Johnson v. Nagy

Filing 28

ORDER signed by District Judge Morrison C. England, Jr. on 09/12/17 GRANTING plaintiff's 24 Motion for Summary Judgment. Defendant is ENJOINED to make his property compliant with the Americans with Disabilities Act and the Court awards Plaintiff statutory damages in the amount of $12,000. CASE CLOSED (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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No. 2:14-cv-01065-MCE-AC

Plaintiff,

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v.

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FRANK NAGY,

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MEMORANDUM AND ORDER

Defendant.

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Through the present action, Plaintiff Scott Johnson seeks damages and injunctive

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relief against Defendant Frank Nagy for violations of the Americans with Disabilities Act

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(“ADA”), 42 U.S.C. §§ 12101–12213, as well as California’s Unruh Civil Rights Act, Cal.

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Civ. Code § 51. Plaintiff claims he encountered various physical barriers at Defendant’s

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strip mall in Manteca, California. Plaintiff now moves for summary judgment. ECF

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No. 24. For the reasons that follow, Plaintiff’s Motion is GRANTED.

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BACKGROUND

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Plaintiff is a quadriplegic who cannot walk, uses a wheelchair, and has significant

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manual dexterity impairments. Stmt. of Undisputed Facts, ECF No. 24-2, ¶¶ 1–2. He

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drives a specially equipped van with a lift that deploys from the passenger side of the
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van to accommodate his wheelchair. Id. ¶ 2. On July 15, 2013, Plaintiff visited

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Defendant’s strip mall, the Northgate Center, where he found the accessible parking to

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be insufficiently marked and accompanied by an access aisle that was less than eight

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feet wide. Id. ¶¶ 6–8. Despite this, Plaintiff parked and then visited a store in the mall,

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the A-1 Cigarette Store. Id. ¶ 11. There he discovered that the entrance had a

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horizontal grab bar handle, which was difficult for him to use due to the grasp required to

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operate it, and someone had to help him open the door. Id. ¶¶ 11–13.

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On September 20, 2013, Plaintiff again visited the strip mall, this time parking at a
nearby casino. Id. ¶¶ 14–15. On this trip, Plaintiff visited a different store, the Family

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Barber, where he encountered another horizontal bar handle. Id. ¶¶ 14, 16. At the

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Family Barber, Plaintiff entered the restroom, finding a door knob that was also difficult

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for him to use as well as a sink that lacked knee clearance for those in wheelchairs. Id.

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¶¶ 17–19. Plaintiff has since attempted to return to the strip mall on at least seven other

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occasions, each time meeting the same obstacles. Id. ¶ 21. At least once, On

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February 5, 2014, Plaintiff had his caregiver make purchases at the strip mall for him

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while he waited in his van. Id. ¶ 22.

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Plaintiff had an investigator conduct an inspection of the strip mall twice since that

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visit, first on December 8, 2015, and then on January 2, 2017. Id. ¶¶ 23, 32. On both

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inspections, the investigator discovered that barriers to access still existed, though

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additional signage on the accessible parking space was discovered on the second visit.

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Id. ¶¶ 24–31, 33–34.

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STANDARD

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The Federal Rules of Civil Procedure provide for summary judgment when “the

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

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

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Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to
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dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325.
Rule 56 also allows a court to grant summary judgment on part of a claim or

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defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may

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move for summary judgment, identifying each claim or defense—or the part of each

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claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v.

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Madan, 889 F. Supp. 374, 378–79 (C.D. Cal. 1995). The standard that applies to a

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motion for partial summary judgment is the same as that which applies to a motion for

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summary judgment. See Fed. R. Civ. P. 56(a); California ex rel. Cal. Dep’t of Toxic

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Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary

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judgment standard to motion for summary adjudication).
In a summary judgment motion, the moving party always bears the initial

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responsibility of informing the court of the basis for the motion and identifying the

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portions in the record “which it believes demonstrate the absence of a genuine issue of

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material fact.” Celotex, 477 U.S. at 323. “However, if the nonmoving party bears the

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burden of proof on an issue at trial, the moving party need not produce affirmative

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evidence of an absence of fact to satisfy its burden.” In re Brazier Forest Prods. Inc.,

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921 F.2d 221, 223 (9th Cir. 1990). If the moving party meets its initial responsibility, the

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burden then shifts to the opposing party to establish that a genuine issue as to any

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material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

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475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288–89

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(1968).

