Martinez v. CPG Finance II, LLC et al

Filing 98

ORDER signed by Judge Garland E. Burrell, Jr. on 06/15/11 ORDERING that dft New Balance's #71 Motion to Dismiss is DENIED; the #77 Motion to Continue is DENIED; #71 Motion for Summary Judgment is GRANTED; Clerk to issue Judgment in favor of dft New Balance Athletic Shoe, Inc. This case shall NOT be closed. (Benson, A.)

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 Tony Martinez, 14 Plaintiff, 15 16 17 18 19 20 21 v. Columbia Sportswear USA Corp. dba Columbia Sportswear Company #446; Eddie Bauer, a Delaware LLC dba Eddie Bauer Outlet #R-867; New Balance Athletic Shoe, Inc. dba New Balance #0015, Defendants.* ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:10-cv-01333-GEB-KJN ORDER DENYING MOTION TO DISMISS, DENYING REQUEST FOR CONTINUANCE, AND GRANTING MOTION FOR SUMMARY JUDGMENT 22 Defendant New Balance Athletic Shoe, Inc. dba New Balance 23 #0015 (“Defendant”) moves for dismissal of Plaintiff’s First Amended 24 Complaint (“FAC”), arguing it “fails to satisfy the [standing] pleading 25 requirements” applicable to lawsuits under the Americans with 26 27 28 * The caption has been amended to reflect Plaintiff’s dismissal of Defendants Adidas America, Inc. dba Adidas #6128, Reebok International Ltd dba Reebok/Rockport #20, and Guess?, Inc. dba Guess Factory Store #3224. (ECF Nos. 76, 80.) 1 1 Disabilities Act (“ADA”) “set forth by the Ninth Circuit in Chapman v. 2 Pier 1 Imports (U.S.) Inc.,” 631 F.3d 939 (9th Cir. 2011); and fails to 3 state his claims with the specificity required. (ECF No. 71; Mot. 1:10- 4 11.) 5 dismissal motion. Therefore, Defendant’s dismissal motion is DENIED. However, Plaintiff’s claims are sufficient to withstand the 6 Defendant moves in the alternative for summary judgment on all 7 claims against it. (Mot. 4:16-18.) Plaintiff failed to respond to this 8 motion with an opposition or statement of non-opposition as required by 9 Local Rule 230(c); instead, Plaintiff filed a request for continuance of 10 the motion. (ECF No. 77.) This continuance request is governed by 11 Federal Rule of Civil Procedure (“Rule”) 56(d). 12 13 I. REQUEST FOR CONTINUANCE Plaintiff’s continuance request is based solely on his 14 counsel’s declaration in which his counsel declares he has “not had an 15 opportunity to obtain . . . essential evidence[; that] this evidence is 16 necessary to oppose [Defendant’s] motion[;] and . . . the instant 17 lawsuit is in the early stages of litigation[.]” (Pl.’s Appl. for 18 Continuance, 19 counsel declares: 20 21 22 23 24 25 Decl. of Hubbard 2:19-21.) Specifically, Plaintiff’s Before I can respond to [the] motion for summary judgment, . . . I will need to conduct the following discovery, and obtain the following essential facts: a. Inspect New Balance’s facility; b. Identify and document the barriers alleged in [the] plaintiff’s complaint; c. Obtain expert testimony on those barriers; and d. Depose Russell Shirley and Cesar Rodriguez, whose testimony lays the foundation for the defendant’s motion. 26 Id. ¶ 3. Defendant counters “Plaintiff has had ample time to conduct 27 discovery and has no genuine excuse.” (Def.’s Opp’n to Continuance 2:2.) 28 2 1 To obtain a continuance under Rule 56(d) the movants “must 2 show (1) that they have set forth in affidavit form the specific facts 3 that they hope to elicit from further discovery, (2) that the facts 4 sought exist, and (3) that these sought-after facts are ‘essential’ to 5 resist the summary judgment motion.” State of Cal., on Behalf of 6 California Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 7 779 (9th Cir. 1998). Moreover, the movants “must make clear what 8 information is sought and how it would preclude summary judgment.” 9 Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (citation and 10 internal 11 application is proper where it is clear that the evidence sought is 12 almost certainly nonexistent or is the object of pure speculation.” 