Chapman v. Pier 1 Imports US, et al

Filing 210

ORDER signed by Judge Lawrence K. Karlton on 6/27/12: The Snow Declaration is EXCLUDED from consideration on this motion. Defendant's motion to preclude plaintiff's cross-motion as untimely, is DENIED. Defendant's motion to strike port ions of the Chapman Declaration is DENIED. Defendant's motion for summary judgment is DENIED in its entirety. Plaintiff's cross-motion for summary judgment is GRANTED as to the ADA claim, the Disabled Persons Act claim and the Unruh Act claim. Plaintiff shall submit a Proposed Judgment of Permanent Injunction no later than fourteen (14) days from the date of this order. The Pretrial Conference date of September 4, 2012 at 1:30 p.m. is hereby CONFIRMED. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BYRON CHAPMAN,
NO. CIV. S-04-1339 LKK/DAD
Plaintiff,

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v.
O R D E R

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PIER 1 IMPORTS (U.S.) INC.,
Defendant.

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/
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I.

INTRODUCTION

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Plaintiff’s Second Amended Complaint asserts one claim under

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Title III of the Americans with Disabilities Act of 1990 (“ADA”),

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42 U.S.C. §§ 12181-89 (“Public Accommodations and Services Operated

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by Private Entities”), against defendant Pier 1 Imports (U.S.),

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Inc. (“Pier 1”),1 along with several California state claims.

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The complaint alleges: (1) that plaintiff was denied the
“full and equal enjoyment” of defendant’s facility, in violation
of 42 U.S.C. § 12182(a); (2) that Pier 1's facility was not
designed to be “readily accessible to and usable” by the disabled,
in violation of 42 U.S.C. § 12183(a)(1); (3) that Pier 1's facility
was altered in a manner that failed to make the facility
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Plaintiff seeks injunctive relief under the ADA and monetary relief

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under the state claims.

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The parties have cross-moved for summary judgment.

For the

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reasons that follow, defendant’s motion for summary judgment (and

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other ancillary motions) will be denied, and plaintiff’s cross-

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motion for summary judgment will be granted.

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II.

BACKGROUND

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A.

The Original Complaint.

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Plaintiff filed his original complaint on July 13, 2004,

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asserting claims under the federal ADA, as well as California state

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claims under the Unruh Act (Cal. Civ. Code § 51), and The Disabled

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Persons Act (Cal. Civ. Code §§ 54 & 54.1).2

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the existence of architectural barriers in the store that violated

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his rights under the ADA.

The complaint alleged

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accessible, in violation of 42 U.S.C. § 12183(a)(2); and (4) that
Pier 1 failed to make “reasonable modifications” in their policies,
practices or procedures needed to afford reasonable access to the
facility to the disabled, in violation of 42 U.S.C.
§ 12182(b)(2)(A)(ii).
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The state claims are entirely dependent on the federal
claims. The Second Amended Complaint does not allege any conduct
beyond that which is alleged to violate the ADA. The Unruh Act
provides that conduct violative of the ADA is also a violation of
state law. Cal. Civ. Code § 51(f) (“A violation of the right of
any individual under the federal Americans with Disabilities Act
of 1990 (P.L. 101-336) shall also constitute a violation of this
section”). The Disabled Persons Act provides the same. Cal. Civ.
Code § 54(c) (“A violation of the right of any individual under the
federal Americans with Disabilities Act of 1990 (P.L. 101-336)
also constitutes a violation of this section”); 54.1(d) (“A
violation of the right of an individual under the Americans with
Disabilities Act of 1990 (Public Law 101-336) also constitutes a
violation of this section").
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B.

First Cross-Motions for Summary Judgment.

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The parties filed their first cross-motions for summary

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judgment in 2005.

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standing was not restricted to those barriers he had personally

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encountered.

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(E.D. Cal. 2006).

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limited to those barriers he had alleged in his complaint, and that

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defendant had fair notice of them by the time the summary judgment

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motions were filed. Id., at *4-5.

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This court determined, first, that Chapman’s

Chapman v. Pier 1 Imports, 2006 WL 1686511 at *4-5
The court further held that Chapman was not

On the merits, this court

partially granted and partially denied each party’s motions.3

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C.

The Appeal.

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On appeal, the initial Ninth Circuit panel found that Chapman

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had standing as to those barriers he had actually encountered, but

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lacked standing as to any un-encountered barrier which did not

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The court dismissed the claim for improper or missing signs
designating "permanent room and spaces," finding that Chapman
lacked standing. Chapman, 2006 WL 1686511 at *9.
The court granted summary judgment to defendant on the claims
relating to: ten alleged barriers for which there was simply no
evidence (id., at *8); blocked routes to the restroom and emergency
exit, as the evidence showed these were only temporary in nature
(id., at *9-10); and the force required to open the entrance door
(id., at 11).
The court granted summary judgment to Chapman on the claims
involving: improper posting of “ISA signage” on the store’s
entrance doors ( id., at *9); improper “dimensional tolerances”
(id., at *11); and the minimum 36" aisle width requirement (id.,
at *12).
The court denied summary judgment on plaintiff’s claims relating
to: the placement of the International Symbol of Accessibility
("ISA") (id., at *11); the Pictogram on the men’s restroom wall
(id., at *12-13); and the pressure required to operate the men’s
restroom door (id., at *13).
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deter him from re-entering the store.

Chapman v. Pier 1 Imports

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(U.S.) Inc., 571 F.3d 853 (9th Cir. 2009).

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On en banc review, the Ninth Circuit agreed with this court

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that Chapman had standing to sue for injunctive relief as to

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barriers he had encountered, but also as to “other barriers related

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to his disability, even if he is not deterred from returning to the

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public accommodation at issue.”

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Inc., 631 F.3d 939, 944 (9th Cir. 2011) (en banc).

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the absence of actual deterrence, Chapman has standing if he

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demonstrates “injury-in-fact coupled with an intent to return to

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a noncompliant facility.”

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that after establishing standing as to encountered barriers,

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Chapman “may also sue for injunctive relief as to unencountered

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barriers related to his disability.”

Chapman v. Pier 1 Imports (U.S.)

Id.

Thus, even in

The Ninth Circuit also agreed

Id.

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The Ninth Circuit vacated this court’s decision and remanded

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for dismissal however, because Chapman failed to establish that he

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“personally suffered discrimination as defined by the ADA as to

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encountered barriers on account of his disability.”

Id.

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D.

The Remand.

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Although the Ninth Circuit instructed this court to dismiss

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the complaint for lack of federal jurisdiction, plaintiff sought

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leave to amend his complaint.

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permitted by the Ninth Circuit mandate, and so this court sought

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clarification.

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court could grant leave to amend, in its discretion.

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granted leave to amend the complaint.

It was not clear if this was

The Ninth Circuit ultimately clarified that the

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The court

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E.

The Amended Complaint.

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Plaintiff filed a First Amended Complaint, and ultimately was

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granted

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Complaint, the operative complaint here, specifically alleges that

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Chapman visited the Pier 1 store at 2070 Harbison Drive in

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Vacaville, California, and encountered barriers that interfered

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with his ability to use and enjoy the facility.

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are: (1) a customer service counter that was cluttered with

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merchandise;4 and (2) store aisles that are too narrow, that is,

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less than 36 inches wide, because they too, are cluttered with

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merchandise

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sufficient to establish Chapman’s standing to sue under the Ninth

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Circuit’s mandate, since he now identifies which barriers he

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actually encountered and how he was injured by them.

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does not argue lack of standing on these cross-motions.

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leave

Chapman

to

and

also

amend

other

that

complaint.

obstructions.

alleges

that

The

These

defendant

is

Second

Amended

Those barriers

allegations

in

are

Defendant

violation

of

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California’s Health & Safety Code, Part 5.5 (§§ 19955, et seq.),

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and Govt. Code § 4450, which relate to California’s standards for

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making buildings accessible.

