United States District Court, S.D. California
November 7, 2005.
RUBEN DEANDA, Plaintiff,
SAVINGS INVESTMENT, INC. a California Corporation; DEL TACO, INC., a California Corporation; and DOES 1 through 10, inclusive, Defendants.
The opinion of the court was delivered by: DANA SABRAW, District Judge
ORDER: (1) DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; (2)
GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND (3) DENYING
DEFENDANTS' MOTION FOR ORDER DENYING PLAINTIFF AWARD OF ATTORNEY'S
[Doc. Nos. 16, 20, 25]
This suit arises from Plaintiff Ruben Deanda's ("Plaintiff")
Civil Rights action against Defendants Savings Investment, Inc.
and Del Taco, Inc. (collectively "Defendants") under the American
with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et
seq., and the California Unruh Civil Rights Act, Cal. Civ. Code
§ 51 et seq., for allegedly failing to remove architectural
barriers at Defendants' facility, located at 1540 Ocotillo Drive,
El Centro, California. The parties have now filed cross-motions
for summary judgment pursuant to Fed.R.Civ.P. 56(c). Defendants
also filed a motion for an order denying Plaintiff attorney's
On October 28, 2005, the Court heard oral argument on these
motions. Russell C. Handy, Esq. appeared on behalf of the
Plaintiff and Lisa A. Wegner, Esq. appeared on behalf of all
Defendants. For the reasons discussed below, the Court denies
Defendants' motion for summary judgment and grants Plaintiff's motion for summary judgment. In addition, the
Court denies Defendants' motion for an order denying Plaintiff
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a person with disabilities who requires a
wheelchair for mobility. (Deanda Decl. ¶ 1.) Defendants own and
operate a Del Taco restaurant ("Restaurant") located in El Cajon,
California, which Plaintiff visits a few times a month.
(Plaintiff's Motion for Summary Judgment at 3; Deanda Decl. ¶ 2.)
During his visits to Defendants' Restaurant, Plaintiff alleges he
encountered architectural barriers denying him full and equal
access. (Deanda Decl. ¶ 3, 4.) Specifically, Plaintiff alleges he
encountered barriers to access as a result of the configuration
of the Restaurant's entry doors. (Deanda Decl. ¶ 3.) According to
Plaintiff, the entry doors operate in a series which require two
people to hold the door open for him to gain access into the
Restaurant. (Id.) Plaintiff also alleges he encountered
architectural barriers during his visits to Defendants'
Restaurant because none of the dining tables have sufficient knee
clearance space to accommodate his wheelchair. (Id.) As a
result of these barriers, Plaintiff sued Defendants in January of
2005, alleging various causes of action, including violations of
the ADA and the California Unruh Civil Rights Act.*fn1
After Defendants learned of the lawsuit, counsel for Defendants
contacted Stanley Albright ("Albright"), Senior Director of
Construction and Facilities of Del Taco, Inc., and notified him
of Plaintiff's claims regarding the Restaurant's alleged
violations of the ADA. (Albright Decl. ¶ 5 attached to
Defendants' Opposition.) Thereafter, Defendants undertook steps
to ensure that the Restaurant was compliant with the ADA
Accessibility Guidelines ("ADAAG") and Title 24 of the California
Code of Regulations. (Id.) Subsequently, Defendants removed the
interior entrance door and placed a work order for the
installation of three new disabled accessible tables. (Id.) In
addition, Defendants restriped the parking area and undertook
measures to ensure that the restrooms complied with the
specifications set forth in the ADAAG and Title 24. (Id.) On August 24, 2005, Defendants filed a motion for summary
judgment, contending: (1) Plaintiff's claims for injunctive
relief under the ADA are moot because Defendants have remedied
the alleged architectural barriers; (2) summary judgment is
appropriate as to Plaintiff's ADA claim because he was not
deterred from visiting the Restaurant; (3) the Court should
decline jurisdiction over Plaintiff's state Unruh claim; and (4)
even if the Court were to exercise jurisdiction over the Unruh
claim, Plaintiff's claim nonetheless fails because Defendants did
not intentionally discriminate against the disabled. On August
26, 2005, Plaintiff filed a cross-motion for summary judgment,
arguing that: (1) there are no genuine issues of material fact
that Defendants' architectural barriers constitute discrimination
under the ADA; and (2) because Plaintiff's state Unruh claim is
predicated on Defendants' violation of the ADA, summary judgment
also should be granted on the state claim. Both parties filed
Oppositions and Replies to the cross-motions for summary
On September 21, 2005, Defendants filed a motion for an order
denying Plaintiff attorney's fees. Plaintiff filed an Opposition
to Defendants' motion on October 14, 2005, and thereafter,
Defendants filed a Reply.
