1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SALIMA WITT, Case No. 21-cv-00411-BAS-AGS
12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS (ECF No. 12)
14 BRISTOL FARMS,
15 Defendant. 16 17 Plaintiff Salima Witt has stage three cancer and chronic asthma. In 2020, Witt was 18 escorted out of Defendant Bristol Farms’ grocery store for not wearing a face covering as 19 required by the store’s COVID-19 policy. Witt filed this action against Bristol Farms, 20 claiming that Bristol Farms denied her public accommodation in violation of Title III of 21 the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. (“ADA”). 22 Pending before the Court is Defendant Bristol Farms’ motion to dismiss filed under 23 Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12.) For the following reasons, the 24 Court GRANTS the motion. 25 // 26 // 27 // 28 // 1 I. BACKGROUND 2 According to the Complaint, Witt is a resident of the City of Encinitas, California. 3 (Compl. ¶ 3.) Witt has stage three cancer and chronic asthma. (Id. ¶ 9.) Witt was a regular 4 shopper at Lazy Acres Encinitas, a grocery store owned by Bristol Farms. (Id. ¶ 10.) 5 On or about May 26, 2020, Witt went to Lazy Acres Encinitas to shop for groceries. 6 (Id. ¶ 10.) The store’s COVID-19 policy in effect at the time required “[a]ll customers . . . 7 to wear face coverings when entering any Lazy Acres store.” (Id. ¶ 13.) Witt did not have 8 any symptoms of COVID-19, flu, or cold. (Id.) As Witt stood in line to pay for her 9 groceries, a male manager of the store approached her. (Id. ¶ 11.) The manager told Witt 10 that she must immediately leave the store because she was not wearing a face mask. (Id.) 11 Witt explained to the manager that she could not wear a face mask because of her cancer 12 and asthma. (Id. ¶ 12.) The manager raised his voice and demanded Witt show a written 13 proof of her medical conditions. (Id.) Witt told him she did not have any. (Id.) The 14 manager did not offer Witt an alternative way to buy her groceries and told her to leave the 15 store. (Id.) He physically escorted Witt outside, while shouting “get out of the store.” (Id.) 16 Witt filed this action on March 8, 2021, alleging that Bristol Farms discriminated 17 against her based on her disability. (ECF No. 1). Witt raises one cause of action against 18 Bristol Farms for violation of Title III of the ADA. (Compl. ¶¶ 20–28.)1 19 Bristol Farms moves to dismiss Witt’s Complaint for failure to state a claim under 20 Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 12.)2 Witt opposes the 21 motion (ECF No. 13), and Bristol Farms has filed a reply (ECF No. 14). The Court finds 22 this motion suitable for determination on the papers submitted and without oral argument. 23 See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 24 // 25 26 1 The Court dismissed Witt’s other causes of action raised against other Defendants, UC San Diego 27 Health and University of California Health, in a separate order. (Order, ECF No. 15.) 2 The Court denies as moot Bristol Farms’s request for judicial notice (ECF No. 12-2) because the 28 1 II. 12(b)(6) LEGAL STANDARD 2 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 3 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 4 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all 5 factual allegations pleaded in the complaint as true and draw all reasonable inferences from 6 them in favor of the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337– 7 38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain 8 detailed factual allegations; rather, it must plead “enough facts to state a claim to relief that 9 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 10 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 12 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint 13 pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the 14 line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 15 550 U.S. at 557). 16 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 17 requires more than labels and conclusions, and a formulaic recitation of the elements of a 18 cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (quoting 19 Papasan v. Allain, 478 U.S. 265, 286 (1986)). Legal conclusions or “[t]hreadbare recitals 20 of the elements of a cause of action, supported by mere conclusory statements” are not 21 entitled to the presumption of truth. Iqbal, 556 U.S. at 678–79. Although the court accepts 22 plaintiff’s allegations as true, it is not proper for the court to assume that “the [plaintiff] 23 can prove facts that it has not alleged or that the defendants have violated the . . . law[] in 24 ways that have not been alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State 25 Council of Carpenters, 459 U.S. 519, 526 (1983). 