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Fontano v. Little Caesar Enterprises Inc.

November 3, 2010


The opinion of the court was delivered by: Present: The Honorable Gary Allen Feess



Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No.

Proceedings: (In Chambers)



On August 25, 2010, Plaintiff Willie Fontano ("Plaintiff") commenced this action against Defendant Little Caesar Enterprises, Inc. ("Defendant"), in Los Angeles Superior Court alleging disability discrimination on the basis of Defendant's failure to comply with various accessibility guidelines. (Docket No. 1, Not. of Removal, Ex. A [Compl.].) The complaint asserts causes of action under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51(b), (f), and seeks declaratory and injunctive relief and damages. (Compl. at 5--8.) Defendant was served with a copy of the summons and complaint on August 31, 2010. (Docket No. 1, Not. of Removal ¶ 2.) On September 9, 2010, Defendant removed the action to this Court under 28 U.S.C. § 1441(b), purportedly on the basis of this Court's federal-question jurisdiction. (Id. ¶ 4.)

On October 6, 2010, Plaintiff filed a motion to remand the action to state court for lack of federal subject matter jurisdiction. (Docket No. 6.) Specifically, Plaintiff contends that he "did not allege any federal cause of action in his complaint," nor did he "plead for relief or damages under the ADA [Americans with Disabilities Act] or any other federal statute . . . ." (Mem. at 2.) On October 18, 2010, the Defendant filed a notice of non-opposition to Plaintiff's motion to remand. (Docket No. 7.)

The motion being unopposed, the Court hereby GRANTS Plaintiff's motion to remand the case to the Los Angeles Superior Court.


In his motion to remand, Plaintiff also seeks attorneys' fees and costs incurred in filing the motion to remand. (Mem. at 3.) Under 28 U.S.C. § 1447(c), the Court may "require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal." 28 U.S.C. § 1447(c). "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). If "an objectively reasonable basis exists, fees should be denied." Id.

Although Plaintiff's causes of action all arise under California law, one of those causes of action-that for violation of California Civil Code section 51(f)-incorporates the federal Americans with Disabilities Act by reference. (See Compl. ¶¶ 22--23.) Specifically, section 51(f) provides that "[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section." Cal. Civ. Code § 51(f). Plaintiff contends that state law's incorporation of the ADA does not create federal-question jurisdiction and asserts that "[t]he Ninth Circuit Court of Appeals cannot be any clearer on this point: 'Federal-question jurisdiction over a state-law claim is not created just because a violation of federal law is an element of the state law claim.'" (Mem. at 2 (quoting Wander v. Kaus, 304 F. 3d 856, 859 (9th Cir. 2002).)

However, this issue is not as clear as Plaintiff suggests. In Wander, a plaintiff brought a claim for injunctive relief under the Americans with Disabilities Act and a claim for damages under the California Disabled Person's Act in federal court. Wander, 304 F.3d at 857. When plaintiff's claim for injunctive relief became moot, the court dismissed his state law claims for lack of subject matter jurisdiction, which plaintiff appealed. Id. at 857--58. The Wander court affirmed the district court's dismissal of plaintiff's state law claims, holding that "there is no federal-question jurisdiction over a lawsuit for damages brought under California's Disabled Person's Act, even though the California statute makes a violation of the federal Americans with Disabilities Act a violation of state law." Id. at 857 (emphasis added). Following the Supreme Court's decision in Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804 (1986), the Wander court explained that a state-law private action incorporating a federal standard does not "arise under" federal law where "Congress has intended that there not be a federal private action for violations of that federal standard." Id. at 859. The court further explained that "Congress intended that there be no federal cause of action for damages for a violation of Title III of the ADA" and that "[t]o exercise federal-question jurisdiction in these circumstances would circumvent the intent of Congress." Id. at 857.

Thus, the Wander court left open the question of whether a claim seeking injunctive relief under a state law incorporating the ADA would give rise to federal-question jurisdiction. The district court in Pickern v. Best Western Timber Cove Lodge Marina Resort, 194 F. Supp. 2d 1128 (E.D. Cal. 2002), concluded that federal-question ...

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