Cuadra v. George Brown Sports Club-Palm, Inc. et al

Filing 109

ORDER granting in part and denying in part Motion to Dismiss 94 , 98 , 99 , 100 signed by District Judge Dale A. Drozd on 8/13/2019. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO CUADRA,

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No. 1:17-cv-01063-DAD-EPG

Plaintiff,
v.
GEORGE BROWN SPORTS CLUBPALM, INC.; GEORGE BROWN
SPORTS CLUB, INC.; JOHNSTON
CONTRACTING, INC.; and DOES 1
through 100, inclusive,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ AND
THIRD-PARTY DEFENDANTS’ MOTION
TO DISMISS
(Doc. Nos. 94, 98, 99, 100)

Defendants.

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AND RELATED CROSS-ACTIONS

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This matter is before the court on a motion to dismiss filed by defendants George Brown

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Sports Club Palm, LLC (erroneously sued herein as “George Brown Sports Club-Palm, LLC”)

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and George Brown Sports Club, Inc. (collectively “GBSC defendants”), and joined by defendant

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Johnston Contracting Inc. (“Johnston Contracting”) and third-party defendants Kenneth Glen

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Clark, dba Clark Installation (“Clark Installation”) and WCM, Inc., dba Tec Spec Constructors

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(“Tec Spec”). (Doc. Nos. 94, 98, 99, 100.) A hearing on the motion was held on July 16, 2019.

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Attorney Steven Dias appeared on behalf of plaintiff Mario Cuadra. Attorney Ryan Porte

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appeared on behalf of the GBSC defendants and attorney Warren Campbell appeared on behalf of
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defendant Johnston Contracting. Attorney Kathleen Miller appeared on behalf of third-party

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defendant Clark Installation, and attorney Alexander Sharp appeared on behalf of third-party

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defendant Tec Spec. The court has considered the parties’ briefs and oral arguments, and for the

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reasons set forth below, will grant in part and deny in part the motion to dismiss.

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BACKGROUND
Plaintiff’s first amended complaint alleges as follows. Plaintiff is a person with physical

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disabilities resulting from a prior injury to his knees. (Doc. No. 93 (hereinafter “FAC”) at ¶ 5.)

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Plaintiff has suffered numerous knee injuries and has undergone multiple knee surgeries,

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including full knee replacement surgery. (Id.) Because of his disability, it is difficult and

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dangerous for plaintiff to stand for prolonged periods of time. (Id.)
At all relevant times, plaintiff was a member of the George Brown Sports Club facility

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located at 7825 N. Palm Avenue in Fresno, California (the “Facility”). (Id. at ¶¶ 16, 17.) On or

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about July 8, 2016, plaintiff visited the Facility and attempted to shower in the men’s handicap

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shower stall by sitting on the handicap shower seat. (Id. at ¶ 21.) While plaintiff was showering,

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the handicap seat and anchoring system gave way, causing plaintiff to fall and impact the shower

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floor and walls. (Id.) Plaintiff alerted Facility employees of the incident. (Id. at ¶ 22.) Plaintiff

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returned to the handicap shower stall with a maintenance worker, at which time plaintiff observed

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the shower seat detached from the wall, the anchor devices pulled off the wall with screws still

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attached, and a large hole in the tile where the anchor devices had previously been attached. (Id.

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at ¶ 23.)

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Plaintiff alleges that defendants violated the ADA Accessibility Guidelines (“ADAAG”)

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by failing to construct and maintain the men’s handicap shower seat in compliance with ADAAG

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Section 4.26.3, which mandates that the structural strength of grab bars, tub and shower seats,

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fasteners, and mounting devices meet certain specifications. (Id. at ¶ 27.) In addition, plaintiff

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alleges that defendants are in violation of Title 24 of the Building Codes and Standards, Section

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11B-610.4, which mandates that “[a]llowable stresses shall not be exceeded for materials used

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when a vertical or horizontal force of 250 pounds (1112 N) is applied at any point on the seat,

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fastener, mounting device, or supporting structure.” (Id. at ¶ 28.)
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As a result of the fall, plaintiff sustained physical injuries including, but not limited to,

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shakiness, numbness, and tingling sensations. (Id. at ¶ 24.) Because his physical condition

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continued to deteriorate, plaintiff was unable to return to his daily gym routine. (Id.) One month

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after the incident, unable to travel or drive to the Facility, plaintiff elected to freeze his

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membership account. (Id.) At the time of the filing of the FAC, plaintiff’s membership account

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remains frozen. (Id. at ¶ 25.) After undergoing multilevel cervical fusion surgery, plaintiff is

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now physically capable of returning to the gym, but has opted to patronize a gym he considers

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less desirable because he fears the shower seat at defendants’ Facility will fail again. (Id. at ¶¶

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30, 31.)

