Wilson v. Sanchez and Company, Inc. et al

Filing 41

ORDER signed by Judge John A. Mendez on 1/26/2009 DENYING 33 Motion for Summary Judgment by Ronald Wilson; and Defendants are GRANTED Summary Judgment sua sponte. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON, Plaintiff, v. TONY M. SANCHEZ AND COMPANY, Inc., dba MCDONALD'S # 7543; MCDONALDS CORPORATION, Defendants.

Civ. S-07-0822 JAM GGH ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT SUA SPONTE FOR DEFENDANTS

This matter comes before the Court on Plaintiff Ronald Wilson's ("Wilson") motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Defendants Tony

M. Sanchez and Company, Inc. doing business as McDonald's #7543 and McDonald's Corporation (collectively "Defendants") oppose the motion. For the reasons set forth below 1 , Plaintiff's motion

Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
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is DENIED and Defendants' request for summary judgment to be entered sua sponte by the Court is GRANTED. I. FACTUAL AND PROCEDURAL BACKGROUND

This matter arises from Plaintiff Wilson's numerous visits to the McDonald's Restaurant ("Restaurant") in Dixon, California owned by Tony Sanchez and Company, Inc. Wilson is a seventy-two Pl's Mot. for

year old man and has been disabled since 1993.

Summary Judgment, filed November 5, 2008, ("Pl's Mot.") at 2:1920. Wilson claims he visited the Restaurant 33 times spanning Pl's

from July 1, 2001 to his last visit on March 15, 2008. Mot. at 3:11-19.

During these visits, Wilson asserts he

struggled to overcome numerous architectural barriers that prevented him from enjoying full and equal access to the goods and services at the Restaurant. Id. at 3:19-21. Wilson claims

he sent a letter to the Restaurant on February 15, 2008 informing Defendants of the barriers and requesting that the barriers be removed. Id. at 3:22-23.

On April 30, 2007, Wilson filed a complaint against Defendants seeking declaratory, injunctive, and monetary relief pursuant to the American with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181 et. seq., and California's Unruh Civil Rights Act ("Unruh Act"), California Civil Code §§ 51 et seq. 1. Doc. #

According to Wilson, Defendants denied him full and equal

enjoyment in the use of the Restaurant and failed to remove
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architectural barriers that violate federal disability access standards as proscribed by the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). Pl's Mot. at 2:1-9. In the

instant motion, Wilson seeks summary judgment against Defendants. Doc. # 33. Defendants argue Plaintiff has no

competent evidence to support the alleged violations and thus, summary judgment should be denied. Defs' Memorandum of Points

and Authorities in Opposition to Pl's Mot., filed December, 3 2008, ("Defs' Opp.") at 2:8-22. In addition, Defendants request See Defs'

this Court to grant summary judgment on their behalf.

Request for Summary Judgment, Doc. # 34 at Attachment #7. II. A. Legal Standard Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of OPINION

summary judgment "is to isolate and dispose of factually unsupported claims and defenses." 317, 323-324 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248-49 (1986).
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Cleotex v. Catrett, 477 U.S.

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If the moving party meets its burden, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Elec.

Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e) and citing Celotex, 477 U.S. at 323). The Court must view the facts and

draw inferences in the manner most favorable to the non-moving party. (1962). The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient: "There must be evidence on which the jury could reasonably find for [the nonmoving party]." Anderson, 477 U.S. at 252. This Court thus United States v. Diebold, Inc., 369 U.S. 654, 655

applies to either a defendant's or plaintiff's motion for summary judgment the same standard as for a motion for directed verdict, which is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." B. The ADA Plaintiff argues that summary judgment should be granted with respect to his ADA claims against Defendants. Title III of Id.

the ADA establishes that "[n]o individual shall be discriminated against on the basis of disability in the full and equal
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enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 12182(a). 42 U.S.C. §

Here, Wilson alleges that Defendants discriminated

against him by failing to remove certain architectural barriers at the Restaurant. Specifically, Wilson asserts that Defendants

violated the ADA by failing to abide by the ADAAG standards. The ADAAG regulations are divided into three categories. The first category of regulations require that newly-constructed public accommodations must comply with specific accessibility requirements set forth in the ADAAG. 36.406. See 28 C.F.R. Pts. 36.401,

The second category of regulations concerns the

accessibility requirements imposed on public accommodations altered after January 26, 1992. See id. The third category

requires the removal of architectural barriers in preexisting public accommodations. See 28 C.F.R. Pt. 36.304. "Under the

ADA's continuing barrier removal obligation, it is discriminatory for owners, operators, lessors or lessees to fail to remove architectural barriers that deny disabled persons the goods and services offered to the general public." Wilson v.