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F.

The Current Cross-Motions.

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Defendant moves for summary judgment on the ADA claims on

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three grounds: (1) the accessible counter and the aisles were

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completely clear on January 30, 2012, rendering plaintiff’s claims

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4

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The complaint is less than crystal clear on this allegation.
However, both parties seem to interpret it in the manner just
described. It appears that plaintiff is not complaining that the
accessibility counter was the wrong height.
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moot; (2) any obstructions on the counter or in the aisles were

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“movable” or “were only temporary,” and thus did not violate the

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ADA; and (3) Chapman has no “competent evidence” of any blockage

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of

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California Health & Safety Code, defendant asserts that plaintiff

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“cannot establish any violation of state accessibility standards.”

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Chapman cross-moves for “summary judgment or partial summary

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judgment,” although he does not specify which claim or claims he

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seeks judgment upon.5 Since his brief addresses the ADA, the court

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infers that Chapman seeks summary judgment on the claims relating

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to the ADA claim, as well as the Unruh Act, and The Persons with

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Disabilities Act (as noted above, both state claims are established

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if the ADA claim is established).6

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accessibility counter and the store’s aisles were regularly blocked

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by merchandise.

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temporary,

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disabled.”

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////

the

accessibility

“but

counter.

As

for

the

claim

under

the

Chapman asserts that the

He further asserts that these blockages were not
a

systematic

pattern

of

abuse

against

the

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Defendant moves to preclude plaintiff from moving for
summary judgment, arguing that plaintiff missed the deadline for
filing the cross-motion by one day. That motion will be denied.
Defendant also moves to strike portions of plaintiff’s declaration
as “legal conclusions.” The court can discern which assertions are
factual and which are legal without striking portions of the
declaration. That motion will also be denied.
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Chapman’s brief says nothing about this fourth claim,
relating to California’s Health & Safety Code and the Gov't Code.
It thus appears that Chapman does not seek summary judgment on that
claim. To the degree Chapman does move for summary judgment on his
fourth claim, it will be denied.
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II.

STANDARDS

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A.

Summary Judgment.

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Summary judgment is appropriate “if the movant shows that

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there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.”

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56(a); Ricci v. DeStefano, 557 U.S. 557, ___, 129 S. Ct. 2658, 2677

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(2009) (it is the movant’s burden “to demonstrate that there is ‘no

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genuine issue as to any material fact’ and that they are ‘entitled

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to judgment as a matter of law’”); Walls v. Central Contra Costa

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Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam)

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(same).

Fed. R. Civ. P.

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Consequently, “[s]ummary judgment must be denied” if the court

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“determines that a ‘genuine dispute as to [a] material fact’

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precludes immediate entry of judgment as a matter of law.”

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v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011), quoting Fed.

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R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of

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Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (en banc), cert.

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denied, 565 U.S.

Ortiz

, 131 S. Ct. 1566 (2012) (same).

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Under summary judgment practice, the moving party bears the

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initial responsibility of informing the district court of the basis

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for its motion, and “citing to particular parts of the materials

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in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show “that a fact

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cannot be ... disputed.”

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Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp.

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Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010) (“The

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moving party initially bears the burden of proving the absence of

Fed. R. Civ. P. 56(c)(1); Nursing Home

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1

a genuine issue of material fact”), citing Celotex v. Catrett, 477

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U.S. 317, 323 (1986).

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If the moving party meets its initial responsibility, the

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burden then shifts to the non-moving party to establish the

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existence of a genuine issue of material fact.

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Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);

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Oracle Corp., 627 F.3d at 387 (where the moving party meets its

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burden,

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designate specific facts demonstrating the existence of genuine

10

issues for trial”). In doing so, the non-moving party may not rely

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upon the denials of its pleadings, but must tender evidence of

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specific facts in the form of affidavits and/or other admissible

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materials in support of its contention that the dispute exists.

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Fed. R. Civ. P. 56(c)(1)(A).

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“the

burden

then

shifts

to

the

Matsushita Elec.

non-moving

party

to

A wrinkle arises when the non-moving party will bear the

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burden of proof at trial.

In that case, “the moving party need

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only prove that there is an absence of evidence to support the non-

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moving party’s case.”

Oracle Corp., 627 F.3d at 387.

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“In evaluating the evidence to determine whether there is a

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genuine issue of fact,” the court draws “all reasonable inferences

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supported by the evidence in favor of the non-moving party.”

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Walls,

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inferences “supported by the evidence,” it is the non-moving

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party’s obligation to produce a factual predicate as a basis for

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such inferences.

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898, 902 (9th Cir. 1987).

653

F.3d

at

966.

Because

the

court

only

considers

See Richards v. Nielsen Freight Lines, 810 F.2d
The opposing party “must do more than
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simply show that there is some metaphysical doubt as to the

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material facts ....

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lead a rational trier of fact to find for the nonmoving party,

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there is no ‘genuine issue for trial.’”

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586-87 (citations omitted).

Where the record taken as a whole could not

Matsushita, 475 U.S. at

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B.

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To prevail on his Title III discrimination claim, Chapman must

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show that (1) he is disabled within the meaning of the ADA; (2) the

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defendant is a private entity that owns, leases, or operates a

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place of public accommodation;7 and (3) Chapman was denied public

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accommodations (that is, full and equal treatment) by the defendant

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because of his disability. Molski v. M.J. Cable, Inc., 481 F.3d

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724, 730 (9th Cir. 2007), citing 42 U.S.C. §§ 12182(a)-(b);

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Chapman 2006 WL 1686511 at *7.
ANALYSIS

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Title III (ADA) Discrimination Claim - Elements.

I.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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A.

Tracey Snow Declaration.

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Defendant supports its summary judgment motion with, among

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other things, the Declaration of Tracy Snow (Dkt. No. 185), the

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store manager at the Vacaville store. Plaintiff objects to the use

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of this declaration because defendant never identified Snow as a

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person with knowledge during discovery.

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not explain the problem, it would appear that plaintiff therefore

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never had the opportunity to interview or depose Snow, and thus her

Although plaintiff does

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The first two elements are undisputed in this case.
Chapman 2006 WL 1686511 at *7.
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See

1
2

Declaration is an unfair surprise to them.
Plaintiff is correct.

Snow unsurprisingly is not identified

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in defendant’s October 11, 2004 “Initial Disclosures” pursuant to

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Fed. R. Civ. P. 26(a)(1)(A), because Snow did not yet work there.

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However, defendant did not identify anyone with knowledge in its

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initial disclosures, and never supplemented the disclosures to add

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Snow.

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that clearly asked for the names of persons with knowledge. See

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Dkt. No. 28-13 at No. 6.

On February 21, 2005, defendant answered Interrogatories

Defendant did not provide the name of

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Snow or anyone else. On May 6, 2005, defendant supplemented its

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interrogatory responses by stating that it was not aware of any

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architectural barriers.

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did not provide the name of any person with knowledge.

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apparently

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identify Snow as a person with knowledge.

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never

Defendant

See Dkt. No. 28-14 at No. 6. However, it

supplemented

did,

however,

its

bury

interrogatory

deep

in

its

Defendant

responses

to

Interrogatory

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responses, in response to an inquiry about affirmative defenses,

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that an unidentified “Store Manager” knew about Pier 1's policies.

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See Dkt. No. 28-13 at No. 12. Certainly, plaintiff should have

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inquired further and found out that Snow is the store manager. But

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defendant did not give any indication that she was a percipient

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witness

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accessibility counter, and whether the aisles were blocked with

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merchandise and other materials. However, much of her Declaration

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is about those matters.

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plain view – by not naming her as a witness in response to any of

about

the

cluttered

or

uncluttered

state

of

the

Defendant hid this witness – albeit in

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1

the

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affirmative case, where she is the obvious percipient witness, and

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by including her only in response to the request for information

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about affirmative defenses.

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interrogatories

directed

to

the

basics

of

plaintiff’s

Rule 37(c)(1), Fed. R. Civ. P. provides: “If a party fails to

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provide information or identify a witness as required by Rule 26(a)

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or (e), the party is not allowed to use that information or witness

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to supply evidence on a motion, at a hearing, or at a trial,”

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unless excused.8

Defendant does not dispute that Snow was never

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previously identified, and in fact, does not address this issue at

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all. It is unfair to consider the Snow Declaration on this motion,

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when plaintiff has had no reasonable opportunity to interview,

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depose, or otherwise conduct discovery of her.

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Accordingly, plaintiff’s motion to strike the Snow Declaration

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is GRANTED.

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B.

ADA Claims
1.

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Obstructions - Counter and Aisles9

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8

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The rule does not require a motion. However, on motion, the
court
may impose alternate sanctions. Fed. R. Civ.
P. 37(c)(1)(A)-(C).
9

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Defendant engages in separate discussions of (1) whether the
accessible counter is obstructed and (2) whether the aisles are
obstructed. The court discusses them together. It is true that
the counter and the aisles have separate technical requirements.
The accessible counter must be no taller than 36 inches in height,
and the aisles must be no narrower than 36 inches in width.
However, Chapman does not challenge whether the technical
requirements are met as to the counter or the aisles. He alleges
that both are obstructed with merchandise, plants and other
materials such that he is unable to use them. The law governing
obstructions does not distinguish between an obstructed counter and
an obstructed aisle. Neither will this court, except where it is
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The Second Amended Complaint involves defendant’s store at

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2070 Harbison Drive in Vacaville, California.

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Response to Defendant’s Statement of Undisputed Facts (“PRDUF”) ¶

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1 (Dkt. No. 186-2). There are two sales counters at the store, and

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of course, several aisles.

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used by Pier 1's wheelchair-bound customers (the “accessible sales

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counter”).

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Statment of Undisputed Facts (“DRPUF”) ¶ 4.

9

See Plaintiff’s

One of the counters is designed to be

PRDUF ¶ 4;10 Defendant’s Response to Plaintiff’s

In his complaint, Chapman alleges that he visited the store

10

and

encountered

an

accessible

counter

and

aisles

that

were

11

“cluttered by merchandise.” Complaint ¶¶ 11 & 20. He alleges that

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this clutter created barriers that prevented him from enjoying full

13

and equal access to the store’s facilities, that defendant knew of

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this state of affairs, that the barriers were not temporary and

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that Pier 1 refuses to remove the barriers.11

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Id. ¶¶ 11-15.

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necessary to do so.
10

Defendant supports this fact by the Declaration of Tracey
Snow which, as discussed below, is stricken. However, Chapman
expressly adopts it as an undisputed fact. PRDUF ¶ 4.
11

The parties engage in some discussion of when the store was
built in relation to when the Americans with Disabilities Act was
enacted. Those discussions are immaterial because there is no
(remaining) claim that any structural aspect of defendant’s store
does not comply with the ADA. The only claims are that clutter and
other merchandise obstruct the accessibility counter and the
aisles.
12

1

a.

Mootness

2

Defendant asserts that on January 30, 2012 the accessibility

3

counter was “completely clear, other than when a customer or an

4

employee places merchandise on the counter that a customer wishes

5

to purchase,” and that the aisles were “clear of goods,” and

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navigable by wheelchair.

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(“DSJ”) (Dkt. No. 181) at p.5.12

Therefore, defendant argues,

8

Chapman’s entire case is “moot.”

Id.

9

lacking on the facts and frivolous as a legal matter.

10

(1)

Defendant’s Motion for Summary Judgment

Defendant’s argument is

The Mootness Argument Is Based Entirely
Upon Snow’s Stricken Declaration.

11
Defendant’s assertion that the accessibility counter was
12
“completely clear” on January 30th is predicated entirely on
13
Paragraphs 5 and 24 of its Statement of Undisputed Facts, which,
14
in

turn,

are

predicated

solely

and

entirely

on

the

Snow

15
Declaration. Since the Snow Declaration has been excluded from use
16
in this summary judgment, this assertion has no factual basis in
17
the record, and will be disregarded.
18
19

(2)

The Mootness Argument Fails as a Legal
Matter.

20

For purposes of the legal analysis, the court will assume the

21

accessibility counter was “completely clear” on the one single day

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defendant asserts it was, January 30, 2012.

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plaintiff may not obtain injunctive relief – the only relief

Defendant argues that

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12

25
26

Although defendant does not make it a part of its mootness
argument, it also asserts that the aisles and counter were clear
on October 28, 2011 and November 9, 2011, when its expert visited
the store. See Blackseth Declaration, Report (Dkt. No. 184-1).
13

1

available under Title III of the ADA – because the accessibility

2

counter was clear on this one, single day.

3

remarkable position, defendant cites cases that unsurprisingly, do

4

not support it.

5

In support of this

In Wander v. Kaus, 304 F.3d 856 (9th Cir. 2002), plaintiff

6

sued defendant property owners.

7

defendants transferred ownership of the property to new owners,

8

“and no longer had any interest or involvement with the property

9

after that date.”

Soon after the lawsuit was filed,

Id., 304 F.3d at 858.

Because defendants

10

therefore could not possibly provide any relief, plaintiff conceded

11

that his claim for injunctive relief against them had become moot.

12

Id., 304 F.3d at 858.

13

mooting this case based upon Pier 1's tidying up its accessibility

14

counter on a day of its choosing.13

The mooting of Wander does not justify

15

In Dufresne v. Veneman, 114 F.3d 952 (9th Cir. 1997) (per

16

curiam), plaintiff sued California to put a stop to the spraying

17

of Malathion pesticide to eradicate the Mediterranean Fruitfly.

18

The case was rendered moot on appeal because the state ended the

19

spraying program entirely, having found that the fruitfly had been

20

completely eradicated. The Ninth Circuit found that the cessation

21

of Malathion spraying was permanent, and that the possibility of

22

its

23

controversy.”

resumption

was

“too

remote

to

Id., 114 F.3d at 955.

preserve

a

live

case

or

Defendant here, in contrast,

24
25
26

13

The clear indication in Wander is that the transfer out of
defendant’s control was permanent, not done for one day, or for any
limited period of time.
14

1

makes no showing of any kind that the accessibility counter was

2

permanently clear. Nor does defendant even assert that the counter

3

would not return to a cluttered state ever again.14

4

In Eiden v. Home Depot USA, Inc., 2006 WL 1490418 (E.D. Cal.

5

2006) (Karlton, J.), this court dismissed as moot the claims

6

relating to those ADA barriers which had been remedied.

7

*9-10.

8

permanent: replaced signage, newly painted “No Parking” signs, new

9

handles on bathroom stall doors, and re-positioning of the toilet

Id., at

In that case, the remedial efforts were by their nature,

Id.

In contrast, defendants’ removal of clutter

10

paper dispenser.

11

from a counter is by its nature temporary.

12

In Pickern v. Best Western Timber Cove Lodge Marina Resort,

13

194 F. Supp.2d 1128 (E.D. Cal. 2002) (Shubb, J.), plaintiff

14

conceded “as she must, that defendants’ latest remedial efforts

15

have rendered her ADA claim for injunctive relief moot.”

16

F. Supp. at 1130. Once again, as in the previously discussed cases

17

cited by defendant here, defendant in Pickern had made permanent,

18

structural changes to its facility that provided plaintiff with the

19

injunctive relief she sought.

