Love v. O'Reilly Auto Enterprises, LLC ( 2020 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 SAMUEL LOVE, Case No. 19-cv-04005-CRB 9 Plaintiff, ORDER DENYING PLAINTIFF’S 10 v. MOTION FOR SUMMARY JUDGMENT 11 O’REILLY AUTO ENTERPRISES, LLC, 12 Defendant. 13 This dispute arises out of a June 2019 incident in which Plaintiff Samuel Love 14 (“Love”), a paraplegic who uses a wheelchair for mobility, made a purchase at Defendant 15 O’Reilly Auto Parts Store (“O’Reilly”). See Love MSJ at 1–2 (dkt. 30-1). Love contends 16 that O’Reilly violated the Americans With Disabilities Act (“ADA”) and analogous 17 California Unruh Civil Rights Act provisions by refusing to assist him at the lowered sales 18 counter and failing to maintain the lowered counter in a usable manner. See id. at 2, 4, 9. 19 In this motion for summary judgment, Love argues that there is no genuine dispute as to 20 any material fact. Id. at 4. As explained below, the Court disagrees, and therefore 21 DENIES Love’s motion for summary judgment. 22 I. BACKGROUND 23 A. Factual Background 24 Love is a California resident with physical disabilities who uses a wheelchair for 25 mobility. See Love Decl. (dkt. 30-2) ¶ 2; Ex. 1 Love Depo. (dkt. 42-2) at 10:17–10:24. In 26 June 2019, Love visited an O’Reilly Auto Parts store in San Mateo, California. Love Decl. 27 ¶ 3, Ex. 2 Receipt (dkt. 30-3). The O’Reilly Auto Parts store has a lowered sales counter 1 for transactions involving customers with disabilities. See Love Decl. ¶ 5. During his 2 visit, Love asked to be helped at the lowered counter in another area of the store, but the 3 employee denied Love’s request.1 See Love Decl. ¶ 5. The employee declined to 4 accommodate Love because the lowered counter was not usable at the time.2 See id.; see 5 also Sanabria Decl. (dkt. 31-1) ¶ 4. Because the employee would not assist Love at the 6 lowered sales counter, Love had to conduct his transaction at the higher sales counter, 7 which was not accessible to him, and caused much “difficulty and discomfort.” Love 8 Decl. ¶ 6. Love plans to return to the store “to assess the Store for compliance with 9 disability access laws and confirm that the lowered counter is being maintained in a usable 10 manner.” Id. ¶ 7. 11 After Love’s visit on June 4, 2019, investigator Corey Taylor visited the store on 12 June 28, 2019, where he found the sales counter measured approximately 41.5 inches high 13 and observed that the lowered counter “was crowded with boxes and inventory.” Taylor 14 Decl. (dkt. 30-4) ¶¶ 3–5, Ex. 4 Photos by Taylor (dkt. 30-5). Taylor also did not see any 15 customers being helped at the lowered counter. Taylor Decl. ¶ 5. 16 B. Procedural Background 17 Love brought suit on July 12, 2019, under the ADA and the Unruh Civil Rights Act. 18 See generally Compl. (dkt. 1). O’Reilly moved for judgment on the pleadings, or in the 19 alternative, summary judgment. See generally O’Reilly MJP (dkt. 28). Concurrently, 20 Love moved for summary judgment, see generally Love MSJ, which O’Reilly opposed, 21 arguing that (1) Love’s motion is premature; (2) Love’s sole theory of liability fails to state 22 a claim as a matter of law; (3) Love lacks standing; and (4) there are genuine disputes of 23 material fact, see generally O’Reilly Opp’n (dkt. 31). The Court denied O’Reilly’s 24 motions and ordered O’Reilly to show cause as to its prematurity argument. See generally 25 1. O’Reilly disputes that Love requested assistance at the lowered counter and that the employee 26 refused. See O’Reilly Opp’n at 6. 2. Love asserts that the accessible counter was unusable because there were miscellaneous items 27 and merchandise placed on top of the lowered counter, see Love Decl. ¶ 5, while O’Reilly asserts 1 Order Denying O’Reilly Mots. (dkt. 38); Order to Show Cause (dkt. 39). After O’Reilly 2 filed a declaration about prematurity that satisfied Rule 56(d), see generally Gonnella Decl. 3 (dkt. 40), the Court permitted O’Reilly to take discovery, see generally Order Permitting 4 Discovery (dkt. 41). O’Reilly then filed an updated opposition, which maintains that Love 5 lacks standing and that there are genuine disputes of material fact regarding the substantive 6 allegations. See generally O’Reilly Supp. Opp’n (dkt. 42). Love filed an updated reply. 7 See generally Love Supp. Reply (dkt. 43). 