Johnson v. Holden ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 SCOTT JOHNSON, 8 Case No. 5:18-cv-01624-EJD Plaintiff, 9 ORDER GRANTING DEFENDANTS’ v. MOTION FOR SUMMARY 10 JUDGMENT; DENYING MOTION FOR DONALD B. HOLDEN, et al., SANCTIONS Defendants. Re: Dkt. No. 51 s . 13 Plaintiff Scott Johnson alleges that Defendants Donald Holden, Elizabeth Holden, and 14 || Terra Bella Group, Inc. violated the Americans with Disabilities Act (“ADA”). Having © 3 15 considered the Parties’ briefs and having had the benefit of oral argument on October 10, 2019, the Q 16 || Court GRANTS Defendants’ motion for summary judgment and DENIES Defendants’ motion 17 || for sanctions. 18 I. | BACKGROUND 19 A. Factual Background 20 On May 15, 2018, Plaintiff, a level C-5 quadriplegic, filed a lawsuit against Defendants, 21 who operate a Shell gas station on property located at 3601 El Camino Real, Palo Alto, California. 22 || See Complaint for Damages and Injunctive Relief (“Compl.”) □□ 1-20, Dkt. 1. Plaintiff alleges 23 || that he went to the Shell gas station on six occasions and that during these visits the existing van 24 || accessible parking spot was blocked. Specifically, Plaintiff contends that Defendants’ employees 25 || parked their cars in the existing van accessible parking space. Id. 24, 28, 35 (alleging that 26 || Defendants “do not maintain the parking lot so that parking spaces marked and reserved for 27 Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 persons with disabilities are available”). Plaintiff also claims that Shell has an insufficient number 2 || of disabled parking spaces. /d. ¥ 33 (alleging that Shell has “about 33 parking spaces” and so 3 Defendants are required by law to have “two parking spaces marked and reserved for persons with 4 || disabilities”). 5 On or around March 31, 2018, when Defendants were served, Mr. Tom Gidlundt, 6 || Defendants’ authorized representative and the tenant and operator of the subject Shell gas station, 7 || immediately informed the employees that they could not block the disabled parking space. 8 || Defendant Terra Bella Group Inc. Declaration of Tom Gidlundt (“Gidlundt Decl.”) § 3, Dkt. 55. 9 || He also placed orange cones at each of the four corners of the disabled parking space to ensure it 10 was open, available, and usable by the disabled. /d. Further, Mr. Gidlundt wrote a policy and 11 practice manual for the owners, managers, and employees of the station that stated Defendants 12 || would provide reasonable accommodations to the disabled so long as it would not fundamentally 13 || alter business. /d.; see also id., Ex. A. Mr. Gidlundt also installed a “tow away” sign at the 14 || parking space to warn that illegally parked vehicles would be towed. Jd. ¥ 3. 3 15 Defendants also retained Mr. Blackseth, a Certified Access Specialist Property Inspector a 16 || (‘CASp”), to (1) ensure that the alleged barriers identified in Plaintiffs complaint no longer 3 17 || existed and (2) make other ADA improvements that were not alleged by Plaintiff. /d. J] 6-8. Mr. 18 || Blackseth conducted a site inspection and found that no further ADA action was required with 19 || respect to Plaintiff's allegations of barriers. CASp Kim Blackseth Declaration (“Blackseth Decl.”) 20 45, Dkt. 55-1; see also id., Ex. A. 21 Finally, after the Complaint was filed, Mr. Gidlundt adopted two new policies and 22 || checklists: 23 1. The store manager must complete a checklist at the start of his shift and during his shift to 24 confirm that no unauthorized cars are parked or blocking the ADA van accessible parking 25 space. Reply Declaration of Thomas Gidlundt (“Gidlundt Reply Decl.”) § 2, Dkt. 58-2 (a 26 copy of these forms appear at Ex. A). a Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 2. The manager must also fill in the ADA Parking Space Shift log, which identifies the month 2 and day and requires the manager to indicate if the parking space and walkway are clear by 3 marking “yes” or no.” Jd. Ifthe manager marks “no,” then the manager must find the 4 driver who must then move the vehicle or the manager must call the towing company. Jd. 5 If the handicap spot is illegally blocked, the manager must fill out an Unauthorized Parking 6 Report so that when Mr. Gidlundt reviews the logs, he can determine if there is a driver 7 that