Filed 2/6/14 Treter v. Plaza Bonita CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOSEPH TRETER, D062732
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2011-00074753-CU-CR-SC) PLAZA BONITA, L.P.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Reversed.
Mataele Law Offices, Isileli Topou Manaia Mataele for Plaintiff and Appellant.
Katten Muchin Rosenman, LLP, Holly Michele Parker and Stacey Knight for
Defendants and Respondents. I.
INTRODUCTION
Plaintiff Joseph Treter appeals from a judgment entered in favor of defendant
Plaza Bonita, L.P. (Plaza Bonita).1 Treter, who is disabled, was an employee of a retail
store in a mall owned and operated by Plaza Bonita. Treter brought an action against
Plaza Bonita alleging that Plaza Bonita violated the Unruh Civil Rights Act (Unruh Act)
(Civ. Code, § 51 et seq.) by denying him access to full and equal accommodations at the
mall, in multiple ways. For example, Treter alleged that the mall had forced him to park
in a distant employee lot during the busy holiday season as a result of its employee
holiday parking policy. Treter also alleged that the mall contained a variety of access
barriers, including an insufficient number of handicapped-accessible parking spaces,
handicapped-accessible spaces that did not have proper corresponding access aisles, and
access aisles that were directed to routes without curb cuts or ramps. Treter further
alleged that the mall's policy of locking its automated sliding doors when the mall closed
for the day constituted a barrier to his access. Plaza Bonita moved for summary
judgment. The trial court determined that Plaza Bonita was entitled to judgment as a
matter of law.
On appeal, Treter challenges the trial court's determination, as well as some of the
evidentiary rulings on which the court's summary judgment ruling was based. We
1 Plaza Bonita was erroneously sued as Westfield America, Inc. The parties do not dispute that Plaza Bonita is the correct defendant. Judgment was entered with respect to Plaza Bonita. 2 conclude that with respect to Treter's allegations that Plaza Bonita violated the Unruh Act
by failing to make the mall accessible because its parking lot did not comply with the
requirements of the Act, Plaza Bonita is not entitled to judgment as a matter of law.
Plaza Bonita presented no evidence as to the state of its parking lot, or specifically, its
handicapped-accessible parking spaces, during the time period covered by Treter's
complaint. Rather, the evidence that Plaza Bonita submitted described the state of the
mall's parking lots approximately two years after the time that Treter alleges he suffered
discrimination. There thus remains a triable issue of fact as to whether the parking lots
suffered from the defects that Treter alleges in his complaint during the relevant time
period. However, as to Treter's other factual theories for recovery under the Unruh Act,
Plaza Bonita has established that there are no triable issues of material fact as to those
theories, and that Treter cannot prevail on any of those factual theories, as a matter of
law.
Because there remain factual issues in dispute with respect to one of Treter's
theories for recovery pursuant to his single cause of action alleging violations of the
Unruh Act, Plaza Bonita is not entitled to summary judgment. For this reason, we
reverse the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
From October 2009 until March 2010, Treter worked as a store manager at Magic
Bug, a retail store located in defendant Plaza Bonita's Westfield Plaza Bonita Mall (the
3 Mall). Treter alleges, and the Mall appears to concede, that Treter is a " 'person with
physical disabilities' as defined by all applicable California and United States laws."
On December 2, 2009, Treter went to the Mall and attempted to park in a parking
lot closest to his store. Treter elected to park in a non-handicapped accessible space in
the parking lot even though a handicapped-accessible space was available at the time. A
security guard for the Mall asked Treter whether he was a Mall employee. When Treter
said that he was, the security guard told Treter that he would "have to park in the
handicap [space]—or . . . park in the employee parking lot." Treter moved his car to a
handicapped-accessible parking space without further problem.
Treter's father called the Mall's administrative office to clarify the holiday parking
policy as it applied to disabled employees. The trial court excluded as hearsay what a
Mall employee allegedly told Treter's father about the Mall's policy regarding disabled
employee holiday parking.
According to Treter's declaration and his deposition testimony, after December 2,
2009, on days when there was no handicapped-accessible parking space available, he
would "park in the employee parking lot" in order to not "get ticketed or towed." This
occurred between 10 and 15 times during the holiday season that year.
On January 14, 2011, Treter filed a complaint against Plaza Bonita.2 In his
complaint, Treter alleged a single cause of action for "Denial of Access to Full and Equal
Accommodations, Advantages, Facilities, Privileges and/or Services in Violation of
2 Again, Treter originally erroneously sued Westfield America, Inc. Treter was represented by counsel in the trial court. 4 California Civil Code § 51 et seq. (the Unruh Civil Rights Act)." In this cause of action,
Treter alleged a number of independent acts or omissions that could support his claim
that the defendant violated the Unruh Act. Specifically, Treter alleged (1) that the Mall
had forced him to park in the employee lot; (2) that the Mall contained a variety of access
barriers, including having an insufficient number of handicapped-accessible parking
spaces, having handicapped-accessible spaces that did not have corresponding access
aisles, and having access aisles that were directed to routes without curb cuts or ramps;
and (3) that he was denied full and equal accommodations because he suffered
"hardships" due to the Mall's policy of locking its automated sliding doors upon the
closing of the Mall at night.
Plaza Bonita filed a motion for summary judgment in response to Treter's
complaint. In support of its motion, Plaza Bonita submitted the declaration of Sherry
Jones, general manager of the Mall, and the declaration of Karen Haney, an expert on
compliance with the Americans with Disabilities Act (ADA).
Jones's declaration identified the Mall's employee holiday parking policy, which
specifically exempts handicapped employees from its terms. Jones also verified that for
safety reasons the Mall's policy was to lock all automatic doors while the Mall was
closed. However, manual doors remained unlocked from the inside, allowing patrons and
employees to safely exit the Mall after closing.
In her declaration, Haney attested that none of the architectural barriers identified
in Treter's complaint actually existed at the Mall at the time she surveyed the property.
For example, Haney explained that all of the handicapped-accessible spaces contained
5 access aisles, that the access aisles lead to accessible entrances to the mall, and that
wherever these accessible routes cross a curb, there is a "curb ramp or flush transition."
Haney also concluded that the manual doors located adjacent to the automatic doors were
compliant with ADA design standards.
Treter opposed Plaza Bonita's motion for summary judgment, arguing that there
were triable issues of fact regarding: (1) whether the exemption to the employee parking
policy applied to him; (2) whether the access aisles at the Mall comply with ADA design
standards; and (3) whether the manual doors at the Mall's entrance/exits complied with
ADA design standards.3
In support of his opposition to Plaza Bonita's summary judgment motion, Treter
attempted to submit evidence in the form of an expert's "report" regarding accessibility at
the Mall. This "report" was attached as an exhibit to a declaration submitted by Treter's
attorney. Plaza Bonita objected to much of the evidence that Treter offered.
The trial court sustained a number of Plaza Bonita's evidentiary objections and
ultimately granted its motion for summary judgment in full. The court concluded that the
Mall had a written holiday employee parking policy that exempted employees with
disabilities from its coverage, and that even if the court were to consider the excluded
statement of the security guard who, Treter alleged, had said something different, this
would not place in dispute whether the Mall employee holiday parking policy was
discriminatory. The court also concluded that the Mall's policy of locking the automated
3 These are the only grounds that Treter raised in his opposition to Plaza Bonita's motion for summary judgment. 6 doors at closing did not violate the ADA because the adjacent manual doors provided a
reasonable alternative point of exit from the Mall. Finally, the court concluded that the
Mall's expert's declaration and supporting exhibits established that the access aisle
problems identified in Treter's complaint did not exist.
The trial court entered judgment in favor of Plaza Bonita. Treter filed a timely
notice of appeal.
III.
DISCUSSION
A. Legal standards
1. Summary judgment
A moving party is entitled to summary judgment when the party establishes that it
is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.
(c); see also Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250
[" 'A trial court properly grants summary judgment where no triable issue of material fact
exists and the moving party is entitled to judgment as a matter of law.' [Citation.]"]) A
defendant may make this showing by establishing that the plaintiff cannot establish one
or more elements of all of his causes of action, or that the defendant has a complete
defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
In reviewing a trial court's ruling on a motion for summary judgment, the
reviewing court makes " 'an independent assessment of the correctness of the trial court's
ruling, applying the same legal standard as the trial court in determining whether there
are any genuine issues of material fact or whether the moving party is entitled to
7 judgment as a matter of law. [Citations.]' " (Trop v. Sony Pictures Entertainment, Inc.
(2005) 129 Cal.App.4th 1133, 1143.)
The issues on a motion for summary judgment are framed by the pleadings.