20

not the temporary removal of a barrier that could easily and

21

quickly return.

22
23

Id., 194

That is what made the claims moot,

The legal principle that defendant invokes is “voluntary
compliance.”

However, “a defendant claiming that its voluntary

24
14

25
26

The court could eliminate much of its civil and criminal
calendar if it adopted defendant’s view that a lawsuit must be
dismissed as moot if defendant can show that it did not violate the
law on a single day of its own choosing.
15

1

compliance moots a case bears the formidable burden of showing that

2

it is absolutely clear the allegedly wrongful behavior could not

3

reasonably be expected to recur.”

4

Laidlaw Environmental Services (TOC), Inc.. 528 U.S. 167, 190

5

(2000).

6

contrary, defendant's argument demonstrates one aspect of the

7

recurrence problem that plaintiff himself complains about: that

8

customers place items on the accessible counter and leave them

9

there while shopping.15

Friends of the Earth, Inc. v.

Defendant has clearly not met such a burden here.

DSJ at p.5.

To the

It hardly demonstrates the

10

unlikelihood of recurrence to affirmatively assert that customers

11

use the accessibility counter as a storage location while they go

12

about their shopping, leaving the wheelchair bound customers either

13

to wait for them to finish shopping, clear the items away if they

14

can, or wait patiently until an employee or other customer comes

15

along who can clear the counter for them.

16

Defendant further asserts that “A request for prospective

17

injunctive

relief

can

be

mooted

by

a

defendant’s

18

cessation of challenged activity.”

19

an incomplete statement of what the law is, as made clear by

20

DeFunis v. Odegaard, 416 U.S. 312 (1974) (per curiam),16 one of the

DSJ at p.5.

voluntary

That is, at best,

21
22
23

15

Whether this conduct renders the counter in violation of
the ADA is another matter, which will be discussed below.
16

24
25
26

Defendant also cites U.S. Parole Comm’n v. Geraghty, 445
U.S. 388, 397 (1980) in support of its mootness argument, but
without any explanation. The court does not see any connection
between Geraghty and this case. Geraghty addressed whether a class
action became moot upon the expiration of the claim of the named
plaintiff.
16

1

cases defendant cites for his mootness argument:

2

4

There is a line of decisions in this Court standing for
the proposition that the voluntary cessation of
allegedly illegal conduct does not deprive the tribunal
of power to hear and determine the case, i.e., does not
make the case moot.

5

DeFunis, 416 U.S. at 318 (citations and internal quotation marks

6

omitted) (emphasis added). “Voluntary cessation” is relevant only

7

if:

3

8

it could be said with assurance that there is no
reasonable expectation that the wrong will be repeated.
Otherwise, [the] defendant is free to return to his old
ways, and this fact would be enough to prevent mootness
because of the public interest in having the legality of
the practices settled.

9
10
11

omitted).17

12

Id.

13

Defendant's remaining mootness cases similarly do not support its

14

argument.18

(citations

and

internal

quotation

marks

15

Moreover, Chapman has made a sufficient showing that the

16

clutter is a recurring condition, and that it has not voluntarily

17

ceased.

Below is Chapman’s recounting of his visits to the store,

18
17

19
20
21
22
23
24
25
26

In any event, “voluntary cessation” is not what occurred in
DeFunis: “mootness in the present case depends not at all upon a
‘voluntary cessation’ of the admissions practices that were the
subject of this litigation. It depends, instead, upon the simple
fact that DeFunis is now in the final quarter of the final year of
his course of study, and the settled and unchallenged policy of the
Law School is to permit him to complete the term for which he is
now enrolled.” DeFunis, 416 U.S. at 318.
18

See San Lazaro Ass’n, Inc. v. Connell, 286 F.3d 1088 (9th
Cir.), cert. denied, 537 U.S. 878 (2002) (plaintiff’s case against
California became moot when it voluntarily cancelled its license
and thus rendered itself ineligible to receive the benefits sought
by the lawsuit); H.C. ex rel. Gordon v. Koppel, 203 F.3d 610 (9th
Cir. 2000) (action seeking to disqualify a judge was rendered moot
when the judge “concluded her temporary assignment”).
17

1

and the recurrent obstructions he encountered there:

2

1.

February 1, 2011 (Chapman Decl. ¶ 7; Chapman Depo. pp. 2933):19
aisles blocked as shown in Exhibit A.
accessibility counter cluttered.

2.

February 7, 2011 (Chapman Decl. ¶ 8):
aisles blocked as shown in Exh. A.

3.

February 14, 2011 (Chapman Decl. ¶ 9):
aisles blocked as shown in Exh. A.
accessibility counter cluttered as shown in Exh. A.

4.

March 6, 2011 (Chapman Decl. ¶ 10):
aisles blocked as shown in Exh. A.

5.

April 29, 2011 (Chapman Decl. ¶¶ 11):
aisles blocked as shown in Exh. A.

6.

May 2, 2011 (Chapman Decl. ¶ 12):
aisles blocked as shown in Exh. A.

7.

June 30, 2011 (Chapman Decl. ¶ 13):
aisles blocked as shown in Exh. A.

8.

October 29, 2011 (Chapman Decl. ¶ 14):
aisles blocked as shown in Exh. A.

9.

November 23, 2011 (Chapman Decl. ¶ 18):
aisles blocked as shown in Exh. A.

10.

January 9, 2012 (Chapman Decl. ¶ 19):
aisles blocked as shown in Exh. A.

11.

February 9, 2012 (Champan Decl. ¶¶ 21-24):
aisles blocked.
accessibility counter cluttered as shown in Exh. B.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Thus, even though the counters and aisles were eventually

22

cleared for Chapman, his subsequent visits to the store showed that

23

the aisles and occasionally the accessible counter were again

24
19

25
26

Also, PRDUF ¶ 11, 14. Exhibit A (Dkt. No. 187), consists
of photographs of the obstructions that, according to Chapman’s
Declaration, he took himself before leaving the store. Chapman’s
Deposition is Dkt. No. 202-4.
18

1

obstructed.

Chapman’s evidence clearly shows that the obstructed

2

aisles

cluttered

3

situation. Defendant asserts that the encountered merchandise was

4

"temporary"

5

encountered them.

6

and

or

accessibility

"movable,"

but

counter

does

not

are

contest

a

recurrent

that

Chapman

Chapman’s lawsuit is not moot.

7

b.

8

Temporary and movable nature of the clutter.
(1) Movable barriers - the law.

9

Defendant

claims

as

a

legal

matter

that

“[t]he

DOJ’s

10

commentary on its regulations, as well as its technical assistance

11

materials echo the point that the ADA does not apply to temporary

12

or movable obstructions.”

13

nothing in the DOJ’s (Attorney General's) commentaries or its

14

technical assistance materials – nor in the ADA itself, its

15

implementing

16

(“ADAAG”), issued by the Architectural and Transportation Barriers

17

Compliance Board (the “Access Board”)20 – state or imply that

regulations

Dkt. No. 181 at p.6 (ECF 13).

or

the

ADA

Accessibility

In fact,

Guidelines

18
20

19
20
21
22
23
24
25
26

The Access Board plays a critical role in implementing the

Act:
Congress
mandated
that
the
Attorney
General's
regulations “be consistent with the minimum guidelines
and requirements issued by the Architectural and
Transportation Barriers Compliance Board,” 42 U.S.C. §
12186(c), commonly referred to as the “Access Board.”
The Access Board is an independent federal agency ....
29 U.S.C. § 792(a)(1). The Board is directed to
establish “minimum guidelines and requirements for the
standards issued” under Title III of the ADA, 29 U.S.C.
§ 792(b)(3)(B), and to “develop advisory information
for, and provide appropriate technical assistance to,
individuals or entities with rights or duties under
regulations prescribed” under Title III, 29 U.S.C. §
19

1

“movable obstructions” cannot violate the ADA.