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Plaintiff filed this action in Fresno County Superior Court on July 7, 2017 asserting six

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causes of action against defendants George Brown Sports Club Palm LLC, George Brown Sports

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Club, Inc., Johnston Contracting, and Does 1–100 for: (1) violation of the Americans with

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Disabilities Act of 1990 (“ADA”); (2) violation of the Unruh Civil Rights Act (“Unruh Act”); (3)

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denial of full and equal access to public facilities under Health and Safety Code § 19955(a); (4)

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negligence; (5) premises liability; and (6) products liability. (Doc. No. 1 at 7–23.) Plaintiff seeks

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damages, injunctive relief, and attorneys’ fees and costs. (Id. at 22–24.). On August 8, 2017,

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defendants removed the action to this federal court based on federal question jurisdiction. (Id. at

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1–2.)

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On October 20, 2017, defendant Johnston Contracting filed a third-party complaint against

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third-party defendants William McKeand,1 Tec Spec, and Roes 1–50 for implied and express

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indemnity, apportionment of fault and contribution, breach of contract, and declaratory relief

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regarding indemnity and duty to defend. (Doc. No. 14.) Johnston Contracting alleges that it

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subcontracted with McKeand and Tec Spec to supply and install improvements to the Facility,

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including the shower seat at issue in plaintiff’s complaint. (Id. at ¶¶ 7–8.) On December 13,

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2017, third-party defendant Tec Spec filed a third-party complaint against additional third-party

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On July 19, 2018, the parties stipulated to the dismissal of defendant McKeand from this action.
(Doc. Nos. 62, 63.)
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defendants American Specialties, Inc.,2 Clark Installation, and Roes 1–25 for implied indemnity,

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equitable indemnity, and declaratory relief. (Doc. No. 29.) Tec Spec alleges that American

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Specialties, Inc. supplied, and that Clark Installation installed, the shower seat that is the basis of

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plaintiff’s complaint. (Id. at ¶¶ 2–3.)

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On February 12, 2019, third-party defendant Clark Installation filed a motion seeking

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judgment on the pleadings as to plaintiff’s causes of action brought under the ADA, the Unruh

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Act, and California Health and Safety Code § 19955. (Doc. No. 80.) Tec Spec and Johnston

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Contracting joined in that motion. (Doc. Nos. 82, 83.) On April 25, 2019, the court granted the

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movants’ motion for judgment on the pleadings and granted plaintiff leave to file an amended

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complaint. (Doc. No. 91.)

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On May 15, 2019, plaintiff filed his first amended complaint. (Doc. No. 93.) On May 29,

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2019, the GBSC defendants filed the motion to dismiss now pending before the court. (Doc. Nos.

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94–97.) Defendant Johnston Contracting and third-party defendants Clark Installation and Tec

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Spec joined in the motion. (Doc. Nos. 98–100.) Plaintiff filed his opposition on July 2, 2019.

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(Doc. No. 103.) The GBSC defendants filed their reply on July 9, 2019. (Doc. Nos. 104.)

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LEGAL STANDARD

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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

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sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

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1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

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F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to

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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

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On July 23, 2018, the parties stipulated to the dismissal of defendant American Specialties, Inc.
from this action. (Doc. Nos. 64, 65.)
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In determining whether a complaint states a claim on which relief may be granted, the

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court accepts as true the allegations in the complaint and construes the allegations in the light

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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth

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of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788

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F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations,

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“it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal,

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556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a

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formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. See also

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Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the

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plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws

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in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State

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Council of Carpenters, 459 U.S. 519, 526 (1983).

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ANALYSIS

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The GBSC defendants, Johnston Contracting, Clark Installation, and Tec Spec

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(collectively “movants”) move to dismiss plaintiffs’ first, second, and third causes of action on

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the ground that plaintiff fails to state a cognizable claim. (Doc. No. 95 at 5–8.) The court

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addresses each cause of action below.

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A.

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ADA Claim
As pleaded in the FAC, plaintiff’s ADA claim is ostensibly based on four different

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theories of liability: (1) denial of full and equal enjoyment and use; (2) failure to design and

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construct an accessible facility; (3) failure to modify existing policies and procedures; and (4)

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failure to maintain accessible features. (See FAC at ¶¶ 36–47.)

