United States District Court, S.D. California
December 22, 2005.
LARY FEEZOR, Plaintiff,
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
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
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 Judgment Motion
Summary judgment is properly granted when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Entry of summary judgment is appropriate "against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party moving for summary
judgment bears the initial burden of establishing an absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323. Where
the party moving for summary judgment does not bear the burden of
proof at trial, it may show that no genuine issue of material
fact exists by demonstrating that "there is an absence of
evidence to support the non-moving party's case." Id. at 325.
The moving party is not required to produce evidence showing the
absence of a genuine issue of material fact, nor is it required
to offer evidence negating the moving party's claim. Lujan v.
National Wildlife Fed'n, 497 U.S. 871, 885 (1990); United
Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th
Cir. 1989). "Rather, the motion may, and should, be granted so
long as whether is before the District Court demonstrates that
the standard for entry of judgment, as set forth in Rule 56(c),
is satisfied." Lujan, 497 U.S. at 885 (quoting Celotex,
477 U.S. at 323).
Once the moving party meets the requirements of Rule 56, the
burden shifts to the party resisting the motion, who "must set
forth specific facts showing that there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). Without specific facts to support the conclusion, a bald
assertion of the "ultimate fact" is insufficient. See
Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991). A
material fact is one that is relevant to an element of a claim or
defense and the existence of which might affect the outcome of
the suit. The materiality of a fact is thus determined by the
substantive law governing the claim or defense. Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment. T.W. Electrical Service, Inc. v. Pacific
Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 255).
B. Americans with Disabilities Act ("ADA")
In 1990, Congress enacted the ADA "to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities."
42 U.S.C. § 12101 (b) (1). Title III of the ADA protects against
discrimination by private entities against persons with
disabilities in places of public accommodation.
42 U.S.C. § 12182(a). Discrimination includes "failure to remove
architectural barriers . . . in existing facilities . . . where
such removal is readily achievable."
42 U.S.C. 12182(b)(2)(A)(iv). To succeed on an ADA claim, plaintiff must
prove that (1) he is disabled; (2) the subject facility is a
place of "public accommodation;" (3) the existing facility
contains an architectural barrier prohibited by the ADA; and (4)
removal of the barrier is readily achievable. See Parr v. L &
L Drive-Inn Rest., 96 F.Supp.2d 1065 1085 (D.Haw. 2000).
Defendants seek summary judgment on the following grounds:
Plaintiff lacks standing because he admitted in
deposition testimony that he has no intent to return
to Defendants' store;
Plaintiff's ADA claims are moot because the
deficiencies cannot be claimed by Plaintiff and/or
all of the deficiencies have been addressed; and
Supplemental jurisdiction of the remaining state
claims is not appropriate.
Because Plaintiff's alleged lack of standing is a threshold
matter for this Court, the Court must address this issue first.
See Steel Co. v. Citizens for a Better Environment,
523 U.S. 84, 94-95 (1998); State of Nev. v. Burford, 918 F.2d 854
(9th Cir. 1990) (standing is a threshold question that must be
found before the court can assert its jurisdiction).
Defendants contend that Plaintiff lacks standing because he
admitted that he has no intent to return to Defendants' store,
even if all of the barriers were removed. Doc. No. 32 at 1.
Defendants point to the following deposition testimony in support
of their argument:
Q: Since your second visit to 7-Eleven in early 2004,
have you returned to that 7-Eleven? A: No.
Q: Have you been to Chula Vista since then?
Q: Why didn't you go to the 7-Eleven?
Mr. Hubbard: Excuse me for a second.
The Witness: They haven't made any changes that I
By Mr. Taylor:
Q: Did you drive by the
A: And I haven't had any No, I haven't driven by.
I have no reason to go back there. I want all the
changes made, but I'm not going to go back there.
Q: Even if 7-Eleven made all the changes that you
request in your letter and in your lawsuit, would you
return to that 7-Eleven?
A: No, sir.
Feezor Deposition at 103:8 104:1, June 22, 2005 (emphasis
Plaintiff counters that he does not lack standing because he
"amended his deposition testimony; specifically, correcting his
testimony with regards to whether he would visit the subject
7-Eleven in the future." Doc. No. 43 at 2. Plaintiff submitted
the following corrections to Defendants on July 25, 2005:
Pending Question: Did you drive by the
Previous Answer: . . . I want all the changes made,
but I'm not going to go back there.
Amended Answer: . . . I want all the changes made,
then I'll go back there.
Pending Question: Even if 7-Eleven made all the
changes that you request in your letter and in your
lawsuit, would you return to that 7-Eleven?
Previous Answer: No, sir.
Amended Answer: Yes, sir.
Doc. No. 46 (Lary Feezor Declaration) at Exh. B (deleted text in
underline, replaced text in bold italics). As an explanation for
his amendments, Plaintiff claims that he was confused and felt
humiliated and degraded from counsel's line of questioning.
