Legal vic 2


194 F.Supp.2d 1128, 23 NDLR P 185(Cite as: 194 F.Supp.2d 1128)

United States District Court,
E.D. California. Brenda  PICKERN, Plaintiff,
INA RESORT,  et al., Defendants.

No. CIV.S-001637 WBS/DAD.
April  l, 2002.

Disabled individual brought action alleging that hotel owner and operator of restaurant and  marina violated Title III of Americans With Disabilities Act (ADA) and various state statutes. Hotel owner moved for summary judgment on ADA claim, and hotel owner and restaurant owner both moved to dismiss remaining state claims. The District Court, Shubb, J., held that court lacked federal question  jurisdiction  over state  law damages claims.

Motions granted.
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l 70Blll Federal  Question Jurisdiction
l 70BIJ[(C) Cases Arising Under Laws of the United States
170Bk2 l 9 Civil Rights and Elective Franchise, Laws  Relating to
I70Bk221 k. Particular Cases and Questions.  Most Cited Cases
District court lacked federal question jurisdiction over state law damages claims brought against hotel owner and restaurant operator based on violations of Title lII of ADA, where ADA claims had been dismissed as moot. Americans with Disabilities Act of 1990, § 308(a)(2), 42 U.S.C.A. § 12188(a)(2).
131 Federal Courts 170B C;;:,14.1

170B  Federal Courts
l 708.l Jurisdiction  and Powers in General l 70Bl(A) In General
1.70Bk 14 Jurisdiction of Entire Controversy;  Pendent Jurisdiction
l 70Bkl4.l k. In General. Most Cited
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Ill Federal Courts 170B C;;:>221

170B Federal Courts
170B111 Federal Question Jurisdiction
l 70BJU(C) Cases Arising Under Laws of the United States
l 70Bk2 l 9 Civil Rights and Elective Franchise, Laws Relating to
l 70Bk22 l k. Particular Cases and Questions.  Most Cited Cases
Fact that ADA violation may  serve  as  element of state law claim does not automatically confer federal question jurisdiction, Americans with Dis­ abilities Act of 1990, § 2 et seq., 42 U.S.C.A.  § 12101 et seq.
[2]Federal Courts 170B C;;:>221

170B Federal Courts
Factors for court to consider  in deciding  whether to dismiss supplemental state claims include economy,    convenience,    fairness,    and    comity.   28
U.S.C.A.  § l367(c).*1129 Thomas Edward Frankovich,Law Offices of Thomas E. Frankovich, San Francisco, CA, for Plaintiff.Catherine Mary Cort'ee, Cook Brown and Prager, Sacramento, CA, Mark  R.  Mittelman,  Law  Offices of Mark Mittelman, Walnut Creek, CA, for Defend­ ants.

Plaintiff alleges that  defendants violated  Title III of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 el seq., and various California statutes. Defendants Best Western Timber Cove Lodge, Robert Maloff, Lisa Maloff, George Karadanis and Elise Karadanis (collectively, the "Timber Cove defendants") now move for summary judgment on the ADA claim on the grounds that it is moot, and request that  the court dismiss the remaining state claims. Defendant First Resorts Hotel and Restaurant Services of Lake
Tahoe ("First Resorts") moves to dismiss the case, also  on  the  grounds  that  it  is  moot.1N  1  Plaintiff
agrees that her ADA claim is moot, but argues that this court should retain jurisdiction over the state claims.

FN I. Because First Resorts has submitted materials outside of the pleadings in sup­ port of its motion to dismiss, (See Mozzo­ chi Deel.), the court treats the motion to dismiss as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. See Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir.1996) ("A motion to dis­ miss ... must be treated as a motion for summary judgment ... if either party to the motion to dismiss submits materials out­ side the pleadings ... and if the district court relies on those materials").

I.Factual and Procedural Background
Plaintiff is a person with disabilities who re­ quires a wheelchair for mobility. (Pickern Deel. ,i 1.) The Timber Cove Defendants allegedly own and operate the Best Western Timber Cove Lodge in Lake Tahoe ("Timber Cove"). First Resorts leases space from the Timber Cove defendants, including the restaurant formerly known *1130 as "Angie's Cafe," the Marina boathouse, and a wedding chapel. (Mozzoehi Decl.1[12, 3.)

