Opinion
Case No.: 19-cv-00990-DMS-WVG
11-07-2020
SCOTT SCHUTZA, Plaintiff, v. COSTCO WHOLESALE CORPORATION, a Washington Corporation; and DOES 1-10, Defendants.
ORDER (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND (2) DENYING DEFENDANT COSTCO WHOLESALE CORPORATION'S MOTION FOR SUMMARY JUDGMENT
This case comes before the Court on Plaintiff Scott Schutza's motion for summary judgment and Defendant Costco Wholesale Corporation's motion for summary judgment. For the following reasons, both motions are denied.
I.
BACKGROUND
Plaintiff is a paraplegic who uses a wheelchair for mobility. (Schutza Decl. ¶ 2, ECF No. 37-3.) Defendant Costco Wholesale Corporation ("Costco" or "Defendant") operates warehouse membership clubs which sell goods to its members. (Decl. of Frank Salas in Supp. of Def.'s Mot. ¶ 2 ("First Salas Decl."), ECF No. 36-4.) Defendant owns and operates a Costco location at 101 Town Center Parkway, Santee, California ("the Store"). (Def.'s Resp. to Reqs. for Admis. ¶¶ 5- 8, ECF No. 37-6.) Plaintiff alleges that on at least four occasions in 2018 and 2019, he visited the Store and sought assistance at the membership service counter, but the counter was too high for him to use, and he was denied access to a lowered portion of the counter. Specifically, Plaintiff alleges that on two separate visits, in April 2018 and September 2018, Plaintiff approached the membership counter for assistance and was told by a Store employee on each occasion that he could not be helped at the lowered portion of the counter. (Schutza Decl. ¶¶ 6-8, 11.) As a result, Plaintiff suffered discomfort and embarrassment from having to use a counter that was too high. (Id. ¶¶ 10, 12-14.) Plaintiff visited the Store on two more occasions in May 2019. (Id. ¶ 15.) On those visits, he did not ask whether he could be helped at the lowered counter, and was assisted at the higher counter, which he again found discomforting. (Id.)
On May 27, 2019, Plaintiff filed a complaint against Defendant Costco, alleging claims for: (1) violation of the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq.; and (2) violation of the California Unruh Civil Rights Act, California Civil Code §§ 51-53. (Compl., ECF No. 1.) On June 28, 2020, Costco filed an answer. (ECF No. 3.) On July 24, 2020, the parties filed cross-motions for summary judgment.
II.
LEGAL STANDARD
Summary judgment is appropriate if there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).
The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id.; see also Butler v. San Diego Dist. Attorney's Off., 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing evidence of his own).
More than a "metaphysical doubt" is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must show that evidence in the record could lead a rational trier of fact to find in its favor. Id. at 587. "[M]ere disagreement or the bald assertion that a genuine issue of material fact exists no longer precludes the use of summary judgment." Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989) (citing California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences 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.
"[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its merits." Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (internal citation, alteration, and quotation marks omitted). The court must consider the evidence identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them. Id. at 1134.
III.
DISCUSSION
The parties have filed cross-motions for summary judgment on Plaintiff's ADA claim and Unruh Act claim. In response to Plaintiff's motion, Defendant also raises evidentiary objections to the Declaration of Jerome Hernandez and attached photographs and requests this evidence be stricken.
A. Hernandez Declaration
In support of his motion, Plaintiff submits the Declaration of Jerome Hernandez and several photographs taken by Hernandez. (ECF Nos. 37-5, 37-6.) Defendant argues that this evidence should be stricken under Rule 37(c) because Plaintiff failed to disclose Hernandez as a potential witness during discovery.
"If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Here, the Magistrate Judge ordered fact discovery to be completed on or before April 23, 2020, and expert witness discovery to be completed on or before June 25, 2020. (ECF No. 15, ¶ 6.) Hernandez conducted his inspection of the service counter on July 24, 2020, the same day the parties filed their motions for summary judgment. (Hernandez Decl. ¶ 2, ECF No. 37-5.)
