Lozano v. C.A. Martinez Family Limited Partnership et al, No. 3:2014cv00331 - Document 34 (S.D. Cal. 2015)
Court Description: ORDER Denying 15 Motion to Dismiss for Lack of Jurisdiction; and Granting 16 Motion for Summary Judgment: Judgment is entered in favor of Plaintiff and against Defendants Santo Tomas, Inc., and C.A. Martinez Family Limited Partnership, jointl y and severally, in the amount of $4,000. The Court orders Defendants Santo Tomas, Inc., and C.A. Martinez Family Limited Partnership to maintain the accessible parking spaces at 1102 V.V. Williams Ave., Calexico, California, so that they r emain compliant with the ADA and applicable ADAAG standards. The Court also orders Plaintiff to show cause why his claims against defendant Aurelia Martinez should not be dismissed. Plaintiff's response to this OSC is due within 10 days of the entry of this Order. Signed by Judge Barry Ted Moskowitz on 9/8/15. (dlg)
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1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 ENRIQUE LOZANO, Case No.: 14cv331 BTM(DHB) Plaintiff, 5 v. 6 9 C.A. MARTINEZ FAMILY LIMITED PARTNERSHIP, a California Limited Partnership; AURELIA MARTINEZ; SANTO TOMAS, INC., a California Corporation; and Does 1-10, 10 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendants. 7 8 11 12 Defendants C.A. Martinez Family Limited Partnership and Santo Tomas, Inc. 13 (“Defendants”), have filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) 14 and 12(h)(3). Plaintiff Enrique Lozano has filed a motion for summary judgment. 15 For the reasons discussed below, Defendants’ motion is DENIED and Plaintiff’s 16 motion is GRANTED. 17 18 19 20 I. BACKGROUND On February 12, 2014, Plaintiff commenced this action. Plaintiff is a paraplegic who uses a wheelchair for mobility and drives a van which is specially 1 14cv331 BTM(DHB) 1 equipped with a lift that deploys from the passenger side of his van. (Lozano Decl. 2 ¶¶ 2, 5.) Plaintiff lives less than a mile from the Santo Tomas Swap Meet (“Swap 3 Meet”) at 1102 V.V. Williams Ave., Calexico, California (the “Property”). (Id. at ¶ 4 3.) Plaintiff enjoys thrift shopping and has been to the Swap Meet on more than 5 300 occasions. (Id. at ¶ 4.) He goes to the Swap Meet anywhere between two 6 and ten times a month. (Id.) 7 Plaintiff explains that although there were dedicated handicap parking 8 spaces at the Swap Meet, beginning in January 2013 through the filing of this 9 lawsuit, “the signage and striping on the surface of the parking stalls themselves 10 had faded to the point where they had disappeared entirely or only remnant of the 11 paint remained.” (Lozano Decl. at ¶ 7.) The faded lines and signage caused 12 Plaintiff anxiety and difficulty because if he parks his van in a space without a 13 clearly marked access aisle, he runs the risk of being blocked out of his vehicle if 14 someone parks next to the van. (Id.) 15 On or about January 7, 2013, Plaintiff went to the Swap Meet to buy some 16 used wheelchairs. (Lozano Decl. at ¶ 14.) On that day, Plaintiff could not find a 17 handicap parking space with an available access aisle because vehicles were 18 parked on the space where the access aisle was supposed to be. (Id.) Plaintiff 19 claims that he encountered the problem of people parking on the area where an 20 access aisle was supposed to exist at least once every single month during the 2 14cv331 BTM(DHB) 1 year prior to his lawsuit being filed (Plaintiff estimates 20 or more occasions). (Id. 2 at ¶ 15.) 3 Since the filing of the lawsuit, the Swap Meet has repainted the parking 4 spaces. (Lozano Decl. ¶ 17.) Plaintiff states that if Defendants keep up this level 5 of maintenance of the parking spots, he does not anticipate having the same 6 problems. (Id.) 7 Plaintiff’s Complaint asserts causes of action for (1) violation of the 8 Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq.; (2) 9 violation of the Unruh Civil Rights Act (“UCRA”), Cal. Civ. Code §§ 51-53; (3) 10 violation of the California Disabled Persons Act, Cal. Civ. Code §§ 54-54.8; and 11 (4) negligence. Plaintiff seeks injunctive relief compelling Defendant to comply 12 with the ADA and UCRA as well as statutory damages under the UCRA in the 13 amount of $4,000. 