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6 7 8 United States District Court 9 Central District of California 10 11 BARBARA PHELPS, Case №. 2:18-cv-06633-ODW (MRWx) 12 Plaintiff, ORDER GRANTING PS 13 v. SOUTHERN’S MOTION FOR 14 PS LOS ANGELES - PICO BLVD., INC., SUMMARY JUDGMENT [21] 15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiff Barbara Phelps (“Phelps”) brings the present action against Defendant 19 PS Southern California One, Inc., erroneously sued and served as PS Los Angeles - Pico 20 Blvd., Inc. (“PS Southern”), for alleged violations of the Americans with Disabilities 21 Act (“ADA”), and the Unruh Civil Rights Act (“Unruh”). (Compl. ¶ 2, ECF No. 1.) 22 PS Southern now moves for summary judgment (“Motion”). (Def.’s Mot. Summ. J. 23 (“Mot.”), ECF No. 21.) For the reasons that follow, the Court GRANTS PS Southern’s 24 Motion, and DISMISSES Phelps’s Unruh claim WITHOUT PREJUDICE.1 25 26 27 1 After considering the papers filed in connection with the Motion, the Court deemed the matter 28 appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 II. FACTUAL BACKGROUND 2 The undisputed facts establish the following. Phelps is a paraplegic who uses a 3 walker for mobility. (Statement of Uncontroverted Facts (“SUF”) P1, ECF No. 22.) PS 4 Southern operates the Public Storage located at 4147 W. Pico, Los Angeles, California 5 (the “Facility”). (Compl. ¶ 2.) On an unspecified date in May 2018, Phelps visited the 6 Facility. (Compl. ¶ 7.) Phelps alleges that she encountered the following architectural 7 barriers at the Facility’s parking lot: (1) the handicap parking space lacked the 8 appropriate pole-mounted signage at the front of the stall which should have been 9 installed at least five feet above ground; (2) the handicap parking stalls were missing 10 the International Symbols of Access painted on the asphalt; (3) the “NO PARKING” 11 markings in the accessible parking access aisles were unrecognizable; (4) the accessible 12 parking spaces lacked “Van Accessible” and “Minimum Fine $250” signs; and (5) the 13 parking lot is devoid of the proper signage at its entrances. (Compl. ¶ 10–14.) 14 On August 1, 2018, Phelps initiated this lawsuit against PS Southern. (See 15 Compl.) As listed above, Phelps alleges five architectural barriers in her Complaint 16 relating to parking. (See Compl. ¶¶ 10–14; SUF P2.) Phelps also alleges that PS 17 Southern has no procedure or policy in place to maintain the parking spaces reserved 18 for persons with disabilities. (Compl. ¶ 15.) 19 On April 10, 2019, Karen O. Haney (“Haney”), PS Southern’s Certified Access 20 Specialist and ADA expert, inspected the Facility’s parking lot. (Decl. of Haney 21 (“Haney Decl.”) ¶ 4, ECF No. 21-2.) Haney’s inspection revealed that (1) “both 22 accessible parking spaces serving the . . . [F]acility contain International Symbol of 23 Accessibility signs and Van Accessible signs with the language ‘Minimum Fine $250,’ 24 that are mounted with the bottom edge at 83 inches above the ground surface;” (2) 25 “[b]oth accessible parking spaces serving the . . . Facility provide a clear and visible 26 International Symbol of Accessibility on the surface of the spaces; (3) “[b]oth accessible 27 parking spaces serving the Facility contain required ‘No Parking’ markings at the end 28 of the access aisles;” (4) “[t]he requisite parking signage is provided at the west parking 1 lot entrance serving the Facility off Crenshaw Boulevard and at the head of one of the 2 accessible parking stalls.” (SUF D7–10.) Phelps does not dispute these facts. (Mot. 3 10 (acknowledging “remediation of the parking violations”).) 4 PS Southern moves for summary judgment as to Phelps’s ADA Claim and 5 requests that the Court decline to exercise supplemental jurisdiction over Phelps’s state 6 law claims. (Mot. 1.) 7 III. LEGAL STANDARD 8 A court “shall grant summary judgment if the movant shows that there is no 9 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 10 of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 11 inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 12 372, 378 (2007). A disputed fact is “material” where the resolution of that fact might 13 affect the outcome of the suit under the governing law, and the dispute is “genuine” 14 where “the evidence is such that a reasonable jury could return a verdict for the 15 nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 16 Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues 17 of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 18 730, 738 (9th Cir. 1979). Moreover, though a court may not weigh conflicting evidence 19 or make credibility determinations, there must be more than a mere scintilla of 20 contradictory evidence to survive summary judgment. Addisu v. Fred Meyer, Inc., 198 21 F.3d 1130, 1134 (9th Cir. 2000). 