Smith v. Pride Mobility Products Corporation

Filing 15

ORDER by Judge Lucy H. Koh granting 4 Defendant's Motion to Dismiss. (lhklc3, COURT STAFF) (Filed on 10/28/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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PAMELA E. SMITH,

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Plaintiff,

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ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS

v.

Re: Dkt. No. 4
PRIDE MOBILITY PRODUCTS
CORPORATION,
Defendant.

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Case No. 16-CV-04411-LHK

Plaintiff Pamela Smith (“Plaintiff”) sues Defendant Pride Mobility Products Corporation
(“Defendant”) for state-law disability discrimination, violations of federal and state manufacturing
laws, and strict products liability. ECF No. 1-1 (“Compl.”). Before the Court is Defendant’s
motion to dismiss. ECF No. 4 (“Def. Mot.”). Having considered the submissions of the parties,
the relevant law, and the record in this case, the Court hereby GRANTS Defendant’s motion to

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dismiss.
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I. BACKGROUND
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A. Factual Background
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Plaintiff, a California citizen, suffers from arthritis and is disabled. Compl. ¶¶ 1, 8–9.
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Plaintiff uses a wheelchair and a wheelchair lift in order to avoid walking and bending over. Id. ¶¶

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9–10. Defendant is a Pennsylvania corporation that manufactures wheelchairs and wheelchair

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lifts. Id. ¶ 2. In 2014, Plaintiff purchased both a travel wheelchair and a wheelchair lift

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manufactured by Defendant. Id. ¶¶ 2, 11, 22. Plaintiff’s claims arise out of her use of these two

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products.
Plaintiff purchased a wheelchair lift (“the lift”) from Defendant in June 2014; Plaintiff had

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the lift installed in her minivan. Id. ¶ 11–12. The lift’s control is located on a coiled cord, “which

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was designed to be hung up on the upright portion of The Lift, which goes into the car behind the

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wheelchair.” Id. ¶ 14. According to Plaintiff, “[w]hen the control is in the place designed for it,

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Plaintiff could not reach the control.” Id. Although “Plaintiff was able to use a pocket in the side

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of her van” to place the control, other users could not reach the control when the control was in the

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van pocket, “especially when putting the wheelchair back into the car.” Id. Plaintiff states that if

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she let go of the control, it “went zipping into the back of the car, leaving [Plaintiff] stuck without

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a way to get her wheelchair in or out of the car.” Id. ¶ 15.

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In addition to the location of the control, Plaintiff alleges several other problems with the

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lift. Specifically, the lift’s platform “is designed in such a fashion that unless the wheelchair is

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positioned exactly, the wheelchair tilts as Plaintiff sits in it before driving the wheelchair off The

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Lift.” Id. ¶ 16. According to Plaintiff, “it is very painful, difficult, and frightening for Plaintiff to

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attempt to drive the wheelchair off The Lift without sitting in it first.” Id. ¶ 16. Plaintiff also

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states that the “tie down for The Lift broke almost every time Plaintiff used it,” id. ¶ 17; that the

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wheelchair can slide on the platform as the car is driving, even if the wheelchair is properly

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secured, id. ¶ 18; that the lift “squeaks badly,” id. ¶ 19; and that “[t]he Lift jacks the van upwards

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if The Lift is not turned off at the exactly correct position,” id. ¶ 20.

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In July 2014, Plaintiff purchased a “Go Go Elite Traveler Plus” wheelchair (“the

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wheelchair”), which was also manufactured by Defendant. Id. ¶ 22. Plaintiff states that on

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September 13, 2014, Plaintiff used the wheelchair while attending a Renaissance Faire in Santa

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Clara County. Id. ¶¶ 23–25. A battery indicator on the wheelchair shows green, yellow, and red

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lights to indicate the remaining battery power. Id. ¶ 26. According to Plaintiff, she checked the

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remaining battery power prior to ascending a hill, and “[t]he battery indicator was only down two

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out of six greens.” Id. Plaintiff accordingly decided to ascend the hill. Id. Plaintiff states that

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“[a]fter about 20 feet the battery indicator moved to red, and the wheelchair stopped.” Id. ¶ 27.

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Plaintiff then “decided to do a three point turn so that she could go forward down the hill.” Id.

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However, “[w]hen Plaintiff put The Wheelchair into reverse, The Wheelchair started rolling,

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freewheeling down the hill at an angle to the hill.” Id. ¶ 28. The wheelchair hit a bale of hay and

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tossed Plaintiff to the ground. Id. Plaintiff “injured her neck and her knee” and suffered “a

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permanently disabled dislocated big right toe.” Id. ¶ 30. Plaintiff also alleges that she suffered
from whiplash for two years following the accident and that she has suffered psychological

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Northern District of California

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damage and emotional distress. Id. ¶¶ 31–34. Plaintiff estimates that she has lost $60,000 in

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revenue since being injured. Id. ¶¶ 34. She now also faces difficulty and additional expenses

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while traveling because she no longer uses the wheelchair manufactured by Defendant, and she

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has not purchased a different travel wheelchair. Id. ¶¶ 33–35.