Pier 1 Imports (US), Inc., 439 F.Supp.2d 1054, 1066 (E.D. Cal. 2006).

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Here, Plaintiff asserts the Restaurant is a newlyconstructed public accommodation designed for occupancy after 1993. See Pls' Mot. at 13:19-22. As such, the Court will

assume, without deciding, that Defendants are required to comply with the higher accessibility standards imposed on new facilities rather than the lower standards imposed on existing facilities. The Court will therefore assume that Restaurant See 28 C.F.R. Pt. 36.406

must comply with the ADAAG standards.

(newly constructed public accommodations must comply with the accessibility requirements set forth in the ADAAG). In order to make a prima facie case under Title III of the ADA, a plaintiff must prove that (1) he has a disability, (2) defendants' facility is a place of public accommodation, and (3) he was denied full and equal treatment because of his disability. Wilson, 439 F.Supp.2d at 1067. Compliance with the

standards set forth in the ADAAG constitutes compliance with ADA requirements. Id. at 1066. Here, because the parties do not

dispute that Wilson is disabled or that the Restaurant is a place of public accommodation, the question is whether Wilson was discriminated against on account of his disability based on architectural barriers. That is, whether Defendants violated

the ADA by contravening specific standards set forth in the ADAAG.

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Wilson claims Defendants violated the ADA by failing to remove barriers that obstructed his access and use of the Restaurant. Pl's Mot. at 11:27-28. However, the only evidence

Plaintiff provides in support of his motion for summary judgment is a statement of 81 facts Wilson asserts are undisputed. These

facts are only supported by one declaration, that of Wilson. However, Wilson's declaration is insufficient to factually support his claims because it fails to show personal knowledge. Wilson provided various measurements relating to alleged architectural barriers such as slopes, heights, levels of landings, poundage of pressures, etc., but Wilson did not state how he made the measurements nor specify how he acquired this knowledge (e.g., Wilson Decl. at ¶¶ 13-14.) Because Wilson did

not state that he was personally involved in any of the measurements to which he testifies, and because personal knowledge cannot be inferred, the statements in Wilson's declaration referencing such measurements cannot be considered by the Court. See Edwards v. Toys "R" Us, 527 F.Supp.2d 1197,

1200 (C.D. Cal. 2007) (under Rule 56(e), a declaration not based on personal knowledge is inadmissible at the summary judgment stage); see also Fed. R. Civ. P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
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matters stated therein").

Thus, because the only affidavit

supporting Wilson's motion for summary judgment is his own declaration and this declaration fails to demonstrate personal knowledge, the facts alleged are not sufficiently supported to create a cognizable claim for relief and thus do not support granting a motion for summary judgment against Defendants. In addition, Wilson's declaration is defective because it contains opinions that constitute expert testimony despite the fact that Wilson has not been disclosed as an expert. at ¶¶ 11-14. See id.

Plaintiff failed to disclose an expert by July 11,

2008 as ordered by this Court in its July 17, 2007 Status (PreTrial Scheduling) Order. Doc. # 14. Rule 26 requires parties

to disclose the identity of expert witnesses "accompanied by a written report prepared and signed by the witness." Civ. P. 26(a). See Fed. R.

Rule 37(c)(1) gives teeth to these requirements

by forbidding the use on a motion or at trial of any information required to be disclosed by Rule 26 that is not properly disclosed, unless the parties' failure to disclose the required information is substantially justified or harmless. See Yetti

by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (citing Fed. R. Civ. P. 37(c)(1) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
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trial, unless the failure was substantially justified or is harmless.")). Rule 37(c)(1) was designed to be self-executing

in order to produce a strong incentive for disclosure of material that the disclosing party would expect to use as evidence whether at trial, at a hearing, or on a motion, such as one under Rule 56. (1993). See Fed. R. Civ. P. 37, Advisory Comm. Note

The party failing to disclose the required information

bears the burden of demonstrating their failure was either substantially justified or harmless. F.3d at 1107. In Defendants' Opposition they contend that Plaintiff failed to serve initial expert witness disclosures as required by Rule 26. Defs' Opp. at 4:24-28, 5:1-16. Because Plaintiff See Yetti by Molly, 259

has not replied to Defendant's Opposition, the Court will treat this failure as a concession that Wilson was not properly disclosed in violation of Rule 26. Accordingly, because

Plaintiff did not demonstrate that his failure to disclose this information was harmless or substantially justified, Wilson's declaration cannot be considered by the Court on Plaintiff's motion for summary judgment. 1106-1107. As such, Plaintiff has not provided evidence of a prima facie case that architectural barriers existed or still exist at the Restaurant. Plaintiff has not only failed to meet its
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See Yetti by Molly, 259 F.3d at

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initial burden of demonstrating the absence of a genuine issue of material fact for trial, Anderson, 477 U.S. at 248-249, but also Plaintiff has failed to show essential evidence to factually support his claims. Accordingly, Plaintiff's motion

for summary judgment against Defendants on the ADA claim is denied. C. The Unruh Act Wilson's second claim for relief seeks to state violations of the Unruh Act predicated upon violations of the rights under the ADA. See Lentini v. California Center for the Arts,

Escondido, 370 F.3d 837, 846 (9th Cir. 2004) (a violation of any right under the ADA is a violation of the Unruh Act). However,

because Wilson's Unruh Act claims turn on ADA liability, and because Wilson failed to prove a violation of any right under the ADA, Wilson's motion for summary judgment against Defendants is denied. D. Summary Judgment Sua Sponte Defendants request the Court to exercise its inherent discretion and enter summary judgment on Defendants' behalf. See Defs' Request for Summary Judgment, Doc. # 34 at Attachment #7. Defendants' request is based upon the fact that Plaintiff Plaintiff

has not disclosed an expert to testify in any manner.

does not have an expert to testify as to what architectural barriers exist or existed at the Restaurant, to testify as to
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what the ADAAG require and what sections pertain to which alleged barriers, nor is there an expert to show whether removal of any barriers is readily achievable as required by 42 U.S.C. § 12182(b)(2)(A)(iv). District courts "possess the power to enter summary judgment sua sponte, so long as the losing party was on notice that [he] had to come forward with all [his] evidence." Celotex, 477 U.S. at 326. To grant summary judgment on behalf

of defendant where defendant has not filed a motion, the plaintiff must have (1) adequate notice and (2) a reasonable opportunity to present an opposition. Kassbaum v. Steppenwolf If a

Productions, Inc., 236 F.3d 487, 494-495 (9th Cir. 2000).

court concludes that a non-moving party is entitled to judgment, "great care must be exercised to assure that the original movant has had an adequate opportunity to show that there is a genuine issue and that his opponent is not entitled to judgment as a matter of law." Id.

Here, Plaintiff has been given adequate notice and a reasonable opportunity to present an opposition. As stated

above, Plaintiff has not provided any admissible evidence before the Court to demonstrate Defendants violated the ADA. Plaintiff

has not disclosed an ADA expert nor has he demonstrated any personal knowledge in his declaration submitted to the Court. In addition, Plaintiff cannot remedy the defect of failing to
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disclose an expert because the deadline for expert disclosure has passed. See Court's Scheduling Order, Doc. # 14 at 3:8-12.

Given Plaintiff's failure to provide competent evidence supporting his claims coupled with the fact that Plaintiff failed to file a reply brief, it appears to the Court that Plaintiff cannot present a prima facie case for an ADA violation and that the overwhelming weight of authority supports granting summary judgment sua sponte to the Defendants. F.3d at 494-495. Kassbaum, 236

The record is fully developed and the

Plaintiff has been given adequate opportunity to present his case. His failure to do so leaves this Court with no choice but to grant summary judgment sua sponte in favor of Defendants. III. ORDER For the reasons set forth above, Plaintiff's motion for summary judgment is DENIED, and Defendants are GRANTED summary judgment sua sponte.

IT IS SO ORDERED. Dated: January 26, 2009

_____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

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