Defendant argues that it was prejudiced by Plaintiff's failure to disclose Hernandez as a witness because it was not able to depose Hernandez regarding his observations and measurements and whether there were post-pandemic changes to the Store that impacted his investigation. Plaintiff contends that he complied with Rule 26's obligation to supplement initial disclosures in a timely manner, because he served a supplemental disclosure identifying Hernandez as a witness immediately after Hernandez's investigation. Further, Plaintiff contends that Defendant is not prejudiced because Defendant has had "unfettered access" to the Store throughout the litigation and could have taken its own measurements to dispute Plaintiff's allegations. (Pl.'s Reply to Def.'s Mot. 3, ECF No. 43.)
Defendant relies on Johnson v. Kriplani, No. Civ. 2:06-CV-02054 JAM GGH, 2008 U.S. Dist. LEXIS 51908 (E.D. Cal. July 2, 2008), in which the court struck declarations and exhibits submitted after the close of discovery. However, in that case, the plaintiff did not respond in opposition to the defendant's motion to strike, and thus did not demonstrate the failure to disclose was harmless or substantially justified. In contrast, in Kalani v. Starbucks Corp., 81 F. Supp. 3d 876, 883-84 (N.D. Cal. 2015), aff'd sub nom. Kalani v. Starbucks Coffee Co., 698 F. App'x 883 (9th Cir. 2017), the court found no harm to the defendant where a witness's site inspection after the close of discovery was limited in scope, corresponding to previously identified barriers.
Here, as in Kalani, Hernandez inspected a previously identified barrier—the membership service counter—that Plaintiff alleges he encountered on his visits to the Store. See also Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 n.2 (9th Cir. 2008) (noting district court's denial of motion to strike site inspection after deadline, which found "[t]o the extent that [the expert] merely inspected those barriers that [Plaintiff] encountered or knew about as a result of his visits to the store, ... [Defendant] was not harmed by these visits."). The Court further agrees with Plaintiff that Defendant could have taken its own measurements or photographs of the Store at any point, and Defendant was on notice that such information may be relevant given Plaintiff's allegations in the Complaint.
Accordingly, the Court declines to strike the Hernandez Declaration and attached photographs under Rule 37(c).
B. ADA Claim
Plaintiff's first claim alleges that Defendant violated the ADA by failing to make a lowered counter at the Store available to him, resulting in discrimination on the basis of disability.
Title III of the ADA prohibits discrimination by public accommodations. 42 U.S.C. § 12182(a). To prevail on a claim for discrimination under Title III of the ADA, Plaintiff must show (1) he is disabled under the definitions provided by the ADA, (2) Defendant is "a private entity that owns, leases, or operates a place of public accommodation," and (3) Plaintiff "was denied public accommodations ... because of [his] disability." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).
Here, neither party disputes that Plaintiff, as a paraplegic who uses a wheelchair for mobility, is disabled within the meaning of the ADA. (See Def.'s Resp. to Pl.'s Statement of Uncontroverted Facts at 1, ECF No. 39-5.) Nor do they dispute that Defendant operates the Store, which is a place of public accommodation. (See id. at 2.) At issue is the third element—whether Plaintiff suffered discrimination because of his disability.
Plaintiff alleges three theories of discrimination under the ADA: (1) the Store's membership service counter is an architectural barrier because it is over 40 inches high and there is no lowered portion available for membership services in violation of the ADA Accessibility Guidelines ("ADAAG"); (2) Defendant failed to maintain the lowered counter in a usable manner that was accessible to people with disabilities; and (3) Defendant failed to make necessary, reasonable modifications to its policies, practices, or procedures to accommodate him. Plaintiff argues there is no genuine dispute as to any material fact. Defendant contends it is entitled to summary judgment because (1) there is no triable issue of fact as to architectural barriers or a violation of the ADAAG, and (2) Plaintiff has no evidence he requested modification of any alleged policy relating to the use of the lowered counter.
