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Sandi Rush v. Islands Restaurants

October 10, 2012


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


Supplemental Briefing

Plaintiff Sandi Rush, through counsel, without obtaining a hearing date from this Court and without obtaining leave, filed a renewed motion for summary judgment. In response Defendant Islands Restaurants filed an opposition as well as its own cross motion for summary judgment. Regardless of whether the Court construes these as supplemental briefing or as new motions, the documents violate this District's local rules and are improperly filed. See Civil Local Rule 7.1(b) ("All hearing dates for any matters on which a ruling is required must be obtained from the clerk of the judge to whom the case is assigned."); 7.1(e) (providing for the filing of motions, oppositions, and reply memoranda, but not supplemental briefing). See also Johnson v. Wennes, 2008 WL 4820126 at *1 (S.D.Cal., Nov. 5, 2008) ("The Civil Local Rules do not provide for supplemental briefing or submissions after a motion has been fully briefed; therefore, in order to file a supplemental document . . . , plaintiff is required to seek leave of Court.") The Court can properly strike documents filed in violation of local rules. Kashin v. Kent, 342 Fed.Appx. 341, 341 (9th Cir. 2009) (affirming district court's denial of motion as untimely after improperly-filed motion was stricken for violation of local rules).

The supplemental documents (Docket nos. 46 and 47) are ORDERED STRICKEN. The Clerk is directed to remove them from the docket. Both parties are ORDERED not to file any more supplemental briefing without leave. At the evidentiary hearing, it was apparent the parties had failed to meet and confer, and both parties had prepared for an entirely different type of hearing than the Court's order had set. At the close of the hearing, the Court admonished the parties to follow its orders and applicable rules. The Court reiterates that admonition now, and cautions the parties that sanctions may be imposed if violations continue.

Motion for Preliminary Injunction or TRO

Rush also filed a pleading styled "Emergency Motion for Preliminary Injunction Preventing Spoliation of Evidence Until Trial" and "Emergency Motion for Temporary Restraining Order Preventing Spoliation of Evidence Until Court Rules on MSJs." (Docket no. 45, the "Motion.") While some of Rush's supplemental state claims still survive, the only surviving federal claim is her claim that the restaurant's parking lot is uneven and violates the ADA. The Court's earlier rulings, both written and delivered from the bench, make clear that if this one remaining federal claim were dismissed, the supplemental state claims would be dismissed as well. See Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008) (when federal claims are dismissed before trial, state law claims normally will be dismissed as well).

The Motion is frivolous on many levels. First, Rush has already taken discovery, and at the time the Motion was filed had a motion for summary judgment pending based on that evidence. The Motion itself in fact alleges that the evidence has been well documented.

(Motion at 1:6--7 ("The record is replete with evidence of their failure to design, construct, and maintain a compliant parking lot . . . .")) In other words, it is clear beyond any reasonable doubt that no spoliation of evidence is occurring.

Second, the complaint alleges that the parking lot is noncompliant with the ADA, that this inconveniences and endangers her. The complaint asks that the Court order the restaurant to repair the parking lot so that she can visit and dine at the restaurant without fear of injury. Now, the Motion asks that the parking lot not be repaired. It alleges that repairing the parking lot is inconveniencing Rush. (Motion at 2:6--10 ("The record is replete with . . . their repeated attempts to destroy evidence, forcing plaintiff to expend thousands of dollars in costs and repeatedly fly to southern California to inspect the destruction.")) This allegation is inexplicable, because Rush has allegedly patronized the restaurant regularly and wants to continue to eat there; all she is asking is that barriers be removed so that she can do so safely and conveniently. (See Docket no. 25-2 (Mot. for Summ. J.), 1:4--2:17 (arguing that Rush repeatedly patronized the restaurant and encountered barriers there that denied her full and equal access because of her disability); Docket no. 25-5 (Rush Decl. in Supp. of Mot. for Summ. J.), 2:3--17 (attesting to Rush's repeated visits to the restaurant and her dissatisfaction with the slope of the parking lot), id. at 3:10--12 (declaring that Rush will encounter the same barriers at the restaurant in the future).) The Motion now alleges she lives elsewhere and blames the restaurant for forcing her to travel to San Diego to visit it.

If the Motion's allegations were true, there would be no reason for this case to go forward. The ADA protects disabled people from discrimination at accommodations they plan to visit in the future; it is not an "open-ended private attorney general statute" allowing plaintiffs to seek removal of barriers at public accommodations they have no intention or desire to use. Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 953 (9th Cir. 2011) (en banc) ("An ADA plaintiff must show at each stage of the proceedings either that he is deterred from returning to the facility or that he intends to return to the facility and is therefore likely to suffer repeated injury.") See also Bodley v. Plaza Management Corp., 331 Fed.Appx. 547, 547 (9th Cir. 2009) (citing D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2080); Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008)) (affirming dismissal of ADA claim, where plaintiff failed to demonstrate that he intended to return to patronize the business).

It appears more likely, however, that the Motion actually means one of Rush's attorneys*fn1 has to fly from northern California to inspect the restaurant parking lot personally. If this is what the Motion means, it is simply wrong. There are many local people whom her attorneys might hire to inspect and survey the parking lot; certainly, no attorney would need to fly in from Chico, where Rush's attorneys' law office is, to inspect the parking lot personally. And, in fact, legal training is hardly relevant to the task. Surveying a parking lot to determine its slope requires training in surveying, architecture, construction, or some allied field. And Rush herself has relied on a local architecture firm to visit and conduct an ADA accessibility survey of the restaurant. (Mot. for Summ. J., Report of Reed Settle, Architect (Docket no. 25-8)). In short, there is no reason for Lynn Hubbard III, Scottlynn Hubbard, or any attorney from their firm to make repeated long-distance trips to this District merely to inspect the restaurant's parking lot.

The Motion also spills over into summary judgment territory, arguing that parking lot repairs amount to spoliation of evidence, and that spoliation of evidence supports summary judgment in its favor. (Motion, 1:17--21.) In fact, what is taking place is repair of a parking lot Rush claims is in violation of the ADA. What Rush calls spoliation of evidence is actually subsequent remedial measures, which are inadmissible. See Fed. R. Evid. 407.

Finally, the Motion does not cite the standard for issuance of motions for preliminary injunctive relief. If Rush's counsel had reviewed the law governing such relief, it would have been apparent the request fails every test. "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).

The Motion makes no effort to show Rush is likely to prevail on the merits. In fact, as discussed earlier, if the restaurant parking lot is successfully repaired and brought into compliance with the ADA, she will not prevail-although she will of course have obtained full access to the restaurant. Certainly Rush will not suffer irreparable harm if the parking lot is repaired. Quite the contrary, in fact: she will ...

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