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O'Campo v. Golden Bear Restaurant Group Inc.

United States District Court, E.D. California

July 11, 2019

DIMAS O'CAMPO, Plaintiff,
v.
GOLDEN BEAR RESTAURANT GROUP, INC., et al., Defendants.

          MEMORANDUM AND ORDER DENYING PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Troy L. Nunley, Judge

         This matter is before the Court on Plaintiff Dimas O'Campo's (“Plaintiff”) Motion for Partial Summary Judgment (ECF No. 18) and Defendants Golden Bear Restaurant Group, Inc., Joseph Polati, and Traci Polati's (collectively, “Defendants”) Motion for Summary Judgment (ECF No. 17). Defendants oppose Plaintiff's Motion for Partial Summary Judgment (ECF No. 19) and Plaintiff filed a reply (ECF No. 23). Plaintiff opposes Defendants' Motion for Summary Judgment (ECF No. 20) and Defendants filed a reply (ECF No. 22). For the foregoing reasons, the Court hereby DENIES Plaintiff's Motion for Partial Summary Judgment and GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment.

         I. Factual and Procedural Background

         A. Factual Background

         Plaintiff has severe brain damage, which affects his ability to walk, talk, see, and stand. (ECF No. 22-1 ¶ 1.) Plaintiff requires the use of a cane and/or wheelchair, and often a mobility equipped vehicle when traveling in public. (ECF No. 22-1 ¶ 2.) Plaintiff visited the Arby's Restaurant (“the Restaurant”) at issue multiple times, including visits on June 17, 2015, and August 11, 2015. (ECF No. 18-9 ¶ 2.) While at the Restaurant, Plaintiff alleges he encountered multiple barriers including: (1) a steep slope in the disabled parking space; (2) a steep slope in the access aisle in the parking lot; (3) an International Symbol of Accessibility (“ISA”) sign at the entrance door that was not the correct height; (4) an entrance door with an inaccessible “panel” handle; (5) a toilet tissue dispenser in the restroom mounted too far from the front of the toilet; (6) pipes beneath the sink in the restroom which were improperly and incompletely wrapped; (7) a mirror in the restroom which was mounted too high; (8) a soap dispenser in the restroom which was mounted too high; and (9) a paper towel dispenser which required twisting, pinching, and/or grasping and was difficult to use. (ECF No. 22-1 at 3.)

         Plaintiff concedes that Defendants have remediated five access barriers, rendering them moot. (ECF No. 18-1 at 11.) The five remediated access barriers include: (1) the ISA sign at the entrance door that was not posted at the correct height; (2) the entrance door with an inaccessible “panel” handle; (3) the mirror in the restroom which was mounted too high; (4) the soap dispenser in the restroom which was mounted too high; and (5) the paper towel dispenser which required twisting, pinching, and/or grabbing and was difficult to use. (ECF No. 18-1 at 11.) Plaintiff states that the remaining barriers violate both the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) and Title 24 of the California Building Code (“CBC”). (ECF No. 4 ¶ 14.) Together, the ADAAG and the CBC govern the requirements for new and existing construction under the ADA.[1] (ECF No. 17-6 at 2-4.) Plaintiff asserts that at least one of the Restaurant's disabled parking spaces has slopes and/or cross slopes that are too steep, which makes it difficult for him to exit a vehicle. (ECF No. 4 ¶ 10.) Plaintiff states that the Restaurant's access aisle has slopes and/or cross slopes that are too steep, due to an encroaching built-up curb ramp, which makes it difficult for him to unload or transfer from his wheelchair into a vehicle. (ECF No. 4 ¶ 10.) Further, Plaintiff alleges that the toilet tissue dispenser is mounted too far from the front of the water closet and that the pipes beneath the sink are improperly and incompletely wrapped, which causes a risk that Plaintiff will burn his legs while washing his hands. (ECF No. 4 ¶ 10.) Due to these barriers, Plaintiff alleges he is prevented from enjoying full and equal access to the Restaurant. (ECF No. 4 ¶ 10.)

         Defendants retained the services of Certified Access Specialist Kim Blackseth. (ECF No. 17-5 at 1-2.) On June 12, 2017, Blackseth performed a site inspection at the Restaurant and submitted a report (“Blackseth report”) of his findings to Defendants. (ECF No. 17-5 at 2-3.) Blackseth opined that: (1) there is no built-up curb ramp within the access aisle because the curb ramp is located in front of the access aisle; (2) the toilet tissue dispenser is 7”-9” in front of the toilet in the restroom; (3) the lavatory drain and supply pipes in the restroom are insulated; and (4) the base of the access aisle has a slope in the direction of travel of 4.1%. (ECF No. 17-5 at 3; ECF No. 17-6 at 8.) Blackseth recommended Defendants modify the access aisle and parking stalls to provide a slope of 2% maximum. (ECF No. 17-6 at 8.) Following the Blackseth report, Defendant Golden Bear Restaurant Group, Inc.'s President, Nigel Nary hired a grading contractor to resurface the disabled parking area to a new slope of 2% or less. (ECF No. 17-3 at 2.) Nary received an invoice for the construction on August 26, 2017, and the work was completed by September 11, 2017. (ECF No. 22 at 8.)

         Defendants confirmed with Plaintiff's counsel that the barriers had been remodeled and removed in early October 2017. (ECF No. 20-2 ¶ 3.) Plaintiff's counsel, Stephanie Ross visited the Restaurant to determine whether this was true. (ECF No. 20-2 ¶ 4.) Ross utilized a digital level and tape measure to measure the slope of the disabled parking spaces, the slope of the access aisles, and the distance from the edge of the water closet to centerline of the toilet paper dispenser. (ECF No. 20-2 ¶¶ 5-12.) She took pictures of these measurements and observations, including the pipes beneath the lavatories, and submitted this evidence in the form of a declaration. (See ECF Nos. 20-2 & 20-3.)

         B. Procedural Background

         On September 9, 2015, Plaintiff filed a First Amended Complaint (“FAC”) alleging Defendants violated the Americans with Disabilities Act of 1990 (“ADA”), California's Unruh Civil Rights Act, and California's Disabled Persons Act. (ECF No. 4.) Moreover, Plaintiff's FAC alleged Defendants violated Part 5.5 of the California Health and Safety Code (§§ 19955 et seq.) and/or California Government Code § 4450 thereby denying Plaintiff full and equal access to public facilities. (ECF No. 4 at 10.) Plaintiff requested injunctive relief, declaratory relief stating that Defendants violated the ADA for the purposes of California's Unruh Act or Disabled Persons Act damages, statutory damages, attorney's fees and costs, and prejudgment interest. (ECF No. 4 at 11.)

         On October 19, 2017, Defendants moved for summary judgment arguing that summary judgment is proper because “no barriers exist.” (ECF No. 17-1 at 4.) On the same day, Plaintiff filed a motion for partial summary judgment arguing that summary judgment is proper because “there are barriers to access [the Restaurant] and [Plaintiff] encountered them.” (ECF No. 18-1 at 2.)

         II. Standard of Law

         A. Summary Judgment

         Summary judgment is appropriate when the moving party demonstrates no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, ” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 324 (internal quotations omitted). Indeed, summary judgment should be entered against a party who does not 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.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251-52.

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” First Nat'l Bank, 391 U.S. at 288-89. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee's note on 1963 amendments).

         In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.R.Civ.P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, 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. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. at 587.

         B. Americans With Disabilities Act

         “To prevail on a discrimination claim under Title III [of the ADA], a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability.” Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010); see generally 42 U.S.C. § 12182(a) (setting forth the ADA's general rule).

         Satisfying the first element of a disability discrimination claim under the ADA requires proof that a plaintiff suffers from “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Walking is one of the major life activities defined by the ADA. Id. § 12102(2)(A). The second element of an ADA disability discrimination claim is met if the defendant is a “sales or rental establishment, ” because such an establishment qualifies as a public accommodation subject to the ADA. Id. § 12181(7)(E).

         To satisfy the third element of a disability discrimination claim, a plaintiff may demonstrate that the facility in question contains barriers whose removal is readily achievable but have not been removed. Id. § 12182(b)(2)(A)(iv). Therefore, a plaintiff may meet its burden to demonstrate denial of a public accommodation due to disability by submitting evidence that the facility in question violates applicable accessibility standards. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945-47 (9th Cir. 2011) (en banc).

         i. ...


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