O 1

2 3 4 5 6 7

8 United States District Court 9 Central District of California

10

11 HARRY GERS et al., Case № 2:19-cv-08003-ODW (Ex)

12 Plaintiffs,

ORDER GRANTING IN PART AND

13 v.

DENYING IN PART MOTION TO

14 NEW ROADS SCHOOL et al., DISMISS [22]

15 Defendants.

16 17 I. INTRODUCTION 18 Before the Court is Defendant New Roads School’s Motion to Dismiss 19 Plaintiffs Harry Gers, Jenn Gers, and Glenn Gers’s First Amended Complaint 20 (“Motion”). (Mot., ECF No. 22.) For the following reasons, the Court GRANTS IN 21 PART and DENIES IN PART Defendant’s Motion.1 22 II. BACKGROUND 23 Harry2 was a student at New Roads School (“New Roads” or the “School”) 24 between September 2012 and November 2016. (First Am. Compl. (“FAC”) ¶ 17, ECF 25 No. 21.) Harry has a learning disorder, generalized anxiety disorder, and autism 26 27 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the 28 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 2 To avoid confusion, the Court respectfully refers to Plaintiffs by their given names. 1 spectrum disorder, and requires accommodations and related aids and services at 2 school. (FAC ¶¶ 13–15.) In December 2013, Jenn and Glenn, Harry’s parents, 3 obtained a neuropsychological evaluation to determine the nature of Harry’s 4 conditions and their impact on school, and shared the evaluation with the School and 5 its employees. (FAC ¶¶ 18–19.) In June 2015 and June 2016, Jenn informed the 6 school that Harry had been missing a substantial number of school days due to 7 anxiety, depression, and panic attacks and requested accommodations and support; the 8 School approved some of the requested accommodations. (FAC ¶¶ 20–29.) 9 In June 2016, the Gerses signed a New Roads student enrollment contract 10 (“Enrollment Contract”) for the 2016–2017 school year, during which Harry would 11 matriculate as a sixteen-year-old tenth grader. (FAC ¶¶ 10, 30, 37.) The Gerses 12 prepaid tuition for the entire school year. (FAC ¶ 30.) Under the Enrollment 13 Contract, enrollment fees are nonrefundable, and the parents are obligated to pay 14 tuition “whether or not the student completes the school year, is withdrawn, absent, or 15 dismissed, for all or any portion of the school year.” (FAC ¶¶ 32–34.) The 16 Enrollment Contract states that the School reserves the right to dismiss the student 17 under certain circumstances, including when “the student has been unable to meet the 18 academic, social[,] or behavioral standards of the school.” (FAC ¶¶ 34–35.) 19 In August 2016, Glenn informed a School official of Harry’s ongoing anxiety 20 issues and treatment, and requested support from administrators and staff for Harry’s 21 disability-related needs. (FAC ¶ 38.) The School failed to provide the requested 22 accommodations. (FAC ¶ 39.) Between September and November 2016, both Jenn 23 and Glenn complained to administrators about the School’s failure to accommodate 24 Harry’s disabilities and requested emergency meetings to discuss support and 25 accommodations for Harry. (FAC ¶¶ 41–43.) The School was unresponsive. (FAC 26 ¶ 43.) On October 21 and November 7, 2016, Harry’s psychiatrist called the School’s 27 psychologist with proposed accommodations, including the temporary reduction of 28 Harry’s school days and course schedule. (FAC ¶¶ 44–45.) 1 On November 16, 2016, Jenn and Glenn met with School employees. (FAC 2 ¶¶ 46–47.) The School and its employees refused to engage in the interactive process 3 to discuss accommodations at this meeting; instead, the School’s representatives 4 informed Jenn and Glenn that Harry would be dismissed because he could not attend 5 as a full-time student. (FAC ¶¶ 48–49.) 6 In December 2016, Jenn and Glenn requested that the School refund tuition 7 because it had unjustly dismissed Harry due to his disabilities. (FAC ¶ 52.) The 8 School did not respond to the request. (FAC ¶ 52.) As a result of his dismissal, Harry 9 experienced emotional distress and the Gerses faced difficulties timely locating a 10 comparable school, which delayed the completion of Harry’s high-school education. 11 (FAC ¶¶ 53–55.) 