Cristina Aguirre v. California School of Court Reporters (Cscr) - Riverside

NOTICE OF MOTION AND MOTION to Dismiss Case Plaintiff's First Amended Complaint

C.D. Cal.August 29, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS 5:16-CV-1042 GHK-GJS Keith Zakarin (SBN 126528) Bryce Young (SBN 274960) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: 619 744 2200 Facsimile: 619 744 2201 E-mail: kzakarin@duanemorris.com byoung@duanemorris.com Attorneys for Defendant CALIFORNIA SCHOOL OF COURT REPORTING -RIVERSIDE dba SAGE COLLEGE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CRISTINA AGUIRRE, an individual, Plaintiff, v. CALIFORNIA SCHOOL OF COURT REPORTING (CSCR)-RIVERSIDE, dba SAGE COLLEGE, a California corporation, and DOES 1 through 10, Defendant. Case No.: 5:16-cv-01042-GHK-GJS NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Date: September 26, 2016 Time: 9:30 a.m. Crtm: 650 Judge: Hon. George H. King TO PLAINTIFF BY AND THROUGH HER ATTORNEYS OF RECORD PLEASE TAKE NOTICE that Defendant California School of Court Reporting (CSCR)-Riverside, d/b/a Sage College (“the College”), by and through its undersigned counsel, respectfully moves this Court to dismiss with prejudice all counts in Plaintiff Cristina Aguirre’s (“Ms. Aguirre”) First Amended Complaint [dkt. 15] for failing to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). The College’s Motion to Dismiss is based upon this Notice of Motion to Dismiss, Ms. Aguirre’s Complaint and exhibits attached thereto, the Memorandum of Points and Authorities in Support of the College’s Motion to Dismiss, and the papers and exhibits filed herein. Case 5:16-cv-01042-GHK-GJS Document 16 Filed 08/29/16 Page 1 of 2 Page ID #:72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF MOTION AND MOTION TO DISMISS 5:16-CV-1042 GHK-GJS This motion is made following the conference of counsel pursuant to L.R. 7-3 and this Court’s Standing Order § 7 [dkt. 9] which took place on August 17, 2016. Dated: August 29, 2016 DUANE MORRIS LLP By: /s/ Bryce Young Keith Zakarin Bryce Young Attorneys for Defendant CALIFORNIA SCHOOL OF COURT REPORTING-RIVERSIDE dba SAGE COLLEGE Case 5:16-cv-01042-GHK-GJS Document 16 Filed 08/29/16 Page 2 of 2 Page ID #:73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) Keith Zakarin (SBN 126528) Bryce Young (SBN 274960) DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101-4681 Telephone: 619 744 2200 Facsimile: 619 744 2201 E-mail: kzakarin@duanemorris.com byoung@duanemorris.com Attorneys for Defendant CALIFORNIA SCHOOL OF COURT REPORTING-RIVERSIDE dba SAGE COLLEGE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CRISTINA AGUIRRE, an individual, Plaintiff, v. CALIFORNIA SCHOOL OF COURT REPORTING (CSCR)-RIVERSIDE, dba SAGE COLLEGE, a California corporation, and DOES 1 through 10, Defendant. Case No.: 5:16-cv-01042-GHK-GJS MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Date: September 26, 2016 Time: 9:30 a.m. Crtrm: 650 Judge: Hon. George H. King Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 1 of 17 Page ID #:74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 i MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 FACTUAL BACKGROUND .................................................................................... 2 LEGAL STANDARD ................................................................................................ 2 ARGUMENT ............................................................................................................. 4 I. All of Ms. Aguirre’s Claims Fail Based on her ADA Claim ................ 4 II. The College Did Not Violate the ADA ................................................. 4 a. Ms. Aguirre Was Not Excluded From a Benefit Because the College Did Not Have a Duty to Accept DOR Funds ................ 5 b. The College Did Not Discriminate Against Ms. Aguirre On the Basis of Her Disability ................................................................ 7 i. Ms. Aguirre Never Requested an Accommodation ......... 7 ii. Ms. Aguirre’s Allegations Make Clear that the College’s Alleged Decision to Not Participate in the DOR’s Voluntary Program Had No Relation to Her Interest in Attending the College...................................... 8 iii. The College Never Knew Ms. Aguirre Allegedly Needed DOR Funding to Attend the College’s Program. ........................................................................... 9 c. Ms. Aguirre’s Failure to Apply for Enrollment Precludes Standing ................................................................................................... 10 d. Ms. Aguirre Does Not Plausibly Allege She Was Otherwise Qualified to Attend the College ................................................ 10 e. Ms. Aguirre Was the Sole Cause of Her Alleged Harm ........... 