Indep. Housing Services v. Fillmore Ctr., No. C 91-1220 BAC.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Citation: 840 F. Supp. 1328
• Decision Date: 28 December 1993
• Docket Number: No. C 91-1220 BAC.
• Parties: INDEPENDENT HOUSING SERVICES OF SAN FRANCISCO; California Association of Persons with Handicaps; Independent Living Center of San Francisco, Plaintiffs, v. FILLMORE CENTER ASSOCIATES; DMJM; San Francisco Redevelopment Agency; Fillmore Center Project Corporation, Defendants.

840 F. Supp. 1328

INDEPENDENT HOUSING SERVICES OF SAN FRANCISCO; California Association of Persons with Handicaps; Independent Living Center of San Francisco, Plaintiffs,
v.
FILLMORE CENTER ASSOCIATES; DMJM; San Francisco Redevelopment Agency; Fillmore Center Project Corporation, Defendants.

No. C 91-1220 BAC.

United States District Court, N.D. California.

December 28, 1993.

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Furth, Fahrner & Mason, San Francisco, CA, Disability Rights Educ. and Defense Fund, Sidney Wolinsky, Berkeley, CA, for plaintiffs

McCutchen, Doyle, Brown & Enersen, Farella, Braun & Martell, Bronson, Bronson & McKinnon, San Francisco, CA, for defendants.

ORDER

CAULFIELD, District Judge.

BACKGROUND

This lawsuit arises out of the construction of Fillmore Center ("the project") in San Francisco. The project consists of 1,113 mixed-rent housing units¹ and was started in 1984 as a redevelopment project. San Francisco Redevelopment Agency ("Agency") assembled and cleared the land for redevelopment. The Agency contracted to sell the land to Fillmore Center Associates ("FCA") on December 16, 1985 and the land was finally conveyed to FCA, the owners/developers, on July 16, 1987, after the Agency approved the schematic drawings and preliminary construction documents for the site. Construction began in 1987. The last residential unit in the project was completed in September 1991, after this suit commenced.

FCA was in bankruptcy at the time these motions were originally heard (September 10, 1992). FCA has since received a discharge in bankruptcy and Fillmore Center is now owned by Fillmore Center Project Corporation ("FCPC"). FCA did not participate in the original briefing of these motions or at the September hearing, but it and FCPC have since submitted memoranda in response to plaintiffs' motion.

Plaintiffs sued the owners of the project (FCA, now FCPC), the architects of the project, defendants Daniel, Mann, Johnson & Mendenhall ("DMJM"), and the Agency for violation of federal, state, and local handicap access laws.

INTRODUCTION

The following motions are before the court:² (1) motion for summary adjudication on behalf of Plaintiffs Independent Housing Services of San Francisco ("IHS"), California Association for the Physically Handicapped ("CAPH"), and Independent Living Center of San Francisco ("ILRC") (collectively "Plaintiffs"); (2) motions for summary judgment on behalf of the Agency, in which FCPC and FCA have joined, in part; (3) motion to dismiss the First Amended and Supplemental Complaint (or, alternatively, to dismiss the first cause of action) by DMJM (in which the Agency joins); (4) motion for summary judgment by the Agency on the new Americans with Disabilities Act ("ADA") claim.

In their motion for summary adjudication, plaintiffs seek a determination that Fillmore Center is subject to Title 24 of the California Building Standards Code ("Title 24") and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Defendant DMJM seeks summary judgment on the grounds that all plaintiffs lack standing, that there is no private right of action for damages under California Business and Professions Code § 17200 for Damages, and that DMJM did not violate plaintiffs' civil rights under section 1983. DMJM also seeks to dismiss the first cause of action on the basis that it fails to state a claim upon which relief can be granted.

