Gilles v. Sprouts Farmers Market, Inc. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMBER GILES, Case No.: 20-cv-2131-GPC-JLB 12 Plaintiff, ORDER DISMISSING COMPLAINT 13 v. [ECF Nos. 3, 7] 14 SPROUTS FARMERS MARKET, INC., and DOES 1 through 20, inclusive, 15 Defendants. 16 17 On August 6, 2020, in the midst of the COVID-19 pandemic and months before 18 the availability of a COVID-19 vaccination, Plaintiff was denied entry into a Sprouts 19 Farmers Market to shop for groceries when she refused to wear either a face covering or a 20 face shield to gain entry. Plaintiff alleges that she suffers from a disability that prevents 21 her from wearing a mask for medical reasons and that Sprouts Farmers Market 22 discriminated against her based upon her disability. Before this Court are two Motions to 23 Dismiss (“MTD”) filed by Defendant SF Markets, LLC (“Defendant”), referred to by 24 Plaintiff as Sprouts Farmers Market, Inc. The first MTD (“1st MTD”) seeks to dismiss 25 the Complaint due to Plaintiff’s failure to properly serve Defendants in accordance with 26 Federal Rule of Civil Procedure 4 (“Rule 4”). See ECF No. 3. The second MTD (“2d 27 1 MTD”) seeks to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 2 12(b)(6) (“Rule 12(b)(6)”), i.e., for failure to state a claim upon which relief can be 3 granted. See ECF No. 7. Upon considering the moving papers and the record of the case, 4 the Court DENIES the 1st MTD but GRANTS the 2d MTD. As such, the Court 5 DISMISSES Plaintiff’s Complaint. 6 I. BACKGROUND 7 A. Factual Allegations 8 Defendant owns the stores known as Sprouts Farmers Market. See Compl. ¶ 4, 9 ECF No. 1. The Complaint alleges that Defendant’s corporate policy requires all 10 customers of Sprouts Farmers Market to wear masks covering their mouth and nose while 11 inside the stores, with no exception for medical conditions. See id. ¶ 6. Plaintiff objects 12 to this policy; according to Plaintiff, she is “a person with a disability” with “several 13 health conditions” relating to her breathing. Id. ¶ 7. “Plaintiff cannot wear a mask or 14 face covering without experiencing shortness of breath. These conditions prevent her 15 from wearing a mask over her face, as certified by a health professional.” Id. 16 Specifically, on August 6, 2020, Plaintiff was denied entry into a Sprouts Farmers 17 Market store, owned by Defendant, for not wearing a mask. See id. ¶ 12. “Plaintiff 18 explained that she suffers from medical conditions which make it impossible for her to 19 wear a mask and that she has documentation of her condition from a medical 20 professional.” Id. However, the employee of the store did not let her in and did not 21 consider her request for an exemption, citing store policy. In addition, the employee “did 22 not offer Plaintiff to have someone gather the groceries for her, or provide any other 23 reasonable accommodation.” Id. When Plaintiff responded “that her rights were being 24 violated” and “that it was not safe for her to wear a mask,” the employee threatened to 25 call the police if she did not leave the premises. Id. 26 / / / 27 1 Plaintiff further alleges that the accommodations provided by Defendant’s stores 2 are insufficient. According to Plaintiff, the option of having a store employee shop for 3 the customer or use curbside pickup and delivery services is “not available at all stores, at 4 the same time, and do not apply to some items . . . such as alcohol.” Id. ¶ 16. Further, 5 such services “do not provide an adequate alternative when it comes to selecting non- 6 packaged goods, such as fresh vegetables and fruits.” Most importantly, Plaintiff 7 characterizes such services as denying her the “full and equal access” to the stores that 8 non-disabled customers experience. Id. 9 B. Procedural History 10 Plaintiff filed her Complaint on October 30, 2020. The Complaint alleges three 11 causes of action: (1) a violation of Title III of the Americans with Disabilities Act, 42 12 U.S.C. § 12181 et seq. (“ADA”) and relatedly the California Unruh Civil Rights Act (the 13 “Unruh Act”);1 (2) retaliation and coercion in violation of the ADA; and (3) negligence 14 and/or reckless conduct. Id. at 6–11. Plaintiff effected service on February 17, 2021. 15 See Pl.’s Opp’n 1st MTD 3, ECF No. 5. 