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Hernandez v. Polanco Enters., Inc.

United States District Court, N.D. California

August 23, 2013


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For Alma Clarisa Hernandez, Plaintiff: Tanya Eugene Moore, LEAD ATTORNEY, Moore Law Firm, P.C., San Jose, CA; K. Randolph Moore, Moore Law Firm, San Jose, CA.

For Polanco Enterprises, Inc, Defendant: Martin Robert Fox, LEAD ATTORNEY, Bleau Fox & Fong, Los Angeles, CA; Thomas Paul Bleau, LEAD ATTORNEY, Megan Ann Childress, Bleau Fox A.P.L.C., Los Angeles, CA.

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Order re: Cross-Motions for Summary Judgment


Plaintiff Alma Clarisa Hernandez, who has used a wheelchair since 2004, brought this action under Title III of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq. , alleging that architectural barriers at Defendant Polanco Enterprises, Inc.'s gasoline station denied her full and equal enjoyment and use of the facility, including the station's attached convenience store and the restroom inside. Plaintiff's First Amended Complaint (Dkt. No. 36 [" FAC" ]) identifies 40 alleged architectural barriers at the subject gas station, upon which she bases four distinct legal claims for violations of: (1) the ADA; (2) the California Disabled Persons Act, Cal. Civ. Code § § 54 and 54.1 (" DPA" ); (3) the California Unruh Civil Rights Act, Cal. Civ. Code § § 51, 51.5 (" Unruh Act" ); and (4) California Health & Safety Code § 19953. Since this action commenced, Defendant has undertaken an extensive remediation effort eliminating 37 barriers. Notwithstanding that effort, Plaintiff avers that four barriers exist post-remediation: two that Plaintiff claims were never corrected and two that Defendant allegedly created during its remediation efforts.

Now before the Court are fully briefed cross-motions for summary judgment on all claims. See Dkt. Nos. 46 (" Pl. MSJ" ), 47 (" Def. MSJ" ), 58 (" Pl. Opp'n" ), 60 (" Def. Opp'n" ), 63 (" Pl. Reply" ), & 64 (" Def. Reply" ). This Order addresses the alleged remaining four barriers: (i) the alleged lack of a low-level push plate to operate the power-assisted door installed at the facility's accessible entrance; (ii) the allegedly excessive slope of a designated accessible route from the public sidewalk to the entrance; (iii) the allegedly excessive slope of a new landing constructed at that entrance; and (iv) the alleged lack of sufficient space for a wheelchair to maneuver in the gas station's restroom. The cross-motions turn on three issues. The first issue is whether the alleged remaining barriers were pled adequately in the FAC. If they were and the barriers exist, the second issue is whether Defendant is shielded from ADA liability because removal of the barrier is not " readily achievable; " Plaintiff argues that Defendant waived this defense during discovery. The third issue is whether the most recent iteration of the California Building Code applies to the restroom altered by Defendant as part of its remediation efforts.

Having carefully considered the papers submitted and the record, and having had the benefit of oral argument, for good cause appearing the Court Denies Plaintiff's motion for summary judgment and Partly Grants and Partly Denies Defendant's cross-motion, as set forth below.


A. The Parties and the Initial Proceedings

Plaintiff suffers from progressively deteriorating conditions of scoliosis/kyphoscoliosis, Pott's disease, and paraplegia. Plaintiff also has experienced renal failure and receives dialysis three times per week. As a result of her conditions, Plaintiff can walk only with the aid of arm braces, and

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then only for a short time. Since approximately 2004, she has used a wheelchair to go out in public.

Defendant operates a gasoline station that was built in 1969. The station includes a convenience store, inside of which is a restroom. The station is located on the route Plaintiff travels between her residence and the center where she receives her dialysis. Plaintiff sometimes stops at Defendant's gasoline station to get gasoline and purchase items from the convenience store, and she would like to be able to use the restroom there. On May 21, 2010, Plaintiff visited Defendant's gasoline station but was unable to enter the convenience store because the sidewalk at the entrance was too narrow. Plaintiff filed this lawsuit on May 6, 2011.

Plaintiff seeks relief under the ADA and California state law in the form of an injunction requiring Defendant to remove the barriers that deny her full and equal access to the gas station. Plaintiff further seeks a declaration that Defendant violated the ADA, statutory damages under California's Unruh Act or DPA, and prevailing-party attorney fees and costs.

On August 12, 2011, Plaintiff's designated expert, Gary Layman, inspected Defendant's gas station. Dkt. No. 46-12 (" Layman Decl." ) ¶ 4. Layman produced a written report that purports to summarize his observations, dated August 24, 2012. Dkt. No. 51-1 (" Layman Initial Report" ). This report also sets forth forty-six separate " requirements" which, if accomplished, would, in Layman's opinion, bring the gas station into compliance with the 2010 ADA Standards for Accessible Design (" 2010 ADA Standards" ) and the 2010 California Building Code (" 2010 CBC." ).[1] Id. at 14-19.[2]

On July 2, 2012, Plaintiff sought leave to file an amended complaint, which the Court granted. Dkt. Nos. 32, 35. Plaintiff filed the FAC on August 8, 2012. Paragraph 11 of the FAC enumerates forty alleged barriers to Plaintiff's use of Defendant's gasoline station. FAC ¶ ¶ 11(a)-11(nn).

