This matter is before the court on Sears, Roebuck and Co.'s ("defendant") motion for summary judgment and Lary Feezor's ("plaintiff") motion to strike defendant's affirmative defenses, or in the alternative, for summary judgment on those affirmative defenses. The court decided these motions without a hearing. For the following reasons, defendant's motion is granted and plaintiff's motion is denied.
Plaintiff filed his original complaint in this action on April 16, 2010, which he amended on June 13, 2011 by leave of the court. (Am. Compl., ECF 77.) Plaintiff alleges violations of the Americans with Disabilities Act ("ADA"), the Disabled Persons Act ("DPA"), the Unruh Civil Rights Act ("Unruh Act") and California Health & Safety Code section 19955, et. seq. (Id.) Plaintiff is a paraplegic and wheelchair user. (ECF 89 ¶ 1.) Plaintiff lives in Weaverville, California. (Id. ¶ 5.) When he visits the VA hospital in Palo Alto, he stops over in Stockton, California. (Feezor Dep., ECF 84-8 at 18:6-7.) In addition, plaintiff has friends in the Stockton area. (Id. at 18:3.) Stockton is three and a half hours away from plaintiff's home in Weaverville. (Id. at 17:6, 18:5-9.) Plaintiff enjoys traveling, but anticipated at his January 7, 2011 deposition that 2010 would be the last year he would be able to travel significantly because of imminent surgeries. (ECF 84-8 at 9:10-14.)
The Sears store at issue is located at 5110 Pacific Avenue in Stockton, California ("the store"). (ECF 89 ¶ 5.) Defendant owns and operates the store. (Id. ¶ 14.) Plaintiff visited the store on April 7, 2010. (Id. ¶ 6.) Plaintiff believes he visited the store with a guest, given that it was his birthday, but he is unable to recall who that person is and there is nothing that can help jog his memory. (ECF 84-8 at 19.) He has not been back to the store since, and he has no definite plans to return to the store. (ECF 89 ¶ 11.) In his affidavit submitted with the opposition, plaintiff alleges, "I still travel in the Stockton area, where the Sears store is located, and I fully intend to return to the Sears store at issue in this lawsuit." (ECF 86-4 at 3.) Plaintiff does not assert any definitive reason why, or any time-frame for when, he would again make the three and a half hour trip to the store. Plaintiff does not provide affidavits from friends in the area, identify any specific places he likes to visit in Stockton, offer any specifics about his visits to Palo Alto or any other information or specific facts to support his affirmation of an intent to return in his affidavit.
Upon his visit to the store, plaintiff identified three barriers in the men's dressing room. Plaintiff now concedes the bench height is adequate and defendant is entitled to summary judgment against him on this claim. (ECF 86 at 10.) Of the two remaining alleged barriers, the first is that the bench in the men's dressing room runs the length of the wall and exceeds forty-eight inches, and therefore plaintiff is unable to make a diagonal transfer onto it. (ECF 77 ¶ 13.) The accessible men's fitting room at the store features a bench that is 24 inches deep, 60-1/2 or 61 inches long and 18 inches high. (ECF 89 ¶ 15.) Plaintiff entered the dressing room intending to try on pants but was allegedly unable to do so because he could not transfer to the bench using a diagonal transfer. (Leonard Decl., Ex. A, Feezor Dep., ECF 86-2 at 14.) However, plaintiff stated during his deposition that he could have managed to move to the bench, although the bench did not seem sturdy. (ECF 84-8 at 20.) The second identified barrier is that the mirror in the dressing room hangs on a wall more than ten feet from the bench and therefore was not viewable from the bench. (ECF 86 at 8-9; ECF 77 ¶ 13.) A mirror is affixed to the wall located directly opposite from the bench. (ECF 89 ¶ 16.) Defendant has not altered either the mirror or bench since plaintiff's visit on April 7, 2010. (Id. ¶ 17.)
Plaintiff filed his present motion to strike or for summary judgment in the alternative on December 6, 2011. (ECF 81.) Defendant filed its opposition on January 27, 2012. (ECF 87.) Plaintiff filed his reply on February 3, 2012. (ECF 92.) Defendant filed its present motion for summary judgment on January 13, 2012. (ECF 84.) Plaintiff filed his opposition on January 27, 2012. (ECF 86.) Defendant filed its reply on February 3, 2012. (ECF 88.)
Plaintiff moves to strike the affirmative defenses from defendant's answer or in the alternative, for summary judgment on those defenses. (ECF 81.) Plaintiff's motion is untimely under Federal Rule of Civil Procedure 12(f). A motion to strike under Rule 12(f) must be brought "before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading." FED. R. CIV. P. 12(f)(2). More than twenty-one days have elapsed since the answer was filed. The court declines to consider striking the defenses sua sponte. See FED. R. CIV. P. 12(f)(1).
A. Summary Judgment Standard
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).
The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn1
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show  that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no ...