16 Defendant filed the 1st MTD based on the fact that it took Plaintiff 110 days to 17 effect service since the filing of her Complaint, which was 20 days after the deadline for 18 service under Rule 4(c), (m). ECF No. 3. Subsequently Defendant filed the 2d MTD, 19 pursuant to Rule 12(b)(6). ECF No. 7. Plaintiff filed an Opposition to each MTD, ECF 20 Nos. 5, 9, and Defendant filed the corresponding Replies, ECF Nos. 6, 10. 21 / / / 22 23 24 1 The Court observes that the Unruh Act is not an express cause of action listed in 25 Plaintiff’s Complaint. See Compl. 6–11, ECF No. 1. However, the Complaint references 26 a “violation” of the Unruh Act in multiple passages in conjunction with the ADA. See id. ¶¶ 6, 16, 18, 19, 34. 27 1 II. MOTION TO DISMISS FOR FAILURE TO EFFECT SERVICE 2 In the 1st MTD, Defendant argues that dismissal is warranted because Plaintiff 3 failed to serve Defendant within 90 days after she filed the Complaint, in violation of 4 Rule 4. See Def.’s 1st MTD Mem., ECF No. 3-1. It is true that a defendant must be 5 served within 90 days of plaintiff filing the complaint—or else the action must be 6 dismissed without prejudice as to that defendant, unless plaintiff can show good cause. 7 Fed. R. Civ. P. 4(m). At the same time, the Court has discretion to extend time for 8 service even absent good cause. Harper v. Wright, 744 F. App’x 533, 534 (9th Cir. 2018) 9 (citing, among others, Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007); In re 10 Sheehan, 253 F.3d 507, 512–13 (9th Cir. 2001)). The discretion is “broad,” and the 11 Court may even extend time for service retroactively. See, e.g., United States v. 2,164 12 Watches, More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 13 772 (9th Cir. 2004). 14 Here, the Court prefers to resolve the dispute based on the merits, which has the 15 added benefit of conserving resources. Cf. Ramirez v. Cty. of Alameda, No. C12-4852 16 MEJ, 2013 WL 5934700, at *3 (N.D. Cal. Oct. 31, 2013). And to the extent that the 17 Court can exercise its broad discretion to extend time for service, the Court does so since 18 Defendant was actually noticed and eventually served. Cf. Efaw, 473 F.3d at 1041 19 (discussing the factors courts may consider in exercising the discretion, which includes 20 “actual notice of a lawsuit, and eventual service”). 21 Therefore, the Court DENIES Defendant’s 1st MTD. Relatedly, the Court denies 22 as moot Defendant’s Request for Judicial Notice (“RJN”) in support of the 1st MTD, 23 ECF No. 3-3. The Court did not rely on the underlying documents in its decision. 24 III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 25 In the 2d MTD, Defendant argues that dismissal is warranted under Rule 12(b)(6). 26 See ECF No. 7. The Court ultimately concludes that even under the Rule’s legal standard 27 1 of constructing Plaintiff’s factual allegations as true and making all inferences most 2 favorable to her, there is no valid cause of action for which relief can be granted. 3 Therefore, the Court GRANTS Defendant’s 2d MTD, with an opportunity to amend 4 Plaintiff’s First Cause of Action (but not for the Second or Third). 5 A. Legal Standard 6 A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a complaint. 7 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted if the 8 complaint lacks a cognizable legal theory, or if it fails to plead essential facts under the 9 cognizable legal theory presented. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 10 530, 534 (9th Cir. 1984). While a plaintiff need not give “detailed factual allegations,” a 11 plaintiff must plead sufficient facts that, if true, “raise a right to relief above the 12 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). 13 “To survive a motion to dismiss, a complaint must contain sufficient factual 14 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 15 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is 16 facially plausible when the factual allegations permit “the court to draw the reasonable 17 inference that the defendant is liable for the misconduct alleged.” Id. In other words, 18 “the nonconclusory ‘factual content,’ and reasonable inferences from that content, must 19 be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret 20 Service, 572 F.3d 962, 969 (9th Cir. 2009). Determining the plausibility of the claim for 21 relief is a “context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Iqbal, 556 U.S. at 679. 