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.
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