1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL RODRIGUEZ, Case No.: 20-cv-150-JAH
12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 14 RALPHS GROCERY COMPANY, an PLAINTIFF’S MOTION FOR Ohio Corporation; and DOES 1-10, 15 SUMMARY JUDGMENT Defendants. 16
17 INTRODUCTION 18 Pending before the Court are Plaintiff Michael Rodriguez’s (“Plaintiff” or 19 “Rodriguez”) and Defendant Ralphs Grocery Company’s (“Defendant” or “Store”) Cross 20 Motions for Summary Judgment, filed pursuant to Fed. R. Civ. P. 56. See Doc. Nos. 20, 21 21. The motions have been fully briefed. See Doc. Nos. 24-27. For the reasons explained, 22 the Court GRANTS Defendant’s motion and DENIES Plaintiff’s motion. 23 FACTUAL BACKGROUND 24 Plaintiff Michael Rodriguez shops at his neighborhood grocery store, the Food 4 25 Less located at 312 Euclid Avenue, San Diego California, which is located less than a half 26 mile from his home. The Store has numerous cart corrals located throughout the parking 27 lot where customers are to deposit their shopping carts after use. Occasionally customers 28 1 dispose of their shopping carts outside of the designated corrals, which are eventually 2 picked-up and retrieved by Store employees. 3 To ensure carts are disposed of into the proper corrals, the Store employs cart 4 associates. The primary duty of the cart associate is to visually inspect the Store’s parking 5 lot and retrieve all shopping carts from outside the Store and bring them back to the cart 6 storage area in front of the store. 7 Plaintiff cannot walk independently because he has cerebral palsy, so he uses a 8 wheelchair for mobility. On two occasions in November 2019 and on two occasions in 9 December 2019, Plaintiff visited the Store to buy groceries. Along Euclid Avenue, 10 Rodriguez can take one of two paths of travel to the store: 1) a path located along the south 11 side of Wells Fargo that leads into the Store parking lot; 2) a path located further south on 12 Euclid Avenue, after crossing Naranja Street, which provides a switchback ramp leading 13 to a marked path of travel toward the Store. During the alleged visits, Rodriguez used either 14 of the aforementioned paths to get to and from the Store. During each of these visits, 15 Rodriguez encountered shopping carts blocking the path of travel, making it difficult for 16 him to pass through in his wheelchair. On each of the November 2019 visits, Rodriguez 17 complained to the Store manager at least twice, who assured Plaintiff the issues would be 18 taken care of. 19 Since those visits, Rodriguez has continued to visit the Store, including several times 20 between August and November 2020, wherein he repeatedly encountered shopping carts 21 blocking the paths of travel, specifically on the switchback ramp and on or near the 22 walkway in front of the Store. On several occasions, shopping carts that were collected and 23 stacked together were left on the path of travel, usually off to one side but still crowding 24 the way. Rodriguez complained about the obstructions several more times and asked the 25 Store manager to change policies so that the paths are kept clear of shopping carts. 26 On several occasions, Rodriguez has had to either move shopping carts out of his 27 way to pass, or otherwise ride his wheelchair in the vehicular way to access the store 28 when unable to get around carts another way. The latter caused Rodriguez discomfort as 1 he feared he would be hit by a car. During one of his November 2019 visits, cars honked 2 at Rodriguez, and a security guard even shouted at him when he used the vehicular way 3 to access the Store. 4 PROCEDURAL BACKGROUND 5 Plaintiff filed a complaint on January 22, 2020, asserting claims for (1) disability 6 discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 7 12101, et. seq.; (2) disability discrimination for failure to reasonably accommodate, 42 8 U.S.C. § 12182; and (3) disability discrimination for failure to reasonably accommodate in 9 violation of the Unruh Civil rights Act (“Unruh”), Cal. Civ. Code § 51-53. Plaintiff names 10 Ralphs Grocery Company and Does 1-10 as defendants. Plaintiff alleges that he is a 11 paraplegic who cannot walk and who uses a wheelchair for mobility. Complaint ¶ 1 (Doc. 12 No. 1). He alleges that on two occasions in November 2019 and two occasions in December 13 2019, Defendant failed to provide accessible paths of travel leading from the parking lot to 14 the store entrance within the ADA standards as related to wheelchair users like Plaintiff. 15 Id. ¶¶ 8, 10. 16 Defendant filed an answer on February 10, 2020 and the parties jointly filed a 17 discovery plan on June 2, 2020. On June 8, 2020 the Honorable William V. Gallo, United 18 States Magistrate Judge, issued a Scheduling Order. On February 26, 2021 Defendant Store 19 and Plaintiff filed separate motions for summary judgment. The parties filed respective 20 oppositions on March 26, 2021, and both filed respective replies on April 9, 2021. 21 LEGAL STANDARD 22 Summary judgment is properly granted when “there is no genuine issue as to any 23 material fact and ... the moving party is entitled to judgment as a matter of law.” Fed. R. 24 Civ. P. 56(c). Entry of summary judgment is appropriate “against a party who fails to make 25 a showing sufficient to establish the existence of an element essential to that party’s case, 26 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 27 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial 28 burden of establishing an absence of a genuine issue of material fact. Celotex, 477 U.S. at 1 323. Where the party moving for summary judgment does not bear the burden of proof at 2 trial, as here, it may show that no genuine issue of material fact exists by demonstrating 3 that “there is an absence of evidence to support the non-moving party’s case.” Id. at 325. 4 The moving party is not required to produce evidence showing the absence of a genuine 5 issue of material fact, nor is it required to offer evidence negating the non-moving party’s 6 claim. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 885 (1990); United Steelworkers v. 7 Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). “Rather, the motion may, and 8 should, be granted so long as whatever is before the District Court demonstrates that the 9 standard for the entry of judgment, as set forth in Rule 56(c), is satisfied.” Lujan, 497 U.S. 10 at 885 (quoting Celotex, 477 U.S. at 323). 11 Once the moving party meets the requirements of Rule 56, the burden shifts to the 12 party resisting the motion, who “must set forth specific facts showing that there is a genuine 13 issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Without specific 14 facts to support the conclusion, a bald assertion of the “ultimate fact” is insufficient. See 15 Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir. 1991). A material fact is one that 16 is relevant to an element of a claim or defense and the existence of which might affect the 17 outcome of the suit. The materiality of a fact is thus determined by the substantive law 18 governing the claim or defense. Disputes over irrelevant or unnecessary facts will not 19 preclude a grant of summary judgment. T.W. Electrical Service, Inc. v. Pacific Electrical 20 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 248). 21 When making this determination, the court must view all inferences drawn from the 22 underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 23 U.S. at 587. “Credibility determinations, the weighing of evidence, and the drawing of 24 legitimate inferences from the facts are jury functions, not those of a judge, [when] ... ruling 25 on a motion for summary judgment.” Anderson, 477 U.S. at 255. 26 Cross-motions for summary judgment do not necessarily permit the judge to render 27 judgment in favor of one side of the other. Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 28 1975). The court must consider each motion separately “on its own merits” to determine 1 whether any genuine issue of material fact exists. Fair Hous. Council of Riverside Cnty, 2 Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001); Starsky, 512 F.2d at 112. When 3 evaluating cross-motions for summary judgment, the court must analyze whether the 4 record demonstrates the existence of genuine issues of material fact, both in cases where 5 both parties assert that no material factual issues exist, as well as where the parties dispute 6 the facts. See Fair Hous. Council of Riverside Cnty, 249 F.3d at 1136 (citing Chevron USA, 7 Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5 (9th Cir. 2000)). 8 DISCUSSION 9 I. Defendant’s Motion for Summary Judgment 10 Defendant argues that 1) Plaintiff’s Inaccessible Path of Travel claim fails for lack of 11 fair notice; 2) Plaintiff’s ADA and Unruh Act claims lack merit; 3) Plaintiff’s claims for 12 injunctive relief are moot; and 4) if the Court does not dismiss Plaintiff’s Unruh Act claim 13 with prejudice, then it should decline supplemental jurisdiction over the claim. 14 A. Plaintiff’s Complaint Lacks Sufficient Notice 15 FRCP Rule 8 states that a civil complaint “must contain…a short and plain statement 16 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The 17 Supreme Court has interpreted the “short and plain statement” requirement to mean that 18 the complaint must provide “the defendant [with] fair notice of what…the claim is and the 19 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 20 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 To succeed on his Title III, ADA claim, “a plaintiff must show that: (1) he is disabled 22 within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or 23 operates a place of public accommodation; and (3) the plaintiff was denied public 24 accommodations by the defendant because of his disability.” Arizona ex rel. Goddard v. 25 Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670 (9th Cir. 2010). Where the ADA 26 claim is based on architectural barriers at a place of public accommodation, as here, the 27 Ninth Circuit has held that the relevant grounds for a claim for discrimination are the 28 allegedly non-compliant architectural features at the facility. Oliver v. Ralphs Grocery Co., 1 654 F.3d 903, 908 (9th Cir. 2011) (citing Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 2 963, 968 (9th Cir. 2006). “For the purposes of Rule 8, a plaintiff must identify the barriers 3 that constitute the grounds for a claim of discrimination under the ADA in the complaint 4 itself; a defendant is not deemed to have fair notice of barriers identified elsewhere.” Id. at 5 909. 6 Under the Unruh Act, Plaintiffs must allege facts showing that they actually suffered 7 the discriminatory conduct being challenged and possess a concrete and actual injury that 8 is not merely hypothetical or conjectural. Vargas v. Facebook, Inc., No. 19-cv-05081- 9 WHO, 2021 U.S. Dist. LEXIS 12485, at *8-9 (N.D. Cal. Jan. 21, 2021) (citing Angelucci 10 v. Century Supper Club, 41 Cal. 4th 160, 165 (2007); White v. Square, Inc., 7 Cal. 5th 1019, 11 1032 (2019)). Any violation of the right of an individual under the ADA constitutes a 12 violation of the Unruh Act. Cal. Civ. Code § 51(f). 13 Defendant argues that Plaintiff’s complaint fails to provide proper notice under 14 Federal Rule of Civil Procedure 8, because an ADA plaintiff alleging violations based on 15 obstructions to public accommodations must identify all alleged access barriers in his 16 complaint in order to give the defendant fair notice. Indeed, the Ninth Circuit has 17 repeatedly held that under the Iqbal/Twombly fact-pleading requirement, an ADA 18 complaint that does not allege the specific barriers or deficiencies which denied him access 19 does not provide fair notice under FRCP 8. See Whitaker v. Tesla Motors, Inc., 985 F.3d 20 1173, 1177 (9th Cir. 2021); Whitaker v. Panama Joes Investors LLC, 2021 WL 238401, 21 *1-2, fn. 2 (9th Cir. 2021); Oliver, 654 F.3d at 909, fn. 7. In Oliver, the Ninth Circuit 22 specifically held: 23 Plaintiff’s counsel later explained that his delays in identifying the barriers at the facility were part of his legal strategy: he purposefully ‘forces the defense 24 to wait until expert disclosures (or discovery) before revealing a complete list 25 of barriers,’ because otherwise a defendant could remove all the barriers prior 26 to trial and moot the entire case…[F]or purposes of Rule 8, a plaintiff must 27 identify the barriers that constitute the grounds for a claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have fair 28 1 notice of barriers identified elsewhere. Oliver, 654 F.3d at 909, fn. 7. 