11 CONCLUSION ........................................................................................................ 11 Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 2 of 17 Page ID #:75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 ii MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) TABLE OF AUTHORITIES Page(s) Federal Cases Ariz. ex rel. Goddard v. Harkins Amusement Enters. 603 F.3d 666 (9th Cir. 2010) ..................................................................................... 8 Ashcroft v. Iqbal 556 U.S. 662 (2009)................................................................................................... 3 Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007)................................................................................................... 3 Calisesi ex rel. U.S. v. Hot Chalk, Inc. No. CV-13-01150, 2015 WL 1966463 (D. Ariz. May 1, 2015) ................................ 3 Dudley v. Hannaford Bros. Co. 333 F.3d 299 (1st Cir. 2003) ...................................................................................... 8 Earll v. eBay, Inc. No. 5:11-cv-262, 2011 WL 3955485 (N.D. Cal. Sept. 7, 2011) ............................... 4 Kaltenberger v. Ohio College of Podiatric Med. 162 F.3d 432 (6th Cir. 1998) ..................................................................................... 4 Madsen v. Boise State Univ. 976 F.2d 1219 (9th Cir. 1992) ................................................................................. 10 Marder v. Lopez 450 F.3d 445 (9th Cir. 2006) ..................................................................................... 6 Mershon v. St. Louis Univ. 442 F.3d 1069 (8th Cir. 2006) ................................................................................... 4 Molski v. M.J. Cable, Inc. 481 F.3d 724 (9th Cir. 2007) ..................................................................................... 4 Redding v. Nova Se. Univ., Inc. ___F. Supp. 3d ___, 2016 WL 759325 (S.D. Fla. Feb. 26, 2016) .......................... 10 Shaywitz v. Am. Bd. of Psych. Neurology 848 F. Supp. 2d 460 (S.D.N.Y. 2012) ....................................................................... 8 Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 3 of 17 Page ID #:76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 iii MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) Steer v. George Washington Univ. 3688 F. Supp. 2d 52 (D.D.C. 2005) ........................................................................ 8-9 U.S. ex rel. McGrath v. Microsemi Corp. 140 F. Supp. 3d 885 (D. Ariz. 2015) ......................................................................... 6 U.S. v. Ritchie 342 F.3d 903 (9th Cir. 2003) ..................................................................................... 6 U.S. v. Sequel Contractors, Inc. 402 F. Supp. 2d 1142 (C.D. Cal. 2005) ..................................................................... 4 United States of America, ex rel., Lee v. Corinthian Colleges 655 F.3d 984 (9th Cir. 2011) ............................................................................ 2-3, 11 United States v. Center for Emp’t Training No. 2:13-cv-01697, 2016 WL 421052 (E.D. Cal. Aug. 9, 2016) .............................. 6 Wong v. Regents of Univ. of Ca. 192 F.3d 807 (9th Cir. 1999) ........................................................................... 4, 8, 10 Zukle v. Regents of the Univ. of Cal. 166 F.3d 1041 (9th Cir. 1999) ................................................................................... 8 Federal Statutes 28 U.S.C. § 1367 ............................................................................................................. 4 42 U.S.C. § 12182 ..................................................................................................... 8, 11 State Statutes Cal. Civ. Code § 51 ......................................................................................................... 4 Cal. Code Regs. tit. 9 § 7330-32 .................................................................................... 6 Rules Fed. R. Civ. P. 1 .............................................................................................................. 4 Fed. R. Civ. P. 12(b)(6) .......................................................................................... 1, 3, 6 Fed. R. Evid. 201(b)(2) ................................................................................................... 6 Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 4 of 17 Page ID #:77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 iv MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) Non-Periodical Publications DEPARTMENT OF REHABILITATION,CRP CERTIFICATION AND VENDORIZATION HANDBOOK: GUIDE TO CERTIFICATION AND VENDORIZATION p. 3-4 (March 1, 2009), available for download at http://www.dor.ca.gov/VRED/Requirements-4-Becoming-Service- Provider.html ............................................................................................................. 