SCOTT JOHNSON, Plaintiff, v. CALA STEVENS CREEK/MONROE, LLC, et al., Defendants.
Case No. 17-CV-04574-LHK
August 16, 2019
LUCY H. KOH
ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT; Re: Dkt. Nos. 79, 89
In 2017, Plaintiff Scott Johnson (“Plaintiff”) brought this action concerning the availability of accessible parking at Sunny Valley Spa (“the Spa”). Plaintiff sues the three owners of the property in which the Spa is located: Cala Stevens Creek/Monroe, LLC; Cala Stevens Creek/Monroe, LP; and Cala Holdings, LLC (collectively, “Defendants”). Plaintiff alleges that the Spa failed to provide a van accessible parking space in violation of the Americans with Disabilities Act of 1990 (“ADA”) and California’s Unruh Civil Rights Act (“Unruh Act”). Since Plaintiff filed suit, however, the Spa closed, and the tenant space currently sits vacant. Now, on the parties’ Cross-Motions for Summary Judgment, the Court dismisses Plaintiff’s ADA claim for mootness and lack of jurisdiction; the Court therefore denies Plaintiff’s motion for summary judgment as to that claim. However, the Court elects to retain jurisdiction over Plaintiff’s Unruh Act claim. The Court grants Plaintiff’s motion for summary judgment as to the Unruh Act claim and denies Defendant’s motion for summary judgment as to the same.
I. BACKGROUND
Plaintiff Scott Johnson has quadriplegia, which means he cannot walk and uses a wheelchair to move through the world. As a consequence, he drives a specially equipped van for which he has been issued a Disabled Person Parking Placard by the California Department of Motor Vehicles.
On August 10, 2017, Plaintiff brought this action in federal court against Cala Stevens Creek/Monroe, LLC, the then-owner of the commercial property at 321 S. Monroe Street, San Jose, California in which the Spa was located. ECF No. 1. Plaintiff subsequently amended his complaint to name the two current owners—Cala Stevens Creek/Monroe, LP and Cala Holdings, LLC—as defendants. ECF No. 31 (“SAC”) ¶¶ 6-7. The Court refers to all three entities collectively as “Defendants.” According to Defendants, Cala Stevens Creek/Monroe, LLC was subsequently dissolved and is thus no longer an owner. ECF No. 79-4 (“Cala Decl.”) ¶ 1. Defendants evidently did not own or operate the Spa, ECF No. 89-10 (“Def. Resp. to Request for Admissions”) at 5, which was a tenant of the building per a written lease. Cala Decl. ¶ 2.
On December 5, 2017, Plaintiff filed the Second Amended Complaint (“SAC”). In it, Plaintiff alleges violations of the ADA and seeks an injunction compelling the Spa to bring its parking into compliance. Plaintiff also seeks monetary damages for his past experiences pursuant to California’s Unruh Civil Rights Act,
Around March 31, 2018, however, the Spa permanently closed. Id. ¶ 4. Defendants believe the reason for the closure was that “the business never obtained a final permit to operate.” Id. ¶ 3. Thereafter, in August 2018, the parties stipulated that a joint inspection of the premises was not necessary “in light of the business closure and proof thereof.” ECF No. 50 ¶ 4. Defendants assert that the vacancy created by the Spa has not been filled. Cala. Decl. ¶ 2.
In any event, Defendants claim that before Plaintiff filed his initial complaint in August 2017, Defendants had already rectified the problems with the parking space. Defendants say they engaged a Certified Accessibility Specialist in December 2016, who flagged the same conditions Plaintiff did in his original August 10, 2017 Complaint as well as the December 5, 2017 SAC. Cala Decl. ¶ 6; ECF No. 79-2 (“Atwal Decl.”) ¶ 3. Then, between December
Now before the Court are the parties’ respective Motions for Summary Judgment. Defendants’ motion, filed on May 7, 2019, asks the Court to dismiss the ADA claim as moot and then decline to exercise supplemental jurisdiction over the state law claim. ECF No. 79-1 (“Def. Mot. for Summ. Judgment”) at 2, 7. On May 21, 2019, Plaintiff responded that the ADA claim is not moot. Then, on June 27, 2019, Plaintiff filed his own Motion for Summary Judgment as to the entire case. ECF No. 89. In opposition to Plaintiff’s motion, Defendants simply reiterate the jurisdictional arguments they made in their motion. See ECF No. 90.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law.
The moving party bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the moving party will bear the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On the other hand, for an issue for which the party opposing summary judgment will have the burden of proof at trial, the movant need only point out “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 325. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. The nonmoving party “may not merely state that it will discredit the moving party’s evidence at trial,” in the hopes that it can later develop evidence to support its claim. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”).
