Summary
holding that the ADAAG regulations do not create a cause of action based on failure to comply with the California Building Code
Summary of this case from Johnson v. PatelOpinion
No. CIV. S-04-977 LKK/CMK.
May 24, 2006
ORDER
Plaintiff, Steve Eiden, sues defendant, Home Depot, pursuant to the American with Disabilities Act of 1990, 42 U.S.C. §§ 12101et seq. ("ADA"). He also asserts state law claims. Defendant moves for summary judgment asserting that plaintiff's suit is moot by virtue of its remedial efforts, while plaintiff cross-moves on his ADA and Unruh Act claims. Pl.'s Mot. at 2. I decide the matter based on the pleadings, the parties' papers, and after oral argument.
Plaintiff brings claims pursuant to Health and Safety Code Part 5.5 (California Health and Safety Code §§ 19955 et seq.), the Unruh Act (California Civil Code §§ 51 et seq.), the Disabled Persons Act (California Civil Code §§ 54 et seq.), the Unfair Business Practices Act (California Business and Professions Code §§ 17200 et seq.), and Negligence (California Civil Code § 1714).
I. FACTS
Facts are undisputed unless otherwise noted.
Plaintiff is a paraplegic who uses a wheelchair for mobility. He is unable to walk, and has limited use of his arms. Pl.'s SUF 1; Def.'s SUF 16. Eiden has patronized the Home Depot located at 2580 Notre Dame Boulevard in Chico, California, for the past five-to-six years, and visits the store approximately two-to-three times a month. Pl.'s SUF 2. Eiden contends that he has encountered a number of barriers that have made it difficult for him to fully access the facility. Pl.'s SUF 4.
On May 20, 2004, plaintiff filed a complaint, which alleges that he encountered "architectural barriers that denied him full and equal access." Compl. at 4. Attached to his complaint is a list of barriers, which he claims were the barriers "known by [him]." Ex. A to Pl.'s Compl. The complaint identifies the following thirteen "barriers":
(1) Tow-Away Signage at Parking Lot Entrance is difficult to read;
(2) The cross-slope of the route of travel from public streets, sidewalks, and transportation exceeds 2%, and is 7,3%;
(3) There is no directional signage along the route of travel from the public streets or sidewalks to the building entrance;
(4) There are no detectable warnings at the route for a person in a wheelchair traveling through vehicle areas to reach the ramp;
(5) The accessible parking spaces are not dispersed and located closest to the accessible entrances;
(6) Shopping carts were left in disabled parking spaces and access aisles creating an obstruction;
(7) The words "NO PARKING" are not painted in the access aisles;
(8) The ISA signage on the entrance door is only 36 inches above ground, making it difficult to see;
(9) Some aisles in the store were obstructed by merchandise narrowing the width of the aisles;
(10) The sales counter is too high, 44 inches in height at the customer service desk;
(11) There were no accessible check stands, and signage identifying accessible checkout aisle was not mounted on checkout locations;
(12) The compartment stall door in the men's restroom does not have a loop or U-shaped handle under the latch;
(13) The toilet paper dispenser projects 5 inches from the wall, and is set above the grab bar and in the space a person in a wheelchair needs for an approach to the toilet.
Plaintiff claims that subsequent to filing this action, he returned to defendant's premises in September 2004, and that despite his complaints, Home Depot failed to correct the architectural barriers. Pl.'s SUF 5, 6.
On July 13, 2005, plaintiff asked his expert, Joe Card ("Card"), to visit the Home Depot in order to identify the architectural barriers that violate the ADA and to create a report. Pl.'s SUF 19. Card identified the architectural barriers Eiden alleged in his complaint, but also identified additional barriers which Eiden did not previously note. Eiden claims he "now has notice" of those barriers. Pl.'s SUF 19.
On August 23, 2005, defendant filed for summary adjudication, arguing that the suit is moot because defendant allegedly eliminated the violations complained of in Eiden's complaint. Def.'s Mot. at 1. Plaintiff opposed this motion and moved for further discovery under Fed.R.Civ.P. 56(f). On September 14, 2005, the court granted this request so that plaintiff's expert could return to the Home Depot "to determine if the previously identified ADA violations have been removed." September 14, 2005 Order at 3.
Card returned to defendant's premises for an inspection on October 7, 2005. Plaintiff's counsel instructed Card to "reinspect the location and document any corrections made to the violations that were identified in the first report." Card Dec. at 2. Card, however, identified a myriad of other barriers which were not previously identified by plaintiff in his complaint.See Card Dec. 2-5; Ex. A to Card Dec. Discovery closed on October 4, 2005 pursuant to the court's scheduling order.
It is undisputed that certain conditions have been remediated. The parties, however, dispute whether a number of other barriers remain.
II. STANDARDS
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); See also Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Secor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th Cir. 1995).Under summary judgment practice, the moving party
[A]lways 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 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. Indeed, summary judgment should 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
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, 586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853.
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(e); Matsushita, 475 U.S. at 586 n. 11; See also First Nat'l Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir. 1998). 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); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see also Cline v. Industrial Maintenance Engineering Contracting Co., 200 F.3d 1223, 1228 (9th Cir. 1999).
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 290; See also T.W. Elec. Serv., 809 F.2d at 631. 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 Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); see also International Union of Bricklayers Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093 (9th Cir. 1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)); See also Headwaters Forest Defense v. County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000). 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. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . 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.'"Matsushita, 475 U.S. at 587 (citation omitted).