23 When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court’s 24 consideration is limited to the following: the complaint, documents attached to the 25 complaint, documents relied upon but not attached to the complaint when authenticity is 26 not contested, and matters of which the court takes judicial notice. See Lee v. Los 27 1 Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). The court assumes the truth of all factual 2 allegations and construes all inferences from them in the light most favorable to the non- 3 moving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). At the same time, 4 legal conclusions need not be taken as true merely because they are in the form of factual 5 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). In addition, the 6 court is “not required to accept as true conclusory allegations which are contradicted by 7 documents referred to in the complaint.” Wright v. Oregon Metallurgical Corp., 360 8 F.3d 1090, 1096 (9th Cir. 2004) (quotations omitted). 9 B. Requests for Judicial Notice 10 As part of Defendant’s 2d MTD, Defendant filed an additional RJN, ECF No. 7-3, 11 which the Court addresses here. First, the Court takes judicial notice of Exhibit 1 of 12 Defendant’s 2d MTD RJN, ECF No. 7-4. The underlying document is the COVID-19 13 policy of Defendant’s stores. The store policy is directly referenced in Plaintiff’s 14 Complaint, which makes it appropriate for judicial notice. See Daniels-Hall v. Nat’l 15 Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 16 Next, the Court takes judicial notice of Exhibits 7, 12, and 15 of Defendant’s 2d 17 MTD RJN, ECF Nos. 7-10, 7-15, 7-18. These are official documents published by the 18 U.S. Center for Disease Control (“CDC”), the California Department of Public Health 19 (“CDPH”), and the San Diego County Health and Human Services Agency (“San Diego 20 HHSA”), respectively. The first two documents are directly referenced in Plaintiff’s 21 Complaint, and all three are judicially noticeable as matters of public record. See Reyn’s 22 Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (citing 23 Burbank-Glendale–Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th 24 Cir. 1998)). 25 / / / 26 27 1 The Court declines to take judicial notice of the other Exhibits and denies the rest 2 of the requests as moot, for the Court did not rely on the underlying documents in 3 reaching the decision. 4 C. Analysis 5 With the above legal standard in mind, the Court reviews Defendant’s 2d MTD. 6 Even under the legal standard that heavily favors Plaintiff, the Court concludes there are 7 no valid causes of action. The First Cause of Action, mostly grounded in Title III of the 8 ADA, fails because Defendant did not discriminate against Plaintiff based upon her 9 alleged disability. Specifically, Plaintiff has failed to allege that she was incapable of 10 wearing a face shield; Defendant’s store made an individualized assessment that 11 customers not wearing facial covering are a “direct threat” to the health or safety of 12 others; and Defendant offered an accommodation to permit her to shop for groceries. 13 The Second and Third Causes of Action are mostly conclusory allegations, which the 14 Court need not consider when deciding on a Rule 12(b)(6) motion. In addition, 15 Plaintiff’s Opposition brief is wholly silent on the second and third claims, which the 16 Court deems as waiving the right to advance them. 17 1. ADA Title III and the Unruh Act 18 The Court addresses the ADA Title III claim first, which is at the crux of this 19 lawsuit. For a valid Title III claim under the ADA, Plaintiff must show that: (1) she is 20 disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, 21 leases, or operates a place of public accommodation; and (3) she was denied public 22 accommodations by the defendant because of her disability. See 42 U.S.C. § 12182(a); 23 Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670 (9th 24 Cir. 2010). The parties do not disagree on the second factor, so the rest of the Court’s 25 analysis pertains to the first and third factor. 26 / / / 27 1 As an initial matter, Defendant argues that Plaintiff’s allegations are wholly 2 conclusory. Certain allegations are, such as Plaintiff’s claims that she is “a person with a 3 disability,” or that Defendant denies disabled customers “full and equal access to 4 Defendant’s stores.” See, e.g., Compl. ¶¶ 7, 16, ECF No. 1; cf. Whitaker v. Tesla Motors, 5 Inc., 985 F.3d 1173, 1177 (9th Cir. 2021) (finding passages such as “failed to provide 6 accessible service counters” and “full and equal access” conclusory). However, the 7 Complaint also alleges that Plaintiff has issues with “breathing,” such that she “cannot 8 wear a mask or face covering without experiencing shortness of breath.” Compl. ¶ 7, 9 ECF No. 1. She further claims that her health conditions prevent her from “wearing a 10 mask over her face, as certified by a health professional.” Id. The Court agrees that the 11 Complaint could be clearer as to what her medical condition is and how it prevents her 12 from wearing a mask, but they are at least sufficient to allege she is disabled within the 13 meaning of the ADA. After all, the plausibility of a pleading is distinct from “detailed.” 