United States District Court, E.D. California
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.
ORDER GRANTING DEFENDANTS CENTRAL VALLEY COMMUNITY
SPORTS FOUNDATION AND JEFF BLAIR'S MOTION FOR PARTIAL
SUMMARY JUDGMENT (DOC. 75)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
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
(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.)
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.
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.)
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
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.
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.)
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.)
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.)
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.)
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.)
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).
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.”
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 ...