Kalani v. Castle Park, LLC et al

Filing 53

ORDER signed by Judge Lawrence K. Karlton on 4/14/14 DENYING 41 Motion for Summary Judgment on his claim for an injuction requiring defendants to widen the entrace door to Office One and GRANTED on his Unruh Act claim; DENYING 35 Motion for Sum mary Judgment. Issues remaining for trial: 1)Whether defendants violated Title III of the ADA by virtue of the narrow entrance to Office One of the sales and leasing office; (2) Whether the sales and leasing office is now exempt from Title III of t he ADA by being entirely closed to the general public, and if so, whether an injunction is still needed to enforce this voluntary cessation of allegedly illegal discrimination; and(3) Whether an injunction or declaration should issue regarding the Clubhouse and its restroom, and the parking lot, to enforce defendants' voluntary cessation of allegedly illegal discrimination. (Meuleman, A) Modified on 4/15/2014 (Meuleman, A).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERT KALANI,

12

Plaintiff,

13
14

No. CIV. S-12-2330 LKK/CKD

v.

ORDER

CASTLE VILLAGE LLC, FUJINAKA
PROPERTIES, L.P.,

15
Defendants.
16
Plaintiff is a wheelchair-bound resident of a mobile home

17
18

park.

19

Disabilities Act (“ADA”), 42 U.S.C. § 12182 (prohibiting

20

discrimination based on disability in “public accommodations”),

21

and California state law, including the Unruh Act, Cal. Civ. Code

22

§ 51(f).1

23

that plaintiff has been denied full and equal access to

24

facilities associated with the park – and that are available to

25

1

26
27

He sues defendants under Title III of the Americans with

The Second Amended Complaint (“Complaint”) alleges

“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,” Cal. Civ. Code § 51(f),
and subject the violator to penalties and liability for damages,
Cal. Civ. Code § 52(a).

28
1

1

the general public.

2

and its restroom, the sales and rental office located in the

3

Clubhouse, and the parking lot serving the office and the

4

Clubhouse, as non-accessible, public facilities.

5

seeks injunctive relief under the ADA, and damages under state

6

law.

7

Plaintiff specifically names the “Clubhouse”

The Complaint

The parties cross-move for summary judgment.
Defendants assert that (1) the court lacks subject matter

8

jurisdiction because the mobile home park is not a public

9

accommodation, (2) the Clubhouse is a “private club” and

10

therefore exempt from the ADA pursuant to 42 U.S.C. § 12187

11

(incorporating 42 U.S.C. § 2000a(e)), (3) plaintiff lacks

12

standing because he did not use these facilities as a member of

13

the public, (4) defendants do not “operate, lease or manage” the

14

facilities at issue, (5) defendants have now mooted the case by

15

excluding the general public, and (6) the court should not

16

exercise supplemental jurisdiction over the state claims.

17

Plaintiff asserts that (1) the Clubhouse and its restroom,

18

the office and the parking lot are public accommodations, (2) he

19

encountered architectural barriers when attempting to use these

20

facilities, (3) an architectural barrier still bars access to the

21

rental office, even after the other facilities were fixed,

22

(4) defendants are jointly and severally liable, and (5) the

23

claim regarding the removed barriers is not moot because

24

California’s Unruh Act provides for damages for encountered

25

barriers without regard to whether they have since been fixed

26

(Cal. Civ. Code § 52(a)).

27
28

I.

MATERIAL FACTS
1.

Plaintiff Kalani is a person with a disability.
2

1

Plaintiff’s Statement of Undisputed Facts in Support of Motion

2

for Summary Judgment (“PSUF”) (ECF No. 41-7) ¶¶ 1-4.2

3

cannot walk at all, and since 2002 or 2003, has used a wheelchair

4

for mobility.

5

2.

Kalani

Id. ¶ 4.3
In 2004, plaintiff’s wife purchased a mobile home

6

at Castle Mobile Home Park in Ione, CA.

7

Statement of Undisputed Facts in Support of Motion for Summary

8

Judgment/Partial Summary Judgment; Request for Sanctions”

9

(“DSUF”) (ECF No. 35-8) ¶ 9;4 Deposition of Robert Kalani

Defendants’ Separate

10

(January 16, 2014) (“Kalani Depo.”) (ECF No. 35-4) at 27-28.5

11

Plaintiff has been a resident of the park since then.

12

& 7.

13

3.

DSUF ¶¶ 1

Plaintiff has not purchased a mobile home from

14
15
16
17

2

A citation to “PSUF” means that defendants have not genuinely
disputed the asserted fact, so this court can consider it to be
undisputed for purposes of these cross-motions.
3

23

Defendants assert that the dates are “disputed” because on
October 24, 2013, during a deposition in Kalani v. Nat’l Seating
& Mobility, Inc., 13-cv-61 (E.D. Cal.) (Mendez, J.), plaintiff
could not recall exactly when he started using a wheelchair.
Defendants’ Response (“Def. Resp.”) to PSUF (ECF No. 47-4) ¶ 4.
However, plaintiff’s failure to recall the exact dates during a
deposition does not place in dispute his two subsequent sworn
statements that he began using the wheelchair in 2002 or 2003.
See Kalani, 13-cv-61, Kalani Decl. (December 23, 2013), ECF
No. 74-4 ¶ 2; Declaration of Plaintiff Robert Kalani (March 8,
2014) (“R. Kalani SJ Decl. (3-8-2014)”) (ECF No. 41-2) ¶ 2.

24

4

18
19
20
21
22

25
26
27

A citation to “DSUF” means that plaintiff has not genuinely
disputed the asserted fact, so this court can consider it to be
undisputed for purposes of these cross-motions.
5

See Exhibit B (ECF No. 35-4) to the Declaration of Catherine M.
Corfee (February 14, 2014) (“Corfee SJ Decl. (2-14-2004)”) (ECF
No. 35-2).

28
3

1

defendants during the years 2010-13.

2

4.

DSUF ¶ 10.

Defendants Castle Village LLC and Fujinaka

3

Properties, L.P. own the land on which the park is located.

4

¶ 2.

5

5.

DSUF

Non-party Calaveras Valley Village, LLC

6

(“Calaveras”), is paid by defendant Fujinaka to manage the mobile

7

home park.

8

2013) (“Weiner Depo.”) (ECF No. 35-3) at 50.6

9
10

DSUF ¶ 3; Deposition of Mark Weiner (December 12,

6.

Mark Weiner is the Managing Member of Calaveras.

7.

On February 12, 2014, two days before filing their

DSUF ¶ 4.

11
12

summary judgment motion, defendants undertook several actions

13

which, according to them, have excluded the general public from

14

the Clubhouse and restroom, the sales and rental office, and the

15

parking lot.

16

thereupon declared those facilities to be a “private club,” or

17

otherwise off-limits to the general public.

See Def. Resp. to PSUF ¶¶ 7-9, 21.

18

Id.

The Clubhouse and the Ramp

19
20

They have

8.

There is a Clubhouse located on the grounds of the

mobile home park.

21

9.

DSUF ¶ 22; PSUF ¶ 8.

Defendants Castle Village LLC and Fujinaka

22

Properties, L.P. own the building that houses the Clubhouse.

23

DSUF ¶ 2.

24

10.

There is a ramp, leading from the “right end” of

25

the parking lot, that provides a designated accessible entry to

26

6

27

See Exhibit C (ECF No. 35-3) to Corfee SJ Decl. (2-14-2014).
Non-party Mark Weiner is the managing member of Calaveras. DSUF
¶ 4. His deposition testimony was given on behalf of Fujinaka.

28
4

1

the Clubhouse.

2

(February 12, 2014) (“Blackseth Depo.”) (ECF No. 41-6) at 133.7

3

11.

PSUF ¶ 10-12; see Deposition of Kim R. Blackseth

On or about August 8, 2012, plaintiff tried to use

4

the ramp to enter the Clubhouse.

5

Depo. at 133.

6

had “slope issues.”

7
8

PSUF ¶ 10-12; see Blackseth

The ramp “was improperly configured,” because it
See Blackseth Depo. at 133.8

12.

