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Strong v. Walgreen Co.

United States District Court, Ninth Circuit

May 9, 2013

MATTHEW STRONG, Plaintiff,
v.
WALGREEN CO., doing business as Walgreens; and RUDOLPH BRAGG, Trustee of the Bragg Family Trust, Dated April 22, 1982, Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. The following motions are also before the Court: (1) Defendants' Motion to Strike Evidence (ECF No. 108); (2) Defendants' Motion for Judgment as a Matter of Law (ECF No. 109); (3) Plaintiff's Motion for Judgment on Partial Findings (ECF No. 114); (4) Plaintiff's Motion to Strike Legal Conclusions from Kim Blackseth's Testimony (ECF No. 115); and (5) Defendants' Motion to Strike Plaintiff's Post-Trial Motions and Proposed Findings of Fact/Conclusions of Law (ECF No. 116).

PROCEDURAL HISTORY

On March 25, 2009, Plaintiff Matt Strong initiated this action by filing a complaint against Defendants Walgreen Co., doing business as Walgreens ("Walgreens"), and Rudolf Bragg, Trustee of the Bragg Family Trust (collectively "Defendants") (ECF No. 1).

On April 28, 2011, Plaintiff filed the First Amended Complaint - the operative complaint in this case - against Defendants. (ECF No. 64). Plaintiff alleges that the Walgreens store ("Store"), located at 215 North 2nd Street in El Cajon, California, is a public sales or retail establishment designed or constructed after January 26, 1992, and is not fully accessible to him because of architectural barriers. Id. at 2, 7. Plaintiff alleges claims against Defendants for violation of the Americans with Disabilities Act ("ADA"), the California Disabled Persons Act, the California Unruh Act, and the California Health and Safety Code. Plaintiff seeks injunctive relief; declaratory relief; attorney's fees, costs, and legal expenses; the statutory minimum damages; and interest.

On November 8, 2011, the Court granted Defendants' motion for summary judgment on Plaintiff's first claim for violation of the ADA with respect to the following alleged architectural barriers: (1) the lack of a marked crossing in the parking lot; (2) an incorrect sign in the van accessible parking space; (3) the location of detectable warnings; (4) the lack of a designated checkstand for the disabled open at all times; (5) the lack of a self-closing restroom door; (6) a toilet paper dispenser which protrudes into the clear maneuvering space needed to access the water closet; (7) the front roll of toilet paper located more than twelve inches from the water closet; (8) the lack of access to the disposable seat cover dispenser in the bathroom; (9) improperly or incompletely wrapped pipes in the bathroom; and (10) insufficient strike side clearance on the pull-side of the restroom door. (ECF No. 74 at 19). The motion for summary judgment was denied as to Plaintiff's ADA claim with respect to the following alleged architectural barriers: (1) the disabled parking spaces are not outlined in white; (2) improper slope in the disabled parking spaces and access aisles; and (3) the toilet paper dispenser contains sharp edges. Id. at 17. With respect to the exercise of supplemental jurisdiction over Plaintiff's remaining state law claims, the Court issued the following Order to Show Cause:

Plaintiff has also alleged several barriers relating to the three state law claims of (1) violation of the California Disabled Persons Act, (2) violation of the California Unruh Act, and (3) violation of the California Health and Safety Code. Plaintiff is ORDERED TO SHOW CAUSE why the Court should continue to exercise supplemental jurisdiction over Plaintiff's state claims by no later than twenty days from the date of this Order. Defendants may respond by no later than ten days from the date that Plaintiff's response to the order to show cause is filed.

Id. at 19. The parties responded to the Order to Show Cause with additional briefing. (ECF Nos. 75, 76, 78).

