ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Craig Crandall, an individual who requires a wheelchair for mobility, sues for disability discrimination in eonnection with access barriers he encountered when visiting a Starbucks cafe in San Jose, California. In his First Amended Complaint (“FAC”), Plaintiff alleges that Defendant violated the Americans with Disabilities Act: of 1990 (“ADA”), the Unruh Act, and the California Health and Safety Code. (Dkt. No. 37.
BACKGROUND
I. Summary Judgment Evidence
Plaintiff became a paraplegic due to injuries from a traffic accident and, as a result,- is unable to walk and uses a manual wheelchair for mobility. (Dkt. No. 64-1 ¶ 2; Dkt. No. 64-10 ¶1.) He has lived in the San Jose area since 2000. (See Dkt. No. 68-3.) Defendant operates Starbucks-No. 5262 (the “Starbucks”), a public accommodation located at-6471 - Almadén Expressway, Suite 90, in San Jose. (Dkt. No. 64-10 ¶¶ 2, 4.) .The Starbucks opened, in May 1996. (Dkt. No. 66-7 at. 2-3.) On January 17, 2015, Plaintiff visited the Starbucks for the first time to buy coffee. (Dkt.. No. 64-1 ¶ 5; Dkt. No. 66-2 at 11.) While he was able to buy a coffee-on that visit (Dkt. No. 64-1 ¶ 5; Dkt. No. 62-4 at 4), he alleges that he experienced two access barriers that denied him full and fair enjoyment of the Starbucks.
The first access barrier Plaintiff alleged in the FAG was difficulty reaching thé
Private investigator Brian Ferris visited the Starbucks on March 31 and April 7, 2016. (Dkt. No. 645.) The merchandise display was still in the center of the store on those visits. (Id. ¶7.) Based on measurements and photographs he took, and his own observations—discussed in further detail below in the context of each barrier alleged—Mr. Ferris concluded that the path of travel to the cashier was limited to 20 or 26 inches when customers were present in the store and the path of travel on the other side of the merchandise display was equally limited. (Id.; see also Dkt. Nos. 64-6 at 6, 10, 12.) Sometime after Plaintiff filed suit, the merchandise display was moved from the middle of the open floor space to a location against the wall across from the cashier’s counter. (Dkt. No. 64-10 at 6.)
The second access barrier Plaintiff alleges that he experienced was a barrier in the path of travel to the men’s restroom. (Dkt. No. 37 ¶ 10.) Plaintiff avers that he “was unable to locate an accessible route of travel to the restroom” because his “route was blocked by tables and chairs being used by other patrons,” and the space in between the tables and chairs and the drink pick-up counter “was not wide enough for [his] wheelchair to fit through.” (Dkt. No. 64-1 If 7.) Specifically, one of the three chairs for the table adjacent to the drink pick-up counter obstructed the path and Plaintiff had to ask the patrons sitting at the particular table to stand and move a chair to permit him to pass. (Dkt. No. 66-2 at 14-15.) Plaintiff recalls that “the space between the table/chairs and the nearby pick-up counter was no more than two feet wide, and thus not wide enough for [his] wheelchair to get through.” (Dkt. No. 64-1 ¶7.) Plaintiff estimates that the path of travel to the men’s bathroom was no more than 24 inches wide. (Dkt. No. 70-1 ¶ 7.) Mr. Ferris avers that the path of travel to the restroom—namely, the space between the pick-up counter and the tables and chairs—was limited to 26 to 29 inches when there were no customers waiting for drinks and even less or no space when customers were present. (Dkt. No. 64-5 ¶ 8; Dkt. No. 64-6 at 14, 16-17, 19, 21.)
The table adjacent to the pick-up counter was removed sometime after Plaintiff filed suit. (Dkt. No. 64-10 at 6; Dkt. No. 66-4 at 5.) One Starbucks employee testified that it was removed because it was broken, but Starbucks Facilities Manager Chelsea Austin testified that she asked the store to remove it because it was creating
Plaintiff lives ten miles from the Starbucks and visits it “sometimes when [he] is in that area and feel[s] like having a coffee.” (Dkt. No. 64-1 ¶ 10.) At his deposition, he stated that he had “possibly” been to the Starbucks more than five times, but the visit alleged in the FAC was his first visit and the last visit was six months before his deposition. (Dkt. No. 66-2 at 9, 11.) In his declaration, he avers that he has “been to this [Starbucks] location probably between five and ten times” but only remembers experiencing the access barriers twice. (Dkt. No. 64-10 ¶ 10; see also Dkt. No. 70-1 ¶ 10.) He further avers that he has returned to the Starbucks several times since the visit alleged in the complaint, including one time when he chose to stay in his car when his wife went to get his coffee because he remembered that the store was too difficult to navigate. (Dkt. No. 64-10 ¶ 10; Dkt. No. 70-1 ¶ 10.) Plaintiff avers that the Starbucks is located about one mile from his family’s church, where his children attend summer programs. (Dkt. No. 70-1 ¶ 11.) When Plaintiff drops his children off at the summer programs, he often needs to do work at a place with WiFi; he would like that to be the Starbucks. (Dkt. No. 70-1 ¶ 12.) In addition, the Starbucks is near a restaurant Plaintiff and his family like and frequent; Plaintiff does not like the coffee there and would like to buy coffee at Starbucks after lunch. (Dkt. No. 70-1 ¶ 13.) According to Plaintiff, he would return to the Starbucks if the barriers he encountered—and a number of other barriers identified by Plaintiffs expert—were removed. (Dkt. No. 64-1 ¶ 10; Dkt. No. 70-1 ¶¶ 10,14.)
Defendant submits evidence that there are a number of other Starbucks locations closer to Plaintiffs home and that Plaintiffs original stated reason for visiting the Starbucks—proximity to his son’s lacrosse games—is not credible because the team’s website indicates that it did not play at a school near that location. (See Dkt. No. 65-1 at 18; Dkt. Nos. 68-1-68-10.)
The parties have each submitted reports prepared by experts in disability access. Plaintiffs expert, Michael Bluhm, opines that all of the conditions Plaintiffs allege in the FAC fail to meet the height, width, or other requirements of the 2010 ADA Accessibility Guidelines (“2010 ADAAG”) control. (Dkt. No. 64-3.) Defendant’s expert, Kim Blackseth, submitted a declaration and report in which he opines that the interior of the store does not have any access barriers. (Dkt. No. 67 ¶ 9; Dkt. No. 67-1.) The Court will address the substance of each barrier and the experts’ opinions below.
Plaintiff filed this action on April 23, 2015 against Starbucks and the owners of the property, contending that the barriers he encountered at the Starbucks prevented him from enjoying full and equal access to the store.