continuously blocks the handicap spot. /d. § 3. Ifa driver repeatedly parks in the 8 handicap spot, Mr. Gidlundt will fine the driver. And, if repeated violations occur, Mr. 9 Gidlundt plans to place cones around the handicap spot to ensure handicap access. □□□ 10 Mr. Gidlundt also signed a contract with CASp Kelly Bray to complete bi-annual 11 inspections for the next three years or more to ensure that the Shell station is ADA-compliant. /d.; 12 see also id., Ex. B. 13 B. Procedural History 14 On May 20, 2019, Defendants filed a motion for summary judgment, which includes a 3 || request for the Court to sanction Plaintiff. Defendant Terra Bella Group’s Motion for Summary a 16 || Judgment/Partial Summary Judgment to Dismiss ADA Claim, Decline Supplemental Jurisdiction 3 17 || and Request for Sanctions Per the Court’s Inherent Authority (“Mot.”), Dkt. 51. Plaintiff filed his 18 || response on June 2, 2019. Plaintiff's Memorandum in Opposition to Defendants’ Motion for 19 Summary Judgment (“Opp.”), Dkt. 57. On June 7, 2019, Defendants filed their reply. 20 || Defendants’ Reply to Plaintiff's Opposition (“Reply”), Dkt. 58. 21 The Court held a hearing on October 10, 2019. See Dkt. 67. During this hearing, the 22 || Parties communicated to the Court that while a Joint Site Inspection occurred, the Parties still 23 disputed the number of parking spaces in the Shell parking lot. The Court ordered Plaintiff’ □ 24 || counsel to determine number of parking spaces and file a sworn statement attesting to the number 25 of parking spaces. See Dkt. 68. On November 1, 2019, Plaintiffs investigator filed a declaration 26 || stating that there are only 12 parking spaces at the Shell station. See Declaration of Hedal Kadric a Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 (“Kadric Decl.”) § 4, Dkt. 68. 2 Il. LEGAL STANDARDS 3 A. Motion for Summary Judgment 4 A court must grant summary judgment if the movant shows “that there is no genuine 5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 6 || Civ. P. 56(a). In order to satisfy this burden, “the moving party must either produce evidence 7 || negating an essential element of the nonmoving party’s claim or defense or show that the 8 || nonmoving party does not have enough evidence of an essential element to carry its ultimate 9 || burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 10 1099, 1102 (9th Cir. 2000). “In order to carry its ultimate burden of persuasion on the motion, the 11 moving party must persuade the court that there is no genuine issue of material fact.” Jd. 12 If the moving party meets its burden of production, the nonmoving party must produce 13 || evidence to support its claim or defense. /d. at 1103. If the nonmoving party fails to produce 14 || enough evidence to create a genuine issue of material fact, Rule 56(c) mandates the moving party 3 15 || win the motion for summary judgment. See id. a 16 B. Dismissal Under Federal Rule of Civil Procedure 12(b)(1) 3 17 To contest a plaintiff's showing of subject-matter jurisdiction, a defendant may file a Rule 18 12(b)(1) motion. Fed. R. Civ. P. 12(b)(1). A defendant may either challenge jurisdiction 19 || “facially” by arguing the complaint “on its face” lacks jurisdiction or “factually” by presenting 20 || extrinsic evidence (affidavits, etc.) demonstrating the lack of jurisdiction on the facts of the case. 21 Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Safe Air for Everyone v. Meyer, 373 F.3d 22 1035, 1039 (9th Cir. 2004). 23 C. Sanctions 24 Federal courts have inherent powers; the most prominent of which is the contempt 25 sanction, which a judge may use to maintain “the authority and dignity of the court.” Roadway 26 || Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) (quotation marks and citation omitted); see also a Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 Goodyear Tire & Rubber Co. v. Haeger, 1378. Ct. 1178, 1186 (2017) (“Federal courts possess 2 || certain ‘inherent powers,’ not conferred by rule or statute, ‘to manage their own affairs so as to 3 achieve the orderly and expeditious disposition of cases.’” (quoting Link v. Wabash R.R. Co., 370 4 || U.S. 626, 630-31 (1962))). These powers include “the ability to fashion an appropriate sanction 5 for conduct which abuses the judicial process.” Goodyear Tire & Rubber Co., 1378S. Ct. at 1186. 