Zaldivar v. City of San Diego, CASE NO. 15CV67-GPC(RBB)

Decision Date21 September 2016
Docket NumberCASE NO. 15CV67-GPC(RBB)
PartiesYOLANDA ZALDIVAR, Plaintiff, v. CITY OF SAN DIEGO, Defendant.
CourtU.S. District Court — Southern District of California

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Before the Court are Defendant City of San Diego's motion for summary judgment and Plaintiff's motion for partial summary judgment. (Dkt. Nos. 44, 46.) Oppositions and replies were filed. (Dkt. Nos. 54, 55, 56, 58.) The motions are submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). Based on the briefs, the supporting documentation, and the applicable law, the Court GRANTS in part and DENIES in part Defendant's motion for summary judgment and DENIES Plaintiff's motion for summary judgment.

Procedural Background

On January 13, 2015, Plaintiff Yolanda Zaldivar ("Plaintiff" or "Zaldivar") filed a complaint against the City of San Diego ("Defendant" or "the City"). (Dkt. No 1.) On September 22, 2015, Plaintiff filed the operative first amended complaint ("FAC") for violations of Title II of the American with Disabilities Act, ("ADA"), 42 U.S.C. § 12131 et seq; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.; and California's Disabled Persons Act, ("DPA"), Cal. Civ. Code § 54 et seq.

In its motion, Defendant seeks summary judgment on all causes of action in the FAC. (Dkt. No. 44.) In her motion, Plaintiff seeks partial summary judgment on the ADA, DPA and the remedy of an injunction. (Dkt. No. 46.)

Background

Plaintiff resides at 4412 Arizona Street, San Diego, California. (Dkt. No. 55-8, D's Response to P's SSUF No. 6.) El Cajon Boulevard is the nearest major cross street near her home and Plaintiff travels by wheelchair along the sidewalks on El Cajon Boulevard almost every day for business and leisure. Plaintiff relies on the sidewalks to reach the various businesses located on El Cajon Boulevard to shop, buy food and groceries, and complete errands. (Id., No. 7.) She also relies on the sidewalks on El Cajon Boulevard to reach the bus stops near her home in order to travel to other parts of the City to meet with friends and go to doctor's appointments. (Id., No. 8.)

City of San Diego is a public entity. (Id., No. 2.) The system of sidewalks along El Cajon Boulevard and University Avenue in the City of San Diego is a program, service, and activity offered by the City to the public. (Id., No. 4.)

In 2014, the City of San Diego entered into a contract with KTA Construction Inc. ("KTA") to work on Water Group Job 944. (Dkt. No. 54-1, P's Response to D's SSUF Nos. 1, 2.) The project was to address necessary maintenance and repair to the City s water mains and lasted about nine months. (Id., Nos. 3, 4.) The City's Water Group Job 922 used a process called "high-line"1 to provide a temporary water supply for the residents while it worked on the water main. (Id., No. 5.) According to the City of San Diego's website, "[h]igh-lines are 2-inch diameter water pipes that are temporarily installed along the face of the curb and attached by a rubber hose to your water meter. . . . These temporary pipes will supply water to your home as the old watermains are replaced. . . . Because these high-lines are placed above the ground, motorists and pedestrians should exercise caution around them. For added safety, an asphalt mixture is placed over the high-lines where they pass driveways and other high traffic areas."2 City of San Diego, Water & Sewer Projects, https://www.sandiego.gov/water-sewer-construction (last visited July 13, 2016). For Water Group Job 944, the high-line was above ground and covered with cold-patched material similar to asphalt. (Dkt. No. 55-3, D's List of Exs. in Opp., Ex. F, Ascencio Depo. at 11:11-12:19.)

