Jose Luis Barajas Centeno v. City of Carlsbad; Daniel Stephen Modafferi

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS BARAJAS CENTENO,
Plaintiff-Appellant,
v.
CITY OF CARLSBAD; DANIEL
STEPHEN MODAFFERI,
Defendants-Appellees,
and
DOES, 1-10,
Defendant.
No. 21-56274
D.C. No.
3:21-cv-01022-L-DEB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted July 12, 2022**
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and KATZMANN,***
* 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).
*** The Honorable Gary S. Katzmann, Judge for the United States Court
FILED
JUL 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge.
Jose Barajas Centeno appeals the district court’s Federal Rule of Civil
Procedure 12(b)(6) dismissal without leave to amend of Centeno’s claims under
Title II of the Americans with Disabilities Act (ADA) and California state law.
Centeno alleges that the City of Carlsbad and the City’s attorney Daniel Modafferi
violated various federal and California state laws by failing to provide Centeno’s
attorney, Genaro Lara, with a hearing aid during a deposition. We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
1. The district court did not err in dismissing Centeno’s Title II ADA
claim. To state a claim under Title II, Centeno must allege that “(1) he is a
‘qualified individual with a disability;’ (2) he was either excluded from
participation in or denied the benefits of a public entity’s services, programs or
activities, or was otherwise discriminated against by the public entity; and (3) such
exclusion, denial of benefits, or discrimination was by reason of his disability.”
Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), amended on denial
of reh’g (Oct. 11, 2001). Centeno’s claim is based on a hearing impairment from
which his attorney, Genaro Lara, suffers. Thus, Centeno himself is not a “qualified
individual with a disability.” Centeno argues instead that he is bringing an
associational discrimination claim under 28 C.F.R. § 35.130(g), but this argument
of International Trade, sitting by designation.

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is waived for failure to raise it before the district court. See Armstrong v. Brown,
768 F.3d 975, 981 (9th Cir. 2014). Nor is a deposition a “service, program, or
activity” under Title II because it is not a “normal function of the government
entity,” see Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir. 2014), but is
instead an “experience that [is] merely incidental to normal government functions,”
see Daubert v. Lindsay Unified Sch. Dist., 760 F.3d 982, 987 (9th Cir. 2014).
Therefore, Centeno cannot allege that he was denied the ability to participate in
public entity’s service, program, or activity because of a disability.
2. The district court did not err in dismissing Centeno’s claim under
California Civil Code § 54.8. Section 54.8, part of the California Disabled Persons
Act, states that in civil proceedings where a participant is deaf or hard of hearing,
upon request, the deaf or hard of hearing participant “shall be provided with a
functioning assistive listening system or a computer-aided transcription system.”
Cal. Civ. Code § 54.8(a). Again, Lara has a hearing impairment, but Centeno does
not. Therefore, no violation of Centeno’s rights occurred because Centeno is not a
“participant who is deaf or hard of hearing.” Additionally, § 54.8 does not provide
for a private right of action. A private right of action may be implied if the
legislature intended it to exist. See Jacobellis v. State Farm Fire & Casualty Co.,
120 F.3d 171, 173 (9th Cir. 1997). Section 54.3 expressly creates a private right of
action for violations of §§ 54, 54.1, and 54.2. The California legislature’s decision

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not to include § 54.8 in that list makes it apparent the exclusion was intentional,
and thus a private right of action under § 54.8 does not exist.
3. The district court did not err in denying Centeno leave to amend. A
district court does not err in denying leave to amend where amendment is futile,
which occurs when “no set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient claim or defense.” See
Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017). Each of Centeno’s claims
fails for multiple reasons, and the district court properly found that Centeno “did
not show that an amendment could cure the . . . deficiencies.” Indeed, the only
amendment Centeno proposes is additional authority for his associational
discrimination claim, which is an argument that Centeno waived. Thus, because
any amendment would be futile, the district court did not err in dismissing
Centeno’s claims with prejudice.
AFFIRMED.1
1 Centeno’s emergency motion to supplement the record on appeal (Dkt. 23)
is DENIED.

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