Plaintiff dismissed the owners of the property from the action and filed the First Amended Complaint (“FAC”) against Starbucks—as owners of the store—only. (Dkt. Nos. 26, 37.) In the FAC, in addition to alleging the two barriers Plaintiff experienced himself, he alleged a number of other violations based on his expert’s’inspection of the'Starbucks relating to the entry door’s threshold height, closing speed, and door pressure; the arrangement of interior accessible tables; elevated counter seating; inaccessible location of self-service items; unsecured floor mats; and a number of issues with the men’s restroom. (Id. ¶ ll(a)-(p).)
The parties have each filed a motion for summary judgment seeking judgment in their favor on the FAC claims.
DISCUSSION
I. Evidentiary Requests & Objections
Before turning to the substance of the parties’ motions, the Court must resolve a number of evidentiary disputes. Specifically, Defendant filed a request for judicial notice and both parties have objected to certain evidence.
A. Request for Judicial Notice
To support its argument that Plaintiff does not intend to return to the Starbucks, Defendant offers evidence that Plaintiffs son’s lacrosse team , did not play games near the Starbucks and that there are a number of other Starbucks locations closer to Plaintiffs house, (Dkt. No. 65-1 at 18.) The evidence includes (1) public record information regarding Plaintiffs purchase of his home; (2) Google maps showing routes from Plaintiffs home to the Starbucks, other Starbucks located near his home, and routes from his son’s lacrosse team’s fields to the Starbucks; and (3) game schedules and home field information from Plaintiffs son’s lacrosse team'—all of which are the subject of Defendant’s Request for Judicial Notice. (Dkt. No. 68; Dkt. No. 68-1-68-10.) .
First, with respect to'the public record information of Plaintiffs home,
Plaintiff objects to the requests for judicial notice of information from Plaintiffs son’s lacrosse team’s website, contending that information about where the team played is not “generally known,” its accuracy is reasonably questionable, there is “no way to authenticate the screen captures,” and there is “no way to determine if what is on the website is an accurate reflection of what actually transpired or will transpire.” (Dkt. No. 70 at 7-8.) “It is not uncommon for courts to take judicial notice of factual information found on the world wide web.” Barnes v. Marriott Hotel Servs., Inc., No. 15-cv-01409-HRL,
B. Plaintiffs Evidentiary Objections
1. Declaration of Kim Blackseth
Plaintiff objects to the declaration of Defendant’s expert, Kim Blackseth, because (1) portions must be excluded under the “sham affidavit” rule; (2) portions contain impermissible legal opinion and legal conclusions; and (3) he “may have relied upon information provided to him by one of his associates which is not the practice of experts within his field.” (Dkt. No. 70 at 11-14.)
a. Sham Affidavit Rule
The “sham affidavit” rule provides that a “party cannot create an issue of fact by an affidavit contradicting ... prior deposition testimony.” Yeager v. Bowlin,
Plaintiff identifies eight instances that he argues must be excluded under the
The same result is required for six of the other statements in the Blackseth Declaration to which Plaintiff objects. In each these instances, in his expert report and deposition Mr. Blackseth agreed with Plaintiffs expert that the feature—door pressure, elevated counter seating, and the location of the mirror, toilet paper dispenser, and toilet—failed to comply with the 2010 ADAAG. But in his summary judgment declaration he avers that each complies without indicating that Defendant conducted remediation and subsequent to that he visited the Starbucks again, took new measurements, and thus changed his conclusions. The Court therefore sustains Plaintiffs objections to paragraphs 9(F), (I), (L), (P), (Q), and (O) of the Blackseth Declaration.
The Court overrules the objection as to Mr. Blackseth’s comments about the location of the trashcan in the men’s bathroom. (See Dkt. No. 70 at 12-13.) In his expert report, Mr. Blackseth stated that the trashcan was no longer obstructing the entry door because it had been relocated so “[t]here is no barrier or action required.” (Dkt. No. 67-1 at 8.) At his deposition, he testified that the trashcan had been moved from the place where Plaintiff encountered it and that even if it blocked access to other elements—like the sink or the toilet—it is not a barrier because it is
b. Legal Opinion or Legal Conclusions
Plaintiff next objects to four particular paragraphs of the Blackseth Declaration and the conclusions of all subparagraphs on the grounds that they contain impermissible legal opinion or legal conclusions. (Dkt. No. 70 at 13.)
Although an expert may not provide testimony on an ultimate legal issue, he may testify as to findings that support the ultimate issue. See Hangarter v. Provident Life & Accident Ins. Co.,
Plaintiff objects to the following statements:
B) The subject store fully complies with all federal and state access regulations as Plaintiff Craig Crandall alleges them and as they relate to his disability of a mobility-impaired person who uses a manual wheelchair.
G) The arrangement of the interior tables and chairs provide an equivalent experience and comply with all access regulations.
K) The floor mats are properly installed and secured and comply with all access regulations.
M) The men’s restroom has clear floor space of 60‘ wide by 51‘ deep and is not obstructed by the trash can. Therefore, the clear space in the men’s restroom complies with all access regulations.
(Dkt. No. 67 ¶¶ 9(B), (G), (K), (M).)
The Court sustains Plaintiffs objections to paragraphs 9(B), (G), and (K). Conclusory opinions that the entire facility or particular features fully comply with regulations and access requirements constitute improper legal conclusions. See, e.g., Hangarter,
Plaintiff also objects to “the portion of every other subparagraph in paragraph 9 that concludes with a legal opinion.” (Dkt. No. 70 at 13.) But the case on which he relies, Kalani v. Starbucks Corp.,
Third, Plaintiff objects to the Blackseth Declaration on the grounds that he “may have relied upon information provided to him by an associate which is not the practice of experts within his field.” (Dkt. No. 70 at 13.) Specifically, Plaintiff laments that Mr. Blackseth did not take the photographs and measurements of the Starbucks himself and instead relied on his associates for such information; Plaintiff argues that, as a result, the Blackseth Declaration lacks foundation and constitutes hearsay. (Id. at 13-14.) Plaintiffs expert testified that reliance on others’ photographs and measurements is not the practice in the disability access field; based on that, Plaintiff argues that Mr. Blackseth’s declaration is, also improper expert opinion. (Dkt. No. 70 at 14; Dkt. No. 70-3 ¶ 33.) Defendant responds that Mr. Blackseth has long relied on photographs and measurements of other certi-fled disability access specialists in his firm because he is a quadriplegic. (See Dkt. No.72 at 10; Dkt. No. 72-3 at 3.
