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Chris Kohler v. Bed Bath & Beyond of California


June 27, 2012


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge


Before the Court is a Cross-Motion for Summary Judgment filed by Defendant Bed Bath & Beyond, LLC. After considering the papers and arguments in support of and in opposition to the Motion, the Court GRANTS Defendant's Motion.


On August 4, 2011, Plaintiff Chris Kohler ("Plaintiff") filed a complaint ("Complaint") alleging claims against Defendant Bed Bath & Beyond, LLC ("Defendant") and Defendant MGP IX Reit, LLC*fn1 for violations of: (1) the Americans with Disabilities Act ("ADA"); (2) the California Disabled Persons Act (Cal. Civ. Code § 54); (3) Unruh Civil Rights Act (Cal. Civ. Code § 51); and (4) California Health & Safety Code §§ 19953-19959. (Doc. No. 1.) Plaintiff, who is paralyzed from the waist down and uses a wheelchair, alleges that he encountered illegal barriers to access when he visited the Bed Bath & Beyond store in Murrieta, California ("the Store").

On May 21, 2012, Plaintiff filed a motion for summary judgment, or partial summary judgment in the alternative. ("Plaintiff's May 21 MSJ" (Doc. No. 21).) The Court, in order to provide Plaintiff with time to correct his filing, informed Plaintiff's counsel on May 24, 2012, that the May 21 MSJ did not comply with the Local Rules and the Court's Standing Order. (See Doc. No. 32.)

On May 25, 2012, Defendant filed its Opposition to Plaintiff's May 21 MSJ ("Opposition" or "Opp'n" (Doc. Nos. 24)), which Defendant combined with its motion presently before the Court, Defendant's Cross-Motion for Summary Judgment*fn2 ("Cross-MSJ" (Doc. No. 28)). In support of its Cross-MSJ, Defendant filed the following documents:

1. Statement of Disputed and Undisputed Facts (Doc. No. 28-2);*fn3

2. Request for Judicial Notice (requesting the Court take notice of the docket in Rush v. Denco Enterprises, Inc., ---F. Supp. 2d---, 2012 WL 1423584, (C.D. Cal. Apr. 24, 2012)) (Doc. No. 28-3) and an image of the Rush docket as of May 25, 2012 (attached to Cross-MSJ as "Exhibit 1" (Doc. No. 28-4));

3. Declaration of Ross Duskin ("Duskin Declaration") (Doc. No. 29); and

4. Declaration of Larry Wood ("Wood Declaration") (Doc. No. 30).

Because Plaintiff failed to correct his deficient May

21 MSJ, the Court denied it without prejudice on May 31, 2012, allowing Plaintiff to refile "a Motion that complies in all respects with . . . the Local Rules of the Central District of California[] and the Standing Order of this Court." (See Doc. No. 32.)

On June 1, 2012, Plaintiff filed a new Motion for Summary Judgment, which, other than the corrected technical deficiencies, was the same as his May 21 MSJ. (Doc. No. 34.) That same day, Plaintiff filed a third version of his Motion for Summary Judgment ("Plaintiff's MSJ" (Doc. No. 36), which was the same as the previous motion except for minor, non-substantive changes. Plaintiff withdrew his second filed MSJ on June 4, 2012. (Doc. No. 38.) Plaintiff's MSJ is set for hearing before the Court on July 2, 2012.

Plaintiff filed his Opposition to Defendant's Cross-MSJ on June 4, 2012 (Doc. No. 39), along with his Response to Defendant's SAUF ("SAUF Response" (Doc. No. 39-1)), a notice of deposition of Plaintiff sent by Defendant (Doc. No. 39-2), Plaintiff's declaration ("Kohler Declaration" (Doc. No. 39-3)), and a declaration submitted in a different case on a similar issue (Doc. On June 11, 2012, Defendant replied to Plaintiff's Opposition. (Doc. No. 40.) Defendant supported its Reply by filing the declaration of Matthew S. Kenefick, one of Defendant's counsel ("Kenefick Declaration"). (Doc. No. 41.) The Kenefick Declaration attached excerpts of Plaintiff's deposition (Doc. No. 41-1). Pursuant to Federal Rule of Evidence 201, Defendant attached and requested the Court take notice of the following documents filed in Rush: three declarations from Certified Access Specialists filed by the Rush defendant after summary judgment was granted to plaintiff*fn4 (Doc. Nos. 41-2, 41-3, 41-4) and the plaintiff's Second Amended Complaint (Doc. No. 41-5).

Defendant filed an ex parte application on June 19, 2012, unsuccessfully requesting the Court consolidate the hearings set for Defendant's Cross-MSJ and Plaintiff's MSJ (Doc. Nos. 45, 46).


A. Legal Standard

Title III of the ADA provides that "[n]o individual shall be discriminated against 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).

"[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). To comply with that requirement, litigants must demonstrate a "personal stake" in the suit. Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009). A plaintiff has a personal stake in the suit when "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180--81 (2000).

Generally, where a plaintiff seeks declaratory and injunctive relief, the plaintiff also must show a significant possibility of future harm; it is insufficient to demonstrate only a past injury. See San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996). The party invoking federal jurisdiction bears the burden of establishing that each element of standing is met. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

To establish standing under Title III of the ADA, "a plaintiff must allege that: '(1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.'" Kohler v. CJP, Ltd., 818 F. Supp. 2d 1169, 1176 (C.D. Cal. 2011) (quoting Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010)). An injured plaintiff can pursue injunctive relief under the ADA by "[d]emonstrating an intent to return to a noncompliant accommodation" or by demonstrating that "he is deterred from visiting a noncompliant public accommodation because he has encountered barriers related to his disability there." Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 949 (9th Cir. 2011). A plaintiff is "deterred" under Title III of the ADA when he either (1) identifies how at least one of the alleged violations threatens to deprive him of full and equal access due to his disability if he were to return to the place of public accommodation, or (2) identifies how at least one of the alleged violations deters him from visiting the place of public accommodation due to his disability. See id. at 955. In short, a plaintiff must connect the alleged ADA violations to his disability in order to establish standing. Id. at 954; Kohler, 818. F. Supp. at 1174.

B. Discussion

Defendant argues that the Court should grant summary judgment in its favor primarily because all of the barriers Plaintiff alleges "either do not constitute disabled access barriers as a matter of law or do not exist." (Cross-MSJ at 2.) In the alternative, Defendant argues that, assuming such barriers do exist, the Court should grant summary judgment in Defendant's favor because Plaintiff fails to meet the injury-in-fact jurisdictional requirement. (Id. at 16.) As adequately alleging an injury in fact is constitutionally required for this case to be properly before this Court, the Court addresses Defendant's standing claim first.

Defendant cites Chapman for the proposition that, to satisfy the injury-in-fact requirement, "Plaintiff must establish that he encountered the claimed disabled access barriers and that the barriers affected his disability in a manner that acted to deny him full and equal status." (Cross-MSJ at 16 (citing 631 F.3d at 954-55).) Defendant argues that "Plaintiff utterly fails this standard" because he "merely states, in the hypothetical tense, how each alleged condition could affect him if he were to encounter them -- not that it did affect him. Plaintiff does not declare that he in fact visited the men's restroom . . . ." (Id. at 16-17 (emphasis in original).) Therefore, Defendant argues, "Plaintiff has failed his burden to establish he has standing." (Id. at 17.)

Defendant is wrong. The Central District of California recently rejected a virtually identical argument involving a defendant's motion to dismiss against the same plaintiff. In Kohler v. CJP, Ltd., 818 F. Supp. 2d at 1174-75, the court found that Kohler does more than merely identify barriers that he encountered at the Shopping Center; he also provides a brief description of how each barrier affected him because of his disability. For example, . . . Kohler identifies tow away signage that is posted incorrectly, and explains that "[w]ithout the correct signage displayed, Kohler cannot have vehicles towed that are illegally parked in disabled parking spaces." Although [Defendant] is correct that Kohler "fails to . . . alleg[e] that he did have a need to have a vehicle towed," the explanation is sufficient to satisfy Chapman since it gives rise to a plausible inference that Kohler will be deterred from the purported violation from visiting the Shopping Center in the future. . . . Because Kohler has adequately pled the barriers he encountered, the manner in which those barriers prevented him from gaining full access to the facility, and the fact that the barriers have deterred him from visiting the Shopping Center, he has sufficiently alleged standing as to each barrier identified in his complaint.

The Court finds the same analysis applies here in the context of summary judgment, though to an even stronger degree given the Court's consideration of Plaintiff's declaration rather than just the complaint, which was the only document available in Kohler to support standing. Plaintiff declared that he twice visited Defendant's store, encountered accessability barriers there that denied him full and equal access to the store due to the fact that he is paralyzed and confined to a wheelchair, and would return to the store to make purchases were those barriers removed. (P.'s Mot. for Summary Judgment (May 21, 2012), Kohler Decl. ¶¶ 2-4.) Plaintiff then declares how those barriers deter him from returning to the store on account of his disability, e.g., by "mak[ing] it difficult to open the restroom door," "reach the toilet tissue," and "maneuver out of the restroom"; by making it so "[w]hen I use the sink, I must struggle not to burn my legs on the incompletely wrapped pipes"; or by making "opening and closing the door . . . difficult from my wheelchair." (Id. ¶ 7(a-g).) These alleged injuries are not "hypothetical,"*fn5 as Defendant claims, and Plaintiff's evidence of the injuries appears stronger than the evidence found sufficient for standing in Kohler. Like in Kohler, Plaintiff here sufficiently states how the violations deter him from returning, but he also submits sufficient evidence of the injury he suffered at the time he encountered the barriers. For example, Plaintiff declares, "The disabled-accessible toilet stall in the men's restroom lacks a handle below the door latch. Without a handle on the door, opening and closing the door is difficult from my wheelchair." (Id. ¶ 7(g).) To support this allegation, Plaintiff submits a photograph of the alleged barrier that was taken the same day he claims to have encountered the barrier. (Id. ¶ 6, Ex. B at 8.)

Chapman clarifies the ADA's standing requirement for a Plaintiff to identify the nexus between the alleged ADA-noncompliant barrier and the plaintiff's disability status. Chapman does not establish the heightened evidentiary standard that Defendant appears to assert. As the Central District of California found in Kohler, this Court too finds Mr. Kohler "has sufficiently alleged standing as to each barrier identified in his complaint." 818 F. Supp. 2d at 1174-75.


A. Legal Standard

A court shall grant a motion for summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must show that "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998) (citing Anderson, 477 U.S. at 256-57); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Because summary judgment is a "drastic device" that cuts off a party's right to present its case to a jury, the moving party bears a "heavy burden" of demonstrating the absence of any genuine issue of material fact. See Avalos v. Baca, No. 05-CV-07602-DDP, 2006 WL 2294878 (C.D. Cal. Aug. 7, 2006) (quoting Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, Inc., 182 F.3d 157, 160 (2d Cir. 1999)).

Where the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out that there is an absence of evidence supporting the non-moving party's case.

Id.; Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007).

The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial § 14:144. A genuine issue of material fact will exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, a court construes the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 380 (2007); Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).

B. Discussion

1. Facts

In its combined Cross-MSJ and Opposition to Plaintiff's MSJ, Defendant included its response to Plaintiffs' alleged undisputed facts and its Statement of Additional Undisputed Facts ("SAUF"). To consider Defendant's Cross-MSJ, the Court relies on Defendant's SAUF and Plaintiff's SAUF Response, which Plaintiff attached to his Opposition.

Defendant stakes its Cross-MSJ on the assertion that the seven ADA-noncompliant barriers alleged by Plaintiff in his Complaint "either do not constitute disabled access barriers or even if they did at one time exist, they no longer do." (Cross-MSJ at 3.)

In support of this defense, Defendant's SAUF alleges seven undisputed material facts, each of which provides a descriptive account (as of May 23, 2012) of the seven specific Store facilities, or properties thereof, that Plaintiff alleges are ADA-noncompliant. Plaintiff purports to dispute all seven of Defendant's SAUF facts.

The Court assesses Defendant's SAUF, Plaintiff's SAUF Response, and both parties' supporting evidence to determine whether any genuine issue of material fact exists and, if one does not exist, whether Defendant is entitled to judgment as a matter of law.

No genuine issue of material fact exists if the Court determines that Plaintiff's purported factual disputes fail to actually address Defendant's submitted facts or evidence but instead propound legal arguments as to the merits of the case.

a. Analysis of Alleged Disputed and Undisputed Facts

i. SAUF Fact #1

The entrance strike side clearance to the men's restroom entry door at the Facility provides more than 18 [inches] of clear floor space in either direction of the restroom door, thereby providing sufficient maneuvering clearances. (SAUF ¶ 1; Wood Decl. ¶¶ 5-7, Exs. 2-9.)

To SAUF Fact #1, Plaintiff responds, "Objection, irrelevant . . . . Plaintiff has alleged that 'There is insufficient strike side clearance when entering the restroom . . . ." (Response ¶ 1 (emphasis in original).)

Plaintiff emphasizes, ostensibly for clarification, the language of his allegation, which does not differ from the language in SAUF Fact #1. This does not address what Plaintiff is disputing about Defendant's fact or evidence. Nor does the evidence Plaintiff points to (but does not attach as exhibits to his Opposition)*fn6 -- three pictures of an unmarked door, two of which include a ruler below the handle. (Id. (citing Doc. No. 36, Ex. A at 3, Ex. B at 12).)

The Court finds Plaintiff has failed to meet his burden of controverting SAUF Fact #1.

ii. SAUF Fact #2

The exit strike side clearance to the men's restroom exit door at the Facility provides sufficient maneuvering clearances and does not contain a latching mechanism. (SAUF ¶ 2; Wood Decl. ¶¶ 5-7, Ex. 2-9.)

To SAUF Fact #2, Plaintiff first objects on the ground that Defendant is asserting compound facts. (SAUF Response ¶ 2.) Plaintiff is correct; the Court thus considers SAUF Fact #2 to assert separately that (1) the exit strike side clearance to the men's restroom exit door at the Store provides sufficient maneuvering clearance; and (2) the exit strike side of the men's restroom exit door does not contain a latching mechanism.

As to the first fact of SAUF #2, the Court notes the ambiguity of the assertion (primarily of the word "sufficient") and so, as a preliminary matter, must identify whether it is a fact or a legal conclusion. The alleged undisputed fact -- that the strike side clearance to the restroom's exit door "provides sufficient maneuvering clearances" -- tracks the language of the Kohler Declaration. (See Kohler Decl. ¶ 7(f) ("There is insufficient strike side clearance when exiting the restroom. This makes it difficult to maneuver out of the restroom.").) To support SAUF #2, Defendant cites to various ADA guidelines and statements from its expert declarant, Larry Wood, regarding the specific ADA requirements and the Store's compliance therewith. (Wood Decl. ¶¶ 5-7, Ex. 2-9.)

The language of SAUF #2 and Defendant's supporting evidence indicate that "sufficient maneuvering clearance" refers to the Store's compliance with the specific dimensions required by the ADA standards, i.e., "sufficient" is synonymous with "equal to or greater than the 18 inches of maneuvering space required by the ADA standards." As discussed below, the parties dispute the definition of "maneuvering space." Plaintiff does not dispute that there is a sufficient amount of space using Defendant's definition; Defendant does not dispute that there is an insufficient amount of space using Plaintiff's definition. Thus, the Court finds that SAUF #1's use of the word "sufficient" only refers to the definition of "maneuvering space" accepted by Defendant. As such, no legal conclusion is called for, and Plaintiff's response and evidence do not dispute the fact. The Court finds the first subpart of SAUF #2 to be uncontroverted.*fn7

As to the second fact of SAUF #2 (the door "does not contain a latching mechanism"), Plaintiff objects on the ground that "[w]hat constitutes a latch requires a legal argument and will be addressed in plaintiff's opposition." (SAUF Response ¶ 2.) Plaintiff does not assert in his Response that the door does contain a "latch" under any definition, and no such assertion is made in or supported by Plaintiff's submitted evidence.*fn8

Hence, the Court finds Plaintiff has failed to meet his burden with respect to the second subpart of SAUF Fact #2 and finds all of SAUF Fact #2 uncontroverted.

iii. SAUF Facts #3

The men's restroom stall door in the Facility has a 'U' shaped handle mounted below the latch on both sides. (SAUF ¶ 3; Wood Decl. ¶ 8; Duskin Decl. ¶ 2, Ex. 1.)

Plaintiff submits clear photographic evidence that, on May 2, 2012, the "U"-shaped handle in the restroom stall was mounted above the latch. (P.'s MSJ, Ex. B at 7.) Defendant submits clear photographic evidence that, on May 23, 2012, the "U"-shaped handle in the restroom stall was mounted below the latch. (Duskin Decl. ¶ 2, Ex. 1.)

The Court finds Plaintiff has failed to meet his burden of controverting SAUF Fact #3.

iv. SAUF Fact #4

There are two (2) toilet tissue rolls mounted in the men's restroom of the Facility, the first of which is mounted within 12 inches of the front of the water closet. (SAUF ¶ 4; Wood Decl. ¶ 9, Ex. 10.)

As with his Response to SAUF Fact #1, Plaintiff objects to SAUF Fact #4 because he alleges it is "irrelevant," (Response ¶ 4), but does not otherwise dispute or offer evidence to dispute the fact.

The Court finds Plaintiff has failed to meet his burden of controverting SAUF Fact #4. v. SAUF Fact #5

No operable part of the paper towel dispenser in the men's restroom of the Facility is mounted higher than 40 inches above the finished floor. (SAUF ¶ 5; Wood Decl. ¶ 10; Duskin Decl. ¶ 3, Ex. 2.)

Plaintiff submits clear photographic evidence that, on May 2, 2012, an operable part of the paper towel dispenser was mounted higher than 40 inches above the floor. (P.'s MSJ, Ex. B at 9.) Defendant submits clear photographic evidence that, on May 23, 2012, no operable part of an added paper towel dispenser was mounted higher than 40 inches above the floor. (Duskin Decl. ¶ 3, Ex. 2.)

The Court finds Plaintiff has failed to meet his burden of controverting SAUF Fact #5.

vi. SAUF Fact #6

The paper towel dispenser in the men's restroom of the Facility does not require tight grasping, pinching, or twisting of the wrist to operate; rather, the mechanism can be operated with a closed fist. (SAUF ¶ 6; Wood Decl. ¶ 11; Duskin Decl. ¶ 3, Ex. 2.)

Both parties submit the same evidence for SAUF Fact #6 as for SAUF Fact #5. The Court finds Plaintiff has failed to meet his burden of controverting SAUF Fact #6.

vii. SAUF Fact #7

All undersink pipes in the men's restroom at the Facility are completely wrapped and insulated. (SAUF ¶ 5; Wood Decl. ¶ 12, Ex. 11.)

Plaintiff submits clear photographic evidence that, on May 2, 2012, a small portion of one undersink pipe was exposed. (P.'s MSJ, Ex. B at 3.) Defendant submits clear photographic evidence that, on May 23, 2012, all undersink pipes were completely wrapped and insulated. (Wood Decl. ¶ 12, Ex. 11.) The Court finds Plaintiff has failed to meet his burden of controverting SAUF Fact #7.

b. Conclusion

The Court finds all seven facts set forth in Defendant's SAUF to be uncontroverted by Plaintiff's SAUF Response and supporting evidence. Thus, disposition of Defendant's Cross-MSJ turns solely on whether Defendant is entitled to judgment as a matter of law.

2. Judgment as a Matter of Law

a. ADA Requirements for Restroom Strike Side Clearance

The parties dispute the meaning of the ADA's requirement for door clearances and, by extension, whether or not a barrier exists in violation of the ADA.

For physical structures to comply with the ADA, they must meet the requirements set forth in the ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG").*fn9 The disputed question of law here pertains to ADAAG § 4.13.6 and its accompanying illustration, Figure 25. Section 4.13.6 sets forth the following:

Maneuvering Clearances at Doors. Minimum maneuvering clearances at doors that are not automatic or power-assisted shall be as shown in Fig. 25. The floor on ground area within the required clearances shall be level and clear.

Figure 25 contains diagrams illustrating the maneuvering clearances required for the two sides of different kinds of doors and approaches. The Figure 25 diagram at issue here pertains to the pull-side, front approach of swinging doors. (See Fig. 25, Diagram (a), attached to this Order as "Appendix".) The note corresponding to Figure 25, Diagram (a), states, "Front approaches to pull side of swinging doors shall have maneuvering space that extends 18 in (455 mm) minimum beyond the latch side of the door and 60 in (1525 mm) minimum perpendicular to the doorway."

The types of lines used in the diagram -- e.g., solid versus dotted lines -- and their respective meanings are explained in ADAAG § 3, Table 1 ("Graphic Conventions"). (See Appendix.)

Plaintiff relies on the language of ADAAG § 4.13.6 and Figure 25, Diagram (a) to argue that the ADA requires "between 12 and 18 inches of clearance on the strike side wall of restroom doors." (Opp'n at 2 (emphasis added).) Defendant argues that ADAAG § 4.13.6 establishes no requirement regarding walls but rather sets the standard only for "clear floor space to allow for a wheelchair to maneuver around a swing-out door." (Cross-MSJ at 3 (emphasis in original).) For Defendant to be entitled to judgment as a matter of law here, the Court must find that ADAAG § 4.13.6 does not set a standard for the length of a wall adjacent to a restroom stall door.

Another court in this district recently addressed the question of § 4.13.6's requirements. See Rush v. Denco Enterprises, Inc., ---F. Supp. 2d---, 2012 WL 1423584, (C.D. Cal. Apr. 24, 2012).*fn10 There, in support of his reliance on Rush, the plaintiff primarily cites to the following discussion, where the district court granted the plaintiff's motion for summary judgment as to her § 4.13.6 claim: The only potential dispute is whether

Plaintiff's allegations regarding strike side clearance describe an architectural barrier in violation of ADAAG regulations.

ADAAG Regulation 4.13.6 governs "Maneuvering Clearances at Doors" and provides that "minimum maneuvering clearances at doors that are not automatic or power-assisted shall be as shown in Fig. 25." Fig. 25, reproduced by Plaintiff in her Motion for Summary Judgment, provides that there must be at least 18 inches on the strike side wall of a "pull" door, although 24 inches is preferred. According to Plaintiff's Declaration, the strike side wall on the pull door to exit the women's restroom provides clearance of less than eleven inches. As such, it is in violation of ADAAG regulations and considered a barrier to access.

Id. at *4 (emphasis added) (citations to the record omitted).

Although Defendant contends that "the facts [in Rush] are markedly different from the situation presented here," (Cross-MSJ at 9), the main factual distinction between the cases is a minor one: a pull-side door was at issue in Rush whereas a push-side door is at issue here. Defendant does not explain why this distinction would be salient to determining the meaning of § 4.13.6.

Nevertheless, Defendant points out legitimate reasons for the Court to decline to treat the above-quoted passage from Rush as a legal finding as to the meaning of § 4.13.6. These reasons are clear from the explanation provided in Rush as to why the court granted Plaintiff's motion:

Plaintiff has thus established a prima facie case of discrimination, at which point the burden shifts to Defendant to rebut Plaintiff's evidence. Defendant's "opposition" does not challenge any of Plaintiff's facts. Defendant hints at a dispute of law by stating that the "undersigned believes there is no requirement for the longer wall Plaintiff appears to be seeking." Even at oral argument, Defendant did not point to any law or facts to rebut Plaintiff's prima facie case . . . . Defense counsel's unsupported musing is far from sufficient to rebut Plaintiff's prima facie case.

Defendant cannot simply submit a completely conclusory and entirely insufficient Rule 56(e) motion as its opposition and expect it to successfully oppose a Motion for Summary Judgment when Plaintiff has pled a prima facie case of discrimination. . . . This was the time for Defendant to submit his evidence to disprove Plaintiff's one remaining claim; it failed to do so.

Id. at *4-*5.

The plaintiff's motion for summary judgment in Rush was effectively unopposed. Instead of attemping to assert genuine issues of material fact, the defendant argued for a continuance because it learned that "Plaintiff's definition of 'strike clearance' may differ from what is required by law" and wanted time to consult a Certified Access Specialist about the definition propounded by the plaintiff. Id. at *2. In short, the defendant presented the court with no evidence or argument to dispute the plaintiff's definition of § 4.13.6; this Court thus does not find Rush persuasive authority on the interpretation of § 4.13.6. As discussed below in the summary of evidence submitted by Defendant here, the defendant in Rush belatedly submitted evidence showing that § 4.13.6 does not refer to wall length. This submission was made in support of the defendant's motion for reconsideration, a matter still pending.

Rush concerned the failure of a party to meet its burden rather than the substance of the ADA's requirements. The voluminous evidence before the Court here showing that § 4.13.6 does not pertain to wall length substantially distinguishes this matter from that presented in Rush.

Plaintiff's primary contention is that the required length shown in Figure 25, Diagram (a), appears above a solid line, and the ADAAG uses dotted lines to represent the boundaries of clear floor area. (See Opp'n at 3; Table 1, Appendix.) Defendant counters that the figures in the ADAAG "are contextual only and do not contain dimensioned specifications." (Cross-MSJ at 3.)

While the Court does not presume anything in the ADAAG to be "contextual only" without clear evidence to that effect, Defendant provides substantial and varied evidence demonstrating that § 4.13.6 in fact only refers to clear floor space and sets no standard for wall length. For example, Defendant submits as follows:

* The findings and testimony of expert Larry Wood, a licensed architect and Certified Access Specialist whose practice "predominantly involves representing clients regarding compliance with the ADA." (Wood Decl. ¶¶ 2-7.) Mr. Wood testified that § 4.13.6 does not refer to wall length and that the Store, which he inspected, complied with § 4.13.6. (Id.)

* Three guides published by the Department of Justice and relied on by Mr. Wood to support the assertion that § 4.13.6 sets a standard for clear floor space only. (Wood Decl., Exs. 4-6.)

* Two California Building Code manuals relied on by Mr. Wood to support the assertion that § 4.13.6 sets a standard for clear floor space only. (Wood Decl., Exs. 8-9.)

* An excerpt from the United States Access Board's Scoping and Technical Requirements clarifying that § 4.13.6 requires clear floor space in proximity to the "wall plane" to ensure adequate space for someone in a wheelchair to maneuver through the door at an angle. (Cross-MSJ at 5.)

* The declaration of Certified Access Specialist Karen O'Rourke Haney submitted to the Rush court after it granted summary judgment, stating:

As a Certified Access Specialist ("CASp"), I am concerned about any situation in which a litigant submits information to a court about conditions which causes the court to conclude said conditions are improper if they are not, in fact, improper, because such a decision could be used as precedent to seek damages and injunctive relief at other properties where the relevant conditions comply with applicable law.

I further understand that the Court's conclusion may be based in part on Plaintiff's belief that any applicable standard for "strike clearance" would require the wall immediately adjacent to the side of a door which opens to be any particular length; I have reviewed this issue extensively and believe that there is no [ADA] requirement for the length of such a wall . . . . Rather, the "strike clearance" is the clear floor space located adjacent to the hardware side of the door to allow for proper wheelchair maneuvering clearance.

(Haney Decl. ¶¶ 5-6, attached to Kenefick Decl. as Ex. 2.)

* Two additional declarations submitted in Rush by two other Certified Access Specialists reaching the same conclusions as Ms. Haney. (E.g., Heller Decl., ¶ 3, attached to Kenefick Decl. as Ex. 3 ("The purpose of this declaration is to confirm that in the entirety of my professional experience I am aware of no such requirement and do not believe that any such requirement exists- . . . there is no requirement that a wall immediately adjacent to the opening side of a door be of any particular length."); Argueta Decl., ¶ 3, attached to Kenefick Decl. as Ex. 4 (stating the same).)

The evidence before the Court conclusively demonstrates that, as a matter of law, § 4.13.6 is unrelated to wall length, eliminating any chance of a reasonable jury finding that Plaintiff's alleged barrier exists, and, accordingly, the Court grants Defendant's Cross-Motion for Summary Judgment as to Plaintiff's § 4.13.6 claim.

b. Remediated Barriers "Because a private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier) under the ADA, a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim." Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011).

Plaintiff's counsel has had summary judgment granted against his client in numerous recent lawsuits on the ground that the alleged barrier had been remedied, thus mooting the plaintiff's claim.*fn11 There is no case authority supporting his contention that "proof of alterations [made by a defendant to cure ADA violations] creates a dispute of material fact as a matter of law . . . which preclude[s] summary judgment." (Opp'n at 10.) For this novel proposition, Plaintiff's counsel misguidedly quotes one out-of-context sentence from an unpublished 2005 order rejecting his motion for summary judgment. (See id.)

The Court rejects Plaintiff's proffered interpretation of the law on the ground that it is not supported by either legal authority or common sense. The Court thus finds moot Plaintiff's claims for injunctive relief as to alleged barriers that no longer exist.

Likewise, the Court finds moot Plaintiff's claims for declaratory relief under the ADA as to the removed alleged barriers. As only injunctive relief is available under the ADA, this is not a case where "declaratory judgment could help to remedy the effects of the [defendant's] statutory violations," nor is it a case where such relief is necessary "to ensure that similar violations [do] not occur in the future." Forest Guardians v. Johanns, 450 F.3d 455, 462-63 (9th Cir. 2006).

The Court finds summary judgment appropriate for all of Plaintiff's alleged barriers that Defendant has since removed.

c. Toilet Tissue Rolls

Plaintiff's remaining claim alleges that Defendant is in violation of the ADA requirement that, according to Plaintiff, "all toilet tissue dispensers shall be installed 'within reach' of the toilet." (Opp'n at 8.) In California, "within reach" as required by ADAAG § 4.16.6 is defined as "within 12 inches of the front edge of the toilet seat." (See id. (citing Cal. Building Code § 1115(b)(9)(3)).) The Store's restroom stall at issue has a toilet tissue dispenser that is within 12 inches of the front edge of the toilet seat, and an extra dispenser that is not. (Id.; Cross-MSJ at 10-11.) Plaintiff states that he would be satisfied as to this alleged barrier if Defendant removed the spare roll of toilet tissue from the restroom stall. (See Kohler Dep. at 70:1-6, attached to Kenefick Decl. as Ex. 1.)

Plaintiff's claim is mooted as no barrier exists.


A district court may decline to exercise supplemental jurisdiction over a state claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "The Supreme Court has stated, and we have often repeated, that 'in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.'" Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)).

After considering the jurisdictional principles of judicial economy, procedural convenience, fairness to litigants, and comity, the Court finds it appropriate to decline supplemental jurisdictional over Plaintiff's remaining state law claims. See id. at 343.


For the foregoing reasons, the Court:

(1) Finds Plaintiff had standing as to each of his claims under the ADA;

(2) GRANTS Defendant's Cross-Motion for Summary Judgment on Plaintiff's ADA claims; and

(3) DISMISSES WITHOUT PREJUDICE Plaintiff's state claims under 28 U.S.C. § 1367(c)(3).

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