6 || The Ninth Circuit has held that a specific finding of “bad faith” is required before a district court 7 || imposes sanctions under its inherent authority. Christian v. Mattel, Inc., 286 F.3d 1118, 1131 (9th 8 Cir. 2002); Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001) (“[ T]he district court has the 9 || inherent authority to impose sanctions for bad faith, which includes a broad range of willful 10 || improper conduct.”). 1] Because inherent powers are shielded from direct democratic controls, they must be (12 || exercised with restraint and discretion. Roadway Express, Inc., 447 U.S. at 764. “There are ample _. . 13 grounds for recognizing, however, that in narrowly defined circumstances federal courts have 14 || inherent power to assess attorney’s fees against counsel.” /d. at 765. Indeed, the “assessment of © 3 15 || attorney’s fees” to reimburse legal fees and costs by the other side is proper if the opposing party Q 16 || has acted in bad faith. Goodyear Tire & Rubber Co., 137 S. Ct. at 1186. («17 I. DISCUSSION 18 A. Motion for Summary Judgment/Mootness 19 Plaintiff makes two claims in his Complaint:' 20 1. He alleges that while there is a van parking space reserved for persons with disabilities, 21 this spot was routinely obstructed and Shell employees regularly parked vehicles 22 23 In his Opposition, Plaintiff makes a number of arguments about encountering a slope problem, a 24 || path of travel problem, and a striping barrier problem. See Opp. at 8. These barriers were not alleged in Plaintiff's Complaint. An ADA plaintiff may seek an injunction to correct other, 25 “unencountered” barriers. Chapman vy. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 952 (9th Cir. 2011). At the summary judgment stage, however, there must be some evidence that other barriers exist. 26 || Plaintiff provides no such evidence, other than summarily stating in his opposition that there are issues with the slope of the disabled parking, the parking striping, the access aisle, and the path of 27 || travel. This is insufficient. Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 without handicap plates or a placard in the handicap stalls. Compl. Jf 25, 28. 2 2. He alleges that there are not enough parking spaces marked and reserved for persons 3 with disabilities. Jd. 9§ 32, 33. 4 Defendants argue that Plaintiff's first claim is moot and brings a facial challenge to show 5 || the claim is moot. Defendants also argue that the second claim lacks a legal basis.” See Mot. at 4— 6 || 5. The Court agrees. Regarding Plaintiffs second claim, there is no dispute between the Parties 7 || that this was claimed in error. See Dkt. 70 (alleging that the Shell station in fact had only 12 8 spots). Because there are only 12 parking spots, only one handicap spot is required, which 9 || Defendants have. This claim is thus no longer in issue. 10 Regarding Plaintiff's first claim, the Court holds that this claim is moot. A claimed 11 remedy might become moot if “subsequent events make it absolutely clear that the allegedly s wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. 13 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 (2000); United States v. Concentrated 14 || Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968). Mootness is raised under Rule 12(b)(1). Savage © 3 15 || v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Federal courts are Q 16 || “without power to decide questions that cannot affect the rights of litigants in the case before 17 || them.” DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (quoting North Carolina v. Rice, 404 18 || US. 244, 246 (1971)). The inability to review moot cases derives from Article III’s requirement 19 || that a “case or controversy” exist between the parties. /d. at 316. While a defendant’s voluntary 20 || cessation of allegedly wrongful conduct is unlikely to moot a case, it is possible for a defendant’s 21 voluntary cessation to moot a case. Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). A 22 || defendant claiming its voluntary compliance moots a case bears the formidable burden of showing 23 24 || Plaintiff argues that the motion for summary judgment is premature and requests that the Court stay its decision until after Plaintiff is able to inspect the property, evaluate any remediation 25 || efforts, and then submit a supplemental response to the defense’s motion for summary judgment. Opp. at 2. Pursuant to the Court’s October 2019 order, Plaintiff inspected the property on October 26 || 31, 2019 and submitted a supplemental response. See Dkt. 69, 70. Thus, Plaintiff was able to inspect the property and submit supplemental information. Plaintiff's argument that the motion is 27 || premature is obviated. Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 || the wrongful conduct will not recur. Friends of the Earth, Inc., 528 U.S. at 189. 2 There is no dispute in this case that Shell has an ADA compliant parking space. In other 3 || words, the spot itself has no ADA problems. The ADA issue arises from the spot being obstructed 4 || by non-handicapped persons. As noted, Mr. Gidlundt has implemented significant protocols to 5 ensure ADA compliance. See supra I.A. These include installation of a tow-away sign that now 6 || informs violators their vehicles will be towed and Shell managers must fill out an ADA Parking 7 Space Shift log twice during their shifts to ensure the handicap spot is not obstructed. Reply 8 || Gidlundt Decl. § 2. Moreover, the Shell station will have bi-annual inspections by a CASp 9 || inspector to ensure it meets ADA standards. It is thus uncontested that Defendants have 10 || voluntarily remedied all alleged barriers. This, renders Plaintiffs claim moot—vehicles no longer 11 obstruct the handicap spot. 12 In response, Plaintiff argues that his ADA claim is not moot due to the voluntary cessation 13 || doctrine. Under this doctrine, when a defendant’s voluntary cessation of a challenged activity is 14 || the basis for mootness, “it becomes the defendant’s burden to demonstrate that “subsequent events 3 15 || made it absolutely clear that the alleged wrongful behavior could not reasonably be expected to a 16 || recur.’” Moore v. Dollar Tree Stores, Inc., 85 F. Supp. 3d 1176, 1187 (E.D. Cal. 2015) (quoting 3 17 || Friends of the Earth, 528 U.S. at 189). In the context of ADA claims, “[c]ourts have held that 18 || where structural modifications are made, [] it is absolutely clear that the allegedly wrongful 19 || behavior could not reasonably be expected to occur in the future.” Moore v. Saniefar, 2017 WL 20 1179407, at *6 (E.D. Cal. Mar. 29, 2017) (citation and quotation marks omitted) (first alteration in 21 original). When considering non-structural features, courts have found that “voluntary 22 || remediation” of violations do “not moot an issue” because the violations “could easily reoccur.” 23 || Jd. To determine if the facts indicate a danger of future violations, courts consider the “bona fides 24 || of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the 25 character of the past violations.” Watanabe v. Home Depot USA, Inc., 2003 WL 24272650, at *4 26 || (C.D. Cal. July 14, 2003) (citation omitted); see also Langer v. G.W. Props., L.P., 2016 WL a Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS _ 1 3419299, at *4 (S.D. Cal. June 21, 2016) (“When determining whether behavior can reasonably be 2 || expected to recur, courts consider various issues, such as the (a) motivation behind the conduct, 3 (b) reasons for the change in conduct, (c) volitional nature of the conduct, (d) length of time 4 || between the change in conduct and the complaint, and (e) ownership status of the defendant in 5 || relation to the property.”); Lozano v. C.A. Martinez Family Ltd. P’ship, 129 F. Supp. 3d 967, 972 6 || (S.D. Cal. 2015) (“[W]hether the defendant’s cessation of the offending conduct was motivated by 7 || a genuine change of heart or timed to anticipate suit is relevant .. . .”) (citation and quotation 8 || marks omitted) (alteration in original)). 9 Defendants have met their burden—the pertinent considerations weigh in favor of finding 10 || that the violations, even though they pertain to non-structural issues, are not reasonably likely to 11 recur. While courts take a broad view of constitutional standing in disability access cases, the 12 || ADA’s reach is “not unlimited.” Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 13 2011). Here, Defendants immediately remedied the alleged violations after the initiation of the 14 || action. Gidlundt Decl. § 3. Additionally, Defendants have taken substantial affirmative steps to 3 15 || become compliant and prevent future violations. Upon receiving the Complaint, Defendants hired a 16 || a CASp to review the site and ensure that Shell fully complied with the ADA. Defendants also 3 17 || took steps to prevent future violations by entering into a three-year contract with a CASp to assess 18 || the property on a bi-annual basis for compliance. Reply Gidlundt Decl. 4 3; see also id., Ex. A. 19 || These affirmative steps indicate that the violations are not reasonably likely to recur. See Moore, 20 2017 WL 1179407, at *7; see also Turner v. Anand, 2015 WL 4474671, at *7 (S.D. Cal. July 21, 21 2015) (finding that the violations, including those pertaining to non-structural issues, could not 22 || “reasonably be expected to recur” and dismissing the plaintiff's ADA claim where the defendants 23 “did not have a history of violating” the ADA and the defendants created a policy that “call[ed] for 24 || an annual inspection” to ensure ADA compliance). 25 Defendants have no history of violating the ADA. Cf Lozano, 129 F. Supp. 3d at 971 26 || (noting the defendants’ history of ADA noncompliance). Plaintiff also has not directed the Court a Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 to any evidence indicating an intent by Defendants to violate the ADA in the future. The dearth of 2 || evidence showing past ADA violations or an intent to violate in the future indicates that future 3 || violations are not reasonably likely to occur. Cf Clavo v. Zarrabian, 2004 WL 3709049, at *4 4 || (C.D. Cal. May 17, 2004) (holding that the plaintiff's ADA claim was not moot where the 5 defendants had “an entrenched policy of blocking access to” a “wheelchair accessible gate and 6 || check-out aisle” and the defendants “failed to change that policy until after th[e] case was filed’’); 7 Watanabe, 2003 WL 24272650, at *4 (finding that the plaintiff's ADA claim was not moot where 8 || the defendant did not change their policies and procedures to prevent future ADA violations and 9 || there was no indication that the defendant intended to comply with ADA). 10 For these reasons, the Court holds that Defendants have met their heavy burden of showing 11 that it is absolutely clear that the alleged wrongful behavior is not reasonably likely to recur. The 12 || voluntary cessation exception to mootness 1s thus inapplicable to Plaintiff’s first claim and the 13 || claim is moot. Accordingly, Defendants’ motion for summary judgment is GRANTED. 14 B. Sanctions 3 15 Defendants request for the Court to sanction Plaintiff for the costs associated with bringing a 16 || the motion for summary judgment. Mot. at 6—7. Plaintiff does not respond to the request for 3 17 || sanctions. See generally Opp. 18 As demonstrated above, mootness is a complicated, multi-factored inquiry. There is no 19 || dispute that Defendants initially violated the ADA by allowing non-handicapped persons to 20 || obstruct handicap spots. While Defendants undertook significant efforts to remediate this 21 || violation, this Court could have found that the claim was not moot. See supra IIIA (weighing the 22 || various factors). The Court thus does not find that Plaintiff maintained this action in “bad □□□□□□□□ 23 || See Christian, 286 F.3d at 1131. Accordingly, the request for sanction is DENIED. 24 2 || 3 While the Court may have considered sanctions as to Plaintiff with respect to its parking number 26 || spaces claim, Defendants provide no declaration, affidavit, etc. indicating how much money or expenses they exerted in defending against this claim. The Court thus declines to exercise its 27 || inherent sanction powers. Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS 1 IV. CONCLUSION 2 For the above reasons, the Court GRANTS Defendants’ motion for summary judgment 3 and DENIES Defendants’ request for sanctions. Pursuant to 28 U.S.C. § 1367(c)(3), the Court 4 || declines to exercise supplemental jurisdiction over the remaining Unruh Act Claim and dismisses 5 || Plaintiffs state law claim without prejudice. The Clerk shall close the file. 6 IT IS SO ORDERED. 7 {| Dated: March 18, 2020 8 EDWARD J. DAVILA 9 United States District Judge 10 1] 2B 14 15 16 («17 Z 18 19 20 21 22 23 24 25 26 27 Case No.: 5:18-cv-01624-EJD 28 || ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR SANCTIONS