Opinion
Civil No. 04-1018-WQH-(WMc).
November 29, 2005
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Plaintiff's Motion for Summary Judgment and Defendants' Motion for Summary Judgment. On Friday, July 15, 2005, the parties appeared for oral argument before the Honorable William Q. Hayes. After considering the arguments raised by the parties in their briefing and during Oral Argument, the Court now issues the following rulings.
BACKGROUND
Plaintiff is a thirty-three year-old woman who has been a paraplegic since she was seventeen. Plaintiff uses a wheelchair when traveling in public. On December 14, 2003, Plaintiff visited Henry's Marketplace (hereinafter "the Store") in Pacific Beach, San Diego. According to Plaintiff, she encountered numerous architectural barriers that deprived her of full and equal access to the Store.Plaintiff's Complaint alleges violations of the ADA and state law for barriers inside the Store including (1) produce scales and bags that were out of reach, (2) aisles that were too close together, (3) a large toilet paper holder in the women's restroom that protruded into the maneuvering space in front of the water closet, interfering with her transfers, and located so far away that she couldn't reach it, (4) sanitary seat covers that were behind the water closet tank and unreachable, (5) pipes underneath the sink in the women's restroom that were not insulated, (6) a soap dispenser that was located too high for Plaintiff to use, (7) a paper towel dispenser that was mounted too high for Plaintiff to use, (8) a soap dispenser and paper towel holder that were blocked by a plastic garbage can, and (9) a lack of a designated check out stand for the disabled, leaving Plaintiff unable to use the Pay-Point credit card machine because it was too high and unable to sign a credit card receipt on the counter because the counter was too high. The Defendant disputes Plaintiff's allegations.
STANDARD OF REVIEW
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may meet this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress Co., 398 U.S. 144, 159-60 (1970).
If the moving party satisfies its initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)) (internal quotations omitted).
In ruling on a motion for summary judgment, "[t]he district court may limit its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated to "scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). The court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587. "Credibility determinations [and] the weighing of evidence . . . are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
When parties submit cross-motions for summary judgment on the same claim or issue, each motion must be considered on its own merits and analyzed under Rule 56. See Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on the motions. Id. That both parties assert that no genuine issues of material fact exist does not vitiate the court's responsibility to determine whether disputed issues of material fact are present. Riverside Two, 249 F.3d at 1132 (quoting United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978)).
DISCUSSION
As a preliminary matter, the Court notes that the facts underlying each of Plaintiff's claims are the same. Additionally, the arguments made by the parties in conjunction with the two motions overlap on numerous occasions. The Court will discuss each of the Motions in turn, but will reference the evidence offered as a whole, as the evidence offered in support of the Motions by the parties is identical.
On June 5, 2005, Defendants moved for Summary Judgment on all of Plaintiff's six claims. Specifically, Defendants move for Summary Judgment regarding Plaintiff's claim for (1) violation of the Americans with Disabilities Act; (2) violation of the California Disabled Persons Act; (3) violation of the Unruh Civil Rights Act; (4) violation of the California Health and Safety Code; (5) violation of the California Unfair Business Practices Act; and (6) negligence.
The Court notes that the Plaintiff has abandoned her negligence claim. See Manfredi Decl., ¶ 7.
Additionally, Plaintiff filed a Motion for Summary Judgment asking the Court to grant Summary Judgment on each of the same claims. The Court finds that Plaintiff has failed to meet its burden on both its Motion for Summary Judgment, and to survive Defendants' Motion for Summary Judgment. Therefore, for the reasons discussed below, the Court will deny Plaintiff's Motion and grant Defendants' Motion.
Defendants' Motion for Summary Judgment
I. Plaintiff's ADA claims
Plaintiff alleges that she encountered several barriers to access within the Store, resulting in a violation of the ADA. Namely, Plaintiff alleges that there were problems with the Store's checkout stands, problems relating to Store's produce scales and bags, problems relating to the width of the Store's aisles, and problems relating to the Store's women's restroom. With regard to Plaintiff's allegations regarding the women's restroom, Plaintiff specifically alleges that the pipes under the sink in the lavatory were improperly insulated, that the location of the toilet tissue dispenser was improper, and that the location of the wastebasket unlawfully obstructed Plaintiff's use of the soap, paper towel, and toilet seat cover dispensers.
Title III provides: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a).
In a private action under the ADA, a court may provide injunctive relief to "any person who is being subjected to discrimination on the basis of disability in violation of" the Act." Id. § 12188(a)(2). In addition, the Court may require a defendant to make its facility readily accessible to and usable by individuals with disabilities. Id. § 12188(a)(2). A plaintiff may show discrimination prohibited by the Act by showing a private entity's "failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). Additionally, when removal is not readily achievable, the entity incurs liability if it fails to make those goods, services and facilities "available through alternative methods if such methods are readily achievable," Id. § 12182(b)(2)(A)(v). Readily achievable means "easily accomplishable and able to be carried out without much difficulty or expense." 28 C.F.R. § 36.304(a).
To establish a prima facie case of discrimination under the ADA a plaintiff must show (1) that he or she is disabled, (2) that the location is a place of public accommodation, and (3) that he or she was denied full and equal treatment because of her disability. Access Now, Inc. and Resnick v. South Florida Stadium Corp., et al., 161 F. Supp. 2d 1357, 1363 (S.D. Fla. 2001).
