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1 Richard A. Lazenby (State Bar No. 202105) E-FILED
Email: rlazenby@victorrane.com 9/16/2020 4:00 PM
2 Geneva A. Collins (State Bar No. 187023) Superior Court of California
Email: gcollins@victorrane.com County of Fresno
3
Michael Cutler (State Bar No. 298875) By: LP Deputy
4 Email: mcutler@victorrane.com
VICTOR RANE
5 9350 Wilshire Blvd., Suite 308
Beverly Hills, California 90212
6 Telephone: (310) 388-4849
Facsimile: (310) 388-4869
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8 Attorneys for Defendant
SKYWEST AIRLINES, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF FRESNO
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12 JOEY R. RODRIGUEZ and STEVE ) Case No.: 19CECG00453
RODRIGUEZ, ) Assigned for all purposes to Hon. Tyler D.
13 ) Tharpe, Dept. 402
Plaintiffs, )
14 ) MEMORANDUM OF POINTS
vs. ) AND AUTHORITIES IN
15 ) SUPPORT OF MOTION FOR
DELTA AIRLINES, INC., a Georgia Corporate;) JUDGMENT ON THE
16 SKYWEST AIRLINES, INC., a Utah ) PLEADINGS BY DEFENDANT
Corporation; DOE CHECK IN ATTENDANT, ) SKYWEST AIRLINES, INC.
17 a California Resident; DOE GATE )
ATTENDANT, a California Resident; CITY OF ) Date: October 8, 2020
18 FRESNO, a California Municipal Corporation; ) Time: 3:27 p.m.
and DOES 1 to 100, inclusive, ) Dept. 502
19 ) Judge: Hon. Rosemary T. McGuire
Defendants. )
20 ) [Filed concurrently with: Notice of Motion;
) Motion for Judgment on the Pleadings;
21 ) Appendix of Authorities; and [Proposed]
) Order]
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MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 Table of Contents
2 I. INTRODUCTION ……………………………………………………………….. 1
3 II. STATEMENT OF THE CASE ………………………………………………….. 1
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III. ARGUMENT ……………………………………………………………………. 3
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A. Pertinent Standards for this Motion…………………………………….. 3
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B. The Particular Context in Which Plaintiffs’ Claims
7 Allegedly Arise, Preemption, and the Application of
Federal Law…………………………………………………….………. 4
8 1. The Imperative for Federal Regulation
of Aviation …………………………………………………………. 4
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10 2. Preemption is the Mechanism for
Fostering Uniformity ……………………………………………….. 5
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C. Plaintiffs’ First Cause of Action Fails to State
12 an Actionable Claim Against SkyWest Because it is
13 Preempted by the ACAA ………………………………………………. 6
14 D. Plaintiffs’ Second Cause of Action Fails to State an
Actionable Claim Against SkyWest Because it is
15 Preempted by the ACAA and Isn’t a Legally
Cognizable Claim in any Event ………………………………………… 8
16
17 E. Plaintiffs’ Third through Fifth Causes of Action Fail to State
Actionable Claims Against SkyWest Because Those
18 Negligence Claims are Preempted by the ACAA ……………………….. 9
19 F. Plaintiffs’ Seventh Cause of Action Fails to State
Actionable Claim for Declaratory Relief Because it Seeks a
20 Declaration That SkyWest Abide by Laws That are Preempted
21 by the ACAA and Do Not Apply to it ………………………...….……. 11
22 G. Plaintiffs’ Eight Cause of Action Fails to State an Actionable
Claim Based on a Dangerous Condition of Public Property …………… 12
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IV. CONCLUSION ………………………………………………………………… 12
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TABLE OF CONTENTS AND AUTHORITIES.
CASE NO.: 19CECG00453
1
Table of Authorities
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Federal Cases Page(s)
3
Bahn v. Korean Airlines Co. (In re Korean Air Lines Co.)
4 642 F.3d 685 (9th Cir. 2011) ……………………………………………………………. 4
5 Cipollone v. Liggett Grp.
6 505 U.S. 504, 112 S. Ct. 2608 (1992) …………………………………………………… 6
7 Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta
458 U.S. 141, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982) ………………………………... 6
8
Foley v. JetBlue Airways, Corp.
9 No. C 10-3882 JCS, 2011 U.S. Dist. LEXIS 85426 (N.D. Cal. Aug. 3, 2011) …………. 7
10
French v. Pan Am Express, Inc.,
11 869 F.2d 1 (1st Cir. 1989) ………………………………………………………………. 4
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Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
Gilstrap v. United Air Lines, Inc.
(310) 388-4849
709 F.3d 995 (9th Cir. 2013)………………………………………………….. 7, 9, 10, 11
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14 Montalvo v. Spirit Airlines
508 F.3d 464 (9th Cir. 2007) …………………………………………………………. 4, 6
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Nat’l Fed’n of the Blind v.. United Airlines, Inc.……………………………………………… 7
16 813 F.3d 718 (9th Cir. 2016)
17
Segalman v. Sw. Airlines Co.
18 895 F.3d 1219 (9th Cir. 2018) ……………………………………………………………9
19 Summers v. Delta Airlines, Inc.
805 F. Supp. 2d 874 (N.D. Cal. 2011) ………………………………………………. 5, 10
20
Venture Gen. Agency, LLC v. Wells Fargo Bank, N.A.
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No. 19-cv-02778-TSH, 2019 U.S. Dist. LEXIS 129032 (N.D. Cal. Aug. 1, 2019) ….… 9
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Wills v. UPS
23 No. 19-cv-01819-NC, 2019 U.S. Dist. LEXIS 112918 (N.D. Cal. July 8, 2019) ……… 10
California Cases
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Blank v. Kirwan
25 39 Cal. 3d 311 (1985) …………………………………………………………………………… 3
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Cantu v. Resolution Tr. Corp
27 4 Cal. App. 4th 857 (1992) .……………………………………………………………………... 3
28 King v. CompPartners, Inc.
5 Cal. 5th 1039 (2018) ………………………………………………………………………... 3, 4
TABLE OF CONTENTS AND AUTHORITIES - ii -
CASE NO.: 19CECG00453
1
Linda Vista Vill. San Diego Homeowners Ass’n, Inc. v. Tecolote Inv’rs, LLC
2 234 Cal. App. 4th 166 (2015) .……………………………………………………………1
3
Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc.
4 48 Cal. 3d 583 (1989) .………………………………………………………………… 10
5 People ex rel Lungren v. Superior Court
14 Cal. 4th 294 (1996) ..………………………………………………………………… 1
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People ex rel. Harris v. Delta Air Lines, Inc.
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247 Cal. App. 4th 884 (2016)…………………………………………………………… 5
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Sher v. Leiderman
9 181 Cal. App. 3d 867 (1986).…………………………………………………………… 3
10 Turner v. Seterus, Inc.
27 Cal. App. 5th 516 (2018) ……………………………………………………………. 8
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12 Wholesale Elec. Antitrust Cases I & II
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
147 Cal. App. 4th 1293 (2007)………………………………………………………….. 3
13 Federal Statutes
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14 49 U.S.C. § 40103 .......…………………………………………………………………………. 4
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15 49 U.S.C. § 41705 ………………………………………………………………………… passim.
