Mossburg v. Home Depot, U.S.A, Inc.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CHRISTOPHER M. MOSSBURG,
Plaintiff,
v.
HOME DEPOT, U.S.A., Inc.,
Defendant.
Case No.: 3:25-cv-00739-JAH-JLB
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
[ECF No. 5]
Pending before the Court is Defendant Home Depot, U.S.A., Inc.’s (“Defendant”)
Motion to Dismiss. ECF No. 5 (“Motion” or “Mot.”). Plaintiff Christopher Mossburg,
proceeding pro se, opposed the Motion (“Opposition” or “Opp’n”) and Defendant replied
(“Reply”). ECF Nos. 17, 18. After a thorough review of the record, and for the reasons
described below, the Court GRANTS the Motion.
BACKGROUND
On January 15, 2025, Plaintiff, an individual, filed a second lawsuit1 against
Defendant, a home improvement company, in California state court alleging that Defendant
violated California’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh Act”),
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
Depot, U.S.A., Inc., 3:24-cv-00266-JAH-JLB, Dkt. No. 22.
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by failing to provide disability accommodations to Plaintiff throughout 2023. See Notice
of Removal, Ex. A (ECF No. 1-2, “Complaint” or “Compl.”). On March 28, 2025,
Defendant removed this civil action to district court pursuant to 28 U.S.C. § 1441, which
permits defendants to establish federal jurisdiction based on either a federal question or
diversity. ECF No. 1. On April 4, 2025, Defendant filed this Motion. ECF No. 5. On
April 16, 2025, Plaintiff moved to remand the action to state court, which Defendant
opposed. ECF Nos. 8, 12. The Court denied the motion to remand, finding that while there
was no federal question jurisdiction, diversity jurisdiction existed under 28 U.S.C. § 1332.
ECF No. 15.
Plaintiff alleges that he is an individual who suffers from moderate to severe
learning disabilities that impact his ability to read and communicate with others. Compl.
at 5. Plaintiff alleges several examples in 20232 of Defendant not providing his requested
disability accommodations. See id. Specifically, Plaintiff alleges that he requested to “be
provided effective communication by reason of disability [and] instruction in regard to
where and how to file an accommodation request with Defendant’s business.” Id. at 10.
Between January and May 2023, Plaintiff communicated with Defendant’s attorney,
Gregory Hurley (“Hurley”) of Sheppard, Mullin, Richter & Hampton LLP (“Sheppard
Mullin”), regarding Plaintiff’s accommodation requests. See id. at 14-20. Plaintiff and
Hurley emailed back and forth several times, with Hurley frequently asking Plaintiff for
his specific accommodation requests, and Plaintiff responding that Hurley should refer to
communications from 2018. Id. Between May and June 2023, Plaintiff also contacted
Sheppard Mullin multiple times through email and phone requesting confirmation of his
accommodation requests. See id. at 20-26. Lastly, Plaintiff alleges that on October 10,
2023, he visited one of Defendant’s stores and asked an employee for assistance with
2 Throughout his Complaint, Plaintiff makes several allegations of Defendant refusing his requested
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
Plaintiff’s 2018 allegations into its analysis regarding the Motion.
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finding a specific product. Id. at 26. The employee was unable to confirm the product was
in stock and suggested that Plaintiff search Defendant’s website to locate the product and
the stores that stocked the product. Id. Plaintiff alleges he was unable to purchase the
product due to the website malfunctioning. Id. at 27.
Based on the 2023 events described, Plaintiff alleges 21 violations of the Unruh Act
committed by Defendant. See id. Defendant moves to dismiss under Federal Rules of
Civil Procedure (“FRCP”) 12(b)(1), 12(b)(6), and 41(b). See Motion.
DISCUSSION
I. California Unruh Civil Rights Act
The Unruh Act “was designed to create and preserve a nondiscriminatory
environment in California business establishments by banishing or eradicating arbitrary,
invidious discrimination.” Gilbert v. 7-Eleven, Inc., 157 F.4th 1057, 1064 (9th Cir. 2025)
(internal quotation marks and citation omitted). The Unruh Act “operates virtually
identically to the ADA.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007).
This entitles all people in California, irrespective of “disability [or] medical condition, . . .
full and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” Id. (quoting Cal. Civ. Code § 51(b)). Unlike
the ADA, which only offers injunctive relief, the Unruh Act “allow[s] for monetary
damages.” Id. A plaintiff “may obtain actual damages . . . up to a maximum of three times
the amount of actual damage but in no case less than four thousand dollars.” Id. (quoting
Cal. Civ. Code § 52(a)).
A plaintiff must have standing3 to assert a statutory violation, and standing under the
Unruh Act is broad. Gilbert, 157 F.4th at 1064 (citation omitted). “A plaintiff suffers
injury—and therefore has standing—under the Unruh Act if he is ‘the victim of [a]
defendant’s discriminatory act.’” Id. (quoting Angelucci v. Century Supper Club, 41 Cal.
3 In this context, standing refers to statutory standing under California law and “should not be confused
with constitutional standing under Article III.” Gilbert, 157 F.4th at 1064 n.4 (citation omitted).
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4th 160, 175 (2007)). A discriminatory act under Unruh occurs when a plaintiff “presents
himself [] to a business with an intent to use its services but encounters an exclusionary
policy or practice that prevents him [] from using those services.” White v. Square, Inc., 7
Cal. 5th 1019, 1023 (2019).
There are two types of Unruh Act violations. First, “[a]ny violation of the ADA
necessarily constitutes a violation of the Unruh Act.” Molski, 481 F.3d at 731 (citing Cal.
Civ. Code § 51(f)). A plaintiff need not prove intentional discrimination when the Unruh
Act violation is premised on an ADA violation. Lentini v. California Center for the Arts,
Escondido, 370 F.3d 837, 846 (9th Cir. 2004) (citation omitted); see also Munson v. Del
Taco, Inc., 46 Cal. 4th 661, 670 (2009). However, a plaintiff not invoking the ADA as an
Unruh Act violation “must plead and prove intentional discrimination in public
accommodations in violation of the terms of the Act.” Greater Los Angeles Agency on
Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (citing
Munson, 46 Cal. 4th 661). To establish intentional discrimination, “the Unruh Act
contemplates willful, affirmative misconduct on the part of those who violate the Act . . .
.” Id. (internal quotation marks and citations omitted). Further, a plaintiff must allege
“more than the disparate impact of a facially neutral policy.” Id. (citations omitted).
II. Motion to Dismiss
Defendant argues that Plaintiff’s Complaint should be dismissed under FRCP Rule
12(b)(1) for lack of subject matter jurisdiction, under Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, or under Rule 41(b) for failure to comply with a
court order. Mot. at 13-28.
A. FRCP Rule 12(b)(1)
Federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). Jurisdiction must “be established as a threshold
matter” before reaching the merits of any dispute. Steel Co. v. Citizens for a Better
Environ., 523 U.S. 83, 94-95 (1998). FRCP 12(b)(1) allows a party to challenge a pleading
for lack of subject matter jurisdiction.
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The Court’s prior order denying Plaintiff’s motion to remand, which followed the
filing of this Motion, primarily disposed of Defendant’s jurisdictional arguments under
Rule 12(b)(1) and found that diversity jurisdiction existed. See ECF No. 15. In its Reply
following the Court’s remand denial, Defendant asserts “Plaintiff fails to establish Article
III standing . . . .” Reply at 17. Although a plaintiff must establish Article III standing for
ADA violations, the statutory standing requirement under California’s Unruh Act is
different. See Gilbert, 157 F.4th at 1064 n.4 (citation omitted). Therefore, Plaintiff does
not need to establish Article III standing, and for the reasons given in the Court’s order
denying remand, the Court has subject matter jurisdiction under Rule 12(b)(1). See ECF
No. 15.
B. FRCP Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a 12(b)(6) motion, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when
the factual allegations permit “the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. In other words, “the non-conclusory factual
content, and reasonable inferences from that content, must be plausibly suggestive of a
claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009) (citing Iqbal, 556 U.S. at 678) (internal quotation marks omitted). Although the
factual allegations must be more than speculative, a well-pleaded complaint may proceed
even if the likelihood of recovery is remote. Twombly, 550 U.S. at 555-56.
