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6 7 8 United States District Court 9 Central District of California 10 11 LUIS VILLEGAS, Case №. 2:18-cv-06431-ODW (FFMx) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 13 v. JUDGMENT AND GRANTING 14 VILLA PLAZA PARTNERSHIP, L.P. et SUMMARY JUDGMENT SUA 15 al., SPONTE FOR DEFENDANTS [22] Defendants. AND DENYING DEFENDANTS’ 16 MOTION TO DISMISS AS MOOT 17 [24] 18 I. INTRODUCTION 19 Plaintiff Luis Villegas (“Villegas”) brings the present action against Defendant 20 Villa Plaza Partnership, L.P. (“Villa Plaza”), for alleged violations of the Americans 21 with Disabilities Act (“ADA”). (Compl. ¶¶ 1–2, 25–34, ECF No. 1.) Villegas now 22 moves for summary judgment (“Motion”). (Pl.’s Mot. Summ. J. (“Mot.”), ECF No. 22.) 23 For the reasons that follow, the Court DENIES Villegas’s Motion, and sua sponte 24 GRANTS summary judgment in favor of Villa Plaza.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. BACKGROUND 2 The undisputed facts establish the following. Luis Villegas is paraplegic; he 3 cannot walk and uses a wheelchair for mobility. (Statement of Uncontroverted Facts 4 (“SUF”) P1, ECF No. 22-2.) Villa Plaza owns the property at issue (“Shopping 5 Center”), located at 7938 Florence Avenue, Downey, California. (SUF P2.) The 6 Shopping Center is a business establishment and place of public accommodation. (SUF 7 P3.) Villa Plaza owns the real property at issue and did so in June 2018. (SUF P4.) 8 On June 12, 2018, Villegas went to the Baskin-Robbins at the Shopping Center. 9 (SUF P5.) He discovered there were two parking spaces marked and reserved for 10 persons with disabilities near Baskin-Robbins. (SUF P6.) He exited his vehicle, but 11 the parking spaces and access aisle near the Baskin-Robbins at the Shopping Center had 12 uneven slopes. (SUF P7–P8.) Additionally, there were two van-accessible parking 13 spaces marked and reserved for persons with disabilities in front of the Yoshinoya 14 restaurant, also located in the Shopping Center. (SUF P9.) However, Villegas alleges 15 that if he parked at Yoshinoya, there would be no safe way back to Baskin-Robbins. 16 (Decl. of Luis Villegas (“Villegas Decl.”) ¶ 7, ECF No. 22-5.) For example, Villegas 17 would have to travel behind parked cars as well as travel with cars in the vehicular drive 18 paths to make it back to Baskin-Robbins. (SUF P10.) Villegas alleges that this was not 19 accessible to him, and caused him difficulty, discomfort, and frustration. (Villegas 20 Decl. ¶¶ 9–10.)2 21 On July 20, 2018, Evens Louis, an investigator for the plaintiff, conducted 22 investigation of the Baskin Robins at the Shopping Center. (SUF P13.) In the course 23 of Louis’s investigation, he found that there were approximately one hundred fifteen 24 parking spaces. (SUF P14.) Additionally, Louis observed that there were two standard 25
2 Importantly, “[t]he ADA standards permit accessible routes through parking lots to use vehicular 26 lanes.” Baskin v. Hughes Realty, Inc., 25 Cal. App. 5th 184, 199–201 (2018); see also Wilson v. Pier 27 I Imports (US), Inc., 439 F. Supp. 2d 1054, 1071 (E.D. Cal. 2006) (“Plaintiff disputes the existence of an access way, but it appears that he is basing this on the belief that there needs to be a separate route 28 other than via the parking lot. There does not appear to be any such requirement . . . .”). 1 accessible parking spaces located near the Baskin Robbins and two van accessible 2 parking spaces located in front of the Yoshinoya. (SUF P15–P17.) Louis found that 3 the standard accessible parking spaces had running slopes ranging from 4.6 % to 11.6 4 % and cross slope from 4.0 % to 4.8 %. (SUF P18.) 