7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 PETER STROJNIK, Case No. 19-cv-01446-BAS-AHG 11 Plaintiff, ORDER: 12 v. (1) DENYING DEFENDANT’S 13 MOTION TO STRIKE PUNITIVE BRAEMAR PARTNERSHIP DBA DAMAGES; 14 CATAMARAN RESORT HOTEL AND SPA, AND 15 Defendant. (2) GRANTING DEFENDANT’S 16 MOTION TO DISMISS COUNT FOUR 17 [ECF No. 27] 18 19 Defendant previously filed a Motion to Strike damages and to Dismiss the 20 negligence cause of action in Plaintiff’s First Amended Complaint (“FAC”). (ECF No. 21 8.) In an oral ruling, the Court denied the motion to strike damages, granted the motion 22 to dismiss the negligence cause of action, but allowed Plaintiff leave to amend. (ECF Nos. 23 24, 26.) Undeterred, Plaintiff filed the same allegations now labeled the Second Amended 24 Complaint (“SAC”) (ECF No. 25), and Defendant filed the same motions asking to strike 25 the punitive damages and to dismiss the negligence cause of action. (ECF No. 27.) 26 Hoping that perhaps a written ruling might have more force with the parties, the 27 Court once again DENIES the Motion to Strike Punitive Damages and GRANTS the 28 Motion to Dismiss the Fourth Cause of Action for negligence (“Count Four”). Because 1 any amendment would be futile, the Court dismisses the fourth cause of action with 2 prejudice. 3 I. PROCEDURAL HISTORY 4 Plaintiff, proceeding pro se, “has filed thousands of disability discrimination 5 lawsuits against hotel defendants in state and federal courts.” Strojnik v. Bakersfield 6 Convention Hotel I, LLC, __ F. Supp. 3d___, 2020 WL 509156, at *1 (E.D. Cal. Jan. 31, 7 2020). This is one of those lawsuits. In the FAC, Plaintiff alleged causes of action for 8 violations of the Americans with Disabilities Act (“ADA”), the Unruh Civil Rights Act, 9 the California Disabled Persons Act (“DPA”) and negligence. 10 With respect to the negligence cause of action, Plaintiff simply alleged “Defendants 11 owed Plaintiff a duty to remove ADA accessibility barriers so that Plaintiff as a disabled 12 individual would have full and equal access to the public accommodation.” (FAC ¶ 37.) 13 The Court agreed with Defendant that Plaintiff had failed to allege sufficient facts 14 supporting the negligence cause of action, but granted Plaintiff leave to amend. (ECF Nos. 15 24, 26.) Defendant also moved to strike the punitive damages allegations, but the Court 16 denied this motion, citing Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 17 2010). 18 Plaintiff then filed the SAC with very little change. The SAC alleges that 19 “Defendant owed Plaintiff a duty to remove ADA accessibility barriers so that Plaintiff as 20 a disabled individual would have full and equal access to the public accommodation.” 21 (SAC ¶ 37.) Although Plaintiff claims the SAC has been “beefed up to conform to the 22 Iqbal plausibility standard and California’s law on negligence per se” (Opp’n at 1, ECF 23 No. 29), the Court was unable to locate any substantive differences between the two 24 complaints with respect to the allegation that Defendant owed a duty to Plaintiff.1 25
26 1 Admittedly the Court is somewhat hampered by Plaintiff’s failure to follow Civil Local Rule 15.1(c) requiring any amended pleading, filed after the granting of a motion to dismiss with leave to amend, to 27 “be accompanied by a version of that pleading that shows—through redlining, underlining, strikeouts, or other similarly effective typographic methods—how that pleading differs from the previously dismissed 28 1 Similarly, the Court is at a loss to understand what has changed since it last denied 2 Defendant’s motion to strike punitive damages. 3 II. STATEMENT OF FACTS 4 For the purposes of a Motion to Dismiss, the Court assumes all allegations in the 5 Complaint are true. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 6 1996). Plaintiff alleges he is disabled as defined by the ADA, the Unruh Act and DPA 7 (SAC ¶2.) He claims disability “by virtue of a severe right-sided neural foraminal stenosis 8 with symptoms of femoral neuropathy, prostate cancer and renal cancer, degenerative right 9 knee” and “walks with difficulty and pain and requires compliant mobility accessible 10 features at places of public accommodation.” (SAC ¶¶ 3–4.) 