For the reasons articulated below, the Court finds that Plaintiff has failed to show that she was denied full and equal treatment because of her disability, and she has failed to come forward with the requisite evidence on each of her claims.
A. Compliance of the Checkout Stands
Plaintiff argues that the Store's checkout stands violated here rights under the ADA. First, Plaintiff argues that providing an ADAAG-complaint checkout counter would be readily achievable, and the Store's failing to do so therefore denied Plaintiff full and equal enjoyment and use of the Store. Furthermore, Plaintiff argues that the Store either violated the ADAAG by not having properly identified accessible checkout aisles, or violated the ADAAG by not providing accessible checkout aisles at all. Finally, Plaintiff argues that she was denied full and equal use of the grocery store because she could not use the pay-point machine, and could not write a check.
In response to Plaintiff's argument, the Store argues that Plaintiff has not met her burden because she merely testified that she "did not notice" whether separate check-out stands for disabled customers actually existed at the Store. Def's MSJ, p. 7 (quoting Pltf's Depo V.II., 78:21-79:5). Furthermore, the Store argues that all check-out stands were wide enough for a wheelchair to pass through and that there existed two checkout stands specifically designated for use by persons with disabilities, both displaying the international symbol of accessibility. Additionally, the Store argues that Plaintiff's testimony, establishing that she successfully purchased her items at the check-out stand, reveals that the check-out stand presented no barrier. Finally, the Store argues that Plaintiff is not in a position to dispute whether or not check-out signs existed.
With regard to Plaintiff's allegation that the checkout stands lacked proper counters for her to sign documents, and that she could not use the credit card keypad, the Store argues that "Plaintiff admits that she paid cash for the items that she purchased and, therefore was not impacted in any way by these purported problems." Def's MSJ, p. 8; Pltf's Depo., 80:21-83:1; 146:20-148:25). Furthermore, the Store argues that even if Plaintiff had not paid cash, she cannot dispute that she was afforded "full and equal enjoyment and use" of the Store's checkout counters because "the Store has — and had — removable clipboards at all checkout stands that are readily available for use by customers to sign receipts, checks, or other documents, and that the credit card keypads at the checkout stands were within her reach and removable or can be handed to any customer by a Store Clerk." Def's Reply, p. 2; Pltf's Depo, 82:24-86:25; 147:13-148:3; Schrock Decl., ¶ 7.
In addition, the Defendant argues that Plaintiff has failed to meet her burden because Plaintiff's own ADA expert finds that the checkout stands are in full compliance with the ADAAG and California Building Code. See Settle Depo, 81:1-9.
Moreover, Defendants' expert Mr. Schrock testified that "[t]he store has had two checkout stands that are designated accessible for individuals with disabilities, both of which display the international symbol of accessibility." Schrock Decl., ¶ 4. In rebuttal to Mr. Schrock's testimony, Plaintiff cites ADAAG § 7.3(3) stating that "[s]ignage identifying accessible check-our aisles . . . shall be mounted above the check-out aisle in the same location where the check-out number or type of check-out is displayed." Plaintiff, however, has failed to come forward with any evidence to show that the store lacks the necessary signage. Other than her own testimony that she "did not notice" the aisles, The Court finds that Plaintiff has failed to set forth any evidence on this issue.
On summary judgment regarding an ADA claim, the Plaintiff has the burden of showing evidence of her disability, that the location is a place of public accommodation, and that she was denied full and equal treatment because of her disability. Access Now, Inc., 161 F. Supp. 2d at 1363. Here, there is no dispute that Plaintiff is disabled and that the Store is a place of public accommodation. Additionally, the Court finds that Plaintiff has failed to show evidence of the third element because it is apparent that Plaintiff received full and equal treatment during her checkout at the store.
The Court finds that Plaintiff has failed to show any material issues related to the checkout stands. Defendants argue that checkout stands exist, and Plaintiff does nothing to rebut this argument. Plaintiff's own expert testified that the checkout stands are in full compliance with the ADAGG and California Building Code. Other than conclusory allegations, Plaintiff fails to come forward with any evidence to show that the checkout stands do not comply with the ADAAG and California Building Code. Accordingly, the Court finds that Defendants are entitled to Summary Judgment on Plaintiff's claims as related to the Store's checkout stands.
B. Compliance of the Produce Scales and Bags
Plaintiff also alleges that she was denied full and equal treatment in the Store because the produce scales and bags were located above her reach. Plaintiff argues that during her initial visit to the Store "the produce scales and bags were inaccessible because they were `out of her reach.'" Pltf's Opposition, p. 9; Pltf's Depo, 89:2-11. Plaintiff first argues that produce bags and scales fall within the scope of the ADAAG, therefore requiring that the Store situate the produce bags and scales in a wheelchair accessible location. Plaintiff further argues that even if produce bags and scales fall outside of the scope of the ADAAG, the Store was "still required to implement a policy of lowering the store's produce scales . . . to a height that disabled patrons could reach and use. . . ." Pltf's Opposition, p. 13. Plaintiff claims that by refusing to enact such a policy, the Store has effectively denied Plaintiff full and equal enjoyment and use.
In response to Plaintiff's claims regarding the compliance of the produce scales and bags, the Store first argues that produce scales and bags are not covered by the ADA. Specifically, Defendant argues it is unclear whether the storage scales and bags fall within the ADAAG regulations. Furthermore, the Store argues that "even if produce scales and bags are regulated by the ADA . . . Plaintiff cannot dispute that there are numerous produce scales and bag stands in the Store that are, in fact, accessible to individuals with disabilities." Def's Reply, p. 3. Specifically, "Plaintiff cannot — and does not — dispute that there is another bag holder at a height accessible to individuals in a wheelchair located 11 feet from the bag stand, as measured by Plaintiff's expert." Id. Finally, the Store argues that Plaintiff could have requested assistance, which was readily available, and therefore Plaintiff has failed to show denial of access.
As noted above, the Plaintiff carries the burden of showing that she is disabled, that the Store is a public facility, and that Plaintiff has been denied full and equal treatment because of the location of the produce scales and bags. Access Now, Inc., 161 F. Supp. 2d at 1363. Here, the first two elements are not in dispute. In addition, as detailed below, the Court finds that Plaintiff has failed to meet her burden of showing a genuine issue of material fact regarding the third element, based on the placement of the Store's produce scales and bags.
The ADA Title III Technical Assistance Manual addresses ADA coverage of public accommodations and commercial facilities. With regard to the potential coverage of produce scales and bags under the ADA, the Manual provides: "Self-service shelves and displays must be on an accessible route but need not be lowered within the reach ranges of individuals who use wheelchairs." ADA Title III Technical Assist. Manual, ¶ III-7.5150. Plaintiff argues that storage scales and bags are not self-service shelves and displays but rather, are "other operable equipment" that must be placed at lower, reachable levels. However, The Court finds that Plaintiff has failed to put forth any evidence, aside from conclusory allegations, showing that the bags and scales are "other operable equipment" and are therefore within the scope of the ADAGG.
Plaintiff states the appropriate level is a maximum of 54 inches above the floor. See Pltf's Opposition, p. 16.
Assuming arguendo that produce bags and scales do fall within the scope of the ADA, Plaintiff has not met her burden to show that she was denied full and equal treatment because the particular bag and scale display was located outside of "her reach."
First, Plaintiff could have easily requested and received assistance in reaching the produce scales and bags. Plaintiff has made no argument, nor presented any evidence showing that such assistance was unavailable, or that the placement of the produce bags and scales in any other way denied her full and equal treatment.
Moreover, the Store submitted expert testimony in support of its Motion for Summary Judgment to show that there existed at least 10 other locations within the store where plastic bag holders were on an accessible route and within accessible reach range. Furthermore, "[p]laintiff cannot — and does not — dispute that there is another bag holder at a height accessible to individuals in a wheelchair located 11 feet from the bag stand. . . ." Pltf's MSJ, Exh. B(2) Gibbens Decl. The Court finds that Plaintiff has failed to show that her inability to use the specifically disputed produce scale and bag display resulted in her denial of full and equal treatment within the Store. Furthermore, Plaintiff has failed to put forth any evidence showing that the use of another, lower situated bag holder would deny her of full and equal treatment within the Store. Therefore, even if the produce scales and bags do fall within the scope of the ADA, The Court finds that Plaintiff has failed to show how the Store denied her full and equal treatment.
Here, the Plaintiff carries the burden of showing that the placement of the produce scales and bags denied Plaintiff full and equal treatment within the Store. The Court finds that Plaintiff has failed to do so, and accordingly, Summary Judgment is appropriate in favor of Defendants on Plaintiff's claims as related to the produce bags and scales.
C. Compliance of the Aisles
Plaintiff claims that she was denied full and equal treatment within the store because two or three of the Store's aisles were too narrow. Plaintiff testified that the store did not comply with the ADAAG requirement that any accessible route shall be at least 36 inches wide. Pltf's Opposition, p. 17; ADAAG § 4.3.3. Specifically, Plaintiff testified that her wheelchair is approximately 29 inches wide and her "husband had to push her through the aisles because her knuckles would scrape against the shelves if she attempted to propel herself." Pltf's Opposition, p. 17-18. Based on this information, Plaintiff concludes that the aisles did not meet the minimum 36 inch standard set forth in the ADAAG requirements. Id. at 18.
In response to Plaintiff's argument, the Store argues that Plaintiff "concedes that she never took any measurements of the aisles, and admits that she does not know the width of the aisles." Def's Reply, p. 4; Pltf's Depo, 96:11-14; 103:17-24; 131:18-24. Furthermore, the Store emphasizes that Plaintiff's own ADA accessibility expert testified that the aisles are " fully compliant with the ADA and California Building Code." Def's Reply, p. 4; Settle Depo, 129:7-18.
Here, the Court finds that the Plaintiff has failed to meet her burden. A nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586; see also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)) (internal quotations omitted). Here, while Plaintiff claims that the aisles are too narrow, the Court finds that Plaintiff has failed to meet her burden to come forward with any evidence, other than her own conclusory allegations, to show that the aisles are too narrow. In addition to testifying that she does not know the width of the aisles, Plaintiff provided an expert who opined that the aisles are compliant.
