United States District Court, N.D. California
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: ECF NOS. 64, 80
JON S. TIGAR, District Judge.
In this action for discrimination on the ground of disability in violation of the Unruh Act, the California Disabled Persons Act ("CDPA"), and the Americans with Disabilities Act, both parties move for summary judgment with respect to Plaintiff Lemmons' claims under the Unruh Act and the CDPA. For the reasons set forth below, both motions are GRANTED IN PART and DENIED IN PART.
A. The Parties and Claims
Plaintiff Portia Lemmons brings this action against Defendants Ace Hardware Corporation ("Ace"), Berkeley Hardware, Inc., and EQR-Acheson Commons Limited Partnership ("EQR") for claims arising out of Defendants' purported denial of access to disabled persons at the Berkeley Ace Hardware store in Berkeley, California ("the store"). Compl., ECF No. 1. Ace and Berkeley Hardware have a franchising agreement that permits Berkeley Hardware to operate the store while using the "Ace" name. EQR owns the building in which the store is located and leases it to Berkeley Hardware. Lemmons alleges that she visited the store multiple times over the last several years, and that each time, she encountered physical barriers that prevented her from shopping at the store without assistance, which caused her to suffer difficulty, discomfort, and embarrassment.
Lemmons has asserted three claims against Defendants in the operative complaint in connection with Defendants' failure to remove the barriers: (1) a claim for "denial of full and equal access to public facilities in a public accommodation" under the California Disabled Persons Act ("CDPA"), California Civil Code section 54; (2) a claim for discrimination in violation of the Unruh Act, California Civil Code section 51; and (3) a claim under the Americans with Disabilities Act of 1990.
B. Relevant Facts
Portia Lemmons has lived with cerebral palsy since birth. Cabalo Decl., Ex. 1 at 7:22-8:11; Lemmons Dec. ¶ 1. She is unable to walk or perform daily living activities without assistance, such as maintaining personal hygiene, grooming, and dressing. Id. at 7:22-8:11. Her cerebral palsy also affects her speech; people often believe that she has a cognitive disability because of her speech difficulties. Lemmons Dec. ¶ 1. Though Lemmons has several attendants, she has her own apartment and is able to execute many daily tasks on her own, including basic shopping. Id . She uses a motorized wheelchair to get around. Id.
2. The Store
The building that houses Berkeley Ace Hardware was constructed in 1915 and has a main floor, a basement, and a mezzanine. There are stairways to the basement and mezzanine. The building has a service elevator that is not designated for public use. Carpenter Decl. ¶ 2.
Since June 30, 2001, the lease for the building has been subject to termination on 30 days' notice. For that reason, Berkeley Hardware has not made any physical changes to store since 2004 other than minor changes to the width of the aisles based on the shelving of merchandise. Id . ¶¶ 4, 10.
Berkeley Hardware admits that it has operated the store as a public accommodation within the meaning ADA at all relevant times. Berkeley Hardware's Resp. to RFAs Nos. 14, 15, 19. EQR admits that it has owned the building in which the store is located at all relevant times. EQR's Resp. to RFAs Nos. 14-16, 18. EQR acquired the building in September 2010 as part of a large development project to create new mixed use space. Cabalo Decl., Ex. 6, Solar Dep. at 28:22-24; Cabalo Dec., Ex. 7, EQR's Interrog. Resp. No. 21. The project was approved in December 2012 but subjected to appeals that concluded in June 2013. Exhibit Solar at 39:16-19. The demolition of the building is scheduled for January 2015 with construction to be completed 24 months later. EQR is working through the construction drawings and the permit process. Exhibit Solar at 40:4-15.
3. Franchising Agreement
Berkeley Hardware operates as an Ace member store pursuant to the "ACE Membership Agreement, " which permits Berkeley Hardware to use the "Ace" name, utilize Ace's customer database and credit card system, sell "Ace"-branded products, utilize training sponsored by Ace, and benefit from Ace marketing, among other things. Cabalo Decl., Ex. 5, Carpenter Dep. at 123:1-139:18; Opp'n Cabalo Decl., Ex. 1, 3-5 & Attachment A. Further, the agreement requires Berkeley Hardware to comply with all federal and state laws and to provide certain training to its employees. Opp'n Cabalo Decl., Ex. 1 at 32:16-37:19 & Ex. 1, 3. Ace has the contractual right to terminate the agreement if Berkeley Hardware fails to comply with these requirements. Id.
Berkeley Hardware manages the store exclusively. Neither Ace nor EQR have a role in the management of the store or its configuration. Carpenter Decl. ¶ 7.
4. Seismic Retrofit
The building underwent a $75, 000 earthquake retrofit in 1997, which required extensive construction work. Cabalo Decl., Ex. 8, Bill Carpenter Dep. at 48:18-53:2; Cabalo Decl., Ex. 9, Moore Dep. at 57:3-11; Cabalo Dec., Ex. 6 Solar Dep. at 49:22-50:8; Margen Decl. ¶¶ 5, 8, 9 & Ex. 3 at 00001, 00002, 00013. This work included reconstruction of sections of the foundation; changes to the footings of the building; installation of rebar into parts of the basement floor and walls; and wall framing. Id . It also included opening a section of the roof to install steel beams for the seismic upgrades. Id.
5. Barriers that Lemmons Encountered
Lemmons has visited the store many times in the last several years. She visited it on 13 occasions over the last two years. During each of those visits ("the visits at issue"), she encountered barriers that prevented her from having full access to the store. The following is a list of the visits at issue:
- January 16, 2011. Lemmons had trouble with the narrow aisles and merchandise blocking the way. Lemmons Decl. ¶ 13.
