Crandall v. Starbucks Corporation et al

Filing 77

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 64 Motion for Summary Judgment; granting in part and denying in part 65 Motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 4/5/2017)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 CRAIG CRANDALL, 5 Case No.15-cv-01828-JSC Plaintiff, 6 ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT v. 7 STARBUCKS CORPORATION, 8 Re: Dkt. Nos. 64, 65 Defendant. 9 10 Plaintiff Craig Crandall, an individual who requires a wheelchair for mobility, sues for United States District Court Northern District of California 11 12 disability discrimination in connection with access barriers he encountered when visiting a 13 Starbucks cafe in San Jose, California. In his First Amended Complaint (“FAC”), Plaintiff alleges 14 that Defendant violated the Americans with Disabilities Act of 1990 (“ADA”), the Unruh Act, and 15 the California Health and Safety Code. (Dkt. No. 37.1) Now pending before the Court are the 16 parties’ cross-motions for summary judgment. (Dkt. Nos. 64, 65.) Having considered the parties’ 17 submissions, and having had the benefit of oral argument on March 23, 2017, the Court GRANTS 18 IN PART and DENIES IN PART Plaintiff’s motion and DENIES IN PART and GRANTS IN 19 PART Defendant’s motion. BACKGROUND 20 21 I. Summary Judgment Evidence Plaintiff became a paraplegic due to injuries from a traffic accident and, as a result, is 22 23 unable to walk and uses a manual wheelchair for mobility. (Dkt. No. 64-1 ¶ 2; Dkt. No. 64-10 24 ¶ 1.) He has lived in the San Jose area since 2000. (See Dkt. No. 68-3.) Defendant operates 25 Starbucks No. 5262 (the “Starbucks”), a public accommodation located at 6471 Almaden 26 Expressway, Suite 90, in San Jose. (Dkt. No. 64-10 ¶¶ 2, 4.) The Starbucks opened in May 1996. 27 1 28 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 1 (Dkt. No. 66-7 at 2-3.) On January 17, 2015, Plaintiff visited the Starbucks for the first time to 2 buy coffee. (Dkt. No. 64-1 ¶ 5; Dkt. No. 66-2 at 11.) While he was able to buy a coffee on that 3 visit (Dkt. No. 64-1 ¶ 5; Dkt. No. 62-4 at 4), he alleges that he experienced two access barriers that 4 denied him full and fair enjoyment of the Starbucks. 5 The first access barrier Plaintiff alleged in the FAC was difficulty reaching the transaction 6 counter. (Dkt. No. 37 ¶ 10.) First, there were merchandise displays in the middle of the store 7 floor that divided the floor space in two and created traffic-flow problems, which is often very 8 busy and full of customers. (See Dkt. No. 64-10 at 86.) At his deposition, Plaintiff testified that it 9 “was difficult for people to get past [him]” because of the displays. (Dkt. No. 66-2 at 10.) He avers that he had difficulty getting around “because merchandise and displays were placed in the 11 United States District Court Northern District of California 10 center of the store such that they created a bottleneck for all of the customers who were waiting to 12 order and pick up their drinks[,]” which meant that “[t]he path through the store was not wide 13 enough for [him] to get through in [his] wheelchair without asking people to move.” (Dkt. No. 14 64-1 ¶ 5.) There was also merchandise displayed at the transaction counter that blocked access to 15 the cashier. (See Dkt. No. 66-2 at 10; Dkt. No. 64-1 ¶ 6.) The combined effect of these two 16 displays made it difficult for Plaintiff to reach the counter. (Dkt. No. 66-2 at 13 (“The baskets in 17 the center of the store and the point-of-sale displays made it for [sic] a very tight fit, especially 18 with other people walking around.”).) Plaintiff estimates that the path of travel to the merchandise 19 counter was less than 27 inches wide. (Dkt. No. 70-1 ¶ 5.) 20 Private investigator Brian Ferris visited the Starbucks on March 31 and April 7, 2015. 21 (Dkt. No. 64-5 ¶ 4.) The merchandise display was still in the center of the store on those visits. 22 (Id. ¶ 7.) Based on measurements and photographs he took, and his own observations—discussed 23 in further detail below in the context of each barrier alleged—Mr. Ferris concluded that the path of 24 travel to the cashier was limited to 20 or 25 inches when customers were present in the store and 25 the path of travel on the other side of the merchandise display was equally limited. (Id.; see also 26 Dkt. Nos. 64-6 at 6, 10, 12.) Sometime after Plaintiff filed suit, the merchandise display was 27 moved from the middle of the open floor space to a location against the wall across from the 28 cashier’s counter. (Dkt. No. 64-10 at 6.) 2 1 The second access barrier Plaintiff alleges that he experienced was a barrier in the path of 2 travel to the men’s restroom. (Dkt. No. 37 ¶ 10.) Plaintiff avers that he “was unable to locate an 3 accessible route of travel to the restroom” because his “route was blocked by tables and chairs 4 being used by other patrons,” and the space in between the tables and chairs and the drink pick-up 5 counter “was not wide enough for [his] wheelchair to fit through.” (Dkt. No. 64-1 ¶ 7.) 6 Specifically, one of the three chairs for the table adjacent to the drink pick-up counter obstructed 7 the path and Plaintiff had to ask the patrons sitting at the particular table to stand and move a chair 8 to permit him to pass. (Dkt. No. 66-2 at 14-15.) Plaintiff recalls that “the space between the 9 table/chairs and the nearby pick-up counter was no more than two feet wide, and thus not wide enough for [his] wheelchair to get through.” (Dkt. No. 64-1 ¶ 7.) Plaintiff estimates that the path 11 United States District Court Northern District of California 10 of travel to the men’s bathroom was no more than 24 inches wide. (Dkt. No. 70-1 ¶ 7.) Mr. Ferris 12 avers that the path of travel to the restroom—namely, the space between the pick-up counter and 13 the tables and chairs—was limited to 26 to 29 inches when there were no customers waiting for 14 drinks and even less or no space when customers were present. (Dkt. No. 64-5 ¶ 8; Dkt. No. 64-6 15 at 14, 16-17, 19, 21.) 16 The table adjacent to the pick-up counter was removed sometime after Plaintiff filed suit. 17 (Dkt. No. 64-10 at 6; Dkt. No. 66-4 at 5.) One Starbucks employee testified that it was removed 18 because it was broken, but Starbucks Facilities Manager Chelsea Austin testified that she asked 19 the store to remove it because it was creating a bottleneck of customers. (Dkt. No. 64-10 at 8; 20 Dkt. No. 66-5 at 3.) As of September 30, 2016, the high-top tables on the path to the men’s 21 restroom have only two chairs at each table, not three as Plaintiff experienced. (Dkt. No. 65-1 at 22 15; Dkt. No. 67 ¶ 11.) Ms. Austin notes that there is no set policy about permitting customers to 23 move furniture inside of the stores, but Starbucks customers often move tables and chairs around. 24 (Dkt. No. 66-3 at 3; Dkt. No. 64-10 at 7.) Starbucks employees are trained to reposition chairs 25 back where they were at the beginning of the day—i.e., to push the chairs back into the table so 26 they do not block the path of travel—though they are not given any instruction about how much 27 space to leave between the tables. (Dkt. No. 66-3 at 4-5; Dkt. No. 66-4 at 3-4; Dkt. No. 66-5 at 3; 28 Dkt. No. 66-6 at 4.) They perform sweeps of the store every eight to ten minutes checking for, 3 1 among other things, out of place furniture, but they only reposition furniture once customers are 2 finished using it. (Dkt. No. 66-3 at 4; Dkt. No. 66-5 at 4.) 3 Plaintiff lives ten miles from the Starbucks and visits it “sometimes when [he] is in that 4 area and feel[s] like having a coffee.” (Dkt. No. 64-1 ¶ 10.) At his deposition, he stated that he 5 had “possibly” been to the Starbucks more than five times, but the visit alleged in the FAC was his 6 first visit and the last visit was six months before his deposition. (Dkt. No. 66-2 at 9, 11.) In his 7 declaration, he avers that he has “been to this [Starbucks] location probably between five and ten 8 times” but only remembers experiencing the access barriers twice. (Dkt. No. 64-10 ¶ 10; see also 9 Dkt. No. 70-1 ¶ 10.) He further avers that he has returned to the Starbucks several times since the visit alleged in the complaint, including one time when he chose to stay in his car when his wife 11 United States District Court Northern District of California 10 went to get his coffee because he remembered that the store was too difficult to navigate. (Dkt. 12 No. 64-10 ¶ 10; Dkt. No. 70-1 ¶ 10.) Plaintiff avers that the Starbucks is located about one mile 13 from his family’s church, where his children attend summer programs. (Dkt. No. 70-1 ¶ 11.) 14 When Plaintiff drops his children off at the summer programs, he often needs to do work at a place 15 with WiFi; he would like that to be the Starbucks. (Dkt. No. 70-1 ¶ 12.) In addition, the 16 Starbucks is near a restaurant Plaintiff and his family like and frequent; Plaintiff does not like the 17 coffee there and would like to buy coffee at Starbucks after lunch. (Dkt. No. 70-1 ¶ 13.) 18 According to Plaintiff, he would return to the Starbucks if the barriers he encountered—and a 19 number of other barriers identified by Plaintiff’s expert—were removed. (Dkt. No. 64-1 ¶ 10; 20 Dkt. No. 70-1 ¶¶ 10, 14.) 21 Defendant submits evidence that there are a number of other Starbucks locations closer to 22 Plaintiff’s home and that Plaintiff’s original stated reason for visiting the Starbucks—proximity to 23 his son’s lacrosse games—is not credible because the team’s website indicates that it did not play 24 at a school near that location. (See Dkt. No. 65-1 at 18; Dkt. Nos. 68-1—68-10.) 25 The parties have each submitted reports prepared by experts in disability access. Plaintiff’s 26 expert, Michael Bluhm, opines that all of the conditions Plaintiffs allege in the FAC fail to meet 27 the height, width, or other requirements of the 2010 ADA Accessibility Guidelines (“2010 28 ADAAG”) control. (Dkt. No. 64-3.) Defendant’s expert, Kim Blackseth, submitted a declaration 4 1 and report in which he opines that the interior of the store does not have any access barriers. (Dkt. 2 No. 67 ¶ 9; Dkt. No. 67-1.) The Court will address the substance of each barrier and the experts’ 3 opinions below. 4 II. Procedural History 5 Plaintiff filed this action on April 23, 2015 against Starbucks and the owners of the 6 property, contending that the barriers he encountered at the Starbucks prevented him from 7 enjoying full and equal access to the store.2 (Dkt. No. 1.) Plaintiff dismissed the owners of the property from the action and filed the First Amended 9 Complaint (“FAC”) against Starbucks—as owners of the store—only. (Dkt. Nos. 26, 37.) In the 10 FAC, in addition to alleging the two barriers Plaintiff experienced himself, he alleged a number of 11 United States District Court Northern District of California 8 other violations based on his expert’s inspection of the Starbucks relating to the entry door’s 12 threshold height, closing speed, and door pressure; the arrangement of interior accessible tables; 13 elevated counter seating; inaccessible location of self-service items; unsecured floor mats; and a 14 number of issues with the men’s restroom. (Id. ¶ 11(a)-(p).) The parties have each filed a motion for summary judgment seeking judgment in their 15 16 favor on the FAC claims.3 The gravamen of the dispute concerns the validity and potential 17 mootness of Plaintiff’s ADA claims. Plaintiff contends that there is no genuine dispute of fact that 18 he experienced the access barriers alleged in the FAC and that their presence has deterred him 19 from returning to the Starbucks. He argues that an injunction is necessary to ensure the barriers he 20 and his experts identified are removed and do not return in the future and that judgment in his 21 favor should follow on the state law claims. Defendant counters that Plaintiff lacks standing to 22 bring ADA claims because he did not experience any access barriers, has failed to establish that he 23 intends to return to the Starbucks, and that, in any event, his claims are moot because Starbucks 24 has remedied any unlawful barriers that previously existed. Defendant also argues that the Court 25 2 26 This matter was initially assigned to a different judge but was reassigned to this Court in June 2016. (Dkt. No. 41.) 27 3 28 Plaintiff now waives two claims alleged in the FAC, including the claim for knee clearance under the men’s restroom lavatory, and the claim regarding the soap dispenser there. (Dkt. No. 64-10 ¶¶ 5-6.) 5 1 should decline to exercise supplemental jurisdiction over Plaintiff’s state-law claims. DISCUSSION 2 3 4 I. Evidentiary Requests & Objections Before turning to the substance of the parties’ motions, the Court must resolve a number of 5 evidentiary disputes. Specifically, Defendant filed a request for judicial notice and both parties 6 have objected to certain evidence. A. 8 To support its argument that Plaintiff does not intend to return to the Starbucks, Defendant 9 offers evidence that Plaintiff’s son’s lacrosse team did not play games near the Starbucks and that 10 there are a number of other Starbucks locations closer to Plaintiff’s house. (Dkt. No. 65-1 at 18.) 