On August 22, 2012, Defendant filed an Answer to the FAC asserting thirty-one affirmative defenses. Dkt. No. 37 (" Answer" ). Defendant's twenty-second affirmative defense states: " [T]he removal of any barriers, if any exist, the fact of which is expressly denied, [was] and [is] not readily achievable and easily accomplishable so as to be accomplished by Defendants without much difficulty or expense. As such the overall impact of such removal would be financially detrimental to Defendants." [3] Id. at 11. That defense is a recognized affirmative defense to ADA liability. See, e.g., Wilson v. Haria & Gogri Corp., 479 F.Supp.2d 1127, 1133 n.7 (E.D. Cal. 2007) (collecting cases where defense was asserted).

B. Discovery Activities Relating to the Readily-Achievable Defense

On September 24, 2012, Defendant provided supplemental responses to interrogatories propounded by Plaintiff. Dkt. No. 58-5 (" Def. Supp. Interrog. Resp." ). Plaintiff's ninth interrogatory asked Defendant to identify any of the barriers listed in paragraphs 10 and 11 of the FAC for which removal was not " readily achievable." Id. at 11. Defendant responded that the alleged barriers either did not

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exist or were in the process of being brought " into compliance with all federal and state laws," and that consequently Defendant did " not contend that it [was] not 'readily achievable' to 'remove' those barriers." Id. at 12. Defendant further stated that, although some remediation efforts were incomplete, it was " not aware of any additional unanticipated or unforeseen modifications or 'alterations,' and/or any additional associated costs, that may be required to remove the alleged 'barriers,' and therefore [was] unable to state at this time which of the alleged 'barriers' are not 'readily achievable' to remove, if any." Id. Defendant further stated that it would amend its supplemental responses if it learned that removal of any of the specified barriers was not readily achievable. Id. at 12-13.

In a similar vein, Plaintiff's tenth and eleventh interrogatories asked, respectively, for details about the difficulties that made removal of any barrier not readily achievable, and for details about any impact on the gas station that would result from barrier removal. Id. at 13-15. Defendant gave substantially the same answer that it did to the ninth interrogatory: it did not anticipate being unable to remove any barriers, but would supplement its responses to address the readily-achievable defense if it was. See id. Defendant also declined to produce its " financial statements, profit and loss statements, cash flow statements, balance sheets, tax returns, and income statements . . . for the past five (5) years," reciting substantially the same reasons. Dkt. No. 58-6 (" Def. RFP Resp." ) at 10-11.

On September 26, 2012, Plaintiff took the deposition of David Polanco Sr., the President of Defendant Polanco Enterprises, Inc. Dkt. No. 58-7 (" Polanco Sr. Dep." ). During the deposition, Defendant's counsel stated on the record that the parties had " stipulated in writing that [certain financial documents] need not be produced at this point unless defendants raise the readily achievable affirmative defense, and that we would take up that issue at a later time." Id. at 20:15-19. On September 28, 2012, the time for fact discovery ended. Dkt. No. 28 at 1.

C. Litigation Stayed for Remediation

On November 9, 2012, in anticipation of the filing of motions for summary judgment, Defendant requested a 120-day stay of the action during which it would " complete the remaining construction/alterations and file a cross-MSJ, which will dispose of this action in its entirety." Dkt. No. 43. Defendant represented that it could not yet determine " whether the 'not readily achievable' defense should be raised with respect to any of the remaining alleged 'barriers' . . . ." Id. at 2-3. Defendant informed the Court that it anticipated being able, at the end of the 120-day period, either to remove the remaining barriers identified in the FAC or determine for which of those barriers it would raise the readily-achievable defense. Id. at 3. Defendant proposed that the parties: serve supplemental expert reports to assess whether Defendant's remediation efforts had cured the barriers alleged in the FAC by March 11, 2013; file a list of stipulated undisputed facts by March 18, 2013; and file their cross-motions for summary judgment by March 25, 2013.

On November 13, 2012, the Court issued a scheduling order adopting Defendant's proposal. Dkt. No. 44.

D. Post-Remediation Developments

On March 1, 2013, ten days before the parties' deadline to serve supplemental expert reports, Plaintiff's designated expert, Layman, re-inspected the gas station. Layman Decl. ¶ 5. Layman observed that

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the gas station had undergone " significant alterations" since his initial visit in August 2011. Id. ¶ 7. Layman found that most of the barriers he had identified during his initial inspection in August 2011 had been removed, but that some barriers still existed. Id. ¶ 4. Layman purported to have identified seven new violations of the ADA, the CBC, or both. Id. ¶ 5. Of the seven purported violations, four are relevant here, namely: (1) excessive slope on the designated accessible route, ranging from 3.7 to 4.7 percent; (2) excessive slope of 2.9 percent on the landing for the entrance door; [4] (3) the lack of a low-level push plate on the automatic door-opener system; and (4) only 39.25 inches of clear floor space in front of the toilet when there should have been 48 inches. See id.; see also Dkt. No. 51-5 (" Layman Supp. Report" ) (identifying these purported barriers).[5] The parties' cross-motions center on those four purported barriers, herein denominated as the " accessible-route," " entrance-landing," " low-level push plate," and " restroom-space" barriers, respectively.[6]


A party may move for summary judgment on a " claim or defense" or " part of . . . a claim or defense." Fed.R.Civ.P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id.

A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is " genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1154 (9th Cir. 1999) (citing Anderson, 477 U.S. at 248). ...

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