12 The Gerses initiated this action on September 16, 2019. (See Compl., ECF 13 No. 1.) In the operative FAC, Harry brings the first claim for disability discrimination 14 in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 15 § 12182, and fourth claim for violation of the Unruh Civil Rights Act, California Civil 16 Code section 51(f). (FAC ¶¶ 56–71, 103–10.) Additionally, all three Gerses bring the 17 second claim for violation of the antiretaliation provision of Title V of the ADA, 42 18 U.S.C. § 12203; third claim for violation of the Rehabilitation Act, 29 U.S.C. § 794; 19 fifth claim for breach of contract; and sixth claim for unfair trade practices in violation 20 of California Business and Professions Code section 17200, et seq. (FAC ¶¶ 72–102, 21 111–25.) The School moves to dismiss, challenging the FAC on grounds including 22 standing, statute of limitations, and failure to state a claim. (See Mot.) 23 III. LEGAL STANDARD 24 A. Rule 12(b)(1) 25 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) provides for dismissal of a 26 complaint for lack of subject-matter jurisdiction. The Article III case or controversy 27 requirement limits a federal court’s subject-matter jurisdiction, which includes the 28 requirement that plaintiffs have standing to bring their claims. Chandler v. State 1 Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121–22 (9th Cir. 2010). Rule 12(b)(1) 2 jurisdictional attacks can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 3 (9th Cir. 2000). When a motion to dismiss attacks subject-matter jurisdiction on the 4 face of the complaint, the court assumes the factual allegations in the complaint are 5 true and draws all reasonable inferences in the plaintiff’s favor. Doe v. Holy See, 557 6 F.3d 1066, 1073 (9th Cir. 2009). Moreover, the standards set forth in Bell Atlantic 7 Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), 8 apply with equal force to Article III standing when it is being challenged on the face 9 of the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 10 2012). Thus, in terms of Article III standing, the complaint must allege “sufficient 11 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 12 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 13 B. Rule 12(b)(6) 14 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 15 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 16 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 17 survive a dismissal motion, a complaint need satisfy only the minimal notice pleading 18 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 19 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 20 raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. 21 The determination of whether a complaint satisfies this plausibility standard is a 22 “context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited 24 to the pleadings and must construe all “factual allegations set forth in the 25 complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City 26 of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly 27 accept conclusory allegations, unwarranted deductions of fact, and unreasonable 28 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1 Where a district court grants a motion to dismiss, it should generally provide 2 leave to amend unless it is clear the complaint could not be saved by any amendment. 3 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 4 1025, 1031 (9th Cir. 2008). 5 IV. DISCUSSION 6 The School moves to dismiss the FAC on the following grounds: (1) the Unruh 7 Act, ADA, and Rehabilitation Act claims are untimely; (2) Jenn and Glenn lack 8 standing to bring their ADA retaliation and Rehabilitation Act claims; (3) the Gerses 9 fail to state a contract claim; (4) the Gerses fail to state an unfair trade practices claim; 10 and (5) the Gerses’ claims for damages are deficient. (See Mot.) 11 A. Statute of Limitations 12 The events upon which the Unruh Act, ADA, and Rehabilitation Act claims are 13 based took place more than two but less than three years before the Gerses initiated 14 this action. (See FAC ¶¶ 40–52.) The School argues the claims are untimely because 15 they are subject to a two-year statute of limitations, but the Gerses contend three-year 16 limitations periods apply to these claims. (Mot. 15–18; Opp’n 4–11, ECF No. 26.) 17 The Court considers these arguments with respect to the Gerses’ claims in turn. 18 1. The Unruh Act Claim May Be Timely. 19 Harry claims the School violated the Unruh Act, California Civil Code section 20 51(f), which makes unlawful a violation of a right protected by the ADA. (FAC 21 ¶¶ 103–10.) Federal courts are divided on whether the applicable statute of limitations 22 for Unruh Act claims is two or three years, and there is no California Supreme Court 23 authority on point. See Kemp v. Regents of Univ. of Cal., No. C-09-4687 PJH, 2010 24 WL 2889224, at *6 (N.D. Cal. July 22, 2010) (discussing lack of consensus). 25 Regardless, the Court need not resolve the question because California law tolls 26 limitation periods for individuals under the age of majority. Cal. Civ. Proc. Code 27 § 352(a). Harry was sixteen years old at the time of the events giving rise to his 28 claims. (FAC ¶ 10.) Construing the factual allegations in the light most favorable to 1 Harry, if Harry was sixteen in December 2016, the date of the latest alleged act or 2 omission by the School, (see FAC ¶¶ 10, 52), then he could not have reached the age 3 of majority until at earliest December 2017—less than two years before this federal 4 action began. Assuming without deciding that the appropriate limitation period is two 5 years, Harry’s claim may be timely if he can prove the limitation period was tolled 6 until his eighteenth birthday. 7 Accordingly, the running of the statute of limitations is not “apparent from the 8 face of the complaint.” Seven Arts Filmed Entm’t Ltd. v. Content Media Corp. PLC, 9 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp., 10 623 F.2d 117, 119 (9th Cir. 1980)). Dismissal at this stage is not appropriate. Luong 11 v. E. Side Union High Sch. Dist., 265 F. Supp. 3d 1045, 1050 (N.D. Cal. 2017) 12 (declining to grant motion to dismiss in part because plaintiffs “may be able to prove 13 the statute of limitations was tolled during their minority”). 14 2. The ADA Title III Claim May Be Timely. 15 Harry claims the School violated Title III of the ADA, specifically 42 U.S.C. 16 § 12182, which prohibits disability discrimination in places of public accommodation. 17 (FAC ¶¶ 56–71.) 18 The ADA does not provide an express statute of limitations. Sharkey v. 19 O’Neal, 778 F.3d 767, 770 (9th Cir. 2015). Where Congress is silent on limitation 20 periods for federal claims, courts “borrow the statute of limitations applicable to the 21 most analogous state-law claim, so long as ‘it is not inconsistent with federal law or 22 policy to do so.’” Id. (quoting Wilson v. Garcia, 471 U.S. 261, 266–67 (1985)). 23 Federal courts likewise borrow state tolling rules. Alexopulos v. S.F. Unified Sch. 24 Dist., 817 F.2d 551, 555 (9th Cir. 1987). However, in California, it remains 25 unresolved whether the limitation period for claims under Title III of the ADA is two 26 or three years. See Estate of Stern v. Tuscan Retreat, Inc., 725 F. App’x 518, 526 (9th 27 Cir. 2018) (“We have not decided the limitations period for Title III claims, but the 28 only conceivable options are California’s two-year personal injury provision and its 1 three-year period for an action upon a liability created by statute.” (citing Cal. Civ. 2 Proc. Code §§ 335.1, 338(a)) (internal quotation marks omitted)). 3 As with the Unruh Act claim, the Court need not weigh in on this unsettled 4 issue. Even if Harry’s Title III claim were subject to a two-year limitation period, he 5 may establish that the limitation period was tolled until he reached the age of majority. 6 See Cal. Civ. Proc. Code § 352(a); Alexopulos, 817 F.2d at 555. Harry’s Title III 7 claim may be timely if the limitation period did not begin running until he reached the 8 age of majority sometime in or after December 2017. (See FAC ¶¶ 10, 52.) Dismissal 9 of this claim is therefore not appropriate. 10 3. The ADA Title V Claim May Be Timely. 11 The Gerses claim the School violated Title V of the ADA—specifically 42 12 U.S.C. § 12203(a)–(b), which prohibits retaliation against an individual who opposes 13 an act made unlawful by the ADA, as well as interference with an individual’s 14 exercise of ADA rights. (FAC ¶¶ 72–81.) For reasons already explained, Harry’s 15 Title V claim may be timely irrespective of whether the appropriate statute of 16 limitations is two or three years. However, the question remains whether Jenn and 17 Glenn’s Title V claims are timely, as they would not be similarly tolled. As with Title 18 III claims, the appropriate statute of limitations to borrow from California law for 19 Title V claims is unsettled. See Sharkey, 778 F.3d at 770. 