Sepulveda v. Lakeshore 76, Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 RICHARD SEPULVEDA, Case No. 20-cv-04635-DMR 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT 10 LAKESHORE 76, INC., et al., Re: Dkt. No. 40 11 Defendants. 12 Plaintiff Richard Sepulveda is an individual with a disability. He filed this lawsuit against 13 Defendants Lakeshore 76, Inc., Sam Ng, and Wendy Ng (collectively, “Lakeshore”) alleging 14 violations of the Americans with Disabilities Act of 1990 (“ADA”) and related state laws. 15 Sepulveda now moves for summary judgment, or “in the alternative, for an order treating specified 16 facts as established.” Pl.’s Mot. for Summ. J. (“Mot.”) [Docket No. 40.] Lakeshore filed an 17 opposition (“Opp’n”), and Sepulveda replied (“Reply”). [Docket Nos. 43, 45.] The court finds 18 that this motion may be resolved on the papers without a hearing. Civil L.R. 7-1(b). For the 19 following reasons, Sepulveda’s motion is denied. 20 I. BACKGROUND 21 Sepulveda is an individual with a disability who suffers from lumbar disc disease and 22 degenerative arthritis and uses a walker for mobility. Declaration of Richard Sepulveda [Docket 23 No. 40-2.] (“Sepulveda Decl.”) ¶ 1. He possesses a state-issued blue placard that allows him to 24 park legally in parking spaces designated for persons with disabilities. Id. ¶ 2. Defendant 25 Lakeshore 76 is a gas station and convenience store located at 3200 Lakeshore Avenue in 26 Oakland, California. Id. ¶ 4; Declaration of Sam Ng (“Ng Decl.”) [Docket No. 45-1] ¶ 2. 27 Defendant Sam Ng has owned and operated the property since 2005 and asserts that he has never 1 Sepulveda states that he visited Lakeshore on January 17, April 29, June 1, and July 1, 2 2020 and personally encountered two access barriers. Sepulveda Decl. ¶ 4. First, Sepulveda 3 asserts that the parking space designated for persons with disabilities was defective insofar as it 4 lacked proper dimensions, a passenger access aisle, paint delineating the boundaries, appropriate 5 signage, and warnings. Id. ¶ 4(a). Sepulveda contends that the defective parking space “caused 6 [him] difficulties in finding a safe place to park, safely exit [his] vehicle, and reach the entrance 7 safely”; he also feared that his walker could roll away or that he could fall when he exited his 8 vehicle due to the insufficiently level space and access aisle. Id. Sepulveda expressed “legitimate 9 concern for [his] own safety.” Id. Sepulveda also claims that Lakeshore “regularly coned off the 10 designated space and the access aisle” to park cars under repair at its adjoining mechanic’s shop, 11 which “deprive[d him] of the use of the parking space.” Id. 12 As to the second barrier, Sepulveda claims that Lakeshore’s primary entrance door lacked 13 proper accessibility signage and was not in the direct line of sight from the accessible parking 14 space. Id. ¶ 4(b). As a result, he “initially had difficulty in finding and using an accessible 15 entrance.” Id. 16 On July 12, 2021, Sepulveda filed this action for injunctive and declaratory relief under the 17 ADA, the Unruh Civil Rights Act, the California Disabled Persons Act (“CDPA”), and the 18 California Health and Safety Code. See generally Compl. [Docket No. 1.] Sepulveda seeks 19 statutory damages under the Unruh Act and Disabled Persons Act. 20 On September 2, 2020, the parties conducted a joint site visit. Licensed civil engineer 21 Roberto Cortez performed an inspection and prepared an expert report that accompanies 22 Sepulveda’s motion. See Declaration of Roberto Cortez [Docket No. 40-1] (“Cortez Decl.”); 23 Cortex Decl. Ex. 1 (“Cortez Report”). Cortez identifies a number of conditions at Lakeshore that 24 do not comply with certain state and federal regulations on physical accessibility. Cortez Decl. 25 ¶ 6. These deficient conditions relate to sidewalk access, parking lot and access aisle, retail sales 26 counter, restroom facilities, and floor mats. Id. Cortez returned to the property on August 3, 2021 27 and declares that he could not detect any alterations made to the premises, but that he observed 1 On June 3, 2021, Sepulveda sought leave to file a proposed first amended complaint 2 (“FAC”), which the court denied without prejudice on July 22, 2021. [Docket Nos. 24, 39.] On 3 August 8, 2021, Sepulveda filed this motion for summary judgment. 4 II. LEGAL STANDARD 5 A court shall grant summary judgment “if . . . there is no genuine dispute as to any material 6 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden 7 of establishing the absence of a genuine issue of material fact lies with the moving party. 8 Devereaux v. Abbey, 263 F.3d 1070, 1079 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 9 U.S. 317, 323 (1986)). The court must view the evidence in the light most favorable to the non10 moving party. Fresno Motors, LCC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 11 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A genuine factual issue 12 exists if sufficient evidence favors the non-movant such that “a reasonable [judge or] jury could 13 return a verdict for the nonmoving party. Cline v. Indus. Maint. Eng’g & Contracting Co., 200 14 F.3d 1223, 1229 (9th Cir. 2000) (alteration in original) (quoting Anderson, 477 U.S. at 248 ). The 15 court may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. 16 City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (quoting Anderson, [17] 477 U.S. at 255 ). 18 To defeat summary judgment once the moving party has met its burden, the nonmoving 19 party may not simply rely on the pleadings, but must point to specific facts, by affidavit or as 20 otherwise provided by Federal Rule of Civil Procedure 56, showing that a genuine issue of 21 material fact exists. Devereaux, 263 F.3d at 1076 . More than a “scintilla of evidence” must exist 22 to support the non-moving party’s claims. Pomona, 750 F.3d at 1049 (quoting Anderson, 477 23 U.S. at 252). A showing that “there is some ‘metaphysical doubt’ as to the material facts as issue” 24 will not suffice. In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (quoting 25 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “Where the 26 record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there 27 is no genuine issue for trial.” Pomona, 750 F.3d at 1049 -50 (quoting Matsushita, 475 U.S. at 1 III. DISCUSSION 2 A. ADA Claim 3 “Title III of the ADA prohibits discrimination on the basis of disability in the ‘full and 4 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 5 any place of public accommodation’ with a nexus in interstate commerce.” Oliver v. Ralphs 6 Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 12182(a)). To 7 prevail on a Title III discrimination claim, a plaintiff must show that (1) they are disabled within 8 the meaning of the ADA; (2) the defendant is “a private entity that owns, leases, or operates a 9 place of public accommodation”; and (3) the defendant discriminated against the plaintiff by 10 denying public accommodations because of the plaintiff’s disability. Lopez v. Catalina Channel 11 Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020). 12 Unlawful discrimination under the ADA occurs when features of a public accommodation 13 deny equal access to disabled persons: It shall be discriminatory to subject an individual or class of 14 individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other 15 arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, 16 privileges, advantages, or accommodations of an entity. [17] 42 U.S.C. § 12182 (b)(1)(A)(i). The ADA lists five subsections describing different types of 18 discrimination. 42 U.S.C. § 12182 (b)(2)(A)(i)-(v). The subsection at issue in this case is 42 19 U.S.C. § 12182 (b)(2)(A)(iv) (“Section IV”). Discrimination under Section IV includes “a failure 20 to remove architectural barriers, and communication barriers that are structural in nature, in 21 existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by 22 an establishment for transporting individuals . . . where such removal is readily achievable.” Id. 23 Under the ADA, a plaintiff can sue only for injunctive relief, i.e., removal of any barriers. 24 Monetary damages are not available for private plaintiffs. Oliver, 654 F.3d at 905 . 25 To prove discrimination under Section IV, a plaintiff must show a violation of applicable 26 accessibility standards. Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011) 27 (citing Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc); 1 accessibility requirements under Title III of the ADA—the ‘new construction’ provisions . . . ; the 2 ‘alteration’ provisions . . . ; and the ‘readily achievable’ provisions.” Moeller, 816 F. Supp. 2d at 3 847. “In the case of newly constructed facilities, compliance with the ADA’s antidiscrimination 4 mandate requires that facilities be ‘readily accessible to and usable by individuals with 5 disabilities.’” Chapman, 631 F.3d at 945 (quoting 42 U.S.C. § 12183 (a)(1)); see also Moeller, [6] 816 F. Supp. 2d at 847 .1 Existing facilities that were altered after January 26, 1992 are also 7 required, “to the maximum extent feasible, to be ‘readily accessible to and useable by’ individuals 8 with disabilities.” Moeller, 816 F. Supp. 2d at 847 (citing 42 U.S.C. § 12183 (a)(2)).2 “In existing 9 but unaltered facilities, barriers must be removed where it is ‘readily achievable’ to do so.” Id. 10 To satisfy these standards, buildings with new construction and post-January 1992 11 alterations must comply with either the 1991 or 2010 ADA Standards for Accessible Design 12 (ADAAG), depending on the date the construction or alterations began. 