1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALETA GUTHREY, a conserved adult, No. 2:18-cv-01087-MCE-JDP through her Conservator, Areta 12 Guthrey; and ARETA GUTHREY, an individual, 13 ORDER Plaintiffs, 14 v. 15

ALTA CALIFORNIA REGIONAL

16 CENTER, a California non-profit corporation; ON MY OWN 17 INDEPENDENT LIVING SERVICES, INC., a California corporation; MARY 18 McGLADE, an individual; MICHELLE RAMIREZ, an individual; S.T.E.P. INC., 19 a California corporation, Tammy Smith, an individual, 20 Defendants. 21 22 Through the present lawsuit, Plaintiffs Aleta Guthrey (“Aleta”), a conserved adult, 23 through her Conservator, Areta Guthrey (“Areta”), and Areta, as an individual 24 (collectively “Plaintiffs” unless otherwise specified1) seek damages on grounds that Aleta 25 was wrongfully denied access to support services to which she was entitled due to her 26 multiple disabilities. Areta, who in addition to serving as Aleta’s conservator is also her 27 1 Given their shared surnames, when referring to the Plaintiffs individually the Court will utilize their 28 first names. 1 mother, further claims that both she and Aleta were discriminated and retaliated against 2 when Areta asserted their right to such services. Defendants include three different 3 entities2 alleged to be responsible for the provision of services to Aleta, along with three 4 individuals employed by those entities. 5 Presently before the Court are three different motions to dismiss brought on 6 behalf of 1) Defendant Alta California Regional Center (“Alta”) (ECF No. 49); 7 2) Defendant On My Own Independent Living Services, Inc. (“On My Own”), and On My 8 Own’s employees, Defendants Michelle Ramirez and Mary McGlade (ECF No. 48); and 9 3) Defendant S.T.E.P. (“STEP”),3 together with STEP employee, Defendant Tammy 10 Smith (ECF No. 54). All three motions are brought under the auspices of Federal Rule 11 of Civil Procedure 12(b)(6)4 on grounds that Plaintiffs’ currently operative pleading, the 12 First Amended Compliant (“FAC”), fails to state a claim upon which relief can be granted. 13 The STEP Defendants also argue that Plaintiffs failed to exhaust their appropriate 14 administrative remedies before initiating this lawsuit, and that the FAC goes beyond the 15 permission previously accorded Plaintiffs to file an amended pleading. As set forth 16 below, Defendants’ Motions are GRANTED in part and DENIED in part.5 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 2 Although an additional entity, On My Own Community Services, was initially also named as a 24 Defendant, that organization was subsequently dismissed by Order filed September 30, 2021. ECF No. 67. 25 3 This acronym is a shortened version of “Strategies to Empower People”.

26 4 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 27

5 Having determined that oral argument would not be of material assistance, the Court ordered this 28 matter submitted on the briefs in accordance with E.D. Local Rule 230(g). 1 BACKGROUND6 2 3 Aleta is a 26-year-old woman diagnosed with developmental disabilities including 4 microcephaly, a physical and intellectual impairment that substantially limits all of her 5 major life activities. She cannot speak, write, or eat by mouth and must instead receive 6 nutrition through use of a gastrostomy tube. Areta contends that her daughter qualifies 7 as an individual with a disability under all applicable state and federal laws. Areta has 8 served as Aleta’s conservator since she turned 18, and until May 1, 2020, cared for Aleta 9 on a full-time basis. 10 Given her disabilities, Aleta was referred at the time of her birth to California’s 11 regional care system. That system is governed by the Lanterman Developmental 12 Disabilities Services Act, California Welfare and Institutions Code §§ 4501, et seq. 13 (“Lanterman Act” or “Act”). The Act provides that services should be provided to prevent 14 or minimize the institutionalization of developmentally disabled persons like Aleta so as 15 to facilitate their care within the community. Provision of services under the Lanterman 16 Act is progressively delegated first from the California Health and Human Services 17 Agency to the California Department of Development Services (“DDS’), and then from 18 DDS to regional care centers which, in turn, contract with the vendors who provide direct 19 services to those qualifying for care. 20 Areta alleges that she is the single parent of three children with special needs, 21 two of whom, including Aleta, are regional center customers. Because she suffers both 22 from arthritis and bipolar disorder, Areta claims that caring for her family is difficult. In 23 2014, after moving