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In attempting to establish the existence or non-existence of a genuine factual

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dispute, the party must support its assertion by “citing to particular parts of materials in

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the record, including depositions, documents, electronically stored information,

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affidavits[,] or declarations . . . or other materials; or showing that the materials cited do

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not establish the absence or presence of a genuine dispute, or that an adverse party

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cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The

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opposing party must demonstrate that the fact in contention is material, i.e., a fact that
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might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248, 251–52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp &

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Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also

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demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is

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such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,

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477 U.S. at 248. In other words, the judge needs to answer the preliminary question

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before the evidence is left to the jury of “not whether there is literally no evidence, but

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whether there is any upon which a jury could properly proceed to find a verdict for the

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party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251

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(quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). As the Supreme Court

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explained, “[w]hen the moving party has carried its burden under Rule [56(a)], its

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opponent must do more than simply show that there is some metaphysical doubt as to

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the material facts.” Matsushita, 475 U.S. at 586. Therefore, “[w]here the record taken as

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a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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‘genuine issue for trial.’” Id. at 587.

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In resolving a summary judgment motion, the evidence of the opposing party is to

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be believed, and all reasonable inferences that may be drawn from the facts placed

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before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at

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255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn.

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Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d,

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

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ANALYSIS

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Defendant has not filed an opposition to Plaintiff’s Motion for Summary Judgment

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or a statement of non-opposition.1 However, “[a] district court may not grant a motion for

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Defendant filed a document styled a Response to Plaintiff’s Motion for Summary Judgment on

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summary judgment solely because the opposing party has failed to file an opposition.”

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Van Mathis v. Safeway Grocery, No. C 09-2026 WHA (PR), 2010 WL 3636213, at *1

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(N.D. Cal. Sept. 14, 2010) (citing Crisobal v. Siegel, 26 F.3d 1488, 1494–95 & n.4 (9th

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Cir. 1994)). Instead, a district court must determine whether the movant has satisfied “its

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burden of showing its entitlement to judgment.” Crisobal, 26 F.3d at 1491.

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To prevail on a claim under Title III of the ADA, “a plaintiff must show that: (1) he

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is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns,

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leases, or operates a place of public accommodation; and (3) the plaintiff was denied

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public accommodations by the defendant because of his disability.” Arizona ex rel.

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Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). “The

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third element . . . is met if there was a violation of applicable accessibility standards.”

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Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011) (citing Chapman

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v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011); Donald v. Cafe Royale,

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218 Cal. App. 3d 168, 183 (1990)). The Unruh Civil Rights Act provides, in relevant part:

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“A violation of the right of any individual under the federal Americans with Disabilities Act

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of 1990 shall also constitute a violation of [the Unruh Civil Rights Act].” Cal. Civ. Code

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§ 51(f). California Civil Code § 52(a) sets a minimum of $4,000 in damages for a

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violation of the Unruh Civil Rights Act.

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The ADA defines a person as disabled if, among other things, he has “a

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physical . . . impairment that substantially limits one or more major life activities.”

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42 U.S.C. § 12102(1)(A). The ADA lists “walking” as an example of a major life activity.

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Id. § 12102(2)(A). Thus, because Plaintiff is a paraplegic, he is considered disabled

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within the meaning of the ADA. Defendant also owns the strip mall in question, and

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shopping centers are considered public accommodations under the ADA. See id.

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§ 12181(7)(E). Finally, by not meeting the requirements set forth in the ADA

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May 8, 2017, but the next day marked it “DISREGARD DRAFT COPY, ATTORNEY TO REFILE.” ECF
No. 25. The file at ECF No. 25 indeed appears to be a draft, and Defendant has not refiled a final version.
The Court also notes that the draft version was filed almost a full month past the April 13, 2017 deadline to
file an opposition.

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Accessibility Guidelines for Buildings and Facilities (“ADAAG”), Defendant’s strip mall

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contains barriers to access. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939,

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945 (9th Cir. 2011) (“Any element in a facility that does not meet or exceed the

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requirements set forth in the ADAAG is a barrier to access.”). Accordingly, Plaintiff has

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shown he is entitled to judgment for his claims under both the ADA and the Unruh Civil

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Rights Act.

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Plaintiff seeks statutory damages under the Unruh Civil Rights Act for three

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violations: one violation for each of his visits on July 15, 2013; September 20, 2013; and

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February 5, 2014. Pl.’s P. & A. in Supp. of Mot. for Summ. J. (“Pl.’s MSJ”), ECF

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No. 24-1, at 14. As the Unruh Civil Rights Act provides $4,000 in damages for each

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violation, Plaintiff has shown he is entitled to $12,000 in damages for the three

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violations.

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CONCLUSION

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For the reasons provided, Plaintiff’s Motion for Summary Judgment, ECF No. 24,

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is GRANTED. Defendant is enjoined to make his property compliant with the Americans

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with Disabilities Act and the Court awards Plaintiff statutory damages in the amount of

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$12,000.

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IT IS SO ORDERED.

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Dated: September 12, 2017

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