The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING DEFENDANT'S SPECIAL MOTION TO DISMISS AND MOTION TO STRIKE
Plaintiff David Singletary filed a complaint against 7-Eleven, Inc. ("Defendant") in Superior Court of the State of California on May 15, 2009. (Doc. No. 1, Compl.) On June 25, 2009, Defendant filed a notice of removal. (Doc. No. 1.) David Singletary, along with John Kelly and Jon Carpenter ("Plaintiffs") filed a first amended complaint on July 1, 2009, and a motion for leave to file a second amended complaint on July 15, 2009. (Doc. No. 7.) The Court granted Plaintiffs' motion for leave to amend on August 31, 2009. (Doc. No. 9.) On September 17, 2009, Defendant filed a special motion to strike and dismiss Plaintiffs' complaint pursuant to California Code of Civil Procedure section 425.16 and Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 10.) Plaintiffs filed a response in opposition to Defendant's motion to strike and dismiss on October 15, 2009. (Doc. No. 11.) Defendant filed a reply on October 20, 2009. (Doc. No. 13.) The Court exercises its discretion to decide this matter on the papers pursuant to Local Civil Rule 7.1(d)(1).
Plaintiffs, on behalf of themselves and a proposed class of similarly situated individuals, allege that Defendant has violated the Americans with Disabilities Act (ADA) and state law by engaging in a pattern of discrimination related to parking access barriers. (Second Amended Complaint ("SAC") ¶ 17.) Additionally, Plaintiffs allege that Defendant's pattern of discrimination extends to its use of "attorneys to engage in protracted litigation and defam[e] Plaintiff ADA bar to avoid ADA compliance." (Id.) Plaintiffs allege four claims under the ADA: (1) Denial of full and equal access; (2) failure to make alterations; (3) failure to remove architectural barriers; and (4) failure to modify practices, policies, and procedures. Plaintiffs also allege three claims under California law: (1) Denial of full and equal access; (2) failure to modify practices, policies, and procedures; and (3) violation of the Unruh Act.
Defendant alleges that Plaintiffs' lawsuit is a Strategic Lawsuit Against Public Participation ("SLAPP") and moves to strike it under California's Anti-SLAPP provision. (Doc. No. 10 at 7.) Defendant's allegation is based on its contention that "Plaintiffs' claims arise from 7-Eleven's retention of attorneys to defend itself in litigation." (Id. at 8.) Additionally, Defendant moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs' complaint because "Plaintiffs have no facts to support a plausible discrimination claim." (Id. at 7.)
I. Anti-SLAPP Motion to Strike
California's Anti-SLAPP Law was enacted to combat "a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Civ. Proc. Code § 425.16(a). To prevail on an Anti-SLAPP motion to strike, a moving party must make a prima facie showing that the lawsuit arises from "any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue." Id. § 425.16(b)(1); see U.S. v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 971 (9th Cir. 1999). Once this showing has been made, the burden shifts to the plaintiff to establish a "reasonable probability" that it will succeed on the merits. See Lockheed Missiles, 190 F.3d at 971.
Under section 425.16, there are four categories of protected speech: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." Cal. Civ. Proc. Code § 425.16(e).
Plaintiffs argue that an Anti-SLAPP motion to strike cannot be used to dismiss their claims under the ADA because section 425.16 does not apply to causes of action based on federal law. (Doc. No. 11 at 3.) In its reply brief, Defendant concedes that California's Anti-SLAPP law does not apply to Plaintiffs' federal claims. (Doc. No. 13 at 2.) As the Ninth Circuit recently acknowledged, "a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims." Hilton v. Hallmark Cards, 580 F.3d 874, 881 (9th Cir. 2009). Plaintiffs' first cause of action includes four claims under the ADA. Since all four claims are based on federal law, the Court may not entertain Defendant's Anti-SLAPP motion to strike. Accordingly, Defendant's motion to strike is denied as to Plaintiffs' federal ADA claims.
With respect to the state law claims, the Court must first determine whether Defendant has made a prima facie showing that Plaintiffs' claims arise from Defendant's "right of petition or free speech." Cal. Civ. Proc. Code § 425.16(b)(1); Lockheed Missiles, 190 F.3d at 971. Plaintiffs allege a pattern of discrimination based on Defendant's failure to remove barriers and its use of attorneys to engage in protracted litigation. (SAC ¶ 17.) These allegations are incorporated into each of Plaintiffs' state law claims. Defendant argues that its use of attorneys to defend itself in litigation is a protected activity, and that Plaintiffs' allegations place their claims squarely within California's Anti-SLAPP statute. (Doc. No. 10 at ...