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Luna v. Vo

November 16, 2010

ANTONIA LUNA, PLAINTIFF,
v.
HOA TRUNG VO DBA SAVE MORE 98 DISCOUNT STORE; BLIATOUT LLC; AND DOES 1-10 INCLUSIVE, DEFENDANTS.



ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND RELATED ORDERS Doc. # 35

This is an action for damages and injunctive relief pursuant to the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA") and California's Unruh Civil Rights Act. Plaintiff Antonia Luna ("Plaintiff") explains the instant motion for summary judgment thus:

On August 27, 2009, the court executed and filed a Consent Decree and Order entered into by the parties resolving injunctive relief issues in this case. [. . . .] However, as that Order did not include any admission of liability, this Motion [for summary judgment] is necessary in order to establish liability and request that the Court award minimum statutory damages, per [Cal. Civ. Code] § 52 as to each defendant.

Doc. # 35 at 5:12-18 (internal citations omitted).

Defendants Hoa Trung Vo ("Vo") dba Savemore 98 Discount Store (the "Store") and Bliatout, LLC ("Bliatout") (collectively, "Defendants") do not oppose Plaintiff's motion for summary judgment, nor do they dispute the alleged factual basis for Plaintiff's claim of violation of the ADA or Plaintiff's contention that she suffered two violations of the ADA.

Defendants request only that Plaintiff's award of monetary damages be held to the minimum required by law.

Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Because Plaintiff's motion for summary judgment is unopposed, the court will summarize to some extent Plaintiff's undisputed material facts. As previously noted, Defendants do not dispute any of Plaintiff's proffered undisputed material facts.

Plaintiff is quadriplegic due to a fracture of her cervical vertebrae that occurred when she was five years old. She requires the use of a motorized wheelchair for mobility. On October 3, 2008, Plaintiff went to the Asian Village Shopping Center in Fresno ("Shopping Center"). On October 3, 2008, Plaintiff entered the Store located in the Shopping Center. At the time of Plaintiff's October 3, 2008, visit to the Store, Bliatout was the entity that owned the Shopping Center. Defendants do not dispute that both the Shopping Center and the Store are places of public accommodation within the meaning of ADA and the Unruh Civil Rights Act. Plaintiff alleges facts sufficient to show that the space occupied by the Store was reconfigured from its original use as office space so that physical design accommodations required by ADA applied to the Store.

Defendants do not dispute that on October 3, 2008, when Plaintiff tried to enter the Store, a number of boxes "were all over the store, preventing anyone in a wheelchair from accessing the store." Doc. # 36 at ¶ 17. Later inspection of Shopping Center by Plaintiff's ADA expert identified other issues of non-compliance which were addressed in the parties' stipulated consent decree but that are not set forth in Plaintiff's Statement of Undisputed Material Facts. It is not disputed by the Defendants that Vo, as owner of the Store, violated ADA requirements by failing to maintain adequate clearance for wheelchair passage and that Bliatout violated ADA requirements by failing to maintain required parking and access to the Shopping Center.

The complaint in this action was filed on December 23, 2008. The stipulated Consent Decree settling all claims for injunctive relief was filed on August 27, 2009. The instant motion for summary judgment was filed on October 8, 2010, and Defendants' responses were filed on October 28, 2010, by defendant Blaitout and on October 29, 2010, by defendant Vo. Oral argument, which was set for November 15, 2010, was vacated and the matter was taken under submission as of that date.

LEGAL STANDARD

The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.1975), cert. denied, *1472 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). The moving party is entitled to summary judgment as a matter of law where, viewing the evidence and the inferences arising therefrom in favor of the non-movant, there are no ...


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