26 “When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court’s 27 consideration is limited to the following: the complaint, documents attached to the 28 complaint, documents relied upon but not attached to the complaint when authenticity is 1 not contested, and matters of which the court takes judicial notice.” Lee v. Los Angeles, 2 250 F.3d 668, 688–89 (9th Cir. 2001). 3 4 III. ANALYSIS 5 A. Consideration of Documents Attached to Plaintiff’s Complaint 6 In a Rule 12(b)(6) motion to dismiss, the court cannot consider evidence outside the 7 pleadings without converting the motion to a Rule 56 Motion for Summary Judgment. U.S. 8 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, under the “incorporation by 9 reference” doctrine, the Court can consider documents referenced in the pleading “if the 10 plaintiff refers extensively to the document or the document forms the basis of the 11 plaintiff’s claim.” Id. at 908. When a document is so incorporated by reference into a 12 complaint, “the district court may treat such a document as part of the complaint, and thus 13 may assume that its contents are true for purposes of a motion to dismiss under Rule 14 12(b)(6).” Id. 15 As relevant to Witt’s claims raised against Bristol Farms, Witt attaches and 16 incorporates into her Complaint five documents: (1) Lazy Acres’ COVID-19 policy (Ex. A 17 to Compl.); (2) U.S.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SALIMA WITT, Case No. 21-cv-00411-BAS-AGS
12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS (ECF No. 12)
14 BRISTOL FARMS,
15 Defendant. 16 17 Plaintiff Salima Witt has stage three cancer and chronic asthma. In 2020, Witt was 18 escorted out of Defendant Bristol Farms’ grocery store for not wearing a face covering as 19 required by the store’s COVID-19 policy. Witt filed this action against Bristol Farms, 20 claiming that Bristol Farms denied her public accommodation in violation of Title III of 21 the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. (“ADA”). 22 Pending before the Court is Defendant Bristol Farms’ motion to dismiss filed under 23 Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12.) For the following reasons, the 24 Court GRANTS the motion. 25 // 26 // 27 // 28 // 1 I. BACKGROUND 2 According to the Complaint, Witt is a resident of the City of Encinitas, California. 3 (Compl. ¶ 3.) Witt has stage three cancer and chronic asthma. (Id. ¶ 9.) Witt was a regular 4 shopper at Lazy Acres Encinitas, a grocery store owned by Bristol Farms. (Id. ¶ 10.) 5 On or about May 26, 2020, Witt went to Lazy Acres Encinitas to shop for groceries. 6 (Id. ¶ 10.) The store’s COVID-19 policy in effect at the time required “[a]ll customers . . . 7 to wear face coverings when entering any Lazy Acres store.” (Id. ¶ 13.) Witt did not have 8 any symptoms of COVID-19, flu, or cold. (Id.) As Witt stood in line to pay for her 9 groceries, a male manager of the store approached her. (Id. ¶ 11.) The manager told Witt 10 that she must immediately leave the store because she was not wearing a face mask. (Id.) 11 Witt explained to the manager that she could not wear a face mask because of her cancer 12 and asthma. (Id. ¶ 12.) The manager raised his voice and demanded Witt show a written 13 proof of her medical conditions. (Id.) Witt told him she did not have any. (Id.) The 14 manager did not offer Witt an alternative way to buy her groceries and told her to leave the 15 store. (Id.) He physically escorted Witt outside, while shouting “get out of the store.” (Id.) 16 Witt filed this action on March 8, 2021, alleging that Bristol Farms discriminated 17 against her based on her disability. (ECF No. 1). Witt raises one cause of action against 18 Bristol Farms for violation of Title III of the ADA. (Compl. ¶¶ 20–28.)1 19 Bristol Farms moves to dismiss Witt’s Complaint for failure to state a claim under 20 Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 12.)2 Witt opposes the 21 motion (ECF No. 13), and Bristol Farms has filed a reply (ECF No. 14). The Court finds 22 this motion suitable for determination on the papers submitted and without oral argument. 23 See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 24 // 25 26 1 The Court dismissed Witt’s other causes of action raised against other Defendants, UC San Diego 27 Health and University of California Health, in a separate order. (Order, ECF No. 15.) 