to Citrus Heights, California, Aleta became a client of Alta, and Areta 24 began discussing with Aleta’s assigned service coordinator at Alta, the provision of 25 Supported Living Services (“SLS”) to Aleta in her own home. Although Alta had at times 26 indicated that Aleta’s feeding tube made independent living problematic, even with 27 6 The factual averments contained in this section are drawn, at times verbatim, from the 28 allegations contained in Plaintiffs’ FAC. 1 personal attendant care, Areta was eventually introduced by Alta, in 2016, to On My 2 Own and its representative, McGlade.7 Areta claims she signed numerous documents, 3 including a “contract,” so that On My Own could provide SLS to Aleta under Alta’s 4 auspices. No further information about that contract is provided. 5 According to the FAC, McGlade told Areta the following year, in April of 2017, that 6 she had located a roommate for Aleta. Although Areta approved the apartment in 7 question, another resident refused to vacate and a different apartment had to be found 8 for Aleta and her proposed roommate. Areta claims this process was complicated by 9 Alta’s desire to have a third young woman share the living arrangement. Then, a 10 meeting was scheduled between the other two prospective roommates from which both 11 Areta and Aleta were allegedly ”excluded.” Once Areta expressed disappointment about 12 being left out of the meeting, she claims she was informed in writing, on May 1, 2017, 13 that On My Own would no longer serve as Aleta’s service provider. Areta believes this 14 was in retaliation for her advocacy on Aleta’s behalf, and when she spoke to Aleta’s 15 service coordinator at Alta about what had transpired she claims to have been told that 16 vendors like On My Own had an unfettered right to determine whether they wished to 17 provide services. According to Areta, On My Own also felt Aleta was “not ready to move 18 into the community” and thus decided to end its services based on its own improper 19 “determination” of Aleta’s needs. FAC, ¶ 57. 20 Several months later, in the summer of 2017, Aleta received another SLS referral 21 through Alta, this time for Defendant STEP. Areta again claims she “entered into a 22 contract with STEP to provide SLS services to Aleta,” without further explication. Id. at 23 ¶ 88. When Aleta’s case manager at STEP was hired away by Alta a few weeks later, 24 Aleta’s file had to be reassigned, moving Aleta farther down the line in housing 25 /// 26 7 In addition to McGlade, Plaintiffs also named On My Own’s CEO, Michelle Ramirez, as an 27 additional defendant although the FAC contains virtually no factual averments directed to Ms. Ramirez aside from alleging that as CEO, she was “legally responsible” for the actions of the company’s employees 28 and its alleged discriminatory policies. FAC, ¶ 11. 1 placement given the new manager’s existing caseload. This resulted in a delay in Aleta 2 being considered for SLS until after Christmas 2017. 3 Areta contacted the CEO of STEP, Jacquie Dillard-Foss, to see if placement 4 could be expedited on grounds that she and Aleta “were in crisis and the situation was 5 not safe.” Id. at ¶ 92. The FAC offers no further details as to what the “crisis” was, or 6 how matters were unsafe.8 When Areta requested a status in November 2017 as to 7 when SLS would be provided, however, she was told by Alta’s service coordinator that 8 STEP was refusing to provide services. Areta states that the email STEP’s SLS Service 9 Manager, Tammy Smith, sent to Alta indicated that STEP’s decision turning down the 10 referral was based both on Areta’s “advocacy” as well as Aleta’s care needs. Id. at ¶ 98. 11 Areta further alleges that shortly before STEP rejected Aleta’s placement Alta 12 hosted a meeting for current SLS providers. While she offers no corroborating evidence, 13 Areta states she believed that On My Own representatives attended that meeting and 14 “intentionally influenced STEP’s decision to reject Aleta.” Id. at ¶ 99. 15 After STEP refused to provide services, Alta told Areta that the waiting list for SLS 16 was several years. When Areta decided to herself attend a vendor orientation course at 17 Alta in order to become an SLS vendor, however, another provider “suddenly appeared,” 18 and as of May 1, 2020, Aleta finally moved into her own home in the community with the 19 assistance of two caregivers. Id. at ¶ 101. 