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Dennison v. Exposé III

December 23, 2008

DENNISON, SUZANNE GARCIA AND TAMMY PLAINTIFFS,
v.
EXPOSÉ III, ANTHONY HWANG DBA ADD PARTY AGNES GABRIELSEN; AND DOES 1-10, EXPOSÉ III; DONLON GABRIELSEN; DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger, United States District Judge

CORRECTED SCHEDULING AMENDING THE PLEADINGS TO CONFERENCE ORDER AND ORDER Settlement Conference Date: 3/25/09 10:00 Ctrm. 9 inclusive, Further Scheduling Conference: 4/16/09 8:15 Ctrm. 3

I. Date of Scheduling Conference

December 17, 2008

III. Summary of Pleadings

1. Plaintiffs Suzanne Garcia and Tammy Dennison live near and are intended patrons of the Exposé III store located at 169 W. Polk St., Coalinga, California (hereafter "the Store"). Both Plaintiffs are qualified physically disabled persons, as defined by all federal and California disability access laws, each Plaintiff requires use of a motorized wheelchair for mobility, and each possesses a proper disabled parking placard issued by the State of California.

2. On multiple occasions within the past two years prior to the filing of this Complaint, Plaintiffs have each had difficulties with entrance and usage of the Store owned and operated by Defendants, and were denied full and equal access to public accommodations and public facilities while attempting to patronize the Store and/or travel on the walkway passing in front of the Store. Plaintiffs have often been deterred from driving to the Store and to other stores that share a common parking area because of the lack of properly configured, numbered and located disabled parking spaces. Plaintiffs' difficulties and denials of access were due to architectural barriers and policy violations, including but not limited to the following.

3. During the month of February, 2007, Plaintiffs attempted to enter the Store, but Store owner Defendant Anthony Hwang came running to the entrance, ordered Plaintiffs to "Stop!" and ordered them to stay out: "You can't come in here with those chairs!" He essentially chased Plaintiffs away.

4. Later that day, having regained their composure, Plaintiffs again attempted to patronize the Store. Although Plaintiff Dennison was able to enter the Store with some difficulty, Plaintiff Garcia decided to stay outside because she feared she would not be able to fit her motorized wheelchair through the doorway. When Plaintiff Dennison entered the Store, a metal security device and displays blocked her advance, so she had to back her wheelchair out.

5. Because Plaintiff Dennison is able to leave her wheelchair and walk, with some difficulty and for short distances, Plaintiff Garcia remained outside the Store while Plaintiff Dennison walked into the Store. Inside the Store she observed that virtually all paths of travel within the Store, including those between racks of clothing, were too narrow to allow any kind of wheelchair to pass through, thereby denying full and equal access.

6. Even when deterred from entering the Store, Plaintiffs also had difficulty passing by on the walkway at the front of the Store on multiple occasions when they shopped in the area because Defendants consistently placed clothing racks on the walkway immediately in front of the Store which blocked the walkway. On several occasions, Plaintiffs complained to Defendants and their employees, but Defendants continued to use portions of the exterior walkway as a location for their clothing racks, blocking access to wheelchair users.

7. On March 25, 2008, Plaintiffs were traveling on the public walkway outside the Store and attempted to pass between two clothing racks. One of the racks fell upon Plaintiff Suzanne Garcia while she passed in her wheelchair. While Plaintiff Garcia was attempting to remove the rack from her person, a woman who was an owner or an employee of the Store pulled on the rack, injuring Plaintiff Garcia. Plaintiff Garcia required emergency hospital treatment for a thumb sprain and fingernail wounds inflicted by the subject employee. As a result of Defendants' denial of full and equal access, and of the specific requirement that disabled persons be provided "full and free use of . . . sidewalks [and] walkways" per Civil Code § 54, Plaintiffs suffered special, general and statutory damages.

