Che v. Boatman-Jacklin, Inc., No. 5:2018cv02060 - Document 70 (N.D. Cal. 2019)
Court Description: ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. Re: Dkt. No. 56 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/9/2019)
Download PDF
<![CDATA[
Che v. Boatman-Jacklin, Inc. Doc. 70 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 11 NGOC LAM CHE, United States District Court Northern District of California Plaintiff, 12 v. 13 14 BOATMAN-JACKLIN, INC., Defendant. Case No. 18-cv-02060-NC ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Re: Dkt. No. 56 15 16 Before the Court is plaintiff Ngoc Lam Che’s motion for summary judgment. See 17 18 Dkt. No. 56. Che seeks judgment as a matter of law on his accessibility lawsuit against 19 defendant Boatman-Jacklin, Inc., the owner of a shopping plaza. Id. Because a genuine 20 dispute of material fact exists as to whether it is readily achievable for Boatman-Jacklin to 21 remodel its parking lot and curb ramps, the Court DENIES IN PART Che’s motion for 22 summary judgment. The Court otherwise GRANTS IN PART Che’s motion for summary 23 judgment on the following undisputed issues: (1) Che is disabled; (2) Boatman-Jacklin is a 24 private entity that owns and operates a place of public accommodation; and (3) the place of 25 public accommodation has architectural barriers. 26 I. 27 28 Undisputed Facts and Procedural Background Che is a paraplegic. See Dkt. No. 65-3, Ex. 1 (“Che Depo.”) at 11:16–19. On April 6, 2017, he visited L&L Pure Water and Things, located in a shopping plaza at 1307 Dockets.Justia.com 1 Jacklin Road in Milpitas, CA. Id. at 12:7–12. That plaza is owned by Boatman-Jacklin, 2 who obtained the property from its predecessor. See Dkt. No. 65 at 7. During his visit, 3 Che could not find an accessible parking space near L&L. Che Depo. at 17:3–11. In 4 particular, Che asserts that he could not see proper signage, the access isle was too small, 5 and he had difficulty using the access ramp. Id. At the time of his visit, Che drove a 6 modified sedan, but now drives a mobility van. Id. at 14:21–24; 19:16–18. On January 19, 2019, the parties conducted a site inspection of the property with a United States District Court Northern District of California 7 8 certified accessibility specialist (“CASp”). See Dkt. No. 57 (“Lee Decl.”) ¶ 2; see also 9 Dkt. No. 57-1. Following that inspection, Boatman-Jacklin obtained bids for addressing 10 accessibility issues in the plaza’s parking lot, with the “best bid” being $38,430 to 11 demolish and replace the current access ramp. See Dkt. No. 65-1 (“Sommer Decl.”) ¶ 13. 12 Che filed suit on April 5, 2018, alleging disability discrimination claims under the 13 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and California’s 14 Unruh Act, Cal. Civ. Code §§ 51, 52. See Dkt. No. 1. All parties have consented to the 15 jurisdiction of a magistrate judge. See Dkt. Nos. 11, 21. 16 II. Legal Standard 17 Under Federal Rules of Civil Procedure 56(a), a court “shall grant summary 18 judgment if the movant shows that there is no genuine dispute as to any material fact and 19 the movant is entitled to judgment as a matter of law.” Under Rule 56, the moving party 20 bears the initial burden to demonstrate the absence of a genuine issue of material fact. 21 Once the moving party meets its burden, then the non-moving party must cite “particular 22 parts of materials in the record” showing that there is a genuine issue for trial. Fed. R. Civ. 23 P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A “genuine issue” exists if a 24 reasonable jury could find for the non-moving party. E.g., Open Text v. Box, Inc., No. 13- 25 cv-04910-JD, 2015 WL 428365, at *1 (N.D. Cal. Jan. 30, 2015). On summary judgment, 26 the Court does not make credibility determinations or weigh conflicting evidence, as these 27 determinations are left to the trier of fact at trial. Bator v. State of Hawaii, 39 F.3d 1021, 28 1026 (9th Cir. 1994). 2 1 2 3 A. Prior Settlement and Res Judicata As an initial matter, Boatman-Jacklin argues that the parties’ settlement in a prior 4 lawsuit and the doctrine of res judiciata bars Che’s claims in this case. See Dkt. No. 65 at 5 10–14. Although Boatman-Jacklin raises these arguments in its opposition to Che’s 6 motion for summary judgment, its arguments appear to be a thinly disguised motion for 7 reconsideration of the Court’s previous order. See Dkt. No. 48. In that order, the Court 8 held that Che’s prior settlement with Boatman-Jacklin’s predecessor only barred claims 9 prior to September 9, 2015, and that Che’s current lawsuit alleges ADA violations 10 11 United States District Court Northern District of California III. Discussion different than the ones he previously alleged. See id. at 2–3. Local Rule 7-9(b) limits the grounds on which reconsideration may be sought. And 12 Local Rule 7-9(c) prohibits parties from “repeat[ing] any oral or written argument . . . in 13 support of or in opposition to the interlocutory order which the party now seeks to have 14 reconsidered.” Because Boatman-Jacklin has not identified any ground for reconsideration 15 and simply repeats its prior arguments, the Court declines to reconsider its prior order. 