20 Plaintiffs’ initial Complaint was filed on May 1, 2018, after STEP’s November 2017 21 refusal to provide Aleta’s SLS and before Alta finally arranged for services to commence 22 some two-and-a-half years later. That Complaint alleged six causes of action for: 23 1) discrimination under Title III of the Americans with Disabilities Act (“ADA”); 24 2) retaliation under both the ADA, the Rehabilitation Act of 1973, and California’s Unruh 25 Civil Rights Act, as codified by California Civil Code § 51(f), 3) violations of 42 U.S.C. 26 8 Elsewhere in the FAC there is a reference to Alta informing Areta, in response to Areta’s request 27 to take a “short vacation,” that Aleta might have to be placed in an institution because of her feeding tube (id. at ¶ 33), but that allegation refers only to Alta and it remains unclear just what crisis Areta might have 28 been referring to. 1 § 1983 on grounds that Defendants’ conduct violated the Equal Protection Clause of the 2 United States Constitution: 4) negligent infliction of emotional distress; 5) negligent 3 infliction of intentional distress; and 6) tortious breach of contract. 4 Because the initial Complaint did not specify which named Defendants were 5 implicated in each of the causes of action presented, or enumerate the facts related to 6 the particular Defendants upon which each claim rested, Defendants filed four separate 7 motions requesting dismissal on grounds that no viable claim had been stated, or 8 alternatively for a more definite statement under Rule 12(e). By Order filed June 15, 9 2020, the Court granted Defendants’ requests under Rule 12(e) and afforded Plaintiffs 10 the opportunity to file an amended pleading. ECF No. 46. Dismissal under 11 Rule 12(b)(6), however, was deemed premature given Plaintiffs’ basic failure to specify 12 which parties were implicated in each particular cause of action. 13 Plaintiffs’ resulting FAC, filed July 5, 2020, at 48 pages is over four times the 14 length of its predecessor. ECF No. 47. The FAC also increases the causes of action 15 from the six originally pleaded to twenty-five. Defendants’ three separate motions to 16 dismiss the FAC, as enumerated above, are now before the Court for adjudication. 17 18 STANDARD 19 20 Under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact 21 must be accepted as true and construed in the light most favorable to the nonmoving 22 party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) 23 “requires only ‘a short and plain statement of the claim showing that the pleader is 24 entitled to relief’ in order to ‘give the defendant fair notice of what the . . . claim is and the 25 grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 26 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 27 12(b)(6) motion to dismiss does not require detailed factual allegations. However, “a 28 plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than 1 labels and conclusions, and a formulaic recitation of the elements of a cause of action 2 will not do.” Id. (internal citations and quotations omitted). A court is not required to 3 accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 4 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must 5 be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 6 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 7 § 1216 (3d ed. 2004) (stating that the pleading must contain something more than “a 8 statement of facts that merely creates a suspicion [of] a legally cognizable right of 9 action”)). 10 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 11 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 12 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 13 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 14 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Wright & 15 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 16 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 17 claims across the line from conceivable to plausible, their complaint must be dismissed.” 18 Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge 19 that actual proof of those facts is improbable, and ‘that a recovery is very remote and 20 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 21 A court granting a motion to dismiss a complaint must then decide whether to 22 grant leave to amend. Leave to amend should be “freely given” where there is no 23 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 24 to the opposing party by virtue of allowance of the amendment, [or] futility of the 25 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 26 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 27 be considered when deciding whether to grant leave to amend). Not all of these factors 28 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 1 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 2 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 3 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 4 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 5 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 6 1989) (“Leave need not be granted where the amendment of the complaint . . . 