Velez v. Cloghan Concepts, LLC

• Citation: 387 F.Supp.3d 1072
• Decision Date: 10 June 2019
• Docket Number: Case No.: 3:18-cv-1901-BTM-BGS
• Parties: Jose VELEZ, an individual, Plaintiff, v. CLOGHAN CONCEPTS, LLC; and Does 1-10, inclusive, Defendants.
• Court: U.S. District Court — Southern District of California

387 F.Supp.3d 1072

Jose VELEZ, an individual, Plaintiff,

v.CLOGHAN CONCEPTS, LLC; and Does 1-10, inclusive, Defendants.

Case No.: 3:18-cv-1901-BTM-BGS

United States District Court, S.D. California.

Signed June 10, 2019

Jose Velez, Orlando, FL, pro se.

Ross M. Poole, Simpson Delmore Greene LLP, San Diego, CA, for Defendants.

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

[ECF No. 11]

Honorable Barry Ted Moskowitz, United States District Judge

Pending before the Court is Defendant Cloghan Concepts, LLC's Motion to Dismiss for Failure to State a Claim and for Lack of Subject Matter Jurisdiction. (ECF No. 11). Plaintiff Jose Velez opposed the Motion, and Defendant replied. (ECF Nos. 19, 16). For reasons set forth below, the Court GRANTS Defendant's Motion to Dismiss. (ECF No. 11).

I. BACKGROUND

Plaintiff, proceeding pro se , initiated this action on August 15, 2018. (ECF No. 1). The original Complaint alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , and the Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51. (ECF No. 1 "Compl."). Defendant timely moved to dismiss the Complaint for failure to state a claim and for lack of subject matter jurisdiction.¹

(ECF No. 3). On October 3, 2018, Plaintiff filed a First Amended Complaint ("FAC") again alleging violations under the ADA and Unruh Act. (ECF No. 7 "FAC"). The FAC alleges that Plaintiff is disabled because his morbid obesity, a byproduct of his Binge Eating Disorder (BED), limits his mobility. (FAC ¶¶ 6, 7). The FAC further alleges that while patronizing Defendant's restaurant, located at 640 Tenth Ave, San Diego, CA 92101, Plaintiff encountered barriers at the reception area, the sales and service counter, and in the table arrangements that render the property inaccessible for disabled persons. (FAC ¶ 24). Plaintiff alleges that these architectural barriers prevented Plaintiff from enjoying full and equal access to the restaurant. (FAC ¶ 32). Defendant again timely moved to dismiss, arguing that Plaintiff has not alleged a disability under the ADA and consequently, that the Court lacks subject matter jurisdiction over the action. (ECF No. 16).

II. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Conservation Force v. Salazar , 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001) ). "To survive a Rule 12(b)(6) motion to dismiss, ‘a plaintiff must allege enough facts to state a claim to relief that is plausible on its face.’ " Turner v. City and County of San Francisco , 788 F.3d 1206, 1210 (9th Cir. 2015) (quoting Lazy Y Ranch Ltd. v. Behrens , 546 F.3d 580, 588 (9th Cir. 2008) ). A claim is plausible on its face if it pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

Although the court "will assume the veracity of well-pleaded factual allegations," conclusory statements are not entitled to this assumption of truth. Kwan v. SanMedica Int'l , 854 F.3d 1088, 1096 (9th Cir. 2017). "Legal conclusions may provide a framework for a complaint but ‘they must be supported by factual allegations.’ " Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). The plausibility standard "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation," and a "pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

III. DISCUSSION

The FAC alleges violations of the ADA and Unruh Act. Each will be addressed in turn.

A. ADA CLAIM

Title III of the ADA prohibits discrimination against persons with disabilities by public accommodations, stating:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). To prevail on a discrimination claim under Title III, a plaintiff must show that: (1) the plaintiff is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability. Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc. , 603 F.3d 666, 670 (9th Cir. 2010) (citing Molski v. M.J. Cable, Inc. , 481 F.3d 724, 730 (9th Cir. 2007) ). The parties dispute the first prong, i.e., whether Plaintiff has alleged that he is disabled within the meaning of the ADA.

Plaintiff alleges he is disabled because he has "mobility-related limitations" resulting from "morbid obesity and a binge-eating disorder." (FAC ¶ 6). The additional weight on his frame allegedly "makes it more difficult to breathe, walk, stand and bend," and his binge-eating disorder "affects his ability to concentrate and think." (FAC ¶ 6). Plaintiff alleges that the underlying cause of his morbid obesity, the binge-eating disorder (BED), is "physiological and/or psychological." (FAC ¶ 7). The FAC elaborates that BED is classified as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). (FAC ¶ 8). Defendant contends that Plaintiff has failed to allege a disability under the ADA because Plaintiff has failed to set forth an underlying physiological , rather than psychological, cause for his morbid obesity, which some circuits have concluded is required for obesity to qualify as a disability. (ECF No. 11-1 at 12).

The ADA defines "disability" as a "physical or mental impairment that substantially limits one or more major life activities of such individual...." 42 U.S.C. § 12102(1)(A). After a series of Supreme Court decisions that narrowly defined "disability," Congress passed the ADA Amendments Act of 2008 (the Amendment Act) in an effort to broaden the scope of protection the ADA affords. 29 C.F.R. pt. 1630, app. In relevant part, one express purpose of the Amendment Act is:

"[t]o convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis ...."

Id. (emphasis added). Although neither the ADA nor the Amendment Act provides a definition for the term "physical or mental impairment," the Code of Federal Regulations now supplies the following definition:

(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: Neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(ii) Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.

(2) Physical or mental impairment includes, but is not limited to, contagious and noncontagious diseases and conditions such as the following: Orthopedic, visual, speech and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

28 C.F.R. § 36.105(b)(1). The definition is silent on whether obesity independent of an underlying physiological disorder is an impairment under the ADA.

The Equal Employment Opportunity Commission (EEOC), a federal agency whose mandate includes enforcing the ADA in the workplace, has taken the position that obesity may qualify as an impairment under the ADA, but not always. Taylor v. Burlington Northern Railroad Holdings Inc. , 904 F.3d 846, 851 (9th Cir. 2018). The EEOC issued interpretive guidance specifying that "[t]he definition of the term ‘impairment’ does not include physical characteristics such as ... weight ... that [is] within ‘normal’ range and [is] not the result of a physiological disorder." 29 C.F.R. pt. 1630, app. 1630.2(h) (alterations and emphasis added). The EEOC also submitted an instructive amicus brief before the Ninth Circuit further clarifying its position on obesity as a disability:

[W]eight (1) is not an impairment when it is within the "normal" range and lacks a physiological cause but (2) may be an impairment when it is either outside the "normal" range or occurs as the result of a physiological disorder.

904 F.3d at 851 (emphasis added). This position is consistent with a compliance manual the EEOC withdrew in 2012, which states: "normal deviations in height, weight or strength that are not the result of a physiological disorder are not impairments.... At extremes, however, such deviations may constitute impairments. " Id. (citing EEOC Compliance Manual § 902.2(c)(5)) (emphasis added). The EEOC has not specified what weight range constitutes "normal" as opposed to "extreme."

Although the Ninth Circuit found the above EEOC guidance instructive in its consideration of a similar issue, the Ninth Circuit has not yet decided whether obesity without a physiological cause constitutes an impairment under the ADA. Id. at 851, 853 (stating "the scope of ADA protection for individuals...