6 DEPARTMENT OF REHABILITATION, REQUIREMENTS FOR BECOMING A SERVICE PROVIDER, available at http://www.dor.ca.gov/VRED/Requirements-4-Becoming-Service- Provider.html (2014) ................................................................................................. 6 Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 5 of 17 Page ID #:78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 1 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) Defendant California School of Court Reporting (CSCR)-Riverside, d/b/a Sage College (“the College”), by and through its undersigned counsel, respectfully moves this Court to dismiss Plaintiff Cristina Aguirre’s (“Ms. Aguirre”) First Amended Complaint (“FAC”) [dkt. 15] for failing to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). INTRODUCTION In the FAC, Ms. Aguirre asserts that the College discriminated against her by allegedly1 choosing to be placed on the inactive list of (and thereby not participate in) a California Department of Rehabilitation (“DOR”) voluntary program that provides monetary assistance to help people with disabilities offset the cost of attending postsecondary academic institutions. All of Ms. Aguirre’s claims stem from her sole theory that the College’s decision to not participate in the DOR’s voluntary program was discriminatory and gave her standing to bring a personal claim, because it allegedly resulted in her not being able to “enroll in Defendant’s program without taking on debt in the form of a loan.” (FAC ¶ 12.) This theory necessarily fails because the College never had a duty to accept DOR funds. Ms. Aguirre did not have a right to receive DOR funds if she wanted to attend the College. Ms. Aguirre’s “right” was to use the DOR funds at participating schools. The College’s alleged decision to not participate in the DOR program- regardless of the motives attributed to it by a third party-cannot now be used to bootstrap liability for disability discrimination where no duty/right/benefit ever existed in the first place. Such an outcome turns the DOR’s regulations and procedures on their head, and would impose liability on all non-participating schools. Such a result is untenable and contrary to law. Even assuming liability could be imposed for not accepting DOR funds, Ms. 1 The College disputes that it requested to be placed on DOR’s inactive list, and maintains that DOR’s decision to place the College on the inactive list was erroneous. However, even assuming Ms. Aguirre’s pleadings as true, she still fails to state a claim for which relief can be granted. Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 6 of 17 Page ID #:79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 2 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) Aguirre also makes several concessions in the FCA that preclude the College’s liability under the ADA: 1) she admits that the College never knew the nature of her disability, 2) she admits that she never requested an accommodation, 3) she admits the College did not know she would choose to not attend if it did not participate in the DOR voluntary program, and 4) her supporting evidence unequivocally states that the College’s alleged decision to be on the DOR’s inactive list was made independently of Ms. Aguirre’s interest in the College. Thus, the College could not have discriminated against Ms. Aguirre as an individual, much less as a result of her disability. Nor did the College ever deny Ms. Aguirre any benefits. It did not deny her enrollment, it did not deny her an accommodation, and it did not deny her assistance in finding financial aid. It was Ms. Aguirre’s unilateral decision to not complete the enrollment process that denied her enrollment. Because Ms. Aguirre’s FAC does not and cannot be amended to state a claim upon which relief can be granted, the College respectfully requests that this Court grant its motion to dismiss with prejudice her Amended Complaint. FACTUAL BACKGROUND Ms. Aguirre filed her first complaint on May 20, 2016. [dkt. 1.] On or around July 15, 2016, the College conferred with Ms. Aguirre about the deficiencies in her complaint and that the College would be forced to file a motion to dismiss for failing to state a claim upon which relief could be granted. [see dkt. 13.] On August 10, 2016, the parties filed a joint stipulation permitting Ms. Aguirre to file the FAC. (Id.) Pursuant to this Court’s Order granting the joint stipulation, Ms. Aguirre filed the FAC on August 15, 2016. [dkt. 14, 15.] The parties conferred about the deficiencies contained in the FAC on August 17, 2016. LEGAL STANDARD Relying on Supreme Court