28 C.F.R. § 36.406 ; see 13 infra Section III.A.2. For existing but unaltered facilities, “discrimination includes ‘a failure to 14 remove architectural barriers . . . where such removal is readily achievable.’” Chapman, 631 F.3d 15 at 945 (quoting 42 U.S.C. § 12182 (b)(2)(A)(iv)); see also Moeller, 816 F. Supp. 2d at 847 . 42 16 U.S.C. § 12181 (9). 17 To prevail on a discrimination claim involving an existing but unaltered facility, the 18 plaintiff must establish that alterations to the challenged barrier were readily achievable—defined 19 as “easily accomplishable and able to be carried out without much difficult or expense,” 42 U.S.C. 20 § 12181—or that the barrier could have been made available “through alternative methods without 21 much difficulty or expense.” Lopez, 974 F.3d at 1034 . In the context of a summary judgment 22 motion, the Ninth Circuit applies a burden-shifting framework to establish whether removal of an [23] 1 The ADA defines newly constructed facilities as construction intended for “first occupancy later [24] than 30 months after July 26, 1990,” which was the date the ADA was enacted. 42 U.S.C. § 12183 (a)(1); 28 C.F.R. § 36.401 (a)(1) (“discrimination for purposes of this part includes a failure [25] to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.”). [26] 2 The Justice Department’s ADA Architectural Guidance defines alteration as “a change to a place 27 of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.” Rodriguez v. Barrita, Inc., 10 F. Supp. 3d 1062 , 1079 1 architectural barrier is readily achievable. Id. at 1040. First, “plaintiffs have the initial burden at 2 summary judgment of plausibly showing that the cost of removing an architectural barrier does 3 not exceed the benefits under the circumstances.” Id. at 1040. If the plaintiff satisfies the burden, 4 “[t]he defendant then bears the ultimate burden of persuasion that barrier removal is not readily 5 achievable.” Id. The court must then weigh the evidence under four factors enumerated in 42 6 U.S.C. § 12181 (9) to determine if removal is readily achievable.3 Id. at 1039 . “Therefore, it is in 7 plaintiffs’ best interest to submit as much evidence as possible pertaining to each of the [42 U.S.C] 8 § 12181(9) factors in their initial barrier-removal proposal . . . [o]therwise, plaintiffs risk meeting 9 their initial burden but failing to ultimately prevail on summary judgment.” Id. 10 Here, the parties do not dispute that because Sepulveda has limited mobility and uses a 11 walker, he is disabled and satisfies the first element of an ADA Title III claim.4 Nor do they 12 dispute that as a gas station, Lakeshore is a place of public accommodation. See also Doran v. 713 Eleven, Inc., 524 F.3d 1034, 1038 (9th Cir. 2008) (considering ADA Title III claims against a gas 14 station). Only the third element is at issue—namely, whether Lakeshore violated the applicable 15 accessibility standards. [18] 3 These factors include: [19] (A) the nature and cost of the action needed [ ]; [20] (B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on [21] expenses and resources, or the impact otherwise of such action upon the operation of the facility; [22] (C) the overall financial resources of the covered entity; the overall size of 23 the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and [24] (D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the [25] geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. [26] 42 U.S.C. § 12181 (9)(A)-(D). 27 4 Other courts in this District have also recently found that Sepulveda is disabled. Sepulveda v. Buelna, No. 20-cv-5258-TSH, 2021 WL 3411197 , at *5 (N.D. Cal. July 17, 2021); Sepulveda v. 1 1. Challenged Barriers 2 Sepulveda declares that he encountered two barriers: (1) a “defective” designated parking 3 space and (2) the lack of the “proper posted international symbol of Accessibility” on the “primary 4 Business entrance door.” Mot. at 8-9, 14; Sepulveda Decl. ¶ 4. Cortez independently observed 5 parking space deficiencies. Cortez Decl. ¶ 6(a)-(h); Cortez Report at 4, 6, 8-9. Cortez does not 6 identify any violation related to the entrance door signage. See id. at 20-22 . 