14 15 II. DISCUSSION 16 17 A. Defendants’ Motion to Dismiss 18 Defendants seek dismissal under Fed. R. Civ. P. 12(b)(1) and/or 12(h)(3) on 19 the ground that the Swap Meet has made modifications to the disabled parking 20 spaces to address Plaintiff’s concerns, making his claim for injunctive relief under 3 14cv331 BTM(DHB) 1 the ADA moot.1 However, the Court finds that Plaintiff’s ADA claim is not moot 2 because Defendants have not satisfied their burden of establishing that the ADA 3 violations are not likely to recur. 4 Defendants contend that Plaintiff’s ADA claim is moot because in March 5 2014, after receiving notice of Plaintiff’s Complaint, Defendants refreshed the paint 6 on all of the disabled-reserved parking spaces (16 parking spaces with eight 7 access aisles). (Gonzalez Decl. ¶ 22.) The Swap Meet has also adopted new 8 policies and procedures for maintenance of the disabled-reserved parking spaces 9 to take into account the effect that sun-rays have on paint. (Id. at ¶ 23.)2 Plaintiff 10 conceded that after the parking spaces were repainted, they were “perfect.” 11 (Lozano Dep. (Def. Ex. A) at 128:14-17.) 12 13 14 15 16 17 18 19 20 Defendants initially moved to dismiss Plaintiff’s state claims as well, arguing that the Court would lack supplemental jurisdiction over them once the ADA claim was dismissed. However, in their Reply, Defendants acquiesced to the Court retaining supplemental jurisdiction over the state law claims. At any rate, the Court denies Defendants’ motion to dismiss the ADA claim. 1 2 The policy submitted with the motion to dismiss (Def. Ex. G) states that every year, during the month of August, the handicap parking spaces will be inspected and will be repainted within 30 days if any of the markings are not clearly discernible or if the spaces were not repainted the previous year. In opposition to Plaintiff’s motion for summary judgment, Gonzalez declares that he actually caused the repainting of the handicap spaces to take place about twice a year since 2001. (Gonzalez Decl. [Doc. 18-1] ¶ 22.) Effective 2015, the Swap Meet revised its written procedure again to require inspection of the handicap parking spaces every two months. (Def. Ex. G [Doc. 18-12].) 4 14cv331 BTM(DHB) 1 Although Defendants have taken steps in the right direction to assure that 2 the handicap parking spaces stay in compliance with the ADA, the Court cannot 3 conclude that Plaintiff’s claim for injunctive relief is now moot. A request for 4 prospective relief can be mooted by a defendant’s voluntary discontinuance of 5 challenged activities if the defendant meets the “formidable burden” of 6 demonstrating that it is “absolutely clear the alleged wrongful behavior could not 7 reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. 8 Servs., Inc., 528 U.S. 167, 190 (2000). 9 There are ADA access cases in which courts have held that the defendant’s 10 voluntary compliance rendered moot the plaintiff’s claim for injunctive relief. For 11 example, in Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004), a case in 12 which disabled passengers alleged that the fixed-route bus system was 13 intentionally inaccessible to people with disabilities, the Tenth Circuit found the 14 plaintiffs’ request for prospective relief was mooted because all of Wichita Transit’s 15 fixed bus routes had been equipped with lift accessible buses, there were no 16 remaining designated inaccessible bus routes, and bus drivers were instructed to 17 deploy lifts at all bus stops for disabled riders. See also Kohler v. In-N-Out Burgers, 18 2013 WL 5315443 (C.D. Cal. Sept. 12, 2013) (holding that plaintiff’s injunctive relief 19 claim under the ADA was moot with respect to remedied problems in connection 20 with the water closet stall, the side grab bar, the paper towel dispenser, and the 5 14cv331 BTM(DHB) 1 exit of the restroom); Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054 2 (E.D. Cal. 2006) (finding moot plaintiff’s ADA claims regarding the lack of signs for 3 each accessible parking space, the size of the accessible spaces, and the slope 4 of the spaces). 