When ruling on a 12(b)(6) motion, courts must accept as true the facts alleged in the
complaint and draw all inferences in the light most favorable to the non-moving party. See
Iqbal, 556 U.S. at 678; see also Moss, 572 F.3d at 969. However, courts need not accept
as true legal conclusions cast as factual allegations. Iqbal, 556 U.S. at 678. (citing
Twombly, 550 U.S. at 555) (“Threadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.”). “Determining whether a
complaint states a plausible claim for relief [is] . . . a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation
omitted).
The pleadings of a pro se plaintiff “must be held to less stringent standards than
formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(internal quotation marks and citation omitted). Although the pleadings are still evaluated
under Iqbal and Twombly, courts are obligated, “particularly in civil rights cases, to
construe the pleadings liberally and to afford the [pro se] petitioner the benefit of any
doubt.” Id. (internal quotation marks and citation omitted).
Here, as an initial matter, the parties disagree as to whether federal pleading
standards apply in this diversity action. See Opp’n at 6, 12-13 (Plaintiff argues that
California’s notice pleading standard applies); see also Reply at 8 (Defendant argues that
the FRCP apply). Defendant is correct in that “[i]t is well-settled law that the Federal Rules
of Civil Procedure govern the sufficiency of pleadings in federal actions, even those based
on diversity jurisdiction.” Reply at 8; see also Harris v. Rand, 682 F.3d 846, 850 (9th Cir.
2012) (discussing pleading requirements in a diversity action using FRCP Rule 8(a)(1),
Twombly and Iqbal standards); Mandel v. Hafermann, 503 F. Supp. 3d 946, 961 (N.D. Cal.
Nov. 30, 2020) (“A federal court sitting in diversity . . . must apply state substantive law
and federal law governing procedure.”) (citing Hanna v. Plumer, 380 U.S. 460, 473
(1965)). Therefore, the Court uses FRCP pleading standards to determine the sufficiency
of Plaintiff’s Complaint.
Turning to the merits, Defendant first argues that Plaintiff fails to state claim for
relief under the ADA. See Mot. at 21-25, 27-28. This argument is moot because Plaintiff
does not allege ADA violations in his Complaint. See Compl.; see also ECF No. 15.
Relevant to Plaintiff’s current allegations, Defendant argues that “Plaintiff cannot
state a viable Unruh Act claim” to survive a 12(b)(6) dismissal. Mot. at 26. Specifically,
Defendant asserts that “Plaintiff fails to allege sufficient facts to support an Unruh claim
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via [Cal. Civ. Code §§ 51(b) or 51(f)].” Reply at 11. Plaintiff concedes that § 51(f) is
irrelevant because Plaintiff does not allege any ADA claims. See Opp’n at 10. Thus, the
primary question for the Court is whether Plaintiff sufficiently states an Unruh Act claim
under § 51(b).
To sufficiently state an Unruh Act claim under § 51(b), Plaintiff must plead
intentional discrimination by Defendant based on Plaintiff’s disability, denying Plaintiff
full and equal accommodations and services at Defendant’s business establishments.
Greater Los Angeles Agency on Deafness, Inc., 742 F.3d at 425. Further, Plaintiff must
plead that Defendant’s actions constituted “willful, affirmative misconduct” in violation of
the Unruh Act, and “more than the disparate impact of a facially neutral policy.” Id.
(internal quotation marks omitted).
Plaintiff’s Complaint alleges 21 Unruh Act violations based on an ongoing series of
communications and interactions with Defendant and Defendant’s counsel regarding
Plaintiff’s request for disability accommodations. See Compl.; see also Opp’n at 17 (“[The
Complaint] also alleges Defendant failed to provide effective communication and did not
maintain or communicate any accessible policy for requesting accommodations.”). For
each violation of the Unruh Act alleged in his Complaint, Plaintiff asserts:
The Defendant must, but failed to provide any reasonable accommodation,
effective communication, aid, services, or take those steps necessary to avoid
discriminatory conduct that resulted in the Plaintiff’s segregation and
exclusion from the full and equal enjoyment of the Defendant’s services,
goods, privileges, advantages, facility [sic], or accommodations in violation
of the Unruh Civil Rights Act.
