Page 1
Ninth Circuit:
Judge Can’t Shun Unruh Act Suit Without Notice, Hearing
By a MetNews Staff Writer
District Court judges may not decline to exercise supplemental jurisdiction over actions under California’s Unruh Civil Rights Act without giving the plaintiff an opportunity to argue against the claim being relegated to state court, the Ninth U.S. Circuit Court of Appeals declared on Friday.
Judge Lawrence VanDyke authored the opinion. It reverses the July 6, 2020 order by District Court Judge David O. Carter dismissing, sua sponte, John Ho’s claim under the Unruh Act.
“Because the district court erred by issuing a final order without providing Ho with notice of its intent to dismiss and an opportunity to respond, we reverse and remand,” VanDyke wrote.
Ho, who is confined to a wheelchair, claims that physical barriers impede his access to Pepe’s Mexican Restaurant in Brea. As is typical of plaintiffs suing in District Court under the federal Americans With Disabilities Act (“ADA”), Ho included an Unruh Act claim which allows, unlike the ADA, an award of damages—no less than $4,000 per violation or up to three times actual damages,
There has been a glut of ADA/Unruh Act cases brought in district courts, reckoned in 2018 as comprising 24 percent of the Central District’s civil caseload. The trend among district courts is to decline to exercise supplemental jurisdiction over the Unruh Act claims.
Carter’s Explanation
Explaining why he was so declining, Carter cited California legislation enacted in 2012 to curb the filing of baseless Unruh Act lawsuits based on disability discrimination claims. The legislation imposes heightened pleading requirements and “a high-frequency litigant” (who has filed at least 10 such actions in the previous 10-month period) must pay a supplemental filing fee of $1,000.
Carter based his order on 28 U.S.C. § 1367(c)(4) which provides that a district court may decline to exercise supplemental jurisdiction “in exceptional circumstances” where there are “compelling reasons for declining jurisdiction.” He declared:
“The Court finds that California’s enactment of the heightened standards and fees described above, combined with the immense burden of the ever-increasing number of combined ADA/Unruh cases filed in this district, presents ‘exceptional circumstances’ and ‘compelling reasons’ that justify the Court’s exercise of its discretion to decline supplemental jurisdiction over Plaintiffs Unruh Act claim…It is not…‘fair’ to defendants that plaintiffs may pursue construction-related ADA claims in this Court while evading the limitations California has imposed on such claims in state court.”
At oral argument on June 6, Ho’s lawyer, Pamela Tsao of the Ascension Law Group PC in Santa Ana, acknowledged that her client is a “high-frequency litigant” but said that Carter erred in assuming that he filed the action in federal court to skirt the heightened-pleading requirement, insisting that his complaint meets that state standard.
Two Circumstances
In his opinion reversing Carter’s order, VanDyke said that there are “only two circumstances in which a district court may dismiss for lack of subject matter jurisdiction without providing notice and an opportunity to respond.” Those circumstances, he elaborated, are where the issue of jurisdiction has already been argued or lack of jurisdiction appears on the face of the pleading, pointing out that “Ho’s claims do not fall within either circumstance.”
He acknowledged that the Ninth Circuit, in its Dec. 10, 2021 opinion in Arroyo v. Rosas, said:
“The district court did not abuse its discretion in concluding that this extraordinary situation threatens unusually significant damage to federal-state comity and presents “exceptional circumstances” within the meaning of § 1367(c)(4).”
VanDyke pointed out, however:
“But even assuming the district court could decline supplemental jurisdiction in this case, it also has discretion to retain supplemental jurisdiction over the state law claim.”
He added:
“The district court may be understandably reluctant to extend supplemental jurisdiction to combined ADA/Unruh Act cases for all the reasons given by the court, but the claims cannot be dismissed automatically without prior notice and an opportunity to respond.”
Also on July 6, 2020, Carter struck Ho’s motion for a default judgment without prejudice to a motion being filed no later than July 20 seeking such a judgment under the ADA, only. Ho filed such a motion on the last day allotted to him, and on Aug. 12, Carter granted injunctive relief and awarded $1,000 in attorney fees and costs.
Of the $1,000, $540 was for attorney fees—about 14 percent of the $3,960 requested,
In a memorandum opinion on Friday, the panel—comprised of VanDyke and Judges Milan D. Smith Jr. and Bridget S. Bade—reversed the award and remanded, saying:
“Ho’s billing records showed that his attorney worked 9.9 hours at a $400/hour rate, for a total of $3,960. The district court rejected this calculation and instead awarded $540 in fees, stating that ‘[t]he Court finds that the ten hours billed for this matter are unreasonable given the quality of the complaint and motion for default judgment.’ This was error because the district court failed to determine the reasonable number of hours for this matter, or why $540—as opposed to any other figure—was proper.”
The case is Ho v. Russi, 20-55915.
Copyright 2022, Metropolitan News Company