5 On the other hand, there are cases where courts have found that the 6 defendant’s voluntary compliance with the ADA did not render the plaintiff’s 7 injunctive relief claim moot. In Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831 8 (N.D. Cal. Oct. 5, 2011), the court concluded that Taco Bell had failed to carry the 9 heavy burden of showing that violations of the ADA would not occur in the future. 10 Although Taco Bell had implemented policies regarding specific accessibility items 11 that were supposed to be inspected, the court observed that Taco Bell “could 12 change or rescind its policies at any time.” See also Young v. District of Columbia 13 Housing Authority, 31 F. Supp. 3d 90, 97 (D.D.C. 2014) (explaining that the 14 defendant’s implementation of an electronic notification system, which would alert 15 staff if a client had requested an ASL interpreter, was “not the sort of permanent 16 physical change or change that inherently cannot be undone that courts have 17 found to foreclose a reasonable chance of recurrence.”); Feldman v. Pro Football, 18 Inc., 419 Fed. Appx. 381 (4th Cir. 2010) (concluding that because defendants 19 could easily stop providing captioning at football games, the defendants had not 20 6 14cv331 BTM(DHB) 1 discharged their heavy burden of showing no reasonable expectation that they 2 would repeat their alleged wrongs). 3 In this case, Defendants have not satisfied their heavy burden of showing 4 that the ADA violations at issue are not likely to recur again in the future. 5 Defendants implemented new policies regarding inspecting and repainting the 6 accessible parking spaces after Plaintiff filed this lawsuit. 7 defendant’s cessation of the offending conduct was motivated by a genuine 8 change of heart or timed to anticipate suit” is relevant to the voluntary cessation 9 analysis. Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. “[W]hether the 10 2007). The Court notes that Defendants initially constructed ADA compliant 11 parking spaces in 2001, after settling an ADA lawsuit brought by Ruben Deanda, 12 also represented by Potter Handy, LLP. (Gonzalez Decl. ¶¶ 3-6.) 13 Furthermore, there is no guarantee that Defendants won’t just fail to follow 14 through with their new policy of vigilantly inspecting the accessible parking spaces. 15 Unlike cases where defendants would have to undo structural alterations to violate 16 the ADA or would have to actively implement different policies, here, Defendants 17 could run afoul of the ADA in the future by mere inaction and allowing the paint on 18 the accessible spaces to fade. Indeed, even though Defendants claim that their 19 previous practice was to paint the spaces about twice every year, as shown in the 20 pictures taken by Plaintiff’s investigator, on February 19, 2013, the condition of the 7 14cv331 BTM(DHB) 1 accessible parking spaces had deteriorated to the point that the wheelchair logos, 2 striped access aisles, painted lines, and wording had either faded completely away 3 or were barely visible. (Willis Decl. ¶¶ 5-10.) 4 Given the history of Defendants’ failure to take proactive steps to provide 5 accessible parking spaces in compliance with the ADA and the ease with which 6 the parking spaces could fall into non-compliance again, the Court concludes that 7 Plaintiff’s claim for injunctive relief is not moot. Therefore, Defendants’ motion to 8 dismiss is DENIED. 