satisfying the second prong of the two-step analysis. 19 Finally, declining jurisdiction is consistent with other courts within this Circuit who have 20 declined to exercise supplemental jurisdiction over a plaintiff’s Unruh Act and Health and Safety 21 Code claims with similar circumstances. See Gilbert v. Doctor’s Choice Modesto LLC, 2023 WL 22 3045801 (E.D. Cal. Apr. 21, 2023); Gilbert v. Bola, 2023 WL 2392824 (E.D. Cal. Mar. 7, 2023); 23 Gilbert v. Bonfare Markets, Inc., 2023 WL 2392850 (E.D. Cal. Mar. 7, 2023); Gilbert v. Dabb 24 Liquor Incorporated, 2023 WL 3304147 (E.D. Cal. May 8, 2023); Gilbert v. Hensel Phelps 25 Const. Co., 2003 WL 22384773 (N.D. Cal. Sept. 30, 2003); Schutza v. Cuddeback, 262 F.Supp.3d 26 1025 (S.D. Cal. Apr. 10, 2017); Mason v. Clark Street Bread, LLC, 2022 WL 20273629 (C.D. 27 Cal. Nov. 29, 2022). And although Plaintiff obtained a clerk’s entry of default against 28 Defendants, the Court has not ruled on the merits of Plaintiff’s motion for default judgment. See 1 Arroyo, 19 F.4th at 1208, 1214 (finding Gibbs values did not support declining supplemental 2 jurisdiction when case was at later procedural stage after court granted plaintiff summary 3 judgment but declined to exercise supplemental jurisdiction). Notably, Plaintiff presents no 4 argument to warrant the district court exercising supplemental jurisdiction, and indeed his silence 5 to the Order to Show Cause is properly deemed a non-opposition to the district court declining 6 supplemental jurisdiction. (See Doc. No. 12 at 3-4 ¶ 3) (expressly stating “Plaintiff’s failure to 7 respond to the Order shall be deemed a non-opposition to the undersigned recommending the district 8 court decline to exercise supplemental jurisdiction over Plaintiff’s related state law claims.”). 9 FINDINGS AND RECOMMENDATION 10 In conclusion, based on the above, the undersigned finds the two-part inquiry under § 11 1367(c)(4) is satisfied. The first prong of the two-part inquiry is met because there are 12 exceptional circumstances that warrant the Court to decline to exercise supplemental jurisdiction, 13 namely preventing Plaintiff, a high frequency litigant, from avoiding California’s requirements 14 imposed on high frequency litigants and preserving California’s policy interests. The second 15 prong of the two-part inquiry is met because there are compelling reasons to decline to exercise 16 supplemental jurisdiction: the Gibbs values of fairness and comity weigh in favor of declining 17 supplemental jurisdiction; and, this decision to decline supplemental jurisdiction is being made 18 before the Court addresses the merits of Plaintiff’s case. 19 Accordingly, it is RECOMMENDED: 20 1. The district court decline supplemental jurisdiction of Plaintiff’s Unruh Act (Count II) 21 and Health and Safety Code (Count III) claims, 22 2. The district court dismiss without prejudice Plaintiff’s Unruh Act (Count II) and 23 Health and Safety Code (Count III) claims. 24 NOTICE TO PARTIES 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen (14) 27 days after being served with these findings and recommendations, a party may file written 28 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 1 | Findings and Recommendations.” Parties are advised that failure to file objections within the 2 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 3 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [4] > | Dated: _ August 15,2023 Wiha Th fares Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE