United States District Court, E.D. California
DR. HAROLD C. SIVAS, Plaintiff,
LUXOTTICA RETAIL NORTH AMERICA, INC.; ASHLEY JONES; LIZ TORRES; and DOES 1-10, inclusive, Defendants.
ORDER GRANTING MOTION TO DISMISS (ECF NO.
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
Dr. Harold C. Sivas filed this action on March 25, 2019 in
Fresno County Superior Court. ECF No. 1-1
(“Complaint”). On June 12, 2019, this Court
granted without prejudice Defendants' unopposed motion to
dismiss the Complaint. ECF No. 9. Plaintiff filed the First
Amended Complaint (“FAC”) on July 1, 2019. ECF
No. 10. Defendant Luxottica Retail North America, Inc.
(“Luxottica”) operates Target Optical retail
stores in space leased from Target. See id. ¶
2. Dr. Sivas, who is an optometrist, subleases space from
Luxottica in two Target locations: Clovis, California and
Fresno, California. Id. ¶¶ 1-2, 10-17.
Defendants Ashley Jones and Liz Torres work as the Manager
and District Manager, respectively, of Target Optical in
Clovis. Id. ¶¶ 3-4. Dr. Sivas alleges that
he is sixty-five years' old and has been diagnosed with
Parkinson's disease. Id. ¶ 8.
complains that he was subjected to “adverse employment
actions, ” including the direction by Defendants of
Plaintiff's business to other optometrists, see
id. ¶ 49, because of his Parkinson's disease,
in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et
seq. Id. ¶¶ 62-74. Plaintiff also brings a
cause of action for elder abuse under California Welfare
& Institutions Code §§ 15600 et seq.
based on the allegation that Defendants “utilized undue
influence in depriving [Plaintiff] of substantial income by
directing substantial business away from Dr. Sivas and toward
other employees working at LUXOTTICA's locations.”
Id. ¶ 79. He also brings a state law cause of
action for intentional interference with prospective economic
advantage based on the same conduct. Id.
Plaintiff filed the FAC, Defendants renewed their motion to
dismiss under Rule 12(b)(6), arguing that Plaintiff has
failed to state a claim for relief. ECF No. 11. Defendants
contend that the ADA claim should be dismissed because
Plaintiff concedes Luxottica is not his employer; that the
elder abuse claim fails to allege the required element of
“financial abuse” as that term is defined by
California Welfare & Institutions Code § 15610.30;
and that the intentional interference claim fails to allege
that Plaintiff's relationship with Luxottica was
disrupted. See generally id.
reviewed the motion in light of the entire record, the Court
deems the matter suitable for disposition on the papers
without oral argument pursuant to Local Rule 230(g). For the
reasons set forth below, Defendants' motion to dismiss is
GRANTED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND.
Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss pursuant to Rule 12(b)(6) is a challenge to
the sufficiency of the allegations set forth in the
complaint. Dismissal under Rule 12(b)(6) is proper where
there is either a “lack of a cognizable legal
theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balisteri
v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1990). In considering a motion to dismiss for failure to
state a claim, the court generally accepts as true the
allegations in the complaint, construes the pleading in the
light most favorable to the party opposing the motion, and
resolves all doubts in the pleader's favor. Lazy Y.
Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
survive a 12(b)(6) motion to dismiss, the 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, 556 U.S. 662, 678 (2009).
“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. (quoting Twombly,
550 U.S. at 556). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires more than labels and conclusions.”
Twombly, 550 U.S. at 555 (internal citations
omitted). Thus, “bare assertions . . . amount[ing] to
nothing more than a ‘formulaic recitation of the
elements' . . . are not entitled to be assumed
true.” Iqbal, 556 U.S. at 681. “[T]o be
entitled to the presumption of truth, allegations in a
complaint . . . must contain sufficient allegations of
underlying facts to give fair notice and to enable the
opposing party to defend itself effectively.” Starr
v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In
practice, “a complaint . . . must contain either direct
or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable
legal theory.” Twombly, 550 U.S. at 562.
extent that the pleadings can be cured by the allegation of
additional facts, a plaintiff should be afforded leave to
amend. Cook, Perkiss and Liehe, Inc. v. Northern Cal.
Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.
1990) (citations omitted). A court need not permit an attempt
to amend if “it is clear the complaint could not be
saved by amendment.” Livid Holding Ltd. v. Salomon
Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
Sufficiency of Plaintiff's Claims under Rule