Dytch v. Magana et al

Filing 79

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 64 . (Illston, Susan) (Filed on 11/14/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALBERT DYTCH,
Plaintiff,

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ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT

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v.

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MAGANA, et. al.,

United States District Court
Northern District of California

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Case No. 17-cv-00438-SI

Re: Dkt. No. 64

Defendant.

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Plaintiff Albert Dytch’s motion for summary judgment is scheduled for a hearing on

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November 16, 2018. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is

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suitable for resolution without oral argument, and VACATES the hearing.

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Plaintiff moves for summary judgment under the Americans with Disabilities Act (“ADA,”

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42 U.S.C. § 1201, et seq.) and the California Unruh Civil Rights Act (“Unruh Act,” Cal. Civ. Code

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§ 51, et seq.). Plaintiff contends that defendant Maxaco, LLC, the landlord of Flaco’s, a restaurant

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in Berkeley, has failed to remove specific barriers to plaintiff’s full and equal access from its

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public accommodation. Plaintiff asserts that the evidence in the record shows: (1) he is disabled;

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(2) defendant’s property—including the restroom and parking lot—is a restaurant and thus a place

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of public accommodation; (3) he visited the restaurant twice; (4) while at the restaurant he

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encountered accessibility barriers in the restroom and parking lot in violation of the ADA and

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Unruh Act; (5) the cost of remedying the violations is $31,000; and (6) defendant can financially

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afford the cost of removing the barriers.

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Defendant opposes summary judgment and contends it has submitted evidence raising
material questions of fact on the ADA and Unruh Act claims. The defendant has raised issues of

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material fact as to whether defendant can afford the cost of remediation, as to when the building

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was constructed, and the threshold matter of whether the restroom and parking lot are public

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accommodations within the meaning of the ADA. Although plaintiff raises some well-founded

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objections to defendant’s declaration, most go to the weight, rather than the sufficiency, of the

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evidence challenged. Therefore, summary adjudication is not appropriate.
The Court notes, however, that if/when this matter goes to trial, both sides will be required

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to present evidence, not conjecture, and will be required to lay proper foundations for any
evidence presented.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: November 14, 2018
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SUSAN ILLSTON
United States District Judge

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