11 United States District Court Northern District of California 7 The evidence includes (1) public record information regarding Plaintiff’s purchase of his home; 12 (2) Google maps showing routes from Plaintiff’s home to the Starbucks, other Starbucks located 13 near his home, and routes from his son’s lacrosse team’s fields to the Starbucks; and (3) game 14 schedules and home field information from Plaintiff’s son’s lacrosse team—all of which are the 15 subject of Defendant’s Request for Judicial Notice. (Dkt. No. 68; Dkt. No. 68-1—68-10.) 16 Request for Judicial Notice First, with respect to the public record information of Plaintiff’s home, courts may take 17 judicial notice of “matters of public record[.]” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th 18 Cir. 2001) (citation omitted). Likewise, as to the maps, “[c]ourts have generally taken judicial 19 notice of facts gleaned from internet mapping tools such as Google Maps or Mapquest.” United 20 States v. Brown, 636 F. Supp. 2d 1116, 1124 n.1 (D. Nev. 2009) (collecting cases); see, e.g., 21 Carson v. Adams, No. CV 09-9194-CAS (AGR), 2013 WL 169845, at *2 n.3 (C.D. Cal. Jan. 14, 22 2013) (citation omitted). Plaintiff does not object to these requests. The Court therefore 23 GRANTS Defendant’s requests for judicial notice as to these documents. 24 Plaintiff objects to the requests for judicial notice of information from Plaintiff’s son’s 25 lacrosse team’s website, contending that information about where the team played is not 26 “generally known,” its accuracy is reasonably questionable, there is “no way to authenticate the 27 screen captures,” and there is “no way to determine if what is on the website is an accurate 28 reflection of what actually transpired or will transpire.” (Dkt. No. 70 at 7-8.) “It is not uncommon 6 1 for courts to take judicial notice of factual information found on the world wide web.” Barnes v. 2 Marriott Hotel Servs., Inc., No. 15-cv-01409-HRL, 2017 WL 635474, at *4 (N.D. Cal. Feb. 16, 3 2017) (citations omitted). And indeed, Plaintiff never states that the information on the webpage 4 is not accurate; he merely states that there is no way to determine if it is. While Plaintiff cites 5 cases where courts have declined to take judicial notice of websites (Dkt. No. 70 at 8), the 6 circumstances in those cases were different, the information on the website was crucial to the 7 parties’ claims, or the courts declined judicial notice with no little to no analysis. See, e.g., in re 8 Yagman, 473 F. App’x 800, 801 n.1 (9th Cir. 2012); Bingham v. Holder, 637 F.3d 1040, 1045 n.3 9 (9th Cir. 2011). Here, Plaintiff has not really challenged the authenticity of the websites or maintained that the information is inaccurate, and the websites are tangential to the issues, not 11 United States District Court Northern District of California 10 central to Plaintiff’s claims. Accordingly, the Court GRANTS Defendant’s motion to take judicial 12 notice of the lacrosse team websites. However, the Court notices the websites solely for the 13 purpose of establishing that the team did not list the school next to the Starbucks as one of its 14 home fields, not for the truth of the matter asserted—i.e., not to show that the team never actually 15 played there. B. 16 Plaintiff’s Evidentiary Objections 1. 17 Declaration of Kim Blackseth Plaintiff objects to the declaration of Defendant’s expert, Kim Blackseth, because (1) 18 19 portions must be excluded under the “sham affidavit” rule; (2) portions contain impermissible 20 legal opinion and legal conclusions; and (3) he “may have relied upon information provided to 21 him by one of his associates which is not the practice of experts within his field.” (Dkt. No. 70 at 22 11-14.) 23 24 a. Sham Affidavit Rule The “sham affidavit” rule provides that a “party cannot create an issue of fact by an 25 affidavit contradicting . . . prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 26 (9th Cir. 2012) (quotation marks and citation omitted). To apply the rule, the court must “make a 27 factual determination that the contradiction [is] actually a sham” and conclude that the 28 inconsistency is “clear and unambiguous.” Van Asdale v. Int’l Game Tech., 577 F.3d at 989, 998 7 1 (9th Cir. 2009). A declaration that “elaborates upon, explains, or clarifies prior testimony” does 2 not trigger exclusion. Id. (citation omitted). Plaintiff identifies eight instances that he argues must be excluded under the sham affidavit 3 rule because Mr. Blackseth’s declaration conflicts with his expert report and earlier deposition 5 testimony even though his declaration states that the opinions therein are based on his September 6 30, 2016 visit to the store and his expert report. (Dkt. No. 67 ¶¶ 2, 9.) First, in his declaration Mr. 7 Blackseth states that the “metal threshold at the entry/exit doors is no more than 1/2[ inch] beveled 8 and complies with all accessibility requirements.” (Dkt. No. 67 ¶ 9(E).) Mr. Blackseth’s expert 9 report is inconsistent in that there he agreed with Plaintiff’s expert that the entrance threshold was 10 1/4 inch higher than the 2010 ADAAG requirements and he further noted that Starbucks would fix 11 United States District Court Northern District of California 4 the issue. (Dkt. No. 67-1 at 3.) Likewise, at his deposition he testified that the threshold exceeded 12 the maximum height and that he had recommended it be repaired, but he did not know if it had 13 been repaired yet. (Dkt. No. 70-10 at 13-14.) In his declaration Mr. Blackseth does not explain 14 why he changed his conclusion—by, for example, stating that he has since visited the Starbucks 15 and has changed his opinion based on renovations to the store—or explain how he is somehow 16 clarifying the statement in his expert report or previous deposition testimony. Although 17 Defendant argues that Mr. Blackseth’s declaration is “based on observations that were current 18 through the date of the declaration – February 2, 2017” (Dkt. No. 72 at 9 (citing Dkt. No. 67)), the 19 Blackseth Declaration nowhere states as much; instead, the Declaration represents that it is based 20 on his earlier expert report. Defendant likewise maintained at oral argument that the revised 21 Blackseth Declaration was based on a subsequent expert inspection, but was unable to identify any 22 evidence in the record to support that statement.4 The Court therefore sustains the objection to 23 paragraph 9(E) of the Blackseth Declaration. The same result is required for six of the other statements in the Blackseth Declaration to 24 25 4 26 27 28 Defendant suggested at oral argument that the Austin Declaration indicates that Mr. Blackseth’s declaration was based on conditions observed at a subsequent expert inspection following remediation efforts. In Defendant’s view, because Ms. Austin speaks to her knowledge of the conditions at Starbucks as of February 2017, the implication must be that remediation was done. While that may be one inference to be drawn from her testimony, it is not the only one; another is that there are genuine factual disputes about the conditions at the Starbucks. 8 1 which Plaintiff objects. In each these instances, in his expert report and deposition Mr. Blackseth 2 agreed with Plaintiff’s expert that the feature—door pressure, elevated counter seating, and the 3 location of the mirror, toilet paper dispenser, and toilet—failed to comply with the 2010 ADAAG. 4 But in his summary judgment declaration he avers that each complies without indicating that 5 Defendant conducted remediation and subsequent to that he visited the Starbucks again, took new 6 measurements, and thus changed his conclusions. The Court therefore sustains Plaintiff’s 7 objections to paragraphs 9(F), (I), (L), (P), (Q), and (O) of the Blackseth Declaration. 8 The Court overrules the objection as to Mr. Blackseth’s comments about the location of the trashcan in the men’s bathroom. (See Dkt. No. 70 at 12-13.) In his expert report, Mr. Blackseth 10 stated that the trashcan was no longer obstructing the entry door because it had been relocated so 11 United States District Court Northern District of California 9 “[t]here is no barrier or action required.” (Dkt. No. 67-1 at 8.) At his deposition, he testified that 12 the trashcan had been moved from the place where Plaintiff encountered it and that even if it 13 blocked access to other elements—like the sink or the toilet—it is not a barrier because it is easily 14 moveable. (Dkt. No. 64-10 at 20-21.) This does not conflict with his Declaration statement that, 15 notwithstanding the trashcan, the bathroom has enough clear floor space to comply with 16 regulations. (Dkt. No. 67 ¶ 9(M).) The Court therefore overrules Plaintiff’s objection to that 17 paragraph. 18 19 b. Legal Opinion or Legal Conclusions Plaintiff next objects to four particular paragraphs of the Blackseth Declaration and the 20 conclusions of all subparagraphs on the grounds that they contain impermissible legal opinion or 21 legal conclusions. (Dkt. No. 70 at 13.) 22 Although an expert may not provide testimony on an ultimate legal issue, he may testify as 23 to findings that support the ultimate issue. See Hangarter v. Provident Life & Accident Ins. Co., 24 373 F.3d 998, 1016-17 (9th Cir. 2004). “Further, an expert may refer to the law in expressing an 25 opinion without crossing the line into a legal conclusion.” Kalani v. Starbucks Corp., 81 F. Supp. 26 3d 876, 882 (N.D. Cal. 2015) )(citation omitted). But mere “legal conclusions without underlying 27 factual support . . . constitute ‘unsupported speculation’ and are therefore inadmissible.” Plush 28 Lounge Las Vegas LLC v. Hotspur Resorts Nev. Inc., 371 F. App’x 719, 720 (9th Cir. 2010) 9 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 (citation omitted). Plaintiff objects to the following statements: B) The subject store fully complies with all federal and state access regulations as Plaintiff Craig Crandall alleges them and as they relate to his disability of a mobility-impaired person who uses a manual wheelchair. G) The arrangement of the interior tables and chairs provide an equivalent experience and comply with all access regulations. K) The floor mats are properly installed and secured and comply with all access regulations. M) The men’s restroom has clear floor space of 60” wide by 51” deep and is not obstructed by the trash can. Therefore, the clear space in the men’s restroom complies with all access regulations. (Dkt. No. 67 ¶¶ 9(B), (G), (K), (M).) 12 The Court sustains Plaintiff’s objections to paragraphs 9(B), (G), and (K). Conclusory 13 opinions that the entire facility or particular features fully comply with regulations and access 14 requirements constitute improper legal conclusions. See, e.g., Hangarter, 373 F.3d at 1016-17; 15 Kalani, 81 F. Supp. 3d at 882 (“Conclusory opinions that the ‘facility is free of non-compliant 16 issues,’ or that particular features, e.g., the accessible parking or point of sale, ‘compl[y] with all 17 applicable access requirements,’ constitute improper legal conclusions.”) (citations omitted); 18 Sharp v. Islands Cal. Ariz. LP, 900 F. Supp. 2d 1101, 1112 (S.D. Cal. 2012) (statement that the 19 “waiting area is accessible to wheelchair users and complies with all ADAAG requirements” 20 constituted improper legal conclusions). The statements in paragraphs 9(B), (G), and (K) do not 21 identify any factual support for Mr. Blackseth’s opinions. The Court therefore finds that these 22 paragraphs are impermissible legal conclusions without factual support and are therefore 23 inadmissible. See Plush Lounge, 371 F. App’x at 720. In contrast, paragraph 9(M) provides 24 factual support for his conclusion and therefore the Court overrules the objection to that 25 paragraph. See Kalani, 81 F. Supp. 3d at 882-83. 26 Plaintiff also objects to “the portion of every other subparagraph in paragraph 9 that 27 concludes with a legal opinion.” (Dkt. No. 70 at 13.) But the case on which he relies, Kalani v. 28 Starbucks Corp., 81 F. Supp. 3d 876 (N.D. Cal. 2015)—in which the court entertained the 10 1 plaintiff’s objections to portions of an expert declaration from the same expert witness, Mr. 2 Blackseth— does not support this objection. In Kalani, the court sustained the plaintiff’s 3 objections to portions of Mr. Blackseth’s opinion that—like paragraphs 9(B), (G), and (K) here— 4 included legal conclusions alone without any factual support. Id. at 882-83. But the Kalani court 5 noted that the plaintiff “properly d[id] not object” to another paragraph in which Mr. Blackseth 6 opined that “[t]he pick-up counter . . . as modified now provides a length of 36 inches and a height 7 of 34 inches, as such it complies with access regulations” because that paragraph provided factual 8 support for the conclusion. Id. at 882 (record citation omitted). So too here with the remaining 9 subparagraphs in paragraph 9 of Mr. Blackseth’s declaration. Third, Plaintiff objects to the Blackseth Declaration on the grounds that he “may have 10 United States District Court Northern District of California 11 relied upon information provided to him by an associate which is not the practice of experts within 12 his field.” (Dkt. No. 70 at 13.) Specifically, Plaintiff laments that Mr. Blackseth did not take the 13 photographs and measurements of the Starbucks himself and instead relied on his associates for 14 such information; Plaintiff argues that, as a result, the Blackseth Declaration lacks foundation and 15 constitutes hearsay. (Id. at 13-14.) Plaintiff’s expert testified that reliance on others’ photographs 16 and measurements is not the practice in the disability access field; based on that, Plaintiff argues 17 that Mr. Blackseth’s declaration is also improper expert opinion. (Dkt. No. 70 at 14; Dkt. No. 70- 18 3 ¶ 33.) Defendant responds that Mr. Blackseth has long relied on photographs and measurements 19 of other certified disability access specialists in his firm because he is a quadriplegic. (See Dkt. 20 No.72 at 10; Dkt. No. 72-3 at 3.5) Ironically, Plaintiff’s objection undermines Plaintiff’s own 21 expert, who based his opinions about the width of the store when the merchandise displays were in 22 the center on photographs that Plaintiff’s counsel provided. (See Dkt. No. 64-3 ¶ 24.) At bottom, 23 given that the measurements and photographs were taken by other certified specialists in Mr. 24 Blackseth’s practice, the Court overrules Plaintiff’s objection. Plaintiff is free to seek to 25 undermine the strength of Mr. Blackseth’s opinion through cross-examination. 