Happy new year everyone! Today’s blog entry deals with the question of what happens when a state passes all kinds of laws to cut down on serial plaintiffs who then flood the federal courts, which do not have the same restrictions, with similar cases. The case of the day is Arroyo v. Rosas, here. A decision from the Ninth Circuit Court of Appeals decided that on December 10, 2021. As usual, the blog entry is divided into categories and they are: background; facts; court’s reasoning that the lower court should not have denied supplemental jurisdiction; court’s reasoning that the lower court should not have denied supplemental jurisdiction BUT; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.





  1. The California antidiscrimination law, the Unruh Act, contains a specific provision stating that a violation of the right of any individual under the ADA is also a violation of the California law. Unlike the ADA, the Unruh Act allows for a person to recover actual damages as well as any amount that may be determined by a jury up to a maximum of three times the amount of actual damages but in no case less than $4000.
  2. In 2012, the California legislature in an effort to restrict the number of cases being filed by serial plaintiffs instituted several reforms, including: 1) prohibiting upfront requests for money and prelitigation demand letters sent by attorney to business owners; 2) imposing heightened pleading requirements on construction related accessibility claims; and 3) requiring that any such complaint be verified by the plaintiff.
  3. In 2015, the California legislature imposed additional requirements on a high-frequency litigant, including: 1) the plaintiff must disclose he or she is a high-frequency litigant; 2) the plaintiff must disclose how many complaints he or she has filed in the prior 12 months; 3) the plaintiff must state the reason he or she was in the geographic area of the defendant’s business; and 4) the plaintiff must state why he or she desired to access the defendant’s business. A high-frequency litigant is someone defined as a plaintiff who has filed 10 or more complaints alleging a construction related accessibility violation within the 12 month period immediately preceding the filing of the current complaint alleging a construction related accessibility violation. Finally, the California legislature imposed a $1000 additional filing fee over and above the ordinary civil filing fees for each new case filed by a plaintiff who is a high-frequency litigant.
  4. As a result of the California legislation, serial plaintiffs moved their cases to the federal courts in a big way. By the first six months of 2019, 24% of civil cases filed in the central district of California where ADA construction related accessibility claims that also alleged violations of the Unruh Act. By 2019, the number of state complaints had dropped so dramatically that the ratio of federal to state complaints was 10 to 1 (311 state complaint versus 3211 federal complaints).





  1. The plaintiff filed the action in the U.S. District Court for the Central District of California on July 23, 2018. Within the preceding 12 months, he had filed at least 38 cases thereby classifying him as a high-frequency litigant had he filed the case in California state courts.
  2. After a year from filing the action, plaintiff moved for summary judgment. Defendant proceeded pro se and unsuccessfully sought an extension of time to file her opposition to the summary judgment motion. Defendant thereafter failed to file any response by the court’s deadline. So, in August 2019, District Court granted plaintiff’s summary judgment on the ADA claim but declined jurisdiction over the state law claim. Plaintiff appealed the court’s refusing to take on the state law claim after granting summary judgment.



Court’s Reasoning That the Lower Court Should Not Have Denied Supplemental Jurisdiction


  1. The only question is whether exceptional circumstances under 28 U.S.C. §1367(c)(4) exists.
  2. Deciding whether exceptional circumstances exist involves the lower court: 1) articulating why the circumstances of the case are exceptional; and 2) considering what best serves the principles of economy, convenience, fairness, and comity underlying the pendent jurisdiction doctrine.
  3. The recent combination of several California law rule changes combined with how the ADA goes about determining whether architectural barriers are discriminatory clearly threatens to have a significant adverse impact on federal-state comity as now federal court is very attractive for filing claims and state court is not, particularly for serial litigants.
  4. Due to the shift of cases to the federal courts, California is simply unable to accomplish the legislature’s goal of simultaneously providing damages relief for ADA violations while limiting the financial burdens California businesses face for claims of statutory damages under the Unruh Act. In short, the procedural structures of California have now been rendered largely toothless.
  5. Retention of supplemental jurisdiction over ADA-based Unruh Act claims threatens to substantially thwart California’s carefully crafted reforms and to deprive the state courts of their critical role in effectuating the policies underlying those reforms.



