McCune v. Safeway, Inc. et al

Filing 34

ORDER signed by Judge Garland E. Burrell, Jr., on 11/29/12 ORDERING that plaintiff's partial summary judgment motion on his ADA claim concerning slopes in the parking lot is granted, and his summary judgment motion on his Unruh Act and DPA cla ims is granted; Plaintiff is awarded $20,000 in statutory damages on his Unruh Act claim; and an injunction issues requiring Defendants to bring the parking lot's parking access aisles into compliance with the ADAAG requirements for permissible slopes and cross slopes. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL McCUNE,
Plaintiff,

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v.

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628 HARVARD CAMERON, LLC;
WOODMAN VICTORY CAMERON, LLC;
FOUNTAIN VALLEY CAMERON, LLC;
COLBY BUTLER CAMERON, LLC;
BEVERLY HOWARD CAMERON, LLC,

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Defendants.
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2:10-cv-02011-GEB-GGH
ORDER GRANTING PLAINTIFF’S
PARTIAL MOTION FOR SUMMARY
JUDGMENT

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Plaintiff

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moves

for

summary

judgment

or

partial

summary

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judgment under Federal Rule of Civil Procedure (“Rule”) 56 on his

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barriers to access claims concerning use of Defendants’ parking lot.

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Plaintiff’s claims are alleged under the Americans with Disabilities Act

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of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.; the California Unruh Civil

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Rights Act (“Unruh Act”), Cal. Civ. Code § 51; and the California

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Disabled Persons Act (“DPA”), Cal. Civ. Code § 54. Defendants failed to

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respond to the motion, as required by Local Rule 230(c).
I. LEGAL STANDARD

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A party seeking summary judgment bears the initial burden of

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demonstrating the absence of a genuine issue of material fact for trial.

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Celotex

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‘material’ when, under the governing substantive law, it could affect

Corp.

v.

Catrett,

477

U.S.

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317,

323

(1986).

“A

fact

is

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the outcome of the case.” Thrifty Oil Co. v. Bank of Am. Nat. Trust &

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Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material

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fact is “genuine” when “the evidence is such that a reasonable jury

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could return a verdict for the nonmoving party.” Id. To meet this

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burden, the movant must “inform[] the district court of the basis for

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its motion, and identify[] those portions of the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with the

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affidavits, if any, which it believes demonstrate the absence of a

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genuine issue of material fact.” Celotex, 477 U.S. at 323.

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If the movant satisfies its initial burden, “the nonmoving

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party must set forth, by affidavit or as otherwise provided in Rule 56,

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specific facts showing that there is a genuine issue for trial.” Id.;

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T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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630 (9th Cir. 1987) (citation and internal quotation marks omitted). In

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evaluating the motion under Rule 56, evidence must be viewed “in the

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light most favorable to the non-moving party,” and “all reasonable

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inferences” that can be drawn from the evidence must be drawn “in favor

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of [the non-moving] party.” Bank of N.Y. v. Fremont Gen. Corp., 523 F.3d

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902, 909 (9th Cir. 2008).

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Further, Local Rule 260(b) requires:

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Any party opposing a motion for summary judgment or
summary adjudication [must] reproduce the itemized
facts in the [moving party’s] Statement of
Undisputed Facts and admit those facts that are
undisputed and deny those that are disputed,
including with each denial a citation to the
particular portions of any pleading, affidavit,
deposition, interrogatory answer, admission, or
other document relied upon in support of that
denial.

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If

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supported] facts identified in the [movant’s] statement of undisputed

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facts,” the nonmovant “is deemed to have admitted the validity of the

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facts contained in the [movant’s] statement.” Beard v. Banks, 548 U.S.

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521, 527 (2006). However, a nonmovant’s failure to oppose the motion for

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summary judgment does not “excuse the moving party’s affirmative duty

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under Rule 56 to demonstrate its entitlement to judgment as a matter of

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law.” Martinez v. Sanford, 323 F.3d 1178, 1182 (9th Cir. 2003). Rather,

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summary judgment may only be granted if the movant has “me[t] its burden

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of demonstrating the absence of triable issues,” even when the nonmovant

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fails to oppose the motion.

