NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAMELA SMITH, 

Plaintiff-Appellant, 

 v. 

PRIDE MOBILITY PRODUCTS 

CORPORATION, 

Defendant-Appellee.

No. 17-15551 

D.C. No. 5:16-cv-04411-LHK 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Submitted October 23, 2017**

Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges 

Pamela Smith, an attorney, appeals pro se from the district court’s judgment 

dismissing her diversity action arising from injuries that resulted from a defective 

wheelchair and lift. We have jurisdiction under 28 U.S.C. § 1291. We review de 

novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(6). Skilstaf, Inc. v. 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

OCT 31 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-15551 

CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012). We affirm in part, 

reverse in part, and remand.

The district court properly dismissed Smith’s claim under California’s 

Unruh Civil Rights Act because Smith failed to allege facts sufficient to show that 

appellee denied her full and equal accommodations or services. See Cal. Civ.

Code § 51(b).

The district court properly dismissed Smith’s claim under California Civil 

Code section 51.7 because Smith failed to allege facts sufficient to show that 

appellee committed violence or intimidation by threat of violence against her 

person or property. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d

1276, 1289 (9th Cir. 2001) (elements of section 51.7 claim).

To the extent Smith alleged negligence per se claims based on the violation 

of federal and state laws, the district court properly dismissed such claims because 

Smith failed to allege facts sufficient to show how any specific federal or state 

laws or regulations were violated. See Ramirez v. Nelson, 188 P.3d 659, 665 (Cal. 

2008) (elements of negligence per se claim). 

However, Smith alleged that her wheelchair deviated from appellee’s 

intended design because 1) the brakes on the wheelchair failed on a hill; and 2) the 

lift’s retraction device caused the lift’s control device to retract too far into the 

vehicle. Liberally construed, these allegations are sufficient to state a 
3 17-15551 

manufacturing defect claim. See Barker v. Lull Eng’g Co., 573 P.2d 443, 454

(Cal. 1978) (elements of manufacturing defect claim).

Smith also alleged that her wheelchair’s design resulted in the loss of brakes

on a hill as well as the loss of control over the wheelchair, and that the lift’s design 

results in the lift’s retraction device causing the lift’s control device to retract too 

far into the vehicle. Liberally construed, these allegations are sufficient to state a 

design defect claim under both the consumer expectations test and risk benefit test. 

See id. at 455-56 (elements of design defect claim under risk benefit test and 

consumer expectations test). 

We reverse the dismissal of Smith’s manufacturing defect product liability 

claims and Smith’s design defect product liability claims, and remand for further 

proceedings as to these claims only.

We do not consider matters not specifically and distinctly raised and argued 

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

The parties shall bear their own costs on appeal. 

AFFIRMED in part, REVERSED in part, and REMANDED.