Opinion
Case No. 04cv2186 JM(POR).
September 27, 2005
ORDER GRANTING PLAINTIFF'S VOLUNTARY DISMISSAL OF NEGLIGENCE CLAIM AND PRAYER FOR RELIEF; DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AS MOOT
Plaintiff moves for partial summary judgment on each of Defendants' affirmative defenses asserted in this Americans with Disabilities Act architectural barriers case. Defendants partially oppose the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants Plaintiff's motion to voluntarily dismiss the negligence cause of action and the prayer for relief for actual damages and, in light of Defendants' representation to strike many of the defenses identified herein, denies the remainder of the motion as moot.
BACKGROUND
Plaintiff commenced this action on October 30, 1994, alleging that she encountered architectural barriers when she visited the 7-Eleven store located at 191 W. San Ysidro Blvd., San Ysidro, CA. Plaintiff alleges that she is disabled within the meaning of the ADA and that she has visited the 7-Eleven store on several occasions. The complaint contains a detailed Preliminary Site Accessibility Report that outlines the alleged architectural deficiencies at the 7-Eleven Store. Based on the alleged architectural barriers, in addition to a negligence claim, Plaintiff alleges five statutory causes of action for violation of the ADA, Disabled Persons Act, the Unruh Civil Rights Act, Heath and Safety Code Part 5.5, and Unfair Business Practices Act.
In its answer, Defendants identify 16 defenses to Plaintiff's claims: (1) failure to state a claim; (2) lack of standing; (3) statute of limitations; (4) latches; (5) failure to mitigate damages; (6) acts or omissions of Plaintiff; (7) failure to give notice; (8) estoppel; (9) failure to state a basis for punitive damages; (10) waiver of punitive damages; (11) good faith of Defendants; (12) punitive damages violate constitution; (13) compliance with applicable laws; (14) no injury to Plaintiff; (15) failure to plead with certainty and particularity; and (16) additional defenses. Plaintiff now moves for summary on the affirmative defenses on the ground that Defendants have failed to identify any evidence supporting the defenses.
DISCUSSION
Legal Standards
A motion for summary judgment shall be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). There is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original). The opposing party cannot rest on the mere allegations or denials of a pleading, but must "go beyond the pleadings and by [the party's] 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.'" Id. at 324, 106 S.Ct. At 2553 (citation omitted). The opposing party also may not rely solely on conclusory allegations unsupported by factual data.Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The court must examine the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994 (1962). Any doubt as to the existence of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Motion
Plaintiff moves for partial summary judgment on the defenses asserted in the Answer on the ground that Defendants' interrogatory responses indicate that there is no evidence to support the affirmative defenses. In their response to Plaintiff's interrogatory request to identify all facts used to support the affirmative defenses, Defendants responded, among other things, that it was premature to identify supporting facts because discovery and investigation had "just begun." (Hubbard Decl. Exh. A). Based upon Defendants failure to identify the factual basis for the affirmative defenses, Plaintiff now moves for summary judgment.
The court notes that the concessions and representations of the parties has substantially narrowed the scope of Plaintiff's motion. Based upon the parties' representations, the only affirmative defenses which are being pursued by Defendants are the defenses of failure to mitigate damages and contributory negligence. (Opposition at p. 2:8-9). Plaintiff, however, has mooted these two disputed defenses by voluntarily dismissing her claim for actual damages (Plaintiff will pursue statutory damages only) and her cause of action for negligence, thus mooting Defendant's affirmative defense based upon the acts or omissions of Plaintiff.
Defendants voluntarily agree to strike the following defenses from its Answer: failure to give notice, failure to state a basis for punitive damages, waiver of punitive damages, good-faith of defendants, punitive damages violate the constitution, compliance with applicable laws, no injury to Plaintiff, failure to plead with certainty and particularity, statute of limitations, latches, and estoppel. (Opposition at p. 1:18-2:6).
The only remaining issues relate to Defendants' asserted defenses concerning those defenses that are "not true affirmative defenses." (Opposition at p. 10:1; Reply at p. 2:9-10). The parties appear to be in agreement that the defenses of lack of standing and failure to state a claim are not subject to challenge on Plaintiff's motion. (Reply at p. 2:9-10).
In sum, the court grants with prejudice Plaintiff's voluntary dismissal of the negligence cause of action and the prayer for actual damages. The court also denies the motion as moot with respect to the negligence cause of action and prayer for actual damages because Plaintiff has voluntarily dismissed this claim and prayer for relief. Finally, the court also denies the motion as moot with respect to the defenses voluntarily stricken by Defendants.
IT IS SO ORDERED.