The opinion of the court was delivered by: Illston, District Judge.
ORDER DENYING MOTION
On May 21, 1999, the Court heard argument on defendants' motion to
dismiss. Having considered the arguments of counsel and the papers
submitted, the Court hereby DENIES the defendants' motion.
On February 24, 1999, plaintiffs Janine Kramer, Shazia Siddiqi and
Emily Alexander sued defendants the University of California at
Berkeley, the Regents of the University of California, and Robert
Berdahl, Chancellor of the University of California at Berkeley
(collectively "the University") alleging violations of (1) the Americans
with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA"); and (2)
§ 504 of the Rehabilitation Act ("Rehab Act"). Plaintiffs filed a
substantially similar first amended complaint on May 3, 1999, which
named Chancellor Larry Venderhoef of the University of California at
Davis and Chancellor Robert Berdahl or the University of California at
Berkeley as defendants in their official capacities.*fn1 Plaintiffs are
deaf or severely hard-of-hearing students at the University of
California, and sue on behalf of themselves and all others similarly
situated.*fn2 Plaintiffs allege that the class that they represent "is
composed of all students who are Deaf or hard-of-hearing who have been
denied the right to full and equal access to the benefits of the
programs, services and activities of [the University of California]
because of the violations described herein, and persons who are Deaf or
hard-of-hearing who have been deterred from enrolling at [the University
of California] because of the violations described herein." First Amended
Complaint, ¶ 21. This motion to dismiss is deemed to be directed
toward the first amended complaint.
Plaintiffs allege that the University has failed to provide students
with hearing disabilities with equal access to the benefits of its
programs, services and activities. Plaintiffs contend, inter alia, that
the University has (1) provided accommodations and services that are not
accurate and effective; (2) failed to provide prompt accommodations and
services, including delays of a period of weeks or months; (3) failed to
participate in a good faith interactive accommodation process; (4) failed
to provide accommodations and services for extracurricular activities
which are provided to nondisabled students; and (5) failed to install an
effective back-up plan to provide accommodations when captioners or
interpreters suddenly become unavailable.
Presently before this Court is defendants' motion to dismiss the claims
of plaintiff Emily Alexander from the complaint. The complaint alleges
that Emily Alexander was a law student at Boalt Hall School of Law from
the fall semester of 1994 through the spring semester of 1997, and
defendants repeatedly denied reasonable accommodations to Ms. Alexander
for her disability. First Amended Complaint, ¶¶ 15, 46. Defendants
contend that the one-year statute of limitations bars Ms. Alexander's
claims. Plaintiffs contend that the applicable statute of limitations is
three years, and therefore Ms. Alexander's claims are not barred.*fn3
A motion to dismiss for failure to state a claim will be denied unless
it appears that the plaintiffs can prove no set of facts which would
entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Fidelity Fin. Corp. v. Federal Home
Loan Bank, 792 F.2d 1432, 1435 (9th Cir. 1986). All material allegations
in the complaint will be taken as true and construed in the light most
favorable to the plaintiffs. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898
(9th Cir. 1986).
Neither the ADA nor the Rehab Act contains its own limitations period.
Where federal statutes do not contain their own limitations periods,
federal courts apply the most appropriate or analogous state statute of
limitations. Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct.
2617, 2620, 96 L.Ed.2d 572 (1987); Wilson v. Garcia, 471 U.S. 261, 269,
105 S.Ct. 1938, 1941-42, 85 L.Ed.2d 254 (1985). In so doing, courts must
determine whether the application of that limitations period
is consistent with the federal statute and its underlying policies.
Wilson, 471 U.S. at 266-68, 105 S.Ct. at 1941-43.
The parties agree that neither the ADA nor the Rehab Act contains its
own statute of limitations. The parties do not agree, however, on which
state statute of limitations is almost appropriate for plaintiffs' claims
under the ADA and the Rehab Act. Defendants argue that the one-year
personal injury statute of limitations in California Code of Civil
Procedure § 340(3) should apply. Plaintiffs argue that the
three-year statute of limitations in California Code of Civil Procedure
§ 338(a) should apply. Ms. Alexander's claims would be barred under
the one-year limitations period but would not be barred under the
three-year limitations period.
Plaintiffs argue that a three-year limitations period should apply
because the state law most analogous to the ADA is the Unruh Civil Rights
Act and the California Disabled Persons Act.*fn4 The Unruh Civil Rights
All persons within the jurisdiction of this state are
free and equal, and no matter what their . . .
disability are entitled to the full and equal
accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind
whatsoever . . . . A violation of the right of any
individual under the "Americans ...