Pousson et al v. Sharp Chula Vista Medical Center et al

Filing 35

ORDER Denying 25 Motion to Dismiss the First Amended Complaint; Denying 25 Alternative Motion for More Definite Statement: Defendants shall file an answer to the FAC in accordance with Federal Rule of Civil Procedure 15(a)(3).. Signed by Judge M. James Lorenz on 7/23/2009. (mjj) (jrl).

1 2 3 4 5 6 7 8 9 10 11 TRIPPLE AAA ASSOCIATION FOR CHILDREN AND ADULTS WITH 12 DEVELOPMENTAL DISABILITIES, SUING ON BEHALF OF ITS 13 MEMBERS AND PEGGY POUSSON, 14 15 v. 16 PHILIP BAJO, M.D. and SHARP CHULA VISTA MEDICAL CENTER, 17 LLC, 18 19 20 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 07cv954 L (JMA) ORDER DENYING MOTION TO DISMISS THE FIRST AMENDED COMPLAINT [doc. # 25]; DENYING ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendants Philip Bajo, M.D., and Sharp Chula Vista Medical Center move to dismiss

21 the first amended complaint ("FAC") or in the alternative, for a more definite statement. The 22 motion has been fully briefed and the Court denies the motion for the reasons set forth below. 23 In her FAC, plaintiff asserts that she has a physical impairment that requires her to use a

24 walker for mobility. (FAC at ¶ 6.) On December 19, 2005, she had an appointment with Dr. 25 Philip Bajo at his office in the Sharp Chula Vista Medical Center. When she arrived for her 26 appointment, plaintiff needed to use the restroom. Dr. Bajo's office suite had its own restroom 27 but it was "completely inaccessible" to plaintiff. (FAC at 6.) Within the common area of the 28 building and outside of Dr. Bajo's office suite was another restroom that plaintiff attempted to
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1 use. The door to the common-area restroom was too heavy for plaintiff to open. An unidentified 2 person opened the door for plaintiff. When she tried to open the door to exit the common-area 3 restroom, she fell and was seriously injured. Plaintiff asserts that now she must use a wheelchair 4 for mobility and is permanently disabled. 5 On May 25, 2008, plaintiff filed a complaint alleging defendant Sharp Chula Vista

6 Medical Center with violations of the Americans with Disabilities Act ("ADA"); the California 7 Accessibility laws, Civil Code Section 54 and 54.1; the Unruh Act; and negligence. Defendant 8 filed an answer and amended answer. After a case management conference order was entered, 9 the parties filed a joint motion to amend/correct plaintiff's original complaint which the Court 10 granted. 11 Plaintiff filed her first amended complaint ("FAC") on January 8, 2009, which added

12 defendant Philip Bajo, MD and clarified that her negligence claim was directed to Sharp Chula 13 Vista Medical Center only. 14 Defendants now move to dismiss the FAC or alternatively for a more definite statement

15 contending that plaintiff's negligence claim is time barred and "[i]t is not clear what the plaintiff 16 is attempting to alleged from the first amended complaint." (Dfts' Ps & As at 2.) Plaintiff has 17 opposed the motion to dismiss; however, defendants have not filed a reply to the opposition 18 A. 19 MOTION TO DISMISS Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed

20 against a defendant for failure to state a claim upon which relief may be granted against that 21 defendant. Dismissal may be based on either the lack of a cognizable legal theory or the absence 22 of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 23 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 24 533-534 (9th Cir. 1984). For purposes of evaluating a motion to dismiss, the court "must 25 presume all factual allegations of the complaint to be true and draw all reasonable inferences in 26 favor of the nonmoving party." Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 27 Any existing ambiguities must be resolved in favor of the pleading. Walling v. Beverly Enters., 28 476 F.2d 393, 396 (9th Cir. 1973).
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Mere conclusions couched in factual allegations are not sufficient to state a cause of

2 action. Papasan v. Allain, 478 U.S. 265, 286 (1986); see also McGlinchy v. Shell Chem. Co., 3 845 F.2d 802, 810 (9th Cir. 1988). The complaint must plead "enough facts to state a claim for 4 relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 5 Finally, a complaint is properly dismissed under Rule 12(b)(6) where it is apparent on the face of 6 the pleading that plaintiff's claims are barred by the statute of limitations. Jablon v. Dean Witter 7 & Co., 614 F.2d 677, 682 (9th Cir. 1980). 8 Here, defendants contend that the negligence claim in the FAC is barred by the applicable

