Hayes v. Costco Wholesale Corporation

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DELIA M. HAYES, No. 1:20-cv-01233-NONE-EPG

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT DEFENDANTS’

13 v. MOTION TO DISMISS BE GRANTED

14 COSTCO WHOLESALE (ECF NO. 20)

CORPORATION, et al.,

15 FOURTEEN-DAY DEADLINE

Defendants.

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17 Plaintiff Delia M. Hayes (“Plaintiff”), proceeding pro se, filed a complaint at the Superior

18 Court of California, County of Fresno, on June 23, 2020, commencing this action. (ECF No. 1-1).

19 On September 1, 2020, Defendants Costco Wholesale Corp. (“Costco”), Paul Cano (“Cano”), and

20 Jim Harris, Jr. (“Harris,” and together, “Defendants”) removed the action to this Court, asserting

21 federal question jurisdiction. (ECF No. 1). This case is proceeding on Plaintiff’s first amended

22 complaint, filed on December 8, 2020. (ECF No. 19). Before the Court is Defendants’ motion to

23 dismiss, filed on December 9, 2020, (ECF No. 19), which District Judge Drozd referred to the

24 undersigned on January 6, 2021, (ECF No. 24).

25 Having reviewed the first amended complaint, the motion to dismiss, Plaintiff’s

26 opposition filed on December 22, 2020 (ECF No. 21) and Defendants’ reply, filed on December

27 31, 2020 (ECF No. 22), the Court recommends granting Defendants’ motion to dismiss.

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1 I. SUMMARY OF FIRST AMENDED COMPLAINT

2 The first amended complaint alleges as follows:

3 Plaintiff is legally blind in her left eye. She has poor depth perception, severe myopia,

4 diabetic macular degeneration and congenital amblyopia in her left eye. As such, Plaintiff’s

5 bodily movements are “perceptively off[.]”

6 Plaintiff, then a Costco member, was shopping at a Costco in Fresno, California on April

7 9, 2018 with her daughter. She inadvertently ran into another Costco shopper, whom she defines

8 as “Male predator 1 (MP1).” She explained that she is blind and did not see the male shopper.

9 Yet another shopper, whom Plaintiff defines as “Female Predator 1 (FP1),” was apparently

10 unsatisfied and argued with Plaintiff. The female shopper yelled profanity at Plaintiff when very

11 close to her. Plaintiff asked a Costco employee to call the manager for assistance. That employee

12 did not call the manager. One or two other Costco employees approached the other two shoppers

13 and asked what happened.

14 Plaintiff “believed she was in [im]minent danger and did nothing more than to protect

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16 Plaintiff was unable to identify any witnesses to the interaction due to her vision

17 impairments. She did hear a Costco employee take a statement from a witness, who gave

18 inaccurate information. Plaintiff told that witness that making a false claim in a police report can

19 result in a felony conviction. The witness recanted the inaccuracies in his statement.

20 Plaintiff attempted to walk away from the scene. However, she was stunned and suffered

21 from overloaded sensory stimulation, affecting her vision and equilibrium. She sought assistance

22 from the manager, Harris. Plaintiff asked Harris to let her stay in the office until the police

23 arrived. Harris said no and “failed to offer any action resembling a reasonable accommodation or

24 duty of care and insisted that the Plaintiff wait outside the office.” A different Costco employee

25 insisted that Plaintiff be permitted to stay in Harris’s office.

26 Plaintiff asked Harris for permission to view the warehouse security video. Harris did not

27 permit Plaintiff to do so and said she “would never get her [sic] hands on that video.”

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1 Costco management and employees did not appear to follow a business process to

2 investigate or assist with the incident and had little or no supervision.

3 Fresno Police Department officers arrived. Plaintiff asked to go to her car to get her blood

4 sugar monitor and white cane. She was informed she was being detained. Plaintiff could not

5 identify whether she was being affected by a hypoglycemic or hyperglycemic incident because

6 she was not able to access her medical equipment. “Plaintiff had to stop her pump from operating

7 without medical evaluation of her blood sugar via the appropriate medical devices.”