16 State Statutes
17 Cal. Civil Code § 51………………………………………………………………………….. 7, 11
18 Cal. Civil Code § 52…………………………………………………………………………….. 11
19 Cal. Civil Code § 54………………………………………………………………………….. 7, 11
20 Cal. Civil Code § 2100………………………………………………………………………….. 10
21 Cal. Civil Code § 2101………………………………………………………………………….. 10
22 Cal. Government Code § 835…………………………………………………………………… 12
23 Federal Regulations
24 14 C.F.R. § 382.1 ……………………………………………………………….………………6-7
25 14 C.F.R. § 382.51 ……………………………………………………………………………. 7, 8
26 14 C.F.R. § 382.91 ………………………………………………………………………………. 8
27 14 C.F.R. § 382.93 ………………………………………………………………………………. 8
28 14 C.F.R. § 382.95 ………………………………………………………………………………. 8
TABLE OF CONTENTS AND AUTHORITIES - iii -
CASE NO.: 19CECG00453
1 14 C.F.R. § 382.99 ………………………………………………………………………………. 8
2 14 C.F.R. § 382.101 …………………………………………………………………………….. 8
3 14 C.F.R. § 382.103 ……………………………………………………………………………... 8
4 Other Authorities
5 Nondiscrimination on the Basis of Handicap in Air Travel
55 Fed.Reg. 8008 (Mar. 6, 1990)……………………………………………………….... 6
6 73 Fed. Reg. 27,614 …………………………………………………………………………... 5, 6
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Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
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TABLE OF CONTENTS AND AUTHORITIES - iv -
CASE NO.: 19CECG00453
1 Defendant SkyWest Airlines, Inc. (“SkyWest”), submits its memorandum of points and
2 authorities in support of its Motion for Judgment on the Pleadings (“Motion”) against plaintiffs
3 Joey Rodriguez and Steve Rodriguez (collectively “Plaintiffs”) as follows:
4 I. INTRODUCTION
5 With a complaint that purports to state eight causes of action against all Defendants,
6 plaintiffs, including one who is a person with disabilities, seek damages for problems they claim
7 they encountered in traveling from Fresno to Salt Lake City. In the main, the defects in the
8 complaint, as pertinent to SkyWest, center upon the erroneous premise that that the accessibility
9 issues they raise are governed by the same state laws that would apply had the alleged events
10 occurred at, say, a shopping mall, not an airport.
11 Because of the context in which the alleged issues presented themselves – at an airport
12 and on an airplane, a particular set of federal rules and regulations govern plaintiffs’ claims
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
13 against SkyWest. And because they do, state law does not. For the reasons explained below,
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14 SkyWest’s motion to the complaint, which relies solely on California law, should be sustained.
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15 II. STATEMENT OF THE CASE1
16 On or about February 8, 2017, plaintiffs purchased two roundtrip tickets for travel
17 between Fresno and Salt Lake City. Compl., ¶ 11. (They don’t allege from whom the tickets
18 were purchased.) Plaintiffs appear to aver that they flew on a flight that originated in Fresno
19 and was operated by one of the defendants. Id., ¶ 12.
20 Defendants were informed that plaintiff Joey Rodriguez needed physical assistance onto
21 the aircraft. Id. This request for “disabled accommodations boarding Defendants’ aircraft” was
22 made at least twice, “[o]n, before, and after” the date of their travel aboard the Salt Lake City –
23 bound flight. Id. Defendants (plaintiffs do not specify which of them) “assured Plaintiffs that
24 they had arranged disabled accommodations for” Joey Rodriguez, “including pre-boarding and
25 enplaning assistance to actually get her[2] aboard the Defendants’ aircraft.” Id.
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1
Because when considering a demurrer, “courts accept the plaintiff’s properly pleaded facts as true, [and] a
27 demurrer is not deemed to admit any conclusions of law or fact, or any mere contentions[,]” regardless of the degree
to which it may dispute them, SkyWest provides a recital of the facts as alleged by plaintiffs in their complaint.
28 Linda Vista Vill. San Diego Homeowners Ass’n, Inc. v. Tecolote Inv’rs, LLC, 234 Cal. App. 4th 166, 173 (2015)
(citing People ex rel Lungren v. Superior Court, 14 Cal.4th 294, 300-301(1996)).
MEMORANDUM OF POINTS AND AUTHORITIES IN -2-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 Plaintiffs’ case appears to be premised on two aspects of their journey with which they
2 were dissatisfied. First, they allege that unspecified defendants (a) “refused to provide assistance
3 to [Joey Rodriguez] and directed himself [sic] and his party to take themselves down the
4 jetbridge to the aircraft” (id., ¶ 13) and (b) “failed to properly provide Plaintiffs with requested
5 assistance” (id., ¶ 14). Second, plaintiffs complain about the allegedly “dangerous and unlawful
6 condition of the jetbridge including unlawful and excessive slopes.” Id., ¶ 15.
7 In connection with both of these alleged issues, plaintiffs also reckon that defendants
8 “failed to teach, train, instruct, and provide proper guidance, supervision and/or to [their]
9 employees, agents and/or operators.” Id., ¶ 16. According to plaintiffs, this purported lack of
10 training extended to the following topics: “proper procedures for emplaning [sic] disabled
11 individuals, the requirement that medical equipment be exempt from carry-on baggage limits,
12 providing immediate access and assistance to a supervising agent of the airline to resolve a
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
13 disabled persons [sic] problems encountered while seeking access to the airlines services, and
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14 establishing proper policies and practices for addressing passengers whose size may call for the
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15 purchase of more than one plane ticket.” Id.
16 Plaintiffs contend that as a result of this “wrongful and unsafe conduct of Defendants,”
17 they “have suffered physical injuries, emotional upset, embarrassment, humiliation and distress,
18 which [sic] resulting physical manifestations.” Id., ¶ 17.
19 In characterizing their claims, plaintiffs maintain that they “were denied full and equal
20 access to public programs, activities, or services and they were denied equal access to the
21 facilities owned and/or operated by the Defendants because the services were inaccessible to
22 members of the disabled community who use wheelchairs for mobility or carry medical
23 equipment as carry-on luggage when, they travel.” Id., ¶ 20.
24 This alleged denial of access occurred, according to plaintiffs, “because of barriers which
25 included, but were not limited to, the failure to provide required proper enplanement, loading,
26 boarding and safety procedures which rendered the system not readily accessible to users with
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In the complaint, female and male personal pronouns are used in reference to Joey Rodriguez. It is our
understanding that Joey Rodriguez is male.
MEMORANDUM OF POINTS AND AUTHORITIES IN -3-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 disabilities and the failure to properly train, instruct, supervise and oversee the employees,
2 agents and/or operators to ensure that he, she or they provided appropriate services.” Id.
3 By their complaint, plaintiffs seek to recover actual, special and/or statutory damages
4 (id., prayer ¶ 1), compensatory damages (id., ¶ 2), general damages (id., ¶ 3), special damages
5 (id., ¶ 4), medical expenses (id., ¶ 5), lost earnings and earning capacity (id., ¶ 6), treble damages
6 (id., ¶ 7), declaration regarding the rights and duties of the parties (id., ¶ 8), attorney fees’ and
7 costs (id., ¶ 9), and interest (id., ¶ 10).
8 III. ARGUMENT
9 A. Pertinent Standards for this Motion for Judgment on the Pleadings
10 A defendant may move for a judgment on the pleadings if the plaintiff’s “complaint does
11 not state facts sufficient to constitute a cause of action against that defendant.” CAL. CIV. PROC.
12 CODE § 438 (c)(1)(B)(ii); Smiley v. Citibank, 11 Cal. 4th 138, 145, 900 P.2d 690 (1995), aff'd
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
13 sub nom. Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 116 S. Ct. 1730, 135 L. Ed. 2d 25
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14 (1996). A motion for judgment on the pleadings is analogous to a general demurrer, but may be
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15 made after the time to file a demurrer has expired. Id. at (f)(2); Ludgate Ins. Co. v. Lockheed
16 Martin Corp., 82 Cal.App.4th 592, 602 (2000).
17 The complaint must allege sufficient facts necessary for the statement of an actionable
18 claim, and not cannot rely solely on general allegations, contentions, deductions, or conclusions
19 of law. Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1390, 272 Cal. Rptr.
20 387 (Ct. App. 1990), as modified on denial of reh'g (Oct. 31, 2001); Pich v. Lightbourne, 221
21 Cal. App. 4th 480, 496, 164 Cal. Rptr. 3d 388, 400 (2013).
22 Leave to amend should not be granted if “there is no reasonable probability or reasonable
23 possibility that plaintiff can amend his complaint to state a cause of action” against the
24 defendant. Kilgore v. Younger, 30 Cal. 3d 770, 783, 640 P.2d 793, 800 (1982). “The burden of
25 proving such reasonable possibility is squarely on the plaintiff.” Pich, 221 Cal. App. 4th at 490.
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MEMORANDUM OF POINTS AND AUTHORITIES IN -4-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 B. The Particular Context in Which Plaintiff Claim Allegedly Arise,
2 Preemption, and the Application of Federal Law.
3 1. The Imperative for Federal Regulation of Aviation.
4 The primary reason plaintiffs fail to state actionable claims has to do with the context in
5 which their alleged claims arose –circumstances which implicate the operations of a commercial
6 airline. In the United States, aviation is a field that has long been and firmly remains — subject
7 to comprehensive federal supervision and control.
8 Largely animated by grave concerns that air safety and commerce are jeopardized by
9 fractured and divided rulemaking and enforcement, Congress determined to repose in “one
10 agency of government, and one agency alone, responsibility for issuing safety regulations [in
11 order] to have timely and effective guidelines for safety in aviation.” See Pub. L. No. 85-726, §
12 601(a)(1), (2).
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
13 The exhaustive regulatory scheme conceived to govern aviation was given voice through
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14 the Federal Aviation Act of 1958, 49 U.S.C. § 40103, et seq. (“FA Act”); the federal agency
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15 created to exercise “full responsibility and authority for the advancement and promulgation of
16 civil aeronautics generally, including the promulgation and enforcement of safety regulations[,]”
17 was the Federal Aviation Administration (the FAA). 3
18 In large measure, the imperative for centralized regulation was to ensure uniformity. The
19 aim was, and is, to prevent a “patchwork of state laws,” and the creation of “a crazyquilt effect”
20 that would result if individual states and localities enforced their own rules and regulations in a
21 field where uniformity is critically important. See, e.g., Montalvo v. Spirit Airlines, 508 F.3d
22 464, 473 (9th Cir. 2007); French v. Pan Am Express, Inc., 869 F.2d 1, 6-7 (1st Cir. 1989). 4
23 After nearly 30 years, the Air Carrier Access Act (“ACAA”), Pub. L. No. 99-435, § 2(a),
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Prior to 1967, the FAA was known as the Federal Aviation Agency.
26 4
See also, Bahn v. Korean Airlines Co. (In re Korean Air Lines Co.), 642 F.3d 685, 694 (9th Cir. 2011) (“In
addition to protecting consumers, federal regulation insures a uniform system of regulation and preempts regulation
27 by the states’ in a field where state-based variations ‘would be confusing and burdensome to airline passengers, as
well as to the airlines.’” Id., quoting H.R. Rep. 98-793, at 4 (1984)).
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MEMORANDUM OF POINTS AND AUTHORITIES IN -5-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 100 Stat. 1080, was enacted in 1986 as an amendment to the FA Act. See Summers v. Delta
2 Airlines, Inc., 805 F. Supp. 2d 874, 877-878 (N.D. Cal. 2011). It is now codified at 49 U.S.C. §
3 41705 and the extensive implementing regulations are published in 14 C.F.R. part 382. The
4 legislative history of the ACAA confirms that advocates for travelers with disabilities had
5 complained about the lack of uniformity in airline policies respecting accommodations for
6 individuals with disabilities. Such policies “vary from airline to airline, and can vary within any
7 one airline. . .. As a result, handicapped travelers cannot predict in advance what conditions
8 airlines may impose upon them.” S. Rep. No. 99-400, at 2 (1986).
9 In 2008, when the U.S. Department of Transportation (“DOT”) issued the extensively
10 revised, updated, and reorganized Part 382 regulations that are currently in effect (73 Fed. Reg.
11 27,614), the preamble to the rules emphasized that “[DOT] is responsible for ensuring consistent
12 nondiscriminatory treatment of passengers with disabilities,” and that the agency’s regulations
Beverly Hills, California 90212
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13 must “allow[] for clear and consistent implementation by the carriers, and clear and consistent
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14 enforcement by [DOT].” Id. at 27,615, emphasis added. Elaborating, the DOT stated that: “in
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15 order to ensure that carriers are accountable for providing nondiscriminatory service to
16 passengers with disabilities, detailed standards and requirements are essential,” so that
17 “effective enforcement of the rights Congress intended to protect in the ACAA” can be
18 realized. Id.
19 2. Preemption is the Mechanism for Fostering Uniformity.
20 “The supremacy clause of the United States Constitution . . . makes federal law
21 paramount, and vests Congress with the power to preempt state law.” People ex rel. Harris v.
22 Delta Air Lines, Inc., 247 Cal. App. 4th 884, 894 (2016). “Congress may exercise that power by
23 enacting an express preemption provision, or courts may infer preemption under one or more
24 of three implied preemption doctrines: conflict, obstacle, or field preemption.” Id.
25 “Implied preemption exists when federal law so thoroughly occupies a legislative field as
26 to make reasonable the inference that Congress left no room for the States to supplement it.”
27 [Cipollone v. Liggett Grp., 505 U.S. 504, 516 112 S. Ct. 2608 (1992)] (citing Fidelity Fed. Sav.
28 & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982)).
MEMORANDUM OF POINTS AND AUTHORITIES IN -6-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 Thus, field preemption occurs when Congress indicates in some manner an intent to occupy a
2 given field to the exclusion of state law. Cipollone, 505 U.S. at 516.” Montalvo, 508 F.3d at 470.
3 Access to commercial flights for passengers with disabilities is such a field.
4 The DOT, the agency charged with enforcing the ACAA, has clearly expressed an intent
5 for its regulations to have preemptive effect. The DOT has explained that the ACAA is “a
6 detailed, comprehensive, national regulation, based on Federal statute, that substantially, if not
7 completely, occupies the field of nondiscrimination on the basis of handicap in air travel.”
8 Nondiscrimination on the Basis of Handicap in Air Travel, 55 Fed.Reg. 8008, 8014 (Mar. 6,
9 1990). As such, the DOT cautioned that “interested parties should be on notice that there is a
10 strong likelihood that state action on matters covered by this rule will be regarded as preempted.”
11 Id.
12 These federal regulations – 14 C.F.R. Part 382 – aim to aid airlines in satisfying the
Beverly Hills, California 90212
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13 ACAA by (1) prohibiting carriers from discriminating against passengers on the basis of
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14 disability; (2) requiring carriers to make aircraft, other facilities, and services accessible; and (3)
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15 requiring carriers to take steps to accommodate passengers with a disability. See 14 C.F.R. §
16 382.1. Here, plaintiffs’ allegations implicate these mandates and directly relate to aspects of civil
17 aviation that are pervasively regulated at the federal level. For those reasons, the state law claims
18 asserted by plaintiffs are preempted.
19 C. Plaintiffs’ First Cause of Action Fails to State an Actionable Claim Against
20 SkyWest Because it is Preempted by the ACAA.
21 Captioned as a cause of action for “Violation of California Civil Code,” plaintiffs’ first
22 cause of action appears to be based on allegations that SkyWest violated California’s Unruh
23 Civil Rights Act, Civil Code § 51, et seq. (“UCRA”) and the California Disabled Persons Act,
24 Civil Code § 54 (“DPA”). These alleged violations, according to plaintiffs, relate to the airline’s
25 alleged denial of full and equal access to, and enjoyment of goods, services, transportation
26 services, facilities, privileges, advantages and/or accommodations within a public
27 accommodation. Compl., ¶ 29.
28 But because these are the very rights safeguarded under, and pervasively regulated by,
MEMORANDUM OF POINTS AND AUTHORITIES IN -7-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 the ACAA, they are not subject to regulation by individual states, including California through
2 the UCRA and the DPA. The ACAA and its regulations, intended to ensure nondiscriminatory
3 treatment of airline passengers, validly preempt the application of any different or higher state
4 standard of care as to how an airline responds to a request for assistance for a passenger with a
5 disability in moving through airports and onto airplanes. See Gilstrap v. United Air Lines, Inc.,
6 709 F.3d 995, 1007 (9th Cir. 2013); Nat’l Fed’n of the Blind v. United Airlines, Inc., 813 F.3d
7 718, 739 (9th Cir. 2016).
8 In Nat’l Fed’n of the Blind, plaintiffs’ also alleged that the airline defendant violated the
9 UCRA and the DPA when it deployed automated kiosks that were alleged to be not fully
10 accessible to customers with vision impairments. The Ninth Circuit affirmed the district court’s
11 dismissal of those claims on the ground that they were impliedly field preempted by the ACAA
12 and its pervasive regulations governing kiosk accessibility.
