McCune v. Singh

Filing 43

ORDER and ORDER to SHOW CAUSE signed by Judge John A. Mendez on 7/18/12: Plaintiff's Motion for Summary Judgment on his ADA, Unruh Act, and CDPA claims is GRANTED. Plaintiff is awarded $16,000 in statutory damages pursuant to the Unruh Act 's statutory damages provision. Defendant's Counsel, Morton B. Holt, Jr., is ordered to either (1) submit a statement of good cause for failing to comply with the local rules or (2) pay sanctions of $150.00 to the Clerk of Court. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL MCCUNE,

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Plaintiff,

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v.

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SATNAM SINGH,

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Defendant.

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Case No. 2:10-CV-02207 JAM-GGH
ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY
JUDGMENT AND ORDER TO SHOW
CAUSE

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This matter is before the Court on Plaintiff Michael McCune’s

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(“Plaintiff”) Motion for Summary Judgment or Partial Summary

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Judgment in the Alternative (Doc. ## 41-42).

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summary judgment on his claims under the Americans With

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Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12111-12300;

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California’s Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code

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§ 51, et. seq.; and the California Disabled Persons Act (“CDPA”),

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Cal. Civ. Code § 54, et seq.

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did not file an opposition to Plaintiff’s motion.

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Plaintiff seeks

Defendant Satnam Singh (“Defendant”)

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for July 11, 2012.
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I.

BACKGROUND

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A.

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This action originated when Plaintiff filed his Complaint in

Procedural History

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this Court on August 17, 2010 (Doc. # 1).

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intervening decision issued by the Ninth Circuit Court of Appeals,

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Plaintiff was given leave to amend his Complaint, and he filed a

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First Amended Complaint (“FAC”) on June 20, 2011 (Doc. # 21).

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Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir.

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2011) (requiring an ADA plaintiff to indicate what barriers he or

In response to an

See

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she encountered and how the barriers affected the plaintiff’s

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disability such that he or she was denied full and equal access to

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the public accommodation).

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On November 28, 2011, the Clerk entered the default of

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Defendant for failure to respond to the FAC (Doc. # 27).

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subsequently obtained counsel, and the entry of default was set

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aside based upon Defendant’s showing of good cause on January 27,

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2012 (Doc. # 36). On February 29, 2012, the parties filed a joint

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status report wherein Defendant indicated his desire for a

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settlement conference and Plaintiff indicated that he intended to

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move for summary judgment (Doc. # 39).

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instant motion on May 24, 2012.

Defendant

Plaintiff then filed the

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B.

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The Court has reviewed all of the affidavits and exhibits

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submitted in support of Plaintiff’s unopposed motion and finds that

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the undisputed facts are as follows.

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lawsuit arose when Plaintiff and his wife visited a shopping plaza

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owned by Defendant located at 3950-3960 Cambridge Road, Cameron

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Park, California (the “Plaza”).

Factual Background

The factual basis for this

The Plaza contains several small
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businesses including a liquor store, hardware store, and dry

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cleaner.

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use of an electric wheelchair when traveling in public, found that

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the Plaza was not accessible because of his disability.

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Plaintiff, who is a C5-C6 quadriplegic and requires the

On May 4, 2010 Plaintiff went to the liquor and hardware

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stores located in the Plaza.

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accessible parking space to accommodate his wheelchair-lift

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equipped van.

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that was not designated as van accessible and exited the van.

Plaintiff was unable to find a van-

Plaintiff parked his van in a disabled parking space
Once

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he exited the van, Plaintiff was unable to find an unobstructed

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pathway to the stores he intended to visit.

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stores was obstructed by a newspaper dispenser, a propone tank

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cage, and parked cars that encroached into the walkway.

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returned to the parking lot and traveled behind parked cars to

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enter the liquor store.

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The walkway to the

Plaintiff

The Plaza’s parking lot is divided into a Northern section and

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a Southern section by an area filled with pallets of gardening

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supplies.

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Northern section was constructed in 1988.

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travel through the parking lot, travelling around the pallet area,

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in order to reach the walkway in the North side of the parking lot

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after leaving the liquor store located in the South side.

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Plaintiff reached the North side walkway, he discovered that the

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walkway on that side of the plaza was also obstructed, and he was

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forced to travel to the hardware store entrance through the North

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side parking lot.

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The Southern section was constructed in 1979, and the
Plaintiff was forced to

Once

On May 17 and 27, 2010, Plaintiff returned to the Plaza to
visit the dry cleaning business located in the South side of the
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Plaza.

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encountered on his May 4 visit and opted to remain in the car

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rather than navigate the obstacles to enter the dry cleaner’s

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store.

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to visit the hardware store on the North side of the Plaza,

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encountering the same access difficulties that he experienced on

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the May 4 visit.

When Plaintiff returned, he observed the same obstacles he

Finally, Plaintiff returned to the Plaza on August 19, 2010

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Plaintiff’s characterization of the access issues he

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encountered are verified by two reports attached as exhibits to

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declarations submitted by Plaintiff in support of his motion.

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First, Plaintiff’s expert Joe Card provided a declaration supported

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by a detailed report of accessibility issues at the Plaza.

