United States District Court, S.D. California
PETER STROJNIK, Sr. Plaintiff,
EVANS HOTELS, LLC dba THE LODGE AT TORREY PINES, Defendant.
ORDER GRANTING RULE 12(B)(6) MOTION TO DISMISS AND
DENYING RULE 12(F) MOTION TO STRIKE [ECF NO.
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
First Amended Complaint (“FAC”), pro se
Plaintiff Peter Strojnik alleges that he suffers from a
physical impairment that affects his mobility, and
“requires compliant mobility accessibility features at
places of public accommodation.” (ECF No. 3
(“FAC”) ¶ 4.) Plaintiff viewed the website
for Defendant Evans Hotels, LLC dba The Lodge at Torrey Pines
(“Evans”), a hotel based in La Jolla, California.
(Id. ¶¶ 5, 11.) To “Plaintiff's
knowledge, ” the hotel does not comply with federal or
state laws as they concern “Plaintiff's
disability.” (Id. ¶¶ 10-11.)
Plaintiff “is deterred from visting the hotel based
on” what Plaintiff knows, but “intends to visit
Defendant's Hotel” when it becomes compliant.
(Id. ¶¶ 11-12.) Plaintiff raises claims
for: (1) violation of the Americans with Disabilites Act
(“ADA”), 42 U.S.C. § 12101 et seq.
and implementing regulations, (2) violation of the California
Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 52,
(3) violation of the California Disabled Persons Act
(“CDPA”), and (4) common law negligence.
(Id. ¶¶ 13-64.)
moves to dismiss Plaintiff's CDPA and negligence claims
pursuant to Rule 12(b)(6). (ECF No. 6.) Evans also moves to
strike aspects of the FAC under Rule 12(f). (ECF No. 6.)
Plaintiff has responded. (ECF No. 8.) In his response,
Plaintiff purports to dismiss his CDPA and negligence claims
under Rule 41(a)(1). Because Rule 41(a)(1) “does not
allow for piecemeal dismissals, ” Hells Canyon
Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687
(9th Cir. 2005), the Court construes Plaintiff's response
as a non-opposition to dismissal and dismisses without
prejudice Plaintiff's CDPA and negligence claims. This
dismissal renders moot Evans's request to strike
Plaintiff's request for negligence claim punitive
damages. Plaintiff disputes Evans's remaining requests to
strike. (ECF No. 8.) These issues can be decided on the
present briefing and without oral argument. For the reasons
herein, the Court denies Evans's Rule 12(f) motion to
motion by a party, the court may strike “any
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter” from any pleading.
Fed.R.Civ.P. 12(f). “‘Immaterial' matter is
that which has no essential or important relationship to the
claim for relief or the defenses being pleaded.”
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th
Cir. 1993) (citation omitted), rev'd on other
grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
“Impertinent” matter includes “statements
that do not pertain, and are not necessary, to the issues in
to strike are generally regarded with disfavor because of the
limited importance of pleading in federal practice, and
because they are often used as a delaying tactic.”
Neilson v. Union Bank of Cal., 290 F.Supp.2d 1101,
1152 (C.D. Cal. 2003). A Rule 12(f) motion should only be
granted when it is “clear that [a matter] can have no
possible bearing on the subject matter of the
litigation.” Ill. Nat'l Ins. Co. v. Nordic PCL
Constr., Inc., 870 F.Supp.2d 1015, 1039 (D. Haw. 2012).
A court may not resolve any disputed or substantial factual
or legal issues. Whittlestone, Inc. v. Handi-Craft
Co., 618 F.3d 970, 973 (9th Cir. 2010). If there is any
doubt whether the allegations might bear on an issue in the
litigation, the court should deny the motion. In re
2TheMart.com, Inc. Sec. Litig., 114 F.Supp.2d 955, 965
(C.D. Cal. 2000). Ultimately, the decision whether to grant a
Rule 12(f) motion is in the district court's discretion.
Cortina v. Goya Foods, Inc., 94 F.Supp.3d 1174, 1182
(S.D. Cal. 2015).
remaining issues for resolution in Evans's motion to
strike are: (1) Plaintiff's allegation that he brings
this action as a “private attorney general, ”
(FAC ¶ 7), (2) Plaintiff's request for nominal
damages under the ADA, (id. at 4), (3)
Plaintiff's request for attorney's fees,
(id. at 6), and (4) Plaintiff's request for an
order of business closure, (id. at 6, 7). Evans
contends that these requests should be stricken as
“impertinent” and “immaterial.” (ECF
No. 6-1 at 7.) The Court disagrees.
Court first rejects Evans's request to strike
Plaintiff's self-characterization that he is a
“private attorney general” in this suit.
(Id.) Evans contends that the statutes on which
Plaintiff relies in this case “do not provide for any
‘private attorney general' status of a
plaintiff.'” (Id.) Evans's contention
is based on a fundamental misunderstanding of what the phrase
“private attorney general” means. It is not a
statutorily-defined status, but rather is a term merely used
to describe the role of a private plaintiff who seeks to
vindicate the antidiscrimination policy Congress codified
into the ADA. See Bruce v. City of Gainesville, 177
F.3d 949, 952 (11th Cir. 1999) (“In Title VII cases as
well as cases under the ADA, the enforcement of civil rights
statutes by plaintiffs as private attorneys general is an
important part of the underlying policy behind the law.). The
Ninth Circuit has, of course, stated that the ADA is not
“an open-ended private general statute.”
Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939,
953 (9th Cir. 2011) (en banc). This statement, however, does
not warrant striking Plaintiff's self-characterization.