Kalani fell off the ramp, injuring himself.

PSUF

13.

There is an Activities Committee, comprised of

¶¶ 10-11.

9
10

park residents, that plans, advertises, and puts on various

11

activities in the park.

12

(February 27, 2014) (“Martinez Oppo. Decl.”) (ECF No. 40-3)

13

¶¶ 4-6.

14

involved” with activities scheduled at the park.

15

Decl. ¶ 5.

16

managers, turned over responsibility for activities to the

17

residents themselves.

18

meetings of the Activities Committee which were attended by the

19

modular home park manager “who would comment on proposed

20

activities on behalf of the modular home park, and confirm the

21

clubhouse availability for events we wanted to schedule.”

22

Declaration of Patricia Martinez

Prior to 2007, “the modular home park manager was very
Martinez Oppo.

However, Mark Weiner, on behalf of the owners and

14.

Id.

Thereupon, the residents held

Id.

Prior to February 12, 2014, the Activities

23
7

24

See Exhibit D (ECF No. 41-6) to the Declaration of Tanya Moore
(March 10, 2014) (“Moore SJ Decl. (3-10-2014)”) (ECF No. 41-5).

25

8

26
27

Defendants say this is “disputed” because Blackseth,
defendants’ expert, was confused, and may have been talking about
a different ramp. Def. Resp. to PSUF ¶ 12. The deposition
testimony shows however, that defendants’ expert was not confused
about which ramp she was talking about.

28
5

1

Committee conducted Bingo games in the Clubhouse, that were open

2

to the general public.

3

Declaration of Plaintiff Robert Kalani (February 28, 2014) (“R.

4

Kalani Oppo. Decl. (2-28-2014)”) (ECF No. 40-1) ¶ 3.

5

Activities Committee publicly advertised the games to the general

6

public, leaving flyers at a Senior Center, the local market and

7

the pharmacy.

8

“A-frame” sign was posted on the sidewalk at the entrance to the

9

park advertising the Bingo games and inviting members of the

10

Martinez Oppo. Decl. ¶¶ 5-6.

public to attend.

11

15.

PSUF ¶ 8;9 Martinez Oppo. Decl. ¶¶ 6 & 8;

The

In addition, a large

R. Kalani Oppo. Decl. (2-28-2014) ¶ 4.

The Clubhouse Bingo games were attended by members

12

of the general public who learned of the games from the

13

advertisements or “just driving by the mobile home park.”

14

R. Kalani Oppo. Decl. (2-28-2014) ¶ 3.10

15

16.

Prior to February 12, 2014, the Clubhouse and its

16

restroom were used by the public for craft sales, which was an

17

activity that accompanied the community’s twice-yearly yard sale.

18

PSUF ¶ 8.11

The yard and craft sale was run by the Activities

19
9

20
21
22
23
24
25
26
27

Defendants dispute plaintiffs’ assertion that the Clubhouse
“is” open to the public, but they do not dispute that the
Clubhouse and its restroom were open to the public prior to
February 12, 2014. See Def. Resp. to PSUF ¶ 8 (“As of February
12, 2014, the clubhouse is closed to the public”).
10

Mark Weiner would later advise the Activities Committee that
Bingo games had to be open to the general public. Accord, Cal.
Penal Code § 326.5(g) (regarding “Bingo games for charity,”
“[a]ll bingo games shall be open to the public, not just to the
members of the authorized organization”).
11

Defendants do not dispute that the Clubhouse and its restroom
were used this way prior to February 12, 2014. See Def. Resp. to
PSUF ¶ 8.

28
6

1

Committee, which publicly advertises the yard sale in newspapers

2

and “as inserts to the city’s water bills.”

3

¶ 11.

4

public.”

5

use the restroom in the clubhouse.”

The yard and craft sales were “well attended by the
Id.

6
7

17.

During the yard sales, “the public is permitted to
Id.

Plaintiff uses the Clubhouse to pay rent,12 play

bingo, play cards and talk to others.

8
9

Martinez Oppo. Decl.

18.

DSUF ¶ 12.

On or about February 12, 2014 “[a] notice was

posted” – somewhere, defendants do not say where – stating that
DSUF ¶ 15.13

10

the Clubhouse “is not open to the public.”

11

similar notice was “re-posted” “on the Clubhouse doors” on March

12

8, 2014, stating that “the facility is not open to the public.”

13

Declaration of Mark Weiner (March 10, 2014) (“Weiner Reply Decl.

14

(3-10-2014)”) (ECF No. 47-2) ¶ 11.

15

19.

A

Also on March 8, 2014, Mark Weiner, on behalf of

16

the management and the owners of the Clubhouse, mailed a letter

17

to the mobile park community that the Clubhouse was no longer

18

available for Bingo, or for the craft fair, and that the restroom

19

was no longer available to the public.

20

2014) ¶ 9.

Weiner Reply Decl. (3-10-

21
12

22
23

Residents own their own mobile homes, but pay rent for the land
on which the homes are located. See Declaration of Mark Weiner
(February 14, 2014) (“Weiner SJ Decl. (2-14-2014)”) (ECF
No. 35-7) ¶ 9.

24
13

25
26
27

Plaintiff asserts that this is “disputed.” See Plaintiff’s
Response (“Pl. Resp.”) (ECF No. 40-6) to DSUF ¶ 8. However,
plaintiff only disputes the significance of the posting, not that
the posting occurred. Id. Plaintiff also complains that he
cannot verify the existence of this posting since defendants do
not disclose where the posting occurred. Id.

28
7

1

20.

On March 10, 2014, a sign was posted at the

2

entrance to the mobile home park stating that the “CLUBHOUSE IS

3

CLOSED TO THE PUBLIC.”

4

Weiner Reply Decl. (3-10-2014) ¶ 12.
The Sales Office

5

21.

Inside the Clubhouse are two adjacent offices

6

separated from each other by double doors.

7

Weiner Depo. at 96-97.14

8

office (“Office One”) is immediately on the right.

9

at 96.

PSUF ¶¶ 22 & 25;

Upon entering the Clubhouse, the first
Weiner Depo.

The entry door to that office is too narrow to fit

10

plaintiff’s wheelchair through, as it is less than 32 inches

11

wide.

12

8, 2014) (“R. Kalani SJ Decl. (3-8-2014)”) (ECF No. 41-2) ¶ 25.15

13

14

14

PSUF ¶ 32; Declaration of Plaintiff Robert Kalani (March

Defendants assert that they are not two separate offices, but
one large office with a double door between them. The difference
in description appears to be a quibble only, and not material.

15
15

16
17
18
19
20
21
22
23
24
25
26
27
28

Defendants assert that this fact is “disputed.” Def. Resp. to
PSUF ¶ 23. However, they offer nothing to dispute the fact.
Rather, defendants argue that plaintiff does not have to use this
door if he does not want to, since he can enter through Office
Two and the double doors connecting it to Office One. Id.
Defendants also object that the asserted fact “calls for an
expert’s conclusion and Plaintiff is not an expert.” Id. The
objection is frivolous, particularly in light of Strong v. Valdez
Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (“Even without
precise measurements, Strong could support his case based on his
own personal experience with the barriers”). Plaintiff’s
declaration shows that he is fully competent to make this
declaration, because (1) he personally measured the doorway, and
found that it was 29 inches wide, (2) he has been traveling
through doorways, using his wheelchair, for eleven years, and has
learned from experience that doorways that his wheelchair cannot
fit through are less than 32 inches in width, and (3) he knows
from his own experience that his wheelchair does not fit through
the door to Office One. None of this calls for expert opinion;
plaintiff’s own eye-witness account is sufficient.
Strong, 724
F.3d at 1045 (plaintiff’s “personal observations, based on his
prolonged experience with ADA-compliant (and non-compliant)
access ramps, are enough to propel him past summary judgment”).
8

1

22.

Prior to February 13, 2014, Office One was the

2

sales office (or part of the sales office), and was used “to sell

3

homes and lease spaces” in the mobile home park.