KTA was hired to install the high-line, and replace the existing water main and install a new one. (Dkt. No. 55-3, D's List of Exs. in Opp., Ex. F, Ascencio Depo. at 8:15-9:4.) The project began in the middle of 2014 and lasted about nine months. (Id. at 9:13-21.) The high-lines were present for about seven months but the high-lines were present at different locations and were not in place at all locations at the same time. (Id. at 14:4-7.) The high-lines were done in four phases. (Id. at 10:9-11:2.) Phase 1 was on El Cajon Boulevard between Mississippi Street and Idaho Street; Phase 2 was on Oregon Street between El Cajon Boulevard and Meade Avenue; Phase 3 was on El Cajon Boulevard between Mississippi Street and Georgia Street; and Phase 4 was on Madison between Florida Street and Georgia Street.3 (Id.) While the high-lines were in place, pedestrians were allowed to walk over and use the sidewalks and curb ramps. (Id. at 13:3-6.) KTA made sure that the sidewalks and curb ramps were still accessible to the public. (Id. at 15:7-19.)

The cold mix or asphalt on top of the pipes were tapered to provide a ramp and had a two-fold purpose: it was to provide a ramp for pedestrians to access the sidewalk and to distribute the load over the pipes to avoid damaging them. (Dkt. No. 46-14,Masanque Decl., Ex. 11, Ascencio Depo. at 19:1-24; Dkt. No. 46-16, Masanque Decl., Ex. 12, Nagelcoort Depo. at 27:22-28:1-4.) The asphalt covered the curb ramp a little and was smoothed out to the gutter so there was a smooth transition for pedestrians and wheelchairs. (Dkt. No. 46-14, Masanque Decl., Ex. 11, Ascencio Depo. at 19:5-22.) The City's Director of Public Works testified that he was not aware of any specific slope that were required for the high-lines. (Dkt. No. 46-16, Masanque Decl., Ex. 12, Nagelvoort Depo. at 28:5-7.)

On September 25, 2014, Plaintiff submitted a Government Claim to the City of San Diego Risk Management Department, which stated the following:

Claimant is an individual with disabilities who requires an electric wheelchair for mobility. She has been prevented and deterred from using the sidewalks along El Cajon Blvd to travel in the community and patronize local businesses due to loose water pipes and hoses secured haphazardly by asphalt at curb ramps and intersections, creating excessive slopes, drops and other hazardous conditions."

(Dkt. No. 54-1, P's Response to D's SSUF Nos. 13, 14.)

Plaintiff admits that when she allegedly first encountered the alleged loose water pipes and hoses, she never told anyone including the City and the construction company. (Id., No. 22.) During the City's Water Group Job 944, Plaintiff used the sidewalks to access and patronize stores and businesses in her neighborhood. (Id., No. 25.) Plaintiff admits that water hoses and pipes are no longer present. (Id., No. 26.)

Plaintiff was aware of the City of San Diego's ADA Compliance and Accessibility Department prior to filing her Complaint and First Amended Complaint, but never contacted the department to make a complaint. (Id., No. 32.) The City has departments in place to receive and respond to complaints from its citizens. (Id., No. 34.)

Plaintiff intends to continue using the sidewalks and curbs along El Cajon Boulevard and sidewalks at University Avenue between Park Boulevard and Richmond Street in the future for leisure and daily activities on a regular and ongoing basis. Thus, Plaintiff would like the ability to safely and independently access the sidewalks and curbs. (Dkt. No. 55-8, D's Response to P's SSUF No. 30.)

In her motion for summary judgment, Plaintiff alleges that she encountered barriers when water pipes and hoses were installed along curb ramps during the City's Water Group Job 944. Second, she claims she encountered barriers at various locations along the sidewalks and ramps on El Cajon Boulevard and University Avenue between Park Boulevard and 33rd Street (hereinafter referred to as "El Cajon Boulevard and University Avenue") on an ongoing basis, including before, during and after the Water Group Job 944.4

Discussion
A. Legal Standard on Motion for Summary Judgment

Federal Rule of Civil Procedure 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325. "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 Elec. Indus. Co. v. Zenith Radio Corp., 475...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT