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D'Lil v. Riverboat Delta King, Inc.

United States District Court, E.D. California

September 25, 2014

HOLLYNN D'LIL, Plaintiff,

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For Hollynn D'Lil, Plaintiff: Timothy S. Thimesch, LEAD ATTORNEY, Thimesch Law Offices, Walnut Creek, CA.

For Riverboat Delta King, Inc., Defendant: Charles L. Post, Chelcey Emiko Lieber, LEAD ATTORNEYS, Weintraub Genshlea Chediak Tobin & Tobin, Sacramento, CA; Scott M. Plamondon, LEAD ATTORNEY, Weintraub Genshlea Chediak, Sacramento, CA; Donna L. Holtz, Weintraub Tobin Chediak Coleman Grodin, Sacramento, CA.

For City of Sacramento, Defendant: Kathleen T Rogan, LEAD ATTORNEY, Sacramento City Attorney, Sacramento, CA.

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Plaintiff Hollynn D'Lil, a paraplegic, brought this action under the Americans

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with Disabilities Act, 42 U.S.C. § 12101 et seq. (" ADA" ) and analogous state laws against defendants Riverboat Delta King, Inc. (" Delta King" ) and the City of Sacramento arising out of the physical obstacles she allegedly encountered while visiting the Delta King. Delta King now moves for summary adjudication regarding certain alleged barriers pursuant to Federal Rule of Civil Procedure 56 or, alternatively, for a stay.

I. Factual & Procedural History

The Delta King was a five-story vessel built over eighty-five years ago in the late 1920s. It carried passenger traffic between Sacramento and San Francisco until 1940. After some wartime service with the federal government, it had become a derelict vessel by the 1960s. By the 1980s, it was submerged near Rio Vista to the middle of the third deck. In 1984, the Coyne family purchased the vessel and brought it to Sacramento for restoration.

From 1984 to 1989, the Coyne family rehabilitated the Delta King, converting it from a passenger vessel to a hotel with a restaurant, theatre, bar and grill, and banquet facilities. During the rehabilitation, the Delta King maintained many of its original characteristics, such as slanted floors and narrow door widths. It is now berthed at 1000 Front Street in Old Sacramento and, while it still floats, it is no longer a sea-worthy vessel.

Since its original rehabilitation, patrons are able to board the Delta King through one of two gangways. The Elevator Gangway leads to the second deck and incorporates a floating barge with an elevator and stairs and has two configurations depending on the water level of the Sacramento River. The Aft Gangway is less than twenty-five feet from the Elevator Gangway and leads directly to the third deck of the Delta King. Within the Delta King, an elevator provides access to the first three decks, but there is not an adequate means for disabled patrons to access the fourth and fifth decks.

The Delta Bar and Grill is on the fourth deck of the Delta King. Although disabled patrons are unable to access the fourth deck, the Delta King provides a cocktail seating area at the base of the main staircase on the third deck where patrons can order any drinks or food offered at the Delta Bar and Grill. When the Delta Bar and Grill features live music about two to three times per week, disabled patrons are able to hear the music from the third deck. The Delta Bar and Grill also has a TV for patrons to view, but there is not a TV available in the seating area on the third deck.

In her Complaint, plaintiff alleges claims under (1) the public services provisions of the ADA, 42 U.S.C. § 12132, against the city; (2) section 504 of the Rehabilitation Act of 1973 against the city, 29 U.S.C. § 794; (3) the public accommodations provisions of the ADA against Delta King and the city, 42 U.S.C. § 12182; (4) California Health and Safety Code section 19955 against Delta King and the city; (5) California Government Code section 4456 against the city; (6) the California Disabled Persons Act (" CDPA" ) against Delta King and the city, Cal. Civ. Code § 54 et seq.; (7) the Unruh Civil Rights Act against Delta King and the city, Cal. Civ. Code § 51 et seq.; (8) California Government Code section 11135 against the city; (9) California Government Code section 12948 against Delta King and the city; and (10) state law negligence against Delta King and the city.

Plaintiff's Complaint details thirty-five pages of barriers on the Delta King that allegedly violate the ADA and analogous state disability laws. (See Compl. Ex. 1.) Delta King's motion for summary judgment

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is limited to the following alleged barriers: 1) the slope of the gangways; [1] 2) vertical access to the fourth and fifth decks; 3) leveling of cambered decks; 4) removal of raised thresholds; and 5) configuration of the doors.[2]

II. Discussion

Summary judgment is proper " if the 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 material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.

Once the moving party meets its initial burden, the burden shifts to the non-moving party to " designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " The mere existence of a scintilla of evidence . . . will be insufficient; there must be

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evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.

A. Relevant Statutes

1. The ADA

The ADA prohibits discrimination against any individual on the basis of disability in a place of public accommodation. 42 U.S.C. § 12182(a). " The statute provides a 'comprehensive,' 'broad mandate' to eliminate discrimination against disabled persons, addressing both 'outright intentional exclusion' as well as the 'failure to make modifications to existing facilities and practices.'" Fortyune v. City of Lomita, 766 F.3d 1098, 2014 WL 4377467, at *2 (9th Cir. Sept. 5, 2014). " The concept of 'discrimination' under the ADA does not extend only to obviously exclusionary conduct--such as a sign stating that persons with disabilities are unwelcome or an obstacle course leading to a store's entrance." Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2001). " Rather, the ADA proscribes more subtle forms of discrimination--such as difficult-to-navigate restrooms and hard-to-open doors--that interfere with disabled individuals' 'full and equal enjoyment' of places of public accommodation." Id. (quoting 42 U.S.C. § 12182(a)). " [A] private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier) under the ADA." Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011).

The ADA specifically prohibits any person who owns, leases, or operates a place of public accommodation from " fail[ing] to remove architectural barriers" in existing facilities " where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). For newly constructed facilities or for " alterations" made to existing facilities, the ADA requires that the facilities be " readily accessible to and usable by individuals with disabilities." Id. § 12183(a)(1)-(2).

" Congress directed the Department of Justice . . . to issue regulations that provide substantive standards applicable to facilities covered under Title III." Or. Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1129 (9th Cir. 2003). " The[] standards lay out the technical structural requirements of places of public accommodation and are applicable 'during the design, construction, and alteration of such buildings and facilities . . . under the [ADA]." Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1080-81 (9th Cir. 2014) (quoting 28 C.F.R. pt. 36, app. A) (alterations in original). The Department of Justice first adopted the 1991 ADA Standards for Accessible Design, which are commonly referred to as the " ADAAG," and subsequently revised those standards in 1994. See 28 C.F.R. Pt. 36, app. A. In 2010, the Department of Justice adopted the 2010 Design Standards for Accessible Design (" 2010 Design Standards" ). The ADAAG was in effect for new construction and alterations until March 14, 2012, and the 2010 Design Standards became effective for new construction and alterations on or after March 15, 2012.

2. California Health & Safety Code Section 19955

Section 19955 of the California Health and Safety Code requires that all public accommodations adhere to the provisions of sections 4450 through 4461 of

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the California Government Code. Cal. Health & Safety Code § 19955(a). Section 4450 authorizes the State Architect to develop and submit building standards to ensure that all buildings and facilities are " accessible to and usable by persons with disabilities." Cal. Gov't Code § 4450. Although a plaintiff can obtain injunctive relief to remedy a violation of section 19955, see Cal. Civ. Code § 55, the statute " does not authorize an action for damages." Botosan v. Fitzhugh, 13 F.Supp.2d 1047, 1052 (S.D. Cal. 1998) (citing Donald v. Cafe Royale, Inc., 218 Cal.App.3d 168, 183, 266 Cal.Rptr. 804 (1st Dist. 1990)).

3. Unruh Civil Rights Act

The Unruh Act provides, in relevant part, that every person is " entitled to the full and equal accommodations, advantages, privileges, or services in all business establishments of every kind whatsoever" notwithstanding his or her disability. Cal. Civ. Code § 51(b). " Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51" is liable under UCRA for damages and attorney's fees. Id. § 52. Any violation of the ADA is also a violation of the Unruh Act. Id. § 51(f).

In order to recover under the Unruh Act for a violation of the ADA, a plaintiff need not show that he suffered intentional discrimination. Munson v. Del Taco, Inc., 46 Cal.4th 661, 665, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009). However, " [t]o the extent [p]laintiff seeks to make an Unruh Act claim separate from an ADA claim, she must allege intentional discrimination." Wilkins-Jones v. County of Alameda, 859 F.Supp.2d 1039, 1051 (N.D. Cal. 2012) (citations omitted); Munson, 46 Cal.4th at 668 (" [A] plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination . . . ." (citations and internal quotation marks omitted)).

4. California Disabled Persons Act

The CDPA provides that " individuals with disabilities shall be entitled to full and equal access . . . to . . . places of public accommodation." Cal. Civ. Code § 54.1. The CDPA also provides a private right of action whereby individuals who are denied admission to or enjoyment of public facilities can recover damages and attorney's fees. Id. § 54.3.

However, " a structural impediment does not violate the [CDPA] unless the impediment also violates a structural access standard." Hankins v. El Torito Rests., 63 Cal.App.4th 510, 522, 74 Cal.Rptr.2d 684 (1st Dist. 1998). The CDPA " does not impose an affirmative duty to eliminate access barriers except as required by specific building standards." Californians for Disability Rights v. Mervyn's LLC, 165 Cal.App.4th 571, 587, 81 Cal.Rptr.3d 144 (1st Dist. 2008) (citing Marsh v. Edwards Theatres Circuit, Inc., 64 Cal.App.3d 881, 134 Cal.Rptr. 844 (2d Dist. 1976)). Those standards, not " the [C]DPA's general guarantee of full and equal access," determine a defendant's liability under the CPDA. Id.

B. Access Infrastructure Under the ADA and California Law

1. Ramps vs. Gangways

At the time the Delta King was restored in 1984, the California Building Code (" CBC" ) required that ramps providing access to buildings or structures could not exceed a slope of 1 foot rise in 12 feet (" 12:1" ), or a grade of 8.33%. (Post Decl. Ex. 29 at 94.) Since enactment of the ADA in 1990, the parties agree that all relevant standards have similarly required a 12:1 slope ratio for ramps. For example,

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section 405.2 of the 2010 Design Standards provides that " [r]amp runs shall have a running slope not steeper than 1:12."

Delta King first contends that it was not required to comply with the 12:1 slope requirement for ramps in the 1984 CBC because the sloped access walkways to the Delta King are gangways, not ramps, and the CBC did not regulate gangways in 1984. Common sense dictates, however, that a gangway is simply a type of ramp. In fact, Delta King's copy of the Manuscript Plan Set repeatedly labels its pedestrian walkways providing access as " ramps." (See M. Coyne Decl. Ex. 7 at A-2 (Docket No. 59).) Delta King's citation to the Wikipedia National Dictionary's definition of a " gangway" as " an articulating bridge or ramp, such as from land to a dock or a ship" underscores that a gangway is simply a subspecies of a ramp. (Delta King's Mem. at 29:17-18 (Docket No. 54-1) (emphasis added)); see also 2010 Design Standards § 106.5 (defining " ramp" as " [a] walking surface that has a running slope steeper than 1:20" and " gangway" as " [a] variable-sloped pedestrian walkway that links a fixed structure or land with a floating structure" ) (emphasis added).

Therefore, although the sloped pedestrian walkways providing access to the Delta King are gangways, they also come under the broader description of a ramp. The fact that the various ADA and California regulations subsequently determined that the unique characteristics of some gangways justified exemptions from the 12:1 slope ratio for ramps does not mean that gangways were not regulated as ramps prior to the exceptions. The very creation of the exceptions confirms that the standard 12:1 ratio applied. Accordingly, the 12:1 slope in the CBC applied to Delta King's gangways when it was restored in 1984. To the extent Delta ...

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