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Cir. 1995).

the

nonmovant

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does

not

“specifically

.

.

.

[controvert

duly

Marshall v. Gates, 44 F.3d 722, 725 (9th

II. UNCONTROVERTED FACTS

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Plaintiff filed a Statement of Undisputed Facts (“SUF”) and

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Requests for Admission (“RFA”) in support of his motion. (Decl. of

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Khushpreet R. Mehton (“Mehton Decl”) & Ex. A.)

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The

uncontroverted

summary

judgment

evidentiary

record

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establishes

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requires the use of an electric wheelchair when traveling in public.

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(SUF ¶ 2; Decl. of Michael McCune (“McCune Decl.”) ¶ 2.) He lives near

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the Cameron Park Place Shopping Center, which contains a parking lot for

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a business complex. (Id. ¶ 3.) The business complex includes a Round

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Table Pizza restaurant and Safeway grocery store, located respectively

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at 3370 and 3380 Coach Lane, in Cameron Park, California. (McCune Decl.

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¶ 3.) “Defendants own . . . the parking lot [that] services” the

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business complex. (SUF ¶ 4; Defs.’ Answer (“Answer”), ECF No. 15, ¶ 5.)

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The business complex and parking lot are public accommodations that are

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“open to the public” and “intended for nonresidential use.”

the

following.

Plaintiff

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is

a

C5-C6

quadriplegic

who

(SUF ¶¶ 5-

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6; Answer ¶ 7; Mehton Decl. ¶ 4(c)-(d) & Ex. A.) They were constructed

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in 1999. (Decl. of Joe Card (“Card Decl.”) ¶ 2 & Ex. A.) Plaintiff

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visited the business complex on May 10, 2010; June 21, 2010; July 28,

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2010; July 30, 2010; and August 2, 2010. (McCune Decl. ¶ 4.) He

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regularly patronizes the business complex and intends to return there.

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(Id. ¶¶ 4, 9.)

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Since Plaintiff uses an electric wheelchair, he has “to travel

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in a van that deploys a ramp at the side of the van for unloading and

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loading [his] wheelchair,” and he has “to use the disabled parking

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spaces and adjoining access aisles” to park and deploy the ramp. (Id. ¶¶

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4-5.) Plaintiff declares: “When the slopes and/or cross slopes [in

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disabled parking spaces and adjacent access aisles] are too steep, it

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makes them very difficult for me to traverse in my wheel chair because

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the front casters of my chair can veer or the chair can abruptly shift

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as I approach my van or as I transfer to and from my vehicle[.] Also,

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because I am a quadriplegic, excessive sloops are problematic because

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they disrupt my trunk balance in the wheelchair.” (McCune Decl. ¶ 8(a),

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(b).) Plaintiff’s expert, Joe Card, found that “[t]he slopes of the

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disabled parking spaces in the parking lot are 2.4%, 2.4%, 2.5%, 2.4%,

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4.7%, 2.6%, 2.9%, 2.6%, 2.5%, 2.5%, and 2.3%,” and “[t]he slopes of the

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access aisle adjacent to the disabled parking spaces in the parking lot

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are 2.7%, 2.4%, 2.8%, 3.5 %, 2.6%, and 2.5%.” (Card Decl. ¶ 5(a), (b) &

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Ex. A, at 4-15, 37-41; see also Mehton Decl. ¶ 4(g), (h) & Ex. A.)

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Defendants admit that removal of the excessive slopes and cross slopes

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in their parking lot is readily achievable. (Mehton Decl. ¶ 4(e) & Ex.

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A.)

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/
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III. DISCUSSION

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A. Americans with Disabilities Act of 1990

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Plaintiff argues Defendants violated Title III of the ADA by

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“discriminat[ing] against [him] on the basis of disability by their

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failure to provide him with the full and equal enjoyment of the goods,

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services,

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[their] place of public accommodation.” Mot. 3:7-12:8 (quoting 42 U.S.C.

