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Duarte v. M & L Brothers Pharmacy Inc.

United States District Court, Central District of California

November 4, 2014

M&L BROTHERS PHARMACY INC.; DOES 1-10, inclusive, Defendants.




Before the Court are Defendant M&L Brothers Pharmacy’s Motion for Summary Adjudication and Plaintiff Francisco Duarte’s Motion for Summary Judgment. (ECF Nos. 16, 19.) Duarte’s claims against M&L arise out of barriers to handicap accessibility that he allegedly encountered in the parking lot of Victory Drug Store, a business owned by M&L. This Court’s subject-matter jurisdiction is based on Duarte’s claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.

M&L moves for summary judgment on Duarte’s ADA claim, arguing that the claim is now moot, and asks the Court to decline to exercise supplemental jurisdiction over the remaining state- and common-law claims. Conversely, Duarte moves for summary judgment on all of his claims, arguing that barriers in violation of the ADA still exist in the parking lot. For the reasons discussed below, the Court GRANTS M&L’s Motion (ECF No. 16) and DENIES Duarte’s Motion (ECF No. 19).


Duarte is a paraplegic and uses a wheelchair for mobility. (Duarte Decl. ¶ 2.)[1] He states that “on or around” August 2, 2013, following his doctor’s suggestion, he went to the Victory Drug Store to pick up a prescription. (Id ¶ 5.) When he entered the parking lot adjacent to the drug store, he found that there were no parking spots reserved for people with disabilities. (Id ¶ 6.) Duarte states that he had no option but to park in a regular spot. (Id ¶¶ 7–8.)

On January 2, 2014, after his visit to the Victory Drug Store, Duarte filed the Complaint against M&L asserting claims for (1) violations of the ADA; (2) violations of the Unruh Civil Rights Act, California Civil Code section 51; (3) violation of the California Disabled Persons Act, California Civil Code section 54; and (4) negligence. (ECF No. 1.) As alleged in the Complaint, Duarte’s claims are based on improper signage and striping in the Victory Drug Store parking lot as well as an inadequate number of handicap-accessible parking spaces. (Compl. ¶¶ 14-19.) M&L owned and operated Victory Drug Store at the time of Duarte’s visit. (Ans. ¶ 2.)

M&L filed the present Motion for Summary Adjudication on September 9, 2014. (ECF No. 16.) In support of the Motion, an officer of M&L states that he paid Centerline Striping to install a handicap-accessible parking space on July 31, 2013. (Jones Decl. ¶¶ 13-14.) The work was allegedly performed before the bill was paid. (Id.)

On September 29, 2014, Duarte filed his Motion for Summary Judgment. (ECF No. 19.) Duarte’s Motion is largely based on an expert declaration that states that while the signage, striping, and number of parking spots in the drug store parking lot are now compliant with the ADA, the slope of the handicap parking spaces exceeds the slope permitted by the ADA. (See Bishop Decl. ¶ 23.)

The Court held a hearing on both Motions on October 27, 2014 and the Motions are now before the Court for decision.


Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and identify specific facts through admissible evidence that show a genuine issue for trial. Id.; Fed.R.Civ.P. 56(c). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill’s Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). A disputed fact is “material” where the resolution of that fact might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. Where the moving and nonmoving parties’ versions of events differ, courts ...

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