United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO
AMEND RE: DKT. NO. 35
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE.
Chuck Bellone asserts the following claims against defendant
Gadabout Tours, Inc. (“Gadabout”) and Does 1-10
for the following: (1) violation of Title III of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq.; (2) violation of the Unruh Civil
Rights Act (“Unruh Act”), Cal. Civ. Code
§§ 51-53; (3) violation of the California Disabled
Persons Act (“CDPA”), Cal. Civ. Code § 54.1
et seq.; and (4) negligence. Dkt. No. 29. Gadabout moves to
dismiss Mr. Bellone's ADA, Unruh Act, and CDPA claims
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Dkt. No. 35.
Court heard oral argument on the motion on November 5, 2019.
Dkt. No. 47. Having considered the parties' moving papers
and arguments made at the hearing, the Court grants
Gadabout's motion to dismiss without leave to amend and
declines to exercise supplemental jurisdiction over Mr.
Bellone's remaining negligence claim.
Bellone is a California resident who is partially blind and
has both visual and mobility impairments. Dkt. No. 29 ¶
1. Under the name Gadabout Vacations, Gadabout operates a
travel services company that arranges and guides vacation
tours for senior citizens. Id. ¶ 2.
Bellone arranged to take a five-day California railway tour
organized and guided by Gadabout in May 2018. Id.
¶ 10, 13. Prior to the tour, Mr. Bellone informed
Gadabout of his legally blind status and his mobility
impairment, which requires him to walk with a cane.
Id. Gadabout's employees assured Mr. Bellone
that they would make sure he would be able to fully access
everything on his trip and that someone would be available to
assist him as needed. Id. ¶ 11. During the
first part of the tour, the tour director, Janice Fitzgerald,
assisted Mr. Bellone with his accessibility needs as
promised. Id. ¶ 12.
tour's second stop was at the Roaring Camp Railroads, a
recreational facility near Santa Cruz that offers, among
other things, a private train ride transporting passengers
around a redwood forest. Id. ¶¶ 13-14. Mr.
Bellone and his fellow tourists took the Roaring Camp
Railroads train ride, after which Gadabout arranged a
barbecue lunch in the picnic area. Id. ¶ 15. To
partake in the lunch, Mr. Bellone was required to pick up his
food from the barbecue area and navigate his way to the
picnic tables through one of two routes, both of which Mr.
Bellone says did not comply with the ADA in multiple
respects. Id. ¶¶ 16-18. The first route
involved traversing a small set of uneven brick stairs
without a handrail leading to a dirt walkway. Id.
¶ 17. The second route involved avoiding the stairs and
instead traversing uneven dirt walkways that included a
Mr. Bellone descended from the train, he was unable to find
Ms. Fitzgerald and was forced to find his way to the barbecue
area without assistance. Id. ¶¶ 20-21. As
a result of the inaccessible paths of travel, Mr. Bellone
fell and suffered a cracked sternum and ribs. Id.
¶ 21. Mr. Bellone says that in addition to his physical
injuries, he experienced mental pain and suffering.
Id. ¶¶ 21-22.
Bellone filed this action on January 18, 2019 against Roaring
Camp, Inc. (“Roaring Camp”), asserting claims for
violations of the ADA and the Unruh Act and for negligence.
Dkt. No. 1. On July 10, 2019, Mr. Bellone filed a first
amended complaint (“FAC”). The FAC named Gadabout
and Lois and Mark Anderson as additional defendants, added a
premises liability claim against Roaring Camp only, and
specified that the negligence claim was asserted against
Gadabout only. Dkt. No. 15. Mr. Bellone and Roaring Camp
subsequently reached a settlement agreement and stipulated to
dismissal of the claims against Roaring Camp pursuant to Rule
41(a)(1)(A)(ii). Dkt. Nos. 19, 23.
meantime, Mr. Bellone served the FAC on Gadabout and the
Andersons. Dkt. Nos. 20, 21, 22. Gadabout and the Andersons
moved to dismiss the FAC's ADA and Unruh Act claims. Dkt.
No. 25. That motion became moot when Mr. Bellone filed a
second amended complaint (“SAC”) on September 9,
2019 as a matter of course pursuant to Rule 15(a). Dkt. Nos.
29, 30. The SAC added a claim for violation of the CDPA. Dkt.
No. 29 ¶¶ 45-55. Gadabout and the Andersons then
filed the motion to dismiss claims 1-3 of the SAC now before
the Court. Dkt. No. 35.
October 31, 2019, the parties stipulated to a dismissal of
the claims against the Andersons pursuant to Rule
41(a)(1)(A)(ii), leaving Gadabout as the sole defendant. Dkt.