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§

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Plaintiff “must show that: (1) he is disabled within the meaning of the

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ADA; (2) the defendant[s are] private entit[ies] that own[], lease[], or

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operate[] a place of public accommodation; and (3) [he] was denied

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public accommodations by the defendant[s] because of his disability.”

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Ariz. ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666,

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670 (9th Cir. 2010) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724,

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730 (9th Cir. 2007)).

facilities, privileges,

12182(a)).

To

prevail

on

advantages,

this

Title

III

or

accommodations of

discrimination

claim,

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The meaning of “disability” under the ADA includes “a physical

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. . . impairment that substantially limits one or more major life

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activities of such individual,” such as “walking.” § 12102(1), (2).

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Since Plaintiff is a C5-C6 quadriplegic who requires the use of an

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electric wheelchair when traveling in public, he is disabled within the

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meaning of the ADA. Further, Plaintiff has shown that the parking lot is

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a public accommodation under the ADA.

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Plaintiff

argues

that

Defendants

denied

him public

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accommodation

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Defendants failed to abide by the Department of Justice's regulations

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implementing

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corresponding

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permissible

in

the

the

parking

ADA's

ADA

slopes.

lot

public

accommodation

Accessibility
Plaintiff

because of

Guidelines

further
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argues:

his

disability

provisions
(“ADAAG”)
“In

the

since

and

the

concerning
context

of

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existing facilities, discrimination includes the failure to make a

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facility readily accessible to, or useable by, the disabled.” (Mot.

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3:24-26 (citing 42 U.S.C. §§ 12182(b)(2)(A)(iv), 12188(a)(2).)

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Title III of the ADA prohibits discrimination on the basis of

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disability and requires public accommodations to be accessible to

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persons with disabilities. 42 U.S.C. §§ 12181-89. “To flesh out the

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details of this general rule, Congress charged the Attorney General with

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the

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accommodations must meet these statutory obligations.” United States v.

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AMC Entm’t, Inc., 549 F.3d 760, 763 (9th Cir. 2008). “Congress [also]

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directed the Department of Justice to issue regulations that provide

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substantive standards applicable to facilities covered under Title III.”

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Or. Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126,

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1129 (9th Cir. 2003).

task

of

promulgating

regulations

clarifying

how

public

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“In January 1991, the Access Board proposed accessibility

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guidelines and provided a notice and comment period to evaluate them.

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Later that year, the Access Board issued its final ADA Accessibility

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Guidelines

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guidelines. . . .” AMC Entm’t, Inc., 549 F.3d at 763 (internal citations

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omitted). The Department of Justice then “‘adopt[ed] the ADAAG as the

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accessibility standard’” under the statute (“the 1991 ADAAG standards”).

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Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1025 (9th Cir. 2008)

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(quoting 56 Fed. Reg. at 35,585) (alteration in original). “On September

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15, 2010, the Department of Justice promulgated new regulations and

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adopted new ADAAG standards (‘the 2010 ADAAG standards’).” Kohler v.

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Flava Enters., Inc., 826 F. Supp. 2d 1221, 1229 (S.D. Cal. 2011). The

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2010 ADAAG standards are at issue here. 28 C.F.R. § 36.406(a) app.

[“ADAAG”].

The

Attorney

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General

adopted

these

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Generally, “if a barrier violating [the ADAAG] relates to a

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plaintiff’s disability, it will impair the plaintiff’s full and equal

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access, which constitutes ‘discrimination’ under the ADA” if removal of

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the barrier is readily achievable. Chapman v. Pier 1 Imports (U.S.),

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Inc., 631 F.3d 939, 947 (9th Cir. 2011) (en banc).

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The 2010 ADAAG standards provide:

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502.4 Floor or Ground Surfaces. Parking spaces and
access aisles serving them shall comply with 302.
Access aisles shall be at the same level as the
parking spaces they serve. Changes in level are not
permitted.

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EXCEPTION: Slopes not steeper than 1:48 [2.08%]
shall be permitted.

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Advisory 502.4 Floor or Ground Surfaces. Access
aisles are required to be nearly level in all
directions to provide a surface for wheelchair
transfer to and from vehicles. The exception allows
sufficient slope for drainage. Built-up curb ramps
are not permitted to project into access aisles and
parking spaces because they would create slopes
greater than 1:48.

