Langer v. Kiser

• Citation: 516 F.Supp.3d 1066
• Decision Date: 01 February 2021
• Docket Number: Case No.: 3:18-cv-00195-BEN-NLS
• Court: U.S. District Court — Southern District of California
• Parties: Chris LANGER, Plaintiff, v. Milan KISER, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003; Diana Kiser, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003, Defendants.

516 F.Supp.3d 1066

Chris LANGER, Plaintiff,

v.Milan KISER, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003; Diana Kiser, in individual and representative capacity as trustee of the Milan and Diana Kiser Revocable Trust dated August 19, 2003, Defendants.

Case No.: 3:18-cv-00195-BEN-NLS

United States District Court, S.D. California.

Signed February 1, 2021

Dennis J. Price, II, Isabel Rose Masanque, Christopher A. Seabock, Bradley Alan Smith, Potter Handy LLP, Matt Valenti, Valenti Law APC, San Diego, CA, for Plaintiff.

Samy S. Henein, Suppa Trucchi and Henein, San Diego, CA, for Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER OF DISMISSAL

ROGER T. BENITEZ, United States District Judge

I. INTRODUCTION

Plaintiff Chris Langer ("Plaintiff") brings this action under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et. seq. (the "ADA"), and California's Unruh Civil Rights Act, CAL. CIV. CODE , §§ 51 - 53 (the "UCRA"), against Defendants Milan and Diana Kiser, as individuals and in their representative capacities as trustees of the Milan and Diana Kiser Revocable Trust dated August 19, 2003 (collectively, "Defendants") for discrimination by failing to provide full and equal access to the parking lot they own that Plaintiff was unable to access due to his disabilities. Complaint, ECF No. 1 ("Compl."). Defendants counterclaimed for trespass. Answer and Counterclaim, ECF No. 20. Plaintiff tried his claims to the Court without a jury on September 30, 2020. Minute Order, ECF No. 84.

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, these findings of fact, conclusions of law, and order constitute the Court's final decision with respect to the bench trial it conducted on Plaintiff's claims against Defendants and are based on the testimony at trial, exhibits admitted into evidence, arguments of counsel, and entire record in this case. The Court finds that while Plaintiff has Article III standing, the subject property (a private parking lot) was not a place of public accommodation, and the owners of the property did not discriminate against Plaintiff by failing to offer an ADA-complaint place to park his vehicle. These findings of fact and conclusions of law are outlined below.

II. FINDINGS OF FACT

A. Stipulations

At the beginning of trial, the parties stipulated that:

1. Defendants are the trustees of the Milan and Diana Kiser Revocable Trust, which owns the mixed-use real property located at 3002 Barnett Avenue, San Diego, California 92110 (the "Property"), and owned the Property in this capacity in 2017. Trial Trans. ("Tr.") at 3:12-14, 96:4-8; see also Defendants’ Opposition to Plaintiff's Motion for Summary Judgment, ECF No. 25 at 3:8-11.

2. Even though Plaintiff's complaint in this case made allegations of barriers to access against both the 1 Stop Smoke Shop (the "Smoke Shop") and Gour Maine Lobster shop/Wallpaper store (the "Lobster Shop"), Plaintiff is not pursuing any violations against the Smoke Shop and is limiting his case to proving there was no van accessible parking at the Lobster Shop. Tr. at 2:7-10.

3. Plaintiff took 52 photographs on September 19, 2017. Tr. at 27:18-19.

4. Plaintiff has filed close to 2,000 ADA cases. Tr. at 46:5-47:12.

B. Findings of Fact

After considering the testimony, evidence, and record, the Courts finds the following facts:

1. On September 19, 2017, the day that Plaintiff visited the Property:

a. Defendants owned the Property, which is a mixed-use property.

b. The Property includes an East Lot and West Lot, as defined below.

c. Defendants leased the Property to residential and commercial tenants.

d. Mr. Taylor leased space from Defendants for his business, the Lobster Shop, and his wife's business, Gael's Wallpaper, pursuant to a lease agreement.

e. Defendants did not offer parking in the East Lot to anyone other than their tenants as indicated by the (1) lack of signs advertising that vehicles driving by should enter and park inside the East Lot; (2) two signs on each side of the gate to the East Lot, stating that open public parking was prohibited; (3) numerous signs inside the East Lot, stating that parking was for tenants; and (4) numbers on each space, indicating each space was assigned.

f. Under the lease agreement between Defendants and Mr. Taylor, Mr. Taylor was allocated parking space number one, which was for his use and not the use of guests or customers.

g. Plaintiff saw the signs prohibiting public parking on the gate to the East Lot as he drove through the gate providing access to the East Lot. h. The arrow on the sign within the East Lot that said "Parking" above the word "Lobster" is pointing down and to the left and does not indicate that customers should park directly in front of the sign.

i. The East Lot had one designated handicap parking spot, which did not include a handicap access aisle to its right.

j. The Lobster Shop offered parking to its customers, and this one parking spot (parking space number one) was not a handicap parking space.

k. Plaintiff never parked in parking space number one or entered the Lobster Shop store front.