III PRELIMINARY QUESTIONS
Pending before the court are cross-motions for summary judgment filed by both parties. Home Depot asserts that the thirteen architectural barriers alleged in the complaint no longer exist. It maintains that no live controversy exists, and thus, "[p]laintiff's ADA claim must be dismissed." Defendant also asserts that plaintiff lacks standing to maintain the other alleged barriers. Def.'s Mot. at 1. Plaintiff cross-moves on the grounds that defendant has failed to correct multiple barriers properly before the court. Plaintiff argues, inter alia, that defendant's motion should be denied because there remain barriers which "were identified by plaintiff's expert, and which relate to plaintiff's disability," thus making the case a live controversy. Pl.'s Mot. and Opp'n at 17.
Plaintiff has filed one brief which represents his motion for summary judgment as well as his opposition brief to defendant's motion for summary judgment.
It is undisputed that a number of barriers alleged in plaintiff's complaint were subsequently corrected by defendant. The tow-away signage posted at the entrance to the store has numbers that are two-and-a-half inches tall. Def.'s SUF 5. Defendant additionally installed the ISA symbol to the right of the double doors at all three entrances to the store at a height of 60 inches above the ground to the center of the sign. Home Depot painted the words "no parking" on the pavement of the access aisles to the van accessible parking lots." Def.'s SUF 7. Defendant installed the ISA symbol above check out stand numbers one (1) and six (6), as well as the check stand in the garden. A U-shaped handle on the designated accessible stall in the men's restroom was installed and the toilet paper dispenser was positioned so it does not protrude more than four (4) inches from the wall. Def.'s SUF 13, 14.
Before addressing the merits of the case, however, I address several threshold issues.
A. WHICH CLAIMS ARE ACTIONABLE?
Preliminary to resolving the motions, the court must first determine which architectural barriers are properly before the court. Plaintiff asserts claims based upon the thirteen barriers alleged in his complaint and on those identified in the two Card expert reports. Defendant does not raise objections as to the barriers alleged in plaintiff's complaint, but argues that plaintiff lacks standing to bring suit as to the violations discovered by Card and which were identified in his two reports. Below, I conclude that the violations identified in the first Card report are actionable, but those contained in the second Card report are not cognizable in the instant suit.
Before the close of discovery, Card first visited defendant's premises on July 13, 2004 to identify barriers that violate the ADA and other state law and to generate a report. From that visit, Card identified a total of twenty-three barriers, some of which appear to overlap with the thirteen barriers plaintiff identified and some which are newly identified barriers.
On October 7, 2005, after the close of discovery, Card returned to defendant's premises. As a result of that visit, Card identified twenty-nine additional violations. See Card Dec. 2-5; Ex. A to Card Dec.
Defendant contends that plaintiff lacks standing to sue on barriers that he did not personally encounter on his visits to Home Depot. It contends that "at the time he filed his complaint, Eiden was not aware of and had not been affected by the alleged violations identified in the Card Report." Def.'s Rep. at 4. Defendant asserts that allowing plaintiff to sue on the violations in the reports would offend standing principles. Put simply, defendant argues that plaintiff is not entitled to allege violations which were not alleged in his original complaint, citing Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1366 (S.D. Fla. 2001) (holding that a plaintiff's mere entry into the stadium did not automatically confer upon him a presumption of injury from any and all architectural barriers in the stadium). Defendant also relies on several cases which were decided in this district. See Martinez v. Longs Drugs Stores, Inc., 2005 WL 2072013, *4 (E.D. Cal. 2005) and White v. GMRI, Inc., CIV-S-04-0465 DFL/CMK (E.D. Cal. 2004).
Plaintiff, on the other hand, argues that in addition to the barriers alleged in his complaint, he is entitled to assert claims contained in his experts' two reports because "the ADA encompasses all barriers that relate to that person's disability within the entire subject public accommodation," not just the ones known to plaintiff prior to filing the complaint. Pl.'s Repl. at 6 (emphasis in the original). Plaintiff also contends that he can allege further architectural barriers following the filing of his complaint, relying on Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002). Pl.'s Repl. at 6.
The court recently had occasion to address the issue of standing and the ADA in Wilson v. Pier 1 Imports, 413 F.Supp.2d 1130 (E.D. Cal. 2006). As in Wilson, defendant in the case at bar relies on a standard offered in White/Martinez that this court believes is "unduly restrictive," and thus, the court cannot adhere to it. No purpose would be served by repeating the analysis articulated in Wilson. With respect to the two Card reports, nothing in the ADA requires plaintiff to have personally encountered all barriers in order to seek an injunction to remove those barriers.
Nor is plaintiff's suit limited to the barriers that he alleged in his complaint. As this court previously explained, "[o]nce plaintiff either encountered discrimination or learned of the alleged violations through expert findings or personal observation, he had 'actual notice' that defendant did not intend to comply with the ADA." See Wilson, 413 F.Supp.2d at 1134. As the court further noted,
"the injury-in-fact requirement of Article III standing is easily satisfied by liberally construing it in this context. All that is required is to recognize that the injury suffered relative to later-discovered barriers is the threat of being subjected to discrimination suffered by virtue of the existence of barriers, whether or not initially encountered."Id.