(Sweat v. Hollister (1995) 37 Cal.App.4th 603, 607.)
2. State Disability Access Remedies
"The Unruh Civil Rights Act broadly outlaws arbitrary discrimination in public
accommodations and includes disability as one among many prohibited bases. ([Civ.
Code,] § 51, subd. (b).)[4] As part of the 1992 reformation of California's state disability
law, the Legislature amended the Unruh Civil Rights Act to incorporate by reference the
ADA [(42 U.S.C. § 12101 et seq.)], making violations of the ADA per se violations of
the Unruh Civil Rights Act. ([Civ. Code,] § 51, subd. (f); Munson v. Del Taco, Inc.
[(2009)] 46 Cal.4th [661,] 668-669 [(Munson)].) This amendment was intended to
extend to disabled individuals aggrieved by an ADA violation the full panoply of Unruh
Civil Rights Act remedies. (Munson[, supra,] at p. 673.) These include injunctive relief,
actual damages (and in some cases as much as treble damages), and a minimum statutory
award of $4,000 per violation. ([Civ. Code,] § 52, subds. (a), (c)(3); Turner v.
4 Civil Code section 51 provides, in pertinent part:
"(a) This section shall be known, and may be cited, as the Unruh Civil Rights Act. [¶] (b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." 8 Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1058.)"
(Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 (Jankey).)
"The ADA prohibits discrimination on the basis of disability in the enjoyment of
public accommodations, including with respect to access." (Jankey, supra, 55 Cal.4th at
p. 1044.) The ADA provides in pertinent part: "No individual shall be discriminated
against on the basis of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who . . . operates a place of public accommodation." (42
U.S.C. § 12182(a).) The ADA defines discrimination as "a failure to make reasonable
modifications in policies, practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless the entity can demonstrate that
making such modifications would fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations." (42 U.S.C. § 12182(b)(2)(A)(ii).)
Thus, "[b]usinesses must ' "remove architectural barriers . . . in existing
facilities . . . where such removal is readily achievable." ' [Citation.] Liability does not
depend on proof of intentional discrimination, but a private litigant cannot obtain
damages for the denial of access, only injunctive relief[, under the ADA]." (Jankey,
supra, 55 Cal.4th at p. 1044.)
In order to prevail on a discrimination claim under Title III of the ADA, a plaintiff
"must show that (1) [he/]she is disabled within the meaning of the ADA; (2) the
defendant is a private entity that owns, leases, or operates a place of public
9 accommodation; and (3) the plaintiff was denied public accommodations by the
defendant because of [his/]her disability." (Molski v. M.J. Cable, Inc. (9th Cir., 2007)
481 F.3d 724, 730.)
For buildings and facilities that were altered or constructed after January 26, 1993,
"discrimination" includes the failure to design and construct facilities or the failure to
make alterations to the facility that render it "readily accessible to and usable by
individuals with disabilities." (42 U.S.C. § 12183(a)(1).) "Whether a facility is 'readily
accessible' is defined, in part, by the ADA Accessibility Guidelines." (Chapman v. Pier 1
Imports (U.S.) Inc. (9th Cir. 2011) 631 F.3d 939, 945 (Chapman).) The ADA
Accessibility Guidelines (ADAAG) are developed by the Architectural and
Transportation Barriers Compliance Board (the Access Board), a federal agency
composed of 13 members of the public appointed by the President and the heads of 12
federal agencies. (Rush v. Hyun Suk Kim (C.D.Cal., 2012) 908 F.Supp.2d 1117, 1119
(Rush); see also 29 U.S.C. § 792(a)(1).) The Department of Justice is "required to
promulgate regulations consistent with the Access Board's guidelines, although the
regulations need not be identical to the guidelines." (Rush, supra, at p. 1119.)5
5 The architectural regulations or "design standards" implemented by the federal ADA are often referred to in the literature as "ADAAG" which is an acronym for "ADA Accessibility Guidelines." (See Independent Living Resources v. Oregon Arena Corp. (D.Oregon 1997) 982 F. Supp. 698, 707–708 ["The guidelines issued by the Access Board are denominated the 'ADA Accessibility Guidelines' ('ADAAG')"]; Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd. (S.D.Fla. 2001) 146 F.Supp.2d 1334, 1336 ["These guidelines are called . . . ('ADAAG')"].) The ADAAG are found in appendix A to part 36 of title 28 of the Code of Federal Regulations. 10 "A disabled person who encounters a "barrier," i.e., an architectural feature that
fails to comply with an ADAAG standard relating to his disability, suffers unlawful
discrimination as defined by the ADA. [Citation.] Indeed, by 'establish[ing] a national
standard for minimum levels of accessibility in all new facilities,' [citation], the ADAAG
removes the risk of vexatious litigation that a more subjective test would create. Those
responsible for new construction are on notice that if they comply with the ADAAG's
objectively measurable requirements, they will be free from suit by a person who has a
particular disability related to that requirement." (Chapman, supra, 631 F.3d at p. 947,
fn. 5.)