7 constitutes an exercise in futility . . . .”)). 8 9 ANALYSIS 10 11 A. Exhaustion of Administrative Remedies 12 In its motion to dismiss, Defendant STEP initially argues that because Plaintiffs 13 have failed to exhaust administrative remedies prior to filing this lawsuit all twenty-five 14 causes of action, which are all grounded in the provision of services to the disabled, 15 must fail. According to STEP, the Lanterman Act requires that regional centers like Alta 16 “have an agency fair hearing procedure for resolving conflicts between” such centers 17 and those applying for or receiving services under the Act. Cal. Welf. & Inst. Code 18 § 4705(a). STEP also cites § 4710.5(a), providing that an applicant dissatisfied with a 19 regional center’s decisions believed to be illegal or discriminatory shall be afforded a fair 20 hearing, and § 4712.5(a), which state that the hearing officer’s resulting decision shall be 21 final subject only to appeal through a petition for administrative mandate in state court. 22 Finally, STEP points to case law finding that because the hearing procedure of § 4710.5 23 represents an “exclusive remedy,” it must first be exhausted before seeking any judicial 24 relief. Harbor Reg’l Ctr. v. Office of Admin. Hearings, 210 Cal. App. 4th 293, 312 (2012). 25 In opposition, Plaintiffs point out that the administrative actions contemplated by 26 the Lanterman Act relate only to the “services” to be provided by the regional center, with 27 “services” defined as the “type and amount of service components set forth in the 28 /// 1 recipient’s individual program plan…” Cal. Welf. & Inst. Code § 4703.7.9 Plaintiffs argue 2 that because there is no dispute here about the level or type of services needed, the 3 administrative remedy provisions of the Lanterman Act are inapplicable to this case. 4 This is because, according to Plaintiffs, there is no dispute about the kind of services 5 Aleta needed, only disagreement pertaining to delays in obtaining services and alleged 6 retaliation against Plaintiffs due to Areta’s advocacy on her daughter’s behalf. 7 Consequently, Plaintiffs maintain that the disagreement here is outside the purview of 8 the Act’s required administrative remedy. They assert that STEP’s case law, namely 9 Harbor Regional, is inapplicable because the dispute there, unlike the present case, 10 involved the nature and amount of in-home services the consumer should receive and 11 thus fell within the purview of the Act’s administrative hearing requirement. Finally, and 12 on and even more fundamental basis, Plaintiffs argue that because the language of 13 § 4705(a) on its face is limited to disputes between regional centers and disabled 14 “recipients of, or applicants for, service,” the statute cannot be invoked by a vendor like 15 STEP in the first instance. 16 STEP makes no argument by way of reply in response to Plaintiffs’ arguments 17 above and the Court agrees that there is no administrative remedy requirement that 18 attaches here. STEP’s request that the FAC be dismissed on that basis is therefore 19 DENIED. 20 B. Scope of FAC 21 As indicated above, Plaintiffs’ initial Complaint consisted only of six causes of 22 action rooted only in the federal ADA and Rehabilitation Act, under California’s Unruh 23 Act, and on a theory that Defendants were state actors triggering liability under 24 42 U.S.C. § 1983 for their violations of the equal protection rights guaranteed to Plaintiffs 25 by the United States Constitution. Because it could not be ascertained from the 26 Complaint just what claims were directed against which particular Defendants, the Court

27 9 An Individual Program Plan, or IPP, is required for disabled persons qualifying for services under the Act to identify the services that each particular individual and his family requires. See id. at 28 §§ 4640.7(b), 4647. 1 granted Defendants’ request for a more definite statement in that regard under Rule 2 12(e) and gave Plaintiffs leave to amend accordingly. 