Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 CHRISTOPHER M. MOSSBURG, Case No.: 3:25-cv-00739-JAH-JLB 10 Plaintiff, ORDER GRANTING DEFENDANT’S 11 v. MOTION TO DISMISS 12 HOME DEPOT, U.S.A., Inc., [ECF No. 5] 13 Defendant. 14 15 16 Pending before the Court is Defendant Home Depot, U.S.A., Inc.’s (“Defendant”) 17 Motion to Dismiss. ECF No. 5 (“Motion” or “Mot.”). Plaintiff Christopher Mossburg, 18 proceeding pro se, opposed the Motion (“Opposition” or “Opp’n”) and Defendant replied 19 (“Reply”). ECF Nos. 17, 18. After a thorough review of the record, and for the reasons 20 described below, the Court GRANTS the Motion. 21 BACKGROUND 22 On January 15, 2025, Plaintiff, an individual, filed a second lawsuit1 against 23 Defendant, a home improvement company, in California state court alleging that Defendant 24 violated California’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh Act”), 25 26 27 1 Plaintiff’s first suit, which alleged both Americans with Disabilities Act (“ADA”) and Unruh Act claims, was dismissed by the Court without prejudice for lack of Article III standing. See Mossburg v. Home 28 1 by failing to provide disability accommodations to Plaintiff throughout 2023. See Notice 2 of Removal, Ex. A (ECF No. 1-2, “Complaint” or “Compl.”). On March 28, 2025, 3 Defendant removed this civil action to district court pursuant to 28 U.S.C. § 1441, which 4 permits defendants to establish federal jurisdiction based on either a federal question or 5 diversity. ECF No. 1. On April 4, 2025, Defendant filed this Motion. ECF No. 5. On 6 April 16, 2025, Plaintiff moved to remand the action to state court, which Defendant 7 opposed. ECF Nos. 8, 12. The Court denied the motion to remand, finding that while there 8 was no federal question jurisdiction, diversity jurisdiction existed under 28 U.S.C. § 1332. 9 ECF No. 15. 10 Plaintiff alleges that he is an individual who suffers from moderate to severe 11 learning disabilities that impact his ability to read and communicate with others. Compl. 12 at 5. Plaintiff alleges several examples in 20232 of Defendant not providing his requested 13 disability accommodations. See id. Specifically, Plaintiff alleges that he requested to “be 14 provided effective communication by reason of disability [and] instruction in regard to 15 where and how to file an accommodation request with Defendant’s business.” Id. at 10. 16 Between January and May 2023, Plaintiff communicated with Defendant’s attorney, 17 Gregory Hurley (“Hurley”) of Sheppard, Mullin, Richter & Hampton LLP (“Sheppard 18 Mullin”), regarding Plaintiff’s accommodation requests. See id. at 14-20. Plaintiff and 19 Hurley emailed back and forth several times, with Hurley frequently asking Plaintiff for 20 his specific accommodation requests, and Plaintiff responding that Hurley should refer to 21 communications from 2018. Id. Between May and June 2023, Plaintiff also contacted 22 Sheppard Mullin multiple times through email and phone requesting confirmation of his 23 accommodation requests. See id. at 20-26. Lastly, Plaintiff alleges that on October 10, 24 2023, he visited one of Defendant’s stores and asked an employee for assistance with 25 26 2 Throughout his Complaint, Plaintiff makes several allegations of Defendant refusing his requested 27 accommodations in 2018. See Compl. Plaintiff acknowledges that all 2018 allegations are time-barred and offered solely to provide context. Opp’n at 17. As such, the Court does not incorporate any of 28 1 finding a specific product. Id. at 26. The employee was unable to confirm the product was 2 in stock and suggested that Plaintiff search Defendant’s website to locate the product and 3 the stores that stocked the product. Id. Plaintiff alleges he was unable to purchase the 4 product due to the website malfunctioning. Id. at 27. 5 Based on the 2023 events described, Plaintiff alleges 21 violations of the Unruh Act 6 committed by Defendant. See id. Defendant moves to dismiss under Federal Rules of 7 Civil Procedure (“FRCP”) 12(b)(1), 12(b)(6), and 41(b). See Motion. 8 DISCUSSION 9 I. California Unruh Civil Rights Act 10 The Unruh Act “was designed to create and preserve a nondiscriminatory 11 environment in California business establishments by banishing or eradicating arbitrary, 12 invidious discrimination.” Gilbert v. 7-Eleven, Inc., 157 F.4th 1057, 1064 (9th Cir. 2025) 13 (internal quotation marks and citation omitted). The Unruh Act “operates virtually 14 identically to the ADA.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007). 15 This entitles all people in California, irrespective of “disability [or] medical condition, . . . 