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13 The Court in Foley v. JetBlue Airways, Corp., No. C 10-3882 JCS, 2011 U.S. Dist.
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14 LEXIS 85426 (N.D. Cal. Aug. 3, 2011), reached the same conclusion with respect to the
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15 plaintiff’s UCRA and DPA claims. As applied to website and kiosk accessibility, these state law
16 claims – the same ones plaintiffs seek to assert in this case – were impliedly field preempted by
17 the ACAA and its pervasive regulations.
18 Here, as in Gilstrap, and as informed by National Federation of the Blind and Foley,
19 plaintiffs’ claims implicate the pervasive regulations promulgated to enforce the ACAA.
20 Specifically, the ACAA specifies the requirements air carriers must meet concerning all of the
21 following: (a) the accessibility of airport facilities (see, e.g., 14 C.F.R. § 382.51); (b) the
22 assistance provided to passengers with a disability in moving within the terminal (see, e.g., 14
23 C.F.R. § 382.91); (c) general obligations with respect to boarding assistance, including
24 preboarding for passengers with a disability (see, e.g., 14 C.F.R. §§ 382.93, 382.95); (d)
25 requirements air carriers must meet concerning (1) the accessibility of airport facilities (see, e.g.,
26 14 C.F.R. § 382.51); (2) the assistance to be provided to passengers with a disability in moving
27 within the terminal (see, e.g., 14 C.F.R. § 382.91); (3) the agreements carriers must have with the
28 airports they serve (see, e.g., 14 C.F.R. § 382.99); (4) other boarding and deplaning assistance
MEMORANDUM OF POINTS AND AUTHORITIES IN -8-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 carriers must provide (see, e.g., 14 C.F.R. § 382.101); (5) the conditions under which a carrier
2 can leave a passenger unattended in a wheelchair (see, e.g., 14 C.F.R. § 382.103); (6) services
3 that carriers must (and need not) provide to passengers with a disability aboard an aircraft (see,
4 e.g., 14 C.F.R. §§ 382.111, 382.113); and (7) stowage of wheelchairs, other mobility aids, and
5 other assistive devices on the aircraft (see, e.g., 14 C.F.R. §§ 382.121-382.133). An entire
6 subpart – Subpart J – of the regulations is devoted to training and administrative provisions, and
7 another – Subpart K – to complaints and enforcement procedures, including provisions
8 pertaining to airline employees designated as Complaints resolution officials (“CROs”). 5
9 As these pervasive federal regulations speak directly and authoritatively to the issues
10 raised by plaintiffs in their complaint, they impliedly preempt the state law claims they seek to
11 state, including those they seek to assert under California’s UCRA and DPA. Accordingly,
12 SkyWest’s Motion to their first cause of action should be sustained.
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
13 D. Plaintiffs’ Second Cause of Action Fails to State an Actionable Claim
VICTOR RANE
14 Against SkyWest Because it is Preempted by the ACAA and Isn’t a Legally
Telephone:
15 Cognizable Claim in any Event.
16 The second “cause of action” pleaded in the complaint is styled as one for negligence
17 per se. But “the doctrine of negligence per se is not a separate cause of action.” See Turner v.
18 Seterus, Inc., 27 Cal. App. 5th 516, 534 (2018).
19 Beyond that, the negligence per se cause of action rests on alleged violations of the
20 UCRA and the DPA, statutes that do not apply to SkyWest for the reasons discussed in the
21 preceding section. To the extent it is also premised on alleged violations of the ACAA, it fails as
22 well.
23 First, the fact is, no private right of action exists to vindicate rights protected by the
24 ACAA. See Segalman v. Sw. Airlines Co., 895 F.3d 1219, 1221 (9th Cir. 2018) (“We must
25 decide whether [the ACAA] is enforceable through an implied private cause of action. We hold
26 that it is not.”)
27
5
A CRO is presumably the person to whom plaintiffs advert by their description of “a supervising agent of the
28 airline to resolve a disabled persons problems encountered while seeking access to the airlines [sic] services.”
Compl., ¶ 16.
MEMORANDUM OF POINTS AND AUTHORITIES IN -9-
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 Second, negligence per se cannot be invoked to manufacture as pseudo private right of
2 action under a statute that doesn’t afford a private right of action. See, e.g., Venture Gen. Agency,
3 LLC v. Wells Fargo Bank, N.A., No. 19-cv-02778-TSH, 2019 U.S. Dist. LEXIS 129032, at *20-
4 21 (N.D. Cal. Aug. 1, 2019) (dismissing a purported negligence per se claim based upon alleged
5 violations of the Bank Secrecy Act and the Patriot Act neither of which afford a private right of
6 action).
7 Therefore, plaintiffs cannot use the doctrine of negligence per se as a means to fabricate
8 a private right of action to enforce a statute that, in reality, affords no private right of action.
9 SkyWest’s motion to the second cause of action should be sustained without leave to amend.
10 E. Plaintiffs Third through Fifth Causes of Action Fail to State Actionable
11 Claims Against SkyWest Because Those Negligence Claims are
12 Preempted by the ACAA.
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
13 Plaintiffs third, fourth, and fifth causes of action purport to state claims sounding in
VICTOR RANE
14 negligence. However, because the duties plaintiffs seek to enforce are obligations pervasively
Telephone:
15 regulated by the federal government, through the ACAA and its related regulations, the
16 negligence-based claims are preempted.
17 At best, to state a negligence based claim against SkyWest in this case, founded on the
18 acts and omissions referenced in the complaint, the claim necessarily must rely on the ACAA to
19 establish the duty of care. This is illustrated by the Court’s approach to the plaintiffs’ claims in
20 Gilstrap, supra, 709 F.3d 795.
21 In Gilstrap, plaintiff’s “negligence and breach-of-duty-of-a-common-carrier claims
22 challenge[d] [the airline’s] failure to provide her with assistance at all in traversing the air
23 terminal before, between, and after flights.” Id. at 1007. The Court of Appeals held that because
24 of its pervasive regulation of such matters, “[t]he ACAA and its implementing regulations
25 establish the standard of care – or duty – that [the airline] owed to [plaintiff] regarding that
26 activity, and so preempt any different or higher standard of care that may exist under California
27 tort law.” Precisely the same is true in this case.
28 The regulations discussed in Section C, above, detail what SkyWest is and isn’t required
MEMORANDUM OF POINTS AND AUTHORITIES IN - 10 -
SUPPORT OF MOTION FOR JUDGMENT ON THE
PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC.
CASE NO.: 19CECG00453
1 to do with regard to the issues that give rise to plaintiffs’ claims in this case. In order to “rely on
2 California tort law to establish the other elements of her claims -breach, causation, damages,
3 and remedies- she must allege, and then ultimately go on to prove, that SkyWest failed to meet
4 its obligations to plaintiffs under one or more specific provisions of the ACAA. Id. But
5 plaintiffs have not proffered allegations in support of a negligence claim that relies on the
6 ACAA to establish the standard of care.
7 With respect to the fourth and fifth causes of action, there are additional problems. The
8 fourth cause of action seeks to hold SkyWest to a heightened standard of care under California
9 law. That is precisely what Gilstrap teaches is forbidden. See also, Summers, supra, 805 F. Supp.
10 2d at 884 (“Preemption of state-law standards of care, in turn, precludes Plaintiff from asserting
11 failure to assist and failure to train claims under California Civil Code §§ 2100 and 2101, as
12 these statutes impose heightened state-law-based standards of care.”)
Beverly Hills, California 90212
9350 Wilshire Blvd., Suite 308
(310) 388-4849
13 The fifth cause of action seeks to assert a claim for negligent infliction of emotional
VICTOR RANE
14 distress (“NIED”). But NIED is not an independent tort. Marlene F. v. Affiliated Psychiatric
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15 Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989). It “is not a standalone cause of action.” See Wills
16 v. UPS, No. 19-cv-01819-NC, 2019 U.S. Dist. LEXIS 112918, at *8 (N.D. Cal. July 8, 2019).