13 Campbell, 138 F.3d at 779-80 (citation and internal quotation marks 14 omitted). In addition,“[t]he burden is on the party seeking additional 15 discovery to proffer sufficient facts to” satisfy the requirements of 16 Rule 56(d). Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th 17 Cir. 1996) (citation omitted). Further, a Rule 56(d) motion will not be 18 granted 19 discovery diligently before summary judgment.” Brae Transp., Inc. v. 20 Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). quotation “if [the marks party omitted). requesting “[D]enial a of continuance] a Rule fails to 56([d]) pursue 21 Here, the evidence Plaintiff seeks “is almost certainly . . . 22 the object of pure speculation.” Campbell, 138 F.3d at 780. Plaintiff’s 23 continuance request is based solely on his assumption and/or “mere hope” 24 that Plaintiff will discover evidence sufficient to defeat Defendant’s 25 motion. Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th 26 Cir. 1978). Therefore, Plaintiff has not shown he is entitled to a 27 continuance for the purpose of conducting this discovery. 28 /// 3 1 Further, Plaintiff has not shown that he diligently pursued 2 the discovery he seeks to conduct. Plaintiff filed his Complaint in this 3 action on May 29, 2010. (ECF No. 1.) The parties filed a joint status 4 report on October 4, 2010, in which Defendant stated: 5 9 Defendant New Balance asserts that Plaintiff’s claims are meritless. Defendant New Balance does not believe that plaintiff has any good faith basis for this litigation and that the matters in controversy can be resolved as a matter of law. To avoid the significant potential costs associated with protracted litigation, Defendant New Balance intends to file a motion for summary judgment within the next several months. 10 (ECF No. 49, 4:8-13 (emphasis added).) Defendant filed its dismissal and 11 summary judgment motion on March 4, 2011; this filing occurred nine 12 months 13 Defendant warned Plaintiff that it would seek to terminate the action by 14 motion. 15 explanation as to why he “fail[ed] to pursue discovery diligently before 16 summary judgment” in light of having been duly alerted that he would 17 have to face the pending motion. Brae Transp., Inc., 790 F.2d at 1443. 18 Therefore, Plaintiff’s request for a Rule 56(d) continuance is 6 7 8 19 20 after (ECF Plaintiff No. 71.) filed his Plaintiff Complaint fails to and five provide months a after sufficient DENIED. II. MOTION FOR SUMMARY JUDGMENT 21 Defendant argues in its summary judgment motion that “the 22 factual record demonstrates that New Balance has fully complied with the 23 applicable federal, state and local obligations to ensure accessibility 24 to all its customers.” (Mot. 4:20-21.) 25 Plaintiff alleges in his FAC the following claims against 26 Defendant, all of which are based on Plaintiff’s allegations that he 27 encountered architectural barriers at the New Balance Store which 28 prevented him “from enjoying full and equal access at the New Balance” 4 1 Store: 1) Violations of the ADA, 42 U.S.C. §§ 12182, 12183; 2) Violation 2 of the Disabled Persons Act (“DPA”), Section 54 of the California Civil 3 Code; 3) Violation of the Unruh Civil Rights Act (“Unruh Act”), Section 4 51.5 of the California Civil Code; and 4) Denial of Full and Equal 5 Access to Public Facilities in violation of Section 19955(a) of the 6 California Health and Safety Code. (FAC ¶¶ 25, 126-162.) 