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ADAAG

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2:10-CV-02207 JAM-GGH, 2012 WL 2959436, at *4 (E.D. Cal. July 19, 2012)

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(finding ADA violations for “disabled parking spaces . . . [that] had

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slopes and cross slopes exceeding 2.0% in violation of [the] ADAAG”);

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Hubbard v. Twin Oaks Health & Rehab. Ctr., 408 F. Supp. 2d 923, 931

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(E.D. Cal. 2004) (finding ADAAG violations where “[t]he slope of the

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accessible parking spaces and the loading aisle were measured” at

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greater than “2% in any direction”). Since the slopes and cross slopes

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at

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remediation of the excessive slopes is “readily achievable,” then

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Plaintiff prevails on his Title III discrimination claim.

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§

issue

502.4

&

exceed

Section

Advisory

2.08%

in

(2010);

the

see

also

business

12182(b)(2)(A)(iv)

McCune

complex

prescribes

v.

Singh,

parking

“failure

lot,

to

No.

if

remove

architectural barriers . . . in existing facilities . . . where such
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removal is readily achievable.”

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means “a facility in existence” and includes “newly constructed or

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altered facilities” such as the business complex and parking lot. 28

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C.F.R. § 36.104; 28 C.F.R. pt. 36, app. A. “‘Readily achievable’ means

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easily accomplishable and able to be carried out without much difficulty

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or expense.” 42 U.S.C. § 12181(9). Here, Defendants concede that removal

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of the excessive slopes and cross slopes is readily achievable. (Mehton

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Decl. ¶ 4(e) & Ex. A.) Therefore, the portion of Plaintiff’s motion

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seeking an injunction requiring remediation of the slopes is granted.

Under the statute, “existing facility”

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B. Unruh Act & DPA

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Plaintiff also argues that he is entitled to prevail on the

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portion of his summary judgment motion in which he seeks statutory

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minimum damages for violations of the Unruh Act and the DPA. “The Unruh

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Act and the DPA entitle disabled individuals to full and equal access to

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public accommodations.” Cals. for Disability Rights v. Mervyn’s LLC, 165

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Cal. App. 4th 571, 585 (2008). Both laws provide that “[a] violation of

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the

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Disabilities Act of 1990 shall also constitute a violation of” the Unruh

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Act, Cal. Civ. Code § 51(f), or the DPA. Id. § 54(c).

right

of

any

individual

under

the

federal

Americans

with

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Under the Unruh Act, Plaintiff can “recover the independent

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statutory damages of $4,000” irrespective of the actual damages he

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sustained. Molski, 481 F.3d at 731. Under the DPA, Plaintiff can recover

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statutory damages of “no . . . less than one thousand dollars ($1,000).”

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Cal.

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available for each “offense,” i.e., visit, wherein Plaintiff suffered

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discrimination. See Cal. Civ. Code §§ 52(a), 54.3(a); Lentini v. Cal.

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Ctr. for the Arts, Escondido, 370 F.3d 837, 847—49 (9th Cir. 2004).

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However, Plaintiff may not recover under both laws “for the same act or

Civ.

Code

§

54.3(a).

Statutory

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damages

under

both

laws

are

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failure to act,” Cal. Civ. Code § 54.3(c); Plaintiff states in his

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motion that he elects to recover under the Unruh Act. (Mot. 12:1-13:6.)

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Therefore, since Plaintiff visited the business complex five times and

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encountered ADA violations each time, he has proved he is entitled to

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$20,000 in damages under the Unruh Act.

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IV. CONCLUSION

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For the stated reasons, Plaintiff’s partial summary judgment

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motion on his ADA claim concerning slopes in the parking lot is granted,

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and his summary judgment motion on his Unruh Act and DPA claims is

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granted; Plaintiff is awarded $20,000 in statutory damages on his Unruh

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Act claim; and an injunction issues requiring Defendants to bring the

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parking lot’s parking access aisles into compliance with the ADAAG

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requirements for permissible slopes and cross slopes.

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Dated:

November 29, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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