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Michael Mccune v. Harvard Cameron

November 29, 2012

MICHAEL MCCUNE,
PLAINTIFF,
v.
HARVARD CAMERON, LLC;
WOODMAN VICTORY CAMERON, LLC; FOUNTAIN VALLEY CAMERON, LLC; COLBY BUTLER CAMERON, LLC; BEVERLY HOWARD CAMERON, LLC,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER GRANTING PLAINTIFF'S PARTIAL MOTION FOR SUMMARY 628 JUDGMENT

Plaintiff moves for summary judgment or partial summary judgment under Federal Rule of Civil Procedure ("Rule") 56 on his barriers to access claims concerning use of Defendants' parking lot. Plaintiff's claims are alleged under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; the California Unruh Civil Rights Act ("Unruh Act"), Cal. Civ. Code § 51; and the California Disabled Persons Act ("DPA"), Cal. Civ. Code § 54. Defendants failed to respond to the motion, as required by Local Rule 230(c).

I. LEGAL STANDARD

A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To meet this burden, the movant must "inform[] the district court of the basis for its motion, and identify[] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323.

If the movant satisfies its initial burden, "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id.; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted). In evaluating the motion under Rule 56, evidence must be viewed "in the light most favorable to the non-moving party," and "all reasonable inferences" that can be drawn from the evidence must be drawn "in favor of [the non-moving] party." Bank of N.Y. v. Fremont Gen. Corp., 523 F.3d 902, 909 (9th Cir. 2008).

Further, Local Rule 260(b) requires:

Any party opposing a motion for summary judgment or summary adjudication [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.

If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006). However, a non-movant's failure to oppose the motion for summary judgment does not "excuse the moving party's affirmative duty under Rule 56 to demonstrate its entitlement to judgment as a matter of law." Martinez v. Sanford, 323 F.3d 1178, 1182 (9th Cir. 2003). Rather, summary judgment may only be granted if the movant has "me[t] its burden of demonstrating the absence of triable issues," even when the non-movant fails to oppose the motion. Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995).

II. UNCONTROVERTED FACTS

Plaintiff filed a Statement of Undisputed Facts ("SUF") and Requests for Admission ("RFA") in support of his motion. (Decl. of Khushpreet R. Mehton ("Mehton Decl") & Ex. A.)

The uncontroverted summary judgment evidentiary record establishes the following. Plaintiff is a C5-C6 quadriplegic who requires the use of an electric wheelchair when traveling in public. (SUF ¶ 2; Decl. of Michael McCune ("McCune Decl.") ¶ 2.) He lives near the Cameron Park Place Shopping Center, which contains a parking lot for a business complex. (Id. ¶ 3.) The business complex includes a Round Table Pizza restaurant and Safeway grocery store, located respectively at 3370 and 3380 Coach Lane, in Cameron Park, California. (McCune Decl. ¶ 3.) "Defendants own . . . the parking lot [that] services" the business complex. (SUF ¶ 4; Defs.' Answer ("Answer"), ECF No. 15, ¶ 5.) The business complex and parking lot are public accommodations that are "open to the public" and "intended for nonresidential use." (SUF ¶¶ 5- 6; Answer ¶ 7; Mehton Decl. ¶ 4(c)-(d) & Ex. A.) They were constructed in 1999. (Decl. of Joe Card ("Card Decl.") ¶ 2 & Ex. A.) Plaintiff visited the business complex on May 10, 2010; June 21, 2010; July 28, 2010; July 30, 2010; and August 2, 2010. (McCune Decl. ¶ 4.) He regularly patronizes the business complex and intends to return there. (Id. ¶¶ 4, 9.)

Since Plaintiff uses an electric wheelchair, he has "to travel in a van that deploys a ramp at the side of the van for unloading and loading [his] wheelchair," and he has "to use the disabled parking spaces and adjoining access aisles" to park and deploy the ramp. (Id. ¶¶ 4-5.) Plaintiff declares: "When the slopes and/or cross slopes [in disabled parking spaces and adjacent access aisles] are too steep, it makes them very difficult for me to traverse in my wheel chair because the front casters of my chair can veer or the chair can abruptly shift as I approach my van or as I transfer to and from my vehicle[.] Also, because I am a quadriplegic, excessive sloops are problematic because they disrupt my trunk balance in the wheelchair." (McCune Decl. ¶ 8(a), (b).) Plaintiff's expert, Joe Card, found that "[t]he slopes of the disabled parking spaces in the parking lot are 2.4%, 2.4%, 2.5%, 2.4%, 4.7%, 2.6%, 2.9%, 2.6%, 2.5%, 2.5%, and 2.3%," and "[t]he slopes of the access aisle adjacent to the disabled parking spaces in the parking lot are 2.7%, 2.4%, 2.8%, 3.5 %, 2.6%, and 2.5%." (Card Decl. ¶ 5(a), (b) & Ex. A, at 4-15, 37-41; see also Mehton Decl. ¶ 4(g), (h) & Ex. A.) Defendants admit that removal of the excessive slopes and cross slopes in their parking lot is readily achievable. (Mehton Decl. ¶ 4(e) & Ex. A.)

III. DISCUSSION

A. Americans with Disabilities ...


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