precedent, the Ninth Circuit has adopted a two- pronged approach for evaluating the sufficiency of a complaint on a motion to dismiss. United States of America, ex rel., Lee v. Corinthian Colleges, 655 F.3d 984, Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 7 of 17 Page ID #:80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 3 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) 991 (9th Cir. 2011). First, a court must determine whether the complaint contains “sufficient factual matter” that taken as true, states “‘a claim for relief that is plausible on its face.’” Id.; Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). Only pleaded facts, as opposed to legal conclusions, are entitled to the assumption of truth. Corinthian, 655 F.3d at 991. The Ninth Circuit and the Supreme Court have made clear that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A plaintiff cannot survive a Rule 12(b)(6) motion by relying on “labels and conclusions,” “naked assertions” or “unadorned, the defendant-unlawfully-harmed-me accusations” in the complaint. Iqbal, 556 U.S. at 678. “Dismissal under Rule 12(b)(6) can be based on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Calisesi ex rel. U.S. v. Hot Chalk, Inc., No. CV-13-01150, 2015 WL 1966463, at *2 (D. Ariz. May 1, 2015) (quoting Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990)). The FAC suffers from both a lack of a cognizable legal theory and insufficient facts. Second, to the extent the complaint contains well-pled factual allegations, as opposed to mere conclusions, the court must assume their veracity and then “determine whether they plausibly give rise to an entitlement to relief.” Corinthian, 655 F.3d at 991 (quoting Iqbal, 556 U.S. at 678). In Iqbal, the Supreme Court concluded that “a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 556 U.S. at 678. The plausibility standard “is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. If the complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement to relief,” thereby mandating dismissal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 8 of 17 Page ID #:81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 4 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) ARGUMENT I. All of Ms. Aguirre’s Claims Fail Based on her ADA Claim Ms. Aguirre seeks to impose liability on the College for not participating in the DOR’s voluntary program via four claims: 1) discrimination pursuant to Title III of the Americans with Disabilities Act (“ADA”), 2) discrimination pursuant to the Unruh Civil Rights Act (based on the ADA violation); 3) negligence (based on the ADA violation); and 4) intentional infliction of emotional distress (based on the ADA violation). (FAC ¶¶ 25-35, 38, 45, 49.) Because Counts 2-4 of the FAC require a precursor finding that the College violated the ADA, this Court’s dismissal of Ms. Aguirre’s ADA claim will be dispositive of her other remaining claims.2 II. The College Did Not Violate the ADA To plead a viable violation of Title III of the Americans with Disabilities Act (“ADA”), Ms. Aguirre must show that “(1) that she has a disability; (2) that she is otherwise qualified for the benefit in question; and (3) that she was excluded from the benefit due to discrimination because of the disability.” Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); see also Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006); Wong v. Regents of Univ. of Ca., 192 F.3d 807, 822-23 (9th Cir. 1999). Similarly, “California’s Unruh Civil Rights Act operates virtually identically to the ADA,” and provides that a violation of the ADA is also a violation of the Unruh Civil Rights Act. Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007); accord Cal. Civ. Code §51(f).3 Finally, Ms. Aguirre’s 2 For judicial economy, this Court should apply its supplemental jurisdiction over Ms. Aguirre’s state law claims even if it dismisses her federal ADA claim because all of the claims “form part of the same case or controversy” and are “derive[d] from a common nucleus of operative fact.” U.S. v. Sequel Contractors, Inc., 402 F. Supp. 2d 1142, 1147 (C.D. Cal. 2005); accord 28 U.S.C. § 1367(c)(3); Fed. R. Civ. P. 1. 3 Ms. Aguirre’s pleadings are unclear as to whether she is seeking to impose liability under the Unruh Civil Rights Act that is independent from the ADA (FAC ¶¶ 38, 41). To the extent she is, Ms. Aguirre can only maintain such an independent violation by “plead[ing] ‘intentional discrimination in public accommodations in violation of the terms of the [Unruh Civil Rights Act].’” Earll v. eBay, Inc., No. 5:11-cv-262, 2011 WL 3955485, at *3 (N.D. Cal. Sept. 7, 2011) (quoting Munson v. Del Taco,Inc. 208 P.3d 623, 668 (Cal. 2009)). Ms. Aguirre’s pleadings fail to show such intentionality. Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 9 of 17 Page ID #:82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 5 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) claims relating to negligence and intentional infliction of emotional distress all require findings that the College 1) owed a duty to Ms. Aguirre to accept funds from the DOR and 2) that the College’s failure to do so was a violation of the ADA and/or Unruh Civil Rights Act. (See FAC ¶¶ 45, 49 (alleging duty of care owed to Ms. Aguirre was to follow ADA and Unruh Civil Rights Act); accord Prayer for Relief (prayer for relief only from conduct based on alleged violations of the ADA and Unruh Civil Rights Act).) Ms. Aguirre’s premise that her inability to receive DOR funds at the College is discriminatory fails as a matter of law for several reasons. First, the College had no duty to participate in the DOR’s voluntary program, and so its decision to not participate cannot be grounds for discrimination. Second, the College never knew the nature of Ms. Aguirre’s disability nor about any need for an accommodation during the alleged discriminatory conduct. Third, Ms. Aguirre’s pleadings establish that the College’s alleged decision to be placed on the inactive list had nothing to do with Ms. Aguirre because its conversation with DOR took place without “mention[ing] [Ms. Aguirre’s] name.” (FAC Ex. 1.) Fourth, the College did not know that its alleged decision to be on the DOR’s inactive list would preclude Ms. Aguirre from attending the College. Fifth, Ms. Aguirre does not have standing to challenge the College’s admissions policies and practices because she never applied to the College. Finally, Ms. Aguirre’s decision to not complete the enrollment process (even assuming she initially applied) was the cause of any alleged harm-the College did not deny any accommodation requests nor did it deny her enrollment. Because each of these reasons is independently sufficient to warrant dismissal of Ms. Aguirre’s lawsuit, each will be addressed in turn. a. Ms. Aguirre Was Not Excluded From a Benefit Because the College Did Not Have a Duty to Accept DOR Funds As a matter of law, the College did not discriminate against Ms. Aguirre because the College does not have a duty to be on the DOR’s voluntary vendor list. As such, the Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 10 of 17 Page ID #:83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 6 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) College’s decision to no longer participate in the DOR’s voluntary program is insufficient as a matter of law to impose liability upon it. A university’s decision to participate in the DOR’s program, and thus be eligible to receive DOR funds, is completely voluntary and at the discretion of the university. See Cal. Code Regs. tit. 9 § 7330-32.4 A university wishing to be eligible to be on DOR’s vendor list must “contact their local assigned [DOR representative] to discuss their interest in developing or providing services for DOR clients.” [VENDOR REQUIREMENTS]. After that meeting, and only if the DOR representative deems appropriate, the university must then complete, sign, and return an application to be eligible to be on the DOR vendor list. Id. Only after completing this process and being approved by the DOR may a university be placed on the approved vendor list and be eligible to receive funds from DOR. Id. Based on this process, the DOR cannot force institutions to be on its vendor list, nor is there a duty for a university to be on the DOR vendor list. Id. 4 See also DOR, REQUIREMENTS FOR BECOMING A SERVICE PROVIDER, available at http://www.dor.ca.gov/VRED/Requirements-4-Becoming-Service-Provider.html (last accessed Aug. 26. 2016); DOR, CRP CERTIFICATION AND VENDORIZATION HANDBOOK: GUIDE TO CERTIFICATION AND VENDORIZATION p. 3-4 (March 1, 2009), available for download at http://www.dor.ca.gov/VRED/Requirements-4-Becoming- Service-Provider.html (last accessed Aug. 26, 2016) [hereinafter “VENDOR REQUIREMENTS”]. This Court may take judicial notice of this document pursuant to Fed. R. Evid. 201(b)(2) because the DOR is the agency charged with administering the voluntary program and the inactive list, and thus its published guidance on how institutions can comply with its requirements constitutes a judicially noticeable document whose truthfulness “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see also United States v. Center for Emp’t Training, No. 2:13-cv-01697, 2016 WL 421052 at *1 (E.D. Cal. Aug. 9, 2016) (“[T]he content of government agency websites is a proper subject of judicial notice.”). Moreover, this court may take judicial notice of this document without converting the motion into a motion for summary judgment. See, e.g., U.S. ex rel. McGrath v. Microsemi Corp., 140 F. Supp. 3d 885, 890 n.2 (D. Ariz. 