Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Matthew Strong v. Walgreen Co.

November 8, 2011

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



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

ORDER

The matters before the Court are the Motion for Summary Judgment filed by Defendants (ECF No. 65) and the Motion for Summary Judgment filed by Plaintiff. (ECF No. 66).

I. Background

On March 35, 2009, Plaintiff Matthew Strong filed a complaint against Defendants Walgreen Co., doing business as Walgreens ("Walgreens") and Rudolf Bragg, Trustee of the Bragg Family Trust (collectively "Defendants") (ECF No.1). Plaintiff filed a Motion for Summary Judgment which was denied on November 3, 2009. (ECF No. 21). On May 25, 2010, this case was stayed pending the resolution of Chapman v. Pier 1 Imports, 571 F.3d 853 (9th Cir. 2009), in which the Court of Appeals considered the pleading requirements for a case asserting violations of the American with Disabilities Act ("ADA"). On January 18, 2011, an opinion was issued in the Chapman case and the stay was lifted. On April 18, 2011, Plaintiff was granted leave to file an amended complaint.

On April 28, 2011, Plaintiff's First Amended Complaint was filed. (ECF No. 64). Plaintiff asserts claims against Defendants for violation of the ADA, the California Disabled Persons Act, the California Unruh Act, and the California Health and Safety Code. Plaintiff alleges that he is " a C-5 quadriplegic" who requires the use of a wheelchair to travel. Plaintiff alleges that the Walgreens store located at 215 North 2nd Street in El Cajon, California, 92021 is a public sales or retail establishment constructed or modified after January 26, 1993 which is not fully accessible to him because of architectural barriers. The alleged architectural barriers include: (1) the lack of a marked crossing in the parking lot; (2) an incorrect sign in the van accessible parking space; (3) sloped surfaces in the disabled parking spaces and access aisles exceeding 2%; (4) the "detectable warnings" located on the ramp rather than prior to it; (5) the lack of designated checkstands for the disabled 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 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."*fn1 (ECF No. 64 at 3-4). Plaintiff seeks injunctive relief; declaratory relief; attorney's fees, costs, and legal expenses; the statutory minimum damages; and interest.

On May 13, 2011, Defendants filed a Motion for Summary Judgment. (ECF No. 65).

Plaintiff filed an Opposition. (ECF No. 68). Defendants filed a Reply. (ECF No. 70).

On May 18, 2011, Plaintiff filed a Motion for Summary Judgment. (ECF No. 66). Defendants filed an Opposition. (ECF No. 67). Plaintiff filed a Reply. (ECF No. 71).

On August 17, 2011, Plaintiff and Defendants each filed requests for judicial notice regarding the Court of Appeals's opinion issued in Oliver v. Ralphs Grocery Co., __ F.3d__, 2011 WL 3607014 (9th Cir. 2011). (ECF Nos. 72-73).

II. Discussion

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006) (quotation omitted). "Once the moving party comes forward with sufficient evidence, the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense." C.A.R. Transp. Brokerage Co., Inc. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citation omitted).

A "material" fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The materiality of a fact is thus determined by the substantive law governing the claim or defense. See Anderson, 477 U.S. at 252; Celotex, 477 U.S. at 322; Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 248).

"In ruling on a motion for summary judgment, the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quotation omitted); see also DiRuzza v. County of Tehama, 206 F.3d 1304, 1314 (9th Cir. 2000) ("For purposes of summary judgment . . . , we must presume the facts to be those most favorable to the non-moving party."); Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999) (The nonmoving party's declaration or sworn testimony "is to be accepted as true . . . . [The non-movant's] evidence should not be weighed against the evidence of the [movant]."). "But the non-moving party must come forward with more than the mere existence of a scintilla of evidence. Thus, 'where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Miller, 454 F.3d at 988 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

III. Plaintiff's Motion for Summary Judgment

A. Violations of the ADA

Plaintiff seeks summary judgment on his claim for violation of the ADA based on the following architectural barriers: (1) the lack of a marked crossing in the parking lot and (2) an incorrect sign in the van accessible parking space. Plaintiff contends that the California Manual on Uniform Traffic Control Devices ("MUTCD") requires marked crossings in parking lots. (ECF No. 66-1 at 12-13). Plaintiff contends the California Supplement to the MUTCD requires the use of a "blue sign" indicating van accessible parking. Id. at 11; (ECF No. 66-6 at 4).

Defendants contend that the Americans with Disabilities Act Accessibility Guidelines ("ADAAG") sets the standard for determining whether there are ADA violations, not the MUTCD or the California Supplement to the MUTCD. In addition, Defendant contends that the ADAAG does not require marked crossings in the parking lot and although the ADAAG sets forth the requirements for van accessibility signage, the evidence is undisputed that Defendants' sign meets those requirements.

Title III of the ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). To establish a violation of the ADA, Plaintiff must show that (1) he is disabled; (2) that Defendants own, lease, or operate a "public accommodation;" and (3) he was denied full and equal treatment because of his disability. See Molski v. M.J. Cable, 481 F.3d 724, 730 (9th Cir. 2007). The parties do not dispute that Plaintiff is disabled and that Walgreens is a store of public accommodation.

The Court of Appeals recently addressed whether noncompliance with the California MUTCD constitutes a violation of the ADA. Oliver, 2011 WL 3607014 at **4-7. The Court of Appeals held that "a facility is 'readily accessible to and usable by individuals with disabilities' if it meets the requirements promulgated by the Attorney General in the [ADAAG] which is essentially an encyclopedia of design standards." Oliver, 2011 WL 3607014 at *1 (quoting 28 C.F.R. § 36.406) (citing 28 C.F .R. pt. 36, app. A; Chapman, 631 F.3d at 945--46; United States v. AMC Entm't, Inc., 549 F.3d 760, 763 (9th Cir. 2008)). The Court of Appeals held that the substantive standards of the California MUTCD are not incorporated in the ADA. The Court of Appeals concluded that "an architectural feature that is inconsistent with the California MUTCD is not a per se violation of the ADA." Oliver, 2011 WL 3607014 at *6 (concluding that "the district court properly granted partial summary judgment [to Defendants] regarding those of Oliver's allegations premised on noncompliance with the California MUTCD rather than the ADAAG."). Accordingly, summary judgment is denied on Plaintiff's claim for violation of the ADA based on architectural barriers which do not comply with the California MUTCD including the lack of a marked crossing in the parking lot and an incorrect sign in the van accessible parking space.

Plaintiff's Motion for Summary Judgment on Plaintiff's first claim for violation of the ADA due to the lack of a marked crossing in the parking lot and an incorrect sign in the van accessible parking space is DENIED.

B. Additional Barriers Identified by Plaintiff's Expert

Plaintiff also seeks summary judgment on six barriers which were not alleged in the Complaint, but were identified by Plaintiff's expert in the expert report. Defendants contend that Plaintiff is not entitled to summary judgment on the six additional barriers identified by Plaintiff's expert on the grounds that Plaintiff has failed to provide fair notice of the barriers.

The Court of Appeals recently addressed whether fair notice of a claim is provided where barriers are not listed in the complaint, but disclosed in an expert report. Oliver, 2011 WL 3607014 at **4-7. The Court of Appeals held that "in order for the complaint to provide fair notice to the defendant, each [barrier] must be alleged in the complaint." Id. at *4 (citing Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir.2006)). The Court of Appeals concluded that "for purposes of Rule 8, a plaintiff must identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair notice of barriers identified elsewhere." Oliver, 2011 WL 3607014 at *5 ("[T]he district court did not err in refusing to consider the barriers that Oliver identified only in his expert report.") (citing Fed. R. Civ. P. 8). Accordingly, the Court does not consider the barriers which are not identified in Plaintiff's Complaint, and only identified in the expert report.

Plaintiff's Motion for Summary Judgment on Plaintiff's first claim for violation of the ADA due to barriers identified in the expert report is DENIED.

C. Statutory Damages pursuant to the Unruh Act and the California Disabled Persons Act

Plaintiff also seeks summary adjudication on his state law claims pursuant to the Unruh Act and the California Disabled Persons Act on the grounds that he has "established [that] his rights were violated under the ADA, and therefore he is entitled to statutory damages" under the Unruh Act and the California Disabled Persons Act. (ECF No. 66-1 at 19). Defendants contend that Plaintiff has not established a violation of the ADA "therefore, his California state law claims under the California Disabled Persons Act and the Unruh Act similarly fail." (ECF No. 67 at 22).

Unlike the ADA, which only provides injunctive relief, the Unruh Act and the California Disabled Persons Act provide a statutory minimum amount of damages. See 42 U.S.C. § 12205; Cal. Civ. Code §§ 52(a), 54.3(a). A violation of the ADA constitutes a violation of the Unruh Act and the California Disabled Persons Act. Cal. Civ. Code § 54.1(d) (regarding the California Disabled Persons Act); Munson v. Del Taco, Inc., 46 Cal. 4th 661, 687 (Cal. App. 2009) ("A plaintiff who establishes a violation of the ADA, ... need not prove intentional discrimination in order to obtain damages under [California's Unruh Act] section 52."). In this case, Plaintiff has failed to show that he is entitled to summary judgment on his claim for violation of the ADA based on any alleged barrier. Accordingly, Plaintiff has failed to establish that there is no genuine issue of material fact as to whether Plaintiff is entitled to summary adjudication of his state law claim for statutory damages pursuant to the Unruh Act and the California Disabled Persons Act.

Plaintiff's Motion for Summary Judgment that Plaintiff is entitled to statutory damages pursuant to the Unruh Act and the California Disabled Persons Act is DENIED.

IV. Defendants' Motion for Summary Judgment

Defendants seeks summary judgment on Plaintiff's first claim for violation of the ADA based on the following barriers alleged in the Complaint: (1) the lack of a marked crossing in the parking lot; (2) an incorrect sign in the van accessible parking space; (3) sloped surfaces in the disabled parking spaces and access aisles exceeding 2%; (4) the grooved boarder located on the ramp rather than prior to it; (5) the lack of designated checkstands for the disabled open at all times; (6) a restroom door which does not self-close; (7) sharp edges on the toilet paper dispenser; (8) the front roll of toilet paper located more than twelve inches from the water closet; (9) improperly or incompletely wrapped pipes in the bathroom; and (10) "insufficient strike side clearance on the pull-side of the restroom door."*fn2 (ECF No. 65-1 at 15).

A. The Lack of a Marked Crossing in the Parking Lot

Defendants contend that there is no requirement in the ADAAG to provide a marked crossing in a parking lot where the accessible route crosses the vehicular way. Therefore, there is no issue of material fact that this alleged condition is a violation of the ADA.

Plaintiff contends that "simply because the ADAAG is silent on an issue does not mean that the Defendants' obligations under the ADA are excused...." (ECF No. 68 at 2). Plaintiff contends that the ADA is violated by this barrier on the grounds that California Supplement to the MUTCD demand the marking.

The Court finds that Defendants have established that this condition does not violate the ADAAG and the are no material facts in dispute. Defendants' Motion for Summary Judgment on Plaintiff's first claim for violation of the ADA due to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.