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ARNOLD v. UA THEATRE CIRCUIT

April 15, 1994

CONNIE ARNOLD, et al., Plaintiffs,
v.
UNITED ARTISTS THEATRE CIRCUIT, INC., Defendant.



The opinion of the court was delivered by: THELTON E. HENDERSON

 This case is a suit by disabled persons who use wheelchairs or who walk using aids such as crutches, brought against United Artists Theatre Circuit, Inc. ("United Artists" or "UA"). Plaintiffs charge that defendant's movie theaters do not afford disabled persons full and equal access to their accommodations, in violation of California and federal law.

 United Artists has moved to dismiss plaintiffs' claims under California Civil Code § 54.1 ("§ 54.1") and California Civil Code § 51 ("§ 51") insofar as the claims seek damages on the basis of incidents in which disabled plaintiffs do not allege that they were actually afforded legally inadequate accommodations at UA theaters, but rather claim that they were "deterred" from attending UA theaters by their knowledge of the theaters' failure to conform with the disability access standards mandated under those two laws. The Court heard oral argument on this matter on February 14, 1994. After careful consideration of the parties' written and oral arguments, the Court DENIES UA's motion to dismiss plaintiffs' claims for damages under § 54.1 and § 51 based on incidents of deterrence. The reasons for this ruling are set forth in the memorandum opinion and order that follows.

 I. NATURE OF THE MOTION

 II. LEGAL STANDARD

 Dismissal of a claim alleged in a complaint is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure when the cause of action pleaded fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) is the appropriate vehicle for challenging whether a particular cause of action may be asserted by a particular category of plaintiff over a particular type of alleged harm. Geir v. Educational Service Unit No. 16, 144 F.R.D. 680, 687-88 (D. Neb. 1992). Such dismissal should be granted where the claim in question is one that, as a matter of law, may not be asserted by the category of plaintiff at issue with respect to the type of harm alleged.

 III. DISCUSSION

 A. STATUTORY TEXT AND CASE LAW

 The question of the availability of damages for "deterrence" claims under § 54.1 and § 51 appears to be an issue of first impression as the parties have located no California case law directly addressing the issue. California courts have prescribed the following analytic approach for interpreting California statutes: where the words of the statute are not ambiguous and their plain meaning can be given effect, that meaning controls; however, where statutory text is ambiguous and does not resolve the issue in question, courts must then consult the variety of canons and rules of statutory construction that California courts have prescribed for application in different contexts. Estate of Wilson, 265 Cal. App. 2d 943, 950, 71 Cal. Rptr. 822 (1st Dist. 1968) (citing County of Sacramento v. Hickman, 66 Cal. 2d 841, 59 Cal. Rptr. 609, 428 P.2d 593 (1967)).

 1. CALIFORNIA CIVIL CODE § 54.1

 California Civil Code § 54.1, California's chief disability access law known as the Disabled Persons Act, confers on disabled persons a right of full and equal access to places of public accommodation. The particular disability access standards which places of public accommodation must satisfy are set forth in administrative regulations promulgated by the Office of the State Architect pursuant to the statutory authorization contained in California Government Code § 4450. See Calif. Bldg. Code, Cal. Code Regs. tit. 24, Part 2. However, the class of persons who may sue for damages for violations of these access standards, and the circumstances under which nonconforming facilities vest members of that class with a cause of action for damages, are determined by § 54.1 and by California Civil Code § 54.3 ("§ 54.3"), the code section authorizing a damage remedy for violations of the rights conferred under § 54.1.

 The text of § 54.1 reads:

 
Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, and privileges of all . . . places of public accommodation, amusement, or resort, ...

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