2015) (citing U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)). In any event, Ms. Aguirre incorporated by reference the DOR’s requirements for becoming a service provider into the FAC by arguing the College’s decision to be on the inactive list was discriminatory, and thus the requirements of the voluntary program “forms the basis of the plaintiffs’ claim.” Ritchie, 342 F.3d at 908. Accordingly, this Court may “treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 11 of 17 Page ID #:84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 7 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) Accordingly, the College is within its rights to not participate if it so chooses, and may do so for whatever reason it wishes. The program is voluntary. The College does not owe a duty to potential applicants to remain on the DOR vendor list. To hold otherwise-namely, that a college discriminates against a person with a disability by choosing to not be on the vendor list-would impose liability on all non-participating colleges, regardless of whether they had ever been on the list. Such a result is untenable and contrary to law. Because the College has no duty as a matter of law to be on the DOR vendor list, Ms. Aguirre’s claims that the College discriminated against her by allegedly choosing to be placed on the DOR’s inactive vendor list, (see, e.g., FAC ¶¶ 18, 20, 25-52), fail to state a claim upon which relief can be granted as a matter of law under the ADA, Unruh Civil Rights Act, and common law torts claims. b. The College Did Not Discriminate Against Ms. Aguirre On the Basis of Her Disability Ms. Aguirre’s pleadings fail to allege sufficient facts to establish that the College discriminated against Ms. Aguirre on the basis of her disability. Ms. Aguirre’s allegations establish that she never requested-and thus was not denied-a reasonable accommodation. Moreover, Ms. Aguirre’s allegations establish that the College’s alleged decision to not participate in the DOR funding was made without reference to Ms. Aguirre. Finally, Ms. Aguirre cannot allege that the College knew she would not attend the College without DOR’s funding. Each will be addressed in turn. i. Ms. Aguirre Never Requested an Accommodation The College did not discriminate against Ms. Aguirre on the basis of her disability because Ms. Aguirre does not-and cannot-allege that the College knew the nature of her disability nor that she requested any modification of its policies or procedures at any time during her interest in the College. (See FAC ¶¶ 10-15; see also Complaint ¶ 16.) As a matter of law, the College could not have discriminated against her on the Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 12 of 17 Page ID #:85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 8 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) basis of her disability when Ms. Aguirre admits that she never informed the College about the nature of her disability nor did she request an accommodation. Id; See 42 U.S.C. § 12182(a) (only prohibiting discrimination “on the basis of a disability”); 42 U.S.C. §12182(b)(1)(A)(ii) (same); see also, e.g., Dudley v. Hannaford Bros. Co., 333 F.3d 299, 309 (1st Cir. 2003) (“The operative provision [of Title III of the ADA], 42 U.S.C. § 12182(b)(2)(A)(ii), requires a person with a disability to request a reasonable and necessary accommodation, thereby informing the operator in a public accommodation about the disability.”); Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010) (Title III requires showing plaintiff was discriminated against “because of her disability); Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 816 (9th Cir. 1999); (student has burden to inform school of need for accommodation); Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1047 (9th Cir. 1999) (similar); Shaywitz v. Am. Bd. of Psych. Neurology, 848 F. Supp. 2d 460, 466- 67 (S.D.N.Y. 2012) (“[N]otice of the alleged disability . . . is an assumed prerequisite [of Title III of the ADA]. . . . Reason dictates that in order for a defendant to be liable for discrimination “on the basis of disability,” 42 U.S.C. § 12182(a), the defendant must have had adequate knowledge of the plaintiff's disability.”); Steer v. George Washington Univ., 3688 F. Supp. 2d 52, 56 (D.D.C. 2005) (similar).5 ii. Ms. Aguirre’s Allegations Make Clear that the College’s Alleged Decision to Not Participate in the DOR’s Voluntary Program Had No Relation to Her Interest in Attending the College Ms. Aguirre’s own evidence establishes that the College’s alleged decision to be on the DOR’s inactive list had nothing to do with Ms. Aguirre’s interest in the College. Ms. Aguirre relies exclusively on Exhibit A to the FAC to try to establish any discriminatory animus toward her. However, Exhibit A establishes just the opposite. 