NOT FOR PUBLICATION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 re view de

novo the dist rict court’ s d ismissal 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, CLER K

U.S. COURT OF APPEAL S2 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

Unr uh 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 aga inst her

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

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

.

To the extent Smith alleged negligence per se claim s based on the violation

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

Smith failed to allege facts suf ficient 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

inten ded design because 1) the brake s 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 a3 17

- 15551

manufacturing d efect 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 consu mer expectations test and risk benefit test.

See i d. at 455

- 56 (elements of design defect claim under risk benefit test and

consumer expectations test).

W e reverse the dismissal of Smith’s manufacturing defect pro duct liability

claim s and Smith’s design defect produc t liability claim s

, and remand for further

proceedings as to these claims only.

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

i n 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.