Summary judgment is appropriate under Rule 56 of the Federal
Rules of Civil Procedure on "all or any part" of a claim where
there is an absence of a genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(a) & (c); Celotex Corp. V. Catrett,
477 U.S. 317, 322 (1986). A fact is material when, under the governing
substantive law, it could affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute
about a material fact is genuine if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248.
A party seeking summary judgment bears the initial burden of
establishing the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The moving party can satisfy this
burden in two ways: (1) by presenting evidence to negate an
essential element of the nonmoving party's case; or (2) by
demonstrating that the nonmoving party failed to make a showing
sufficient to establish an element to that party's case on which
that party will bear the burden of proof at trial. Id. at
322-23. If the moving party fails to discharge this initial burden, summary judgment
must be denied and the court need not consider the nonmoving
party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144,
If the moving party meets this initial burden, the nonmoving
party cannot defeat summary judgment by merely demonstrating
"that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); see also Triton Energy Corp. v. Square D.
Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of
a scintilla of evidence in support of the nonmoving party's
position is not sufficient.") (citing Anderson,
477 U.S. at 252). Rather, the nonmoving party must "go beyond the pleadings
and by [his or] her own affidavits, or by `the depositions,
answers to interrogatories, and admissions on file,' designate
`specific facts showing that there is a genuine issue for
trial.'" Celotex, 477 U.S. at 344 (quoting Fed.R.Civ.P. 56(e)).
"Disputes over irrelevant or unnecessary facts will not preclude
a grant of summary judgment." T.W. Elec. Serv. Inc. v. Pacific
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
Moreover, "the district court may limit its review to the
documents submitted for purposes of summary judgment and those
parts of the record specifically referenced therein." Carmen v.
San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir.
2001). The Court is not obligated "to scour the records in search
of a genuine issue of triable fact." Keenan v. Allen,
91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins.
Co., 55 F.3d 247, 251 (7th Cir. 1995)).
When making its determination, the Court must view all
inferences drawn from the underlying facts in the light most
favorable to the party opposing the motion. See Matsushita,
475 U.S. at 587. "Credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge, [when] he is ruling on
a motion for summary judgment. Anderson, 477 U.S. at 255.
A. Defendants' Mootness Claim
In their motion for summary judgment, Defendants contend
Plaintiff's ADA claim is moot because the alleged architectural
barriers have now been remediated in accordance with the
applicable standards set forth in the ADAAG. Based on the
evidence presented by Defendants in support of their claim, however, the Court concludes that material issues of fact
exist regarding whether the remediations comply with the ADAAG.
Plaintiff's claims are therefore not moot.
A case is moot "when the issues presented are no longer `live'
or the parties lack a legally cognizable interest in the
outcome." Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th
Cir. 2001). "`Past exposure to illegal conduct does not in itself
show a present case or controversy . . . if unaccompanied by any
continuing, present adverse effects.'" Renne v. Geary,
501 U.S. 312, 320-21 (1991) (quoting O'Shea v. Littleton, 414 U.S. 488,
495-96 (1974)). A claim for injunctive relief is moot only if "it
is absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to occur." Friends of the Earth, Inc.
v. Laidlaw Environmental Services, 528 U.S. 167, 190 (2000)
(emphasis added). Thus, an issue is not moot if there are present
effects that are legally significant. Smith v. Univ. of
Washington, 233 F.3d 1188, 1194 (9th Cir. 2000) (requiring that
"interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.") (emphasis
added); see also Norman v. Reed, 502 U.S. 279, 288 (1992);
Reich v. Local 396, Int'l Bhd. of Teamsters, 97 F.3d 1269, 1272
n. 5 (9th Cir. 1996). Finally, Defendants bear the "formidable
burden" of showing that plaintiff's claim is moot. Friends of
the Earth, Inc., 528 U.S. at 190.
Title III of the ADA prohibits discrimination against disabled
individuals in any place of public accommodation.
42 U.S.C. § 12182(a). Under § 12182(a), liability is imposed upon "any person
who owns, leases (or leases to), or operates a place of public
accommodation" that discriminates against an individual on the
basis of disability. (Id.) Failure of newly constructed or
altered buildings to abide by the construction guidelines set
forth in the ADAAG violates the ADA. 42 U.S.C. § 12183(a)(1).
Less rigorous standards are imposed on facilities which were
constructed before the ADA's enactment in 1990. These "existing
facilities" are required to remove architectural barriers that
deny access to persons with disabilities, "where such removal is
readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv).