B. The trial court did not err in concluding that Treter could not establish his claim for a violation of the Unruh Act based on the holiday employee parking policy
Treter alleges that on a single occasion in December 2009, he attempted to park in
the Mall's regular parking lot during a time period in which the Mall's employee holiday
parking policy was in effect. According to the complaint, a parking enforcement
employee for the Mall told Treter that he had to either park in a handicapped-accessible
parking space or in one of the employee parking lots, which were much farther from the
Mall's entrances. Treter goes on to allege that on subsequent days during the month of
December in 2009, he parked in the employee parking lot because, he claims, he was
"forced" to do so.
In support of its motion for summary judgment, Plaza Bonita submitted a copy of
its written employee holiday parking policy, which provides in relevant part: "Employees
who are disabled and have place cards issued through the California Department of
11 Motor Vehicles are exempt from the employee parking policy." Treter admitted that he
received a copy of this written policy before the alleged December 2, 2009 incident. By
its terms, the Mall's employee holiday parking policy did not require disabled employees
to park in the far employee lots. Rather, it permitted disabled employees, including
Treter, to park anywhere that they could have parked under the employee parking policy
in effect during non-holiday times. Plaza Bonita therefore presented evidence
establishing that the employee holiday parking policy was not discriminatory on its face.
This evidence also contradicts Treter's allegation in his complaint that he was "forced" to
park in the employee parking lot during December 2009.
In response, Treter contends that a parking enforcement employee for the Mall, as
well as a Mall employee named "Renee," made statements to the effect that Treter would
be required to park in the employee parking lot. Indeed, in an attempt to address the
evidence that Plaza Bonita submitted in support of its motion for summary judgment
regarding the employee holiday parking policy, Treter presented evidence, in the form of
his personal declaration and a declaration submitted by his father, Daniel Treter
(Daniel),6 in which Treter and his father related the statements allegedly made by these
Mall employees. Treter stated that when he attempted to park in a non-handicapped-
accessible parking space in the regular Mall parking lot, a parking enforcement employee
told Treter that he was required to park in the employee parking lot, and threatened to
tow Treter's car and/or issue Treter a citation if Treter did not park in the employee lot.
6 We will refer to Treter's father as Daniel for the purpose of clarity. 12 However, Treter admitted that at that point in time, he successfully parked in a
handicapped-accessible parking space in the regular Mall parking lot, and that no adverse
action was taken with respect to his car.
Daniel stated in his declaration that on the day following the incident between
Treter and the parking enforcement employee, Daniel called the "mall's administration
office to inquire about their parking policy as it related to handicapped employees."
Daniel stated that he spoke with "Renee," who, Daniel asserted, told him that
"handicapped employees could not park in a regular, non-handicapped parking stall."
The trial court sustained Plaza Bonita's evidentiary objections to Treter's evidence
regarding the statements alleged to have been made by the mall employees, on the ground
that the statements constituted inadmissible hearsay. Without this evidence, the only
evidence in the record with respect to the Mall's employee holiday parking policy is the
evidence submitted by Plaza Bonita, which establishes a nondiscriminatory policy.
On appeal, Treter argues that the trial court abused its discretion in refusing to
admit the evidence of the Mall employees' statements, contending that the evidence was
admissible pursuant to three separate exceptions to the hearsay rule. Specifically, Treter
contends that the employees' statements were admissible as inconsistent statements by
witnesses, as evidence of the employees' states of mind, and as admissions of a party
opponent. Upon review, we conclude that the trial court did not abuse its discretion in
excluding on hearsay grounds the evidence regarding the statements that Treter alleged
the two Mall employees made to him and to Daniel.