4

Weiner SJ Decl. (2-14-2014) ¶ 4; Weiner Depo. at 103.

5

23.

PSUF ¶ 7;

Continuing on, one encounters the second office

6

(“Office Two”), and the door leading into that office.16

7

Depo. at 97.

8
9

24.

Weiner

The two offices are connected by a double door.

Oppo. Decl. (3-24-2014) ¶ 14.17

Weiner

Accordingly, when all the doors

10

are open or unlocked, plaintiff can access Office One by passing

11

the narrow entry door to that office, entering Office Two through

12

its entry door, and then entering Office One though the

13

connecting double door.

14

25.

See R. Kalani SJ Decl. (3-8-2014) ¶ 28.

Prior to February 12, 2014, the sales and rental

15

office, located in the Clubhouse, was open to members of the

16

general public who would go to the Clubhouse and to the sales and

17

rental office to discuss buying a home or renting a space in the

18

park.

19

purposes” would meet agents “in the clubhouse,” and would

20

“sometimes” go inside Office One), 103 (the purpose of the office

21

was “[t]o operate the clubhouse and to sell homes and lease

22

spaces”).

PSUF ¶ 7; Weiner Depo. at 97-98 (“visitors for sales

18

23
24
25

16

There is no allegation that the entry door into Office Two is a
problem for plaintiff, or is non-compliant under the ADA.
17

26

There is no allegation that the double door is a problem for
plaintiff, or is non-compliant under the ADA.

27
18

28

Defendants dispute that the sales and leasing office “is” being
used as a sales and leasing office open to the public, however,
9

1

26.

It is undisputed that the double door is sometimes

2

locked, blocking plaintiff’s access to Office One from Office

3

Two.19

4

27.

On March 10, 2014, a sign was posted at the

5

entrance to the mobile home park stating “No leasing or sales

6

agent or services at Clubhouse.”

7

¶ 12.

8

Weiner Oppo. Decl. (3-24-2014)

The Parking Lot & Ramp

9

28.

Plaintiff is entitled to park in accessible

10

parking spaces, by virtue of a license plate and placard issued

11

by the State of California.

12

29.

PSUF ¶¶ 5 & 6.

Prior to February 12, 2014, the parking lot

13

serving the Clubhouse and the office were used by members of the

14

public interested in buying a mobile home or leasing a space in

15

the mobile home park.

16

¶ 18.20

17

30.

PSUF ¶ 9; R. Kalani SJ Decl. (3-8-2014)

On or about September 6, 2012, plaintiff Kalani

18

parked in the parking space designated as “accessible” in front

19

of the clubhouse.

20

they do not dispute that the office was used this way prior to
February 13, 2014. See Def. Resp. to PSUF ¶ 7 (“As of February
12, 2010 [sic], the sales and leasing office has closed. The
office is no longer open to the public, and the leasing and sales
office has been move off site”).

21
22

PSUF ¶ 14.

23
19

24
25
26
27

However, it is disputed whether this occurs at a time when
Office One is open and therefore accessible to able-bodied
persons, or whether Office One is closed during those times, for
reasons entirely unrelated to plaintiff’s disability or access
issues. See, e.g., Weiner Oppo. Decl. (3-24-2014) ¶ 13.
20

Defendants do not dispute that the parking lot was used in this
way prior to February 12, 2014. Def. Resp. to PSUF ¶ 9.

28
10

1

31.

While attempting to use the “accessible” parking

2

space, Kalani experienced difficulty transferring to his

3

wheelchair.

4

threatened to tip the wheelchair over, and insufficient room,

5

which made it difficult to maneuver.

6

SJ Decl. (3-8-2014) ¶ 14.21

The parking space had excessive slope, which

PSUF ¶ 15 & 16; R. Kalani

7
21

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Defendant claims that these facts are “disputed” because
(1) plaintiff does not assert that the parking spot is “out of
compliance with the access codes,” (2) plaintiff has produced no
“expert report” of non-compliance, (3) plaintiff has “failed to
produce any measurements,” (4) the asserted facts are “an
unsupported conclusion,” and (5) the asserted facts call for “an
expert’s conclusion,” and “Plaintiff is not an expert.” Each of
these objections is fully and thoroughly disposed of by the
discussion and holding of Strong, discussed above in the note to
Undisputed Fact No. 21. Plaintiff’s burden at this stage is to
present credible evidence – which includes his own testimony
about his own first-hand, eye-witness accounts – that show that
he encountered barriers that interfered with his full and equal
enjoyment of a public accommodation. This showing does not
require plaintiff to establish which compliance code is being
violated, to be an expert, to hire an expert, or to produce
precise measurements of slope, width and length, when it is well
within his own experience to know when he is being denied the
full and equal enjoyment of a public accommodation. Moreover,
plaintiff’s own sworn statement about his own experiences in
trying to access a public accommodation – whether it involves him
falling off a ramp or not – is not a legal “conclusion,” but eyewitness testimony that this court can consider. Given
plaintiff’s showing, it is defendants’ burden to show that they
are entitled to the safe harbor of the compliance codes.
However, Defendant has presented no evidence of any kind to rebut
plaintiffs’ showing, or to show that they met the ADA compliance
codes at the time plaintiff tried to use the facilities, and
accordingly plaintiffs’ factual assertions here are “undisputed.”

24
25
26
27
28

Defendants make reference to the Weiner Deposition at pp. 116-17,
but that testimony does not in any way rebut plaintiffs’ showing.
To the contrary, it tends to confirm plaintiffs’ assertion, by
noting that there was not enough space at that part of the
parking lot to make the parking spot compliant, “and so the only
place we could comply would be at the other end so that it would
have the proper grade.” Weiner Depo. at 115.
11

1

The Restroom
32.

2

When plaintiff Kalani used the restroom in the

3

Clubhouse on September 6, 2012, he found that there were not

4

proper wheelchair clearances under the sink, so that he found it

5

very difficult to use the sink.

6

Decl. (3-8-2014) ¶ 15.22

7

Resolved Issues
Plaintiffs concede that three barriers have been corrected.

8
9
10

PSUF ¶¶ 18-20; R. Kalani SJ

They are (1) the ramp to the Clubhouse,23 (2) the accessible
parking spot,24 and (3) the restroom.25

Plaintiff asserts that

11
22

12
13
14
15
16
17
18
19
20
21
22
23

Defendants make the same objections – plaintiff is not an
expert, and has not produced “one single measurement” – that are
fully disposed of by Strong. Indeed, Strong expressly and
specifically rejected the argument that plaintiff’s testimony is
insufficient because he “‘does not assert he is an ADA expert or
is otherwise qualified to opine whether certain conditions
constitute barriers within the meaning of the Act,’” because
“these are not the kind of facts for which expert testimony is
necessary.” Strong, 724 F.3d at 1046.
It is worth noting here that the ADA places the burden on
defendants to ensure that their public accommodations do not
discriminate against persons with disabilities by denying them
full and equal access to those facilities. The law does not
place the burden on plaintiff, a wheelchair-bound person, to lug
around a measuring stick, a surveyor’s transit and the ADA
Accessibility Guidelines (ADAAG), and to constantly have an
expert at his side, whenever he ventures out of his home. See
Strong, 724 F.3d at 1046 (“The ADA was enacted as a boon to
disabled people, not expert witnesses. Specialized or technical
knowledge is not required to understand Strong’s straightforward
assertions”).

24
23

25
26
27
28

A new, compliant ramp was built.
15-16.
24

Pl. Motion (ECF No. 41-1) at

The accessible parking spot was moved.
No. 41-1) at 16.
25

Pl. Motion (ECF

The temporary barrier (a trash can) was removed from underneath
12

1

the sales and leasing office is still not accessible to him.

2

II.

SUMMARY JUDGMENT STANDARDS

3

A.

4

Summary judgment is appropriate “if the movant shows that

Summary Judgment Standard

5

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

6

movant is entitled to judgment as a matter of law.”

7

P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (it is the

8

movant’s burden “to demonstrate that there is ‘no genuine issue

9

as to any material fact’ and that the movant is ‘entitled to

Fed. R. Civ.