9 10 B. Plaintiff’s Motion for Summary Judgment 11 Plaintiff seeks summary judgment on his first cause of action for violation of 12 the ADA and second cause of action under the UCRA.3 Plaintiff seeks (1) an order 13 from the Court requiring Defendants to implement and carry out policies and 14 procedures to maintain the accessible parking spaces at the Santo Tomas Swap 15 Meet so that they remain compliant with the 2010 Access Standards; and 16 (2) judgment in favor of Plaintiff for $4,000. 17 18 19 3 20 Plaintiff requests dismissal of his third cause of action for violation of the California Disabled Persons Act and fourth cause of action for negligence. The Court grants Plaintiff’s request and dismisses these claims. 8 14cv331 BTM(DHB) 1 1. Title III, ADA Claim 2 Title III of the ADA provides that “[n]o individual shall be discriminated against 3 on the basis of disability in the full and equal enjoyment of the goods, services, 4 facilities, privileges, advantages, or accommodations of any place of public 5 accommodation by any person who owns, leases (or leases to), or operates a 6 place of public accommodation.” 42 U.S.C. § 12182(a). To prevail on an ADA 7 claim, the plaintiff must establish: (1) he or she is disabled within the meaning of 8 the ADA; (2) the defendant is a private entity that owns, leases, or operates a place 9 of public accommodation; and (3) the plaintiff was denied public accommodations 10 by the defendant because of his or her disability. Molski v. M.J. Cable, Inc., 481 11 F.3d 724, 730 (9th Cir. 2007). 12 Plaintiff cannot walk and uses a wheelchair for mobility. (Lozano Decl. ¶ 2.) 13 Accordingly, Plaintiff is “disabled” within the meaning of the ADA, 42 U.S.C. 14 § 12102(a)(1)(A). 15 The Swap Meet is a service establishment that qualifies as a place of public 16 accommodation. 42 U.S.C. § 12181(7)(E). Defendant Santo Tomas, Inc., is the 17 lessee and operator of the Property. (Answer ¶ 2.) Defendant C.A. Martinez 18 Family Limited Partnership is the owner of the Property. (Id. at ¶ 3.) 19 The third element – that the plaintiff was denied public accommodations on 20 the basis of disability – is satisfied if the defendant failed to remove architectural 9 14cv331 BTM(DHB) 1 barriers where such removal was readily achievable. 42 U.S.C. § 2 12182(b)(2)(A)(iv). 3 objective contours of the standard that architectural features must not impede 4 disabled individuals’ full and equal enjoyment of accommodations.” Chapman v. 5 Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011). 6 barrier violating these standards relates to a plaintiff’s disability, it will impair the 7 plaintiff’s full and equal access, which constitutes ‘discrimination’ under the ADA.” 8 Id. at 947. The ADA Accessibility Guidelines (“ADAAG”) provide “the Therefore, “if a 9 Under both the 1991 and 2010 ADAAG standards, any business that 10 provides parking spaces must provide handicap parking spaces conforming to the 11 Guidelines’ specifications. 28 C.F.R. pt. 36, App. D, § 4.1.2(5); 36 C.F.R. pt. 1191, 12 App. C, § 208. Under the 1991 standards, one in every eight accessible spaces, 13 but not less than one, shall be designated “van accessible.” 28 C.F.R. pt. 36, App. 14 D, §4.1.2(5)(b). Under the 2010 standards, at least one in every six accessible 15 parking spaces shall be a van parking space. 36 C.F.R. pt. 1191, App. C § 208.2.4. 16 Van accessible stalls at least 96 inches wide but less than 132 inches wide must 17 have a 96-inch wide access aisle. 28 C.F.R. pt. 36, App. D, § 4.1.2(5)(a), (b); 36 18 C.F.R. pt. 1191, App. D § 502.2. 19 The advisory note to § 502.3.3 of the 2010 Standards states that the method 20 and color of marking may be addressed by State or local laws or regulations. 