United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE
JEFFREY T. MILLER, District Judge.
Defendant FRN of San Diego, dba Witt Lincoln, ("Witt") moves to dismiss the First Amendment Complaint ("FAC") for failure to state a claim upon which relief can be granted. Plaintiff Scott Schutza ("Schutza") opposes the motion. Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss with prejudice and without leave to amend.
On November 5, 2014, Plaintiff commenced this action by filing a complaint alleging a single federal claim for violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101, et seq., and three state law claims for violation of the Unruh Civil Rights Act, violation of the California Disabled Persons Act, and negligence. Plaintiff's claims arise from the following generally described conduct.
Plaintiff is an individual with physical disabilities who uses a wheelchair for mobility. Witt is an automobile dealer in San Diego County. In June 2014, Plaintiff went to Witt to test drive a vehicle. (FAC ¶8). Plaintiff, who cannot use his legs to drive, wanted "to test drive the used vehicle he was interested in." (FAC ¶10). In order to take a vehicle for a test drive, Plaintiff requested that Witt temporarily install vehicle hand controls on the selected test vehicle. (FAC ¶13). Plaintiff was informed that "Witt does not install vehicle hand controls on any vehicles for sale and that they would not do so for him as an accommodation." Id. Witt also informed Plaintiff that it would "help him find a rental car that could have vehicle hand controls installed if any were available but that none of their cars  would be so outfitted." Id. Plaintiff "understood that he would have to outfit any vehicle he purchased with vehicle hand controls after he bought the car." (FAC ¶15).
On February 11, 2015, the court granted Witt's motion to dismiss the original complaint for failure to state a claim. The FAC sets forth few additional allegations in support of the disability discrimination claims. Witt renews its motion to dismiss on essentially the same grounds raised in support of the original motion to dismiss. Plaintiff opposes the motion.
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest" that the pleader is entitled to relief); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
The Motion to Dismiss
The ADA sets forth "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. §12101(b)(1). To achieve that goal, the ADA prohibits discrimination in public accommodations with respect to the "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. §12182(a). The definition of the term "public accommodation" includes private facilities such as a "shopping center or other sales or rental establishment." 42 U.S.C. §12181(7)(A)(E). The Witt facility is clearly a place of public accommodation.
Plaintiff's legal theory for ADA liability arises under Title III of the ADA which defines disability discrimination to include "a failure to remove architectural barriers, and communications barriers that are structural in nature, in existing facilities... where such removal is readily achievable." 42 U.S.C. § 12182(b)(A)(iv). The regulations highlight that "[a] public accommodation shall remove architectural barriers in existing facilities... where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense." 28 C.F.R. §36.304(a). The regulation then provides a listing of 21 different items as examples of readily removable barriers. The list includes such things as installing ramps, widening doors, repositioning telephones, installing accessible door hardware, grab bars in toilet stalls, raised toilet seats, accessible parking spaces, and removing high pile carpeting. Each identified item promotes access by the disabled to a place of public accommodation by remediating architectural barriers to the physical facility. However, one outlier on the list, "installing vehicle hand controls, " 28 C.F.R. §36.304(a)(21), does not appear to readily relate to the facility's architectural barriers. The court notes that it is not clear from the record what "installing vehicle hand controls" means. At a minimum, however, "installing vehicle hand controls" must relate to the scope of the regulation. That is, the removal of architectural barriers in existing facilities, and not the regulation of vehicles sold at the facility.
Here, there is no doubt that Witt, the automobile dealership, is a place of public accommodation subject to the architectural barrier requirements of the ADA. Plaintiff's claims, however, do not arise out of or relate to architectural barriers existing at the facility. Rather, Plaintiff claims that the vehicles sold by Witt must be retrofitted or temporarily modified to accommodate his desire to test drive vehicles sold by Witt, whether new or used. Plaintiff asserts that the absence of hand controls is an impediment to persons with disabilities enjoying the same benefits as individuals. This argument ignores that 42 U.S.C. §12182(b)(2)(a)(iv), the statute under which Plaintiff seeks relief, only applies to the removal of "architectural barriers in existing facilities... where such removal is readily achievable. 28 C.F.R. ...