On May 30, 2012, the Court issued the Final Pretrial Order. (ECF No. 87). The Final Pretrial Order set forth the following issues of fact and law, and no others, which remained to be litigated at trial: (1) whether the following conditions constitute barriers to access, exist(ed) at the Store, and violate state or federal law: a) there is no marked crossing where the accessible route crosses the vehicular way; b) the signage posted at the van accessible parking space is incorrect; c) the slopes and cross slopes of the disabled parking spaces to the north side of the Store exceed 2.0%; d) the slopes and cross slopes of the access aisle(s) to the north side of the Store exceed 2.0%; e) the disabled parking spaces are not outlined in white; f) the detectable warnings are located on the ramp rather than prior to it; g) there are no check stands designated as being accessible to the disabled and open at all times for persons with disabilities; h) the restroom door is not self-closing; i) the toilet tissue dispenser protrudes in to the clear maneuvering space needed to access the water closet; j) the toilet tissue dispenser contains sharp edges; k) if having to use the front roll of toilet tissue, it is located more than twelve inches from the front of the water closet; l) the water closet is an obstruction to the use of the disposable seat cover dispenser; m) the pipes underneath the lavatory are improperly and/or incompletely wrapped; n) there is insufficient strike side clearance on the pull-side of the restroom door; (2) whether Plaintiff visited the Store and was denied "full and equal" enjoyment and use because of his disability; (3) whether Plaintiff was deterred from visiting the Store because of actual knowledge that the Store denied him "full and equal" enjoyment and use; (4) whether the slopes and cross slopes of the disabled parking spaces to the north side of the Store violate the ADA Accessibility Guidelines, constitute a barrier to access, and exceed the construction industry tolerance for field conditions; (5) whether the slopes and cross slopes of the access aisle(s) to the north side of the Store violate the ADA Accessibility Guidelines, constitute a barrier to access and exceed the construction industry tolerance for field conditions; (6) whether the disabled parking spaces are not outlined in white and/or whether that condition violates the ADA or any other disabled accessibility requirement; (7) whether the toilet tissue dispenser contains sharp edges and whether said condition violates the ADA or any other disabled accessibility requirement; (8) whether a violation or violations of one or more construction-related accessibility standards denied Plaintiff full and equal access to the Store; and (9) whether Plaintiff personally encountered one or more construction-related accessibility violations as that phrase is defined in Civil Code section 55.56. Id. at 6-9.

On November 8, 2012, the Court held a motions in limine[1] hearing, followed by a bench trial. At the conclusion of the bench trial, the Court ordered the parties to file any motions to strike and/or motions to dismiss, as well as proposed findings of fact and conclusions of law, by January 28, 2013. (ECF No. 104).

On January 28, 2012, Defendants filed: (1) Proposed Findings of Fact and Conclusions of Law (ECF No. 110); (2) a Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(a) (ECF No. 109); and (3) a Motion to Strike Evidence "concerning alleged accessibility issues that were not identified in the Final Pre-Trial Order" (ECF No. 108).

On January 31, 2013, Plaintiff filed: (1) Proposed Findings of Fact and Conclusions of Law (ECF No. 113); (2) a Motion for Judgment on Partial Findings pursuant to Federal Rule of Civil Procedure 52(c) (ECF No. 114); and (3) a Motion to Strike Legal Conclusions from Kim Blackseth's Testimony (ECF No. 115).

On February 4, 2013, Defendants filed a Motion to Strike (ECF No. 116), requesting that the Court strike Plaintiff's post-trial motions and Proposed Findings of Fact and Conclusions of Law as untimely. (ECF No. 116).

On February 18, 2013, Plaintiff filed: (1) an opposition to the Motion to Strike Plaintiff's post-trial motions and Proposed Findings of Fact and Conclusions of Law as untimely (ECF No. 121); (2) an opposition to the Motion for Judgment on Partial Findings (ECF No. 120); and (3) an opposition to the Motion to Strike "certain accessibility issues that were not identified in the Final Pre-Trial Order" (ECF No. 122). On February 18, 2013, Defendants filed: (1) an opposition to the Motion for Judgment on Partial findings (ECF No. 123-1); and (2) an opposition to the Motion to Strike Legal Conclusions from Kim Blackseth's Testimony (ECF No. 123).