17 In this case,
Preview
1 Richard A. Lazenby (State Bar No. 202105) E-FILED Email: rlazenby@victorrane.com 9/16/2020 4:00 PM 2 Geneva A. Collins (State Bar No. 187023) Superior Court of California Email: gcollins@victorrane.com County of Fresno 3 Michael Cutler (State Bar No. 298875) By: LP Deputy 4 Email: mcutler@victorrane.com VICTOR RANE 5 9350 Wilshire Blvd., Suite 308 Beverly Hills, California 90212 6 Telephone: (310) 388-4849 Facsimile: (310) 388-4869 7 8 Attorneys for Defendant SKYWEST AIRLINES, INC. 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF FRESNO 11 12 JOEY R. RODRIGUEZ and STEVE ) Case No.: 19CECG00453 RODRIGUEZ, ) Assigned for all purposes to Hon. Tyler D. 13 ) Tharpe, Dept. 402 Plaintiffs, ) 14 ) MEMORANDUM OF POINTS vs. ) AND AUTHORITIES IN 15 ) SUPPORT OF MOTION FOR DELTA AIRLINES, INC., a Georgia Corporate;) JUDGMENT ON THE 16 SKYWEST AIRLINES, INC., a Utah ) PLEADINGS BY DEFENDANT Corporation; DOE CHECK IN ATTENDANT, ) SKYWEST AIRLINES, INC. 17 a California Resident; DOE GATE ) ATTENDANT, a California Resident; CITY OF ) Date: October 8, 2020 18 FRESNO, a California Municipal Corporation; ) Time: 3:27 p.m. and DOES 1 to 100, inclusive, ) Dept. 502 19 ) Judge: Hon. Rosemary T. McGuire Defendants. ) 20 ) [Filed concurrently with: Notice of Motion; ) Motion for Judgment on the Pleadings; 21 ) Appendix of Authorities; and [Proposed] ) Order] 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 Table of Contents 2 I. INTRODUCTION ……………………………………………………………….. 1 3 II. STATEMENT OF THE CASE ………………………………………………….. 1 4 III. ARGUMENT ……………………………………………………………………. 3 5 A. Pertinent Standards for this Motion…………………………………….. 3 6 B. The Particular Context in Which Plaintiffs’ Claims 7 Allegedly Arise, Preemption, and the Application of Federal Law…………………………………………………….………. 4 8 1. The Imperative for Federal Regulation of Aviation …………………………………………………………. 4 9 10 2. Preemption is the Mechanism for Fostering Uniformity ……………………………………………….. 5 11 C. Plaintiffs’ First Cause of Action Fails to State 12 an Actionable Claim Against SkyWest Because it is 13 Preempted by the ACAA ………………………………………………. 6 14 D. Plaintiffs’ Second Cause of Action Fails to State an Actionable Claim Against SkyWest Because it is 15 Preempted by the ACAA and Isn’t a Legally Cognizable Claim in any Event ………………………………………… 8 16 17 E. Plaintiffs’ Third through Fifth Causes of Action Fail to State Actionable Claims Against SkyWest Because Those 18 Negligence Claims are Preempted by the ACAA ……………………….. 9 19 F. Plaintiffs’ Seventh Cause of Action Fails to State Actionable Claim for Declaratory Relief Because it Seeks a 20 Declaration That SkyWest Abide by Laws That are Preempted 21 by the ACAA and Do Not Apply to it ………………………...….……. 11 22 G. Plaintiffs’ Eight Cause of Action Fails to State an Actionable Claim Based on a Dangerous Condition of Public Property …………… 12 23 IV. CONCLUSION ………………………………………………………………… 12 24 25 26 27 28 TABLE OF CONTENTS AND AUTHORITIES. CASE NO.: 19CECG00453 1 Table of Authorities 2 Federal Cases Page(s) 3 Bahn v. Korean Airlines Co. (In re Korean Air Lines Co.) 4 642 F.3d 685 (9th Cir. 2011) ……………………………………………………………. 4 5 Cipollone v. Liggett Grp. 6 505 U.S. 504, 112 S. Ct. 2608 (1992) …………………………………………………… 6 7 Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta 458 U.S. 141, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982) ………………………………... 6 8 Foley v. JetBlue Airways, Corp. 9 No. C 10-3882 JCS, 2011 U.S. Dist. LEXIS 85426 (N.D. Cal. Aug. 3, 2011) …………. 7 10 French v. Pan Am Express, Inc., 11 869 F.2d 1 (1st Cir. 1989) ………………………………………………………………. 4 12 Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 Gilstrap v. United Air Lines, Inc. (310) 388-4849 709 F.3d 995 (9th Cir. 2013)………………………………………………….. 7, 9, 10, 11 13 VICTOR RANE 14 Montalvo v. Spirit Airlines 508 F.3d 464 (9th Cir. 2007) …………………………………………………………. 4, 6 Telephone: 15 Nat’l Fed’n of the Blind v.. United Airlines, Inc.……………………………………………… 7 16 813 F.3d 718 (9th Cir. 2016) 17 Segalman v. Sw. Airlines Co. 18 895 F.3d 1219 (9th Cir. 2018) ……………………………………………………………9 19 Summers v. Delta Airlines, Inc. 805 F. Supp. 2d 874 (N.D. Cal. 2011) ………………………………………………. 5, 10 20 Venture Gen. Agency, LLC v. Wells Fargo Bank, N.A. 21 No. 19-cv-02778-TSH, 2019 U.S. Dist. LEXIS 129032 (N.D. Cal. Aug. 1, 2019) ….… 9 22 Wills v. UPS 23 No. 19-cv-01819-NC, 2019 U.S. Dist. LEXIS 112918 (N.D. Cal. July 8, 2019) ……… 10 California Cases 24 Blank v. Kirwan 25 39 Cal. 3d 311 (1985) …………………………………………………………………………… 3 26 Cantu v. Resolution Tr. Corp 27 4 Cal. App. 4th 857 (1992) .……………………………………………………………………... 3 28 King v. CompPartners, Inc. 5 Cal. 5th 1039 (2018) ………………………………………………………………………... 3, 4 TABLE OF CONTENTS AND AUTHORITIES - ii - CASE NO.: 19CECG00453 1 Linda Vista Vill. San Diego Homeowners Ass’n, Inc. v. Tecolote Inv’rs, LLC 2 234 Cal. App. 4th 166 (2015) .……………………………………………………………1 3 Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. 4 48 Cal. 3d 583 (1989) .………………………………………………………………… 10 5 People ex rel Lungren v. Superior Court 14 Cal. 4th 294 (1996) ..………………………………………………………………… 1 6 People ex rel. Harris v. Delta Air Lines, Inc. 7 247 Cal. App. 4th 884 (2016)…………………………………………………………… 5 8 Sher v. Leiderman 9 181 Cal. App. 3d 867 (1986).…………………………………………………………… 3 10 Turner v. Seterus, Inc. 27 Cal. App. 5th 516 (2018) ……………………………………………………………. 8 11 12 Wholesale Elec. Antitrust Cases I & II Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 147 Cal. App. 4th 1293 (2007)………………………………………………………….. 3 13 Federal Statutes VICTOR RANE 14 49 U.S.C. § 40103 .......…………………………………………………………………………. 4 Telephone: 15 49 U.S.C. § 41705 ………………………………………………………………………… passim. 16 State Statutes 17 Cal. Civil Code § 51………………………………………………………………………….. 7, 11 18 Cal. Civil Code § 52…………………………………………………………………………….. 11 19 Cal. Civil Code § 54………………………………………………………………………….. 7, 11 20 Cal. Civil Code § 2100………………………………………………………………………….. 10 21 Cal. Civil Code § 2101………………………………………………………………………….. 10 22 Cal. Government Code § 835…………………………………………………………………… 12 23 Federal Regulations 24 14 C.F.R. § 382.1 ……………………………………………………………….………………6-7 25 14 C.F.R. § 382.51 ……………………………………………………………………………. 7, 8 26 14 C.F.R. § 382.91 ………………………………………………………………………………. 8 27 14 C.F.R. § 382.93 ………………………………………………………………………………. 8 28 14 C.F.R. § 382.95 ………………………………………………………………………………. 8 TABLE OF CONTENTS AND AUTHORITIES - iii - CASE NO.: 19CECG00453 1 14 C.F.R. § 382.99 ………………………………………………………………………………. 8 2 14 C.F.R. § 382.101 …………………………………………………………………………….. 8 3 14 C.F.R. § 382.103 ……………………………………………………………………………... 8 4 Other Authorities 5 Nondiscrimination on the Basis of Handicap in Air Travel 55 Fed.Reg. 8008 (Mar. 6, 1990)……………………………………………………….... 6 6 73 Fed. Reg. 27,614 …………………………………………………………………………... 5, 6 7 8 9 10 11 12 Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 VICTOR RANE 14 Telephone: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS AND AUTHORITIES - iv - CASE NO.: 19CECG00453 1 Defendant SkyWest Airlines, Inc. (“SkyWest”), submits its memorandum of points and 2 authorities in support of its Motion for Judgment on the Pleadings (“Motion”) against plaintiffs 3 Joey Rodriguez and Steve Rodriguez (collectively “Plaintiffs”) as follows: 4 I. INTRODUCTION 5 With a complaint that purports to state eight causes of action against all Defendants, 6 plaintiffs, including one who is a person with disabilities, seek damages for problems they claim 7 they encountered in traveling from Fresno to Salt Lake City. In the main, the defects in the 8 complaint, as pertinent to SkyWest, center upon the erroneous premise that that the accessibility 9 issues they raise are governed by the same state laws that would apply had the alleged events 10 occurred at, say, a shopping mall, not an airport. 