The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING IN PART DENYING IN PART DEFENDANTS' GUARDIAN AD MOTION TO DISMISS [doc. #9]
Defendants move to dismiss this action. The motion has been fully briefed and considered on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).
Plaintiffs are owners in a timeshare company which allows them to participate in a vacation exchange system at affiliated resorts around the world. They booked a week-long stay at the Carlsbad Seapointe Resort through defendant RCI, LLC. Prior to their arrival at the resort, they were informed that the resort included an "adults only pool" but the parents nevertheless arrived for their vacation stay with their two minor children. A separate pool for families with children is available at the resort. The resort also prohibits unaccompanied children under the age of 12 years from using any of the exercise rooms.
Plaintiffs allege that their entire stay at the resort resulted in extreme stress upon their family because of the discriminatory rules and policies concerning the use of the adult pool and weight room. In their complaint, plaintiffs allege causes of action for violation of (1) the Fair Housing Act; (2) the California Fair Employment and Housing Act; (3) the California Unruh Civil Rights Act; and (4) negligence.
Defendants move to dismiss the action arguing that a vacation time-share is not a "dwelling" under the FHA or the FEHA, the policies at issue are not unreasonable, arbitrary or invidious under the Unruh Act, and the negligence claim is derivative of the other causes of action.
A Rule 12(b)(6) motion tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir .1988). "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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
After accepting as true all non-conclusory allegations and drawing all reasonable inferences in favor of the plaintiff, the Court must determine whether the complaint alleges a plausible claim to relief. See Ashcroft v. Iqbal 129 S. Ct 1937, 1950 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)(A complaint cannot survive a motion to dismiss unless it provides "sufficient factual matter, . . . to 'state a claim to relief that is plausible on its face.'"). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." at 1949. In determining facial plausibility, whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
In addition to factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215 (2007). Thus, a claim may be dismiss under Federal Rule of Civil Procedure 12(b)(6) if on its face there appears some legal impediment to the claim. Jones, 549 U.S. at 215.
If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that 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, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
Defendants argue that the complaint does not set forth a claim for relief under the FHA because a vacation timeshare arrangement as pleaded is not a dwelling as required under the statute. The Court concurs.
Section 3604(b) of the FHA prohibits discrimination "against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, ...