16 full and equal accommodations, advantages, facilities, privileges, or services in all business 17 establishments of every kind whatsoever.” Id. (quoting Cal. Civ. Code § 51(b)). Unlike 18 the ADA, which only offers injunctive relief, the Unruh Act “allow[s] for monetary 19 damages.” Id. A plaintiff “may obtain actual damages . . . up to a maximum of three times 20 the amount of actual damage but in no case less than four thousand dollars.” Id. (quoting 21 Cal. Civ. Code § 52(a)). 22 A plaintiff must have standing3 to assert a statutory violation, and standing under the 23 Unruh Act is broad. Gilbert, 157 F.4th at 1064 (citation omitted). “A plaintiff suffers 24 injury—and therefore has standing—under the Unruh Act if he is ‘the victim of [a] 25 defendant’s discriminatory act.’” Id. (quoting Angelucci v. Century Supper Club, 41 Cal. 26 27 3 In this context, standing refers to statutory standing under California law and “should not be confused 28 1 4th 160, 175 (2007)). A discriminatory act under Unruh occurs when a plaintiff “presents 2 himself [] to a business with an intent to use its services but encounters an exclusionary 3 policy or practice that prevents him [] from using those services.” White v. Square, Inc., 7 4 Cal. 5th 1019, 1023 (2019). 5 There are two types of Unruh Act violations. First, “[a]ny violation of the ADA 6 necessarily constitutes a violation of the Unruh Act.” Molski, 481 F.3d at 731 (citing Cal. 7 Civ. Code § 51(f)). A plaintiff need not prove intentional discrimination when the Unruh 8 Act violation is premised on an ADA violation. Lentini v. California Center for the Arts, 9 Escondido, 370 F.3d 837, 846 (9th Cir. 2004) (citation omitted); see also Munson v. Del 10 Taco, Inc., 46 Cal. 4th 661, 670 (2009). However, a plaintiff not invoking the ADA as an 11 Unruh Act violation “must plead and prove intentional discrimination in public 12 accommodations in violation of the terms of the Act.” Greater Los Angeles Agency on 13 Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (citing 14 Munson, 46 Cal. 4th 661). To establish intentional discrimination, “the Unruh Act 15 contemplates willful, affirmative misconduct on the part of those who violate the Act . . . 16 .” Id. (internal quotation marks and citations omitted). Further, a plaintiff must allege 17 “more than the disparate impact of a facially neutral policy.” Id. (citations omitted). 18 II. Motion to Dismiss 19 Defendant argues that Plaintiff’s Complaint should be dismissed under FRCP Rule 20 12(b)(1) for lack of subject matter jurisdiction, under Rule 12(b)(6) for failure to state a 21 claim upon which relief can be granted, or under Rule 41(b) for failure to comply with a 22 court order. Mot. at 13-28. 23 A. FRCP Rule 12(b)(1) 24 Federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 25 America, 511 U.S. 375, 377 (1994). Jurisdiction must “be established as a threshold 26 matter” before reaching the merits of any dispute. Steel Co. v. Citizens for a Better 27 Environ., 523 U.S. 83, 94-95 (1998). FRCP 12(b)(1) allows a party to challenge a pleading 28 for lack of subject matter jurisdiction. 1 The Court’s prior order denying Plaintiff’s motion to remand, which followed the 2 filing of this Motion, primarily disposed of Defendant’s jurisdictional arguments under 3 Rule 12(b)(1) and found that diversity jurisdiction existed. See ECF No. 15. In its Reply 4 following the Court’s remand denial, Defendant asserts “Plaintiff fails to establish Article 5 III standing . . . .” Reply at 17. Although a plaintiff must establish Article III standing for 6 ADA violations, the statutory standing requirement under California’s Unruh Act is 7 different. See Gilbert, 157 F.4th at 1064 n.4 (citation omitted). Therefore, Plaintiff does 8 not need to establish Article III standing, and for the reasons given in the Court’s order 9 denying remand, the Court has subject matter jurisdiction under Rule 12(b)(1). See ECF 10 No. 15. 11 B. FRCP Rule 12(b)(6) 12 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. 13 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a 12(b)(6) motion, “a 14 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 15 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when 17 the factual allegations permit “the court to draw the reasonable inference that the defendant 18 is liable for the misconduct alleged.” Id. In other words, “the non-conclusory factual 19 content, and reasonable inferences from that content, must be plausibly suggestive of a 20 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 21 Cir. 2009) (citing Iqbal, 556 U.S. at 678) (internal quotation marks omitted). Although the 22 factual allegations must be more than speculative, a well-pleaded complaint may proceed 23 even if the likelihood of recovery is remote. Twombly, 550 U.S. at 555-56. 