11 Because of the context in which the alleged issues presented themselves – at an airport 12 and on an airplane, a particular set of federal rules and regulations govern plaintiffs’ claims Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 against SkyWest. And because they do, state law does not. For the reasons explained below, VICTOR RANE 14 SkyWest’s motion to the complaint, which relies solely on California law, should be sustained. Telephone: 15 II. STATEMENT OF THE CASE1 16 On or about February 8, 2017, plaintiffs purchased two roundtrip tickets for travel 17 between Fresno and Salt Lake City. Compl., ¶ 11. (They don’t allege from whom the tickets 18 were purchased.) Plaintiffs appear to aver that they flew on a flight that originated in Fresno 19 and was operated by one of the defendants. Id., ¶ 12. 20 Defendants were informed that plaintiff Joey Rodriguez needed physical assistance onto 21 the aircraft. Id. This request for “disabled accommodations boarding Defendants’ aircraft” was 22 made at least twice, “[o]n, before, and after” the date of their travel aboard the Salt Lake City – 23 bound flight. Id. Defendants (plaintiffs do not specify which of them) “assured Plaintiffs that 24 they had arranged disabled accommodations for” Joey Rodriguez, “including pre-boarding and 25 enplaning assistance to actually get her[2] aboard the Defendants’ aircraft.” Id. 26 1 Because when considering a demurrer, “courts accept the plaintiff’s properly pleaded facts as true, [and] a 27 demurrer is not deemed to admit any conclusions of law or fact, or any mere contentions[,]” regardless of the degree to which it may dispute them, SkyWest provides a recital of the facts as alleged by plaintiffs in their complaint. 28 Linda Vista Vill. San Diego Homeowners Ass’n, Inc. v. Tecolote Inv’rs, LLC, 234 Cal. App. 4th 166, 173 (2015) (citing People ex rel Lungren v. Superior Court, 14 Cal.4th 294, 300-301(1996)). MEMORANDUM OF POINTS AND AUTHORITIES IN -2- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 Plaintiffs’ case appears to be premised on two aspects of their journey with which they 2 were dissatisfied. First, they allege that unspecified defendants (a) “refused to provide assistance 3 to [Joey Rodriguez] and directed himself [sic] and his party to take themselves down the 4 jetbridge to the aircraft” (id., ¶ 13) and (b) “failed to properly provide Plaintiffs with requested 5 assistance” (id., ¶ 14). Second, plaintiffs complain about the allegedly “dangerous and unlawful 6 condition of the jetbridge including unlawful and excessive slopes.” Id., ¶ 15. 7 In connection with both of these alleged issues, plaintiffs also reckon that defendants 8 “failed to teach, train, instruct, and provide proper guidance, supervision and/or to [their] 9 employees, agents and/or operators.” Id., ¶ 16. According to plaintiffs, this purported lack of 10 training extended to the following topics: “proper procedures for emplaning [sic] disabled 11 individuals, the requirement that medical equipment be exempt from carry-on baggage limits, 12 providing immediate access and assistance to a supervising agent of the airline to resolve a Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 disabled persons [sic] problems encountered while seeking access to the airlines services, and VICTOR RANE 14 establishing proper policies and practices for addressing passengers whose size may call for the Telephone: 15 purchase of more than one plane ticket.” Id. 16 Plaintiffs contend that as a result of this “wrongful and unsafe conduct of Defendants,” 17 they “have suffered physical injuries, emotional upset, embarrassment, humiliation and distress, 18 which [sic] resulting physical manifestations.” Id., ¶ 17. 19 In characterizing their claims, plaintiffs maintain that they “were denied full and equal 20 access to public programs, activities, or services and they were denied equal access to the 21 facilities owned and/or operated by the Defendants because the services were inaccessible to 22 members of the disabled community who use wheelchairs for mobility or carry medical 23 equipment as carry-on luggage when, they travel.” Id., ¶ 20. 24 This alleged denial of access occurred, according to plaintiffs, “because of barriers which 25 included, but were not limited to, the failure to provide required proper enplanement, loading, 26 boarding and safety procedures which rendered the system not readily accessible to users with 27 28 2 In the complaint, female and male personal pronouns are used in reference to Joey Rodriguez. It is our understanding that Joey Rodriguez is male. MEMORANDUM OF POINTS AND AUTHORITIES IN -3- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 disabilities and the failure to properly train, instruct, supervise and oversee the employees, 2 agents and/or operators to ensure that he, she or they provided appropriate services.” Id. 3 By their complaint, plaintiffs seek to recover actual, special and/or statutory damages 4 (id., prayer ¶ 1), compensatory damages (id., ¶ 2), general damages (id., ¶ 3), special damages 5 (id., ¶ 4), medical expenses (id., ¶ 5), lost earnings and earning capacity (id., ¶ 6), treble damages 6 (id., ¶ 7), declaration regarding the rights and duties of the parties (id., ¶ 8), attorney fees’ and 7 costs (id., ¶ 9), and interest (id., ¶ 10). 8 III. ARGUMENT 9 A. Pertinent Standards for this Motion for Judgment on the Pleadings 10 A defendant may move for a judgment on the pleadings if the plaintiff’s “complaint does 11 not state facts sufficient to constitute a cause of action against that defendant.” CAL. CIV. PROC. 12 CODE § 438 (c)(1)(B)(ii); Smiley v. Citibank, 11 Cal. 4th 138, 145, 900 P.2d 690 (1995), aff'd Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 sub nom. Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 116 S. Ct. 1730, 135 L. Ed. 2d 25 VICTOR RANE 14 (1996). A motion for judgment on the pleadings is analogous to a general demurrer, but may be Telephone: 15 made after the time to file a demurrer has expired. Id. at (f)(2); Ludgate Ins. Co. v. Lockheed 16 Martin Corp., 82 Cal.App.4th 592, 602 (2000). 17 The complaint must allege sufficient facts necessary for the statement of an actionable 18 claim, and not cannot rely solely on general allegations, contentions, deductions, or conclusions 19 of law. Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1390, 272 Cal. Rptr. 20 387 (Ct. App. 1990), as modified on denial of reh'g (Oct. 31, 2001); Pich v. Lightbourne, 221 21 Cal. App. 4th 480, 496, 164 Cal. Rptr. 3d 388, 400 (2013). 22 Leave to amend should not be granted if “there is no reasonable probability or reasonable 23 possibility that plaintiff can amend his complaint to state a cause of action” against the 24 defendant. Kilgore v. Younger, 30 Cal. 3d 770, 783, 640 P.2d 793, 800 (1982). “The burden of 25 proving such reasonable possibility is squarely on the plaintiff.” Pich, 221 Cal. App. 4th at 490. 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN -4- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 B. The Particular Context in Which Plaintiff Claim Allegedly Arise, 2 Preemption, and the Application of Federal Law. 3 1. The Imperative for Federal Regulation of Aviation. 4 The primary reason plaintiffs fail to state actionable claims has to do with the context in 5 which their alleged claims arose –circumstances which implicate the operations of a commercial 6 airline. In the United States, aviation is a field that has long been and firmly remains — subject 7 to comprehensive federal supervision and control. 8 Largely animated by grave concerns that air safety and commerce are jeopardized by 9 fractured and divided rulemaking and enforcement, Congress determined to repose in “one 10 agency of government, and one agency alone, responsibility for issuing safety regulations [in 11 order] to have timely and effective guidelines for safety in aviation.” See Pub. L. No. 85-726, § 12 601(a)(1), (2). Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 The exhaustive regulatory scheme conceived to govern aviation was given voice through VICTOR RANE 14 the Federal Aviation Act of 1958, 49 U.S.C. § 40103, et seq. (“FA Act”); the federal agency Telephone: 15 created to exercise “full responsibility and authority for the advancement and promulgation of 16 civil aeronautics generally, including the promulgation and enforcement of safety regulations[,]” 17 was the Federal Aviation Administration (the FAA). 