On February 20, 2013, Plaintiff filed a Request for Judicial Notice of Doran v. 7-Eleven, No. 11-55619, 2013 WL 602251 (9th Cir. Feb. 19, 2013). (ECF No 124). That request is granted. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

FINDINGS OF FACT

Plaintiff, a quadriplegic, is disabled under the ADA and California law. At the time Defendants answered Plaintiff's Complaint, Walgreens owned, operated, managed, and/or leased the Store, which is located at 215 North 2nd Street, El Cajon, CA, 92021. Walgreens provides goods, services, facilities, privileges, advantages, or accommodations at the Store. The Store is a sales or retail establishment, open to the public, which is intended for nonresidential use and whose operation affects commerce. The Store is a business establishment under California Civil Code sections 51 and 51.5, and a place of public accommodation as defined by 42 U.S.C. section 1218(7). The Store was designed and constructed for first occupancy after January 26, 1993.

Plaintiff submitted four receipts into evidence showing that he purchased several items at the Store with cash in February and March of 2009. (ECF No. 107 at 14); Exh. 2. Plaintiff testified that he traveled and continues to travel to the Store either by wheelchair or public bus in order to purchase household items. (ECF No. 107 at 12, 29-30). Plaintiff testified that he visited the Store on November 7, 2012, the day before trial, and that he intends to return to the Store in the future. Id. at 11, 18.

Plaintiff testified that as he crossed though the Store's disabled parking spaces lion his way to the Store's entrance, the elevation of the surface changed and the wheels of his mechanized wheelchair lifted off the ground. Id. at 21. Plaintiff testified that no marked crossing existed from the vehicular way to the Store on his first visit in February of 2009; Plaintiff testified that he noticed a marked crossing from the vehicular way to the Store for the first time on his November 7, 2012 visit. Id. at 19-20, 48, 70. Plaintiff testified that there was a "van accessible sign" by the parking spaces at the Store which he found "confusing" because it was also a disabled parking sign. Id. at 20. Plaintiff testified that there were no detectible warnings on any of the ramps in the parking lot leading to the store. Id. at 39-40. Plaintiff testified that, in the restroom of the Store, the location of the toilet seat cover dispenser was too high for him to reach; the sharp edges on the toilet paper dispenser prevented him from taking any toilet paper to wipe off his leg bag; there were unwrapped hot water pipes that prevented him from washing his hands; and he had difficulty leaving the restroom because the door was locked. Id. at 32, 34-35, 59-60. Plaintiff testified that no register in the Store was marked as accessible for the disabled, and that he had to throw his items onto the counter in order to pay, which was "a pain" and "difficult." Id. at 38-39. Plaintiff testified that there was a sign hanging from the ceiling of the Store which indicated a checkout register for the disabled on his November 7, 2012 visit. Id. at 72.

Defendant's expert witness and disabled access consultant, Kim Blackseth, testified that he inspected the Store on two occasions: first on August 17, 2009, and again on November 7, 2012, the day before trial. Id. at 79, 118. Blackseth testified that he prepared two expert reports related to this case: (1) an independent report dated October 14, 2009, which was based upon his August 17, 2009 inspection; and (2) a report purporting to rebut a report prepared by Plaintiff's designated expert witness, Reed Settle, who was not called to testify. Id. at 75. Blackseth testified regarding observations he made and measurements he took of the Store's facilities, and provided his expert opinion as to the Store's compliance with the relevant state and federal accessibility guidelines, i.e. the Americans with Disability and Accessibility Guidelines and the California Building Code.