5 On November 19, 2018, Certified Access Specialist (“CASp”) Jon Rose (“Rose”) 6 performed an exterior inspection of the Shopping Center. (Def.’s Statement of Genuine 7 Disputes (“SGI”) D22, ECF No. 26-3.) According to Rose’s CASp Accessibility 8 Survey Report, “the inspected areas of the site meet[] all applicable construction-related 9 accessibility standards.” (SGI D23; Decl. of Catherine Weinberg (“Weingberg Decl.”) 10 ¶ 5, Ex. A, ECF No. 26-1.) Villegas does not dispute these facts.3 11 On July 26, 2018, Villegas filed this action for ADA and Unruh. (Compl., ECF 12 No. 1.) However, the Court declined to exercise supplemental jurisdiction over the 13 Unruh claim, making the ADA claim the only remaining claim. (Min. Order, ECF No. 14 19.) Villegas now moves for summary judgment as to his ADA Claim. (Mot. 1.) 15 III. LEGAL STANDARD 16 A court “shall grant summary judgment if the movant shows that there is no 17 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 18 of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 19 inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 20 372, 378 (2007). A disputed fact is “material” where the resolution of that fact might 21 affect the outcome of the suit under the governing law, and the dispute is “genuine” 22 where “the evidence is such that a reasonable jury could return a verdict for the 23 nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 24 Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues 25 of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 26 730, 738 (9th Cir. 1979). Moreover, though a court may not weigh conflicting evidence 27 3 Villegas did not file an objection to Rose’s report or a Reply to Villa Plaza’s Opposition to his 28 Motion. 1 or make credibility determinations, there must be more than a mere scintilla of 2 contradictory evidence to survive summary judgment. Addisu v. Fred Meyer, Inc., 198 3 F.3d 1130, 1134 (9th Cir. 2000). 4 Once the moving party satisfies its burden, the nonmoving party cannot simply 5 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 6 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, 477 7 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 8 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 9 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and 10 “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha 11 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (internal quotation marks omitted). 12 The court should grant summary judgment against a party who fails to demonstrate facts 13 sufficient to establish an element essential to his case when that party will ultimately 14 bear the burden of proof at trial. See Celotex, 477 U.S. at 322. 15 Pursuant to the Local Rules, parties moving for summary judgment must file a 16 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should set 17 out “the material facts as to which the moving party contends there is no genuine 18 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 19 Genuine Disputes” setting forth all material facts as to which it contends there exists a 20 genuine dispute. C.D. Cal. L.R. 56-2.
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6 7 8 United States District Court 9 Central District of California 10 11 LUIS VILLEGAS, Case №. 2:18-cv-06431-ODW (FFMx) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 13 v. JUDGMENT AND GRANTING 14 VILLA PLAZA PARTNERSHIP, L.P. et SUMMARY JUDGMENT SUA 15 al., SPONTE FOR DEFENDANTS [22] Defendants. AND DENYING DEFENDANTS’ 16 MOTION TO DISMISS AS MOOT 17 [24] 18 I. INTRODUCTION 19 Plaintiff Luis Villegas (“Villegas”) brings the present action against Defendant 20 Villa Plaza Partnership, L.P. (“Villa Plaza”), for alleged violations of the Americans 21 with Disabilities Act (“ADA”). (Compl. ¶¶ 1–2, 25–34, ECF No. 1.) Villegas now 22 moves for summary judgment (“Motion”). (Pl.’s Mot. Summ. J. (“Mot.”), ECF No. 22.) 23 For the reasons that follow, the Court DENIES Villegas’s Motion, and sua sponte 24 GRANTS summary judgment in favor of Villa Plaza.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. BACKGROUND 2 The undisputed facts establish the following. Luis Villegas is paraplegic; he 3 cannot walk and uses a wheelchair for mobility. (Statement of Uncontroverted Facts 4 (“SUF”) P1, ECF No. 22-2.) Villa Plaza owns the property at issue (“Shopping 5 Center”), located at 7938 Florence Avenue, Downey, California. (SUF P2.) The 6 Shopping Center is a business establishment and place of public accommodation. (SUF 7 P3.) Villa Plaza owns the real property at issue and did so in June 2018. (SUF P4.) 