Court’s Reasoning That the Lower Court Should Not Have Denied Supplemental Jurisdiction



  1. Given the very late stage District Court declined supplemental jurisdiction in this case, the District Court should have retained jurisdiction over the plaintiff’s Unruh Act claim and therefore, abused its discretion in dismissing that claim.
  2. From the perspective of judicial economy and convenience, it makes no sense to decline jurisdiction as the District Court did over a pendent state law claim already decided by the court. Under the plain language of the Unruh Act, a violation of the ADA is automatically, without more, a violation of the Unruh Act. Accordingly, the District Court’s ADA ruling already established that the defendant violated the Unruh Act, and it identified the specific respects in which the defendant did so.
  3. The District Court waited too late in the litigation process to invoke the interest of comity. If the District Court had declined supplemental jurisdiction over plaintiff’s Unruh Act claim at the outset of litigation, it might then still have been possible to further California’s interest in channeling Unruh Act damages claim through the imposition of heightened pleading requirements and a substantial upfront filing fee. However, once the District Court granted summary judgment upholding the merits of plaintiff’s ADA claim and by implication its Unruh Act claim, it was no longer possible to satisfy the interests underlying California’s various devices for prescreening of Unruh Act claims. Having already granted summary judgment in plaintiff’s favor, the District Court by that point had identified the specific access barrier barriers the individual encountered, the way in which the barrier denied the individual equal user access, and the particular date in which the claimant encountered the specific access barrier.
  4. When the court granted summary judgment, it knew the plaintiff was a high-frequency litigant. While the lower court would not have been aware of that necessarily at the beginning of the litigation, the defendant could have explored those points in discovery.
  5. There is no point in exploring the high-frequency of the litigant when the merits of the claim already have been litigated and resolved. At that point, the only thing accomplished by sending the Unruh Act claim back to state court, other than burdening the state court with pointless work, would be to impose a fee on the plaintiff for the $1000 special filing fee for high-frequency litigants as well as the other standard filing fees.
  6. There is no sense in which the district court’s dismissal can be said to further the interest of ensuring federal courts are not burdened with combined ADA/Unruh Act cases that would not survive California’s upfront screening mechanism. After all, any burden from this particular litigation has already occurred, and all that remains is a relatively ministerial task of entering judgment on the Unruh Act claim. In short, it is simply too late to undo the now sunk costs already incurred by litigating this matter to its inevitable conclusion.





  1. Not all states have state antidiscrimination laws. For example, Georgia, with rare exceptions, doesn’t. If you are in a state with an antidiscrimination law containing heightened pleading requirements v. the ADA, this case is something you very much want to keep in mind.
  2. Missing court deadlines is never a good idea.
  3. Check your state law to see just how broad the additional pleading requirements are on a serial litigant. For example, here we are only talking about architectural barriers and not barriers that exist when someone tries to access an Internet site.
  4. Moral of the story is that every lawyer on the defense side in California, or in a state with similar rules, defending an architectural barriers case needs to immediately move to remand the Unruh Act claim to state court when it is filed in federal court. I realize that is a bit of a reversal because it is generally defendants prefer to be in federal court and not plaintiffs. You might even try removing the entire case back to state court and have the state take the ADA claim with supplemental jurisdiction. After all, state courts do decide ADA claims with some frequency, with the variability of that depending upon the jurisdiction.
  5. Part of the problem is that when it comes to architectural barriers, the ADA is a strict liability statute if the applicable Americans with Disabilities Act Architectural Guidelines, ADAAG, is not complied with. This is an issue that my colleague, Richard Hunt, has written about with great frequency in his blog, access defense, which is in my blogroll.
  6. Since the ADA is a strict liability statute when it comes to the applicable ADAAG guidelines, an argument can be created that a defense attorney, in California or in a similar state, who fails to file early in the litigation a motion to remand a serial litigant architectural barrier claim might even be committing legal malpractice (see this blog entry for a discussion of legal malpractice involving ADA matters).