14 See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. 15 Instead, the allegations are insufficient to plausibly allege that she was denied 16 public accommodations because of her disability (the third element). The Complaint 17 explicitly alleges that Plaintiff was denied entry for not wearing a mask, despite Plaintiff 18 describing her medical conditions to the store employee. See Compl. ¶ 12, ECF No. 1. 19 But it says nothing about Plaintiff describing her medical condition that prevented her 20 from wearing a face shield. Sprouts Farmers Market allows customers to shop with a 21 face shield.2 Plaintiff does not claim that she cannot wear a face shield or that a health 22 professional has certified that she cannot wear a face shield. Her allegations regarding 23 her disability fail to account for the modification that permitted her to shop with a face 24 25 26 2 The judicially noticed policy of Sprouts Farmers Market provides that “we are also allowing face shields in our stores.” Def.’s 2d MTD RJN Ex. 1 at 4, ECF No. 7-4. 27 1 shield. Accordingly, her allegations do not plausibly allege that Defendant maintained a 2 policy that prevented her from shopping at Sprouts Farmers Market given her claimed 3 disability. Cf. Pletcher v. Giant Eagle Inc., No. CV 2:20-754, 2020 WL 6263916, at *4 4 (W.D. Pa. Oct. 23, 2020) (discussing how specific claims of disability discrimination 5 challenging face covering policy were deficient where store policy permits customers to 6 wear full-face shields to shop in its stores and plaintiff failed to allege that he was unable 7 to wear a full-face shield due to a disability). 8 Further, the Complaint fails to establish whether Defendant’s conduct even 9 constituted discrimination to begin with. Various parts of 42 U.S.C. § 12182(b) discuss 10 what would be considered “discriminatory” or “discrimination.” But most importantly, 11 subsection (b)(3) states the following: 12 Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, 13 advantages and accommodations of such entity where such individual poses 14 a direct threat to the health or safety of others. The term “direct threat” means a significant risk to the health or safety of others that cannot be 15 eliminated by a modification of policies, practices, or procedures or by the 16 provision of auxiliary aids or services. 17 42 U.S.C. § 12182(b)(3). This statute is further clarified by the Department of Justice’s 18 regulation and guidance. Specifically: 19 In determining whether an individual poses a direct threat to the health or 20 safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical 21 knowledge or on the best available objective evidence, to ascertain: The 22 nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, 23 practices, or procedures or the provision of auxiliary aids or services will 24 mitigate the risk. 25 28 C.F.R. § 36.208(b). And while this determination “may not be based on 26 generalizations or stereotypes,” the assessment “will not usually require the services of a 27 1 physician,” and the public accommodation can consider public health authorities, 2 including the Centers for Disease Control. See ADA Title III Technical Assistance 3 Manual § III-3.8000; see also Disabled Rts. Action Comm. v. Las Vegas Events, Inc., 375 4 F.3d 861, 876 (9th Cir. 2004) (citing Bragdon v. Abbott, 524 U.S. 624, 646 (1998)) 5 (discussing how the Department of Justice’s views of Title III of the ADA is entitled to 6 deference). To summarize, as long as Defendant conducted an individualized assessment 7 of whether an individual poses a direct threat—not based on generalized stereotypes, but 8 based on reasonable judgment grounded in medical knowledge and public health 9 authorities, and based on consideration of reasonable modifications—denying that 10 individual from the store’s premises does not constitute discrimination under the ADA. 11 Here, the individualized assessment was whether a customer (such as Plaintiff) was 12 wearing a facial covering or not. See Def.’s 2d MTD RJN Ex. 1 at 3, ECF No. 7-4 (store 13 policy). And this individual assessment was justified because multiple sources of public 14 health documents—including from authorities referenced in Plaintiff’s Complaint, see 15 ECF No. 1 at ¶¶ 9, 10, 11 (CDPH, San Diego HHSA, and the CDC, respectively)—state 16 that those who do not wear masks can be public health threats. See, e.g., Def.’s 2d MTD 17 RJN Ex. 7 at 1–2, ECF No. 7-10 (CDC); Def.’s 2d MTD RJN Ex. 12 at 1, ECF No. 7-15 18 (CDPH); Def.’s 2d MTD RJN Ex. 15 at 9–11, ECF No. 7-18 (San Diego HHSA). 