Opinion
No. 2 CA-CV 2019-0136
05-12-2020
MANNY LOPEZ, Plaintiff/Appellant, v. NATIONAL BANK OF ARIZONA, Defendant/Appellee.
COUNSEL Manny Lopez, Tucson In Propria Persona Law Office of Kelli K. Williams, Scottsdale By Kelli K. Williams Counsel for Defendant/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20172340
The Honorable Janet C. Bostwick, Judge
AFFIRMED
COUNSEL Manny Lopez, Tucson
In Propria Persona Law Office of Kelli K. Williams, Scottsdale
By Kelli K. Williams
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Manny Lopez appeals the trial court's grant of summary judgment in favor of National Bank of Arizona in his personal-injury action premised upon alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (ADA). We affirm.
Factual and Procedural Background
¶2 "We review the grant of summary judgment de novo, taking the evidence and all reasonable inferences in the light most favorable to the nonmovant." Villasenor v. Evans, 241 Ariz. 300, ¶ 9 (App. 2016). In March 2016, Lopez, a disabled veteran, went to a physical-therapy appointment at a building owned by National Bank, where he found the three designated disabled parking spaces closest to the entrance obstructed by traffic cones to facilitate a lunchtime food truck. As a result, Lopez had to park in a disabled parking space further away from the entrance and was required to walk "a couple hundred feet," which he alleged "reinjured" him and caused pain in his neck, back, legs, and stomach, as well as headaches and sleepless nights. Lopez reported the obstruction to a groundskeeper, who said he would remove the cones; National Bank subsequently informed the food truck operator and other vendors that they could not obstruct the disabled parking spaces. The cones obstructed the spaces for no more than three hours that day.
¶3 Two weeks later, in April, Lopez parked in one of the three disabled spaces closest to the entrance of the building and, upon returning to his car, found cones blocking the disabled-parking-space section, such that he could not leave until someone moved them. Lopez yelled at the food-truck employees, who immediately moved the cones, allowing him to exit. There is no evidence of the spaces being obstructed other than in these two instances.
¶4 The next day, Lopez filed a complaint with the Arizona Attorney General's Office, alleging he had been "discriminatorily denied" "goods, services and privileges" because of the March and April incidents. In 2017, after receiving notice of his right to sue from the Attorney General's Office, Lopez brought an action against National Bank. He alleged National Bank had "purposely discriminatorily denied [him] disability public accommodations" in violation of the ADA when it obstructed the three disabled parking spaces with cones in March and when the cones blocked his car in April. He further alleged those incidents had "reinjured" him and caused "additional pain" in his neck, back, legs, and stomach, as well as headaches and sleepless nights, requiring additional physical therapy.
National Bank initially moved to dismiss Lopez's complaint as untimely because although he mailed the complaint within thirty days of the notice of his right to sue, the complaint was not filed within thirty days pursuant to A.R.S. § 41-1471(B). The trial court denied National Bank's motion.
¶5 National Bank moved for summary judgment, arguing there was no genuine issue of material fact and the undisputed facts established: (1) Lopez's alleged injuries were "not fairly traceable to any alleged act and/or omission on the part of [National Bank]"; (2) the cones did "not represent a structural barrier within the meaning of A.R.S. § 41-1492.02(G)(4)"; (3) Lopez was not denied access to the building, as he was able to park in an alternative disabled space; and (4) "the parking lot met ADA standards for accessible design."
¶6 At the hearing on National Bank's motion, Lopez argued he had been denied access to the building in March because of the cones that blocked the three disabled parking spaces closest to the entrance. Lopez acknowledged that he did not know who had placed the cones in the parking lot that day and that the groundskeeper had said he would remove them.
¶7 When the trial court asked Lopez what his discrimination claim was as to the April incident, Lopez indicated he was not alleging discrimination, but rather retaliation: "Because I was the only car there. They knew what I was driving, and they put the cones up purposefully, because I was the only car there. They knew what I was driving. And I think I was targeted by them because after I made my complaint the first time around." Lopez explained that he had been able to use a disabled space that day, but cones were placed behind his car, thus blocking him in, and that food-truck employees immediately moved the cones when he "yelled at them." Because Lopez had not alleged retaliation in either his complaint in superior court or his complaint with the Attorney General, the court found he could not pursue that claim.
¶8 National Bank countered that the incidents were temporary interruptions and therefore did not violate the ADA. Lopez, however, argued: "Any blockage of disabled parking at any time of day or night is a violation of ADA." He also contended the disabled parking spaces had been obstructed in March for three hours and that "[t]hree hours is not temporary."
¶9 The trial court found the material facts were not in dispute, assumed National Bank was responsible for the cones in the March and April incidents, and concluded "the legal question is whether the cones caused more than an isolated and temporary interruption in access or services within the [28 C.F.R.] § 36.211(b) exception." Because the March incident was the only occasion access to a disabled parking space was obstructed, the court concluded it "was truly an isolated incident, temporary over lunchtime one day, did not affect all designated spaces, and was corrected promptly upon notice." The court explained that because it had been an isolated and temporary obstruction, the § 36.211(b) exception applied and "[t]here was no ADA violation as a matter of law." The court further concluded that "[w]hile there are other grounds for summary judgment as well, this legal issue is dispositive" and granted National Bank's motion for summary judgment. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Summary Judgment
¶10 Lopez argues the trial court erred by granting summary judgment because there was a genuine issue of material fact. A motion for summary judgment should only be granted if "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). "On appeal from a summary judgment, we determine de novo whether any genuine issues of material fact exist and, if not, whether the trial court erred in applying the law." Miller v. Hehlen, 209 Ariz. 462, ¶ 5 (App. 2005).
¶11 Lopez contends there are genuine issues of material fact regarding who set up the cones and whether National Bank or the non-party food truck was responsible for them. Lopez does not, however, cite any legal authority supporting his argument that if National Bank was responsible for the cones—a fact the trial court assumed to be true—he would be entitled to judgment in his favor. Therefore, this argument is waived. See Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must contain citations of legal authorities supporting argument); Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143 (App. 1987) (it is not incumbent on this court to develop legal arguments for a party); see also Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017) (self-represented litigant held to same standard as attorney and not afforded special leniency). However, even on the merits of Lopez's claim, the result would not change.
Although Lopez only cited the ADA in his complaint, the trial court considered and applied Arizona law, including the Arizonans with Disabilities Act of 1992, A.R.S. §§ 41-1492 to 41-1492.12 (AzDA). Because Arizona law is consistent with and substantially similar to the ADA, for simplicity, we discuss Lopez's claims under the ADA. See 1992 Ariz. Sess. Laws, ch. 224, §§ 1(B)(4), (C), 5 ("Arizonans with disabilities act of 1992" intended to be "consistent with the Americans with disabilities act of 1990 [42 U.S.C. §§ 12101-12213 and 47 U.S.C. §§ 225, 611] and its implementing regulations").
¶12 The "ADA prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations." Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005) (citing 42 U.S.C. § 12182(a) ("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.")). A "public accommodation" includes, among other things, the "professional office of a health care provider." 42 U.S.C. § 12181(7)(F).
¶13 "An ADA discrimination claim 'requires that a plaintiff establish that (1) he or she is disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of public accommodation; and (3) that the defendants discriminated against the plaintiff within the meaning of the ADA.'" Hillesheim v. Myron's Cards & Gifts, Inc., 897 F.3d 953, 956 (8th Cir. 2018) (quoting Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008)). It appears undisputed that Lopez is disabled within the meaning of the ADA and that National Bank owns the building and the parking lot at issue. Therefore, we focus only on the third element.
¶14 Discrimination can occur when a public accommodation is not "readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1). Generally, therefore, public accommodations "shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the [ADA]." 28 C.F.R. § 36.211(a). "That regulation, however, 'does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.'" Hillesheim, 897 F.3d at 956 (quoting 28 C.F.R. § 36.211(b)). Further, the United States Department of Justice's "ADA Title III Technical Assistance Manual" explains, "An isolated instance of placement of an object on an accessible route would not be a violation, if the object is promptly removed." U.S. Dep't of Justice, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities § III-3.7000, https://www.ada.gov/taman3.html (last visited Apr. 28, 2020).