5 Moreover, the College’s lack of knowledge of Ms. Aguirre’s disability necessarily negates any allegations of intentional misconduct required by the Unruh Civil Rights Act or Ms. Aguirre’s claim for intentional infliction of emotional distress. Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 13 of 17 Page ID #:86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 9 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) The DOR’s e-mail to Ms. Aguirre states that the DOR “didn’t mention [Ms. Aguirre’s] name” at any time during its alleged discussion with the College. Accordingly, the College’s alleged decision to be placed on the DOR’s inactive vendor list could not have been directed toward her in any way. The College did not discriminate against Ms. Aguirre at all because it had no knowledge that the DOR was contacting it about her attending the College.6 Even as alleged, its decision regarding the DOR vendor list was not “based on” Ms. Aguirre’s disability-it wasn’t even based on Ms. Aguirre.7 iii. The College Never Knew Ms. Aguirre Allegedly Needed DOR Funding to Attend the College’s Program. Ms. Aguirre never informed the College that she could not attend the College but for the assistance from DOR. (See FAC ¶¶ 12-16.) At most, Ms. Aguirre alleges that the College knew she was asking DOR to assist with the tuition payments. (Id.) Such pleadings are insufficient to allege that the College knew its alleged decision to go on the DOR’s inactive vendor list would preclude Ms. Aguirre’s “full and equal enjoyment” of its program. This is particularly true given that many students attend the College by taking out loans or procuring other forms of assistance, and the College spoke with Ms. Aguirre about the possibility of obtaining financial aid. (FAC ¶ 11.) Thus, Ms. Aguirre has failed to establish any causation between the College’s alleged conduct and any discriminatory effect it had on Ms. Aguirre. 6 Tellingly, Ms. Aguirre does not allege personally experiencing any discriminatory animus from the College. (See FAC ¶ 18, Ex. A.) Rather, her entire lawsuit is premised upon a third-party’s e-mail describing an alleged conversation with the College’ representative about the College’s desire to be on the vendor list generally (in no relation to Ms. Aguirre), that was then forwarded to the third-party’s supervisor who then forwarded it to Ms. Aguirre so she could consider attending a different school on the approved vendor list. This third-party’s statement as to why the College allegedly chose to be on the inactive list is the sole basis for this lawsuit, and is woefully insufficient to support the claims alleged. 7 Ms. Aguirre does not allege that she could not obtain other forms of financial aid or loans. Instead, she admits that such forms may have been obtainable but that she needed the DOR funding so she could “enroll in Defendant’s program without taking on debt in the form of a loan.” (FAC ¶ 12.) There is no right to a debt-free education, regardless of any protected status. Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 14 of 17 Page ID #:87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 10 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) c. Ms. Aguirre’s Failure to Apply for Enrollment Precludes Standing Ms. Aguirre does not have standing because she never applied for enrollment with the College. The Ninth Circuit has long held “that a plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit.” See, e.g., Madsen v. Boise State Univ., 976 F.2d 1219, 1220 (9th Cir. 1992) (citations omitted). In Madsen, the plaintiff alleged that the university violated the civil rights laws by not providing free handicap parking permits. Id. at 1220. However, the court dismissed the challenge because the student “never actually applied for a handicap parking permit.” Id. Here, Ms. Aguirre never completed the enrollment process with the College, and thus cannot challenge the College’s alleged policies relating to receipt of financial aid. Ms. Aguirre’s allegations confirm that she still needed to complete the enrollment process before she was eligible for enrollment. (FAC ¶ 13, 15.) Had she completed the enrollment process, Ms. Aguirre would have found that the College is willing to engage in the interactive process and provide reasonable accommodations pursuant to state and federal law. Moreover, Ms. Aguirre never availed herself of the College’s financial aid policies, and thus cannot now challenge them. Ms. Aguirre has no injury-in-fact because she was never denied enrollment, financial aid, or any other benefit based on her disability. d. Ms. Aguirre Does Not Plausibly Allege She Was Otherwise Qualified to Attend the College To sustain her ADA claim, Ms. Aguirre must allege with specificity and plausibility how she was “otherwise