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Card has over 30 years of experience in the construction business

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and significant training specific to ADA compliance.

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also found to be a qualified expert witness in at least five

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federal lawsuits.

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Defendant’s request by Ronald P. Armstrong, the CEO of CASP

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Masters, LLC.

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Mr.

Mr. Card was

Plaintiff also submitted a report prepared at

The Court finds that Mr. Card, by virtue of his extensive

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personal experience with ADA compliance and specialized knowledge

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related to ADA compliance, to be a qualified expert pursuant to

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Federal Rule of Evidence 702(a) for the purposes of this motion.

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Mr. Armstrong’s credentials are not presently before the Court, so

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he is not an expert.

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Mr. Card’s, so there is no dispute as to the physical condition of

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the Plaza as it relates to Plaintiff’s access.

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on the evidence before the Court, the Court finds the following

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related to the physical condition of the Plaza when Plaintiff

Mr. Armstrong’s report, however, corroborates

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Accordingly, based

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visited:

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The tow away signage posted in the parking lot did not

contain information about where to retrieve a towed vehicle;

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Tow away signage was posted at the entrances to the

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parking lot such that an exiting vehicle could block it from the

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view of entering vehicles;

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3.

The disabled parking spaces were not designated with

accessible signage;

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4.

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accessible;

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5.

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The access aisles had slopes and cross slopes that

exceeded 2.0% grade;

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The disabled parking spaces had slopes and cross slopes

exceeding 2.0% grade;

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There were no parking spaces designated as van

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There were no level landings at the entrances to the

stores within the Plaza;

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8.

None of the parking spaces had wheel stops preventing

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parking cars from encroaching onto the walkways in front of the

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Plaza and reducing the passable route to less than 36 inches in

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width;

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The sidewalks throughout the Plaza had slopes and cross

slopes that exceeded 2.0% grade; and

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10.

The accessible routes from the disabled parking spaces to

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the store entrances were blocked at multiple points and

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inaccessible to Plaintiff’s wheelchair.

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II.

OPINION

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A.

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Summary judgment is proper “if the pleadings, depositions,

Legal Standard for Summary Judgment

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answers to interrogatories, and admissions on file, together with

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affidavits, if any, show that there is no genuine issue of material

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fact and that the moving party is entitled to judgment as a matter

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of law.”

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“is to isolate and dispose of factually unsupported claims or

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defenses.”

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

The purpose of summary judgment

Celotex v. Catrett, 477 U.S. 317, 323-324 (1986).

The moving party bears the initial burden of demonstrating the

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absence of a genuine issue of material fact for trial.

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Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

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party meets its burden, the burden of production then shifts so

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that “the non-moving party must set forth, by affidavit or as

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otherwise provided in Rule 56, ‘specific facts showing that there

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is a genuine issue for trial.’”

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Pacific Electric Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

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1987) (quoting Fed. R. Civ. P. 56(e)).

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facts and draw inferences in the manner most favorable to the non-

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moving party.

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(1962). “[M]ere disagreement or bald assertion that a genuine issue

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of material fact exists will not preclude the grant of summary

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judgment”. Harper v. Wallingford, 877 F. 2d 728, 731 (9th Cir.

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1987).

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Anderson v.

If the moving

T.W. Electrical Services, Inc. v.

The Court must view the

United States v. Diebold, Inc., 369 U.S. 654, 655

The mere existence of a scintilla of evidence in support of

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the non-moving party’s position is insufficient: “There must be

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evidence on which the jury could reasonably find for [the non-

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moving party].”

Anderson, 477 U.S. at 252.
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This Court thus

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applies to either a defendant’s or plaintiff’s motion for summary

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judgment the same standard as for a motion for directed verdict,

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which is “whether the evidence presents a sufficient disagreement

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to require submission to a jury or whether it is so one-sided that

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one party must prevail as a matter of law.”

Id.

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B.

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For the purposes of the present motion, Defendant does not

Discussion

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oppose summary judgment and thus does not attempt to create a

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genuine issue of material fact.

Plaintiff, therefore, must only

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meet his burden of showing the absence of a genuine issue of

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material fact.

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the Court in the preceding section support an entry of judgment as

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a matter of law, then Plaintiff is entitled to judgment.

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1.

Accordingly, if the undisputed facts as found by

ADA Claim

In order to prevail on an ADA discrimination claim, a

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plaintiff must show: (1) he is disabled within the meaning of the

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ADA; (2) the defendant is a private entity that owns, leases, or

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operates a place of public accommodation; and (3) he was denied

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public accommodations by the defendant because of his disability.

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Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).

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a.

Disabled Within the Meaning of the ADA

Plaintiff is a C5-C6 quadriplegic, which meets the definition

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of disabled for purposes of the ADA.

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Molski, 481 F.3d at 732 (holding that a paraplegic person is

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disabled under the ADA).

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b.

42 U.S.C. § 12102; see

Defendant Owns, Leases, or Operates a Public
Accommodation

Defendant is the current owner of the Plaza, and the Plaza as
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a shopping center is a public accommodation for purposes of the

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ADA.