22 Once the moving party satisfies its burden, the nonmoving party cannot simply 23 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 24 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, 477 25 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 26 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 27 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and 28 “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha 1 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). The court should grant summary 2 judgment against a party who fails to demonstrate facts sufficient to establish an element 3 essential to his case when that party will ultimately bear the burden of proof at trial. See 4 Celotex, 477 U.S. at 322. 5 Pursuant to the Local Rules, parties moving for summary judgment must file a 6 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should set 7 out “the material facts as to which the moving party contends there is no genuine 8 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 9 Genuine Disputes” setting forth all material facts as to which it contends there exists a 10 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that the material facts 11 as claimed and adequately supported by the moving party are admitted to exist without 12 controversy except to the extent that such material facts are (a) included in the 13 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 14 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. 15 IV. DISCUSSION 16 PS Southern moves for summary judgment on the basis that the alleged barriers 17 in Phelps’s Complaint no longer exist, therefore mooting her claim under the ADA for 18 injunctive relief. (Mot. 8.) PS Southern also requests that the Court decline to exercise 19 supplemental jurisdiction over Phelps’s Unruh claim. (Mot. 15.) Phelps opposes the 20 Motion, arguing that her ADA injunctive relief claim survives because the parking lot 21 striping violation could reasonably recur and PS Southern has not identified any policy 22 or plan to maintain accessibility. (Mot. 9–14.) 23 A. Mootness 24 “Damages are not recoverable under Title III of the ADA—only injunctive relief 25 is available for violations of Title III.” Wander v.
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6 7 8 United States District Court 9 Central District of California 10 11 BARBARA PHELPS, Case №. 2:18-cv-06633-ODW (MRWx) 12 Plaintiff, ORDER GRANTING PS 13 v. SOUTHERN’S MOTION FOR 14 PS LOS ANGELES - PICO BLVD., INC., SUMMARY JUDGMENT [21] 15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiff Barbara Phelps (“Phelps”) brings the present action against Defendant 19 PS Southern California One, Inc., erroneously sued and served as PS Los Angeles - Pico 20 Blvd., Inc. (“PS Southern”), for alleged violations of the Americans with Disabilities 21 Act (“ADA”), and the Unruh Civil Rights Act (“Unruh”). (Compl. ¶ 2, ECF No. 1.) 22 PS Southern now moves for summary judgment (“Motion”). (Def.’s Mot. Summ. J. 23 (“Mot.”), ECF No. 21.) For the reasons that follow, the Court GRANTS PS Southern’s 24 Motion, and DISMISSES Phelps’s Unruh claim WITHOUT PREJUDICE.1 25 26 27 1 After considering the papers filed in connection with the Motion, the Court deemed the matter 28 appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 1 II. FACTUAL BACKGROUND 2 The undisputed facts establish the following. Phelps is a paraplegic who uses a 3 walker for mobility. (Statement of Uncontroverted Facts (“SUF”) P1, ECF No. 22.) PS 4 Southern operates the Public Storage located at 4147 W. Pico, Los Angeles, California 5 (the “Facility”). (Compl. ¶ 2.) On an unspecified date in May 2018, Phelps visited the 6 Facility. (Compl. ¶ 7.) Phelps alleges that she encountered the following architectural 7 barriers at the Facility’s parking lot: (1) the handicap parking space lacked the 8 appropriate pole-mounted signage at the front of the stall which should have been 9 installed at least five feet above ground; (2) the handicap parking stalls were missing 10 the International Symbols of Access painted on the asphalt; (3) the “NO PARKING” 11 markings in the accessible parking access aisles were unrecognizable; (4) the accessible 12 parking spaces lacked “Van Accessible” and “Minimum Fine $250” signs; and (5) the 13 parking lot is devoid of the proper signage at its entrances. (Compl. ¶ 10–14.) 14 On August 1, 2018, Phelps initiated this lawsuit against PS Southern. (See 15 Compl.) As listed above, Phelps alleges five architectural barriers in her Complaint 16 relating to parking. (See Compl. ¶¶ 10–14; SUF P2.) Phelps also alleges that PS 17 Southern has no procedure or policy in place to maintain the parking spaces reserved 18 for persons with disabilities. (Compl. ¶ 15.) 