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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 ...

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