3 18 In large measure, the imperative for centralized regulation was to ensure uniformity. The 19 aim was, and is, to prevent a “patchwork of state laws,” and the creation of “a crazyquilt effect” 20 that would result if individual states and localities enforced their own rules and regulations in a 21 field where uniformity is critically important. See, e.g., Montalvo v. Spirit Airlines, 508 F.3d 22 464, 473 (9th Cir. 2007); French v. Pan Am Express, Inc., 869 F.2d 1, 6-7 (1st Cir. 1989). 4 23 After nearly 30 years, the Air Carrier Access Act (“ACAA”), Pub. L. No. 99-435, § 2(a), 24 25 3 Prior to 1967, the FAA was known as the Federal Aviation Agency. 26 4 See also, Bahn v. Korean Airlines Co. (In re Korean Air Lines Co.), 642 F.3d 685, 694 (9th Cir. 2011) (“In addition to protecting consumers, federal regulation insures a uniform system of regulation and preempts regulation 27 by the states’ in a field where state-based variations ‘would be confusing and burdensome to airline passengers, as well as to the airlines.’” Id., quoting H.R. Rep. 98-793, at 4 (1984)). 28 MEMORANDUM OF POINTS AND AUTHORITIES IN -5- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 100 Stat. 1080, was enacted in 1986 as an amendment to the FA Act. See Summers v. Delta 2 Airlines, Inc., 805 F. Supp. 2d 874, 877-878 (N.D. Cal. 2011). It is now codified at 49 U.S.C. § 3 41705 and the extensive implementing regulations are published in 14 C.F.R. part 382. The 4 legislative history of the ACAA confirms that advocates for travelers with disabilities had 5 complained about the lack of uniformity in airline policies respecting accommodations for 6 individuals with disabilities. Such policies “vary from airline to airline, and can vary within any 7 one airline. . .. As a result, handicapped travelers cannot predict in advance what conditions 8 airlines may impose upon them.” S. Rep. No. 99-400, at 2 (1986). 9 In 2008, when the U.S. Department of Transportation (“DOT”) issued the extensively 10 revised, updated, and reorganized Part 382 regulations that are currently in effect (73 Fed. Reg. 11 27,614), the preamble to the rules emphasized that “[DOT] is responsible for ensuring consistent 12 nondiscriminatory treatment of passengers with disabilities,” and that the agency’s regulations Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 must “allow[] for clear and consistent implementation by the carriers, and clear and consistent VICTOR RANE 14 enforcement by [DOT].” Id. at 27,615, emphasis added. Elaborating, the DOT stated that: “in Telephone: 15 order to ensure that carriers are accountable for providing nondiscriminatory service to 16 passengers with disabilities, detailed standards and requirements are essential,” so that 17 “effective enforcement of the rights Congress intended to protect in the ACAA” can be 18 realized. Id. 19 2. Preemption is the Mechanism for Fostering Uniformity. 20 “The supremacy clause of the United States Constitution . . . makes federal law 21 paramount, and vests Congress with the power to preempt state law.” People ex rel. Harris v. 22 Delta Air Lines, Inc., 247 Cal. App. 4th 884, 894 (2016). “Congress may exercise that power by 23 enacting an express preemption provision, or courts may infer preemption under one or more 24 of three implied preemption doctrines: conflict, obstacle, or field preemption.” Id. 25 “Implied preemption exists when federal law so thoroughly occupies a legislative field as 26 to make reasonable the inference that Congress left no room for the States to supplement it.” 27 [Cipollone v. Liggett Grp., 505 U.S. 504, 516 112 S. Ct. 2608 (1992)] (citing Fidelity Fed. Sav. 28 & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982)). MEMORANDUM OF POINTS AND AUTHORITIES IN -6- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 Thus, field preemption occurs when Congress indicates in some manner an intent to occupy a 2 given field to the exclusion of state law. Cipollone, 505 U.S. at 516.” Montalvo, 508 F.3d at 470. 3 Access to commercial flights for passengers with disabilities is such a field. 4 The DOT, the agency charged with enforcing the ACAA, has clearly expressed an intent 5 for its regulations to have preemptive effect. The DOT has explained that the ACAA is “a 6 detailed, comprehensive, national regulation, based on Federal statute, that substantially, if not 7 completely, occupies the field of nondiscrimination on the basis of handicap in air travel.” 8 Nondiscrimination on the Basis of Handicap in Air Travel, 55 Fed.Reg. 8008, 8014 (Mar. 6, 9 1990). As such, the DOT cautioned that “interested parties should be on notice that there is a 10 strong likelihood that state action on matters covered by this rule will be regarded as preempted.” 11 Id. 12 These federal regulations – 14 C.F.R. Part 382 – aim to aid airlines in satisfying the Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 ACAA by (1) prohibiting carriers from discriminating against passengers on the basis of VICTOR RANE 14 disability; (2) requiring carriers to make aircraft, other facilities, and services accessible; and (3) Telephone: 15 requiring carriers to take steps to accommodate passengers with a disability. See 14 C.F.R. § 16 382.1. Here, plaintiffs’ allegations implicate these mandates and directly relate to aspects of civil 17 aviation that are pervasively regulated at the federal level. For those reasons, the state law claims 18 asserted by plaintiffs are preempted. 19 C. Plaintiffs’ First Cause of Action Fails to State an Actionable Claim Against 20 SkyWest Because it is Preempted by the ACAA. 21 Captioned as a cause of action for “Violation of California Civil Code,” plaintiffs’ first 22 cause of action appears to be based on allegations that SkyWest violated California’s Unruh 23 Civil Rights Act, Civil Code § 51, et seq. (“UCRA”) and the California Disabled Persons Act, 24 Civil Code § 54 (“DPA”). These alleged violations, according to plaintiffs, relate to the airline’s 25 alleged denial of full and equal access to, and enjoyment of goods, services, transportation 26 services, facilities, privileges, advantages and/or accommodations within a public 27 accommodation. Compl., ¶ 29. 28 But because these are the very rights safeguarded under, and pervasively regulated by, MEMORANDUM OF POINTS AND AUTHORITIES IN -7- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 the ACAA, they are not subject to regulation by individual states, including California through 2 the UCRA and the DPA. The ACAA and its regulations, intended to ensure nondiscriminatory 3 treatment of airline passengers, validly preempt the application of any different or higher state 4 standard of care as to how an airline responds to a request for assistance for a passenger with a 5 disability in moving through airports and onto airplanes. See Gilstrap v. United Air Lines, Inc., 6 709 F.3d 995, 1007 (9th Cir. 2013); Nat’l Fed’n of the Blind v. United Airlines, Inc., 813 F.3d 7 718, 739 (9th Cir. 2016). 8 In Nat’l Fed’n of the Blind, plaintiffs’ also alleged that the airline defendant violated the 9 UCRA and the DPA when it deployed automated kiosks that were alleged to be not fully 10 accessible to customers with vision impairments. The Ninth Circuit affirmed the district court’s 11 dismissal of those claims on the ground that they were impliedly field preempted by the ACAA 12 and its pervasive regulations governing kiosk accessibility. Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 The Court in Foley v. JetBlue Airways, Corp., No. C 10-3882 JCS, 2011 U.S. Dist. VICTOR RANE 14 LEXIS 85426 (N.D. Cal. Aug. 3, 2011), reached the same conclusion with respect to the Telephone: 15 plaintiff’s UCRA and DPA claims. As applied to website and kiosk accessibility, these state law 16 claims – the same ones plaintiffs seek to assert in this case – were impliedly field preempted by 17 the ACAA and its pervasive regulations. 