¶15 To the parties' knowledge, the March incident was the first and last time a disabled person was denied access to a disabled parking space. And, Lopez was not denied access to a disabled parking space in April, but rather was unable to exit the space in his car until the cones were removed by the food-truck employees, which happened immediately upon his request. Lopez admits in his opening brief that "the parking problem has been solved." Further, the undisputed facts establish that the cones were promptly removed once Lopez complained in March. Therefore, National Bank did not violate the ADA. See id. Because there was no ADA violation, summary judgment was appropriate. See Ariz. R. Civ. P. 56(a); Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9 (App. 2006) ("We may affirm the trial court's ruling if it is correct for any reason apparent in the record.").
Lopez also presents the following issues: the trial court's denial of his "objection to defendant's untimely answer," its denial of his retaliation claim, whether the court was "really confused about" his April claim, whether National Bank violated the ADA when it obstructed the disabled spaces nearest to the building, whether National Bank owns the building and parking lot and has control over the cones, whether National Bank has "legal grounds" for obstructing the spaces for maintenance and repairs, and whether National Bank was responsible for the March and April incidents. He also appears to contend the court "improperly weighed evidence" and did "not believ[e]" him. Lopez, however, fails to develop these arguments and cites no supporting authority. Therefore, we do not address them. See Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must contain citations of legal authorities supporting argument); Ace Auto. Prods., 156 Ariz. at 143; see also Flynn, 243 Ariz. 76, ¶ 24.
Attorney Fees
¶16 National Bank requests its attorney fees and costs on appeal pursuant to A.R.S. § 41-1472(C) and 42 U.S.C. § 12205. Specifically, it argues Lopez's appeal "was unreasonable and without foundation as it covered claims that were brought up for the first time at the Summary Judgment hearing . . . as well as unsupported and unargued [i]ssues [p]resented." National Bank also appears to suggest Lopez abused discovery by repeatedly failing to disclose his other discrimination lawsuits in which he alleged injuries similar to those alleged here.
¶17 Section 41-1472(C) provides that in AzDA enforcement actions, "[t]he court shall not award attorney fees to a prevailing defendant unless the plaintiff's complaint was frivolous, unreasonable or without foundation." Because § 41-1472(C) does not define "frivolous," "unreasonable," or "without foundation," we look to A.R.S. § 12-349(A)(1) and (4), which provide that a court shall award attorney fees and costs in a civil action if a party has brought a claim "without substantial justification" or has "engage[d] in abuse of discovery." "'[W]ithout substantial justification' means that the claim or defense is groundless and is not made in good faith." § 12-349(F). These elements "must be proven by a preponderance of the evidence and 'the absence of even one element render[s] the statute inapplicable.'" Reynolds v. Reynolds, 231 Ariz. 313, ¶ 16 (App. 2013) (quoting Cypress on Sunland Homeowners Ass'n v. Orlandini, 227 Ariz. 288, ¶ 49 (App. 2011)).
¶18 Based on the record before us, National Bank did not show by a preponderance of the evidence that Lopez brought his claim without substantial justification, or that his claim was frivolous or unreasonable. Cf. Compassionate Care Dispensary, Inc. v. Ariz. Dep't of Health Servs., 244 Ariz. 205, ¶ 37 (App. 2018) ("The mere fact that a party is ultimately unable to sustain its claims in defense of a motion for summary judgment does not automatically equate to a determination that the complaint itself was frivolous, unjustified, or put forth for an improper purpose."). Accordingly, we deny its request for attorney fees and costs under § 41-1472(C).
¶19 Similarly, 42 U.S.C. § 12205 provides that in any ADA enforcement action, "the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs." In our discretion, we deny National Bank's request for attorney fees and costs under § 12205.
¶20 As the prevailing party, National Bank is entitled to taxable costs pursuant to A.R.S. § 12-341, upon compliance with Rule 21(b), Ariz. R. Civ. App. P.
Disposition
¶21 For the foregoing reasons, we affirm.