After encountering a number of barriers to access at the restaurant, marina, and in the hotel generally while visiting Timber Cove, plaintiff sued defendants.  Her lawsuit seeks  injunctive  relief under the ADA, and damages under the California Disabled Persons Act, Cal.  Civ.Codc  §  54  et  seq., the Unruh Civil Rights Act, Cal. (iv.Code  § 51, et seq., and  California  Health  &  Safety Code§  19955, et seq.

Since plaintiff initiated her lawsuit, the Timber Cove defendants have made numerous alterations and repairs to the hotel, restaurant, and marina in an effort to remove the barriers to access identified by plaintiff. On December 21, 2001, the Timber Cove defendants filed a motion for summary judgment arguing, among other things, that plaintiffs claim for injunctive relief under the ADA was moot. Al­ though the Timber Cove defendants had remedied most of plaintiffs concerns, this court denied the motion on the grounds that a triable issue of fact existed as to whether barriers to access remained in the bathrooms of rooms 315 and 318 at Timber Cove. See Pickern v. Best Western Timber  Cove Lodge,  No.  Civ. S 001637  WBS/DA, 2002 WL
202442 (E.D.Cal. Jan 15, 2002)  (hereinafter "Pickern I "). Specifically, there was a disputed, material question of fact as to whether there was adequate turning space in these bathrooms, and whether removal of this  barrier  would  be  readily  achievable by taking out the existing bathtubs and installing prefabricated  rollin  showers.  See id,

After  this  courts  ruling,  the  Timber  Cove  defendants removed the bathtubs in rooms 315 and 318, installed prefabricated rollin showers, and again moved for summary judgment on the ground that Jaintiffs ADA claim is moot. (Maloff Deel. ,113,4). N  2 At approximately  the same time,  First Resorts filed a motion to dismiss (properly characterized as a motion for summary judgment) on the grounds that all of plaintiffs concerns regarding the marina and restaurant have been addressed and corrected, and are therefore moot. (See Mozzochi De­ el. , 6.)FN2. The Timber Cove defendants also brought a motion for reconsideration of this court's order denying summary judgment.  Because  the  Timber  Cove defendants are entitled to summary judgment for the reasons set forth in the body of this order, the motion for reconsideration shall be denied as moot.

Plaintiff concedes, as she must, that defendants' latest remedial efforts have rendered her  ADA claim for injunctive relief moot. (Pl's Opp'n at 3.) ("[P]laintiff is satisfied that her equitable claims have been resolved in their entirety."); see J?riends of the Earth, Inc. v.  Laidlmv Environmental Services,   528   U.S.  167,   190,   120  S.Ct.  693, 145 L.Ed.2d 610 (2000) (a claim for injunctive relief is moot if "it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur"). Therefore,  the only issue  before the court is whether to retain jurisdiction over the state law claims. In its motion to dismiss, First Resorts discusses the merits of  plaintiffs  request for attorneys' fees. Plaintiff has not brought  a  motion  for  attorneys fees,  and therefore the issue is not before the court.


A.Federal Question Jurisdiction

Plaintiff contends that this court has federal question jurisdiction over her state claims for dam­ ages. A court has federal question jurisdiction over a claim if: 1) federal law creates the cause of action; 2) under the artful pleading doctrine, the plaintiffs state law claims should be recharacterized *l 131 as federal claims; or 3) one or more of the state law claims necessarily turns on the construction of a substantial, disputed federal question. Rains v. Criterion Systems, Inc., 80 F.3d 339,  343 (9th Cir.1996).

Plaintiffs contention is that federal question jurisdiction exists because her state law claims turn on a "substantial, disputed federal question" of whether defendants violated the ADA. After the ADA  was passed in 1990, the California Disabled Persons Act and the Unruh Civil Rights Act were amended to provide that a violation of the ADA constitutes a violation of their provisions. See Cal. Civ.Code 54.l(d); Cal. Civ.Code § 51(1). Thus, a plaintiff whose rights are violated under the ADA may now seek damages under the California statutes. Boemio v. Love's Restaurant, 954  F.Supp. 204, 20809 (S.D.Cal.1997). Plaintiff argues that after the incorporation of the ADA into state law, federal   question  jurisdiction   exists  any  time an
ADA violation provides the only basis for the state .FN4 claim.

FN4. State claims may be premised on violations of the California Building Code, as well as violations of the ADA. See Cal. Civ.Code § 54; Cal. Health & Safety Code§ 19955; Cal.Code Regs Title 24  § 1134B.l,2.  However,  some  state  claims may be based exclusively on ADA viola­ tions. The ADA requires existing  facilities to remove barriers to access so long as removal is readily achievable, regardless of whether  the facility   has  been  altered,  42 U.S.C. § 12182(b)(2)(A)(iv). Because the California Building Code does not require facilities that predate its enactment to comply with its regulations unless and until the facility is altered, see Cal.Code Regs Title 24 § l 134B.1,2, its requirements are less stringent than those of the ADA. Therefore, existing facilities that have not been altered may violate the ADA but not the California Building Code. Timber Cove, which was constructed in 1973 and never altered, is such a facility.

Plaintiff initially raised this argument in connection with the Timber Cove defendant's first motion for summary judgment. In ruling on that motion, this court found that there was federal question jurisdiction over the state claims. It was not necessary for the court at that time to address the is­ sue of federal question jurisdiction over the state claims, however. Because the Timber Cove defendants' initial motion for summary judgment on the  ADA claim was denied, the state  claims  would have remained in the case on either supplemental jurisdiction or federal question jurisdiction. Any pronouncement this court made in that previous order concerning federal question jurisdiction  over the state claims is therefore dictum. Now that the issue is squarely before the court, it is clear that the court does not have federal question jurisdiction over the state law claims.

[l] The fact that an ADA  violation  may serve as an element of a state law claim does not automatically confer federal question jurisdiction. Unlike the California Disabled Persons Act and the Unruh Civil Rights Act, both of which provide damages for violations, the only remedy  available to a private plaintiff under the ADA is injunctive relief. 42 U.S.C. § !2!88(a)(2). In Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.  804, 814, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), the Supreme Court reasoned that a determination by Congress that there should be no federal remedy for the violation of a federal statute "is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently 'substantial' to confer federalquestion jurisdiction." Id. Merrell Dow’s  reasoning   was  extended   to  a case brought under the ADA in Jairath v. Dyer, l 54 F.3d 1280, 1281 (I Ith Cir.1998). There, the plaintiff filed a suit for damages in state court under a state *1132 statute that incorporated the ADA. Id. at 1281. The defendant removed the case to federal court on the ground that it involved a substantial question of federal law. Id. The district court denied the plaintiffs motion to remand  and  later granted the defendant's summary judgment motion. Id.

The Eleventh Circuit concluded that the district court erred in denying the remand motion, reasoning that the court did not have federal question jurisdiction over plaintiffs state suit. The appellate panel noted that the plaintiff could not have pursued injunctive  relief  under the  ADA  because he did not have standing, given that he did not express an  intention  to seek  the  defendant's services  in  the future. Id. at 1283 n. 7. Therefore, the only remedy available to the plaintiff was a private damage  remedy which was not available under the  ADA.  The court reasoned that Congressional intent  not  to provide a damages remedy for an ADA violation suggests that Congress did not consider that such a violation would create a "substantial" federal  question sufficient to  confer  federal  jurisdiction.  Id. (citing   Merrell   Dow,  478  U.S.  at  814, 106 S.Ct.3229).

In a recent  Northern  District  of California  case in which plaintiff is a party, Judge Illston applied Jairath  and  Merrell  Dow  to  circumstances   similar to those presented here. Pickern v, Stanton's Restaurant & Woodsman, No. C 012112 SI, 2002 WL 1438 I 7 (N.D.Cal. Jan. 29, 2002) (hereinafter "Pick­ ern II "). The parties in that case settled the ADA claim, leaving the state claims for damages and attorney's fees outstanding. The court concluded that allegations of ADA violations as an  element  of  a state claim for damages were insufficient to support federal question jurisdiction. See id. 2002  WL 143817,  at *3.[2]Judge Illston's analysis in Pickern 11 is per­ suasive. Federal courts clearly have a strong interest in resolving disputed issues of federal law. See Merrell Dow, 478 U.S. at 828, 106 S.Ct. 3229 (Brennan, J., dissenting) ("(T]he possibility that the federal law will be incorrectly interpreted in the context of adjudicating cases involving federal questions [incorporated into state law]  implicates the concerns that led Congress to grant the district courts power to adjudicate federal questions ...."). However, questions of damages will often involve issues wholly unrelated to the interpretation of the ADA. Damages for emotional distress, for example, require testimony regarding the effect of the defendant's actions on the plaintiffs mental and emotional health. Daily deterrence damages, which have been recognized by this court and others as a valid  measure  of  damages  under  the  ADA,  see Loskot  v.  Lulu's  Restaurant,  No.  Civ. S001497 WBS  PAN  (E.D.Cal Nov.  15,  2000);  Arnold v. United Artists Theatre Circuit, h1c., 866 F.Supp. 433 (N.D.Cal.1994), require plaintiffs to prove that they were deterred on a particular occasion from at­ tempting to attend a place of public accommodation. See id. This inquiry involves as much an examination of the plaintiffs mental state as it does an examination of the extent of the alleged ADA violations. Thus, the question of damages becomes the tail that wags the dog of the ADA issues. Though the ADA issues may be disputed, they are not "substantial" enough in the context of a claim for images  to  confer  federal  question  jurisdiction.