13 It is clear that the statements in Treter and Daniel's declarations that they attribute
to the Mall employees constitute hearsay evidence: " 'Hearsay evidence' is evidence of a
statement that was made other than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated." (Evid. Code, § 1200.) Treter submitted
the alleged statements to prove that the Mall was not "exempting" him from the employee
parking policy, as it was supposed to do under the policy's written terms. The statements
thus come within the definition of hearsay and are not to be admitted unless they fall
within an exception to the hearsay rule. No such exception applies here.
Treter was not offering the statements as inconsistent statements under Evidence
Code section 1235, which provides that "[e]vidence of a statement made by a witness is
not made inadmissible by the hearsay rule if the statement is inconsistent with his
testimony at the hearing and is offered in compliance with Section 770." Because the
statements were not offered to show any inconsistency in these employees' testimony at a
hearing, they are not admissible as inconsistent statements.
Nor are the statements admissible as evidence of the declarants' state of mind.
Evidence Code section 1250 provides that the out-of-court statement of a declarant about
his or her "then existing state of mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not
made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the
declarant's state of mind, emotion, or physical sensation at that time or at any other time
when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or
explain acts or conduct of the declarant." Treter was not offering the statements to
14 demonstrate the employees' states of mind, but instead, was attempting to establish that
the employee holiday parking policy was being applied to him despite the fact that as a
disabled employee, he was supposed to be exempt from the policy. The statements were
therefore not admissible under the state-of-mind exception to the hearsay rule.
Finally, Treter contends that the employees' statements are admissible as
admissions by a party opponent. Evidence Code section 1220 provides that "evidence of
a statement is not made inadmissible by the hearsay rule when offered against the
declarant in an action to which he is a party in either his individual or representative
capacity." A corollary provision in Evidence Code section 1222 states: "Evidence of a
statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a)
The statement was made by a person authorized by the party to make a statement or
statements for him concerning the subject matter of the statement; and [¶] (b) The
evidence is offered either after admission of evidence sufficient to sustain finding of such
authority or, in the court's discretion as to the order of proof, subject to the admission of
such evidence."
It is clear that in order for a statement to qualify as an authorized admission under
Evidence Code section 1222, there must be a foundational showing that the declarant was
authorized to speak on behalf of the defendant. (Rochlis v. Walt Disney Co. (1993) 19
Cal.App.4th 201, 217.) The substantive law of agency determines whether or not a
statement is an authorized admission. (O'Mary v. Mitsubishi Electronics America, Inc.
(1997) 59 Cal.App.4th 563, 570.) The authority of a declarant employee to make a
statement on behalf of an employer can be either implied or express. (Id. at p. 570.)
15 "[T]he determination requires an examination of the nature of the employee's usual and
customary authority, the nature of the statement in relation to that authority, and the
particular relevance or purpose of the statement." (Ibid.)
Treter assumes that both of the declarants whose statements he wishes to have
admitted in evidence were authorized to speak on behalf of Plaza Bonita on this issue.
However, he presented no evidence of either person's authority to make a statement on
behalf of Plaza Bonita with respect to the employee holiday parking policy.7 Thus, there
was no foundation that either of these people was an agent of Plaza Bonita or that either
was authorized to speak on Plaza Bonita's behalf with respect to the parking policy. The
trial court did not abuse its discretion in declining to consider these statements, given
their hearsay nature.
Based on the admissible evidence presented to the trial court, no triable issues of
fact remain regarding whether Plaza Bonita discriminated against Treter as a result of its
employee holiday parking policy.
C. The trial court erred in concluding that Treter could not establish his Unruh Act violation claim based on the alleged lack of adequate access aisles and accessibility routes
Treter alleges in his complaint that the Mall's handicapped-accessible parking
suffered from a number of architectural barriers which, he asserted, denied him equal
access to the Mall. Among the barriers to access that Treter alleges are that the Mall had
handicapped-accessible parking spaces without access aisles, that the access aisles for
7 In fact, there was no evidence at all presented regarding the identity of the person Treter refers to as "Renee." 16 other handicapped-accessible spaces did not comply with applicable standards (i.e., they
were directed toward inaccessible entrances), and that some of the access aisles adjacent
to handicapped-accessible parking spaces were directed to routes that did not have curb
cuts or ramps.