B. Mootness
Under Article III of the United States Constitution, the jurisdiction of federal courts is limited to “actual and concrete disputes, the resolutions of which have direct consequences on the parties
III. DISCUSSION
Plaintiff brings two distinct causes of action: one for injunctive relief under the ADA and one for monetary damages under the Unruh Act. The parties’ dispute regarding mootness concerns only the first cause of action, so the Court begins its analysis there. The Court then turns to the Unruh Act claim, which Defendants believe should also be dismissed for lack of jurisdiction as a matter of this Court’s discretion and as to which Plaintiff seeks summary judgment on the merits.
A. The ADA Claim
Title III of the ADA prohibits discrimination on the basis of disability in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of a “place of public accommodation,” such as a spa.
Because “damages are not recoverable under Title III of the ADA,” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), Plaintiff seeks injunctive relief for Defendants’ alleged violations of the ADA. Defendants give two reasons why Plaintiff’s claim for injunctive relief is moot: (1) the Spa has permanently closed and the premises are currently unoccupied, and (2) “all alleged barriers to access . . . have been remedied” such that the parking at the premises “now compl[ies] with the applicable ADA requirements.” Def. Mot. for Summ. Judgment at 2. The Court addresses each reason in turn.
It is well-established that in order to obtain injunctive relief under the ADA, a plaintiff must “demonstrate a sufficient likelihood that he will again be wronged in a similar way. That is, he must establish a real and immediate threat of repeated injury.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2010). This can either be done “by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 950 (9th Cir. 2011) (en banc). If, however, the public accommodation that Plaintiff seeks to patronize shutters its doors, the threat of future injury dissipates. For that reason, the Ninth Circuit has said that “claims for prospective injunctive relief” under the ADA become moot once the business has “ceased operation.” Kohler v. Southland Foods, Inc., 459 F. App’x 617, 618 (9th Cir. 2011) (affirming the district court’s grant of summary judgment to defendants); see also Disabled Rights Action Comm. v. Fremont St. Experience LLC, 44 F. App’x 100, 103 (9th Cir. 2002) (finding claim for an injunction “moot given that the Race Rock has gone out of business for reasons unrelated to this litigation”); Pickern v. Holiday Quality Foods, 293 F.3d 1133, 1135 n.1 (9th Cir. 2002) (noting with approval that, because “the parties stipulated that the Anderson store has closed,” the district court had dismissed plaintiff’s ADA claims as to that store as moot).
Here, the Spa at the center of Plaintiff’s suit closed in March 2018. As just explained, this fact renders the request for an injunction moot and thus deprives the Court of subject matter jurisdiction. In his opposition brief, Plaintiff protests that Defendants have not provided “supporting evidence” “that the business is indeed closed.” ECF No. 80 (“Pl. Opp. to Def. Mot. for Summ. Judgment”) at 2. But the parties stipulated to that fact, see ECF No. 50 ¶ 4, so Plaintiff has no basis for now objecting. Plaintiff also suggests that the closure may not be permanent. Pl. Opp. to Def. Mot. for Summ. Judgment at 2. Plaintiff has no evidence to support his supposition. Meanwhile, the property has been vacant since the Spa closed over a year ago. Under these circumstances, the possibility of the Spa reopening is too “remote and speculative,” Doe v. Reed, 697 F.3d 1235, 1239 (9th Cir. 2012), to save the case from mootness. See Johnson v. Otter, No. 18-CV-01689-BLF, 2019 WL 452040, at *3 (N.D. Cal. Feb. 5, 2019) (refusing to infer that the defendant “will resume operations”). Accordingly, the Court must dismiss for lack of jurisdiction Plaintiff’s claim for injunctive relief under the ADA.
Defendants argue the case is moot for the additional reason that renovations they made between late 2016 and early 2017 have remedied all the issues identified by Plaintiff. It is true that “a defendant’s voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff’s ADA claim.” Oliver, 654 F.3d at 905; see also Johnson v. Gallup & Whalen Santa Maria, No. 17-CV-01191-SI, 2018 WL 2183254, at *4 (N.D. Cal. May 11, 2018) (“There can be no effective relief here, where defendants have already removed the architectural barriers that plaintiff identified in the complaint.”). Importantly, though, this Court has previously said that “[c]onclusory opinions that the ‘facility is free of non-compliant issues,’ or that particular features, e.g., the accessible parking or point of sale, ‘comply with all applicable access requirements,’” are “an insufficient basis on which to grant summary judgment.” Kalani v. Starbucks Corp., 81 F. Supp. 3d 876, 882–83 (N.D. Cal. 2015), aff’d sub nom. Kalani v. Starbucks Coffee Co., 698 F. App’x 883 (9th Cir. 2017). Such statements must “provide factual support” in order to support a finding that the property has come into compliance with the applicable ADA standards. Id. (offering the following example of a properly supported opinion: “the pick-up counter . . . as modified now provides a length of 36 inches and a height of 34 inches, as such it complies with access regulations.”). Here, the affidavits proffered by Defendants likely would not suffice. See generally Atwal Decl., ECF No. 79-3 (“Layman Decl.”). Having found that the Spa’s closure mooted Plaintiff’s ADA claim, however, the Court need not reach Defendants’ alternative mootness argument.