Having explained that, as a general matter, plaintiff is not bound by the specific ADA claims asserted in his complaint under Constitutional standing principles, the court addresses defendant's argument that plaintiff "should not be permitted to construe his complaint as entirely generic and incorporate new factual allegations without seeking amendment" as this would "read the 'fair notice' requirement out of Rule 8(a)." Def.'s Repl. at 4. Indeed, although plaintiff's complaint need only state a "short and plain statement of the claim showing that the pleader is entitled to relief," see Fed.R.Civ.P. 8(a)(2), plaintiff must still provide "fair notice" for specific claims not asserted in his complaint.
The court finds that under the circumstances, the alleged barriers in the first Card report are actionable, while the ones contained in the second Card report are not. Card performed a site inspection on July 13, 2005 and subsequently created a report based on that inspection which identified architectural barriers that he believed were in violation of the ADA Accessibility Guidelines and the California Building Code. Card Dec. at 2 (September 12, 2005). Defendant concedes that it was aware of these alleged barriers as early as July 29, 2005, over two months before the close of discovery. It appears to this court that an action on particular barriers lies so long as "the parties and the court [were] able to identify the alleged violations with reasonable certainty." Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 770 (D. Or. 1997); see also Parr v. L L Drive-Inn Restaurant, et al., 96 F.Supp.2d 105, 1083-84 (D. Haw. 2000) (citing Independent Living Resources). Rule 8(a)'s "simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Where, as here, plaintiff discovered new alleged violations during the discovery period that were not pled in the complaint, but disclosed to defendant in sufficient time to permit defendant to address them in discovery and by way of law and motion, the court concludes plaintiff is not precluded from raising these allegations on a motion for summary judgment or at trial.
The court's scheduling order specified discovery would close on October 4, 2005.
That is not to say that amendment of the complaint is not the better practice — clearly it is.
As for the barriers contained in the second Card report, the court holds that they are not cognizable in this litigation because defendant did not have sufficient notice that they would be an element of plaintiff's law suit. It was not until three days after the close of discovery, on October 7, 2005, that Card returned to defendant's premises to determine whether the previously-identified barriers were removed. Consistent with this court's order, plaintiff's counsel instructed Card to "reinspect the location and document any corrections made to the violations that were identified in the first report." Card Dec. at 2. Rather than reinspect the location and document any corrections previously identified, Card identified twenty-nine other barriers which were not previously identified by plaintiff in his complaint. See Card Dec. 2-5; Ex. A to Card Dec. Because the court's scheduling order made clear that discovery would close on October 4, 2005, plaintiff is precluded from asserting any further ADA claims after this deadline without the court's permission. Put differently, because plaintiff did not provide fair notice to defendant of the new violations, and because he did not comply with the court's scheduling order, he cannot assert these violations now in his motion for summary judgment, or at trial. To hold otherwise undermines the whole thrust and purpose of scheduling orders. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) ("A schedule shall not be modified except upon a showing of good cause and by leave of the district judge") (quoting Fed.R.Civ.P. 16(b)).
For the reasons explained above, the court holds that the claims asserted in the first Card report are actionable and shall be adjudicated by this court, but that the claims alleged in the second Card report are not actionable in this suit. The court now turns to Unruh Civil Rights Act and ADA violations alleged by plaintiff.
B. THE UNRUH ACT
Plaintiff seeks summary judgment pursuant to the Unruh Act because his claim is predicated upon defendant's violation of the ADA. Pl.'s Mot. and Opp'n at 2, 20, 23. He asserts that "a violation of his rights under the ADA is a per se violation of his rights under the Unruh Act." Id. at 23 (italics in the original). Defendant, however, maintains that plaintiff's claims should be dismissed as moot. They argue that because only injunctive relief may be granted under the ADA, once a plaintiff has received everything the court would order, the claims are moot. Def.'s Repl. at 10. Further, they maintain that because the court has jurisdiction over this case because of the federal claims, the court should refuse to exercise supplemental jurisdiction over the state law claims. Repl. at 10. I do not agree.
Plaintiff pleads in his complaint that his Unruh Act claim is predicated upon the ADA claim. See ¶ 63 of Compl. ("The Unruh Act also specifically incorporates (by reference) an individual's rights under the ADA").
First, because there remain disputed issues as to a number of the ADA claims, there remains a live controversy as to the federal claims. Thus, the court may still exercise supplemental jurisdiction over plaintiff's state law claims. As to defendant's assertion that plaintiff is not entitled to relief once an injunction is inappropriate under the ADA, nothing prevents the court from exercising supplemental jurisdiction even as to those barriers which have been corrected. I now turn to the provisions of the Unruh Act.
The Unruh Civil Rights Act, codified in California Civil Code § 51, provides that "[a]ll persons . . . are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Cal. Civ. Code § 51(b). The purpose of the Unruh Act "is to compel a recognition of the equality of citizens in the right to the peculiar service offered" by the entities covered by the acts. Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 737 (1982) (quotation omitted); see also Strother v. Southern California Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996).
Prior to 1992, to prove a claim under the Unruh Act plaintiff was required to demonstrate that the facility was in violation of Title 24 and that the discrimination he experienced was intentional. See Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1175 (1991) ("[W]e hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act"); Lentini v. California Center for the Arts, 970 F.3d 837, 847 (9th Cir. 2004).