The cases Plaintiff cites do not change the Court’s conclusion. For example, Chapman v. Starbucks Corp., No. 2:09-cv-2526-GEB-EFB,
2. Chelsea Austin Testimony
Plaintiff also objects to the testimony of Starbucks Facilities Manager Chelsea Austin, first on the grounds that it is improper lay opinion. (Dkt. No. 70 at 9.) Presumably, here, Plaintiff refers to paragraph 6, where Ms. Austin states that
However, in paragraph 10, Ms. Austin avers that based on Starbucks’s policy of striving to make its locations accessible to persons that are disabled, “the subject store provides more than adequate and lawful access to Plaintiff Craig Crandall” and “never intentionally discriminated against [Plaintiff].” (Dkt. No. 65-2 ¶ 10.) To the extent that Plaintiff also objected to this paragraph, the Court sustains the objection or sua sponte sustains its own objection to this • paragraph as it contains impermissible legal opinion or legal conclusions.
C. Defendant’s Evidentiary Objections
1. Objections to Evidence Submitted in Support of Plaintiffs Motion
Defendant objects to one paragraph of Plaintiffs declaration as well as the declarations of Plaintiffs two private investigators, all submitted in support of Plaintiffs opening summary judgment brief. (Dkt. No. 69-1.) Plaintiff urges the Court to disregard or overrule Defendant’s evidentiary objections because they were filed separately from Defendant’s opposition brief in contravention of Civil Local Rule 7-3(a). (Dkt. No. 71 at 6.) See N.D. Cal. Civ. L.R. 7-3(a) (“Any evidentiary and procedural objections to the motion must be contained within the brief or memorandum.”). The essence of Plaintiffs opposition is that, by ignoring Rule 7-3(a), Defendant fit more argument into its- brief than it otherwise could have—and more than Plaintiff .did, because his objections were properly within his brief. (See Dkt. No. 71 at 6.) The Court agrees and over
Defendant also objects to evidence that Plaintiff submitted in support of his reply, contending that “[i]t is improper for Plaintiff to submit any evidence in his Reply that was not initially submitted in his motion.” (Dkt. No. 73.) But Local Rule 7-3(c) permits a party to attach a declaration or affidavit to a reply. On the other hand, courts typically do not consider new evidence first submitted in a reply brief because the opposing party has no opportunity to respond to it. See Provenz v. Miller,
Here, Plaintiffs reply includes some evidence that is new—i.e., that he did not include in his opening brief or his opposition to Defendant’s motion, including: a portion of Ms. Austin’s deposition testimony (Dkt. No. 71-2 at 15-22); portions of the depositions of Starbucks employees Cher Hubert {id. at 15-22), Kelly Schaub {id. at 24-27), Micaela Wandrocke {id. at 29-35), and Samantha Jordan {id. at 37-46); and a supplemental declaration of Plaintiffs private investigator Nick Quinn describing his observation that Starbucks employees did not conduct eight minute “spins” of the store (Dkt. No. 71-3). The Court sustains Defendant’s objection to this evidence and will not consider it. However, Plaintiff has also submitted a portion of his own deposition that he included in his opposition to Defendant’s summary judgment motion. (Compare Dkt. No. 71-2 at 6-14, with Dkt. No. 70-10 at 28-35.) The Court overrules Defendant’s objection to this deposition testimony.
II. Analysis
A. ADA Claims
Congress enacted the ADA “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12Í01(b)(2). Among its many provisions, Title III “prohibits discrimination 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’ with a nexus in interstate commerce.” Oliver v. Ralphs Grocery Co.,
Here, the first two elements are undisputed: the parties agree that Plaintiff is disabled and that Defendant owns the Starbucks he visited. At issue is only whether Plaintiff was denied full and equal treatment by Defendant because of his disability—i.e., whether he was discriminated against. This element is met if there was a violation of applicable accessibility standards. See Chapman v. Pier 1 Imports (U.S.) Inc. (Chapman I),
Plaintiff argues that he is entitled to summary judgment because the evidence establishes as a matter of law that the Starbucks has architectural barriers relating to his disability that violate the ADA. Defendant contends that Plaintiff cannot demonstrate that he experienced any access barriers that hindered his full and equal enjoyment of the Starbucks and, even if he did, Defendant’s renovations to the Starbucks store have brought all of Plaintiffs identified barriers into compliance with the 2010 ADAAG. Put another way, the focus of Defendant’s motion is that Plaintiff lacks standing and, in any event, his ADA claims are moot.
1. Plaintiff Has Suffered an Injury in Fact Sufficient for Standing
Defendant first contends that Plaintiff has not suffered any injury in fact and therefore lacks standing because (1) he has not adequately established that any of the barriers identified denied him full or equal access, and, (2) even if he had, he has not established an intent to return.
To demonstrate an injury in fact, an ADA claimant must establish that he has been injured as a result of the defendant’s actions and that the injury can be redressed by a favorable decision. Chapman I,
The record reflects that Plaintiff suffered an injury in fact because he personally encountered two barriers: he had difficulty reaching the cashier’s counter because of the merchandise displays in the middle of the store and at the counter, and he had difficulty passing through the path of travel to the men’s bathroom because of the furniture blocking the aisle next to the pick-up counter. Plaintiff averred that
Defendant also argues that there was no ADA violation because Plaintiff testified that he reached the transaction counter and was able to buy a coffee. This argument ignores the law on harm in access barrier cases: the ADA does not require a plaintiff to have been denied access altogether; all it requires is that a plaintiff be denied full and equal access. Thus, Plaintiff does not lack standing merely because he was able to buy a coffee.
Defendant also contends that Plaintiff lacks standing because he only experienced the access barriers alleged on one occasion. Defendant relies on Chapman v. Pier 1 Imports (U.S.) Inc. (Chapman I),
Plaintiff has also established intent to return sufficient to establish a likelihood of future injury. In determining whether a plaintiffs likelihood of return 4s sufficient to confer standing, courts have examined factors including: (1) the proximity of the business to the plaintiffs residence, (2) the plaintiffs past patronage of the business, (3) the definitiveness of the plaintiffs plans to return, and (4) the plaintiffs frequency of travel near the defendant.
And in any event, a Title III ADA plaintiff need not establish intent to returp to have standing. “Demonstrating an intent to return to a non-compliant accommodation is but one way for an injured plaintiff to establish Article III standing to pursue injunctive relief. A disabled individual also suffers a cognizable injury if he is deterred from .visiting a noncompliant public accommodation because he has encountered barriers related to his disability there.” Chapman I,
Although Defendant dedicates many pages of its brief to undermining Plaintiffs recollection of why he was at the Starbucks—that is, demonstrating that Plaintiffs son’s lacrosse team does not actually play near the Starbucks—this evidence does not defeat Plaintiffs standing. It is undisputed that Plaintiff visited the Starbucks on at least two occasions, and that it is only 10 miles from his house. Given the proximity, it matters little precisely why Plaintiff visited the Starbucks, Likewise, Defendant emphasizes that there are a number of other Starbucks stores closer to Plaintiffs residence. But Defendant cites no authority that supports its position that the ADA only protects public accommodations closest to a disabled individual’s home, and the Court’s review indicates that the ADA’s reach is not so limited. See, e.g., Doran,
Thus, Plaintiff has suffered an injury-in-fact and intent to return sufficient to establish standing to bring his ADA claims. Defendant also argues that because it has removed or remediated all barriers in the Starbucks, Plaintiffs claim for injunctive relief is moot. As mootness requires a fact-specific inquiry, the Court will address mootness with respect to each alleged access barrier separately.
