Hernandez v. Polanco Enterprises, Inc et al

Filing 92

Order by Hon. Yvonne Gonzalez Rogers denying 46 Plaintiff's Motion for Summary Judgment and denying in part and granting in part 47 Defendant's Cross-Motion for Summary Judgment. (ygrlc3S, COURT STAFF) (Filed on 8/23/2013)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 United States District Court Northern District of California 11 ALMA CLARISA HERNANDEZ, 12 Plaintiff, 13 14 15 Case No.: 11-CV-02247 YGR ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT vs. POLANCO ENTERPRISES, INC. , Defendant. 16 17 Plaintiff Alma Clarisa Hernandez, who has used a wheelchair since 2004, brought this action 18 under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., alleging 19 that architectural barriers at Defendant Polanco Enterprises, Inc.’s gasoline station denied her full and 20 equal enjoyment and use of the facility, including the station’s attached convenience store and the 21 restroom inside. Plaintiff’s First Amended Complaint (Dkt. No. 36 [“FAC”]) identifies 40 alleged 22 architectural barriers at the subject gas station, upon which she bases four distinct legal claims for 23 violations of: (1) the ADA; (2) the California Disabled Persons Act, Cal. Civ. Code §§ 54 and 54.1 24 (“DPA”); (3) the California Unruh Civil Rights Act, Cal. Civ. Code §§ 51, 51.5 (“Unruh Act”); and 25 (4) California Health & Safety Code § 19953. Since this action commenced, Defendant has 26 undertaken an extensive remediation effort eliminating 37 barriers. Notwithstanding that effort, 27 Plaintiff avers that four barriers exist post-remediation: two that Plaintiff claims were never corrected 28 and two that Defendant allegedly created during its remediation efforts. Now before the Court are fully briefed cross-motions for summary judgment on all claims. 1 2 See Dkt. Nos. 46 (“Pl. MSJ”), 47 (“Def. MSJ”), 58 (“Pl. Opp’n”), 60 (“Def. Opp’n”), 63 (“Pl. 3 Reply”), & 64 (“Def. Reply”). This Order addresses the alleged remaining four barriers: (i) the 4 alleged lack of a low-level push plate to operate the power-assisted door installed at the facility’s 5 accessible entrance; (ii) the allegedly excessive slope of a designated accessible route from the public 6 sidewalk to the entrance; (iii) the allegedly excessive slope of a new landing constructed at that 7 entrance; and (iv) the alleged lack of sufficient space for a wheelchair to maneuver in the gas 8 station’s restroom. The cross-motions turn on three issues. The first issue is whether the alleged 9 remaining barriers were pled adequately in the FAC. If they were and the barriers exist, the second issue is whether Defendant is shielded from ADA liability because removal of the barrier is not 11 United States District Court Northern District of California 10 “readily achievable;” Plaintiff argues that Defendant waived this defense during discovery. The third 12 issue is whether the most recent iteration of the California Building Code applies to the restroom 13 altered by Defendant as part of its remediation efforts. Having carefully considered the papers submitted and the record, and having had the benefit 14 15 of oral argument, for good cause appearing the Court DENIES Plaintiff’s motion for summary 16 judgment and PARTLY GRANTS AND PARTLY DENIES Defendant’s cross-motion, as set forth below. 17 I. FACTUAL AND PROCEDURAL BACKGROUND 18 A. 19 Plaintiff suffers from progressively deteriorating conditions of scoliosis/kyphoscoliosis, Pott’s THE PARTIES AND THE INITIAL PROCEEDINGS 20 disease, and paraplegia. Plaintiff also has experienced renal failure and receives dialysis three times 21 per week. As a result of her conditions, Plaintiff can walk only with the aid of arm braces, and then 22 only for a short time. Since approximately 2004, she has used a wheelchair to go out in public. 23 Defendant operates a gasoline station that was built in 1969. The station includes a 24 convenience store, inside of which is a restroom. The station is located on the route Plaintiff travels 25 between her residence and the center where she receives her dialysis. Plaintiff sometimes stops at 26 Defendant’s gasoline station to get gasoline and purchase items from the convenience store, and she 27 would like to be able to use the restroom there. On May 21, 2010, Plaintiff visited Defendant’s 28 2 1 gasoline station but was unable to enter the convenience store because the sidewalk at the entrance 2 was too narrow. Plaintiff filed this lawsuit on May 6, 2011. 3 Plaintiff seeks relief under the ADA and California state law in the form of an injunction 4 requiring Defendant to remove the barriers that deny her full and equal access to the gas station. 5 Plaintiff further seeks a declaration that Defendant violated the ADA, statutory damages under 6 California’s Unruh Act or DPA, and prevailing-party attorney fees and costs. On August 12, 2011, Plaintiff’s designated expert, Gary Layman, inspected Defendant’s gas 7 station. Dkt. No. 46-12 (“Layman Decl.”) ¶ 4. Layman produced a written report that purports to 9 summarize his observations, dated August 24, 2012. Dkt. No. 51-1 (“Layman Initial Report”). This 10 report also sets forth forty-six separate “requirements” which, if accomplished, would, in Layman’s 11 United States District Court Northern District of California 8 opinion, bring the gas station into compliance with the 2010 ADA Standards for Accessible Design 12 (“2010 ADA Standards”) and the 2010 California Building Code (“2010 CBC.”).1 Id. at 14-19.2 On July 2, 2012, Plaintiff sought leave to file an amended complaint, which the Court 13 14 granted. Dkt. Nos. 32, 35. Plaintiff filed the FAC on August 8, 2012. Paragraph 11 of the FAC 15 enumerates forty alleged barriers to Plaintiff’s use of Defendant’s gasoline station. FAC ¶¶ 11(a)- 16 11(nn). On August 22, 2012, Defendant filed an Answer to the FAC asserting thirty-one affirmative 17 18 defenses. Dkt. No. 37 (“Answer”). Defendant’s twenty-second affirmative defense states: “[T]he 19 removal of any barriers, if any exist, the fact of which is expressly denied, [was] and [is] not readily 20 achievable and easily accomplishable so as to be accomplished by Defendants without much 21 difficulty or expense. As such the overall impact of such removal would be financially detrimental to 22 Defendants.”3 Id. at 11. That defense is a recognized affirmative defense to ADA liability. See, e.g., 23 Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 n.7 (E.D. Cal. 2007) (collecting cases 24 where defense was asserted). 25 26 1 The 2010 CBC is codified in the California Code of Regulations, Title 24, Part 2. 27 2 Where an exhibit is bates-stamped, the Court cites to the bates-stamp’s final digits. 3 A second defendant was dismissed by stipulation on September 24, 2012. 28 3 1 B. 2 On September 24, 2012, Defendant provided supplemental responses to interrogatories 3 propounded by Plaintiff. Dkt. No. 58-5 (“Def. Supp. Interrog. Resp.”). Plaintiff’s ninth interrogatory 4 asked Defendant to identify any of the barriers listed in paragraphs 10 and 11 of the FAC for which 5 removal was not “readily achievable.” Id. at 11. Defendant responded that the alleged barriers either 6 did not exist or were in the process of being brought “into compliance with all federal and state 7 laws,” and that consequently Defendant did “not contend that it [was] not ‘readily achievable’ to 8 ‘remove’ those barriers.” Id. at 12. Defendant further stated that, although some remediation efforts 9 were incomplete, it was “not aware of any additional unanticipated or unforeseen modifications or DISCOVERY ACTIVITIES RELATING TO THE READILY-ACHIEVABLE DEFENSE ‘alterations,’ and/or any additional associated costs, that may be required to remove the alleged 11 United States District Court Northern District of California 10 ‘barriers,’ and therefore [was] unable to state at this time which of the alleged ‘barriers’ are not 12 ‘readily achievable’ to remove, if any.” Id. Defendant further stated that it would amend its 13 supplemental responses if it learned that removal of any of the specified barriers was not readily 14 achievable. Id. at 12-13. 