Plaintiff’s state law claim is a different story. “A violation of the ADA is, by statutory definition, a violation of . . . the Unruh Act.” Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1023 (N.D. Cal. 2012) (citing
The Court’s jurisdiction over Plaintiff’s Unruh Act claim is nevertheless in dispute. The claim is before this Court pursuant to the Court’s supplemental jurisdiction, see
Defendants correctly point out that “in the usual case in which all federal law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims.” Id. (cleaned up). But this is not the usual case. Because Plaintiff’s Unruh Act claim is predicated on a violation of the ADA, the Court will primarily look to federal law to decide the issues in the case. The Court need not apply a novel or complex body of state law, nor will the Court deprive California courts of any significant opportunity to develop state law. Hence, comity does not counsel against retaining jurisdiction. As for judicial economy, the case has been pending for over two years, several mediation sessions have been held, and discovery has closed. The parties also raise no concerns about their convenience or fairness. See Def. Mot. for Summ. Judgment at 9-10. Finally, the Court notes that it has previously kept a plaintiff’s Unruh Act claim after dismissing his cause of action under the ADA. See, e.g., Johnson v. Starbucks Corp., 2018 WL 5099283, at *6; Ramirez v. Fulton Mkt. Place S.C., L.P., No. C 15-03793 WHA, 2016 WL 4492575, at *2 (N.D. Cal. Aug. 26, 2016). The Court therefore exercises its discretion to retain Plaintiff’s California state law claim.
As to the merits, Plaintiff moves for summary judgment that Defendants violated the Unruh Act claim by violating the ADA.2 To prevail on a claim
Plaintiff easily meets his burden of fulfilling elements (1) and (2). As to the first, he has submitted a declaration attesting to his disability, Johnson Decl. ¶ 2, which Defendants do not contest. As to the second, Defendants have admitted that the Spa was a place of public accommodation, ECF No. 34 (“Answer”) ¶ 23, and that Defendants own the property at 321 S. Monroe Street, Def. Resp. to Request for Admissions at 5.
Turning to the third element, accessibility requirements can differ depending on when the public accommodation was constructed or last altered. See Moeller, 816 F. Supp. 2d at 847-48. Whereas places of public accommodation that were altered or constructed after 1993 must be “readily accessible to and usable by individuals with disabilities,”
At the outset, Defendants have admitted that removal of the barriers alleged in the complaint is “readily achievable.” Def. Resp. to Request for Admissions at 6. The question then becomes whether the facility violated accessibility requirements during Plaintiff’s visits in 2015 and 2016. Under both the 1991 and 2010 Guidelines, any business that provides parking must provide spaces reserved for persons with disabilities, including at least one that is “van” accessible. See
In this case, the parking space at the Spa apparently had a curb ramp with a 6.5% gradient extending into the access aisle. Plaintiff proffers his own affidavit stating that he personally encountered this condition on several occasions, including on
Plaintiff points to three other problems with the van accessible parking space at the Spa: (1) there was no signage with the wheelchair logo, (2) there was no “Minimum Fine $250” sign, and (3) there was no tow-away signage. Although the same evidence discussed above supports a finding that these deficiencies existed, Plaintiff has not established that they amount to a violation of the ADA. Plaintiff identifies no provision of the ADAAG requiring any of the missing signage. Instead, according to Plaintiff, the ADAAG incorporates the California Building Code—which he claims requires the signage—as the standard for properly marking an accessible parking space under the ADA. Pl. Mot. for Summ. Judgment at 10-11. Yet, the provision Plaintiff cites simply does not substantiate that assertion. See id. (citing
Nevertheless, the excessive slope of the access aisle is enough to establish a violation of the ADA and thus of the Unruh Act. Under the Unruh Act, a plaintiff is entitled to statutory damages of $4,000 for each occasion on which he is denied equal access or “deterred . . . from attempting to enter a place of public accommodation.” Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000); see
In sum, the Court GRANTS Plaintiff’s motion for summary judgment on the sole ground that the access aisle was not level with the parking space, in violation of the 1991 and 2010 ADAAG.
IV. CONCLUSION
For the foregoing reasons, the Court DISMISSES the ADA claim for lack of jurisdiction and DENIES Plaintiff’s motion for summary judgment as to the same. The Court DENIES Defendants’ motion for summary judgment and GRANTS Plaintiff’s motion for summary judgment as to the Unruh Civil Rights Act claim for $12,000 in statutory damages.
IT IS SO ORDERED.
Dated: August 16, 2019
LUCY H. KOH
United States District Judge