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B. Procedural History

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Plaintiff filed suit against Defendant on June 24, 2016 in California state court. See id.

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Plaintiff’s complaint alleged the following seven causes of action:

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Count One of Plaintiff’s complaint alleges that Defendant violated the Unruh Civil Rights

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Act (“Uhruh Act”), Cal. Civ. Code § 51(b), because Defendant’s wheelchair lift deprived Plaintiff

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of “full and equal access and accommodations” to business establishments. Id. at ¶¶ 36–42.

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Count Two alleges that Defendant’s “failure to manufacture a reliable Go Go Elite

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Traveler Plus and a wheelchair lift that functions without difficulties” violates Plaintiff’s rights

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under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., which constitutes

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a violation of the Unruh Act, Cal. Civ. Code § 51(f). Id. ¶ 45.

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Count Three alleges that Defendant violated California Civil Code § 51.7(a), which

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provides the right to “be free from any violence, or intimidation by threat of violence, committed

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against their persons or property.” Id. ¶¶ 48–51. Plaintiff states that “there is a likelyhood [sic]

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

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that Defendant deliberately manufactured” its wheelchair “to free wheel when vigorously pushed

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backwards” and that the wheelchair thus “caused violence to Plaintiff’s person and property.” Id.

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¶ 51.
Count Four alleges that Defendant violated unspecified provisions of California and

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federal law and regulations “regarding the manufacture of wheelchairs.” Id. ¶¶ 52–54.
Count Five alleges that Defendant violated unspecified provisions of California and federal

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law and regulations “regarding the manufacture of wheelchair lifts.” Id. ¶¶ 55–57.

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Count Six alleges that Defendant “manufactured a dangerous wheelchair” and that

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Defendant should be held strictly liable for the damages caused to Plaintiff. Id. ¶¶ 58–60.
Plaintiff states that the wheelchair “failed to properly function, freewheeled down a hill, and

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Northern District of California

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caused injuries to Plaintiff.” Id.
Count Seven alleges that Defendant “manufactured a difficult to use and dangerous

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wheelchair lift” and that Defendant should be held strictly liable. Id. ¶¶ 61–63. Plaintiff alleges

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that the wheelchair lift “failed to properly function, causing difficulties and injuries to Plaintiff.”

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Id.
On August 4, 2016, Defendant filed a notice of removal and removed the case to the U.S.

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District Court for the Northern District of California on the basis of diversity jurisdiction. ECF

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No. 1.

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On August 8, 2016, Defendant moved to dismiss the complaint for failure to state a claim.

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ECF No. 4. Plaintiff opposed the motion on September 20, 2016, ECF No. 11, and Defendant

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replied on October 6, 2016, ECF No. 12.

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II. LEGAL STANDARD

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A. Motion to Dismiss Under Rule 12(b)(6)

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Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an

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action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged. The plausibility standard is not akin to a

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‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

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unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted).

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For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations
in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving

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party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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However, a court need not accept as true allegations contradicted by judicially noticeable facts,

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Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and a “court may look beyond the

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plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6) motion into

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one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor must the

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Northern District of California

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Court “assume the truth of legal conclusions merely because they are cast in the form of factual

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allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011). Mere “conclusory

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allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.”

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Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

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B. Leave to Amend

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If the court concludes that a motion to dismiss should be granted, it must then decide

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whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave

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to amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose

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of Rule 15 . . . [is] to facilitate decision on the merits, rather than on the pleadings or

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technicalities.” Lopez, 203 F.3d at 1127 (citation omitted). Nonetheless, a district court may deny

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leave to amend a complaint due to “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

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to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” See

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Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (alteration in original).

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III. DISCUSSION

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A. Failure to State a Claim for Violations of the Unruh Civil Rights Act

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Count One and Count Two of Plaintiff’s complaint allege that Defendant violated

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California’s Unruh Act, Cal. Civil Code § 51 et seq. Count One alleges a violation of the Unruh

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Act that is independent of an ADA violation. Count Two alleges a violation of the Unruh Act that

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is premised on a violation of the ADA.

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1. Count One: Unruh Act Violation Independent of the ADA

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Section 51 of the Unruh Act provides that individuals within the state of California “are
free and equal, and no matter what their . . . disability[ or] medical condition . . . are entitled to the

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full and equal accommodations, advantages, facilities, privileges, or services in all business

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establishments of every kind whatsoever.” Cal. Civ. Code § 51(b). In order to establish a

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disability discrimination claim under the Unruh Act that is independent of a violation of the ADA,

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“a plaintiff must establish that (1) she was denied the full and equal accommodations, advantages,

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facilities, privileges, or services in a business establishment; (2) her disability was a motivating

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factor for this denial; (3) defendants denied plaintiff the full and equal accommodations,

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advantages, facilities, privileges, or services; and (4) defendants’ wrongful conduct caused

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plaintiff to suffer injury, damage, loss or harm.” Phillips v. P.F. Chang’s China Bistro, Inc., 2015

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WL 4694049, at *6 (N.D. Cal. Aug. 6, 2015). For the reasons discussed below, Plaintiff has not

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stated a claim for a violation of § 51(b) of the Unruh Act.