2 Plaintiff’s complaint alleges that Defendant “failed to provide accessible paths of 3 travel leading from the parking lot to the Store entrance within the ADA Standards.” 4 Defendant contends that such an allegation fails to answer basic questions such as what 5 was wrong with the paths of travel, were they too narrow, were the running slopes too 6 steep, were the cross-slopes too steep, etc. Defendant further argues the complaint is legally 7 insufficient in that the complaint makes no mention of shopping carts whatsoever. 8 In response, Plaintiff argues that Defendant has waived his challenge to the 9 sufficiency of Plaintiff’s Complaint by failing to raise the Rule 12(b) defense at an earlier 10 stage in the litigation. For this proposition, Plaintiff cites King v. Taylor, 694 F.3d 650, 658 11 (6th Cir. 2012). However, the King case is not from this circuit and is therefore not binding 12 authority for this Court’s decision. Furthermore, as Defendant points out, the court in King 13 held only that the defendant had waived his lack of proper service defense through 14 extensive participation in the litigation. King, 694 F.3d at 658. 15 Plaintiff further argues that at the time he filed his complaint, he had a non-frivolous 16 basis to believe that his pleading was sufficient under Skaff v. Meridien N. Am. Beverly 17 Hills, LLC, 506 F.3d 832 (9th Cir. 2007). Plaintiff acknowledges that while the argument 18 in Skaff was ultimately rejected by the Ninth Circuit in Tesla, supra, that case was not 19 decided until January 25, 2021, a year after the Complaint was filed. While changes in 20 controlling authority commonly occur throughout the lifespan of a given case, the Court 21 finds Plaintiff’s reliance on Skaff is misplaced. As the Ninth Circuit pointed out in Tesla, 22 Skaff was decided prior to the Supreme Court’s decisions in Iqbal and Twombly. Tesla, 985 23 F.3d at 1179. This means Skaff was decided when the standard under. Fed. R. Civ. P. 8 was 24 notice pleading, a standard squarely rejected by Iqbal and Twombly. Id. Furthermore, the 25 Ninth Circuit went on to point out that the proper, fact-based pleading required for an ADA 26 claim is described in detail in Chapman v. Pier 1 Imps., 631 F.3d 939 (9th Cir. 2011), a 27 case cited to and relied on by Plaintiff in his response to the instant motion. Id. Therefore, 28 1 Plaintiff’s reliance on the Skaff pleading standard is unavailing in the face of prominent 2 caselaw requiring otherwise. 3 Ultimately, the Court finds Plaintiff’s complaint fails for lack of fair notice. The 4 Ninth Circuit has repeatedly held that ADA complaints that fail to identify the specific 5 barriers or deficiencies which harmed a plaintiff fail to comply with Rule 8’s notice 6 requirements. See Tesla, 985 F.3d at 1177; Whitaker, 2021 WL 238401, *1-2, fn. 2; 7 Oliver, 654 F.3d at 909, fn. 7 Furthermore, in direct contravention of the standards set by 8 Iqbal and Twombly, a review of Plaintiff’s complaint reveals nothing more than 9 conclusory allegations without any specific facts. See Ashcroft v. Iqbal, 556 U.S. 662, 10 677-87 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-64 (2007). Plaintiff’s 11 complaint alleges: 1) the Store is a place of public accommodation; 2) on the dates of 12 Plaintiff’s visits, Defendant failed to provide accessible paths of travel leading from the 13 parking lot to the Store entrance within the ADA Standards as it relates to wheelchair 14 users like Plaintiff; 3) the Defendant currently fails to provide accessible paths of travel 15 leading from the parking lot to the Store entrance; 4) those barriers relate to and impact 16 Plaintiff’s disability, and that Plaintiff personally encountered these barriers; 5) that by 17 failing to provide accessible facilities, Defendant denied Plaintiff full and equal 18 access…and so on in recitation of the elements of an ADA claim. However, Plaintiff’s 19 complaint does not identify which specific paths were deficient or how they were 20 deficient, so the complaint ultimately amounts to no more than a threadbare recitation of 21 the elements as required by the statute and caselaw. 22 Furthermore, logical inconsistencies in Plaintiff’s complaint, at odd with the 23 instant motion for summary judgment, must be noted. First, Plaintiff’s complaint alleges 24 the barriers are obvious and blatant in nature, despite the fact that no specific barriers are 25 mentioned at all in the complaint. Second, in that same paragraph, Plaintiff alleges that 26 there are other violations and barriers on site related to Plaintiff’s disability, and that 27 Plaintiff “will amend the complaint, to provide proper notice regarding the scope of this 28 lawsuit, once he conducts a site inspection.” Plaintiff therefore intrinsically acknowledges 1 that without specificity his complaint would fail to provide adequate notice. And while 2 Plaintiff did commission an expert site investigation, he has not sought to amend his 3 complaint. 4 Moreover, while it is true Defendant could have moved to dismiss for lack of 5 notice at an earlier stage, it should be noted that Defendant’s motion for summary 6 judgment came prior to the close of discovery, and Defendant only became aware of the 7 specifically alleged barriers by way of discovery mechanisms: responses to 8 interrogatories and an expert report filed by Plaintiff. Finally, as Defendant points out, the 9 Ninth Circuit has routinely permitted and upheld summary judgment decisions where 10 complaints provided insufficient notice. Gray v. County of Kern, 704 Fed. Appx. 649, 11 650-51 (9th Cir. 2017); Duarte v. M&L Brothers Pharmacy, Inc., 2014 WL 5663921 at 12 *3 (C.D. Cal. 2014); Oliver, 654 F.3d at 909. 