The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 JAMES ANDERSON, Case No.: 26cv01272-LL-JLB
12 Plaintiff,
ORDER GRANTING DEFENDANT’S
13 v. MOTION TO DISMISS
14 BLUE SHIELD OF CALIFORNIA,
[ECF No. 6]
15 Defendant.
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18 I. INTRODUCTION
19 Before the Court is Defendant Blue Shield of California Promise Health Plan’s
20 Motion to Dismiss pro se Plaintiff James Anderson’s Complaint pursuant to Rule 12(b)(6).
21 ECF No. 6. Plaintiff filed an Opposition to the Motion [ECF No. 8], and Defendant filed a
22 Reply [ECF No. 9]. This matter is fully briefed, and the Court deems it suitable for
23 determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.
24 Having carefully considered Plaintiff’s Complaint and the parties’ briefs, the Court
25 GRANTS Defendant’s Motion to Dismiss.
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1 II. BACKGROUND
2 On October 8, 2025, Plaintiff, proceeding pro se, filed a form complaint in the
3 Superior Court of California, alleging two causes of action against Defendant: (1) General
4 Negligence, and (2) a violation of Americans with Disabilities Act (“ADA”). ECF No. 1-
5 2. Specifically, Plaintiff contends that he is a member of Defendant’s insurance plan and
6 that Defendant has repeatedly denied his transportation requests to schedule rides to
7 “different places in the community such as Walmart, Albertsons [etc]. to train with [his]
8 service dog.” ECF No. 1-3 at 2. Plaintiff contends that Defendant’s “transportation
9 customer service” told him that they will “only transport to medical appointments at
10 medical facilities.” ECF No. 1-3 at 2. Plaintiff alleges that by denying his transportation
11 requests, Defendant refused to provide reasonable accommodation under the ADA. ECF
12 No. 1 ¶ 7.
13 On February 27, 2026, Defendant removed the case to federal court based on federal
14 question jurisdiction. ECF No. 1 at 2. On March 5, 2026, Defendant moved to dismiss all
15 of Plaintiff’s claims based on a failure to state a claim. ECF No. 25 at 8–13.
16 III. LEGAL STANDARD
17 Parties may move to dismiss a claim for “failure to state a claim upon which relief
18 may be granted.” Fed. R. Civ. P. 12(b)(6). To survive this motion, a complaint must have
19 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
20 Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads
21 factual content that allows the court to draw the reasonable inference that the defendant is
22 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
23 Twombly, 550 U.S. at 556). This standard is ultimately a liberal one, especially when the
24 action has been filed pro se. Estelle v. Gamble, 429 U.S. 97, 106–07 (1976) (explaining a
25 less stringent standard for pro se complaints compared to pleadings written by lawyers).
26 Nevertheless, courts do not “accept as true allegations that are merely conclusory,
27 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig.,
28 536 F.3d 1049, 1055 (9th Cir. 2008) (citing Sprewell v. Golden State Warriors, 266 F.3d
1 979, 988 (9th Cir. 2001)) (citation omitted), amended on other grounds, 275 F.3d 1187
2 (9th Cir. 2001).
3 Generally, “[i]f a complaint is dismissed for failure to state a claim, leave to amend
4 should be granted ‘unless the court determines that the allegation of other facts consistent
5 with the challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow
6 Freight Systems, Inc., 957 F.2d 655, 658 (9th Cir. 1992) (citing Schreiber Distrib. Co. v.
7 Serv-Well Furniture Co., 806 F.2d 1393, 1402 (9th Cir. 1986)).
8 IV. DISCUSSION
9 A. General Negligence
10 The Court agrees with Defendant that Plaintiff abandoned the claim of General
11 Negligence when Plaintiff failed to address it in his Opposition. ECF No. 9 at 3 n.2; See
generally ECF No. 8. “Where a plaintiff has failed to address an argument raised in a
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defendant’s motion to dismiss, courts in the Ninth Circuit have found that the plaintiff has
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abandoned the claim.” Gold as Tr. of Michelle Gold Separate Prop. Tr. dated Dec. 23,
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2002 v. Nat’l Default Servicing Corp., No. 22-CV-1232 JLS (AGS), 2023 WL 2394643,
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at *4 (S.D. Cal. Mar. 7, 2023) (citing Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d 1033,
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1037 (9th Cir. 2006)) (explaining a claim that fails to respond to an argument in the motion
17 to dismiss is “effectively abandoned”); Toranto v. Jaffurs, 297 F. Supp. 3d 1073, 1104
18 (S.D. Cal. 2018) (granting motion to dismiss on a claim plaintiff abandoned when he failed
19 to address the issue in his opposition). Here, Plaintiff’s Opposition does not address
Defendant’s argument for dismissal of the General Negligence claim, and therefore, the
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claim is deemed abandoned.
