Langer v. Kiser et al

Filing 46

ORDER: Denying (1) Motion to Strike Document, ECF # 21 ; (2) Denying Plaintiff's Motion for Summary Judgment, ECF # 24 . Signed by Judge Roger T. Benitez on 08/23/2019. (mme)

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FILED

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AUG 2 6 2019

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CLERK us DISfRIC1 COlJRT
SOUTHERN DISTRICT OF CALIFORNIA 1
BY
~ Y"Si?
DEPUT':_.'

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UNITED STATES DISTRlCT COURT

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SOUTHERN DISTRlCT OF CALIFORNIA

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CHRIS LANGER,

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Plaintiff/Counterclaim Defendant,

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MILAN KISER, in individual and
representative capacity as trustee of the
Milan and Diana Kiser Revocable Trust
dated August 19, 2003; DIANA KISER,
in individual and representative capacity
as trustee of the Milan and Diana Kiser
Revocable Trust dated August 19, 2003;
FRANK P. ROFAIL; DAVID
MATTHEW TAYLOR; and DOES 1-10,

ORDER:

V.

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Case No.: 3:18-cv-00195-BEN-NLS

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(1) DENYING PLAINTIFF'S
MOTION TO STRIKE; AND
(2) DENYING PLAINTIFF'S
MOTION FOR SUMMARY
JUDGMENT
[Doc. Nos. 21, 24.]

Defendants/Counterclaimants.

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Before the Court is Plaintiff Chris Langer's ("Langer" or "Plaintiff') Motion to

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Strike (Anti-SLAPP) 1 dated December 12, 2018, and Motion for Summary Judgment dated

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February 28, 2019. Having reviewed the Motions and all related briefing, the Court finds

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SLAPP is an acronym for "strategic lawsuit against public participation." Mindys
Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010); see also Cal. Code Civ.
Proc.§ 425.16.
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1 the Motions suitable for determination without oral argument, pursuant to Civil Local Rule
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7.1.d.1.
For the reasons set forth below, the Plaintiffs Motion to Strike (Anti-SLAPP) is
DENIED, and Motion for Summary Judgment is DENIED.

BACKGROUND

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Plaintiff Chris Langer ("Plaintiff' or "Langer"), 1s a paraplegic who uses a

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wheelchair for mobility. (Doc. No. 1 ,i 1.) Langer has a disabled person parking placard

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and a "specially equipped van with a ramp that deploys out of the passenger side." (Id.) In

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September 2017, Langer went to the 1 Stop Smoke Shop ("Smoke Shop") and Gour Maine

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Lobster shop/Wallpaper store ("Lobster Shop") with the intention of patronizing the

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businesses. (Id. ,i 14.) Langer asserts that he encountered barriers that prevented him from

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patronizing the businesses because there were no compliant handicap-accessible parking

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spaces. (Id. ,i,i 17-19.) Due to the inaccessible condition of the parking lot, Langer argues

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he was denied "full and equal access" to the property, which caused him "difficulty and

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frustration." (Id. ,i 28.) Defendants own the allegedly non-complying property on which

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the Smoke Shop and Lobster Shop operate. (Id. ,i 4.)

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On January 29, 2018, Langer filed a Complaint in federal court alleging violations

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of the Americans with Disabilities Act ("ADA"), and the Unruh Civil Rights Act. (Id. ,i,i

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44-60.) Defendants thereafter filed Answers to the Complaint. (See Doc. Nos. 7, 8.)

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On November 19, 2018, the Court entered an Order granting Defendants Motion for

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Leave to Amend Answer and Add First Counterclaim for Trespass. (Doc. No. 19.)

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Defendants filed their Amended Answer on November 21, 2018.

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Defendants contend that when Langer attempted to patronize the Smoke Shop and Lobster

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Shop, he "intentionally and knowingly entered" their private parking lot.

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Langer' s trespass caused the Defendants and their tenants a loss of exclusive possession of

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the subject property. (Id.) Subsequently, on December 12, 2018, Plaintiff filed a Motion

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to Strike the Amended Answer and Counterclaim, to which Defendants responded and

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Plaintiff replied. (See Doc. Nos. 21-23.)