7 The Cortez Report also identifies violations that Sepulveda did not personally encounter 8 but to which Sepulveda gestures in his motion— i.e., alleged problems regarding non-compliant 9 shelving, countertop, indoor turning radius, urinal, faucet, and pipes in restroom, and floor mats. 10 See Mot. at 9, 16; Cortez Decl. ¶ 6(a), (b), (j)-(q). 11 Lakeshore does not dispute the existence of any barriers; rather, it contends that they did 12 not practically deny Sepulveda full and equal access. Opp’n at 3. Lakeshore points to the receipts 13 attached to Sepulveda’s declaration as evidence that Sepulveda was sufficiently able to enter the 14 gas station and make purchases. Id. Lakeshore acknowledges that the cross-slopes of the parking 15 stall exceeded the 2010 ADAAG standards but only by a “minimal amount” of 1.8%. Id. 16 Lakeshore misstates the standard to establish a discriminatory barrier under the ADA. A 17 barrier need not “completely preclude the plaintiff from entering or from using a facility in any 18 way”; it “need only interfere with the plaintiff’s ‘full and equal enjoyment’ of the facility . . . on 19 account of his particular disability.” Chapman, 631 F.3d at 947 (quoting 42 U.S.C. § 12182 (a)). 20 In other words, the barrier must “mak[e] his use of the facility more difficult than a nondisabled 21 person’s.” Id. at 947 n.4. Sepulveda declares that the defective parking space “caused [him] 22 difficulties in finding a safe place to park, safely exit [his] vehicle, and reach the entrance safely”; 23 he feared that his walker could roll away or that he could fall when he exited his vehicle due to the 24 insufficiently level space and access aisle. Sepulveda Decl. ¶ 4(a). As to the entrance door, 25 Sepulveda states that he “had difficulty in finding and using an accessible entrance.” Id. ¶ 4 (b). 26 Lakeshore does not offer any evidence to dispute Sepulveda’s personal experience. The court 27 concludes that Sepulveda may seek Rule 56 relief for his claims related to the lack of an accessible 1 On the other hand, Sepulveda cannot move for summary judgment on the additional 2 barriers that Sepulveda references for the first time in his motion. See Mot. at 9, 16 (citing to the 3 Cortez Report and claiming ADAAG violations to countertop, urinal, hot water pipes in restroom, 4 faucet controls, damaged floor mats, and indoor turning radius). Sepulveda made no mention of 5 these violations in his complaint or proposed FAC, which only refer to the parking space and 6 signage issues. Compl. ¶ 4. Sepulveda thus failed to “give the defendants fair notice that the 7 barriers listed for the first time in the expert report were grounds for his claim of discrimination 8 under the ADA,” as required by Federal Rule of Civil Procedure 8. Oliver, 654 F.3d at 908 . 9 “[F]or purposes of Rule 8, a plaintiff must identify the barriers that constitute the grounds for a 10 claim of discrimination under the ADA in the complaint itself; a defendant is not deemed to have 11 fair notice of barriers identified elsewhere.” Id. at 909 . “In general, only disclosures of barriers in 12 a properly pleaded complaint can provide such notice; a disclosure made during discovery, 13 including in an expert report, would rarely be an adequate substitute.” Id. The new barriers are 14 thus not properly before the court. 15 If Sepulveda wanted to challenge additional barriers, he could have done so when he 16 moved to amend his complaint on June 3, 2021, long after the Cortez Report was prepared. Pl.’s 17 Mot. for Leave [Docket 24]. Sepulveda’s proposed FAC does not mention the additional barriers 18 he challenges here; instead, he sought to add claims related to a food truck and an outdoor seating 19 area. Proposed FAC [Docket 24-2] ¶ 7. The court denied Sepulveda’s motion with leave to 20 amend by August 5, 2021. [Docket 39.] Sepulveda did not submit a new amended complaint and 21 instead filed this motion for summary judgment in which he first identifies the new barriers. The 22 court will not consider them. See, e.g., Johnson v. Gallup & Whalen Santa Maria, No. 17-119123 SI, 2018 WL 2183254 , at *5 (N.D. Cal. May 11, 2018) (denying leave to amend at summary 24 judgment to add violations identified by an expert because “adding new barriers that plaintiff had 25 not identified previously at such a late stage of the case deprives defendants of notice”); Moeller