O'Campo v. Chico Crossroads, LP et al

Filing 79

ORDER signed by Judge Kimberly J. Mueller on 3/9/2012 CONFIRMING the bench order tentatively issued on 2/24/2012: Plaintiff may seek leave to file an amended complaint and to amend the scheduling order by 3/23/12. Plaintiff's 60 , 69 and 70 Motions are DENIED without prejudice to refiling at a later point in the proceedings. 61 Defendant's Motion for summary judgment is also DENIED without prejudice. All currently set dates and deadlines are VACATED. (Donati, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIMAS O’CAMPO,
Plaintiff,

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No. CIV S-10-1100 KJM-CMK

vs.
CHICO CROSSROADS, LP; et al.,
Defendants.

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ORDER
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This matter comes before the court on defendant Bed Bath & Beyond’s motion

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for summary judgment. Hearing on this matter took place on February 24, 2012; Daniel Watts

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appeared for plaintiff and Martin Orlick appeared for defendant. As ordered from the bench,

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plaintiff may seek leave to file an amended complaint in light of the court’s questions regarding

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standing1 and defendant’s motion for summary judgment is denied without prejudice to renewal.

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I. FACTS AND PROCEDURAL HISTORY
Plaintiff filed his complaint against defendant, Chico Crossroads, LP, Buffets,

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Inc., The Office Club, Inc., Barnes & Noble Booksellers, Inc., Cost Plus, Inc., and Petco Animal

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Plaintiff filed his request for leave to file an amended complaint on March 9, 2012.
(ECF 78.) Defendant shall file an opposition or statement of non-opposition within seven (7)
days of the entry of this order.
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Supplies, Inc. alleging twenty-eight causes of action, of which four were against defendant:

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(1) violation of Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

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§ 12181, et seq.; (2) violation of the Disabled Persons Act (“DPA”), Cal. Civ. Code § 54;

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(3) violation of the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51; and (4) denial of

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full and equal access to public facilities in violation of Cal. Health & Safety Code § 19955(a).

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(Compl. ¶¶ 244-80.)

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Plaintiff alleges he uses a cane when traveling in public. (Comp. ¶ 14.) He

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further alleges “the barriers at the Bed Bath & Beyond Facility included, but are not limited to,

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the following: There is insufficient strike side clearance when entering the men’s restroom; The

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front roll of toilet tissue is more than 12 inches from the front of the water closet; The operable

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part of the paper towel dispenser is mounted too high; The pipes beneath the lavatory are

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incompletely wrapped; and, There is insufficient strike side clearance when exiting the restroom.

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These barriers prevented O’Campo from enjoying full and equal access at the Bed Bath &

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Beyond Facility.” (Compl. ¶ 33.) Plaintiff further alleges he “continues to be deterred from

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visiting Bed Bath & Beyond Facility because of the future threats of injury created by these

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barriers.” (Id. ¶ 34.)

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Defendant filed the present motion for summary judgment on December 14, 2011.

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(ECF 61.) Plaintiff filed his opposition on December 28, 2011. (ECF 63.) Defendant filed its

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reply on February 17, 2012. (ECF 72.)

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II. RELEVANT AUTHORITY

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A.

Standard
“To demonstrate standing, a plaintiff must (1) have suffered an injury in fact – an

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invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or

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imminent, not conjectural or hypothetical; (2) there must be a causal connection between the

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injury and the conduct complained of – the injury has to be fairly . . . traceable to the challenged

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action of the defendant, and not . . . the result [of] the independent action of some third party not
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before the court; and (3) it must be likely as opposed to merely speculative, that the injury will

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be redressed by a favorable decision.” Pritikin v. Dep’t of Energy, 254 F.3d 791, 796-97 (9th

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Cir. 2001) (internal quotations and citations omitted) (alterations in original). In the ADA

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context, “when an ADA plaintiff has suffered an injury-in-fact by encountering a barrier that

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deprives him of full and equal enjoyment of the facility due to his particular disability, he has

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standing to sue for injunctive relief as to that barrier and other barriers related to his disability;”

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that plaintiff can establish standing “either by demonstrating deterrence, or by demonstrating

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injury-in-fact coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1

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Imports, 631 F.3d 939, 944 (9th Cir. 2011). “The party asserting federal jurisdiction bears the

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burden” of demonstrating he has standing at every stage of litigation. Krottner v. Starbucks

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Corp., 628 F.3d 1139, 1141 (9th Cir. 2010); Chapman, 631 F.3d at 946. “If the court determines

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at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R.

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CIV. P. 12(h)(3).

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B.

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Application
As noted, plaintiff alleges only that he uses a cane when traveling in public.

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(Compl. ¶ 14). Moreover, plaintiff’s complaint does not “adequately allege . . . an injury in fact

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[as it] merely include[s] a lengthy list of alleged barriers without . . . establishing how [the

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specific barriers] affected his specific disability.” Oliver v. Ralphs Grocery Co., 654 F.3d 903,

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907 (9th Cir. 2011). Plaintiff contends the evidence on the record establishes standing, relying

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on a prior motion to compel and his declaration attached to his opposition to the present motion.

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(Opp’n at 8.) Plaintiff relies on Oliver v. Ralphs Grocery Co. to support this contention. (Id. at

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7.) In that case, the Ninth Circuit found the plaintiff’s defective complaint was saved where he

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inadequately pled standing but where there was “sufficient evidence in the record to establish

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that Oliver suffered an injury in fact.” 654 F.3d at 907. Specifically, the plaintiff had

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demonstrated that he “personally encountered barriers . . . that impaired his full and equal

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enjoyment of the facility due to his particular disability.” Id. at 908. In contrast, in the present
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case plaintiff has provided no evidence connecting the barriers he allegedly encountered with his

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alleged use of a wheelchair at the time. The motion to compel does not connect plaintiff’s cane

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use with the specific barriers, nor does it contain information regarding plaintiff’s alleged

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wheelchair use. (ECF 51 at 7-8.) Likewise, plaintiff’s declaration attached to his opposition to

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the present motion, filed nineteen months after his complaint, is the first time on the record that

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plaintiff alleges he uses “a wheelchair when traveling in public for time periods of more than 10-

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15 minutes.” (O’Campo Decl. ¶ 3, ECF 63-2.) Nowhere in either the motion to compel or the

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declaration does plaintiff allege he was using a wheelchair during the visits to Bed Bath &

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Beyond alleged in the complaint. It is not enough, for example, that plaintiff declares generally

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that “[f]rom a wheelchair, it is difficult or impossible to use a paper towel dispenser mounted

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high on the wall.” (Id. ¶ 11.c.) As in Chapman, plaintiff “never alleges . . . how his disability

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was affected by [the alleged barriers] so as to deny him the ‘full and equal’ access that would

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satisfy the injury-in-fact requirement.” Chapman, 631 F.3d at 954.

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C.

Leave to Amend
At hearing, plaintiff’s counsel essentially requested leave to amend the complaint.

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At hearing in response and in its reply brief, defendant asks the court to judicially estop plaintiff

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from amending to allege wheelchair use, relying on Cleveland v. Policy Management Systems

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Corp., 526 U.S. 795, 806 (1999) and Van Asdale v. International Game Tech., 577 F.3d 989, 998

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(9th Cir. 2009). (Reply at 7.) Cleveland is inapposite as it concerns a plaintiff’s burden in

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defending against summary judgment where a plaintiff must allege he is unable to work in order

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to receive social security disability insurance benefits but must allege he is able to perform his

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job in order to state a claim for violation of the ADA. The Cleveland Court held that a plaintiff

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must explain this inconsistency sufficiently to warrant a reasonable juror’s concluding that

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plaintiff states a claim for discrimination in violation of the ADA. 526 U.S. at 807. Likewise, in

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Van Asdale the Ninth Circuit found “a party cannot create an issue of fact by an affidavit

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contradicting his prior deposition testimony.” 577 F.3d at 998 (internal quotation omitted). In
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contrast, the issue presently before the court is whether plaintiff has alleged standing to bring his

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complaint, not whether summary judgment is appropriate. The court declines to exercise its

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discretion to apply judicial estoppel under the present circumstances. Plaintiff’s allegation of

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cane use has not resulted in “success in a prior proceeding . . . and thus poses little threat to

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judicial integrity.” New Hampshire v. Maine, 532 U.S. 742, 751 (2001). In addition, plaintiff’s

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alleged wheelchair use is not “clearly inconsistent” with his alleged cane use. Id. at 750.

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III. CONCLUSION

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For the foregoing reasons, the court confirms the bench order tentatively issued

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on February 24, 2012: Plaintiff may seek leave to file an amended complaint and to amend the

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scheduling order by March 23, 2012.2 Any such motions shall be filed only following

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meaningful meet and confer sessions as clarified by the court at hearing. Plaintiff’s motions to

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strike and for summary judgment at docket numbers 60, 69 and 70 are denied without prejudice

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to refiling at a later point in the proceedings. Defendant’s motion for summary judgment also is

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denied without prejudice. All currently set dates and deadlines are vacated.
IT IS SO ORDERED.

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DATED: March 9, 2012.

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UNITED STATES DISTRICT JUDGE

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See note 1 supra.
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