United States District Court, C.D. California
ORDER RE: DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
HONORABLE RONALD S.W. LEW Senior U.S. District Judge.
before the Court is Defendant Winchell's Donut Houses
Operating Company, LP (“Defendant”) Motion for
Summary Judgment, or, in the Alternative, Summary
Adjudication (“Motion”)  as to all claims in
the Complaint. Having reviewed all papers submitted
pertaining to this Motion, the Court NOW FINDS AND RULES AS
FOLLOWS: the Court GRANTS Defendant's Motion.
Martin Vogel (“Plaintiff”) is a “physically
disabled” T-3 paraplegic who requires the use of a
wheelchair when traveling in public. Compl. ¶ 8, ECF No.
1. Defendant owns, operates, and/or leases a Pizza Hut
Restaurant in Norwalk, California (the
“Restaurant”). Id. at ¶ 2.
visited the Restaurant on January 3, 2016. Decl. of Martin
Vogel (“Vogel Decl.”) ¶ 2, ECF No 33-1.
Plaintiff alleges that both the Restaurant's disabled
parking space and the access aisle are too steep, mainly due
to an encroaching built-up ramp. Compl. ¶ 10. Because
the parking space and access aisle are not level, Plaintiff
cannot easily transfer from a vehicle because his wheelchair
rolls, or a lift platform for his wheelchair cannot sit
level. Id. These barriers prevented Plaintiff from
full and equal access to the Restaurant, violating the
Americans with Disabilities Act (“ADA”) and
related state-law disability claims. Id.
Plaintiff filed this lawsuit, Defendant repaved the disabled
parking space and access aisle so that both comply with
current accessibility standards. Decl. of Tim Stockton
(“Stockton Decl.”) ¶ 1, ECF No. 32-3.
Currently, the parking space and access aisle slopes are no
steeper than 1:48, in conformity with the ADA and California
Building Code (“CBC”) standards. Id. at
¶ 2, Exs. A, B, ECF. Nos. 32:4-5.
February 9, 2016, Plaintiff filed this Complaint, alleging
Defendant violated the following: (1) the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et seq., by denying him “full and equal
enjoyment” of the Restaurant premises; (2) the
California Disabled Persons Act (“CDPA”),
California Civil Code § 54; (3) the Unruh Civil Rights
Act (“Unruh Act”), California Civil Code §
51, and (4) denial of full and equal access to public
facilities, California Health & Safety Code § 19955
et seq. Compl. ¶¶ 17, 36-38, 43-45, 48-51.
seeks declaratory judgment that Defendant violated the ADA.
Id. at ¶ 31. For each CDPA offense, Plaintiff
seeks actual damages, statutory minimum damages of $1, 000,
declaratory relief, and any other relevant remedies.
Id. at ¶ 37; Cal. Civ. Code § 54.3. For
each Unruh Act violation, Plaintiff seeks statutory minimum
damages of $4, 000. Compl. ¶ 45; Cal. Civ. Code §
52. Plaintiff also seeks injunctive relief and attorneys'
fees for any violation of California Health & Safety Code
§ 19955. Compl. ¶ 51; Cal. Health & Safety Code
March 20, 2017, Defendant filed its Motion . On March 28,
2017, Plaintiff filed his Opposition . On April 4, 2017,
Defendant filed its Reply and Evidentiary Objections [35-1]
to the Vogel Declaration [33-1].
FINDINGS OF FACT
Plaintiff's Complaint identifies two alleged barriers:
(1) a disabled parking space has excessive slopes due at
least in part to an encroaching built-up curb ramp; (2) the
access aisle has excessive slopes due mainly to an
encroaching built-up curb ramp. Def.'s Stmt. of
Uncontroverted Facts (“Def.'s SUF”) ¶ 1,
ECF No. 32-2; Pl.'s Stmt. of Genuine Disputes
(“Pl.'s Facts”) ¶¶ 1-2, ECF No.
33-4; Compl. ¶ 10.
Rule of Civil Procedure 56 states that a “court shall
grant summary judgment” when 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 fact is “material” for
purposes of summary judgment if it might affect the outcome
of the suit, and a “genuine issue” exists if the
evidence is such that a reasonable fact finder could return a
verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence, and
any inferences based on underlying facts, must be viewed in
the light most favorable to the opposing party. Twentieth
Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329