v. 26 Taco Bell Corp., 966 F. Supp. 2d 899, 902 (N.D. Cal. 2013) (declining at summary judgment to 27 assess alleged barriers identified during discovery, as “to the extent that the FAC does not identify 1 in the case”); Paulick v. Starwood Hotels & Resorts Worldwide, Inc., No. 10-01919-JCS, 2012 2 WL 2990760 , at *13 (N.D. Cal. July 20, 2012) (“Clearly, there must be a point at which a 3 defendant facing claims under the ADA can be certain that all of the barriers at issue in the case 4 have been identified. The requirement under Oliver that all barriers upon which a plaintiff wishes 5 to proceed must be identified in the complaint supports the conclusion that that point is the 6 deadline for amending the complaint.”).5 7 2. Applicable ADAAG Standards 8 The court must first identify the applicable ADAAG standards in order to determine 9 whether Sepulveda has established a violation of those standards with respect to the two 10 challenged barriers. 11 Sepulveda asserts that Lakeshore’s accessibility barriers violate both the 1991 and 2010 12 ADAAG standards. Mot. at 8-9, 15-17. He explains that “facilities altered after March 15, 2011 13 are required to comply with the 2010 Standards.” Id. at 16 (citing 28 C.F.R. § 36.406 ). In 14 opposition, Lakeshore declares that “there had not been any construction or alteration since at least 15 when [Defendant Sam Ng] acquired the property from the 76 Franchise in 2005, before the 16 effective date of the 2010 ADAAG.” Opp’n at 3; see Ng Decl. ¶ 3. Lakeshore argues that as a 17 consequence, the 2010 requirements do not apply because “[t]he safe harbor provision in the 2010 18 ADAAG deems existing structures not in violation if they comply with the 1991 ADA standard.” 19 Opp’n at 3. 20 The ADAAG standards “lay out the technical structural requirements of places of public 21 accommodations.” Chapman, 631 F.3d at 945 . When Congress enacted the ADA in 1991, it 22 directed the Department of Justice to issue interpretive regulations consistent with guidelines 23 published by the Architectural and Transportation Barriers Compliance Board (the Access Board), 24 an independent federal agency. Kirola v. City & Cty. of S.F., 860 F.3d 1164, 1176-77 (9th Cir. [25] 26 5 This court previously evaluated at summary judgment claims against barriers that were detailed in an expert report because the defects were alleged in the amended complaint, albeit unartfully. 27 Barrilleaux v. Mendocino Cty., No. 14-1373-DMR, 2018 WL 3585133 , at *10 (N.D. Cal. July 26, 2018). In contrast, as noted above, Sepulveda makes no mention of the additional barriers in his 1 2017); Miller v. Cal. Speedway Co., 536 F.3d 1030, 1025-26 (9th Cir. 2008). The Department of 2 Justice adopted the 1991 ADAAG standards promulgated by the Access Board; although the 3 Access Board subsequently issued revisions, “the only binding ADAAG requirements were the 4 original ones adopted in 1991.” Kirola, 860 F.3d at 1177 . 5 “In 2004, the Access Board published a wholesale revamp of ADAAG. Again, the new 6 regulations were not then binding. But on September 15, 2010, DOJ updated its accessibility 7 regulations by incorporating the 2004 ADAAG standards with slight variations.” Kirola, 860 F.3d 8 at 1177 . The new guidelines, which went into effect on March 15, 2012, “explicitly contain a 9 ‘safe harbor’ provision, however, which provides that accommodations, which have not been 10 altered in existing facilities on or after March 15, 2012, and that complied with the 1991 11 guidelines, are not required to be modified to conform to the 2010 standards.” Kohler v. Flava 12 Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (emphasis added). The safe harbor, codified at [13] 28 C.F.R. § 26.304 (d)(2), provides: (i) Safe harbor. Elements that have not been altered in existing facilities on or after [14] March 15, 2012 and that comply with the corresponding technical and scoping 15 specifications for those elements in the 1991 Standards are not required to be modified in order to comply with the requirements set forth in the 2010 Standards. [16] [ . . .] [17] (B) On or after March 15, 2012, elements in existing facilities that do not comply [18] with the corresponding technical and scoping specifications for those elements in 19 the 1991 Standards must be modified to the extent readily achievable to comply with the requirements set forth in the 2010 Standards. Noncomplying newly 20 constructed and altered elements may also be subject to the requirements of § 36.406(a)(5). (Emphasis added). [21] In