Specifically, Plaintiff felt that counsel treated his disability
"in a manner that was degrading to me and made me feel like
[counsel] was discriminating against me." Id. at 2. He further
claims that he became emotional regarding any visits to
Defendant's store. Id. Plaintiff contends, as a result of this
treatment, he became "frustrated and confused." Id. He
concludes that he "misunderstood the question, thinking that Mr.
Taylor asked if I would return to the store if 7-Eleven did not
make the changes." Id.
Defendants counter in their reply that Plaintiff could not have
misunderstood the question because there was no question pending
in the first exchange. Doc. # 48 at 3. Defendants point out that
Plaintiff added without any prompting: "I have no reason to go
back there. I want all the changes made, but I'm not going to go back
there." Id. Defendants point out that their follow-up question
asking Plaintiff pointedly if he was going to return to the store
was answered with a simple "No, sir."
Defendants also point out in their reply that Plaintiff
repeated his admission earlier in the deposition, but failed to
amend his testimony. See Doc. No. 48 at 3. In this exchange,
Plaintiff Feezor was questioned regarding his visits to
Q: How many times have you visited that 7-Eleven?
A: At least twice. But not anymore. I'm not going
back. I don't feel safe there.
Id., citing Doc. No. 51 at Exh. A, Feezor Depo. at 45:17-20
a. Standing Requirements Under the ADA
"[T]hose who seek to invoke the jurisdiction of the federal
courts must satisfy the threshold requirement imposed by Article
III of the Constitution by alleging an actual case or
controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101
(1983). In Lujan v. Wildlife Defenders, 504 U.S. 555 (1992),
the Supreme Court enumerated three minimal constitutional
requirements for standing: 1) the injury must be traceable to the
challenged action; 2) the injury must be redressable; and 3) the
plaintiff must have suffered an injury in fact. Id. at 560-561.
An injury in fact is "an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical." Pickern v. Holiday
Quality Foods, Inc., 293 F.3d 1133, 1137 (9th Cir. 2002). "By
particularized, we mean that the injury must affect the plaintiff
in a personal and individual way." Lujan, 504 U.S. at 560 n. 1.
To comply with the standing requirement in ADA cases, plaintiff
must allege discrimination in a public accommodation, and that
there is a "real or immediate threat that the [public
accommodation] will again subject [him] to discrimination." Bird
v. Lewis & Clark College, 303 F.3d 1015, 1020 (9th Cir. 2002),
citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Thus, standing requires not only discriminating behavior at the
time the complaint is filed, but also that plaintiff will return
to the public accommodation in the future, and will suffer
discrimination if the alleged harms are not remedied. In Bird,
the Ninth Circuit found no standing to change the college program
complained of where plaintiff did not allege that she planned to return to the college, or that she planned to
participate in any of their programs. Id.; see also Shotz v.
Cates, 256 F.3d 1272, 1280-1281 (11th Cir. 2001). Similarly, if
Plaintiff does not intend to return to Defendants' store in the
future, he would have no standing to pursue the pending action
under the ADA. Because Plaintiff has already admitted in
deposition testimony that he will not return to Defendant's
store, the crux of this issue, therefore, lies in Plaintiff's
ability to correct his deposition to reflect on the record that
he does intend to visit Defendants' store in the future.
b. Correction of Deposition Testimony
The Ninth Circuit recently considered the extent to which a
party can make corrections to deposition testimony. In Hambleton
Brothers Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217
(9th Cir. 2005), plaintiff attempted to make corrections to his
deposition testimony after summary judgment was filed against
plaintiff by defendant. In his corrections, plaintiff "expanded
upon and rewrote portions of [plaintiff's] deposition testimony,
including for the first time new accusations implicating
[defendant]." Id. at 1223. Although the court ruled that the
corrections were untimely,*fn3 the court also particularly
noted the magistrate judge's reservations regarding timing of the
corrections, as well as the substantive changes that were made to
the deposition testimony. Id. at 1225. The court noted that
Fed.R.Civ.P. 30(e), although allowing corrections in form or
substance, "does not properly include changes offered solely to
create a material factual dispute in a tactical attempt to evade
an unfavorable summary judgment." Id. The Ninth Circuit found
that it would be appropriate to evaluate deposition corrections
under the same standards as "sham affidavit" entries. Id.
citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th
Cir. 1991). The court concluded by holding "[w]e agree with our
sister circuits' interpretation of FRCP 30(e) on this point, and
hold that Rule 30(e) is to be used for corrective, not
contradictory, changes." Id. at 1225-1226 (emphasis added).
Here, Plaintiff proposed changes that were contradictory to his
original deposition testimony. Plaintiff's changes transformed his answer in regards
to a direct question on whether he will be visiting Defendants'
store at a future date from an unambiguous "no" answer during his
deposition to "yes". See also Williams Hughes v. California
State Automobile Association, 2005 WL 911018 at *2 n. 4 (N.D.
Cal. Apr. 20, 2005) (Court denied plaintiff's attempt to
"completely reverse her testimony given at deposition."). These
changes are clearly contradictory to his deposition transcript,
and under Hambleton are not permitted.