19 On April 10, 2019, Karen O. Haney (“Haney”), PS Southern’s Certified Access 20 Specialist and ADA expert, inspected the Facility’s parking lot. (Decl. of Haney 21 (“Haney Decl.”) ¶ 4, ECF No. 21-2.) Haney’s inspection revealed that (1) “both 22 accessible parking spaces serving the . . . [F]acility contain International Symbol of 23 Accessibility signs and Van Accessible signs with the language ‘Minimum Fine $250,’ 24 that are mounted with the bottom edge at 83 inches above the ground surface;” (2) 25 “[b]oth accessible parking spaces serving the . . . Facility provide a clear and visible 26 International Symbol of Accessibility on the surface of the spaces; (3) “[b]oth accessible 27 parking spaces serving the Facility contain required ‘No Parking’ markings at the end 28 of the access aisles;” (4) “[t]he requisite parking signage is provided at the west parking 1 lot entrance serving the Facility off Crenshaw Boulevard and at the head of one of the 2 accessible parking stalls.” (SUF D7–10.) Phelps does not dispute these facts. (Mot. 3 10 (acknowledging “remediation of the parking violations”).) 4 PS Southern moves for summary judgment as to Phelps’s ADA Claim and 5 requests that the Court decline to exercise supplemental jurisdiction over Phelps’s state 6 law claims. (Mot. 1.) 7 III. LEGAL STANDARD 8 A court “shall grant summary judgment if the movant shows that there is no 9 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 10 of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 11 inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 12 372, 378 (2007). A disputed fact is “material” where the resolution of that fact might 13 affect the outcome of the suit under the governing law, and the dispute is “genuine” 14 where “the evidence is such that a reasonable jury could return a verdict for the 15 nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 16 Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues 17 of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 18 730, 738 (9th Cir. 1979). Moreover, though a court may not weigh conflicting evidence 19 or make credibility determinations, there must be more than a mere scintilla of 20 contradictory evidence to survive summary judgment. Addisu v. Fred Meyer, Inc., 198 21 F.3d 1130, 1134 (9th Cir. 2000). 22 Once the moving party satisfies its burden, the nonmoving party cannot simply 23 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 24 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, 477 25 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 26 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 27 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and 28 “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha 1 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). The court should grant summary 2 judgment against a party who fails to demonstrate facts sufficient to establish an element 3 essential to his case when that party will ultimately bear the burden of proof at trial. See 4 Celotex, 477 U.S. at 322. 5 Pursuant to the Local Rules, parties moving for summary judgment must file a 6 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should set 7 out “the material facts as to which the moving party contends there is no genuine 8 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 9 Genuine Disputes” setting forth all material facts as to which it contends there exists a 10 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that the material facts 11 as claimed and adequately supported by the moving party are admitted to exist without 12 controversy except to the extent that such material facts are (a) included in the 13 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 14 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. 15 IV. DISCUSSION 16 PS Southern moves for summary judgment on the basis that the alleged barriers 17 in Phelps’s Complaint no longer exist, therefore mooting her claim under the ADA for 18 injunctive relief. (Mot. 8.) PS Southern also requests that the Court decline to exercise 19 supplemental jurisdiction over Phelps’s Unruh claim. (Mot. 15.) Phelps opposes the 20 Motion, arguing that her ADA injunctive relief claim survives because the parking lot 21 striping violation could reasonably recur and PS Southern has not identified any policy 22 or plan to maintain accessibility. (Mot. 9–14.) 23 A. Mootness 24 “Damages are not recoverable under Title III of the ADA—only injunctive relief 25 is available for violations of Title III.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 26 2002). Plaintiffs “may obtain injunctive relief against public accommodations with 27 architectural barriers, including ‘an order to alter facilities to make such facilities readily 28 accessible to and usable by individuals with disabilities.’” Molski v. M.J. Cable, Inc., 1 481 F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. § 12188(a)(2)). In the context of a 2 claim for injunctive relief under Title III of the ADA, a plaintiff must “demonstrate a 3 sufficient likelihood that he will again be wronged in a similar way. That is, he must 4 establish a real and immediate threat of repeated injury.” Fortyune v. Am. 5 Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (alterations and citations 6 omitted). Accordingly, “a defendant’s voluntary removal of alleged barriers prior to 7 trial can have the effect of mooting a plaintiff’s ADA claim.” Oliver v. Ralph’s Grocery 8 Co., 654 F.3d 903, 905 (9th Cir. 2011); see also Grove v. De La Cruz, 407 F. Supp. 2d 9 1126, 1130–31 (C.D. Cal. 2005). 