1. Architectural Barrier
Plaintiff contends that there was no ADA-compliant membership service counter available to him because the main portion of the counter is too high and he was denied use of the lowered portion. Defendant argues Plaintiff cannot establish an ADA claim because he provides no evidence that the service counter is non-compliant with ADA standards.
Discrimination "on the basis of disability includes a failure to remove architectural barriers where such removal is readily achievable." Doran v. 7-Eleven, Inc., 524 F. 3d 1034, 1043 (9th Cir. 2008) (quoting 42 U.S.C. § 12182); see Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1158 (S.D. Cal. 2006). If a physical element of a place of public accommodation does not meet or exceed the ADAAG, codified at 36 C.F.R. Pt. 1191, it is an architectural barrier under the ADA. See 28 C.F.R. § 36.406(a); 28 C.F.R. Pt. 36, App. A; Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc). A plaintiff can establish discrimination by showing a violation of applicable accessibility standards. See Chapman, 631 F.3d at 945.
i. Height of the Membership Counter
The parties do not dispute that the Store's membership counter had a lowered portion, nor that the lowered portion was an ADA-compliant height. (See Def.'s Resp. to Pl.'s Mot. 15, ECF No. 39; Pl.'s Opp'n to Def.'s Mot. 9, ECF No. 40.) Rather, they dispute whether the height of the main portion of the counter is ADA-compliant.
For a service counter to comply with ADA standards, there must be a portion of the counter at least 36 inches long and no higher than 36 inches above the floor that extends the same depth as the rest of the service counter. 36 C.F.R. Pt. 1191 App. D § 904.4, 904.4.1.
Plaintiff's investigator found the main portion of the service counter to be 41 inches high. (Hernandez Decl. ¶ 4.) Further, Plaintiff's own observations regarding the height of the counter during his visits to the Store are proper evidence in support of his ADA claim. The Ninth Circuit has explicitly held that a plaintiff may prevail on an ADA claim using only evidence based on personal knowledge and observation. Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013). Plaintiff states he is familiar with the lowered, 36-inch-high counters which are typically provided for use by individuals with disabilities, and that on his April 2018 visit to the Store, he immediately noticed the membership service counter was too high for him to use. (Schutza Decl. ¶ 6.) Plaintiff may rely on such observations in his motion for summary judgment. See, e.g., Kohler v. Presidio Int'l, Inc., No. CV104680PSGPJWX, 2016 WL 3766470, at *4 (C.D. Cal. Apr. 19, 2016) (finding genuine dispute of fact, considering testimony in the light most favorable to plaintiff, where plaintiff testified he believed counters to be non-compliant height based on personal observations).
Moreover, Defendant has not provided any evidence, either in support of its own motion or in opposition to Plaintiff's motion, to dispute that the main portion of the membership service counter is over 36 inches high. Defendant asserts only that Plaintiff lacks evidence, which is insufficient to create a dispute of material fact even when viewing the evidence in the light most favorable to Defendant. See Sharp v. Islands Rest.-Carlsbad, 900 F. Supp. 2d 1114, 1122 (S.D. Cal. 2012) (finding defendant's conclusory statements that it "dispute[d]" counter was too high and counter was "accessible" insufficient to create a dispute of material fact); Moore v. Millenium Acquisitions, LLC, No. 114CV01402DADSAB, 2016 WL 8730673, at *8 (E.D. Cal. Mar. 4, 2016), aff'd in part, appeal dismissed in part and remanded sub nom. Moore v. Millennium Acquisitions, LLC, 708 F. App'x 485 (9th Cir. 2018) ("While in conclusory fashion defendants characterize these facts as 'disputed,' they fail to offer any evidence rebutting plaintiff's evidence or raising any question as to the measurements made by plaintiff's expert. Accordingly, there is no genuine dispute as to whether defendants' gas station violated the ADAAG in this regard.").