Additionally, the Court finds that the issue regarding the width, or lack thereof, of the aisles is moot because the aisle width is currently 36 inches, which is compliant with ADAAG regulations. As noted above, in a private action under the ADA, a court may provide injunctive relief to "any person who is being subjected to discrimination on the basis of disability in violation of" the Act." Id. § 12188(a)(2). In addition, the Court may require a defendant to make its facility readily accessible to and usable by individuals with disabilities. Id. § 12188(a)(2). A plaintiff may show discrimination prohibited by the Act by showing a private entity's "failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv).
Here, the Court finds that the issue regarding the aisles is moot. Because the aisles are compliant with the ADA regulations, Plaintiff has no remedy regarding this claim as there exists no barrier or act to enjoin. The Supreme Court has held that a complaint may be moot if the defendant meets "the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc., Et al., v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 190 (2000); see also United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968). In other words, "[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id.
In Friends of the Earth, the Court held that compliance regarding a facility is not moot because the prospect of future violations remained disputed. 528 U.S. at 193. The Court noted that "[t]he facility closure, like Laidlaw's earlier achievement of substantial compliance with its permit requirements, might moot the case, but . . . only if one or the other of these events made it absolutely clear that Laidlaw's permit violations could not reasonably be expected to recur." Id. The Court determined that the issue was not moot because "[t]he effect of both Laidlaw's compliance and the facility closure on the prospect of future violations is a disputed factual matter . . . for example . . . Laidlaw retains its . . . permit. . . ." Id.
In this case at bar, the issue regarding the width of the wheelchair aisles is moot. First, there is no indication, other than Plaintiff's allegation that she scraped her knuckles, that the aisles were ever narrower than 36 inches. However, assuming arguendo that the aisles were more narrow than the ADAAG regulations allow, the Plaintiff's own expert testified that the aisles currently comply with ADAAG regulations. Thus, it is currently undisputed that the aisles are in compliance with the ADA.
In addition, it is unreasonable to expect that there is any prospect of future violations regarding the aisle width. It is entirely unlikely that Defendant would incur the expense and effort to make the aisles within the Store more narrow. Thus, it is unreasonable that Defendant may at a later date violate the ADA with regard to the width of the aisles. Accordingly, because the aisles are currently compliant with the ADA, the issue regarding the aisle width is moot.
Here, the Plaintiff carries the burden of showing that the width of the aisles denied Plaintiff full and equal treatment within the Store. The Court finds that Plaintiff has failed to do so, and accordingly, Summary Judgment is appropriate in favor of Defendants on Plaintiff's claims as related to the aisles.
D. Compliance of the Restroom: Drainpipe
Plaintiff claims that she was denied full and equal treatment within the Store because of the drainpipe underneath the sink in the women's restroom. The Court notes that there is disputed evidence on this issue. However, as explained below, the disputed evidence does not create a genuine issue of material fact.
The Court required that the parties submit supplemental briefing on this issue, and notes that it bases its ruling on the moving papers as well as the supplemental briefing.
Plaintiff argues that the Store failed to fully insulate the drainpipes in the women's restroom. Therefore, Plaintiff argues that the Store violated the ADA and Title 24 of the California Building Code. In support of her argument, Plaintiff states that "the ADAAG states that hot water and drain pipes under lavatories shall be insulated or otherwise configured to protect against contact," and that Title 24 requires that "[h]to water and drain pipes accessible under lavatories shall be insulated or otherwise covered." Pltf's Opposition, p. 18. Plaintiff submits a report and photographs from Plaintiff's expert Reed Settle, arguing that this evidence reveals that the drain and hot water pipes are not fully insulated. Additionally, Plaintiff argues that the Store's Motion ignores Settle's photos and "cherry picks" at Plaintiff's deposition testimony instead. Id.
Defendants move for Summary Judgment on this issue regarding non-compliance of the drainpipe in the women's restroom. In support of their Motion, Defendants set forth the following evidence: First, the Store argues that in Plaintiff's deposition, she admitted that "at all times the drainpipe was, in fact, insulated." Def's Opposition, p. 11. Specifically, the Store refers to Plaintiff's testimony stating that the pipes had insulation on them, Pltf's Depo, 140:9-23, and that upon Plaintiff's next visit to the Store, any problem with respect to the lack of insulation around the drainpipe had been fixed. Id., 155:17-17, 156:6-14. Therefore, the Store argues that "[t]his admission precludes any ADA violation, because all that is required is that the drainpipe is `insulated or otherwise covered.'" Pltf's Opposition, p. 11.
The Store further argues that Plaintiff cannot establish deterrence based on the drainpipe under the lavatory because it was properly insulated. Specifically, the Store argues that "[h]ere, the photographs of the plumbing under the lavatory furnished by Plaintiff's own expert . . . reveal that the drain and hot water pipes were `insulated or otherwise covered.'" Def's Reply, p. 4. Thus, the Store argues that there is no ADAAG violation. Id.
While not specifically referenced in the parties' papers, the report by the Store's expert, Michael P. Gibbens, states that the drainpipes were properly insulated. Specifically, Gibbens states "the drain and hot water pipes were completely insulated." Gibbens Decl., Exh. B, p. 21. Furthermore, the Store's Manager David Schrock states that "the hot water and drainpipes under the lavatory in the women's restroom were completely covered and insulated. . . ." Schrock Decl., p. 2.