11 Plaintiff claims he visited Defendant’s hotel in May 2019 and encountered barriers 12 to accessibility which prevented him from equal access to Defendant’s public 13 accommodation. (SAC ¶¶ 16–23.) 14 III. ANALYSIS 15 A. Motion to Dismiss 16 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 17 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. 18 P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To avoid a Rule 12(b)(6) 19 dismissal, a complaint need not contain detailed factual allegations, rather, it must plead 20 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 21 Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff 22 pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 24 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are 25 ‘merely consistent with’ a defendant’s liability, it stops short of the line between 26 possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting 27 Twombly, 550 U.S. at 557). 28 1 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 4 U.S. 265, 286 (1986) (alteration in original). A court need not accept “legal conclusions” 5 as true. Iqbal, 556 U.S. at 678. Despite the deference the court must pay to the plaintiff’s 6 allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts that 7 [he or she] has not alleged or that defendants have violated the . . . laws in ways that have 8 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 9 Carpenters, 459 U.S. 519, 526 (1983). 10 Plaintiff bases his negligence claim solely on Defendant’s alleged violation of the 11 ADA. As other courts have previously instructed Plaintiff, Congress did not enact the 12 ADA to create “a separate duty of care to give rise to an independent negligence claim 13 under state laws.” Strojnik v. Bakersfield Convention Hotel 1, LLC, 2020 WL 509156, at 14 *8; see also Strojnik v. Landry’s, Inc., No. 4:19-cv-1170, 2019 WL 7461681, at *6 (S.D. 15 Tex. Dec. 9, 2019) (holding that Strojnik failed to allege his negligence claim because the 16 “allegations do not support the existence of a duty outside that imposed by the ADA”); 17 White v. NCL America, Inc., No. 05-22030-CIV, 2006 WL 1042548, at *5 (S. D. Fla. 18 2006) (“Because the ADA was not designed to protect those with disabilities from 19 personal injuries, Plaintiff is unable to state a claim for per se negligence.”) 20 Therefore, the Court GRANTS Defendant’s Motion to Dismiss Count Four. And 21 because this Court concludes any amendment would be futile, the Court dismisses the 22 Count with prejudice.
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7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 PETER STROJNIK, Case No. 19-cv-01446-BAS-AHG 11 Plaintiff, ORDER: 12 v. (1) DENYING DEFENDANT’S 13 MOTION TO STRIKE PUNITIVE BRAEMAR PARTNERSHIP DBA DAMAGES; 14 CATAMARAN RESORT HOTEL AND SPA, AND 15 Defendant. (2) GRANTING DEFENDANT’S 16 MOTION TO DISMISS COUNT FOUR 17 [ECF No. 27] 18 19 Defendant previously filed a Motion to Strike damages and to Dismiss the 20 negligence cause of action in Plaintiff’s First Amended Complaint (“FAC”). (ECF No. 21 8.) In an oral ruling, the Court denied the motion to strike damages, granted the motion 22 to dismiss the negligence cause of action, but allowed Plaintiff leave to amend. (ECF Nos. 23 24, 26.) Undeterred, Plaintiff filed the same allegations now labeled the Second Amended 24 Complaint (“SAC”) (ECF No. 25), and Defendant filed the same motions asking to strike 25 the punitive damages and to dismiss the negligence cause of action. (ECF No. 27.) 26 Hoping that perhaps a written ruling might have more force with the parties, the 27 Court once again DENIES the Motion to Strike Punitive Damages and GRANTS the 28 Motion to Dismiss the Fourth Cause of Action for negligence (“Count Four”). Because 1 any amendment would be futile, the Court dismisses the fourth cause of action with 2 prejudice. 