Lance Zwanck, manager of the Store during all of 2009, testified regarding the checkout counters at the front of the store and the checkout stands in the pharmacy. Id. at 179-184. Zwanck testified that there were four checkout counters at the front of the Store, one of which was "a bit lower than the others" and was always open. Id. at

Harold Hanson, a retired California Highway Patrolman, testified that he went to the Store on November 7, 2012 at the direction of Plaintiff and took photographs of the Store's checkout counters. Id. at 186-192; Exhs. 9-3, 9-4, 9-6, 9-9.

CONCLUSIONS OF LAW[2]

I. Defendants' Motion to Strike (ECF No. 108) Evidence Regarding Accessibility Issues Not Identified in the Final Pretrial Order

Defendants move to strike evidence introduced at trial regarding "the tow-away signage (Trial Transcript 85:3-86:1-25, 88:20-90:1-16) and [the] counters located in the pharmacy department (TT 100:16-103:2)." (ECF No. 108 at 1). Defendants contend that evidence relating to the tow-away sign and the pharmacy counters issues is not relevant because "these conditions are not identified in the Final Pre-Trial Order as issues in the trial." Id. at 2-3. Defendants assert that the Court denied Plaintiff's request to add the tow-away sign and pharmacy counters as alleged barriers of access to Plaintiff's original complaint. Id.

Plaintiff contends that the tow-away sign and pharmacy counter issues are encompassed by the Final Pretrial Order. Plaintiff asserts that the Final Pretrial Order "identifies improper signage at the van accessible parking space, " and contends that "tow away signage is one of the signs that must be posted above the van accessible parking spaces." (ECF No. 122 at 2) (emphasis in original). Plaintiff asserts that the Final Pretrial Order "identified... no checkstands designated as being open or accessible to the disabled, " and contends that "Lance Zwanck testified that the pharmacy also had a checkstand counter so the lack of signage at that counter was included in the pretrial order, too." Id. "Long story short, " Plaintiff asserts, "the Ninth Circuit has instructed district courts to liberally construe the pretrial order to permit trial of issues reasonably embraced within its language." Id.

"The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence." Fed.R.Civ.P. 16(e). "A Rule 16(e) order controls the subsequent course of action in the litigation unless it is modified by a subsequent order. Although we liberally construe pretrial orders, a theory will be barred if not at least implicitly included in the order." Eagle v. Am. Tel. & Tel. Co., 769 F.2d 541, 548 (9th Cir. 1985) (citing United States v. First National Bank of Circle, 652 F.2d 882, 886 (9th Cir. 1981); Fed.R.Civ.P. 16(e)).

On February 18, 2011, Plaintiff filed a motion for leave to file a first amended complaint, seeking to add, inter alia, allegations of 19 barriers to access which were not alleged in the original complaint - including allegations that "the tow away sign is incorrect" and "there is no lowered portion of the pharmacy counter." (ECF No. 48). On April 18, 2011, the Court denied Plaintiff's request for leave to add the 19 new barriers to the First Amended Complaint. (ECF No. 63 at 7-8). On May 30, 2012, the Court issued the Final Pretrial Order, which identified the issues of fact and law to be litigated at trial and stated that "no other" issues, besides those expressly identified in the Order, remained to be litigated; the tow-away sign and pharmacy counter issues were not identified in the Final Pretrial Order. (ECF No. 87 at 6, 12). Based upon the factual allegations of the First Amended Complaint, the plain language of the Final Pretrial Order, and the procedural history of this case, the Court finds that the tow away sign and pharmacy counter issues were not "implicitly included in the pretrial order." Eagle, 769 F.2d at 548 ("We find that the tax liability theory was not implicit in the pretrial order. [Plaintiff's] initial and amended complaints allege that the minority shareholders were injured by the refund [the defendant] was ordered to pay. Neither complaint mentions the tax liability."). The Motion to Strike (ECF No. 108) filed by Defendants is granted.

