Daniel Lopez v. Ayman Seder et al

Filing 41

ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S EX PARTE APPLICATION AND DISMISSING THE ACTION WITHOUT PREJUDICE by Judge Virginia A. Phillips re: 28 Motion for Summary Judgment; 33 EX PARTE APPLICATION to Shorten Time for Hearing; 34 EX PARTE APPLICATION to Shorten Time for Hearing. (See document for specifics.) (iva)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 Daniel Lopez,
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Plaintiff, )
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v.
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Ayman Seder,
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Defendants. )
________________________ )

Case No. 5:14-CV-02256-VAPSP
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AND DENYING
DEFENDANT'S EX PARTE
APPLICATION AND DISMISSING
THE ACTION WITHOUT PREJUDICE
(Doc. Nos. 28, 33, and 34)
[Motion filed on September
21, 2015 ]

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I. BACKGROUND
Plaintiff Daniel Lopez filed a Complaint on November

21 3, 2014 for violations of (1) the Americans with
22 Disabilities Act ("ADA"), (2) the Unruh Civil Rights Act,
23 (3) the California Disabled Persons Act and (4)
24 negligence against Defendant Ayman Seder ("Defendant")
25 and Does 1 through 10, inclusive, in this Court.
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Plaintiff filed a Motion for Summary Judgment

28 ("Motion") and a Memorandum of Points and Authorities

1 ("Mem. P. & A.") and lodged a Statement of Uncontroverted
2 Facts and Conclusions of Law on September 21, 2015.
3 Defendant did not file any opposition to the Motion.

On

4 October 12, 2015, a federal holiday, Defendant filed an
5 Ex Parte Application to Shorten Time for a Hearing to
6 file his opposition to the Motion for Summary Judgment.
7 Given that the Motion was filed on September 21, 2015,
8 and any opposition was due by September 28, 2015.
9 Defendant's opposition was more than two weeks untimely,
10 and failed to show good cause for why the opposition was
11 later.

Accordingly, the ex parte application is denied.

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II. LEGAL STANDARD
A motion for summary judgment shall be granted when

15 there is no genuine issue as to any material fact and the
16 moving party is entitled to judgment as a matter of law.
17 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
18 477 U.S. 242, 247-48 (1986).

The moving party must show

19 that "under the governing law, there can be but one
20 reasonable conclusion as to the verdict."

Anderson, 477

21 U.S. at 250.
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Generally, the burden is on the moving party to

24 demonstrate that it is entitled to summary judgment.
25 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998);
26 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707
27 F.2d 1030, 1033 (9th Cir. 1983).
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The moving party bears

1 the initial burden of identifying the elements of the
2 claim or defense and evidence that it believes
3 demonstrates the absence of an issue of material fact.
4 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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Where the non-moving party has the burden at trial,

7 however, the moving party need not produce evidence
8 negating or disproving every essential element of the
9 non-moving party's case.

Celotex, 477 U.S. at 325.

10 Instead, the moving party’s burden is met by pointing out
11 that there is an absence of evidence supporting the non12 moving party's case.

Id.

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The burden then shifts to the non-moving party to

15 show that there is a genuine issue of material fact that
16 must be resolved at trial.

Fed. R. Civ. P. 56(e);

17 Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256.

The

18 non-moving party must make an affirmative showing on all
19 matters placed in issue by the motion as to which it has
20 the burden of proof at trial.
21 Anderson, 477 U.S. at 252.

Celotex, 477 U.S. at 322;

See also William W.

22 Schwarzer, A. Wallace Tashima & James M. Wagstaffe,
23 Federal Civil Procedure Before Trial § 14:144.
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A genuine issue of material fact will exist "if the

26 evidence is such that a reasonable jury could return a
27 verdict for the non-moving party."
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Anderson, 477 U.S. at

1 248.

In ruling on a motion for summary judgment, the

2 Court construes the evidence in the light most favorable
3 to the non-moving party.

Barlow v. Ground, 943 F.2d

4 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v.
5 Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31
6 (9th Cir. 1987).
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III. UNCONTROVERTED FACTS

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The following material facts have been supported

10 adequately by admissible evidence and are uncontroverted.
11 They are "admitted to exist without controversy" for the
12 purposes of this Motion.

See L.R. 56-3.

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Plaintiff Daniel Lopez is disabled and uses a

15 wheelchair for mobility.
16 Facts ("SUF") at ¶ 1.)

(Statement of Uncontroverted
Plaintiff drives a specially

17 equipped van with a ramp that he can deploy with a remote
18 control to assist him in exiting his van.

(SUF at ¶ 2.)

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Defendant owns and operates the Valencia Liquor Store

21 located at 704 East Highland Avenue, San Bernardino,
22 California ("Store").

(SUF at ¶ 3, 5.)

Plaintiff has

23 visited the Store on at least two occasions.

(SUF at ¶

24 7, 17.)
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On both occasions, there was a parking spot marked

27 with the International Symbol of Accessibility on the
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1 stall ("Disabled Space").

At that time, there was no

2 pole mounted at the Disabled Space, and the access aisle
3 measured five feet in width.

(SUF at ¶ 8-12.)

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Plaintiff believed the space was too narrow to deploy

6 his ramp and exit his vehicle in his wheelchair.

