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Rapp v. Lawrence Welk Resort

United States District Court, Ninth Circuit

November 25, 2013

JULIE RAPP, Plaintiff,


ROGER T. BENITEZ, District Judge.

Before this Court is Plaintiff Julie Rapp's Motion Seeking Leave to File First Amended Complaint (Docket No. 53). After full consideration of the briefing and the record in this matter, this court grants the Motion in part.


Plaintiff suffered a stroke in 1997 which paralyzed the left side of her body. (Compl. ¶ 4). Plaintiff cannot independently stand or walk, and requires a walker or wheelchair for mobility. ( Id. ) Around 2008, Plaintiff and her husband purchased a timeshare at the Lawrence Welk Resort in Escondido, CA (Resort). ( Id. ) Plaintiff claims she was assured when she bought the membership that she would be given accessible rooms to accommodate her disability-related needs. ( Id. ) Plaintiff claims that she has been given rooms that are designated as wheelchair accessible, but which have access barriers. ( Id. ¶ 5). She also claims to have encountered barriers in public areas on the Resort grounds. ( Id. ¶ 5). Plaintiff asserts that she was informed that all rooms, including the wheelchair-accessible rooms, were reserved and assigned on a "first come, first served basis." ( Id. ¶ 22). Plaintiff claims that the Resort failed to modify its policies and practices to ensure Plaintiff was not denied an accessible guestroom based on "first come, first served policies, " and the Resort required her to pay extra money to upgrade her membership to be guaranteed an accessible room. ( Id. ¶ 29).

On May 23, 2012, Plaintiff filed a lawsuit against Defendants pursuant to Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and various California civil rights statutes. (Docket No. 1). Plaintiff alleged that Defendants, who are owners, operators, lessors, and lessees of the Resort, violated the statutes by (1) constructing or failing to remove architectural barriers to accessibility in the Resort, and (2) imposing and failing to modify discriminatory policies on how the accessible guest rooms are assigned to timeshare members. (Id.) Plaintiff sought injunctive relief under the ADA, as well as damages, attorney's fees, and litigation costs pursuant to the California civil rights statutes. ( Id at 26-27).


This action was assigned to the undersigned Court, and to the Hon. William McCurine, Jr., United States Magistrate Judge. The parties conducted limited initial discovery, consisting of two site inspections at the Resort. (Mot. at 2). The first inspection covered the exterior public areas of the Resort. ( Id. ) The second inspection covered accessible guest rooms with roll-in showers. ( Id. ) Each inspection took multiple days, and Defendants' counsel attended the inspections. ( Id ) The expert generated two reports concerning accessibility barriers. ( Id. )

Plaintiff used the reports to make two settlement demands for injunctive relief, each of which specifies the barriers, their locations, and the codes Plaintiff believes they violate. ( Id. at 2-3). The first demand was made on November 27, 2012. ( Id. at 2). After Defendants claimed the demand was insufficiently specific, Plaintiff's sent a revised demand on March 12, 2013. ( Id. at 2-3). The second demand, concerning the barriers in accessible rooms with roll-in showers, was sent on May 13, 2013. ( Id. at 3). There had been no response as of the time briefing in this matter was filed. ( Id. )

Plaintiff also sought to inspect accessible guest rooms that do not have roll-in showers. The Magistrate Judge denied Plaintiff's request on April 30, 2013. (Order (1) Following Telephonic Conference Re: Discovery; (2) Setting Further Teleconference (April Order), Docket No. 50). In relevant part,

Without making a decision as to dispositive issues such as standing and sufficiency, the Court can determine under Rule 26(b) that the scope of Plaintiff's request to inspect rooms without a roll-in shower is overbroad at this time as Plaintiff's ADA claim as alleged in the complaint, centers on the barriers encountered on her 2011 visit to the resort. Under Rule 26(b), Plaintiff is entitled to discovery related to a parties' claim or defense. However, the ADA claims presently contained in Plaintiff s complaint identify and concentrate on accessibility barriers only in guest rooms with roll-in showers. Accordingly, Plaintiff's request for inspection of guest rooms without roll-in showers is DENIED at this time.

(April Order at 4).

On May 28, 2013, Plaintiff filed the instant motion to seek leave to file her proposed First Amended Complaint (FAC). She seeks to (1) allege with greater specificity the barriers that constitute the grounds for her claim in public areas and accessible rooms with roll-in showers, and (2) allege claims regarding accessible rooms without roll-in showers. (Mot. at 3-4). This is Plaintiff's first request to amend her complaint.