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reasonable dispute.

42 USCA § 12181(7)(e).

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c.

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This element is not subject to

Plaintiff Was Denied Access Because of His
Disability

The Americans with Disabilities Act Accessibility Guidelines

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(the “ADAAG”) provides guidelines for compliance with the ADA.

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Since the ADAAG “establishes the technical standards required for

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full and equal enjoyment, if a barrier violating these standards

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relates to a plaintiff's disability, it will impair the plaintiff's

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full and equal access, which constitutes discrimination under the

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ADA.”

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(9th Cir. 2011) (internal quotations omitted).

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plaintiff to have standing to bring suit, a violation of the ADAAG

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must relate to the plaintiff’s actual disability such that his

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access would be limited.

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Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947
In order for a

Id.

In this case, the evidence shows that Plaintiff encountered
the following conditions:
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The disabled parking spaces were not designated with

accessible signage in violation of ADAAG § 4.6.4;
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There were no parking spaces designated as van accessible

in violation of ADAAG § 4.1.2(5)(b);
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None of the parking spaces had wheel stops preventing

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parking cars from encroaching onto the walkways in front of the

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Plaza and reducing the passable route to less than 36 inches in

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width in violation of ADAAG §§ 4.3.3, 4.6.3, 4.7.2;

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4.

The sidewalks throughout the Plaza had slopes and cross

slopes that exceeded 2.0% grade in violation of ADAAG § 4.3.7;
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The disabled parking spaces in the Plaza’s parking lot

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had slopes and cross slopes exceeding 2.0% in violation of ADAAG

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§ 4.6.3; and

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The accessible routes from the disabled parking spaces to

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the store entrances were blocked at multiple points and

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inaccessible to Plaintiff’s wheelchair in violation of ADAAG

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§ 4.3.2; and

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7.

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There were no level landings at the entrances to the

stores within the Plaza in violation of ADAAG § 4.13.6.
Plaintiff also declared that the above conditions all relate

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to his disability because they make it difficult or impossible for

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him to safely navigate the plaza in his electric wheelchair.

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McCune Decl. ¶¶ 9, 14, 19, 26.

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Based on the uncontroverted evidence of multiple violations of

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the ADAAG at the Plaza, owned and operated by Defendants, that

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specifically relate to Plaintiff’s disability, the Court finds that

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entry of judgment on Plaintiff’s ADA claim is appropriate.

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Plaintiff’s motion on this claim is therefore granted.

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Plaintiff does not specify what type of relief he seeks in his

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motion.

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and attorney’s fees.

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presented with sufficient information to issue an injunction or

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award attorney’s fees.

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declaratory judgment at this time in Plaintiff’s favor on the ADA

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claim.

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His FAC mentions declaratory relief, injunctive relief,
FAC § 10.

The Court, however, is not

Accordingly, the Court only enters a

28 U.S.C. § 2201.
2.

Unruh Act AND CDPA Claims

Pursuant to Cal. Civil Code §§ 51(f) and 54(c), a violation of
the ADA is also a violation of the Unruh Act and the CDPA.
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Moeller

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v. Taco Bell Corp., 220 F.R.D. 604, 606–607 (N.D. Cal. 2004).

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Unruh Act provides for statutory minimum damages of $4,000 for each

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instance of discrimination.

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1126, 1133 (C.D. Cal. 2005).

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of $1,000 per instance of discrimination.

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§ 54.3(a).

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stores and encountered barriers to access each time in violation of

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the ADA, and he is therefore entitled to $16,000 in damages under

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the Unruh Act, $4,000 for each visit.

The

Grove v. De La Cruz, 407 F.Supp.2d
The CDPA provides for minimum damages
Cal. Civil Code

Plaintiff visited the Plaza four times to patronize its

Judgment is accordingly

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entered in Plaintiff’s favor on the Unruh Act and CDPA claims, and

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he is awarded $16,000 in damages.

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III.

DEFENDANT’S NON-OPPOSITION

Defendant did not file an opposition or statement of non-

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opposition to Plaintiff’s Motion for Summary Judgment.

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230(c) requires a non-moving party to file either an opposition to

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the motion or a statement of non-opposition no less than fourteen

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(14) days preceding the noticed hearing date.

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authorizes the Court to impose sanctions for “failure of counsel or

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of a party to comply with these Rules.”

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sanction Defendant’s counsel, Moton B. Holt, Jr., $150.00 unless he

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shows good cause for his failure to comply with the Local Rules.

Local Rule

Local Rule 110

Therefore, the Court will

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IV.

ORDER

For the reasons stated above, the Court issues the following
order:
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Plaintiff’s Motion for Summary Judgment on his ADA, Unruh

Act, and CDPA claims is GRANTED;
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2.

Plaintiff is awarded $16,000 in statutory damages

pursuant to the Unruh Act’s statutory damages provision; and
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Defendant’s Counsel, Morton B. Holt, Jr., is ordered to

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either (1) submit a statement of good cause for failing to comply

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with the local rules or (2) pay sanctions of $150.00 to the Clerk

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of Court.

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IT IS SO ORDERED.
Dated:

July 18, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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