sum, where no alteration to the establishment has occurred on or after March 15, 2012, [22] “elements in the [facility] are actionable barriers only if they fail to comply with the 1991 [23] ADAAG Standards.” Lane v. Landmark Theatre Corp., No. 16-CV-06790-BLF, 2020 WL 24 1976420, at *13 (N.D. Cal. Apr. 24, 2020). In other words, “Defendants are liable for failing to [25] fix the barriers alleged by Plaintiffs if and only if (1) the Item constitutes a violation of the 1991 [26] ADAAG Standards, and (2) it is ‘readily achievable’ to modify the element to comply with the [27] 2010 ADAAG Standards.” Id. See, e.g., Johnson v. Wayside Prop., Inc., 41 F. Supp. 3d 973 , 976 1 n.3 (E.D. Cal. 2014) (declaring that a property could only be held liable for barriers that failed to 2 comply with the 1991 ADAAG standards absent evidence of structural alterations to the property 3 between March 15, 2012 and the date of plaintiff’s first visit). 4 Here, Sepulveda argues that the two challenged barriers violate both the 2010 and 1991 5 ADAAG accessibility standards. However, he offers no foundational evidence to establish that 6 the property was constructed or altered since 2012, which would trigger Lakeshore’s obligation to 7 meet the 2010 standards. The Cortez Report does not help Sepulveda because it expressly 8 disclaims that “no clear history of construction permits of the property can be obtained.” Cortez 9 Report at 3. Cortez bases his report on the 2010 ADAAG standards even though there is no record 10 evidence to support their application. Id. 11 According to Lakeshore, Defendant Ng has not altered the property since purchasing it in 12 2005. Opp’n at 3; Ng Decl. ¶ 3. Sepulveda offers no contrary evidence.6 The unrebutted record 13 therefore demonstrates that any alterations to the property predated 2005, thereby rendering the 14 2010 ADAAG standards inapplicable. 15 The court therefore turns to the 1991 ADAAG standards to determine if the challenged 16 barriers violate the 1991 standards, and if so, whether it is readily achievable for Lakeshore to 17 modify them to comply with the 2010 standards. See 28 C.F.R. § 26.304 (d)(2)(i). 18 a. Parking Space 19 Sepulveda contends that the accessible parking space is “defective” under the 1991 20 ADAAG standards. Mot. at 8; Sepulveda Decl. ¶ 4(a). He claims that the violation “caused [him] 21 difficulties in finding a safe place to park, safely exit [his] vehicle, and reach the entrance safely”; 22 that because of the excessive slope, his walker could “roll away while [he is] arranging to get out 23 of [his] car” and could “cause [him] to fall.” Sepulveda Decl. ¶ 4(a).7 Sepulveda cannot rely on [24] 25 6 Sepulveda points to allegations in his complaint that on information and belief, the property has undergone construction or alterations since 1970, Compl. ¶ 2; Reply at 2. Allegations are not 26 evidence and are insufficient at this stage. See Fed. R. Civ. P. 56(c)(1)(A). 7 Sepulveda also contends that on later visits to Lakeshore, the gas station had placed cones on the [27] accessible parking space to park cars there that were under repair at the adjacent mechanic’s shop, 1 Cortez’s evidence to establish a violation because Cortez explicitly relied on the 2010 (not 1991) 2 ADAAG standards relating to parking spaces. Cortez Report at 8-9.8 3 Sepulveda points to several 1991 ADAAG standards related to parking that he contends 4 Lakeshore violated. Mot. at 8. 1991 ADAAG §§ 4.1.2(5)(b) and 4.6.3 require that accessible 5 parking spaces, accessible passenger loading zones, and their respective access aisles “shall be 6 level with surface slopes not exceeding 1:50 (2%) in all directions.”9 The 1991 ADAAG 7 § 4.1.2(5)(b) on “Accessible Sites and Exterior Facilities: New Construction” requires a “van 8 accessible” space in “[o]ne in every eight accessible spaces, but not less than one.” 9 The parties do not dispute that the cross slope on the accessible aisle parking space exceeds 10 two percent, the amount allowed under the 1991 ADAAG standard. See Mot. at 16; Cortez Report 11 at 8 (item 4.7); Opp’n at 3.10 Nevertheless, Sepulveda is not entitled to summary judgment on the 12 parking space violation. Under the 2010 ADAAG safe harbor, Lakeshore is only required to fix 13 the cross slope to comply with the 2010 ADAAG standards if remediation is readily achievable. 