United States District Court, Eastern District of California
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT (Doc. Nos. 43, 46)
This is a disability related lawsuit brought by Plaintiff Albert Curtis (“Curtis”) against Defendants Home Depot U.S.A., Inc. and HD Development of Maryland, Inc. (collectively “Home Depot”). Curtis alleges violations of Title III of the Americans with Disabilities Act (“ADA”), as well as violation of California law. Curtis initially identified 29 barriers at a Home Depot store, but through stipulation by the parties, only 10 barriers remain in dispute. See Doc. No. 52. Now before the Court are the parties' cross motions for summary judgment. For the reasons that follow, the motions will be granted in part and denied in part.
Curtis is a disabled individual. See JUMF 1. Curtis is paralyzed from his mid-section down to his feet and uses a manual wheelchair for mobility. See PUMF's 1, 3, 4. The Home Depot store located at 3500 Demaree St., Visalia, California (“the Store”) has areas that are open to the public, which are places of public accommodation. JUMF 2. The Store was built in 1995-1996, and therefore the new construction guidelines identified in the 1991 Americans with Disabilities Act Accessibility Guidelines (“ADAAG”), found at 28 C.F.F. Part 36 App. A, apply to the Store for purposes of determining whether a violation of the ADA existed at the time of Curtis's visits to the Store and whether any violations of the ADA continue to exist. See JUMF 3. Curtis visited the Store on April 3, 2013, see JUMF 5, made two visits in March 2013, made two visits in May 2013, and made two visits in June 2013. See PUMF 7. In addition to these visits, Curtis has visited the Store on numerous occasions. See PUMF 8, 37. Curtis has been patronizing the Store prior to 2000, and plans to return and continue to patronize the Store. See PUMF 40, 41. Curtis generally has a need to shop at the Store about once a month. See Curtis Dec. ¶ 34.
The area in front of the Store marked with yellow hash marks is the accessible route from the accessible parking area to the Store's main entrance. PUMF 9. During each of Curtis's documented visits to the Store, Curtis found that the accessible route from the accessible parking area to the entrance to the Store, as well as the entrance to nursery, were obstructed by merchandise for sale placed in the accessible route. See PUMF's 3, 5, 7, 10. Home Depot obstructed the accessible route around Christmas 2013 by placing a Christmas Tree display within the route. See PUMF 13. The Store's accessible route was also obstructed by merchandise in August 2007. See PUMF 14. The accessible route from the accessible parking area was often reduced to zero width due to displays of merchandise. See PUMF 49. When the accessible route was blocked by merchandise during Curtis's visits, Curtis would have to move his manual wheelchair into the area used by vehicles in order to get into the Store. See PUMF 50; see also PUMF 55. Curtis has complained to Store management for years about their placing merchandise in the accessible path, but nothing has been done. See PUMF 43. At some point, Curtis had a conversation with a Store manager named Brent about the lack of an accessible route. See PUMF 44. Brent was rude and stated that Home Depot could do whatever it wanted to do and had no obligation to move the merchandise to provide Curtis with an accessible route of travel. See id.
A written policy was provided to Store employees via e-mail prior to Store Manager Joseph Wall's April 2014 deposition. See PUMF 15. The written policy requires that the path of travel to the entrance be kept clear. See id. For at least 5 years, Home Depot has had a policy of keeping the accessible route clear of obstructions. See PUMF 16.
Cross motions for summary judgment are evaluated separately under the same standards that apply to single summary judgment motions. See Pintos v. Pacific Creditors Ass'n, 565 F.3d 1106, 1111 (9th Cir. 2009); ACLU v. City of Las Vegas, 466 F.3d 784, 790 (9th Cir. 2006). Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is “genuine” as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Herbert Schenk, P.C., 523 F.3d 915, 923 (9th Cir. 2008); Soremekun, 509 F.3d at 984. If a moving party fails to carry its burden of production, then “the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot “'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that „sets forth specific facts showing that there is a genuine issue for trial.'” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
The opposing party's evidence is to be believed, and all justifiable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a “justifiable inference” need not be the most likely or the most persuasive inference, a “justifiable inference” must be rational or reasonable. See Narayan, 616 F.3d at 899. Inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). “A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial.” Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a “motion for summary judgment may not be defeated . . . by evidence that is „merely colorable' or „is not significantly probative.'” Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.
Home Depot argues that summary judgment is proper because the alleged remaining barriers are either not actually barriers or have been remedied. For those barriers which have been remedied, claims based on such barriers are now moot. Because there are no violations of the ADA, the Court should grant summary judgment on all of the ADA claims and decline to exercise supplemental jurisdiction over Curtis's state law claims.