10

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

11

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

12

(same).

13

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

14

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

15

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

16

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

17

(quoting Fed. R. Civ. P. 56(a)); Comite de Jornaleros de Redondo

18

Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011)

19

(en banc) (same), cert. denied, 132 S. Ct. 1566 (2012).Under

20

summary judgment practice, the moving party bears the initial

21

responsibility of informing the district court of the basis for

22

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

23

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

24

cannot be ... disputed.”

25

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

26

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

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

27
the sink.

Pl. Motion (ECF No. 41-1) at 16-17.

28
13

1

moving party initially bears the burden of proving the absence of

2

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

3

477 U.S. 317, 323 (1986)).

4

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

5

burden of proof at trial. In that case, “the moving party need

6

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

7

non-moving party’s case.”

8
9

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

If the moving party meets its initial responsibility, the
burden then shifts to the non-moving party to establish the

10

existence of a genuine issue of material fact.

11

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

12

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

13

burden, “the burden then shifts to the non-moving party to

14

designate specific facts demonstrating the existence of genuine

15

issues for trial”).

16

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

17

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

18

admissible materials in support of its contention that the

19

dispute exists.

20

Matsushita Elec.

In doing so, the non-moving party may not

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

“In evaluating the evidence to determine whether there is a

21

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

22

inferences supported by the evidence in favor of the non-moving

23

party.”

24

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

25

moving party’s obligation to produce a factual predicate as a

26

basis for such inferences.

27

Lines, 810 F.2d 898, 902 (9th Cir. 1987).

28

“must do more than simply show that there is some metaphysical

Walls, 653 F.3d at 966.

Because the court only

See Richards v. Nielsen Freight

14

The opposing party

1

doubt as to the material facts ....

2

whole could not lead a rational trier of fact to find for the

3

nonmoving party, there is no ‘genuine issue for trial.’”

4

Matsushita, 475 U.S. at 586-87 (citations omitted).

5
6
7

Where the record taken as a

III. ANALYSIS
Plaintiff sues under Title III of the ADA.

That statute

provides:

8

No individual shall be discriminated against
on the basis of disability in the full and
equal 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.

9
10
11
12
13

42 U.S.C. § 12182(a); PGA Tour, Inc. v. Martin, 532 U.S. 661,

14

675-676 (2001) (“To effectuate its sweeping purpose, the ADA

15

forbids discrimination against disabled individuals in major

16

areas of public life, among them … public accommodations (Title

17

III)”).

18

enjoyment of the Clubhouse and its restroom, the sales and rental

19

office (located inside the Clubhouse), and the parking lot

20

serving the Clubhouse and the office.

21

judgment or partial summary adjudication.

Plaintiff alleges that he was denied the full and equal

Both sides seek summary

22

A.

23

Defendants assert that they cannot be liable for any ADA

24

violations because they do not “operate, lease or manage” the

25

mobile home park.

26

language of the statute and the controlling Ninth Circuit case on

27

the issue, Botosan v. Paul McNally Realty, 216 F.3d 827, 833 (9th

“Operate, Lease or Manage.”

ECF No. 35-1.

28
15

The argument ignores the plain

1

Cir. 2000).26

2

The plain language of Title III of the ADA imposes

3

compliance obligations on any person who “owns, leases (or leases

4

to), or operates a place of public accommodation.”

5

§ 12182(a) (emphasis added).

6

explanation for why it matters that they do not “operate, lease

7

or manage” the park, even though they own it.

8

that they own the Clubhouse building, that they own the land

9

under the mobile home park, and that the residents lease the land

42 U.S.C.

Defendants have offered no

Defendants concede

10

from defendants, making them the landlord.

11

Circuit authority on this issue establishes that as long as

12

defendants are the landlords of a place of public accommodation,

13

they are liable under Title III of the ADA.

14

833 (“a landlord has an independent obligation to comply with the

15

ADA”).27

16

The controlling Ninth

Botosan, 216 F.3d at

In Botosan, the landlord by contract assigned responsibility

17

for ADA compliance to the manager.

18

acknowledged the landlord’s right to allocate responsibility in

19

this way, as between the landlord and the manager.

The Ninth Circuit

However, this

20
26

21
22

Defendants, somewhat surprisingly, do not cite or discuss this
case, even after plaintiff identified it as the controlling Ninth
Circuit authority on the issue in their own summary judgment
motion (ECF No. 41 at 21).

23
27

24
25
26
27

For this reason, it would not seem to matter that the
Activities Committee, rather than defendants directly, ran the
Bingo games, and the craft sale, in the Clubhouse. Defendants
have not offered any evidence that they were unaware of these
activities, or that they were unaware that the Clubhouse was open
to the public. For that matter, it is not clear if their lack of
knowledge would make any difference since, as noted, they are the
landlord.

28
16

1

assignment did not divest the landlord of its responsibility to

2

third parties to comply with the ADA.

3

Id.

Indeed:

Both the landlord who owns the building that
houses a place of public accommodation and
the tenant who owns or operates the place of
public
accommodation
are
public
accommodations subject to the requirements of
this part.

4
5
6
7

28 C.F.R. § 36.201(b).

8

accommodation,’ which triggers coverage under Title III.”

9

Botosan, 216 F.3d at 833.

Thus, the owner itself “is a ‘public

10

B.

11

Defendants assert that the mobile home park is not a public

The Mobile Home Park Is Not a Public Accommodation.

12

accommodation, and therefore not covered by Title III.28

13

Plaintiff does not dispute the point, because plaintiff does not

14

assert that the mobile home park itself is a public accommodation

15

or must be Title III compliant.

16

the enumerated facilities physically located within the mobile

17

home park – the Clubhouse and its restroom, the rental and sales

18

office and the parking lot – are public accommodations, and must

Rather, plaintiff asserts that

19
20
21
22
23
24
25
26
27

28

Defendants argue that plaintiff filed the wrong type of case.
Since defendants believe that plaintiff is suing because the
mobile home park itself is not accessible, they argue that
plaintiff should have filed a Fair Housing Act claim, see 42
U.S.C. §§ 3601, et seq., not an ADA claim. They argue that it is
sanctionable conduct for plaintiff to pursue this case as an ADA
case. It is not clear to the court why defendants cannot seem to
grasp that plaintiff is entitled to file an ADA claim where, as
here, he credibly asserts that the Clubhouse and its restroom,
the sales and leasing office and the parking lot were public
accommodations at the time he tried to use them. The very first
paragraph of plaintiff’s complaint makes clear that mobile home
park itself is not alleged to be the problem, but rather the
“Clubhouse, Rental Office and Adjacent Parking.”

28
17

1

comply with Title III.29

2

None of these facilities are categorically excluded from the

3

definition of “public accommodations,” and indeed, each is

4

plainly included in that definition, given the undisputed facts

5

of this case.

6

The Clubhouse, according to the undisputed evidence, was

7

publicly advertised as a place for the general public to come and

8

play Bingo, at least until February 12, 2014.

9

the following as public accommodations:

10

Title III defines

* an auditorium, convention center, lecture
hall or other place of public gathering;

11
* a gymnasium, health spa, bowling alley,
golf course, or other place of exercise or
recreation;

12
13

* a motion picture house, theater, concert
hall, stadium, or other place of exhibition
or entertainment; and

14
15

* a park, zoo, amusement park, or other place
of recreation.

16
17

42 U.S.C. § 12181(7); 28 C.F.R. § 36.104 (implementing

18

regulations).

19

The rental and sales office, according to the undisputed

20

evidence, was a place where the public was invited as part of the

21

park’s efforts to sell mobile homes and lease spaces, at least

22

until February 12, 2014.

23

public accommodation.

24

Assistance Manual states that a rental office located within a

25

29

26
27

That would make the office a place of

In addition, the ADA Title III Technical

Defendants’ extensive discussion of cases excluding residential
facilities in general from Title III – mobile home parks, rented
mobile home lots, residential complexes, apartments and
condominiums, apartment buildings and residential senior citizen
housing facilities – is therefore simply irrelevant.