2

the DOJ’s commentary on its regulations states just the opposite.

3

In proposing the implementing regulations, the commentary states:

4

Section 36.211 ... recognizes that it is not sufficient
to provide features such as accessible routes ... if
those features are not maintained in a manner that
enables individuals with disabilities to use them. ...
“[A]ccessible” routes that are obstructed by furniture,
filing
cabinets,
or
potted
plants
are
neither
“accessible to” nor “usable by” individuals with
disabilities.

5
6
7

To the contrary,

8
9

56 Fed. Reg. 7,452, 7,464 (February 22, 1991) (Notice of Proposed

10

Rule-making).21

11

General recognized that it was not sufficient to have facilities

12

that are accessible in name only.

13

condition that allows a disabled person to actually use them.

14

promulgating the final implementing regulations, the Attorney

15

General again expressed those concerns:

16
17
18

From the very beginning, then, the Attorney

They must be maintained in a
In

The requirement to remove architectural barriers
includes the removal of physical barriers of any kind.
For example, § 36.304 requires the removal, when readily
achievable, of barriers caused by the location of
temporary or movable structures, such as furniture,
equipment, and display racks.

19
20
21
22
23
24

792(b)(2). In sum, the Board establishes “minimum
guidelines” for Title III, but the DOJ promulgates its
own regulations, which must be consistent with-but not
necessarily identical to-the Board's guidelines.
Miller v. California Speedway Corp., 536 F.3d 1020, 1024-25 (9th
Cir. 2008), cert. denied, 555 U.S. 1208 (2009).
21

25
26

The U.S. Attorney General is the principal regulator that
implements the Act. Miller, 536 F.3d at 1024 (“The ADA directs the
Attorney General to ‘issue regulations ... that include standards
applicable to facilities’ covered by Title III”).
20

1

56 Fed. Reg. 35,544, 35,568 (July 26, 1991) (Final Rule).

2

Defendant makes much of its assertion that plaintiff could

3

have removed the obstructing merchandise on the accessible counter

4

himself, but that he chose not to.

5

2).

6

defendant’s obligation to make its store accessible, not the

7

disabled plaintiff’s.

8

commentaries – and the ADA itself – refer to an obligation that

9

defendant bears.22

PRDUF ¶¶ 12-13 (Dkt. No. 186-

Plaintiff asserts that this is irrelevant, since it is

Id.

Plaintiff is correct, as the DOJ’s

It is not the responsibility of disabled,

10

wheelchair-bound

11

equipment and display racks so that they can use defendant’s

12

facility, even if those things are “temporary and movable.”

13

customers

like

Chapman

to

move

furniture,

Even if defendant’s assertion were relevant, defendant grossly

14

mis-characterizes Chapman’s testimony in this regard.

Defendant

15

is correct that Chapman’s own testimony shows that it was possible

16

for a store employee to move the items, and that the items were not

17

physically too heavy for Chapman to move.

18

clearly explains, a few lines later in the transcript, that Chapman

19

did not move them because he feared that doing so, from his

20

wheelchair, could cause them to fall on the floor.

21

Deposition (Dkt. 202-4) at p.32-33 (“As I recall, the counter was

22

full.

23

a great possibility of falling to the floor, ma’am”).

But the testimony

See Chapman

If I were to put my items on the counter, those items had
If Pier 1

24
22

25
26

The cited regulation states that “[a] public accommodation
shall remove architectural barriers ... [including] rearranging ...
furniture.” 28 C.F.R. § 36.304(a) & (b)(4). It does not state
that disabled persons in wheelchairs shall remove those barriers.
21

1

means to argue that it is in compliance with the ADA by forcing

2

wheelchair-bound

3

themselves, at the risk of having the cluttering material fall to

4

the floor – or on top of themselves – the court rejects the

5

argument.

patrons

to

clear

the

accessibility

counter

6

Apart from claiming that the ADA requires disabled customers

7

to move barriers out of the way in order to shop at its store, Pier

8

1 claims that disabled customers can rely upon store clerks to

9

clear the accessibility counter. Among the ADA’s purposes however,

10

is to eliminate the stereotype of the helpless disabled person

11

completely reliant on the assistance of able-bodied persons to come

12

to their rescue, not to reinforce it.23

13

fought for, and earned, the right to have stores remove barriers

14

so

15

independently.

16

beg for assistance or to rely upon the hoped-for existence of a

17

kindly store clerk who happens to be in a mood to be helpful.

18

Defendant’s obligation is to ensure that the accessibility counter

19

and the aisles are clear.

20

violation of the ADA.

21

store clerks are kind and helpful and would eventually clear the

22

barriers that should not be there in the first place.

23

////

that

disabled

customers

could

The disabled community

use

those

facilities

This court will not reduce Chapman to the need to

When it fails to do so, it is in

It may not rely upon assertions that its

24
23

25
26

See, e.g., 42 U.S.C. § 12101(a)(5) (“individuals with
disabilities continually encounter various forms of discrimination,
including ... overprotective rules and policies”).
22

1

(2)

2

Temporary barriers - the law.

Defendant also argues that the barriers were only “temporary.”

3

It is true that the ADA does not create liability for “isolated or

4

temporary”

5

features. 28 C.F.R. § 36.211(b).

6

interpretation of what barriers are “temporary” is not correct.

7

“Temporary” is not meant to exclude only objects like the Statue

8

of Liberty – deliberately placed there, immovable and intended to

9

stay there forever.

10

interruptions

“Temporary,”

as

in

used

the

availability

of

accessible

However, defendant’s

in

this

context,

is

closer

to

11

“transitory,” that is, an object that is unavoidably placed in the

12

aisle, but with the intention of removing it as soon as possible.24

13

In 1993, pursuant to Title III’s directive, the Attorney General

14

offered

15

“isolated”

16

(“TAM”).25

guidance

obstructions

and
in

clarification

its

Technical

on

temporary

Assistance

and

Manual

Where a public accommodation must provide an accessible
route, the route must remain accessible and not blocked
by obstacles such as furniture, filing cabinets, or
potted plants....[¶] BUT:
An isolated instance of
placement of an object on an accessible route would not
be a violation, if the object is promptly removed.

17
18
19
20

further

////

21
22
23
24

24

“Temporary” can even refer to objects inadvertently
blocking access on an isolated occasion, as this court discussed
in the previous cross-motions. See Chapman, 2006 WL 1686511 at *910.
25

25
26

“[P]ursuant to Title III's directive to provide technical
assistance to covered entities, the DOJ published a Technical
Assistance Manual (‘TAM’)." Miller, 536 F.3d at 1026, citing 42
U.S.C. § 12206(a), (c)(2)(c).
23

1

TAM III-3.7000 (www.ada.gov/taman3.html, last viewed by the court

2

on June 22, 2012).

3

temporary interruptions in access” can be excused even if an object

4

is placed “on an accessible route.”

5

only “if the object is promptly removed.”

6

claim that the object can remain there indefinitely, so long as no

7

disabled person comes by and asks to have it removed.

8

route must remain accessible and not blocked.26

9

the store maintain itself in such a way that the disabled customer

10

The TAM thus recognizes that “isolated or

But the action is excusable
This belies defendant’s

Rather, the

It demands that

can use its facilities independently.

11

The “temporary” blockages that occur when a store is being re-

12

stocked or items are being moved from one office to another is not

13

prohibited by the ADA.