13 Thus, to the extent Plaintiff’s claims are based on the alleged shopping cart barriers 14 identified only in the parties’ cross-summary judgment motions, Defendant is entitled to 15 summary judgment on those aspects of Plaintiff’s ADA claims under Rule 8. 1 See 16 Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968-89 (9th Cir. 2006) (affirming 17 trial court’s decision to disregard plaintiff’s newly asserted ADA violations at the 18 summary judgment stage because it would violate Rule 8’s fair notice requirement); see 19 e.g., Navajo Nation v. U.S. forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (“[O]ur 20 precedents make clear that where, as here, the complaint does not include the necessary 21 factual allegations to state a claim, raising such a claim in a summary judgment motion is 22 insufficient to present the claim to the district court”). 23
24 25 1 In response to Defendant’s motion for summary judgment, Plaintiff argues that at the very least he should be granted leave to amend, however such a request is insufficient without more. If Plaintiff seeks 26 to amend his complaint, he may do so only by filing a motion showing good cause why he should be permitted to amend his complaint outside of the July 7, 2020 deadline imposed by Judge Gallo’s 27 Scheduling Order (Doc. No. 17) as required by Fed. R. Civ. P. 16(b)(4). See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 28 1 B. ADA and Unruh Claims Lack Merit 2 Next, Defendant maintains that Plaintiff’s ADA and Unruh claims lack merit, 3 because the claimed obstructions were only temporary. Defendant cites to a number of 4 cases for the proposition that temporary interruptions in access or isolated denials of access, 5 negligence, or trivial violations are insufficient to support a claim under the ADA or Unruh 6 Act. 7 In Jinkins v. Wal-Mart Realty Company, the plaintiff alleged that shopping carts and 8 movable trash cans obstructed the paths of travel in the parking lot in violation of the ADA 9 and the Unruh Act. Jinkins v. Wal-Mart Realty Co., 2019 WL 1670825 (C.D. Cal. Jan. 15, 10 2019). In its motion for summary judgment, the defendant directed the court to a DOJ 11 Technical Assistance Manual which provided that “Isolated or temporary interruptions in 12 access due to maintenance and repair of accessible features are not prohibited…An isolated 13 instance of placement of an object on an accessible route would not be a violation, if the 14 object is promptly removed.” Id. at *2 (citing ADA Title III Technical Assistance Manual, 15 § III-4.4110, located at https://www.ada.gov/taman3.html).2 The defendant submitted a 16 declaration from a company representative stating that their employees regularly inspected 17 the parking lot to retrieve shopping carts that were not placed in cart corrals by customers. 18 Id. at *1. There, the plaintiff claimed that he visited the store on three occasions, but that 19 accessible paths were blocked each time. Id. Similarly to the case at bar, the plaintiff also 20 hired an investigator who observed the same obstructions on two separate occasions. Id. 21 Despite such evidence, the court granted summary judgment to defendant, holding: 22 On this record, no reasonable jury could conclude that the obstructions caused 23
24 25 2 Regulations promulgated by the DOJ, which govern compliance with the ADA, are given controlling weight, under Chevron. Chapman, 631 F.3d at 947, (“[T]he ADAAG establishes the technical standards 26 required for “full and equal employment,” if a barrier violating these standards relates to a plaintiff’s disability, it will impair the plaintiff’s full and equal access which constitutes “discrimination” under the 27 ADA.”); Oliver, 654 F.3d 903 at fn. 4, (“Because the Attorney General developed the ADAAG pursuant to an express delegation of authority by Congress, § 12186(b), courts must give ADAAG “controlling 28 1 by shopping carts and trash cans were more than isolated or temporary 2 interruptions in access or persisted beyond a reasonable time…due to 3 Defendants’ policy and practice regarding shopping carts and the presence of 4 cart associates, any obstruction caused by a shopping cart or trash can would 5 temporarily exist for no more than minutes. Remediating such obstructions 6 within minutes is eminently reasonable. 7 Id. at *3. 8 Defendant notes that in Jinkins, in a footnote, the court recognized that the 9 customers’ role in leaving shopping carts in accessible routes was significant in that 10 it affects what a factfinder can reasonably expect of property owners in the 11 defendant’s position. Id. at *4, fn. 5. Defendant argues that distinction is important 12 under Montoya v. City of San Diego, which found no legal basis for holding a private 13 entity liable for ADA/Unruh Act violations of third parties, such as its customers. 14 Montoya v. City of San Diego, 434 F.Supp.3d 830, 851 (S.D. Cal. 2020). 15 In Tanner v. Wal-Mart Stores, Inc, the court held that a store’s failure to 16 remove a shopping cart obstruction and ice from the sole accessible parking space 17 on one occasion was a temporary denial of access that did not violate the ADA. 18 Tanner v. Wal-Mart Stores, Inc., 2000 U.S. Dist. LEXIS 1444 at *15-*17 (D.N.H. 19 Feb. 8, 2000). There, when the disabled plaintiff’s wife saw the shopping carts, she 20 exited the vehicle to move the carts and slipped and fell on the ice. Id. at 4. In 21 granting the defendant’s motion for summary judgment on the plaintiff’s ADA 22 claim, the court noted that an isolated instance of placement of an object in an 23 accessible route is not a violation. Id. at *16. 