28
18

1

private residential complex is a place of public accommodation

2

that is subject to the ADA.

3

III Technical Assistance Manual, http://www.ada.gov/taman3.html

4

(“ILLUSTRATION 3: A private residential apartment complex

5

contains a rental office.

6

accommodation”);30 Johnson v. Laura Dawn Apartments, LLC, 2012 WL

7

33040 at *1 n.1 (E.D. Cal. 2012) (Hollows, M.J.) (“[t]he leasing

8

office of an apartment complex is a place of public

9

accommodation, despite the fact that the apartments themselves

10

See Section III-1.2000, ADA Title

The rental office is a place of public

are not subject to the ADA”).

11

Finally, the parking lot and restroom are plainly places of

12

public accommodation, at least until February 12, 2014, since

13

they served the Clubhouse and the sales office.

14

C.

15

Defendants assert that the Clubhouse is entirely exempt from

The Clubhouse.

16

Title III of the ADA because (1) it is a “private club” and

17

(2) it is not in fact open to the public.31

18
19
20
21
22
23

Title III of the ADA

30

The ADA directs the U.S. Attorney General “to render technical
assistance explaining the responsibilities of covered individuals
and institutions,” Bragdon v. Abbott, 524 U.S. 624, 646 (1998)
(citing 42 U.S.C. § 12206), “and to provide ‘appropriate
technical assistance manuals to individuals or entities with
rights or duties’ under Title III.” Miller v. California
Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008), cert.
denied, 555 U.S. 1208 (2009). The ADA Title II Technical
Assistance Manual provides the Attorney General’s technical
assistance, as contemplated by the statute.

24
31

25
26
27
28

It is possible for an establishment to be described by Title
III as a “public accommodation,” but still not be subject to
Title III, because it is not “in fact” open to the public. See
Jankey v. Twentieth Century Fox Film Corp., 212 F.3d 1159 (9th
Cir. 2000) (Commissary, Studio Store and ATM located on a closed,
private film company lot are exempt from Title III because they
are not open to the public at large).
19

1

“shall not apply to private clubs or establishments exempted from

2

coverage under title II of the Civil Rights Act of 1964.”

3

U.S.C. § 12187.

4

turn, “shall not apply to a private club or other establishment

5

not in fact open to the public.”

6

Accordingly, two types of establishments are exempted from Title

7

III of the ADA, namely, “private clubs,” and establishments that,

8

even if they are not private clubs, are “not in fact open to the

9

public.”

10

42

Title II of the Civil Rights Act of 1964, in

42 U.S.C. § 2000A(e).

These are plainly affirmative defenses, as to which

defendants will have the burden of proof at trial.

11

1.

12

Private Club.

Neither Title III of the ADA, nor Title II of the Civil

13

Rights Act of 1964 (upon which Title III of the ADA relies for

14

its definition of exempt establishments), defines what a “private

15

club” is.

16

establishment not be open to the public at large.32

However, an irreducible minimum is that the
Clegg v. Cult

17
18
19

32

It would also appear that it must be a “club.” The EEOC, which
is charged with interpreting and enforcing 42 U.S.C. § 2000a(e),
says in its Compliance Manual:

20

A "club" is defined as follows:

21

an association of persons for social and
recreational purposes or for the promotion of
some common object (as literature, science,
political activity) usually jointly supported
and
meeting
periodically,
membership
in
social clubs usually being conferred by
ballot and carrying the privilege of use of
the club property.

22
23
24
25
26
27
28

EEOC Compliance Manual, § 2-III(B)(4)(a)(ii) (“Bona Fide Private
Membership Clubs), eeoc.gov/policy/docs/threshold.html#2-III-B-4a-ii. Defendants have presented no evidence that the Clubhouse
or its “membership” has any of these characteristics. Instead,
all “members” simply live in the mobile home park.
20

1

Awareness Network, 18 F.3d 752, 755 n.3 (9th Cir. 1994) (“[o]nly

2

when the facilities are open to the public at large does Title II

3

[of the Civil Rights Act of 1964] govern”).

4

It is undisputed that from 2004, when plaintiff moved into

5

the park, until two days before the summary judgment motion was

6

filed (February 12, 2014) –

7

the Clubhouse off-limits to the general public – the Clubhouse

8

was open to the general public.

9

public was invited to come to the Clubhouse to play Bingo, and it

when defendants took action to make

Prior thereto, the general

10

in fact played Bingo there.

11

come to the Clubhouse for the semi-annual craft fair held there,

12

and it in fact came to the Clubhouse for that event.

13

public used the restroom in the Clubhouse during these events.

14

The general public was invited to

The general

Even taking defendants at their word that the public was

15

excluded from the Clubhouse starting on February 12, 2014, they

16

have not shown that the Clubhouse has suddenly become a “private

17

club.”

18

Clubhouse, even now, exhibits the characteristics that are

19

normally associated with a “private club,” other than the above-

20

noted sudden decision to exclude the general public.

21

as noted, the relevant statutes do not specifically define what a

22

“private club” is, the cases interpreting the term have

23

identified some key (often overlapping) characteristics.

24

e.g., U.S. v. Lansdowne Swim Club, 713 F. Supp. 785 (E.D. Pa.

25

1989) (exhaustively and persuasively analyzing the “private club”

26

exemption, and setting out key characteristics), aff’d, 894 F.2d

Defendants have not offered any evidence showing that the

27
28
21

Although,

See,

1

83 (3rd Cir. 1990).

2

First, private clubs exhibit a “plan or purpose of

3

exclusiveness.”

4

U.S. 229, 236 (1969) (“The Virginia trial court rested on its

5

conclusion that Little Hunting Park was a private social club.

6

But we find nothing of the kind on this record. There was no plan

7

or purpose of exclusiveness.

8

within the geographic area, there being no selective element

9

other than race”); Tillman v. Wheaton-Haven Recreation Ass'n,

See Sullivan v. Little Hunting Park, Inc., 396

It is open to every white person

10

Inc., 410 U.S. 431, 438 (1973) (“[t]he only restrictions are the

11

stated maximum number of memberships and … the requirement of

12

formal board or membership approval”).33

13

person who was a resident (by owning or renting) of the relevant

14

area of Fairfax County, Virginia, and purchased a membership (or

15

had one assigned by the owner), was welcome as a member, so long

16

as he was white.

17

In Sullivan, every

The Clubhouse exhibits no plan or purpose of exclusivity,

18

and in any event, it exhibits even less than was shown in

19

Sullivan and Tillman.

20

“membership” in the Clubhouse, assuming for the sake of argument

21

that there is such a thing as “membership” in the Clubhouse, is

22

residence in the mobile home park, period.

23

even asserted that there is any other membership criterion.

24

example, defendants have offered no evidence that a membership

25

board grants or refuses memberships, as was the case in Sullivan

26

33

27

The only undisputed requirement for

Defendants have not
For

See also, ADA Technical Assistance Manual, § III-1.6000(2) (a
characteristic of exempt private clubs is that “the membership
selection process is highly selective”).

28
22

1

and Tillman, or that the “membership” of the Clubhouse has any

2

say in who is admitted and who is not.

3

defendants’ own evidence is that the only requirement for

4

membership is residence in the mobile home park.

5

To the contrary, the

Second, defendants have offered no evidence that the

6

Clubhouse’s “members” have any control over the Clubhouse, or any

7

ownership of it, two attributes traditionally associated with

8

private clubs.

9

Court, interpreting 42 U.S.C. § 2000a(e), found that the

In Daniel v. Paul, 395 U.S. 298, 301 (1969), the

10

establishment was not a private club.

11

attributes of self-government and member-ownership traditionally

12

associated with private clubs.”34

13

It had “none of the

Indeed, defendants’ own evidence shows that the “members”

14

have no control over the Clubhouse.

15

Weiner – on behalf of the owners and managers – shut the

16

Clubhouse down to the public.

17

“members” were simply dictated to, not that the “membership” made

18

a decision to close the Clubhouse to the public, or to stop the

19

Bingo games.