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First, Plaintiff has failed to state a claim because Plaintiff was not denied “full and equal”

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services by Defendant. See id. According to Plaintiff’s complaint, Plaintiff successfully

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purchased and received the goods that Defendant offers. Compl. ¶¶ 2, 11, 22. After purchasing

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the wheelchair and wheelchair lift, Plaintiff found these products to be unsatisfactory or defective.

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Id. ¶¶ 15–21, 29. However, Plaintiff’s dissatisfaction with Defendant’s products does not establish

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that Plaintiff accessed, purchased, or received Defendant’s products on anything less than a “full

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and equal” basis. Phillips, 2015 WL 4694049, at *4; see also Koire v. Metro Car Wash, 707 P.2d

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195, 197 (Cal. 1985) (explaining that the California legislature, in enacting the Unruh Act, was

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concerned with businesses offering “equal treatment of patrons in all aspects of” the business).

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Absent any indication that Plaintiff was denied “full and equal” services by Defendant, Plaintiff

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has failed to state a claim under § 51(b) of the Unruh Act. See Cal. Civ. Code § 51(b).

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Second, under California law, “[i]ntentional discrimination is required for an independent
violation of the Unruh Act,” as opposed to a violation of the Unruh Act that is premised on a

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violation of the ADA. Phillips, 2015 WL 459449, at *6 (citing Munson v. Del Taco, Inc., 208

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P.3d 623, 625 (Cal. 2009)). “The California Supreme Court has concluded that the [Unruh] Act

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requires allegations of willful, affirmative misconduct, and that a plaintiff must allege more than

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the disparate impact of a facially neutral policy on a particular group.” Young v. Facebook, Inc.,

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790 F. Supp. 2d 1110, 1116 (N.D. Cal. 2011) (internal quotation marks omitted). Here, Plaintiff

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alleges that Defendant “fail[ed] to manufacture a wheelchair lift that functions without difficulty”

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and that these defects caused Plaintiff to be “unable to have full and equal accommodations.”

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Compl. ¶¶ 38–39. Plaintiff does not allege that Defendant willfully manufactured a deficient

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Northern District of California

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wheelchair lift and that her “disability was a motivating factor” in Defendant’s decision to

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intentionally manufacture a defective wheelchair lift. See Phillips, 2015 WL 4694049, at *6; see

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also Young, 790 F. Supp. 2d at 1116 (dismissing Unruh Act claim because Plaintiff did not allege

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that Defendant “treated her differently because of her disability” or that Defendant applied

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“policies in a way that targets individuals with disabilities.”).

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The Court accordingly holds that Plaintiff has not adequately alleged a claim for disability

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discrimination under California Civil Code § 51(b). However, because it is not evident that

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amendment is futile, the court will grant leave to amend for Plaintiff to address the above

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deficiencies. See Lopez v. Smith , 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (“A district court

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should grant leave to amend even if no request to amend the pleading was made, unless it

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determines that the pleading could not possibly be cured by the allegation of other facts.”).

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Accordingly, the Court GRANTS with leave to amend Defendant’s motion to dismiss Count One.

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2. Count Two: Unruh Act Violation Premised on the ADA

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Count Two of Plaintiff’s complaint alleges that Defendant violated the Unruh Act, Cal.

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Civ. Code § 51(f), because Defendant violated the ADA. “Under the Unruh Act, any violation of

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the ADA is an automatic violation of the Unruh Act.” Kalani v. Starbucks Corp., 81 F. Supp. 3d

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876, 892 (N.D. Cal. 2015) (citing Cal. Civ. Code § 51(f)). A Plaintiff alleging a violation of the

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Unruh Act that is premised on a violation of the ADA does not have to establish intentional

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discrimination. Phillips, 2015 WL 4694049, at *7 (“A violation of the ADA constitutes a

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violation of the Unruh Act and does not require a showing of intentional discrimination.”).

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Plaintiff’s complaint does not specify which provision of the ADA Defendant allegedly

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violated. The Court will assume that Plaintiff intends to allege that Defendant violated Title III of

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the ADA, which “prohibits discrimination against the disabled in the full and equal enjoyment of

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public accommodations, 42 U.S.C. § 12182(a), and public transportation services, § 12184(a).”

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Pilling v. Bay Area Rapid Transit, 881 F. Supp. 2d 1152, 1162 (N.D. Cal. 2012). For the reasons

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discussed below, Plaintiff has failed to state a claim under Title III of the ADA, and thus Plaintiff

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has failed to state a claim under the Unruh Act premised on an ADA violation.

United States District Court
Northern District of California

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First, Plaintiff has failed to state a claim under the Unruh Act that is premised on

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Defendant’s violation of § 12182(a) of the ADA, which “prohibits discrimination . . . in the full

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and equal enjoyment of public accommodations.” See id. Section 12182(a) of the ADA states

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that “[n]o individual shall be discriminated against on the basis of disability in the full and equal

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enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of

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public accommodation by any person who owns, leases (or leases to), or operates a place of public

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accommodation.” 42 U.S.C. § 12182(a). In order to establish discrimination under the statute, a

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plaintiff must show that: (1) [s]he is disabled within the meaning of the ADA; (2) the defendant is

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a private entity that owns, leases, or operates a place of public accommodation; and (3) the

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plaintiff was denied public accommodations by the defendant because of his disability.” Arizona

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ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010).