Once a defendant has answered, a plaintiff may only amend the complaint by leave of court, or with the written consent of the adverse party. FED. R. Civ. P. 15(a). Pursuant to Federal Rule of Civil Procedure 15(a)(2), leave to amend should be "freely given when justice so requires, " and the Supreme Court has stated that "this mandate is to be heeded." Forman v. Davis, 371 U.S. 178, 182 (1962). Where the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. Id. Leave should be freely given in the absence of any apparent or declared reason, "such as undue delay, bad faith or dilatory motive on the part of the movant, ... undue prejudice to the opposing party..., futility of amendment, etc." Id.

The Ninth Circuit has held that, although Rule 15 should be interpreted with "extreme liberality, ' leave to amend is not to be granted automatically." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). Prejudice to the opposing party is the most important factor. Id. at 1387 (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971)).

The decision to grant leave to amend is "entrusted to the sound discretion of the trial court." Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1331 (9th Cir. 1996). A district court may, in its discretion, impose "reasonable conditions" on a grant of leave to amend a complaint. Int'l Ass'n of Machinists & Aerospace Workers v, Republic Airlines, 761 F.2d 1386, 1391 (9th Cir. 1985). In doing so, it considers the factors relevant to determining whether to grant leave to amend. Id.


Plaintiff seeks to amend the complaint in two distinct ways. First, she seeks to amend her complaint to include allegations regarding additional barriers in public areas and accessible rooms with roll-in showers. These barriers are in addition to barriers Plaintiff already identified in those areas in the Complaint. Second, Plaintiff seeks to add claims regarding barriers found in accessible rooms that do not have roll-in showers. As the analysis differs for each set of claims, they will be addressed separately.

A. Amendment to Include Additional Barriers in Public Areas and Accessible Rooms With Roll-In Showers

Plaintiff seeks to amend her complaint to include two expert reports containing additional violations that Plaintiff's expert identified on the premises during the site inspections. Plaintiff points to the Ninth Circuit's decision in Oliver v. Ralphs Grocery Company, 654 F.3d 903, 908 (9th Cir. 2011), which requires a plaintiff who seeks relief under Title Ill. of the ADA to identify the barriers in the complaint, rather than relying upon an expert report generated during discovery to confirm, identify, and notice defendants of access barriers. A defendant is not deemed to have fair notice of barriers identified elsewhere. Id. at 909. Plaintiff thus seeks leave to amend her complaint to add the necessary detail.

i. Undue Delay

A lengthy delay in seeking leave to amend is not enough alone to support a denial, but it is relevant to the determination. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (citation omitted). The complaint in this matter was filed on May 23, 2012, and the Motion to Amend was filed May 28, 2013, approximately one year later. Plaintiff claims that she postponed seeking leave to amend while working with the Magistrate Judge in an effort to settle the case. (Mot. at 7). Plaintiff states that she drafted the proposed FAC shortly after Defendants' response to her first settlement demand made it clear the case would not settle. ( Id. )

Plaintiff's first settlement demand was sent November 27, 2012. She has therefore been aware of the additional barriers in at least some areas since that time. Examination of the proposed amended complaint indicates that the second document is dated May 5, 2013, although it not clear whether this is when Plaintiff first received the information. Plaintiff became aware that she could not inspect rooms without rollin showers on April 30, 2013.

Although Plaintiff may have been delaying out of hope of a settlement, the Court notes that Plaintiff was engaged in obtaining the information that she ultimately needed in order to amend the Complaint, and was seeking additional information that she wanted to add to her Complaint. Although Plaintiff has delayed here, such delay is not serious under the circumstances, and not enough to support a denial. The Court takes the delay into consideration alongside the other factors.

ii. Bad Faith

Plaintiff claims that she seeks to provide notice of the barriers in order to aid negotiations, streamline discovery, and eliminate Oliver arguments. (Mot. at 6). Defendants arguments on bad faith primarily rely on their contentions regarding Plaintiff's undue delay in seeking to amend the Complaint. The Court notes that Defendants also claim that Plaintiff sought leave to amend to circumvent the Magistrate Judge's denial of her request to conduct inspections in accessible rooms without roll-in showers. (Opp'n at 8). That order does not pertain directly to these claims, but the fact that Plaintiff sought to amend her claim after being told that her current claims did not allow her to pursue the relief she seeks is not enough to demonstrate bad faith to this Court. There is also no reason for this Court to conclude that Plaintiff is asserting a baseless legal theory to prolong litigation, or is making any misrepresentations. See Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 881 (9th Cir. 1999).