8 Plaintiff was not permitted to return a 70-inch HDTV. Cano and Harris “denied the

9 plaintiff from receiving benefits that she had purchased and were guaranteed by Costco,”

10 including returning the TV, a cash-back dividend check, and certain automotive maintenance.

11 Plaintiff has suffered emotional injuries due to Defendants’ conduct. Plaintiff’s

12 membership was revoked. Plaintiff was charged with criminal offenses, which were subsequently

13 dismissed.

14 The first amended complaint lists its claims for relief under the Fourteenth Amendment,

15 Title III of the Americans with Disabilities Act (“ADA”), and the Unruh Civil Rights Act.

16 Plaintiff also filed a memorandum in support of the first amended complaint. (ECF No.

17 19-1). It discusses the ADA and the Unruh Act.

18 II. SUMMARY OF ARGUMENTS

19 Defendants filed a motion to dismiss on December 9, 2020, arguing that the first amended

20 complaint should be dismissed on two bases. (ECF No. 20). First, the Fourteenth Amendment

21 claim should be dismissed because no Defendants are state actors. (ECF No. 20-1 at 10-11).

22 Second, Plaintiff’s ADA and Unruh Act claims fail because Plaintiff has not adequately alleged in

23 what manner Defendants discriminated against her. (Id. at 11-15).

24 Plaintiff filed an opposition on December 22, 2020. (ECF No. 21). She argues that Costco

25 failed to make reasonable accommodations, to remove architectural barriers, and to provide

26 auxiliary aids and services. She further argues that Harris and Cano misled the Fresno Police

27 Department by omitting information about Plaintiff’s disabilities.

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1 Defendants filed a reply on December 31, 2020. (ECF No. 22). It argues that Plaintiff

2 concedes that she has no section 1983 claim and provides a chart with types of Title III claims

3 and types of allegations necessary to support them.

4 III. LEGAL STANDARDS

5 In considering a motion to dismiss, the Court must accept all allegations of material fact in

6 the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. Rex

7 Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the

8 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on

9 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813,

10 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's

11 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must

12 be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler,

13 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally

14 construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

15 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the

16 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a

17 short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to

18 ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell

19 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v.

20 Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but

21 whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at

22 236 (1974).

23 The first step in testing the sufficiency of the complaint is to identify any conclusory

24 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action,

25 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S.

26 at 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires

27 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

28 will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted).

1 After assuming the veracity of all well-pleaded factual allegations, the second step is for

2 the court to determine whether the complaint pleads “a claim to relief that is plausible on its

3 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6)

4 standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when the plaintiff

5 “pleads factual content that allows the court to draw the reasonable inference that the defendant is

6 liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). The standard

7 for plausibility is not akin to a “probability requirement,” but it requires “more than a sheer

8 possibility that a defendant has acted unlawfully.” Id.

9 IV. ANALYSIS

10 A. Claim Under 42 U.S.C. § 1983 for Fourteenth Amendment Violation

11 Defendants argue that they are not state actors and thus cannot be held liable under 42

12 U.S.C. § 1983 for violating Plaintiff’s Fourteenth Amendment rights. Although Plaintiff’s

13 opposition mentions this argument, it does not provide any argument against it.

14 The Court finds Plaintiff has conceded this argument. See Columbia Sussex Mgmt., LLC v.

15 City of Santa Monica, No. 2:19-CV-09991, --- F. Supp. 3d ----, 2020 WL 5358505, at *9 (C.D.

16 Cal. Aug. 28, 2020) (“Failure to oppose constitutes a waiver or abandonment of the issue.”);

17 Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal.

18 2011) (“[I]n most circumstances, failure to respond in an opposition brief to an argument put

19 forward in an opening brief constitutes waiver or abandonment in regard to the uncontested

20 issue.” (quoting Sportscare of America, P.C. v. Multiplan, Inc., No. 2:10–4414, 2011 WL

21 589955, at *1 (D.N.J. Feb. 10, 2011)).

22 Nevertheless, addressing the issue on the merits, Defendants are correct that Plaintiff fails

23 to state a claim under section 1983. “To state a claim under § 1983, [Plaintiff] must allege a

24 violation of [her] constitutional rights and show that the defendant's actions were taken under

25 color of state law.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir.

