Z.F., et al v. Ripon Unified School District, et al

Filing 135

ORDER signed by Judge Garland E. Burrell, Jr., on 9/9/11 ORDERING that Plaintiffs' claim under Title III of the ADA is DISMISSED with prejudice, and the J.H. Plaintiffs' § 1983 claim alleging a violation of the right of instrastate travel is DISMISSED with prejudice. VMRC's 121 motion to dismiss Plaintiffs' Unruh Act claim is DENIED. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Z.F, a minor, by and through his
parents M.A.F and J.F. and
M.A.F. and J.F. individually;
L.H., and J.H., minors, by and
through their parents J.A. and
J.R.H. and J.A. and J.R.H.
individually; A.N., a minor, by
and through his parents, G.N.
and M.R., and G.N. and M.R.
individually,

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Plaintiffs, on behalf
of themselves and all
others similarly
situated,

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v.
RIPON UNIFIED SCHOOL DISTRICT
(RUSD); RIPON UNIFIED SCHOOL
DISTRICT BOARD OF TRUSTEES; SAN
JOAQUIN COUNTY OFFICE OF
EDUCATION; VALLEY MOUNTAIN
REGIONAL CENTER (VMRC), MODESTO
CITY SCHOOLS, MODESTO CITY
SCHOOLS BOARD OF EDUCATION,
RICHARD JACOBS, Executive
Director of VMRC, in his
official and individual
capacity, TARA SISEMORE-HESTER,
Coordinator for Autism Services
for VMRC, in her official and
individual capacity; VIRGINIA
JOHNSON, Director of Modesto
City Schools SELPA, in her
official and individual
capacity; SUE SWARTZLANDER,
Program Director for Modesto
City Schools, in her official
and individual capacity and Does

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2:10-cv-00523-GEB-JFM
ORDER

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1 – 200.,

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Defendants.

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________________________________

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VALLEY MOUNTAIN REGIONAL
CENTER, RICHARD JACOBS and TARA
SISEMORE-HESTER

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Counterclaimants,

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v.
M.A.F. and J.A., SPECIAL NEEDS
ADVOCATES FOR UNDERSTANDING,
and AUTISM REFORM CALIFORNIA,

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Counterdefendants.
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Pending are two separate dismissal motions, brought under

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Federal Rule of Civil Procedure (“Rule”) 12(b)(6), seeking dismissal of

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certain claims in Plaintiffs’ Second Amended Complaint. Specifically,

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Defendant Valley Mountain Regional Center (“VMRC”) seeks an order

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dismissing Plaintiffs’ claims alleged under Title III of the American

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with

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California’s

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(“Jacobs”) and Tara Sisemore-Hester (“Sisemore-Hester”) seek an order

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dismissing Plaintiffs J.H., L.H., J.A., and J.R.H.’s (“J.H. Plaintiffs”)

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claim alleged under 42 U.S.C. § 1983. Further, Defendants Virginia

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Johnson (“Johnson”) and Sue Swartzlander (“Swartzlander”) seek dismissal

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of the J.H. Plaintiffs’ § 1983 claim.

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Disabilities
Unruh

Act
Act;

(“ADA”)
and

and

VMRC

and

Plaintiffs’
Defendants

claims
Richard

alleged
Jacobs

Plaintiffs are four minors diagnosed with Autism Spectrum

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Disorder, and their parents. (Pls.’ Second Am. Compl. (“SAC”)

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23.) Plaintiffs allege in the SAC that all Defendants named in this

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action “have implemented a system under [the Early Intensive Behavioral

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¶¶ 20-

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Treatment Program Procedures and Guidelines (‘EIBT/PPG’)] which has

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unlawfully restricted access to intensive [Applied Behavior Analysis

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(‘ABA’)] services for Plaintiffs, as well as those similarly situated,

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in contravention of federal and state law.” Id. ¶ 34.

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I. Legal Standard

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To avoid dismissal under Rule 12(b)(6), a plaintiff must

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allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

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has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----,

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129 S. Ct. 1937, 1949 (2009).

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In analyzing whether a claim has facial plausibility, a court

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“accept[s] as true all well-pleaded allegations of material fact, and

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construe[s] them in the light most favorable to the non-moving party.”