Here, Plaintiff carries the burden of showing that the lack of insulation around the drainpipe resulted in her being denied full and equal treatment in the Store. Contrary to Plaintiff's assertions, the regulations do not require that the pipes be "fully insulated." Instead both Title 24 and the ADAAG require that pipes be insulated to protect accessible areas against contact. Specifically, the ADAAG regulations, upon which both parties rely, provide that "[h]to water and drain pipes under lavatories shall be insulated or otherwise configured to protect against contact." ADAAG § 4.19.4. Furthermore, Title 24 provides that "[h]to water and drain pipes under accessible lavatories shall be insulated or otherwise covered." Title 24 § 21115B.2.1.2.2. (emphasis added).
The Plaintiff's expert, Mr. Settle, states in his report that "the drain and hot water piping is not insulated or configured to prevent contact in violation of ADAAG section 4.19.4." Settle Decl., p. 2. However, this statement is conclusory and fails to establish that any regulations have been violated. As evidence of this statement, the Plaintiff submitted photographs which fail to show that the pipe was not insulated in compliance with the regulations. Specifically, the photograph reveals that approximately six inches of piping are uncovered. Settle Decl., Exh. B. However, Settle makes no statement that this fact supports the conclusion that the piping violates the ADAAG or Title 24. In other words, Settle provides nothing more than a conclusory finding that is completely unsupported by evidence, that the Store's piping is insufficiently configured.
Additionally, in his deposition, Mr. Settle conceded that the drain pipe is "probably adequately insulated." See Deposition of Reed Settle at 83:21.
The regulations require that "[h]to water and drain pipes under accessible lavatories shall be insulated or otherwise covered." Title 24 § 21115B.2.1.2.2. Here, Plaintiff's expert's report does not create a genuine issue for trial because it presents "nothing but conclusions — no facts, no hint of an inferential process, no discussion of hypotheses." See Mid-State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989). The expert states that the pipes were not fully insulated, the expert does not opine that the drain pipes were not otherwise covered. Additionally, the expert's report fails to show a process of reasoning beginning from a firm foundation to defeat summary judgment. Expert affidavits must be based on specific facts. "Mere speculation, idiosyncratic opinion, and conclusory allegations are not enough." Mid-State Fertilizer Co., 877 F.2d at 1339; Estate of Detwiler v. Offenbecher, 728 F. Supp. 103, 140 (S.D.N.Y. 1989); In re Agent Orange Prod. Liab. Litig., 818 F.2d 187, 193 (2d. Cir. 1987); Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985). In addition, the expert conceded during deposition that the drainpipe "is probably adequately insulated." See Deposition of Reed Settle at 83:21. Thus, the Court finds that the conclusory statements made by Mr. Settle and the photographs are insufficient to create a genuine issue of material fact for trial.
The balance of the evidence also shows that the Plaintiff has failed to prove its claim. In support of their Motion for Summary Judgment, the Store's expert argues that the pipes are insulated to prevent contact. Furthermore, the Store Manager corroborates the Store's expert's testimony. In addition, the pictures submitted in Plaintiff's expert's report show that the pipes were insulated. Plaintiff fails to come forward with evidence to rebut these arguments.
Additionally, Plaintiff makes no argument creating a genuine issue of material fact as to whether Plaintiff suffered denial of full and equal treatment due to insufficient insulation of the restroom drainpipes. Instead, Plaintiff admits that when she visited the Store in September 2004, the pipes under the drainpipe were completely insulated. See Deposition of Plaintiff at 155:17-19. Therefore, in the alterative, it appears that even if the drainpipes were not adequately insulated at some point, it is undisputed that the pipes are now adequately insulated and therefore the issue is now moot.
The Court finds that Plaintiff has failed to meet her burden of showing that the lack of insulation covering the restroom drainpipes denied her full and equal treatment in the Store. Accordingly, the Court will grant Summary Judgment in favor of Defendants regarding this claim.
E. Compliance of the Restroom: the Location of the Toilet Paper Dispenser
Plaintiff argues that the toilet paper dispenser in the women's restroom violates ADAAG regulations because it is mounted above 27 inches from the floor and projects more than 4 inches into the maneuvering space. Pltf's Opposition, p. 19; Title 24 § 1133B.8.6; ADAAG § 4.4.1, 4.2.4.1. In support of this argument Plaintiff refers to Mr. Settle's Declaration which allegedly confirms that the toilet paper dispenser is not lawfully situated.
The Store responds that Plaintiff "admits that she has no information that the toilet paper dispenser was improperly located. . . ." Def's Reply, p. 5. Furthermore, with regard to Mr. Settle's findings, the Store argues that "Plaintiff's expert merely states that the outer or leading edge of the dispenser itself is 48 inches from the wall, but does not comment about the distance from the wall where the toilet tissue is actually dispensed." Def's Reply, p. 5; Settle Depo, 103:13-21. Therefore, the Store argues that the location of the toilet paper dispenser is not unlawful because "toilet tissue must be dispensed within 36 inches from the rear wall . . . [and] [t]here is no dispute that the toilet tissue in the restroom at the Store meets this standard." Def's Reply, p. 5.
The regulations relied on by Plaintiff state that "[o]bjects projecting from walls (for example, telephones) with their leading edges between 27 inches . . . and 80 inches . . . above the finished floor shall protrude no more than 4 inches . . . into walks, halls, corridors, passageways or aisles. . . ." ADAAG § 4.4.1, Title 24 § 1133B.8.6. From this language, Plaintiff's expert Mr. Settle reaches the conclusion that the toilet paper dispenser violates the ADAAG. Settle Decl., p. 2.
In response to Settle's findings, the Store's expert Mr. Gibbens states that the provision upon which Mr. Settle relied "was limited in scope to only include the referenced `walks, halls, corridors, passageways or aisles' and not `toilet compartments' as alleged by Plaintiff." Gibbens Decl., Exh. B, p. 24. Furthermore, Gibbens states that "the leading edge of this dispenser is located well below the referenced cut-off height of 27" above the floor, so this dispenser could protrude any amount from the wall if this provision did in fact apply in this instance." Gibbens Decl., Exh. B, p. 24.
Plaintiff has the burden of showing that the placement of the toilet paper dispenser violates regulatory requirements and resulted in the denial of her full and equal treatment in the Store. The Court finds that Plaintiff has failed to meet this burden for several reasons.
First, Plaintiff makes no argument to rebut Mr. Gibbens' conclusion that a toilet paper dispenser falls outside of the scope of the regulations upon which Plaintiff's expert. See ADAAG § 4.4.1, Title 24 § 1133B.8.6. Specifically, Plaintiff fails to argue that the toilet paper dispenser protrudes into walks, halls, corridors, passageways or aisles. In addition, even if the toilet paper dispenser were within the scope of these particular regulations, the Store has introduced evidence, which Plaintiff fails to rebut, showing that the toilet dispenser does in fact comply with the regulations. See Gibbens Decl., Exh. B, p. 24.
In addition to Plaintiff's failure to create a genuine issue of material fact by rebutting the Store's evidence showing that the toilet paper dispenser did not violate the ADA, ADAAG section 4.16.6 further supports the Store's argument that the toilet paper dispenser did in fact comply with ADAAG requirements. Section 4.16.6.6 speaks specifically about toilet paper dispensers, providing that "[t]oilet paper dispensers should be installed within reach," and further provides a diagram showing that the toilet paper dispenser should be installed at a minimum of 19 inches. Plaintiff advances no argument, nor provides any evidence showing that the toilet paper dispenser fails to meet this minimum requirement.
In support of their Motion for Summary Judgment, the Store has introduced evidence showing that the toilet paper dispenser does not fall within the scope of the regulation upon which Plaintiff relies, and that the toilet paper dispenser is fully compliant with ADAAG regulations. Here, Plaintiff carries the burden of showing that the location of the toilet paper dispenser denied her full and equal treatment in the Store. The Court finds that Plaintiff has failed to meet this burden because she has failed to put forth evidence creating a genuine issue of material fact regarding the compliance of the toilet paper dispenser. Accordingly, the Court will grant Summary Judgment regarding Plaintiff's toilet paper dispenser claim.
F. Compliance of the Restroom: The Location of the Restroom Fixtures and Wastebasket
Plaintiff argues that the ADAAG demands a policy of keeping floor space clear in front of toilet accessories to allow a forward or parallel approach by a person using a wheelchair, and the presence of a wastebasket in the middle of the restroom floor resulted in her denied access to the soap, paper towel, and toilet seat cover dispensers. Plaintiff further argues that she was under no obligation to move the wastebasket herself. Finally, Plaintiff argues that the Store unlawfully denied her access to restroom fixtures, without good cause. Specifically, Plaintiff inquires: "Would implementing a policy of keeping the trash can from blocking the restroom's fixtures fundamentally alter the nature of either those fixtures or the trash can itself? . . . Unless the answer is an unequivocal, "yes," with a dam good explanation . . . [the Store] violated the ADA." Pltf's Opposition, p. 19.
In response to Plaintiff's contentions regarding the improper placement of the wastebasket and her lack of obligation to move it, the Store argues that "Plaintiff could have accessed any of the restroom fixtures if she had made the minimal effort required to move the plastic trashcan that had temporarily been placed in front of them." Def's Reply, p. 6. Defendant references Plaintiff's testimony, where she declared that she could have moved the trashcan herself, but made no effort to do so. Def's MSJ, p. 12; Pltf's Depo, 68:21-69:13; 77:15-16; 157:19-20; 158:12-14; 158:16-25. Furthermore, the Store argues that Plaintiff does not address the Store's argument that non-structural and easily movable barriers do not trigger ADA liability so long as actions are taken to remedy the situation.
With regard to Plaintiff's claim that the Store violated the ADA by placing the wastebasket in a such a location that denied Plaintiff access to other restroom fixtures, Plaintiff bears the burden of showing that the situation of the restroom fixtures did in fact deny her full and equal treatment. The Court finds that Plaintiff has failed to meet her burden for the following reasons.
First, the ADA Title III Technical Assistance Manual provides that "[a]n isolated instance of placement of an object on an accessible route would not be a violation, if the object is promptly removed." § 3-3.7000. Plaintiff has made no argument that the Store failed to promptly remove the wastebasket. Furthermore, Plaintiff has failed to argue that the wastebasket was an object incapable of being removed. Therefore, Plaintiff has failed to argue that the wastebasket location was anything other than an isolated instance of placement in violation of the ADA. Furthermore, Plaintiff has failed to argue that the wastebasket was not "promptly removed."