(SUF at

7 ¶ 13-15.)
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After December 2013, Defendant repainted the Disabled

10 Space, added more space, and added a pole-mounted "van
11 accessible sign."

(SUF at ¶ 22-23.)

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Although Plaintiff lives in Los Angeles, he travels

14 regularly to San Bernardino to visit friends, who live in
15 close proximity to the Store.

The Store is also near the

16 Arrowhead Veterinary Hospital, where Plaintiff takes his
17 dog when needed.

Plaintiff would like the ability to

18 park safely at the Store so he can go inside and purchase
19 items.

(SUF at ¶ 24-33.)

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IV. DISCUSSION

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Plaintiff argues he is entitled to summary judgment

23 on his claim under Title III of the ADA and the Unruh
24 Civil Rights Act, and if the Motion is granted, Plaintiff
25 stipulates to dismiss his third and fourth causes of
26 action to ensure that the Motion disposes of the entire
27 case.

(Mem. P. & A. at 4-5.)

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For the reasons set forth below, the Court DENIES

2 Plaintiff's Motion for Summary Judgment, finding the
3 Plaintiff does not have standing to assert an ADA claim,
4 and Plaintiff's claim under the Unruh Act does not arise
5 under federal law.
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Standing to Pursue ADA Claim

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"Damages are not recoverable under Title III of the

9 ADA — only injunctive relief is available for violations
10 of Title III."

Wander v. Kaus, 304 F.3d 856, 858 (9th

11 Cir. 2002); see also Molski v. M.J. Cable Inc., 481 F.3d
12 724, 730 (9th Cir. 2007); 42 U.S.C. § 12188(a); 42 U.S.C.
13 § 2000a-3(a).

Accordingly, in order to maintain his

14 claims under Title III of the ADA, Plaintiff must have
15 standing to obtain injunctive relief.
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"To satisfy the constitutional requirements of

18 standing, the plaintiff must have suffered an 'injury in
19 fact' — an invasion of a legally protected interest which
20 is (a) concrete and particularized, and (b) actual or
21 imminent, not conjectural or hypothetical."

Stickrath v.

22 Globalstar, Inc., 527 F. Supp. 2d 992, 995 (N.D. Cal.
23 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
24 555, 560 (1992)) (internal quotation omitted).
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In the context of a claim for injunctive relief under

27 Title III of the ADA, a plaintiff must "demonstrate a
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1 sufficient likelihood that he will again be wronged in a
2 similar way.

That is, he must establish a real and

3 immediate threat of repeated injury."

Fortyune v. Am.

4 Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004)
5 (citations omitted).

Here, Plaintiff cannot demonstrate

6 an "immediate threat of repeated injury."

Id.

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After December 2013, Defendant repainted the

9 Disabled Space, added more space to the access aisle, and
10 added a pole mounted with a sign indicating the space is
11 van accessible.

(SUF at ¶ 22-23.)

Therefore,

12 Plaintiff's equitable claims have been resolved in their
13 entirety.

See Pickern v.

Best Western Timber Cove Lodge

14 Marina Resort, 194 F. Supp. 2d 1128, 1130 (E.D. Cal.
15 2002) (finding that once all remedial efforts were
16 completed the "ADA claim for injunctive relief [was]
17 moot").

As Plaintiff's ADA claim is moot, Plaintiff no

18 longer has standing under the ADA.

Accordingly, the

19 Court denies Plaintiff's Motion with respect to his ADA
20 claim.
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Plaintiff's Unruh Civil Rights Act Claim Does Not

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Arise Under Federal Law

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Pursuant to 28 U.S.C. § 1331, federal courts have

5 original jurisdiction over claims arising under laws of
6 the United States.
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"A state-law claim invokes 28 U.S.C. § 1331

9 jurisdiction only if it 'necessarily raises a stated
10 federal issue, actually disputed and substantial, which a
11 federal forum may entertain without disturbing any
12 congressionally approved balance of federal and state
13 judicial responsibilities.'"

Shanks v. Dressel, 540 F.3d

14 1082, 1093 (9th Cir. 2008) (quoting Grable & Sons Metal
15 Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314
16 (2005)).
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The Ninth Circuit has held that claims based on state

19 laws that incorporate the ADA by reference do not arise
20 under federal law within the meaning of 28 U.S.C. § 1331,
21 reasoning that "Congress intended that such ADA
22 violations not give rise to a federal cause of action for
23 damages."

Wander, 304 F.3d at 859 (emphasis in

24 original).
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The Court is bound by the Ninth Circuit's holding in

27 Wander, and finds that Plaintiff's second claim for
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1 relief does not arise under federal law within the
2 meaning of 28 U.S.C. § 1331.

Thus, the Court denies

3 Plaintiff's Motion for Summary Judgment as to his Unruh
4 Civil Rights Act claim.
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IV. CONCLUSION
For the foregoing reasons, the Court DENIES

8 Plaintiff's Motion with respect to Plaintiff's first
9 claim for relief.

Thus, this Court no longer has

10 jurisdiction, and declines to exercise supplemental
11 jurisdiction with respect to Plaintiff's remaining claims
12 for relief.

See 28 U.S.C. § 1367(c)(3).

This case is

13 dismissed without prejudice.
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18 Dated: October 23, 2015
VIRGINIA A. PHILLIPS
United States District Judge

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