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Plaintiff has not stated a claim for a violation of § 12182(a) because Defendant is not a

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“place of public accommodation” for purposes of the ADA. 42 U.S.C. § 12182(a). “Title III

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provides an extensive list of ‘public accommodations’ in § 12181(7).” Weyer v. Twentieth

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Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); see 42 U.S.C. § 12181(7) (listing

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twelve categories of private establishments that are considered “public accommodation” if the

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establishment affects interstate commerce, such as “sales or rental establishment[s]”). The Ninth

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Circuit has explained, however, that “public accommodations” for purposes of the statute are

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

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public gets those goods or services.” Id. More specifically, the Ninth Circuit has held that “some

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connection between the good or service complained of and an actual physical place is required.”

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Id.

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Here, Plaintiff states that she purchased Defendant’s wheelchair and wheelchair lift, and

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that Plaintiff has difficulty traveling because these items “function[] with[] difficulties.” See, e.g.,

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Compl. ¶¶ 2, 11, 35. There is no “connection,” however, between the good that Plaintiff received

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from Defendant “and an actual physical place” that is owned or leased by Defendant that Plaintiff
cannot access because of her disability. See Weyer, 198 F.3d at 1114; see also Young, 790 F.

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Northern District of California

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Supp. 2d at 1116 (finding that Facebook was not a “place of public accommodation” because

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Facebook’s allegedly discriminatory internet services did “not have a nexus to a physical place of

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public accommodation for which Facebook may be liable under the statute,” such as a store that

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Facebook itself “owns, leases . . . or operates”). Indeed, Plaintiff’s complaint contains no facts to

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suggest that Defendant “owns, leases . . . or operates” an “actual physical” location at all. Thus,

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because Defendant is not a “public accommodation” within the meaning of the ADA, see Weyer,

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198 F.3d at 1114, Plaintiff has failed to allege that Defendant is liable under § 12182(a).

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Moreover, even on the assumption that Defendant is a place of “public accommodation”

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under the statute, Plaintiff’s complaint still fails to state a claim for relief. The ADA “prohibits

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discrimination in the enjoyment of the goods [and] services” provided by places of public

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accommodation. Id. at 1115 (internal quotation marks omitted). The Ninth Circuit has explained

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that “[t]he ordinary meaning of this language is that whatever goods or services the place

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provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods

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and services.” Id. (emphasis added). The ADA thus “does not require provision of different

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goods or services, just nondiscriminatory enjoyment of those that are provided.” Id. Again,

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Plaintiff states that she purchased the wheelchair and wheelchair lift that were manufactured by

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Defendant, but that Plaintiff found that these products functioned with difficulties. See, e.g.,

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Compl. ¶ 45. The facts alleged in Plaintiff’s complaint thus show that Plaintiff received “whatever

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goods or services [Defendant] provides.” Weyer, 198 F.3d at 1115. Plaintiff’s complaint contains

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no facts to suggest that Defendant “discriminate[d] on the basis of disability in providing

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enjoyment of those goods and services” to Plaintiff. Id. Thus, even assuming that Defendant is a

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place of “public accommodation,” Plaintiff has failed to state a claim for discrimination under

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§12182 of the ADA.

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Second, Plaintiff has failed to state a claim that Defendant violated § 12184(a) of the ADA.

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Section 12184(a) of the ADA “prohibits discrimination by a private entity that provides ‘specified

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public transportation services,’ is ‘primarily engaged in the business of transporting people,’ and
whose operations affect commerce.” Pilling, 881 F. Supp. 2d at 1162. Plaintiff asserts in its

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Northern District of California

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opposition to Defendant’s motion to dismiss that Defendant is a “[p]rivate entit[y] that [is]

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primarily engaged in the business of transporting people” and thus, under the ADA, Defendant

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may “not discriminate against any individual on the basis of disability in the full and equal

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enjoyment of specified transportation services.” Pl. Op. at 6.

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Plaintiff’s reliance on § 12184(a) is not persuasive. According to Plaintiff’s complaint,

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Defendant manufactures and sells wheelchairs and wheelchair lifts. See Compl. ¶¶ 2, 11.

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However, under the statute, a “specified public transportation service” is the “transportation by

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bus, rail, or any other conveyance (other than aircraft) provided by a private entity to the general

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public, with general or special service (including charter service) on a regular and continuing

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basis.” Pilling, 881 F. Supp. 2d at 1162 (quoting 49 C.F.R. § 37.3). “[O]ther conveyance[s]” that

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fall within the statutory definition are services such as cruise ships, which “are used almost

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exclusively for transporting passengers,” “operate according to set schedules,” and offer

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transportation services “on a regular and continuing basis.” See Deck v. Am. Hawaii Cruises, Inc.,

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1999 WL 92210, at *4 (D. Haw. 1999). Defendant does not fall within the meaning of the statute.

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By manufacturing and selling wheelchairs and wheelchair lifts, Defendant does not itself transport

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passengers, let alone offer conveyance “to the general public, with general or special service . . .