FN5. State law provides for injunctive re­ lief as well as damages, see Cal. Civ.Code
§ 52.l(b), and it is possible for a state law claim for injunctive relief to be premised solely on a violation of the ADA. Such a claim would be no different from a federal ADA claim. Federal question jurisdiction must exist in those circumstances. Simply by incorporating the ADA into state law, state legislatures cannot divest the federal courts of original jurisdiction over state claims that are, for all intents and purposes, federal ADA claims. State claims  for damages, on the other hand, are not identical to federal ADA claims for injunctive relief. Thus, federal courts would have original jurisdiction over state claims for injunctive relief, and supplemental jurisdiction over state claims for damages. This observation, though theoretically interesting, is of little practical consequence. A plaintiff would be unlikely to bring a state claim but not a federal claim for injunctive relief premised on ADA violations, In addition, if a plaintiff brought both federal and state claims for injunctive relief, and the federal claim was dismissed for mootness or lack of standing, the same would   be  true  for  the  state  claim.  The question of original jurisdiction over  a state claim for injunctive relief is therefore unlikely to arise. *1133 Moreover, this court has serious concerns about the constitutional implications of adopt­ ing plaintiffs view that state damages claims based on the ADA create federal question jurisdiction. Such a rule would have the impermissible effect of allowing state legislation to expand the jurisdiction of the federal courts. See Bw:ford v. Sun Oil Co., 319 U.S.  315, 317,  63 S.Ct.  1098,  87 L.Ed. 1424(1943)(stating that a state legislature "may  not make a federal district court, a court of original jurisdiction, into an appellate tribunal or otherwise expand its jurisdiction"). The court accordingly concludes that it has supplemental, not federal question, jurisdiction over the state law claims for dam­ ages. See 28 U.S.C. § l 367(a).

B.Supplemental  Jurisdiction
Under 28 U.S.C. § l367(c)(3), the court has discretion to dismiss state law claims when it has dismissed all of a plaintiffs federal claims. Plaintiff argues that this court should retain jurisdiction over the state claims because requiring plaintiff to refile in state court will be inconvenient and  will delay the case unnecessarily[3]Factors for the court to consider in deciding whether to dismiss supplemental state claims include economy, convenience, fairness, and comity. lmagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1309 (9th Cir.1992) "[l]n the usual case in which federal law claims are eliminated before trial, the balance of factors ... wi11 point toward declining to exercise jurisdiction over the remaining state law claims." Reynolds v. County of San Diego, 84 F.3d I I62, 1 I7I (9th Cir.1996) overruled on other grounds by Acri v. Varian Assoc.'s, inc., 114 F.3d 999, 1000 (9th Cir.1997). Some circuits have held that a court may retain jurisdiction over state law claims if extraordinary or unusual circumstances justify their retention. See, e.g., Wentzka v. Gellman, 991 F.2d 423,425 (7th Cir.1993); Musson Theatrical.  Inc. v. Federal Express Corp,, 89 F.3d 1244, 1255 (6th Cir.1996).While the court recognizes that litigation of a new suit in state court may create some inconvenience to plaintiff, plaintiff has made no showing of extraordinary or unusual circumstances. Accordingly, the court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367 as to the remaining state law claims.


(1)the Timber Cove defendants' motion for summary judgment, and First Resorts' motion to dismiss (which is properly characterized as  a  motion for summary judgment) be, and the same hereby  are, GRANTED;

(2)the remaining state claims are DISMISSED pursuant  to 28 U.S.C.  § !367(c);

(3)the Timber Cove defendants' motion for re­ consideration of this court's order denying the initial summary judgment motion be, and the same hereby is, DENIED as moot.

Pickern v. Best Western Timber Cove  Lodge  Mar­ ina Resort
194 F.Supp.2d I 128, 23 NDLR P 185 END OF DOCUMENT


eastern district