Accordingly, given Plaintiff's evidence and Defendant's lack of evidence, the Court finds that there is no genuine dispute of fact that the height of the membership counter, excluding the lowered portion, was greater than 36 inches.
ii. Service(s) Available at the Lowered Counter
As discussed above, the parties do not dispute that the service counter had a lowered portion or that the lowered portion complied with ADA counter height requirements. Rather, Plaintiff alleges discrimination based on a failure to provide a lowered counter for membership services.
Specifically, Plaintiff contends the lowered counter was only available for merchandise returns, and thus Defendant violated the ADAAG requirement to provide "at least one type of each sales counter and service counter" at an accessible height by failing to provide a lowered counter for membership services. 28 C.F.R. Pt. 1191 App. B § 227.3. Defendant argues the lowered counter was available for both types of service—merchandise returns and membership services.
The 2010 ADA Standards Advisory explains that types of counters that provide different services include order, pick-up, express, and returns. For example, because order and pick-up are different services, "[i]t would not be acceptable to provide access only to the part of the counter where orders are taken when orders are picked-up at a different location on the same counter. Both the order and pick-up section of the counter must be accessible." Dep't of Justice, 2010 ADA Standards for Accessible Design, Advisory 227.3 Counters, https://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm (last visited November 5, 2020). Accordingly, here, it would not be acceptable to provide access only to the part of the counter where returns are processed, when membership services are handled at a different location on the same counter. The ADAAG requires that there must be an accessible counter for membership services.
During his April 2018 visit to the Store, Plaintiff observed that the lowered portion of the counter was being used to serve customers making returns, evidenced by a sign above the end of the counter that read "Merchandise Returns." (Schutza Decl. ¶¶ 6-7.) Plaintiff approached the membership service counter and asked whether he could be helped at the lowered counter, and an employee responded that he could not be helped there. (Id. ¶ 8.) Defendant contends Plaintiff's assertion that the lowered counter was used exclusively for returns has no basis other than his own observations. However, as discussed above, Plaintiff may properly rely on his own observations. See Strong, 724 F.3d at 1046.
Defendant does not deny that the lowered portion of the counter area at issue was being used for merchandise returns, but presents evidence that it could be used for membership services as well. According to Frank Salas, an Assistant General Manager at the Store, "[a]ny transaction that a member is seeking to complete at the Member Services Desk ... can be done with the member using the lowered portion of the counter at the Member Services Desk." (Decl. of Frank Salas in Supp. of Def.'s Resp. to Pl.'s Mot. ¶ 6 ("Second Salas Decl."), ECF No. 39-4.) In contrast, Plaintiff avers that on two occasions, he approached the membership service counter for assistance and was told he could not be helped at the lowered counter (Schutza Decl. ¶¶ 8, 11), which indicates that the lowered counter could not be used for membership services. Plaintiff further states he understood the lowered counter was used for returns because there was a line of people waiting at that counter that went out a door marked "Return Merchandise." (Dep. of Scott Schutza 46:22-47:5, ECF No. 36-3.)
Although both parties have submitted photos of the counter in question, the photos do not resolve the issue before the Court. Defendants point to a photograph from Exhibit 5 to Plaintiff's deposition as evidence the counter was accessible. (Def.'s Mem. of P. & A. in Supp. of Mot. at 3, ECF No. 36-1; see Ex. B to Def.'s Mot. at 37-43, ECF No. 36-3.) Although the photo does show the lowered portion of the counter, it does not indicate for what service that portion of the counter was used. A sign reading "MEMBERSHIP" is displayed behind the counter, but the photo is cropped and does not show whether the sign reading "Merchandise Returns" observed by Plaintiff is also present. Plaintiff's July 24, 2020 photographs depict a sign reading "MERCHANDISE RETURNS" hanging above the side of the counter featuring the lowered portion. (Ex. 4 to Pl.'s Mot., ECF No. 37-6.) Neither party's photographs conclusively resolve the issue of which services were available at the lowered counter.
The Court finds that a genuine dispute exists over whether the lowered counter was used exclusively for merchandise returns or if it was used for both membership services and merchandise returns. This fact is material to Plaintiff's contention that Defendant failed to provide an ADA-compliant counter. See Lammey v. Bang Ja Kim, No. 218CV09751SJOAGRX, 2020 WL 2082947, at *4 (C.D. Cal. Feb. 28, 2020) ("[T]he factual dispute about the use of the lowered counter—whether it was only a sales counter, or if it also functioned as a service counter—is material to Plaintiff's claim.").
2. Failure to Maintain Accessible Facilities
Plaintiff also alleges discrimination based on Defendant's failure to maintain the lowered portion of the counter. Plaintiff argues that even if Defendant intended the lowered counter to be available for membership services, it was not maintained for that purpose. Defendant contends the maintenance requirement only applies to the physical condition of accessible facilities.
Discrimination can occur where a public accommodation fails to "maintain in operable working condition" accessible features of facilities or equipment so that they are readily usable by individuals with disabilities. 28 C.F.R. § 36.211(a); see Kohler v. Flava Enterprises, Inc., 826 F. Supp. 2d 1221, 1227 (S.D. Cal. 2011); Johnson v. Starbucks Corp., No. C 17-02454 WHA, 2019 WL 1427435, at *3 (N.D. Cal. Mar. 29, 2019), aff'd, 818 F. App'x 657 (9th Cir. 2020) ("Section 36.211(a) merely requires ... that once a facility is brought into compliance with the relevant accessibility standards, that accessibility must be maintained so that persons with disabilities may continue to access and use the facility.").
It "appears reasonably clear that the focus of § 36.211 is objects blocking accessible routes and malfunctioning lifts and elevators." Williams v. Potomac Family Dining Grp. Operating Co., LLC, No. GJH-19-1780, 2020 WL 4207589, a *10 (D. Md. July 22, 2020) (collecting California district court cases). For example, "[i]noperable elevators, locked accessible doors, or 'accessible' routes that are obstructed by furniture, filing cabinets, or potted plants are neither 'accessible to' nor 'usable by' individuals with disabilities." 28 C.F.R. Pt. 36, App. C.
Here, Plaintiff presents no evidence that the counter was not in "operable working condition." Plaintiff's claim is that the counter was not maintained for use by disabled individuals seeking membership assistance. But the regulation's requirement is not simply to maintain an accessible feature so that it is usable—the feature must be maintained in "operable working condition." 28 C.F.R. § 36.211(a). There is no evidence that the lowered counter was inoperable or that it would have been unusable by Plaintiff had he been permitted service there.
As Defendant points out, the cases relied upon by Plaintiff all concern the physical obstruction or condition of an accessible feature. See Kalani, 81 F. Supp. 3d at 884-85 (addressing display baskets and items placed on counter); Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1006-09 (9th Cir. 2015) (addressing aisles blocked by merchandise and display racks); Kohler, 826 F. Supp. 2d 1227-28 (addressing items placed on counter). Plaintiff's cite to Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004), is inapposite because that case involved a policies, practices, and procedures violation, not a failure to maintain. Plaintiff does not cite, and the Court has not found, any case involving a violation of 28 C.F.R. § 36.211(a) where a public accommodation verbally denied permission to use an otherwise operable feature. Section 36.211(a) appears to contemplate situations in which an accessible feature deteriorates, becomes physically obstructed, is turned off, or otherwise rendered physically inoperable. See, e.g., Lozano v. C.A. Martinez Family Ltd. P'ship, 129 F. Supp. 3d 967, 973 (S.D. Cal. 2015) (addressing faded paint indicating accessible parking spots); Kalani, 81 F. Supp. 3d at 884-85 (addressing items obstructing counter); Wagenfeld v. M15 Concert Bar & Grill, LLC, No. EDCV161012MWFSPX, 2017 WL 10562669, at *3-4 (C.D. Cal. May 2, 2017) (addressing claim that defendant removed lift serving loge seating area); Dep't of Justice, Technical Assistance Manual § III-3.7000.5, http://www.ada.gov/taman3.html (last visited November 6, 2020) (stating "[i]noperable or 'out of service' equipment does not meet the requirements for providing access to a place of public accommodation"; noting impermissible activities include turning off elevator during business hours to save energy or deactivating accessible automatic doors because of inclement weather).
Accordingly, the Court finds no triable issue of fact pertaining to Defendant's alleged failure to maintain the lowered counter.
3. Failure to Modify Policies, Practices, or Procedures
Plaintiff next asserts Defendant discriminated against him because Defendant had a practice of using the lower counter for returns only and failed to modify this practice to accommodate Plaintiff's request to use it.
A plaintiff can establish discrimination based on a place of public accommodation's failure to modify "policies, practices, or procedures" where (1) the defendant employed a discriminatory policy or practice, and (2) the defendant failed to make a requested reasonable modification to that policy or practice that was necessary to accommodate the plaintiff's disability. Fortyune, 364 F.3d at 1082, 1086; see 42 U.S.C. § 12182(b)(2)(A)(ii)). A failure to modify policies may constitute discrimination even if a facility's design complies with the ADAAG. See Fortyune, 364 F.3d at 1084-85.
i. Defendant's Alleged Policy
In response to Plaintiff's motion, Defendant argues there is a disputed issue of material fact as to the existence of a policy prohibiting the use of the lowered counter. The Court agrees. As discussed above, Plaintiff alleges the lower counter was used exclusively for returns, which Defendant disputes. This fact, which is disputed and material to Plaintiff's architectural barrier argument, is likewise material to Plaintiff's policies, practices, and procedures argument.
Defendant asserts that "[a]ny transaction that a member is seeking to complete at the Member Services Desk ... can be done with the member using the lowered portion of the counter at the Member Services Desk." (Second Salas Decl. ¶ 6.) Defendant further submits evidence that "[t]here is no 'policy, practice, or procedure' (either written or unwritten) which would require any Costco employee to deny the use of the lowered portion of the counter to wheelchair users" (First Salas Decl. ¶ 3; Second Salas Decl. ¶ 5), and that "[t]ypically, anyone who expresses a need to use that portion of the counter could be permitted to do so" (First Salas Decl. ¶ 4). However, this evidence is contradicted by Plaintiff's assertion that on two separate occasions he was told he could not be assisted at the lowered counter. (Schutza Decl. ¶¶ 8, 11.) This dispute is material because, if other disabled customers are assisted with membership services at the lowered counter consistent with Defendant's claims, that would undermine Plaintiff's contention that Defendant failed to modify a practice in order to accommodate him. See Love v. O'Reilly Auto Enterprises, LLC, No. 19-CV-04005-CRB, 2020 WL 4464908, at *6 (N.D. Cal. Aug. 3, 2020) (finding disputed issue of material fact as to whether customers were regularly assisted at accessible counter).
ii. Plaintiff's Request for Modification
Defendant contends that it is entitled to summary judgment because even if Plaintiff can establish that Defendant had a discriminatory policy, Plaintiff did not request a modification of the alleged policy.
The evidence demonstrates Plaintiff specifically requested to be assisted at the lowered counter in April 2018. He states: "I was greeted by a female employee behind the higher counter. I asked her if it was possible for me to be helped at the lowered portion of the counter and she responded that I could not be helped there." (Schutza Decl. ¶ 8.)
Defendant states "it is undisputed that Plaintiff did not ask Costco management for any modification" of the supposed policy, arguing "[Plaintiff] must actually request a reasonable modification ... of someone who can act on it." (Def.'s Reply in Supp. of Mot. 8 & n.3, ECF No. 42 (emphasis added).) But Defendant cites to no authority for the proposition that a plaintiff's request for modification under 42 U.S.C. § 12182(b)(2)(A)(ii) need be directed to a manager. Cf. Muse v. Home Depot USA, Inc., No. CV04-00154 DAE BMK, 2006 WL 8436438, at *6 (D. Haw. Nov. 7, 2006) (finding sufficient request for modification of defendant's policy where plaintiff informed sales clerk of his condition). Nor does Defendant submit evidence that a non-managerial employee would not have been able to accommodate Plaintiff's request.
Considering both parties' evidence, the Court finds no genuine dispute of material fact that Plaintiff asked to be helped at the lowered counter in April 2018. Defendant is not entitled to summary judgment on this issue because Plaintiff's evidence is sufficient to defeat Defendant's assertion that Plaintiff never requested to use the lowered counter. Moreover, in response to Plaintiff, Defendant does not produce any "specific facts" giving rise to a genuine dispute about Plaintiff's request. See Love, 2020 WL 4464908, at *5 (citing Anderson, 477 U.S. at 256) (finding mere existence of store's policy to "comply with the ADA" insufficient to create dispute concerning plaintiff's allegations that he requested assistance at a lowered counter and was refused).
iii. Plaintiff's Communications with Costco Employees
Defendant argues Plaintiff's allegations regarding his communications with Costco employees are inconsistent and thus warrant denial of Plaintiff's motion for summary judgment. Specifically, Defendant alleges inconsistencies between Plaintiff's deposition and his responses to written interrogatories regarding whether Plaintiff was provided with a clipboard and whether the Costco employee apologized to him. The Court finds these alleged inconsistencies are not material to Plaintiff's claim. Rather, Plaintiff's claim rests on the allegation that he sought assistance at the membership counter and was refused the use of the lowered portion, which he has repeated consistently. (See Dep. of Scott Schutza 34:2-35:19, 46:1-47:5, 49:16-50:6; Pl.'s Am. Resps. to Interrogs. 2-3, ECF No. 39-1; Schutza Decl. ¶ 8.)
4. Conclusion
Plaintiff alleges multiple theories of discrimination to support his ADA claim. His allegations of discrimination based on architectural barriers and discrimination based on a failure to modify policies, practices, and procedures hinge upon disputed issues of material fact regarding Defendant's use of the lowered counter and the type(s) of service available there. Accordingly, summary judgment for either party on Plaintiff's ADA claim is inappropriate.
In response to Plaintiff's motion, Defendant additionally argues there is a question of fact as to whether Plaintiff diligently asserted his rights. The Court declines to address this issue in light of the triable questions of fact and denial of the cross-motions on Plaintiff's ADA claim.
B. Unruh Act Claim
Plaintiff's second claim for relief is based on a violation of the Unruh Act. (Compl. ¶¶ 38-42). The Unruh Act provides for "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments" for "all persons ... no matter what their ... disability." Cal. Civ. Code § 51(b). "[A] violation of the ADA is, per se, a violation of the Unruh Act." Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 847 (9th Cir. 2004); see Cal. Civ. Code § 51(f). Moreover, "no showing of intentional discrimination is required when the Unruh Act violation is premised on an ADA violation." Lentini, 370 F.3d at 847.
Plaintiff's Unruh Act claim is derivative of his ADA claim. Thus, because genuine issues of material fact exist as to the ADA claim, as discussed above, the same issues defeat summary judgment on the Unruh Act claim.
III.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant's motion for summary judgment and DENIES Plaintiff's motion for summary judgment. / / /
IT IS SO ORDERED. Dated: November 7, 2020
/s/_________
Hon. Dana M. Sabraw
United States District Judge