In support of its motion for summary judgment, Plaza Bonita submitted evidence
in the form of Haney's expert declaration in which she stated that at the time she surveyed
the Mall, it did not suffer from these alleged architectural barriers. Haney's declaration
established that at the time she surveyed the Mall, it had a sufficient number of
handicapped-accessible parking spaces as required under the ADAAG, that those
handicapped-accessible parking spaces were properly located within the Mall's various
parking lots, that all of the handicapped-accessible parking spaces are accompanied by
access aisles, and that all of the accessibility routes were directed properly and there was
a curb ramp wherever a route crossed a curb. In response to this evidence, Treter argued
that there remained a triable issue of fact "whether or not the Mall's handicapped
accessible aisles are in violation of the ADAAG." Treter offered as evidence
contradicting Plaza Bonita's expert evidence an "Accessibility Survey Report," which
was apparently prepared by someone named Jon Rose and attached to a declaration
submitted by Treter's attorney.
The trial court did not accept Treter's proffered evidence, concluding that the
"Accessibility Survey Report" had not been properly authenticated. Given that Treter
failed to present any admissible evidence to rebut Plaza Bonita's evidence, the court
determined that there was no triable issue of fact with respect to this claim.
17 On appeal, Treter argues that "[t]he evidence submitted [by Plaza Bonita] was
regarding the access aisles from the expert in 2012" and that this evidence "did not
contradict the evidence of [Treter's] deposition . . . that they violated the ADAAG in
2009." We agree.
Haney attests in her declaration that she was retained by Plaza Bonita "[o]n or
around January of 2012." She was "instructed to inspect the architectural barriers alleged
in Plaintiff's complaint and identify whether any of the alleged items were found not to be
in compliance with the Americans With Disabilities Act Accessibility Guidelines
('ADAAG')." Haney states that she "conducted [her] survey and . . . found that all of the
complained of conditions in Plaintiff's complaint comply with the ADAAG." The
declaration is signed by Haney and is dated March 8, 2012. Thus, assuming that Haney
conducted her survey of the Mall immediately upon being retained by Plaza Bonita, her
declaration establishes that as of January 2012, the Mall's handicapped-accessible
parking spaces and accompanying access aisles met the ADAAG requirements.
However, her declaration does not establish that the Mall's parking lots met the requisite
standards as of late 2009 and into January 2010, which is the time period during which
Treter alleges that the parking lots did not meet those standards.8
8 Treter filed his complaint on January 14, 2011. Although the complaint is less than specific about the time period during which Treter alleges that he found the Mall to be inaccessible to him due to problems with the access aisles in the parking lot, there is nothing in the record to indicate that Plaza Bonita challenged the specificity of the complaint prior to moving for summary judgment or moved to strike Treter's allegations about the access aisles for lack of specificity. We therefore construe the allegations of the complaint regarding the access aisles as encompassing the time period between May 18 Jones's declaration does not assist Plaza Bonita with respect to the accessibility
aisle issues raised by Treter's complaint. Jones does not state that the Mall's parking lots
had not been altered between January 2010 and January 2012, nor does she make any
other claim as to the state of the Mall's parking lots, or the handicapped-accessible
parking spaces and accompanying access aisles, during the relevant time period.9
Plaza Bonita thus did not submit any competent evidence that could establish that
it was entitled to summary judgment with respect to the allegations that Treter raises in
his complaint about the inadequacies of the access aisles and access aisle routes to
accessible entrances in late 2009/early 2010. In the absence of evidence demonstrating
that Treter cannot establish one or more elements of his cause of action, or that Plaza
Bonita has a complete defense to each cause of action, summary judgment in Plaza
Bonita's favor is not warranted.
Plaza Bonita also suggests that Treter does not have standing to assert damages for
the failings in any access aisles in the Mall's parking lot because he did not demonstrate
that the access aisle barriers about which he is complaining were "related to his
2009, which is the earliest date that Treter indicates he could not properly access the Mall, and the filing of the complaint in January 2011.
9 It is questionable whether Jones could have attested to such facts, given that she states in her declaration that she had been the general manager of the Mall for one year, and had previously been employed as the manager of five other shopping centers owned by Westfield LLC. Since Jones signed her declaration on March 8, 2012, placing her employment as the Mall's general manager as beginning in March 2011, it does not appear that Jones would have had personal knowledge of the state of the Mall's parking lot and handicapped-accessible parking spaces as of late 2009 and early 2010, the relevant time period for purposes of Treter's complaint. 19 disability." (See Chapman, supra, 631 F.3d at pp. 947-948 [to demonstrate the existence
of an injury-in-fact for purposes of federal standing under the ADA, a plaintiff must
demonstrate an encounter with the noncompliant barrier that is related to the plaintiff's
disability].)