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1. Denial of Full and Equal Enjoyment and Use
To state a claim under Title III of the ADA, a plaintiff must allege that: (1) she has a

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disability; (2) the business is a “public accommodation”; and (3) the plaintiff was denied full and

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equal treatment because of her disability. Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d
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1054, 1067 (E.D. Cal. 2006).

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Movants concede that plaintiff has sufficiently alleged the first two elements of an ADA

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claim. (Doc. No. 95 at 5.) However, movants argue that plaintiff fails to plead sufficient facts to

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show that he was denied full and equal treatment on account of his disability, because “Plaintiff

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has not alleged how this failure denied Plaintiff of the opportunity to participate in gym activities,

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nor does Plaintiff allege how [the GBSC defendants] failed to accommodate persons with

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disabilities.” (Id. at 6.) According to movants, plaintiff’s discrimination claim fails because

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“there is no question that [the shower seat] was present, and that Plaintiff availed himself of the

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benefits of the sports club, and specifically, the use of Defendant’s handicap shower seat, on

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many occasions.” (Id.)

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Notably, movants fail to cite any authority in support of its argument that this claim

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should be dismissed. That plaintiff was able to “participate in gym activities” and “avail[]

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himself of the benefits of the sports club” does not defeat his ADA claim. On the contrary, the

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Ninth Circuit has clarified that enforcement of the ADA is not limited to barriers that “completely

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preclude the plaintiff from entering or from using a facility in any way.” Chapman v. Pier 1

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Imports (U.S.) Inc., 631 F.3d 939, 947 (9th Cir. 2011); see also Doran v. 7-Eleven, Inc., 524 F.3d

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1034, 1041 n.4 (9th Cir. 2008) (noting that the ADA “does not limit its antidiscrimination

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mandate to barriers that completely prohibit access”). In fact, the Ninth Circuit has specifically

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noted that “[b]ecause the ADAAG establishes the technical standards required for ‘full and equal

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enjoyment,’ if a barrier violating these standards relates to a plaintiff’s disability, it will impair

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the plaintiff’s full and equal access, which constitutes ‘discrimination’ under the ADA.”

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Chapman, 631 F.3d at 947. To the extent that movants seek to dismiss plaintiff’s ADA claim for

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failure to adequately allege the denial of full and equal treatment, the motion will therefore be

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denied.

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2. Failure to Design and Construct an Accessible Facility
Movants next argue that plaintiff’s claim that defendants failed to design and construct an

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accessible facility must fail. (Doc. No. 95 at 6–7.) Although plaintiff’s FAC cites various

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ADAAG and California Building Code provisions, movants take issue with the complaint to the
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extent that it “never states what the deficiency [with the anchoring device] was, how the

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anchoring device was used, how it was installed, what anchoring device should have been used,

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or how it should have been installed.” (Id. at 7.)

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At this stage of the litigation, however, plaintiff cannot be expected to have access to such

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information. This argument, while perhaps appropriate where a complaint must state a claim with

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heightened specificity, is inapplicable here. See Fed. R. Civ. P. 9; Vess v. Ciba-Geigy Corp. USA,

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317 F.3d 1097, 1106 (9th Cir. 2003) (noting that a cause of action subject to Rule 9 must plead

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“the who, what, when, where, and how” of the alleged misconduct). A plaintiff is not charged

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with possession of such information at the outset of the litigation, especially since this

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information is likely obtainable only during discovery and through expert testimony. Once again,

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movants have provided no citation to authority in support of their contention that such detailed

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facts must be alleged in the complaint, and the court declines to impose such a requirement.

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3. Failure to Modify Existing Policies and Procedures
Movants next argue that plaintiff’s ADA claim, based on a failure to modify existing

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policies and procedures, must fail because plaintiff fails to allege what policies or procedures

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defendants should have modified. (Doc. No. 95 at 7.)

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The court agrees that plaintiff’s FAC contains nothing more than conclusory allegations

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with respect to existing policies, practices, or procedures. The FAC does not include even the

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barest details as to what those policies were, making it impossible for defendants to know what is

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being alleged against them. In his opposition, plaintiff merely argues that “[i]t is not Plaintiff[’]s

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onus to outline what policy or procedures GBSC Defendants should have modified” (Doc. No.

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103 at 12–13), but cites no authority in support of this proposition. Because the allegation that

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defendants violated the ADA “by failing to make reasonable modifications in policies, practices,

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or procedures at the Facility” (FAC at ¶ 44) does no more than track the language of the statute,

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this cause of action must be dismissed to the extent it is predicated on a theory of failure to

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modify existing policies and procedures.