14

this in his commentary to the proposed rules:

15
16
17
18
19
20
21

In 2008, the Attorney General clarified

The Department has noticed that some covered entities do
not understand what is required by § 36.211 ....
A
common problem observed by the Department is that
covered facilities do not maintain accessible routes.
For example, the accessible routes in offices or stores
are commonly obstructed by boxes, potted plants, display
racks, or other items so that the routes are
inaccessible to people who use wheelchairs. Under the
ADA, the accessible route must be maintained and,
therefore, these items are required to be removed. If
the items are placed there temporarily — for example, if
an office receives multiple boxes of supplies and is
moving them from the hall to the storage room — then §
36.211(b)
excuses
such
“isolated
or
temporary

22
23
24
25
26

26

Maintaining accessible routes would prevent exactly the
humiliation that Chapman claims he experienced, according to his
Declaration, when the Vacaville store essentially assigned an
employee to follow him around clearing obstructions out of his way.
See Chapman Declaration (Dkt. No. 187) ¶¶ 15-22. As noted, the ADA
is not meant to encourage stores to treat the disabled like
helpless children who must be hovered over at every moment.
24

1

interruptions.”

2

73 Fed. Reg. 34,508, 34,523 (June 17, 2008) (Notice of Proposed

3

Rule-making). The Attorney General reiterated this position again

4

in 2010 in explaining why it was declining to make a requested

5

change to Section 36.211 of the implementing regulations:

6
7
8

It is the Department's position that a temporary
interruption that blocks an accessible route, such as
restocking of shelves, is already permitted by existing
§ 36.211(b), which clarifies that “isolated or temporary
interruptions in service or access due to maintenance or
repairs” are permitted.

9
10

75 Fed. Reg. 56,236, 56,270 (September 15, 2010) (Commentary to

11

Final Rule).27

12

Thus the Attorney General has made very clear what is meant

13

by “temporary.”

It is, as noted above, more akin to “transitory,”

14

in that it refers to, for example, boxes temporarily placed in an

15

accessible route while being moved from, say, “the hall to the

16

storage room.”

17

intended to be cleared as soon as the barrier is created. They are

18

not intended to be placed there – and to stay there – until a

19

disabled customer finds that they are making it impossible to use

20

the facility.

21

its placement requires a disabled person to interrupt his use of

22

the facility, wander around the facility trying to find a store

23

employee capable of moving the obstruction, and then request that

24

the barrier be removed.

Such barriers are “temporary,” because they are

In other words, the barrier is not “temporary” if

25
27

26

A commentator had requested that the Rule be amended to
expressly permit restocking of shelves.
25

1
2

(3) Temporary barriers - the facts.
Whether the barriers that Chapman encountered were “isolated

3

or temporary” is a question of fact.

4

an expert report prepared by Kim R. Blackseth (Dkt No. 184).

5

Plaintiff does not challenge the expert nor the report.

6

states: “The aisles throughout the store were the required minimum

7

36 [inches] wide and clear of goods.28

8

able to navigate the aisles in my electric Invacare wheelchair.”

9

In addition, defendant cites Chapman’s own deposition testimony for

10

Defendant’s evidence here is

Blackseth

On my site visits, I was

the proposition that Chapman was able to navigate the aisles.

11

On this basis, it appears that defendant has met its burden

12

of production on summary judgment. The question is whether Chapman

13

can establish a genuine issue as to this material fact.

14

does so.

15

He easily

First, Chapman relies on his own expert, Joe Card.
(Dkt.

No.

189),

states

that

he

Card’s

16

Declaration

conducted

an

17

“inspection” of the store on two separate occasions, May 13, 2005

18

and November 3, 2011.

19

that were blocked by merchandise or reduced in width below 36

20

inches.

21

aisles, as well as a cluttered counter.

22

Chapman’s deposition testimony is that “there were times that I

23

could not reach or get to certain items, height or not, due to the

On both occasions, Card encountered aisles

Photographs attached to the 2011 report show blocked
(Dkt. No. 183-2).

Also,

24
25
26

28

“The minimum clear width of an accessible route shall be 36
[inches].” ADAAG 4.3.3, 56 Fed. Reg. 45,584, 45,659 (September 6,
1991, Dept. of Transportation).
26

1
2

aisles being blocked, ma’am” (at 52).
Second,

Chapman’s

declaration,

recounted

above,

provides

3

sufficient admissible evidence, including photographs of blocked

4

aisles and a cluttered accessibility counter, to create a triable

5

issue of fact on whether he encountered barriers in the store and

6

whether they were “isolated or temporary.” Accordingly, plaintiff

7

has met his burden to show that there is a genuine issue as to

8

whether the accessibility counter and aisles were obstructed, and

9

whether the obstruction was “isolated or temporary.”

10
11

C.

State Claims
1.

Disabled Persons Act and the Unruh Act

12

Defendant seeks summary judgment on plaintiff’s claims under

13

the California Disabled Persons Act and under the Unruh Act because

14

plaintiff “cannot establish any violation of applicable federal or

15

state accessibility standards.”

16

genuine dispute about this, and accordingly defendant’s motion for

17

summary judgment on these state claims will be denied.

18

2.

As discussed above, there is a

Health & Safety Code.

19

Defendant seeks summary judgment on plaintiff’s claim under

20

the California Health & Safety Code and the Gov't Code because

21

plaintiff “cannot establish any violation of state accessibility

22

standards.”

23

this claim in his opposition and does not seek summary judgment on

24

the claim in his cross-motion, and argues that it is therefore

25

“abandoned.”

26

Ninth Circuit authority, Novato Fire Protection Dist. v. U.S., 181

Defendant notes that plaintiff has made no defense of

Dkt. No. 193 at p.15 (ECF 19).

27

Defendant’s cited

1

F.3d 1135 (9th Cir. 1999) cert. denied, 529 U.S. 1129 (2000) does

2

not support this proposition.

3

raised before the district court are waived on appeal.

It holds only that issues not

4

On the merits, defendant failed to meet its initial burden on

5

summary judgment with respect to this claim, since it argues solely

6

that the obstructions plaintiff encountered were “temporary.”

7

discussed above, defendant’s argument is based upon its incorrect

8

view

9

defendant’s motion for summary judgment is denied as to this claim,

of

what

obstructions

are

“temporary.”

10

IV.

Accordingly,

notwithstanding plaintiff’s unexplained silence.

11

As

ANALYSIS - PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

12

Plaintiff cross-moves for summary judgment. It is plaintiff’s

13

initial burden to show that there are no material facts genuinely

14

in dispute, and that he is entitled to judgment as a matter of law.

15

Plaintiff’s evidence, as discussed above, makes a sufficient

16

showing that on numerous occasions, he encountered barriers that

17

interfered with his ability to use and enjoy the facilities on an

18

equal footing with non-disabled customers.

He encountered aisles

19

that

and

20

accessibility counters that were cluttered with merchandise, as

21

follows:

22

1.

23

were

blocked

with

merchandise,

he

encountered

February 1, 2011 (Chapman Decl. ¶ 7; Chapman Depo. pp. 29-33)
(Vacaville store):29
aisles blocked as shown in Exhibit A.

24
29

25
26

Also, PRDUF ¶ 11, 14. Exhibit A (Dkt. No. 187), consists
of photographs of the obstructions that, according to Chapman’s
Declaration, he took himself before leaving the store. Chapman’s
Deposition is Dkt. No. 202-4.
28

1
2

accessibility counter cluttered.
2.

February 7, 2011 (Chapman Decl. ¶ 8) (Vacaville store):
aisles blocked as shown in Exh. A.

3.

February 14, 2011 (Chapman Decl. ¶ 9) (Vacaville store):
aisles blocked as shown in Exh. A.
accessibility counter cluttered as shown in Exh. A.

4.

March 6, 2011 (Chapman Decl. ¶ 10) (Vacaville store):
aisles blocked as shown in Exh. A.

5.

April 29, 2011 (Chapman Decl. ¶¶ 11) (Vacaville store):
aisles blocked as shown in Exh. A.

6.