20 The School, combining its discussion of the Gerses’ retaliation claim with its 21 discussion of the Title III claim, argues that the Court should adopt the two-year 22 limitation period from personal injury claims. (Mot. 15–17.) The School appears to 23 treat the Title V claim as an extension of the Title III claim. (See, e.g., Mot. 15 24 (describing the antiretaliation claim as a “claim[] for relief under Title III”); Reply 11 25 n.4, ECF No. 27 (construing the § 12203 claim as “based on Title III”).) But 26 “Congress did not intend every title of the ADA to have the same limitations period.” 27 Sharkey, 778 F.3d at 770. The School does not specifically discuss or provide 28 authority addressing the appropriate limitation period for retaliation claims under Title 1 V, nor does it explain why Title III and Title V claims should bear the same limitation 2 period. (See Mot. 15–17 (discussing Title III claims without identifying a state-law 3 analogue to § 12203).) 4 The Gerses urge the Court to adopt the California three-year limitation period 5 for actions upon a liability created by statute because the common law does not 6 provide protection from retaliation for exercising rights protected by the ADA. 7 (Opp’n 8 (citing City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 1158–61 8 (1998)).) The three-year limitation period should apply “where the liability is 9 embodied in a statutory provision and was of a type which did not exist at common 10 law.” Sharkey, 778 F.3d at 773 (quoting Brandenburg v. Eureka Redevelopment 11 Agency, 152 Cal. App. 4th 1350, 1359 (2007)); see also Gatto v. Cty. of Sonoma, 98 12 Cal. App. 4th 744, 759 (2002) (recognizing that the three-year statute of limitations 13 applies to ADA provisions that did not evolve from the common law). However, the 14 authority the Gerses cite to show that § 12203 did not evolve from the common law is 15 inapposite. See City of Moorpark, 18 Cal. 4th at 1158–61 (discussing common-law 16 claims for wrongful discharge based on disability discrimination). Indeed, no party 17 provides cogent authority or argument showing that California common law provides, 18 or does not provide, a liability of the type created by § 12203. (See Opp’n 8; Reply 9– 19 11 n.4.) 20 The arguments on this issue are underdeveloped or miss the mark. Absent 21 persuasive, relevant authority and argument, the Court declines to conclude that a 22 two-year statute of limitations should apply to this claim. Accordingly, for the limited 23 purpose of deciding this Motion, the Court will not dismiss the Title V claim on the 24 basis of untimeliness. 25 4. The Rehabilitation Act Claim Is Timely. 26 The Gerses claim the School violated the Rehabilitation Act, 29 U.S.C. 27 § 794(a), which prohibits disability discrimination in programs or activities receiving 28 federal financial assistance. (FAC ¶¶ 82–102.) For reasons discussed above, Harry’s 1 Rehabilitation Act claim may be timely irrespective of whether the appropriate statute 2 of limitations is two or three years, but the timeliness of Jenn and Glenn’s 3 Rehabilitation Act claims remains in dispute. 4 There is no express limitation period for Rehabilitation Act claims, so the Court 5 must borrow the period applicable to the most analogous state-law claim. Sharkey, 6 778 F.3d at 770. Some courts have applied a three-year statute of limitations to 7 Rehabilitation Act claims, reasoning that California Government Code section 11135 8 provides the most analogous California claim. See, e.g., Luong, 265 F. Supp. 3d at 9 1050; Ticer v. Young, No. 16-cv-02198-KAW, 2016 WL 4719272, at *5 (N.D. Cal. 10 Sept. 9, 2016); cf. Estate of Stern, 725 F. App’x at 521 (assuming without deciding 11 that a three-year limitations period applies to a Rehabilitation Act claim); Krushwitz v. 12 Univ. of Cal., 599 F. App’x 714, 715 (9th Cir. 2015) (same). 13 The School argues that the two-year statute of limitations for personal injury 14 claims should apply to the Rehabilitation Act claim. (Mot. 17–18.) However, the 15 Court agrees with the Gerses that Government Code section 11135, which carries a 16 three-year limitation period and closely mirrors the text of the Rehabilitation Act, is a 17 closer analogue.3 (Opp’n 8–10); see also Sharkey, 778 F.3d at 771 (suggesting that 18 courts should analyze “whether the forum state provides a state-law disability 19 discrimination claim to which a closer analogy might be had” before applying the 20 state’s personal injury limitation period). Accordingly, the Court borrows the 21 three-year statute of limitations applicable to Government Code section 11135. See 22 23 24

