ADA and FHA Defense

In 2022 the 9th Circuit made it clear that a federal district court could decline to exercise supplemental jurisdiction over an Unruh Act claim . Vo v. Choi, 49 F.4th 1167 (9th Cir. 2022). Vo v Choi has been cited 642 times, almost always in the context of a serial filer who has included an Unruh Act claim along with a federal ADA claim. The most recent reference was just last week in Cuevas v Martinez, 2025 WL 97684, at *1 (E.D. Cal. Jan. 15, 2025). Following Vo v Choi and the hundreds of other decisions that cite it the magistrate judge recommended that the district court refuse to exercise supplemental jurisdiction over the plaintiff’s Unruh Act claims.

You might imagine that by this time plaintiffs who wanted to recover the $4,000 bonus provided in the Unruh Act would simply file in California state courts. They would face the enhanced filing fees and pleading requirements that apply to serial filers in Unruh Act lawsuits but would have a better bargaining position due to the penalty. State court lawsuits are being filed, but it is easy to understand why the $4,000 damages available under the Unruh Act is not keeping serial filers out of federal cout.

First, of course, adding an Unruh Act claim to a federal court lawsuit costs nothing. If the district court declines to exercise supplemental jurisdiction the plaintiff can simply go forward with the ADA claim. It is true the plaintiff and their lawyers will lose the benefit of the $4,000 bonus, but the business model for serial filers is based on volume and a quick settlement that still yields a handsome profit on an hourly billing basis. Missing out on the extra money isn’t a tragedy and for many plaintiffs’ attorneys saving the additional filing fees for a state court action and avoiding pleading requirements that are hard to meet in cookie cutter lawsuits makes this loss worthwhile.

In addition, with nothing to lose, plaintiffs and their lawyers can always hope for a different result. After all, “Because Plaintiff’s Unruh Act claim is closely related to his ADA claim, the Court has authority to exercise supplemental jurisdiction over the Unruh Act claim under 28 U.S.C. § 1367(a).” Villalobos v. W. Edge, Inc., 2025 WL 104096, at *1 (C.D. Cal. Jan. 14, 2025). Hope springs eternal, and somewhere out there there may be a district court judge who will exercise supplemental jurisdiction, or a case that for procedural reasons requires that the district court exercise supplemental jurisdiction. See,  Arroyo v. Rosas, 19 F.4th 1202 (9th Cir. 2021).

The procedural status that requires that the District Court exercise supplemental jurisdiction is simply that there was already a ruling in the plaintiff’s favor on their ADA claim. Id. Typically, a default judgment on the ADA claim is not enough. See, Block v. Arsh & Jot LLC, 2024 WL 5195915, at *1 (E.D. Cal. Dec. 23, 2024). Under these circumstances allowing a default judgment may be the best defense. The defendant will only be ordered to fix things that had to be fixed anyway, the plaintiff’s attorneys’ fees will be limited because little or no work was done, and there will be no award of Unruh Act damages.

Going into 2025 it appears that only rarely if at all will a district court exercise supplemental jurisdiction over Unruh Act claims. While a motion for default judgment will trigger consideration of supplemental jurisdiction, district courts are also showing a disinclination to exercise supplemental jurisdiction even before a default judgment has been sought. See, Ho v. RD Center, LLC, 2025 WL 242198, at *1 (C.D. Cal. Jan. 17, 2025). This has not, however, deterred the serial filers from seeking relief in federal court. There have been 33 decisions on supplemental jurisdiction since January 1, 2025. Since these decisions are made in almost every ADA/Unruh Act claim filed it appears that serial plaintiffs are still filing as many as 60 new lawsuits a month in federal court. Whether this is doing any good at all for those with disabilities is an open question for I could find no statistics on the rate at which businesses sued under the ADA actually engage in remediation efforts. The good news for defendants facing a Title III ADA lawsuit is that the cost of settlement or default is likely to be less than it was in years past. The bad news is that these lawsuits are not going away. And the final message is simply that making your business accessible by complying with the 2010 ADA Standards for Accessible design is the best way to avoid litigation related expenses in any amount as well as better serving your customers.