3 The FAC subsequently filed is vastly different in scope than its predecessor. It 4 contains three causes of action (Claims One through Three) for claimed violations of the 5 Lanterman Act, where that Act was not even mentioned in Plaintiffs’ initial pleading let 6 alone made the basis of any claim for relief. Nor did the initial Complaint assert any 7 cause of action for simple breach of contract despite the fact that the FAC contains three 8 new claims against the various Defendants on that ground alone (Claims Ten through 9 Twelve), as well as interference with contractual relations and inducing breach of 10 contract causes of action against Alta, only (Claims Twenty and Twenty-One). In 11 addition, Plaintiffs’ claims in the FAC for unlawful business practices (Claim Nineteen), 12 for violations of the California Constitution (Claim Twenty-Two), for § 1983 violations 13 premised on due process rights guaranteed under the United States Constitution (Claim 14 Twenty-Three), for conspiracy under 42 U.S.C. § 1985 (Claim Twenty-Four), and 15 violations of California Government Code § 11135 (Claim Twenty-Five) have no relation 16 to the claims asserted in the initial Complaint, for which the Court afforded amendment. 17 The permission accorded Plaintiffs to amend their initial Complaint to clarify the 18 causes of action pleaded therein pursuant to Rule 12(e) does not confer unfettered, 19 carte blanche permission to drastically change the complexion of the Complaint through 20 the wholesale addition of multiple causes of action enumerated above. As STEP points 21 out, it has long been held that an “amended pleading is one which clarifies. . . the same 22 cause of action originally pleaded or attempted to be pleaded.” Superior Mfg. Corp. v. 23 Hessler Mfg. Co., 267 F.2d 302, 304 (10th Cir. 1959) (cert. denied 361 U.S. 876 (1959)). 24 “It is the perfection of an original pleading rather than the establishment of a new cause 25 of action.” Id. A more recent decision, Taylor v. City of San Bernardino, 2010 WL 26 5641065 (C.D. Cal. Oct. 12, 2010) reiterates the same precept. Like the present case, 27 the plaintiff in Taylor, after being afforded leave to amend her existing causes of action, 28 proceeded to also assert six entirely new causes of action. Id. at * 6. The Taylor court 1 concluded that because the order permitting leave to amend “did not grant plaintiff leave 2 to file additional claims….. [she] was required to obtain prior leave of court” to include 3 such additional claims in her amended pleading, but had not done so. Id. The court 4 accordingly dismissed the new claims, without prejudice, as having been filed in violation 5 of Rule 15(a), which permitted amendment only with the opposing party’s written consent 6 or the court’s leave. Id. 7 Taylor’s logic is equally applicable here. Claims One through Three, Ten through 8 Twelve, and Nineteen through Twenty-Five are accordingly dismissed, without prejudice 9 to being renewed should Plaintiffs obtain the requisite leave of court to do so. 10 C. ADA Claims 11 Claims Four through Six of Plaintiffs’ FAC all allege ADA claims under Title III 12 against Alta, On My Own, and STEP, respectively, as well as against individual 13 Defendants McGlade, Ramirez, and Smith. Those claims correspond with Plaintiffs’ First 14 Cause of Action as set forth in their initial Complaint. 15 In enacting the ADA, Congress intended ‘to provide a clear and comprehensive 16 national mandate for the elimination of discrimination against individuals with 17 disabilities.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589, (1999) (quoting 18 42 U.S.C. § 12101(b)(1) ). Title III of the ADA advances that goal by providing that “[n]o 19 individual shall be discriminated against on the basis of disability in the full and equal 20 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations 21 of any place of public accommodation by any person who owns, leases (or leases to), or 22 operates a place of public accommodation.” 42 U.S.C. § 12182(a). 23 As California’s Fourth District Court of Appeal noted in Martinez v. San Diego 24 County Credit Union, 50 Cal. App. 5th 1048 (2020), in defining a place of “public 25 accommodation” subject to protection under Title III, the ADA enumerates twelve 26 categories of covered “places” and “establishments” that mainly reference physical 27 locations. Id. at 1060. The implementing regulations provide no further detail and simply 28 refer to a “public accommodation” as a “facility,” which is in turn defined as “all or any 1 portion of buildings, structures, sites, complexes, equipment, rolling stock ... or other real 2 or personal property, including the site where the building, property, structure, or 3 equipment is located.” 28 C.F.R. § 36.104. 4 The Ninth Circuit is in accord. In Weyer v. Twentieth Century Fox Film Corp., 5 198 F.3d 1104 (9th Cir. 2000), the court noted that public accommodations as 6 recognized by applicable legal authority are “actual, physical places where goods or 7 services are open to the public, and place where the pubic gets those goods or services. 