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on a regular or continuing basis.” Pilling, 881 F. Supp. 2d at 1162. Accordingly, because

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Defendants are not a provider of “specified public transportation services,” Plaintiff has failed to

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allege that Defendants are liable under § 12184(a) of the ADA. See § 12184(a).
Moreover, as discussed above, even on the assumption that Defendant offers

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“transportation services” or transports people, Plaintiff has not alleged that she received less than

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“full and equal enjoyment of” the services offered by Defendant. Id. Again, Plaintiff purchased

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Defendant’s wheelchair and wheelchair lift, and Plaintiff found the products to be defective and

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unreliable. See Compl. ¶¶ 2, 11. Thus, even assuming that Defendant provides transportation

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services, Plaintiff has failed to allege that Defendant violated § 12184(a) by discriminating against

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her on the basis of her disability in its provision of services.
In sum, Plaintiff has failed to state a claim for a violation of the ADA, and Plaintiff has

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United States District Court
Northern District of California

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thus accordingly failed to state a claim for a violation of § 51(f) of the Unruh Act. However,

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because leave to amend is not necessarily futile, the Court will grant leave to amend in order to

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allow Plaintiff the opportunity to correct the above deficiencies. See Lopez, 203 F.3d at 1130 (“A

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not possibly be cured by the allegation of other facts.”

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(internal quotation marks omitted)). The Court accordingly GRANTS with leave to amend

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Defendant’s motion to dismiss Count Two.

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B. Failure to State a Claim for Violation of California Civil Code 51.7

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Count Three of Plaintiff’s complaint states that Defendant violated California Civil Code §

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51.7,1 which provides that all individuals within the state of California “have the right to be free

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from any violence, or intimidation by threat of violence, committed against their persons or

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property because of” a protected characteristic, including disability. Cal Civ. Code § 51.7; see

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also Cal. Civ. Code § 51(b),(e) (setting forth protected characteristics). In order to allege a

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violation of this statute, Plaintiff must establish (1) “Defendant[] committed or threatened violent

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Plaintiff’s complaint describes this claim as an Unruh Act claim. However, § 51.7 “is not part of
the Unruh Act.” Ramirez v. Wong, 116 Cal. Rptr. 3d 412, 416 (Cal. Ct. App. 2010). Section 51.7
merely incorporates the Unruh Act’s definitions of what constitutes a protected characteristic—
such as race, gender, or disability—for purposes of protection from violence under § 51.7. Id.
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acts against Plaintiff[]”; (2) Defendant was motivated by its perception of Plaintiff’s disability; (3)

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Plaintiff was harmed; and (4) Defendant’s “conduct was a substantial factor in causing Plaintiff[’s]

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harm.” Campbell v. Feld Entm’t, Inc., 75 F. Supp. 3d 1193, 1205 (N.D. Cal. 2014).

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Plaintiff has not alleged a violation of § 51.7. Section 51.7 is “a ‘hate crimes’ statute,” and

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accordingly “requires violence or a threat of violence.” Ramirez v. Wong, 116 Cal. Rptr. 3d 412,

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417 (Cal. Ct. App. 2010). Specifically, it requires violence or a threat of violence that is motivated

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by Plaintiff’s disability. See Boarman v. Cnty. of Sacramento, 2013 WL 3894167, at *2 (E.D. Cal.

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July 26, 2013) (“To adequately plead a claim under section 51.7, plaintiff must allege facts to

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support a reasonable inference that the plaintiff’s [protected characteristic] was a motivating

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Northern District of California

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factor.” (internal quotations and citation omitted)).
Here, Plaintiff alleges that Defendant manufactured a wheelchair that is designed to free

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wheel backwards when pushed. Compl. ¶ 50. Although Defendant may have manufactured a bad

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product, and the functioning of this product may have ultimately caused Plaintiff harm, this does

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not state a claim for relief under § 51.7. In order to state a claim, Plaintiff must allege facts that

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establish that Defendant, motivated by a desire to harm Plaintiff on the basis of her disability,

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manufactured the wheelchair with the intent of causing Plaintiff harm. See Boarman, 2013 WL

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3894167, at *2. The facts alleged in Plaintiff’s complaint fall short of such a showing.

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Accordingly, because Plaintiff has failed to allege facts showing intentional conduct on

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behalf of the Defendant or conduct that is motivated by Plaintiff’s disability, the Court finds that

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Plaintiff has failed to state a claim under California Civil Code § 51.7. Although it is unlikely that

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Plaintiff can allege facts sufficient to state a claim for relief under this statute, the Court will grant

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leave to amend because amendment is not necessarily futile. See Lopez, 203 F.3d at 1130 (“A

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not possibly be cured by the allegation of other

25

facts.”). The Court accordingly GRANTS with leave to amend Defendant’s motion to dismiss

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Count Three.

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C. Failure to State a Claim for Violations of Federal and State Manufacturing Laws
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

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Counts Four and Five of Plaintiff’s complaint allege that Defendant “violated California

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and Federal laws and regulations regarding the manufacture of wheelchairs” and wheelchair lifts.