10 Here PS Southern proffers a declaration from its expert, Haney, who inspected 11 the Facility’s parking lot and found Phelps’s alleged violations are currently compliant 12 under federal and state accessibility standards. (See Haney Decl. ¶ 6; J.A. Ex. 5 (“Haney 13 Report”) 1–5, ECF No. 21-2.) Additionally, Phelps concedes that PS Southern 14 remediated the parking violations and PS Southern affirms that access barriers are not 15 likely to return or reoccur. (Mot. 8, 10; SUF D7–10.) Accordingly, Phelps’s 16 architectural barrier claims are moot. (Mot. 8.) Yet, Phelps contends that her ADA 17 claim for injunctive relief survives because PS Southern has no procedure or policy in 18 place to maintain the handicap-accessible parking spaces and, therefore, the violations 19 can easily and reasonably recur. (Mot. 13–14.) 20 Phelps’s proffered argument has been considered and rejected by the Central 21 District of California. Langer v. Heard, No. 2:18-cv-00666-VAP (PJWx), 2018 U.S. 22 Dist. LEXIS 186707, at *7 (C.D. Cal. Oct. 30, 2018) (rejecting plaintiff’s argument that 23 his claim was not moot because the violation could “easily recur,” as defendants merely 24 painted lines that could fade rather than making permanent structural changes). Instead, 25 as the court in Langer v. Heard noted, courts in the Central District, “have found that 26 remedying ADA access violations by repainting a parking lot is sufficient to moot a 27 plaintiff’s claim.” Id. (citing Love v. Azzam, No. EDCV 15-627 JGB (KKx), 2015 WL 28 7566492, at *3 (C.D. Cal. Nov. 24, 2015) (granting summary judgment for defendants 1 who had repainted a handicap-accessible parking space); Langer v. McKelvy, No. CV 2 14-08842-RGK (JPRx), 2015 WL 13447522, at *2 (C.D. Cal. Sept. 24, 2015) (finding 3 that because defendants repaved a parking lot and painted a van-accessible parking 4 space, plaintiff’s ADA claim was moot)) aff’d, 677 F. App’x 363 (9th Cir. 2017). 5 Accordingly, as PS Southern’s repairs resolved Phelps’s claim to equitable relief 6 in its entirety, the ADA claim is now moot. See Pickern v. Best W. Timber Cove Lodge 7 Marina Resort, 194 F. Supp. 2d 1128, 1130 (E.D. Cal. 2002) (citing Friends of the 8 Earth, Inc. v. Laidlaw Envtl. Servs, 528 U.S. 167, 190 (2000)) (finding defendants’ 9 remediation rendered plaintiff’s ADA claim moot). As Phelps’s claim for injunctive 10 relief under the ADA is moot, she no longer has standing and the Court GRANTS PS 11 Southern’s Motion as to Phelps’s ADA claim. 12 B. State Law Claim 13 PS Southern contends that the Court should decline to exercise supplemental 14 jurisdiction over the state law claim. (Mot. 19–24.) 15 A district court “‘may decline to exercise supplemental jurisdiction’ if it ‘has 16 dismissed all claims over which it has original jurisdiction.’” Sanford v. MemberWorks, 17 Inc., 625 F.3d 550, 561 (9th Cir. 2010) (citing 28 U.S.C. § 1367(c)(3)). “[I]n the usual 18 case in which all federal-law claims are eliminated before trial, the balance of factors to 19 be considered under the pendent jurisdiction doctrine—judicial economy, convenience, 20 fairness, and comity—will point toward declining to exercise jurisdiction over the 21 remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 22 (1988); Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1101 (9th Cir. 1996) (“Where a 23 district court dismisses a federal claim, leaving only state claims for resolution, it should 24 decline jurisdiction over the state claims and dismiss them without prejudice.”). 25 Phelps’s ADA claim provided the only basis for original jurisdiction. As 26 Phelps’s ADA claim has been fully adjudicated, the interests of comity and fairness lead 27 the Court to decline to exercise supplemental jurisdiction over Phelps’s related state law 28 claim. See Molski v. Kahn Winery, 381 F. Supp. 2d 1209, 1211–12 (C.D. Cal. 2005) 1 || (discussing that “the principle of comity strongly favors dismissing the state law claims” 2 || and allowing state law claims to remain absent federal claims would frustrate the goal 3 || of the ADA to quickly rectify structural barriers). 4 Accordingly, the Court declines to exercise supplemental jurisdiction over 5 || Phelps’s state law claim and this claim is DISMISSED without prejudice. 6 Vv. CONCLUSION 7 For the reasons discussed above, the Court GRANTS PS Southern ’s Motion for 8 | Summary Judgment as to Phelps’s ADA claim. (ECF No. 21.) The Court DECLINES to exercise supplemental jurisdiction over the remaining state law claim and 10 | DISMISSES it WITHOUT PREJUDICE. The Court will issue Judgment. 11 12 IT IS SO ORDERED. 13 14 November 22, 2019 15 □□ Gédliod 7 OTIS D. W R IGHT, II ig UNITED STATES DISTRICT JUDGE
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