ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 27)
Plaintiff Byron Chapman ("Chapman") has brought this lawsuit against Chevron Stations, Inc. and Chevron U.S.A., Inc. (collectively "Chevron"). The active complaint is the First Amended Complaint ("FAC"). The FAC alleges violations of 42 U.S.C. § 12000 et. seq. (the Americans with Disabilities Act) ("the ADA"), the California Civil Code, and the California Health & Safety Code. Chevron now moves for summary judgment. For the reasons that follow, the Court will grant Chevron's motion with respect to the ADA claims and decline to exercise supplemental jurisdiction over the remaining state law causes of action.
Chevron Station #1553 ("the Station") is located in Coalinga, California. See DUMF 1. The Station was constructed prior to the enactment of the Americans with Disabilities Act of 1990. DUMF 2. Chapman is physically disabled due to a spinal cord injury and uses a motorized wheelchair and an automobile with a lift system. See DUMF 3; FAC 8; PUMF 61. Plaintiff resides in Dixon, California, which is more than 200 miles from the Station. See DUMF 4. Chapman visited the Station on three or four occasions, but at his deposition could not recall the day, month, or year of the visits. See DUMF Nos. 46, 47.
Chapman filed this lawsuit in July 2009. See Court's Docket Doc. No. 1. Chapman filed the FAC on April 11, 2011. See Court's Docket Doc. No. 21. The FAC contends that Chapman experienced barriers at the gas station that interfered with his ability to use and enjoy the goods, services, privileges, and accommodations offered at the Station. See FAC at ¶ 10.
On April 28, 2011, Chapman served Chevron with the Expert Report of Joe Card, who had conducted a site inspection of the Station on April 6, 2011. See DUMF Nos. 8, 9. Card's report identifies the following alleged barriers at the Station:
1. Lettering on "Van Accessible" sign is too large;
2. Curb ramp requires handrails;
3. Portion of a walkway/"short cut" walkway is too narrow;
4. There is a potentially misleading directional sign;
5. Exterior restroom door requires too much effort/force to open;
6. Lavatory does not have appropriate knee clearance;
7. Water closet is not centered appropriately;
8. Restroom sign requires an International Symbol of Access ("ISA");
9. Gas pump sign for "additional assistance" should be relocated;
10. Interior restroom sign requires ISA;
11. Merchandise aisles width should be increased;
12. Width should be increased at the end of a store aisle near a coffee island;
13. ICEE cup lids are too high; and
14. Asphalt concrete pathway may distort in the future.
See DUMF 10. Of the barriers identified by Card, only the first barrier (the "Van Accessible" sign) is identified in the FAC. Cf. DUMF 10 with FAC ¶ 10.
Darin O'Kelley, the maintenance and construction manager of Chevron, filed a declaration in support of the summary judgment motion. See Court's Docket Doc. No. 27-9 ("O'Kelley Dec."). In pertinent part, O'Kelley declares: (1) the "Van Accessible" sign has been changed so that the lettering of "Van" is 1 1/2 inches and the lettering of "Accessible" is 1 inch; (2) the potentially misleading directional sign has been removed; (3) the exterior restroom door has been changed and requires less than 5 pounds of force to open; (4) the lavatory now has at least 27 inches of knee clearance from the floor to the sink bottom, and has at least 8 inches of knee clearance under the sink from a "front approach"; (5) the center of the front of the toilet has been reset to 18 inches, and the rear of the toilet is centered to less than 18 3/4 inches from the wall, which is the maximum adjustment possible without rerouting the toilet's sewer line; (6) an ISA has been mounted on the exterior and in the interior; (7) an "additional help" sign has been posted near the gas pump; (9) the width of the aisles has been adjusted to 44 inches; (10) the area near the coffee island (which is stationary and affixed to the store) has been adjusted to 33 inches by pushing the deli cooler flush to the wall, and the area measured by Card is otherwise accessible by 36 inch wide paths on two other sides of the coffee bar; (11) there is now a supply of medium and large ICEE lids at lower heights and underneath the ICEE dispenser; and (12) Chevron employees are available to provide assistance and reasonable accommodations to disabled customers, including retrieving merchandise and other items that may be outside a customer's reach. See O'Kelley Dec. ¶¶ 4-15. Additionally, pursuant to Court order, Chevron submitted an additional declaration and photographs that confirm the representations made in the O'Kelley Declaration. See Perkins Dec. & Exs. A-J.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The opposing party's evidence is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 573 F.3d 1040, 1058 (9th Cir. 2009); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.
Defendant's Argument Chevron contends that the barriers identified by Card are either not ADA barriers, or the barriers have been corrected and thus, claims based on the corrected barriers are now moot. Because there are no ADA violations that can be remedied, the ADA claims should be dismissed and the Court should decline to exercise jurisdiction over the state law claims.
In reply, Chevron also argues that a recent Ninth Circuit case,
Oliver v. Ralphs Grocery Co. , - - - F.3d - - -,
2011 U.S. 17022 (9th Cir. Aug. 17, 2011), makes clear that only
are identified/disclosed in a plaintiff's complaint are at issue
in summary judgment. Since only one of the barriers identified by Card
is in the FAC, summary judgment on each additional barrier is
appropriate. Further, the one barrier that is identified by Card and
in the FAC was addressed by the Ninth Circuit, which held that such
claims do not implicate the ADA.
Chapman argues that, with some exceptions, the barriers identified by Card are violations of the ADA. Further, there is insufficient evidence that the claims are moot. There is no record of Chevron obtaining building permits from the County of Fresno for any of the alleged barriers. Chevron has refused additional inspections, and went so far as to obtain an order from the Magistrate Judge which forbids additional inspections. *fn2 Given this conduct and the absence of building permits, Chevron has not adequately shown that the barriers have been removed.
As for Oliver , that case is contrary to previous opinions. No other case has required an ADA plaintiff to identify in their complaint every barrier that they wish removed. In fact, on three separate occasions, the Ninth Circuit has outright refused to adopt a requirement that all barriers must be identified in the complaint. Oliver is contrary to the previous opinions of Skaff v. Meridien N. Am. Beverly Hills, LLC , 506 F.3d 832 (9th Cir. 2007), Doran v. 7-Eleven, Inc. , 524 F.3d 1034 (9th Cir. 2008), and Chapman v. Pier 1 Imports (U.S.), Inc. , 631 F.3d 939 (9th Cir. 2011). Because Oliver is in conflict with these cases, the Court should stay proceedings and certify this matter for an interlocutory appeal. Alternatively, ...