May 2, 2011 (Chapman Decl. ¶ 12): (Vacaville store):
aisles blocked as shown in Exh. A.

7.

June 30, 2011 (Chapman Decl. ¶ 13) (Vacaville store):
aisles blocked as shown in Exh. A.

8.

October 29, 2011 (Chapman Decl. ¶ 14) (Vacaville store):
aisles blocked as shown in Exh. A.

9.

November 2, 2011 (Chapman Decl. ¶ 31):30
aisles blocked as shown in Exh. B.

10.

November 3, 2011 (Chapman Decl. ¶ 32):31
aisles blocked as shown in Exh. B.

11.

November 4, 2011 (Chapman Decl. ¶ 33):32
aisles blocked as shown in Exh. B.

12.

November 4, 2011 (Chapman Decl. ¶ 34):33

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

30

This paragraph refers to the Pier 1 store located at 6245
Sunrise Boulevard, Sacramento, California. Plaintiff asserts that
he offers evidence of other stores solely to impeach Pier 1's claim
that the blockages he encountered at Vacaville were an isolated
phenomenon. Defendant has not objected to the evidence regarding
these other stores.
31

23
24
25

This paragraph refers to the Pier 1 store located at 1101
Galleria Boulevard, Roseville, California.
32

This paragraph refers to the Pier 1 store located at 6245
Sunrise Boulevard, Sacramento, California.
33

26

This paragraph refers to the Pier 1 store located at 3641
North Freeway Boulevard, Sacramento, California.
29

1

aisles blocked as shown in Exh. B.
13.

November 9, 2011 (Chapman Decl. ¶ 35):34
aisles blocked as shown in Exh. B.

14.

November 9, 2011 (Chapman Decl. ¶ 36):35
aisles blocked as shown in Exh. B.

15.

November 9, 2011 (Chapman Decl. ¶ 37):36
aisles blocked as shown in Exh. B.

16.

November 22, 2011 (Chapman Decl. ¶ 38):37
aisles blocked as shown in Exh. B.

17.

November 22, 2011 (Chapman Decl. ¶ 39):38
aisles blocked as shown in Exh. B.

18.

2

November 22, 2011 (Chapman Decl. ¶ 40):39
aisles blocked as shown in Exh. B.

19.

November 23, 2011 (Chapman Decl. ¶ 18) (Vacaville Store):40
aisles blocked as shown in Exh. A.
accessibility counter cluttered.

20.

January 9, 2012 (Chapman Decl. ¶ 19) (Vacaville store):
aisles blocked as shown in Exh. A.

3
4
5
6
7
8
9
10
11
12
13
14
15

////

16
17
18

34

This paragraph refers to the Pier 1 store located at 6245
Sunrise Boulevard, Sacramento, California.
35

19
20
21

This paragraph refers to the Pier 1 store located at 1101
Galleria Boulevard, Roseville, California.
36

This paragraph refers to the Pier 1 store located at 3641
North Freeway Boulevard, Sacramento, California.
37

22
23
24

This paragraph refers to the Pier 1 store located at 6245
Sunrise Boulevard, Sacramento, California.
38

This paragraph refers to the Pier 1 store located at 1101
Galleria Boulevard, Roseville, California.
39

25
26

This paragraph refers to the Pier 1 store located at 3641
North Freeway Boulevard, Sacramento, California.
40

Also, PRDUF ¶ 15, 17-19.
30

21.

January 27, 2012 (Chapman Decl. ¶ 41):41
aisles blocked as shown in Exh. B.
accessibility counter cluttered with a large Easter Basket.

22.

4

February 9, 2012 (Champan Decl. ¶¶ 21-24) (Vacaville store):
aisles blocked.
accessibility counter cluttered as shown in Exh. B.

5

Plaintiff has thus met his burden of establishing that Pier

6

1 failed to maintain its stores in a manner that complied with the

7

ADA and its implementing regulations.

8

that there is a genuine issue of material fact here, plaintiff will

9

be entitled to a judgment on his ADA claims. Defendant offers four

10

arguments to meet this burden, none of which raises a genuine issue

11

of material fact, or otherwise rebut plaintiff’s factual or legal

12

showing.

1
2
3

A.

13

ADA Claim.
1.

14

Unless defendant can show

The Aisles and Counters Were Clear When Defendant’s
Expert Visited.

15
16

Defendant offers the Declaration and Expert report of Kim R.

17

Blackseth (Dkt. No. 184), as evidence that “the sales counter is

18

currently clear and has been clear in the past.”

19

Blackseth’s Declaration asserts that on his visits to Pier 1,

20

she “frequently” observed compliant aisles, and “frequently had no

21

problem navigating the aisles in my wheelchair.”

22

¶ 12.

23

happened, seems to be saying that on other - perhaps less frequent

24

–

Blackseth Decl.

On its own, this Declaration, by stating what “frequently”

occasions, the aisles were blocked, and that navigation was not

25
41

26

This paragraph refers to the Pier 1 store located at 3641
North Freeway Boulevard, Sacramento, California.
31

1

a simple matter.

2

In any event, the Declaration does not create a

genuine dispute.

3

Blackseth’s report (Dkt. No. 184-1), asserts that on October

4

28, 2011 and November 9, 2011, he visited the Vacaville store and

5

found that, on those days, the accessible counter was clear of

6

goods and the aisles were clear.

7

photographs showing a clear accessibility counter, and three (3)

8

clear

9

plaintiff’s sworn declaration and deposition testimony that this

10

same store had a cluttered accessibility counter and/or blocked

11

aisles on the days that he visited it – February 1, 7 and 14, 2011,

12

March 6, 2011, April 29, 2011, May 2, 2011, June 30, 2011, October

13

29, 2011, November 23, 2011, January 9, 2012 and February 9, 2012.

14

Neither the ADA nor its implementing regulations is concerned with

15

keeping a store accessible on the two days out of the year that it

16

is visited by its expert witness. It is concerned with keeping the

17

facility accessible for the store’s disabled customers, whenever

18

they might visit.

aisles.42

This

Id.

report,

The report was supported by

however,

does

not

contradict

19

Defendant’s first argument does not raise a genuine issue as

20

to any material fact, nor does it rebut plaintiff’s entitlement to

21

summary judgment.

22
23

2.

The Accessibility Counter Was Clear in 2004.

Defendant, in its Reply, asserts that plaintiff did not

24
25
26

42

From the photographs themselves, it can be seen that the
store has more than three aisles. However, the report contains no
photographs of those other aisles.
32

1

complain of a cluttered accessibility counter in 2004, and that he

2

improperly complains of it now.

3

following statement by plaintiff:

4
5
6
7

It apparently refers to the

Unlike barriers of concrete and steel, Pier 1's mootness
defense is based entirely on their promise that the
merchandise blocking the aisles and counter, which
existed in 2004 and continue to exist in 2012 ... were
removed and will not return in the future.
Yet,
Chapman’s photographs taken the day before this motion
was filed ... clearly shows merchandise blocking the
accessible routes.

8
9

Dkt. No. 186-1 at p.8 (emphasis in text).

Defendant apparently

10

objects to plaintiffs insertion of the words “and counter” in the

11

above quotation as it relates to 2004.

12

understand plaintiff to be making a retroactive argument about the

13

accessibility counter, and if he is, the court will not credit it.

14

However, as to the claims that plaintiff is making – the

15

aisles were blocked from 2004 forward, and the accessibility

16

counter was cluttered during some of his 2011 and 2012 visits –

17

defendant’s argument does not create a genuine issue or otherwise

18

rebut plaintiff’s entitlement to summary judgment.
3.

19

The court does not

The Obstructions Were “Movable” and not “Permanent.

20

Defendant argues that no violation of the ADA can occur if a

21

disabled, wheelchair-bound customer can move the obstruction, or

22

if a store employee happens by who can move it.