Although the ADAAG sets out the construction requirements for
new and altered facilities, it also provides "valuable guidance
for determining when existing facilities contain architectural
barriers" that must be removed where readily achievable. Access
Now v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1368
(S.D.Fla. 2001) (quoting Pasuitti v. New York Yankees, 87
F.Supp.2d. 221, 226 (S.D.N.Y. 1999). In fact, the implementing regulations
promulgated by the Department of Justice treat any element in an
existing facility that does not meet or exceed the ADAAG
standards as a barrier to access. Parr v. L & L Drive-Inn
Restaurant, 96 F.Supp.2d 1065, 1086 (D.Haw. 2000); see
28 C.F.R. §§ 36.304(d), 36.402(b)(2) ("measures taken to comply with the
barrier removal requirements . . . shall comply with the
applicable requirements for alterations," which are set forth in
the ADAAG); U.S. Department of Justice, Supplemental Commentary
to the Final Regulations, 56 Fed.Reg. 34, 544 (1991) ("Section
36.304(d) requires that measures taken to remove barriers under §
36.304 be subject to [the] requirements for alterations. . . . It
only permits deviations from [those] requirements when compliance
with [them] is not readily achievable. . . .")
Here, Plaintiff does not dispute that the Restaurant's entry
doors have been remedied in accordance with the ADAAG. In his
Opposition to Defendants' motion for summary judgment, Plaintiff
concedes that the Restaurant's entry doors no longer violate the
ADA. (Plaintiff's Opposition to Motion for Summary Judgment at
2.) Thus, the only issue for this Court to consider is whether
Defendants have adequately remedied the lack of disabled
accessible tables. Sections 5.1 and 4.32 of the ADAAG require
that a minimum of five percent of the fixed seating provide
wheelchair clearance of 30" wide, 27" high and 19" deep.
At the time Defendants filed their motion for summary judgment,
Defendants contended the Restaurant's lack of disabled accessible
tables was in the process of being remediated, and "[a]ll
remediations will be completed within twenty-one (21) days . . .
prior to the hearing on this Motion." (Defendants' Motion for
Summary Judgment at 1.) Subsequently, in their Opposition to
Plaintiff's motion for summary judgment, Defendants alleged that
the installation of the tables was complete, and further, that
the tables are now in full compliance with applicable state and
federal guidelines. (Defendants' Opposition to Plaintiff's Motion
for Summary Judgment at 9.) As evidence of these remediations,
Defendants provide a copy of a work order that was issued on
September 30, 2005, which shows that an external vendor was
contracted to install three disabled accessible tables at the
Restaurant. (See Exhibit 1 attached to Albright Decl.) In
addition, Defendants offer the testimony of its Senior Director
of Construction and Facilities, who testified that he visited the
Restaurant and confirmed that the tables were installed and are
now in compliance with the ADAAG. (Albright Decl. ¶ 5 attached to Defendants' Opposition.) Based on this evidence,
Defendants contend Plaintiff's claim for injunctive relief is
While Defendants provide evidence in their Opposition brief
that the disabled accessible tables have been installed,
Defendants fail to offer sufficient evidence to establish that
the tables are in compliance with the ADAAG. The work order
Defendants offer as evidence merely indicates that an external
vendor was contracted to carry out the installation of the
tables; there is no evidence that those tables comply with the
standards established in the ADAAG. In addition, while Albright's
testimony provides evidence that the disabled accessible tables
have been installed, he fails to set forth any facts
establishing that the tables as installed comply with the ADAAG.
(See Albright Decl. ¶ 5 attached to Defendants' Opposition;
Albright Decl. ¶ 7 attached to Defendants' Reply.) Notably,
Albright's conclusory testimony that the tables are now in
compliance in all respects with the ADAAG and Title 24 is not
supported by any facts which show how the tables are configured,
where the tables have been installed and whether the tables meet
the required measurements set forth in the ADAAG. Accordingly,
Defendants have failed to overcome their burden of establishing
that the barriers have been completely and irrevocably
Defendants argue they are nevertheless entitled to summary
judgment because Plaintiff failed to serve them with a
Fed.R.Civ.P. 34 request to perform a site inspection to
conclusively determine that the tables conform with the
specifications set forth in the ADAAG.*fn2 This argument
lacks merit. As noted, Defendants bear the burden of showing that
Plaintiff's claim is moot. Friends of the Earth, Inc.,
528 U.S. at 190. In addition, a party seeking summary judgment bears the
initial burden of establishing the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. Here, because
Defendants failed to come forth with sufficient evidence to
establish that the tables were remedied in accordance with the
ADAAG, Defendants' motion for summary judgment must be denied.
