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Strong v. Walgreen Co.

November 3, 2009

MATT STRONG, PLAINTIFF,
v.
WALGREEN CO., ET AL., DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is Plaintiff's Motion for Summary Judgment or Partial Summary Judgment, in the Alternative (Doc. # 12).

BACKGROUND

Plaintiff Matthew Strong filed a complaint on March 3, 2009 against Defendants Walgreen Co., doing business as Walgreens ("Walgreens") and Rudolf Bragg, Trustee of the Bragg Family Trust (collectively "Defendants") (Doc. # 1). Plaintiff alleges Defendants violated the Americans with Disabilities Act ("ADA"), the California Disabled Persons Act, the California Unruh Act, and the California Health and Safety Code (Doc. # 1). Plaintiff alleges that the Walgreens store located at 215 North 2nd Street in El Cajon, California, 92021 is a public sales or retail establishment which was not fully accessible to him because of "architectural barriers" (Docs. # 1 at 2 and 12-5 at 2-3). The alleged barriers include: (1) the lack of a marked crossing in the parking lot; (2) incorrect signs in the van accessible parking space; (3) sloped surfaces in the parking lot exceeding 2%; (4) the lack of "detectable warnings" in the form of a "grooved border" on a ramp; (5) the lack of designated checkstands for the handicapped open at all times; (6) a restroom door which does not self-close; (7) a toilet paper dispenser which "protrudes into the clear maneuvering space needed to access the water closet;" (8) sharp edges on the toilet paper dispenser; (9) the fact that the front roll of toilet paper was more than twelve inches from the "water closet;" (10) lack of access to the disposable seat cover dispenser in the bathroom; (11) improperly or incompletely wrapped pipes in the bathroom; and (12) "insufficient strike side clearance on the pull side of the restroom door." (Docs. # 1 at 3-4 and Doc. # 12-5 at 2-3).*fn1

Plaintiff claims that each of these alleged deficiencies violates the ADA, the California Disabled Persons Act, the California Unruh Act, and the California Health and Safety Code (Doc. # 1). Plaintiff seeks (1) injunctive relief, declaratory relief, attorney's fees, costs, and legal expenses pursuant to the ADA; (2) statutory minimum damages of $1,000, declaratory relief, attorney's fees, and an injunction barring Walgreens from violating California law pursuant to the California Disabled Persons Act; (3) statutory minimum damages of $4,000 for each offense and attorney's fees and costs pursuant to the California Unruh Act; and (4) injunctive relief and attorney's fees pursuant to the California Health and Safety Code. On August 7, 2009, Plaintiff filed a Motion for Summary Judgment or Partial Summary Judgment in the Alternative (Doc. # 12).

CONTENTIONS OF THE PARTIES

Plaintiff moves for summary judgment, or in the alternative partial summary judgment (Doc. # 12). In support of the motion, Plaintiff filed his own declaration, restating the factual allegations of his complaint (Doc. # 12-5). Defendants claim that Plaintiff's proffered evidence fails to make even a prima facie case because it fails to explain how Plaintiff has personal knowledge of the violations he alleges (Doc. # 14 at 5, 7). Defendant filed the declaration of an expert witness, Kim Blackseth, which disputes Plaintiff's factual allegations, disputes whether Plaintiff's allegations constitute violations of state or federal law, and states that Plaintiff does not have standing to bring two of his claims because the alleged violations would not affect someone with Plaintiff's disability (Doc. # 14-4). Defendants ask the Court to sua sponte grant summary judgment in favor of Defendants (Doc. # 14 at 15). In his reply, Plaintiff concedes that there are issues of material fact as to several alleged violations, specifically the availability of a handicapped-accessible checkstand, the toilet paper dispenser which "protrudes into the clear maneuvering space needed to access the water closet" and has sharp edges, and whether there is sufficient "strike side clearance on the pull-side of the restroom door" (Doc. # 16).

FACTS

Plaintiff is a 49 year-old man who is a C-5 quadriplegic who is unable to walk or stand (Doc. # 12-5 at 2). Plaintiff uses a wheelchair "when traveling in public" (Doc. # 12-5 at 2). Defendants own the Walgreens located at 215 North 2nd Street in El Cajon, California, 92021 (Docs. # 12-4 at 2, 14-2 at 2). Plaintiff visited the Walgreens store in question repeatedly, including on February 22, 2009, March 1, 2009, and on one other occasion in March of 2009 (Doc. # 12-5 at 2). Plaintiff states that during these visits, he encountered "architectural barriers that denied [him] full and equal access" to Defendants' facilities (Doc. # 12-5 at 2). Plaintiff states:

a) There was no marked crossing where the accessible route crossed the vehicular way.

b) The signage posted at the van accessible parking space was incorrect.

c) The slopes and cross slopes of the disabled parking spaces to the north side of the Store exceeded 2.0%.

d) The slopes and cross slopes of the access aisle(s) to the north side of the Store exceeded 2.0%.

e) The grooved border was located on the ramp, instead of on the level surface ...


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