8 On June 12, 2018, Villegas went to the Baskin-Robbins at the Shopping Center. 9 (SUF P5.) He discovered there were two parking spaces marked and reserved for 10 persons with disabilities near Baskin-Robbins. (SUF P6.) He exited his vehicle, but 11 the parking spaces and access aisle near the Baskin-Robbins at the Shopping Center had 12 uneven slopes. (SUF P7–P8.) Additionally, there were two van-accessible parking 13 spaces marked and reserved for persons with disabilities in front of the Yoshinoya 14 restaurant, also located in the Shopping Center. (SUF P9.) However, Villegas alleges 15 that if he parked at Yoshinoya, there would be no safe way back to Baskin-Robbins. 16 (Decl. of Luis Villegas (“Villegas Decl.”) ¶ 7, ECF No. 22-5.) For example, Villegas 17 would have to travel behind parked cars as well as travel with cars in the vehicular drive 18 paths to make it back to Baskin-Robbins. (SUF P10.) Villegas alleges that this was not 19 accessible to him, and caused him difficulty, discomfort, and frustration. (Villegas 20 Decl. ¶¶ 9–10.)2 21 On July 20, 2018, Evens Louis, an investigator for the plaintiff, conducted 22 investigation of the Baskin Robins at the Shopping Center. (SUF P13.) In the course 23 of Louis’s investigation, he found that there were approximately one hundred fifteen 24 parking spaces. (SUF P14.) Additionally, Louis observed that there were two standard 25
2 Importantly, “[t]he ADA standards permit accessible routes through parking lots to use vehicular 26 lanes.” Baskin v. Hughes Realty, Inc., 25 Cal. App. 5th 184, 199–201 (2018); see also Wilson v. Pier 27 I Imports (US), Inc., 439 F. Supp. 2d 1054, 1071 (E.D. Cal. 2006) (“Plaintiff disputes the existence of an access way, but it appears that he is basing this on the belief that there needs to be a separate route 28 other than via the parking lot. There does not appear to be any such requirement . . . .”). 1 accessible parking spaces located near the Baskin Robbins and two van accessible 2 parking spaces located in front of the Yoshinoya. (SUF P15–P17.) Louis found that 3 the standard accessible parking spaces had running slopes ranging from 4.6 % to 11.6 4 % and cross slope from 4.0 % to 4.8 %. (SUF P18.) 5 On November 19, 2018, Certified Access Specialist (“CASp”) Jon Rose (“Rose”) 6 performed an exterior inspection of the Shopping Center. (Def.’s Statement of Genuine 7 Disputes (“SGI”) D22, ECF No. 26-3.) According to Rose’s CASp Accessibility 8 Survey Report, “the inspected areas of the site meet[] all applicable construction-related 9 accessibility standards.” (SGI D23; Decl. of Catherine Weinberg (“Weingberg Decl.”) 10 ¶ 5, Ex. A, ECF No. 26-1.) Villegas does not dispute these facts.3 11 On July 26, 2018, Villegas filed this action for ADA and Unruh. (Compl., ECF 12 No. 1.) However, the Court declined to exercise supplemental jurisdiction over the 13 Unruh claim, making the ADA claim the only remaining claim. (Min. Order, ECF No. 14 19.) Villegas now moves for summary judgment as to his ADA Claim. (Mot. 1.) 15 III. LEGAL STANDARD 16 A court “shall grant summary judgment if the movant shows that there is no 17 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 18 of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 19 inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 20 372, 378 (2007). A disputed fact is “material” where the resolution of that fact might 21 affect the outcome of the suit under the governing law, and the dispute is “genuine” 22 where “the evidence is such that a reasonable jury could return a verdict for the 23 nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 24 Conclusory or speculative testimony in affidavits is insufficient to raise genuine issues 25 of fact and defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 26 730, 738 (9th Cir. 1979). Moreover, though a court may not weigh conflicting evidence 27 3 Villegas did not file an objection to Rose’s report or a Reply to Villa Plaza’s Opposition to his 28 Motion. 