18 Here, as in Gilstrap, and as informed by National Federation of the Blind and Foley, 19 plaintiffs’ claims implicate the pervasive regulations promulgated to enforce the ACAA. 20 Specifically, the ACAA specifies the requirements air carriers must meet concerning all of the 21 following: (a) the accessibility of airport facilities (see, e.g., 14 C.F.R. § 382.51); (b) the 22 assistance provided to passengers with a disability in moving within the terminal (see, e.g., 14 23 C.F.R. § 382.91); (c) general obligations with respect to boarding assistance, including 24 preboarding for passengers with a disability (see, e.g., 14 C.F.R. §§ 382.93, 382.95); (d) 25 requirements air carriers must meet concerning (1) the accessibility of airport facilities (see, e.g., 26 14 C.F.R. § 382.51); (2) the assistance to be provided to passengers with a disability in moving 27 within the terminal (see, e.g., 14 C.F.R. § 382.91); (3) the agreements carriers must have with the 28 airports they serve (see, e.g., 14 C.F.R. § 382.99); (4) other boarding and deplaning assistance MEMORANDUM OF POINTS AND AUTHORITIES IN -8- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 carriers must provide (see, e.g., 14 C.F.R. § 382.101); (5) the conditions under which a carrier 2 can leave a passenger unattended in a wheelchair (see, e.g., 14 C.F.R. § 382.103); (6) services 3 that carriers must (and need not) provide to passengers with a disability aboard an aircraft (see, 4 e.g., 14 C.F.R. §§ 382.111, 382.113); and (7) stowage of wheelchairs, other mobility aids, and 5 other assistive devices on the aircraft (see, e.g., 14 C.F.R. §§ 382.121-382.133). An entire 6 subpart – Subpart J – of the regulations is devoted to training and administrative provisions, and 7 another – Subpart K – to complaints and enforcement procedures, including provisions 8 pertaining to airline employees designated as Complaints resolution officials (“CROs”). 5 9 As these pervasive federal regulations speak directly and authoritatively to the issues 10 raised by plaintiffs in their complaint, they impliedly preempt the state law claims they seek to 11 state, including those they seek to assert under California’s UCRA and DPA. Accordingly, 12 SkyWest’s Motion to their first cause of action should be sustained. Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 D. Plaintiffs’ Second Cause of Action Fails to State an Actionable Claim VICTOR RANE 14 Against SkyWest Because it is Preempted by the ACAA and Isn’t a Legally Telephone: 15 Cognizable Claim in any Event. 16 The second “cause of action” pleaded in the complaint is styled as one for negligence 17 per se. But “the doctrine of negligence per se is not a separate cause of action.” See Turner v. 18 Seterus, Inc., 27 Cal. App. 5th 516, 534 (2018). 19 Beyond that, the negligence per se cause of action rests on alleged violations of the 20 UCRA and the DPA, statutes that do not apply to SkyWest for the reasons discussed in the 21 preceding section. To the extent it is also premised on alleged violations of the ACAA, it fails as 22 well. 23 First, the fact is, no private right of action exists to vindicate rights protected by the 24 ACAA. See Segalman v. Sw. Airlines Co., 895 F.3d 1219, 1221 (9th Cir. 2018) (“We must 25 decide whether [the ACAA] is enforceable through an implied private cause of action. We hold 26 that it is not.”) 27 5 A CRO is presumably the person to whom plaintiffs advert by their description of “a supervising agent of the 28 airline to resolve a disabled persons problems encountered while seeking access to the airlines [sic] services.” Compl., ¶ 16. MEMORANDUM OF POINTS AND AUTHORITIES IN -9- SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 Second, negligence per se cannot be invoked to manufacture as pseudo private right of 2 action under a statute that doesn’t afford a private right of action. See, e.g., Venture Gen. Agency, 3 LLC v. Wells Fargo Bank, N.A., No. 19-cv-02778-TSH, 2019 U.S. Dist. LEXIS 129032, at *20- 4 21 (N.D. Cal. Aug. 1, 2019) (dismissing a purported negligence per se claim based upon alleged 5 violations of the Bank Secrecy Act and the Patriot Act neither of which afford a private right of 6 action). 7 Therefore, plaintiffs cannot use the doctrine of negligence per se as a means to fabricate 8 a private right of action to enforce a statute that, in reality, affords no private right of action. 9 SkyWest’s motion to the second cause of action should be sustained without leave to amend. 10 E. Plaintiffs Third through Fifth Causes of Action Fail to State Actionable 11 Claims Against SkyWest Because Those Negligence Claims are 12 Preempted by the ACAA. Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 Plaintiffs third, fourth, and fifth causes of action purport to state claims sounding in VICTOR RANE 14 negligence. However, because the duties plaintiffs seek to enforce are obligations pervasively Telephone: 15 regulated by the federal government, through the ACAA and its related regulations, the 16 negligence-based claims are preempted. 17 At best, to state a negligence based claim against SkyWest in this case, founded on the 18 acts and omissions referenced in the complaint, the claim necessarily must rely on the ACAA to 19 establish the duty of care. This is illustrated by the Court’s approach to the plaintiffs’ claims in 20 Gilstrap, supra, 709 F.3d 795. 21 In Gilstrap, plaintiff’s “negligence and breach-of-duty-of-a-common-carrier claims 22 challenge[d] [the airline’s] failure to provide her with assistance at all in traversing the air 23 terminal before, between, and after flights.” Id. at 1007. The Court of Appeals held that because 24 of its pervasive regulation of such matters, “[t]he ACAA and its implementing regulations 25 establish the standard of care – or duty – that [the airline] owed to [plaintiff] regarding that 26 activity, and so preempt any different or higher standard of care that may exist under California 27 tort law.” Precisely the same is true in this case. 28 The regulations discussed in Section C, above, detail what SkyWest is and isn’t required MEMORANDUM OF POINTS AND AUTHORITIES IN - 10 - SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS BY DEFENDANT SKYWEST AIRLINES, INC. CASE NO.: 19CECG00453 1 to do with regard to the issues that give rise to plaintiffs’ claims in this case. In order to “rely on 2 California tort law to establish the other elements of her claims -breach, causation, damages, 3 and remedies- she must allege, and then ultimately go on to prove, that SkyWest failed to meet 4 its obligations to plaintiffs under one or more specific provisions of the ACAA. Id. But 5 plaintiffs have not proffered allegations in support of a negligence claim that relies on the 6 ACAA to establish the standard of care. 7 With respect to the fourth and fifth causes of action, there are additional problems. The 8 fourth cause of action seeks to hold SkyWest to a heightened standard of care under California 9 law. That is precisely what Gilstrap teaches is forbidden. See also, Summers, supra, 805 F. Supp. 10 2d at 884 (“Preemption of state-law standards of care, in turn, precludes Plaintiff from asserting 11 failure to assist and failure to train claims under California Civil Code §§ 2100 and 2101, as 12 these statutes impose heightened state-law-based standards of care.”) Beverly Hills, California 90212 9350 Wilshire Blvd., Suite 308 (310) 388-4849 13 The fifth cause of action seeks to assert a claim for negligent infliction of emotional VICTOR RANE 14 distress (“NIED”). But NIED is not an independent tort. Marlene F. v. Affiliated Psychiatric Telephone: 15 Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989). It “is not a standalone cause of action.” See Wills 16 v. UPS, No. 19-cv-01819-NC, 2019 U.S. Dist. LEXIS 112918, at *8 (N.D. Cal. July 8, 2019). 17 In this case,