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Defendant Agency seeks summary judgment on the grounds that it had no duty under state law to determine whether (1) Fillmore Center complied with the state laws at issue, (2) it has absolute immunity from the liability alleged, (3) it has not violated any state law (Government Code §§ 4450 and 11135, the Unruh Civil Rights Act, and the Unfair Business Practices Act), (4) the state claims are barred by the statute of limitations, (5) it has not violated section 504 of the Rehabilitation Act, that it has not violated the Architectural Barriers Act, (6) it has not violated section 1983, (7) the federal claims are barred by the statute of limitations, and (8) that laches bars any equitable relief.

FCA and FCPC join in the Agency's motions concerning laches and the statute of limitations and DMJM's motion concerning standing, and the California Business and Professions Code, and FCA joins in the motion for summary judgment on the section 1983 conspiracy claim (FCPC is not named as a defendant on that claim).

Prior Orders of This Court

Order of October 16, 1991

In the order of October 16, 1991, in response to DMJM's motion to dismiss, this court dismissed (1) the Rehabilitation Act and Architectural Barriers Act claims against DMJM, (2) the California Government Code § 11135 claim against DMJM, and (3) the damages claims under California Government Code § 4450 and the Unruh Civil Rights Act against DMJM. The court denied (1) the motion to dismiss the section 1983 claim against DMJM, (2) the motion to dismiss the California Government Code § 4450 and the Unruh Civil Rights Act claims for injunctive relief against DMJM, and (3) the motion to dismiss the Unfair Business Practices Act claim against DMJM.

Order of October 22, 1992

In its order of October 22, 1992, this court ordered further briefing, inter alia, on certain HUD regulations under the Rehabilitation Act, including whether the regulations allegedly at issue were in effect during the relevant period. The court also ordered further briefing on whether a section 1983 claim can be based on a violation of the Rehabilitation Act, and to what relief plaintiffs may be entitled were they to prevail on any of their claims.

Order of January 22, 1993

In the order of January 22, 1993, in response to plaintiffs' motion to amend and supplement their complaint, this court granted (1) the motion to add FCPC (the successor to the bankrupt FCA) as a party, (2) the motion to add a cause of action under the Americans with Disabilities Act against the Agency, (3) the motion to add a cause of action under Health and Safety Code section 17910 et seq., and (5) the motion to add a prayer for punitive damages. The court denied the motion to add a cause of action under Health and Safety Code § 19955 against DMJM and the Agency and held that whether this cause of action should be permitted against FCPC may be addressed by a motion once FCPC is a party.

DISCUSSION

A. The Standard for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides for summary judgment where no genuine issue exists as to any material fact and where the moving party is entitled to judgment as a matter of law. The moving party bears the responsibility of identifying for the court the portions of the record that demonstrate the absence of a genuine issue of material fact, but need not support its motion with evidence "negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Rather, summary judgment will be granted "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." Id., 477 U.S. at 322, 106 S.Ct. at 2552.

If the moving party will bear the burden of proof at trial, the moving party must present evidence which, if uncontradicted, would entitle it to a directed verdict at trial. Once it has done so, the burden shifts to the nonmoving party to present specific facts showing

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that contradiction is possible. British Airways Board v. Boeing Co., 585 F.2d 946, 950-952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). A mere "scintilla" of evidence will not suffice; the non-moving party must show that the fact-finder could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The court must accept the non-moving party's evidence as true; all inferences are to be drawn in the light most favorable to the non-moving party. Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987)

B. Standing

All defendants claim that summary judgment should be granted in their favor because all plaintiffs lack standing.³ The court finds that IHS does have standing to pursue its claims against all defendants in its own capacity. The court finds that CAPH and ILRC do not have standing to sue any of the defendants.

In Lujan v. Defenders of Wildlife, ___ U.S. ___, ___ - ___, 112 S.Ct. 2130, 2136-38, 119 L.Ed.2d 351 (1992) (citations omitted), the Supreme Court stated:

The irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

The party invoking federal jurisdiction bears the burden of establishing these elements.

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"The `injury in fact' test requires more than an injury to a cognizable interest. It requires the party seeking review be himself among the injured." To survive the Secretary's summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed endangered species were in fact being threatened by funded activities abroad, but also that one or more of respondents' members would thereby be

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