2 The Court denies as moot Bristol Farms’s request for judicial notice (ECF No. 12-2) because the 28 1 II. 12(b)(6) LEGAL STANDARD 2 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 3 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 4 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all 5 factual allegations pleaded in the complaint as true and draw all reasonable inferences from 6 them in favor of the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337– 7 38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain 8 detailed factual allegations; rather, it must plead “enough facts to state a claim to relief that 9 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 10 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 11 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 12 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Where a complaint 13 pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the 14 line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 15 550 U.S. at 557). 16 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 17 requires more than labels and conclusions, and a formulaic recitation of the elements of a 18 cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (quoting 19 Papasan v. Allain, 478 U.S. 265, 286 (1986)). Legal conclusions or “[t]hreadbare recitals 20 of the elements of a cause of action, supported by mere conclusory statements” are not 21 entitled to the presumption of truth. Iqbal, 556 U.S. at 678–79. Although the court accepts 22 plaintiff’s allegations as true, it is not proper for the court to assume that “the [plaintiff] 23 can prove facts that it has not alleged or that the defendants have violated the . . . law[] in 24 ways that have not been alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State 25 Council of Carpenters, 459 U.S. 519, 526 (1983). 26 “When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court’s 27 consideration is limited to the following: the complaint, documents attached to the 28 complaint, documents relied upon but not attached to the complaint when authenticity is 1 not contested, and matters of which the court takes judicial notice.” Lee v. Los Angeles, 2 250 F.3d 668, 688–89 (9th Cir. 2001). 3 4 III. ANALYSIS 5 A. Consideration of Documents Attached to Plaintiff’s Complaint 6 In a Rule 12(b)(6) motion to dismiss, the court cannot consider evidence outside the 7 pleadings without converting the motion to a Rule 56 Motion for Summary Judgment. U.S. 8 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, under the “incorporation by 9 reference” doctrine, the Court can consider documents referenced in the pleading “if the 10 plaintiff refers extensively to the document or the document forms the basis of the 11 plaintiff’s claim.” Id. at 908. When a document is so incorporated by reference into a 12 complaint, “the district court may treat such a document as part of the complaint, and thus 13 may assume that its contents are true for purposes of a motion to dismiss under Rule 14 12(b)(6).” Id. 15 As relevant to Witt’s claims raised against Bristol Farms, Witt attaches and 16 incorporates into her Complaint five documents: (1) Lazy Acres’ COVID-19 policy (Ex. A 17 to Compl.); (2) U.S. Department of Health and Human Services Centers for Disease 18 Control and Prevention (“CDC”)’s Frequently Asked Questions (“FAQ”) on COVID-19, 19 dated February 10, 2021 (Ex. B to Compl.); (3) CDC’s Guidance for Wearing Masks, dated 20 February 10, 2021 (Ex. C to Compl.); (4) CDC’s document entitled “People with Certain 21 Medical Conditions,” dated February 3, 2021 (Ex. D to Compl.); and (5) California 22 Department of Public Health (“CDPH”)’s Guidance for the Use of Face Coverings, dated 23 November 16, 2020 (Ex. F to Compl.). Witt incorporates the attached documents into her 24 Complaint by referring to them to support her allegation that Lazy Acres’ COVID-19 25 policy was inconsistent with CDC and CDPH’s guidelines on who should be exempt from 26 wearing masks. (Compl. ¶¶ 14–15, ns. 2–6.) Therefore, the Court assumes the contents of 27 the five documents are true for the purpose of ruling on Bristol Farms’ Rule 12(b)(6) 28 motion. See Ritchie, 342 F.3d at 908. 1 B. Plaintiff’s ADA Claim 2 Title III of the ADA provides, as a “general rule,” that 3 [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, 4 advantages, or accommodations of any place of public accommodation by any 5 person who owns, leases (or leases to), or operates a place of public accommodation. 6
7 42 U.S.C. § 12182(a). Title III provides what constitutes “discrimination” under two 8 prongs: “general prohibition” and “specific prohibitions.” Id. § 12182(b)(1), (b)(2). As 9 relevant to Witt’s allegations, “discrimination” includes denying an individual “the 10 opportunity . . . to participate in or benefit from the goods, services, facilities, privileges, 11 advantages, or accommodations of an entity” “on the basis of a disability.” Id. 12 § 12182(b)(1)(A)(i). “Discrimination” also includes “a failure to make reasonable 13 modifications in policies, practices, or procedures, when such modifications are necessary 14 to afford such goods, services, facilities, privileges, advantages, or accommodations to 15 individuals with disabilities.” Id. § 12182(b)(2)(A)(ii). 16 Reading Witt’s Complaint in the light most favorable to her, the essence of her 17 allegations is that Bristol Farms’ COVID-19 policy excluded her from purchasing her 18 groceries at Lazy Acres Encinitas by requiring all customers, irrespective of their medical 19 conditions, to wear a face mask inside the store. To prevail on her Title III claim based on 20 this theory, Witt must show that 21 (1) [she] is disabled as that term is defined by the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public 22 accommodation; (3) the defendant employed a discriminatory policy or 23 practice; and (4) the defendant discriminated against [her] based upon [her] disability by (a) failing to make a requested reasonable modification that was 24 (b) necessary to accommodate the plaintiff’s disability. 25 26 Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004). If Witt makes 27 such a showing, Bristol Farms violates Title III unless it can show that “doing so would 28 alter the fundamental nature of its business.” Id. 1 The Court has already found that Witt’s Complaint plausibly states she is disabled 2 within the meaning of the ADA. (Order at 6–7, ECF No. 15.) The second element is not 3 debated by the parties. Assuming without deciding that Witt satisfies the third element, 4 the Court focuses its analysis on the fourth element. To satisfy the fourth element, Witt’s 5 Complaint must plausibly state that Bristol Farms denied her request for modification that 6 was both reasonable and necessary to accommodate her disability. See Fortyune, 364 F.3d 7 at 1082; 42 U.S.C. § 12182(b)(2)(A)(ii) (providing that a denial of modification is 8 discriminatory only where the requested modification is “reasonable” and “necessary” to 9 accommodate the individual’s disability). 10 Here, Witt alleges she told Lazy Acres Encinitas’s manager that she could not wear 11 a face mask because of her cancer and asthma. (Compl. ¶ 12.) The Court infers from this 12 allegation that Witt made a request to the manager to modify the store’s policy to let her 13 shop in the store without wearing a face mask and turns to analyze whether her request was 14 reasonable and necessary. 15 16 1. Whether Witt’s Request for Modification was Reasonable 17 Witt offers no facts that would show that her request was reasonable. The applicable 18 public health guidelines recommended wearing masks to prevent the spread of COVID-19 19 at grocery stores. (E.g., Compl. Ex. B at 2/32 (“Wear masks in public settings when around 20 people not living in [one’s] household and particularly where other social distancing 21 measures are difficult to maintain, such as grocery stores. . . . Masks offer some protection 22 to you and help people who may have the virus and do not know it from transmitting it to 23 others.”).) The guidelines recognized the need for an alternative type of face covering, 24 including “clear masks or cloth masks with a clear plastic panel,” recommended for those 25 who interact with “people who are deaf or hard of hearing”; “young children or students 26 learning to read”; “students learning a new language”; “people with disabilities”; or 27 “people who need to see the proper shape of mouth for making appropriate vowel sounds, 28 e.g., in singing.” (Id. Ex. C at 4/8.) In addition, the guidelines provided that wearing masks 1 may not be possible for dining, water activities, or high intensity activities. (Id. at 5/8.) 2 Witt does not allege that her request for modification was based on any of these reasons 3 recognized by public health authorities. Witt offers no other explanation as to why it would 4 have been reasonable for the grocery store to accept her request to not wear any face 5 covering whatsoever in the store at the risk of endangering other customers. 