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Compl. ¶¶ 54 (wheelchair) & 56 (wheelchair lift). Plaintiff’s complaint does not state which

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federal and state laws Defendant allegedly violated.

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Defendant asserts in its motion to dismiss that the Federal Food and Drug Administration

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(“FDA”) is responsible for the regulation of “the manufacture and distribution of powered

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wheelchairs[] and wheelchair accessories” and that, pursuant to the Food Drug and Cosmetic Act

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(“FDCA”), 21 U.S.C. § 360j(f)(1)(A), the FDA has enforcement authority for violations of

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relevant federal regulations regarding the manufacture and distribution of wheelchairs and
wheelchair accessories. Def. Mot. at 7. The FDCA, Defendant asserts, does not permit private

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United States District Court
Northern District of California

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litigants to bring claims alleging violations of the FDCA. Id. at 8. Moreover, with regards to

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Plaintiff’s claims that Defendant violated state manufacturing laws, Defendant asserts that

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California regulates medical devices through the Sherman Food, Drug, and Cosmetic Law

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(“Sherman Law”), Cal. Health & Safety Code § 109920, and that this law similarly does not

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provide a private cause of action for private litigants. Def. Mot. at 9.

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Assuming that Plaintiff is seeking in Counts Four and Five to bring causes of action under

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the FDCA for Defendant’s violations of the FDCA’s manufacturing requirements, Plaintiff has

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failed to state a claim. “Section 337(a) of the FDCA bars private enforcement of the statute,

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stating that ‘all such proceedings for the enforcement, or to restrain violations, of this [Act] shall

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be by and in the name of the United States.” PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th

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Cir. 2010) (quoting 21 U.S.C. § 3337(a)). “[I]t is the Federal Government rather than private

22

litigants who are authorized to file suit for noncompliance with the medical device provisions.” Id.

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(quoting Buckman Co. v. Plaintiffs’ Legal Comm. 531 U.S. 341, 349 n.4 (2001)).

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Similarly, to the extent that Plaintiff seeks in Counts Four and Five to bring causes of

25

action under the Sherman Law for Defendant’s alleged violation of the Sherman Law’s

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manufacturing requirements, Plaintiff has failed to state a claim. “[T]here is no private right of

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action under the Sherman Law.” Thomas v. Costco Wholesale Corp., 2015 WL 4776298, at *7

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

1

(N.D. Cal. Aug. 13, 2015).

2

Plaintiff’s opposition to Defendant’s motion to dismiss asserts that she “is not requesting

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any private enforcement of FDA regulations” or the Sherman Act, but rather that she is seeking a

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damages remedy for tort claims premised on a violation of state and federal regulations. Pl. Op. at

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6–8. However, to the extent that Plaintiff seeks to assert causes of action for strict product

6

liability under California law, these causes of action are already alleged in Counts Six and Seven

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of the complaint, as discussed below. To the extent that Plaintiff seeks to assert a cause of action

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under a separate theory of state tort law, Plaintiff has failed to state a claim.

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Accordingly, the Court GRANTS Defendant’s motion to dismiss Counts Four and Five.
Leave to amend will be granted to the extent that Plaintiff seeks to allege a state tort cause of

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United States District Court
Northern District of California

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action that is separate from Plaintiff’s claims for strict products liability. However, for the reasons

12

discussed above, leave to amend will not be granted for Plaintiff to reallege causes of action under

13

the FDCA or the Sherman Act. See Leadsinger, 512 F.3d at 532.

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D. Failure to State a Claim for Strict Products Liability

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Lastly, Counts Six and Seven of Plaintiff’s complaint allege that Defendant should be

16

strictly liable for Plaintiff’s damages sustained as a result of Defendant’s deficient manufacturing

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of the wheelchair and wheelchair lift.

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1. Count Six: Strict Product Liability for the Wheelchair
First, Count Six alleges that Defendant “manufactured a dangerous wheelchair” and that

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Defendant should be held strictly liable. Compl. ¶¶ 58–60. Under California law, “[a]

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manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to

22

be used without inspection for defects, proves to have a defect that causes injury to a human

23

being.” Anderson v. Owens-Corning Fiberglas Corp., 53 Cal. 3d 987, 994 (Cal. 1991) (internal

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quotation marks omitted). California recognizes strict liability “for three types of defects—

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manufacturing defects, design defects, and ‘warning defects.’” Id. at 995.

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It is unclear from Plaintiff’s complaint and Plaintiff’s opposition to Defendant’s motion to
dismiss whether Plaintiff intends to assert in Count Six a manufacturing-defect theory, a design14
Case No.16-CV-04411-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

1

defect theory, or both. Under either theory, however, Plaintiff fails to state a claim for strict

2

product liability under California law.

3
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a. Manufacturing Defect
First, Plaintiff fails to adequately allege a manufacturing defect. “A product with a

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manufacturing defect ‘is one that differs from the manufacturer’s intended result or from other

6

ostensibly identical units of the same product line.’” Dunson v. Cordis Corp., 2016 WL 3913666,

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at *6 (N.D. Cal. July 20, 2016) (quoting Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 430 (Cal.

