Kohler v. CSK Auto, Inc., No. 3:2012cv03022 - Document 26 (S.D. Cal. 2014)
Court Description: ORDER granting Defendant's 19 Motion for Summary Judgment. Court grants summary judgment in favor of O'Reilly and against Plaintiff. Clerk instructed to enter judgment and to close the file. Signed by Judge Jeffrey T. Miller on 1/27/2014. (jah)
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Kohler v. CSK Auto, Inc. Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CHRIS KOHLER, 11 12 13 vs. CASE NO. 12cv3022 JM(WMc) Plaintiff, CSK AUTO, INC. dba O’REILLY AUTO PARTS #2941, 14 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 15 16 Defendant CSK Auto, Inc. dba O’Reilly Auto Parts #2941 (“O’Reilly”) moves 17 for summary judgment on all claims alleged in Plaintiff Chris Kohler’s First Amended 18 Complaint (“FAC”). Plaintiff Chris Kohler opposes the motion. Pursuant to L.R. 19 7.1(d)(1), the court finds this matter appropriate for resolution without oral argument. 20 For the reasons set forth below, the court grants summary judgment on the only federal 21 claim in favor of O’Reilly and against Plaintiff. The court declines to exercise 22 supplemental jurisdiction over the state law claims, dismisses the state law claims 23 without prejudice, denies all other pending motions as moot, and instructs the Clerk of 24 Court to enter judgment in favor of O’Reilly and against Plaintiff on the ADA claim 25 and to close the file. 26 27 BACKGROUND On January 20, 2012, Plaintiff, an individual with a mobility disability, 28 commenced this Americans with Disabilities Act (“ADA”) case, 42 U.S.C. §12101 et -1- 12cv3022 Dockets.Justia.com 1 seq., against O’Reilly. O’Reilly is an establishment located in the Midway Shopping 2 Center located on Midway Drive in San Diego, California. The FAC, filed on January 3 16, 2013, alleges four causes of action: (1) violation of the ADA; (2) violation of the 4 California Disabled Persons Act, Cal. Civil Code §54; (3) violation of the California 5 Unruh Civil Rights Act; and (4) denial of full and equal access to public facilities in 6 violation of Health and Safety Code §1995. The court notes that Plaintiff asserted the 7 same or substantially similar claims against O’Reilly and others in a related action, 8 Kohler v. Midland Land, 3:12cv0148 JM(WMc) (S.D. Cal.) “Kohler I.” 9 The Kohler I action, like the present action, is primarily an architectural barriers 10 case. There, Plaintiff alleged the following issues with respect to the parking area near 11 or in front of the O’Reilly store: at least one of the disabled parking spaces lacked 12 signage; the slope of some disabled parking places exceeded 2.0%; the access aisle 13 slope exceeded 2.0%; there was no International Symbol of Accessability mounted at 14 the entrance to the facility; the entrance doors to the O’Reilly store had inaccessible 15 panel handles; the access aisle adjacent to the van accessible parking space is on the 16 wrong side and too narrow; the tow signage was incorrect; and the striping on the 17 disabled parking aisles was faded to the point of being virtually invisible. (Kohler I 18 Compl. ¶16). In addition to the above alleged defects, the FAC in this case also alleges 19 two other deficiencies: the landing at the base of the ramp is too small and the disabled 20 parking spaces are not located along the closest accessible route to the entrance to the 21 O’Reilly store. (FAC ¶10). 22 O’Reilly was an original Defendant in Kohler I. However, on December 4, 23 2012, this court concluded that Plaintiff failed to show transactional relatedness 24 between the claims against O’Reilly and the other defendants and dismissed O’Reilly 25 based on misjoinder. In response to that order, Plaintiff commenced the present action. 26 On April 5, 2013, the court in Kohler I granted summary judgment on the federal 27 claims in favor of defendants and dismissed the state law claims without prejudice. In 28 that order, the court considered, based upon the evidentiary record submitted by -2- 12cv3022 1 Plaintiff and Midland Land, LLC, including the declaration of Midway’s expert, Greg 2 Izor, and granted summary judgment finding that there were no material disputed issues 3 of law or fact. 4 O’Reilly now moves for summary judgment arguing that Plaintiff’s claims are 5 barred by the doctrine of issue preclusion. Plaintiff opposes the motion. 6 DISCUSSION 7 Legal Standards 8 A motion for summary judgment shall be granted where “there is no genuine 9 issue as to any material fact and . . . the moving party is entitled to judgment as a matter 10 of law.” FED. R. CIV. P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th 11 Cir. 2005). The moving party bears the initial burden of informing the court of the 12 basis for its motion and identifying those portions of the file which it believes 13 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 14 477 U.S. 317, 323 (1986). There is “no express or implied requirement in Rule 56 that 15 the moving party support its motion with affidavits or other similar materials negating 16 the opponent’s claim.” Id. (emphasis in original). The opposing party cannot rest on 17 the mere allegations or denials of a pleading, but must “go beyond the pleadings and 18 by [the party’s] own affidavits, or by the ‘depositions, answers to interrogatories, and 19 admissions on file’ designate ‘specific facts showing that there is a genuine issue for 20 trial.’” Id. at 324 (citation omitted). The opposing party also may not rely solely on 21 conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 22 1045 (9th Cir. 1989). 