14 See 28 C.F.R. § 26.304 (d)(2)(ii)(B). While Lakeshore bears the ultimate burden of persuasion on 15 this defense, Sepulveda has not satisfied his initial burden to plausibly show that the cost of 16 removal does not exceed the benefits. See Lopez, 974 F.3d at 1040 . Sepulveda does not address 17 the safe harbor provision or the “readily achievable” standard; in fact, his evidence suggests that 18 remediation may not be readily achievable for Lakeshore. Cortez concluded that remedying the [19] 20 Sepulveda does not explain his claim relating to the cones nor does he point to any legal authority to establish a violation. The court declines to address this, as it is not the court’s job to figure out 21 what Plaintiff’s arguments could be. [22] 8 The Cortez declaration identifies one condition (parking space access aisle) as not complying with the 1991 standards, but his report only indicates a 2010 ADAAG violation for this item. 23 Compare Cortez Decl. ¶ 6(c), with Cortez Report at 6 (item 2.12). No other 1991 ADAAG violation is noted in the Cortez Report. [24] 9 The 1991 ADAAG standards cited herein are available at ADA Accessibility Guidelines 25 (ADAAG), U.S. Access Board, https://www.access-board.gov/adaag-1991-2002.html (last visited October 28, 2021). [26] 10 As to the van accessible space, Lakeshore is correct that the 1991 ADAAG standard does not require a passenger access aisle that is 96 inches wide, despite Sepulveda’s contrary contention. [27] Mot. at 8; Opp’n at 3. Furthermore, 1991 ADAAG § 4.1.2(5)(b) applies to “New Construction.” 1 parking lot would require “capital improvements on the facility.” Cortez Report at 8 (items 4.1, 2 4.2, 4.4, 4.7); see id. at 3 (defining “CI” on the report). Elsewhere Cortez found that “[T]he 3 topography of the site is incredibly challenging to provide an accessible path of travel” and that 4 the “Site is very difficult to make it compliant.” Cortez Report at 3, 8. He concluded that “the 5 accessible parking stall is in the most appropriate location in the lot. Providing an accessible path 6 of travel to the cashier and retail shop will require an excessive amount of work that may hinder 7 free circulation within the lot.” Id. at 3. His opinion suggests that fixing the excessively sloped 8 parking space may obligate costs exceeding the benefits. See Lopez, 974 F.3d at 1040 . For all the 9 foregoing reasons, the court denies summary judgment on Sepulveda’s ADA claim as to the 10 parking lot violation. 11 b. Entrance door signage 12 Sepulveda claims that the “primary Business entrance door,” alternatively described as the 13 “front door,” lacks the appropriate posted sign with the International Symbol of Accessibility 14 (“ISA”). Mot. at 8; Sepulveda Decl. ¶ 4(b). The Cortez Report does not discuss the lack of 15 entrance signage. Lakeshore argues in opposition that “warning signages” are not encompassed 16 within the 1991 ADAAG standards. The 1991 standards do in fact contain certain signage 17 requirements, but Sepulveda has not established that Lakeshore violated any of them. 18 Sepulveda directs the court, without analysis, to ADAAG §§ 4.30.7*(1) and 4.30.6. Mot. 19 at 8. Section 4.30.7 requires signage in certain newly designed, constructed or altered buildings.11 20 This section does not necessarily apply here because as discussed above, Sepulveda does not point 21 to any evidence that Lakeshore is a newly designed, constructed, or altered building. Section 22 4.30.6 also does not advance Sepulveda’s claim. It specifies how to mount a sign when a sign is 23 required; it is silent on the question of where and when signs are required to be posted.12 The [24] 25 11 Section 4.30.7*(1) cross-references § 4.1, which defines certain facilities as “[a]ll areas of newly designed or newly constructed buildings and facilities and altered portions of existing buildings 26 and facilities … unless otherwise provided in this section or as modified in a special application section.” [27] 1 court also considers § 4.1.2(7) even though Sepulveda did not identify it because it is more 2 directly on point. It states that “Elements and spaces of accessible facilities which shall be 3 identified by the [ISA] and which shall comply with 4.30.7 are … c. [A]ccessible entrances when 4 not all are accessible (inaccessible entrances shall have directional signate to indicate the route to 5 the nearest accessible entrance.)” Section 4.1.2(7) “clearly requires that, when not all entrances to 6 a commercial facility are accessible, those that are must be identified by an ISA.” Jones v. Dollar 7 Tree Stores, Inc., No. 204-2002 MCE WL 1409667, at *5 (E.D. Cal. May 19, 2006). Here, 8 Sepulveda has not demonstrated that there are multiple entrances to Lakeshore, at least one of 9 which is not accessible. In fact, the record indicates that there is only one front door, and that it is 10 accessible. Sepulveda Decl. ¶ 4(b) (referring to “primary Business entrance door”); Cortez Report 11 at 20 (Item 9.1) (indicating that entrance is accessible to persons with disabilities). In sum, 12 Sepulveda has failed to establish a signage violation. Summary judgment on Sepulveda’s ADA 13 claim as to the alleged signage barrier is therefore denied. 