Missud v. Oakland Coliseum Joint Venture

• Decision Date: 27 June 2013
• Docket Number: Case No.: 12-02967 JCS
• Parties: JULIE E. MISSUD, Plaintiff, v. OAKLAND COLISEUM JOINT VENTURE, et al. Defendants.
• Court: U.S. District Court — Northern District of California

JULIE E. MISSUD, Plaintiff,

v.OAKLAND COLISEUM JOINT VENTURE, et al. Defendants.

Case No.: 12-02967 JCS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Dated: June 27, 2013

ORDER GRANTING DEFENDANTS'

MOTION TO DISMISS; DISMISSING

FIRST AMENDED COMPLAINT

WITH PREJUDICE; DENYING

DEFENDANTS' MOTION TO STRIKE

AS MOOT

I. INTRODUCTION

Plaintiffs Patrick A. Missud and Julie E. Missud ("the Missuds" or "Plaintiffs")¹ brought this putative class action against Defendants Oakland Coliseum Joint Venture ("OCJV"), City of Oakland, Alameda County, and SMG Corporation ("SMG") ("Defendants").² Plaintiffs allege causes of action for (1) violations of the Clean Water Act ("CWA"); (2) violations of the Resource Conservation and Reclamation Act ("RCRA"); (3) violations of the Americans with Disabilities Act ("ADA"); (4) violations of the National Highway Safety and Traffic Act ("NHSTA"); (5) violations of the requirements established by Cal-trans ("Caltrans");³ (6) negligence; (7) breach of contract; (8) fraudulent inducement; and (9) unfair business practices in violation of California Business andProfessions Code section 17200 ("UCL"). Presently before the Court are (1) Defendants' Motion to Dismiss the First Amended Complaint ("Motion to Dismiss"); and (2) Defendants' Motion to Strike Portions of the First Amended Complaint ("Motion to Strike"). Defendants and the sole plaintiff in this action, Julie Missud (see note 6 below), have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Motion to Dismiss is GRANTED, the FAC is dismissed with prejudice, and the Motion to Strike is DENIED as moot.

II. BACKGROUND

A. Prior Order

In the original Complaint, Patrick made the following allegations. On June 7, 2011, the Oakland Coliseum ("Coliseum") hosted a concert featuring the band U2 ("Concert"). Order Granting Defendants' Motion to Dismiss Without Prejudice; Granting in Part and Denying in Part Defendants' Motion to Strike ("Order"), 2. Patrick alleged that OCJV cut services to maximize profits at the Concert. Id. Defendants were aware for approximately one year that the Concert would be sold out such that 69,000 people would be in attendance. Id. Defendants were required to provide access to the venue, security, safe premises, sanitary facilities, light, ventilation, water, safety evacuation plans, ramps, walks, elevators, on-site emergency services, and parking. Id.

The Missuds purchased two tickets to the Concert. Id. Upon arrival, Patrick discovered that the necessary facilities were either severely deficient or non-existent, and that only one of his tickets would be honored by Defendants. Id. The Court dismissed each of Patrick's asserted causes of action, with leave to amend, as follows:⁴

(1) Violation of the CWA: The Court dismissed Patrick's CWA claim for failure to provide notice to all proper parties - the Environmental Protection Agency Administrator, the state in which the violation was occurring, and the violator - in compliance with the statute. Id. at 21-23. The Court also dismissed Patrick's CWA claim for failure to allege Article III standing. Id. at 22-23. The Court did not address the substantive merits of Patrick's allegations.

(2) Violation of the RCRA: The Court dismissed Patrick's RCRA claim for failure to provide notice to all proper parties in compliance with the statute. Id. at 23-24.⁵ The Court also dismissed Patrick's RCRA claim for failure to allege Article III standing. Id. The Court did not address the substantive merits of Patrick's allegations.

(3) Violation of the ADA: The Court dismissed Patrick's ADA claim because he did not plead any disability in his Complaint, and thus had not pled Article III standing or stated a claim for relief. Id. at 27. The Court engaged in no further substantive discussion of Patrick's allegations.

(4) Violation of the National Highway Safety and Traffic Act: The Court dismissed Patrick's claim, asserted under the National Highway Safety and Traffic Act, for failure to identify any authority that would entitle him to relief responsive to Defendants' assertion that there was no private right of enforcement under the National Highway Traffic Safety Act, to which they argued Plaintiff was referring, and failure to allege any injury. Id.

(5) Violation of Caltrans Requirements: The Court dismissed Patrick's claim for Caltrans violations based on his failure to identify any authority that would entitle him to relief on this cause of action and his failure to allege any injury he suffered as a result of any such violation. Id. at 28.