- May 1, 2011. She had trouble with the narrow aisles and merchandise blocking the way. Id . ¶ 14.
- May 7, 2011. She went to the store for garbage bags, which she believes were located downstairs. Lemmons Dec. ¶ 15. Store employees did not offer to take her downstairs in the elevator and was told to wait the register while an employee went to look for the garbage bags. Id.
- August 21, 2011. She had difficulty with the narrow aisles and merchandise blocking the way. Id . ¶ 16.
- On October 9, 2011. She went to the store for a shower mat and tension rod, which she believes were located downstairs at the time. An employee who assisted her did not offer to take her downstairs in the elevator to look at options. Instead, the employee told Plaintiff to wait by the register. Id . ¶ 17.
- November 17, 2011. Lemmons went to the store for garbage bags, which she believes were located downstairs. An employee who assisted her did not offer to take her downstairs in the elevator to look at garbage bags. Instead, she was told to wait by the register. Id . ¶ 18.
- November 23, 2011. Lemmons went to the store for garbage bags, which she believes were located downstairs at the time. An employee who helped her did not offer to take her downstairs in the elevator to look at garbage bags. Instead, she told her to wait by the register. Id . ¶ 19.
- December 16, 2011. Lemmons went to the store for bleach, which she believes was located downstairs. An employee who assisted her did not offer to take her downstairs in the elevator to look at cleaners. Instead, she was told to wait by the register. Id . ¶ 20.
- December 30, 2011. Lemmons went to the store for garbage bags, which she believes were located downstairs. The employee who assisted her did not offer to take her downstairs in the elevator and instead told her to wait by the register. Id . ¶ 21.
- January 16, 2012. Lemmons went to the store for a funnel, which she believes was located on the main floor. An employee assisted her. Lemmons tried to accompany her the employee but had much difficulty with the narrow aisles and merchandise blocking the way. The employee had to move merchandise out of the way for her. Id . ¶ 22.
- February 3, 2012. Lemmons went to the store for garbage bags and plant food. The garbage bags were located downstairs and the plant food was located on the main floor. Store employees did not offer to take her downstairs in the elevator to look at garbage bags. Instead, an employee told her to wait by the register while an employee went to look for the items she requested. Id . ¶ 23.
- July 20, 2012. Lemmons went to the store for garbage bags, which she believes were located downstairs. Employees did not offer to take her downstairs in the elevator to look at garbage bags. Instead, an employee told her to wait by the register while another employee went to look for garbage bags. Id . ¶ 24.
- July 21, 2012. Lemmons went to the store for a spray handle, which she believes was located on the main floor. She attempted to accompany the employee who assisted her but encountered much difficulty dealing with the narrow aisles and merchandise blocking the way. Id . ¶ 25.
On these occasions, Lemmons claims to have suffered embarrassment and difficulty due the lack of accessible parking, an inaccessible entrance to the store, narrow store aisles, merchandise in the aisles, and inaccessible paths of travel within the store. Lemmons Decl. ¶¶ 8, 26; Margen Decl. at ¶¶ 5-7 & Ex. 4, Item Nos. 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.13, 2.3, 2.4, 2.9. Defendants do not dispute that these physical conditions constituted barriers under the ADA.
Berkeley Hardware and EQR admit that Lemmons' access consultant, Peter Margen, accurately measured the physical conditions at the store for each of the visits at issue. Cabalo Decl., Ex. 4, EQR's Resp. to RFAs Nos. 1, 2; Cabalo Decl., Ex. 2, Berkeley Hardware's Resp. to RFAs Nos. 1, 2. Margen concluded that the building has at least 32 access barriers. Margen Decl., Ex. 4.
Lemmons has never written a letter or spoken with anyone at Berkeley Hardware or EQR to complain about the treatment she received at the store. ECF No. 64, Exhibit A at 129:15-25. Lemmons admits that there are other stores near her apartment where she could purchase the items that she bought at the store during the visits at issue. Id. at 120:10-125:3.
6. Berkeley Hardware's Assistance to Customers
Several of Berkeley Hardware's employees testified that they have assisted disabled customers, including Lemmons. Some of these employees ask customers to wait at the front of the store when they are going downstairs to retrieve items. ECF No. 64, Exhibit B 29:24-30:3.
Some employees have assisted several wheelchair-bound customers in using the elevator. ECF No. 64, Exhibit C at 31:20-22; Exhibit D, 17:18-22.
C. Procedural History
Lemmons, Berkeley Hardware, and Ace entered into a court-enforceable settlement agreement on July 12, 2013, pursuant to which Berkeley Hardware and Ace agreed to perform some corrective work in the store and to make certain changes to their policies governing employee training. ECF No. 57. EQR joined the settlement on July 20, 2013. Cabalo Decl. ¶ 3. The parties did not reach an agreement as to damages, attorney's fees, or costs.
The Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1367.
II. LEGAL STANDARD
Summary judgment is proper when a "movant shows that 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). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by" citing to depositions, documents, affidavits, or other materials. Fed.R.Civ.P. 56(c)(1)(A). A party also may show that such materials "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)(B). An issue is "genuine" only if there is sufficient evidence for a reasonable fact-finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. Id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio , 125 F.3d 732, 735 (9th Cir. 1997).
Where the party moving for summary judgment would bear the burden of proof at trial, that party bears the initial burden of producing evidence that would entitle it to a directed verdict if uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of proof at trial, that party bears the initial burden of either producing evidence that negates an essential element of the non-moving party's claim, or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. If the moving party satisfies its initial burden of production, then the ...