qualified” to attend the College. See, e.g., Wong v. Regents of Univ. of Ca., 192 F.3d 807, 822-23 (9th Cir. 1999); Redding v. Nova Se. Univ., Inc., ___F. Supp. 3d ___, 2016 WL 759325 at *10 (S.D. Fla. Feb. 26, 2016) (“[C]ourts have consistently held that a Title III ADA plaintiff must prove that he or she is ‘qualified’ when the public accommodation at issue is available to only qualified members of the general public.”). However, Ms. Aguirre provides no factual basis for Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 15 of 17 Page ID #:88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 11 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) her qualifications, nor does she allege that she ever provided to the College proof of those qualifications (e.g., a transcript or diploma). Ms. Aguirre’s unsupported assertion that she “alleges that she met the basic qualifications for the program,” (FAC ¶ 10), must be rejected as a “threadbare recital[] of the elements of a cause of action, supported by mere conclusory statements, [which] do not suffice” to withstand a motion to dismiss. Corinthian, 655 F.3d at 991. e. Ms. Aguirre Was the Sole Cause of Her Alleged Harm Even assuming Ms. Aguirre actually applied to the College, Ms. Aguirre’s unilateral decision to not complete the enrollment process was the sole cause of her injuries. Ms. Aguirre’s pleadings elucidate that she chose to not complete the enrollment process because of her unilateral decision to not seek out different financial aid options. (See FAC ¶ 18.) Ms. Aguirre never gave the College an opportunity to determine if she was eligible for the program or to discuss other funding options. The College never refused to provide her with an accommodation (because she never requested one) nor did the College refuse to enroll her (because she never completed the admissions process). Accordingly, the College did not deprive her of the “full and equal enjoyment” of its programs “based on” her disability (the nature of which it did not know about) nor through a refusal to make a reasonable accommodation. 42 U.S.C. § 12182(a); accord 42 U.S.C. § 12182(b). CONCLUSION Ms. Aguirre’s pleadings do not support her theory, which, even if proven, cannot impose liability on the College. Ms. Aguirre admits that the College’s alleged decision was made without reference to her, without knowing about her disability or any accommodation requests, and without knowing that she would not attend the College without the DOR’s funding. Moreover, Ms. Aguirre’s theory of discrimination is contrary to law as it requires a holding that Ms. Aguirre is entitled to a debt-free education and that all postsecondary educational institutions that do not participate in the DOR’s voluntary program are discriminating against individuals Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 16 of 17 Page ID #:89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DM1\7158474.3 12 MEMORANDUM I/S/O DEFENDANT’S MOTION TO DISMISS (5:16-CV-1042 GHK-GJS) with disabilities. Additionally, Ms. Aguirre failed to actually complete the application process, thereby depriving her of standing to challenge the College’s financial aid policies. Finally, allowing Ms. Aguirre to amend the FAC would be futile given these factual deficiencies, invalid theories of law, and procedural barriers. For the foregoing reasons, the College respectfully requests this Court dismiss Ms. Aguirre’s FAC in its entirety without leave to amend. Dated: August 29, 2016 DUANE MORRIS LLP By: /s/ Bryce Young Keith Zakarin Bryce Young Attorneys for Defendant CALIFORNIA SCHOOL OF COURT REPORTING-RIVERSIDE dba SAGE COLLEGE Case 5:16-cv-01042-GHK-GJS Document 16-1 Filed 08/29/16 Page 17 of 17 Page ID #:90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING MOTION TO DISMISS 5:16-CV-1042 GHK-GJS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CRISTINA AGUIRRE, an individual, Plaintiff, v. CALIFORNIA SCHOOL OF COURT REPORTING (CSCR)-RIVERSIDE, dba SAGE COLLEGE, a California corporation, and DOES 1 through 10, Defendant. Case No.: 5:16-cv-01042-GHK-GJS [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Judge: Hon. George H. King On September 26, 2016, the Motion to Dismiss Plaintiff’s First Amended Complaint came on for hearing before the Honorable George H. King of the United States District Court for the Central District of California. Both parties were represented by counsel. After considering the pleadings and papers in this matter, the arguments of counsel, and good cause appearing therefor: IT IS HEREBY ORDERED THAT: Plaintiff’s First Amended Complaint is dismissed with prejudice and without leave to amend. Hon. George H. King United States District Judge Central District of California Case 5:16-cv-01042-GHK-GJS Document 16-2 Filed 08/29/16 Page 1 of 1 Page ID #:91