(6) Breach of Contract: The Court dismissed Patrick's claim for breach of contract because he did not sufficiently plead that Defendants breached their legal duties under the contract. Id. at 29. Specifically, the Court held that Patrick had not pled that Defendants were obligated by any contract to provide any of the amenities he asserted were lacking. Id.

(7) Negligence: The Court dismissed Patrick's negligence claim premised on Defendants' failure to provide certain amenities as barred under the economic loss rule. Id. at 30-31. The Court dismissed Patrick's negligence claim predicated on the dangers presented by the overflow parking lot because he failed to allege any injury or damages caused by those dangers. Id. at 31.

(8) Fraudulent Inducement: The Court dismissed Patrick's fraudulent inducement claim because he did not properly set forth the particular statements made, by whom they were made, whenand where they were made, and why each such statement was false in accordance with Federal Rule of Civil Procedure 9(b). Id.

(9) UCL: The Court construed the Complaint as setting forth two UCL theories. Id. at 34. On one theory, Defendants engaged in fraudulent acts by advertising the concert in a way that misled the putative class into believing that their tickets would be honored. Id. The Court held that Patrick did not have standing to assert that UCL claim, because he did not allege that he relied on any unspecified misleading advertising. Id. On the other theory, Defendants engaged in fraudulent acts by overselling the concert knowing they were incapable of accommodating their patrons. Id. Although the Court held that Patrick had alleged a sufficient economic injury to support standing, it further held that Patrick had not pled a cause of action under the unlawful, fraudulent, or unfair prongs of the UCL analysis. Id. at 34-36. Specifically, the Court found Patrick's allegations of fraudulent and unfair conduct to be factually deficient because he did not identify any particular statements, as discussed above, and because he did not identify specific amenities that were promised, were lacking, and made the Coliseum incapable of accommodating the number of people who purchased tickets for the Concert. Id. at 35-36.

B. The First Amended Complaint

The First Amended Complaint ("FAC") identifies the Plaintiffs in this action as follows:

The class action Plaintiffs [Class] are or will be represented by any combination of four similarly aggrieved Invitees who have tentatively agreed or already committed to becoming lead Plaintiff(s) in this case. They are Mrs. Missud, Eric S., Sameer Q., Heather B., and others who will likely be interested after this case has survived the present motions to dismiss and/or additional Class members have been located. Missud is now only the attorney of record herein.⁶

FAC, 2:25-29.

The First Amended Complaint ("FAC") recites the same underlying factual allegations as were set forth in the initial Complaint. As described in this Court's previous Order:

On the evening of June 7, 2011, the Oakland Coliseum ("Coliseum") hosted a concert featuring the band U2 ("Concert"). [FAC, 2:2-3].⁷ Plaintiffs make the following allegations. OCJV cut services to maximize profits at the Concert. Id. at [3:12-15]. Defendants were aware for approximately one year that the concert would be sold out such that 69,000 people would attend the concert. Id. at [9:2-3]. Defendants were required to provide access to the venue, security, safe premises, sanitary facilities, light, ventilation, water, safety evacuation plans, ramps, walks, elevators, on-site emergency services, and parking. Id. at [9:8-9:13].

Missud purchased two tickets to the Concert. Id. at [5:14-15].⁸ Upon arrival, Missud discovered that the necessary facilities were either severely deficient or non-existent, and that only one of his tickets would be honored by Defendants. Id. at [5:15-17]. Plaintiff alleges tha (1) the class consists of in excess of 400 similarly situated members; (2) the issues pertaining to each of the causes of action pled in the Complaint are common to all class members; (3) Missud's claims are typical of the claims of each member of the class because each member had a ticket to see the concert, was denied access to the Coliseum, and properly planned to allow ample time to access the Coliseum; and (4) Missud will fairly and adequately represent and protect the interests of the class and will retain additional counsel that is competent and experienced in class action litigation. Id. at [5:19-8:21]. Plaintiff alleges that they have citizen standing to enforce federal laws. Id. at [5:11-12]. Plaintiff seeks injunctive relief, restitution, and punitive damages. Id. at [24:7-26:15].

Order, 2.

Plaintiffs allege nine causes of action. Additional factual allegations are added following each cause of action. Otherwise, the factual allegations are unchanged. The causes of action are pled as follows:

(1) Violation of the CWA: As in the original Complaint, Plaintiffs allege that "Defendants willfully violated the CWA with discharges of storm water, untreated sewage, and other pollutants into the Oakland Estuary, a protected state and federal wetland." See FAC, 10:7-9. Plaintiffs allege that the wetland is within the overflow parking lot. Id. at 24:10-11. To support this cause of...