3. Whether Starbucks Has Access Barr riers
Plaintiff moves for summary judgment on the grounds that he is' enti-
As discussed above, Defendant contends that all of the alleged access barriers are moot. “A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M.,
Defendant argues that by remediating the barriers at Starbucks it has voluntarily ceased the conduct Plaintiff challenged in the FAC. “Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave [t]he defendant ... free to return to his old ways.” United States v. Concentrated Phosphate Export Ass’n,
Put another way, a defendant’s voluntary compliance only moots a request for prospective relief where the defendant meets the “formidable burden” or demonstrating that it is “absolutely clear the alleged wrongful behavior could not rea
a. Access to the Counter Area
The first alleged barrier is the access to the cashier counter. (Dkt. No. 37 ¶ 10(a).) Plaintiff contends that Defendant violated the 2010 ADAAG requirement that the minimum clear width of all walking spaces be a minimum of 36 inches, (Dkt. No. 64 at 17.) See 2010 ADAAG 403.5.1; 28 C.F.R. pt. 36, subpart D, 36 C.F.R. pt. 1191 app. B & D.
Plaintiff testified that the aisle was less than 36 inches wide based on his experience operating his manual wheelchair. And a Plaintiffs own opinion about the measurements is admissible. See Strong,
Even once he got to the counter, Plaintiff further alleges that additional merchandise displays further blocked his reach to the cashier. The 2010 ADAAG requires accessible clear space on the counter be at least 36 inches wide and that the accessible portion of the counter top extend the same depth as the sales or service counter top. 2010 ADAAG §§ 904.4.1, 904.4. Plaintiff avers that the counter was cluttered with merchandise that it was difficult for him to reach the over and pay for his coffee. (Dkt. No. 64-1 ¶ 6.) In August 2015 Plaintiffs expert, Mr. Blume, measured the clear space at the transaction counter as less than 30 inches due to merchandise displayed in front of and in between the cash registers. (Dkt. No. 64-3 ¶ 11; Dkt. No. 64-4 at 19-20.)
In rebutting Plaintiffs motion and seeking summary judgment in its favor, Defendant relies on the testimony of Mr. Black-seth and Ms. Austin. Mr. Blackseth opined that there were no problems with the width of the clear spaces within the store. (Dkt. No. 64-10 at 39; Dkt. No. 67 ¶ 9(D).) At the time he wrote his expert report, it is undisputed that Defendant had removed the merchandise display from the center of the waiting area and relocated it against the wall—according to Defendant’s Facilities Manager because it did not provide enough clearance. (Dkt, No. 64-3 ¶¶ 24-25; Dkt. No. 63-10 at 6.) But Mr. Blackseth
Ms. Austin similarly avers that as of February 2017 the Starbucks “has no less than 36 [inches] clearance space for the path of travel from the entry door, to the customer service area....” (Dkt. No. 69-2 ¶ 6(b).) She further avers that the store’s transaction counter provides the requisite counter and floor space inasmuch as it is 33 inches high and at least 36 inches wide and is not obstructed by any merchandise displays. (Dkt. No. 69-2 ¶ 6(a).) Mr. Black-seth’s and Ms. Austin’s testimony does not create a genuine dispute of fact as to whether access to the cashier counter was obstructed at the time of Plaintiffs visit. The only record evidence from before the merchandise displays were moved is that there was not a wide enough pathway to the counter or enough access to the counter itself; that is, that at the time of Plaintiffs visit Defendant was in violation of the ADA.
And Defendant has not established that the access to the cashier counter barrier has been removed or remediated such that Plaintiffs claim is moot. While the testimony of Ms. Austin and Mr. Blackseth suggests that the counter is not currently obstructed—and Plaintiff has not offered any testimony to the contrary—neither their testimony nor any other evidence establishes that the counter will not be obstructed again in the future. For example, drawing all inferences in Defendant’s favor, the Court can reasonably infer that Starbucks relocated the merchandise displays; but this is not a structural or permanent architectural change. There is no evidence that Starbucks has ever had or has since adopted a particular policy governing placement of merchandise displays. Starbucks has not proven that the display will not be returned to the middle of the store or other areas where it might block Plaintiffs access to the cashier’s counter. Thus, Starbucks has not met its “heavy burden” of persuading the Court that Plaintiffs access to the cashier counter might be impeded by merchandise displays in the future. See Friends of the Earth,
Relatedly, Defendant insists that Plaintiff is not entitled to summary judgment because the cashier counter access barrier Plaintiff encountered is temporary and moveable. ADA regulations “explain that the requirement that public accommodations maintain ‘readily accessible’ facilities and equipment ‘does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.” 28 C.F.R. § 36.211(b). Thus, “an isolated or temporary hindrance to access does not give rise to a claim under the ADA.” Chapman II,
Defendant insists that the obstructed path to the cashier’s counter that Plaintiff encountered was such an “isolated or temporary interruption” in access unlike the blocked aisles in Chapman II.. Not so. The merchandise display was located in the center of the store, narrowing the path of travel, when Plaintiff visited the store on January. 17, 2015 and on the two dates later that spring when Plaintiffs private investigator visited the store, and it is undisputed that when there are customers in the store the .displays make the path- of travel too narrow. Aside from evidence that they were removed sometime thereafter, the record is silent as to whether of how often Starbucks employees moved the merchandise displays around.- Defendant maintains that the merchandise displays are freestanding and are “constantly being pushed out of position by customers throughout the day[,]” (Dkt. No. 69 at 13), but they cite no evidence to support that proposition and the Court has found none in the record. Nor has Defendant argued, let alone adduced any evidence, that when customers move the displays “out of position” the path of travel becomes accessible—ie., that the barrier is removed. And if the Court accepts as true that customers moved the displays around, the record reflects that Starbucks employees returned merchandise displays to their original positions -during their 8 minute sweeps, and when the merchandise displays were “in position” thé path was too narrow when customers were present. Thus, even drawing all inferences in Defendant’s favor, a reasonable trier of fact could not find that the merchandise displays were only temporary barriers. Thus, the access to the cashier counter is not the type of isolated and temporary access barrier that falls- outside the protective reach of the ADA.
Accordingly, the Court will grant summary judgment in Plaintiffs favor on this claim.
b. Access to the Men’s Restroom
Next, both parties seek summary judgment regarding Plaintiffs claim that Starbucks,did not provide a clear path of access to the men’s restroom in violation of the ADAAG’s requirement that all walking surfaces have a clear path at least 36 inches wide. (Dkt. No. 37 ¶ 10(b); Dkt. No. 64 at 17.) 2010 ADAAG § 403.5.1.
Plaintiff relies on his testimony that the space between the pick-up counter and the table and chairs adjacent to it was less than 36 inches across and, thus, not wide enough for him to get through so he had to ask another patron to move his chair (Dkt. No. 66-2 at 14-15; Dkt. No. 64-1 ¶ 7); his private investigator’s statement that the spacé between the pick-up counter and the table and chairs was less than 30 inches wide (Dkt. No. 64-5 ¶ 8; Dkt.- No. 64-6 at 14, 16-17, 19, 21); and his expert’s opinion that, reviewing the photographs the investigator took, the • path of travel was 30 inches or less when the area was empty and as little as 10 inches wide when other customers were standing nearby. (Dkt. No. 64-3 ¶ 23.)
Defendant, for its part, relies on Mr. Blackseth’s statement that the store has no less than 36 inches of élearance space for the path of travel to the restrooms. (See Dkt. No. 67 ¶9(0).) But again, this testimony came after the table' closest to the counter had been removed. (See Dkt. No. 64-10 at 8.) Defendant also relies on Ms. Austin’s declaration, in which she avers that as of February 2017 the store has no less than 36 inches of clearance space for the path of travel to the men’s restroom. (Dkt. No. 69-2 ¶ 6(b).) Their testimony does not create a genuine dispute as to whether the path of travel was less than 36 -inches at the time of Plaintiffs visit;
As for whether the access barrier remains, there is no dispute that the table closest to the pick-up counter—the one that had customers whose chairs blocked Plaintiffs path to the bathroom—has been removed. Blackseth’s and Austin’s testimony establishes that the counter is not obstructed when there is no table closest to the counter. Blackseth concedes that customers move all freestanding furniture around all day (Dkt. No. 64-10 at 39), which could include tables, but there is no specific testimony that customers have moved tables or that they specifically move the high-top tables near the counter on the path to the men’s restroom. Nor is there testimony that any Starbucks employee has ever moved the table back to the location adjacent to the counter where it was when the customers moved the chairs around blocking Plaintiffs access. But the record reflects that Starbucks has no policy in place to prevent its employees from returning the table to that location, nor any evidence as to how staff decides where to place freestanding furniture. That, combined with the absence of any policy preventing customers from moving chairs around to other tables in a manner that might block the path of travel, leads to only one reasonable inference: that the barrier could reasonably be expected to recur. See Friends of the Earth,
Once again Defendant argues that summary judgment for Plaintiff is improper because the blocked access to the bathroom was only a temporary barrier, non-architectural barrier because it was caused by misplaced furniture. As for the temporary nature of the blockage, Defendant relies chiefly on Kirola v. City and County of San Francisco,
Kirola cited Sharp v. Islands Restaurant-Carlsbad,
In short, there is no triable issue as to whether customers’ placement of furniture blocked Plaintiffs access to the men’s restroom: it did. As discussed above, because there is no evidence that there is a store policy in place that prevents Starbucks employees from repositioning the table back to the offending location—and, if they do so, from preventing customers from adding additional chairs to the table that blocks the path of travel—even drawing all inferences in Defendant’s favor, there is no genuine dispute that the violation can reasonably be expected to recur. Accordingly, the Court will grant Plaintiffs motion for summary judgment on this issue.
c. Additional Barriers Alleged in the FAC
As long as Plaintiff experienced some access barriers, he has standing to sue for injunctive relief for other barriers related to his disability that he did not encounter. See Chapman I,
i. Entry/Exit Door—Threshold
Both parties seek summary adjudication regarding whether the height of the threshold of the Starbucks’s front door violates the 2010 ADAAG, which requires that door thresholds not exceed 1/2 inch in height. (Dkt. No. 37 ¶ 11(a); Dkt. No. 64 at 17-18.) See ADAAG § 404.2.5. Plaintiff relies on Mr. Bluhm’s report, which states that the threshold is 3/4 inch high—1/2 inch out of compliance. (See Dkt. No. 64-3 ¶ 6; ADAAG § 404.2.5.) Plaintiff also notes that in his expert report and at his deposition, defense expert Mr. Blackseth concurred that the threshold was over the 1/2-inch height requirement. (Dkt. No. 64-10 at 12-13, 31.)
There is a genuine dispute as to whether the threshold is the required height because Ms. Austin states that, as of February 2,2017, the “metal door threshold is no more than l/2[ inch] beveled.”
ii. Entry/Exit Door—Closing Speed
The parties next seek summary judgment regarding whether the Starbucks’s front door is adjusted to the required closing period—that is, whether the front door violates 2010 ADAAG § 404.2.8 which requires that all doors take a minimum of five seconds to close from a 90-degrees open position to 12 degrees. (Dkt. No. 37 ¶ 11(b); see also Dkt. No. 64 at 18.) Plaintiff relies on Mr. Bluhm’s report, which states that the door-closing speed was faster than 5 seconds (Dkt. No. 64-3 ¶ 7); and Mr. Blackseth’s report, which concurred, noting that the door closed in only three seconds and that “Starbucks will adjust and maintain door operating pressure to” compliance (Dkt. No. 64-10 at 32); and his deposition testimony that the door closed too quickly and he recommended that the store fix it (id. at 14).
In response, Defendant cites Ms. Austin’s declaration, in which she avers that the doors “close in no less than five seconds when opened at 90 degrees.”
iii. Access' to Interior Designated Accessible Seating
Next, the parties seek summary adjudication, regarding whether the “arrangement of the interior designated accessible seating space .,. offer[s] an equivalent experience compared to the non-accessible seating spaces.” (Dkt. No. 37 ¶ 11(d); see also Dkt. No. 64 at 18.) The 2010 ADAAG require clear floor of ground space in front of a designated accessible table to be 30 inches by 38 inches and that a clear path of at least 36 inches be provided. 2010 ADAAG §§ 902.2, 305.3, 403.5.1.
Plaintiff relies on Mr. Bluhm’s opinion that the tables and chairs throughout the Starbucks are arranged in a way that leaves less than a 36 inch-wide clear path to the accessible table, and that the table itself lacks the 30 inch by 38 inch clear space adjacent to the table due to the placement of other furniture. (Dkt. No. 64-3 ¶ 9; Dkt. No. 64-4 at 9-14.) Plaintiff also cites Mr, Ferris’s observations that the path of travel to the accessible table was less than 36 inches and that the table had only one side open for seating, as it was blocked on two sides by the window and newspaper racks and only one side remaining was accessible to—that is, wide enough for—individuals in wheelchairs. (Dkt. No. 64-5.) At his deposition, Mr. Blackseth confirmed that he agreed the counter was out of compliance and recomménded that Starbucks bring it into compliance. (Dkt. No. 64-10 at 17.)