To effectuate its long-stated policy of ridding the state of discrimination, see Warfield v. Peninsula Golf Country Club, 10 Cal.4th 594 (1995), the California legislature amended the Unruh Act in 1992 to broaden the scope of its protection. As amended, § 51 provides 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." Cal. Civ. Code § 51(f). It is pursuant to this subsection that plaintiff seeks to recover. See Pl.'s Compl. at 10-12. Plaintiff claims he was denied his right to "equal and full enjoyment of the premises as provided by the ADA and California law." Plaintiff's expert testified "that said barriers violate ADAAG standards and the CBC [California Building code]." Pl.'s Mot. and Opp'n at 21. While, as a general matter, a plaintiff may rely on both the ADAAG and CBC when pursuing an Unruh claim, the question is whether he may do so where his Unruh claim is based solely on purported violations of the ADA. This issue raises two different questions: Is plaintiff's Unruh claim proceeding only on the amendment allowing recovery under state law for violation of the federal statute? If so, may plaintiff rely on the CBC in doing so? The first question is easily resolved.
Nowhere in plaintiff's filings is there any suggestion of intentional discrimination. Accordingly, the only legal theory available to plaintiff on his Unruh claim is that architectural barriers at Home Depot violate the ADA. It does not follow, however, that where relief is barred under the ADA, relief is also barred under the Unruh Act.
As I have explained previously, the state legislature, unlike Congress, has provided that an individual may recover damages for a violation of the Unruh Act. The plain language and purpose of the Unruh Act is to provide that individuals need only prove an ADA violation to obtain relief under the statute, not that they must first obtain relief under the federal statute. State law requires a liberal interpretation of the Unruh Act. Isbister v. Boys' Club of Santa Cruz, 40 Cal.3d 72, 75-76 (1985). Because § 51(f) employs broad language, without any indication of an intent to limit recovery, it seems clear that the legislature intended to provide a remedy for individuals who suffered a violation of the ADA but who could not recover under that Act because the conditions justifying injunctive relief no longer obtain. See Hubbard v. Twin Oaks Health and Rehabiliation Center, 408 F.Supp.2d at 928-30. As a result, the court holds that plaintiff may recover under the Unruh Act, even absent relief under the ADA. The second question seems equally straight forward.
C. The CBC and the ADA
At various places throughout plaintiff's brief and the Card reports, reliance is placed on the California Building Code as well as the Manual on Uniform Traffic Devices to assert violations of the ADA. As the parties note, it is clear that the federal statute does not preempt state law where the state law provides "greater or equal protection." 42 U.S.C. § 12201(b). The question here, however, is not whether state law is more protective, but whether a violation of state regulations establishes a barrier for purposes of the ADA. As I explain below, the ADAAG, the Title III Standards promulgated by the Department of Justice, are the exclusive standards by which to establish architectural barriers under Title III.
Section 12183(a)(1) of Title 42 provides that a violation is measured by regulations "issued under this subchapter. . . ." Thus, it would appear that ADA violations are directly tied to the ADAAG. See Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 746 (1997) ("[t]he implication is that the standards are the exclusive source for design requirements.)"
The statute provides:
"a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities, except where an entity can demonstrate that it is structurally impracticable to meet the requirements of such subsection in accordance with standards set forth or incorporated by reference in regulations issued under this subchapter. . . ."42 U.S.C. § 12183(a)(1).
In turn the ADAAG defines "accessible" as "a site, building, facility or portion thereof that complies with these guidelines." ADAAG 3.5 (adopted by the DOJ as Standard 3.5). This language also plainly implies that compliance with the ADAAG, and not another standard, constitutes compliance with the ADA requirements for new construction.
Finally, the court notes that because Congress directed that the Department of Justice, in conjunction with the Architectural and Transportation Barriers Compliance Board ("Access Board"), issue the ADAAG, and that these standards constitute binding regulation, the court is not authorized to evaluate Title III disability discrimination claims under any other standard, and to determine what engineering or architectural modifications are necessary, or whether such modifications would be feasible and desirable.
For all of the reasons set forth above, the court concludes that the ADAAG constitutes the exclusive standards under Title III of the ADA.
IV. THE MERITS
Title III of the ADA prohibits discrimination against individuals on the basis of disabilities in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. See 42 U.S.C. § 12182(a). Title III defines "discrimination" as, among other things, a failure to remove "barriers . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002). Plaintiff avers that defendant discriminated against him when it failed to remove certain architectural barriers at the Home Depot location at issue in this litigation.
Under Title III of the ADA, a plaintiff must prove that (1) he has a disability, (2) defendant's facility is a place of public accommodation, (3) and plaintiff was denied full and equal treatment because of his disability. To succeed on an ADA claim of discrimination on account of an architectural barrier, the plaintiff must also prove that (1) the existing facility at the defendant's place of business presents an architectural barrier prohibited under the ADA, and (2) the removal of the barrier is readily achievable. See 42 U.S.C. § 12182(b)(2)(A)(iv); see also Pascuiti v. New York Yankees, No. 98 CIV. 8186 (SAS) , 1999 WL 1102748, at * 5 (S.D.N.Y. Dec.6, 1999) (plaintiff bears the initial burden of proving that barrier removal is readily achievable). If plaintiff satisfies his burdens, the burden shifts to the defendant to show that removal of the barriers is not readily achievable.
