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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JEANETTE BROWN,

Plaintiff,

v.

HTR PROPERTIES LLC, et al.,

Defendants.

Case No. 3:17-cv-00829-WHO 

ORDER GRANTING MOTION TO 

DISMISS CROSSCLAIMS

Re: Dkt. No. 31

INTRODUCTION

This is an ADA case in which the plaintiff sued both the property owner and the lessee. 

The owner and lessee then asserted crossclaims against each other, purportedly based on the lease 

agreement. The owner of the property, co-defendant HTR Properties LLC (“HTR”), now moves 

to dismiss the crossclaims asserted by the lessee, co-defendant Ukiah Car Center LLC (“UCC”), 

because UCC fails to identify the basis for its claims. I found the matter appropriate for resolution 

without oral argument. Civil L. R. 7-1(b). Because I agree with HTR that UCC’s claims attempt 

to rely on the ADA, do not derive from the lease agreement, and do not state a plausible claim for 

relief, I am GRANTING HTR’s motion. UCC’s claims are dismissed with leave to amend.

BACKGROUND

On February 20, 2017, Plaintiff Jeanette Brown brought this action against defendants 

Redwood Ford; Ukiah Ford Inc.; HTR Properties LLC (“HTR”), and Corey Abel, for violations of 

the Americans with Disabilities Act of 1990 (“ADA”), and related causes of action. She later 

amended her complaint and added Ukiah Car Center LLC (“UCC”) as a defendant. First Am. 

Compl. (“FAC”)(Dkt. No. 15). She alleges that “defendants failed to provide proper legal access 

to Redwood Ford (formerly Ukiah Ford), which is a ‘public accommodation’ and/or a ‘public 
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facility’ including, but not limited to signage, parking, service counter, women’s restroom, men’s 

restroom.” FAC ¶ 3. UCC leases the subject real property from HTR. HTR Answer ¶ 10, HTR 

Crossclaim ¶ 1 (Dkt. No. 30); UCC Answer ¶ 10 (Dkt. No. 26). Each co-defendant asserted 

crossclaims against the other for indemnification based on the lease agreement.1 See HTR 

Crossclaim (Dkt. No. 30 at 10); UCC Crossclaim2(Dkt. No. 26 at 18).

UCC’s crossclaim states, “[p]ursuant to the terms and provisions of the AGREEMENT, 

LESSOR was and is responsible for ensuring THE PROPERTY complies with State and Federal 

accessibility laws and has a duty to defend, indemnify, and hold harmless LESSEE against any 

and all claims related to accessibility of THE PROPERTY.” UCC ACC ¶ 6. It asserts five causes 

of action against HTR: (1) “express and equitable indemnity and defense against defendant lessor 

resulting from alleged Violations of the Americans with Disabilities Act,” id. ¶¶ 7–9; (2) “defense 

and indemnity against claims resulting from alleged violations of California Code,” id. at ¶¶10–12; 

(3) “defense and indemnity against claims resulting from alleged violations of the health and 

safety code,” id. ¶¶ 13–15; (4) declaratory relief, id. ¶¶ 16–18; and injunctive relief, id. ¶¶ 19–21.

On June 2, 2017, HTR moved to dismiss UCC’s crossclaim in its entirety.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a cause of 

action if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) 

motion to dismiss, a claimant must allege “enough facts to state a claim to relief that is plausible 

on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 

plausible when a claimant pleads facts that “allow the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted 

 

1 HTR attached the lease agreement to its crossclaim. See HTR Crossclaim Ex. A (Dkt. 30-1). 

Because UCC relied on the lease agreement in its crossclaims, application of the incorporation by 

reference doctrine is appropriate. HTR’s crossclaims are not the subject of this (or any pending) 

motion, so they are not discussed in depth.

2 UCC referred to its “counterclaim,” but since its claims are brought against a co-defendant, they 

are properly labeled crossclaims. Fed. R. Civ. P. 13(g).
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United States District Court

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unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a claimant

must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly, 

550 U.S. at 555, 570. 

In deciding whether a claimant has stated a claim upon which relief can be granted, the 

Court accepts the allegations as true and draws all reasonable inferences in favor of the claimant. 

See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not 

required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, 

or unreasonable inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 

2008).

If the court dismisses any claims, it “should grant leave to amend even if no request to 

amend the pleading was made, unless it determines that the pleading could not possibly be cured 

by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In 

making this determination, the court should consider factors such as “the presence or absence of 

undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous 

amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See

Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).