9 statute of limitations because the claim was not included in the original complaint. 10 As noted above, the original complaint was directed to the sole defendant, Sharp Chula

11 Vista Medical Center and included a claim for negligence. (Complaint at 8, ¶¶ 28, 29.) 12 Although defendants contend that a negligence claim is found only in the FAC, which would 13 cause the negligence claim to be beyond the statute of limitation, on its face, the original 14 complaint reveals the inaccuracy of this argument. It appears that defendants recognize that 15 their argument is specious because they have not filed a reply to plaintiff's opposition. 16 Nevertheless, the incident at issue in this case occurred on December 19, 2005 and the complaint 17 was filed on May 25, 2007. The negligence claim appeared in the original complaint, which was 18 filed within the two-year limitations period for such a cause of action. See California Code of 19 Civil Procedures 335.1. Accordingly, defendants' motion to dismiss will be denied. 20 B. 21 MOTION FOR A MORE DEFINITE STATEMENT Under the liberal federal pleading standards, all that is required of a complaint is "a short

22 and plain statement of the claim" that gives the defendant "fair notice of what the plaintiff's 23 claim is and the grounds upon which it rests." FED. R. CIV. P. 8(a); Conley v. Gibson , 355 U.S. 24 41, 47 (1957). Rule 12(e) of the Federal Rules of Civil Procedure provides, however, that "[i]f a 25 pleading to which a responsive pleading is permitted is so vague or ambiguous that a party 26 cannot reasonably be required to frame a responsive pleading, the party may move for a more 27 definite statement before interposing a responsive pleading." A Rule 12(e) motion for a more 28 definite statement "[is] viewed with disfavor and [is] rarely granted because of the minimal
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1 pleading requirements of the Federal Rules." Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 2 1077 (C.D. Cal. 1994). "A motion for more definite statement attacks unintelligibility in a 3 pleading, not simply mere lack of detail. Thus, the motion fails where the complaint is specific 4 enough to apprise defendant of the substance of the claim being asserted." WILLIAM W. 5 SCHWARZER, A. WALLACE TASHIMA & JAMES M. WAGSTAFFE, FEDERAL CIVIL PROCEDURE 6 BEFORE TRIAL § 9:349 (citations omitted); see also Box all v. Sequoia Union High School 7 District, 464 F. Supp. 1104, 1114 (N.D. Cal. 1979); Bureerong v. Uvawas, 922 F. Supp. 1450, 8 1461 (C.D. Cal. 1996). In the case of unintelligibility, a defendant cannot reasonably be 9 expected to frame a proper response. Familiar, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 10 940, 949 (E.D. Cal. 1981) ("A motion for a more definite statement should not be granted unless 11 the defendant cannot frame a responsive pleading"); Cellars v. Pacific Coast Packaging, Inc., 12 F.R.D. 575, 578 (N.D. Cal. 1999). Moreover, courts have held that if discovery will provide the 13 detail sought by a motion for more definite statement, the motion should be denied. Beery v. 14 Hitachi Home Electronics, Inc., 157 F.R.D. 477, 480 (C.D. Cal.1993). The court has wide 15 discretion and "it is within the trial court's power to allow or to require the plaintiff to supply, by 16 amendment to the complaint or by affidavits, further particularized allegations of fact." Warth v. 17 Seldin, 422 U.S. 490, 501-502 (1975). 18 The Court finds that a more definite statement is not warranted in this case. Although not

19 a model of clarity, the FAC alleges sufficient factual detail to put defendants on notice as to the 20 substance of plaintiff's claims. Any detail that defendants contend is lacking can be obtained 21 through discovery. Accordingly, defendants' motion for a more definite statement will be 22 denied. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / /
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Based on the foregoing, IT IS ORDERED: 1. 2. 3. Denying defendants' motion to dismiss the first amended complaint. Denying defendants' alternative motion for more definite statement. Defendants shall file an answer to the FAC in accordance with Federal Rule of Civil Procedure 15(a)(3). IT IS SO ORDERED.

7 DATED: July 23, 2009 8 9 10 COPY TO: 11 HON. JAN M. ADLER UNITED STATES MAGISTRATE JUDGE 12 13 ALL PARTIES/COUNSEL 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge