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McKeon v. Central Valley Community Sports Foundation

United States District Court, E.D. California

December 27, 2019

MEGAN MCKEON; LAILA NELA, a minor by and through her guardian ad litem TINA NEAL; and TINA NEAL, Plaintiffs,
CENTRAL VALLEY COMMUNITY SPORTS FOUNDATION, a non-profit corporation dba GATEWAY ICE CENTER; and JEFF BLAIR, an individual; and DOES 1 through 50, inclusive, Defendants.



         Currently before the Court is Defendants Central Valley Community Sports Foundation (“CVCSF”) and Jeff Blair's (collectively “Defendants”) motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56.[1] (Doc. 75.) Plaintiffs Megan McKeon, Laila Neal, a minor by and through her guardian ad litem, Tina Neal, and Tina Neal (collectively “Plaintiffs”) filed their opposition on December 6, 2019. (Docs. 82-85.) Defendants filed a reply on December 13, 2019. (Doc. 86-88.)

         The matter was heard before Magistrate Judge Barbara A. McAuliffe on December 20, 2019. Rachelle Golden appeared on behalf of Plaintiffs. Keith White appeared on behalf of Defendants. Having considered the record, the parties' briefing and arguments, and the relevant law, Defendants' motion for partial summary judgment will be granted.

         I. BACKGROUND

         Plaintiffs' operative complaint alleges that Megan McKeon is a “physically disabled” individual who at all times uses a wheelchair or arm braces for mobility due to a severe burn she sustained as a child. (Doc. No. 47 at ¶ 6). On June 26, 2016, Plaintiff Megan McKeon visited Gateway Ice Center, an ice-skating rink owned by CVCSF and managed by Jeff Blair. (Id. at ¶ 13.) On the day of McKeon's visit, Defendants' employees told Plaintiff McKeon that she would not be able to use her wheelchair on the ice during the general skating session. (Id.)

         Plaintiffs' complaint further alleges that Laila Neal is a “physically disabled” individual who solely uses a wheelchair due to Cerebral Palsy. She relies upon her mother and Plaintiff Tina Neal to assist her for mobility. (Doc. 47 at ¶ 7.) On January 6, 2017, Plaintiff Tina Neal was told by one of Defendants' employees that her daughter, Laila Neal, would not be allowed to be on the ice in her wheelchair. (Id. at ¶ 14.) On January 8, 2017, not wanting her daughter to miss a birthday party, Plaintiffs Tina and Laila Neal went to Defendants' ice rink and were prohibited from participating in ice-skating activities. (Id.)

         On March 13, 2018, Plaintiffs filed a complaint against Defendants alleging that they implemented a discriminatory policy in violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12182(a), and its California equivalent, the Unruh Act, Cal. Civ. Code § 51. (Doc. No. 1). On June 13, 2018, Plaintiffs filed a first amended complaint pursuant to a stipulation of the parties. (Doc. Nos. 15-17.) On December 7, 2018, the Court issued an order granting in part and denying in part Plaintiffs' motion for leave to file a second amended complaint. (Doc. No. 45.) Pursuant to the Court's order, Plaintiffs were granted leave to add a cause of action for violation of Section 504 of the Rehabilitation Act against Defendants, but were denied leave, without prejudice, to name Fresno Skating Center, Inc. and Terrance J. Cox as defendants or to add causes of action for Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress. (Id.)

         On March 29, 2019, Plaintiffs filed a motion for leave to file a third amended complaint seeking to add Central Valley NMTC Fund, LLC (the “Fund”) as a defendant to their claim for violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. (Doc. No. 60.) The Court denied Plaintiffs' motion for leave to amend based on futility, determining that the Fund did not operate the ice-skating program at issue. The Court also determined that the Fund could not be held liable for the alleged discriminatory conduct of a separate entity. (Doc. No. 67.)

         On November 15, 2019, Defendants filed the instant motion seeking partial summary judgment on Plaintiffs' Rehabilitation Act claim. Defendants contend that they are entitled to summary judgment as to this claim because neither CVCSF nor Blair received the requisite federal funding or federal financial assistance to support a Rehabilitation Act claim. (Doc. No. 76 at 2.)

         Plaintiffs opposed the motion on December 6, 2019, arguing that Defendants received federal financial assistance by way of loans from the Fund and Clearinghouse CDFI, and that CVCSF is an affiliate of the Fund, which receives federal financial assistance, and is subject to compliance with federal non-discrimination statutes as part of its participation in the New Market Tax Credits program. (Doc. No. 82 at 2-4.)

         Defendants replied on December 13, 2019, contending that Plaintiffs have cited no admissible evidence that either defendant received federal funds or financial assistance. (Doc. No. 86.)

         On December 19, 2019, on the eve of the hearing, Plaintiffs filed, without explanation, a supplemental declaration in support of their opposition. (Doc. No. 89.) Defendants filed objections to the supplemental declaration on December 20, 2019. (Doc. No. 90.)


         Summary judgment is appropriate when the pleadings, disclosure materials, discovery, and any affidavits provided establish 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 material fact is one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. Summary judgment must be entered, “after adequate time for discovery and upon motion, against a party who 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 Corp. v. Catrett, 477 U.S. 317');">477 U.S. 317, 322 (1986).

         The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. 3 at 323. The exact nature of this responsibility, however, varies depending on whether the issue on which summary judgment is sought is one in which the movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will have the burden of proof at trial, “the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case.” Id.

         If the movant satisfies its initial burden, the nonmoving party must go beyond the allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in [its] favor.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (emphasis in original). “[B]ald assertions or a mere scintilla of evidence” will not suffice in this regard. Id. at 929; see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational trier of ...

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