iii. Prejudice to the Opposing Party

Plaintiff argues that Defendants will not be prejudiced. Plaintiff contends that the parties have conducted no discovery outside of the two site inspections, and that Defendants have actual notice of all of the barriers that will be alleged in public areas and in rooms with roll-in showers. (Mot. at 9). Defense counsel was present at all inspections, Defendants have received two settlement demands detailing violations which Plaintiff now seeks to add, and Defendants have already responded to Plaintiff's first settlement demand. ( Id. )

Plaintiff al so claims that permitting the amendment will streamline discovery and litigation by "illuminating the nature, scope, and location of the alleged access barriers." (Mot. at 9). As Plaintiff herself argues, if the Complaint is not amended to include the additional barriers, Plaintiff cannot seek injunctive relief as to those barriers in this litigation. However, the Court notes that plaintiff's whose claims fail to survive a motion to dismiss are frequently given leave to file an amended complaint. Permitting amendment now may shorten litigation.

Defendants state that they are prejudiced by the additional expenses they will have to incur. (Opp'n at 8-9). Defendants specifically point to the additional expenses they will incur if Plaintiff is given leave to add claims regarding rooms without roll-in showers. ( Id. ) Such expenses do not prejudice Defendants with regard to the claims in public areas and rooms with roll-in showers. It is not clear that adding additional violations in these areas will substantially burden Defendants.

Defendants also claim that the amendment is highly prejudicial to Defendants because the report is lengthy, and contains many barriers that she may or may not actually be claiming. This concern is valid, and is addressed below.

iv. Futility

Defendants argue that leave to amend should be denied because Plaintiff's proposed new claims are futile. (Opp'n at 3). In determining whether to grant a motion for leave to amend, courts consider whether the claim a plaintiff seeks to assert will be defeated at summary judgment. Roth v. Garcia Marquez, 942 F.2d 617, 628-29 (9th Cir. 1991).

Defendants claim that it would be futile for Plaintiff to amend her claims because the expert reports allege many violations, including many that do not relate to Plaintiff's disability. They point out that Plaintiff does not explain how her disability was affected by them so as to deny her full and equal access. (Opp'n at 3). Defendants' contentions raise the question of what Plaintiff must demonstrate in order to establish standing under the ADA, and what claims Plaintiff has standing to make.

a. Standing Requirements

Article III of the United States Constitution requires that a plaintiff establish standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing has three elements: 1) injury in fact, 2) causation, and 3) redressibility. See id, At issue in this case is the requirement that a plaintiff suffer an injury in fact. To establish standing for injunctive relief, including under the ADA, a plaintiff must also allege a "real and immediate threat of repeated injury" in the future. Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 946 (9th Cir. 2011).

Under the ADA, when a disabled person encounters an accessibility barrier violating its provisions, it is sufficient for standing that the barrier interfere with a plaintiff's "full and equal enjoyment" of the facility. Chapman, 631 F.3d at 947 (citing 42 U.S.C. § 12182(a)). The barrier must affect the plaintiff's full and equal enjoyment on account of his particular disability. Id.

Once a disabled plaintiff has encountered a barrier that violates the ADA, "that plaintiff will have a personal stake in the outcome of the controversy, so long as his or her suit is limited to barriers related to that person's particular disability." Id at 947 (quoting Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1044 (9th Cir. 2008)). Therefore, where an ADA plaintiff has Article III standing as a result of at least one barrier at a place ofpublic accommodation, he may permissibly challenge all barriers in that public accommodation that are related to his or her specific disability. Chapman, 631 F.3d at 951. The plaintiff has standing to seek an order requiring the removal of all barriers at the public accommodation "that are related to his disability and that he is likely to encounter on future visits." Id. at 951 (citing Doran, 524 F.3d at 1047). The disabled individual need not personally encounter the barrier. Id. The injury suffered by the plaintiff is the discrimination that results from the failure to remove architectural barriers, and a plaintiff need not establish each barrier as a separate injury meeting Article III requirements. Id. at 952.

However, a plaintiff cannot seek injunctive relief (1) where the barriers do not affect that plaintiff's particular disability, (2) where the plaintiff is not reasonably likely to encounter the barriers (e.g., areas off-limits to customers), or (3) where barriers are in areas he is unlikely to enter (e.g., a restroom for the opposite gender). See id. at 953. The plaintiff must also show that he is either deterred from returning, or that he intends to return and is likely to suffer repeated injury. Id.

b. Plaintiff May Seek Relief for Certain Barriers She Did Not Experience

Plaintiff has standing to assert at least some claims against Defendants under the ADA. She makes allegations in her complaint regarding barriers that she personally experienced, and which affected her because she was a wheelchair user. (Proposed FAC ¶¶ 27-32). Plaintiff's intention to return to the Resort is supported by her ownership of a timeshare. (Compl. ¶ 4). Defendants nowhere dispute that Plaintiff has standing to assert at least one claim.

