The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING EACH DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON FEDERAL CLAIMS AND DECLINING SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S STATE CLAIMS*fn1
Pending are cross-motions for summary judgment on all of Plaintiff Byron Chapman's claims. Chapman's claims are alleged under the federal Americans with Disabilities Act ("ADA") and California law. Chapman seeks monetary relief from Defendants Starbucks Corporation, dba Starbucks Coffee #574 ("Starbucks") and Sycamore Partners, LLC ("Sycamore") under California law, and injunctive relief under the ADA that would enjoin Defendants to remove architectural barriers which allegedly interfered with Chapman's ability to access Starbucks.
"The moving party [for summary judgment] initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Securities Litigation, --- F.3d ----, 2010 WL 4608794, at *5 (9th Cir. 2010). If this burden is sustained, "the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial." Id. "[W]e must draw all reasonable inferences supported by the evidence in favor of the non-moving party . . . ." Guidroz-Brault v. Missouri Pacific R. Co., 254 F.3d 825, 827 (9th Cir. 2001). However, "mere argument does not establish a genuine issue of material fact to defeat summary judgment." MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993).
Further, Local Rule 260 requires: Each motion for summary judgment . . . [to] be accompanied by a 'Statement of Undisputed Facts' that . . . enumerate[s] discretely each of the specific material facts relied upon in support of the motion and [to] cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact. . . .
Any party opposing a motion for summary judgment . . . [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial. E.D. Cal. R. 260 (a)-(b).
A party failing to specifically "challenge the facts identified in the [movant's] statement of undisputed facts, . . . is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006) (finding that a party opposing summary judgment who "fail[s] [to] specifically challenge the facts identified in the [movant's] statement of undisputed facts . . . is deemed to have admitted the validity of [those] facts[.]"); see also Farrakhan v. Gregoire, 590 F.3d 989, 1002 (9th Cir. 2010) ("If the moving party's statement of facts are not controverted in this manner, 'the Court may assume that the facts as claimed by the moving party are admitted to exist without controversy.'").
Chapman has limited mobility as a result of a spinal cord injury and therefore he is unable to walk and uses a wheelchair. (Pl.'s Statement of Undisputed Facts ("SUF") ¶ 1, 3.) Chapman visited the Starbucks coffee shop located at 421 Pioneer Avenue in Woodland, California, on four occasions. Id. ¶ 6.
Starbucks is a place of public accommodation built after January 26, 1993. Id. ¶¶ 14-15. Starbucks leases the space where the coffee shop is located from Sycamore. Under the lease, Starbucks is solely responsible for any architectural barrier within Starbucks; and Sycamore, as the owner of the property, is responsible for any architectural barrier in the parking lot and common areas of the premises. (Starbucks' Mot. for Summ. J. Decl. of Tate ¶ 4; Sycamore's Mot. for Summ. J. Decl. of Engstrom ¶¶ 2-4.)
Chapman alleges in his complaint that when visited Starbucks he encountered architectural barriers that "interfered with . . . his ability to use and enjoy . . . the facility." (Compl. ¶ 10.) Chapman alleges "the barriers at the Coffee Shop included, but are not limited to, the following:" 1) "The access aisle has slopes and cross slopes that exceed 2.0% due to the encroaching built-up curb ramp;" 2) "The disabled parking spaces have slopes and cross slopes that exceed 2.0% due to the encroaching built-up curb ramp;" 3) "The words 'NO PARKING' are not painted within the access aisle;" 4) "The entrance door has inaccessible 'panel' handles;" 5) "The pick-up counter is too high with no portion lowered to accommodate a patron in a wheelchair;" 6) "There is no seating designated as being accessible to the disabled;" 7) "There is no accessible seating inside or out;" 8) "The clothes hook inside the restroom is too high;" 9) "The toilet tissue dispenser protrudes into the clear floor and/or maneuvering space needed to access the water closet;" 10) "The toilet tissue dispenser is an obstruction to the use of the side grab bar;" 11) "The center of the water closet is more than 18 inches from the side wall;" and 12) "The pipes beneath the lavatory protrude too far from the back wall into the clear knee space required." Id. Chapman's first three claims concern barriers for which Sycamore is responsible, the remaining nine claims concern barriers for which Starbucks is responsible.
Chapman identified additional architectural barriers during his deposition testimony, and his expert listed additional barriers in his report. Sycamore challenges these barriers arguing: "It is elementary that a plaintiff cannot proceed on claims not included in his complaint." (Sycamore's Opp'n to Pl.'s Mot. for Summ. J. 1:28.) Sycamore also argues since it has remedied the alleged barriers pled in Chapman's complaint, and since Chapman may only seek an injunction under the ADA, Chapman's ADA claims are moot, and the Court should decline exercising supplemental jurisdiction over Chapman's state claims. Id. 3:25-5:8. Sycamore cites the Ninth Circuit decision in Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 969 (9th Cir. 2006), as support for its argument that only Chapman's complaint contains the claims at issue in the summary judgment motions. In Pickern, the Ninth Circuit stated in pertinent part:
Although the new allegations were not part of the original complaint, Pickern might have proceeded by filing a timely motion to amend the complaint. However, Pickern did not amend the complaint to include more specific allegations. She also did not incorporate the "preliminary site report" into her complaint. Instead, it appears that, many months after filing the complaint, she merely provided a "preliminary site report" to the Appellees as part of settlement negotiations. This did not make the preliminary site report part of the record and it did not give the Appellees notice of what allegations Pickern was including in the suit.
Chapman has not sought leave to amend the provision in the scheduling order filed January 14, 2010, which states "[n]o further . . . amendments to [the] pleadings is permitted" absent a showing of "good cause". Rather than addressing the "good cause" standard, Chapman makes the conclusory argument that he can proceed on barriers that are not included in his complaint. (Pl.'s Opp'n to Defs.' Mots. for Summ. J. 8:16-24.) However, "Ninth Circuit precedent is clear that, 'where . . . the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court.'" Adobe Lumber Inc. v. Hellman, No. CIV. 2:05-1510 WBS EFB, 2010 WL 760826, at *3 (E.D. Cal. March 4, 2010) (quoting Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008)).
Here, all scheduling deadlines in the scheduling order have past except for the final pretrial conference scheduled for February 14, 2011, and trial which is scheduled to commence on May 17, 2011. Further, Chapman has not filed and prevailed on a motion to amend the scheduling order, so that he could seek leave to amend his complaint under Federal Rule of Civil Procedure 15(a). See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) ("Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking the [modification].'"). Therefore, the Court declines to consider Chapman's barrier claims which are not included in his complaint. See ...