Langer v. Vergara et al

Filing 43

ORDER denying 28 Motion for Summary Judgment. Signed by Judge M. James Lorenz on 11/16/2020. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRIS LANGER,

Case No.: 18-cv-2401-L-BGS
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
SUMMARY JUDGMENT

FERMIN G. VERGARA; ROSA
VERGARA; BAJA CALIFORNIA
CYCLE USA, INC.,

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Defendants.

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On January 17, 2020, Plaintiff filed a Motion for Summary Judgment asserting a

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that Defendants failed to provide van accessible parking at Baja California Cycle, in
violation of the Americans with Disabilities Act (“ADA”) and Unruh Civil Rights Act.
Defendants filed an Opposition on February 3, 2020. Plaintiff filed a Reply brief on
February 11, 2020. The motion is decided on the briefs without oral argument pursuant
to Civil Local Rule 7.1(d)(1). For the reasons which follow, the motion is denied.
I.

BACKGROUND
Plaintiff is a paraplegic who uses a wheelchair for mobility. He has a specially

equipped van with a ramp that deploys from the passenger side of the van to
accommodate his wheelchair. Baja California Cycle (or “BCC”) is a business
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establishment and place of public accommodation in Chula Vista, California. On

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October 11, 2018, Plaintiff went to Baja California Cycle to shop, as well as to assess the

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business’ compliance with disability access laws.

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According to Plaintiff, Baja California Cycle has a parking lot with spaces

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available for customers. (Motion at 2). At the time of his visit, Plaintiff observed that one

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parking stall had a faded blue line next to the space, along with a very faded International

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Symbol of Accessibility (“ISA”) painted on the surface of the stall. (Id.) However, the

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parking space did not have any signage indicating it was “van accessible.” More

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importantly, the adjacent access aisle did not have “NO PARKING” painted on it,

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therefore Plaintiff did not have any safe way to park because if he parked in the ISA

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space, someone could park next to him which would trap him out of his vehicle.

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An investigator for Plaintiff, Zion Sapien, conducted an investigation of Baja

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California Cycle on October 16, 2018, and found that of the five parking spaces offered

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for customers, the one marked as reserved for persons with disabilities was faded, had no

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adjacent access aisle, and the sign in front of the parking space designating it as reserved

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for persons with disabilities was facing the wrong way. (Id. at 3). On June 16, 2019,

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Corey Taylor, a second investigator working on behalf of Plaintiff, conducted a follow-up

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assessment of BCC. Taylor noted that there were still five customer parking spaces at

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BCC, but the space designated for persons with disabilities had been moved to the far

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left. (Id.) The space did not have the required “NO PARKING” lettering in the access

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aisle, and there was no signage indicating that it was van accessible. Moreover, the

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parking space and aisle did not comply with the required ADA measurements because

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they were not large enough and the access aisle had a slope. (Id. 3-4).

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Plaintiff filed a complaint alleging that Defendant's failure to provide van

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accessible parking and failure to maintain the usability of accessible parking

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discriminates against persons with disabilities in violation of the Americans with

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Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”); (2) the Unruh Civil Rights Act, Cal.

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Civ. Code § 51 et seq. (“Unruh”). Specifically, Plaintiff alleges that Defendants failed to
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make reasonable modifications, failed to remove architectural barriers, and failed to make

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alterations to ensure the facilities were readily accessible and usable by individuals with

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disabilities under 42 U.S.C. §§ 12182(b)(2)(A)(ii) & (iv) and §121383(a)(2). Plaintiff

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seeks injunctive relief to remove the barriers and statutory damages of $4,000 under the

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Unruh Civil Rights Act. (Mot. at 5-7). Plaintiff filed this motion for summary judgment

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seeking an order from this Court requiring Defendants to provide and maintain accessible

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parking at Baja California Cycle and judgment in favor of Plaintiffs and against

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Defendants in the amount of $4,000.

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Defendant filed an opposition arguing that Plaintiff has remedied the alleged ADA

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violations since the filing of the complaint and that a proper van accessible parking space

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now exists on the subject property. (Opposition at 2). As a result, Defendant argues that

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Plaintiff’s claim is now moot, or that there is a genuine issue of material fact if Plaintiff

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alleges that Defendant continues to be in non-compliance. (Id.)