26 27 28 5 Although Defendant submitted this portion of the Blackseth deposition transcript for the first time with its reply, the Court considers it as Plaintiff has not objected to its consideration. 11 1 The cases Plaintiff cites do not change the Court’s conclusion. For example, Chapman v. 2 Starbucks Corp., No. 2:09-cv-2526-GEB-EFB, 2011 U.S. Dist. LEXIS 3570, at *12-13 (E.D. Cal. 3 Jan. 7, 2011), involved the plaintiff’s objection to Mr. Blackseth’s expert declaration on the 4 grounds that his report was based entirely on pictures the defendant had provided to him. The 5 court overruled the objection, noting that the plaintiff had failed to establish that Mr. Blackseth’s 6 use of the photographs was not the type of evidence reasonably relied upon by experts in the 7 disability access field given that Mr. Blackseth conducted an inspection himself and therefore had 8 personal knowledge of the store conditions. Id. at *13. 9 10 2. Chelsea Austin Testimony Plaintiff also objects to the testimony of Starbucks Facilities Manager Chelsea Austin, first United States District Court Northern District of California 11 on the grounds that it is improper lay opinion. (Dkt. No. 70 at 9.) Presumably, here, Plaintiff 12 refers to paragraph 6, where Ms. Austin states that she has personal knowledge about the 13 Starbucks to give measurements about eight different aspects of the store—for example, stating 14 that the threshold of the entry door is no more than 1/2 inch high and the door has an operating 15 pressure of no more than five pounds, there is no elevated counter seating, and the men’s restroom 16 mirror is no more than 40 inches high—and to paragraphs 7 through 9, where she states that three 17 images in Defendant’s motion are true and correct images of certain features within the Starbucks. 18 (Dkt. No. 65-2 ¶ 6.) In Plaintiff’s view, the Court should exclude these statements because 19 Defendant has “tacitly acknowledg[ed]” that testimony about such measurements requires an 20 expert, since Defendant submitted the same information in Mr. Blackseth’s declaration. (Dkt. No. 21 70 at 9.) But lay witnesses can testify about the height of a fixture or the threshold of a door. See 22 Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013) (“It’s commonly understood 23 that lay witnesses may estimate size, weight, distance, speed and time even when those quantities 24 could be measured precisely.”) (citations omitted). Although Ms. Austin’s vague statement that 25 she has personal knowledge of the Starbucks generally would not, on its own, be enough 26 foundation for her to testify to the measurements, she states that she is the facilities manager for 27 the store responsible for accessibility issues or complaints, which demonstrates her familiarity 28 with the access-related store elements. (See generally Dkt. No. 65-2.) Indeed, she testified that 12 1 she is familiar with the layout and other accessibility-related aspects of the Starbucks. For the 2 same reason, she also has averred enough information to demonstrate personal knowledge that the 3 photographs included in the motion accurately depict the store. Accordingly, the Court overrules 4 Plaintiff’s objections to paragraphs 6 through 9 of the Austin Declaration with the exception of 5 subparagraph 6(g), which appears to state a legal conclusion. (See Dkt. No. 69-2 ¶ 6(g) (“The 6 plumbing beneath the men’s restroom is fully insulated.”).) However, in paragraph 10, Ms. Austin avers that based on Starbucks’s policy of striving to 7 8 make its locations accessible to persons that are disabled, “the subject store provides more than 9 adequate and lawful access to Plaintiff Craig Crandall” and “never intentionally discriminated against [Plaintiff].” (Dkt. No. 65-2 ¶ 10.) To the extent that Plaintiff also objected to this 11 United States District Court Northern District of California 10 paragraph, the Court sustains the objection or sua sponte sustains its own objection to this 12 paragraph as it contains impermissible legal opinion or legal conclusions. C. 13 Defendant’s Evidentiary Objections 1. 14 Objections to Evidence Submitted in Support of Plaintiff’s Motion Defendant objects to one paragraph of Plaintiff’s declaration as well as the declarations of 15 16 Plaintiff’s two private investigators, all submitted in support of Plaintiff’s opening summary 17 judgment brief. (Dkt. No. 69-1.) Plaintiff urges the Court to disregard or overrule Defendant’s 18 evidentiary objections because they were filed separately from Defendant’s opposition brief in 19 contravention of Civil Local Rule 7-3(a). (Dkt. No. 71 at 6.) See N.D. Cal. Civ. L.R. 7-3(a) 20 (“Any evidentiary and procedural objections to the motion must be contained within the brief or 21 memorandum.”). The essence of Plaintiff’s opposition is that, by ignoring Rule 7-3(a), Defendant 22 fit more argument into its brief than it otherwise could have—and more than Plaintiff did, because 23 his objections were properly within his brief. (See Dkt. No. 71 at 6.) The Court agrees and 24 overrules Defendant’s objections.6 The Court reminds defense counsel of its obligation to know 25 6 26 27 28 In any event, the Court would reach the same conclusion if it considered the substance of Defendant’s objections. Defendant asks the Court to exclude Plaintiff’s statement that he has visited the Starbucks five to ten times and encountered the barriers twice under the sham affidavit rule. (Dkt. No. 69-1.) This does not flatly conflict with Plaintiff’s deposition testimony, which was that he had possibly been there more than five times, and specifically recalled visiting twice: once on January 17, 2015—as alleged in the FAC—and on another visit when he had his wife 13 1 and follow the Court’s Local Rules. See Civ. L.R. 11-4(a)(2), 11-4(a)(4). Defendant also objects to evidence that Plaintiff submitted in support of his reply, 2 contending that “[i]t is improper for Plaintiff to submit any evidence in his Reply that was not 4 initially submitted in his motion.” (Dkt. No. 73.) But Local Rule 7-3(c) permits a party to attach a 5 declaration or affidavit to a reply. On the other hand, courts typically do not consider new 6 evidence first submitted in a reply brief because the opposing party has no opportunity to respond 7 to it. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (citation omitted) (“Where new 8 evidence is presented in a reply to a motion for summary judgment, the district court should not 9 consider the new evidence without giving the [non-]movant an opportunity to respond.”); see, e.g., 10 BoomerangIt, Inc. v. ID Armor, Inc., No. 5:12-CV-0920 EJD, 2012 WL 2368466, at *4 n.1 (N.D. 11 United States District Court Northern District of California 3 Cal. June 2012) (citation omitted). Here, Plaintiff’s reply includes some evidence that is new—i.e., that he did not include in 12 13 his opening brief or his opposition to Defendant’s motion, including: a portion of Ms. Austin’s 14 deposition testimony (Dkt. No. 71-2 at 15-22); portions of the depositions of Starbucks employees 15 Cher Hubert (id. at 15-22), Kelly Schaub (id. at 24-27), Micaela Wandrocke (id. at 29-35), and 16 Samantha Jordan (id. at 37-46); and a supplemental declaration of Plaintiff’s private investigator 17 Nick Quinn describing his observation that Starbucks employees did not conduct eight minute 18 “spins” of the store (Dkt. No. 71-3). The Court sustains Defendant’s objection to this evidence 19 and will not consider it. However, Plaintiff has also submitted a portion of his own deposition that 20 he included in his opposition to Defendant’s summary judgment motion. (Compare Dkt. No. 71-2 21 at 6-14, with Dkt. No. 70-10 at 28-35.) The Court overrules Defendant’s objection to this 22 deposition testimony. 23 II. 24 Analysis A. ADA Claims 25 26 27 28 enter the store alone because he recalled that it was too difficult to access. (Dkt. No. 66-2 at 9, 11.) Accordingly, the sham affidavit rule does not apply. See Van Asdale, 577 F.3d at 998. As to the inspectors’ testimony, Defendant does not cite any legal authority that supports its position that testimony regarding unnoticed site visits must be excluded. (Dkt. No. 69-1.) Further, there is no dispute that the parties conducted a joint site inspection of Starbucks in August 2015 pursuant to the Court’s order. (See Dkt. No. 28.) 14 Congress enacted the ADA “to provide clear, strong, consistent, enforceable standards 1 2 addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Among 3 its many provisions, Title III “prohibits discrimination on the basis of disability in the ‘full and 4 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 5 any place of public accommodation’ with a nexus in interstate commerce.” Oliver v. Ralphs 6 Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 12182(a)). To 7 prevail on a Title III discrimination claim, a plaintiff must show that (1) he is disabled within the 8 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 9 public accommodation; and (3) the plaintiff was denied full and equal treatment by the defendant 10 because of his disability. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Here, the first two elements are undisputed: the parties agree that Plaintiff is disabled and United States District Court Northern District of California 11 12 that Defendant owns the Starbucks he visited. At issue is only whether Plaintiff was denied full 13 and equal treatment by Defendant because of his disability—i.e., whether he was discriminated 14 against. This element is met if there was a violation of applicable accessibility standards. See 15 Chapman v. Pier 1 Imports (U.S.) Inc. (Chapman I), 631 F.3d 939, 945 (9th Cir. 2011) (citation 16 omitted). The parties agree that the 2010 ADAAG control. (Dkt. No. 64-10 ¶ 3.) Thus, Plaintiff 17 can establish that he was discriminated against by demonstrating that aspects of the Starbucks 18 failed to comply with the 2010 ADAAG and thus constituted access barriers.7 Plaintiff argues that he is entitled to summary judgment because the evidence establishes 19 20 as a matter of law that the Starbucks has architectural barriers relating to his disability that violate 21 the ADA. Defendant contends that Plaintiff cannot demonstrate that he experienced any access 22 barriers that hindered his full and equal enjoyment of the Starbucks and, even if he did, 23 Defendant’s renovations to the Starbucks store have brought all of Plaintiff’s identified barriers 24 into compliance with the 2010 ADAAG. Put another way, the focus of Defendant’s motion is that 25 26 27 28 7 Barriers must be removed where it is “readily achievable” to do so, which means removal is “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv). There appears to be no dispute that removal of all identified barriers is readily achievable; indeed, Starbucks impliedly contends that it has, in fact, remedied all or most of them. 15 1 2 Plaintiff lacks standing and, in any event, his ADA claims are moot. 1. Plaintiff Has Suffered an Injury in Fact Sufficient for Standing 3 Defendant first contends that Plaintiff has not suffered any injury in fact and therefore 4 lacks standing because (1) he has not adequately established that any of the barriers identified 5 denied him full or equal access, and, (2) even if he had, he has not established an intent to return. 6 To demonstrate an injury in fact, an ADA claimant must establish that he has been injured 7 as a result of the defendant’s actions and that the injury can be redressed by a favorable decision. 8 Chapman I, 631 F.3d at 946. As injunctive relief is the only relief available to private plaintiffs 9 under the ADA (aside from attorneys’ fees), to prove redressability an ADA plaintiff must also “demonstrate a ‘real and immediate threat of repeated injury’ in the future.” Id. (citation omitted). 11 United States District Court Northern District of California 10 A plaintiff can show likelihood of future injury by demonstrating an intent to return to a 12 noncompliant accommodation or that he was deterred from visiting a noncompliant 13 accommodation because he encountered barriers related to his disability there. Id. at 948-50. 14 The record reflects that Plaintiff suffered an injury in fact because he personally 15 encountered two barriers: he had difficulty reaching the cashier’s counter because of the 16 merchandise displays in the middle of the store and at the counter, and he had difficulty passing 17 through the path of travel to the men’s bathroom because of the furniture blocking the aisle next to 18 the pick-up counter. Plaintiff averred that when he visited the Starbucks the pathway to the 19 counter and the men’s bathroom were both less than 36 inches. As to the bathroom path, Plaintiff 20 testified that he had to ask other patrons to move their chairs in order to pass through. Plaintiff’s 21 photographs corroborate his testimony. This is enough evidence to support a finding that he 22 encountered barriers to access at the cafe. While part of the problem Plaintiff encountered passing 23 through the area was the heavy flow of customer traffic, the evidence reflects that the patrons’ 24 path was bottlenecked because of the merchandise displays or furniture that had narrowed the 25 paths in the first place. Thus, Defendant’s attempt to reframe the issue as one pertaining to harm 26 to the other customers—i.e., able-bodied customers’ difficulty getting around Plaintiff—does not 27 undermine that evidence. Given Plaintiff’s testimony that the walkways were less than 36 inches 28 wide, Plaintiff has suffered an injury-in-fact sufficient to confer standing. 16 1 Defendant also argues that there was no ADA violation because Plaintiff testified that he 2 reached the transaction counter and was able to buy a coffee. This argument ignores the law on 3 harm in access barrier cases: the ADA does not require a plaintiff to have been denied access 4 altogether; all it requires is that a plaintiff be denied full and equal access. Thus, Plaintiff does not 5 lack standing merely because he was able to buy a coffee. Defendant also contends that Plaintiff lacks standing because he only experienced the 6 access barriers alleged on one occasion. Defendant relies on Chapman v. Pier 1 Imports (U.S.) 8 Inc. (Chapman I), 631 F.3d 939, 949 (9th Cir. 2011), which it reads to imply that only double-digit 9 numbers of visits to a place of public accommodation are enough to establish standing. (See Dkt. 10 No. 65-1 at 10-11.) Not so. “Allegations that a plaintiff has visited a public accommodation on a 11 United States District Court Northern District of California 7 prior occasion and is currently deterred from visiting that accommodation by accessibility 12 barriers” are enough to establish standing. See Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th 13 Cir. 2008) (emphasis added); see also, e.g., Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1008 14 (C.D. Cal. 2014) (allegations that a plaintiff was twice deterred from visiting a store and continues 15 to be deterred from visiting the store is enough to establish standing to sue for injunctive relief 16 under the ADA). 17 Plaintiff has also established intent to return sufficient to establish a likelihood of future 18 injury. In determining whether a plaintiff’s likelihood of return is sufficient to confer standing, 19 courts have examined factors including: (1) the proximity of the business to the plaintiff’s 20 residence, (2) the plaintiff’s past patronage of the business, (3) the definitiveness of the plaintiff’s 21 plans to return, and (4) the plaintiff’s frequency of travel near the defendant.8 See Lema v. 22 Courtyard Marriott Merced, No. CIV-S-00-1496, DFL PAN, 2012 WL 1038108, at *4 (E.D. Cal. 23 24 25 26 27 28 8 Reviewing one district court decision that concluded the plaintiff lacked standing based on a review of those factors, the Ninth Circuit suggested that a plaintiff need not meet them to establish standing sufficient to survive a facial attack on standing in a motion to dismiss. See Wilson v. Kayo Oil Co., 563 F.3d 979, 980 (9th Cir. 2009) (per curiam) (noting that the minimal allegations that a plaintiff visited a facility and intends to return is sufficient on a motion to dismiss). The Court presumes the factors are still relevant to a factual attack on standing at the summary judgment stage. 17 1 Mar. 27, 2012) (citation omitted). Here, the Starbucks is less than 10 miles from Plaintiff’s home 2 in his hometown, and Plaintiff testified that he wishes to return to the Starbucks once the access 3 barriers have been removed. Further, he explained that he would return to the Starbucks when he 4 drops his children off at summer programs at his family’s church just one mile away and after 5 eating at a nearby restaurant his family likes to frequent. These facts are sufficient to establish 6 intent to return. See Doran, 524 F.3d at 1041; see also Acosta v. Fast N Esy II, Inc., No. 1:16-cv- 7 01150-LJO-SAB, 2016 WL 6666830, at *3 (E.D. Cal. Nov. 10, 2016) (on a motion to dismiss, 8 noting that a distance of 15 miles between the plaintiff’s home and the store at issue was “not so 9 far as to undercut Plaintiff’s allegation that he lives ‘near’ the Facility nor does this distance render it implausible that Plaintiff would return to the Facility”); Park v. Ralph’s Grocery Co., 254 11 United States District Court Northern District of California 10 F.R.D. 112, 119 (C.D. Cal. 2008) (on a motion to dismiss, noting that the plaintiffs lived in 12 reasonable proximity to the store when they lived 15 to 60 miles away). 13 And in any event, a Title III ADA plaintiff need not establish intent to return to have 14 standing. “Demonstrating an intent to return to a non-compliant accommodation is but one way 15 for an injured plaintiff to establish Article III standing to pursue injunctive relief. A disabled 16 individual also suffers a cognizable injury if he is deterred from visiting a noncompliant public 17 accommodation because he has encountered barriers related to his disability there.” Chapman I, 18 631 F.3d at 949 (emphasis added); see also Doran, 524 F.3d at 1042 n.5 (“Once a disabled 19 individual has encountered or become aware of alleged ADA violations that deter his patronage of 20 or otherwise interfere with his access to a place of public accommodation, he has already suffered 21 an injury in fact traceable to the defendant’s conduct and capable of being redressed by the courts, 22 so he possesses standing under Article III . . . .”); Pickern v. Holiday Quality Foods Inc., 293 F.3d 23 1133, 1138 (9th Cir. 2002) (“We hold that a disabled individual who is currently deterred from 24 patronizing a public accommodation due to a defendant’s failure to comply with the ADA has 25 suffered ‘actual injury.’”); see, e.g., Kohler v. CJP, Ltd., 818 F. Supp. 2d 1169, 1173-74 (C.D. Cal. 26 2011) (noting that the plaintiff need not allege intent to return to have standing) (citations 27 omitted). 28 Although Defendant dedicates many pages of its brief to undermining Plaintiff’s 18 1 recollection of why he was at the Starbucks—that is, demonstrating that Plaintiff’s son’s lacrosse 2 team does not actually play near the Starbucks—this evidence does not defeat Plaintiff’s standing. 3 It is undisputed that Plaintiff visited the Starbucks on at least two occasions, and that it is only 10 4 miles from his house. Given the proximity, it matters little precisely why Plaintiff visited the 5 Starbucks. Likewise, Defendant emphasizes that there are a number of other Starbucks stores 6 closer to Plaintiff’s residence. But Defendant cites no authority that supports its position that the 7 ADA only protects public accommodations closest to a disabled individual’s home, and the 8 Court’s review indicates that the ADA’s reach is not so limited. See, e.g., Doran, 524 F.3d at 9 1038, 1041 (noting that a plaintiff has standing to sue to challenge access barriers in a 7-Eleven 10 United States District Court Northern District of California 11 store about 550 miles from his home). Thus, Plaintiff has suffered an injury-in-fact and intent to return sufficient to establish 12 standing to bring his ADA claims. Defendant also argues that because it has removed or 13 remediated all barriers in the Starbucks, Plaintiff’s claim for injunctive relief is moot. As 14 mootness requires a fact-specific inquiry, the Court will address mootness with respect to each 15 alleged access barrier separately. 16 3. Whether Starbucks Has Access Barriers 17 Plaintiff moves for summary judgment on the grounds that he is entitled to injunctive relief 18 regarding a number of alleged barriers: the two barriers he personally encountered at the 19 Starbucks—i.e., access to the counter area and access to the men’s restroom—and a number of 20 additional barriers alleged in the FAC that his expert witness, Mr. Blume, later identified. To be 21 entitled to an injunction, a plaintiff must show that the defendant has violated the ADAAG. See 22 Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 859 (N.D. Cal. 2011) (citations omitted). A 23 Title III ADA plaintiff is not required to show other prerequisites generally required for injunctive 24 relief, as “[t]he standard requirements for equitable relief need not be satisfied when an injunction 25 is sought to prevent the violation of a federal statute which specifically provides for injunctive 26 relief.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175-76 (9th Cir. 2010). As a 27 general rule, “[t]he ADAAG’s requirements are as precise as they are thorough, and the difference 28 between compliance and noncompliance with the standard of full and equal enjoyment established 19 1 by the ADA is often a matter of inches.” Chapman v. Pier 1 Imports (U.S.) Inc. (Chapman II), 2 779 F.3d 1001, 1005 (9th Cir. 2015) (quotation marks and citation omitted). 3 As discussed above, Defendant contends that all of the alleged access barriers are moot. “A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally 5 cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). 6 “Mootness can be characterized as the doctrine of standing set in a time frame: The requisite 7 personal interest that must exist at the commencement of the litigation (standing) must continue 8 throughout its existence (mootness).” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) 9 (internal quotation marks and citations omitted). “Thus, the central inquiry is any mootness 10 challenge is whether changes in the circumstances existing when the action was filed have 11 United States District Court Northern District of California 4 forestalled any meaningful relief.” Moeller, 816 F. Supp. 2d at 860. “[T]he question is not 12 whether the precise relief sought at the time an application for injunctive relief was filed is still 13 available. The question is whether there can be any effective relief.” West v. Sec’y of Dep’t of 14 Transp., 206 F.3d 920, 925 (9th Cir. 2000). “So long as the court can grant some effective relief, 15 it does not matter that the relief originally sought is unavailable due to changed circumstances.” 16 Moeller, 816 F. Supp. 2d at 860 (citing Church of Scientology of Cal. v. United States, 506 U.S. 9, 17 12-13 (1992)). 18 Defendant argues that by remediating the barriers at Starbucks it has voluntarily ceased the 19 conduct Plaintiff challenged in the FAC. “Mere voluntary cessation of allegedly illegal conduct 20 does not moot a case; if it did, the courts would be compelled to leave [t]he defendant . . . free to 21 return to his old ways.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 22 (1968) (internal quotation marks and citation omitted). Accordingly, voluntary cessation of illegal 23 conduct does not render a challenge to that conduct moot unless “(1) there is no reasonable 24 expectation that the wrong will be repeated, and (2) interim relief or events have completely and 25 irrevocably eradicated the effects of the alleged violation.” Barnes v. Healy, 980 F.2d 572, 580 26 (9th Cir. 1992) (citation omitted). 27 28 Put another way, a defendant’s voluntary compliance only moots a request for prospective relief where the defendant meets the “formidable burden” or demonstrating that it is “absolutely 20 1 clear the alleged wrongful behavior could not reasonably be expected to recur.” Friends of the 2 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Starbucks thus bears 3 the “heavy burden of persuad[ing] the court” that each alleged barrier “cannot reasonably be 4 expected to start up again.” Friends of the Earth, 528 U.S. at 189 (internal quotation marks and 5 citation omitted). 6 a. Access to the Counter Area The first alleged barrier is the access to the cashier counter. (Dkt. No. 37 ¶ 10(a).) 8 Plaintiff contends that Defendant violated the 2010 ADAAG requirement that the minimum clear 9 width of all walking spaces be a minimum of 36 inches. (Dkt. No. 64 at 17.) See 2010 ADAAG 10 403.5.1; 28 C.F.R. pt. 36, subpart D, 36 C.F.R. pt. 1191 app. B &D.9 The gravamen of his claim 11 United States District Court Northern District of California 7 is that his access to the counter was impeded because the merchandise display in the middle of the 12 store made the aisle too narrow for him to navigate when there are other customers present and 13 because other merchandise displays at the counter itself blocked his access. 14 Plaintiff testified that the aisle was less than 36 inches wide based on his experience 15 operating his manual wheelchair. And a Plaintiff’s own opinion about the measurements is 16 admissible. See Strong, 724 F.3d at 1046. Mr. Ferris testified, and his pictures indicate, that when 17 the merchandise display is in the center of the clear space and customers are present, the aisle 18 through the store is as narrow as 20 inches. (Dkt. No. 64-5 ¶ 7.) Reviewing those pictures, 19 Plaintiff’s expert, Mr. Blume, concluded that the path of travel was as narrow as 18 to 30 inches. 20 (Dkt. No. 64-3 ¶ 24.) He opined that there would have been a compliant path of travel to the 21 cashier’s counter if the merchandise display had not been placed in the middle of the waiting area, 22 and noted that the merchandise display was no longer in the center of the clear space when he 23 visited the store. (Id. ¶ 24.) Even once he got to the counter, Plaintiff further alleges that additional merchandise 24 25 displays further blocked his reach to the cashier. The 2010 ADAAG requires accessible clear 26 space on the counter be at least 36 inches wide and that the accessible portion of the counter top 27 9 28 Available at (last visited Mar. 6, 2017). 21 1 extend the same depth as the sales or service counter top. 2010 ADAAG §§ 904.4.1, 904.4. 2 Plaintiff avers that the counter was cluttered with merchandise that it was difficult for him to reach 3 the over and pay for his coffee. (Dkt. No. 64-1 ¶ 6.) In August 2015 Plaintiff’s expert, Mr. 4 Blume, measured the clear space at the transaction counter as less than 30 inches due to 5 merchandise displayed in front of and in between the cash registers. (Dkt. No. 64-3 ¶ 11; Dkt. No. 6 64-4 at 19-20.) 7 In rebutting Plaintiff’s motion and seeking summary judgment in its favor, Defendant relies on the testimony of Mr. Blackseth and Ms. Austin. Mr. Blackseth opined that there were no 9 problems with the width of the clear spaces within the store. (Dkt. No. 64-10 at 39; Dkt. No. 67 10 ¶ 9(D).) At the time he wrote his expert report, it is undisputed that Defendant had removed the 11 United States District Court Northern District of California 8 merchandise display from the center of the waiting area and relocated it against the wall— 12 according to Defendant’s Facilities Manager because it did not provide enough clearance. (Dkt. 13 No. 64-3 ¶¶ 24-25; Dkt. No. 63-10 at 6.) But Mr. Blackseth does not specifically note that in his 14 report, instead contending generally that there were no issues with the clear space within the store. 15 (Dkt. No. 64-10 at 39.) Mr. Blackseth also opined in his expert report and his declaration that 16 there was no violation regarding the service counter because it measured 33 inches high and the 17 clear space was over 36 inches wide. (Dkt. No. 64-10 at 33; Dkt. No. 67 ¶ 9(C).) 18 Ms. Austin similarly avers that as of February 2017 the Starbucks “has no less than 36 19 [inches] clearance space for the path of travel from the entry door, to the customer service area 20 . . . .” (Dkt. No. 69-2 ¶ 6(b).) She further avers that the store’s transaction counter provides the 21 requisite counter and floor space inasmuch as it is 33 inches high and at least 36 inches wide and 22 is not obstructed by any merchandise displays. (Dkt. No. 69-2 ¶ 6(a).) Mr. Blackseth’s and Ms. 23 Austin’s testimony does not create a genuine dispute of fact as to whether access to the cashier 24 counter was obstructed at the time of Plaintiff’s visit. The only record evidence from before the 25 merchandise displays were moved is that there was not a wide enough pathway to the counter or 26 enough access to the counter itself; that is, that at the time of Plaintiff’s visit Defendant was in 27 violation of the ADA. 28 And Defendant has not established that the access to the cashier counter barrier has been 22 1 removed or remediated such that Plaintiff’s claim is moot. While the testimony of Ms. Austin and 2 Mr. Blackseth suggests that the counter is not currently obstructed—and Plaintiff has not offered 3 any testimony to the contrary—neither their testimony nor any other evidence establishes that the 4 counter will not be obstructed again in the future. For example, drawing all inferences in 5 Defendant’s favor, the Court can reasonably infer that Starbucks relocated the merchandise 6 displays; but this is not a structural or permanent architectural change. There is no evidence that 7 Starbucks has ever had or has since adopted a particular policy governing placement of 8 merchandise displays. Starbucks has not proven that the display will not be returned to the middle 9 of the store or other areas where it might block Plaintiff’s access to the cashier’s counter. Thus, Starbucks has not met its “heavy burden” of persuading the Court that Plaintiff’s access to the 11 United States District Court Northern District of California 10 cashier counter might be impeded by merchandise displays in the future. See Friends of the Earth, 12 528 U.S. at 189. 13 Relatedly, Defendant insists that Plaintiff is not entitled to summary judgment because the 14 cashier counter access barrier Plaintiff encountered is temporary and moveable. ADA regulations 15 “explain that the requirement that public accommodations maintain ‘readily accessible’ facilities 16 and equipment ‘does not prohibit isolated or temporary interruptions in service or access due to 17 maintenance or repairs.” 28 C.F.R. § 36.211(b). Thus, “an isolated or temporary hindrance to 18 access does not give rise to a claim under the ADA.” Chapman II, 779 F.3d at 1008 (quotations 19 and citation omitted). In Chapman v. Pier 1 Imports (U.S.) Inc. (Chapman II), 779 F.3d 1001 (9th 20 Cir. 2015), the wheelchair-bound plaintiff argued that the defendant retail store’s placement of 21 merchandise and boxes in its aisles that blocked his access violated the ADA. The defendant 22 responded that the barriers were only temporary because customers placed them in the aisle and 23 staff regularly removed them. The Ninth Circuit concluded that the barriers were not temporary 24 and isolated because the Plaintiff encountered merchandise blocking the aisle on at least eleven 25 trips to the store and noted that “removing one obstructing object does not assure accessible aisles 26 where it is likely that soon thereafter another item will be moved and create a blockage.” Id. at 27 1008. 28 Defendant insists that the obstructed path to the cashier’s counter that Plaintiff encountered 23 was such an “isolated or temporary interruption” in access unlike the blocked aisles in Chapman 2 II. Not so. The merchandise display was located in the center of the store, narrowing the path of 3 travel, when Plaintiff visited the store on January 17, 2015 and on the two dates later that spring 4 when Plaintiff’s private investigator visited the store, and it is undisputed that when there are 5 customers in the store the displays make the path of travel too narrow. Aside from evidence that 6 they were removed sometime thereafter, the record is silent as to whether or how often Starbucks 7 employees moved the merchandise displays around. Defendant maintains that the merchandise 8 displays are freestanding and are “constantly being pushed out of position by customers 9 throughout the day[,]” (Dkt. No. 69 at 13), but they cite no evidence to support that proposition 10 and the Court has found none in the record. Nor has Defendant argued, let alone adduced any 11 United States District Court Northern District of California 1 evidence, that when customers move the displays “out of position” the path of travel becomes 12 accessible—i.e., that the barrier is removed. And if the Court accepts as true that customers 13 moved the displays around, the record reflects that Starbucks employees returned merchandise 14 displays to their original positions during their 8 minute sweeps, and when the merchandise 15 displays were “in position” the path was too narrow when customers were present. Thus, even 16 drawing all inferences in Defendant’s favor, a reasonable trier of fact could not find that the 17 merchandise displays were only temporary barriers. Thus, the access to the cashier counter is not 18 the type of isolated and temporary access barrier that falls outside the protective reach of the 19 ADA. 20 21 22 Accordingly, the Court will grant summary judgment in Plaintiff’s favor on this claim. b. Access to the Men’s Restroom Next, both parties seek summary judgment regarding Plaintiff’s claim that Starbucks did 23 not provide a clear path of access to the men’s restroom in violation of the ADAAG’s requirement 24 that all walking surfaces have a clear path at least 36 inches wide. (Dkt. No. 37 ¶ 10(b); Dkt. No. 25 64 at 17.) 2010 ADAAG § 403.5.1. 26 Plaintiff relies on his testimony that the space between the pick-up counter and the table 27 and chairs adjacent to it was less than 36 inches across and, thus, not wide enough for him to get 28 through so he had to ask another patron to move his chair (Dkt. No. 66-2 at 14-15; Dkt. No. 64-1 24 1 ¶ 7); his private investigator’s statement that the space between the pick-up counter and the table 2 and chairs was less than 30 inches wide (Dkt. No. 64-5 ¶ 8; Dkt. No. 64-6 at 14, 16-17, 19, 21); 3 and his expert’s opinion that, reviewing the photographs the investigator took, the path of travel 4 was 30 inches or less when the area was empty and as little as 10 inches wide when other 5 customers were standing nearby. (Dkt. No. 64-3 ¶ 23.) 6 Defendant, for its part, relies on Mr. Blackseth’s statement that the store has no less than 7 36 inches of clearance space for the path of travel to the restrooms. (See Dkt. No. 67 ¶ 9(D).) But 8 again, this testimony came after the table closest to the counter had been removed. (See Dkt. No. 9 64-10 at 8.) Defendant also relies on Ms. Austin’s declaration, in which she avers that as of February 2017 the store has no less than 36 inches of clearance space for the path of travel to the 11 United States District Court Northern District of California 10 men’s restroom. (Dkt. No. 69-2 ¶ 6(b).) Their testimony does not create a genuine dispute as to 12 whether the path of travel was less than 36 inches at the time of Plaintiff’s visit; drawing all 13 inferences in Defendant’s favor, there is no triable issue that the path was less than 36 inches wide 14 in violation of the ADAAG before the table was removed. 15 As for whether the access barrier remains, there is no dispute that the table closest to the 16 pick-up counter—the one that had customers whose chairs blocked Plaintiff’s path to the 17 bathroom—has been removed. Blackseth’s and Austin’s testimony establishes that the counter is 18 not obstructed when there is no table closest to the counter. Blackseth concedes that customers 19 move all freestanding furniture around all day (Dkt. No. 64-10 at 39), which could include tables, 20 but there is no specific testimony that customers have moved tables or that they specifically move 21 the high-top tables near the counter on the path to the men’s restroom. Nor is there testimony that 22 any Starbucks employee has ever moved the table back to the location adjacent to the counter 23 where it was when the customers moved the chairs around blocking Plaintiff’s access. But the 24 record reflects that Starbucks has no policy in place to prevent its employees from returning the 25 table to that location, nor any evidence as to how staff decides where to place freestanding 26 furniture. That, combined with the absence of any policy preventing customers from moving 27 chairs around to other tables in a manner that might block the path of travel, leads to only one 28 reasonable inference: that the barrier could reasonably be expected to recur. See Friends of the 25 1 Earth, 528 U.S. at 189. Thus, Defendant has not established that the access to the men’s restroom 2 has been removed or remediated such that Plaintiff’s claim is moot. 3 Once again Defendant argues that summary judgment for Plaintiff is improper because the 4 blocked access to the bathroom was only a temporary barrier, non-architectural barrier because it 5 was caused by misplaced furniture. As for the temporary nature of the blockage, Defendant relies 6 chiefly on Kirola v. City and County of San Francisco, 74 F. Supp. 3d 1187 (N.D. Cal. 2014). 7 There, the plaintiff alleged—among other claims—that she was denied full and equal access to the 8 city’s library system due to the placement of stools in library aisles. Id. In the context of 9 discussing her standing to sue and serve as class representative, the court concluded the plaintiff lacked standing because the defendant’s staff removed the stools daily so the obstruction was only 11 United States District Court Northern District of California 10 temporary; she never alleged that misplaced stools in the aisle interfered with her access to library 12 services; and the stools were places in the aisles by other library patrons not defendant’s staff. Id. 13 at 1241-42. Kirola does not help Defendant. 14 Kirola cited Sharp v. Island Restaurant-Carlsbad, 900 F. Supp. 2d 1114, 1126-27 (S.D. 15 Cal. 2012) for the proposition that “the ADA applies to architectural barriers, not temporary or 16 removable obstructions.” Id. at 1241 (citation omitted). The Sharp court, in turn, cited the district 17 court’s decision in Chapman v. Pier 1 Imports, No. CIV. S-04-1339 LKK CMK, 2006 WL 18 1686511, at *10 (E.D. Cal. 2006), for its conclusion that the ADA did not apply to a claim that the 19 path of travel to the restroom was blocked by chairs. That decision, however, was vacated and 20 remanded by the Ninth Circuit. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 21 2011). In Chapman II, the Ninth Circuit noted that “the presence of items in aisles is not 22 ‘temporary’ for the purposes of § 36.211(b) just because the obstructing items in the aisles were 23 placed there by customers and would have been moved on request or eventually.” Chapman II, 24 779 F.3d at 1008. Instead, the court framed the question as whether the objects block access paths 25 frequently—that is, whether the barrier is recurring—and concluded that the repeated instances of 26 merchandise and other objects obstructing the aisles was not temporary but rather recurring, as the 27 plaintiff experienced the blocked aisles on several occasions and some of the obstructions were 28 due to “affirmative actions of [the defendant] and its employees”—i.e., even staff left objects in 26 the aisle. Id. at 1009. Defendant seeks to distinguish Chapman II on the grounds that here there is 2 no evidence that Starbucks employees placed the furniture in the path of bathroom access. But the 3 evidence reflects that Starbucks employees regularly permitted customers to do so and did not 4 move the furniture back to its original placement until those customers were finished. Put simply, 5 a defendant cannot skirt the ADA by permitting its customers to impede disabled access. 6 At oral argument, Defendant insisted that there is no regulation that requires employees to move 7 furniture. To be sure, there is no ADAAG guideline or regulation that states as much. But there is 8 a regulation that requires Starbucks to maintain a 36-inch pathway. Defendant has not identified 9 any regulation that exempts places of public accommodation from this requirement based on other 10 customers’ preferences. And, as discussed above, the 8- to 10-minute sweeps do not establish that 11 United States District Court Northern District of California 1 Starbucks has a policy of requiring and maintaining a 36-inch pathway. 12 In short, there is no triable issue as to whether customers’ placement of furniture blocked 13 Plaintiff’s access to the men’s restroom: it did. As discussed above, because there is no evidence 14 that there is a store policy in place that prevents Starbucks employees from repositioning the table 15 back to the offending location—and, if they do so, from preventing customers from adding 16 additional chairs to the table that blocks the path of travel—even drawing all inferences in 17 Defendant’s favor, there is no genuine dispute that the violation can reasonably be expected to 18 recur. Accordingly, the Court will grant Plaintiff’s motion for summary judgment on this issue. 19 20 c. Additional Barriers Alleged in the FAC As long as Plaintiff experienced some access barriers, he has standing to sue for injunctive 21 relief for other barriers related to his disability that he did not encounter. See Chapman I, 631 22 F.3d at 944. Both parties seek summary judgment on 13 other barriers alleged in the FAC. The 23 Court addresses each in turn. 24 25 i. Entry/Exit Door – Threshold Both parties seek summary adjudication regarding whether the height of the threshold of 26 the Starbucks’s front door violates the 2010 ADAAG, which requires that door thresholds not 27 exceed 1/2 inch in height. (Dkt. No. 37 ¶ 11(a); Dkt. No. 64 at 17-18.) See ADAAG § 404.2.5. 28 Plaintiff relies on Mr. Bluhm’s report, which states that the threshold is 3/4 inch high—1/2 inch 27 1 out of compliance. (See Dkt. No. 64-3 ¶ 6; ADAAG § 404.2.5.) Plaintiff also notes that in his 2 expert report and at his deposition, defense expert Mr. Blackseth concurred that the threshold was 3 over the 1/2-inch height requirement. (Dkt. No. 64-10 at 12-13, 31.) There is a genuine dispute as to whether the threshold is the required height because Ms. 4 Austin states that, as of February 2, 2017, the “metal door threshold is no more than 1/2[ inch] 6 beveled.”10 (Dkt. No. 65-2 ¶ 6(a).) One way to reconcile the evidence is to conclude that 7 Starbucks remedied the noncompliance. But as explained above in connection with the sham 8 affidavit discussion of the Blackseth Declaration, Starbucks does not offer any evidence that it 9 took any steps to remedy its alleged noncompliance. As Plaintiff’s evidence is that the threshold 10 is too high, and Defendant’s evidence is that it is just right, another reasonable inference is that a 11 United States District Court Northern District of California 5 factual dispute remains about the door-threshold height, defeating both parties’ motions for 12 summary judgment on this alleged barrier. ii. 13 Entry/Exit Door – Closing Speed The parties next seek summary judgment regarding whether the Starbucks’s front door is 14 15 adjusted to the required closing period—that is, whether the front door violates 2010 ADAAG 16 § 404.2.8 which requires that all doors take a minimum of five seconds to close from a 90-degrees 17 open position to 12 degrees. (Dkt. No. 37 ¶ 11(b); see also Dkt. No. 64 at 18.) Plaintiff relies on 18 Mr. Bluhm’s report, which states that the door-closing speed was faster than 5 seconds (Dkt. No. 19 64-3 ¶ 7); and Mr. Blackseth’s report, which concurred, noting that the door closed in only three 20 seconds and that “Starbucks will adjust and maintain door operating pressure to” compliance (Dkt. 21 No. 64-10 at 32); and his deposition testimony that the door closed too quickly and he 22 recommended that the store fix it (id. at 14). In response, Defendant cites Ms. Austin’s declaration, in which she avers that the doors 23 24 “close in no less than five seconds when opened at 90 degrees.” 11 (Dkt. No. 65-2 ¶ 6(b).) Based 25 10 26 27 28 While this declaration was submitted in support of Defendant’s summary judgment motion the Court is required to consider evidence Defendant cites from its own summary judgment motion to determine whether there is a genuine issue of fact that defeats Plaintiff’s motion. Fair Housing Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, (9th Cir. 2001). 11 Defendant also relied on a paragraph of Mr. Blackseth’s declaration that the Court has excluded. See supra Section I.A.B.1. 28 1 on the conflict between Ms. Austin’s testimony and Mr. Bluhm’s report, there is a genuine dispute 2 of fact regarding whether the door pressure complies with the 2010 ADAAG, so the Court 3 therefore denies both parties’ bids for summary judgment. iii. 4 Access to Interior Designated Accessible Seating Next, the parties seek summary adjudication regarding whether the “arrangement of the 5 6 interior designated accessible seating space . . . offer[s] an equivalent experience compared to the 7 non-accessible seating spaces.” (Dkt. No. 37 ¶ 11(d); see also Dkt. No. 64 at 18.) The 2010 8 ADAAG require clear floor of ground space in front of a designated accessible table to be 30 9 inches by 38 inches and that a clear path of at least 36 inches be provided. 2010 ADAAG 10 §§ 902.2, 305.3, 403.5.1. Plaintiff relies on Mr. Bluhm’s opinion that the tables and chairs throughout the Starbucks United States District Court Northern District of California 11 12 are arranged in a way that leaves less than a 36 inch-wide clear path to the accessible table, and 13 that the table itself lacks the 30 inch by 38 inch clear space adjacent to the table due to the 14 placement of other furniture. (Dkt. No. 64-3 ¶ 9; Dkt. No. 64-4 at 9-14.) Plaintiff also cites Mr. 15 Ferris’s observations that the path of travel to the accessible table was less than 36 inches and that 16 the table had only one side open for seating, as it was blocked on two sides by the window and 17 newspaper racks and only one side remaining was accessible to—that is, wide enough for— 18 individuals in wheelchairs. (Dkt. No. 64-5.) At his deposition, Mr. Blackseth confirmed that he 19 agreed the counter was out of compliance and recommended that Starbucks bring it into 20 compliance. (Dkt. No. 64-10 at 17.) Defendant, for its part, cites Mr. Blackseth’s deposition testimony that there were 21 22 sufficient accessible areas in the Starbucks.12 (Dkt. No. 69 at 20; Dkt. No. 66-1 at 3-4.) 23 Defendant also cites Mr. Blackseth’s deposition testimony, in which he describes the layout of the 24 store—including the accessible tables and their locations—and opines that abled and disabled 25 customers have the same experience at the Starbucks based on their seating options. (Dkt. No. 69 26 at 23; Dkt. No. 69-5 at 3-4.) This testimony creates a genuine dispute about whether the 27 12 28 Defendant also relied on a paragraph of Mr. Blackseth’s declaration that the Court has excluded. See supra Section I.A.B.1. 29 1 arrangement of the interior designated accessible tables provide an equivalent experience to 2 disabled customers. The Court therefore denies Plaintiff’s request for summary judgment on this 3 issue. iv. 4 Lack of Accessible Counter Seating The parties next seek summary judgment on Plaintiff’s claim that the “elevated counter 5 6 seating lacks a properly configured accessible seating space.” (Dkt. No. 37 ¶ 11(e); see also Dkt. 7 No. 64 at 18.) The 2010 ADAAG requires that the tops of all dining areas be at least 28 inches 8 wide and no more than 34 inches above the ground and that the clear space in front of the dining 9 area be at least 30 inches by 48 inches. 2010 ADAAG §§ 902.2, 902.3, 305.3. In support of his motion, Plaintiff relies on Mr. Bluhm’s expert opinion that the elevated 11 United States District Court Northern District of California 10 counter seating is 45 inches high and there is no lowered portion or adequate clear space in front 12 of such lowered portion. (Dkt. No. 64-3 ¶ 10; Dkt. No 64-4 at 16-17.) Plaintiff also cites Mr. 13 Blackseth’s expert report, in which he appears to concede that the tall counter is out of 14 compliance, noting that the “counter seating is 45” high with no lowered area provided” and states 15 that Starbucks “will provide a lowered area” that complies with the required measurements. (Dkt. 16 No. 64-10 at 32.) In its opposition to Plaintiff’s motion and in its own bid for summary judgment, Defendant 17 18 does not contend that it has remedied the elevated counter and provided a lowered area in 19 compliance with the ADAAG. Instead, citing the Austin Declaration, Defendant contends only 20 that the chairs have been removed, so “there is no elevated counter ‘seating’ area” so “no lowered 21 counter portion is required.”13 (Dkt. No. 69 at 21; Dkt. No. 65-2 ¶ 6(c).) On the one hand, the 22 2010 ADAAG refers to “dining areas” not “seating areas.” See 2010 ADAAG Advisory § 902.1 23 General (“Dining surfaces include, but are not limited to, bars, tables, lunch counters, and 24 booths.”). There are exceptions written into this section of the ADAAG, but none that says the 25 requirements do not apply to “dining surfaces” that do not have chairs. Thus, the Court is not 26 convinced that the absence of chairs means the counter is no longer a dining area. But there is no 27 13 28 Defendant also cites a section of the Blackseth Declaration that the Court has excluded. See supra Section I.A.B.1. 30 1 evidence about whether customers use, or do not use, the chair-less countertop for that purpose. 2 Thus, whether the elevated counter is a dining area—such that it violates the ADAAG to not 3 provide a lowered, accessible counter as well—is a question of fact. Accordingly, neither party is 4 entitled to summary judgment on this issue. 5 6 v. Self-Service Counter Next, the parties seek summary judgment on Plaintiff’s claim that the “self-service items 7 located on the order pick-up counter are located beyond the reach requirements” in violation of the 8 2010 ADAAG. (Dkt. No. 37 ¶ 11(g); Dkt. No. 64 at 19.) The 2010 ADAAG provides that where 9 a forward reach is unobstructed, the high forward reach shall not exceed 48 inches. 2010 ADAAG § 308.3.1. In contrast, where a clear floor of ground space permits a parallel approach to an 11 United States District Court Northern District of California 10 element—that is, when a person approaches a counter with his wheelchair parallel to it—and the 12 high side reach is over an obstruction, the depth of the obstruction shall be no more than 24 13 inches. 2010 ADAAG § 308.3.2. 14 Plaintiff relies on Mr. Bluhm’s opinion, which states that the counter itself is an 15 obstruction and the straws and stirring sticks were located a 26- to 29-inch side reach away in 16 violation of the ADAAG reach requirements. (Dkt. No. 64-3 ¶ 12; Dkt. No. 64-4 at 22-24.) 17 Defendant cites the Blackseth Declaration, in which he avers that the counter itself is 33 ½ inches 18 high, has a small upper shelf where the self-service items are located that is 40 inches high, and 19 the reach range to the back of the cabinet where the items are is 19 inches and no items are more 20 than 48 inches high, which is the applicable reach range for unobstructed reaches. (Dkt. No. 69 at 21 21; Dkt. No. 67 ¶ 9(J).) He stated that same in his expert report. (Dkt. No. 64-10 at 34.) 22 Defendant also cites deposition testimony in which Mr. Blackseth opines that the ADAAG rules 23 do not apply to materials for sale—a statement that the Court disregards because it is an improper 24 legal conclusion—and his testimony that he recommended that Starbucks bring the straws and 25 stirrers within reach but did not think it was a violation of any standard. (Dkt. No. 66-1 at 5-7.) 26 It is not clear from the parties’ submissions whether they are talking about the same 27 element or whether, perhaps, Starbucks moved the self-service items from the pick-up counter to 28 another location. The particular location dictates which ADAAG section applies, since the 31 1 counter involves a side reach and the cabinet a direct front reach. It appears undisputed that there 2 was a barrier when the straws were located at the counter, and perhaps they have since been 3 moved, but there is no evidence in the record to that effect. Thus, there is a factual dispute about 4 which ADAAG section applies, so the Court cannot grant summary judgment to either party on 5 this element. 6 The Court rejects Defendant’s argument that the ADA reach regulations “do[ ] not cover condiments or merchandise on shelves[.]” (Dkt. No. 69 at 21.) Defendant does not cite a 8 particular section of the ADAAG that holds as much, and in any event, Defendant is wrong. 9 Section 225.2.2 states that self-service shelving shall not be required to comply with 308—the 10 reach requirements—and notes that self-service “shelves include, but are not limited to, library, 11 United States District Court Northern District of California 7 store, or post office shelves.” 2010 ADAAG Advisory § 225.2.2. But another section specifically 12 provides that self-services shelves and dispensing devices for tableware, dishware, condiments, 13 food and beverages shall comply with 308. Id. § 904.5.1. Canons of construction provide that 14 specific provisions targeting a particular issue apply instead of provisions more generally covering 15 an issue. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 132 S. Ct. 2065, 16 1071 (2012) (“The general/specific canons explains that the general language of [one clause], 17 although broad enough to include it, will not be held to apply to a matter specifically dealt with in 18 [a second clause].”) (internal quotation marks and citation omitted). Accordingly, the Court 19 concludes that the reach regulations apply to the condiment area even if Defendant has moved it to 20 a shelf. But, because a factual dispute remains as to where the condiments are located—and thus, 21 which reach regulation applies—neither party is not entitled to summary judgment on this issue. vi. 22 23 Floor Mats The parties also seek summary judgment on Plaintiff’s claim that the “floor mats within 24 public areas of the facility are unsecured and improperly configured.” (Dkt. No. 37 ¶ 11(h); Dkt. 25 No. 64 at 19.) The regulations require that carpet or carpet tiles be securely attached to the floor 26 and shall have a firm cushion, pad, or backing or no cushion or pad. 2010 ADAAG § 302.2. The 27 advisory note to this section clarifies that it includes carpets and “permanently affixed mats.” Id. 28 at § Advisory 302.2. 32 In support of his position, Plaintiff cites Mr. Bluhm’s opinion that he observed that the 1 2 floor mat en route to the bathroom was unsecured. (Dkt. No. 64-3 ¶ 13; Dkt. No. 64-4 at 26.) Mr. 3 Bluhm does not describe the mats themselves, but the mats in the photographs attached to his 4 declaration appear to be rubber mats on a tiled floor, rather than carpeting. Defendant cites Mr. 5 Blackseth’s statement that the “floor mats are properly installed and secured and comply with all 6 access regulations.” (Dkt. No. 67 ¶ 9(K).) Defendant also cites Mr. Blackseth’s deposition 7 testimony, in which he states that the mat at issue was actually a “walk off mat” and no action was 8 required because the mat did not present any significant issue. (Dkt. No. 66-1 at 8-9.) Similarly, 9 Mr. Blackseth does not describe what the mats are made of, but he calls them “walk off mats” and 10 they appear, in photos, to be rubber mats on a tiled floor. The Court cannot conclude that the floor mats Plaintiff identified violate the ADAAG. United States District Court Northern District of California 11 12 The ADAAG specifically refers to carpet and permanent mats, not moveable rubber floor mats. 13 See 2010 ADAAG § 302.2; see also Doran v. 7-Eleven, No. SACV 04-1125 JVS (ANX), 2008 14 WL 6259323, at *4 (C.D. Cal. Dec. 22, 2008) (concluding that the ADAAG’s secure-carpeting 15 provision “has no application to ‘floor mats’[]”) (citations omitted); Wilson v. Norbreck, LLC, No. 16 CIVS040690DFLJFM, 2005 WL 2439714, at *4-5 (E.D. Cal. Dec. 14, 2005) (noting that the 17 ADAAG section about mats deals with carpeting and thus has no application to “floor mats”); 18 White v. Divine Invs., Inc., No. Civ.S-04-0206 FCD/DA, 2005 WL 2491543, at *6 (E.D. Cal. Oct. 19 7, 2005) (same) (citations omitted). In White, the court granted summary judgment for the 20 defendant on the plaintiff’s claim that the floor mats were not attached, noting that “[t]he mats at 21 issue, depicted in photographs in plaintiff’s expert’s report, are clearly not ‘carpet’ of any sort, but 22 are mats placed on the linoleum floor and thus . . . not covered by the ADAAG. Moreover, 23 plaintiff has not provided any evidence that said mats are unstable or loose or that they provide a 24 tripping hazard.”14 2005 WL 2491543, at *6. So too here. The mats in the photographs appear to 25 be rubber mats on a tiled floor. Mr. Bluhm’s declaration states only that they are not secured to 26 27 28 14 White discussed an earlier version of the ADAAG, and therefore cited a different section number, but the substance is the same. 33 1 the floor, but otherwise provides no information about whether they are unstable or loose or would 2 present a hazard to a disabled person in a wheelchair. The Court therefore denies Plaintiff’s 3 motion for summary judgment and grants Defendant’s motion for summary judgment on this 4 issue. vii. 5 Men’s Restroom Door Pressure & Closing Speed 6 The parties seek summary adjudication regarding Plaintiff’s claim that the “men’s 7 restroom door is not adjusted to the required operating pressure and closing period.” (Dkt. No. 37 8 ¶ 11(i); Dkt. No. 64 at 20.) The 2010 ADAAG provides that pressure on interior doors shall not 9 exceed 9 pounds and all doors take a minimum of 5 seconds to close from a 90-degrees open 10 position to 12 degrees. 2010 ADAAG §§ 404.2.8, 404.2.9. To support his contention that the men’s restroom door violates these provisions, Plaintiff United States District Court Northern District of California 11 12 cites Mr. Bluhm’s declaration where he opines that the bathroom door pressure measured 13 approximately 10 pounds and Mr. Blackseth conceded that the pressure was too high. (Dkt. No. 14 64-3 ¶ 14; Dkt. No. 64-10 at 36.) As for speed, Plaintiff cites Mr. Bluhm’s statement that the door 15 closing speed was faster than the 5-second requirement. (Dkt. No. 64-3 ¶ 15.) 16 Defendant cites Ms. Austin’s statement that the restroom door has an operating pressure of 17 no more than five pounds and closes is no less than five seconds when opened 90 degrees.15 (Dkt. 18 No. 69-2 ¶ 6(e)). This testimony creates a genuine dispute as to whether the restroom door 19 complies with the ADAAG, so neither party is not entitled to summary judgment. viii. 20 Men’s Restroom Trash Can Both parties seek summary judgment on Plaintiff’s claim that the “waste receptacle within 21 22 the men’s restroom obstructs the required maneuvering clearance at the interior of the door” in 23 violation of the ADAAG requirement of a minimum clearance of 60 inches on the inside “pull 24 side” of the door. (Dkt. No. 37 ¶ 11(j); Dkt. No. 64 at 20.) 2010 ADAAG § 404.2.4.1. In support of his position, Plaintiff cites Mr. Bluhm’s opinion that when he visited the store 25 26 and measured the distance from the doorway to the trash can, there was only 48 inches of 27 15 28 Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded. See supra Section I.A.B.1. 34 1 clearance space. (Dkt. No. 64-3 ¶ 16.) Plaintiff also cites Mr. Blackseth’s expert opinion as 2 evidence that he concurred that there was a violation because Starbucks moved the trashcan (Dkt. 3 No. 64-10 at 36), and his deposition testimony that the trash can gets moved around a lot and “is 4 really not a barrier.” (Dkt. No. 64-10 at 20.) Defendant cites Mr. Blackseth’s declaration, noting 5 that he averred that the restroom has a clear floor space of 60 inches wide by 51 inches wide and is 6 not obstructed by the trash can (Dkt. No. 67 ¶ 9(M))—purportedly because it had been moved. It 7 is not clear whether the trashcan remains where it was pictured for the photograph, and the parties 8 did not address or offer evidence about how frequently it is moved in a way that might block the 9 entrance. Thus, a genuine dispute remains as to whether there is sufficient clear space in the 10 United States District Court Northern District of California 11 12 bathroom, so neither party is not entitled to summary judgment on this issue. ix. Men’s Restroom Plumbing Insulation The parties seek summary adjudication on Plaintiff’s claim that the “plumbing beneath the 13 men’s restroom lavatory is not properly insulated or otherwise configured to protect against 14 contact” in violation of rules that provide that all water supply and drain pipes under lavatories and 15 sinks “shall be insulated or otherwise configured to protect against contact.” (Dkt. No. 37 ¶ 11(l); 16 Dkt. No. 64 at 20.) 2010 ADAAG § 606.5. 17 Plaintiff cites Mr. Bluhm’s declaration that the water line under the sink is “not insulated at 18 all.” (Dkt. No. 64-3 ¶ 17.) The photograph attached to his declaration shows that the main water 19 line down from the sink into the wall, which juts several inches out from the wall, was almost 20 entirely insulated, but the separate, smaller hot and cold lines from the wall up to the sink, which 21 are more flush to the wall, are not insulated. (Dkt. No. 64-4 at 33.) In his expert report, Mr. 22 Blackseth contends that the back pipes did not need to be insulated and are compliant “as they 23 cannot be touched in any normal use.” (Dkt. No. 64-10 at 37.) Defendant relies instead on Mr. 24 Blackseth’s declaration, in which he avers that the plumbing is properly insulated in accordance 25 with all access regulation. (Dkt. No. 67 ¶ 9(N).) 26 Whether the insulation complies with the regulations comes down to a battle of the experts. 27 Neither party has submitted any evidence about how often or whether individuals in wheelchairs 28 come into contact with pipes like the ones at issue here. Thus, the Court cannot conclude as a 35 1 matter of law that the back pipes needed to be insulated to protect against contact. As this fact 2 question remains, the Court denies both parties’ bids for summary judgment on the insulation 3 issue. x. 4 Men’s Restroom Toilet Position 5 The parties next seek summary judgment on Plaintiff’s claim that the “men’s restroom 6 toilet is positioned too far away from the adjacent side wall” to comply with ADA regulations, 7 which provide that the centerline of the toilet must be between 16 and 18 inches from the side 8 wall. (Dkt. No. 37 ¶ 11(m); Dkt. No. 64 at 20-21.) 2010 ADAAG § 604.2. In support of this claim, Plaintiff relies on Mr. Bluhm’s opinion that the centerline of the 9 10 toilet is 18.5 to 19 inches from the wall. (Dkt. No. 64-3 ¶ 18; Dkt. No. 64-4 at 35.) Defendant cites Ms. Austin’s statement that the centerline of the men’s restroom toilet is United States District Court Northern District of California 11 12 no less than 17 inches and no more than 18 inches from the wall.16 (Dkt. No. 69-2 ¶ 6(h).) Based 13 on Mr. Blackseth’s expert report, it appears that Starbucks may have moved the toilet, as he 14 concluded that the toilet was 19 inches from the wall and noted that Starbucks “will modify to 15 provide a toilet that is 17”-18” on center from the adjacent wall.” (Dkt. No. 64-10 at 37.) But 16 there is no evidence about when any changes were made. If there were, the Court would likely 17 conclude that this claim is moot. Indeed, courts routinely conclude that rendering bathrooms 18 accessible through structural modifications moots ADA claims. See Ramirez v. Golden Creme 19 Donuts, No. C 12-05656 LB, 2013 WL 6056660, at *2 (N.D. Cal. Nov. 15, 2013) (citations 20 omitted); see, e.g., Eiden v. Home Depot USA, Inc., No. CIVS04-977 LKK/CMK, 2006 WL 21 1490418, at *9 (E.D. Cal. May 26, 2006) (defendant mooted ADA claims by installing ADA- 22 compliant bathroom stall door handle, repositioning toilet dispenser, and placing appropriate 23 signage); Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) (installing grab 24 rails in the bathroom moots ADA claims). But Defendant has not submitted any such evidence. 25 Accordingly, a triable issue remains as to whether the centerline of the toilet is more than 18 26 27 28 16 Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded. See supra Section I.A.B.1. 