United States District Court, E.D. California
ORDER GRANTING DEFENDANT EL MONTE'S MOTION FOR
A. MENDEZ, UNITED STATES DISTRICT JUDGE.
Scott Johnson (“Johnson”) brings this action
against Defendants Larry Compton (“Compton”) and
El Monte Rents, Inc. (“El Monte”), alleging
violations of the ADA and California law. ECF No. 1. El Monte
now moves for summary judgment, ECF No. 8, which Johnson
opposes, ECF No. 18.
FACTS AND PROCEDURAL BACKGROUND
a quadriplegic, visited or attempted to visit property
located at 4100 Florin-Perkins Road in Sacramento (the
“Property”) multiple times from June to November
2016. Compl. ¶ 20. Compton has owned the Property since
1997. Pl.'s Resp.to El Monte's Statement of
Undisputed Facts (“UF”) # 1, ECF No. 18-1. El
Monte has never owned or leased the Property. UF ## 2, 4. In
2008, Compton leased (and still leases) the Property to his
own company, Lucky Ventures. UF # 3.
Monte rents RVs through “dealer agents” such as
Lucky Ventures. UF ## 5, 6. In 2008, El Monte and Lucky
Ventures entered into a contract (“the
Agreement”), in which Lucky Ventures agreed to make El
Monte's RVs available at the Property. Compton Decl.,
Exh. 1, ECF No. 10; UF ##6, 8.
Agreement requires, among other things, that Lucky Ventures
conduct business for at least six days per week, allow El
Monte to install signs and advertising materials on the
Property, comply with governmental laws and regulations, and
defend and indemnify El Monte “from any and all claims
. . . caused by or arising directly or indirectly out of any
condition of the premises.” Agreement at 2, 4, 5, 7.
The Agreement also states: “El Monte RV hereby appoints
[Lucky Ventures] its agent for the sole purpose of operating
a non-exclusive rental agency at the aforesaid location in
accordance with this Agreement and [Lucky Ventures] hereby
accepts said appointment.” Agreement at 1.
Monte argues it does not own, lease, or operate a business on
the Property, and therefore Johnson cannot hold El Monte
liable for any of the Property's ADA violations. Mot. at
states: “[n]o individual shall be discriminated against
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 by any
person who owns, leases (or leases to), or operates a place
of public accommodation.” 42 U.S.C. § 12182.
concedes that El Monte never owned or leased the Property. UF
#2, 4. The sole question presented by El Monte's motion,
therefore, is whether El Monte “operates a place of
public accommodation” so as to give rise to liability
for ADA violations.
does not define “operates.” The Ninth Circuit has
stated “to operate means to put or keep in operation,
to control or direct the functioning of, or to conduct the
affairs of; manage.” Lentini v. Cal. Cent. for the
Arts, 370 F.3d 837, 849 (9th Cir. 2004) (citing Neff
v. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir.
1995)) (internal quotation marks omitted). Put simply, courts
must ask whether the defendant “had the power to
facilitate any necessary accommodation.” Id.
Monte argues Johnson cannot hold El Monte liable for ADA
violations because El Monte “has no control over the
alleged discriminatory conditions at the Property.”
Mot. at 11. El Monte analogizes its relationship with Lucky
Ventures and the Property to the franchisee/franchisor
relationships in Neff, Lemmons v. Ace Hardware
Corp., 2014 WL 3107842, at *1 (N.D. Cal. Jul. 3, 2014),
and U.S. v. Days Inn of Am., 1998 WL 461203, at *1
(E.D. Cal. Jan. 12, 1998), where the courts found the
plaintiffs could not hold the franchisors liable for ADA
violations at the franchisees' places of business. Mot.
Fifth Circuit decided Neff, but the Ninth Circuit
relied on it in Lentini for the definition of
“operates” under the ADA, so it is relevant here.
See Lentini, 370 F.3d at 849. The Neff
court concluded Dairy Queen was not an operator under the ADA
even though the franchising agreement gave Dairy Queen the
right to set standards for building and equipment maintenance
and to veto proposed structural changes at the franchise.
Neff, 58 F.3d at 1068.
in Lemmons, the agreement between Ace Hardware and
its franchisee Berkeley Hardware required Berkeley Hardware
“to abide by all federal and state laws, including
those pertaining to disability access.”
Lemmons, 2014 WL 3107842, at *7. Ace could terminate
the agreement if Berkeley Hardware did not comply with this
requirement. Id. The Lemmons court held
“while these contractual terms might provide an
additional incentive to Berkeley Hardware to comply with
federal and state laws, they do not grant Ace the
‘specific control' necessary to impose liability on
it.” Id. The Court found “no evidence to
show that Ace retained the authority under the agreement to
dictate the physical layout of the store, or that otherwise
participated in the alleged acts of discrimination against