This matter is before the court on defendant's motion for summary judgment and an order declaring plaintiff a vexatious litigant. A hearing was held on August 24, 2012; Scott N. Johnson, an attorney, appeared pro se, and Kathleen E. Finnerty appeared on behalf of defendant. For the following reasons, defendant's motion for summary judgment is granted; its motion for an order declaring plaintiff a vexatious litigant is denied.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff filed his complaint seeking injunctive and declaratory relief and statutory damages on May 12, 2011, alleging two causes of action: 1) violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"), and 2) violation of the Unruh Civil Rights Act, CAL.CIV.CODE §§ 51(f) and 52. (ECF 1.) Plaintiff alleges he is quadriplegic and requires the use of a service animal, wheelchair, and a full-size van with a passenger side wheelchair lift. (ECF 1 ¶ 1.) Plaintiff alleges he encountered the following architectural barriers at the Park on Riley apartment complex, owned by defendant: "the correct number and type of properly configured disabled parking space(s) including the lack of a van accessible disabled parking space , accessible route , accessible entrance , accessibility signage, and striping [were lacking]." (Id. ¶¶ 2-4.) Plaintiff alleges he has had "two (2) actual visits during the past year in which he encountered the mobility related architectural barriers . . . one of which was on or about February 11, 2011 [and] was deterred and foregone two (2) visits to the [Park on Riley Complex] during the past year [which are] based upon personal knowledge of existing mobility related architectural barriers . . . ." (Id. ¶ 4.) He alleges he mailed a letter, dated November 11, 2010, to defendant on November 12, 2010, notifying it of the lack of accessibility and requesting that the property be brought into conformity within ninety days. (Id. ¶ 4.)
Plaintiff has been a member of the California State Bar since 1993. (Pl.'s Response to Def.'s Statement of Undisputed Facts ¶ 7, ECF 28 (hereinafter, "ECF 28").) Between November 9, 2004 and April 25, 2012, plaintiff filed over two thousand cases under Title III of the ADA, none of which went to trial. (Id. ¶¶ 1, 3.) Between December 2009 and January 2012, plaintiff filed over 215 ADA lawsuits against apartment complexes in the Sacramento area. (Id. ¶ 11.)
Plaintiff has lived in a single family home in Carmichael, California since 1993; the home has custom modifications for accessibility. (ECF 28 ¶¶ 23-24.) Plaintiff does not intend to move from his current home and did not so intend at the time he filed the present lawsuit. (Id. ¶¶ 25-26.)
Defendant filed the present motion for summary judgment and for an order declaring plaintiff a vexatious litigant on May 7, 2012. (ECF 14.) Defendant filed a request for dismissal with prejudice on May 10, 2012 (ECF 25), which was denied on July 19, 2012 (ECF 38).*fn1 Plaintiff filed his opposition to defendant's motion for summary judgment on June 29, 2012. (ECF 27.) Defendant filed its reply on July 6, 2012. (ECF 31.) Plaintiff also filed a declaration on August 20, 2012, without seeking or obtaining permission of the court; the court has not considered the declaration. (ECF 39.)
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).*fn2
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 genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). "Only admissible evidence may be considered in ruling on a motion for summary judgment." Collier v. Turner Indus. Group, L.L.C., 797 F. Supp. 2d 1029, 1039 (D. Idaho 2011) (citations omitted); see also Hughes v. United States, 953 F.2d 531, 543 (9th Cir. 1992) ("[T]he facts underlying the affidavit must be of a type that would be admissible as evidence . . . .").
Defendant contends it is entitled to summary judgment because plaintiff does not have standing. (ECF 14 at 7.) Specifically, defendant contends plaintiff has not suffered an injury in fact as he did not encounter the barriers of which he complains, but instead only took photographs of them. (Id. at 8.) Defendant further contends any injuries plaintiff alleges are conjectural or hypothetical, not real and immediate, as plaintiff has no intent to return to defendant's property. (Id. at 8, 10.)
Plaintiff contends "[t]o deny me standing in this case, would deny me the chance to find an accessible apartment complex for my son." (ECF 27 at 2.) He contends he has visited the apartment complex on three different occasions; he provides only two dates, February 11, 2011, and April 9, 2011. (Id. at 3.) He maintains he could not access the leasing office on these two occasions because the property did not have compliant van-accessible disabled parking spaces. (Id.)
"[T]o invoke the jurisdiction of the federal courts, a disabled individual claiming discrimination must satisfy the case or controversy requirement of Article III by demonstrating his standing to sue at each stage of the litigation." Chapman v. Pier 1 Imports, 631 F.3d 939, 946 (9th Cir. 2011).*fn3 "To demonstrate standing, a plaintiff must (1) have suffered an injury in fact -- an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court; and (3) it must be likely as opposed to merely speculative, that the injury will be redressed by a favorable decision." Pritikin v. Dep't of Energy, 254 F.3d 791, 796-97 (9th Cir. 2001) (internal quotation marks and citations omitted) (alterations in original). "[W]hen an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that deprives him of full and equal enjoyment of the facility due to his particular disability, he has standing to sue for injunctive relief as to that barrier and other barriers related to his disability." Chapman, 631 F.3d at 944. That plaintiff can establish standing "either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility." Id. Moreover, "to establish standing to pursue injunctive relief, which is the only ...