Adickes, 398 U.S. at 159-60 (the Court need not consider a
plaintiff's evidence in deciding a motion for summary judgment
when the defendant fails to establish its initial burden of the
absence of a genuine issue of material fact.) B. Plaintiff's ADA Claim
Finding that Plaintiff's claims are not moot, the Court next
considers whether Plaintiff is entitled to summary judgment on
his ADA claim.*fn3 The sole issue presented here is whether
installation of the disabled accessible tables is "readily
achievable." Because Plaintiff provides sufficient evidence to
show that Defendants could have installed the disabled accessible
tables without much difficulty or expense, the Court finds that
no genuine issues of material fact exist as to Defendants'
liability under the ADA.
As previously noted, a plaintiff seeking to establish
discrimination under Title III of the ADA must show that a
defendant failed to remove "architectural barriers" in existing
facilities*fn4 where such removal is "readily achievable."
42 U.S.C. § 12182(b)(2)(A)(iv); Pickern v. Holiday Quality Foods
Inc., 293 F.3d 1133, 1135 (9th Cir. 2002); Alford v. City of
Cannon Beach, 2002 WL 31439173 (D.Or. 2002). The term "readily
achievable" means "easily accomplishable and able to be carried
out without much difficulty or expense." 42 U.S.C. § 12181(9);
Disabled Rights Action Committee v. Las Vegas Events, Inc.,
375 F.3d 861, 880 fn.15 (9th Cir. 2004). Under 42 U.S.C. § 12181, the
following factors are to be considered in determining if the
removal is "readily achievable":
(A) the nature and cost of the action needed; (B) the overall financial resources of the facility
or facilities involved in the action; the number of
persons employed at such facility; the effect on
expenses and resources or the impact otherwise of
such action upon the operation of the facility;
(C) the overall financial resources of the covered
entity; the overall size of the business of a covered
entity with respect to the number of its employees;
the number, type, and location of its facilities; and
(D) the type of operation or operations of the
covered entity, including the composition, structure,
and functions of the workforce of such entity; the
geographic separateness, administrative or fiscal
relationship of the facility or facilities in
question to the covered entity.
Here, Plaintiff contends there is sufficient evidence to show
that the installation of the tables is readily achievable. In
support of his claim, Plaintiff provides the testimony of his
designated expert, Paul Bishop, who stated that the installation
of the disabled accessible tables "is easily accomplished and
[can be] done without much difficulty or expense to Del. Taco
Inc." (Bishop Decl. ¶ 8). In addition, Plaintiff cites the
testimony of Defendants' expert, William Norkunas, who admitted
that, during his inspection of the Restaurant, he found no tables
in compliance with the applicable standards of the ADAAG, and
further, that providing disabled accessible tables is a readily
achievable project. (Norkunas Deposition at 26-27.) Finally,
Plaintiff notes the work order that was issued on September 30,
2005 shows the cost of installing disabled accessible tables at
Defendants' Restaurant is $270.00. (Plaintiff's Reply at 4;
Exhibit 1 attached to Albright Decl.) Based on this evidence,
Plaintiff contends there are no genuine issues of material fact
that installing disabled accessible tables at Defendants'
Restaurant is readily achievable.
Defendants, however, relying on two cases, Colorado Cross
Disability Coalition v. Hermanson, 264 F.3d 999 (10th Cir. 2001)
and Parr v. Waianae L & L Inc., 2000 WL 687655 (D. Haw. 2000),
argue that Plaintiff fails to satisfy his initial burden of proof
to show that his suggested method for removal of the barrier is
readily achievable. Specifically, Defendants contend Plaintiff
failed to submit a construction plan and cost estimates for the
While Defendants correctly note that Plaintiff in his
cross-motion carries the initial burden of proof, the Court finds
that Plaintiff has met this burden. As the court noted in
Colorado Cross, to determine whether a modification is readily
achievable, the inquiry must be based on a case by case basis
under the particular circumstances and factors listed in
42 U.S.C. § 12181. 264 F.3d at 1009. As such, a plaintiff's failure to provide specific construction plans,
standing alone, is not dispositive as to whether modification of
an alleged barrier is readily achievable.
Here, Plaintiff provides ample evidence that installation of
the disabled access tables is a readily achievable endeavor.