3 I. PROCEDURAL HISTORY 4 Plaintiff, proceeding pro se, “has filed thousands of disability discrimination 5 lawsuits against hotel defendants in state and federal courts.” Strojnik v. Bakersfield 6 Convention Hotel I, LLC, __ F. Supp. 3d___, 2020 WL 509156, at *1 (E.D. Cal. Jan. 31, 7 2020). This is one of those lawsuits. In the FAC, Plaintiff alleged causes of action for 8 violations of the Americans with Disabilities Act (“ADA”), the Unruh Civil Rights Act, 9 the California Disabled Persons Act (“DPA”) and negligence. 10 With respect to the negligence cause of action, Plaintiff simply alleged “Defendants 11 owed Plaintiff a duty to remove ADA accessibility barriers so that Plaintiff as a disabled 12 individual would have full and equal access to the public accommodation.” (FAC ¶ 37.) 13 The Court agreed with Defendant that Plaintiff had failed to allege sufficient facts 14 supporting the negligence cause of action, but granted Plaintiff leave to amend. (ECF Nos. 15 24, 26.) Defendant also moved to strike the punitive damages allegations, but the Court 16 denied this motion, citing Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 17 2010). 18 Plaintiff then filed the SAC with very little change. The SAC alleges that 19 “Defendant owed Plaintiff a duty to remove ADA accessibility barriers so that Plaintiff as 20 a disabled individual would have full and equal access to the public accommodation.” 21 (SAC ¶ 37.) Although Plaintiff claims the SAC has been “beefed up to conform to the 22 Iqbal plausibility standard and California’s law on negligence per se” (Opp’n at 1, ECF 23 No. 29), the Court was unable to locate any substantive differences between the two 24 complaints with respect to the allegation that Defendant owed a duty to Plaintiff.1 25
26 1 Admittedly the Court is somewhat hampered by Plaintiff’s failure to follow Civil Local Rule 15.1(c) requiring any amended pleading, filed after the granting of a motion to dismiss with leave to amend, to 27 “be accompanied by a version of that pleading that shows—through redlining, underlining, strikeouts, or other similarly effective typographic methods—how that pleading differs from the previously dismissed 28 1 Similarly, the Court is at a loss to understand what has changed since it last denied 2 Defendant’s motion to strike punitive damages. 3 II. STATEMENT OF FACTS 4 For the purposes of a Motion to Dismiss, the Court assumes all allegations in the 5 Complaint are true. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 6 1996). Plaintiff alleges he is disabled as defined by the ADA, the Unruh Act and DPA 7 (SAC ¶2.) He claims disability “by virtue of a severe right-sided neural foraminal stenosis 8 with symptoms of femoral neuropathy, prostate cancer and renal cancer, degenerative right 9 knee” and “walks with difficulty and pain and requires compliant mobility accessible 10 features at places of public accommodation.” (SAC ¶¶ 3–4.) 11 Plaintiff claims he visited Defendant’s hotel in May 2019 and encountered barriers 12 to accessibility which prevented him from equal access to Defendant’s public 13 accommodation. (SAC ¶¶ 16–23.) 14 III. ANALYSIS 15 A. Motion to Dismiss 16 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 17 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. 18 P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To avoid a Rule 12(b)(6) 19 dismissal, a complaint need not contain detailed factual allegations, rather, it must plead 20 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 21 Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff 22 pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 24 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are 25 ‘merely consistent with’ a defendant’s liability, it stops short of the line between 26 possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting 27 Twombly, 550 U.S. at 557). 