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Daniels-Hall v. Nat’l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

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However, “the tenet that a court must accept as true all of the

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allegations

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conclusions.” Iqbal, 129 S. Ct. at 1949. “A pleading that offers ‘labels

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and conclusions’ or ‘a formulaic recitation of the elements of a cause

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of action will not do.’ Nor does a complaint suffice if it tenders

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‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.

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(quoting Twombly, 550 U.S. at 555, 557). “In sum, for a complaint to

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survive a motion to dismiss, the non-conclusory ‘factual content,’ and

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reasonable inferences from that content, must be plausibly suggestive of

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a claim entitling the plaintiff to relief.” Moss v. United States Secret

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Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Twombly, 550 U.S. at

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557).

contained

in

a

complaint

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is

inapplicable

to

legal

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II. Discussion
A. Title III of the ADA

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VMRC argues that Plaintiffs fail to state a claim for relief

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under Title III of the ADA. Plaintiffs allege in their Title III claim:

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“[VMRC] has discriminated against Plaintiffs by using the EIBT/PPG

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. . . as a barrier that has denied them access to intensive ABA

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services.” (SAC ¶ 95.) VMRC argues: “Plaintiffs failed to properly

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allege that VMRC is a ‘place of public accommodation’ under [Title

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III].” (VMRC’s Mot. 1:24-25.) Plaintiffs rejoin: “the SAC alleges that

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Plaintiffs have been denied access to an education program, which is a

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public accommodation as defined by the ADA.” (Pls.’ Opp. to VMRC’s Mot.

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4:16-18.)

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Title III prescribes: “No individual shall be discriminated

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against on the basis of disability in the full and equal enjoyment of

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the

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accommodations of any place of public accommodation by any person who

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owns,

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accommodation.” 42 U.S.C. § 12182(a). Public accommodations “are actual,

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physical places where goods or services are open to the public, and

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places

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Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

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Although Plaintiffs allege they have been denied access to

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intensive ABA services, Plaintiffs’ allegations do not plausibly suggest

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that intensive ABA services are “actual physical places.” Id. Therefore,

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Plaintiffs’ Title III claim is dismissed.

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B. Unruh Act

goods,

leases

where

services,

(or

the

facilities,

leases

public

to),

gets

or

those

privileges,

operates

goods

or

a

advantages,

place

services.”

of

or

public

Weyer

v.

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VMRC argues Plaintiffs’ Unruh Act claim should be dismissed

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since Plaintiffs have not sufficiently alleged that VMRC is a “business
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establishment” under the Unruh Act. Plaintiffs allege: “[VMRC] is a

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private non-profit agency . . . . [that] provide[s] services and

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supports to persons with developmental disabilities . . . . [and]

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employs more than 15 individuals[.]” (SAC ¶ 26.) VMRC contends it is not

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a business establishment since it “is a non-profit organization existing

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primarily for the purpose of serving the public good.” (VMRC’s Mot.

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8:10-11.) Plaintiffs counter VMRC qualifies as a business establishment

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under the Unruh Act even though it is a non-profit organization.

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The Unruh Act prescribes:
All persons within the jurisdiction of this state
are free and equal, and no matter what their sex,
race, color, religion, ancestry, national origin,
disability, medical condition, marital status, or
sexual orientation are entitled to the full and
equal
accommodations,
advantages,
facilities,
privileges,
or
services
in
all
business
establishments of every kind whatsoever.

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Cal. Civ. Code § 51(b). “[T]he California Supreme Court has directed

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that the term ‘business establishment’ be interpreted ‘in the broadest

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sense reasonably possible.’” Michelle M. v. Dunsmuir Joint Union Sch.

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Dist., No. 2:04-cv-2411-MCE-PAN, 2006 WL 2927485, at *7 (E.D. Cal. Oct.

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12, 2006) (quoting Isbister v. Boys’ Club of Santa Cruz, Inc., 40 Cal.

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3d 72, 78 (1985)). Thus, “[a]n organization is not excluded from the

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scope of [the Unruh Act] simply because it is nonprofit.” Doe v. Cal.

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Lutheran High Schl. Ass’n, 170 Cal. App. 4th 828, 836 (2009); see also

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O’Connor v. Village Green Owners Ass’n, 33 Cal. 3d 790, 796 (1983)

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(“[H]ospitals are often nonprofit organizations, and they are clearly

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business establishments to the extent that they employ a vast array of

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persons, care for an extensive physical plant and charge substantial

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fees to those who use the facilities.”)