8

1978)). In order to allege a strict products liability claim under a manufacturing-defect theory, a

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plaintiff “must identify/explain how the [product] either deviated from [the company’s] intended
result/design or how the [product] deviated from other seemingly identical” models of the product.

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United States District Court
Northern District of California

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Lucas v. City of Visalia, 726 F. Supp. 2d 1149, 1155 (E.D. Cal. 2010).

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Here, Plaintiff states that the wheelchair started “freewheeling down [a] hill” after Plaintiff

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placed the wheelchair in reverse on a hill and that the wheelchair “was either defective or . . .

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deliberately designed to” freewheel in such a manner. Compl. ¶¶ 28–29. The complaint does not

15

state how the wheelchair that Plaintiff purchased is different from the design of the wheelchair that

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Defendant intended or from other identical models of the wheelchair. Dunson, 2016 WL 391366,

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at *6; see also In re Toyota Motor Corp., 754 F. Supp. 2d 1208, 1221 (C.D. Cal. 2010) (finding

18

that Plaintiff failed to state a strict product liability claim under a manufacturing-defect theory

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because the complaint failed to allege “how the vehicle deviated from Toyota’s intended design or

20

other product models.”). Rather, “Plaintiff[] make[s] only conclusory allegations” that the product

21

is defective, which is insufficient to allege a manufacturing defect claim. Trabakoolas v. Watts

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Water Techs., Inc., 2012 WL 2792441, at *4 (N.D. Cal. July 9, 2012). Plaintiff has thus failed to

23

state a claim that the wheelchair was defectively manufactured.

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b. Design Defect

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Plaintiff also fails to state a claim in Count Six for strict product liability under a design-

26

defect theory. “A design defect is present when a product ‘fail[s] to perform as safely as an

27

ordinary consumer would expect when used as intended or reasonably foreseeable, or if, on

28

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Case No.16-CV-04411-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

balance, the risk of danger inherent in the challenged design outweighs the benefits of the

2

design.’” Trabakoolas, 2012 WL 2792441, at *3 (quoting Brown v. Superior Court, 44 Cal. 3d

3

1049, 1057 (Cal. 1988)). Thus, under a design-defect theory, a design may be “defective in one of

4

two ways.” Lucas, 726 F. Supp. 2d at 1154 (citing Soule v. Gen. Motors Corp., 8 Cal. 4th 548,

5

566–67 (Cal. 1994)). First, a products design is defective under the “consumer expectations test”

6

if the product “has failed to perform as safely as ordinary consumers would expect when used in

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an intended or reasonably foreseeable manner.” Id. Second, a products design is defective under

8

the “risk-benefit test” if the product’s “design embodies ‘excessive preventable danger,’ that is,

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the risk of danger inherent in the design outweighs the benefits of such design.” Id. A plaintiff

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stating a claim for a design defect “should identify which design defect theory is being utilized.”

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United States District Court
Northern District of California

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In re Toyota, 754 F. Supp. 2d at 1220.

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Count Six of Plaintiff’s complaint does not “identify” whether Plaintiff intends to proceed

13

under the consumer-expectations test or the risk-utility test. See id. As discussed above, Plaintiff

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states that the wheelchair “was either defective or . . . deliberately designed to freewheel when

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pushed vigorously backwards.” Compl. ¶ 29. Plaintiff alleges that although “such a design might

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be useful in a nursing home, it should not have been installed in a wheelchair called Go Go Elite

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Traveler Plus.” Id. This does not identify which theory of design defect Plaintiff intends to assert.

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Moreover, in addition to identifying the test that Plaintiff intends to use, Plaintiff’s

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complaint must “allege facts to support” the test that Plaintiff identifies in order to adequately state

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a claim for strict products liability. In re Toyota, 754 F. Supp. 2d at 1220. Under either a

21

manufacturing-defect theory or a design-defect theory, Count Six of the complaint fails to allege

22

supporting facts. Specifically, if Plaintiff seeks to assert a claim under the consumer-expectation

23

test, her complaint “should describe how [the product] failed to meet the minimum safety

24

expectations of an ordinary consumer.” Altman v. HO Sports Co., Inc., 2009 WL 4163512, at *8

25

(E.D. Cal. Nov. 23, 2009). Here, Plaintiff’s complaint is devoid of any allegations regarding the

26

“minimum safety expectations” that an ordinary consumer of a wheelchair would have, see id., in

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ascending or reversing a wheelchair on a hill.

28

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Case No.16-CV-04411-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

1

Moreover, if Plaintiff seeks to assert a claim under the risk-benefit theory, her complaint

2

“should allege that the risks of the design outweigh the benefits and then explain how the

3

particular design” of the product caused Plaintiff harm. Lucas, 726 F. Supp.2d at 1155 (internal

4

quotation marks omitted). Plaintiff’s complaint does not contain these allegations. Rather,

5

Plaintiff alleges only that the “free wheel” design of the wheelchair “might be useful in a nursing

6

home” but that such a design “should not have been installed in a wheelchair called Go Go Elite

7

Traveler Plus.” Compl. at ¶ 29. Plaintiff does not allege any facts regarding the relative risks or

8

benefits of the wheelchair’s design.

