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Bellone v. Gadabout Tours, Inc.

United States District Court, N.D. California, San Jose Division

November 8, 2019




         Plaintiff 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.[1] Dkt. No. 35.

         The 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.

         I. BACKGROUND

         A. Factual Allegations

         Mr. 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.

         Mr. 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.

         The 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 grate. Id.

         When 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.

         B. Procedural Background

         Mr. 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.

         In the 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.

         On 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. No. 43.

         II. ...

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