15 In a similar vein, Plaintiff’s tenth and eleventh interrogatories asked, respectively, for details 16 about the difficulties that made removal of any barrier not readily achievable, and for details about 17 any impact on the gas station that would result from barrier removal. Id. at 13-15. Defendant gave 18 substantially the same answer that it did to the ninth interrogatory: it did not anticipate being unable 19 to remove any barriers, but would supplement its responses to address the readily-achievable defense 20 if it was. See id. Defendant also declined to produce its “financial statements, profit and loss 21 statements, cash flow statements, balance sheets, tax returns, and income statements . . . for the past 22 five (5) years,” reciting substantially the same reasons. Dkt. No. 58-6 (“Def. RFP Resp.”) at 10-11. 23 On September 26, 2012, Plaintiff took the deposition of David Polanco Sr., the President of 24 Defendant Polanco Enterprises, Inc. Dkt. No. 58-7 (“Polanco Sr. Dep.”). During the deposition, 25 Defendant’s counsel stated on the record that the parties had “stipulated in writing that [certain 26 financial documents] need not be produced at this point unless defendants raise the readily achievable 27 affirmative defense, and that we would take up that issue at a later time.” Id. at 20:15-19. On 28 September 28, 2012, the time for fact discovery ended. Dkt. No. 28 at 1. 4 1 C. 2 On November 9, 2012, in anticipation of the filing of motions for summary judgment, LITIGATION STAYED FOR REMEDIATION 3 Defendant requested a 120-day stay of the action during which it would “complete the remaining 4 construction/alterations and file a cross-MSJ, which will dispose of this action in its entirety.” Dkt. 5 No. 43. Defendant represented that it could not yet determine “whether the ‘not readily achievable’ 6 defense should be raised with respect to any of the remaining alleged ‘barriers’ . . . .” Id. at 2-3. 7 Defendant informed the Court that it anticipated being able, at the end of the 120-day period, either to 8 remove the remaining barriers identified in the FAC or determine for which of those barriers it would 9 raise the readily-achievable defense. Id. at 3. Defendant proposed that the parties: serve supplemental expert reports to assess whether Defendant’s remediation efforts had cured the barriers 11 United States District Court Northern District of California 10 alleged in the FAC by March 11, 2013; file a list of stipulated undisputed facts by March 18, 2013; 12 and file their cross-motions for summary judgment by March 25, 2013. On November 13, 2012, the Court issued a scheduling order adopting Defendant’s proposal. 13 14 Dkt. No. 44. 15 D. 16 On March 1, 2013, ten days before the parties’ deadline to serve supplemental expert reports, POST-REMEDIATION DEVELOPMENTS 17 Plaintiff’s designated expert, Layman, re-inspected the gas station. Layman Decl. ¶ 5. Layman 18 observed that the gas station had undergone “significant alterations” since his initial visit in August 19 2011. Id. ¶ 7. Layman found that most of the barriers he had identified during his initial inspection 20 in August 2011 had been removed, but that some barriers still existed. Id. ¶ 4. Layman purported to 21 have identified seven new violations of the ADA, the CBC, or both. Id. ¶ 5. Of the seven purported 22 violations, four are relevant here, namely: (1) excessive slope on the designated accessible route, 23 ranging from 3.7 to 4.7 percent; (2) excessive slope of 2.9 percent on the landing for the entrance 24 door;4 (3) the lack of a low-level push plate on the automatic door-opener system; and (4) only 39.25 25 inches of clear floor space in front of the toilet when there should have been 48 inches. See id.; see 26 27 28 4 The applicable 2010 ADA Standards require both the accessible route and the entrance landing to have a slope no greater than 1:48, which is equivalent to 2.08333 percent. See 2010 ADA Standards §§ 304.2, 403.3, 404.2.4.4, 405.7.1. The parties refer to this standard as “2 percent.” 5 1 also Dkt. No. 51-5 (“Layman Supp. Report”) (identifying these purported barriers).5 The parties’ 2 cross-motions center on those four purported barriers, herein denominated as the “accessible-route,” 3 “entrance-landing,” “low-level push plate,” and “restroom-space” barriers, respectively.6 4 II. LEGAL STANDARD A party may move for summary judgment on a “claim or defense” or “part of . . . a claim or 5 6 defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no genuine dispute 7 as to any material fact and the moving party is entitled to judgment as a matter of law. Id. A party seeking summary judgment bears the initial burden of informing the court of the basis 8 9 for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 11 United States District Court Northern District of California 10 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty 12 Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is 13 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Wellington v. 14 Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1154 (9th Cir. 1999) (citing Anderson, 477 U.S. at 248). 15 Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. 16 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 17 III. DISCUSSION As an initial matter, with respect to the 37 barriers identified in the FAC whose remediation 18 19 Plaintiff concedes, the Court DENIES Plaintiff’s motion for summary judgment and GRANTS 20 Defendant’s cross-motion. Where, as here, a private plaintiff brings an ADA claim seeking to enjoin 21 22 23 24 25 26 27 28 5 The parties agree that three barriers stemming from a missing handrail and the positioning of a grab bar in the restroom have been remediated. See Dkt. No. 78 (“Joint Fact Stmt.”), Chart 3. 6 Plaintiff claims that the low-level push plate and restroom-space barriers were created by Defendant’s remediation efforts. With respect to the low-level push plate barrier, Layman indicated that an upper push plate had been installed at the convenience store entrance but that the 2010 ADA Standards and 2010 CBC Standards required “both an upper and a lower push plate.” Layman Decl. ¶ 5(d). According to Plaintiff, Defendant created the low-level push plate barrier by failing to include a low-level push plate when installing a new power-assisted door. As to restroom-space barrier, Plaintiff’s position is that Defendant undertook extensive remodeling in the restroom and, in doing so, repositioned the toilet from a compliant location within the restroom to a noncompliant location. See id. ¶ 9. 6 a defendant to remove an architectural barrier, removal of the barrier before final judgment moots the 2 ADA claim based on that barrier. See Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 3 2011); see also Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (ADA claims became 4 moot when plaintiff received the accommodation he sought). Where a state-law claim is based 5 entirely on a mooted ADA claim, it follows that the state-law claim is mooted as well. Here, the 6 undisputed facts establish that 37 of the 40 barriers identified in the FAC have been remediated and 7 brought into ADA compliance. Joint. Fact. Stmt. at 2-10. Further, Plaintiff has made no showing 8 that those barriers could support state-law claims independent of the alleged ADA violations. 9 Defendant is therefore entitled to judgment in its favor on all claims based on those barriers. 10 The Court now turns to the four alleged barriers at the center of this dispute. 11 United States District Court Northern District of California 1 A. 12 Defendant challenges three of the four alleged barriers on the ground that the FAC fails to ADEQUACY OF FAC AS TO FOUR BARRIERS AT ISSUE 13 give sufficient notice of them. Def. Opp’n at 9 (low-level push plate), 10-12 (entrance landing), 15- 14 17 (accessible route). In barrier removal cases, an ADA plaintiff may prevail only with respect to 15 barriers alleged in the operative complaint. Oliver, 654 F.3d at 908; see also Carr v. L.A. Fitness 16 Int’l LLC, SACV 12-1071-JST, 2013 WL 3851230, at *6 (C.D. Cal. July 23, 2013) (relying on Oliver 17 to bar relief for barriers not alleged in complaint); Paulick v. Starwood Hotels & Resorts Worldwide, 18 Inc., C-10-01919 JCS, 2012 WL 2990760, at *12-13 (N.D. Cal. July 20, 2012) (same); O’Campo v. 19 Chico Crossroads, CIV S-10-1100-KJM, 2011 WL 5241351, at *2-3 (E.D. Cal. Oct. 31, 2011) 20 (same); Strong v. Walgreen Co., 09CV611 WQH BLM, 2011 WL 5374125, at *4 (S.D. Cal. Nov. 8, 21 2011) (same). This rule stems from the notice requirements of Federal Rule of Civil Procedure 8. 22 See Oliver, 654 F.3d at 908-09 (discussing Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th 23 Cir. 2006)). Only barriers identified “in the complaint itself” satisfy Rule 8: “a defendant is not 24 deemed to have fair notice of barriers identified elsewhere.” Id. at 909. That includes barriers 25 identified for the first time in an expert report. Id.; Carr, 2013 WL 3851230, at *6; Paulick, 2012 26 WL 2990760, at *12; Strong, 2011 WL 5374125, at *4; see also Rush v. Highgrove Restaurants, Inc., 27 --- F. App'x ---, 2013 WL 1288068, at *1 n.1 (9th Cir. Apr. 1, 2013) (refusing to consider claims 28 “first identified by [plaintiff’s] expert in an untimely affidavit submitted in response to [defendant’s] 7 1 motion for summary judgment” because the claims were not included in plaintiff’s amended 2 complaint and “she did not seek leave to file a second amended complaint”). 3 Oliver offered two justifications for requiring ADA plaintiffs to identify all barriers in their 4 operative complaints. Paulick, 2012 WL 2990760, at *12. “First, it reasoned that identifying the 5 specific barriers that are at issue only in the expert report does not provide fair notice because it 6 leaves a defendant guessing as to which barriers the plaintiff will actually proceed with.” Id. 7 “Second, it pointed out that expert reports are typically completed later in the case, giving rise to 8 prejudice to a defendant who has already incurred litigation costs defending under the plaintiff's 9 earlier theory.” Id. 10 While Oliver clearly states that the operative complaint must identify all barriers for which United States District Court Northern District of California 11 relief is sought, how much specificity is required when alleging those barriers is less clear. The two 12 most recent Ninth Circuit opinions squarely addressing pleading standards in ADA barrier cases are 13 Oliver and Skaff v. Meridien North America Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007). A 14 district court opinion, Sharp, reconciled the holdings of Oliver and Skaff by identifying two different 15 “pleading approaches,” both of which may satisfy both Rule 8. See Sharp v. Islands California 16 Arizona LP, 900 F. Supp. 2d 1101, 1105-08 (S.D. Cal. 2012). One approach, apparently endorsed in 17 Skaff, is to identify a specific area where barriers exist, for example, a bedroom. See id. at 1107. 18 Doing so places the defendant on notice that “discovery is needed to determine the exact barriers in 19 the” area. Id. The other approach, apparently endorsed in Oliver, requires a plaintiff to identify each 20 barrier presented by an architectural feature with enough specificity to preclude the plaintiff from 21 later alleging a different barrier stemming from the same feature. See id. This level of specificity 22 prevents plaintiffs from gradually disclosing the existence of barriers, a practice that prejudices 23 defendants and is plainly aimed at winning attorney fees rather than remediating discriminatory 24 barriers. See, e.g., Oliver, 654 F.3d at 906 n.7 (There, “[plaintiff’s] counsel later explained that his 25 delays in identifying the barriers at the facility were part of his legal strategy: he purposely ‘forces 26 the defense to wait until expert disclosures (or discovery) before revealing a complete list of barriers,’ 27 because otherwise a defendant could remove all the barriers prior to trial and moot the entire case.”). 28 The Court finds Sharp persuasive and applies its reasoning in this case. 8 1 Here, the FAC alleges, in pertinent part, that: “A properly identified and configured accessible route is not provided from the public way and accessible parking to the accessible entrance,” FAC ¶ 3 11(b); “Proper 60” x 60” door landings are not provided at all accessible entrances and exits,” id. ¶ 4 11(n); and “[t]he restroom does not provide sufficient space for a wheelchair to maneuver,” id. ¶ 5 11(gg). Plaintiff acknowledges that the low-level push plate barrier, as well as the restroom-space 6 barrier as it is currently, and more specifically, framed, are not identified in the FAC. See Pl. Reply 7 at 1 (“The two barriers not alleged in the FAC are [Defendant]’s failure to provide a lower level push 8 plate at the automatic door opener, and the failure to provide 48” in front of the toilet.”). Plaintiff 9 argues, however, that she nevertheless may proceed as to these alleged barriers because (i) Defendant 10 knew or should have known of them and (ii) barring Plaintiff from seeking relief from all the barriers 11 United States District Court Northern District of California 2 she can now identify would contravene Ninth Circuit authority. Id. at 2-4. Defendant, on the other 12 hand, argues that the accessible-route, entrance-landing, or low-level push plate barriers are pled in 13 too general a manner to have provided Defendant with fair notice of either the barrier’s existence or 14 Plaintiff’s intent to seek relief for it. Def. Reply at 2-4; 7-8; 9. 15 Neither party is entirely correct. Applying Sharp, the Court concludes that the FAC put 16 Defendant on notice of three of the four remaining alleged barriers. First, paragraph 11(b) put 17 Defendant on notice that Plaintiff sought relief for the lack of a “properly identified and configured” 18 accessible route. That allegation is specific enough to have enabled Defendant to ascertain where 19 such a route should have been located and how it should have been configured. Second, the 20 entrance-landing allegation of paragraph 11(n) put Defendant on notice that it needed to bring the 21 entrance landing into compliance with applicable standards. In both cases, the Court gives 22 substantial weight to the wording of the allegations, which state that the gas station lacks not just any 23 entrance landing measuring at least 60 inches square or any accessible route, but “proper” ones. 24 Third, paragraph 11(gg) put Defendant on notice of a need to bring the restroom into compliance by 25 adequately identifying the area where the alleged barrier could be found (the restroom) and the type 26 of barrier alleged (insufficient space for a wheelchair). Plaintiff’s concession that the restroom-space 27 barrier as presently framed is missing from the FAC is immaterial. Paragraph 11(gg) notified 28 Defendant of the need to provide “sufficient space” for a wheelchair to maneuver in the restroom. 9 1 How much space is “sufficient” is a question controlled by the building standards upon which 2 Plaintiff based her ADA and state-law claims. Paragraph 11(gg), in concert with Plaintiff’s legal 3 claims, put Defendant on sufficient notice to enable it to prepare a defense, including attempting to 4 remediate the alleged barrier and moot any claims based on it. In doing so, paragraph 11(gg) 5 satisfied Rule 8 and Oliver. 6 The Court rejects Defendant’s argument that it lacked fair notice of the entrance-landing 7 barrier because the Layman Initial Report did not identify the entrance landing’s slope as a barrier. 8 Def. Opp’n at 10-11; Def. Reply at 8. Defendant asserts that it modified the entrance landing by 9 laying new concrete around it to expand its size, without modifying the preexisting landing. Def. Opp’n at 4; Dkt. No. 60-2 (“Polanco Jr. Supp. Decl.”) ¶ 5. The Layman Initial Report does not 11 United States District Court Northern District of California 10 identify the slope of the pre-modification landing as a barrier, even though the Layman Supplemental 12 Report does. According to Defendant, both reports concern the same slab of concrete, and 13 accordingly the Court must bar as insufficiently pled any claim based on the landing slope because, if 14 its slope truly were excessive, Layman would have identified that fact in his Initial Report and 15 Plaintiff would have alleged the barrier in her FAC. This argument is unavailing for two reasons. 16 First, the touchstone of notice is the operative complaint, not the content of expert reports. Oliver, 17 654 F.3d at 909. Second, as Plaintiff points out (Pl. Reply at 14), the argument, in its essence, merely 18 attacks Layman’s credibility. The Court, however, cannot weigh credibility during summary 19 judgment or for the purpose of determining the sufficiency of pleadings. See, e.g., Nelson v. City of 20 Davis, 571 F.3d 924, 929 (9th Cir. 2009) (summary judgment); Molski v. Arby's Huntington Beach, 21 359 F. Supp. 2d 938, 948 (C.D. Cal. 2005) (pleading). 22 With respect to the adequacy of notice as to the fourth alleged remaining barrier, the low-level 23 push plate barrier, the Court finds unpersuasive Plaintiff’s argument that that she is entitled to relief 24 from that barrier notwithstanding its acknowledged absence from the operative complaint. Both of 25 Oliver’s justifications for requiring the operative complaint to identify all barriers—notice and 26 reliance—are compelling in this case. Defendant’s extensive remediation efforts attempted to moot 27 the entire FAC. The record now before the Court indicates that Defendant spent roughly four months 28 and $50,000 in pursuit of that goal. See Polanco Jr. Decl. ¶ 9. Following remediation, which 10 1 extensively altered the gas station, Defendant could not have known from which barriers Plaintiff still 2 sought relief. Plaintiff argues that she could not have identified the low-level push plate barrier in her 3 FAC because Defendant’s remediation efforts created that barrier. This argument overlooks the fact 4 that Plaintiff could have sought leave to amend her complaint under Rule 15’s liberal standard. See 5 Fed. R. Civ. P. 15(a) (requiring that courts “freely give leave when justice so requires”); see also id. 6 15(b)(1) (raising possibility of amendment during or even after trial); Theme Promotions, Inc. v. 7 News Am. Mktg. FSI, 546 F.3d 991, 1010 (9th Cir. 2008) (leave to amend given “liberally” unless 8 amendment would be futile); cf. Rush, --- F. App'x ---, 2013 WL 1288068, at *1 n.1 (rejecting claim 9 based on barrier first identified by expert in part because plaintiff never sought leave to allege the barrier in an amended complaint). Here, Plaintiff never sought leave to amend, even after receiving 11 United States District Court Northern District of California 10 the Layman Supplemental Report and after Defendant’s summary judgment motion made it plain that 12 Defendant regarded itself, rightly or wrongly, as having mooted all the barriers identified in the FAC. 13 Instead of putting Defendant on notice of the barriers from which she still sought relief after 14 remediation, Plaintiff continued to seek summary judgment as to purported barriers which Plaintiff 15 admittedly never identified in her operative complaint. Defendant incurred additional litigation costs 16 defending against those claims. Oliver and its progeny required Plaintiff to identify all barriers, i.e., 17 to state all her claims for relief, in her operative complaint. With respect to the low-level push plate 18 barrier, Plaintiff did not. As a matter of law, then, Plaintiff cannot prevail on claims based on that 19 barrier. 20 Plaintiff contends that Defendant’s actual knowledge of the existence of a barrier satisfies 21 Rule 8 even in the absence of a proper pleading. See Pl. Reply at 3. Plaintiff is incorrect. 22 Knowledge of the barrier alone is not enough. Under Oliver, an ADA defendant also must have fair 23 notice that the ADA plaintiff intends to pursue a legal claim based on that barrier. Oliver, 654 F.3d at 24 908-909; Paulick, 2012 WL 2990760, at *12. Here, by failing to amend her operative complaint, 25 Plaintiff failed to provide adequate notice of her continuing intent to seek relief for the lack of 26 maneuverable space in the restroom. 27 28 The Court is not persuaded by Plaintiff’s suggestion that she should be allowed to proceed with claims not pled in her operative complaint because Oliver left open “the possibility that an 11 1 expert report could provide proper notice.” Pl. Reply at 3-4. It is true that Oliver stopped short of 2 announcing an absolute rule, stating rather that, “[i]n general, only disclosures of barriers in a 3 properly pleaded complaint can provide [adequate] notice; a disclosure made during discovery, 4 including in an expert report, would rarely be an adequate substitute.” 654 F.3d at 909. Oliver does 5 not, however, explain in what circumstances discovery disclosures would adequately substitute for 6 proper pleading. See id. The Court’s research into California district court cases applying Oliver 7 revealed that, outside of the class-action context,7 they have thus far uniformly interpreted Oliver to 8 bar claims based on barriers not fairly reflected in an operative complaint. Carr, 2013 WL 3851230, 9 at *6; Sharp, 900 F. Supp. 2d at 1105-08; Paulick, 2012 WL 2990760, at *12; Strong, 2011 WL 5374125, at *4; O’Campo, 2011 WL 5241351, at *2-3. An unpublished Ninth Circuit case, Rush, 11 United States District Court Northern District of California 10 follows the same approach. 2013 WL 1288068, at *1 n.1. Plaintiff is correct that Oliver left open at 12 least a possibility that, in some hypothetical case, disclosure of a barrier in an expert report could 13 provide sufficient notice. This is not such a case, however. The Court finds unavailing Plaintiff’s argument that a policy interest in discouraging 14 15 piecemeal ADA litigation authorizes her to proceed as to barriers not pled in her operative complaint. 16 Pl. Reply at 3-4. Plaintiff cites Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 952 (9th Cir. 17 2011) for the proposition that “[t]he Ninth Circuit has urged resolution of all barriers in one action.” 18 Id. at 3. Plaintiff’s reliance on Chapman is misplaced. The passage Plaintiff cites is a quotation from 19 Doran, a case addressing not pleading requirements but constitutional standing requirements for 20 ADA plaintiffs in barrier cases. See Chapman, 631 F.3d at 952 (citing Doran v. 7-Eleven, Inc., 524 21 F.3d 1034, 1045 (9th Cir. 2008)). Chapman is distinguishable on that basis. The Court is bolstered 22 in this conclusion by the fact that the plaintiff in Oliver made the same argument Plaintiff advances 23 here, and the Oliver court rejected it for the same reasons. Compare Oliver, 654 F.3d at 909 (there, 24 plaintiff argued “that the complaint need not give the defendant notice of every barrier for which the 25 plaintiff seeks relief, because a disabled plaintiff who has encountered at least one barrier at a facility 26 can sue to remove all the barriers at the facility related to his specific disability”) with Pl. Reply at 4 27 28 7 See, e.g., Moeller, 816 F. Supp. 2d at 851 (distinguishing Oliver in class-action case); Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611, 615 (N.D. Cal. 2011) (same). 12 1 (arguing that the “relevant inquiries” for whether a plaintiff can sue to remove an ADA barrier should 2 be whether the barrier exists, whether it relates to a plaintiff’s disability, and whether any defense 3 exists). The Oliver court concluded that “Doran [did] not help [the plaintiff there], because it speaks 4 only to constitutional standing; it sheds no light on what a plaintiff's complaint must include to 5 comply with the fair notice requirement of Rule 8.” 654 F.3d at 909. Because Plaintiff’s argument 6 rests on Chapman and Chapman merely quotes Doran, Plaintiff’s policy argument for relief from 7 Rule 8 pleading requirements fails for the same reasons stated in Oliver. 8 9 In sum, the low-level push plate barrier is concededly not identified in the FAC in any manner and therefore cannot form a basis for relief. Accordingly, as to that barrier, the Court DENIES Plaintiff’s motion for summary judgment and GRANTS Defendant’s cross-motion. The FAC does, 11 United States District Court Northern District of California 10 however, give adequate notice of the accessible-route, entrance-landing, and restroom-space barriers. 12 The Court proceeds to the merits of the claims based thereon. 13 14 15 B. LEGAL FRAMEWORK 1. The ADA Title III of the ADA prohibits discrimination against people “on the basis of disability in the 16 full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations 17 of any place of public accommodation by any person who owns, leases (or leases to), or operates a 18 place of public accommodation.” 42 U.S.C. § 12182(a). To make a prima facie showing of 19 discrimination under Title III here, Plaintiff must show that: (1) she is disabled; (2) Defendant’s 20 gasoline station is a place of public accommodation; and (3) Plaintiff was denied access because of 21 her disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). It is undisputed that 22 Plaintiff is disabled and that Defendant’s gasoline station is a place of public accommodation. Thus, 23 with respect to each of the remaining three barriers, only the third element is in dispute. 24 This third element requires Plaintiff to show that Defendant has violated an applicable 25 accessibility standard. Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011) (citing 26 Chapman, 631 F.3d at 945; Donald v. Cafe Royale, 218 Cal. App. 3d 168, 183 (Cal. Ct. App. 1990)). 27 Different accessibility standards apply depending on when a building was constructed: new 28 construction provisions apply to places of public accommodation constructed after January 26, 1993; 13 1 “readily achievable” standards apply to buildings constructed before January 26, 1993; and 2 “alteration” standards apply to post-January 26, 1993 alterations of buildings that existed prior to 3 January 26, 1993. 42 U.S.C. §§ 12181, 12182; see also Moeller, 816 F. Supp. 2d at 847; 4 Californians for Disability Rights v. Mervyn’s LLC, 165 Cal. App. 4th 571, 584 (Cal. Ct. App. 5 2008). The undisputed facts establish that Defendant’s gasoline station (i) was constructed in 1969 6 and (ii) was not materially altered until Defendant began remediation efforts in late 2012. See Dkt. 7 No. 58-1, Fact 5. Accordingly, the subject gas station is governed by the “readily achievable” 8 standard for existing structures for purposes of the instant motions. 9 Under this standard, “barriers must be removed where it is ‘readily achievable’ to do so.” Moeller, 816 F. Supp. 2d at 847. “Readily achievable means ‘easily accomplishable and able to be 11 United States District Court Northern District of California 10 carried out without much difficulty or expense.’” M.J. Cable, 481 F.3d at 730 (quoting 42 U.S.C. § 12 12181(9)). Where modifications are readily achievable, they must be made in accordance with the 13 ADA’s exacting and comprehensive standards: “‘obedience to the to the spirit of the ADA’ does not 14 excuse noncompliance . . . .” Chapman, 631 F.3d at 945 (quoting Long v. Coast Resorts, Inc., 267 15 F.3d 918, 923 (9th Cir. 2001)). 16 District “courts are generally in agreement that whether barrier removal is readily achievable 17 is an affirmative defense,” though the Ninth Circuit has yet to address the issue. Wilson, 479 F. 18 Supp. 2d at 1133 n.7. Courts also generally agree that defendants may waive the “readily 19 achievable” affirmative defense, for instance, by omitting it from their answer. See id. at 1133-34; 20 but see Rodriguez v. Barrita, Inc., C 09-04057 RS, 2012 WL 3538014, at *10 (N.D. Cal. Mar. 1, 21 2012) (defendants may assert readily-achievable defense after pleading stage absent prejudice to 22 plaintiff). 23 24 2. California Disability Discrimination Statutes In addition to ADA claims, disabled plaintiffs may also bring causes of action based on 25 California state law. Two such laws, the Unruh Act and the DPA, incorporate ADA standards such 26 that “[a] violation of the ADA also constitutes a violation of both the Unruh Act and the DPA.” 27 Californians for Disability Rights, 165 Cal. App. 4th at 586 (citing Cal. Civ. Code §§ 51(f), 54(c)). 28 “Because the Unruh Act is coextensive with the ADA and [unlike the ADA] allows for monetary 14 damages, litigants in federal court in California often pair state Unruh Act claims with federal ADA 2 claims.” M.J. Cable, 481 F.3d at 731. The Unruh Act imposes damages “for each and every offense 3 . . . , up to a maximum of three times the amount of actual damage but in no case less than four 4 thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition 5 thereto . . . .” Id. § 52(a). DPA claims operate similarly to Unruh claims; that is, an ADA violation 6 establishes a DPA violation for which money damages and attorney fees may be sought, though the 7 DPA authorizes minimum statutory damages of $1,000 rather than Unruh’s $4,000. See Cal. Civ. 8 Code §§ 54.1(d), 54.3(a). Because the Unruh Act and the DPA “overlap,” litigants may seek 9 damages under only one of the statutes. Kohler v. Presidio Int’l, Inc., CV 10-4680 PSG PJWX, 2013 10 WL 1246801 (C.D. Cal. Mar. 25, 2013) (citing Cal. Civ. Code § 54.3(c) (“A person may not be held 11 United States District Court Northern District of California 1 liable for damages pursuant to both this section and Section 52 for the same act or failure to act.”)).8 12 C. 13 BARRIERS AT ISSUE 1. Accessible Route from the Public Way a. 14 Prima Facie ADA Violation Plaintiff alleges that the gas station lacks a “properly identified and configured accessible 15 16 route” from the “public way” (i.e., sidewalk) to the convenience store entrance. FAC ¶ 11(b). At the 17 time that Plaintiff visited the gas station in May 2010, the gas station lacked an ADA-compliant 18 accessible route. Despite remediation efforts, Plaintiff maintains that the route remains in violation 19 of the ADA. The ADA permits accessible routes to have a cross-slope of no more than 2 percent. When 20 21 Plaintiff’s designated expert conducted his initial site visit at the subject gas station, he suggested two 22 “possible” locations for an accessible route. See Layman Initial Report at 16, 27-28. Defendant built 23 24 25 26 27 28 8 As Plaintiff emphasizes in her briefing, e.g., Pl. Opp’n at 8-9, California has its own accessibility standards, violations of which can support California state-law claims independent of any ADA violations. See CAL. CIV. PRAC. CIVIL RIGHTS LITIGATION § 12:6.50 (describing relationship between Unruh Act, DPA, and ADA). The Unruh Act, DPA, and the California Health and Safety Code all provide private rights of action independent of the ADA. At present, however, the Court need not determine whether Plaintiff is entitled to relief under California state law alone. Plaintiff’s ADA claims based on the accessible-route and entrance-landing barriers survive summary judgment and, as set forth in Section III.C.3 infra, the Court declines to exercise supplemental jurisdiction over Plaintiff’s state-law claims arising from the restroom-space barrier. 15 1 a route that roughly conforms to one suggested by Layman, but, while Plaintiff claims Layman 2 identified a route running in a straight line from the sidewalk to the convenience store entrance (see 3 Pl. Reply at 8), the route Defendant actually built bends. The bend allows Defendant to avoid placing 4 ADA-required “truncated domes” at a point on the sidewalk where there are utility boxes. Dkt. No. 5 47-1 (“Dowgialo Decl.”) ¶ 36.9 According to Plaintiff, however, the bend also causes the route to 6 slope in excess of the 2 percent grade permitted by the ADA. See Layman Supp. Report at 4. 7 Defendant’s designated expert, Dowgialo, concedes as much, stating that while “[t]he major portion 8 of the accessible route . . . has a cross slope of less than 2% . . . [,] the first 14 [feet] shows a cross 9 slope of 3.33% . . . .” Dowgialo Decl. ¶ 36. Dowgialo further opines that the excessively sloped route, though it does not comply with ADA requirements, “complies with the intent of the ADA.” Id. 11 United States District Court Northern District of California 10 As a matter of law, neither substantial compliance nor “obedience to the spirit of the ADA” are viable 12 defenses to ADA liability. Long, 267 F.3d at 923. The evidence before the Court establishes that the 13 slope of the route from the public way does not comply with ADA standards. b. 14 Waiver of Readily-Achievable Defense Notwithstanding the route’s conceded noncompliance with ADA standards, Defendant argues 15 16 that it is not liable under the ADA because a 2 percent slope along the entire designated route is not 17 “readily achievable.” Plaintiff responds that Defendant has waived the readily-achievable defense 18 due to its conduct during discovery. The Court disagrees with Plaintiff. Defendant pled the readily- 19 20 21 22 23 24 25 26 27 28 9 Plaintiff objects that Dowgialo’s declaration, as well as that of David Polanco Jr., contain impermissible legal argument. Dkt. Nos. 47-2 (“Polanco Jr. Decl.”), 58-10 (“Obj’n to Dowgialo Decl.”) & 58-11 (“Obj’n to Polanco Jr. Decl.”). The Court agrees, and does not consider the legal arguments put forth in the declarations to comprise part of their expert opinions. The Court applies the same principle to those portions of Plaintiff’s expert’s reports that do the same. Defendant argues that Plaintiff’s evidentiary objections should be overruled because they were filed separately from Plaintiff’s opposition brief, in contravention of this Court’s Civil Local Rule 73(a). Def. Reply. at 1 (citing Civ. L.R. 7-3(a) (“Any evidentiary and procedural objections to the motion must be contained within the brief or memorandum.”)). The essence of Defendant’s opposition is that, by ignoring Rule 7-3(a), Plaintiff fit more argument into her brief than she otherwise could have. See id. The Court agrees, but given that the Dowgialo and Polanco Jr. declarations contain extensive legal argument themselves, the Court determines that, although neither party confined its arguments to the briefs, neither party obtained an unfair advantage from doing so. Counsel for both parties are reminded of their obligation to know and follow this Court’s Local Rules. See Civ. L.R. 11-4(a)(2), 11-4(a)(4). Failure to do so may result in sanctions. 16 1 achievable defense in its Answer, thereby preserving the defense for Rule 8 purposes. See Fed. R. 2 Civ. P. 8(c)(1); Answer ¶ 22. Even if it had not, the Federal Rules contemplate raising certain 3 defenses for the first time at trial, see Fed. R. Civ. P. 12(h)(2)(c), and the Ninth Circuit has liberalized 4 the requirement for when affirmative defenses are presented, Simmons v. Navajo Cnty., Ariz., 609 5 F.3d 1011, 1023 (9th Cir. 2010). 6 Plaintiff argues principally that Defendant “waived” the readily-achievable defense through discovery responses in which Defendant declined to respond to certain discovery requests on the 8 ground that it was not then asserting the defense. See Pl. Opp’n at 13-15. Federal Rule of Civil 9 Procedure 26(e) places litigants under an affirmative duty to supplement non-deposition discovery 10 responses, even after the discovery cut-off date. See Fed. R. Civ. P. 26(e); CAL. PRAC. GUIDE FED. 11 United States District Court Northern District of California 7 CIV. PRO. BEFORE TRIAL § 11:1241. According to Plaintiff, Defendant agreed to do so and did not. 12 Failure to supplement triggers the sanctions provisions of Rule 37(c): the nonsupplementing 13 party may not use the information it withheld “to supply evidence on a motion, at a hearing, or at a 14 trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). This 15 sanction is intended to be “self-executing” and “automatic,” though its “harshness” is mitigated by 16 Rule 37’s exceptions for substantially justified or harmless withholding. Yeti by Molly, Ltd. v. 17 Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). 18 Here, undisputed evidence establishes that Defendant declined to answer interrogatories or 19 produce requested financial documents focused on the readily-achievable defense on the basis that 20 Defendant was not then asserting the defense. Defendant qualified these refusals by promising to 21 supplement its responses in the event that it did assert the readily-achievable defense. Def. Supp. 22 Interrog. Resp. at 11-15; Def. RFP Resp. at 10-11. Apparently, the parties stipulated that Defendant 23 could decline to respond in this fashion, as Defendant’s counsel indicated on the record at a 24 deposition. See Polanco Sr. Dep. at 20:15-19. Pointing to these statements by Defendant, Plaintiff 25 argues that Defendant has laid an “ambush” by asserting the readily-achievable defense for the first 26 time only after the close of discovery. Pl. Opp’n at 15; Pl. Reply at 5. Plaintiff suggests that Rule 37 27 requires automatic exclusion of any evidence that Defendant would introduce in support of the 28 readily-achievable defense. Pl. Opp’n at 15. 17 Plaintiff is incorrect. Rule 37 excuses failures to supplement discovery responses that are 2 “substantially justified,” and even where such failures are not substantially justified, a court may 3 impose lesser sanctions than complete exclusion. Here, Defendant’s failure to supplement its 4 discovery responses was substantially justified by Plaintiff’s continuing failure to amend, or even 5 seek leave to amend, its operative complaint. The FAC does not notify Defendant of the specific 6 barriers supporting Plaintiff’s claims following remediation. That fact partly excuses Defendant’s 7 failure to identify the barriers for which Defendant would assert the readily-achievable defense. 8 Further, Defendant has made a showing that some representations in Plaintiff’s expert’s initial and 9 supplemental expert reports were at least arguably inconsistent. These apparent inconsistencies make 10 Defendant’s noncompliance yet more understandable, even if not altogether justified. Reliance on an 11 United States District Court Northern District of California 1 opposing party’s retained witness to ascertain the scope of one’s own obligations under the ADA is 12 not fully justifiable: it is the pleadings rather than the ad hoc statements of a nonparty witness that 13 determine what is at issue in a lawsuit. But, given Plaintiff’s reluctance to amend her pleading, the 14 Court finds that Defendant’s reliance on Layman’s representations was “substantially” justifiable. 15 Accordingly, the Court declines to impose Rule 37 sanctions for Defendant’s failure to supplement 16 its discovery responses before asserting the readily-achievable defense.10 Defendant may assert its 17 readily-achievable defense as to the accessible-route barrier. c. 18 Merits of Claim Based on Lack of Accessible Route Having determined that Defendant may assert a readily-achievable defense as to the route 19 20 from the public way, the Court DENIES both parties’ summary judgment motions as to that barrier. 21 The evidence establishes that the route designated as accessible by Defendant is not actually ADA- 22 compliant. However, a triable issue of fact remains as to whether making the route ADA-compliant 23 is readily achievable. Defendant argues that it is not, emphasizing that correcting the slope of the 24 route would require it to demolish the existing asphalt at the gas station, regrade the earth below, and 25 26 27 28 10 The Court reaches the issue of Rule 37 sanctions despite Plaintiff’s failure to present a proper Rule 37 motion. Cf. Yeti by Molly, 259 F.3d at 1106 (Rule 37 sanctions are “self-executing”). The Court’s Local Rules required Plaintiff to seek Rule 37 sanctions in a separately filed motion. See Civ. L.R. 37-4(a), 7-8(a). Instead, she raised the issue of Rule 37 sanctions in her summary judgment opposition brief. Pl. Opp’n at 15. 18 1 repave the station, which would result in expenses not only from actually performing the work but 2 also lost business while the station closed for renovation. Plaintiff argues, in essence, that Defendant 3 can afford it. 4 5 6 7 The ADA provides: In determining whether an action is readily achievable, factors to be considered include— (A) (B) 8 9 10 United States District Court Northern District of California 11 12 13 14 (C) (D) the nature and cost of the action needed under this chapter; the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C. § 12181(9). The evidence now before the Court does not sufficiently address the factors identified in 15 Section 12181(9). For example, the parties dispute the meaning of statements Polanco Sr. made at 16 his deposition relating to his plans to remodel the gas station at a cost of roughly $700,000. Plaintiff 17 urges the Court to interpret these statements to mean that Defendant has enough “overall financial 18 resources” to pay for the needed alterations to the gas station asphalt and weather the loss of revenue. 19 Defendant responds, essentially, that Plaintiff has taken the statements out of context. However, the 20 context that would allow the Court to determine which side is correct is lacking. Defendant appears 21 to have declined to produce discovery that might have supplied a more complete picture of its 22 finances. Defendant’s readily-achievable defense is not amenable to summary judgment on the 23 record now before the Court, especially in light of Defendant’s apparent failure to disclose relevant 24 information even after asserting its readily-achievable defense. The record is too threadbare to 25 support granting either party summary judgment as to the readily-achievable defense. 26 The Court concludes that there is a triable dispute as to whether compliance with the ADA’s 27 requirement of an accessible route from the public way to the accessible entrance was readily 28 achievable. As such, the Court DENIES both summary judgment motions as to the accessible-route 19 1 barrier. The Court deems the marked accessible route’s non-compliance with ADA slope 2 requirements conclusively established for purposes of trial. 3 2. Slope of Entrance Landing 4 Plaintiff alleges that “[p]roper 60” x 60” door landings are not provided at all accessible 5 entrances and exits” of the subject gas station. FAC ¶ 11(n). The record before the Court shows that, 6 before remediation, the convenience store entrance had a noncompliant door landing in the form of a 7 narrow slab of concrete reminiscent of a traditional sidewalk. As part of its remediation efforts, 8 Defendant expanded the size of the landing by pouring new concrete around the existing slab. 9 Plaintiff claims that the new, enhanced landing, while concededly at least 60 inches by 60 inches, is 10 United States District Court Northern District of California 11 nevertheless not “proper” because it slopes in excess of 2 percent. Defendant does not assert the readily-achievable defense with respect to the entrance-landing 12 barrier. Rather, Defendant asserts that the slope is not actually excessive and that the entrance 13 landing is therefore ADA-compliant. See Def. Reply at 8. Defendant’s expert, Dowgialo, and 14 Plaintiff’s expert, Layman, offer conflicting measurements of the slope of the landing. Compare 15 Layman Decl. ¶ 5(c) (“The slope of the landing at the entrance door measures 2.9%.”) with Dowgialo 16 Decl. ¶ 54 (“Layman is wrong”; the slope is 1.55%.). Defendant urges the Court to reject Layman’s 17 measurements and proffers evidence to impeach him. Polanco Jr. Decl. ¶ 79 (declaring that Polanco 18 Jr. saw Layman place his level unevenly and use a level shorter than the width of a typical 19 wheelchair). The Court, however, may not weigh credibility in summary judgment proceedings. 20 Resolving the dispute as to the slope of the landing will require the Court to evaluate not only each 21 expert’s credibility, but the process by which they reached their conclusions. The record as it exists 22 does not permit the Court to make an informed determination. 23 In sum, the two experts’ conflicting measurements present a material dispute over the actual 24 slope of the entrance landing which the Court cannot resolve on the record before it. Therefore, the 25 Court DENIES both parties’ summary judgment motions as to this issue. 26 27 28 3. Insufficient Restroom Space Plaintiff’s allegation that the gas station’s “restroom does not provide sufficient space for a wheelchair to maneuver,” FAC ¶ 11(gg), forms the basis of separate claims for relief under the ADA 20 1 and California state law. It is undisputed that the post-remediation restroom complies with ADA 2 structural requirements. See Joint Fact Stmt., Chart 3 (citing purported CBC violations but not 3 ADA). Accordingly, the Court DENIES Plaintiff’s summary judgment motion, and GRANTS 4 Defendant’s cross-motion, with respect to the ADA claim premised on a lack of insufficient space in 5 the restroom. With respect to Plaintiff’s state-law claims arising from the restroom-space barrier, the Court 6 7 determines that they raise “a novel or complex issue of State law” and declines to exercise 8 supplemental jurisdiction over them. 28 U.S.C. § 1367(c)(1). For the reasons set forth below, the 9 Court DISMISSES Plaintiff’s state-law claims to the extent they are predicated on the restroom-space 10 barrier. United States District Court Northern District of California 11 Section 1115B.3.2(3) of the 2010 CBC requires an accessible toilet facility to provide a 12 “maneuvering space” in front of the toilet measuring at least 60 inches wide and 48 inches deep. The 13 undisputed facts establish that the maneuvering space provided in front of the toilet at Defendant’s 14 gas station is less than 48 inches deep. Layman Supp. Report at 5 (clear space in front of toilet is 15 only 39.25 inches deep); Polanco Jr. Decl. ¶ 25 (during remediation, Polanco Jr. decided not to 16 provide 48 inches of clearance because doing so would involve moving a load-bearing steel wall). 17 Defendant argues that the restroom-space barrier is nevertheless not actionable because it falls within 18 Exception 3.6 to Section 1134B.2 of the 2010 CBC. Def. Opp’n at 24-25; Def. Reply at 11-12. 19 The general rule from which Defendant seeks exception is that, although older buildings do 20 not need to comply with current accessibility requirements, any alterations to those buildings do. See 21 11 CAL. JUR. 3d BUILDING REGULATIONS AND DEVELOPMENT § 217 (citing Cal. Gov't Code 4456; 22 Cal. Health & Safety Code §19959). However, “[t]his requirement shall only apply to the area of 23 specific alteration . . . and shall not be construed to mean that the entire building or facility is subject 24 to” current accessibility standards. Cal. Health & Safety Code § 19959. The 2010 CBC reflects this 25 statutory rule at Section 1134B.2: “When alterations, structural repairs or additions are made to 26 existing buildings or facilities, they shall comply with all provisions of Division I—New Buildings, 27 except as modified by this division. These requirements shall apply only to the area of specific 28 alteration, structural repair or addition and shall include . . . sanitary facilities . . . .” 2010 CBC, 21 1 Section 1134B.2.1 (emphasis added). The regulation then provides a series of exceptions to this 2 general rule. The exception upon which Defendant relies, Exception 3.6, stands for the proposition 3 that alterations undertaken “solely for the purpose of barrier removal” pursuant to ADA or CBC 4 requirements “shall be limited to the actual work of the project.”11 In this case, the record amply discloses that Defendant altered the restroom for the purpose of 5 6 complying with the ADA and, in doing so, substantially remodeled the restroom. Defendant 7 corrected the slope of the floor; moved a non-load-bearing steel wall; attempted but ultimately 8 decided not to move another, load-bearing steel wall; changed the position of the toilet within the 9 restroom; installed a new “door and door closer”; and replaced or removed numerous fixtures. 10 Polanco Jr. Decl. ¶¶ 23-35; see also Layman Decl. ¶ 9 (describing new configuration of restroom). Defendant appears to argue that, because this remediation effort was undertaken “for the United States District Court Northern District of California 11 12 purpose of barrier removal pursuant to” the ADA, all aspects of the restroom are exempt from CBC 13 compliance, including the restroom-space barrier. See Def. Opp’n at 24-25; Def. Reply at 11-12. 14 Plaintiff’s principal response is that Defendant “was not legally permitted to make alterations which 15 reduced the accessibility of the restroom.” Pl. Opp’n at 7. For support, Plaintiff quotes Section 16 1134B.1. That regulation provides, in pertinent part, that no alteration “shall be undertaken which 17 decreases or has the effect of decreasing accessibility or usability of a building or facility below the 18 requirements for new construction at the time of renovation, structural repair, alteration or addition.” 19 The parties’ arguments raise the question of not just whether Exception 3.6 applies, but how. 20 Plaintiff, in a one-sentence argument, posits that Defendant may not avail itself of Exception 3.6 if its 21 remediation efforts reduced the accessibility of the restroom. The issue requires more fulsome 22 consideration than Plaintiff has given it. Section 1134B.1 refers to alterations which “decrease[] or 23 ha[ve] the effect of decreasing accessibility or usability of a building or facility . . . .” Plaintiff quotes 24 this language, but never explains how it applies here. Specifically, Plaintiff does not explain whether 25 the “accessibility or usability of a building or facility” is to be determined holistically by evaluating 26 27 28 11 Exception 3.6 lists alterations that might be undertaken for the purpose of barrier removal, “including” installing grab bars in toilet stalls; rearranging toilet partitions to increase maneuvering space; insulating lavatory pipes under sinks to prevent burns; installing a raised toilet seat; installing a full-length bathroom mirror; and repositioning the paper towel dispenser in a bathroom. 22 1 the overall accessibility or usability of the facility or building, or, on the other hand, by holding each 2 feature and fixture up to the applicable standard in isolation. The 2010 CBC does not define 3 “usability,” but it does define “accessibility” as “the combination of various elements in a building, 4 facility, site, or area, or portion thereof which allows access, circulation and the full use of the 5 building and facilities by persons with disabilities in conformance with this chapter.” 2010 CBC, 6 Section 1102B (emphasis supplied). The regulation defines “facility” as “a building, structure, room, 7 site, complex or any portion thereof that is built, altered, improved or developed to serve a particular 8 purpose. Facilities shall include all or any portion of buildings, structures, site developments, 9 complexes, equipment, roads, walks, sidewalks, passageways, parking lots or other real or personal property located on a site.” Id. The interaction of these two definitions in Section 1134B.1 is 11 United States District Court Northern District of California 10 unclear: the definition of “accessibility” would appear to commend a holistic evaluation that takes 12 elements in “combination,” but the definition of “facility” appears to militate for isolated scrutiny of 13 each “portion” of a room. Plaintiff, not having identified this issue, cites no authority bearing on 14 which approach is appropriate. Nor has the Court’s independent research revealed any. This 15 question alone, then, appears to be both novel and complex, as contemplated by 28 U.S.C. § 1367. It 16 may involve a delicate question of California policy which this Court declines to resolve, especially 17 in the absence of extensive, directly responsive briefing. Accordingly, the Court exercises its discretion to DECLINE supplemental jurisdiction over 18 19 Plaintiff’s state-law claims based on the restroom-space barrier. Having already found that the 20 restroom does not violate the ADA, the Court DISMISSES both the federal and state claims based on 21 that alleged barrier. With respect to the state law claims, the dismissal is without prejudice. 22 IV. CONCLUSION 23 FOR THE REASONS SET FORTH ABOVE, the Court HEREBY ORDERS as follows: 24 1. With respect to the barriers alleged in Plaintiff’s First Amended Complaint at 25 paragraphs 11(a), 11(c) through (m), 11(o) through (ff), and 11(hh) through (nn), 26 inclusive, the Court DENIES Plaintiff’s motion for summary judgment as to both her 27 ADA and state-law claims and GRANTS Defendant’s cross-motion. It is undisputed 28 that those barriers have been remediated and the claims based on them are moot. 23 1 2. With respect to the low-level push plate barrier, the Court DENIES Plaintiff’s motion 2 for summary judgment and GRANTS Defendant’s cross-motion because the alleged 3 barrier is not identified in the First Amended Complaint. 4 3. With respect to the barriers alleged in Plaintiff’s First Amended Complaint at paragraphs 11(b) (alleging the lack of a “properly identified and configured accessible 6 route” from the public way) and 11(n) (alleging the lack of “[p]roper 60” x 60” door 7 landings” at the accessible entrance), the Court DENIES both parties’ motions for 8 summary judgment. Both barriers are identified in the First Amended Complaint. 9 With respect to the accessible route, there is a triable issue as to whether bringing the 10 accessible route into conformity with applicable standards is readily achievable. With 11 United States District Court Northern District of California 5 respect to the door landing, there is a triable issue as to the slope of the landing. 12 4. With respect to the barrier alleged in the First Amended Complaint at paragraph 13 11(gg) (“sufficient space for a wheelchair to maneuver” in the restroom), the Court 14 DENIES Plaintiff’s motion for summary judgment and GRANTS Defendant’s cross- 15 motion with respect to Plaintiff’s ADA claim and DECLINES supplemental jurisdiction 16 over the state-law claims based on this barrier. The state law claims are DISMISSED 17 WITHOUT PREJUDICE. 18 This Order terminates Docket Nos. 46 and 47. 19 IT IS SO ORDERED. 20 21 22 23 Dated: August 23, 2013 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 24 25 26 27 28 24

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