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Z.F, A Minor, By and Through His Parents M.A.F and J.F. and v. Ripon Unified School District (Rusd); Ripon Unified School

September 9, 2011

Z.F, A MINOR, BY AND THROUGH HIS PARENTS M.A.F AND J.F. AND M.A.F. AND J.F. INDIVIDUALLY; L.H., AND J.H., MINORS, BY AND THROUGH THEIR PARENTS J.A. AND J.R.H. AND J.A. AND J.R.H. INDIVIDUALLY; A.N., A MINOR, BY AND THROUGH HIS PARENTS, G.N. AND M.R., AND G.N. AND M.R. INDIVIDUALLY,
ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
RIPON UNIFIED SCHOOL DISTRICT (RUSD); RIPON UNIFIED SCHOOL DISTRICT BOARD OF TRUSTEES; SAN JOAQUIN COUNTY OFFICE OF EDUCATION; VALLEY MOUNTAIN REGIONAL CENTER (VMRC), MODESTO CITY SCHOOLS, MODESTO CITY SCHOOLS BOARD OF EDUCATION, RICHARD JACOBS, EXECUTIVE DIRECTOR OF VMRC, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, TARA SISEMORE-HESTER, COORDINATOR FOR AUTISM SERVICES FOR VMRC, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; VIRGINIA JOHNSON, DIRECTOR OF MODESTO CITY SCHOOLS SELPA, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; SUE SWARTZLANDER, PROGRAM DIRECTOR FOR MODESTO CITY SCHOOLS, IN HER OFFICIAL AND INDIVIDUAL CAPACITY AND DOES 1 -- 200.,
DEFENDANTS.
VALLEY MOUNTAIN REGIONAL CENTER, RICHARD JACOBS AND TARA SISEMORE-HESTER COUNTERCLAIMANTS,
v.
M.A.F. AND J.A., SPECIAL NEEDS ADVOCATES FOR UNDERSTANDING, AND AUTISM REFORM CALIFORNIA,
COUNTERDEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Pending are two separate dismissal motions, brought under Federal Rule of Civil Procedure ("Rule") 12(b)(6), seeking dismissal of certain claims in Plaintiffs' Second Amended Complaint. Specifically, Defendant Valley Mountain Regional Center ("VMRC") seeks an order dismissing Plaintiffs' claims alleged under Title III of the American with Disabilities Act ("ADA") and Plaintiffs' claims alleged California's Unruh Act; and VMRC and Defendants Richard Jacobs ("Jacobs") and Tara Sisemore-Hester ("Sisemore-Hester") seek an order dismissing Plaintiffs J.H., L.H., J.A., and J.R.H.'s ("J.H. Plaintiffs") claim alleged under 42 U.S.C. § 1983. Further, Defendants Virginia Johnson ("Johnson") and Sue Swartzlander ("Swartzlander") seek dismissal of the J.H. Plaintiffs' § 1983 claim.

Plaintiffs are four minors diagnosed with Autism Spectrum Disorder, and their parents. (Pls.' Second Am. Compl. ("SAC") ¶¶ 20-23.) Plaintiffs allege in the SAC that all Defendants named in this action "have implemented a system under [the Early Intensive Behavioral Treatment Program Procedures and Guidelines ('EIBT/PPG')] which has unlawfully restricted access to intensive [Applied Behavior Analysis ('ABA')] services for Plaintiffs, as well as those similarly situated, in contravention of federal and state law." Id. ¶ 34.

I. Legal Standard

To avoid dismissal under Rule 12(b)(6), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009).

In analyzing whether a claim has facial plausibility, a court "accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light most favorable to the non-moving party." Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 129 S. Ct. at 1949. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

II. Discussion

A. Title III of the ADA

VMRC argues that Plaintiffs fail to state a claim for relief under Title III of the ADA. Plaintiffs allege in their Title III claim: "[VMRC] has discriminated against Plaintiffs by using the EIBT/PPG . . . as a barrier that has denied them access to intensive ABA services." (SAC ¶ 95.) VMRC argues: "Plaintiffs failed to properly allege that VMRC is a 'place of public accommodation' under [Title III]." (VMRC's Mot. 1:24-25.) Plaintiffs rejoin: "the SAC alleges that Plaintiffs have been denied access to an education program, which is a public accommodation as defined by the ADA." (Pls.' Opp. to VMRC's Mot. 4:16-18.)

Title III prescribes: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Public accommodations "are actual, physical places where goods or services are open to the public, and places where the public gets those goods or services." Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).

Although Plaintiffs allege they have been denied access to intensive ABA services, Plaintiffs' allegations do not plausibly suggest that intensive ABA services are "actual physical places." Id. Therefore, Plaintiffs' Title III claim is dismissed.

B. Unruh Act

VMRC argues Plaintiffs' Unruh Act claim should be dismissed since Plaintiffs have not sufficiently alleged that VMRC is a "business establishment" under the Unruh Act. Plaintiffs allege: "[VMRC] is a private non-profit agency . . . . [that] provide[s] services and supports to persons with developmental disabilities . . . . [and] employs more than 15 individuals[.]" (SAC ΒΆ 26.) VMRC contends it is not a business establishment since it "is a non-profit organization existing primarily for the purpose of serving the public good." (VMRC's ...


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