The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS IN PART AND DENYING IN PART [Dkt. No. 6]
Presently before the court is Defendant JPMorgan Chase Bank's Motion to Dismiss Plaintiff's First Amended Complaint. Having considered the submissions of the parties, the court grants the motion in part, denies in part, and adopts the following order.
Plaintiff is a paraplegic, and uses a wheelchair for mobility. (First Amended Complaint ("FAC") ¶ 1). Defendants operate a Chase Bank branch ("the bank") in Bakersfield, California. (Id. ¶2.) Plaintiff filed a complaint ("the original complaint") in state court alleging violations of California's Unruh Civil Rights Act, California Civil Code § 51 et seq., and the California Disabled Persons Act, California Civil Code § 54 et seq. (Defendant's Notice of Removal, Ex. A at 3 (original complaint.) The original complaint alleged that the bank did have lowered counters for wheelchair users, but did not staff those counters at all times or display signs indicating that the counters were open at all times. (Original complaint § 5, 9, 11.)
Plaintiff later filed a First Amended Complaint. (Notice of Removal, Ex. B.) The FAC alleges an additional cause of action for violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.*fn1 Contrary to the original complaint, however, the FAC alleges that the bank does not have lowered, wheelchair accessible counters. (FAC ¶ 9.) The FAC also alleges that "[i]f there was a lowered section or lowered bank teller transaction area, it was not open, was not manned, and was not identified with signage indicating that it was to remain open when the plaintiff visited." (FAC ¶ 5.) The FAC further alleges that the lack of lowered counters, signage, and permanent staffing of lowered counters violates the California Building Code, and thus violates the Unruh Act and California Disabled Persons Act. (FAC ¶¶ 13, 17.) Defendant now moves to dismiss the FAC.
A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations," it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 1950. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 1949 (citations and internal quotation marks omitted).
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 1950. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555-56. "Determining whether a complaint states a plausible claim for relief" is a "context-specific" task, "requiring the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950.
1. Lack of Accessible Teller Windows Plaintiff's opposition clarifies that his ADA claim is not based on any lack of signage, but rather on Defendant's alleged failure to install or staff lowered counters. (Opp. at 7, 9 n.2.)
Plaintiff's allegation regarding the lack of lowered counters, however, directly contradicts the allegations of the original complaint. The allegations of the original complaint serve as a judicial admission that the bank did have lowered counters for wheelchair users. See Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859 (9th Cir. 1995). "Where allegations in an amended complaint contradict those in a prior complaint, a district court need not accept the new alleged facts as true, and may, in fact, strike the changed allegations as 'false and sham.'" Azadpour v. Sun Microsystems, Inc., CV 06-03272, 2007 WL 2141079 at *2 n.2 (N.D. Cal. July 23, 2007.) Where a party explains the error in a subsequent pleading or by amendment, this court must afford the explanation "due weight." Sicor, 51 F.3d at 860; see also Stonebrae, L.P. v. Toll Bros., Inc., CV 08-0221, 2010 WL 114010 at *8-9 (N.D. Cal. January 7, 2010). Here, though Plaintiff briefly acknowledges the error, neither the FAC nor Plaintiff's opposition provides any explanation for the inconsistency between the original complaint and the FAC. (Opp. at 6 n.1 ("The original complaint erroneously noted that there were lower counters . . . .")) The FAC's contradictory allegation that the bank did not have lowered counters is therefore stricken.
2. Failure to Make Accessible Windows Available According to Defendants, Plaintiffs allege that ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG") require all wheelchair-accessible teller windows to be staffed at all times. (Mot at 5.) This assertion appears to misstate the FAC, which alleges that "if there was any alternative transaction area that was accessible wheelchair users, the Defendants violated the ADA by failing to keep this accessible station open and accessible to the plaintiff." (FAC ¶ 9.) Thus, the FAC appears to allege only that the lowered counters were not made available to Plaintiff.*fn2 Plaintiff's opposition further clarifies that his claim is not based upon a violation of the ADAAG. (Opp. at 7.)
To prevail on an ADA discrimination claim, a "plaintiff must show that (1) he is disabled within the meaning of the ADA; 2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [his] disability." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). As noted by Plaintiff, the ADAAG concerns the design and construction of facilities, and does not control questions regarding the use of accessible designs. Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1085 (9th Cir. 2004). In Fortyune, the Ninth Circuit explained that a defendant's policies might constitute discrimination under the ADA, even if the defendant was in ...