(Doc. No. 20.)

(Id. at 2.)

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On February 28, 2019, Plaintiff also filed a Motion for Summary Judgment to which
Defendants responded and Plaintiff replied. This Order resolves both Motions.

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DISCUSSION
I. MOTION TO STRIKE

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"California law provides for the pre-trial dismissal of certain actions, known as

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Strategic Lawsuits Against Public Participation, or SLAPPs, that 'masquerade as ordinary

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lawsuits' but are intended to deter ordinary people 'from exercising their political or legal

8 rights or to punish them for doing so."' Makaeffv. Trump Univ., LLC, 715 F.3d 254,261
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(9th Cir. 2013) (quoting Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003)).

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Specifically, the anti-SLAPP statute provides that any "cause of action against a person

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arising from any act of that person in furtherance of that person's right of ... free speech

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... in connection with a public issue shall be subject to a special motion to strike unless

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the court determines that the plaintiff has established that there is a probability that [he or

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she] will prevail on the claim." Cal. Civ. Proc. Code§ 425.16.
In ruling on an anti-SLAPP motion, the Court engages in a two-step process. 2

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"First, the court decides whether the defendant has made a threshold showing that the

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challenged cause of action is one arising from protected activity." Hilton v. Hallmark

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Cards, 599 F.3d 894, 903 (9th Cir. 2010). If the defendant succeeds in doing so, the

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To prevail on such a motion, Defendants must make "a threshold showing" that the
challenged cause of action, in fact, arises from an act in furtherance of First Amendment
22 rights. Gallanis-Politis v. Medina, 152 Cal. App. 4th 600, 609 (2007). The statute
23 defines these acts to include: ( 1) any written or oral statement or writing made before a
legislature, executive, or judicial proceeding, or any other official proceeding authorized
24 by law, (2) any written or oral statement or writing made in connection with an issue
25 under consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law, (3) any written or oral statement or writing made
26 in a place open to the public or a public forum in connection with an issue of public
27 interest, or (4) any other conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection with a public issue or
28 an issue of public interest. C.C.P. § 425.16(e).
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1 burden then shifts to the plaintiff to establish a "reasonable probability" of prevailing on
2 the claim. Batzel, 333 F.3d at 1024. That is, the "plaintiff must demonstrate that the
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complaint is both [1] legally sufficient and [2] supported by a sufficient prima facie

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showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff

5 is credited." Hilton, 599 F.3d at 903 (citing Wilson v. Parker, Covert & Chidester, 28
6 Cal. 4th 811, 821 (2002)). 3 "The applicable burden 'is much like that used in
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determining a motion for nonsuit or directed verdict, which mandates dismissal when no

8 reasonable jury could find for the plaintiff."' Mindys Cosmetics, Inc. v. Dakar, 611 F .3d
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590, 599 (9th Cir. 2010) (citation omitted) (emphasis added). Notably, the court "does
not weigh the credibility or comparative probative strength of competing evidence." (Id.)

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[W]hile the inquiry on the motion to strike may glance at the merits, its central

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purpose is to provide an added statutory protection from the burdens of litigation that is

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unavailable during the ultimate merits inquiry." Makaejf, 736 F.3d at 1185.

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Accordingly, to defeat a motion to strike, a plaintiff"need only have 'stated and

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substantiated a legally sufficient claim."' Navellier v. Sletton, 29 Cal. 4th 82, 88-89

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(2002). Stated differently, the plaintiff's cause of action needs only to have "'minimal

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merit"' to survive an anti-SLAPP motion to strike. Cole v. Meyer & Assoc., 206 Cal.

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App. 4th 1095, 1105 (2012) (emphasis added) (citations omitted). In other words, "the

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claim should be dismissed if the plaintiff presents an insufficient legal basis for it, or if,

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on the basis of the facts shown by the plaintiff, 'no reasonable jury could find for the

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plaintiff."' Makaejf, 715 F.3d at 261 (quoting Metabolife Int'!, Inc. Warnick, 264 F.3d

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"Such [a] test is similar to the one courts make on summary judgment, though not
identical. Thus, if a plaintiff has stated a legal claim but has no facts to support it, a
defendant could prevail on an anti-SLAPP motion, though he would not have been able
to win a motion to dismiss." Hilton, 599 F.3d at 902. "To evaluate an anti-SLAPP
motion, the court must 'consider the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.'" Doe v. Gangland Prods.,
730 F.3d 946,953 (9th Cir. 2013) (quoting Cal. Code Civ. Proc.§ 425.16(b)(2)).
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832, 840 (9th Cir. 2001)). If, however, "the court denies an anti-SLAPP motion to strike,

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the parties continue with discovery." 4 See§ 425.16(g).

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To make a showing under the first prong, plaintiffs need only establish a prima

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facie case that their alleged actions fell into one of the categories listed in section 425.16,

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subdivision (e). Flatley v. Mauro, 39 Cal. 4th 299, 314 (2006). They may do so by

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identifying the allegations of protected activity in the complaint and the claims for relief

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supported by them. (See Baral v. Schnitt, supra, 1 Cal. 5th at p. 396, 205 Cal. Rptr. 3d

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475, 376 P.3d 604.) As such, while the analysis of the first prong normally focuses on

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the allegations in the complaint, in this case, because the Defendants' have filed a

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counterclaim, and this Order pertains to Plaintiff's Motion to Strike, the analysis will

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focus on the Defendants' counterclaim for trespass.

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Here, Plaintiff alleges that his actions arose from acts in furtherance of his right of

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petition under the United States and California Constitutions in connection with a public

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issue as defined in section 425.16, subdivision (e)(4).

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"On September 19, 2017, Langer went to the property at 3002 Barnett Ave.,
San Diego, California. He had multiple reasons for going: (1) to shop at the
1 Stop Smoke Shop, (2) to check on prices and see what was offered at the
Gour Maine Lobster, and, (3) to determine if these businesses discriminated
against persons with disabilities by failing to provide accessible facilities."

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(Doc. No. 21 at 2.)

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Plaintiff, an active ADA litigator claims his entering Defendants' property was an

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act in furtherance of his right of petition since he was investigating to determine if

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Defendants' businesses "discriminated against persons with disabilities by failing to

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provide accessible facilities." 5 Id. Because these allegations form the sole basis of

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Once the plaintiff's case has survived the motion, the anti-SLAPP statute no longer
applies and the parties proceed to litigate the merits of the action." Batzel, 333 F.3d at
1024.
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"When Langer arrived at the property, he saw a sign in the window stating that
parking for 1 Stop Smoke Shop was located to the left (or West side) of building ....
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1 Defendants' state law trespass claim, Plaintiff contends the claim arises directly from the
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activity, which the Plaintiff characterizes as protected.
Conduct in furtherance of the exercise of free speech in connection with a public

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issue or an issue of public importance qualifies as protected activity under the Anti-

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SLAPP statute. Cal. Civ. Code§ 425.16(e)(4). Defendants need not show that their

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activities are protected as a matter of law to meet their initial burden; they must only

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make a prima facie showing of constitutional protection. City ofLos Angeles v. Animal

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Defense League, 135 Cal. App. 4th 606,621, 37 Cal. Rptr. 3d 632 (2006) (unless

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defendant concedes illegality of conduct, "a court must generally presume the validity of

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the claimed constitutional right in the first step of the anti-SLAPP analysis.") (quotation

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and citation omitted). It is apparent that Plaintiffs determination that Defendants'

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property was not in compliance with ADA requirements is a matter of public interest in

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the subject community, and the challenged conduct is alleged to be petition activity by a

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disability activist in furtherance of ensuring ADA compliance in San Diego, California.

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(See Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal.

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App. 4th 1228, 1239.) Accordingly, Plaintiff has met his initial burden on the Special

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Motion to Strike.

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The Defendants must now show a probability of prevailing on their claim of

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trespass. This Court assesses the procedural standards applicable to an Anti-SLAPP

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motion. Therefore, the Court assesses Defendant's burden as articulated by the Ninth

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Circuit in Hilton, 599 F.3d at 902 (second stage of Anti-SLAPP analysis is "similar to the

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drove to the left/West side of building, he saw yet another sign at the front entrance of
parking lot that said, 'Smoke Shop Parking' with an arrow pointing into the parking lot.
... Langer drove around that parking lot, looking for a handicap parking space and taking
photos from his van.... Langer also drove his van into the parking lot on the right/East
side of the building where the Gour Main Lobster is located .... The fencing in the front
of this parking lot has banner signs for both [Smoke Shop and Lobster Shop] ... Langer
circled that parking lot, looking for a handicap parking space and taking photos from his
van." (Doc. No. 21 at 2-3.)
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1 one courts make on summary judgment, though not identical."). The Court does not
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assess the sufficiency of a defendant's evidence prior to commencement of discovery but

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instead looks to whether the trespass claim is supported by a prima facie showing of facts

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to support a judgment in a defendant's favor if its evidence is credited. Id. The Court

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may order additional discovery prior to deciding an Anti-SLAPP motion if good cause is

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shown. See, e.g., New.Net, Inc. v. Lavasofi, 356 F. Supp. 2d 1090, 1101-02 (C.D. Cal.

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2004) (finding no "direct collision" between Rule 56 and section 425.16 considering the

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provision allowing for additional discovery when necessary).

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As stated supra, Defendants have counter-claimed against Plaintiff for trespass.

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"Trespass is an unlawful interference with possession of property." Staples v. Hoejke,

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189 Cal. App. 3d 1397, 1406 (1987). The elements of trespass are: (1) the plaintiffs

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ownership or control of the property; (2) the defendant's intentional, reckless, or

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negligent entry onto the property; (3) lack of permission for the entry or acts in excess of

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permission; (4) harm; and ( 5) the defendant's conduct was a substantial factor in causing

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the harm. (See CACI No. 2000.)

'

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Here, Defendants' counter-claim provides enough evidence to establish a prima

17 facie case that Plaintiffs entry on the property was trespassing. (See Doc. No. 21 at 1118

12.) The Court notes that a "plaintiff 'need only establish that his or her claim has

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minimal merit to avoid being stricken as a SLAPP)." Soukup v. Law Offices ofHerbert

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Hafif, 39 Cal. 4th 260, 291 (2006). Plaintiff attempts to refute Defendants' claim but

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ultimately falls short of doing so with his Motion to Strike. (See Doc. No. 21.)

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Defendants allege on September 27, 2017, Plaintiff entered, Defendants' property,

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without authorization. Defendants contend the parking lots were clearly marked as

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private and not intended for public parking. 6 (Doc. No. 22 at 1.) Plaintiff admits entering

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"These signs say, 'OPEN PUBLIC PARKING PROHIBITED-NO
TRESPASSING-ALL UNAUTHORIZED VEHICLES WILL BE TOWED AT
VEHICLE OWNERS EXPENSE'. In addition to the signs and gates outside the lot,
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1 "the parking lots and that entry, for however long, was in fact not authorized." 7 Id. By
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entering and remaining on the property for investigative purposes, Plaintiff deprived the

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Defendants of their full enjoyment of the subject property. Plaintiff claims his presence

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on the property was protected conduct, Defendants' argue it was not, and "even ifit was,

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the evidence is more than sufficient to establish a primafacie case for trespass." 8 (Doc.

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No. 22 at 1.)

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The Court agrees and finds that Defendants have demonstrated the trespass claim

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is supported by a prima facie showing of facts enough to support a judgment in

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Defendants' favor if the evidence is credited. Therefore, Plaintiff's Special Motion to

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Strike must be DENIED.

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II. MOTION FOR SUMMARY JUDGMENT

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Plaintiff brings two claims against Defendant: (1) violations of the Americans with

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Disabilities Act and (2) violation of the Unruh Civil Rights Act. (Doc. No. 1.) Under the

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Unruh Civil Rights Act, "[a] violation of the right of any individual under the [ADA] shall

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also constitute a violation of this section." Cal. Civ. Code§ 51(f). The Court accordingly

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examines Plaintiff's ADA claim.

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throughout the inside of the lot, there are multiple signs saying' PRIVATE PROPERTY 21 NO TRESPASSING'. 'PRIVATE PROPERTY - NO PUBLIC PARKING-TENANTS
ONLY". (Doc. No. 22 at 2.)
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"These signs say, 'OPEN PUBLIC PARKING PROHIBITED-NO
23 TRESPASSING-ALL UNAUTHORIZED VEHICLES WILL BE TOWED AT
VEHICLE OWNERS EXPENSE'. In addition to the signs and gates outside the lot,
24 throughout the inside of the lot, there are multiple signs saying' PRIVATE PROPERTY 25 NO TRESPASSING'. 'PRIVATE PROPERTY -NO PUBLIC PARKING-TENANTS
ONLY". (Doc. No. 22 at2.)
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Plaintiff argues that because he is a paraplegic and an 'active ADA litigator' who
27 was scouting out potential ADA targets he planned on 'hauling' 'into court', to have
them penalized, his admitted trespass constitutes activity protected under California's
28 anti-SLAPP statute." (Doc. No. 22 at 1.)
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"A party is entitled to summary judgment if the 'movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter

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of law."' City of Pomona v. SQM North America Corp., 750 F.3d 1036, 1049 (9th Cir.

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2014) (quoting Fed. R. Civ. P. 56(a)). "The moving party initially bears the burden of

5 proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig.,
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627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323

7 (1986)). In determining whether to grant or deny summary judgment, it is not a court's
8 task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91
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F.3d 1275, 1279 (9th Cir. 1996). Rather, a court is entitled to rely on the nonmoving party

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to "identify with reasonable particularity the evidence that precludes summary judgment."

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See id. "'Where the record taken as a whole could not lead a rational trier of fact to find

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for the nonmoving party, there is no genuine issue for trial."' City ofPomona, 750 F.3d at

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1049.

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A. Plaintiffs Americans with Disabilities Act Claim

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Title III of the ADA prohibits discrimination in public accommodations and states

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that "[ n]o individual shall be discriminated against on the basis of disability in the full and

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equal enjoyment of the goods, services, facilities, privileges, advantages, or

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accommodations of any place of public accommodation by any person who owns, leases

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(or leases to), or operates a place of public accommodation." Kohler v. Bed Bath & Beyond

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of California, LLC, 780 F.3d 1260, 1263 (9th Cir. 2015) (citation omitted). Although

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restaurants are places of public accommodation, see 42 U.S.C. § 12181(7), the law also

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recognizes that in "'mixed-use' facilities, where only part of the facility is open to the

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public, the portion that is closed to the public is not a place of public accommodation and

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thus is not subject to Title III of the ADA." Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048

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(9th Cir. 2008).

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"To prevail on a Title III discrimination claim, the plaintiff must show that (1) [the

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plaintiff] is disabled within the meaning of the ADA; (2) the defendant is a private entity

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that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was
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1 denied public accommodations by the defendant because of his disability." 9 Molski v. MJ
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Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (internal alteration original).

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Plaintiff, a paraplegic who cannot walk, meets the ADA definition of a person with

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a disability. (Doc. No. 24 at 7-8.) Disability under the ADA is defined as "[a] physical or

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mental impairment that substantially limits one or more major life activities." 42 U.S.C. §

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12102(1). "Major life activities" include walking and standing. 42 U.S.C. § 12102(2).

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This element, therefore, is satisfied.

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Second, Defendants Milan and Diana Kiser are the trustees of the Milan and Diana

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Kiser Revocable Trust. (Doc. Nos. 25-26 at 3.) The trust owns the subject property which

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Defendants claim is a mixed-use property consisting of both residential and commercial

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units. Id. Defendant Frank P. Ro fail is the owner and operator of the Smoke Shop. (Doc.

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No. 1 at 3.) Defendant David Matthew Taylor is the owner and operator of the Lobster

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Shop. Id. It is undisputed that the Smoke Shop and the Lobster Shop are both located on

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the subject property which is owned by the Milan and Diana Kiser Revocable Trust. It is

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also undisputed that businesses are sales establishments and, therefore, are places of public

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accommodation under the ADA. 42 U.S.C. § 12181(7)(E). A reasonable jury would

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necessarily find that in their various connections to the property, Defendants "own, operate,

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lease, or lease to a place of public accommodation." Although Defendants may be subject

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to different restrictions and potential liability, they are all subject to ADA restrictions in

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some way.

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uncontrovertible.

As such, Defendants' varying obligations to comply with the ADA are

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The third element is satisfied when there is a violation of applicable accessibility
standards. Chapman v. Pier 1 Imports (US.), Inc., 631 F.3d 939,945 (9th Cir. 2011).
The Title III accessibility standards come in three broad categories: the "new
construction" provisions, which apply to public accommodations constructed after
January 26, 1992; the "alteration" provisions, which apply to post-January 26, 1992
alterations to buildings that existed as of that date; and the "readily achievable"
provisions, which apply to unaltered portions of buildings constructed before January 26,
1992. See Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831,847 (N.D. Cal. 2011).
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Third, a plaintiff can demonstrate that he was denied public accommodations by the

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defendant because of his disability "if the defendant failed to remove architectural barriers

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where such removal was readily achievable." Lozano v. CA. Martinez Family Ltd. P 'ship,

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129 F. Supp. 3d 967,972 (S.D. Cal. 2015); see 42 U.S.C. § 12182(b)(2)(A)(iv). Under the

5 ADA, removing barriers includes "[i]nstalling grab bars in toilet stalls; [r]earranging toilet
6 partitions to increase maneuvering space; [i]nsulating lavatory pipes under sinks to prevent
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bums; [r]eposition the paper towel dispenser in a bathroom;" and "[c]reating designated

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accessible parking spaces." 28 C.F.R. § 36.304(b)(12-18). A facility's accessibility is

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defined in part by the ADA Accessibility Guidelines. Chapman v. Pier I Imports (U.S.)

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Inc., 631 F.3d 939,945 (9th Cir. 2011).

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Plaintiff claims that summary judgment is warranted due to the lack of ADA

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accessible parking, and paths of travel. 10 (Doc. No. 24 at 9-12.) The Court finds that

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Plaintiff has not provided sufficient evidence on aspects of this element to warrant

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summary judgment.

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I. Lack ofAccessible Parking

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Plaintiff claims there is no genuine dispute that on September 19, 2017, the parking
lots on Defendants property lacked ADA compliant parking spaces. (Doc. No. 24.)

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Places of public accommodation must have accessible parking stalls with an access

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aisle adjacent to them. 1991 ADAAG § 4.1.2 (5) (a) & (b); 2010 ADAAG § 502.2.

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Standard accessible parking stalls can have a 60-inch wide access aisle while van

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accessible stalls must have a 96-inch wide access aisle. Id.

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Both of the barriers, Plaintiff contends, impede his ability to fully patronize the
property in contravention of the ADA. (Doc. No. 24 at 9-12.) Plaintiff also moves for
summary judgment as to his claim under the Unruh Civil Rights Act, which incorporates
the provisions of the ADA by providing, in pertinent part, that: "[a] violation of the right
of any individual under the federal [ADA] shall also constitute a violation of [the Unruh
Civil Rights Act]." Cal. Civ. Code § 5 l(f). California Civil Code § 52(a) sets a
minimum of$4,000 in damages for each violation of the Unruh Civil Rights Act.
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1

In support of his Motion, Plaintiff uses photos of what he purports to be the

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Defendants' property consisting of the Smoke Shop, Lobster Shop and both parking lots

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on September 27, 2017. (Doc. No. 24, Ex. 1-4.) Plaintiff also provides photos taken by

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his investigators Evan Louis on December 20, 2017, and Zion Sapien on September 10,

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2018, of Defendants' property, all purporting to show that both parking lots lacked ADA

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compliant parking spaces. (See Doc. No. 24.)

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Defendants contend that on September 27, 2017, the subject property was a

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"'mixed-use' facility" providing parking ONLY for residential tenants, the auto shop

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located next to the West Parking lot, and one spot each for the Smoke Shop and Lobster

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Shop owner\employee. (Doc. Nos. 25, 26 at 8-10.) Defendants further assert that the

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parking lots contain signage indicating "Private Property-No Trespass", "Private Property

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- No public Parking," and "Open Public Parking Prohibited - No Trespassing." Id.

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Moreover, Defendants argue that the signage which Plaintiff and his investigators allege

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proves the Smoke Shop and Lobster Shop offered customer parking on the

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aforementioned parking lots do not say or indicate what Plaintiff claims. Id. at 7-8.

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Specifically, Plaintiff submitted photos which he claims establishes the property is a

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place of public accommodation and demonstrates there was customer parking available

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for patrons of the Smoke Shop and Lobster Shop in the parking lots. Defendants dispute

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Plaintiffs contentions arguing that just because there are signs on the East parking lot

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fence containing the name of the businesses does not mean that the parking lots behind

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the fence are a place of public accommodation. Moreover, the signs in the window do

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not point to any parking lot. Furthermore, the sign on the sidewalk "points to the alley."

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(Doc. Nos. 25, 26 at 7.) Finally, Defendants allege the photos taken by Plaintiffs

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investigators are no less deceptive. "Mr. Zapien states he saw a sign indicating a whole

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row of parking for the Lobster Shop in the East lot." Id. (Doc. No. 24, Louis Dec. 'i\7,

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Plaintiffs Ex. 4:8). However, the photo that Mr. Zapien references show a "sign inside

27

the lot, pointing outside of the lot, towards the street," it does not indicate a "row of

28

parking for the Lobster Shop and Wallpaper Shop." Id. As to Mr. Louis's assertion that
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1 his photos show "a sign in the parking lot indicating parking for the 1 Stop Smoke Shop"
2

and a sign in the window of the Smoke Shop stating "PARKING with an arrow pointing

3

left" towards the West lot, both are equally misleading because none of the signs show

4

that the West log belongs to the Smoke Shop. (Doc. No. 24, Plaintiff's Ex. 4.; Doc. Nos.

5 25, 26 at 7.)
6

The Court finds a genuine dispute here. "Credibility determinations, the weighing

7

of the evidence, and the drawing of legitimate inferences from the facts are jury

8

functions, not those of a judge, whether he is ruling on a motion for summary judgment

9

or for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

10

Similarly here, determining Defendants' respective liability and whether or not the

11

parking lot conditions violated the ADA are "jury functions." Id. The contrast between

12

Plaintiff's and Defendants' photos of the lots as well as conflicting declarations fail to

13

"establish the absence of a genuine issue of material fact." Celotex, 477 U.S. 323.

14 Defendants' declarations about the parking lot conditions in February 2017 directly
15

conflict with allegations in Plaintiff's Complaint. Moreover, both parties offered

16

photographic evidence of the Smoke Shop and Lobster Shop and the photos greatly

17

differ. There remains a genuine dispute as to material facts, whether Defendants provide

18

customer parking, and if they do, whether they failed to provide ADA compliant parking

19

in February 2017.

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21
22

With regards to the Plaintiff's cause of action regarding a lack of ADA compliant
parking spaces in both lots, Plaintiff's Motion for Summary Judgment is DENIED.
2. Lack ofAccessible Paths of Travel

23

Plaintiff also claims that the Lobster Shop violated the ADA by not providing

24

accessible paths of travel. (Doc. No. 24 at 11-12.) Under the ADA, places of public

25

accommodation must provide an accessible path of travel connecting all buildings,

26

facilities, elements and spaces within the same site. 1991 Standards § 4.3.2(2); 2010

27

Standards § 206.2.2. Places of public accommodation must also provide an accessible

28

route within the boundary of a site from the accessible parking spaces to the accessible
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3: 18-cv-00195-BEN-NLS

1 building entrance the parking spaces serve. 1991 Standards§ 4.3.2.(1); 2010 Standards§
2

206.2.1. To be ADA-compliant, an accessible path of travel must be at least thirty-six

3

inches wide, except at doorways. 1991 Standards § 4.3.3; 2010 Standards § 403.5.1.

4

Further, when the path of travel provides a side approach to the hinge side of an outward-

s

swinging door, the minimum permissible width of the path of travel is either fifty-four or

6

sixty inches, depending on the amount of clearance on the latch side of the door. 1991

7

Standards§ 4.13.6 (Fig. 25); 2010 Standards§ 404.2.4.1.

8

Additionally, Plaintiff asserts Defendants did not provide ADA-compliant

9

merchandise aisles inside the Lobster Shop. (Doc. No. 24 at 12.) Specifically, "Plaintiffs

10

investigator found that the merchandise aisles inside the Lobster Shop narrowed to less

11

than 36 inches in width. Id. Defendants dispute this claim arguing that the photos taken

12

by Plaintiffs investigator Evens Louis do not show any paths of travel with a width of less

13

than 36". (Doc. Nos. 25, 26 at 9.)

14

The width of the Lobster Shop aisles in September 2017 is genuinely disputed.

15

Plaintiff has not met his burden of "establishing the absence of a genuine issue of material

16

fact" regarding the width of the aisles in September 2017. Celotex, 477 U.S. at 323.

17

Although Plaintiff provides a personally sworn declaration and photos from his

18

investigator, Evens Louis, Plaintiff does not include any measurements of the aisles.

19

Moreover, the photos the Plaintiff provided make the aisles appear reasonable and in

20

compliance with ADA requirements. (See Doc. No. 24.)

21

Defendants argue that Plaintiff"never encountered any barriers in the parking lots"

22

and therefore he lacks standing to sue to have any other alleged barriers removed. (Doc.

23

Nos. 25, 26 at 9-10.) Defendants also argue that because "there were no non-compliant

24

paths of travel as of the court-mandated site inspection," Plaintiffs claim is moot. 11 Id.

25
26
27
11

28

"Because a private plaintiff can sue only for injunctive relief under the ADA, a
defendant's voluntary removal of alleged barriers prior to trial can have the effect of
14
3: 18-cv-00195-BEN-NLS

1

Given the persuasive evidence on both sides, a reasonable jury could return a verdict

2

for the Defendants. Anderson, 477 U.S. at 249 (internal citations omitted). The Court finds

3

that a jury must determine Plaintiffs credibility and decide whether his claim has merit.

4

5

With regards to Plaintiffs claims regarding lack of accessible paths of travel,
Plaintiffs Motion for Summary Judgment is DENIED.

6

B. Plaintiffs Unruh Civil Rights Act Claim

7

Plaintiffs claims under the Unruh Civil Rights Act are based on his contention that

8

Defendants violated the ADA. (Doc. No. 24 at 12.) Therefore, Plaintiffs Motion for

9

Summary Judgment on his Unruh Civil Rights Act Claim is DENIED as to the parking,

10

and paths of travel allegations.

11
12
13

CONCLUSION

Accordingly, for the reasons set forth above, Plaintiffs Motion to Strike is DENIED
and Motion for Summary Judgment is DENIED.

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15
16
17

DATED: -t'f-+-#---+--'' 2019
Ii.'-l!Mi!•er T. Benitez

United States District Court

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20
21
22
23
24
25
26
27

28

mooting a plaintiffs ADA claim. Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th
Cir. 2011).
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3: 18-cv-00195-BEN-NLS