8. Based on preliminary investigations by Plaintiffs' representatives, the physical property owned and operated by Defendants was constructed and is maintained in an inaccessible condition for use by physically disabled persons with regard to a number of features that may adversely affect Plaintiffs as disabled wheelchair users. Such features include the illegally narrow doorway, the metal security device inside the doorway which makes it even more difficult to enter in a wheelchair, the placement of clothing racks which does not leave sufficient room for a wheelchair to pass through, narrow aisles, excessively high counters, and the lack of a disabled accessible dressing room, all in violation of the law. Further, the disabled parking facilities are illegally inadequate as to size, configuration and number of spaces, both as to those spaces serving the Store and those serving other portions of the shopping center that the Store is a part of. All facilities and policies of Defendants must be brought into compliance with all applicable federal and state code requirements.

9. The Store is a public accommodation. The Americans With Disabilities Act (ADA) states that "[no] individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or leases to, or operates a place of public accommodation." 42 U.S.C. § 12182. Discrimination includes:

A failure to make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilies. § 302(b)(2)(A)(ii).

A failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied service, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services. § 302(b)(A)(iii).

A failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities . . . where such removal is readily achievable. § 302(b)(2)(A)(iv).

Injunctive relief for these violations will include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.

10. Removal of the architectural barriers complained of is also required under California law. Any alterations, structural repairs or additions since January 26, 1992, independently triggers requirements for removal of barriers to access for disabled persons per California Health & Safety Code §§ 19955, 19955.5 and 19959. These provisions apply to the Exposé III retail store. Further, Title 24 of the California Code of Regulations was in effect at the time of each alteration which occurred at such public facility since July 1, 1982, thus requiring access complying with the specifications of Title 24 whenever each such alteration, structural repair or addition was carried out.

11. Each violation of the ADA also constitutes a separate violation of California Civil Code §§ 54(c) and 54.1(d), independently justifying an award of damages and injunctive relief pursuant to California law, including remedies under Civil Code §§ 54.3 and 55. California Civil Code § 52(a) also provides that each such violation entitles Plaintiff to damages, specifically, "the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney fees that may be determined by the court in addition thereto."

12. Plaintiffs seek injunctive relief to remediate the access barriers and establish policies which will prevent future discrimination by Defendants, as well as damages and statutory attorney fees and expenses.

Summary of Exposé III, et al.

1. The Exposé Parties incorporate Exposé III and Anthony Hwang's answer to Plaintiffs' Complaint and Anthony Hwang and Myung Hwang's answer to the Gabrielsens' cross-claim. The Exposé Parties contest all of the facts and legal contentions set forth in Plaintiffs' complaint and the Gabrielsens' cross-claim, except as expressly admitted herein. All other facts and legal contentions are contested, including the following:

2. The Exposé Parties deny that Plaintiffs have at any time had difficulty with entrance and usage of the Exposé III store, that Plaintiffs were denied full and equal access to any area inside or outside the Exposé III store, that Plaintiffs ever complained to the Exposé Parties, that a clothing rack fell on Plaintiff Garcia, that Plaintiffs suffered any damages, that Plaintiffs were injured in fact or in law, that Plaintiffs are entitled to injunctive relief, that any area inside or outside the Exposé III store is not in full compliance with all applicable federal and state code requirements as alleged in Plaintiffs' complaint. In addition, Anthony Hwang and Myung Hwang deny, in connection with the Gabrielsens' cross-claim, that they owe indemnity to the Gabrielsens under any of the theories alleged in the cross-claim. Further, Exposé III and Anthony Hwang assert 28 affirmative defenses in their answer to Plaintiffs' complaint, and Anthony Hwang and Myung Hwang assert 24 affirmative defenses to the Gabrielsens' cross-claim.

3. The Exposé Parties assert in their cross-claim that the Gabrielsens, as owners and maintainers of the shopping center and as lessors of the Exposé III store premises, are obligated to indemnify them in connection with Plaintiffs' claims, and are obligated to reimburse the Exposé Parties for their attorneys' fees and costs, including any costs relating to required repairs and improvements of the Exposé III store facilities.

Summary of Gabrielsens

1. Defendants Donlon Gabrielsen and Agnes Gabrielson, co-trustees of the Gabrielsen Family Trust dated February 10, 1987, amended and restated in its entirety on October 20, 1992 (the "Gabrielsens"), deny the allegations of the Complaint and deny that Plaintiffs are entitled to any relief whatsoever. The Gabrielsens further deny that Plaintiffs Suzanne Garcia and Tammy Dennison (the "Plaintiffs") were denied access to the subject premises. Until the filing of the Complaint, Plaintiffs never voiced any complaints about access issues to the Gabrielsens.

