Brian Whitaker v. Temple West Plaza

• Court: District Court, C.D. California
• Decided: June 8, 2021
• Docket: 2:19-cv-08931
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ) 10 BRIAN WHITAKER, ) Case No.: CV 19-08931-CJC(Ex) ) 11 ) ) Plaintiff, 12 ) ) v. 13 ) ) MEMORANDUM OF DECISION 14 TEMPLE WEST PLAZA and DOES ) ) 15 1‒10, ) ) 16 ) Defendants. ) 17 ) ) 18 ) 19 20 I. INTRODUCTION 21 22 Plaintiff Brian Whitaker brings this action against Defendant Temple West Plaza, 23 alleging violations of the Americans with Disabilities Act (“ADA”). Plaintiff contends 24 that the access routes to Defendant’s shopping plaza were inaccessible in violation of the 25 ADA. 26 27 On May 25, 2021, the Court conducted a one-day bench trial. The Court issues its 1 by this Memorandum of Decision. After carefully reviewing all the evidence, testimony, 2 and arguments presented by the parties’ counsel, the Court concludes that the removal of 3 the alleged barriers is not readily achievable. 4 5 II. FINDINGS OF FACT 6 7 On September 27, 2019, Plaintiff visited a shopping plaza owned by Defendant 8 located at 1925 W. Temple Street, Los Angeles, California. During his visit, he 9 encountered portions of access routes from the public street to the plaza which had over a 10 1:20—or 5%—slope, in violation of the ADA. Nevertheless, Plaintiff was able to visit 11 three stores in the plaza. As a result, Plaintiff brought the instant action asserting that 12 Defendant’s failure to remove the architectural barrier of excess slope is disability 13 discrimination in violation of the ADA. 14 15 III. CONCLUSIONS OF LAW 16 17 Discrimination under Title III of the ADA includes “a failure to remove 18 architectural barriers . . . in existing facilities . . . where such removal is readily 19 achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv) (emphasis added). In addition, even if “an 20 entity can demonstrate that the removal of a barrier . . . is not readily achievable,” the 21 entity is still liable under the ADA if it fails to “make [its] goods, services, facilities, 22 privileges, advantages, or accommodations available through alternative methods” so 23 long as “such methods are readily achievable.” Id. § 12182(b)(2)(A)(v) (emphasis 24 added). The ADA defines “readily achievable” as “easily accomplishable and able to be 25 carried out without much difficulty and expense.” Id. § 12181(9). Accordingly, to 26 prevail on his discrimination claim, Plaintiff must establish either: (1) that Defendant 27 failed to alter the paths of travel when doing so was readily achievable; or (2) even if the 1 services available to Plaintiff through alternative methods without much difficulty or 2 expense. See 42 U.S.C. § 12182(b)(2)(A)(iv)‒(v). Plaintiff has failed to make either 3 showing. 4 5 A. Readily Achievable 6 7 As an initial matter, Plaintiff asserts that Defendant waived its right to assert the 8 “readily achievable” affirmative defense. Plaintiff asserts that Defendant waived the 9 defense in an interrogatory response, (Dkt. 53 [Plaintiff’s Trial Brief] at 3), but does not 10 provide evidence to support this claim. Defendant has pleaded the defense in its answer, 11 (see Dkt. 9), and continued to assert it throughout this litigation, (see Dkt. 27 12 [Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment]; Dkt. 55 13 [Defendant’s Trial Brief]). Plaintiff has not offered evidence to the contrary. 14 Accordingly, the Court finds that this defense was not waived 15 16 While Plaintiff bears the initial burden of plausibly showing that barrier removal is 17 “readily achievable under the particular circumstances,” Defendant “bears the ultimate 18 burden of persuasion” regarding the affirmative defense that a suggested method of 19 barrier removal is not readily achievable. Lopez v. Catalina Channel Express, Inc., 20 974 F.3d 1030, 1035 (9th Cir. 2020) (citing Colo. Cross Disability Coal. v. Hermanson 21 Fam. Ltd. P’ship, 264 F.3d 999, 1002‒03, 1006 (10th Cir. 2001)). To determine whether 22 “an action is readily achievable” the Court considers several factors, including: 23 (A) the nature and cost of the action needed []; 24

25 (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on 26 expenses and resources, or the impact otherwise of such action upon the 27 operation of the facility; (C) the overall financial resources of the covered entity; the overall size of 1 the business of a covered entity with respect to the number of its employees; 2 the number, type, and location of its facilities; and

3 (D) the type of operation or operations of the covered entity, including the 4 composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility 5 or facilities in question to the covered entity. 6

7 42 U.S.C. § 12181(9)(A)‒(D); see also Lopez, 974 F.3d at 1038. According to 8 Department of Justice guidance, “[a] public accommodation would not be required to 9 remove a barrier to physical access posed by a flight of steps, if removal would require 10 extensive ramping or an elevator. The readily achievable standard does not require 11 barrier removal that requires extensive restructuring or burdensome expense.” ADA Title 12 III Technical Assistance Manual Covering Public Accommodations and Commercial 13 Facilities, § III-4.4200, available at https://www.ada.gov/taman3.html (hereinafter “ADA 14 Technical Assistance Manual”). In other words, barrier removal is readily achievable 15 when “the cost of removing the architectural barrier at issue does not exceed the benefits 16 under the circumstances.” See Lopez, 974 F.3d at 1038. 17

18 Here, the Court finds that barrier removal is not readily achievable because the 19 costs clearly outweigh the benefits. Plaintiff primarily relied on the testimony of his 20 expert Soyoung Ward, an architect and certified access specialist. Ms. Ward testified that 21 she inspected the path of travel from the public sidewalk, through the parking lot, to the 22 shopping plaza for accessibility issues. During the inspection, she took photographs 23 which are included in her expert report. (See Ex. 105 [Ward Report].) Because there are 24 no dedicated pedestrian entrances, pedestrians entering from the public sidewalk must 25 enter through one of two driveways. (See id. at 6, 11.) Ms. Ward took several slope 26 measurements of these driveways and found that they measured between 7.8% and 8.5% 27 at certain points, exceeding the 5% maximum slope permitted by the ADA. (See id. at 4, 1 8, 13.) Ms. Ward also observed two areas on a sidewalk connecting the plaza’s stores 2 that had non-compliant slopes. (Id. at 15.) 3 4 Based on her inspection, Ms. Ward proposed the creation of a ramp leading from 5 the public street into the parking lot and the addition of handrails on the walkway 6 connecting stores in the plaza. (See id. at 5, 15.) The Court finds that the benefits of her 7 proposal are nominal. The plaza is decades old and the parking lot and paths of travel 8 have become warped and worn over time. (See Ex. 102 [Certificate of Occupancy Issued 9 May 7, 1991]; Ward Report.) Even after entering the parking lot by way of Plaintiff’s 10 proposed ramp, a person would have to navigate through the parking lot which appears to 11 have other areas with non-compliant slopes, including a drainage channel which runs 12 through the entire parking lot. (See, e.g., Exs. 122‒23.) 13 14 Further, the marginal benefits of Plaintiff’s proposal are outweighed by their costs. 15 Plaintiff’s construction expert Cory Slater, a general contractor, testified that the 16 estimated cost of constructing Ms. Ward’s proposal was $10,473. (See Ex. 107 [Job 17 Estimate].) Defendant, however, had its own expert submit a job proposal with an 18 estimated cost of $26,930. (See Ex. 101.) The Court finds Defendant’s estimate more 19 reliable because Plaintiff’s own expert—Mr. Slater—found it reasonable and more 20 detailed than his own estimate. Additionally, Mr. Slater’s estimate was based on Ms. 21 Ward’s proposal which did not consider the impact on parking spaces. Cross- 22 examination revealed that she did not measure the parking spaces in the lot and her 23 proposal was likely to displace a significant amount of parking spaces. Mr. Slater 24 testified that he had concerns about parking space displacement in Ms. Ward’s proposal 25 and preferred an alternative plan created to avoid parking space displacement. Mr. Slater, 26 however, did not submit an estimate for his alternative plan. 27 1 The Court finds that a cost of over $26,000, the likelihood of displacement of 2 parking spaces in the lot, and the interruption to Defendant’s business outweigh the 3 nominal benefit of correcting slopes on the path of travel which exceed ADA 4 requirements by a few percentage points.1 Courts have found construction costs of this 5 magnitude to be outside the “readily achievable” standard. See Moore v. Robinson Oil 6 Corp., 2012 WL 2120589, at *7 (N.D. Cal. June 11, 2012) (finding a $30,000 restroom 7 construction not “readily achievable”). Further, the “ADA Improvements” detailed in 8 Defendant’s job proposal constitutes “extensive restructuring” not required under the 9 readily achievable standard. See ADA Technical Assistance Manual. Specifically, 10 Defendant’s job proposal includes demolition of “576 sq. ft. of existing asphalt parking to 11 make room for new concrete access ramp,” construction of new ADA compliant ramp, 12 and removal and replacement of non-compliant swale. (Ex. 101 at 1.) Both Ms. Ward 13 and Defendant’s expert opined that any proposal would likely require the services of an 14 architect or an engineer, an additional cost. Simply stated, Defendant has shown that 15 removal of the slope barriers on the plaza’s paths of travel is not readily achievable. 16 17 B. Alternative Methods 18 19 Even if correcting the slope barriers on the plaza’s paths of travel was not readily 20 achievable, Plaintiff could still prevail on his Title III discrimination claim if he 21 establishes that Defendant chose not to make the plaza available to him even though it 22 could have done so through alternative methods without much difficulty or expense. 23 42 U.S.C. § 12182(b)(2)(A)(v). Plaintiff offered no evidence to suggest that Defendant 24 did not offer alternative methods. Indeed, parties stipulated to the fact that Plaintiff was 25 able to patronize three stores in the plaza during his visit. Accordingly, the plaza’s 26 27 1 || Services were made “available through alternative methods” pursuant to 2 || § 12182(b)(2)(A)(). 3 4 CONCLUSION 5 6 The Court finds in favor of Defendant. Removal of the architectural barriers in 7 || Defendant’s plaza are not readily achievable and Plaintiff has failed to show that 8s || Defendant failed to make the plaza’s services available through alternative methods. A 9 judgment consistent with this memorandum of decision shall issue concurrently herewith. 10 11 12 DATED: — June 8, 2021

14 CORMAC J. CARNEY 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28