24 Here, Defendant claims it employs cart associates who are constantly and 25 continuously inspecting the parking lot and retrieving shopping carts from the 26 parking lot, so any cart obstructions exist for no more than a few minutes. Defendant 27 argues that employing cart associates satisfies the requirements of the ADA and 28 therefore it cannot be held liable for obstructions caused by third parties such as 1 customers. 2 In response, Plaintiff points out that all the cases relied on by Defendant 3 involved a single incident that was addressed within minutes or hours, and not later 4 repeated. In contrast, Plaintiff alleges he has repeatedly encountered the shopping 5 carts which obstruct the paths of travel on multiple occasions, and that even after 6 speaking with management the barriers were not removed after a brief delay as 7 required by the Americans with Disabilities Act Guidelines (“ADAAG”).3 8 Plaintiff argues the instant case is distinct from Jinkins, because in Jinkins the 9 plaintiff failed to produce evidence disputing the efficacy of the defendant’s policy 10 by showing that the few incidents alleged “persisted beyond a reasonable period in 11 time” and were not just temporary or isolated incidents. Jinkins at 3. Here, Plaintiff 12 alleges the shopping carts obstructed his path of travel on countless occasions 13 beyond the November and December 2019 visits that purportedly gave rise to the 14 complaint. 15 Plaintiff contends his case is more akin to the case in Chapman v. Pier 1 16 Imports (U.S.), Inc., 779 F.3d 1001 (9th Cir. 2015) (hereinafter “Chapman II”).4 In 17 Chapman II, the Ninth Circuit found that the defendant had repeatedly failed to 18 maintain accessible routes in its stores, despite the defendant having a policy in place 19 to keep the store aisles clear. Id. at 1007-08. In acknowledging the policy, the Ninth 20 Circuit found that the “policies and procedures were either ineffective in preventing 21 frequent blocking of aisles or honored in the breach.” Id. at 1008. 22 It is Plaintiff’s contention that the cart removal policy and employment of cart 23 associates in the instant case are therefore similarly ineffective, given the number of 24
25 26 3 See footnote 2, supra. The ADAAG are part of the ADA Title III Technical Assistance Manual, which the Supreme Court has cited as the authority on the ADA and has held that the Department of Justice’s 27 views are entitled to deference. Bragdon v. Abbot, 524 U.S. 624, 646 (1998). 4 Chapman II is the procedural continuation of the Chapman case previously cited. Chapman II, 779 28 1 times Rodriguez encountered the issue. Plaintiff also notes that in Chapman II, the 2 Ninth Circuit expressly considered the affirmative actions the defendant’s 3 employees took in placing large furniture and display racks in the aisles in its 4 reasoning. Id. at 1009. Plaintiff therefore argues that Defendant cannot avoid liability 5 even if the bulk of obstructing carts were the result of customer negligence, because 6 Plaintiff and his expert have both observed instances where Defendant’s employees 7 were the source of the same obstructions. 8 It is worth noting that in Jinkins the plaintiff encountered barriers a total of 9 five times over an alleged one-year period. See Jinkins at *5. Here Plaintiff 10 correctly observes that in Jinkins and the other cases cited by Defendant, the 11 obstructions were truly isolated events or else there was no evidence to the 12 contrary. In contrast, Plaintiff is alleging countless instances beyond the four that 13 purportedly gave rise to the complaint in the instant case. To that end, Plaintiff 14 rightly claims the instant case is more akin to Chapman II, in which eleven 15 obstructions were alleged. However, the similarities end there. 16 Similar to the case in Jinkins, the misplacement and abandonment of shopping 17 carts in Plaintiff’s case was the result of negligent customers as opposed to a 18 reflection of conduct by Defendant Store and its employees. See Jinkins at *1. In 19 contrast, many of the obstructions in Chapman II were caused by the affirmative 20 conduct of the defendant’s employees. Chapman II at 1009. And in both cases, as 21 well as in the instant case, the defendant stores had policies in place to ensure that 22 paths of access remained unobstructed. Jinkins at *1; Chapman II at 1008. 23 In Chapman II, the evidentiary value of the policy was undermined by the 24 employees willfully violating it and, in the process, violating the law as well. 25 Chapman II at 1008-09. In Jinkins and in the instant case, the alleged obstructions 26 occurred not because of willful policy violations by employees, but instead because 27 of endless customer negligence – despite existing policies and employed cart 28 1 associates. See Jinkins, 2019 WL 1670825. Moreover, in Chapman II, the 2 obstructions were heavy, large furniture (armchairs) and bulky display racks. 3 Chapman II at 1007. Here, the alleged obstructions are shopping carts, which in 4 addition to being inherently mobile due to their wheels, are also easily manipulated 5 out of the way. To that end, the Court finds the reasoning in Jinkins is most 6 analogous to the instant case. 7 Defendant argues that despite Plaintiff’s claims, he has actually submitted 8 zero evidence regarding how long any allegedly obstructing carts remained in non- 9 designated areas. Defendant argues that since customers are constantly coming to 10 and leaving the Store, submitting a photograph of a cart that a customer did not place 11 in a cart corral has no bearing on how long the cart remained there. Defendant argues 12 further that the statements made by Plaintiff and his investigator that Defendant’s 13 employees were the source of misplaced carts on some occasions is immaterial, 14 because on those occasions (as confirmed by the investigator’s photos themselves) 15 the employees were simply collecting carts to remove from the accessible routes and 16 the parking lot. Defendant notes that even while amassing the carts, employees were 17 placing those carts to the side leaving ample room for wheelchair access. 18 Assuming the specifically identified barriers are properly before the court, including 19 the obstructions noted by Plaintiff’s investigator which Plaintiff did not actually encounter, 20 Plaintiff has not submitted any evidence tending to show the obstructions were not 21 temporary. Even if Plaintiff’s additional facts were contained in the Complaint, and 22 viewing the facts and evidence in a light most favorable to Plaintiff as the non-movant, 23 Plaintiff’s own evidence only strengthens Defendant’s argument. 24 In Plaintiff investigator’s first set of photos, two different paths of access are 25 photographed, and each photo has a time stamp. The time between the first photo and the 26