10 14cv331 BTM(DHB) 1 Under the California Building Code, each accessible car and van space shall be 2 marked with an International Symbol of Accessibility measuring at least 36 inches 3 wide by 36 inches high. 2013 California Building Code § 11B-502.6.4. Access 4 aisles are required to be marked with a blue painted borderline around their 5 perimeter and hatched lines within the blue borderlines. Id. at § 11B-502.3.3. The 6 words “No Parking” must be painted on the surface within each access aisle in 7 white letters a minimum of 12 inches in height. Id. 8 “A public accommodation shall maintain in operable working condition those 9 features of facilities and equipment that are required to be readily accessible to 10 and usable by persons with disabilities by the Act or this part.” 28 C.F.R. § 11 36.211(a). “This section recognizes that it is not sufficient to provide features such 12 as accessible routes, elevators, or ramps, if those features are not maintained in 13 a manner that enables individuals with disabilities to use them.” 28 C.F.R. pt. 36, 14 App. C § 36.211. 15 Plaintiff has submitted evidence that the painted surface of the accessible 16 parking spots had faded to the point that the markings were nonexistent or barely 17 visible. (See Exhibits to Willis Decl.) Although the photographs were taken by 18 Plaintiff’s investigator on February 19, 2013, Plaintiff declares that the photographs 19 accurately depict the condition of the parking spaces he encountered on the dates 20 from January 2013 through the filing of the lawsuit. (Lozano Decl. ¶ 8.) 11 14cv331 BTM(DHB) 1 The evidence establishes that Plaintiff encountered an architectural barrier 2 that impaired Plaintiff’s full and equal access of the Swap Meet. Removal of the 3 architectural barrier was readily achievable, as evidenced by the corrective 4 measures Defendants took after the Complaint was filed. 5 entitled to summary judgment on his ADA claim. Plaintiff’s claim for injunctive relief 6 is not moot for the reasons discussed in connection with Defendants’ motion to 7 dismiss. Therefore, Plaintiff is 8 9 2. Unruh Civil Rights Act Claim 10 Plaintiff seeks statutory damages under the Unruh Civil Rights Act (“UCRA”). 11 Under the UCRA, the plaintiff is ordinarily entitled to an award of statutory damages 12 of no less than $4,000 for each offense. Cal. Civ. Code § 52(a). Plaintiff requests 13 a single statutory minimum penalty assessment of $4,000. 14 The UCRA incorporates the ADA, and a violation of the ADA is actionable 15 under California law. Cal. Civ. Code § 52(f). To recover statutory damages, a 16 plaintiff must show that a particular barrier personally affected him and denied 17 him full and equal access. Moeller v. Taco Bell Corp., 2012 WL 3070863, at *4 18 (N.D. Cal. 2012). “A violation personally encountered by a plaintiff may be 19 sufficient to cause a denial of full and equal access if the plaintiff experienced 20 12 14cv331 BTM(DHB) 1 difficulty, discomfort, or embarrassment because of the violation.” Cal. Civ. Code 2 § 55.56(c). 3 Although Plaintiff generally was not deterred from going to the Swap Meet, 4 he experienced discomfort and anxiety because on a number of occasions, he 5 witnessed people parking on the access aisles, causing him to worry that when he 6 parked in a van accessible space, someone would end up parking in the access 7 aisle and blocking him out of his vehicle. (Lozano Decl. ¶¶ 7, 15.) On January 7, 8 2013, Plaintiff was unable to find a handicap parking space with a useable access 9 aisle because vehicles were parked on the access aisles. (Id. at ¶ 14.) 10 Defendants argue that the Court should deny summary judgment because 11 there are issues concerning Plaintiff’s credibility. Defendants request the Court to 12 take judicial notice of a state court decision in a disability access lawsuit brought 13 by Plaintiff. (Def. RJN [Doc. 18-4].) The Court grants that request. In this decision, 14 the state court found that Plaintiff’s claims that he patronized certain businesses 15 were not credible. (Def. Ex. J.) Defendants argue that they should have the 16 opportunity to impeach Plaintiff’s testimony in this case. 17 However, “neither a desire to cross-examine an affiant nor an unspecified 18 hope of undermining his or her credibility suffices to avert summary judgment.” 