United States District Court, S.D. California
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT
JEFFREY T. MILLER, UNITED STATES DISTRICT JUDGE
On
September 11, 2019, Plaintiff Scott Schutza
(“Plaintiff”) moved for summary judgment on his
claims brought under the Americans With Disabilities Act
(“ADA”) and California's Unruh Civil Rights
Act (“Unruh Act”) based on denial of an
accessible parking space, entrance doorway and transaction
counter at So Cal Trucks located at 10460 Mission Gorge Road
in Santee, California, on January 29, 2018. (Doc. No. 28.)
Plaintiff requested injunctive relief and statutory damages.
(Doc. 28-1 at 13-15.) Defendant So Cal Truck Accessories
& Equipment (“Defendant”) filed no opposition
or statement of non-opposition. A hearing on the motion was
held on October 21, 2019. Neither Defendant nor its counsel
appeared at the hearing. For the reasons stated below, the
motion is GRANTED IN PART and DENIED
IN PART.
If a
party fails to properly address another party's assertion
of fact, the court may “grant summary judgment if the
motion and supporting materials - including the facts
considered undisputed - show that the movant is entitled to
it.” Fed.R.Civ.P. 56(e). Under Local Rule 7.1.f.3.c.,
if an opposing party fails to file an opposition or statement
of non-opposition, that failure may constitute a consent to
the granting of the motion. The Ninth Circuit has made clear,
however, that “a nonmoving party's failure to [file
an opposition] does not excuse the moving party's
affirmative duty under Rule 56 to demonstrate its entitlement
to judgment as a matter of law.” Martinez v.
Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003).
Title
III of the ADA prohibits discrimination in public
accommodations. Kohler v. Bed Bath & Beyond of
California, LLC, 780 F.3d 1260, 1263 (9th Cir. 2015)
(citation omitted). A plaintiff is denied public
accommodations on the basis of disability if there was a
violation of “applicable accessibility
standards.” Moeller v. Taco Bell Corp., 816
F.Supp.2d 831, 847 (N.D. Cal. 2011) (citations omitted). A
facility's accessibility is defined in part by the ADA
Accessibility Guidelines. Chapman v. Pier 1 Imports
(U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011). A
plaintiff can demonstrate denial of public accommodations
“if the defendant failed to remove architectural
barriers where such removal was readily achievable.”
Lozano v. C.A. Martinez Family Ltd. P'ship, 129
F.Supp.3d 967, 972 (S.D. Cal. 2015); see also 42
U.S.C. § 12182(b)(2)(A)(iv).
With
respect to So Cal Truck's parking space reserved for
persons with disabilities, Plaintiff fails to demonstrate his
entitlement to judgment as a matter of law because he does
not show that the slope of the parking space was measured in
accordance with ADA standards. See Langer v. Garcia,
Case No. 18cv2374 VAP (FFMx), 2019 WL 1581407, at *4 (C.D.
Cal. Mar. 8, 2019) (finding that the running and cross slopes
must be calculated by comparing the respective ends of the
parking space). Plaintiff's motion for summary judgment
as to the parking space is therefore DENIED WITH
LEAVE TO AMEND. If Plaintiff chooses to file an
amended motion addressing this issue he must do so by
November 4, 2019. Defendant shall
have up to and including November 18,
2019 to file its response in opposition and
Plaintiff shall have up to and including November
28, 2019 to file his reply. The court sets a
tentative hearing date of December 16,
2019. All other dates in the court's
scheduling order (Doc. No. 22) remain in effect.
With
respect to So Cal Truck's entrance doorway and
transaction counter, during the hearing Plaintiffs counsel
conceded that, as of May 7, 2019, the entrance doorway and
transaction counter were compliant with ADA standards.
Plaintiffs claim for injunctive relief as to the entrance
doorway and transaction counter is therefore DENIED
AS MOOT. It can be inferred, however, that they
would not have been remedied but for Plaintiffs efforts.
Furthermore, Plaintiff submitted sufficient proof that he was
denied an accessible entrance doorway and transaction counter
based on the declaration from Plaintiffs investigator that on
May 7, 2018 the entrance doorway measured 26 inches wide and
the transaction counter measured 39 inches high. (Doc. No.
28-1 at 6.) Plaintiff points to ADA standards requiring
entrance doorways to be at least 32 inches wide and requiring
a portion of transaction counters to be no more than 36
inches high. (Doc. Nos. 7 at 6, 28-1 at 11.)
Plaintiff
has also established an Unruh Act violation because the
discrimination suffered by Plaintiff occurred within
California. Lentini v. Cal. Ctr. for the Arts, 370
F.3d 837, 847 (9th Cir. 2004) (holding that violating the ADA
is a per se violation of the Unruh Act); Cal. Civ. Code
§ 51(f) (providing that “[a] violation of the
right of any individual under the Americans with Disabilities
Act of 1990 . . . . shall also constitute a violation of this
section”). Under the Unruh Act, defendants are liable
“for each and every offense for the actual damages, and
any amount . . . . up to a maximum of three times the amount
of actual damage but in no case less than four thousand
dollars ($4, 000).” Cal. Civ. Code § 52(a). In his
Complaint, Plaintiff requests ...