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Chris Kohler v. Bed Bath & Beyond of

July 23, 2012

CHRIS KOHLER, PLAINTIFF,
v.
BED BATH & BEYOND OF CALIFORNIA, LLC, ET. AL DEFENDANTS.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER Re: Plaintiff's Motion for Summary Judgment, or Partial Summary Judgment in the Alternative, Against Defendant Bed Bath & Beyond of California, LLC [48], and Cross-Motion for Summary Judgment of Defendant Bed Bath & Beyond of California Limited Liability Company [57]

On July 19, 2012, Plaintiff Chris Kohler's ("Plaintiff") Motion for Summary Judgment, or Partial Summary Judgment in the Alternative, Against Defendant Bed Bath & Beyond of California, LLC [48] and Defendant Bed Bath & Beyond of California, LLC's ("Defendant") Cross-Motion for Summary Judgment of Defendant Bed Bath & Beyond of California Limited Liability Company [57] came on for regular calendar before the Court. The Court having reviewed all papers submitted pertaining to these Motions and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

As a preliminary matter, the Court OVERRULES Plaintiff's Evidentiary Objections and DENIES Defendant's Requests for Judicial Notice. The Court hereby DENIES Plaintiff's Motion for Summary Judgment. The Court GRANTS Defendant's Cross-Motion for Summary Judgment as it relates to Plaintiff's federal Americans with Disabilities Act ("ADA") claims. Accordingly, the Court DISMISSES without prejudice Plaintiff's remaining state law claims.

I. BACKGROUND

Plaintiff is physically disabled and uses a wheelchair to get around. On May 24, 2011, Plaintiff brought suit against various retail and restaurant establishments located in the Lake Elsinore Marketplace, a shopping center located in Lake Elsinore, California. In his Complaint, Plaintiff alleges that the establishments violated the ADA as well as two California state statutes, the Unruh Civil Rights Act ("Unruh Act") and the California Disabled Persons Act ("CDPA") [1]. With the exception of Defendant Bed Bath & Beyond, all other Defendants named in the Complaint have been dismissed from this Action.

Plaintiff alleges that during three visits to Defendant's Lake Elsinore, California location he was denied full and equal access because of his disability.

Plaintiff's last visit was on May 16, 2012. The specific violations of the ADA and state law that Plaintiff alleges against Defendant are as follows:

- The slope and cross slopes of disabled parking spaces exceed the two percent requirement under ADA regulations

- The slope and cross slopes of access aisles in the parking lot exceed the two percent requirement under ADA regulations

- The bathroom stall door is not self-closing - The strike side*fn1 clearance when entering the men's restroom is insufficient - The front roll of toilet paper is more than twelve inches from the front of the toilet - The operable part of the paper towel dispenser is mounted too high - The paper towel dispenser requires pinching, twisting, or grasping to operate - The pipes beneath the sink in the men's restroom are not properly insulated - The strike side clearance when exiting the men's restroom is insufficient

II. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, affidavits, and other supporting papers demonstrate that there are no genuine issues of material fact, and the moving party is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When making this determination, the Court must view the record in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A "genuine" dispute is one that is supported by evidence sufficient to permit a reasonable jury to find in favor of the nonmoving party. Id. at 247-48.

III. ANALYSIS

A. Evidentiary Objections

As a preliminary matter, the Court evaluates Plaintiff's Evidentiary Objections to three Declarations submitted by Defendant.

First, the Court OVERRULES Plaintiff's objections to the Declaration of Dustin Jaggli ("Jaggli Decl.") and OVERRULES Plaintiff's objections to the Declaration of Steve Cerda ("Steve Cerda"). The Court finds that Defendant's non-disclosure of both Jaggli and Cerda prior to the filing of the instant Motions was substantially justified. Fed. R. Civ. P. 37(c)(1). Accordingly, exclusion of their Declarations in the instant Motions is unwarranted.

In addition, the Court OVERRULES Plaintiff's objections to the Declaration of Larry Wood ("Wood Decl."). Plaintiff objected to the Wood Declaration on the grounds that the Declaration is a sham and that Wood is an undisclosed witness. However, the Court finds that Defendant promptly corrected and adequately explained the error regarding the date on the signature page of the Declaration. Furthermore, Defendant was not required to disclose Wood as an expert witness prior to the filing of the instant Motions. The deadline to disclose expert witnesses had not yet passed. Fed. R. Civ. P. 26(a)(2)(D) (deadline to disclose experts is 90 days before trial).

B. Requests for Judicial Notice

As an additional preliminary matter, the Court DENIES Defendant's Requests for Judicial Notice of filings and documents related to two other Central District cases.

C. Plaintiff's Standing Under the ADA

The main issue in Plaintiff's Motion and Defendant's Cross-Motion surrounds the existence of alleged barriers that violate the ADA. However, Defendant has also argued that Plaintiff lacks standing under the ADA because he has failed to adequately allege injury-in-fact. Specifically, Defendant contends that Plaintiff has not alleged that he was actually prevented from making full use of Defendant's facility. Since adequately ...


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