2. The Gabrielsens are owners of the real property at 169 W. Polk Street, Coalinga, California (the "Property"). The Gabrielsens leased a portion of the Property (the "Premises") to Defendants and Cross-Defendants Anthony S. Hwang and Myung H. Hwang (the "Hwangs") pursuant to a written Lease Agreement dated August 15, 2002 (the "Lease"). The Gabrielsens do not own or operate Exposé III, which is a store owned and operated by the Hwangs.

3. Pursuant to the Lease, among other things, the Hwangs agreed to comply with all statutes, ordinances, and requirements of all county, state and federal authorities pertaining to the Premises. The Gabrielsens filed a cross-claim for breach of lease, indemnity, contribution, and declaratory relief against the Hwangs.

IV. Orders Re Amendments To Pleadings

1. It is ordered that the pleadings are amended to add as a Defendant, the owner of the real property, Gabrielsen Family Trust dated February 10, 1987, amended and restated in its entirety on October 20, 1992, and Donlon Gabrielson and Agnes Gabrielsen, as co-trustees of that Trust.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings

1. Suzanne Garcia and Tammy Dennison, Plaintiffs in this action, allege that they are disabled within the meaning of the Americans With Disabilities Act. That issue will be resolved by discovery.

2. The Gabrielsen Defendants are the owners of the real property located at 169 West Polk Street, Coalinga, California.

3. The business known as Exposé III is located at that address.

4. The parking lot that is also in dispute in this lawsuit is also located at 169 West Polk Street, Coalinga, California.

B. Contested Facts

1. What construction or "alterations, structural repairs or additions," have the subject facilities undergone since July 1, 1970 (Health & Safety Code §§ 19955 and 19959); since January 1, 1982 (Cal. Code Regulations, Title 24); and since January 26, 1992 (Title III of the Americans With Disabilities Act).

2. Were the subject facilities, goods, and services cited in Plaintiffs' complaint, and other relevant facilities serving the subject facility, accessible to Plaintiffs and other disabled wheelchair users during the months of February 2007, and March, 2008, when Plaintiffs visited the premises.

3. What would be the individual cost, per ADA statutory and regulatory standards, for removal of each barrier to access at the facilities remaining after the enactment of the ADA on July 26, 1990, and after ADA compliance deadline of January 26, 1992?

4. If Defendants allege that barrier removal is "not readily achievable," what are the "overall financial resources" of each Defendant (and of any "related entities," including all holding and parent companies, subsidiaries, affiliates, trusts, joint ventures, and general partners) for purposes of determining whether each individual barrier removal is "readily achievable" under the standards of §301(9) of the Americans With Disabilities Act of 1990 and associated ADA regulations? See Guzman v. Denny's Inc., 40 F.Supp.2d 930 (U.S.D.C. S.D. Ohio 1999); Botosan v. McNally Realty, 216 F.3d 827 (9th Cir. 2000).

5. What damages, if any, did Plaintiffs incur as a result of lack of access, under California state law standards, including California Civil Code §§ 52 and 54.3, from the date of their respective visits to the subject premises until whatever date that full and equal access to the subject facilities is finally provided?

6. Was there a lack of proper van accessible parking and a lack of accessible exterior paths of travel from the designated disabled parking place to the business, at the time of Plaintiffs' visits?

7. Were the accommodations complained of in compliance with ADA standards at the time of Plaintiff's visits, and as of the present.

8. What were the circumstances of Plaintiffs' exclusions and physical injuries.

9. The Exposé Parties incorporate the Store and Anthony Hwang's answer to Plaintiffs' complaint and Anthony Hwang and Myung Hwang's answer to the Gabrielsens' cross-claim. Store contests all of the facts set forth in Plaintiffs' complaint, except as expressly admitted herein. All other facts are contested including the following.

10. That Plaintiffs have ever had difficulties with entrance and usage of the Store and the ...


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