Wilson v. Haria and Gogri Corp.

• Decision Date: 22 March 2007
• Docket Number: No. CIV.S-05-1239 LKK/DAD.,CIV.S-05-1239 LKK/DAD.
• Parties: Ronald WILSON, Plaintiff, v. HARIA AND GOGRI CORP. dba Jack-In-The-Box # 551; Opt Golden Hills Vac, LLC, Defendants.
• Court: U.S. District Court — Eastern District of California

479 F.Supp.2d 1127

Ronald WILSON, Plaintiff, v. HARIA AND GOGRI CORP. dba Jack-In-The-Box # 551; Opt Golden Hills Vac, LLC, Defendants.

No. CIV.S-05-1239 LKK/DAD.

United States District Court, E.D. California.

March 22, 2007.

COPYRIGHT MATERIAL OMITTED

Scottlynn J. Hubbard, IV, Mark Emmett, Law Office of Lynn Hubbard, Chico, CA, for Plaintiff.

Michael D. Murphy, Mohajerian Law Corporation, Los Angeles, CA, for Defendants.

ORDER

KARLTON, Senior District Judge.

Plaintiff alleges that defendant violated the Americans with Disabilities Act ("ADA") and California's Unruh Civil Rights Act ("Unruh Act") by failing to remove architectural barriers at its restaurant. Pending before the court is, plaintiff's motion for summary judgment. The court previously stayed the motion pending the potential resolution of a question of state law by the California Supreme Court.¹ This court now resolves the matter based on the parties papers and after oral argument. For the, reasons set forth below, the motion is granted.

I. Facts²

Plaintiff Ronald Wilson is a 70 year old disabled man. Plaintiff suffers from severe idiopathic neuropathy, peripheral neuropathy ("silent disease") with symptoms of ALS (a.k.a. Lou Gehrig's disease), and motor-sensory neuropathy.³ Decl. of Ronald Wilson ("Wilson Decl.") ¶ 3. Because of his condition, plaintiff experiences stiffness, muscle twitching, shaking, weakness, and spasms. Id. When traveling in public, plaintiff uses a cane, wheelchair, or both.⁴ Plaintiff also owns a van with a spinner knob and has been issued a disability placard by the state of California.

Plaintiff regularly Visits the defendant Haria and Gorgri Corporation's restaurant, a Jack-in-the-Box. He retained receipts to the restaurant from thirteen separate visits over 2005-20.06. Wilson Decl. ¶ 11. In each of these visits, plaintiff alleges that there were several architectural barriers in place that prevented plaintiff from enjoying full and equal access to the goods and services at the restaurant,

There is no dispute that after commencement of the instant suit, at least some of these barriers were removed.⁵ Plaintiff maintains, however, that there are six outstanding barriers that had yet to be remedied as of August 24, 2006. Wilson Decl. ¶ 16. Specifically, plaintiff identified the following six barriers: (1) the cut-out curb ramp had a slope of 8.8% at the top and 12.6% at the bottom; (2) the door to the men's restroom did not have a 12-inch strike side clearance on the push side, the door pressure was 12 pounds, and the door did not open to a full ninety degrees; (3) the toilet paper dispenser was 42 inches from the back wall; (4) the restroom handIe/lock was not accessible; (5) none of the accessible seating in the restaurant was designated as accessible with signage; and (6) the disabled parking space lacked the words "No Parking" painted in the access aisle. Id.

With respect to at least two of the barriers, defendant claims that they have been remedied as of November 27, 2006 (the date that the declaration of Maheshkumar Gogri was executed). First, defendant contends that the words "no parking" are now painted in the access aisle of the disabled parking spot. Gogri Decl. ¶ 11. Second, defendant maintains that the toilet paper dispenser is now in compliance with all regulations. Id. However, plaintiff visited the restaurant on November 30, 2006 and took photographs that show that the dispenser is still 42 inches from the back wall. Wilson Decl. II, ¶ 3(c), Ex. E.

With respect to the issue of signage for accessible seating in the restaurant, defendant contends that the placards are often stolen, vandalized, or otherwise obscured by customers, and that it is the policy of the restaurant to replace the placards in such circumstances. Id. Accordingly, defendant states that if plaintiff observed the absence of required signage, it was because the placards were in the process of being replaced. Id. When plaintiff visited the restaurant on November 30, 2006, he found that the signage was still missing, and took photographs to document his observations. Wilson Decl. II, ¶ 3(f), Ex. F.

II. Standard

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir.1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the 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). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, 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. See id. at 322, 106 S.Ct. 2548. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. 2548.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Sicor Ltd., 51 F.3d at 853.

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348; see also First Nat'l Bank, 391 U.S. at 289, 88 S.Ct. 1575; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.1998). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Owens v. Local No. 169, Ass'n of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir.1992) (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987)), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; see also Cline v. Indus. Maint. Eng'g & Contracting Co., 200 F.3d 1223, 1228 (9th Cir.1999).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290, 88 S.Ct. 1575; see also T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); see also Int'l Union of Bricklayers & Allied Craftsman Local. Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); see also In re Citric Acid Litigation, 191 F.3d 1090, 1093 (9th Cir.1999). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, 106 S.Ct. 2505, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam )). See also Headwaters Forest Def. v. County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).

III. Analysis

Plaintiff moves for summary judgment against defendant Haria and Gogri Corp, seeking damages under state law and injunctive relief under the ADA. With respect to...