23 The court must examine the evidence in the light most favorable to the non- 24 moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt 25 as to the existence of any issue of material fact requires denial of the motion. Anderson 26 v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, 27 when “‘the moving party bears the burden of proof at trial, it must come forward with 28 evidence which would entitle it to a directed verdict if the evidence were -3- 12cv3022 1 uncontroverted at trial.’” Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) 2 (emphasis in original) (quoting International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 3 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)). 4 The Motion 5 Issue preclusion applies when: “first, the issue sought to be precluded from 6 relitigation must be identical to that decided in a former proceeding. Second, this issue 7 must have been actually litigated in the former proceeding. Third, it must have been 8 necessarily decided in the former proceeding. Fourth, the decision in the former 9 proceeding must be final and on the merits. Finally, the party against whom preclusion 10 is sought must be the same as, or in privity with, the party to the former proceeding.” 11 Lucido v. Superior Court, 51 Cal.3d 335, 341 (1990); Trevino v. Gates, 99 F.3d 911, 12 926 (9th Cir. 1996). 13 Here, there is no serious dispute that all of the architectural barriers identified 14 in the FAC but two are identical to the issues litigated in Kohler I, the issues were 15 necessarily and actually litigated, the determination was on the merits, and Plaintiff is 16 the same in both actions. Accordingly, O’Reilly has met its burden to show that issue 17 preclusion is appropriate on these architectural barriers. Clark v. Bear Stearns & Co., 18 966 F.2d 1318, 1321 (9th Cir. 1992). 19 Plaintiff agues that O’Reilly waived the right to assert issue preclusion as a 20 defense because, as an affirmative defense, it had to be alleged in its answer. The court 21 notes that O’Reilly’s second affirmative defense states that Plaintiff’s complaint is 22 “barred by the application of the equitable defense of laches, waiver and estoppel.” 23 (Answer at p.8:15-18). The court concludes that this affirmative offense adequately 24 informs Plaintiff that collateral estoppel, or issue preclusion, is a potential defense to 25 Plaintiff’s claims.1 26 Plaintiff also argues that the two new architectural barriers identified in the FAC 27 1 The court notes that Plaintiff has had an opportunity to discover the contours 28 of this affirmative defense but, apparently, he has not pursued discovery related to O’Reilly’s affirmative defenses. -4- 12cv3022 1 are not subject to the doctrine of collateral estoppel because these barriers were not 2 actually litigated. While collateral estoppel does not apply “where there are changed 3 conditions and new facts which did not exist at the time of the prior judgment,” People 4 v. Ocean Shore Railroad, 32 Cal.2d 406, 418 (1948), there is no evidence before the 5 court demonstrating that the newly alleged barriers are, in fact, new barriers arising 6 after the commencement of Kohler I. The alleged barriers, the landing at the base of 7 the ramp is too small or that the disabled parking spaces are not located closest to the 8 O’Reilly store, existed at the time of Kohler I, and Plaintiff fails to present any contrary 9 evidence. Collateral estoppel “was never intended to operate so as to prevent a 10 re-examination of the same question between the same parties where, in the interval 11 between the first and second actions, the facts have materially changed or new facts 12 have occurred which may have altered the legal rights or relations of the litigants.” 13 Evans v. Celotex Corp.,194 Cal.App.3d 741, 748 (1987). “[N]ew evidence, however 14 compelling, is generally insufficient to avoid application of collateral estoppel.” Direct 15 Shopping Network, LLC v. James, 206 Cal.App. 4th 1551, 1561 (2012); Border 16 Business Park, Inc. v. City of San Diego, 142 Cal.App. 4th 1538, 1565-66 (2006) 17 (general rule that collateral estoppel precludes the relitigation of issues that were 18 actually litigated in a prior action, even if some factual matters or legal arguments that 19 could have been presented were not presented); Castillo v. City of Los Angeles, 92 20 Cal.App. 4th 477, 479 (2001) (assertion of a new legal theory based on the same facts 21 cannot avert application of the doctrine of collateral estoppel); Yamaha Corp. v. United 22 States, 961 F.2d 245, 254-55 (D.C. Cir. 1992) (application of issue preclusion 23 principles cannot be avoided by offering evidence in a second proceeding that could 24 have been admitted in the first proceeding). Here, Plaintiff simply fails to submit any 25 evidence to show that the barriers alleged in the FAC did not exist at the time he 26 27 28 -5- 12cv3022 1 commenced Kohler I.2 Consequently, O’Reilly is also entitled to summary judgment 2 with respect to these two barriers. 3 In sum, the court grants summary judgment in favor of O’Reilly and against 4 Plaintiff. The Clerk of Court is instructed to enter judgment accordingly and to close 5 the file. 6 7 DATED: January 27, 2014 8 Hon. Jeffrey T. Miller United States District Judge 9 10 cc: All parties 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 The court also notes that Plaintiff fails to submit any evidence to show that the common parking area of the Midway shopping center is within the control of a tenant 28 like O’Reilly, and not the owner and operator of the shopping center, Midland. O’Reilly would also be entitled to summary judgment on this ground. -6- 12cv3022
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