28 1 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 2 requires more than labels and conclusions, and a formulaic recitation of the elements of a 3 cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 4 U.S. 265, 286 (1986) (alteration in original). A court need not accept “legal conclusions” 5 as true. Iqbal, 556 U.S. at 678. Despite the deference the court must pay to the plaintiff’s 6 allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts that 7 [he or she] has not alleged or that defendants have violated the . . . laws in ways that have 8 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 9 Carpenters, 459 U.S. 519, 526 (1983). 10 Plaintiff bases his negligence claim solely on Defendant’s alleged violation of the 11 ADA. As other courts have previously instructed Plaintiff, Congress did not enact the 12 ADA to create “a separate duty of care to give rise to an independent negligence claim 13 under state laws.” Strojnik v. Bakersfield Convention Hotel 1, LLC, 2020 WL 509156, at 14 *8; see also Strojnik v. Landry’s, Inc., No. 4:19-cv-1170, 2019 WL 7461681, at *6 (S.D. 15 Tex. Dec. 9, 2019) (holding that Strojnik failed to allege his negligence claim because the 16 “allegations do not support the existence of a duty outside that imposed by the ADA”); 17 White v. NCL America, Inc., No. 05-22030-CIV, 2006 WL 1042548, at *5 (S. D. Fla. 18 2006) (“Because the ADA was not designed to protect those with disabilities from 19 personal injuries, Plaintiff is unable to state a claim for per se negligence.”) 20 Therefore, the Court GRANTS Defendant’s Motion to Dismiss Count Four. And 21 because this Court concludes any amendment would be futile, the Court dismisses the 22 Count with prejudice. See Bonin v. Calderone, 59 F.3d 815, 845 (9th Cir. 1995) (in 23 determining whether to allow amendment, the court considers “futility of amendment and 24 whether the party has previously amended his pleadings”); Mir v. Fosburg, 646 F.2d 342, 25 347 (9th Cir. 1980) (“[A] district court has broad discretion to grant or deny leave to 26 amend, particularly where the court has already given plaintiff one or more opportunities 27 to amend his complaint.”). 28 1 B. Motion to Strike 2 Under Rule 12(f), a court may strike from a pleading “any redundant, immaterial, 3 ||impertinent, or scandalous matter.” Fed. R. Civ. Pro., Rule 12(f). Defendant once again 4 ||moves to strike Plaintiff's punitive damages allegations pursuant to Rule 12(f) arguing 5 ||that punitive damages are precluded as a matter of law and Plaintiff's allegations are 6 ||insufficient to rise to the level of punitive damages. The Court once again points out that, 7 |}under Whittlestone, Inc. vy. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010), the Federal 8 || Rules of Civil Procedure do not authorize striking a damages claim on the ground that the 9 ||claim is precluded as a matter of law. 10 Furthermore, unlike the California standard cited by Defendant, “[u]nder the 11 || Federal Rules of Civil Procedure 9(b), ‘malice, intent, knowledge and other conditions of 12 mind may be alleged generally.’” Rees v. PNC Bank, N.A., 308 F.R.D. 266, 273 (N.D. 13 ||Cal. 2015). California Civil Code section 3294 “is a state procedural rule not implicated 14 federal court.” Id. “Accordingly, in federal court, a plaintiff may include a short and 15 ||plain prayer for punitive damages that relies entirely on unsupported and conclusory 16 |}averments of malice or fraudulent intent.” Jd. (quotation omitted). Hence, this Court once 17 again DENIES Defendants’ motion to strike punitive damages. 18 || IV. CONCLUSION AND ORDER 19 For the reasons stated above, this Court GRANTS Defendants’ Motion to Dismiss 20 || Count Four of the SAC. (ECF No. 27.) This negligence cause of action is dismissed with 21 prejudice. However, the Court DENIES Defendant’s motion to strike any punitive 22 ||damages allegations. (ECF No. 27.) Defendant is ordered to file an Answer to the SAC 23 || by June 23, 2020. 24 IT IS SO ORDERED. 25 , . fl ) J 26 || DATED: June 16, 2020 (if i A A (Hophta. 6 27 United States District Judge 28 5.