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Dennis Sharp v. Islands California Arizona-Lp

September 27, 2012


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


Pending before the Court are the parties' cross-motions for summary judgment under Federal Rule of Civil Procedure 56. The Court decides the matters on the papers and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court GRANTS IN-PART and DENIES IN-PART Plaintiff's summary-judgment motion [Doc. 29], GRANTS IN-PART and DENIES IN-PART Defendant's summary-judgment motion [Doc. 42], and ORDERS further briefing.


Plaintiff Dennis Sharp is unable to independently stand or walk due to neurological injuries and, as a result, requires a wheelchair for mobility. (Compl. [Doc. 1], ¶ 3.) Defendant Islands California Arizona LP is the operator/lessee of Islands Restaurant-La Jolla. (Def.'s RSS [Doc. 43-1], No. 2.)

On March 2, 2011, Sharp and his wife Joanne visited Islands Restaurant -- La Jolla (the "Restaurant"), where he allegedly encountered various barriers that denied Sharp "full and equal access to and use of" the Restaurant's facilities. (Compl., ¶ 9--12.) Several weeks later, Sharp filed this lawsuit against Defendant alleging violations of the Americans with Disabilities Act (the "ADA"), and California's Health and Safety Code, Unruh Civil Rights Act, and Disabled Persons Act.

The parties have now filed cross-motions for summary judgment. Although several arguments are raised in each motion, the essence of the present dispute concerns the validity and potential mootness of Sharp's ADA claims. Sharp contends that the alleged barriers listed in his motion are violations of the ADAAG, CBC, or both; that those violations prevent his full and equal access to the Restaurant; and that such violations will deter him from returning to the Restaurant until all alleged barriers have been removed.

Defendant counters that under Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011), only barriers alleged in the Complaint are relevant, and Sharp cannot pursue claims for barriers identified in his subsequently filed Early Neutral Evaluations ("ENE") statements or expert's report. Defendant also contends that all ADA violations alleged in the Complaint are either not violations or are moot. Finally, Defendant argues that the Court should decline to exercise supplemental jurisdiction over Sharp's state-law claims.


Summary judgment is appropriate when the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case, or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

On the other hand, if the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings" and by "the depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).

"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Thus, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995)). When conducting this analysis, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.

"[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its merits." Fair Hous. Council of Riverside Cnty, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (internal quotes and citations omitted). Thus, "the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." Id. (quoting Wright, et al., Federal Practice and Procedure § 2720, at 335-36 (3d ed. 1998)). If, however, the cross-motions are before the court at the same time, the court is obliged to consider the evidence proffered by both sets of motions before ruling on either one. Id. at 1134.


A. Oliver does not change the pleading standard for ADA plaintiffs alleging barriers.

Sharp previously sought leave to file a first amended complaint in order to add barriers that were identified in his ENE statements or expert's report, but not in the Complaint. In that motion, Sharp argued leave to amend was necessary because Oliver created a new pleading standard for ADA plaintiffs, requiring them to identify every barrier in the complaint. Defendants opposed the motion, arguing that Oliver did not create a new pleading standard because plaintiffs were already required to provide a detailed list of the ADA violations in the complaint.

Before Sharp's motion to amend was fully briefed, the parties filed the pending cross-motions for summary judgment, which reiterated the parties' conflicting views on Oliver.*fn1 Because the parties have again raised Oliver in the pending motions, the Court must address the effect of that decision on ADA pleading standards.

Before Oliver, the Ninth Circuit addressed pleading standards in ADA cases in Skaff v. Meridien North America Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007). There, plaintiff was a wheelchair-bound paraplegic who sued the defendant hotel for violations of the ADA after the hotel initially did not provide him with a room equipped with a roll-in shower and wall-hung shower chair. Id. at 835-36. In addition "[plaintiff's] complaint alleged more generally that during the course of his stay at the Hotel, Plaintiff encountered numerous other barriers to disabled access, including path of travel, guestroom, bathroom, telephone, elevator, and signage barriers to access, all in violation of federal and state law and regulation." Id. at 836 (internal quotations omitted). The complaint also stated that "[u]ntil Defendants make the Hotel and its facilities accessible to and useable by Plaintiff, he is deterred from returning to the Hotel and its facilities." Id. (internal quotations omitted).