25 3 Compare Cal. Gov’t Code § 11135(a) (“No person in the State of California shall, on the basis of . . . disability . . . , be unlawfully denied full and equal access to the benefits of, or be unlawfully 26 subjected to discrimination under, any program or activity that . . . receives any financial assistance from the state.”), with 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability in the 27 United States . . . shall, solely by reason of her or his disability, be excluded from the participation 28 in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”). 1 Sharkey, 778 F.3d at 773.4 Given a three-year limitation period, the claim appears 2 timely on its face. Dismissal is not warranted. 3 B. Jenn and Glenn’s Standing to Bring Retaliation Claims 4 The School argues that Jenn and Glenn lack standing to bring retaliation claims 5 under the Rehabilitation Act and Title V of the ADA because they did not suffer 6 “individual retaliation.” (Mot. 18–20.) 7 To establish Article III standing, a plaintiff must demonstrate (1) “an injury in 8 fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that 9 is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 10 S. Ct. 1540, 1547 (2016). The injury-in-fact element requires a plaintiff to show “an 11 invasion of a legally protected interest” that is “concrete and particularized” and 12 “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 13 504 U.S. 555, 560 (1992) (internal quotation marks omitted). 14 The parties agree that nondisabled individuals may bring claims under the 15 Rehabilitation Act and Title V of the ADA for retaliation they experience in 16 advocating for the rights of disabled persons if they allege a concrete and particular 17 injury separate and distinct from the disabled persons’ injuries. (Mot. 19; 18 Opp’n 11–12; Reply 12–13); see also Barker v. Riverside Cty. Office of Educ., 584 19 F.3d 821, 824–28 (9th Cir. 2009) (discussing nondisabled person’s standing to bring 20 retaliation claims under Rehabilitation Act and Title II of the ADA). However, the 21 parties disagree as to whether the FAC sufficiently alleges that Jenn and Glenn 22 suffered such an injury. 23 24