2. The East Lot now has one handicap spot, which includes a handicap access aisle to the right of the handicap spot.

3. The Lobster Shop no longer allows its parking space to be used by customers. Plaintiff's Post-Trial Brief, ECF No. 86 at 2:10-11; see also Tr. at 78:2-79:1.

C. Observations and Analysis

1. The Property

Defendants’ Property has parking lots located on each side of the building. Tr. at 21:12-19. The lot on the west side (the "West Lot") is leased to an auto repair shop. Declaration of Milan Kiser in Support of Defendants’ Opposition to Plaintiff's Motion for Summary Judgment ("Kiser Decl."), ECF No. 25-1 at 3:6-7; see also Exhibit 4 to Declaration of Russell Handy in Support of Plaintiff's Special Motion to Strike, ECF No. 21-5 at 1. The lot on the east side of the Property is for use by Defendants’ residential tenants (the "East Lot"), and the owner of the Lobster Shop has one space for personal use. Tr. at 90:2-4, 96:22-25, 98:5-7; Kiser Decl. at 2:13-15. The East Lot is enclosed by a gate that, as shown below in the photograph taken by Plaintiff on the day he attempted to access the Property, had four signs on the gate.

See Trial Exhibit 10.

Two of the signs on each side of the gate at the entrance to the East Lot prohibit open public parking (the "No Public Parking Signs")¹ , stating as follows:

OPEN PUBLIC PARKING PROHIBITEDNO TRESPASSING PC 602 (M) (N)² ALL UNAUTHORIZED VEHICLES WILL BE TOWEDAT VEHICLE OWNER'S EXPENSEC.V. 22658A SDPD 619-531-2000FOR INFORMATION STAR TOWING 858-573-8700.

See also Tr. at 41:17-23.

2. Plaintiff Chris Langer's Visit to the Property

Plaintiff is a paraplegic who has been disabled since 1983, is unable to walk, and requires a wheelchair device to ambulate. Tr. at 6:11-21; see also Declaration of Chris Langer in Support of Plaintiff's Motion for Summary Judgment, ECF No. 24-2 ("Langer MSJ Decl.") at 1:24. He has a disabled person parking placard and a specially equipped van with a ramp that deploys out of the passenger side. Tr. at 10:8-14; see also Compl. at 2:6-9.

Plaintiff is familiar with Defendants’ Property. Tr. at 6:22-24. On September 19, 2017,³ Plaintiff went to the Property for the purpose of purchasing lobster. Id. at 7:4-13; 20:16-19. He was traveling South on Rosecrans Street, made a left turn onto Lytton Street, and headed towards the Lobster Shop, a business located on the Property. Id. at 24:7-15. In this direction of travel, he saw the Lobster Shop's sign on the exterior of the front gate, advertising for live lobster:

Plaintiff's Trial Exhibit 4-A (the "Live Maine Lobster Sign").

In order to enter the East Lot from this direction of travel, Plaintiff would have needed to make a left turn into the East Lot. Id. at 24:16-25:7. Because the East Lot cannot be accessed by making a left turn from his direction of travel, he continued down Lytton Street until it became Barnett Avenue, made a legal U-turn, and approached the Lobster Shop from the other direction. Id. at 24:16-25:7. As Plaintiff drove in this direction, he would have passed a sign saying, "Park in the Alley" with lobsters on it before reaching the gate providing access to the East Lot. See Trial Exhibit 6M.

As an individual approaches the Lobster Shop in a vehicle, there are no signs on the exterior of the East Lot that indicate parking for the Lobster Shop is allowed inside the East Lot. Tr. at 32:14-23. Further, just before entering the East Lot by making a right turn into the lot, Plaintiff saw the open sliding gate, which had four signs on it, including the Live Maine Lobster Sign as well as the two No Public Parking Signs, which were not obscured. Id. at 25:13-26:1. Nonetheless, he turned right into the East Lot and saw a sign inside the East Lot that said, "Live Lobster" with "Parking" and an arrow above it. Id. at 63:13-18; 65:22-25.

Plaintiff's Trial Exhibit 4P (the "Lobster Parking Sign"). Plaintiff testified that the arrow points to the parking spot directly in front of the Lobster Shop. Tr. at 72:14-18. However, he also testified that the arrow points to the left and down. Id. at 73:1-3. The Court finds that the arrow points to the left and does not indicate that someone should park in the spot directly in front of the sign.

Both of the No Public Parking Signs, which were on the same fence as the Live Maine Lobster Sign, were visible on each side of the gate as Plaintiff drove through the gate. Tr. at 19:14-20:3; 31:2425; 32:21-23, 41:17-23. However, Plaintiff saw the Live Maine Lobster Sign as well as the Lobster Parking Sign⁴ inside the East Lot, and based on those two signs as well as the business being open to the public, believed he could park in the East Lot inside the fence even though there was nothing on the exterior signs that said parking was permitted inside the fence.⁵

Id. at 13:4-10,...