8 II. LEGAL STANDARD 9 Summary judgment is appropriate if “there is no genuine dispute as to any material 10 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 11 dispute of material fact is genuine if the evidence, viewed in the light most favorable to the 12 nonmoving party, “is such that a reasonable jury could return a verdict for the nonmoving 13 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for 14 summary judgment bears the initial burden of identifying those portions of the evidence 15 that demonstrate the absence of a genuine issue of material fact. See 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the 17 burden of proof at trial, that party must affirmatively show that no reasonable jury could 18 find other than in the moving party’s favor. Id. at 331 (Brennan, J., dissenting). 19 Once the moving party meets its initial burden, the nonmoving party must go 20 beyond the pleadings and show that there is a genuine issue for trial. See Anderson, 21 477 U.S. at 250. The nonmoving party does this by citing to specific parts of the materials 22 in the record or by showing that the materials cited by the moving party do not compel a 23 judgment in the moving party’s favor. Fed. R. Civ. P. 56(c). A triable dispute of material 24 fact exists only if there is sufficient evidence favoring the nonmoving party to allow a jury 25 to return a verdict for that party. See Anderson, 477 U.S. at 249. If the nonmoving party 26 fails to make this showing, “the moving party is entitled to judgment as a matter of law.” 27 Celotex, 477 U.S. at 323. 1 III. DISCUSSION 2 To prevail on an ADA Title III discrimination claim, a plaintiff must show that: 3 (1) he is disabled; (2) the defendant is a private entity that owns, leases, or operates a place 4 of public accommodation; and (3) the defendant denied the plaintiff public 5 accommodations because of his disability. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 6 730 (9th Cir. 2007) (citing 42 U.S.C. §§ 12182(a)–(b)). Further, public accommodations 7 have a statutory duty to ensure that the required accessible features are maintained in a 8 useable condition. See 28 C.F.R. § 36.211(a). Neither party disputes that Love is disabled 9 or that O’Reilly owns and operates a place of public accommodation. See generally Love 10 MSJ; O’Reilly Opp’n. Therefore, the only elements in dispute are whether O’Reilly 11 denied Love public accommodations because of his disability and whether O’Reilly failed 12 to maintain the accessible counter in a usable condition. 13 Love contends that O’Reilly failed to make necessary, reasonable modifications to 14 its policies, practices, or procedures to accommodate him and that O’Reilly failed to 15 maintain the lowered counter in a useable manner that was accessible to people with 16 disabilities. See Love MSJ at 4, 9. O’Reilly makes a number of arguments in opposition 17 that the Court has not yet addressed, including that (A) Love lacks standing, and (B) there 18 are genuine disputes of material fact. See O’Reilly Opp’n at 3, 6–8. See generally Order 19 Denying O’Reilly Mots. The Court addresses each in turn. 20 A. Love Has Standing 21 As an ADA plaintiff, Love “can establish standing to sue for injunctive relief . . . by 22 demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility,” 23 thereby establishing a future “real and immediate threat of repeated injury.” Chapman v. 24 Pier 1 Imports, 631 F.3d 939, 944, 946 (9th Cir. 2011). “Where ‘the public 25 accommodation being sued is far from the plaintiff's home,’ a plaintiff shows ‘actual or 26 imminent injury sufficient to establish standing’ when he or she ‘demonstrates an intent to 27 return to the geographic area where the accommodation is located and a desire to visit the 1 608 F. App’x 476, 477 (quoting D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 2 1037 (9th Cir.2008)). However, “‘some day’ intentions—without any description of 3 concrete plans, or indeed even any specification of when the some day will be—do not 4 support a finding” of actual or imminent injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 5 564 (1992). 6 Love asserts that he “visit[s] San Mateo County on a regular basis,” and that he 7 “plan[s] to visit the Store again to shop whenever [he] is in the area and the need arises.” 8 Love Decl. ¶¶ 7–8. O’Reilly argues that Love lacks standing to bring this action because 9 Love’s injury-in-fact is not coupled with the “required ‘concrete’ plan to return” to the 10 noncompliant facility.3 See O’Reilly Opp’n at 3. 