1 or make credibility determinations, there must be more than a mere scintilla of 2 contradictory evidence to survive summary judgment. Addisu v. Fred Meyer, Inc., 198 3 F.3d 1130, 1134 (9th Cir. 2000). 4 Once the moving party satisfies its burden, the nonmoving party cannot simply 5 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 6 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, 477 7 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 8 U.S. 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 9 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and 10 “self-serving testimony” create a genuine issue of material fact. Villiarimo v. Aloha 11 Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (internal quotation marks omitted). 12 The court should grant summary judgment against a party who fails to demonstrate facts 13 sufficient to establish an element essential to his case when that party will ultimately 14 bear the burden of proof at trial. See Celotex, 477 U.S. at 322. 15 Pursuant to the Local Rules, parties moving for summary judgment must file a 16 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should set 17 out “the material facts as to which the moving party contends there is no genuine 18 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 19 Genuine Disputes” setting forth all material facts as to which it contends there exists a 20 genuine dispute. C.D. Cal. L.R. 56-2. ‘The moving party, in its reply, shall respond to 21 the additional facts in the same manner and format that the opposing party is required 22 to adhere to in responding to the Statement of Uncontroverted Facts.” (Scheduling and 23 Case Management Order 7, ECF No. 15.) “[T]he Court may assume that the material 24 facts as claimed and adequately supported . . . are admitted to exist without controversy 25 except to the extent that such material facts are (a) included in the ‘Statement of Genuine 26 Disputes’ and (b) controverted by declaration or other written evidence.” C.D. Cal. 27 L.R. 56-3. 28 1 IV. DISCUSSION 2 Villegas moves for summary judgment on the basis that Villa Plaza has “fail[ed] 3 to provide level parking in front of Baskin-Robbins” and “fail[ed] to provide an 4 accessible route from the parking lot to the entrance of the Baskin Robbins.” (Mot. 10– 5 11.) Villa Plaza opposes Villegas motion on the basis that the alleged barriers no longer 6 exist, therefore mooting his ADA claims for injunctive relief. (Opp’n to Mot. 7 (“Opp’n”) 2, ECF No. 26.) The Court now addresses the Parties’ arguments. 8 A. Mootness 9 “Damages are not recoverable under Title III of the ADA—only injunctive relief 10 is available for violations of Title III.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 11 2002). Plaintiffs “may obtain injunctive relief against public accommodations with 12 architectural barriers, including ‘an order to alter facilities to make such facilities readily 13 accessible to and usable by individuals with disabilities.’” Molski v. M.J. Cable, Inc., 14 481 F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. § 12188(a)(2)). In the context of a 15 claim for injunctive relief under Title III of the ADA, a plaintiff must “demonstrate a 16 sufficient likelihood that he will again be wronged in a similar way. That is, he must 17 establish a real and immediate threat of repeated injury.” Fortyune v. Am. 18 Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (internal quotation marks and 19 citations omitted). Accordingly, “a defendant’s voluntary removal of alleged barriers 20 prior to trial can have the effect of mooting a plaintiff’s ADA claim.” Oliver v. Ralphs 21 Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011); see also Grove v. De La Cruz, 407 F. 22 Supp. 2d 1126, 1130–31 (C.D. Cal. 2005). 