8 Id. at 1114. There must accordingly be an actual physical place connected with the good 9 or service in question for Title III liability to attach. Id. 10 In requesting dismissal of Plaintiffs’ Title III claims, all three motions argue that the 11 requisite connection with a physical place of public accommodation is lacking, since 12 while both Alta, On My Own and STEP may have office headquarters, those physical 13 locations have no direct relation to the disability support services provided, which are 14 performed offsite. Neither of the three entities operates or owns any supported living 15 facilities, nor have Plaintiffs alleged that they do. While a supported living facility would 16 presumably, like a restaurant, theater, day care center or other place of public 17 accommodation, have a physical location, there is no allegation that Defendants here 18 provide their services from any such fixed location. 19 Plaintiffs try to surmount this obstacle by including bald allegations in the FAC that 20 each entity Defendant “is a place of public accommodation because it occupies at least 21 one office building in which it provides services to consumers and their families.” FAC, 22 ¶¶ 157, 171, 186. Without some factual showing of a real nexus between the actual 23 services provided and those locations, however, this is no more than a legal conclusion 24 insufficient under Twombly to meet Plaintiffs’ burden in showing a potentially viable 25 claim. 26 Plaintiffs nonetheless maintain that a more recent Ninth Circuit decision, Robles v. 27 Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), suggests that a less stringent 28 approach to satisfying the physical location prerequisite should be employed. Plaintiffs 1 point to language in Robles to the effect that Title III “applies to the services of a place of 2 public accommodation, not services in a place of public accommodation.” Id. at 905 3 (emphasis in original). While Plaintiffs maintain that this language helps them, the Court 4 concludes it does not because the present matter is distinguishable from Robles. 5 Robles involved a Title III ADA claim against Domino’s Pizza’s website and app, 6 which both allowed customers to order pizzas and other foods from brick-and-mortar 7 Domino’s locations either for at-home deliver or for in-store pickup. 913 F.3d at 902. 8 The plaintiff, who was sight-impaired, claimed she could not order a customized pizza 9 from a nearby Domino’s because of the incompatibility of the app and website with 10 screen-reader software. Although the district court granted Domino’s motion to dismiss, 11 the Ninth Circuit reversed, concluding that the plaintiff had met her burden in 12 establishing a sufficient nexus between Domino’s website and app and its physical 13 restaurants because the website and app allowed customers to order pizzas directly 14 from the stores. Id. at 905 (“Domino’s website and app . . . are two of the primary (and 15 heavily advertised) means of ordering Domino’s products to be picked up at or delivered 16 from the Domino’s restaurants.”). Consequently, since the website and app “facilitated 17 access to the goods and services of a place of public accommodation” under those 18 circumstances, Robles found they fell within the purview of the ADA. Id. at 905. In other 19 words, according to Robles, the ADA applied because the website there “connected 20 customers to the goods and services of [the defendant’s] physical” place. Id. at 905-06. 21 Here there is no comparable nexus. The disability services offered by Defendants 22 did not, like Robles, have any connection with services provided in a physical location 23 like a restaurant. While Domino’s website and app facilitated services unquestionably 24 provided in their brick-and-mortar locations because they made food at those locations 25 easier to obtain and pickup, there is no averment here that Defendants’ offices had any 26 comparable role in disability support services they arranged but did not physically 27 provide. 28 /// 1 A California Court of Appeal case decided shortly after Robles is also instructive. 