II. Plaintiff's Americans with Disabilities Act Claims

Title III of the ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). To establish a violation of the ADA, Plaintiff must show that (1) he is "disabled"; (2) Defendants own, lease, or operate a "public accommodation"; and (3) he was denied full and equal treatment because of his disability. See Molski v. M.J. Cable, 481 F.3d 724, 730 (9th Cir. 2007). The parties do not dispute that Plaintiff is "disabled" and the Store is a "place of public accommodation" within the meaning of the ADA.

The ADA Accessibility Guidelines ("ADAAG") "provides the objective contours of the standard that architectural features must not impede disabled individuals' full and equal enjoyment of accommodations." Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc); 41 C.F.R. Subpart 101-19.6 App. A. "If a particular architectural feature of a place of public accommodation is inconsistent with the ADAAG, a plaintiff can bring a civil action claiming that the feature constitutes a barrier that denies the plaintiff full and equal enjoyment of the premises in violation of the ADA." Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011)(citing 42 U.S.C. §§ 2000a-3(a), 12188(a)(2)). "The ADAAG's requirements are as precise as they are thorough, and the difference between compliance and noncompliance with the standard of full and equal enjoyment established by the ADA is often a matter of inches." Chapman, 631 F.3d at 945-46; see also, e.g., ADAAG § 4.16.4 (requiring grab bar behind water closets to be at least thirty-six inches long); ADAAG § 4.19.6 ("Mirrors shall be mounted with the bottom edge of the reflecting surface no higher than 40 in (1015 mm) above the finish floor....").

A plaintiff has sufficient personal stake in the outcome of an ADA claim only to the extent that the alleged barrier relates to the plaintiff's personal disability. Chapman, 631 F.3d at 947; see also Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1044 n. 7 (9th Cir. 2008) (explaining that a wheelchair-dependent plaintiff "may challenge only those barriers that might reasonably affect a wheelchair user's full enjoyment of the store"); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000) (holding that a plaintiff who is not blind lacks standing to sue for ADA violations that only affect the blind).

With respect to Plaintiff's ADA claim, the following alleged barriers of access remain at issue: (1) improper slope in the disabled parking spaces and access aisles; (2) the toilet paper dispenser contains sharp edges; and (3) the disabled parking spaces are not outlined in white. See ECF No. 74 at 17 (order denying Plaintiff's motion for summary judgment and granting in part Defendants' motion for summary judgment); ECF No. 87 (Final Pretrial Order).

A. Slopes and cross slopes of the disabled parking spaces and access aisles

"A cross slope that is too steep can cause a wheelchair occupant to have difficult steering and, in extreme cases, cause the wheelchair to overturn." Hubbard v. 7-Eleven, Inc., 433 F.Supp.2d 1134, 1137 (S.D. Cal. 2006) (citing Parr v. L & L Drive-Inn Rest., 96F.Supp. 2d 1065, 1087 (D. Haw. 2000)). Pursuant to the ADAAG, "[p]arking spaces and access aisles shall be level with surface slopes not exceeding 1:50 (2%) in all directions." 28 C.F.R. part 36, App. D, § 4.6.3; see also 28 C.F.R. part 36 § 4.3.7; Hubbard, 433 F.Supp.2d at 1137 ("Under the federal law, a cross slope of an accessible route cannot exceed 1:50, or 2%.").

The ADAAG further provides that "[a]ll dimensions are subject to conventional building industry tolerances for field conditions." 28 C.F.R. part 36, App. D, § 3.2. "This is intended to allow for construction tolerances, such as variations based on field, material, manufacturing and workmanship conditions." Cherry v. City Coll. of San Francisco, C 04-04981 WHA, 2006 WL 6602454, *5 (N.D. Cal. Jan. 12, 2006). The district court in Cherry explained:

[T]he burden is on plaintiffs to prove that the variance exceeds the allowed tolerance. It is not enough to simply show that a particular bathroom stall, for example, is less than' the required width. The approximate extent of any Shortfall must be proven. And, ...

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