16 B. ADA and Unruh Act Claim 17 “To prevail on a Title III discrimination claim, the plaintiff must show that (1) []he 18 is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, 19 leases, or operates a place of public accommodation; and (3) the plaintiff was denied 20 public accommodations by the defendant because of her disability.” Molski v. M.J. Cable, 21 Inc., 481 F.3d 724, 730 (9th Cir. 2007). As to the third element, discrimination includes “a 22 failure to remove architectural barriers . . . in existing facilities . . . where such removal is 23 readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). “Any violation of the ADA 24 necessarily constitutes a violation of the Unruh Act.” Molski, 481 F.3d at 731 (citing Cal. 25 Civ. Code § 51(f)). 26 Here, only the third element of Che’s discrimination claim—whether removing the 27 architectural barriers is readily achievable—is in dispute. See generally, Dkt. No. 65. 28 “Readily achievable” is a fact-laden inquiry considering the cost of the action required to 3 United States District Court Northern District of California 1 remove the barrier, the overall financial resources of the facility, and the type of operation 2 of the entity. See 42 U.S.C. § 12181(9); see also 28 C.F.R. Pt. 36, App. B at 647 (2000) 3 (“Whether or not any of these measures is readily achievable is to be determined on a case- 4 by-case basis in light of the particular circumstances presented and the factors listed in the 5 definition of readily achievable.”). 6 Although the Ninth Circuit has not decided who has the burden of proving that 7 removal of an architectural barrier is “readily achievable” (see Moore v. Robinson Oil 8 Corp., 588 Fed. Appx. 528, 529–30 (9th Cir. 2014)), district courts in this circuit have 9 largely adopted the burden-shifting framework established by the Tenth Circuit in 10 Colorado Cross Disability v. Hermanson Family, Ltd., 264 F.3d 999 (10th Cir. 2001). 11 See, e.g., Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998, 1010 (C.D. Cal. 2014); Moeller v. 12 Taco Bell Corp., 816 F. Supp. 2d 831, 847–48 (N.D. Cal. 2011). In Colorado Cross, the 13 Tenth Circuit held that “Plaintiff must initially present evidence tending to show that the 14 suggested method of barrier removal is readily achievable under the particular 15 circumstances.” Colo. Cross, 264 F.3d at 1002. “If Plaintiff does so, Defendant then bears 16 the ultimate burden of persuasion that barrier removal is not readily achievable under [the 17 ADA].” Id. at 1002–03. 18 Here, Boatman-Jacklin’s owner, Juliana Somner, asserts that demolishing the 19 current ramp and installing a new ramp would cost $38,430. See Somner Decl. ¶ 13. She 20 also asserts that this amount is “substantial . . . in comparison to [Boatman-Jacklin’s] 21 budget.” Id. Because the Court must consider “the nature and cost of the action needed” 22 and “the overall financial resources of the facility . . . involved,” there is a genuine dispute 23 as to whether remodeling the shopping plaza’s accessible parking spaces and curb ramps is 24 readily achievable. 25 In reply, Che first argues that Boatman-Jacklin waived its readily achievable 26 defense because it failed to assert this defense in its answer. While there is some support 27 for Che’s position (see, e.g., Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 28 (E.D. Cal. 2007), the Court declines to find waiver. First, although Boatman-Jacklin did 4 United States District Court Northern District of California 1 not plead waiver in its answer, it explicitly raised that defense in its opposition to summary 2 judgment. Cf. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 819 (9th Cir. 2004) 3 (holding that defendant waived a defense when it “did not specifically plead the . . . 4 defense in its motion for summary judge”). Second, courts have granted leave to amend 5 pleadings to assert the readily achievable defense. See, e.g., Doran v. Del Taco, No. 04- 6 cv-046-CJC, 2005 WL 3478136, at *1 (C.D. Cal. Sep. 16, 2005) (granting leave to amend 7 to plead a “readily achievable” defense). Third, most courts applying waiver have done so 8 in the default judgment context, not at summary judgment. See, e.g., Heifetz v. W. San 9 Carlos Cts Apts., LLC, No. 17-cv-01451-EJD (NC), 2017 U.S. Dist. LEXIS 220976, at 10 *8–9 (N.D. Cal. Nov. 13, 2017). And finally, Che did not raise the issue of waiver until its 11 reply, depriving Boatman-Jacklin the opportunity to respond. 12 Che next argues that Boatman-Jacklin failed to present evidence that it could not 13 afford to remove the barriers and that its quoted cost is incredible. See Dkt. No. 66 at 8–9. 14 These arguments, however, go to the weight of Somner’s declaration. Absent additional 15 evidence bolstering Somner’s assertions, the finder of fact may well discredit her 16 statements. On a motion for summary judgment, however, the Court does not weigh 17 evidence or make credibility findings. See Bator, 39 F.3d at 1026. 18 19 20 Accordingly, the Court DENIES Che’s motion for summary judgment. IV. Conclusion For the foregoing reasons, the Court DENIES IN PART Che’s motion for summary 21 judgment as to whether it is readily achievable for Boatman-Jacklin to remodel its 22 accessible parking and curb ramps. The Court otherwise GRANTS IN PART Che’s 23 motion for summary judgment that (1) Che is disabled; (2) Boatman-Jacklin is a private 24 entity that owns and operates a place of public accommodation; and (3) the place of public 25 accommodation has architectural barriers. 26 27 28 5 1 IT IS SO ORDERED. 2 3 4 Dated: August 9, 2019 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
