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Hubbard v. 7-Eleven

March 9, 2006


The opinion of the court was delivered by: Lorenz, District Judge.


This matter comes before the Court on Defendant 7-Eleven, Inc. dba 7-Eleven # 2021-20785's Motion for Summary Judgment. The Court finds the motion suitable for determination on the papers submitted and without oral argument in accordance with Civil Local Rule 7.1(d)(1).


" 'Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.' " Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir.2004) (quoting PGA Tour, Inc. v. Martin, 532 U.S. 661, 674, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001)). Plaintiffs' federal claim arises under Title III of the ADA, which prohibits discrimination against disabled individuals in any place of public accommodation. 42 U.S.C. section 12182(a). "Discrimination includes the failure to remove 'architectural barriers' in existing facilities where such removal is 'readily achievable.' " Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1070 (D.Haw.2000); 42 U.S.C. section 12182(b)(2)(A)(iv). When an entity demonstrates removal of architectural barriers is not readily achievable, discrimination includes the "failure to make such facilities available through alternative methods if such methods are readily achievable." Parr, 96 F.Supp.2d at 1070; 42 U.S.C. section 12182(b)(2)(A)(v).

"The ADA grants a private right of action for injunctive relief to, inter alia, 'any person who is being subjected to discrimination on the basis of disability.' " Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000) (quoting 42 U.S.C. section 12188(a)(1)). To state a claim under Title III based on the presence of architectural barriers in an existing facility, a plaintiff must allege and prove that: "(1) the existing facility at the defendant's place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable." Parr, 96 F.Supp.2d at 1085.

The Department of Justice has adopted ADA Accessibility Guidelines ("ADAAG"), codified in 28 C.F.R. Pt. 36, App. A as part of its ADA Title III standards.*fn1 Fortyune, 364 F.3d at 1080. "These standards lay out the technical structural requirements of places of public accommodation and are applicable 'during the design, construction, and alteration of such buildings and facilities' ... under the [ADA]." Id. at 1080-81 (quoting 28 C.F.R. Pt. 36, App. A) (alterations in original). Although the ADAAG guidelines do not apply to facilities existing before the ADA's effective date, they "provide valuable guidance for determining whether an existing facility contains architectural barriers." Pascuiti v. New York Yankees, 87 F.Supp.2d 221, 226 (S.D.N.Y.1999).


Plaintiffs Lynn J. Hubbard and Barbara Hubbard are in their 80s and suffer from multiple conditions that affect one or more major life functions.*fn2 Both Plaintiffs at times require the use of a wheelchair and a mobility-equipped vehicle while traveling in public.*fn3 On three occasions in 2003, the Hubbards visited the 7-Eleven convenience store ("the Store") located at 2400 Highland Avenue, National City, California.*fn4 In addition to those visits, Plaintiffs estimate they have visited that store approximately two or three times per month during the last year.*fn5

Plaintiffs filed this action on December 1, 2004 under the ADA and state law against 7-Eleven, Inc. d.b.a. 7-Eleven # 2021-20785 ("7-Eleven") and John P. Thompson alleging Plaintiffs encountered several architectural barriers at the Store. Plaintiffs attached to their Complaint a Preliminary Site Accessibility Report. (Compl.p 10, Ex. A.)

Through discovery, Plaintiffs learned Defendant Thompson is deceased and that 7-Eleven Employee Profit Sharing Foundation is the new owner/operator of the Store. By stipulation and order dated June 23, 2005, the parties agreed Plaintiffs would dismiss the action without prejudice as to Thompson and name 7-Eleven Employee Profit Sharing Foundation as a Defendant. (Dock. No. 9.) Plaintiffs filed a First Amended Complaint on September 14, 2005. The First Amended Complaint's allegations are virtually unchanged from the original Complaint, with the exception that Plaintiffs no longer allege a negligence cause of action. (Compare Compl. with First Am. Compl.) The Preliminary Site Accessibility Report attached to the First Amended Complaint is identical to the one attached to the original Complaint. (Compare Compl. Ex. A with First Am. Compl. Ex. A.)

