United States District Court, C.D. California
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [DKT. 27]
D. PREGERSON United States District Judge.
before the Court is Plaintiff Daniel Lopez’s Motion for
Summary Judgment. Having considered the submissions of the
parties and heard oral argument, the Court grants the motion
and adopts the following Order.
is a paraplegic, and uses a wheelchair for mobility.
(Declaration of Daniel Lopez in Support of Motion (Dkt.
27-5), ¶ 2.) In October 2013, Plaintiff went to
Defendant’s store, “Frank’s Market”
(“the market”), to buy drinks, but found there
was no accessible entrance. (Decl. Lopez, ¶ 4-5.) The
entrance to the market had two steps, which were too high for
Plaintiff to navigate in his wheelchair. (Decl. Lopez, ¶
4-5.; Declaration of Victor Garcia in Support of Motion (Dkt.
27-6) ¶ 4; Exhibit 4 in Support of Motion (Dkt. 27-7).)
Plaintiff asked a person he believed to be the owner to
assist him to get the drinks. (Decl. Lopez, ¶ 5-7.) The
owner selected drinks in sizes larger than Plaintiff wanted
and charged Plaintiff for unwanted items. (Id. at
¶ 7.) Plaintiff alleges that he has been deterred from
visiting the market because it is not accessible to him.
(Id., at ¶ 11.)
complaint alleges causes of action under the Americans with
Disabilities Act (ADA) and California’s Unruh Civil
Rights Act. 42 U.S.C. § 12182 (b)(2)(A)(iv); Cal. Civ.
Code § 51 (f). Plaintiff now moves for summary judgment
and seeks (1) an Order from the Court requiring Defendant to
provide an accessible entrance to the market; and 2) judgment
in favor of Plaintiff for statutory damages of $4, 000, plus
judgment is appropriate where the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show “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 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. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). All reasonable inferences from the
evidence must be drawn in favor of the nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
242 (1986). If the moving party does not bear the burden of
proof at trial, it is entitled to summary judgment if it can
demonstrate that “there is an absence of evidence to
support the nonmoving party’s case.”
Celotex, 477 U.S. at 323.
the moving party meets its burden, the burden shifts to the
nonmoving party opposing the motion, who must “set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 256. Summary
judgment is warranted if a party “fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. A genuine issue exists if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, ” and
material facts are those “that might affect the outcome
of the suit under the governing law.”
Anderson, 477 U.S. at 248. There is no genuine issue
of fact “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving
party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
not the court’s task “to scour the record in
search of a genuine issue of triable fact.” Keenan
v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has
an obligation to lay out their support clearly. Carmen v.
San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th
Cir.2001). The court “need not examine the entire file
for evidence establishing a genuine issue of fact, where the
evidence is not set forth in the opposition papers with
adequate references so that it could conveniently be
argues that the lack of a wheelchair ramp at
Defendant’s market constitutes a barrier, and that
Defendant’s failure to remove that barrier violates
Plaintiff’s rights to full and equal access under the
ADA and California’s Unruh Civil Rights Act.
failure to remove architectural barriers in existing public
accommodation facilities is discriminatory if such removal is
readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv).
Barrier removal is readily achievable when it is
“easily accomplishable and able to be carried out
without much difficulty or expense.” 42 U.S.C. §
12181(9). If barrier removal is not readily achievable, the
ADA specifies that the public accommodation must “make
such goods, services, facilities, privileges, advantages or
accommodations available through alternative methods, if such
methods are readily achievable.” Id. §
has submitted photographs of the market showing the two steps
up from the sidewalk to the entrance to the market. (Mot.,
Ex. 4 (Dkt. 27-7).) Defendant does not dispute that the
market had inaccessible steps on the date of
Plaintiff’s visit, nor that removal of that barrier was
readily achievable. Indeed, Defendant’s Response to
Interrogatory #10, which Defendant attaches to his
Opposition, but does not discuss, admits that the steps have
since been replaced by a ramp.
proceeding pro se, instead argues that he has not received
any notice from Plaintiff of the need to provide disabled
access. However, “ADA plaintiffs are not required to
provide pre-suit notice to defendants.” Skaff v.
Meridien North America Beverly Hills, 506 F.3d 832, 845
(9th Cir. 2007). The fact that Plaintiff never ...