DISCUSSION

HTR asserts contends that UCC fails to allege a breach of the lease agreement or the 

“existence of an ‘actual controversy’ that would warrant declaratory relief.” Id. at 5–6.3 UCC’s 

response is confused. It argues that “Ukiah’s lease has no effect on HTR’s pre-existing ADA 

obligations,” and proceeds to argue that its crossclaims must survive as a matter of law. Opp’n at 

3–7 (Dkt. No. 37-1). To be sure, “the landlord is a necessary party in an ADA action, regardless 

of what the lease provides.” Botosan v. Paul McNally Realty, 216 F.3d 827, 834 (9th Cir. 2000); 

see also Kohler v. Bed Bath & Beyond of California, LLC, 780 F.3d 1260, 1264 (9th Cir. 

 

3

It also argued that UCC “failed to adequately allege the existence and the specific terms of the 

contract upon which its claims are based[,]” and moves to dismiss each of UCC’s crossclaims. 

HTR Mot. to Dismiss UCC’s Crossclaim at 4 (“MTD”)(Dkt. No. 31). HTR knows that a contract 

exists here—it cites to it, repeats provisions verbatim in its motion, and attached it to its own 

crossclaim. Id. at 1–3; see Lease Agreement (Dkt. No. 30-1). 
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2015)(“Botosan allowed a plaintiff to sue both landlord and tenant for ADA violations, confident 

that one party would be liable for barrier removal notwithstanding the lease provisions.”). And, 

not surprisingly, HTR is a party to the ADA action. The lease agreement has no effect on HTR’s 

pre-existing ADA obligations to the plaintiff. But the ADA does not provide a basis for a lessee to 

state claims against a lessor.

4

 The two issues are discrete. The Botosan court found that “[t]he 

landlord can in turn seek indemnification from the tenant pursuant to their lease agreement.” Id. at 

832. The reverse may be true as well, but the indemnification claims must be based on the lease 

agreement, not on the ADA.

The lease agreement, which was attached to HTR’s crossclaim, provides indemnity to the 

landlord for liability arising from the tenant’s use of the property.5 See Lease Agreement § 5.07 

(Dkt. No. 30-1 at 16). It also states that “Landlord is making absolutely no representation or 

warranty regarding whether the Property is in compliance with the ADA.” Id. § 5.03. And it 

provides UCC with a credit against the purchase price of the property if UCC is required to make 

any improvements or changes. Id. In the face of those provisions of the lease, UCC states that it 

“properly provide[d] Cross-Defendant HTR with a factual showing of the right to indemnity and 

defense arising out of their lessor-leasee [sic] relationship pertaining to the ADA and California 

Unruh Act.” Opp’n at 7. But it did not identify any provision of the lease agreement supporting

its assertion.

UCC’s crossclaims fail to include sufficient factual allegations to “raise a right to relief 

above the speculative level.” See Twombly, 550 U.S. at 555, 570. And its opposition likewise fell 

short of illuminating the issues.

6

 The agreement certainly seems to suggest that there is no basis

 

4

To further elucidate the distinction, Botosan and Kohler are not even relevant here, where UCC’s 

claims against HTR are based in contract. They would be relevant, however, if HTR had moved 

to dismiss plaintiff’s claims against it, citing the lease agreement. In that scenario, plaintiff could 

cite to these cases to show that a “landlord could not contract away its responsibility under the 

ADA.” Kohler, 780 F.3d at 1264.

5 HTR’s crossclaim asserts that its liability results from UCC’s operation of a public business and 

public accommodation, which triggers the lease term provision requiring UCC to indemnify it. 

See HTR Crossclaim ¶¶ 14–15. Because its crossclaims are not at issue here, I make no 

representations as to the viability of those claims.

6 At certain points, UCC indicated that it seeks indemnification only with respect to the parking 
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for UCC’s claims. I will grant leave to amend, but UCC should specify the basis for its claim 

arising from the lease to state a plausible cause of action.

CONCLUSION

In accordance with the foregoing, HTR’s motion is GRANTED. UCC’s crossclaims are 

DISMISSED with leave to amend within 20 days.

IT IS SO ORDERED.

Dated: August 11, 2017

William H. Orrick

United States District Judge

 

area and common areas and not with respect to the interior of the Redwood Ford building. 

Crossclaim ¶ 8, Opp’n at 5. UCC appears to point to ADA law to justify this distinction, but again 

provides no factual basis for the claims.