“No administrative process exists to ensure ADA
compliance; rather, ‘private attorney general'
suits are ‘the most common form' of ADA
enforcement.” Larkin v. Winn- Dixie Stores,
Inc., No. 6:15-cv-773-Orl-37KRS, 2015 WL 4496172, at *1
(M.D. Fla. July 23, 2015) (quoting Gomez v. Dade Cty.
Fed. Credit Union, 610 Fed. App'x 859, 861 n.1 (11th
Cir. 2015)); Goodman v. TattonEnters., No.
10-60624-CIV- ZLOCH/ROSENBAUM, 2012 WL 12540024, at *25 (S.D.
Fla. June 1, 2012) (“[A]s long as [an ADA] plaintiff
files all [his] suits in good faith, that plaintiff no less
fulfills the role of the private attorney general that
Congress envisioned than a plaintiff who files only a single
suit seeking relief under Title III.”). Thus, there is
nothing impertinent, nor immaterial about an ADA plaintiff
referring to himself as a private attorney general.
Evans's request to strike the reference for the
additional reason that Plaintiff was never “personally
subjected” to discrimination at Evans's hotel fails
because Evans merely disputes Plaintiff's factual
allegations and their legal significance. See
Chapman, 631 F.3d at 953 (“An ADA plaintiff must
show at each stage of the proceedings either that he is
deterred from returning to the facility or that he intends to
return to the facility and is therefore likely to suffer
repeated injury.”). Such a dispute is not a proper
basis for striking an allegation.
the Court rejects Evans's request to strike
Plaintiff's request for nominal damages under the ADA
because a Rule 12(f) motion to strike is not the proper
vehicle for this request. (ECF No. 6-1 at 7-8.) Evans
contends that an ADA plaintiff may only seek
“injunctive relief” and thus cannot recover
nominal damages as a matter of law. (Id. (citing 42
U.S.C. § 12188(a)(1)).) Plaintiff disputes this argument
by pointing to Bayer v. Neiman Marcus Group, Inc.,
861 F.3d 853, 874 (9th Cir. 2017), a case in which the Ninth
Circuit determined that nominal damages are available under a
different ADA provision that also provides for equitable
relief. The Court, however, denies Evans's request to
strike for the simple reason that “Rule 12(f) does not
authorize district courts to strike claims for damages on the
ground that such claims are precluded as a matter of
law.” Whittlestone, Inc. v. Handi-Craft Co.,
618 F.3d 970, 975 (9th Cir. 2010). Instead, such a challenge
must be raised in a motion to dismiss or a motion for summary
judgment. Id. Given the posture of this case, the
ultimate merits of whether nominal damages are available
under the ADA will need to be decided through a motion for
summary judgment, if at all, not the present motion.
Evans's request to strike Plaintiff's requests for
attorney's fees is not warranted. (ECF No. 6-1 at 8.)
Evans's request overstates the importance of
Plaintiff's pleading of a request for attorney's
fees. Plaintiff's mere pleading of a prayer for
attorney's fees does not entitle him to such fees.
See Boink Sys., Inc. v. Las Vegas Sands Corp., No.
2:08-cv-00089-RLH-GWF, 2008 WL 11389198, at *6 (D. Nev. Dec.
10, 2008). Rather, any request for attorney's fees is
governed by a separate rule and must be approved by the
Court. See Fed. R. Civ. P. 54(d)(2). Evans also
contends that Plaintiff's request should be stricken
because Plaintiff is proceeding pro
se. Plaintiff, however, indicates that he
intends to obtain counsel if this case proceeds to trial.
(ECF No. 8.) This representation casts doubt on the propriety
of striking the request, particularly given that
attorney's fees may be obtained under the ADA and the
Unruh Act. See 42 U.S.C. § 12205; Cal. Civ.
Code § 51(f).
and finally, the Court rejects Evans's request to strike
Plaintiffs request for “closure of Evans Hotels'
business.” (ECF No. 6-1 at 8.) This request simply
pertains to a form of injunctive relief. A Rule 12(f) motion
does not provide a basis to strike a request for injunctive
relief because such relief directly relates to the merits of
the underlying claims. See Grayon v. Cty. of Marin,
No. 14-cv-5225-JST, 2015 WL 720830, at *2 (N.D. Cal. Feb. 18,
2015) (relying on Whittlestone to find that a
request for injunctive relief cannot be striken from a
complaint under Rule 12(f)); McGuire v. Recontrust Co.,
N.A., No. 2:11-cv-2787-KJM-CKD, 2013 WL 5883782, at *3
(E.D. Cal. Oct. 30, 2013) (relying on Whittlestone
to deny a motion to strike any portion of the plaintiffs
prayer for relief, including injunctive relief); In re
Toyota Motor Corp. Unintended Acceleration Mktg., Sales
Practices, & Prods. Liab. Litig., 754 F.Supp.2d
1145, 1195 (CD. Cal. 2010) (“The Ninth Circuit's
reasoning in Whittlestone applies with equal force
to claims for injunctive relief). Thus, Evans's request
to strike the requested relief under Rule 12(f) fails.
foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART Evans's consolidated motions.
(ECF No. 6.) The Court GRANTS Evans's
unopposed Rule 12(b)(6) motion and DISMISSES WITHOUT
PREJUDICE Plaintiffs CDPA and common law negligence
claims. The Court DENIES AS MOOT Evans's
motion to strike Plaintiffs punitive damages request. The
Court otherwise DENIES ...