Defendant, for its part, cites Mr. Black-seth’s deposition testimony that there were sufficient accessible areas in the Star
iv. Lack of Accessible Counter Seating
The parties ■ next seek summary judgment on Plaintiffs claim that the “elevated counter seating lacks a properly configured accessible seating space.” (Dkt. No. 37 ¶ 11(e); see also Dkt. No. 64 at 18.) The 2010 ADAAG requires that the tops of all dining areas be at least 28 inches wide and no more than 34 inches above the ground and that the clear space in front of the dining area be at least 30 inches by 48 inches. 2010 ADAAG §§ 902.2, 902.3, 305.3.
In support of his motion, Plaintiff relies on Mr. Bluhm’s expert opinion that the elevated counter seating is 45 inches high and there is no lowered portion or adequate clear space in front of such lowered portion. (Dkt. No. 64-3 ¶ 10; Dkt. No 64-4 at 16-17.) Plaintiff also cites Mr. Black-seth’s expert report, in which he appears to concede that the tall counter is out of compliance, noting that the “counter seating is 45* high with no lowered area provided” and states that Starbucks “will provide a lowered area” that complies with the required measurements. (Dkt. No. 64-10 at 32.)
In its opposition to Plaintiffs motion and in its own bid for summary judgment, Defendant does' not contend that it has remedied the elevated counter and provided a lowered area in compliance with the ADAAG. Instead, citing the Austin Declaration, Defendant contends' only that the chairs have been removed, so “there is no elevated counter ‘seating area” so “no lowered- counter portion is required.”
v. Self-Service Counter
Next, the'parties seek summary judgment on Plaintiffs claim that the “self-service items located on the order pick-up counter are located beyond the reach requirements” in violation of the 2010 ADAAG. (Dkt. No. 37 ¶ 11(g); Dkt. No. 64 at 19.) The 2010 ADAAG provides that where a forward reach is unobstructed, the
Plaintiff relies on Mr. Bluhm’s opinion, which states that the counter itself-is an obstruction and the straws and stirring sticks were located a 26- to 29-inch side reach away in violation of the ADAAG reach requirements. (Dkt. No. 64-3 ¶ 12; Dkt. No. 64-4 at 22-24.) Defendant cites the Blackseth Declaration, in which he avers that the counter itself is 33 ½ inches high, has a small upper shelf where the self-service items are located that is 40 inches high, and the reach range to the back of the cabinet where the items are is 19 inches and no items are more than 48 inches high, which is the applicable reach range for unobstructed reaches. (Dkt. No. 69 at 21; Dkt. No. 67 ¶ 9(J).) He stated that same in his expert report. (Dkt. No. 64-10 at 34.) Defendant also cites deposition testimony in which Mr. Blackseth opines that the ADAAG rules do not apply to materials for sale—a statement that the Court disregards because it is an improper legal conclusion—and his testimony that he recommended that Starbucks bring the straws and stirrers within reach but did not think it was a violation of any standard. (Dkt. No. 66-1 at 5-7.)
It is not clear from the parties’ submissions whether they are talking about the same element or whether, perhaps, Starbucks moved the self-service items from the pick-up counter to another location. The particular location dictates which ADAAG section applies, since the counter involves a side reach and the cabinet a direct front reach. It appears undisputed that there was a barrier when the straws were located at the counter, and perhaps they have since been moved, but there is no evidence in the record to that effect. Thus, there is a factual dispute about which ADAAG section applies, so the Court cannot grant summary judgment to either party on this element.
The Court rejects Defendant’s argument that the ADA reach regulations “do[ ] not cover condiments or merchandise on shelves[.]” (Dkt. No. 69 at 21.) Defendant does not cite a particular section of the ADAAG that holds as much, and in any event, Defendant is wrong. Section 225.2.2 states that self-service shelving shall not be required to comply with 308—the reach requirements—and notes that self-service “shelves include, but are not limited to, library, store, or post office shelves.” 2010 ADAAG Advisory § 225.2.2. But another section specifically provides that self-services shelves and dispensing devices for tableware, dishware, condiments, food and beverages shall comply with 308. Id. § 904.5.1. Canons of construction provide that specific provisions targeting a particular issue apply instead of provisions more generally covering an issue. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
The parties also seek summary judgment on Plaintiffs claim that the “floor mats within public areas of the facility are unsecured and improperly configured.” (Dkt. No. 37 ¶ 11(h); Dkt. No. 64 at 19.) The regulations require that carpet or carpet tiles be securely attached to the floor and shall have a firm cushion, pad, or backing or no cushion or pad. 2010 ADAAG § 302.2. The advisory note to this section clarifies that it includes carpets and “permanently affixed mats.” Id. at § Advisory 302.2.
In support of his position, Plaintiff cites Mr. Bluhm’s opinion that he observed that the floor mat en route to the bathroom was unsecured. (Dkt. No. 64-3 ¶ 13; Dkt. No. 64-4 at 26.) Mr. Bluhm does not describe the mats themselves, but the mats in the photographs attached to his declaration appear to be rubber mats on a tiled floor, rather than carpeting. Defendant cites Mr. Blackseth’s statement that the “floor mats are properly installed and secured and comply with all access regulations.” (Dkt. No. 67 ¶ 9(K).) Defendant also cites Mr. Blackseth’s deposition testimony, in which he states that the mat at issue was actually a “walk off mat” and no action was required because the mat did not present any significant issue. (Dkt. No. 66-1 at 8-9.) Similarly, Mr. Blackseth does not describe what the mats are made of, but he calls them “walk off mats” and they appear, in photos, to be rubber mats on a tiled floor.
The Court cannot conclude that the floor mats Plaintiff identified violate the ADAAG. The ADAAG specifically refers to carpet and permanent mats, not moveable rubber floor mats. See 2010 ADAAG § 302.2; see also Doran v. 7-Eleven, No. SACV 04-1125 JVS (ANX),
vii. Men’s Restroom Door Pressure & Closing Speed
The parties seek summary adjudication regarding Plaintiffs claim that the “men’s restroom door is not adjusted to
To support his contention that the men’s restroom door violates these ■ provisions, Plaintiff cites Mr. Bluhm’s declaration where he opines that the bathroom door pressure measured approximately 10 pounds and Mr. Blackseth conceded that the pressure was too high. (Dkt. No. 64-3 ¶ 14; Dkt. No. 64-10 at 36.) As for speed, Plaintiff cites Mr. Bluhm’s statement that the door closing speed was faster than the 5-second requirement. (Dkt. No. 64-3 ¶ 15.)