20

“members” are at the mercy of management, which is apparently

21

entitled to shut down Bingo and the craft fair, and to ban the

22

public from the Clubhouse.

23

the “members” had any say in this.

24

Defendants assert that Mark

The evidence is that the supposed

The evidence submitted by both sides shows that the

There is no indication anywhere that

Third, the history of the club “is relevant to show whether

25
34

26
27

The courts “have been most inclined to find private club
status” in cases where the “[m]embers exercise a high degree of
control over club operations.” ADA III Technical Assistance
Manual § III-1.6000(1).

28
23

1

it was created to avoid the effect” of the ADA.

2

713 F. Supp. at 802 (citing Daniel).35

3

undisputed evidence plainly shows that the Clubhouse was not a

4

private club up until two days before defendants filed a motion

5

to have the Clubhouse exempted from Title III of the ADA.36

6

history of the Clubhouse is also relevant to show that one

7

purpose of the Clubhouse, until February 12, 2014, was to draw

8

the public into the mobile home park, as evidenced by its

See Lansdowne,

In this case, the

The

9
10
11
12
13
14

35

“It is true that following enactment of the Civil Rights Act of
1964, the Pauls began to refer to the establishment as a private
club. They even began to require patrons to pay a 25-cent
‘membership’ fee, which gains a purchaser a ‘membership’ card
entitling him to enter the Club's premises for an entire season
and, on payment of specified additional fees, to use the
swimming, boating, and miniature golf facilities. But this
‘membership’ device seems no more than a subterfuge designed to
avoid coverage of the 1964 Act.” Daniel, 395 U.S. at 301-02.

15
36

16
17

The courts “have been most inclined to find private club
status” where “[t]he club was not founded specifically to avoid
compliance with Federal civil rights laws.” ADA III Technical
Assistance Manual § III-1.6000(5).

18
19
20
21
22
23
24
25
26
27

Historically, it was not unheard of for establishments that were
open to every white person on earth, to magically transform
themselves into “private clubs” (now restricted to every white
person on earth), after passage of the Civil Rights Act of 1964.
See e.g., U.S. v. Richberg, 398 F.2d 523 (5th Cir. 1968)
(Goldberg, J.) (a café is still just a café even after the owner
declared it a “private club” to avoid serving black customers).
At oral argument, defendants’ counsel stated that she hoped the
court would not consider her to be a “bad person,” apparently
because of her “private club” argument. The court can assure
counsel that its views on this matter are not personal. However,
defendants’ deployment of this transparent attempt to avoid a
civil rights law – suddenly declaring a public accommodation to
be a “private club” – is an odd choice that unavoidably raises a
comparison to the use of the same tactics during the Civil Rights
Era.

28
24

1

advertising of the yard sale, Bingo, and the craft sales.

2

the evidence is that the Clubhouse was never intended to be a

3

“private club,” but rather a place of public gathering.

4

Thus,

In addition, it is undisputed that the Clubhouse housed the

5

rental and sales office.

6

invited to come into the Clubhouse so that they could get to the

7

rental and sales office.

The general public therefore were

8

Fourth, the court can consider the formalities observed by

9

the purported club, such as fees, membership cards, bylaws, and
See Lansdowne, 713 F. Supp. at 797.37

10

the like.

11

have offered no evidence that the Clubhouse has any of these.

12

Rather, it is simply a facility that residents are free to use,

13

like the restroom.

14

the Clubhouse would be a “private club.”

15

The defendants

Under defendants’ definition, the restroom in

Indeed, defendants have not even provided any evidence that

16

there is such a thing as “membership” in the Clubhouse.

17

undisputed that nobody ever told plaintiff that he was a “member”

18

of the Clubhouse, that he did not know that he was a member, that

19

he was never issued a membership card and that he was never

20

charged membership fees.

21

is a member, or knows that they are members.38

22

It is

There is no evidence that anyone else

In short, defendants have not shown with undisputed facts,

23
24
25
26
27

37

The courts “have been most inclined to find private club
status” in cases where “[s]ubstantial membership fees are
charged.” ADA III Technical Assistance Manual § III-1.6000(3).
38

Defendants have not asserted that membership in the Clubhouse
is so exclusive that even its own members are unaware of their
membership, so the court will not consider that possibility.

28
25

1

or any facts, that the Clubhouse is a “private club.”

2

2.

Whether the Clubhouse is “in fact not open to the
public.”

3
4

Even if the Clubhouse is not a private club, it can still be

5

exempted from the reach of Title III of the ADA if it is “in fact

6

not open to the public.”

7

above, it is undisputed that the Clubhouse was open to the public

8

at least as recently as February 12, 2014.

9

42 U.S.C. § 2000a(e).

As discussed

The Clubhouse’s status after February 12, 2014 is genuinely

10

in dispute.

11

which, as discussed below, may still be open to the public

12

despite defendants’ protestations.

The Clubhouse houses the sales and leasing office

13

D.

14

Defendants assert that the leasing and sales office (which

The Leasing and Sales Office.

15

appears to be the same office plaintiff refers to as the “rental

16

office”), located inside the Clubhouse, is also not a public

17

accommodation because it is “no longer open to the public.”

18

support, defendants assert that, “[a]s of February 12, 2014,” two

19

days before the summary judgment motion was filed, “the Clubhouse

20

is no longer used for leasing and sales by Calaveras Valley

21

Village, LLC.”

In

Weiner SJ Decl. (2-14-2014) ¶ 4 (emphasis added).

22

Kalani himself has observed “visitors to the Castle Park

23

mobile home park use the parking spaces next to the Clubhouse

24

while they look at vacant lots or meet with representatives

25

inside the Clubhouse,” for the purpose of looking to purchase

26

mobile homes or vacant lots.

27

Kalani himself has observed “for sale” signs in mobile home

28

windows, directing passersby to the clubhouse to talk to an agent

Kalani Oppo. Decl. (2-28-2014) ¶ 6.

26

1

located there, after February 12, 2014 (the date defendants say

2

all sales activity ceased in the office).

3

Id., ¶¶ 8 & 9.

Also, plaintiff has submitted evidence that the office is

4

still being used as a sales office.

5

(2-28-2014) ¶ 7 (plaintiff witnessed apparent sales activity

6

operating out of the sales office of February 18, 2004, after it

7

was supposedly closed to such activities).

8

submitted his own declaration, testifying that even after

9

February 12, 2014, he witnessed members of the public gathering

See Kalani Oppo. Decl.

Plaintiff has

10

at the Clubhouse (even if they did not go inside), and meeting

11

there (just outside the Clubhouse) with a management sales agent,

12

for the apparent purpose of looking to buy a home at the park.

13

R. Kalani Oppo. Decl. (2-28-2014) ¶ 7.

14

did go inside the Clubhouse to access the sales office during

15

this meeting with the prospective purchasers or renters.

16

The sales agent, however,

Id.

Thus, there is evidence that the sales office, located

17

inside the Clubhouse, is still being used for sales and/or

18

leasing purposes.

19

this new “exclusion” of the public from the office – with the

20

sales agent running back and forth from the door of the Clubhouse

21

to the sales office, rather than simply having the prospective

22

tenants sit in the sales office – that this is simply a temporary

23

subterfuge to avoid compliance with the ADA.

24

not clear if, as a matter of law, the public is truly being

25

“excluded” from the Clubhouse if potential purchasers come all

26

the way to the front door, transact business there with an agent

27

inside, and sit in sales meetings directly outside the front

28

door.

Moreover, it is a reasonable inference from

27

In any event it is

1

Defendants now state that as of March 10, 2014, they have

2

absolutely, positively, stopped all on-site sales activities, and

3

that only off-site agents conduct sales and leasing activities.

4

Declaration of Mark Weiner (March 10, 2014) (“Weiner Reply Decl.

5

(3-10-2014)”) (ECF No. 42-2) ¶ 12.

6

voluntary cessation of allegedly discriminatory behavior does not

7

necessarily moot the controversy.

8

Castle, Inc., 455 U.S. 283, 289 (1982).

