Jankey v. Twentieth Century Fox Film Corp.

• Decision Date: 06 August 1998
• Docket Number: No. CV 97-8948 LGB (AJWx).,CV 97-8948 LGB (AJWx).
• Citation: 14 F.Supp.2d 1174
• Court: U.S. District Court — Central District of California
• Parties: Les JANKEY, Plaintiff, v. TWENTIETH CENTURY FOX FILM CORPORATION, Defendant.

14 F.Supp.2d 1174

Les JANKEY, Plaintiff, v. TWENTIETH CENTURY FOX FILM CORPORATION, Defendant.

No. CV 97-8948 LGB (AJWx).

United States District Court, C.D. California.

August 6, 1998.

COPYRIGHT MATERIAL OMITTED

Thomas E. Frankovich, San Francisco, CA, for Plaintiff.

David Raizman, Bryan Cave, LLP, Santa Monica, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS CONVERTED TO MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S STATE LAW CLAIMS

BAIRD, District Judge.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

Defendant's motion to dismiss, converted by this Court into a motion for summary judgment on the issue of whether Twentieth Century Fox film studio is a "public accommodation" covered by the ADA, came on regularly for hearing on August 3, 1998. Having carefully considered the papers submitted and oral argument of counsel, the Court hereby GRANTS summary judgment in favor of defendant. As the only remaining claims are state law claims, this Court DECLINES to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3), and DISMISSES the remaining claims.

This case arises from the alleged inaccessibility to disabled persons of the facilities of defendant Twentieth Century Fox Film Corporation's ("Fox") film studio.

On December 4, 1997, plaintiff Les Jankey ("Jankey") filed his Complaint, alleging (1) violation of the Americans with Disabilities Act ("ADA") (42 U.S.C. § 12101 et seq.); (2) breach of Cal. Health and Safety Code § 19955; (3) violation of Cal.Civ.Code §§ 54, 54.1, 54.3 et seq.; and (4) violation of Cal.Civil Code §§ 51, 51.5. The jurisdiction of this Court is based on 28 U.S.C. § 1331 (federal question), specifically, 42 U.S.C. § 12182.

On February 6, 1998, defendant Fox filed a Motion to Dismiss and in the Alternative, Motion to Strike, plaintiff Jankey's Complaint. On March 2, 1998, Jankey filed an Opposition. On March 9, 1998, Fox filed a Reply. Fox's motion to dismiss was brought primarily on the basis that the Fox film studio is not a place of public accommodation, and therefore not subject to the ADA. Evidence outside the pleadings was presented.

The Court wished to consider the outside evidence. Should plaintiff's ADA claim be dismissed, federal jurisdiction over this case would then be absent, and the supplemental state law claims would be subject to dismissal pursuant to 28 U.S.C. § 1367(c)(3). On this basis, by Minute Order March 11, 1998, the motion to dismiss was converted to a motion for summary judgment on the issue of whether the Twentieth Century Fox film studio is covered by the ADA as a "public accommodation." The parties were permitted to file evidence on or before March 23, 1998 on this issue.

On March 23, 1998, Fox filed a Statement of Uncontroverted Facts and Conclusions of Law, and several supporting declarations. Plaintiff Jankey, however, rather than filing evidence, filed a "Response to and Request That The Court Strike The Court's Minute Order That Defendant's Motion To Dismiss Will Be Treated As A Motion for Summary Adjudication, Or, In The Alternative, To Oppose The Motion For Summary Adjudication," on March 23, 1998. Defendant filed a "Response to Plaintiff's Request" on March 23, 1998. Plaintiff filed a "Response to Defendant's Reply [Response]," on March 30, 1998. In plaintiff's Response, plaintiff presented a motion pursuant to Fed.R.Civ.P. 56(f). That motion was denied by Minute Order March 31, 1998, because it was unsupported by a declaration as required by Nidds v. Schindler Elevator Corp., 103 F.3d 854, 862 (9th Cir.1996) and Fed.R.Civ.P. 56(f). However, plaintiff was granted leave to file a Rule 56(f) motion in conformity with the Federal Rules on or before April 7, 1998. Plaintiff did so, and plaintiff's Rule 56(f) motion was granted by Minute Order issued April 22, 1998. Pursuant to the April 22, 1998 Minute Order, plaintiff's Supplemental Opposition was to be filed on or before June 29, 1998.