24 When ruling on a 12(b)(6) motion, courts must accept as true the facts alleged in the 25 complaint and draw all inferences in the light most favorable to the non-moving party. See 26 Iqbal, 556 U.S. at 678; see also Moss, 572 F.3d at 969. However, courts need not accept 27 as true legal conclusions cast as factual allegations. Iqbal, 556 U.S. at 678. (citing 28 Twombly, 550 U.S. at 555) (“Threadbare recitals of the elements of a cause of action, 1 supported by mere conclusory statements, do not suffice.”). “Determining whether a 2 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 3 reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation 4 omitted). 5 The pleadings of a pro se plaintiff “must be held to less stringent standards than 6 formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 7 (internal quotation marks and citation omitted). Although the pleadings are still evaluated 8 under Iqbal and Twombly, courts are obligated, “particularly in civil rights cases, to 9 construe the pleadings liberally and to afford the [pro se] petitioner the benefit of any 10 doubt.” Id. (internal quotation marks and citation omitted). 11 Here, as an initial matter, the parties disagree as to whether federal pleading 12 standards apply in this diversity action. See Opp’n at 6, 12-13 (Plaintiff argues that 13 California’s notice pleading standard applies); see also Reply at 8 (Defendant argues that 14 the FRCP apply). Defendant is correct in that “[i]t is well-settled law that the Federal Rules 15 of Civil Procedure govern the sufficiency of pleadings in federal actions, even those based 16 on diversity jurisdiction.” Reply at 8; see also Harris v. Rand, 682 F.3d 846, 850 (9th Cir. 17 2012) (discussing pleading requirements in a diversity action using FRCP Rule 8(a)(1), 18 Twombly and Iqbal standards); Mandel v. Hafermann, 503 F. Supp. 3d 946, 961 (N.D. Cal. 19 Nov. 30, 2020) (“A federal court sitting in diversity . . . must apply state substantive law 20 and federal law governing procedure.”) (citing Hanna v. Plumer, 380 U.S. 460, 473 21 (1965)). Therefore, the Court uses FRCP pleading standards to determine the sufficiency 22 of Plaintiff’s Complaint. 23 Turning to the merits, Defendant first argues that Plaintiff fails to state claim for 24 relief under the ADA. See Mot. at 21-25, 27-28. This argument is moot because Plaintiff 25 does not allege ADA violations in his Complaint. See Compl.; see also ECF No. 15. 26 Relevant to Plaintiff’s current allegations, Defendant argues that “Plaintiff cannot 27 state a viable Unruh Act claim” to survive a 12(b)(6) dismissal. Mot. at 26. Specifically, 28 Defendant asserts that “Plaintiff fails to allege sufficient facts to support an Unruh claim 1 via [Cal. Civ. Code §§ 51(b) or 51(f)].” Reply at 11. Plaintiff concedes that § 51(f) is 2 irrelevant because Plaintiff does not allege any ADA claims. See Opp’n at 10. Thus, the 3 primary question for the Court is whether Plaintiff sufficiently states an Unruh Act claim 4 under § 51(b). 5 To sufficiently state an Unruh Act claim under § 51(b), Plaintiff must plead 6 intentional discrimination by Defendant based on Plaintiff’s disability, denying Plaintiff 7 full and equal accommodations and services at Defendant’s business establishments. 8 Greater Los Angeles Agency on Deafness, Inc., 742 F.3d at 425. Further, Plaintiff must 9 plead that Defendant’s actions constituted “willful, affirmative misconduct” in violation of 10 the Unruh Act, and “more than the disparate impact of a facially neutral policy.” Id. 11 (internal quotation marks omitted). 12 Plaintiff’s Complaint alleges 21 Unruh Act violations based on an ongoing series of 13 communications and interactions with Defendant and Defendant’s counsel regarding 14 Plaintiff’s request for disability accommodations. See Compl.; see also Opp’n at 17 (“[The 15 Complaint] also alleges Defendant failed to provide effective communication and did not 16 maintain or communicate any accessible policy for requesting accommodations.”). For 17 each violation of the Unruh Act alleged in his Complaint, Plaintiff asserts: 18 The Defendant must, but failed to provide any reasonable accommodation, effective communication, aid, services, or take those steps necessary to avoid 19 discriminatory conduct that resulted in the Plaintiff’s segregation and 20 exclusion from the full and equal enjoyment of the Defendant’s services, goods, privileges, advantages, facility [sic], or accommodations in violation 21 of the Unruh Civil Rights Act. 22 As a Fortune 500 company, the Defendant was not only capable but fully 23 aware of its legal responsibilities but failed to take the necessary steps to 24 comply with its obligations. This failure is not an accident, but the inevitable outcome of a broader pattern of belligerent refusal to comply with civil rights 25 legislation. This pattern is further highlighted throughout this case as the 26 Defendant, despite these and multiple forthcoming documented requests, failed to communicate any policy or guidance in regard to accommodation 27 requests immediately or eventually, either at its physical locations, by phone 28 or online, as is demonstrated by Exhibits and arguments. 