Hayes v. Costco Wholesale Corp.

DELIA M. HAYES, Plaintiff, v. COSTCO WHOLESALE CORPORATION, et al., Defendants.

No. 1:20-cv-01233-NONE-EPG

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 11, 2021

FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED

(ECF NO. 20)

FOURTEEN-DAY DEADLINE

Plaintiff Delia M. Hayes ("Plaintiff"), proceeding pro se, filed a complaint at the Superior Court of California, County of Fresno, on June 23, 2020, commencing this action. (ECF No. 1-1). On September 1, 2020, Defendants Costco Wholesale Corp. ("Costco"), Paul Cano ("Cano"), and Jim Harris, Jr. ("Harris," and together, "Defendants") removed the action to this Court, asserting federal question jurisdiction. (ECF No. 1). This case is proceeding on Plaintiff's first amended complaint, filed on December 8, 2020. (ECF No. 19). Before the Court is Defendants' motion to dismiss, filed on December 9, 2020, (ECF No. 19), which District Judge Drozd referred to the undersigned on January 6, 2021, (ECF No. 24).

Having reviewed the first amended complaint, the motion to dismiss, Plaintiff's opposition filed on December 22, 2020 (ECF No. 21) and Defendants' reply, filed on December 31, 2020 (ECF No. 22), the Court recommends granting Defendants' motion to dismiss.

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I. SUMMARY OF FIRST AMENDED COMPLAINT

The first amended complaint alleges as follows:

Plaintiff is legally blind in her left eye. She has poor depth perception, severe myopia, diabetic macular degeneration and congenital amblyopia in her left eye. As such, Plaintiff's bodily movements are "perceptively off[.]"

Plaintiff, then a Costco member, was shopping at a Costco in Fresno, California on April 9, 2018 with her daughter. She inadvertently ran into another Costco shopper, whom she defines as "Male predator 1 (MP1)." She explained that she is blind and did not see the male shopper. Yet another shopper, whom Plaintiff defines as "Female Predator 1 (FP1)," was apparently unsatisfied and argued with Plaintiff. The female shopper yelled profanity at Plaintiff when very close to her. Plaintiff asked a Costco employee to call the manager for assistance. That employee did not call the manager. One or two other Costco employees approached the other two shoppers and asked what happened.

Plaintiff "believed she was in [im]minent danger and did nothing more than to protect herself."

Plaintiff was unable to identify any witnesses to the interaction due to her vision impairments. She did hear a Costco employee take a statement from a witness, who gave inaccurate information. Plaintiff told that witness that making a false claim in a police report can result in a felony conviction. The witness recanted the inaccuracies in his statement.

Plaintiff attempted to walk away from the scene. However, she was stunned and suffered from overloaded sensory stimulation, affecting her vision and equilibrium. She sought assistance from the manager, Harris. Plaintiff asked Harris to let her stay in the office until the police arrived. Harris said no and "failed to offer any action resembling a reasonable accommodation or duty of care and insisted that the Plaintiff wait outside the office." A different Costco employee insisted that Plaintiff be permitted to stay in Harris's office.

Plaintiff asked Harris for permission to view the warehouse security video. Harris did not permit Plaintiff to do so and said she "would never get her [sic] hands on that video."

/// Costco management and employees did not appear to follow a business process to investigate or assist with the incident and had little or no supervision.

Fresno Police Department officers arrived. Plaintiff asked to go to her car to get her blood sugar monitor and white cane. She was informed she was being detained. Plaintiff could not identify whether she was being affected by a hypoglycemic or hyperglycemic incident because she was not able to access her medical equipment. "Plaintiff had to stop her pump from operating without medical evaluation of her blood sugar via the appropriate medical devices."

Plaintiff was not permitted to return a 70-inch HDTV. Cano and Harris "denied the plaintiff from receiving benefits that she had purchased and were guaranteed by Costco," including returning the TV, a cash-back dividend check, and certain automotive maintenance.

Plaintiff has suffered emotional injuries due to Defendants' conduct. Plaintiff's membership was revoked. Plaintiff was charged with criminal offenses, which were subsequently dismissed.

The first amended complaint lists its claims for relief under the Fourteenth Amendment, Title III of the Americans with Disabilities Act ("ADA"), and the Unruh Civil Rights Act.

Plaintiff also filed a memorandum in support of the first amended complaint. (ECF No. 19-1). It discusses the ADA and the Unruh Act.

II. SUMMARY OF ARGUMENTS

Defendants filed a motion to dismiss on December 9, 2020, arguing that the first amended complaint should be dismissed on two bases. (ECF No. 20). First, the Fourteenth Amendment claim should be dismissed because no Defendants are state actors. (ECF No. 20-1 at 10-11). Second, Plaintiff's ADA and Unruh Act claims fail because Plaintiff has not adequately alleged in what manner Defendants discriminated against her. (Id. at 11-15).

Plaintiff filed an opposition on December 22, 2020. (ECF No. 21). She argues that Costco failed to make reasonable accommodations, to remove architectural barriers, and to provide auxiliary aids and services. She further argues that Harris and Cano misled the Fresno Police Department by omitting information about Plaintiff's disabilities.

/// Defendants filed a reply on December 31, 2020. (ECF No. 22). It argues that Plaintiff concedes that she has no section 1983 claim and provides a chart with types of Title III claims and types of allegations necessary to support them.

III. LEGAL STANDARDS

In considering a motion to dismiss, the Court must accept all allegations of material fact in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings "must be held to less stringent standards than formal pleadings drafted by lawyers." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. See Iqbal, 556 U.S. at 679. "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236 (1974).

The first step in testing the sufficiency of the complaint is to identify any conclusory allegations. Iqbal, 556 U.S. at 679. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citing Twombly, 550 U.S. at 555). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations and quotation marks omitted).

After assuming the veracity of all well-pleaded factual allegations, the second step is for the court to determine whether the complaint pleads "a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6) standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). The standard for plausibility is not akin to a "probability requirement," but it requires "more than a sheer possibility that a defendant has acted unlawfully." Id.

IV. ANALYSIS

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

Defendants argue that they are not state actors and thus cannot be held liable under 42 U.S.C. § 1983 for violating Plaintiff's Fourteenth Amendment rights. Although Plaintiff's opposition mentions this argument, it does not provide any argument against it.

The Court finds Plaintiff has conceded this argument. See Columbia Sussex Mgmt., LLC v. City of Santa Monica, No. 2:19-CV-09991, --- F. Supp. 3d ----, 2020 WL 5358505, at *9 (C.D. Cal. Aug. 28, 2020) ("Failure to oppose constitutes a waiver or abandonment of the issue."); Stichting Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) ("[I]n most circumstances, failure to respond in an opposition brief to an argument put forward in an opening brief constitutes waiver or abandonment in regard to the uncontested issue." (quoting Sportscare of America, P.C. v. Multiplan, Inc., No. 2:10-4414, 2011 WL 589955, at *1 (D.N.J. Feb. 10, 2011)).

Nevertheless, addressing the issue on the merits, Defendants are correct that Plaintiff fails to state a claim under section 1983. "To state a claim under § 1983, [Plaintiff] must allege a violation of [h...