As she has standing to assert at least some claims, she may raise other claims related to her disability. This Court concludes that amendment would not be futile as to additional barriers that Plaintiff has identified which relate to her disability and which are not located in areas where Plaintiff is not reasonably likely to encounter them, or where she is otherwise unlikely to enter. See Chapman, 631 F.3d at 952.

c, Plaintiff's Expert Reports are Overinclusive

Defendants argue that the expert reports in the proposed FAC discuss alleged violations that do not relate to her disability (e.g., signs for the blind), or which are located in places Plaintiff is unlikely to go (e.g., men's bathroom). (Opp'n at 4). Plaintiff concedes that she may not raise claims unrelated to her disability. (Reply at 6). The Court notes that Plaintiff has agreed to redact her proposed attachments to remove items that are not relevant to Plaintiff or her proposed disability. ( Id. ).

Plaintiff may not merely attach a report containing many alleged violations, including some for which she concedes that she cannot seek relief, and force Defendants to guess which she claims to have standing to assert. The Federal Rules of Civil Procedure require a Plaintiff to submit "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. Civ. P. 8(a). A complaint violates Rule 8 where it contains a significant amount of irrelevant or slightly relevant material, and defendants will be required to conduct discovery and file motions to figure out what the plaintiff is claiming. See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996); Silvas v. GMAC Mortg., LLC, No. cv-09-265, 2009 WL 1098462, at *3 (D. Ariz. Apr. 23, 2009) (dismissing complaint for, among other problems, being overbroad and failing to present necessary facts in an understandable context).

The Ninth Circuit has held that Rule 8 requires a plaintiff to identify the barriers that constitute the grounds for a claim of ADA discrimination in the complaint. Oliver, 654 F.3d at 909. In refusing to allow an ADA plaintiff to rely upon expert reports generated during discovery, the Ninth Circuit expressed concern with forcing defendants to guess which barriers were grounds for the claim. Id It would not serve the purposes of fair notice to the defense to force a plaintiff to allege all barriers in the complaint if the complaint is permitted to be as confusing as the expert reports.

v. Conclusion

Plaintiff is therefore given leave to amend the Complaint to include additional barriers found in public areas and accessible rooms with roll-in showers, but Plaintiff cannot simply reference the overbroad expert reports. Plaintiff must specifically and clearly identify which additional barriers she claims she may assert under the ADA.

B. New Claims with Regard to Rooms Without Roll-In Showers

Plaintiff also seeks permission to add claims regarding rooms which do not have the roll-in showers. Plaintiff used such rooms in 2008 and 2009. (Proposed FAC 17, 18, 22, 23, 35, 36). As the Magistrate Judge stated, and as the parties do not dispute, any claims arising directly from her past encounters with these barriers are time-barred because they are more than two years old. (April Order; Opp'n at 5).

i. Undue Delay

The Court notes that there is greater delay in seeking this amendment. Plaintiff was aware of her past difficulties in rooms without roll-in showers before she filed her lawsuit, and does not claim that there has been any relevant development affecting her ability to bring these claims. Plaintiff could have brought these claims when she filed her complaint in May 2012, a full year before seeking leave of court to amend. However, the Court also notes that Plaintiff became aware that the Magistrate Judge would not order inspections in rooms without roll-in showers in April 20, 2013. The delay for this amendment is more substantial, but it is not egregious. The Court took the delay into consideration in weighing all the relevant factors.

ii. Bad Faith

Defendants accuse Plaintiff of seeking to delay litigation and evade a court order. Plaintiff sought to amend her complaint after it became clear that she could not seek the relief she sought because of the limits of her original complaint. This is insufficient to show bad faith. There is no other persuasive evidence of bad faith.

iii. Prejudice

The assertion of claims for rooms without roll-in showers has greater potential to prejudice Defendants. It expands the scope of the litigation to new areas of the Resort, and will allow Plaintiff to conduct discovery that has been expressly denied by the Magistrate Judge. (Docket No. 50).

This will generate additional costs for Defendants that they would not otherwise incur. Defendants correctly point out that Plaintiff conceded that coordinating the inspections took months and each inspection took multiple days. (Mot. at 8). The addition of a new category of claims would not streamline discovery, but would add new subjects, as demonstrated by the additional site inspections Plaintiff seeks to conduct. Unlike the amendments regarding public areas and rooms with roll-in showers, Plaintiff has not conducted inspections in the presence of defense counsel, or made detailed settlement requests. Plaintiff's are therefore not already on notice of barriers that Plaintiff might find.

