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FEEZOR v. DE-JESUS

December 22, 2005.

LARY FEEZOR, Plaintiff,
v.
CAROLINA LOPEZ DE-JESUS dba 7-ELEVEN # 13570; 7-ELEVEN INC.; ADEL YALDA; and DOES 1 through 10, Defendants.



The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DOC. NOS. 31 and 53]
INTRODUCTION
On August 15, 2005, Defendants Carolina Lopez De-Jesus, 7-Eleven, Inc. and Adel Yalda (collectively "Defendants") filed a motion for summary judgment in this case. Oral arguments were heard on October 27, 2005, with appearances by Steven Wedel for Plaintiff Lary Feezor (hereinafter "Plaintiff") and Lisa Wegner for Defendants. This Court, after hearing the oral argument of counsel, took the matter under submission. Plaintiff subsequently filed nunc pro tunc a motion for summary judgment in the instant case on October 28, 2005. This Court took this matter under submission without oral argument. See CivLR 7.1(d.1).

Now, after a careful consideration of the pleadings, relevant exhibits, the oral argument of counsel at the hearing, and for the reasons set forth below, this Court GRANTS Defendants' motion for summary judgment and DENIES Plaintiff's motion for summary judgment. BACKGROUND

  1. Factual Background*fn1

  Defendants Carolina Lopez De-Jesus d/b/a 7-Eleven #13750, 7-Eleven, Inc. and Adel Yalda own and operate a 7-Eleven convenience store at 285 Broadway in Chula Vista, California. The store is a sales and retail establishment and is open to the general public. The store was constructed in 1962, prior to the enactment of the Americans with Disabilities Act ("ADA").

  Plaintiff Lary Feezor, a resident of El Cajon,*fn2 California, is a paraplegic requiring the use of a wheelchair. Plaintiff uses a mobility equipped van when traveling. In the Fall of 2003 and early 2004, Plaintiff visited Defendants' store and encountered numerous physical barriers, allegedly in violation of the ADA. This lawsuit emerged as a result of Plaintiff's visits to Defendants' store.

  2. Procedural History

  On September 27, 2004, Plaintiff Lary Feezor ("Plaintiff") filed a complaint alleging violations under the ADA, Disabled Persons Act, Unruh Civil Rights Act, the California Health and Safety Code, and the Unfair Business Practices Act. In his complaint, Plaintiff also alleges negligence per se. In support of his complaint, Plaintiff points to numerous structural deficiencies at Defendants' store, alleging the store contains "barriers (both physical and intangible) that interfered with — if not outright denied — his ability to use and enjoy the goods, services, privileges, and accommodations offered at the facility." Cplt. at 3.

  On November 10, 2004, Defendants filed nunc pro tunc a notice of motion and motion to dismiss under Fed.R.Civ.P. 12(b)(6), and a motion to strike portions of Plaintiff's complaint. Docs. No. 4-6. Defendants filed amended motions to dismiss and strike portions of Plaintiff's complaint on November 17, 2004. Docs. No. 9-12. An opposition to Defendants' motion was filed by Plaintiff on December 3, 2004. Doc. No. 13. Defendants filed a reply on December 29, 2004. Doc. No. 15. Defendant Yalda filed a simultaneous reply on December 29, 2004, answering Plaintiff's complaint. Doc. No. 16. The parties stipulated to waiver of oral argument, prompting the Court to take this matter under submission. Doc. No. 20.

  On February 7, 2005, Defendant Adel Yalda substituted attorney William J. Hatcher for Julie Trotter, who represents all other defendants in this matter. Doc. No. 21.

  The Court issued an order on June 8, 2005, denying Defendants' motion to dismiss and granting in part Defendants' motion to strike. Doc. No. 25. The Court ordered Plaintiff to file an amended complaint, which was filed on June 20, 2005. Doc. No. 28. On July 13, 2005, Defendants filed an answer to Plaintiff's first amended complaint. Doc. No. 29.

  Defendants' motion for summary judgment, or in the alternative summary adjudication, was filed on August 15, 2005. Doc. Nos. 31-36. Plaintiff requested a continuance of the matter in order to conduct a further site inspection in response to Defendants' motion for summary judgment. Doc. No. 38. Defendants filed an opposition on September 26, 2005. Doc. No. 41. Defendants also filed a motion declaring non-opposition by Plaintiff on September 26, 2005. Doc. Nos. 39-40. The Court denied Plaintiff's request, and ordered Plaintiff to respond to Defendants' pending motion by October 11, 2005. Doc. No. 42. Plaintiff filed a response to Defendants' motion for summary judgment on October 4, 2005. Doc. Nos. 43-46. Defendants filed a reply to Plaintiff's opposition on October 13, 2005. Doc. Nos. 48-51. Oral arguments were heard on October 27, 2005, and the matter subsequently taken under submission by this Court.

  Plaintiff filed his own motion for summary judgment, or in the alternative summary adjudication, on October 28, 2005. See Doc. No. 53. Defendants filed an opposition on November 29, 2005. Doc. No. 62. Plaintiff filed a reply on December 8, 2005. See Doc. No. 73. Plaintiff's motion for summary judgment was taken under submission without oral argument under CivLR 7.1(d.1). See Doc. No. 72. ANALYSIS

  1. Legal Standard

  A. Summary ...


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