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II.

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DISCUSSION
Federal Rule of Civil Procedure 56 empowers the court to enter summary

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judgment on factually unsupported claims or defenses, and thereby "secure the just,

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speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477

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U.S. 317, 325, 327 (1986). Summary judgment or adjudication of issues is appropriate if

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depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show there is no genuine dispute as to any material fact and the moving

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party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c)(1).

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The burden on the party moving for summary judgment depends on whether it
bears the burden of proof at trial.
When the party moving for summary judgment would bear the burden of
proof at trial, it must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at trial. In such a case,
the moving party has the initial burden of establishing the absence of a
genuine issue of fact on each issue material to its case.

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See C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480

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(9th Cir. 2000) (citations omitted). If the nonmoving party would bear the burden at trial,

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the moving party can meet the burden on summary judgment by pointing out the absence

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of evidence with respect to any one element of the opposing party’s claim or defense.

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See Celotex, 477 U.S. at 325.

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When the moving party has carried its burden . . ., its opponent must do
more than simply show that there is some metaphysical doubt as to the
material facts[, but] must come forward with specific facts showing that
there is a genuine dispute for trial. Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.

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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)

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(internal quotation marks, citations and footnote omitted). The nonmoving party can

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make its showing by “citing to particular parts of materials in the record . . .; or [¶]

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showing that the materials cited do not establish the absence or presence of a genuine

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dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

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Fed. R. Civ. Proc. 56(c)(1).

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[W]here the nonmoving party will bear the burden of proof at trial, [it must]
go beyond the pleadings and by [its] own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial” on all matters as to which it
has the burden of proof.

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Celotex, 477 U.S. at 324 (internal quotation marks omitted).

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Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge
. . .. The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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Plaintiff seeks summary judgment that Defendant violated the ADA, 42 U.S.C. §

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12101 et seq, and the Unruh Civil Rights Act (“Unruh”) Cal.Civ. Code §§ 51-53. The

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ADA sets out a general rule:

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No individual shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place of public
accommodation.

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42 U.S.C. § 12182(a).

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Plaintiff's theory of the case is that Defendant discriminated against him under 42
U.S.C. § 12182(b)(2)(A)(iv), which defines discrimination as:

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a failure to remove architectural barriers, and communication barriers that
are structural in nature, in existing facilities, and transportation barriers in
existing vehicles and rail passenger cars used by an establishment for
transporting individuals (not including barriers that can only be removed
through the retrofitting of vehicles or rail passenger cars by the installation
of a hydraulic or other lift), where such removal is readily achievable.

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Plaintiff further alleges that Defendants discriminated against him under 42 U.S.C.
§ 12183(a)(2) which states that discrimination includes:

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. . . a failure to make alterations in such a manner that, to the maximum
extent feasible, the altered portions of the facility are readily accessible to
and usable by individuals with disabilities, including individuals who use
wheelchairs. Where the entity is undertaking an alteration that affects or
could affect usability of or access to an area of the facility containing a
primary function, the entity shall also make the alterations in such a manner
that, to the maximum extent feasible, the path of travel to the altered area
and the bathrooms, telephones, and drinking fountains serving the altered
area, are readily accessible to and usable by individuals with disabilities
where such alterations to the path of travel or the bathrooms, telephones, and
drinking fountains serving the altered area are not disproportionate to the
overall alterations in terms of cost and scope.

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To prevail on this claim, a plaintiff must establish that:

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(1) he is disabled as that term is defined by the ADA; (2) the defendant is a
private entity that owns, leases, or operates a place of public
accommodation; (3) the defendant employed a discriminatory policy or
practice; and (4) the defendant discriminated against the plaintiff based upon
the plaintiff's disability by (a) failing to make a requested reasonable
modification that was (b) necessary to accommodate the plaintiff's disability.

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Karczewski v. DCH Mission Valley LLC, 862 F.3d 1006, 1010 (9th Cir. 2017) (internal
quotation marks and citation omitted).
Plaintiff is a paraplegic who uses a wheelchair for mobility. (Langer Dec. ¶ 2 Ex. 2
[ECF No. 28-3.]) Accordingly, Plaintiff is “disabled” within the meaning of the ADA, 42
U.S.C. § 12102(a)(1)A).
Baja California Cycle is a service establishment that qualifies as a place of public
accommodation. 42 U.S.C. § 12181(7)(E). Defendant Baja California Cycle USA, Inc. is
currently the owner of the Baja California Cycle. (Baja California Cycle USA, Inc.,
Resp. to Pl’s RFA [ECF No. 28-16.]). Defendants Fermin G. Vergara and Rosa Vergara
are the owners of the property on which Baja California Cycle is located. (Fermin G.
Vergara Resp. to Pl.’s RFA) [ECF No. 28-11]; Rose Vergara Resp. to Pl’s RFA [ECF
No. 28-14.]) Therefore, Plaintiff has satisfied the second element because Defendants are
private entities that own, lease, or operate a place of public accommodation.
As to the third element, the Court considers whether Defendants employed a
discriminatory practice by failing to provide and maintain the van accessible parking
space. “Once a disabled individual has encountered or become aware of alleged ADA
violations that deter his patronage of or otherwise interfere with his access to a place of
public accommodation, he has already suffered an injury in fact traceable to the
defendant's conduct…” Doran v. 7-Eleven, 524 F.3d 1034, 1042 (9th Cir. 2011).
A court looks to the ADA Accessibility Guidelines (“ADAAG”), which dictate
specific compliance requirements, when determining whether an architectural barrier
exists. See Wyatt v. Ralphs Grocery Company, 65 Fed.Appx. 589, 590 (9th Cir. 2003). A
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violation of ADAAG standards “indicate the existence of an architectural barrier.” Id.

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These guidelines “lay out the technical structural requirements of places of public

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accommodation” in order to carry out the purpose and provisions of the ADA, 42 U.S.C.

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§ 12186(b). Fortyune v. Am. Multi–Cinema, Inc., 364 F.3d 1075, 1080–81 (9th

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Cir.2004).“ “The ADAAG's requirements are as precise as they are thorough, and the

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difference between compliance and noncompliance with the standard of full and equal

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enjoyment established by the ADA is often a matter of inches.” Chapman v. Pier 1

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Imports (U.S.) Inc., 631 F.3d 939, 945-46 (9th Cir. 2011).

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Under the 2010 ADAAG standards, businesses that provide customer parking must

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provide a specific number of handicap parking spaces based on the total number of

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parking spaces available. 28 C.F.R. pt. 25, App. D, §4.1.2(5); 36 C.F.R. pt. 1191,

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Appendix C § 208. For every six spaces, at least one must be van accessible. 36 C.F.R.

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Part 1191, Appendix B, §§ 208.2, 208.2.4. Van parking spaces must be at least 132

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inches wide minimum, with an adjacent access aisle that is 60 inches wide minimum,

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unless the space is 96 inches wide and the aisle is also 96 inches wide. 36 C.F.R. Part

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1191, §§ 502.2, 502.3, 502.3.2.

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The color of marking and length of the parking space are defined by State or local

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laws or regulations. 36 C.F.R. Part 1191, § 502.3.3. The parking space surface must have

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a profile view of a wheelchair and occupant that is 36 inches by 36 inches. CBC

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§1129B.4. The California Building Code states that all accessible parking spaces must be

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outlined in blue and show an International Symbol of Accessibility which consists of an

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individual in a wheelchair. CBC § 1129B4; 2010 Standards §§ 4.1.2(7)(a), 4.30.7.

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Access aisles must be outlined with a blue painted borderline and marked with hatch lines

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in a contrasting color to the parking lot surface with the words “NO PARKING” at least a

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foot high painted on the access aisle. CBC §11B-502.3.3. Each parking space must be at

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least 216 inches long. CBC § 11B-502.2.

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In addition, the access aisle must be level to the parking space and not have any
slope. 36 C.F.R. Part 1191, Appendix D § 502.4. According to the 2010 Standards and
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CBC, an accessible parking space must display a sign with the International Symbol of

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Accessibility, and under the CBC the sign must be in white on a blue background. CBC §

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1129B.4. The sign must be posted so that it cannot be obscured by a vehicle parked in the

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space. Id. The 2010 Standards also require that van parking spaces must contain a

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designation that it is “van accessible” and be 60 inches above the floor or ground surface

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to bottom of the sign. 36 C.F.R., Part 1191, Appendix D §502.6.

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When Plaintiff visited Baja California Cycle in 2018, the parking lot contained one

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space with a very worn blue and white International Symbol of Accessibility, and a faded

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blue line outlining the parking space. (Decl. Sapien 1-2 [ECF No. 28-5]; Ex 6

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Photographs [28-6.]) There was no access aisle for Plaintiff to deploy his wheelchair

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ramp. (Id.) No signage was present indicating it was a van accessible parking space. (Id.)

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As a result of these failures to comply with the 2010 Standards and California Building

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Codes, Defendants engaged in a discriminatory practice by failing to provide and

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maintain the van accessible parking space for Plaintiff to use for his full and equal

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enjoyment of the business. Doran, 524 F.3d at 1042; see also Lozano v. C.A. Martinez

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Family Limited Partnership, 129 F.Supp. 3d 967, 973 (S.D. Cal 2015).

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The inquiry does not stop here. The Court must further determine whether the

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Defendants made a reasonable modification that was necessary to accommodate the

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plaintiff's disability. Karczewski, 862 F.3d at 1010.

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Defendants argue that the alleged ADA violations have now been remedied

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because a proper van accessible space exists on the subject property, making Plaintiff’s

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claim moot. (Oppo. at 2.) As proof, Defendants filed photographs of the allegedly

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compliant parking space. (Id. Ex. A). If Plaintiff’s challenge the compliance of the new

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space, Defendants contend that there is a “triable” issue of fact. (Id.)

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In response, Plaintiff claims that it is impossible to tell from the photos whether the

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space has been brought into compliance. Specifically, Plaintiff argues that there is no

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proof that Defendants made changes to the space since his investigator conducted his

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follow-up investigation in July 2019, when he found that the parking stall did not comply
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because it measured only 103 inches wide and the access aisle was only 36 inches wide,

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with the access aisle having slopes up to 2.6%. (Plaintiffs Reply at 3).

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The parties agree that the accessible parking space was moved and modified after

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the filing of this lawsuit. (Joint Statement of Undisputed Facts at 4 [ECF No. 35.])

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Plaintiff’s investigator, Corey Taylor, visited the site after these modifications and noted

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that the parking space did not have the “NO PARKING” lettering in the access aisle.

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(Decl. Taylor ¶ 4; Ex 7, at 1-4 [28-7; 28-8.]) There was also no signage designating the

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space as van accessible (Decl. Taylor ¶ 5; Ex 7, at 5 [28-7; 28-8.]) Taylor also measured

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the slope of the stall and adjacent access aisle with a digital level which indicated that the

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aisle had slopes measuring up to 2.6% and the stall had cross slopes measuring up to

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3.8%, but as noted above, no slope can exist under the Standards and CBC. (Decl. Taylor

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¶ ; Ex 7, [28-7; 28-8.]) In addition, the stall measured 103 inches wide and the access

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aisle was 36 inches wide, which does not comply with the requirements. (Id.)

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Defendants have not provided evidence that the new parking space complies with

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the 2010 Standards and CBC requirements, but instead only provided the Court with

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photographs of the new space. Without more specific information as to the measurements

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of the parking space, the slope, and signage, it is impossible to tell from the photographs

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whether Defendants’ changes constitute a reasonable modification that was necessary to

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accommodate the plaintiff's disability. See Karczewski, 862 F.3d at 1010. However, the

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photographs are sufficient to raise genuine issues of material fact as to Defendants’

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compliance with the ADA architectural barrier requirements. Therefore, the Court

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cannot summarily adjudicate this cause of action. See id. For the same reasons, the Court

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does not reach Plaintiff's derivative state law claims or his request for injunctive relief.

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Accordingly, Plaintiff’s motion for summary judgment is denied,.

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III.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is DENIED

without prejudice.
IT IS SO ORDERED.

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Dated: November 16, 2020

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