Lozano v. C.A. Martinez Family Ltd. Partnership

129 F. Supp. 3d 967, 2015 U.S. Dist. LEXIS 120191, 2015 WL 5227869
CourtDistrict Court, S.D. California
DecidedSeptember 8, 2015
DocketCase No. 14cv331 BTM(DHB)
StatusPublished
Cited by19 cases

This text of 129 F. Supp. 3d 967 (Lozano v. C.A. Martinez Family Ltd. Partnership) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lozano v. C.A. Martinez Family Ltd. Partnership, 129 F. Supp. 3d 967, 2015 U.S. Dist. LEXIS 120191, 2015 WL 5227869 (S.D. Cal. 2015).

Opinion

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

BARRY TED MOSKOWITZ, Chief Judge.

Defendants C.A. Martinez Family Limited Partnership and Santo’ Tomas, Inc. (“Defendants”),, have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3). Plaintiff Enrique Lozano has filed a motion for summary judgment. For the reasons discussed below, Defendants’ motion is DENIED.and Plaintiffs motion is GRANTED.

I. BACKGROUND

On February 12, 2014, Plaintiff commenced this action. Plaintiff is a paraplegic who uses a wheelchair for mobility and drives a van which is specially equipped with a lift that deploys from the passenger side of his van. (Lozano Deck ¶¶2, 5.) Plaintiff lives less than a mile from the Santo Tomas Swap Meet (“Swap Meet”) at 1102 V.V. Williams Ave., Calexico, California (the “Property”). ' (Id. at ¶ 3.) Plaintiff enjoys thrift shopping and has been to the Swap Meet on more than 300 occasions. (Id,. at ¶ 4.) He .goes to the Swap Meet anywhere between two and.ten times a month. (Id.)

Plaintiff explains .that although there were dedicated handicap parking spaces at the Swap Meet, beginning in January 2013 through the filing of this lawsuit, “the signage and striping on' the surface of the parking stalls themselves had faded to the point where they had disappeared entirely or only remnant.of the.paint remained.” (Lozano Deck at ¶ 7.) The faded lines and signage caused Plaintiff anxiety and difficulty because if he parks his van in a space without a dearly marked access aisle, he runs the risk of being blocked out of his vehicle -if someone parks next to the van. (Id.)

On or about January 7, 2013, Plaintiff went to the Swap Meet to buy some used wheelchairs. (Lozano Deck at ¶ 14.) On that day, Plaintiff could not find a -handicap parking space with an available access aisle because vehicles were parked on the space where the access aisle was supposed to be. (Id.) Plaintiff claims that he encountered the problem of people parking on, the area where an access aisle was supposed to exist at least once every single month during the year prior to his lawsuit being filed (Plaintiff estimates 20 or more occasions). (Id. at ¶ 15.)

Since the filing of the lawsuit, the Swap Meet has repainted the parking spaces. (Lozano Deck ¶ 17.) Plaintiff states that if Defendants keep up. this .level of maintenance of the parking spots, he does not anticipate having the same .problems. (Id.)

Plaintiff’s Complaint asserts causes of action for (1) violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.; (2) violation of the Unruh Civil-Rights Act (“UCRA”), Cal. Civ.Code §§ 51-53;; (3)' violation of the California Disabled Persons Act, Cal. Civ. Code §§ 54-54.8; and' (4) negligence. Plaintiff seeks injunctive, relief compelling Defendant to comply with the ADA and UCRA as well as statutory damages under the UCRA in the amount of $4,000.

II. DISCUSSION

A. Defendants’ Motion to Dismiss

Defendants seek dismissal under Fed.R.Civ.P. 12(b)(1) and/or 12(h)(3) on [970]*970the ground that the Swap Meet has made modifications to the disabled parking spaces to address Plaintiffs concerns, making his claim for injunctive relief under the ADA moot.1 However, the Court finds that Plaintiffs ADA claim is not moot because Defendants have not satisfied their burden of establishing that the ADA violations are not likely to recur.

Defendants contend that Plaintiffs ADA claim is moot because in March 2014, after receiving notice of Plaintiffs Complaint, Defendants refreshed the paint on all of the disabled-reserved parking spaces (16 parking spaces with eight access aisles). (Gonzalez Decl. ¶ 22.) The Swap Meet has also adopted new policies and procedures for maintenance of the disabled-reserved parking spaces to take into account the effect that sun-rays have on paint. (Id, at ¶ 23.)2 Plaintiff conceded that after the parking spaces were repainted, they were “perfect.” (Lozano Dep. (Def. Ex. A) at 128:14-17.)

Although Defendants have taken steps in the right direction to assure that the handicap parking spaces stay in compliance with the ADA, the Court cannot conclude that Plaintiffs claim for injunctive relief is now moot. A request for prospective relief can be mooted by a defendant’s voluntary discontinuance of challenged activities if the defendant meets the “formidable burden” of demonstrating that it is “absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

There are ADA access cases in which courts have held that the defendant’s voluntary compliance rendered moot the plaintiffs claim for injunctive relief. For example, in Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir.2004), a case in which disabled passengers alleged that the fixed-route bus system was intentionally inaccessible to people -with disabilities, the Tenth Circuit found the plaintiffs’ request for prospective relief was mooted because all of Wichita Transit’s fixed bus routes had been equipped' with lift accessible buses, there were no remaining designated inaccessible bus routes,’ and bus drivers were instructed to deploy lifts at all bus stops for disabled riders. See also Kohler v. In-N-Out Burgers, 2013 WL 5315443 (C.D.Cal. Sept. 12, 2013) (holding that plaintiffs injunctive relief claim under the ADA was moot with respect to remedied problems in connection with the water closet stall, the side grab bar, the paper towel dispenser, and' the exit of the restroom); Wilson v. Pier 1 Imports (US), Inc., 439 F.Supp.2d 1054 (E.D.Cal.2006) (finding moot plaintiffs ADA claims regarding the lack of'signs for each accessible parking space, the size of the accessible spaces, and the slope of the spaces).

On the other hand, there are cases where courts have found that the defen[971]*971dant’s voluntary compliance with the ADA did not render the plaintiffs injunctive relief claim moot. In Moeller v. Taco Bell Corp., 816 F.Supp.2d 831 (N.D.Cal.2011), the court concluded that Taco Bell had failed to carry the heavy burden of showing that violations. of the ADA would not occur in the future. Although Taco Bell had implemented policies regarding specific accessibility items that were supposed to be inspected, the court observed that Taco Bell “could change or rescind its policies at any time.” See also Young v. District of Columbia Housing Authority,

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Bluebook (online)
129 F. Supp. 3d 967, 2015 U.S. Dist. LEXIS 120191, 2015 WL 5227869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lozano-v-ca-martinez-family-ltd-partnership-casd-2015.