7 A. LEGAL STANDARD 8 “The . . . party [seeking summary judgment] initially bears 9 the burden of proving the absence of a genuine issue of material fact.” 10 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 11 2010). If this burden is sustained, “the burden then shifts to the 12 non-moving party to designate specific facts demonstrating the existence 13 of genuine issues for trial.” Id. “[W]e must draw all reasonable 14 inferences supported by the evidence in favor of the non-moving party 15 . . . .” Guidroz-Brault v. Missouri Pacific R. Co., 254 F.3d 825, 827 16 (9th Cir. 2001). However, “[t]o defeat a summary judgment motion . . . 17 the non-moving party may not rest upon the mere allegations . . . in the 18 pleadings. The non-moving party must establish the existence of a 19 genuine factual dispute on the basis of admissible evidence; bare 20 allegations without evidentiary support are insufficient to survive 21 summary 22 Records, Inc., 515 F.3d 1019, 1033 n.14 (9th Cir. 2008) (citation and 23 internal quotation marks omitted). judgment.” Estate of Tucker ex rel. Tucker v. Interscope 24 Local Rule 260(b) requires that “[a]ny party opposing a motion 25 for summary judgment . . . [must] reproduce the itemized facts in the 26 [moving party’s] Statement of Undisputed Facts and admit those facts 27 that are undisputed and deny those that are disputed[.]” E.D. Cal. R. 28 260(b). A party failing to specifically “challenge the facts identified 5 1 in the [movant’s] statement of undisputed facts, . . . is deemed to have 2 admitted 3 statement.” Beard v. Banks, 548 U.S. 521, 527 (2006) (finding that a 4 party opposing summary judgment who “fail[s] [to] specifically challenge 5 the facts identified in the [movant’s] statement of undisputed facts . 6 . . is deemed to have admitted the validity of [those] facts[.]”). Since 7 Plaintiff failed to oppose Defendant’s statement of undisputed facts as 8 required by Local Rule 260(b), the facts in Defendant’s statement of 9 undisputed facts “are admitted to exist without controversy.” Farrakhan 10 v. Gregoire, 590 F.3d 989, 1002 (9th Cir. 2010) (“If the moving party’s 11 statement of facts are not controverted in this manner, ‘the Court may 12 assume that the facts as claimed by the moving party are admitted to 13 exist without controversy.’”). the 14 validity of the facts contained in the [movant’s] B. AMERICANS WITH DISABILITIES ACT CLAIMS 15 Defendant argues its summary judgment motion must be granted 16 on Plaintiff’s ADA claims since “[P]aintiff does not have adequate 17 admissible evidence to show that any barriers actually exist on [the New 18 Balance Store’s] premises.” (Mot. 6:15-17.) 19 Defendant presents evidence, including photographs, directly 20 refuting 21 demonstrated in the following table. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// the factual allegations 6 in Plaintiff’s FAC, which is 1 2 3 4 5 6 7 8 Plaintiff’s Allegations against Defendant in FAC, all of which are set forth in ¶ 25 Defendant’s Established Undisputed Facts ADA Accessibility Guidelines 28 C.F.R. Part 36, Appendix A “There is no ISA moun t e d at the entrance [of the New Balance facility] that would indicate to Plaintiff whether or not the Facility is inte n d e d to be accessible . . . .” “The international symbol of accessibility (“ISA”) is mounted at the front entrance, next to the right hand door, on the front window.” (SUF ¶ 15.) “Facilities . . . required to be identified as accessible . . . shall use the international symbol of accessibility. The symbol shall be displayed as shown in Fig. 43(a) and (b).” Section 4.30.7(1). “Many of the aisles through the store are blocked by merchandise and are thus too narrow making them difficult-if not impossible-for Plaintiff to use . . . .” “The aisles of the NB Store are maintained with sufficient space and merchandise is positioned to ensure the aisles do not block access to disabled persons.” (SUF ¶ 16.) “All . . . aisles. . . that are part of an accessible route shall comply with 4.3.” 