Plaintiff's explanation that he felt humiliated by counsel's
line of questioning, and became confused as to the question is
not persuasive to this Court. As Defendants point out, there was
no question pending at the time Plaintiff stated "I want all the
changes made, but I'm not going to go back there." See Doc. No.
32. The corrections that Plaintiff requests to make to his
deposition as a result of his alleged confused state, therefore,
are not supported by the record.
Plaintiff also argues that Hambleton is inapposite because,
unlike the situation in Hambleton, Defendants had not yet filed
a motion for summary judgment when Plaintiff filed his deposition
corrections. Doc. No. 43 at 2.*fn4 Defendants counter that
Plaintiff did know that a motion for summary judgment "was on the
table" at the time the corrections were made. Doc. No. 48 at 5.
Defendants point to their letter of June 23, 2005, notifying
Plaintiff of their intention to file summary judgment if
Plaintiff does not dismiss the case.*fn5
As mentioned above, the Hambleton court specifically noted
the "seemingly tactical timing" of plaintiff's corrections as
"purposeful rewrites tailored to manufacture an issue of material fact regarding [defendant] and to avoid a summary
judgment ruling in his favor." Hambleton, 397 F.3d at 1225.
Plaintiff here also had notice of Defendants' intention to file a
summary judgment based at least partially on Plaintiff's
testimony. Plaintiff's timing of filing corrections only after
prompting by Defendants and under threat of a summary judgment,
therefore, agrees with the facts in Hambleton. Like
Hambleton, this Court finds that Plaintiff should not be
allowed to rely on corrections that would contradict his
deposition testimony in order to create a genuine issue of
material fact, and avoid summary judgment.
Moreover, Plaintiff did not correct a deposition exchange that
was not earlier pointed out to Plaintiff. In an earlier
deposition exchange, Plaintiff, without prompting or questioning
by the examining attorney stated unequivocally "I'm not going
back." See Doc. No. 51 at Exh. A, Feezor Depo. at 45:17-20.
This uncorrected deposition exchange, together with Plaintiff's
later deposition testimony, makes clear his intentions that he
will not go back and patronize Defendant's store. With such
intentions, Plaintiff does not have standing to assert his
discrimination claims against defendant. Accordingly, this Court
GRANTS Defendants' motion for summary judgment.
B. Additional Arguments
Because Plaintiff cannot establish standing as stated above,
and therefore cannot overcome the threshold required for this
Court to establish jurisdiction in this matter, the Court finds
it unnecessary to reach the merits of the parties' additional
arguments. Accordingly, for the reasons stated above, this Court
GRANTS Defendants' motion for summary judgment in regards to
Plaintiff's ADA claim, and DENIES Plaintiff's motion for summary
C. Supplemental Jurisdiction under 28 U.S.C. § 1367
Defendants contend that, pursuant to 28 U.S.C. § 1367(c)(2),
the Court should decline to exercise supplemental jurisdiction
over all the state law claims because state law issues
predominate. See Doc. No. 32 at 14. Plaintiff, in its
opposition, does not address why the court should retain
jurisdiction if the federal ADA claims are dismissed. See Doc.
No. 43 at 11.
It is well within a court's discretion to exercise supplemental
jurisdiction over state law claims. United Mine Workers of America v. Gibbs, 383 U.S. 715,
726 (1966); Schneider v. TRW, Inc., 930 F.2d 986, 994 (9th Cir.
1991). However, a court may decline to exercise supplemental
(1) the claim raises a novel or complex issue of
(2) the claim substantially predominates over the
claim or claims over which the district court has
(3) the district court has dismissed all claims over
which it has original jurisdiction; or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (West 2005). When deciding whether to
exercise supplemental jurisdiction, a court should consider
judicial economy, convenience, fairness and comity. Gibbs,
383 U.S. at 726. The balance of factors tips in favor of declining
supplemental jurisdiction when federal claims have been dismissed
from a lawsuit. Carnegie Mellon Univ. v. Cohill, 484 U.S. 343
350 (1988); Gibbs, 383 U.S. at 726; Gini v. Las Vegas
Metropolitan Police Dept., 40 F.3d 1041
, 1046 (9th Cir. 1994).
Here, the Court has dismissed Plaintiff's federal ADA claims,
leaving only state law claims. Moreover, the remaining Unruh
Civil Rights Act, California Disabled Persons Act and California
Unfair Business Practices law present novel and complex issues,
further tipping the balance of factors in favor of declining
jurisdiction. See Molski v. Mandarin Touch,
359 F.Supp.2d 924, 937 (C.D. Cal. 2005). This Court, therefore, finds it
appropriate to decline to exercise supplemental jurisdiction over
the remaining state law claims. Accordingly, the remaining state
law claims are DISMISSED. CONCLUSION AND ORDER
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Defendants' motion for summary judgment [Doc No.
31] is GRANTED.
2. Plaintiff's motion for summary judgment [Doc. No.
53] is DENIED.
3. The Clerk of the Court is directed to enter
judgment in accordance with this Order.
IT IS SO ORDERED.
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