In the context of reversing the district court's denial of plaintiff's motion for attorneys' fees and costs, the Ninth Circuit unequivocally held that, apart from the alleged inaccessible showers, the generally pled accessibility barriers in the complaint were sufficient to give plaintiff standing to pursue his case against the defendant hotel. Id., 506 F.3d at 840. In explaining its holding, the court referenced the "minimal hurdle of notice imposed by Rule 8," and specifically stated that:

As a matter of law, the [generally pled] allegations in paragraph 14 that Skaff encountered barriers to access, and the allegation in paragraph 17 that Skaff was deterred by accessibility barriers from visiting [the hotel], gave [the hotel] notice of the injury Skaff suffered and, at the pleading stage, established Skaff's standing to sue for violations of the ADA.

Id. at 841.

The court elaborated further, explaining that the "purpose of a complaint under Rule 8 [is] to give the defendant fair notice of the factual basis of the claim" and that "[s]pecific facts are not necessary." Id. (quoting Erikson v. Pardus, 551 U.S. 89, 93 (2007)) (internal quotations omitted) (emphasis added). The court explicitly rejected the defendant hotel's insinuation that a heightened-pleading standard be imposed on ADA plaintiffs, noting that "the Supreme Court has repeatedly instructed us not to impose such heightened standards in the absence of an explicit requirement in a statute or federal rule." Id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)). Additionally, the Ninth Circuit determined that "concerns about specificity in a complaint are normally handled by the array of discovery devices available to a defendant." The court ultimately placed the onus on the hotel because the hotel did not make use of such devices to address details about the plaintiff's generally pled allegations. Id. at 842.

In Oliver, 654 F.3d 903, the Ninth Circuit again addressed the issue of pleading ADA barriers in a complaint, this time in the context of evaluating a summary-judgment ruling. In that case, a wheelchair-bound plaintiff sued a grocery store alleging eighteen architectural barriers existing on defendant's premises in violation of the ADA. Id., at 906. Unlike the more general barrier allegations in Skaff, the Oliver plaintiff's allegations identified the following specific barriers:

* tow away signage provided at the facility is incorrect;

* signage in the van accessible stall is incorrect;

* no stop sign painted on pavement where accessible route crosses vehicular way;

* no detectable warnings where accessible route crosses the vehicular way;

* pay-point machine mounted too high and out of reach;

* no directional signage leading to the accessible restrooms;

* signage at the men's restroom's entrance door is incorrect;

* door into the men's restroom requires too much force to operate and does not completely close;

* stall door is not self closing;

* handle and lock on stall door requires pinching and twisting to operate;

* side grab bar is mounted more than 12 inches from the back wall;

* side grab bar does not extend 24 inches beyond the toilet tissue dispenser;

* toilet tissue dispenser protrudes into the clear floor space needed at the water closet;

* trash receptacle protrudes into clear floor space needed at water closet;

* pipes underneath the lavatory are not wrapped to prevent burns;

* handles to operate the lavatory controls require twisting and grasping;

* soap dispenser's operable part is mounted more than 40 inches from floor;

* operable part of the hand dryer mounted more than 40 inches from floor. Id. at 905, n. 5.

After the scheduling deadline for motions to amend the complaint had passed, the plaintiff filed motions to amend the scheduling order and complaint. Id., at 906. The motions were denied because plaintiff was unable to show good cause under Rule 16(b). Id. Four months later, plaintiff provided the defendant with his expert report, which added detail regarding some of the barriers already identified in plaintiff's complaint, but also "added several additional barriers that had not been listed in the complaint." Id. The parties then filed cross-motions for summary judgment. The district court granted summary judgment to the grocery store and explained that "it would not consider the barriers listed in Oliver's expert report because they were not properly before the court." Id.

On appeal, the Ninth Circuit affirmed the district court's ruling. In citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007), the court again recognized the applicability of Rule 8's notice pleading standard to claims alleging barriers. Id., at 908. The court explained that "in order for the complaint to provide fair notice to the defendant, each such feature must be alleged in the complaint" and that "only disclosures of barriers in a properly pleaded complaint can provide such notice." Id. at 908-09. However, nowhere did the court address the specificity with which barriers must be alleged in the complaint. Rather, the court generally stated that "for purposes of Rule 8, a plaintiff must identify the barriers that ...

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