However, the Court notes that there has been limited discovery to date, and that there is no indication that any of Defendants' past efforts to handle this case will be wasted. Plaintiff contends that it would harm Plaintiff and waste resources to disallow the amendment. (Mot. at 10). Plaintiff contends that if she is not allowed to allege barriers in rooms without roll-in showers at this time, she will only be forced to file another lawsuit in the future when she encounters those barriers. ( Id. ) The Ninth Circuit has found that it "makes no sense to require a disabled plaintiff to challenge, in separate cases, multiple barriers in the same facility, controlled by the same entity, all related to the plaintiff's specific disability." Doran, 524 F.3d at 1047. If Plaintiff's amendment is not futile, considering all matters now could serve judicial economy.

iv. Futility

Defendants claim that Plaintiff's new claims are futile because Plaintiff lacks standing to assert ADA claims for rooms without roll-in showers.

As discussed in the prior section, Plaintiff has already established standing to assert claims in other parts of the Resort, allowing her to seek an injunction for other barriers on the premises, even if she did not personally experience them. However, Plaintiff cannot obtain an injunction where the barriers do not affect her particular disability, where she is not reasonably likely to encounter the barriers, or where the barriers are in areas she is unlikely to enter. See Chapman, 631 F.3d at 953.

Defendants contend that Plaintiff lacks standing to assert these claims because she would only encounter barriers in a room without a roll-in shower if she a) fails to book in a timely manner, and b) voluntarily chooses to go despite the risk to her safety. (Opp'n at 6).

Plaintiff will only be guaranteed such a room if she books fifteen months ahead of time, with schedule flexibility. This is a significant burden to impose upon an accessible guest. To be clear, this Court is not finding that the policy itself is a violation of the ADA. That question is not before this Court at present. However, the existence of a burdensome policy that would allow Plaintiff to obtain a more desirable accessible room instead of a less desired accessible room does not allow Defendants to state that there is no real and immediate threat of injury in the future.

Although Plaintiff cannot assert claims based directly on time-barred experiences, the Ninth Circuit has found that although past wrongs are not enough to demonstrate such a "real and imminent threat" to establish standing, they are evidence of whether such a threat exists. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004). Plaintiff's past experiences are evidence that she may have to accept a room without a roll-in shower in the future, or risk not being able to go to the Resort. Even if the policy is entirely proper, Plaintiff's past experiences suffice to demonstrate that there is a "real and immediate threat" that she may need to stay in an accessible room without a roll-in shower because she has needed to do so twice in the past, and there is no guarantee she can have another kind of room without taking extraordinary steps.

The Court notes that Defendants raise several arguments defending their policy regarding accessible rooms. Plaintiff stated claims about the policy in her initial complaint. The Court will not consider the merits of already-pled claims when deciding a Motion to Amend.

Defendants also claim that she would only have a room without a roll-in shower if she voluntarily decides to jeopardize her safety. However, the rooms in question are allegedly designated as wheelchair-accessible.[1] ( See, e.g., Proposed FAC 717, 18; Mot. at 3). Defendants may well be able to claim that the lack of roll-in showers in those rooms is not an ADA violation; the Court does not express any opinion on this matter. However, Plaintiff asserts a number of violations related to the accessible rooms without roll-in showers, which are unrelated to the bathing facilities. (Proposed FAC ¶ 18). Although Plaintiff would be choosing a room which may subject her to discomfort, or require her to decide whether to take on certain safety risks because it lacks a particular feature, the room is still allegedly designated as suited for wheelchair users. A place which is labeled accessible is not a place that a wheelchair user is not reasonably likely to go, or an area she is unlikely to enter, even if it may pose challenges. Plaintiff's proposed amendment regarding violations in accessible rooms without roll-in showers would not be futile.

v. Conclusion

After full consideration of Plaintiff's delay in seeking the amendment, the prejudice to Defendants, and Defendants' arguments regarding bad faith and futility, the Court concludes that Plaintiff is to be given leave to file an amended complaint to add allegations regarding accessible rooms without roll-in showers.


Given this Court's decision, Plaintiff is given leave to file an amended complaint. As the First Amended Complaint proposed by Plaintiff includes material that this Court has not given her leave to include, it is not to be filed in its current form. Plaintiff is therefore given leave to file an amended complaint no later than 30 days from the date this order is signed.

This Court requests that both parties make an effort to be clear in indicating whether a particular reference to an "accessible room" refers to a designated accessible room, or to a designated accessible room with a roll-in shower. Plaintiff is also requested to check the numbering of paragraphs.


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