Defendant cites Ms. Austin’s statement that the restroom door has an operating pressure of no more than five pounds and closes is no less than five seconds when opened 90 degrees.
viii. Men’s Restroom Trash Can
Both parties seek summary judgment on Plaintiffs claim that the “waste receptacle within the men’s restroom obstructs the required maneuvering clearance at the interior of the door” in violation of the ADAAG requirement of a minimum clearance of 60 inches on the inside “pull side” of the door. (Dkt. No. 37 ¶ ll(j); Dkt. No. 64 at 20.) 2010 ADAAG § 404.2.4.1.
In support of his position, Plaintiff cites Mr. Bluhm’s opinion that when he visited the store and measured the distance from the doorway to the trash can, there was only 48 inches of clearance space. (Dkt. No. 64-3 ¶ 16.) Plaintiff also cites Mr. Blackseth’s expert opinion as evidence that he concurred that there was a violation because Starbucks moved the trashcan (Dkt. No. 64-10 at 36), and his deposition testimony that the trash can gets moved around a lot and “is really not a barrier.” (Dkt. No. 64-10 at 20.) Defendant cites Mr. Blackseth’s declaration, noting that he averred that the restroom has a clear floor space of 60 inches wide by 51 inches wide and is not obstructed by the trash can (Dkt. No. 67 ¶ 9(M))—purportedly because it had been moved. It is not clear whether the trashcan remains where it was pictured for the photograph, and the parties did not address or offer evidence about how frequently it is moved in a way that might block the entrance. Thus, a genuine dispute remains as to whether there is sufficient clear space in the bathroom, so neither party is not entitled to summary judgment, on this issue.
ix. Men’s Restroom Plumbing Insulation
The parties seek summary adjudication on Plaintiffs claim that the “plumbing beneath the men’s restroom lavatory is not properly insulated or otherwise configured to protect against contact” in violation of rules that provide that all water supply and drain pipes under lavatories and sinks “shall be insulated or otherwise configured to protect against contact.” (Dkt. No. 37 ¶11(1); Dkt. No. 64 at 20.) 2010 ADAAG § 606.5.
Plaintiff cites Mr. Bluhm’s declaration that the water line under the sink is “not insulated at all.” (Dkt. No. 64-3 ¶ 17.) The
Whether the insulation complies with the regulations comes down to a battle of the experts. Neither party has submitted any evidence about how often or whether individuals in wheelchairs come into contact with pipes like the ones at issue here. Thus, the Court cannot conclude as a matter of law that the back pipes'needed to be insulatéd to protect against contact. As this fact question remains, the Court denies both parties’ bids for summary' judgment on the insulation issue. ■
x. Men’s Restroom Toilet Position
The parties next seek summary judgment on Plaintiffs claim- that the “men’s restroom toilet is positioned too far away from the adjacent side wall” to comply with ADA regulations, which provide that the centerline of the toilet must be between 16 and 18 inches from the side wall. (Dkt. No. 37 ¶ ll(m); Dkt. No. 64 at 20-21.) 2010 ADAAG § 604.2.
In support of this claim, Plaintiff relies on Mr; Bluhm’s opinion that the centerline of the toilet is 18.5 to 19 inches from the wall. (Dkt. No. 64-3 ¶ 18; Dkt. No. 64-4 at 35.)
Defendant cites'Ms. Austin’s statement that the centerline of the men’s restroom toilet is no less than 17 inches and no more than 18 inches from- the wall.
xi. Men’s Restroom Mirror Position
Plaintiff also seeks summary judgment that the bottom edge of the reflecting surface of the mirror in the men’s
To establish that the mirror is too high, Plaintiff relies on Mr. Bluhm’s declaration, which states that the distance from the floor to the reflecting surface of the mirror above the sink was 43 inches, and the photographs he took that show the same. (Dkt. No. 64-3 ¶ 18; see Dkt. No. 64-4 at 37.) In Mr. Blackseth’s expert report, he concluded that the mirror was too high. (Dkt. No. 64-10 at 38.) To show that no barrier exists, Defendant cites Ms. Austin’s statement that the bottom of the mirror’s reflective portion is no more than 40 inches high.
xii. Men’s Restroom Position of Toilet Paper Dispenser
The same is true of the parties’ requests for summary judgment on Plaintiffs claim that the men’s restroom toilet paper dispenser is too close to the toilet. (Dkt. No. 37 ¶ ll(p); Dkt. No. 64 at 21.) Regulations require that toilet paper dispensers be located 7 to 9 inches in front of the toilet as measured from the centerline of the dispenser. 2010 ADAAG § 604.7.
In support of his claim that the toilet paper dispenser violates the rule, Plaintiff cites Mr. Bluhm’s declaration that it is only 3 inches away, and his photographs showing as much. (Dkt. No. 64-3 ¶ 5; Dkt. No. 64-4 at 39.) In his expert report, Mr. Blackseth opined that the dispenser was too close to the toilet. (Dkt. No. 64r-10 at 38.) Defendant cites Ms. Austin’s statement that the bottom of the mirror’s reflective portion is no more than 40 inches high.
xiii. Equal Seating Options
Lastly, the parties seek summary adjudication on Plaintiffs claim that Starbucks has failed to provide equal seating options for the disabled as it provides for the able bodied.
Here, Plaintiff highlights a number of seating options that Starbucks provides non-disabled customers but are unavailable to disabled customers. For example, the accessible tables—both inside and outside of the store—are pushed up against a wall, leaving only one accessible side available for a disabled person, and one side of the table is blocked by a news stand. (Dkt. No. 64-3 ¶8; Dkt. No. 64-4 at 4-6; Dkt. No. 64-5 ¶9.) Thus, the only view from the interior accessible table is outside, not into the store, and a disabled individual seated at the table can only sit with one other person. (See id.) In contrast, the tables for non-disabled customers have seating facing in all directions, including seats that let them view the interior of the store. Unlike disabled customers, non-disabled customers can also enjoy their drinks at the drink counter—though it is disputed whether seats are still available—and in an area of the store with comfortable chairs. (See Dkt. No. 64-3 ¶ 8.)
In response, Defendant cites Mr. Black-seth’s testimony that disabled customers have the same experience as nondisabled customers, as there are “two functional areas and the adequate number of accessible tables”—ie., inside and outside of the store. (Dkt. No. 69-5 at 3-4.) This is not particularly strong evidence, but it is enough to create a triable issue about the experience Defendant provides to disabled customers. In fact, several fact issues remain. For example, unlike Kalani, where the parties stipulated that the “experience" was part of its services,
In any event, because fact issues remain, the Court denies Plaintiffs request for
⅝ ⅝
As there is no factual dispute that the barriers Plaintiff personally experienced existed and are likely to recur, and Defendant did not contend that curing the barriers is not readily achievable, the Court grants summary judgment in Plaintiffs favor as to the cashier counter and men’s restroom access claims. Plaintiff is therefore entitled to injunctive relief on those claims, which “shall include an order to alter facilities to make such facilities readily accessible and useable by individuals with disabilities” to the extent required by the ADA. 42 U.S.C. § 12188(a). The Court grants nummary judgment in Defendant’s favor on the floor mats claim, Factual disputes preclude summary judgment as to the remaining barriers.