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The Court nevertheless addresses whether Plaintiff’s Complaint states a plausible
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claim for General Negligence on the merits. Under California law, a “[r]elationship
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between an insured and insurer is contractual.” Benavides v. State Farm Gen. Ins. Co., 136
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Cal. App. 4th 1241, 1248 (2006). Further, “negligence is not among the theories of
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recovery available against insurers.” Vardazaryan v. Liberty Mut. Fire Ins. Co., No. CV
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23-7239-JFW (JCX), 2023 WL 8884391, at *3 (C.D. Cal. Nov. 2, 2023) (quoting Sanchez
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v. Lindsey Morden Claims Serv.’s, 72 Cal. App. 4th 249, 254 (1999)) (emphasis in
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1 original); see also Diamond v. State Farm Mut. Auto. Ins. Co., No. CIV S–09–1110 MCE
2 DAD PS, 2010 WL 2904640, at *7 (E.D. Cal. July 26, 2010) (“negligence actions generally
3 do not lie against insurers[;] there is no case law that provides a guide for when such
4 exceptions are appropriate.”). Here, Plaintiff, the insured, is in a contractual relationship
5 with Defendant, the insurer. Therefore, Plaintiff cannot assert a negligence claim against
6 Defendant and accordingly has not stated a claim upon which relief can be granted.
7 Even if negligence were “among the theories of recovery available against insurers”
8 the Court finds that Plaintiff’s claim for General Negligence is merely conclusory. To state
9 a cause of action for negligence, plaintiff must allege (1) duty, (2) breach, (3) causation,
10 and (4) damages. See Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996). “[A]
11 plaintiff must establish the defendant owed a legal duty of care.” Brown v. USA
12 Taekwondo, 11 Cal. 5th 204, 209 (2021). Plaintiff has not alleged any facts establishing
13 that Defendant owed Plaintiff a legal duty of care outside of their contractual relationship.
14 See generally ECF No. 1-2. Absent duty, Plaintiff does not have a claim for negligence.
15 See Brown, 11 Cal. 5th at 213 (“Recovery for negligence depends as a threshold matter on
16 the existence of a legal duty of care.”) (citing S. Cal. Gas Leak Cases, 7 Cal. 5th 391, 397
17 (2019)).
18 Given that insurers cannot be held liable for negligence under California law, the
19 Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s General Negligence claim,
20 WITHOUT LEAVE TO AMEND.
21 B. ADA Violation
22 Plaintiff asks the Court to require “Blue Shield of California to alter its medical
23 policy as a[n] ADA reasonable accommodation . . . [to] transport[] . . . client to work with
24 his medical device.” ECF No. 1-2 at 6. This Court declines to do so and finds that Plaintiff
25 has not alleged facts for a claim upon which relief can be granted.
26 To state a claim for an ADA Title III violation, a plaintiff must allege that “(1) [he]
27 is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns,
28 leases, or operates a place of public accommodation; and (3) the plaintiff was denied public
1 accommodations by the defendant because of [his] disability.” Doe v. CVS Pharmacy, Inc.,
2 982 F.3d 1204, 1212–13 (9th Cir. 2020) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724,
3 730 (9th Cir. 2007)).1
4 First, the parties do not dispute that Plaintiff is disabled within the meaning of the
5 ADA. The parties disagree over the second element: whether defendant owns, leases, or
6 operates a place of public accommodation.
7 The Court finds that Plaintiff has not sufficiently pled facts that would allow the
8 Court to draw a reasonable inference that Defendant operates a place of public
9 accommodation covered by ADA Title III. Title III covers discrimination by a private
10 entity that operates a place of public accommodation. Congress has defined and listed
11 several private entities that are considered public accommodations, such as “[a] pharmacy,
12 insurance office, professional office of a health care provider, hospital, or other service
13 establishment.” 42 U.S.C.A. §12182(7)(F). In fact, every place of public accommodation
14 listed in 42 U.S.C.A is a physical location. See generally 42 U.S.C.A. §12181(7)(A-L).
15 The Ninth Circuit also has held that a place of public accommodation requires a
16 connection between the goods or services and an actual physical place. Weyer v. Twentieth
17 Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (“an insurance office must
18 be physically accessible to the disabled but need not provide insurance that treats the
19 disabled equally with the non-disabled.”); Earll v. eBay, Inc., 599 F. App’x 695, 696 (9th
20 Cir. 2015) (holding that the ADA claim fails as a matter of law because eBay’s services
21 are not connected to a physical place and thus eBay is not subject to the ADA); Cullen v.
22 Netflix, Inc., 600 F. App’x 508, 509 (9th Cir. 2015) (holding that Netflix is not subject to
23 the ADA as a matter of law because Netflix’s services are not connected to a physical
24 place).
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27 1 Plaintiff did not specify which ADA Title he made his claims under. See generally ECF
No. 1-2. The Court agrees with Defendant that Title I and II do not apply here. ECF No. 6
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1 Here, Plaintiff has not alleged facts demonstrating that Defendant owns, leases, or
2 operates a physical place of public accommodation under ADA Title III. See generally
3 || ECF No. 1-3. If anything, Plaintiff's asserted ADA violation concerns substantive policy
4 || benefits, such as transportation and location and type of covered facilities. “Title III of the
5 || ADA requires an insurance office to be physically accessible to the disabled, [but] it does
6 || not address the terms of the policies the insurance companies sell[].”” Chabner v. United of
7 || Omaha Life Ins. Co., 225 F.3d 1042, 1047 (9th Cir. 2000) (citing Weyer, 198 F.3d at 1115).
8 ||In other words, an assertion that the benefits of an insurance policy are discriminatory is
9 a claim upon which relief can be granted under ADA Title UI.
10 Thus, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff's ADA violation
11 |}clam WITH LEAVE TO AMEND.
12 CONCLUSION
13 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss for claim (1)
14 ||General Negligence WITHOUT LEAVE TO AMEND and claim (2) ADA violation
15 || WITH LEAVE TO AMEND. Plaintiff must file an amended complaint curing the
16 identified deficiencies on or before August 14, 2026.
17 || IT IS SO ORDERED.
18 Dated: July 24, 2026 NO
19 DE |
20 Honorable Linda Lopez
51 United States District Judge
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