9

that they will now force prospective buyers and lessors to meet

Perhaps this is so, but the

City of Mesquite v. Aladdin's
Defendants’ assertion

10

agents off-site, abandoning the obviously more convenient use of

11

the on-site sales and leasing office, does not give the court

12

great confidence that it is a genuine, irreversible change in

13

defendants’ operations.

14

E.

15

It is undisputed that the parking lot served the Clubhouse

16

and the rental and sales office when those facilities were open

17

to the public (prior to February 12, 2014).

18

undisputed that the parking lot and ramp were not accessible to

19

plaintiff during that time.

20

The Parking Space.

It is also

However, it is also undisputed that the accessible parking

21

space and ramp no longer prevent plaintiff from the full and

22

equal enjoyment of the Clubhouse, restroom, the sales and leasing

23

office and parking lot itself.

24

make a facility ADA-compliant, even when completed after the ADA

25

lawsuit is filed, is far less likely to be a subterfuge for

26

avoiding the ADA.

27

////

28

////

An actual structural change to

28

1

F.

2

Defendants properly cite Lujan v. Defenders of Wildlife, 504

3

U.S. 555 (1992), and Chapman v. Pier 1 Imports, 631 F.3d 939 (9th

4

Cir. 2011), in their “standing” argument, but fail to explain why

5

those cases deprive Kalani of standing.

6

three elements of Article III standing, all of which plaintiff

7

meets.

Lujan set forth the

“First, the plaintiff must have suffered an ‘injury in fact’

8
9

Standing.

— an invasion of a legally protected interest which is (a)

10

concrete and particularized, and (b) “actual or imminent, not

11

‘conjectural’ or ‘hypothetical.’”

Lujan, 504 U.S. at 560.

12

“Second, there must be a causal connection between the

13

injury and the conduct complained of — the injury has to be

14

‘fairly ... trace[able] to the challenged action of the

15

defendant, and not ... th[e] result [of] the independent action

16

of some third party not before the court.’”

17

at 560.

Lujan, 504 U.S.

“Third, it must be ‘likely,’ as opposed to merely

18
19

‘speculative,’ that the injury will be ‘redressed by a favorable

20

decision.’”

21

Lujan, 504 at 561.
a.

Injury in fact.

Defendants assert that Kalani used the rental office and the

22
23

parking lot as a resident of the mobile home park, not as a

24

member of the public.

25

is “a member of the public going to use a public service” of the

26

mobile home park.

28

See ECF No. 35-1 at 12.

That is not so.

27

They argue that he has standing only if he

As the Ninth Circuit has stated:

////
29

1

Title III does not restrict its coverage to
members of the public; it provides that “No
individual shall be discriminated against” in
the enjoyment of public accommodations by
reason of disability.

2
3
4

Martin v. PGA Tour, Inc., 204 F.3d 994, 998 n.7 (9th Cir. 2000)

5

(emphasis in text), aff’d, 532 U.S. 661 (2001).39

6

as long as the facility is a public accommodation, it may not

7

discriminate against disabled individuals, regardless of their

8

“member of the public” status when using the facility.

9

relevant standing question therefore, is whether plaintiff is an

In other words,

The

10

“individual” within the meaning of the statute.

The statute

11

defines covered “individuals” as “the clients or customers of the

12

covered public accommodation.”

13

Therefore, the question is whether plaintiff is a “client[] or

14

customer[]” of the rental and sales office, not whether he is a

15

member of the public.

42 U.S.C. § 12182(b)(1)(a)(iv).40

The undisputed evidence is that plaintiff is a customer or

16
17

client of the rental and sales office.

He pays rent for the lot

18

on which his mobile home is located, and he pays it to the rental

19

and sales office.

20

////

21

39

24

Defendants do not cite or discuss Martin, notwithstanding its
clear language – “Title III does not restrict its coverage to
members of the public” – that directly contradicts defendants’
major argument for summary judgment, and notwithstanding that
Martin is binding Ninth Circuit authority, affirmed by the
Supreme Court.

25

40

22
23

26
27

“For purposes of clauses (i) through (iii) of this
subparagraph, ‘individual or class of individuals’ refers to the
clients or customers of the covered public accommodation that
enters into the contractual, licensing or other arrangement.” 42
U.S.C. § 12182(b)(1)(a)(iv).

28
30

1

b.

Causal connection.

2

Defendants assert that Kalani lacks standing because he

3

“lacks evidence necessary to show a causal connection between any

4

claimed injury and the condition of the property as required by

5

Chapman v. Pier 1 Imports, 631 F.3d 939 (9th Cir. 2011).”

6

No. 35-1 at 20.

7

that he is being denied the full and equal enjoyment of the

8

clubhouse and its restroom, the rental office (located inside the

9

clubhouse), and the parking lot serving the clubhouse and the

That is simply not true.

ECF

Kalani’s injury is

10

office.

11

compliant parking, a non-compliant restroom in the Clubhouse, all

12

of which he personally encountered, and a laundry list of other

13

ADA violations.

14

He has produced evidence of a defective ramp, non-

c.

Injury must be redressed by a favorable
decision.

15
Defendants assert that they have converted the Clubhouse

16
17

into a “private club” – two days before filing their summary

18

judgment motion – by banning Bingo there, by no longer using the

19

sales office for sales, and by banning the yard sale and crafts

20

sale.

21

This argument is predicated upon this court’s accepting

22

defendants’ assertion that they have magically transformed the

23

facilities – the Clubhouse, the rental and sales office, the

24

restroom, and the parking lot – into a “private club” or

25

otherwise completely excluded the public, notwithstanding the

26

invitations to the public to come play Bingo at the Clubhouse, to

27

participate in the craft sales there, and to use the restroom and

28

parking lot in connection with those activities.
31

However, even

1

if the court were to accept defendants’ assertions, plaintiff’s

2

injury can still be redressed through damages (statutory or

3

otherwise), available through the Unruh Act.

4

[S]o long as the plaintiff has a cause of
action for damages, a defendant's change in
conduct will not moot the case.

5
6

Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of

7

Health and Human Resources, 532 U.S. 598, 608-09 (2001)

8

Also, injunctive relief may still be available if the court

9

is convinced that defendants’ sudden exclusionary actions are

10

simply a “voluntary cessation” of illegal discrimination that

11

could resume as soon as this lawsuit is over:

12

It is well settled that a defendant's
voluntary cessation of a challenged practice
does not deprive a federal court of its power
to determine the legality of the practice.
Such abandonment is an important factor
bearing on the question whether a court
should exercise its power to enjoin the
defendant from renewing the practice, but
that is a matter relating to the exercise
rather than the existence of judicial power.

13
14
15
16
17
18

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289

19

(1982).

20

court of its authority “‘to determine the legality of the

21

practice’ unless it is ‘absolutely clear that the allegedly

22

wrongful behavior could not reasonably be expected to recur.’”

23

Buckhannon, 532 U.S. at 609 (quoting Friends of Earth, Inc. v.

24

Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189

25

(2000)).

26

Also, such voluntary cessation does not deprive this

In short, plaintiff has standing, and this case is not

27
28
32

1

moot.41

2

F.

3

Defendants ask for sanctions, asserting that plaintiff’s

Sanctions.

4

lawsuit is frivolous.

5

plaintiff’s attorney specializes in ADA cases, has filed 342 ADA

6

cases, has represented the same plaintiff in 54 of them, and has

7

gone to trial on an ADA case.

8
9

Defendants seem particularly outraged that

See DSUF ¶ 24.

This court is aware of no authority nor any basis in common
sense that would allow it to sanction plaintiff’s counsel because

10

she has developed a specialty, litigated many cases within that

11

specialty, represented the same client on multiple occasions, and

12

gone to trial on at least one of those cases.

13

likely that counsel’s specialization has made her aware of

14

controlling Ninth Circuit cases in this area.