B. State Law Claims
“A violation of the ADA is, by statutory definition, a violation of both the Unruh [Civil Rights] Act and the ADA,” Cullen v. Netflix, Inc.,
Defendant argues that the Court should decline to exercise supplemental jurisdiction over Plaintiffs state law claims based on its argument that Plaintiff lacks standing to sue under the ADA. (Dkt. No. 65-1 at 26.) This argument is a non-starter, as the Court concludes that' Plaintiff has standing to bring the ADA claims. For the same reasons, Plaintiff has standing to sue under the Unruh Act.
Because the Court grants.. summary judgment for Plaintiff on the cashier counter and men’s restroom access claims, the Court enters judgment in Plaintiffs favor on the same, claims under state law. The Unruh Act imposes damages “for each and every offense ,.,, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any - attorney’s fees that may be determined by the court in addition thereto,... ” Cal. Civ. Code § 52(a). A plaintiff can recover statutory damages for an Unruh Acts claim “if the violation denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.” Id. § 55.56(a). A denial of full and equal access occurs where a plaintiff “personally encountered” the violation and it resulted in “difficulty, discomfort or embarrassment.” Id. § 55.56(b), Plaintiff meets these elements. There is no genuine dispute that Plaintiff personally suffered difficulty accessing the cashier’s counter and men’s bathroom. He also avers that having to ask other Starbucks customers to move to permit him to- pass caused him embarrassment. This is enough to establish an entitlement to statutory damages under the Unruh Act based on his visit to the Starbucks. Plaintiff seeks the minimum amount of statutory damages. Accordingly, the Court will grant Plaintiffs request for $4,000 in statutory damages.
CONCLUSION
For the reasons’ discussed above, the Court GRANTS IN PART and DENIES IN PART the parties’ cross-motions for summary judgment.
As there is no factual dispute that the barriers Plaintiff personally experienced existed and are likely to recur, and Defendant did not contend that curing the barriers is not readily achievable, the Court grants summary judgment in Plaintiffs favor as to the cashier counter and men’s restroom access claims under the ADA and the Unruh Act. Plaintiff is therefore entitled to injunctive relief on those claims, which “shall include an order to alter facilities to make such facilities readily accessible and useable by individuals with disabilities” to the extent required by the ADA. 42 U.S.C. § 12188(a). The Court also orders that Plaintiff be paid $4,000 in statutory damages under the Unruh Act.
The Court grants summary judgment in Defendant’s favor on the floor mats claim under the ADA and the Unruh Act. Factual disputes preclude summary judgment as to the remaining barriers., The parties are directed to contact Judge LaPorte’s chambers on or before April 11, 2017 regarding rescheduling the settlement conference.
This Order disposes of Docket Numbers 64 and 65.
IT IS SO ORDERED.
Notes
. Record citations are to material in the Electronic Case File ("ECF”)i pinpoint citations are to the ECF-generated page numbers at the top of the documents.
. This matter was initially assigned to a different judge but was reassigned to this Court in June 2016, (Dkt. No. 41.)
. Plaintiff now waives two claims alleged in the FAC, including the claim for knee clearance under the men’s restroom lavatory, and the claim regarding the soap’ dispenser there, (Dkt. No. 64-10 ¶¶ 5-6.)
. Defendant suggested at oral argument that the Austin Declaration indicates that Mr. Blackseth’s declaration was based on conditions observed at a subsequent expert inspection following remediation efforts. In Defendant’s view, because Ms. Austin speaks to her knowledge of the conditions at Starbucks as of February 2017, the implication must be that remediation was done. While that may be one inference to be drawn from her testimony, it is not the only one; another is that there are genuine factual disputes about the conditions at the Starbucks.
. Although Defendant' submitted this portion of the Blackseth deposition transcript for the first time with its reply, the Court considers it as Plaintiff has not objected to its consideration.
. In any event, the Court would reach the same conclusion if it considered the substance of Defendant's objections. Defendant asks the Court to exclude Plaintiff’s statement that he has visited the Starbucks five to ten times and encountered the barriers twice under the sham affidavit rule. (Dkt. No. 69-1.) This does not flatly conflict with Plaintiff’s deposition testimony, which was that he had possibly been there more than five times, and specifically recalled visiting twice: once on January 17, 2015—as alleged in the FAC— and on another visit when he had his wife enter the store alone because he recalled that it was too difficult to access. (Dkt. No. 66-2 at 9, 11.) Accordingly, the sham affidavit rule does not apply. See Van Asdale,
. Barriers must be removed where it is "readily achievable” to do so, which means removal is "easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv). There appears to be no dispute that removal of all identified barriers is readily achievable; indeed, Starbucks impliedly contends that it has, in fact, remedied all or most of them.
. Reviewing one district court decision that concluded the plaintiff lacked standing based on a review of those factors, the Ninth Circuit suggested that a plaintiff need not meet them to ■ establish standing sufficient to survive a facial attack on standing in a motion to dismiss. See Wilson v. Kayo Oil Co.,
. Available at https://www.ada.gov/regs2010/ 2010ADAStandards/2010ADAStandards_prt. pdf (last visited Mar. 6, 2017).
, While this declaration was submitted in support of Defendant's summary judgment motion the Court is required to consider evidence Defendant cites from its own summary judgment motion to determine whether there is a genuine issue of fact that defeats Plaintiff’s motion, Fair Housing Council of Riverside Cnty., Inc. v. Riverside Two,
. Defendant also relied on a paragraph of Mr. Blackseth’s declaration that the Court has excluded, See supra-Section I.A.B.l,
. Defendant also relied on a paragraph of Mr. Blackseth’s declaration that the Court hás excluded. See supra Section I.A.B.l.
. Defendant also cites a section of the Blaclc-seth Declaration that the Court has excluded. See supra Section I.A.B.l.
. White discussed an earlier version of the ADAAG, and therefore cited a different section number, but the substance is the same.
. Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded, See supra Section I.A.B.l,
. Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded;See supra Section I.A.B.1.
. Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded. See supra Section I.A.B.l.
. Defendant also relies on a paragraph of the Blackseth Declaration that the Court has excluded. See supra Section I.A.B.l.
.While this was not one of the listed "elements” in the FAC, Defendant does not contend that this issue is somehow improperly in the case. (See Dkt. No. 69 at 23-24.)