19 Further, Defendant’s policy specifically accounted for modifications, such as a face 20 shield, a personal shopper, curbside pickup, or online delivery. See Def.’s 2d MTD RJN 21 Ex. 1 at 3, ECF No. 7-4. 22 Plaintiff’s first response is that all the public health documents reference 23 exceptions, including persons with breathing difficulties. See Compl. 3–4, ECF No. 1; 24 Pl.’s Opp’n Mem. 2, ECF No. 9. But these exceptions are not germane to calculating the 25 risk itself. Instead, the risk is the same between those with or without breathing 26 difficulties, but should be accounted for by way of reasonable modifications—which 27 1 Defendant did in the form of various accommodations (face shield, personal shopper, 2 etc.). 3 Second and related to the first response, Plaintiff questions Defendant’s risk 4 assessment when the policy does not “eliminate” the spread of COVID-19 because it still 5 permits small children without masks. See Pl.’s Opp’n Mem. 2, ECF No. 9. This 6 argument fails because the public health documents indicate that the relevant risk of a 7 direct threat is not a yes-or-no question, but a matter of degree. See, e.g., Def.’s 2d MTD 8 RJN Ex. 7 at 2, ECF No. 7-10 (“Studies show that masks reduce the spray of droplets . . . 9 .” (emphasis added)); Def.’s 2d MTD RJN Ex. 12 at 1, ECF No. 7-15 (“The use of face 10 coverings . . . can limit the release of infected droplets . . . .” (emphasis added)); Def.’s 2d 11 MTD RJN Ex. 15 at 9, ECF No. 7-18 (“The actions . . . are necessary to reduce the 12 number of individuals who will be exposed to COVID-19 . . . .” (emphasis added)). See 13 generally 28 C.F.R. § 36.208(b) (requiring the individual assessment to consider the 14 “severity” and “probability” of the risk, which is inherently an issue of gradation). 15 Third, Plaintiff argues that she is not a threat to others. Pl.’s Opp’n Mem. 3, ECF 16 No. 9. As Defendant points out, see Def.’s 2d MTD Reply 6, ECF No. 10, Plaintiff’s 17 self-serving valuation is uninformed and irrelevant to the independent assessment of 18 direct threat. Meanwhile, Defendant’s independent assessment that she may pose a threat 19 to other shoppers was based on a slew of public health documents which, among other 20 things, reveal that asymptomatic individuals can carry the virus and infect others. 21 The Court addresses one other implicit argument made by Plaintiff, which is that 22 “Defendant’s Employee did not offer Plaintiff to have someone gather the groceries for 23 her, or provide any other reasonable accommodation.” Compl. ¶ 12, ECF No. 1. 24 However, the Complaint asserts that the employee cited “store policy,” see id., which 25 indicates that Plaintiff would have been able to enter the store if she wore a face shield. 26 As discussed supra pages 8–9, the Complaint is wholly silent on the permissibility of 27 1 face shields (and Plaintiff’s inability to wear them), and the Court did not consider 2 Plaintiff’s post hoc response on the matter, see Pl.’s Opp’n Mem. 1–2, ECF No. 9. See, 3 e.g., Smith v. Specialized Loan Servicing, LLC, No. 16CV2519-GPC(BLM), 2017 WL 4 1711283, at *5 (S.D. Cal. May 3, 2017) (citing Lee v. Los Angeles, 250 F.3d 668, 688–89 5 (9th Cir. 2001)) (declining to consider allegations made in opposition briefs). 6 Because Defendant conducted an individualized assessment of the direct threat 7 posed by Plaintiff by her unwillingness to wear a face mask or face shield, Defendant’s 8 policy did not constitute “discrimination” under Title III of the ADA. And because there 9 is no predicate Title III violation, Plaintiff’s cause of action grounded in the Unruh Act 10 also fails. Therefore, the Court DISMISSES Plaintiff’s First Cause of Action. 11 2. ADA Retaliation and Coercion 12 Plaintiff’s Second Cause of Action alleges a “Retaliation and Coercion in Violation 13 of the ADA.” Compl. 