In addition, Plaintiff testified that she could have easily moved the trashcan out of her way. Pltf's Depo, 68:21-69:13; 77:15-16; 157:19-10; 158:12-25. Furthermore, Plaintiff testified that she did not ask an employee to move the trashcan for her. Id., 74:18-75:4. Therefore, Plaintiff admits that access to the restroom facilities was not impossible. Accordingly, because Plaintiff testified that she, or an employee could have moved the wastebasket, The Court finds that Plaintiff has failed to show how the location of the wastebasket denied her full and equal enjoyment of the Store.
Here, Plaintiff has the burden to show that the location of the wastebasket denied Plaintiff full and equal treatment within the Store. Plaintiff has failed to show that the wastebasket location violates the ADA because Plaintiff cannot show that its' location is not temporary, or that its' structure is such that it is immovable. Furthermore, Plaintiff fails to argue that she could not have moved the wastebasket herself, or asked a store employee herself. Therefore, the Court finds that Plaintiff has failed to meet her burden to show that the location of the wastebasket denied her full and equal treatment within the Store. Accordingly, the Court will grant Summary Judgment regarding this claim.
II. Plaintiff's Claim for Violation of the California Disabled Persons Act
Defendant moves for Summary Judgment on Plaintiff's claims for violations of the California Disabled Persons Act. Specifically, Defendant argues that Plaintiff's claims are duplicative of Plaintiff's ADA claims. To the contrary, Plaintiff argues that her claim under the California Disabled Persons Act ("DPA") is not derivative of her ADA claim. Pltf's Opposition, p. 21. Rather, Plaintiff argues, her DPA claim is based not only on violations of the ADA, but also on violations of California Civil Code §§ 54(a) and 54.1(a)(1). Specifically, Plaintiff argues that, for example, her claim regarding the insulation of the hot water pipe is based on Title 24, and is accordingly not based solely on the ADA.
California Civil Code section 54, the Disabled Persons Act, guarantees individuals with disabilities "full and equal access to accommodations, facilities, telephone facilities, places of public accommodation, and other places to which the general public is invited." Cal. Civ. Code § 54.1(a)(1).
Plaintiff has failed to allege any specific facts to differentiate her claim under the Disabled Persons Act from her claims arising under the ADA. As noted above, Plaintiff cannot survive Summary Judgment on her ADA claims. Because Plaintiff has failed to set forth any specific facts establishing a genuine issue of material fact on her Disabled Persons Act claims aside from her allegations related to the ADA, The Court finds that Plaintiff has failed to meet her burden.
The court is not obligated to "scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). Here, The Court finds that Plaintiff has failed to meet its burden to survive Summary Judgment. Accordingly, the Court will grant Summary Judgment in favor of Defendants on Plaintiff's California Disabled Persons Act claims.
III. Plaintiff's Claim for Violation of the Unruh Civil Rights Act
Additionally, Defendants move for Summary Judgment on Plaintiff's claims arising under the Unruh Civil Rights Act. Defendants argue they are entitled to Summary Judgment on these claims for the same reasons they are entitled to Summary Judgment on Plaintiff's ADA claims. A review of the pleadings reveals that Plaintiff's claims arising under the Unruh Civil Rights Act are based on the same allegations that her claims under the ADA are based on. For example, in Plaintiff's Motion for Summary Judgment, Plaintiff argues that "Jones avers that the produce scales, plastic bags, restrooms and checkout aisles were designated and constructed in a manner that violated the ADAAG. Because these barriers relate to her disability (and denied her full and equal enjoyment and use), she has presented sufficient evidence to establish that she was denied equal access to can raise [sic] and that she is entitled to statutory damages." See Pltf's MSJ, at 11:14-19.
As noted above, the Court has determined that Summary Judgment in favor of Defendants is appropriate on Plaintiff's ADA claims related to the produce scales, plastic bags, restrooms, and checkout aisles. Because Plaintiff does not provide any additional support for her Unruh claims, the Court will grant Summary Judgment in favor of Defendants for the reasons set forth above in its' analysis of Plaintiff's ADA claims. Therefore, the Court finds that Summary Judgment in favor of Defendants' on Plaintiff's Unruh claims is appropriate. Accordingly, the Court will grant Defendant Summary Judgment on Plaintiff's claims arising under the Unruh Civil Rights Act.
IV. Plaintiff's Claim for Violation of California's Health and Safety Code
Plaintiff seeks injunctive relief for violations under the California Health and Safety Code § 19955. The California Health and Safety Code § 19955 states that its purpose is to ensure compliance with Government Code § 4450. The relevant portion of the applicable Government Code provides:
§ 4450. Purpose of chapter; Adoption of regulations and building standards; Submission to California Building Standards Commission; Minimum standard of accessibility and usability
(a) It is the purpose of this chapter to ensure that all buildings, structures, sidewalks, curbs, and related facilities, constructed in this state by the use of state, county, or municipal funds, or the funds of any political subdivision of the state shall be accessible to and usable by persons with disabilities.
Cal Gov Code § 4450. While Plaintiff includes violations of the Health and Safety Code as a basis for relief in her Complaint, and argues in her Response to Defendants' Motion that her claims under this provision "should survive," Plaintiff wholly fails to provide any arguments or facts related to the Health and Safety Code section, independent of the facts supporting her ADA claims. As noted above, the Plaintiff's ADA claims cannot survive.
The court is not obligated to "scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). Here, The Court finds that Plaintiff has failed to meet its burden to survive Summary Judgment. Accordingly, Plaintiff's claims under the Health and Safety Code, which are not supported by any facts independent of Plaintiff's ADA claims, similarly must fail. Accordingly, the Court will grant Summary Judgment in favor of Defendants on Plaintiff's Health and Safety claims.
V. Plaintiff's Claim under the California Unfair Business Practices Act
Plaintiff does not set forth any arguments on her claims under the California Unfair Business Practices Act. Additionally, it appears that Plaintiff has abandoned her claims under the Act because she cannot meet the standing requirements promulgated by an amendment to the Act requiring "injury in fact." Specifically, in her Summary Judgment Motion, Plaintiff states: "[n]or does she seek to adjudicate affirmative defenses numbers 17, 18, 19, 21 which are moot following the abandonment of her unfair business practices claim [in light of proposition 64]." Pltf's Points and Authorities in Support of MSJ, p. 13: 12-15. Accordingly, the Court finds that Plaintiff has abandoned her claims arising under the California Unfair Business Practices Act, and Summary Judgment in Favor of Defendants is appropriate.
Plaintiff's Motion for Summary Judgment
On May 20, 2005, Plaintiff filed a Motion for Summary Judgment. Plaintiff argues that she is entitled to Summary Judgment on the grounds that she has established that her rights were violated under Title III of the ADA. Specifically, Plaintiff argues that she is a paraplegic, [g]rocery stores are specifically identified as "public accommodations," and [that] she was denied full and equal treatment in the restroom, produce section, and checkout aisle because of her disability. See Pltf's MSJ, at 6:12-15.Additionally, Plaintiff argues that she is entitled to Summary Judgment because the Defendants have not shown that the removal of the architectural barriers are not readily achievable. Plaintiff argues "[b]ecause Wild Oats has failed to produce-under penalty or perjury-a single relevant fact to support a readily achievable defense, their defense must fail as a matter of law." Pltf's MSJ, at 10:3-5.
As noted above, the Court has determined that Plaintiff has failed to make a prima facie showing of discrimination under Title III of the ADA because Plaintiff has failed to show that she was deprived of full and equal enjoyment and use of the store. Therefore, Summary Judgment in favor of Plaintiff is not appropriate. Furthermore, because the Plaintiff has failed to show that there are architectural barriers within the store that deprived her of full and equal enjoyment and use of the facility, the Defendant is not required to come forward with evidence to support a "readily achievable" defense.
Additionally, the Court notes that many of Plaintiff's claims are not supported by evidence. For example, Plaintiff argues that the location of the soap dispenser, paper towel dispenser, and sanitary toilet seat covers violate the ADA. However, Plaintiff provides the opinion, report, and deposition, of its own expert, establishing that the location of the soap dispenser, paper towel dispenser, and sanitary toilet seat covers are in full compliance with the ADA. See Settle Deposition at 80-81. Additionally, Plaintiff offers very little evidence in conjunction with its Motion, and instead relies on its Opposition to Defendant's Motion and the evidence offered in support thereof. As noted above, Plaintiff, in her Opposition to Defendants' Motion, failed to set forth evidence to survive Summary Judgment.
Accordingly, the Court will deny Plaintiff's Motion for Summary Judgment.
CONCLUSION ORDER
A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Here, the Court finds that Plaintiff has failed to establish that a material fact exists, such that a reasonable jury could reach a verdict in favor of Plaintiff, based on the evidence.The Court finds that Plaintiff has failed to meet her burden to show that she was denied full and equal access within the Henry's Marketplace Store on December 14, 2003. While the Plaintiff does set forth conclusory allegations in support of her claims, she does little more. In addition, Plaintiff includes several frivolous claims in her Complaint. For example, Plaintiff alleges violations of the ADAGG, yet in support thereof, provides an expert report finding no such violations. In addition, Plaintiff's claims that are supported by her expert's opinion are similarly without merit. The Plaintiff fails to set forth specific facts in support of her claims, other than the report, and it is unclear what the Report relies upon. Instead, Plaintiff, and Plaintiff's expert, provide conclusory allegations, and nothing more. Additionally, the evidence, including evidence submitted by the Plaintiff, shows that the Report is simply an allegation. Moreover, Plaintiff fails to show she was deprived full and equal treatment within the store. For these reasons, the Court finds that Summary Judgment in favor of Defendants is appropriate on all claims. In addition, Plaintiff's Motion for Summary Judgment must be denied.
Accordingly,
IT IS ORDERED Defendants' Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED Plaintiff's Motion for Summary Judgment is DENIED. IT IS FURTHER ORDERED the Pretrial Conference scheduled for Friday, January 13, 2006 before the Honorable William Q. Hayes is VACATED. IT IS FURTHER ORDERED the Clerk of Court shall enter judgment in favor of Defendant accordingly, and terminate this action in its entirety.
IT IS SO ORDERED.