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Here, Plaintiffs’ allegation that VMRC is a “non-profit agency

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. . . . [that] provide[s] services and supports to persons with

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developmental

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individuals” plausibly suggests that VMRC is a business establishment

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under the Unruh Act. (SAC ¶ 26.) Therefore, VMRC’s motion to dismiss

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Plaintiffs’ Unruh Act claim is denied.

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C. § 1983 Claim for Violation of Right of Intrastate Travel

disabilities

.

.

.

.

[and]

employs

more

than

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Johnson, Swartzlander, VMRC, Sisemore-Hester, and Jacobs seek

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dismissal of the J.H. Plaintiffs’ claim alleged under § 1983, in which

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Plaintiffs allege a violation of the right of intrastate travel under

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the Equal Protection Clause of the Fourteenth Amendment of the United

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States Constitution. These Defendants argue the right of intrastate

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travel is not secured by the Constitution. These Defendants further

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argue that even if there is a constitutional right of intrastate travel,

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the J.H. Plaintiffs have failed to allege sufficient facts to show such

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a right was violated. The J.H. Plaintiffs counter that the Court should

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recognize a right of intrastate travel. The J.H. Plaintiffs further

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argue they have sufficiently alleged their right of intrastate travel

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was violated since they allege they were denied access to an ABA program

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“based on a traveling restriction in the form of a durational residency

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requirement.” (Pls.’ Opp. to VMRC’s Mot. 14:1.)

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The J.H. Plaintiffs allegations concerning their intrastate
travel claim are the following:
The Supreme Court has been clear that it is
“constitutionally impermissible” for a State to
enact durational residency requirements for the
purpose of inhibiting the migration of needy
persons into the State. . . . VMRC . . . through
its
employee
Tara-Sisemore-Hester
[sic],
implemented the EIBT/PPG with Modesto City Schools,
through its employees Virginia Johnson and Sue
Swartzlander. [These Defendants] implemented the
EIBT/PPG to deny J.H. and L.H. access to an
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intensive ABA program. Specifically, J.H. and L.H.
were denied access to the ABA program due to their
failure
to
satisfy
a
durational
residency
requirement based on the date in which they
traveled to Modesto to establish residence.
Therefore, access was denied based on a traveling
restriction in the form of a durational residency
requirement.

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(SAC ¶¶ 102-03.)

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The question of whether there is a federal constitutional

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right of intrastate travel need not be reached, since even assuming

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arguendo that such a right exists, the J.H. Plaintiffs fail to allege a

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plausible violation of that right. Therefore, the J.H. Plaintiffs’

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§ 1983 claim alleging a violation of the right of intrastate travel is

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dismissed.

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D. Leave to Amend

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VMRC requests Plaintiffs’ claim under Title III of the ADA be

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dismissed with prejudice. VMRC, Johnson, Swartzlander, Sisemore-Hester,

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and Jacobs also request the J.H. Plaintiffs’ § 1983 claim for violation

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of the right of intrastate travel be dismissed with prejudice. “The

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power to grant leave to amend . . . is entrusted to the discretion of

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the

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amendment] . . . by ascertaining the presence of any of four factors:

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bad

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futility.’” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010)

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(quoting William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659,

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669 n.8 (9th Cir. 2009)). Plaintiffs were previously given leave to

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amend their Title III claim, and the J.H. Plaintiffs were previously

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given leave to amend their right of intrastate travel claim.

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alleged claims are still not viable and it is evident that further

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amendment to the Title III and right of intrastate travel claims “would

district

faith,

court,

undue

which

delay,

‘determines

prejudice

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to

the

the

propriety

opposing

[of

allowing

party,

and/or

Yet the

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be futile [;therefore,] there [is] no need to prolong the litigation by

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permitting further amendment.” Lipton v. Pathogenesis Corp., 284 F.3d

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1027, 1039 (9th Cir. 2002).

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III. Conclusion

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For the reasons stated herein, Plaintiffs’ claim under Title

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III of the ADA is dismissed with prejudice, and the J.H. Plaintiffs’ §

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1983 claim alleging a violation of the right of instrastate travel is

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dismissed with prejudice.

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VMRC’s motion to dismiss Plaintiffs’ Unruh Act claim is

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denied.

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Dated:

September 9, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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