It is undisputed that Home Depot is a place of public accommodation. Further, plaintiff is disabled because he is a paraplegic who must use a wheelchair to travel in public. Plaintiff thus meets the first two elements of an ADA prima facie case. What remains in dispute is whether plaintiff was discriminated against on account of his disability based on an architectural barrier.
A. ARCHITECTURAL BARRIERS AND STANDARDS GOVERNING NEW CONSTRUCTION
Plaintiff contends that defendant violated the ADA by failing to abide by the Department of Justice's Regulations implementing the ADA's public accommodation provisions and the corresponding ADA Accessibility Guidelines ("ADAAG"). These regulations are divided into three categories. The first category require that newly-constructed public accommodations must comply with specific accessibility requirements set forth in the ADAAG. See 28 C.F.R. Pt. 36.401; 28 C.F.R. Pt. 36.406. The second category concerns the accessibility requirements imposed on public accommodations altered after January 26, 1992. See id. The third category requires the removal of architectural barriers in preexisting public accommodations (those designed and constructed for occupancy before January 26, 1993). See 28 C.F.R. Pt. 36.304. Under the ADA's continuing barrier removal obligation, it is discriminatory for owners, operators, lessors or lessees to fail to remove architectural barriers that deny disabled persons the goods and services offered to the general public. See Hubbard v. Twin Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923, 930 (E.D. Cal. 2004) (citing Parr v. L L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1086 (D. Haw. 2000)).
For purposes of the ADA, the Home Depot facility at issue falls within the first category described, as the building was constructed in 1998 and first opened for business on August 27, 1998. The ADA requires that newly-constructed facilities be "readily accessible and usable by individuals with disabilities." See 42 U.S.C. § 12183(a)(1). This command to build accessible facilities is excepted only if meeting the requirements of the Act would be "structurally impracticable."Id.; See also Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001) ("We need not decide whether the ADA forecloses the possibility that a court might exercise its equitable discretion in fashioning relief for violations of § 1283(a) . . . because there is no room for discretion even if it exists") (citation omitted)).
On April 6, 2006, the court ordered the parties to submit evidence as to when the facility at issue in this litigation was built. On behalf of the parties, plaintiff's counsel submitted a verified response to plaintiff's interrogatories which states that "[d]efendant does not believe that there have been 'alterations' to the store since its initial construction," and that "[t]he building was constructed in 1998 and opened for business on August 27, 1998." Response to Interrogatory Nos. 7 and 8.
See also 28 C.F.R. Pt. 36.401(c) (structural impracticability means "those rare circumstances where the unique characteristics of the terrain prevent the incorporation of accessibility features.").
Below, the court addresses the thirteen ADA violations alleged in the complaint, which plaintiff moves on in his summary judgment motion, as well as the violations identified by Joe Card in the first expert report.
B. ADA VIOLATIONS IDENTIFIED IN THE COMPLAINT
1. Barriers Which Have Been Remedied
Because under the ADA only injunctive relief may be granted to a private party, 42 U.S.C. § 2000a-3(A); see also Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), once a plaintiff has received everything the court would order, the federal claims are moot. Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 771 (1997); Dufresne v. Veneman, 114 F.3d 952, 953-954 (9th Cir. 1997) (finding plaintiffs' suit moot when spraying they sought to stop was completed before resolution of the suit). Thus, generally, a defendant's successful remedial efforts will render a plaintiff's ADA suit subject to dismissal as moot. Pickern v. Best Western Cove Lodge Marina Resort, 194 F.Supp.2d 1128, 1130 (E.D. Cal. 2002).
The parties do not dispute that five of the thirteen barriers complained of in the complaint have been remedied: (1) The tow-away sign has been replaced and the number is now 2½" tall, Def.'s SUF 5; (2) Home Depot has painted "No Parking" on the pavement of the access aisles to the van accessible parking lots, Def.'s 7; (3) The ISA signage on the entrance door at all three entrances to the store is now placed 60" above the ground, Def.'s SUF 8; (4) Home Depot installed a U-shaped handle on the designated accessible stall door in the men's restroom, Def.'s SUF 13; and (5) The toilet paper dispenser in the men's restroom has been positioned so that it does not protrude more than four inches from the wall, Def.'s SUF 14. Home Depot's remedial efforts renders Eiden's ADA claims as to these barriers moot. 2. Detectable Warnings at Travel Routes
As the court noted previously in this order, plaintiff may recover under the Unruh Act for damages even absent relief under the ADA for violations which were rendered moot by Home Depot's remedial efforts.
Plaintiff seeks relief as to a barrier that is not related to his personal disability of non-mobility. In his complaint, Eiden alleges that "[t]here are no detectable warnings at the route for a person in a wheelchair traveling through vehicle areas to reach the ramp," citing ADAAG 4.29.5, Detectable Warnings at Hazardous Vehicular Areas. Compl., Ex. A at 4; Card Dec., Ex. B, Part 1. Eiden, however, has not suffered an "injury in fact" due to the absence of detectible warnings because it is undisputed that he is not visually impaired and that such accommodations are reserved for the visually impaired. Def.'s SUF 16. Eiden lacks standing to assert this claim. See Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1364 (S.D. Fla. 2001) ("To the extent that Plaintiffs complain about violations that would discriminate against blind or deaf persons, or any disabilities other than that suffered by Plaintiff Resnick, they lack standing to pursue such claims."); Martinez v. Longs Drug Stores, Inc., 2005 WL 2072013, *2 (E.D. Cal. 2005).