14 B. State Law Claims 15 Sepulveda also moves for summary judgment on his claims under the Unruh Civil Rights 16 Act, CDPA, and California Health and Safety Code section 19955 et seq. Mot. at 17-18, 20-22. 17 A violation of the right of any individual under the ADA constitutes a violation of the Unruh Act 18 and the CDPA. Moeller, 816 F. Supp. 2d at 848 (citing Cal. Civ. Code §§ 51 (f); 54(c)). Both the 19 Unruh Act and the CDPA authorize statutory damages to plaintiffs denied equal access. Cal. Civ. 20 Code §§ 52(a); 55.56(a). To the extent that Sepulveda seeks to establish state law violations based 21 on ADA violations, summary judgment is denied because he has not succeeded on his ADA 22 claims. 23 Sepulveda’s remaining state law theories rely on his ability to establish a violation of the 24 California Health and Safety Code and/or the California Building Code. A California Building 25 Code violation also constitutes a violation of the Unruh Act and the CDPA. Moeller, 816 F. Supp. 26 signs[;] they do not require the posting of an accessibility sign”); Rush v. Hyun Suk Kim, 908 F. 27 Supp. 2d 1117, 1121 (C.D. Cal. 2012) (“§ 4.30.6 only applies to signs displaying permanent 1 2d at 848. California Health & Safety Code section 19955 requires that public accommodations 2 constructed or altered after July 1, 1970 adhere to the applicable state architect’s accessibility 3 standards. Lane, 2020 WL 1976420 , at *22. Determining the appropriate standard depends on the 4 application date for building permit, or the date construction is commenced if no permit is 5 required. Id. Since December 31, 1981, the accessibility standards have been set forth in the 6 California Building Code, Title 24 of the California Code of Regulations. Moeller, 816 F. Supp. 7 2d at 847. Alterations to buildings made only between 1970 and 1981 are subject to certain 8 “temporary standards” provided in the California Government Code. See Lane, 2020 WL 9 1976420, at *21-22. The California Building Code governs all alterations conducted after its 10 enactment on December 31, 1981. See id. at *24 ; Rodriguez, 10 F. Supp. 3d at 1086-87 ; see, e.g., 11 Moeller, 816 F. Supp. 2d at 848 (“Because Taco Bell 4518 was constructed in 1991, all elements 12 must comply with Title 24, and the applicable standards are those promulgated in 1989.”). 13 Sepulveda asserts multiple violations of the California Building Code, and the Cortez 14 Report finds several items that do not comply with it. Mot. at 16; Cortez Decl. ¶ 6. However, 15 Sepulveda supplies no evidence to demonstrate that Lakeshore was altered or constructed after 16 1970 for the purposes of the Health and Safety Code. Nor does he supply evidence of alteration or 17 construction after December 31, 1981 that would trigger the requirements of the California 18 Building Code. Absent this threshold information, the court cannot ascertain whether these 19 provisions apply to establish Unruh Act, CDPA, or Health & Safety Code violations and thus 20 denies summary judgment on those claims. See Yates v. Bacco, No. 11-1573-DMR, 2014 WL 21 1089101, at *14 (N.D. Cal. 2014) (“No evidence in the record demonstrates that the building that 22 houses Bacco was constructed on or after, or altered on or after, July 1, 1970, within the meaning 23 of the statute. Plaintiff’s post trial submissions do not address this statute. Therefore, Plaintiff is 24 deemed to have abandoned his claim premised on Section 19955.”). 25 IV. CONCLUSION 26 For the foregoing reasons, Sepulveda’s motion for summary judgment is denied. The court 27 observes that Sepulveda moved for summary judgment before the close of discovery. The court 1 filing a further summary judgment motion. 2 The parties are ordered to appear for a case management conference on January 19, 2022 at 3 1:00 pm. The updated joint case management conference statement is due on January 12, 2022. KD oO 5 S IT ISSO ORDERED Ay eo 6 . ORDERED 7 Dated: October 28, 2021 z i i □□ Z RaW □□ * ! Y 9 O e Donna M © A a AS 10 o>» ll pote UnitethstgtéS WipdisirgteTudge [13] © [16] = 17 Z 18