36 1 inches from the wall, so Plaintiff is not entitled to summary judgment on this issue. xi. 2 Men’s Restroom Mirror Position Plaintiff also seeks summary judgment that the bottom edge of the reflecting surface of the 3 4 mirror in the men’s restroom is unlawfully positioned more than 40 inches above the ground. 5 (Dkt. No. 37 ¶ 11(n); Dkt. No. 64 at 21.) See 2010 ADAAG § 603.3. 6 To establish that the mirror is too high, Plaintiff relies on Mr. Bluhm’s declaration, which 7 states that the distance from the floor to the reflecting surface of the mirror above the sink was 43 8 inches, and the photographs he took that show the same. (Dkt. No. 64-3 ¶ 18; see Dkt. No. 64-4 at 9 37.) In Mr. Blackseth’s expert report, he concluded that the mirror was too high. (Dkt. No. 64-10 at 38.) To show that no barrier exists, Defendant cites Ms. Austin’s statement that the bottom of 11 United States District Court Northern District of California 10 the mirror’s reflective portion is no more than 40 inches high.17 (Dkt. No. 69-2 ¶ 6(i).) Thus, a 12 triable issue remains issue as to mirror height, so summary judgment is not warranted. xii. 13 Men’s Restroom Position of Toilet Paper Dispenser The same is true of the parties’ requests for summary judgment on Plaintiff’s claim that the 14 15 men’s restroom toilet paper dispenser is too close to the toilet. (Dkt. No. 37 ¶ 11(p); Dkt. No. 64 16 at 21.) Regulations require that toilet paper dispensers be located 7 to 9 inches in front of the 17 toilet as measured from the centerline of the dispenser. 2010 ADAAG § 604.7. 18 In support of his claim that the toilet paper dispenser violates the rule, Plaintiff cites Mr. 19 Bluhm’s declaration that it is only 3 inches away, and his photographs showing as much. (Dkt. 20 No. 64-3 ¶ 5; Dkt. No. 64-4 at 39.) In his expert report, Mr. Blackseth opined that the dispenser 21 was too close to the toilet. (Dkt. No. 64-10 at 38.) Defendant cites Ms. Austin’s statement that 22 the bottom of the mirror’s reflective portion is no more than 40 inches high.18 (Dkt. No. 69-2 23 ¶ 6(i).) Thus, there is a triable issue as to whether the location of the toilet paper dispenser 24 complies with regulations, so neither party is entitled to summary judgment. 25 17 26 Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded. See supra Section I.A.B.1. 27 18 28 Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded. See supra Section I.A.B.1. 37 xiii. 1 Equal Seating Options 2 Lastly, the parties seek summary adjudication on Plaintiff’s claim that Starbucks has failed 3 to provide equal seating options for the disabled as it provides for the able bodied.19 (See Dkt. No. 4 64 at 21.) The ADA prohibits public accommodations from providing an experience that is not 5 “functionally equivalent” to that afforded to non-disabled patrons. See Kalani v. Starbucks Corp., 6 117 F. Supp. 3d 1078, 1087 (N.D. Cal. 2015) (citation omitted). To determine whether a 7 defendant provides disabled patrons with an opportunity to participate in or benefit from its goods 8 or services that is functionally equivalent to those afforded to non-disabled patrons, courts 9 consider how non-disabled patrons use the store. See Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012) (citing Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128- 11 United States District Court Northern District of California 10 29 (2005). This includes the availability of types of seating. See, e.g., Baughman, 685 F.3d at 12 1135 (citation omitted); see also Kalani, 117 F. Supp. 3d at 1087 (parties stipulated that 13 Starbucks’s services included “seating,” the cafe environment, and a “full and rewarding 14 coffeehouse experience[]”) (record citation omitted). For example, the Ninth Circuit concluded that a physical barrier that prevented disabled 15 16 customers from fully participating in the selection and preparation of their order at the food 17 counter was part of the customer experience that the store provided. Antoninetti v. Chipotle 18 Mexican Grill, Inc., 643 F.3d 1165, 1173-75 (9th Cir. 2010). In Kalani, a court in this district 19 concluded that by failing to provide any accessible seating that faces the interior of the store, the 20 defendant—Starbucks—failed to afford disabled customers an equal experience to those provided 21 to non-disabled customers because part of its services included a “full and rewarded coffeehouse 22 experience.” 117 F. Supp. 3d at 1087-88 (“Defendant’s decision to orient the interior accessible 23 tables such that non-disabled patrons are unable to fully participate in the Starbucks experience is 24 a disadvantage that non-disabled customers do not suffer.”) (internal quotation marks, alterations, 25 and citation omitted). Here, Plaintiff highlights a number of seating options that Starbucks provides non-disabled 26 27 19 28 While this was not one of the listed “elements” in the FAC, Defendant does not contend that this issue is somehow improperly in the case. (See Dkt. No. 69 at 23-24.) 38 1 customers but are unavailable to disabled customers. For example, the accessible tables—both 2 inside and outside of the store—are pushed up against a wall, leaving only one accessible side 3 available for a disabled person, and one side of the table is blocked by a news stand. (Dkt. No. 64- 4 3 ¶ 8; Dkt. No. 64-4 at 4-6; Dkt. No. 64-5 ¶ 9.) Thus, the only view from the interior accessible 5 table is outside, not into the store, and a disabled individual seated at the table can only sit with 6 one other person. (See id.) In contrast, the tables for non-disabled customers have seating facing 7 in all directions, including seats that let them view the interior of the store. Unlike disabled 8 customers, non-disabled customers can also enjoy their drinks at the drink counter—though it is 9 disputed whether seats are still available—and in an area of the store with comfortable chairs. 10 United States District Court Northern District of California 11 (See Dkt. No. 64-3 ¶ 8.) In response, Defendant cites Mr. Blackseth’s testimony that disabled customers have the 12 same experience as nondisabled customers, as there are “two functional areas and the adequate 13 number of accessible tables”—i.e., inside and outside of the store. (Dkt. No. 69-5 at 3-4.) This is 14 not particularly strong evidence, but it is enough to create a triable issue about the experience 15 Defendant provides to disabled customers. In fact, several fact issues remain. For example, 16 unlike Kalani, where the parties stipulated that the “experience” was part of its services, 117 F. 17 Supp. 3d at 1079, there is a triable issue here about what those services are; the only evidence in 18 the record is a printout from Starbucks’s webpage that states that Starbucks “coffee brings people 19 together” and that the stores are “vibrant and inviting:” because of their “philosophy of 20 community[.]” (Dkt. No. 64-10 at 56-57.) This is not enough to conclude as a matter of law that 21 the in-store people-watching experience is part of Starbucks’s services for the purposes of ADA 22 discrimination. The Kalani court also based its decision granting summary judgment to the 23 plaintiff based on the plaintiff’s testimony that he was a social individual who enjoyed sitting at 24 tables and interacting with others. Id. at 1089-90. There is no such testimony here. However, 25 Defendant’s other argument is disingenuous: Defendant notes that the tables are lightweight and 26 thus suggests that if a disabled customer does not like the table arrangement, he can move it to 27 better suit his needs. (Dkt. No. 69 at 24.) But the ADA places the onus on the store to provide an 28 equivalent experience and services, not on the disabled customer to make it so. 39 1 In any event, because fact issues remain, the Court denies Plaintiff’s request for summary 2 judgment on Starbucks’s failure to provide an equal or equivalent experience to non-disabled 3 customers. * * * 4 5 As there is no factual dispute that the barriers Plaintiff personally experienced existed and 6 are likely to recur, and Defendant did not contend that curing the barriers is not readily achievable, 7 the Court grants summary judgment in Plaintiff’s favor as to the cashier counter and men’s 8 restroom access claims. Plaintiff is therefore entitled to injunctive relief on those claims, which 9 “shall include an order to alter facilities to make such facilities readily accessible and useable by individuals with disabilities” to the extent required by the ADA. 42 U.S.C. § 12188(a). The Court 11 United States District Court Northern District of California 10 grants summary judgment in Defendant’s favor on the floor mats claim. Factual disputes preclude 12 summary judgment as to the remaining barriers. 13 B. State Law Claims 14 “A violation of the ADA is, by statutory definition, a violation of both the Unruh [Civil 15 Rights] Act and the ADA.” Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1023 (N.D. Cal. 2012) 16 (citation omitted); Cal. Civ. Code §§ 51(f), 54(c); see also Californians for Disability Rights v. 17 Mervyn’s LLC, 165 Cal. App. 4th 571, 586 (2008) (“A violation of the ADA also constitutes a 18 violation of both the Unruh Act and the DPA.”). “Because the Unruh Act is coextensive with the 19 ADA and allows for monetary damages, litigants in federal court in California often pair state 20 Unruh Act claims with federal ADA claims.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 731 (9th 21 Cir. 2007). As a result, the parties’ arguments for summary judgment on the state law claims rise 22 and fall with the ADA claims. 23 Defendant argues that the Court should decline to exercise supplemental jurisdiction over 24 Plaintiff’s state law claims based on its argument that Plaintiff lacks standing to sue under the 25 ADA. (Dkt. No. 65-1 at 26.) This argument is a non-starter, as the Court concludes that Plaintiff 26 has standing to bring the ADA claims. For the same reasons, Plaintiff has standing to sue under 27 the Unruh Act. 28 Because the Court grants summary judgment for Plaintiff on the cashier counter and men’s 40 1 restroom access claims, the Court enters judgment in Plaintiff’s favor on the same claims under 2 state law. The Unruh Act imposes damages “for each and every offense . . . , up to a maximum of 3 three times the amount of actual damage but in no case less than four thousand dollars ($4,000), 4 and any attorney’s fees that may be determined by the court in addition thereto . . . .” Cal. Civ. 5 Code § 52(a). A plaintiff can recover statutory damages for an Unruh Acts claim “if the violation 6 denied the plaintiff full and equal access to the place of public accommodation on a particular 7 occasion.” Id. § 55.56(a). A denial of full and equal access occurs where a plaintiff “personally 8 encountered” the violation and it resulted in “difficulty, discomfort or embarrassment.” Id. 9 § 55.56(b). Plaintiff meets these elements. There is no genuine dispute that Plaintiff personally suffered difficulty accessing the cashier’s counter and men’s bathroom. He also avers that having 11 United States District Court Northern District of California 10 to ask other Starbucks customers to move to permit him to pass caused him embarrassment. This 12 is enough to establish an entitlement to statutory damages under the Unruh Act based on his visit 13 to the Starbucks. Plaintiff seeks the minimum amount of statutory damages. Accordingly, the 14 Court will grant Plaintiff’s request for $4,000 in statutory damages. 15 Because the Court grants summary judgment in for Defendant on the floor mat claim under 16 the ADA, so too will judgment be entered in Defendant’s favor on the state law claim alleging the 17 same violation. The Court denies both parties’ motions for summary judgment under the Unruh 18 Act for the remaining alleged barriers. 19 20 21 22 CONCLUSION For the reasons discussed above, the Court GRANTS IN PART and DENIES IN PART the parties’ cross-motions for summary judgment. As there is no factual dispute that the barriers Plaintiff personally experienced existed and 23 are likely to recur, and Defendant did not contend that curing the barriers is not readily achievable, 24 the Court grants summary judgment in Plaintiff’s favor as to the cashier counter and men’s 25 restroom access claims under the ADA and the Unruh Act. Plaintiff is therefore entitled to 26 injunctive relief on those claims, which “shall include an order to alter facilities to make such 27 facilities readily accessible and useable by individuals with disabilities” to the extent required by 28 the ADA. 42 U.S.C. § 12188(a). The Court also orders that Plaintiff be paid $4,000 in statutory 41 1 damages under the Unruh Act. 2 The Court grants summary judgment in Defendant’s favor on the floor mats claim under 3 the ADA and the Unruh Act. Factual disputes preclude summary judgment as to the remaining 4 barriers. The parties are directed to contact Judge LaPorte’s chambers on or before April 11, 2017 5 regarding rescheduling the settlement conference. 6 This Order disposes of Docket Numbers 64 and 65. 7 IT IS SO ORDERED. 8 Dated: April 5, 2017 9 10 JACQUELINE SCOTT CORLEY United States Magistrate Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42

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