19 National Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F2d 95, 97 (9th Cir. 1983); 20 see also Williams v. County of Marin, 2004 WL 2002478, at *7 (N.D. Cal. Sept. 8, 13 14cv331 BTM(DHB) 1 2004) (“Nor is it sufficient for the opposing party simply to raise issues as to the 2 credibility of the moving party’s evidence.”) Defendants are required to “set forth 3 specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). 4 Defendants have failed to do so. 5 In their Reply, Defendants argue that even if Defendants are subject to 6 liability, the statutory damages should be reduced under Cal. Civ. Code § 7 55.56(f)(1)(A). 8 statutory damages is reduced to a minimum of $1,000 for each offense if the 9 defendant shows that it has corrected all construction-related violations that are 10 the basis of a claim within 60 days of being served with the complaint, and “[t]he 11 structure or area of the alleged violation was determined to be ‘CASp-inspected’ 12 or ‘meets applicable standards’ and, to the best of the defendant's knowledge, 13 there were no modifications or alterations that impacted compliance with 14 construction-related accessibility standards with respect to the plaintiff's claim that 15 were completed or commenced between the date of that determination and the 16 particular occasion on which the plaintiff was allegedly denied full and equal 17 access.” (Emphasis added.) Section 55.56(f)(1)(A) provides that a defendant’s liability for 18 It is clear from the language of the statute that the CASp inspection must 19 have occurred prior to the occasion when the plaintiff was denied full and equal 20 access. The Property, including the parking spaces, were inspected by a Certified 14 14cv331 BTM(DHB) 1 Access Specialist on September 25, 2014, after this lawsuit was filed. (Supp. 2 Gonzalez Decl. [Doc. 21-1] ¶ 9.) Therefore, Defendants do not qualify for a 3 reduction of statutory damages. 4 5 The Court grants Plaintiff’s motion for summary judgment on his UCRA claim. Plaintiff is entitled to the minimum statutory damages of $4,000. 6 7 III. CONCLUSION 8 For the reasons discussed above, Defendants’ motion to dismiss [Doc. 15] 9 is DENIED and Plaintiff’s Motion for Summary Judgment [Doc. 16] is GRANTED. 10 The Court grants summary judgment in favor of Plaintiff on Plaintiff’s first cause of 11 action for violation of the ADA and second cause of action for violation of the Unruh 12 Civil Rights Act. 13 The Court grants Plaintiff’s request to dismiss his third cause of action for 14 violation of the California Disabled Persons Act and fourth cause of action for 15 negligence. These claims are DISMISSED. 16 Because there is no just reason for delay, the Court orders the Clerk to enter 17 final judgment as follows: 18 1) Judgment is entered in favor of Plaintiff and against 19 Defendants Santo Tomas, Inc., and C.A. Martinez Family Limited 20 Partnership, jointly and severally, in the amount of $4,000. 15 14cv331 BTM(DHB) 1 2) The Court ORDERS Defendants Santo Tomas, Inc., and C.A. 2 Martinez Family Limited Partnership to maintain the accessible parking 3 spaces at 1102 V.V. Williams Ave., Calexico, California, so that they 4 remain compliant with the ADA and applicable ADAAG standards. 5 6 The Court also orders Plaintiff to show cause why his claims against 7 defendant Aurelia Martinez should not be dismissed. The proof of service of the 8 summons and complaint shows that the documents were left with a Susana 9 Martinez who stated that Auerlia Martinez is deceased. [Doc. 6.] Ms. Martinez 10 has not filed an answer or appeared in this action, and Plaintiff has not requested 11 an entry of default against her. Plaintiff’s response to this OSC is due within 10 12 days of the entry of this Order. 13 IT IS SO ORDERED. 14 Dated: September 8, 2015 15 16 17 18 19 20 16 14cv331 BTM(DHB)
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