2 In Thurston v. Midvale Corp., 39 Cal. App. 5th 634 (2019) a blind woman sued a 3 restaurant for disability discrimination under the Unruh Civil Rights Act for maintaining a 4 website that was incompatible with her screen-reading software. The Thurston court 5 found the requisite nexus between the restaurant’s website and the restaurant itself was 6 satisfied by facts showing that the website provided consumers with the opportunity to 7 review the menu and make a reservation, which the court found expedited the 8 customer’s ability to obtain the benefits of the restaurant’s physical facility. Id. at 638, 9 645-46. As Thurston explained, these website features “speed[ ] up” the customer’s 10 “experience at the physical location” and thus facilitate the use and enjoyment of the 11 services offered at the restaurant. Id. at 645. Thurston, in accord with Robles thus 12 found that the ADA was implicated because these factors “connect[ed] customers to the 13 services of the restaurant.” Id. at 646. Again, no such nexus between Defendants’ 14 office buildings and their outside provision of disability support services has been alleged 15 here. Plaintiffs’ Title III claims against Alta, On My Own and STEP accordingly fail as 16 currently constituted, and are dismissed, with leave to amend. 17 Plaintiffs fare no better in arguing that Title III claims can be maintained against 18 individual Defendants McGlade, Ramirez, and Smith. Private individuals do not meet the 19 definition of a business establishment operating a place of public accommodation. 20 McFadden v. Washington Metro. Area Transit Auth., 949 F. Supp. 2d 214, 220 (D.D.C. 21 2013) (no individual liability under the ADA). Plaintiffs have offered no authority 22 suggesting otherwise. The Fourth and Fifth Claims insofar as they relate to McGlade, 23 Ramirez, and Smith are therefore dismissed and no further leave will be permitted. 24 D. Unruh Act Claims 25 California’s Unruh Act permits individuals injured by an ADA violation to recover 26 damages through a private lawsuit. Munson v. Del Taco, Inc., 46 Cal. 4th 661, 673 27 (2009). Because Plaintiffs have not identified any viable ADA violation for the reasons 28 /// 1 stated above, their Unruh Act claim also fails. The Seventh through Ninth Claims are 2 therefore dismissed. 3 E. Tortious Breach of Contract/Implied Covenant Claims 4 While Plaintiffs’ original Complaint did ostensibly purport to include a cause of 5 action for tortious breach of contract, the contracts at issue were not specified on 6 grounds that they remained “in the hands of” the Defendants. Complaint, ECF No. 1, 7 9:4-8. The FAC, however, makes it clear that contracts allegedly breached flowed from 8 violations of the Lanterman Act, as to which, as indicated above, the original Complaint 9 was entirely silent. To the extent Plaintiffs’ Thirteenth through Fifteenth Claims for 10 Relief, while entitled as causes of action for tortious breach of contract, are in fact yet 11 another way of alleging a Lanterman Act claim, as already discussed Plaintiffs must seek 12 leave of court to add that new claim and cannot do so simply because they were 13 afforded leave to amend their original pleading. 14 Plaintiffs’ state law tortious breach of contract/implied covenant claims fail, 15 however, on an ever more fundamental basis. Although an implied covenant of good 16 faith and fair dealing may be implied by law into every contract, and while a breach of 17 that covenant can potentially give rise to tort liability in a contractual setting, case law 18 sharply limits the kinds of contracts that can support an additional claim sounding in tort. 19 Generally, “[c]onduct amounting to a breach of contract becomes tortious only when it 20 also violates an independent duty arising from principles of tort law.” Freeman & Mills, 21 Inc. v. Belcher Oil Co., 11 Cal. 4th 85, 94-95 (1995) (citing Applied Equipment Corp. v. 22 Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 515 (1994). The California Supreme Court 23 concluded that tort recovery is precluded other than in the context of insurance 24 coverage, at least in the absence of violation of an independent duty arising from 25 principles of tort law other than denial of the existence of, or liability under, the breached 26 contract. Freeman & Mills, 11 Cal. 4th at 102. 27 This is not a case involving insurance coverage or an insurance claim. Nor does 28 this case appear to fall within the very narrow range of cases where given the nature of 1 the contract, emotional distress would be expected in the event of a breach. Those 2 cases generally involve contracts where emotional concerns are at the core of the 3 agreement between the parties. Erlich v. Menezes, 21 Cal. 4th 543, 559 (2013) citing 4 Burgess v. Superior Court, 2 Cal. 4th 1064 (1992) (infant injured during childbirth); 5 Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916 (1980) (misdiagnosed venereal disease 6 and subsequent failure of marriage); Chelini v. Nieri (1948) 32 Cal. 2d 480 (failure to 7 adequately preserve a corpse].) Windeler v. Scheers Jewelers (1970) 8 Cal. App. 3d 8 844, 851-852 (bailment for heirloom jewelry where jewelry’s great sentimental value was 9 made known to bailee). In such cases, “when the express object of the contract is the 10 mental and emotional well-being of one of the contracting parties, the breach of the 11 contract may give rise to damages for mental suffering or emotional distress.” Erlich v. 12 Menezes, 21 Cal. 4th at 559. 