The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER RE: MOTION TO DISMISS
Plaintiff Zane Hardin has been an employee of Defendant Wal-Mart for several years. Though he has applied for several promotions, he has not received them. Plaintiff alleges that he has been mistreated by supervisors and denied the use of a disabled parking spot though he is disabled.
Plaintiff filed this case in state court on March 20, 2008. Plaintiff's original complaint contained four causes of action. Defendant removed the action to federal court based on diversity jurisdiction and made a motion to dismiss. The motion was granted in part and denied in part; Plaintiff was granted leave to amend. Plaintiff's amended complaint states three causes of action: (1) employment discrimination based on age and disability in violation of California's Fair Employment and Housing Act ("FEHA"); (2) refusing to allow disabled employees to use disabled parking in violation of California's Business & Professions Code §17200; and (3) refusing to allow disabled employees to use disabled parking in violation of California Civil Code §51. Defendant has made a motion to dismiss the second and third causes of action and seeking "clarification" of the first cause of action. Doc. 22. Plaintiff opposes the motion. The matter was taken under submission without oral argument.
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)....a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), citations omitted. "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown that the pleader is entitled to relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citations omitted. The court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The court must also assume that "general allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990), citing Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other grounds at 127 S.Ct. 1955, 1969. Thus, the determinative question is whether there is any set of "facts that could be proved consistent with the allegations of the complaint" that would entitle plaintiff to some relief. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). At the other bound, courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated...laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint. "There are, however, two exceptions....First, a court may consider material which is properly submitted as part of the complaint on a motion to dismiss...If the documents are not physically attached to the complaint, they may be considered if the documents' authenticity is not contested and the plaintiff's complaint necessarily relies on them. Second, under Fed. R. Evid. 201, a court may take judicial notice of matters of public record." Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), citations omitted. The Ninth Circuit later gave a separate definition of "the 'incorporation by reference' doctrine, which permits us to take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005), citations omitted. "[A] court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss. Facts raised for the first time in opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice." Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003), citations omitted.
If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without prejudice, and with or without leave to amend. "[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc), quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
Defendant argues that the second and third causes of action must be dismissed for failure to state a claim and, in the alternative, that the statute of limitation has run out. Defendant also seeks to have Plaintiff provide more detail as to the first cause of action.
A. Access To Disabled Parking
Plaintiff alleges he "regularly purchases items at Wal-Mart, and company policy was and is to encourage employees to shop and buy items from the store, which he has done on many occasions" and that he "has been denied the right to park in the disabled parking spot, in violation of [Section 51]." Doc. 20, Amended Complaint, at 3:13-16 and 6:1-2. This allegation forms part of the basis for Plaintiff's first cause of action (FEHA) and the sole basis for his second and third causes of action (Cal. Bus. & Prof. Code §17200 and Cal. Civ. Code §51). At root, Plaintiff relies on Cal. Civ. Code §51(b) (part of the Unruh Civil Rights Act, "Unruh") which states, "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."
Under well settled law, "the Unruh Civil Rights Act has no application to employment discrimination." Rojo v. Kliger, 52 Cal. 3d 65, 77 (Cal. 1990). Plaintiff makes a claim that Unruh applies as he is both a customer and employee of Defendant as opposed to only an employee.*fn2 In briefing, Plaintiff states only that "Defendant fails to cite a single case prohibiting Plaintiff, as a customer and employee, from bringing an action for violation of Civil Code §51." Doc. 23, Opposition, at 4:24-27.
Defendant argues that the operation of FEHA, which governs employment discrimination and incorporates a well specified administrative claims procedure, precludes application of Section 51 in this case: "Plaintiff's attempt to expand the subject matter scope of these statutes to incorporate his disability discrimination claim under Unruh would create an end-run around the administrative procedures of FEHA solely for disability discrimination claimants." Doc. 22, Brief, at 6:23-25. Defendant's argument is well supported in case law. See Alcorn v. Anbro Engineering, Inc., 468 P.2d 216, 220 (Cal. 1970) ("at the same session wherein it adopted the language of section 51, the Legislature also enacted extensive provisions governing discrimination in employment. The Fair Employment Practices Act declares that the opportunity to seek, obtain and hold employment without discrimination is a civil right and provides for administrative procedures for relief from such discrimination....Although the Fair Employment Practices Act can not be deemed to have repealed any provisions of the Civil Rights Act we conclude that the concurrent enactment of the former act indicated a legislative intent to exclude the subject of discrimination in employment from the latter act"); Bass v. County of Butte, 458 F.3d 978, 982 (9th Cir. 2006) ("FEHA provides an administrative scheme to process claims of employment and housing discrimination. The statute creates two administrative bodies--the Department of Fair Employment and Housing, and the Fair Employment and Housing Commission--to investigate, adjudicate, and redress discrimination claims. FEHA requires that an aggrieved claimant exhaust the administrative remedies provided by those bodies before filing an ...