Specifically, Plaintiff provides the testimony of his designated
expert, Paul Bishop, who stated that the installation of the
disabled accessible tables can be done without much difficulty or
expense to Defendants. (Bishop Decl. ¶ 8). Moreover, Plaintiff
cites the testimony of Defendants' own expert, William Norkunas,
who testified that providing disabled accessible tables is a
readily achievable project. (Norkunas Deposition at 26-27.) In
addition, Plaintiff has established, through the Restaurant's
work order that installation of the subject tables cost only
$270.00. Finally, Defendants admit that the Restaurant has
already installed three tables which allegedly comply with the
applicable sections of the ADAAG. Plaintiff has therefore met his
initial burden of showing the installation of the disabled
accessible tables is readily achievable. Because Defendants fail
to offer any evidence to rebut Plaintiff's showing, the Court
finds there are no genuine issues of material fact as to this
issue. Accordingly, Plaintiff is entitled to summary judgment in
his favor under Title III of the ADA.
C. Plaintiff's State Unruh Claim
Plaintiff also contends he is entitled to summary judgment
under his state Unruh claim because that claim is predicated upon
Defendants' violation of the ADA. Defendants argue, however, that
they did not violate the Unruh Act because they did not
intentionally discriminate against the disabled. Thus, Defendants
argue that unlike the ADA, liability under the Unruh Act requires
a showing of intentional discrimination.
As an initial matter, the Court notes that federal question
jurisdiction exists over Plaintiff's Unruh claim because that
claim is based wholly upon Defendants' violation of the ADA. As
such, federal question jurisdiction exists where one or more of
the state law claims necessarily turns on the construction of a
substantial, disputed federal question. Pickern v. Best Western
Timber Cove Lodge Marina Resort, 194 F.Supp.2d 1128, 1130-31
(quoting Rains v. Criterion Systems, Inc., 80 F.3d 339, 343
(9th Cir. 1996)); see also Boemio v. Love's Restaurant,
954 F.Supp. 204 (S.D.Cal. 1997) (extending District Court's jurisdiction over a plaintiff's Unruh claim
based on federal question jurisdiction under the ADA).
The Unruh Civil Rights Act, codified at California Civil Code
Section 51, provides, in pertinent part: "All persons within the
jurisdiction of this state . . . are entitled to the full and
equal accommodations, advantages, facilities, privileges, or
services in all business establishments of every kind whatsoever
. . . A violation of the right of any individual under the
Americans with Disabilities Act of 1990 . . . shall also
constitute a violation of this section." Therefore, under Civil
Code Section 51, a plaintiff whose rights are violated under the
ADA may also seek damages under the Unruh Civil Rights Act.
Boemio, 954 F.Supp. at 208-09 (S.D.Cal. 1997); Presta v.
Peninsula Corridor Joint Powers Bd., 16 F.Supp.2d 1134, 1135
Despite Defendants' contention, liability under the Unruh Act
does not require a showing of intentional discrimination. The
Ninth Circuit, in Lentini v. California Center for the Arts,
Escondido, 370 F.3d 837, 847 (9th Cir. 2004), has held that "no
showing of intentional discrimination is required where the Unruh
Act violation is premised on an ADA violation." See also Johnson
v. Constancio Cu, Jr., 2005 WL 1983899 (E.D.Cal. 2005);
Presta, 16 F.Supp.2d at 1136 (Plaintiff need not demonstrate
defendants harbored discriminatory intent as an element of her
claim of disability discrimination under the Unruh Civil Rights
Act). Accordingly, Plaintiff is entitled to summary judgment on
this claim for the same reasons justifying summary judgment in
Plaintiff's ADA claim.
D. Defendants' Motion for Order Denying Plaintiff Attorney's
Finally, Defendants move this Court for an order denying
Plaintiff attorney's fees. Defendants contend attorney's fees
should be denied, regardless whether Plaintiff prevails in this
lawsuit. Plaintiff opposes Defendants' motion on grounds that it
Section 12205 of the ADA authorizes a court, in its discretion,
to "allow the prevailing party, other than the United States, a
reasonable attorney's fee, including litigation expenses, and
costs. . . ." 42 U.S.C. § 12205. Because the Court grants summary
judgment in Plaintiff's favor and denies summary judgment for
Defendants, Plaintiff is the prevailing party and is entitled to
reasonable attorney's fees. Accordingly, Defendants' motion for
an order denying Plaintiff attorney's fees is denied. IV.
CONCLUSION AND ORDER
For the reasons discussed above, the Court DENIES Defendants'
motion for summary judgment, and GRANTS Plaintiff's motion for
summary judgment. In addition, the Court DENIES Defendants'
motion for an Order denying Plaintiff attorney's fees. The Clerk
of the Court shall enter judgment accordingly.
IT IS SO ORDERED.
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