As a Fortune 500 company, the Defendant was not only capable but fully
aware of its legal responsibilities but failed to take the necessary steps to
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
legislation. This pattern is further highlighted throughout this case as the
Defendant, despite these and multiple forthcoming documented requests,
failed to communicate any policy or guidance in regard to accommodation
requests immediately or eventually, either at its physical locations, by phone
or online, as is demonstrated by Exhibits and arguments.
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Compl. at 32-43, 45-49, 51-52, 54, 56, 59-60, 63, 65, 67-68.
The dispositive issue with Plaintiff’s Complaint is that he fails to allege intentional
discrimination, a necessity for stating an Unruh Act claim under § 51(b). It appears that
Plaintiff argues for Defendant’s liability based on a disparate impact theory. See, e.g., id.
at 32 (“Defendant . . . failed to provide any reasonable accommodation . . . or take those
steps necessary to avoid discriminatory conduct . . . .”); id. at 34 (Defendant “failed to take
the necessary steps to comply with its obligations. This failure is . . . the inevitable outcome
of a broader pattern of belligerent refusal to comply with civil rights legislation.”).
Despite reading the Complaint liberally, Plaintiff’s factual allegations are
insufficient to infer intentional discrimination, largely because Plaintiff admits that
Defendant attempted several times to assist Plaintiff in obtaining accommodations. See,
e.g., id. at 10 (Defendant’s employee “Jorge provided an email to customer care and
suggested that accommodation requests be sent there”); id. at 13 (“On 2/8/23, Plaintiff
received an email from Home Depot stating: ‘Hello Chris Mossburg, Please direct any Title
III ADA complaints or other correspondence to [Defendant’s] registered agent for service
of process”). Further, Plaintiff admits that Defendant’s counsel asked several times for
specifics on Plaintiff’s accommodation requests, but Plaintiff refused to elaborate each
time. See, e.g., id. at 15. (“On 3/15/23, [Hurley] responded: . . . ‘Please let me know what
your specific accommodation request is.’ . . . On 3/16/23, Plaintiff responded to [Hurley’s]
email directing attention to the fact that several easily identifiable specific requests have
already been submitted both in 2018, and now renewed in 2023.”). Perhaps the most
glaring admission of Plaintiff’s refusal to provide relevant information to Defendant
occurred in May 2023 during this exchange with Defendant’s counsel:
On 5/1/23, [Hurley] responded to Plaintiff. [Hurley] proffered the willingness
to communicate effectively with Plaintiff and offer aides and services to that
end stating: ‘I am happy to communicate with you in any medium that works
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
asking for. Is it for a specific store?’ . . . On 5/2/23, Plaintiff emailed [Hurley]
expressing frustration that specifics are being requested when specifics have
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been provided. Plaintiff urged [Hurley] to please read previously emailed
accommodation requests.
Id. at 18. Finally, the Complaint lacks allegations of Defendant committing “affirmative,
willful misconduct” based on Plaintiff’s disability. See Compl.
In sum, Plaintiff does not sufficiently allege intentional discrimination as required
by § 51(b) and thus fails to state a claim under either prong of the Unruh Act. Therefore,
Defendant’s Motion is GRANTED pursuant to FRCP Rule 12(b)(6).
C. FRCP Rule 41(b)
In the alternative, Defendant argues that the Court should dismiss Plaintiff’s
Complaint under FRCP Rule 41(b) for failure to comply with a court order. Mot. at 13-14.
Dismissing a complaint under Rule 41(b) falls within the district court’s discretion.
Yourish v. California Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). Because the Court
dismisses Plaintiff’s Complaint under Rule 12(b)(6), the court declines to dismiss under
Rule 41(b).
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED:
(1) Defendant’s Motion to Dismiss is GRANTED;
(2) The Court GRANTS Plaintiff twenty-one (21) days leave, from the filing
date of this Order, to file an amended complaint to cure the deficiencies
noted. Plaintiff is cautioned, however, that should he choose to file an
amended complaint, it must be complete by itself and comply with the
Federal Rules of Civil Procedure.
(3) IT IS FURTHER ORDERED that if Plaintiff fails to file an amended
complaint within the prescribed period expressed in (2), above, the Court
will dismiss the case with prejudice.
IT IS SO ORDERED.
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Dated: March 9, 2026
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