26 2011) (cleaned up). “Section 1983 excludes from its reach merely private conduct, no matter how

27 discriminatory or wrong.” Heineke v. Santa Clara Univ., 965 F.3d 1009, 1012 (9th Cir. 2020)

28 (internal quotation marks and citation omitted); accord Hoskins v. F.C.C., 12 F. App'x 540, 541

1 (9th Cir. 2001) (“The district court properly dismissed Hoskins' section 1983 claims against the

2 remaining defendants because private parties are not generally acting under color of state law”).

3 Plaintiff has not made any allegations that relate to Defendants being state actors or that

4 otherwise indicate their actions were taken under color of state law. Although private individuals

5 and entities can be state actors for section 1983 purposes in some occasions, see Rawson v.

6 Recovery Innovations, Inc., 975 F.3d 742, 747-48 (9th Cir. 2020) (discussing different tests for

7 finding state action), none of the exceptions apply here.

8 Therefore, the Court finds that Plaintiff fails to state a claim under Section 1983.

9 B. Americans with Disabilities Act Claim

10 Plaintiff’s second listed claim was under Title III of the ADA. Under the claim for relief

11 heading, after realleging her previous allegations, Plaintiff’s first amended complaint states:

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44. Defendants prevented Plaintiff from Title III authorities prohibiting

13 discrimination on the basis of disability in the activities of places of public

accommodations. Such places of public accommodation must keep products,

14 services and areas accessible for the qualified persons protected by Title III

definitions.

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45. Defendants. conduct constituted discrimination on the basis of Plaintiffs real

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or perceived disability in violation of 42 U.S. Code § 12182 Prohibition of

17 discrimination by public accommodations.

(ECF No. 19 at 10) (as in original).

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In their motion to dismiss, Defendants argue that there are specific ways Title III of the

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ADA can be violated but that the first amended complaint does not provide them with notice of

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how they are alleged to have violated it. (ECF No. 20-1 at 11-14). Thus, according to Defendants,

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Plaintiff failed to provide them with “fair notice of the claims against them as required by

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Twombly, 550 U.S. at 555.” (ECF No. 20-1 at 13).

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In her opposition, Plaintiff argues generally that her complaint relates to a failure to

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remove barriers, a failure to make reasonable accommodations, and a failure to provide auxiliary

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aids and services. (ECF No. 21 at 6-7) (“[O]n April 9, 2018, (1) Costco Wholesale Corporation

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and its business and private actors failed to make reasonable accommodations under 42 U.S.C. §

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12182(b)(2)(A)(ii); (2) Costco Wholesale Corporation’s failure to remove barriers under 42

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1 U.S.C. § 12182(b)(2)(A)(iv); and (3) Costco Wholesale Corporation’s failure to provide auxiliary

2 aids and services under 42 U.S.C. § 12182(b)(2)(A)(iv)”).

3 In their reply, Defendants provide a chart that identifies four types of claims that may be

4 brought under Title III and the types of necessary facts they argue that Plaintiff failed to allege.

5 (ECF No. 22 at 4).

6 The complaint itself does not clearly establish what aspects of Title III Plaintiff believes

7 were violated. Paragraphs 44 and 45 of the complaint, quoted above, contain such broad language

8 that they do not itself provide Defendants with notice of the alleged violations. The Court turns,

9 then, to the grounds listed in Plaintiff’s brief opposing the motion to dismiss: barriers, reasonable

10 accommodations, and auxiliary aids and services.

11 To the extent Plaintiff’s claims concern physical barriers, Defendants argue that Plaintiff

12 has not provided them with notice of what barriers were noncompliant with the ADA and cite to

13 Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011). (ECF No. 22 at 7). In Oliver, the

14 Ninth Circuit held that “for purposes of Rule 8, a plaintiff must identify the barriers that constitute

15 the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is

16 not deemed to have fair notice of barriers identified elsewhere.” Id. at 909.