9

Accordingly, Plaintiff has failed to state a claim in Count Six for strict product liability
under either a manufacturing-defect theory or a design-defect theory. However, the Court finds

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United States District Court
Northern District of California

10

that amendment of this claim would not necessarily be futile. Accordingly, the Court GRANTS

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with leave to amend Defendant’s motion to dismiss Counts Six.

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2. Count Seven: Strict Product Liability for the Wheelchair Lift

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Count Seven of Plaintiff’s complaint alleges that the Defendant is strictly liable with

15

regards to the wheelchair lift. This claim suffers from the same deficiencies identified above with

16

regards to Count Six.

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Plaintiff alleges that she cannot reach the control for the lift when seated in her wheelchair;

18

that the lift tilts when Plaintiff sits on the lift in her wheelchair; that the tie breaks; that the lift

19

squeaks badly; and that the lift “jacks the van upwards” if “not turned off at the exactly correct

20

position.” Compl. ¶¶ 14–21. As discussed above, it is not clear from Plaintiff’s complaint

21

whether Plaintiff intends to assert a design defect or a manufacturing defect with regards to the

22

wheelchair lift. Under either theory, however, Plaintiff’s complaint fails to state a claim.

23

First, if Plaintiff intends to assert a claim for a manufacturing defect in Count Seven,

24

Plaintiff has failed to allege how the wheelchair lift “differed from defendants’ intended design”

25

for the lift. Dunson, 2016 WL 391366, at *6. Accordingly, Plaintiff has not adequately alleged a

26

manufacturing defect.

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Second, if Plaintiff intends to assert a claim for defective design in Count Seven, Plaintiff
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Case No.16-CV-04411-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

1

has also failed to state a claim. Again, Plaintiff’s complaint fails to identify which design-defect

2

theory she wishes to utilize. See Toyota, 754 F. Supp. 2d at 1220. If Plaintiff intends to assert a

3

claim pursuant to the consumer-expectations test, Plaintiff has not described how the lift “failed to

4

meet the minimum safety expectations of an ordinary consumer.” Altman, 2009 WL 4163512, at

5

*8. Indeed, many of Plaintiff’s allegations refer to frustrations that are unrelated to safety

6

concerns. See Compl. ¶¶ 14–21. Similarly, if Plaintiff seeks to assert a claim pursuant to a risk-

7

benefit theory, Plaintiff’s complaint does not allege how the lift’s design presents “excessive

8

preventable danger.” Lucas, 726 F. Supp. 2d at 1154.
Count Seven suffers from an additional deficiency. Under California law, “recovery under

10

the doctrine of strict liability is limited solely to ‘physical harm to person or property.’’ Jimenez v.

11
United States District Court
Northern District of California

9

Superior Court, 29 Cal. 4th 473, 482 (Cal. 2002) (internal quotation marks omitted). “Damages

12

available under strict products liability do not include economic loss, which includes damages for

13

inadequate value, costs of repair and replacement of the defective product or consequent loss of

14

profits—without any claim of personal injury or damages to other property.” Id. (internal

15

quotation marks omitted). Plaintiff’s complaint refers in conclusory terms to “difficulties and

16

injuries the Plaintiff sustained from the difficult to use and badly designed internal platform.”

17

Compl. ¶ 63. Plaintiff’s complaint, however, does not allege that she incurred any physical

18

injuries or damages to other property from the deficient wheelchair lift. The economic loss

19

doctrine accordingly bars Plaintiff’s recovery under Count Seven.

20

Thus, Count Seven of Plaintiff’s complaint fails to state a claim for relief. However, the

21

Court finds that amendment of Count Seven would not necessarily be futile. Accordingly, the

22

Court GRANTS with leave to amend Defendant’s motion to dismiss Count Seven.

23

IV. CONCLUSION

24

For the foregoing reasons, the Court rules as follows:

25



One, Two, Three, Six, and Seven.

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27
28

The Court GRANTS with leave to amend Defendants’ motion to dismiss Counts



The Court GRANTS Defendant’s motion to dismiss Counts Four and Five. To the
18

Case No.16-CV-04411-LHK
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

1

extent that Plaintiff seeks to assert a state tort cause of action that differs from

2

Plaintiff’s causes of action for strict products liability, the Court grants leave to

3

amend. The Court GRANTS with prejudice Defendant’s motion to dismiss counts

4

Four and Five to the extent they assert claims under the Food Drug and Cosmetic

5

Act and the Sherman Food, Drug, and Cosmetic Law.

6

Should Plaintiff elect to file an amended complaint curing the deficiencies identified
herein, Plaintiff shall do so within thirty (30) days of this Order. Failure to meet the thirty-day

8

deadline to file an amended complaint or failure to cure the deficiencies identified in this Order

9

will result in dismissal with prejudice of Plaintiff’s claims. Plaintiff may not add new causes of

10

action or parties without leave of the Court or stipulation of the parties pursuant to Rule 15 of the

11
United States District Court
Northern District of California

7

Federal Rules of Civil Procedure.

12

IT IS SO ORDERED.

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Dated: October 28, 2016
______________________________________
LUCY H. KOH
United States District Judge

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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS