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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. ...

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