25 4 The Court respectfully declines to follow the reasoning of the district court decisions the School cites. Neither court expressly analyzed whether Government Code section 11135 is the claim most 26 analogous to a Rehabilitation Act claim; both rest their reasoning on decisions predating Sharkey that assumed without deciding that the two-year personal injury limitation period applied. See C.C. 27 v. Rocklin Unified Sch. Dist., No. 2:17-cv-02645-MCE-AC, 2019 WL 803904, at *3–4 (E.D. Cal. 28 Feb. 21, 2019); Hartline v. Nat’l Univ., No. 2:14-cv-0635 KJM AC (PS), 2015 WL 4716491, at *5 (E.D. Cal. Aug. 7, 2015). 1 Construing the FAC in the light most favorable to the plaintiffs, Jenn and Glenn 2 adequately allege injury: as a result of their requests for accommodation of Harry’s 3 disabilities, they suffered “direct and indirect expenses incurred as a result of 4 HARRY’s dismissal” such as lost tuition, losses resulting from seeking alternative 5 schooling, and out-of-pocket costs for treatment. (FAC ¶¶ 52, 54–55.) The School’s 6 argument that Jenn and Glenn must have suffered “individual retaliation” appears to 7 assume that Harry’s dismissal categorically could not have invaded Jenn and Glenn’s 8 legally protected interests. (Mot. 19.) But “parents have a recognized legal interest in 9 the education and upbringing of their child.” Winkelman v. Parma City Sch. Dist., 550 10 U.S. 516, 529 (2007) (discussing parents’ standing to pursue claims under the 11 Individuals with Disabilities Education Act). 12 The allegations in the FAC, taken as true, identify legal interests of Jenn and 13 Glenn adversely impacted by the School’s retaliatory dismissal of their child. The 14 Court declines to dismiss Jenn and Glenn’s retaliation claims. 15 C. Breach of Contract Claim 16 The Gerses claim the School breached the Enrollment Contract by 17 discriminating against Harry on the basis of his disability, failing to provide an 18 effective education program for Harry after being put on notice of his disabilities, 19 failing to provide reasonable accommodations and modifications, and terminating the 20 Enrollment Contract without legitimate justification. (FAC ¶¶ 111–15.) The School 21 contends that the Gerses’ contract claim must be dismissed because they have not 22 identified a breach of any particular term of the Enrollment Contract. (Mot. 20–21.) 23 The Gerses respond that the School breached the Enrollment Contract because “no 24 term permitted” the School to unilaterally dismiss Harry. (Opp’n 15–16.) 25 To state a claim for breach of contract under California law, a plaintiff must 26 plead: (1) a contract; (2) plaintiff’s performance or excuse for nonperformance; 27 (3) defendant’s breach; and (4) resulting damages to plaintiff. Reichert v. Gen. Ins. 28 Co. of Am., 68 Cal. 2d 822, 830 (1968); Tribeca Cos., LLC v. First Am. Title Ins. Co., 1 239 Cal. App. 4th 1088, 1109 (2015). At the pleading stage, the allegations must 2 permit the court “generally to discern at least what material obligation of the contract 3 the defendant allegedly breached.” Langan v. United Servs. Auto Ass’n, 69 F. Supp. 4 3d 965, 979 (N.D. Cal. 2014). 5 The operative pleading belies the Gerses’ argument that the Enrollment 6 Contract did not permit the School to unilaterally dismiss Harry. According to the 7 FAC, the Enrollment Contract contained provisions contemplating a student’s 8 dismissal in the School’s sole discretion. (FAC ¶¶ 34–35.) In pertinent part, 9 according to the FAC, the Enrollment Contract gives the School the right to dismiss, 10 in its “sole discretion,” a student who “has been unable to meet the academic, social or 11 behavioral standards of the school based upon the administration’s exclusive 12 interpretation of such standards.” (FAC ¶ 35.) In any event, the Gerses allege only 13 the School’s rights under the Enrollment Contract. (See FAC ¶¶ 30–36.) They fail to 14 identify the School’s obligations, let alone any express or implied obligation under the 15 Enrollment Contract that the School breached by dismissing Harry. As the Court 16 cannot “discern . . . what material obligation of the contract the [School] allegedly 17 breached,” this claim must fail. Langan, 69 F. Supp. 3d at 979–80 (emphasis added). 18 The Enrollment Contract has not been presented here, so the Court cannot 19 determine whether amendment would be futile. Accordingly, the breach of contract 20 claim is dismissed with leave to amend. 21 D. Unfair Trade Practices Claim 22 Plaintiffs claim the School engaged in unfair business practices by 23 discriminating against Harry on the basis of his disability, unilaterally dismissing him 24 in response to his request for modification of the School’s policies, failing to refund 25 tuition, and having the Gerses make an uninformed decision to enter a one-sided 26 agreement. (FAC ¶¶ 116–25.) 27 California’s unfair competition law prohibits “any unlawful, unfair or 28 fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. “By 1 proscribing any unlawful business practice, section 17200 borrows violations of other 2 laws and treats them as unlawful practices that the unfair competition law makes 3 independently actionable.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4 4th 163, 180 (1999) (citation and internal quotation marks omitted). An unfair 5 business practices claim may be brought “by a person who has suffered injury in fact 6 and has lost money or property as a result of the unfair competition.” Cal. Bus. & 7 Prof. Code § 17204; see Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 320–25 8 (2011) (discussing economic injury requirement). 9 The School argues the Gerses fail to state an economic injury resulting from the 10 alleged unfair practices. (Mot. 21.) Construing the facts liberally, the Gerses have 11 pleaded economic injury in the form of lost tuition and costs associated with finding 12 alternative schooling for Harry. (See FAC ¶¶ 55, 125.) The School also argues the 13 claim is derivative of the Gerses’ disability discrimination and retaliation claims. 