1 Compl. at 32-43, 45-49, 51-52, 54, 56, 59-60, 63, 65, 67-68. 2 The dispositive issue with Plaintiff’s Complaint is that he fails to allege intentional 3 discrimination, a necessity for stating an Unruh Act claim under § 51(b). It appears that 4 Plaintiff argues for Defendant’s liability based on a disparate impact theory. See, e.g., id. 5 at 32 (“Defendant . . . failed to provide any reasonable accommodation . . . or take those 6 steps necessary to avoid discriminatory conduct . . . .”); id. at 34 (Defendant “failed to take 7 the necessary steps to comply with its obligations. This failure is . . . the inevitable outcome 8 of a broader pattern of belligerent refusal to comply with civil rights legislation.”). 9 Despite reading the Complaint liberally, Plaintiff’s factual allegations are 10 insufficient to infer intentional discrimination, largely because Plaintiff admits that 11 Defendant attempted several times to assist Plaintiff in obtaining accommodations. See, 12 e.g., id. at 10 (Defendant’s employee “Jorge provided an email to customer care and 13 suggested that accommodation requests be sent there”); id. at 13 (“On 2/8/23, Plaintiff 14 received an email from Home Depot stating: ‘Hello Chris Mossburg, Please direct any Title 15 III ADA complaints or other correspondence to [Defendant’s] registered agent for service 16 of process”). Further, Plaintiff admits that Defendant’s counsel asked several times for 17 specifics on Plaintiff’s accommodation requests, but Plaintiff refused to elaborate each 18 time. See, e.g., id. at 15. (“On 3/15/23, [Hurley] responded: . . . ‘Please let me know what 19 your specific accommodation request is.’ . . . On 3/16/23, Plaintiff responded to [Hurley’s] 20 email directing attention to the fact that several easily identifiable specific requests have 21 already been submitted both in 2018, and now renewed in 2023.”). Perhaps the most 22 glaring admission of Plaintiff’s refusal to provide relevant information to Defendant 23 occurred in May 2023 during this exchange with Defendant’s counsel: 24 On 5/1/23, [Hurley] responded to Plaintiff. [Hurley] proffered the willingness to communicate effectively with Plaintiff and offer aides and services to that 25 end stating: ‘I am happy to communicate with you in any medium that works 26 for you. We can do email, phone call, assisted video ASL, etc., just let me know. I need you to let me know the specific accommodation request you are 27 asking for. Is it for a specific store?’ . . . On 5/2/23, Plaintiff emailed [Hurley] 28 expressing frustration that specifics are being requested when specifics have 1 been provided. Plaintiff urged [Hurley] to please read previously emailed accommodation requests. 2 3 Id. at 18. Finally, the Complaint lacks allegations of Defendant committing “affirmative, 4 willful misconduct” based on Plaintiff’s disability. See Compl. 5 In sum, Plaintiff does not sufficiently allege intentional discrimination as required 6 by § 51(b) and thus fails to state a claim under either prong of the Unruh Act. Therefore, 7 Defendant’s Motion is GRANTED pursuant to FRCP Rule 12(b)(6). 8 C. FRCP Rule 41(b) 9 In the alternative, Defendant argues that the Court should dismiss Plaintiff’s 10 Complaint under FRCP Rule 41(b) for failure to comply with a court order. Mot. at 13-14. 11 Dismissing a complaint under Rule 41(b) falls within the district court’s discretion. 12 Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). Because the Court 13 dismisses Plaintiff’s Complaint under Rule 12(b)(6), the court declines to dismiss under 14 Rule 41(b). 15 CONCLUSION 16 For the reasons set forth above, IT IS HEREBY ORDERED: 17 (1) Defendant’s Motion to Dismiss is GRANTED; 18 (2) The Court GRANTS Plaintiff twenty-one (21) days leave, from the filing 19 date of this Order, to file an amended complaint to cure the deficiencies 20 noted. Plaintiff is cautioned, however, that should he choose to file an 21 amended complaint, it must be complete by itself and comply with the 22 Federal Rules of Civil Procedure. 23 (3) IT IS FURTHER ORDERED that if Plaintiff fails to file an amended 24 complaint within the prescribed period expressed in (2), above, the Court 25 will dismiss the case with prejudice. 26 IT IS SO ORDERED. 27 28 1 Dated: March 9, 2026 3 {United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28