23 Here, Villegas proffers a declaration from Louis, his investigator, who on July 24 20, 2018, inspected the Shopping Center parking lot. (Decl. of Evan Louis (“Louis 25 Decl.”) ¶ 3, ECF No. 22-6.) Louis declares that the parking lot offered two standard 26 accessible parking spaces located near the Baskin-Robbins and two van accessible 27 parking spaces located in front of the Yoshinoya. (Louis Decl. ¶¶ 5–6.) The standard 28 accessible parking spaces had running slopes ranging over 4%, and the van accessible 1 parking spaces were 220 feet away from the Baskin-Robbins. (Louis Decl. ¶¶ 7–8.) 2 Accordingly, Villegas asserts that Villa Plaza has “fail[ed] to provide level parking in 3 front of Baskin-Robbins” and “fail[ed] to provide an accessible route from the parking 4 lot to the entrance of the Baskin Robbins,” and therefore, the Court must grant his 5 Motion. (Mot. 10–11.) 6 Villa Plaza does not dispute Louis’s Report. (See Opp’n 2.) Instead, Villa Plaza 7 opposes the Motion by arguing that Villegas’s claims are moot. (Opp’n 5.) Villa Plaza 8 proffers a declaration from CASp Rose, who inspected the Shopping Center parking lot 9 on November 19, 2018, four months after Louis’s inspection. (Weinberg Decl. ¶ 4.) 10 Rose’s report states he inspected the exterior of the Shopping Center and found that all 11 areas meet applicable construction-related accessibility standards. (Weinberg Decl. ¶ 12 5, Ex. A.) Villa Plaza provided a copy of Rose’s report to Villegas with its Initial 13 Disclosures on December 7, 2018, as well as attaching it as an exhibit to its Opposition 14 to Villegas’s Motion. (Weinberg Decl. ¶ 6.) 15 Villegas neither filed a reply to Villa Plaza’s Opposition nor objected to Rose’s 16 Report. Accordingly, the Court finds it undisputed that, as of November 19, 2018, the 17 exterior of the Shopping Center including the parking areas meets all applicable 18 construction-related accessibility standards. Consequently, the Court finds that 19 Villegas’s ADA claim is based on architectural barriers moot. Oliver, 654 F.3d at 905 20 (“[R]emoval of alleged barriers prior to trial can have the effect of mooting a plaintiff’s 21 ADA claim.”). Therefore, Villegas’s Motion is DENIED. 22 B. Sua Sponte Granting Summary Judgment 23 Rule 56(f) allows the Court to grant summary judgment sua sponte for a 24 nonmovant, so long as “the losing party has reasonable notice that the sufficiency of his 25 or her claim will be in issue.” Norse v. City of Santa Cruz, 629 F.3d 966, 971–72 (9th 26 Cir. 2010). “Reasonable notice implies adequate time to develop the facts on which the 27 litigant will depend to oppose summary judgment.” Albino v. Baca, 747 F.3d 1162, 28 1176 (9th Cir. 2014) (internal quotation marks omitted). 1 Here, Villegas moved for summary judgment and presented evidence in support of his claim. (See Mot.) Villegas had an opportunity to dispute Villa Plaza’s evidence 3 || and reply to Villa Plaza’s Opposition, but he choose not to. (See Mot.) Accordingly, Villegas has been given adequate notice and a reasonable opportunity to develop the 5 || facts to oppose a summary judgment. Albino, 747 F.3d at 1176. The Court has already 6 | ruled that Villegas’s ADA claim is moot. Therefore, the Court sua sponte GRANTS 7 || summary judgment in favor of Villa Plaza. See generally Hubbard vy. 7-Eleven, Inc., 8 | 433 F. Supp. 2d 1134, 1149 (S.D. Cal. 2006) (sua sponte granting summary judgment 9 || for defendant in a case where plaintiff's ADA claims were moot.) 10 Vv. CONCLUSION 11 For the reasons discussed above, the Court DENIES Villegas’s Motion for 12} Summary Judgment. (ECF No. 22.) The Court sua sponte GRANTS summary 13 || judgment in favor of Villa Plaza. Accordingly, the Court DENIES Villa Plaza’s motion 14 || to dismiss as moot. (ECF No. 24.) The Court will issue Judgment. 15 16 IT IS SO ORDERED. 17 18 January 6, 2020 19 wus 00 llisi OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE
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