United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS ADA
CLAIM; REMANDING § 1723 CLAIM TO STATE COURT Re: Dkt.
J. Davila United States District Judge.
Erik Estavillo alleges that Defendant Blizzard Entertainment,
(“Blizzard”), a video game developer, violated
Cal. Civ. Code § 1723 and the Americans with
Disabilities Act (“ADA”). Compl. (Dkt. No. 1-1)
¶ 5. Plaintiff seeks injunctive and equitable relief,
compensatory damages, and $100, 000 in punitive damages.
Id. ¶ 6. Blizzard removed Plaintiff's
action from the Superior Court of California, County of Santa
Clara, pursuant to 28 U.S.C. § 1331. Dkt. No. 1.
Blizzard now moves to dismiss Plaintiff's claims under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. Mot. to Dismiss (Dkt. No. 9). For the reasons below,
the court: (1) dismisses Plaintiff's ADA claim under Rule
12(b)(6) with prejudice and without leave to amend, (2)
declines to exercise supplemental jurisdiction over
Plaintiff's remaining state-law claim under Cal. Civ.
Code § 1723, and (3) remands Plaintiff's § 1723
claim to the Superior Court of California, County of Santa
August 2019, Mr. Estavillo, a pro se Plaintiff,
filed this action in the Superior Court of California, County
of Santa Clara. Dkt. No. 1-1. Plaintiff suffers from
Depression, Obsessive Compulsive Disorder, Panic Disorder,
and Crohn's Disease. Compl. ¶ 4. These conditions
make it challenging for him to socialize outside of his
apartment. Id. Plaintiff “heavily relies on
video games for communication with other players and other
socialization needs that he can only meet via the video
gaming medium.” Id. Playing video games also
helps “occupy his time and distract him from said
disabilities.” Id. Plaintiff played the video
game Overwatch until Blizzard, the game developer, banned
Plaintiff from the game for “abusive chat.”
Id. Plaintiff contests Blizzard's justification
for banning him. Id. Plaintiff claims, after the
ban, he could not obtain a return or refund for the
approximately $300 he had spent at Blizzard's
“digital storefront” for “loot boxes”
and “multiple copies of the game itself each time he
has been banned.” Id.
brings two causes of action. Id. ¶ 5. First,
Plaintiff claims Blizzard violates Cal. Civ. Code § 1723
“by not explicitly stating that no returns or refunds
are available on the front of their digital store for video
gamers.” Id. Second, Plaintiff claims
Blizzard's failure to “explicitly disclose”
information about returns and refunds on its digital
storefront and in its End-User License Agreement
(“EULA”) violates the ADA. Id. Plaintiff
contends that persons with mental disabilities and minors
need information about returns and refunds “explicitly
explained to them.” Id. Plaintiff seeks
injunctive and equitable relief, compensatory damages, and
$100, 000 in punitive damages. Id. ¶ 6.
September 3, 2019, Blizzard removed this action from the
Superior Court of California, County of Santa Clara, pursuant
to 28 U.S.C. § 1331. Dkt. No. 1. Blizzard claims removal
is proper because Plaintiff's ADA claim poses a federal
question. Id. at 1. Also, Blizzard argues that this
court has supplemental jurisdiction over Plaintiff's
state-law claim. Id. at 2. Soon after removal,
Blizzard filed its Motion to Dismiss and a Request for
Judicial Notice (“RJN”). Dkt. Nos. 9-10.
Plaintiff then filed his Opposition, Blizzard filed its
Reply, and Plaintiff filed a supplemental brief. Dkt. Nos.
14, 16-17. The court has considered the parties' papers
and found that, pursuant to Local Rule 7-1(b), the motion is
suitable for decision without oral argument.
Rule of Civil Procedure 12(b)(6) provides that a party may
seek dismissal of a suit for failure to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). A court
“must accept as true all factual allegations in the
complaint and draw all reasonable inferences in favor of the
nonmoving party.” Retail Prop. Tr. v. United Bhd.
of Carpenters & Joiners of Am., 768 F.3d 938, 945
(9th Cir. 2014) (citation omitted). A court may dismiss a
complaint on a Rule 12(b)(6) motion “only where there
is no cognizable legal theory or an absence of sufficient
facts alleged to support a cognizable legal theory.”
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)
(citing Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 699 (9th Cir. 1988), second am. opinion
filed May 11, 1990)). Defeating a motion to dismiss
requires that the complaint “contain[s] sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (quotations
requests that the court take judicial notice of twenty-two
(22) exhibits. RJN (Dkt. No. 10). The exhibits include: (i)
an excerpt from Plaintiff's autobiography (Ex. 1), (ii)
complaints, orders, and voluntary requests for dismissal in
prior litigation involving Plaintiff (Exs. 2-16), (iii)
“Blizzard's webpage providing information about
Overwatch from Blizzard's digital store” (Ex. 17),
(iv) information concerning Blizzard's EULA (Exs. 18-20),
and (v) information regarding Blizzard's Terms of Sale
(Exs. 21-22). Id.
court GRANTS IN PART and DENIES IN PART Defendant's RJN.
The court does not take judicial notice of Exhibits 1-13 and
18-22. The court does not find these materials necessary to
consider for the court's analysis. However, the court
takes judicial notice of Exs. 14- 17. Exhibit 14 is the
amended complaint that Plaintiff filed in March 2019 in the
Northern District of California in the matter of Erik
Estavillo v. Behaviour Interactive/Starbreeze Studios
(Case No. 19-cv-01025). RJN at 2; Ex. 14. There, Plaintiff
brought nearly identical claims against other video game
developers under Cal. Civ. Code § 1723 and the ADA.
See RJN, Ex. 14. Exhibit 15 is the Hon. Magistrate
Judge Van Keulen's report and recommendation to dismiss
Plaintiff's amended complaint in that action. RJN, Ex.
15. Exhibit 16 is the Hon. Judge Orrick's order adopting
Judge Van Keulen's report and recommendation to dismiss
the case. RJN, Ex. 16. These facts are “not subject to
reasonable dispute” because they “can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” See Fed. R.
court also takes judicial notice of Exhibit 17, screenshots
from Blizzard's website that offer general information
about Overwatch. See RJN, Ex. 17. Plaintiff refers
to Blizzard's website, the “digital storefront,
” throughout his complaint. In reviewing a Rule
12(b)(6) motion, the court may “consider[ ]”
“[d]ocuments whose contents are alleged in a complaint
and whose authenticity no party questions, but which are not
physically attached to the pleading.” Tunac v.
United States, 897 F.3d 1197, 1207 n.8 (9th Cir. 2018)
(citing Branch v. Tunnell, 14 F.3d 449, 454 (9th
Cir. 1994), overruled on other grounds by Galbraith v.
Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002))
Plaintiff Does Not State a ...