11 However, having a concrete intent to return is not the only way for an ADA plaintiff 12 to establish standing. The Ninth Circuit has held that an ADA plaintiff can also claim 13 “tester standing,” which permits a plaintiff whose “only motivation for visiting a facility is 14 to test it for ADA compliance” to assert standing. Civ. Rights Educ., 867 F.3d at 1096, 15 1101. Love asserts that he “will return to assess the Store for compliance with disability 16 access laws.” Love Decl. ¶¶ 7–8. Love “had dual motives for his first visit and for his 17 intent to return” to the O’Reilly store. Love Reply (dkt. 34) at 5. Even if Love’s only 18 motivation for visiting O’Reilly was to test it for ADA compliance, “motivation is 19 irrelevant to the question of standing under Title III of the ADA.” Civ. Rights Educ., 867 20 F.3d at 1102. Thus, Love has established Article III standing by sufficiently claiming 21 “tester standing.” Id. at 1101. 22 B. Genuine Disputes of Material Fact 23 A moving party can satisfy his burden of establishing the absence of a genuine issue 24 of material fact by (1) presenting evidence that negates an essential element of the 25 nonmoving party’s case, or (2) demonstrating the nonmoving party failed to establish an 26 3. O’Reilly emphasizes that Love has no specific plan to return to San Mateo, O’Reilly Supp. 27 Opp’n at 3, based on his answers to a deposition question that began with “[A]ssume for a second 1 essential element of the nonmoving party’s case on which the nonmoving party bears the 2 burden of proving at trial. Celotex, 477 U.S. at 322–23. Once Love carries this initial 3 burden, the burden of production shifts to O’Reilly to set forth facts showing a genuine 4 issue of disputed fact. See id. at 330. 5 The Court first addresses whether Love satisfied his initial burden, and then 6 whether O’Reilly set forth facts showing a genuine issue of disputed fact. 7 1. Love Satisfied His Initial Burden 8 O’Reilly maintains that Love has failed to carry his initial burden because he did 9 not establish an O’Reilly policy that is not ADA compliant, nor did he establish that 10 O’Reilly’s practice or procedures is inconsistent with its policy. See O’Reilly Opp’n at 5– 11 6. However, Love submitted declarations showing that an O’Reilly employee declined to 12 accommodate him at the lowered counter and that, on more than one occasion, O’Reilly 13 did not maintain the otherwise ADA-compliant lowered counter in an accessible manner. 14 See Love Decl. ¶¶ 3, 5; see also Taylor Decl. ¶¶ 3, 5–6, Ex. 4. This evidence of O’Reilly’s 15 intermittent application of ADA compliance satisfies Love’s initial burden. See 16 Fortyune v. Am. Multi-Cinema, 364 F.3d 1075, 1082 (9th Cir. 2004) (internal citations 17 omitted). In its supplemental opposition, O’Reilly challenges Love’s contention that 18 O’Reilly does not maintain the counter, pointing to Love’s inability to state exactly what 19 miscellaneous items were on the counter. See O’Reilly Supp. Opp’n at 4–5. As Love 20 points out, it is not clear why recalling the specific merchandise on the lowered counter is 21 relevant. See Love Supp. Reply at 6. 22 Love has therefore satisfied his initial burden, and the Court proceeds to its review 23 of whether O’Reilly produced sufficient evidence showing a genuine issue of material fact. 24 2. There Are Genuine Disputes of Material Fact 25 First, the Court addresses alleged disputes of material fact that are actually 26 questions of law, that are not in dispute, and that are not material. Second, the Court 27 considers Love’s objection to a declaration filed in support of O’Reilly’s opposition. 1 a. Questions of Law, Facts Not in Dispute, and Immaterial 2 Facts 3 Some of O’Reilly’s claimed disputes of material fact are actually questions of law, 4 including (1) whether O’Reilly “needs to modify its polices, practices and procedures [to] 5 comply with the ADA,” and (2) whether O’Reilly discriminated against Love. O’Reilly 6 Opp’n at 7–8; see also Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982) (noting “the 7 vexing nature of the distinction between questions of fact and questions of law”). While 8 they might both hinge on disputed questions of fact (as discussed below), both are 9 questions of law. Accordingly, they do not establish a genuine issue of material fact and 10 are not relevant to the present summary judgment inquiry. 