13 There is no authority for the proposition that delay in providing a different level of 14 care to a profoundly disabled individual like Aleta, where her basic care needs continued 15 to be met in the interim and where additional services were ultimately provided, falls 16 within the limited exception permitting tort liability represented by the cases above. Nor 17 is there support for the even more attenuated argument that the provision of such 18 services to Aleta expressly implicated Areta’s mental and emotional well-being so as to 19 permit tort damages to Areta directly. 20 Plaintiffs’ Thirteenth through Fifteen Claims are accordingly dismissed, with leave 21 to amend. 22 F. Rehabilitation Act Claims 23 Under Section 504 of the Rehabilitation Act, a plaintiff must show (1) he or she is 24 an “individual with a disability” (2) “otherwise qualified” to receive the benefit (3) but 25 denied the benefits of the program solely by reason of his disability; (4) provided that the 26 program receives federal financial assistance. See 29 U.S.C. § 794; Weinreich v. 27 Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997); Bonner v. 28 Lewis, 857 F.2d 559, 562–63 (9th Cir.1988). The first three prerequisites mirror the 1 requirements for establishing a violation of Title III of the ADA, which similarly requires 2 that a disabled individual be denied the benefits of a public accommodation because of 3 his or her disability. Molski v. J.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). 4 In order to demonstrate an additional claim under the Rehabilitation Act, then, a 5 Plaintiff must first establish an ADA claim before going on to show that the program in 6 question receives federal financial assistance. Weinreich, 114 F.3d at 978. Because 7 Plaintiffs’ only effort to establish an ADA violation is in arguing that Title III violations 8 occurred, and because those claims currently fail for the reasons discussed above, 9 Plaintiffs also have not satisfied the prerequisites for a viable Rehabilitation Act claim, 10 either. Moreover, and in any event, to the extent Plaintiffs have named Defendants 11 McGlade, Ramirez and Smith individually in their Rehabilitation Act claims, that inclusion 12 fails because a private individual cannot be liable under the Rehabilitation Act any more 13 than he or she can be liable under the ADA. McFadden v. Wash. Metro. Transit Auth., 14 949 F. Supp. 2d at 220 (“there is no individual liability under the ADA or the 15 Rehabilitation Act.”). 16 Plaintiffs’ Sixteenth through Eighteenth Claims, which allege Rehabilitation Act 17 causes of action against the various defendants, are therefore dismissed as to 18 Defendants Alta, On My Own, and STEP, with leave to amend, and dismissed without 19 any further leave as to Defendants McGlade, Ramirez, and Smith. 20 21 CONCLUSION 22 23 For all the foregoing reasons, the Motions to Dismiss brought on behalf of the 24 Alta, On My Own and STEP Defendants (ECF Nos. 49, 48, 54) are GRANTED except 25 that the Court rejects STEP’s argument that administrative remedies available to 26 Plaintiffs were not properly exhausted. Because Plaintiffs failed to obtain leave of court 27 prior to adding additional claims in their FAC that were not present in their initial 28 Complaint, and since the leave to amend accorded after Defendants’ initial motions 1 || under Rule 12(e) was granted did not entail any wholesale permission to add entirely 2 | new claims, Plaintiffs’ First through Third, Tenth through Twelfth, and Nineteenth through 3 | Twenty-Fifth Claims are DISMISSED, without prejudice to being renewed should 4 | Plaintiffs obtain the requisite permission to do so. Plaintiffs’ Fourth through Sixth, 5 || Seventh through Ninth, Thirteenth through Fifteenth, and Sixteenth through Eighteenth 6 | Claims are DISMISSED, with leave to amend, except that no further leave to amend will 7 || be accorded as to the Fourth, Fifth, Seventeenth, and Eighteenth Claims to the extent 8 | they are alleged against Defendants McGlade, Ramirez and Smith. 9 Plaintiffs may file a Second Amended Complaint not later than twenty (20) days 10 || after the date this Memorandum and Order is electronically filed. Failure to so amend 11 | within those time parameters will result in the case being dismissed, with prejudice and 12 | without further notice to the parties. 13 IT |S SO ORDERED. 14 | Dated: November 23, 2021 Mater LEK Whig { AX Xo - "6 SENIOR UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 18