23

p.8-9.

24

the law.

25

accessible to its customers rests with Pier 1, not the disabled,

26

wheelchair-bound customers, and not to the off-chance that an

Dkt. No. 193 at

As discussed above, this is an incorrect interpretation of
The legal obligation to maintain the store so that it is

33

1

employee

2

obstruction.43

3
4

will

happen

Defendant’s

by

who

incorrect

is

legal

strong

enough

interpretation

to

move

cannot

the

defeat

plaintiff’s entitlement to summary judgment.

5

4.

The Cluttered Counters Were Usable.

6

Defendant relies upon the photographs taken by plaintiff’s

7

expert, Joe Card, to assert that plaintiff could use the cluttered

8

counter because there was enough free space available.

9

this

were

true,

however,

it

does

not

contradict

Even if

the

other

10

photographs taken by plaintiff that show a cluttered accessibility

11

counter.

12

not use the counter – which he encountered on a different day than

13

depicted in the Card Exhibits – until the clutter was moved.

14

short, plaintiff has provided evidence, including photographs

15

showing cluttered accessible counters, and defendant has not

16

responded to that evidence.44

Nor does it dispute plaintiff’s testimony that he could

In

17
18
19
20
21
22

43

Defendant relies heavily upon the stricken Snow Declaration
for its assertion that the aisle blockages were movable. Snow
repeats over and over again that the obstructions – which she does
not deny were present – were “movable merchandise.” Even if the
Declaration were considered on this motion, it would not help
defendant’s case since, as discussed above, it is immaterial that
a wheelchair-bound customer could move the obstructions out of the
way.
44

23
24
25
26

Defendant also relies upon the Snow Declaration, which the
court has excluded from consideration here. However, even that
Declaration only addresses one single instance where plaintiff
asserts that he could not use the accessible counter because of
clutter. Even if the Declaration were considered on this motion,
it would only put that single event in genuine dispute, but the
remaining evidence of unusable counters would be as uncontested as
they are now.
34

1

Defendant cites Kohler v. Flava Enterprises, Inc., 826 F.

2

Supp.2d 1221 (S.D. Cal. 2011), in support of its argument that the

3

counter was usable.

4

photograph that showed only “a few items on the counter, and it

5

does not appear that these items would prevent him from using the

6

lowered counter to purchase merchandise.”

7

1228.

8

has submitted declarations and deposition testimony – unrefuted by

9

defendant – that the clutter on the accessibility counter prevented

10

him from using the counter, and that he was able to use the counter

11

only after those items were moved.

Id., 826 F. Supp.2d at

Those are not the facts before this court.

Here, plaintiff

Defendant has therefore failed to create a genuine dispute as

12
13

In Kohler, the plaintiff submitted a single

to the usability of the accessible counter.
5.

14

The Clutter Was “Temporary.”

15

Defendant relies on its legal argument that the clutter – as

16

to the counter and the aisles - was “temporary” because a store

17

employee eventually moved the clutter so that plaintiff could

18

navigate the aisle or make his purchase.

19

however, this is not “temporary” as that term applies to the ADA

20

and its implementing regulations.

21

does not mean that the obstructions are placed there, and stay

22

there, until a disabled person complains about them.

23

means “in transit,” in the sense that the obstacles are placed in

24

the aisle while being moved from one place to another.45

As discussed above,

As discussed above, temporary

Temporary

25
45

26

is

the

The court does not rule that “in transit” or "transitory"
only concept that can encompass the definition of
35

1

Defendant relies heavily upon Dodson v. Dollar Tree Stores,

2

Inc., 2006 WL 2084738 *3 (E.D. Cal. 2006) (England, J.), for the

3

proposition that merchandise in the aisles are “temporary” and do

4

not violate the ADA.46

5

proposition.

6

“the only impediments” in the aisles “were related to ongoing

7

merchandise

8

proposition that this court has already set forth above, that

9

“temporary” obstructions are those that are “in transit,” not those

10

that are sitting there waiting for a disabled person to encounter

11

them.

In Dodson, the court credited trial testimony that

stocking.”47

Defendant

12

However Dodson does not stand for this

has

failed

Accordingly,

to

create

Dodson

a

stands

genuine

issue

for

on

the

the

13

“temporary” status of the aisle blockages or the disability counter

14

clutter.

15

////

16
17
18
19
20

“temporary.” It is however, the one concept that appears
consistently in the Attorney General’s commentary. The court
certainly would have considered other definitions if defendant had
offered them. However, the court rejects defendant’s implicit
definition – that obstacles that block the store aisle or prevent
use of the accessibility counter are “temporary” so long as they
are moved after the disabled person encounters them.
46

21
22
23
24
25
26

The remainder of defendant’s cases along these lines are
discussed above in the Mootness section.
47

That Dodson testimony came from Kim Blackseth, defendant’s
expert here. However, in this case, Blackseth does not assert in
his expert report, nor in his declaration, that the obstructions
were related to ongoing merchandise stocking. To the contrary, he
offers no explanation for the obstructions, because he did not
observe any during his visits. Even the Snow Declaration, which
the court is not considering in any event, did not ascribe the
aisle blockages to merchandise stocking. Rather, Snow focused on
her assertion that the obstructions were “movable.”
36

1

B.

STATE CLAIMS

2

Plaintiff’s claims under the Disabled Persons Act and the

3

Unruh Act are established if a violation of the ADA is established.

4

Accordingly, a summary judgment for plaintiff on his ADA claim

5

requires a summary judgment on these state claims as well.

6

V.

CONCLUSION

7

Defendant, on its summary judgment motion, relied upon failed

8

arguments that obstructions in its store did not violate the ADA

9

because they were eventually moved after plaintiff encountered

10

them,

11

(notwithstanding the risks to his well-being and dignity). It also

12

relied

13

accessibility counter were not obstructed on dates when its expert

14

witness visited, or the one day its store manager saw Chapman in

15

the store.

16

and

On

because

upon

failed

plaintiff’s

plaintiff

factual

summary

himself

could

assertions

judgment

that

motion,

have

its

he

moved

aisles

them

and

established,

17

without dispute, that on numerous occasions, Pier 1's aisles were

18

blocked and that its accessibility counter was cluttered.

19

established that he was prevented from using these facilities until

20

the obstructions were eventually cleared away.

21

For the reasons set forth above:

22

1.

23

this motion;

24

2.

He

The Snow Declaration is EXCLUDED from consideration on

Defendant’s motion to preclude plaintiff’s cross-motion

25

as untimely, is DENIED;

26

////
37

1
2
3
4
5

3.

Defendant’s motion to strike portions of the Chapman

Declaration is DENIED;
4.

Defendant’s motion for summary judgment is DENIED in its

entirety;
5.

Plaintiff’s cross-motion for summary judgment is GRANTED

6

as to the ADA claim, the Disabled Persons Act claim and the Unruh

7

Act claim.48

8

6.

Plaintiff shall submit a Proposed Judgment of Permanent

9

Injunction no later than fourteen (14) days from the date of this

10

order, and defendant shall file its response, if any, no later than

11

seven (7) days from plaintiff’s filing.

12

7.

The Pretrial Conference date of September 4, 2012 at 1:30

13

p.m. is hereby CONFIRMED.

14

issues in the case are plaintiff’s demand for damages under his

15

state claims, and the unresolved Health & Safety Code and Gov't

16

Code claim.

17

IT IS SO ORDERED.

18

DATED:

The court notes that the remaining

June 27, 2012.

19
20
21
22
23
24
48

25
26

As best the court can tell, plaintiff has not sought
summary judgment on his Health & Safety Code and Gov't Code claim.
To the degree plaintiff seeks summary judgment on this claim, it
is DENIED.
38