Treter alleges in his complaint that he suffers from "Scoliosis, Kyphosis, Chronic
Fatigue Syndrome, and Arnold Chiari Malformation Type 1, and sometimes requires the
use of a wheelchair." He further alleges that "[o]n numerous and separate occasions"
Plaza Bonita "failed to make the Westfield Bonita Plaza [sic] mall accessible" to him due
to problems with the access aisles and accessibility routes. Plaza Bonita contends that
Treter "conceded that during the time period relevant to his complaint—when he worked
at Magic Bug—he did not use a wheelchair." This is not an accurate statement. It is true
that Treter admitted during his deposition that he did not use the wheelchair to get to
work when he worked at Magic Bug. However, immediately after making that statement,
Treter was asked whether he "had to go to the mall using a wheelchair." Treter
responded in the affirmative and indicated that he had done so "[m]aybe 20 [times]." The
evidence thus clearly does not definitively demonstrate that Treter did not use a
wheelchair when going to the mall; rather, at a minimum, the evidence regarding Treter's
use of a wheelchair while patronizing the Mall is in dispute.
In view of this evidence, Plaza Bonita has not established that Treter does not have
"standing" to allege a violation of the ADA (and resultant Unruh Act violation) based on
his complaints about the access aisles in the Mall's parking lots. He clearly alleges that
he sometimes used a wheelchair, including on occasion when he went to the Mall as a
20 patron. As a result, Plaza Bonita has not established that it is entitled to judgment as a
matter of law on Treter's claim that the Mall suffered from architectural barriers that
made it difficult for him to patronize the Mall using his wheelchair.
D. The trial court did not err in determining that Plaza Bonita demonstrated that Treter could not establish the elements of his Unruh Act claim based on the Mall's locking its automated doors at closing
Treter alleges in his complaint that Plaza Bonita violated the ADA by locking the
handicapped-accessible automatic sliding doors at closing time and requiring him to use
the manual doors to exit the Mall. According to the complaint, Treter called the
administration office for the Mall to discuss this issue and was told that the sliding doors
were not supposed to be locked. He alleges that despite being told that the sliding doors
were not supposed to be locked, he continued to encounter locked handicapped-
accessible sliding doors after the Mall was closed to the public in the evenings.
In response to Plaza Bonita's evidence that the Mall's policy regarding the locking
of the automated doors at closing time was based on safety, and that at each of the
entrances there are manual doors that remained unlocked from the inside, allowing
patrons and employees to exit the mall, Treter contends that there remains a triable issue
of fact as to whether the manual doors "are in violation of the ADAAG." According to
Treter, there is conflicting evidence as to whether the Mall's manual entrance doors were
ADAAG compliant, because, he maintains, under the ADAAG, these manual doors must
require less than five pounds of force to be opened. He asserts that "[t]here is nothing in
the opposition to state that the doors required less than five pounds [of force for
activation] in 2012 much less in 2009."
21 Regardless whether the manual doors required more or less than five pounds of
force to open during the relevant time period, that information is irrelevant to Treter's
claim. Contrary to Treter's position in opposition to summary judgment and now on
appeal, the ADAAG does not contain a requirement that exterior doors have a push/pull
force of less than five pounds to open. The relevant portion of the ADAAG provides:
" 4.13.11[] Door Opening Force. The maximum force for pushing or pulling open a door shall be as follows:
"(1) Fire doors shall have the minimum opening force allowable by the appropriate administrative authority.
"(2) Other doors.
"(a) exterior hinged doors: (Reserved). "(b) interior hinged doors: 5 lbf (22.2N) "(c) sliding or folding doors: 5 lbf (22.2N)" (ADAAG, § 4.13.11.)
The doors at issue in Treter's complaint are exterior hinged doors. There is no
"maximum force for pushing or pulling open" this type of door under the ADAAG.
Rather, that component of the guidelines has been "reserved," indicating that this portion
of the guidelines has not been set. Thus, the ADAAG does not contain a maximum force
requirement for the exterior doors that Treter used to exit the Mall after closing, and there
are no triable issues of fact regarding whether the manual doors that Treter had to use
when the automatic doors were locked were ADA compliant under the ADAAG.
22 IV.
DISPOSITION
The judgment of the trial court is reversed. The parties are to bear their own costs
on appeal.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.