14 (Mot. 21.) Even if true, the School does not explain why this warrants dismissal; after 15 all, section 17200 is designed to borrow violations of other laws. Cel-Tech, 20 Cal. 16 4th at 180; see also Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1361 (2010) 17 (“Virtually any law—federal, state or local—can serve as a predicate for an action 18 under Business and Professions Code section 17200.”). 19 Finally, the School contends California Civil Code section 1670.5, which 20 describes the contract defense of unconscionability, may not undergird this claim. 21 (Mot. 21–22; see also FAC ¶ 118 (citing Cal. Civ. Code § 1670.5).) The School fails 22 to provide authority showing that unconscionability cannot support a section 17200 23 claim; the sole decision the School cites in support of its argument assumed without 24 deciding that unconscionability could support such a claim. (See Mot. 22 (citing 25 Jones v. Wells Fargo Bank, 112 Cal. App. 4th 1527, 1540 (2003).) The Court declines 26 to dismiss the claim on this basis. Pinel v. Aurora Loan Servs., LLC, 814 F. Supp. 2d 27 930, 938 (N.D. Cal. 2011). 28 For these reasons, the Court declines to dismiss the unfair trade practices claim. 1 E. Requested Relief 2 The School argues that the Gerses have not adequately pleaded their special 3 damages and are not entitled to some categories of relief they demand. (Mot. 22–24.) 4 1. The Parties Agree Special Damages Are Insufficiently Pleaded. 5 In their prayer for relief, the Gerses request special damages under their 6 Rehabilitation Act, Unruh Act, contract, and unfair trade practices claims. (FAC, 7 Prayer for Relief ¶¶ 2–5.) 8 Under federal pleading requirements, “[i]f an item of special damage is 9 claimed, it must be specifically stated.” Fed. R. Civ. P. 9(g). Under this rule, a “bare 10 allegation of the amount of pecuniary loss” is insufficient. Isuzu Motors Ltd. v. 11 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1047 (C.D. Cal. 1998). The rule 12 is designed to “inform defending parties as to the nature of the damages claimed in 13 order to avoid surprise; and to inform the court of the substance of the complaint.” 14 Great Am. Indem. Co. v. Brown, 307 F.2d 306, 308 (5th Cir. 1962). 15 The School argues that the Gerses have not sufficiently specified the nature of 16 their special damages. (Mot. 22–23.) The Gerses concede that “the Second through 17 Sixth Claims of relief could be pleaded with more specificity to re-allege special 18 damages.” (Opp’n 20.) Indeed, the Gerses only cursorily identify categories of 19 expenses they incurred, including “tuition, . . . ensuing losses resulting from seeking 20 out alternative schooling, [and] out of pocket costs for treatment.” (FAC ¶ 55.) 21 Although the Gerses need not “allege a specific dollar amount,” the FAC’s allegations 22 are not enough to satisfy the heightened pleading requirements of Rule 9(g). Isuzu 23 Motors, 12 F. Supp. 2d at 1047. Accordingly, the Court dismisses the Gerses’ claims 24 for special damages with leave to amend. 25 2. Rule 12(b)(6) Is Not the Proper Vehicle for the School’s Other Damages 26 Arguments. 27 The School also contends general and special damages are not recoverable for 28 the Rehabilitation Act and unfair trade practices claims. (Mot. 22–24.) 1 A demand for an improper remedy is not a proper basis for a Rule 12(b)(6) 2 motion. Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat’l Forest, 304 F. Supp. 3d 916, 3 955 n.28 (E.D. Cal. 2018) (“Courts do not grant motions under Rule 12(b)(6) ‘merely 4 because a plaintiff requests a remedy to which he or she is not entitled.’” (quoting 5 Massey v. Banning Unified Sch. Dist., 256 F. Supp. 2d 1090, 1092 (C.D. Cal. 2003))). 6 “It need not appear that plaintiff can obtain the specific relief demanded as long as the 7 court can ascertain from the face of the complaint that some relief can be granted.” 8 Massey, 256 F. Supp. 2d at 1092 (quoting Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 9 1104 (D.C. Cir. 1985)). 10 The Court acknowledges that “[t]he issue of whether monetary damages are 11 available for retaliation claims under the Rehabilitation Act has not been decided by 12 this Circuit.” Lee v. Natomas Unified Sch. Dist., 93 F. Supp. 3d 1160, 1170 (E.D. Cal. 13 2015). However, even if the remedies requested are improper, the FAC still sets forth 14 forms of relief available to the Gerses for these claims. (See FAC, Prayer for Relief 15 ¶¶ 2, 5 (requesting equitable relief for the Rehabilitation Act claim and restitution for 16 the unfair trade practices claim).) As such, dismissal under Rule 12(b)(6) is 17 inappropriate.5 18 19 20 21 22 23 24 25 26

5 The Court also declines to examine the School’s arguments under the lens of Rule 12(f). See 27 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974–75 (9th Cir. 2010) (“Rule 12(f) does not 28 authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law.”). 1 V. CONCLUSION 2 For the reasons discussed above, the Court orders as follows: 3 1. Plaintiffs’ fifth claim for breach of contract is DISMISSED with leave to 4 amend. 5 2. Plaintiffs’ special damages allegations for the Rehabilitation Act, Unruh 6 Act, contract, and unfair trade practices claims are DISMISSED with leave to amend. 7 3. The Motion to Dismiss is DENIED in all other respects. 8 4. Plaintiffs may file a Second Amended Complaint within fourteen (14) 9 days of this Order curing the deficiencies identified in this Order. If Plaintiffs do not 10 file a Second Amended Complaint in that period, Defendant shall file an Answer to 11 Plaintiffs’ First Amended Complaint within twenty-one (21) days of this Order. 12 13 IT IS SO ORDERED. 14 15 August 7, 2020 16 17 ____________________________________

OTIS D. WRIGHT, II

18

UNITED STATES DISTRICT JUDGE

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