27 5 This evidence compounds with the photos submitted by Plaintiff, discussed below, which plainly show 28 1 last photo total thirty-two minutes. For the path of access leading to the front of the store, 2 there are seven photos, all from different vantage points. In four of those photos, a stack of 3 carts at the front of the store is depicted, however in each of the photos the stack has been 4 moved or shifted. In the photos with a later time stamp, the stack of carts is shown to have 5 grown. In one of the photos, a cart associate can be seen physically removing the carts. In 6 the remaining three photos depicting areas leading to the front of the store, they are each 7 independent from the others, so it is impossible to tell how long the carts were in place. In 8 the remaining two photos depicting a path of travel not leading to the front of the store, the 9 path is completely clear at 4:13 p.m., and then at 4:17 p.m. a single cart at the cart corral is 10 at an angle and one wheel is just over the line into the marked accessible path, however 11 there is more than enough space for a wheelchair to pass. 12 In Plaintiff investigator’s second set of photos, taken at least fifteen days later, the 13 same two paths of access are photographed over the span of five hours. For the path of 14 access leading to the front of the store there are again seven photos, all from different 15 vantage points. Again, in four of those photos, a stack of carts is depicted at the front of 16 the Store, and in each of the photos the stack has been moved or shifted: in two of the 17 photos, taken two seconds apart, the stack is to one side and mostly in the vehicular way 18 so as not to obstruct the wheelchair path; in the other two photos, taken less than an hour 19 later, a cart associate is unquestionably in the process of stacking carts for removal. The 20 remaining three photos leading to the front store were taken from different vantage points; 21 the second photo was taken two hours after the first photo, and the third photo was taken 22 thirty-five minutes later. In all three photos, the obstructing carts are in different places, so 23 it cannot be said that any one obstruction remained for a given period of time. In this set 24 there is only one photo of the other path of access, and carts are plainly depicted obstructing 25 the path. However, the evidence does not demonstrate how long those obstructions 26 persisted because there are no other time-stamped photos of that path of travel. 27 Additionally, Plaintiff himself documented and submitted three sets of photographs 28 of allegedly violative obstructions encountered on his visits to the Store. The first set was 1 taken in August 2020, the second set in September 2020, and the third in October 2020. 2 Importantly, all three sets of photos taken by Plaintiff were taken after his complaint was 3 filed and do not necessarily support the alleged obstructions that gave way to the causes of 4 action now before the Court. Furthermore, the Court finds it difficult to appreciate how 5 these photos advance Plaintiff’s position. In his declaration, Plaintiff claims the photos 6 show the switchback ramp and its purported obstructions, as well as the paths of travel 7 leading directly to the store. However, the photos are grainy, do not actually depict 8 obstructions in paths of travel, and ultimately it is very hard to discern what exactly is being 9 captured. To that end, the photos taken by Plaintiff himself do not move the needle one 10 way or the other. 11 As such, the Court finds Defendant has met its burden by showing that the alleged 12 barriers were in fact temporary in nature, and therefore not in violation of the ADA. Even 13 viewing the evidence in a light most favorable to Plaintiff as the non-movant, Plaintiff has 14 not shown a genuine issue of material fact to avoid the granting of summary judgment in 15 Defendant’s favor. Accordingly, Defendant is entitled to summary judgment on this issue 16 as a matter of law. 17 C. Plaintiff’s Claims for Injunctive Relief are Moot 18 Defendant argues that even if Plaintiff’s complaint somehow provided sufficient 19 notice and even if his claims were somehow viable, the ADA claims in their entirety should 20 be dismissed as moot. “A case becomes moot – and therefore no longer a ‘Case’ or 21 ‘Controversy’ for purposes of Article III – ‘when the issues presented are no longer ‘live’ 22 or the parties lack a legally cognizable interest in the outcome.’” Already, LLC v. Nike, 23 Inc., 568 U.S. 85, 91, 133 S. Ct. 721, 726 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 24 481 (1982)). Defendant contends that the voluntary removal of alleged barriers prior to 25 trial can have the effect of mooting an ADA claim, because a private ADA plaintiff may 26 only sue for injunctive relief (i.e., for removal of the barrier). Oliver, 654 F.3d at 905 (citing 27 Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134, 1145 (S.D. Cal. 2006); see 42 U.S.C. § 28 2000a-3(a), 12188(a)(2); cf. Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1 1179-80 (9th Cir. 2010). 2 As a basis for its argument, Defendant cites Plaintiff’s response to its interrogatory. 3 Defendant asked Plaintiff to identify, in specific terms, all injunctive relief he seeks in this 4 action. In Plaintiff’s Response to Interrogatory No. 8, attached as Exhibit B to the Chilleen 5 Declaration, Plaintiff replied: “Plaintiff would like Food 4 Less to create a policy or 6 standard operating procedure so carts are frequently removed from the paths of travel 7 during business hours.” Defendant therefore argues that Plaintiff’s claims for injunctive 8 relief is therefore moot, because such a policy exists and was in place prior to Plaintiff 9 filing the complaint. 10 Defendant next argues that even if Plaintiff could show that Defendant occasionally 11 fails to follow its cart retrieval policy/practice, he would not be entitled to injunctive relief, 12 because it is well established that a Plaintiff is not entitled to an injunction merely because 13 employees violate their employer’s ADA policies or practices. In support, Defendant relies 14 on Midgett v. Tri-County Metropolitan Transportation District of Oregon, where 15 malfunctioning bus elevators for riders using wheelchairs was at issue. There the Ninth 16 Circuit held: 17 “[T]he district court did not abuse its discretion by denying Plaintiff’s request 18 for a permanent injunction. Plaintiff’s evidence establishes several frustrating, 19 but isolated, instances of malfunctioning lift service on Tri-Met. The evidence 20 also shows that unfortunately, a few individual Tri-Met operators have not 21 treated passengers as they are required and trained to do. Under the 22 regulations, these occasional problems do not, without more, establish a 23 violation of the ADA. At most, the evidence shows past violations of the 24 ADA. It does not, however, support an inference that Plaintiff faces a real and 25 immediate threat of continued, future violations of the ADA in the absence of 26 injunctive relief…” 27 Midgett v. Tri-County Metropolitan Transportation District of Orgeon, 254 F.3d 846, 28 850 (9th Cir. 2001). 1 However, the Supreme Court summarized the standard for establishing mootness 2 when a defendant has ceased the challenged conduct in United States v. Concentrated 3 Phosphate Export Ass’n as follows: 4 “The test for mootness in such cases as this is a stringent one. Mere 5 voluntary cessation of allegedly illegal conduct does not moot a case; if it 6 did, the courts would be compelled to leave the defendant free to return to 7 his old ways. A case might become moot if subsequent events made it 8 absolutely clear that the allegedly wrongful behavior could not reasonably 9 be expected to recur.” 10 United States v. Concentrated Phosphate Export Ass’n, U.S. 199, 203-04 (1968) 11 (citations omitted). The burden of establishing mootness lies with Defendant, and 12 Plaintiff argues Defendant has not met that burden. Friends of the Earth Inc., v. Laidlaw 13 Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). 14 In support of his argument, Plaintiff cites Moeller v. Tacobell and Langer v. 15 Kaimana. In Moeller, the court rejected the defendant’s argument that claims for 16 injunctive relief were moot because the defendant had a documented history of violating 17 its own ADA policies. Moeller v. Tacobell, 816 F. Supp. 2d 831, 860-61 (N.D. Cal. 18 2011). In Langer, the court denied the defendants’ motion to dismiss, because there was 19 no evidence that they would actually follow their newly enacted policy of not placing 20 merchandise and a dumpster in the access aisle next to a wheelchair accessible parking 21 spot. Langer v. Kaimana LLC, 2016 WL 7029151 at *1-2 (C.D. Cal. 2016). 22 The Court finds Defendant has met its burden of establishing that the alleged ADA 23 violations are not likely to recur. As contemplated by the Supreme Court in Concentrated 24 Phosphate at 203-04, voluntary cessation of allegedly wrongful conduct does not moot a 25 case, but there is no cessation in the instant case. As discussed throughout this Order, 26 Defendant already had in place a policy for removing shopping carts from paths of travel 27 that predates Plaintiff filing his complaint. 28 Furthermore, the Court finds the cases relied on by Plaintiff are readily 1 distinguishable from the immediate action. In contrast to Moeller, the record does not 2 reflect that Defendant Store has any history of violating its own ADA policies, including 3 its policy of employing cart associates. And unlike in Langer, Defendant’s cart-employee 4 policy predates this litigation and Plaintiff’s own photos of Defendant’s employees show 5 that the policy is enforced. Accordingly, the Court may reasonably presume Defendant 6 will continue adhering to its own policy of having employees regularly remove shopping 7 cart obstructions. 8 For the reasons stated, Defendant has met its burden on summary judgment, and 9 the burden therein became Plaintiff’s to show that there are in fact ‘live’ issues presented 10 for a jury to decide. Having failed to meet that burden, the Court finds there is no longer a 11 live “Case” or “Controversy” for purposes of Article III and Plaintiff’s ADA claims are 12 moot as a matter of law. Review of Plaintiff’s complaint reveals that Plaintiff’s Unruh 13 Act claim is entirely predicated on his ADA claims. Accordingly, Plaintiff’s Unruh Act 14 claim is also moot as a matter of law. 15 D. The Court Declines Supplemental Jurisdiction Over Plaintiff’s Unruh Claims 16 Defendant argues that the Court should decline to exercise supplemental jurisdiction 17 over Plaintiff’s state Unruh claim, because Plaintiff’s entire Unruh claim is predicated on 18 his ADA claims. Under 28 U.S.C. § 1367(c), courts may properly exercise their discretion 19 to decline supplemental jurisdiction if any of four statutory grounds exist: 20 “(1) the claim raises a novel or complex issue of State law, 21 (2) the claim substantially predominates over the claim or 22 claims over which the district court has original jurisdiction, 23 (3) the district court has dismissed all claims over which it has 24 original jurisdiction, or 25 (4) in exceptional circumstances, there are other compelling 26 reasons for declining jurisdiction.” 27 28 U.S.C. § 1367(c). 28 Defendant points out that the Supreme Court has instructed that once federal claims 1 are dismissed, courts should decline supplemental jurisdiction over related state-law 2 claims: 3 “[l]n the usual case in which all federal-law claims are eliminated before trial, 4 the balance of factors to be considered under the pendent jurisdiction 5 doctrine—judicial economy, convenience, fairness, and comity—will point 6 toward declining to exercise jurisdiction over the remaining state law claims.” 7 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, fn. 7 (1988); 8 Defendant asserts that in ADA barrier cases, courts properly and routinely decline 9 supplemental jurisdiction over related state-law access claims once the ADA cause of 10 actions have been dismissed. See Oliver at 903; see, e.g., Wilson v. Costco Wholesale 11 Corporation, 426 F. Supp. 2d 1115, 1124 (S.D. Cal. 2006) (“Because the Court has 12 dismissed all claims over which it has original jurisdiction in this matter, the Court will 13 decline to exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims”). 14 In reply, Plaintiff argues that judicial economy is the essential policy behind the 15 modern doctrine of pendent jurisdiction, and therefore jurisdiction should be retained when 16 significant judicial resources have already been committed. United Mine Workers of 17 America v. Gibbs, 383 U.S. 715 (1966). Plaintiff argues that Defendant fails to recognize 18 that judicial resources have already been exerted in this case, and as such the court should 19 not now decline jurisdiction. 20 As discussed above, any violation of the right of an individual under the ADA 21 constitutes a violation of the Unruh Act. Cal. Civ. Code. § 51(f). Since Plaintiff’s Unruh 22 Act claim is entirely predicated on his ADA claims, the Court finds sufficient grounds exist 23 to decline exercising supplemental jurisdiction under 28 U.S.C. § 1367(c) because the 24 Court has dismissed the ADA claims over which it had original jurisdiction. The Court 25 further finds that contrary to Plaintiff’s arguments, retaining jurisdiction would be a drain 26 on judicial resources because without Plaintiff’s ADA claims there can be no jurisdictional 27 hook. Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiff’s 28 Unruh Act Claim. 1 II. Plaintiff’s Motion for Summary Judgment 2 In Plaintiff’s Cross-Motion for Summary Judgment, he does not raise any new 3 grounds or present any new facts from those argued in response to Defendant’s motion. 4 However, unlike his responsive pleading, Plaintiff’s own motion does refer to some 5 administrative authorities for guidelines regarding provision and maintenance of accessible 6 routes. For example, Plaintiff points out that at least one accessible route must be provided 7 within the site from the public streets and sidewalks to the accessible building. 36 C.F.R., 8 Pt. 1191, Appendix B (Scoping 206.2.1). Plaintiff also shows that the “[a]ccessible routes 9 shall consist of one or more of the following components: walking surfaces with a running 10 slope not steeper than 1:20 (5.0%), doorways, ramps, curb ramps excluding the flared sides, 11 elevators, and platform lifts.” 36 C.F.R., Pt. 1191, Appendix D (Building Blocks: 402.2). 12 Ultimately, Plaintiff argues that as a public accommodation, Defendant Store had an 13 affirmative duty to maintain all features required for providing ready access to persons with 14 disabilities, and Defendant breached that duty when it failed to remove shopping carts from 15 the paths of travel. 28 C.F.R., Part 36, Appendix C, § 36.211 (emphasis added). 16 In response, Defendant repeats and relies upon the facts and circumstances contained 17 in its own motion for summary judgment and therefore does not address Plaintiff’s 18 argument. Regardless, Plaintiff’s motion for summary judgment must be denied. 19 First, in addition to the lack of notice in the complaint concerning the shopping cart 20 obstructions, the complaint also failed to provide notice of the guidelines relied on in 21 Plaintiff’s motion and how or why Defendant violated those guidelines as required by 22 Iqbal/Twombly. Second, in support of Plaintiff’s motion, Plaintiff supplies the same 23 photographs used in support of his opposition to Defendant’s motion, wherein shopping 24 carts seem to be mostly out of or to the side of dedicated paths or were placed only 25 temporarily. Absent here is a connection between the numerous photos of claimed 26 “obstructions” and a violation of any statutory, regulatory, or judicial authority on the ADA 27 such that Plaintiff is entitled to relief as a matter of law. These findings and others contained 28 herein preclude a determination that Plaintiff is entitled to summary judgment. l CONCLUSION 2 Plaintiff's Complaint fails to provide sufficient notice in compliance with Fed. R. 3 || Civ. P. 8 and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Furthermore, □□□□□□□□□□□ 4 ||claim under the ADA is without merit, as the alleged obstructions to the paths of travel 5 || were only temporary and Defendant has a policy in place to remove any such barriers in a 6 || timely fashion. Because Plaintiff's Unruh Act claim is predicated entirely on the existence 7 a valid ADA claim, his Unruh Act claim is also necessarily meritless. For the foregoing 8 ||reasons: IT IS HEREBY ORDERED Defendant’s motion for summary judgment is 9 GRANTED and Plaintiffs motion for summary judgment is DENIED. Plaintiff's claim 10 injunctive relief is DENIED as moot because the relief sought would replicate 11 ||Defendant’s policy for cart removal, which predates Plaintiff filing the complaint in the 12 ||instant action and which the evidence shows is regularly enforced. IT IS FURTHER 13 |} ORDERED that Plaintiff's request that the Court retain jurisdiction over its Unruh Act 14 ||claim is DENIED, as it is not within the interests of judicial economy to exercise 15 ||supplemental jurisdiction over the state law claim when there are no surviving original 16 jurisdiction claims. 17 IT IS SO ORDERED. 18 19 || DATED: September 21, 2021
21 JOHN A. HOUSTON JUNITED STATES DISTRICT JUDGE 23 24 25 26 27 28