11 Another alleged dispute is not actually in dispute. O’Reilly contends that the sales 12 counter was not too high, and the store has an accessible counter that complies with ADA 13 height requirements. O’Reilly Opp’n at 6. Love does not dispute the existence of a 14 lowered, ADA-compliant counter. Love MSJ at 7 (“There is no dispute that a physically 15 compliant, lowered sales counter existed at the Store on the date of Plaintiff’s visit.”); see 16 also Compl. ¶¶ 10–11. 17 And one claimed dispute is not material to the outcome of the case. O’Reilly argues 18 that the lowered counter is not located in another area of the store. O’Reilly Opp’n at 7 19 (citing Sanabra Decl. ¶ 3). While this fact is in dispute, see Love MSJ at 2 (citing Love 20 Decl. ¶5); Taylor Decl. ¶ 5, it is not material. “A fact is material if it could affect the 21 outcome of the suit under the governing substantive law.” Miller v. Glenn Miller Prods., 22 Inc., 454 F.3d 975, 987 (9th Cir. 2006) (citing Anderson, 477 U.S. at 256). The location of 23 the lowered counter does not impact whether O’Reilly maintained it in a useable manner, 24 nor does it impact whether O’Reilly failed to reasonably modify its policies, practices, or 25 procedures to accommodate Love. See id. 26 b. Love’s Objection to the Sanabria Declaration 27 Many of O’Reilly’s disputed material facts rely on the declaration of O’Reilly’s 1 One paragraph in her declaration contains assertions about the lowered counter’s point of 2 sale terminal functionality; Sanabria explains that she “was not working at the San Mateo 3 Store on June 4, 2019,” and that her allegations are “made on information and belief based 4 upon review of the relevant business records.” Sanabria Decl. ¶ 4. Love objects to this 5 paragraph, arguing that the declaration “fails to authenticate the facts necessary under the 6 ‘business records’ exception to the rule against hearsay.” See Love Objection (dkt. 35) at 7 1–2. However, “the evidence presented at the summary judgment stage does not yet need 8 to be in a form that would be admissible at trial”; rather, O’Reilly must set out facts that it 9 will be able to prove through admissible evidence. See Norse v. City of Santa Cruz, 10 629 F.3d 966, 973 (9th Cir. 2010). 11 Notably, Love’s objection does not argue that Sanabria cannot authenticate the 12 business records. See Love Objection at 2; see also Jimenez v. Allstate Ins. Co., No. CV 13 10-8486 AHM FFM, 2011 WL 65764, at *2 (C.D. Cal. Jan. 7, 2011) (holding that there is 14 no need to provide actual business records on a motion for summary judgment when the 15 defendant’s employee declared she based her knowledge on “her personal review of . . . 16 business records”). The Court need not decide at this stage whether the records themselves 17 will be admissible at trial because the content within them (upon which Sanabria bases her 18 assertions) could nevertheless be admitted into evidence in a variety of ways.4 See 19 Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary judgment stage, 20 we do not focus on the admissibility of the evidence’s form. We instead focus on the 21 admissibility of its contents.”); see also Fed. R. Civ. P. 56(c)(2). 22 Accordingly, the Court denies Love’s objection to the declaration. 23 c. O’Reilly’s Disputed Material Facts 24 The Court now (i) considers O’Reilly’s insufficiently supported disputes of material 25 fact, and (ii) identifies the sufficiently supported, genuine disputes of material facts. 26 27 1 i. Insufficiently Supported Factual Disputes 2 O’Reilly disagrees with Love’s assertions that he requested to use the lowered 3 counter and that the employee refused this assistance at the lowered counter. O’Reilly 4 Opp’n at 6. O’Reilly also challenges Love’s contention that the accessible counter is not 5 maintained in a usable condition. O’Reilly Opp’n at 9. However, O’Reilly does not 6 produce any “specific facts” to give rise to a genuine dispute. See Anderson, 477 U.S. at 7 256; see also Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007) (“Bald 8 assertions that genuine issues of material facts exist are insufficient.”). Instead, O’Reilly 9 points to its policy to “comply with the ADA and to train store team members to ensure 10 they are knowledgeable regarding ADA compliance accessibility.” O’Reilly Opp’n at 6, 9 11 (citing Freeman Decl. (dkt. 28-5) ¶¶ 3–6; Sanabria Decl. ¶2). The Ninth Circuit held in 12 Chapman v. Pier 1 Imports that the mere existence of certain policies did not establish 13 ADA compliance. See 779 F.3d 1001, 1008 (9th Cir. 2015). Rather, Love’s evidence 14 “demonstrates that these policies and procedures were either ineffective” or “honored in 15 the breach.” See id. 16 Similarly, O’Reilly challenges whether Love asked O’Reilly “to modify its policy.” 