15

meanwhile, have shown no awareness of at least two of these

16

authorities – Strong and Martin – even after plaintiff pointed

17

them out, and even though they completely disposed of the

18

arguments defendants were making.42

Indeed, it is

Defendants,

19
20
21
22
23
24
25
26
27

41

Defendants seek to dismiss the case on limitations grounds,
apparently because plaintiff did not file suit in 2004, when he
first moved into the mobile home park and became aware of alleged
ADA violations. However, because plaintiff alleges that he
actually encountered the barriers, and that the violations were
continuing at the time he filed his lawsuit (and that one
continues to this day), his suit is not time barred. See Pickern
v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 (9th Cir.)
(discussing the effect of continuing violations on the statute of
limitations), cert. denied, 537 U.S. 1030 (2002).
42

Notwithstanding defendants’ conduct, the court, being the soul
of patience, will not impose sanctions against defendants and
their counsel sua sponte.

28
33

1
2
3

G.

Plaintiff’s Motion for Summary Judgment.
1.

The Sales and Leasing Office.

The undisputed facts show that the sales and leasing office

4

was a public accommodation prior to February 12, 2014.

5

show that prior to that date, plaintiff’s full and equal use of

6

that office was denied because of the difficulty he faced in

7

using the ramp to the Clubhouse, which housed the office, and

8

when he drove there, the difficulty in using the designated

9

“accessible” parking space.

10

They also

Plaintiff argues that the office was also inaccessible under

11

Title III because, as is undisputed, the door to Office One was

12

too narrow.

13

plaintiff full and “equal” access, since he can enter Office One

14

through Office Two.

15

plaintiff had to navigate a “separate labyrinth” to get into

16

Office One, as plaintiff describes it.

17

discrimination exists where the accessible entrance to Office One

18

is a few feet away from the non-accessible entrance:

19
20
21
22
23
24
25

It is not clear to the court that this denies

Presumably it would be inadequate if

But it is not clear that

Contrary to her assertion, Bird does not
prevail on the ADA or Rehab claim simply
because the College failed to provide her
with wheelchair access on a number of
occasions.
Compliance under the Acts does
not depend on the number of locations that
are
wheelchair-accessible;
the
central
inquiry is whether the program, “‘when viewed
in its entirety, is readily accessible to and
usable by individuals with disabilities.’”
Barden v. City of Sacramento, 292 F.3d 1073,
1075–76 (9th Cir. 2002) (quoting 28 C.F.R. §
35.150(a)), cert. denied, 539 U.S. 958
(2003).

26
Bird v. Lewis & Clark College, 303 F.3d 1015, 1021 (9th
27
Cir. 2002), cert. denied, 538 U.S. 923 (2003). It appears that
28
34

1

further factual development is needed to determine whether,

2

viewing the matter in its entirety, plaintiff is being denied

3

full and equal access to Office One.

4

2.

5

Clubhouse and restroom.

The undisputed facts show that prior to February 12, 2014,

6

the Clubhouse and restroom were public accommodations, and not

7

exempted from Title III as private clubs or otherwise.

8

show that plaintiff was denied access to the Clubhouse and its

9

restroom because of the defective ramp and, when he drove there,

10

They also

the defective accessible parking spot.

11

3.

12

Parking Lot.

The undisputed facts show that prior to February 12, 2014,

13

the parking lot was a public accommodation.

14

plaintiff was denied access to the parking lot because of the

15

defective “accessible” parking spot.

16

4.

17
18

They also show that

Unruh Act.

Plaintiff asserts that since defendants have violated the
ADA, plaintiff is “automatically” entitled to statutory damages

19
under the Unruh Act. See Cal. Civ. Code §§ 51(f) (a violation of
20
the ADA is also a violation of the Unruh Act) & 52 (remedy for
21
22

violation of the Unruh Act includes actual damages and statutory

23

damages).

Plaintiff is correct.

See Munson v. Del Taco, Inc.,

24

46 Cal. 4th 661 (2009) (Section 51(f) provides “disabled

25

Californians injured by violations of the ADA with the remedies

26

provided by section 52”).43

27
28

43

Since plaintiff bases his Unruh Act claim solely on the ADA
35

1

IV.

CONCLUSION

2

A.

3

For the reasons stated above, the court grants the following

Summary Adjudications.

4

summary adjudications:

5

1.

Prior to February 12, 2014, the Clubhouse and

6

restroom, the sales and leasing office and the parking lot –

7

including the ramp to the Clubhouse and the accessible parking

8

space – were operated as public accommodations during the time

9

plaintiff attempted to use them.

10
11
12

2.

The Clubhouse is not, and never was, exempt from

Title III of the ADA as a “private club.”
3.

Prior to February 12, 2014, plaintiff was denied

13

full and equal access, because of his disability, to the

14

Clubhouse and restroom, to the sales and leasing office, and to

15

the parking lot, by virtue of the non-compliant ramp leading to

16

the Clubhouse, by virtue of the clutter under the restroom sink,

17

and, when plaintiff drove to the Clubhouse, by virtue of the

18

difficult-to-navigate “accessible” parking space, all in

19

violation of Title III of the ADA and Section 51(f) of the Unruh

20

Act, Cal. Civ. Code § 51(f).

21
22

4.

Plaintiff is no longer being denied full and equal

access to the Clubhouse and its restroom, and the parking lot –

23
24
25
26
27

violation, rather than on an independent violation of the Unruh
Act, he need not prove intentional discrimination. See Greater
Los Angeles Agency on Deafness, Inc., 742 F.3d 414, 425 (9th
Cir. 2014) (“to establish a violation of the Unruh Act
independent of a claim under the Americans with Disabilities Act
(‘ADA’), GLAAD must ‘plead and prove intentional discrimination
in public accommodations in violation of the terms of the Act’”)
(citing Munson).

28
36

1

together with the accessible parking spot and the ramp – because,

2

as plaintiffs concede, defendants have corrected the access

3

problems with regard to those facilities.

4

B.

5

Defendants’ Motions.
1.

Defendants’ motion for summary judgment is DENIED

6

in its entirety, because they have not shown that the public is,

7

or ever was, excluded from the challenged facilities.

8
9
10

2.

Defendants’ motion for sanctions is DENIED in its

entirety, because plaintiff’s lawsuit is not frivolous or
otherwise sanctionable.

11

C.

12

Plaintiff’s Motion.
1.

Plaintiff’s motion for summary judgment on his

13

claim for an injunction requiring defendants to widen the

14

entrance door to Office One is DENIED.

15

plaintiff was ever denied full and equal access to that office

16

given that he can enter it through an alternate door a few feet

17

away.

18

alternate door is ever locked when the door to Office One is

19

open, thus denying plaintiff access while granting access to

20

able-bodied persons.44

21

2.

22

It is not clear that

Moreover, there is a genuine dispute about whether the

Plaintiff’s motion for summary judgment on his

Unruh Act claim is GRANTED, because he has established with

23
24
25
26
27

44

Plaintiff does not move for summary judgment seeking an
injunction relating to the Clubhouse, restroom and parking lot,
now that defendants have corrected the access problems relating
to those facilities. However, the claim for injunctive relief
relating to those facilities is not dismissed, because it is not
established that those facilities will never revert to nonaccessible public accommodations, however unlikely that seems.

28
37

1

undisputed evidence, that defendants denied him full and equal

2

access to the Clubhouse, and its restroom, the sales and leasing

3

office,

4

D.

45

and the parking lot, at least until February 12, 2014.
Issues Remaining for Trial.

5

(1) Whether defendants violated Title III of the ADA

6

by virtue of the narrow entrance to Office One of the sales and

7

leasing office;

8
9

(2)

Whether the sales and leasing office is now exempt

from Title III of the ADA by being entirely closed to the general

10

public, and if so, whether an injunction is still needed to

11

enforce this voluntary cessation of allegedly illegal

12

discrimination; and

13

(3)

Whether an injunction or declaration should issue

14

regarding the Clubhouse and its restroom, and the parking lot, to

15

enforce defendants’ voluntary cessation of allegedly illegal

16

discrimination.

17

IT IS SO ORDERED.

18

DATED:

April 14, 2014.

19
20
21
22
23
24
25
26
27
28

45

That is, by virtue of denying plaintiff access to the
Clubhouse, where the office is located. As stated above, the
denial of access because of the narrow doorway has yet to be
established.
38