The relevant ADAAG section provides the a detectable warning is defined as a standardized surface feature built in or applied to walking surfaces or other elements to warn visually impaired people of hazards on a circulation path." 28 C.F.R. Pt. 36, App. A ADAAG 3.5.
Section 4.29.2 of the ADAAG states that:
Detectable warnings shall consist of raised truncated domes with a diameter of nominal 0.9 in (23 mm), a height of nominal 0.2 in (5 mm) and a center-to-center spacing of nominal 2.35 in (60 mm) and shall contrast visually with adjoining surfaces, either light-on-dark, or dark-on-light (emphasis supplied).
These sections clearly pertain to those who are visually impaired.
Standing is limited to claims for which the plaintiff is "among the injured." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). While the statute requires plaintiff's assertion that the defendant must be in compliance with the ADA regulations, allowing plaintiff to sue on behalf of all the disabled would extend beyond the limitations of Article III because plaintiff cannot ultimately prove "injury in fact" as to this barrier which does not affect him. A plaintiff must have a "personal stake in the outcome" sufficient to "assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions."Baker v. Carr, 369 U.S. 186, 204 (1962). Accordingly, the court holds that this claim must be DISMISSED due to lack of standing.
3. Cross-Slope of Wheelchair Route
Defendant moves for summary judgment as to all the barriers alleged in plaintiff's complaint, but say nothing at all about this particular allegation. Plaintiff maintains in his complaint that the cross-slope of the [wheelchair route] exceeds 2%, and that it is actually 7.3%, in violation of the ADAAG 4.3.7. Plaintiff's expert report includes pictures of various cross slopes which exceed the allowable 2% slope pursuant to the ADAAG. Card Dec., Ex. B, Part 3.
Section 4.3.1 provides that "[a]ll walks, halls, corridors, aisles, skywalks, tunnels, and other spaces that are part of an accessible route shall comply with 4.3."
Section 4.3.7 of the ADAAG, which applies specifically to this allegation, provides that "[a]n accessible route with a running slope greater than 1:20 is a ramp and shall comply with 4.8. Nowhere shall the cross slope of an accessible route exceed 1:50."
Under summary judgment practice, the moving party "[a]lways 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 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Because defendant has failed to meet its burden of informing the court of the basis for its motion as to this "barrier," and because plaintiff has tendered evidence apparently showing that there is an ADAAG violation with respect to the cross-slope, plaintiff's motion with respect to this barrier is GRANTED.
4. Directional Signage Along the Route of Travel
Plaintiff alleges in his complaint that defendant is not in compliance with the ADAAG because "[t]here is no directional signage along the route of travel from the public streets or sidewalks to the building entrance." Compl., Ex. A at 3, citing ADAAG 4.1.2 (7). The cited section, however, does not discuss directional signage along routes of travel from public streets or sidewalks to the building entrance, but rather relates to building signage. Because plaintiff has failed to meet its burden of informing the court of the basis for its motion as to this barrier, the court determines that defendant has not violated this section of the ADAAG. Defendant's motion for summary judgment as to this alleged barrier must GRANTED.
This section provides as follows:
(7) Building Signage. Signs which designate permanent rooms and spaces shall comply with 4.30.1, 4.30.4, 4.30.5 and 4.30.6. Other signs which provide direction to, or information about, functional spaces of the building shall comply with 4.30.1, 4.30.2, 4.30.3, and 4.30.5. Elements and spaces of accessible facilities which shall be identified by the International Symbol of Accessibility and which shall comply with 4.30.7 are:
(a) Parking spaces designated as reserved for individuals with disabilities;
(b) Accessible passenger loading zones;
(c) Accessible entrances when not all are accessible (inaccessible entrances shall have directional signage to indicate the route to the nearest accessible entrance);
(d) Accessible toilet and bathing facilities when not all are accessible.
5. Barriers Where Disputed Facts Remain a. Parking Spaces Closest to Entrance
In his complaint, plaintiff alleges that "[t]he accessible parking spaces are not dispersed and located closest to the accessible entrances" and that "[t]here are no disabled parking spaces next to the garden entrance," in violation of ADAAG 4.6.2. Compl., Ex. A at 5 (Picture 8). Home Depot moves for summary judgment asserting that "twelve (12) accessible parking spaces have been installed at the closet location to the main entrance of the Store." Def.'s Mot. at 5. This appears to be undisputed. Whether there exists accessible parking spaces located at the entrances to the nursery/garden area, however, remains in dispute. Because the court is unable to determine based on plaintiff's evidence whether the garden area entrance contains parking spaces, see picture #8, Ex. A to Compl., the parties' motions must be DENIED as to this alleged barrier. b. Sales Counter Height
This section provides that:
In buildings with multiple accessible entrances with adjacent parking, accessible parking spaces shall be dispersed and located closest to the accessible entrances.
Plaintiff maintains that "[t]he sales counter is 44 inches in height at the customer service desk," in violation of the ADAAG § 7.2(1). See Compl., Ex. A at 9. Home Depot contests this, maintaining that all counters are 36 inches above the floor. Boggs Dec. ¶ 8. Plaintiff's expert, Joe Card, maintains that the Customer Service Counter is not accessible with respect to height. Card Dec. ¶ 8(p). Because there is a disputed issue of material with regard to this barrier, the parties' motions as to this barrier are DENIED.
Section 7.2(1) provides that:
In areas used for transactions where counters have cash registers and are provided for sales or distribution of goods or services to the public, at least one of each type shall have a portion of the counter which is at least 36 in (915mm) in length with a maximum height of 36 in (915 mm) above the finish floor. It shall be on an accessible route complying with 4.3. Such counters shall include, but are not limited to, counters in retail stores, and distribution centers. The accessible counters must be dispersed throughout the building or facility. In alterations where it is technically infeasible to provide an accessible counter, an auxiliary counter meeting these requirements may be provided.
c. Accessible Check Stands and Signage Identifying Accessible Checkout Aisle
Plaintiff asserts that "[t]here was [sic] no accessible check stands and that the "[s]ignage identifying accessible checkout aisle was not mounted on any checkout locations, in violation of ADAAG § 7.3.3. Compl., Ex. A at 10. In the course of this litigation, Home Depot claims that it mounted ISA signage above three (3) of its thirteen (13) checkstands. Boggs Dec. ¶ 7. This section of the ADAAG, however, also requires "accessible" checkout aisles. Plaintiff maintains that although there were signage indicating accessibility, during his visit to Home Depot no accessible check stands were open to him. Pl.'s Opp'n at 17. Defendant maintains that it has a policy of keeping checkstand one open at all times. Def.'s SUF 11. The parties' tendered evidence demonstrates that a genuine issue of material fact is in dispute as to whether at least one accessible checkout aisle was available to plaintiff when he visited Home Depot. The parties' motions as to this barrier are DENIED.
Section 7.7.3 states that "[s]ignage identifying accessible check-out aisles shall comply with 4.30.7 and shall be mounted above the check-out aisle in the same location where the check-out number or type of check-out is displayed."
d. Movable Obstructions
Two of Eiden's claims involve movable obstructions. Plaintiff alleges that shopping carts were left in disabled parking spaces and access aisles creating an obstruction for wheelchair users in violation of the ADAAG. Compl., Ex. A at 5. He also avers that some aisles in the store were obstructed by merchandise narrowing the width of the aisles. Compl., Ex. A at 7. Defendant argues, however, that movable objects are not governed by the ADAAG. Plaintiff fails to cite any authority for the proposition that movable objects, such as shopping carts or merchandise in the aisles, falls within the ambit of the ADAAG. Defendant, however, cites authority that is inapposite to the issue at bar. Lieber v. Macy's West, 80 F.Supp.2d 1065 (N.D. Cal 1999) (Patel, J.), does not stand for the proposition that the ADA does not govern movable objects, but that the ADA does not address access to merchandise located on movable display racks.
Neither the ADA nor the ADAAG addresses movable objects. The statute's implementing regulations explicitly require, however, that "[p]ublic accommodations are required to maintain those features of their facilities that need to be readily accessible to people with disabilities." See 28 C.F.R. Pt. 36.211(a). The regulations also state that "[i]solated or temporary interruptions in access due to maintenance or repairs are not prohibited." See Pt. 36.211(b). The regulations appear to suggest that although defendants such as Home Depot are required to maintain ready accessability, they would not be liable for "isolated" or "temporary" movable objects which temporarily restrict access where the barrier is caused by maintenance or repair.
The Justice Department has also determined that regular use of an accessible route for storage of supplies would violate Title III, but an isolated instance of placement of an object in an accessible route is not a violation if the object is promptly removed. See United States Department of Justice, Civil Rights Division, The Americans with Disabilities Act: Title III Technical Assistance Manual § III-3.7000 (1993); see also Bragdon, 524 U.S. 624, 646 (citing Technical Assistance Manual and noting that Justice Department's views entitled to deference).
Two cases which have addressed this issue, a Colorado Court of Appeals case and an unpublished New Hampshire District Court case, have both held that isolated failures to maintain access routes or parking spaces, without more, are not covered by the ADA. See Tanner v. Wal-Mart Stores, Inc., 2000 DNH 34 (D.N.H. 2000) (isolated incident of failure to remove shopping carts does not constitute a Title III violation); Pack v. Arkansas Valley Correctional Facility, 849 P.2d 34, 38 (Colo Ct. App. 1995) (isolated instance of negligence regarding failure to remove ice and snow from handicapped parking zone not an ADA violation). Home Depot argues that it has a "long-standing, widely-disseminated and enforced written policy of maintaining an accessible route of at least 32 inches throughout the store." Def.'s Mot. at 5; Def.'s SUF 3. Eiden argues that "policy or no policy, [the policy] is not enforced" and asserts that he has experienced "blocked paths of travel." Disputed facts remain as to whether Home Depot had a practice of failing to remove obstructions from accessible routes of travel or parking spaces. The parties' motions as to the movable obstructions are DENIED.
e. Alleged Barriers Identified in the First Card Report
As the court explained above, only the allegations contained in the first Card report (filed with the court on September 12, 2005) are actionable. The court has carefully examined the Card report and plaintiff's papers, and although the Card report listed twenty-three violations, only about half of those violations are new ones, not already contained in plaintiff's complaint and thus discussed above in this order. The new violations are described in 7 (a), (b), (c), (d), (g), (i), (p), (q), (r), (s), (t), (v), and (w) of Joe Card's declaration.
Although plaintiff moves on all alleged barriers contained in the complaint and the Card reports, only five of the violations contained in the first Card report are even mentioned in plaintiff's papers, and plaintiff appears to have tendered evidence only with regard to these barriers. Given the large number of exhibits and the lengthy briefs filed by the parties, the court has already expended an excessive amount of time adjudicating the claims made by the parties, which they often fail to address in a careful and orderly manner. As has been said, "'[j]udges are not like pigs, hunting for truffles buried in' the record." Albrechtsen v. Board of Regents of University of Wisconsin System, 309 F.3d 433, 436 (7th Cir. 2002) (quotingUnited States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Under the circumstances, the court will only address the barriers discussed by plaintiff in his motion for summary judgment and opposition brief, and only the alleged barriers where evidence is tendered. See Pl.'s Mot. and Opp'n at 5-6. As discussed further below, for various reasons, the court must DENY plaintiff's motion as to these claims and GRANT defendant's motion.
These violations are described by Joe Card in his 7(a), (b), (c), and (d) of his September 12, 2005 declaration. Unfortunately, because defendant argues that plaintiff lacks standing to even move on allegations contained in the Card report, their papers fail to discuss these allegations. Defendant, however, argues in its response to plaintiff's statement of undisputed facts ("SUF"). While hardly the appropriate place, the court will consider the arguments defendant made in its response SUF.
i. Towaway Signage
Plaintiff argues that tow-away signage must be provided adjacent to the disabled parking and must have the proper information. Plaintiff argues that the sign's "reclaim information is not in reflective white letters," citing CBC § 2-7102(d) and D.O.T. § R1008B. Pl.'s Mot. and Opp'n at 6. As defendant rightly notes, plaintiff only cites to the California Building Code and the Manual on Uniform Traffic Devices which the court determined above was improper under the plaintiff's pleadings. Accordingly, plaintiff's motion is DENIED and defendant's motion is GRANTED as to this alleged barrier.
ii. Accessible Parking Signage
Plaintiff maintains that the sign stating that the space is van accessible violates ADAAG § 4.6.4 in that it must be mounted below the International Sign of Accessibility ("I.S.A."), and that the accessible parking signage "is not mounted at a height of minimum of 80 inches, when the sign is in a path of travel as required by ADAAG § 4.2.2." Pl.'s Mot. and Opp'n at 6. Defendant takes issue with these allegations. The court has examined defendant's exhibits, and in fact, defendant has provided blue and white ISA signage stating "Van Accessible." Further, the words "Van Accessible" are mounted below the I.S.A. See Boggs Dec. at ¶ 4 and Ex. B. Plaintiff's motion as to this barrier is DENIED and defendant's motion is GRANTED.
As to the allegation that the accessible parking signage is not mounted at a height of 80 inches, plaintiff cites to ADAAG § 4.2.2. However, that section of the ADAAG refers to "Width for Wheelchair Passing." Because plaintiff has failed to tender evidence suggesting that defendant has violated that particular section of the ADAAG, as he must, plaintiff's motion is DENIED as to that barrier, and defendant's motion is GRANTED.
That section of the ADAAG states that "[t]he minimum width for two wheelchairs to pass is 60 in (1525 mm)."
iii. ISA on Exit Doors
Plaintiff avers that at exit doors throughout the store, the "I.S.A. that is provided is not a white figure on a blue background as required by CBC § 1117B.5.8.1," citing SUF 23. The allegation only addresses the California Building Code. Accordingly, plaintiff's motion as to this alleged barrier must be DENIED and defendant's motion must be GRANTED.
iv. ISA Signage for Restroom
Finally, plaintiff contends that defendant has violated § 4.30.6 of the ADAAG by not mounting the ISA signage on the wall adjacent to the restroom door, not on the door itself. Pl.'s Mot. and Opp'n at 6. The court must DENY plaintiff's motion and GRANT defendant's motion as to this alleged barrier because, as defendant argues, this ADAAG requirement applies to those who are blind. Plaintiff's disability is his immobility. As the court explained in the analysis pertaining to "Detectable Warnings at Travel Routes," standing is limited to claims for which the plaintiff is "among the injured." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Defendant's motion must be GRANTED as to this barrier and plaintiff's motion must be DENIED.
Section 4.30.6 of the ADAAG states:
Where permanent identification is provided for rooms and spaces, signs shall be installed on the wall adjacent to the latch side of the door. Where there is no wall space to the latch side of the door, including at double leaf doors, signs shall be placed on the nearest adjacent wall. Mounting height shall be 60 in (1525 mm) above the finish floor to the centerline of the sign. Mounting location for such signage shall be so that a person may approach within 3 in (76 mm) of signage without encountering protruding objects or standing within the swing of a door.
V. CONCLUSION
The parties' motions are GRANTED in part and DENIED in part as specified above.
Plaintiff requests from the court a final judgment of $20,000.00 in statutory damages pursuant to the Unruh Act (five visits multiplied by the statutory minimum of $4,000.000 per visit). See Pl.'s Mot. and Opp'n at 23. Because there remain disputed facts as to the violations upon which plaintiff predicates his Unruh Act claims, it is inappropriate at this time to determine the award of damages.
IT IS SO ORDERED.