6 7 2. Whether Witt’s Request for Modification was Necessary to 8 Accommodate her Claimed Disability 9 To the extent that Witt alleges her request to not wear a mask inside the store was 10 necessary to accommodate her asthma or cancer, that allegation is contradicted by the 11 public health guidelines, and the Court declines to accept that allegation as true. See 12 Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998) (holding that the 13 court is “not required to accept as true conclusory allegations which are contradicted by 14 documents referred to in the complaint”). Witt alleges the CDC recommended people with 15 asthma or cancer not wear masks. (Compl. ¶ 14.) However, Witt’s own exhibits show 16 otherwise: although the CDC recognized that “[m]asks should not be worn by . . . someone 17 who cannot wear a mask safely, such as someone who has a disability or an underlying 18 medical condition that precludes wearing a mask,” the CDC explained that “[m]ost people 19 with underlying medical conditions can and should wear masks.” (Id. Ex. C at 6/8.) With 20 specific regards to asthma, the CDC clarified that “[i]f you have asthma, you can wear a 21 mask.” (Id.) On cancer, the CDC guidelines stated cancer patients “are at increased risk 22 of severe illness from the virus that causes COVID-19” and, to mitigate the increased risk, 23 recommended that cancer patients keep masks on hand to “use [them] when venturing out.” 24 (Id. Ex. D at 1/11, 3/11.) 25 In addition, Witt does not explain why she could not wear other forms of face 26 coverings. Witt alleges that “[t]he Lazy Acres COVID Policy made no accommodation 27 for customers with disabilities that prevented them from shopping in its stores with a face 28 mask covering their nose and mouth.” (Compl. ¶ 13 (emphasis added).) However, the 1 actual policy, which Witt attaches to her Complaint and incorporates by reference, states 2 that “[a]ll customers . . . are required to wear face coverings.” (Id. Ex. A (emphasis added).) 3 Requiring “face coverings” is not analogous to requiring “face masks,” which is a specific 4 form of a face covering. Witt’s Complaint is deficient because it lacks any allegations as 5 to why she could not wear any face coverings, which may include bandanas or gaiters, in 6 compliance with the store’s COVID-19 policy. Cf. Giles v. Sprouts Farmers Mkt., Inc., 7 No. 20-CV-2131-GPC-JLB, 2021 WL 2072379, at *4 (S.D. Cal. May 24, 2021) (finding 8 that the plaintiff did not plausibly state a Title III claim against a grocery store based on 9 the allegation that her disability prevented her from wearing a face mask, where the store’s 10 policy allowed wearing a face shield, and the complaint “[said] nothing about [the plaintiff] 11 describing her medical condition that prevented her from wearing a face shield”). 12 For the reasons stated above, the Court is left to speculate as to why Witt’s asthma 13 or cancer prevented her from complying with Lazy Acres’ policy requiring face coverings. 14 Her allegation is conclusory and does not warrant an inference of truth. See Iqbal, 556 15 U.S. at 681 (“[C]onclusory nature of respondent’s allegations . . . disentitles them to the 16 presumption of truth.”); see also Austin v. Univ. of Oregon, 925 F.3d 1133, 1138 (9th Cir. 17 2019) (holding, in a gender discrimination action, that recitation of events without 18 providing any plausible link connecting the events to the claimant’s gender “[was] not 19 cured by labels and conclusory statements”). Therefore, accepting all well-pleaded facts 20 as true and drawing all reasonable inferences in Witt’s favor, the facts Witt pleads in her 21 Complaint do not permit the Court to infer that Bristol Farms denied Witt’s request for 22 modification that was reasonable and necessary to accommodate her claimed disabilities. 23 Because Witt’s Complaint fails to allege an essential element of her Title III claim against 24 Bristol Farms, the Court grants Bristol Farms’ Rule 12(b)(6) motion. 25 // 26 // 27 // 28 // 1 |}IV. CONCLUSION 2 The Court GRANTS Bristol Farm’s 12(b)(6) motion to dismiss. Witt’s claim 3 against Bristol Farms is dismissed without prejudice. Out of an abundance of caution, the 4 || Court GRANTS Witt leave to amend her Complaint. Any amended pleading shall be filed 5 or before April 4, 2022. If Witt does not file an amended pleading by April 4, 2022, 6 ||the Court will dismiss her claim against Bristol Farms with prejudice without a further 7 || order. 8 IT IS SO ORDERED. 9 A , 10 || DATED: March 11, 2022 Lin A (Lyohaa 6 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _O.