17 Plaintiff has not done so. Plaintiff attaches to her complaint a letter to Costco that

18 complains about crowds in various aisles near the refrigerators. However, there are no allegations

19 about this in the First Amended Complaint, or any allegations that Plaintiff encountered these

20 barriers herself. The Court does not understand the connection between this allegation and the

21 incident described in the First Amended Complaint

22 To the extent Plaintiff complains about a failure to make reasonable accommodations,1 it

23 is not clear what reasonable accommodations were necessary. Plaintiff states that Harris did not

24 permit her to sit in an office or “offer any action resembling a reasonable accommodation,” (ECF

25 No. 19 at 6), but that conclusory allegation does not satisfactorily allege disability discrimination.

26 Finally, to the extent Plaintiff complains about auxiliary aids and services, the first

27 1 “Although Title III of the ADA uses the term ‘reasonable modification’ rather than ‘reasonable accommodation,’

these terms do not differ in the standards they create.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1083 (9th

28 Cir. 2004) (cleaned up).

1 amended complaint suffers from similar defects: it is not clear what auxiliary aids and services

2 she believes she was entitled to, nor is it clear how Defendants’ failure to provide those aids and

3 services constituted discrimination.

4 In sum, the first amended complaint does not provide Defendants with sufficient notice of

5 their alleged violations of the ADA. Therefore, the claim should be dismissed.

6 C. Unruh Act

7 Defendants argue that Plaintiff’s Unruh Act claim should be dismissed because it relies

8 upon some unspecified ADA violation. (ECF No. 20-1 at 14). Plaintiff appears to agree that her

9 Unruh Act claim is derivative of her ADA claim, as she responded that ADA violations are also

10 Unruh Act violations. (ECF No. 21 at 6). Because Plaintiff’s ADA claim should be dismissed, so

11 too should her derivative Unruh Act claim. See Montoya v. City of San Diego, 434 F. Supp. 3d

12 830, 853 (S.D. Cal. 2020) (“As explained above, Plaintiffs have failed to state a Title III claim

13 against the Dockless Vehicle Defendants. Thus, to the extent Plaintiffs' Unruh Act claim against

14 these defendants is premised on a violation of the ADA, it fails for the same reason that Plaintiffs'

15 Title III claim fails.”).

16 V. LEAVE TO AMEND

17 Neither party makes any specific request or recommendation concerning leave to amend.

18 The Court notes that Plaintiff has already filed an amended complaint. Moreover, Plaintiff

19 appears to have no basis to allege any Defendants were state actors, even after Defendants

20 provided the relevant legal standards in their initial motion to dismiss. Thus, the Court

21 recommends denying leave to amend with respect to any Section 1983 claims.

22 Although the Court would be within its discretion to deny leave to amend Plaintiff’s

23 Americans with Disabilities Act and Unruh Act claims, the Court recommends granting leave to

24 amend with respect to those claims only. As discussed above, Plaintiff’s complaint makes vague

25 allegations regarding barriers and reasonable accommodations, but does not describe what they

26 are or how they relate to the allegations in her complaint. It is not clear that Plaintiff can cure

27 these issues in an amended complaint, but given that Plaintiff is pro se, the Court recommends

28 granting Plaintiff one more opportunity to amend her complaint as to the ADA and Unruh Act

1 | claims, with the benefit of the standards provided herein, if she so chooses.

2} VI. CONCLUSION AND RECOMMENDATIONS

3 For the foregoing reasons, it is HEREBY RECOMMENDED that:

4 1) Defendants’ motion to dismiss (ECF No. 20) be GRANTED; and

5 2) Plaintiffs first amended complaint be dismissed, with leave to amend only with

6 respect to Plaintiffs claims under the Americans with Disabilities Act and the Unruh

7 Act.”

8 These findings and recommendations will be submitted to the United States district judge

9 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within fourteen

10 | (14) days after being served with these findings and recommendations, the parties may file

11 | written objections with the Court. The document should be captioned “Objections to Magistrate

12 || Judge’s Findings and Recommendations.” The parties are advised that failure to file objections

13 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

14 | F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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16 IT IS SO ORDERED.

Dated: _ January 11, 2021 [sf ey

18 UNITED STATES MAGISTRATE JUDGE

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2 The Court recommends that Plaintiff be given 30 days from the date of the ruling by the District Judge on

28 | Defendant’s motion to dismiss to amend her complaint if she so chooses.

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