Plaintiff's Supplemental Opposition was filed June 29, 1998. Although plaintiff's original Complaint identified at least twelve allegedly offending sites at the Fox film studio, as well as others "too numerous to list herein" (Compl. ¶ 25), plaintiff's Supplemental Opposition identifies just "three sites owned by [Fox] that are public accommodations," the Commissary, the Studio Store, and the ATM. (Supp. Opp. 2:7-11.) However, these three sites are all located within the lot. Therefore, although Jankey's Supplemental Opposition makes clear that Jankey is contending that these three sites are the only sites on the Fox studio lot which he is alleging violate the ADA, the proper analysis of the three sites also requires an analysis of the lot itself. (Supp. Opp. 2:7-16.) Nevertheless, plaintiff is considered to have waived any claim that any other sites violate the ADA, and this Memorandum addresses the lot itself only in order to properly address whether any of the three specific sites are "public accommodations" covered by the ADA.¹

On June 29, 1998, Fox filed an Ex Parte application seeking an extension of the deadline for filing its own Supplemental Reply, otherwise due July 6, 1998. The Ex Parte application was granted on July 6, 1998, extending the deadline until July 20, 1998. Fox's Supplemental Reply was filed July 21, 1998.²

II. APPLICABLE LEGAL STANDARDS

A. Motion for Summary Judgment

Summary judgment shall be granted if the evidence supporting the motion for summary judgment shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party moving for summary judgment may carry its initial burden by pointing out to the district court that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The plain language of Rule 56(c) mandates the entry of summary judgment, 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." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. If the nonmoving party bears the burden of proof at trial, the moving party may carry its burden by showing an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

To avoid summary judgment, the non-movant must set forth specific facts showing that there remains a genuine issue of material fact for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading." A factual dispute is "genuine" if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor. Id. 477 U.S. at 255, 106 S.Ct. 2505. If the nonmoving party's evidence is merely colorable or is not significantly probative, then summary judgment may be granted. Id. 477 U.S. at 249-50.

B. "Public Accommodations" Under the ADA

Section 302(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12182(a), provides, in pertinent part, as follows:

No individual shall be discriminated against on the basis of a 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.

(Emphasis added.)

Whether a particular facility is a "public accommodation" under the ADA is a question of law. See, e.g., Carparts Distrib. Center v. Automotive Wholesaler's, 37 F.3d 12 (1st Cir.1994); Kotev v. First Colony Life Ins. Co., 927 F.Supp. 1316, 1320-1323 (C.D.Cal.1996).

The purpose of the ADA is to insure that "individuals with disabilities [may] fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public." Carparts, 37 F.3d at 20. The determination of whether a facility is a "public accommodation" for purposes of coverage by the ADA therefore turns on whether the facility is open "indiscriminately to other members of the general public." See, e.g., 42 U.S.C. § 12181(10) (covered public transportation is that which "provides the general public with general or special service ..."); 28 C.F.R. § 36.308(a)(1)(ii)(B) (covered assembly areas must "provide lines of sight and choice of admission prices comparable to those for members of the general public").

The ADA includes an exhaustive, not merely exemplary or illustrative, list of private entities which are nevertheless considered "public accommodations." The list includes, inter alia,

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; ...

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.

42 U.S.C. § 12181(7).

"Many facilities that are classified as public accommodations are open only to specific invitees." Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 759 (D.Or.1997). The district court in Independent Living offered the following examples of public accommodations covered under the ADA (in dicta): "a facility that specializes in hosting wedding receptions and private parties [which] may be open only to invitees of the bridge and groom"; a convention center in which a political convention is held, "[a]ttendance at [which] is strictly controlled"; "[a] gymnasium or golf course ... open only to authorized members and their guests"; and a private school. Independent Living, 982 F.Supp....