9, ECF No. 1. Yet upon Defendant’s move to dismiss this claim, 14 Plaintiff’s Opposition is silent on the matter. See ECF No. 9. See generally Stichting 15 Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 16 2011) (citations omitted) (“[I]n most circumstances, failure to respond in an opposition 17 brief to an argument put forward in an opening brief constitutes waiver or abandonment 18 in regard to the uncontested issue.”); Jenkins v. Cty. of Riverside, 398 F.3d 1093, 1095 19 n.4 (9th Cir. 2005) (deeming that plaintiff abandoned claims by not raising them in 20 opposition to motion for summary judgment). 21 The Court also agrees with Defendant that this set of allegations is nothing more 22 than a repackaging of the Title III discrimination claim. At best, Plaintiff’s allegations 23 are conclusory. There are insufficient underlying facts for the Court to link Defendant’s 24 corporate policy (and the employee’s denial of access based on such) with “retaliation,” 25 or “interference, coercion, or intimidation,” which are all legal terms of art under 42 26 U.S.C. § 12203. Because Plaintiff waived the issue when Defendant moved to dismiss 27 1 the claim, and because Plaintiff’s allegations are conclusory and unsupported by 2 sufficient facts, the Court DISMISSES Plaintiff’s Second Cause of Action. 3 3. Negligence and/or Reckless Conduct 4 Plaintiff’s Third Cause of Action is a negligence/recklessness claim, but like the 5 Second, Plaintiff’s Opposition is silent on the issue even after Defendant seeks to dismiss 6 it. Therefore, the Court finds that Plaintiff waived the allegation. 7 Further, the Complaint makes little sense in establishing the requisite elements for 8 a valid negligence claim and instead relies on conclusory words as to how Defendant was 9 “careless,” “negligent,” or “reckless.” See Beaver v. Tarsadia Hotels, 29 F. Supp. 3d 10 1294, 1321 (S.D. Cal. 2014) (citing Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 11 (1996)) (“The elements of a negligence cause of action are: (a) a legal duty to use due 12 care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of 13 the resulting injury.”), aff’d, 816 F.3d 1170 (9th Cir. 2016). Without dissecting each 14 paragraph, the Court points out that Plaintiff fails to identify what Defendant’s “duty of 15 care” is, or how being denied entry to a store caused shortness of breath. At minimum, 16 the discussions in Section III.C.1, supra, rejects Plaintiff’s allegations of any breach. 17 Accordingly, the Court also DISMISSES Plaintiff’s Third Cause of Action. 18 D. Leave to Amend 19 Having dismissed all Causes of Action, the Court next considers whether Plaintiff 20 is entitled for an opportunity to amend her Complaint. Lopez v. Smith, 203 F.3d 1122, 21 1130 (9th Cir. 2000). Neither parties’ briefs address this issue. 22 The Court permits leave to amend the First Cause of Action. Given that there is a 23 small possibility that amendment could cure the defects discussed above, the Court will 24 grant leave to amend the Complaint. Cf. Eminence Capital, LLC v. Aspeon, Inc., 316 25 F.3d 1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and without leave to amend is 26 not appropriate unless it is clear . . . that the complaint could not be saved by 27 1 |}amendment.”); Fed. R. Civ. P. 15(a) (“The court should freely give leave when justice so 2 || requires.”). 3 In contrast, the Second and Third Causes of Action are dismissed with prejudice 4 with no opportunity amend, for Plaintiff abandoned the claims by conceding 5 || Defendant’s 2d MTD. See Gates v. United States, No. 17-CV-2093-JAH-BGS, 2018 WL 6 3303019, at *4 (S.D. Cal. July 5, 2018) (citing Stichting Pensioenfonds ABP yv. 7 || Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011)). 8 CONCLUSION 9 For the reasons discussed above, the Court DENIES Defendant’s first Motion to 10 || Dismiss, ECF No. 3, and GRANTS Defendant’s second Motion to Dismiss, ECF No. 7. 11 || Specifically, Plaintiff's First Cause of Action is DISMISSED WITHOUT 12 |} PREJUDICE, and Plaintiff's Second and Third Causes of Action are DISMISSED 13 || WITH PREJUDICE. Within thirty (30) days of the filing of this Order, Plaintiff may 14 || file an amended complaint that is limited to curing any deficiencies relating to the First 15 || Cause of Action. 16 IT IS SO ORDERED. 17 18 || Dated: May 24, 2021 2 Ss 19 Hon. athe Cee 20 United States District Judge 21 22 23 24 25 26 27 14 28 20-cv-2131-GPC-JLB