ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Plaintiff Marshall Loskot's ("Plaintiff") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. # 9). Defendants Geo Kadavelil Mathews, Antelope Liquors, Manjinder Singh Sangha, and Sandeep K. Sangha (collectively "Defendants") oppose the motion.
(Doc # 14). For the reasons set forth below,*fn1 Plaintiff's motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter arises from Plaintiff's October 10, 2008, visit to Antelope Liquors, a gas station and store, located in Red Bluff, California, and owned by Defendants Geo Kadavelil Mathews, Manjinder Singh Sangha, and Sandeep K. Sangha. Plaintiff is a T10 paraplegic bound to his wheelchair since the accident that caused his condition in 1991. Plaintiff's Statement of Undisputed Facts ("SUF") ¶ 1. Plaintiff asserts he made the October 10, 2008, visit to Antelope Liquors for the purpose of purchasing gas and using the restroom facilities. SUF ¶ 4. Plaintiff claims he visited the business prior to the October 10, 2008 incident, that he visits the area frequently, and that he intends to return to the store. SUF ¶ 6. Plaintiff argues that on October 10, 2008 he struggled to overcome numerous architectural barriers that prevented him from enjoying full and equal access to Antelope Liquors. SUF ¶ 5. Specifically, Plaintiff asserts he could not enter the store without assistance and could not use the restroom because of the raised entrance to the facility. SUF ¶ 5. Plaintiff claims that prior to this suit he sent two letters to the business and property owners of Antelope Liquors describing the problems he encountered during his visit, but that he did not receive a response to those letters. SUF ¶ 7.
On January 2, 2009, Plaintiff filed a complaint against Defendants seeking injunctive relief and damages pursuant to the American with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181 et. seq., the California Health & Safety Code § 19955, et seq., California Civil Code § 54, et seq., California's Unruh Civil Rights Act ("Unruh Act"), California Civil Code §§ 51 et seq., and California Code of Regulations, Title 24, Chp. 11B. (Doc. # 1). According to Plaintiff, Defendants denied him full and equal enjoyment in the use of Antelope Liquors and failed to remove architectural barriers that violate federal and state disability access standards as prescribed by the Americans with Disabilities Act Accessibility Guidelines ("ADAAG") and California's Title 24 ("Title 24").
In the instant motion, Plaintiff seeks summary judgment against Defendants. (Doc. # 9). Defendants argue that they were in the midst of remodeling Antelope Liquors at the time of the alleged incident and that the remodel plans and construction were approved by the governmental agency charged with ADA compliance. Defendants' Opposition Brief, Doc. # 14 ("Defs' Opp.") at 2. Defendants also contend that Plaintiff has not proposed enough facts to allow the Court to determine if there is compliance with the ADA and that Plaintiff's SUF is "littered with improper legal conclusions." Id. at 6.
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). Because the purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses," Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986), "[i]f summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue." Fed. R. Civ. P. 56(d).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the moving party meets its burden, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e)). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
A "scintilla of evidence" is insufficient to support the non-moving party's position; "there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. Accordingly, this Court applies to either a defendant's or plaintiff's motion for summary judgment essentially the same standard as for a motion for directed verdict, which is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The ADA proscribes discrimination against individuals based on their disability. See 42 U.S.C. §§ 12101, et seq.. The ADAAG provides "substantive standards for public facilities subject to the ADA, [and the] ADAAG standards define whether an architectural or other feature of a facility is a 'barrier' that discriminates against disabled persons in violation of the ADA." Wilson v. Norbreck, L.L.C., 2006 WL 2651139, at *1 (E.D. Cal. Sept. 15, 2006).
Plaintiff seeks summary judgment for the following 10 alleged violations of the ADA, citing non-compliance with ADAAG regulations:
1. No posted tow-away signage, in violation of ADAAG 4.6.4. Because there is no tow-away sign requirement in the ADAAG, Plaintiff cannot demonstrate he is entitled to judgment as a matter of law for this alleged violation. Accordingly, Plaintiff's motion for summary judgment based on Defendants' alleged failure to adhere to ADAAG 4.6.4, in violation of the ADA, is denied.
2. Parking access aisle area has a cross slope in excess of 2%, in violation of ADAAG 4.6.3.
The 3 photographs in the "Site Inspection Report" put forward as evidence of a violation of ADAAG 4.6.3 are insufficient to determine whether Defendants failed to comply with the ADAAG. The photographs only show a small portion of the area being measured, making it impossible to tell where the photographs were taken. Additionally, Plaintiff fails to provide a description of how the measurements were procured. For these reasons, Plaintiff did not meet his burden of proof, failing to ...