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At the hearing on the pending motion, plaintiff’s counsel conceded that plaintiff is
incapable of pleading additional facts that would support his allegations of failure to modify
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existing policies and procedures, but that the exchange of discovery in this case may later enable

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plaintiff to do so. For this reason, this claim will be dismissed without prejudice, subject to the

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filing of a future motion to amend the complaint within the time provided by the scheduling order

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and to the extent that facts supporting such a claim are uncovered during the discovery phase of

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this case.

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4. Failure to Maintain Accessible Features

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Finally, movants seek dismissal of plaintiff’s ADA cause of action to the extent it alleges

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that defendants failed to maintain accessible features. (Doc. No. 95 at 7–8.) Movants contend

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that plaintiff “fails to allege what kind of maintenance would have been effective in discovering

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and repairing this issue.” (Id. at 8.) Movants have again provided no authority in support of this

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argument, and the court is aware of no case standing for the proposition that a plaintiff in an ADA

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case must not only allege that the defendant failed to maintain accessible features, but must also

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allege how the defendant could remedy the alleged deficiency. The motion to dismiss plaintiff’s

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ADA cause of action as to this theory of liability will be denied.

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B.

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Claims Under the Unruh Act and Health and Safety Code § 19955(a)
Next, movants seek dismissal of plaintiff’s second and third causes of action, which are

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alleged under California Civil Code § 51 and California Health and Safety Code § 19955(a),

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respectively. Movants argue that plaintiff lacks standing because he has not adequately alleged

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an injury-in-fact, and that with respect to his second cause of action specifically, plaintiff is

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required to allege intentional discrimination but has failed to do so. (Id.)

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Movants’ standing argument is difficult to decipher, likely because the briefing as to that

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argument is cursory. In the court’s view, plaintiff’s FAC is more than adequate to allege an

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injury-in-fact for purposes of Article III standing. Not only does it allege that plaintiff was

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physically injured as a result of his fall, it also alleges that he was unable to return to the Facility

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as a result of these injuries. (FAC at ¶¶ 24, 30, 31.) The FAC further alleges that the handicap

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shower seat violated ADAAG standards by failing to meet the minimum required structural

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strength. (Id. at ¶ 27.) As the court previously noted in its April 25, 2019 order granting partial

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judgment on the pleadings, the Ninth Circuit has held that “if a barrier violating [ADAAG]
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standards relates to a plaintiff’s disability, it will impair the plaintiff’s full and equal access,

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which constitutes ‘discrimination’ under the ADA. That discrimination satisfies the ‘injury-in-

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fact’ element of Lujan.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947 (9th Cir.

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2011); see also Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1042 n.5 (9th Cir. 2008) (“Once a

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disabled individual has encountered or become aware of alleged ADA violations that deter his

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patronage of or otherwise interfere with his access to a place of public accommodation, he has

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already suffered an injury in fact traceable to the defendant’s conduct and capable of being

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redressed by the courts, and so he possesses standing under Article III.”). Movants offer no

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explanation as to how the allegations in the FAC fail to establish standing here.

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Separately, movants seek dismissal of plaintiff’s claim under the Unruh Act, California

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Civil Code § 51, arguing that plaintiff is required to allege intentional discrimination. (Doc. No.

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95 at 8.) This argument is contrary to the California Supreme Court’s decision in Munson v. Del

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Taco, Inc., 46 Cal. 4th 661, 665 (2009), which held that a plaintiff alleging an Unruh Act

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violation predicated on a violation of the ADA “may obtain statutory damages . . . without the

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need to demonstrate additionally that the discrimination was intentional.” Because the court has

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already found that plaintiff’s ADA claim survives at least to some degree, no allegations of

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intentional discrimination are required to support plaintiff’s Unruh Act claim.

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CONCLUSION
For the reasons set forth above,

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1. Movants’ motion to dismiss (Doc. Nos. 94, 98, 99, 100) is granted in part;

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2. To the extent that plaintiff’s ADA claim is based on a failure to modify existing

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policies and procedures, that claim is dismissed without prejudice to a timely

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motion to amend if supported by facts uncovered in discovery; and

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3. The motion to dismiss (Doc. Nos. 94, 98, 99, 100) is denied in all other respects.
IT IS SO ORDERED.
Dated:

August 13, 2019
UNITED STATES DISTRICT JUDGE

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