On September 16, 2005, 7-Eleven moved for summary judgment arguing, inter alia, that as of September 16, 2005, it had remedied all the deviations from state and federal disability standards, including the barriers identified by the Plaintiffs. This remediation was performed as part of a program implemented in 2003 for assessing, upgrading, and remediating 7-Eleven stores nationwide to ensure compliance with state and federal accessibility laws ("Accessibility Upgrade Program"). 7-Eleven's summary judgment motion was scheduled for hearing on October 17, 2005. Plaintiffs' counsel submitted a declaration requesting the Court deny the summary judgment motion under Federal Rule of Civil Procedure 56(f) to allow Plaintiffs' expert the opportunity to conduct a site inspection of the premises and determine whether the ADA violations he previously identified had in fact been removed. In an order dated September 28, 2005, the Court found good cause to hold 7-Eleven's motion in abeyance to allow Plaintiffs' expert to conduct another site inspection and for the parties to meet and confer. The parties were directed to file a joint brief on or before October 24, 2005 advising the Court whether they had reached a resolution of this case or whether disputes remained and 7- Eleven's motion had to be placed back on the Court's calendar.

On October 21, 2005 the parties met and conferred at the site, and thereafter submitted a joint brief indicating they continued to disagree over the accessibility of the Store. By order dated November 14, 2005, the Court scheduled 7-Eleven's summary judgment motion to be heard on January 9, 2005 and directed the parties to file their opposition and reply briefs in accordance with the Civil Local Rules based on the January 9, 2005 hearing date.


Federal Rule of Civil Procedure 56 empowers the court to enter summary judgment on factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material when, under the substantive governing law, it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997).

The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party does not have the burden of proof at trial, it may carry its initial burden by "produc[ing] evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir.2000). When the moving party bears the burden of proof on an issue--whether on a claim for relief or an affirmative defense--the party "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in its favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986); see S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003).

If the moving party fails to discharge its initial burden of production, summary judgment must be denied and the court need not consider the nonmoving party's evidence, even if the nonmoving party bears the burden of persuasion at trial. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Nissan Fire, 210 F.3d at 1102-03. When the moving party carries its initial burden of production, the nonmoving party cannot "rest upon mere allegation or denials of his pleading." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Rather, the non-movant must "go beyond the pleadings and by 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 324, 106 S.Ct. 2548 (internal quotations omitted); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Nissan Fire, 210 F.3d at 1103.

A "genuine issue" of material fact arises if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). When ruling on a summary judgment motion, the court cannot engage in credibility determinations or weighing of the evidence; these are functions for the jury. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir.2002). The court must view the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1180 (9th Cir.2002). The court is not required "to scour the record in search of a genuine issue of triable fact," Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (internal quotations omitted), but rather "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).


7-Eleven moves for summary judgment as to Plaintiffs' claims on the basis they have been mooted by 7-Eleven's remediation as part of its Accessibility Upgrade Program and alternatively, because Plaintiffs have not been deterred from visiting the Store notwithstanding the existence of the barriers. Before the Court turns to the merits of Plaintiffs' claims, a threshold issue that must be resolved is Plaintiffs' standing. Plaintiffs maintain they have standing to seek removal of all barriers that relate to their disabilities because the ADA mandates complete, not piecemeal compliance. To the contrary, 7-Eleven contends Plaintiffs only have standing to seek removal of the barriers they encountered or had knowledge of prior to filing their Complaint.

A necessary element of Article III's "case" or "controversy" requirement is that a litigant must have " 'standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir.2000). The "irreducible constitutional minimum" of Article III standing has three elements. LSO, 205 F.3d at 1152 (internal quotations omitted). First, the plaintiff must have suffered "an injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted); Fortyune, 364 F.3d at 1081. Second, the plaintiff must show "a causal connection between the injury and the conduct complained of--the injury has to be 'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.' " Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)) (alterations in original); accord Fortyune, 364 F.3d at 1081. Third, it must be "likely," and not merely "speculative," that the plaintiff's injury will be redressed by a favorable decision. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Fortyune, 364 F.3d at 1081.

Plaintiff, as the party invoking federal jurisdiction, has the burden of proof and persuasion as to the existence of standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Fortyune, 364 F.3d at 1081. Standing is measured at the time the complaint is filed. Lujan, 504 U.S. at 569 n. 4, 112 S.Ct. 2130. Although at the pleading stage general factual allegations of injury resulting from the defendant's conduct may suffice to establish standing, at the summary judgment stage they are not. Dep't of Commerce v. United States House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999); Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Rather, on a motion for summary judgment, "a plaintiff must establish that there exists no genuine issue of material fact as to justiciability or the merits." Dep't of Commerce, 525 U.S. at ...

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