4.3.1. “The minimum clear width of an accessible route shall be 36 in (915 mm) . . . .” Section 4.3.3. “The dressing room bench is not 24 inches wide by 48 inches long.” “The dressing room . . . benches are 24 inches wide by 48 inches long.” (SUF ¶ 17.) “Every accessible dressing room shall have a 24 in by 48 in (610 mm by 1220 mm) bench fixed to the wall along the longer dimension.” Section 4.35.4 “The clothing hook on the dressing room door is too high, thus Plaintiff is unable to use it . . . .” “The clothing hooks in the dressing rooms are positioned at 44 inches from the ground.” (SUF ¶ 18.) “If the clear floor space only allows forward approach to an object, the maximum high forward reach allowed shall be 48 in (1220 mm) (see Fig. 5 and Fig. 5(a)).” Section 4.2.5. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 1 2 3 4 “The pay point machine is too high and/or at too steep of an angle making it difficult-if not impossible-for Plaintiff to use . . . .” “There is no angle to access the pay point machine.” (SUF ¶ 21.) “The credit card/debit card swipe machine is a separate component from the Point Of Sale (“POS”) computer system.” Id. ¶ 22. “The register counters are 34 inches tall . . . .” Id. ¶ 24. “In . . . retail stores where counters have cash registers and are provided for sales or distribution of goods or services to the public, at least one of each type shall have a portion of the counter which is at least 36 in (915mm) in length with a maximum height of 36 in (915 mm) above the finish floor.” Section 7.2(1). “Due to merchandise displayed, there is insufficient clear floor space at the check out counter. Without sufficient clear space, Plaintiff has difficulty access the counter and thus, the services provided there . . . .” “The clear floor space around the register counters measures more than 30 inches by 48 inches.” (SUF ¶ 19.) “The spaces between the gondola fixtures and the walls are at least 36 inches wide.” Id. ¶ 25. “There is at least 36 inches of clearance space in between apparel four-way displays.” Id. ¶ 26. The lowered counter “shall be on an accessible route complying with 4.3.” Section 7.2(1). “The minimum clear width of an accessible route shall be 36 in (915 mm) . . . .” Section 4.3.3. “The check out counter is too high with no portion lowered to accommodate a patron in a wheelchair . . . and/or [t]he check out counter is cluttered with merchandise and thus lacks the required depth.” “This is untrue.” (ECF No. 74 ¶ 10.) “The register counters are 34 inches tall, well over 36 inches long, and 24 inches [deep].” (SUF ¶ 24.) The register counter “shall have a portion of the counter which is at least 36 in (915mm) in length with a maximum height of 36 in (915 mm) above the finish floor.” Section 7.2(1). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the stated reasons, Defendant’s summary judgment motion on 26 Plaintiff’s ADA claims is GRANTED. 27 /// 28 /// 8 1 C. STATE CLAIMS 2 Defendant also seeks summary judgment on Plaintiff’s state 3 claims, arguing those claims fail “for the same reasons the [Plaintiff] 4 cannot sustain a claim under the ADA.” (Mot. 7:20-21.) 5 Plaintiff has not controverted the undisputed facts showing he 6 has not been subject to architectural or other barriers proscribed by 7 the 8 Defendant’s summary judgment motion on Plaintiff’s state claims is 9 GRANTED. state 10 laws on which his state claims are based. Therefore, III. FINAL JUDGMENT UNDER RULE 54(b) 11 In light of the above rulings, the Court sua sponte reaches 12 the issue of whether to enter final judgment in favor of Defendant under 13 Rule 54(b). Since “there is no just reason for delay[,]” THE CLERK OF 14 THE COURT SHALL ENTER JUDGMENT IN FAVOR OF DEFENDANT NEW BALANCE 15 ATHLETIC SHOE, INC. Fed.R.Civ.Proc. 54(b). This action shall not be 16 closed. 17 Dated: June 15, 2011 18 19 20 GARLAND E. BURRELL, JR. United States District Judge 21 22 23 24 25 26 27 28 9

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