NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RON SARFATY; GARY SCHERER, 

Plaintiffs-Appellants, 

 v. 

CITY OF LOS ANGELES; DOES, 1-10, 

Defendants-Appellees.

No. 17-56468 

D.C. No. 

2:17-cv-03594-SVW-KS 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted March 8, 2019

Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and CARDONE,** District 

Judge.

Ron Sarfaty and Gary Scherer (“Plaintiffs”) sued the City of Los Angeles 

(the “City”) for alleged violations of the Americans with Disabilities Act (“ADA”), 

the Rehabilitation Act, and similar provisions of California law. The district court 

 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Kathleen Cardone, United States District Judge for the 

Western District of Texas, sitting by designation.

FILED

APR 3 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

granted the City’s motion to dismiss the complaint, and this appeal followed. We 

have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand. 

1. The district court first concluded that the City’s class action settlement 

in Willits v. City of Los Angeles released Plaintiffs’ injunctive claims. In reaching 

this conclusion, the court did not consider the extrinsic evidence that Plaintiffs 

tendered to support their interpretation of the Willits release language. As a matter 

of California law, this was error. See Pac. Gas & Elec. Co. v. G.W. Thomas 

Drayage & Rigging Co., 442 P.2d 641, 645 (Cal. 1968); see also Trident Ctr. v. 

Conn. Gen. Life Ins. Co., 847 F.2d 564, 565 (9th Cir. 1988) (“This case therefore 

presents the question whether parties in California can ever draft a contract that is 

proof to parol evidence. Somewhat surprisingly, the answer is no.”). The court 

should have “review[ed] the proffered material regarding the parties’ intent to see 

if the language is ‘reasonably susceptible’ of the interpretation urged by” Plaintiffs.

Appleton v. Waessil, 32 Cal. Rptr. 2d 676, 677 (Ct. App. 1994). If so, “the extrinsic 

evidence is then admitted to aid in the second step, which involves actually 

interpreting the contract.” Id. at 678.

If, on remand, the district court concludes that Plaintiffs’ claims here are 

encompassed by the Willits release, it must then compare Plaintiffs’ claims to the 

claims asserted by the class in Willits to determine whether the two sets of claims 

share an “identical factual predicate.” See Reyn’s Pasta Bella, LLC v. Visa USA, 
3 

Inc., 442 F.3d 741, 748 (9th Cir. 2006). The Willits release is binding as to 

Plaintiffs here only if their claims “depend[] upon the same set of facts.” Williams 

v. Boeing Co., 517 F.3d 1120, 1134 (9th Cir. 2008) (citation omitted). 

Because the district court did not consider Plaintiffs’ extrinsic evidence as to 

the scope of the Willits release, and because the court failed to conduct the 

“identical factual predicate” test that our precedent requires, we reverse the grant 

of the City’s motion to dismiss Plaintiffs’ injunctive claims.1

2. Plaintiffs also argue that the district court improperly dismissed their 

damages claims. 

At the outset, we disagree with the City that Plaintiffs waived their damages

claims by failing to amend their complaint. See WMX Techs., Inc. v. Miller, 104 

F.3d 1133, 1136 (9th Cir. 1997) (en banc).

The district court concluded that Plaintiffs’ complaint did not adequately 

allege a damages claim. “To succeed on a civil rights claim in this context, the 

plaintiffs must show intentional discrimination.” T.B. ex rel. Brenneise v. San 

Diego Unified Sch. Dist., 806 F.3d 451, 469 (9th Cir. 2015). Deliberate 

indifference satisfies this standard, Duvall v. County of Kitsap, 260 F.3d 1124, 

 

1 Plaintiffs move for judicial notice of seven documents related to the Willits class 

action settlement. We GRANT the motion as to Exhibits 1, 2, 3, and 4. Exhibits 5, 

6, and 7 are already part of the record on appeal, and we DENY the motion as 

unnecessary with respect to those exhibits. 
4 

1138 (9th Cir. 2001), and can be established by “show[ing] [that] the defendant 

had notice of [Plaintiffs’] need for an accommodation and failed to act,” A.G. v. 

Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1207 (9th Cir. 2016)

(internal quotation marks and citation omitted). The district court dismissed 

Plaintiffs’ complaint without prejudice, and Plaintiffs stood on their complaint on 

this issue and chose not to amend.

The district court did not reach the question of notice (by assuming arguendo 

that Plaintiffs satisfied the notice prong), but found that Plaintiffs “pleaded no facts 

that would allow a reasonable jury to conclude that the City acted with deliberate 

indifference.” Like the district court, we do not reach the issue of notice.2 We 

agree with the district court as to Plaintiff Scherer’s failure to plead sufficient facts 

as to deliberate indifference,

3 but disagree as to Plaintiff Sarfaty. The complaint 

alleges that, despite the fact that the City was on notice of Sarfaty’s need for 

accommodation, its ADA Coordinator affirmatively told Sarfaty that the City 

would not act on his needs. Thus, as alleged, the City’s failure to act was not 

 

2 A plaintiff “can establish notice by showing that she alerted the public entity to 

her need for accommodation; or that the need for accommodation was obvious, or 

required by statute or regulation.” A.G., 815 F.3d at 1207 (internal quotation marks 

and alterations omitted). However, our cases make clear that the plaintiff must 

“identify specific reasonable and necessary accommodations that the defendant 

failed to provide.” Duvall, 260 F.3d at 1139.

3 The district court found: “[W]ith regard to Plaintiff Scherer, the complaint alleges 

only that ‘[t]he City has not issued any substantive response to Scherer’s complaint 

or request for accessible parking.’” 
5 

“negligent, lazy, or careless,” it was intentional. Oden v. N. Marianas Coll., 440 

F.3d 1085, 1089 (9th Cir. 2006). Notwithstanding our agreement with the district 

court that Plaintiff Scherer failed to adequately allege deliberate indifference; in 

light of our other rulings, we remand with direction to allow leave to amend to 

both plaintiffs, including as to notice and deliberate indifference.

REVERSED and REMANDED.