Curtis argues that the evidence shows that ADA violations remain. Curtis argues that Home Depot does not address his contention that some barriers are reoccurring, despite policies to the contrary. Furthermore, measurements taken by Home Depot were not properly converted into percentages (as opposed to angles), and upon proper conversion, violations of the ADAAG are apparent. Because the evidence affirmatively establishes violations of the ADA and California law, Curtis argues that he should be awarded $4, 000 in statutory damages, be granted declaratory relief, and be granted an injunction that remedies the identified barriers.
Title III of the ADA (42 U.S.C. § 12181 et seq.) 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.” 42 U.S.C. § 12182(a); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011). The ADA requires that new business facilities be “readily accessible to and usable by individuals with disabilities, ” unless this would be “structurally impracticable.” 42 U.S.C. § 12183(a)(1); Oliver, 654 F.3d at 905; see Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011). “In general, a facility is readily accessible to and usable by individuals with disabilities if it meets the requirements . . . in the ADAAG, which is essentially an encyclopedia of design standards.” Oliver, 654 F.3d at 905. For businesses built after January 26, 1993, new construction and alterations must comply with the applicable ADAAG. See Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d 971, 976 (9th Cir. 2010). If a place of public accommodation is inconsistent with the applicable ADAAG standards, then a plaintiff may bring a civil action on the basis that the offending design feature constitutes a barrier that denies full and equal enjoyment of the premises. Oliver, 654 F.3d at 905; see Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). As long as the plaintiff has encountered one barrier, he may seek relief for unencountered barriers as well. Chapman, 531 F.3d at 944. A private plaintiff can only obtain injunctive relief (i.e. removal of the barrier) under Title III of the ADA, and may not obtain monetary damages. Oliver, 654 F.3d at 905; Molski, 481 F.3d at 730. As such, “a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting [an] ADA claim.” Oliver, 654 F.3d at 905; see Chapman v. Starbucks Corp., 2011 U.S. Dist. LEXIS 3570, *11 (E.D. Cal. Jan. 6, 2011); Hubbard v. 7-Eleven, Inc., 433 F.Supp.2d 1134, 1145 (S.D. Cal. 2006); Parr v. L&L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1087 (D. Haw. 2000); Independent Living Res. v. Oregon Arena Corp., 982 F.Supp. 698, 771 (D. Or. 1997). Courts often find that the voluntary cessation exception to mootness does not apply once an ADA barrier has been removed because of the expense and nature of the removal makes it highly unlikely that the barrier will reoccur. See Hickman v. Missouri, 144 F.3d 1141, 1143-44 (8th Cir. 1998); Houston v. 7-Eleven, Inc., 2014 U.S. Dist. LEXIS 12209, *2-*3 (S.D. Fla. Jan. 31, 2014); Independent Living, 982 F.Supp.2d at 774.
In December 2013, Curtis's expert Michael Bluhm visited the Store and detected a number of alleged barriers. In August/September 2014, the Store's Manager Joseph Wall (“Wall”) declared that various corrective actions by Home Depot had been taken. Wall, and Home Depot's attorney Allison Kleaver (“Kleaver”), submitted declarations and new pictures of the alleged barriers identified by Bluhm during his December 2013 visit. In December 2014, Bluhm revisited the Store and took additional measurements. The essence of the parties' dispute is whether ten alleged ADA barriers are now moot because of Home Depot's corrective actions. The Court will address the ten alleged barriers separately.
1. Obstruction of Accessible Route – FAC ¶ 10(a)
Under the 2010 ADAAG, an accessible route must be at least 36” wide, although the route may be reduced to 32” wide for a length of no more than 2 feet. See 2010 ADAAG § 403.5.1.Department of Justice regulations for Title III of the ADA require public accommodations to “maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities.” 28 C.F.R. § 36.211(a); Moeller v. Taco Bell Corp., 816 F.Supp.2d 831, 858 (N.D. Cal. 2012). It is not sufficient to provide an accessible route if that feature is not maintained in a manner that enables individuals with disabilities to use it. Moeller, 816 F.Supp.2d at 858. Failing to properly maintain an accessible route, including keeping the route free of obstructions, may violate the ADA. Id. However, there is no liability for “isolated or temporary” interruptions to accessibility. 28 C.F.R. § 36.211(b); Chapman v. Pier 1 Imports, 870 F.Supp.2d 995, 1008 (E.D. Cal. 2012).
Here, there is no dispute that the accessible pathway in front of the Store is slightly wider than 48 inches wide. See Wall Dec. ¶ 5 & Ex. 1. There is also no dispute that the Store has a policy against obstructing accessible routes. See Wall Dec. Ex. 2. In pertinent part, the policy prohibits “the placement of merchandise, product displays, or shopping carts on the sidewalks or wheelchair accessible parking and the [Store] entrance and exit, or in the accessible areas of the parking lot.” Id. This evidence indicates that there are no current violations concerning the width of accessible routes to the Store.
Nevertheless, the evidence does not show that Home Depot adequately maintains a 36” width. First, Curtis's declaration indicates that he has experienced an “obstructed route” (a route whose width is less than regulatory limits) on numerous occasions, including during 2012 and 2013. See Curtis Dec. ¶¶ 13, 18, 22-28. Photographs taken by Curtis also affirmatively show obstructions in the form of merchandise (barbecue grills, lawn mowers, and large boxes) in the accessible route. See Curtis Dec. Exs B-G. Although there were no measurements taken with respect to the photographs, it is generally apparent that the width is considerably less than 32”. See id. Also, Curtis has been utilizing a wheelchair sufficiently long to opine whether an area is less than 32” wide, and he declares that he regularly encounters obstructions that narrow the width of the route to less than 32”. See id. at ¶¶ 16, 22-28; cf. Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013) (disabled person's experience was a sufficient basis to opine regarding measurements of possible barriers). Second, the photographic evidence and Curtis's declaration do not demonstrate a stray piece of merchandise that a customer may have left in the route, rather they demonstrate the deliberate placement of merchandise for sale by Home Depot. Such deliberate placement of merchandise by Store employees is not “temporary or isolated.” See Chapman, 870 F.Supp.2d at 1009-10. Given these considerations, Curtis has shown that Home Depot violated 2010 ADAAG § 403.5.1 and 28 C.F.R. § 36.211(a) by not maintaining an unobstructed accessible route.
Again, there is no evidence that Home Depot is currently violating 2010 ADAAG 403.5.1 and 28 C.F.R. § 36.211(a). However, the Court cannot agree that Home Depot's voluntary cessation of the offending conduct has mooted the issue. Under the voluntary cessation exception to mootness, mere cessation of illegal activity in response to pending litigation does not moot a case unless it is shown that the “allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000); Rosemere Neighborhood Ass'n v. EPA, 581 F.3d 1169, 1173 (9th Cir. 2009).
Here, Home Depot argues that its policy against obstruction combined with the acts of Wall in inspecting the route show that the route is maintained and the issue is moot. The Court disagrees. Wall testified at his deposition that Home Depot has had some policy against obstructing accessible routes for about 5 years. See Wall Depo. 165:24-166:8. However, Curtis declared that he has complained to Store management about obstructions in the accessible routes from merchandise and displays for the last 2 to 3 years, but the problem was not remedied. See Curtis Dec. ¶¶ 18-19. In fact, one manager was extremely dismissive of Curtis and denied that there was even a problem with merchandise obstructing the accessible route. See id. at ¶ 20. These complaints would have been made at a time when a Home Depot policy against obstruction was in place. See Wall Depo. 165:24-166:8; Curtis Dec. ¶¶ 18-20. In other words, whatever policy was in force did not prevent Curtis from experiencing non-temporary obstructions on numerous occasions, nor did the existence of the policy change results when Curtis complained to store managers. Further, the policy that has been produced for the Court's review was apparently shown to Wall for the first time a few months before his April 2014 deposition. See Wall Depo. 134:22-136:25. This suggests that the policy is not commonly known to Home Depot employees and managers, and that there is a new emphasis on keeping accessible routes free from obstruction. Finally, unlike other barriers, Home Depot could easily revert to obstructing the accessible routes through placement of merchandise or displays. The barrier involved is not so much structural in nature, as it is a maintenance issue. Redesign, new construction, renovation, or any type of structural modification is not necessary in order to keep the accessible route unobstructed with merchandise. Obstruction merely depends on Home Depot ordering an employee to place merchandise in or near the accessible route. Given the nature of the barrier, what appears to be a relatively new policy, and Curtis's experiences despite a 5-year old policy against obstruction, Home Depot's voluntary cessation of obstructing the accessible route does not moot the controversy. Cf. Hickman, 144 F.3d at 1144 (noting that the ADA compliance in that case was “far more than a mere voluntary cessation of an alleged illegal conduct, where we would leave the defendants free to return to their old ways, ” and noting that the resumption of the challenged conduct “does not depend solely on the defendants' capricious actions.”).
Because the issue is not moot, and Curtis has shown improper maintenance of the accessible route to the Store entrance, summary ...