17 O’Reilly Opp’n at 7. O’Reilly’s original opposition argued that Love’s motion for 18 summary judgment was premature, so O’Reilly was unable to present essential facts to 19 adequately dispute this assertion. O’Reilly Opp’n at 7–8. However, even after the Court 20 permitted discovery, O’Reilly has failed to produce any “specific facts” suggesting a 21 genuine dispute here. See Anderson, 477 U.S. at 256. See generally O’Reilly Supp. 22 Opp’n. 23 ii. Sufficiently Supported Disputes of Material Fact 24 O’Reilly argues that there are genuine disputes of material fact over whether “the 25 alleged ADA violation was a temporary interruption,” whether Love’s requested 26 modification was reasonable, and, to the extent that it implies a practice or policy of 27 refusing service to customers with disabilities, whether “other customers have been helped 1 O’Reilly asserts that the reason its employee did not assist Love at the lowered 2 counter on June 4, 2019 was due to “a temporary malfunction” of the point of sale terminal 3 that made the accessible counter “unavailable.” Id. (citing Sanabria Decl. ¶ 4). In contrast, 4 Love contends that the accessible counter’s unavailability was not a temporary 5 interruption, but due to a policy, practice, or procedure to refuse assistance at the lowered 6 counter and because the counter was not maintained in a usable manner. See, e.g., Love 7 MSJ at 7, 9. Because the ADA “does not prohibit isolated or temporary interruptions in 8 service or access due to maintenance or repairs,” this issue would affect the outcome of the 9 suit and is therefore material. 28 C.F.R. § 36.211(b); see also Anderson, 477 U.S. at 248. 10 And as discussed above, this dispute is genuine because, given the assertions in the 11 Sanabria Declaration, a reasonable jury could return a verdict in O’Reilly’s favor. See 12 Anderson, 477 U.S. at 248. 13 O’Reilly also argues that Love’s requested modification was unreasonable because 14 “it was factually impossible to assist customers at the Store’s accessible counter due to a 15 temporary malfunction.” O’Reilly Opp’n at 8 (citing Sanabria Decl. ¶ 4). Love, on the 16 other hand, asserts that because an accessible counter already existed at the store, “it is 17 reasonable for disabled persons . . . to be assisted at the lowered counter when requested.” 18 Love MSJ at 8. The determination of whether a modification is reasonable “involves a 19 fact-specific, case-by-case inquiry.” Fortyune, 364 F.3d at 1083 (quoting Staron v. 20 McDonald's Corp., 51 F.3d 353, 356 (2d Cir.1995)). Because this factual dispute is 21 germane to the ADA Title III discrimination inquiry, the issue is material and genuine. 22 See Fortyune, 364 F.3d at 1082–84; Anderson, 477 U.S. at 248. 23 Finally, O’Reilly alleges that customers are “regularly assisted at the Store’s 24 accessible counter,” Sanabria Decl. ¶ 3, which arguably contradicts Love’s showing that 25 on two separate occasions customers were not assisted at that counter. See Love Decl. ¶ 5; 26 see also Taylor Decl. ¶ 5. This dispute is likewise material because, if other customers are 27 indeed regularly assisted at the lowered counter, that would undermine Love’s contentions 1 || explicitly ask and that O’Reilly “regularly used the counter to store merchandise and 2 || displays, rather than to assist customers” in an ADA-compliant manner. Love Opp’n 3 || (dkt. 32) at 5; see Anderson, 477 U.S. at 248. The issue is also genuine because a jury 4 || could reasonably return a verdict for O’Reilly given the evidence. See Anderson, 477 U.S. 5 || at 248. 6 || IV. CONCLUSION 7 Because there are genuine issues of material fact, the Court DENIES Love’s motion 8 || for summary judgment. 9 || ISSO ORDERED. 10 || Dated: August 3, 2020 11 CHARLES R. BREYER a 12 United States District Judge 13 14 oO 15 16 2 617 Z 18 19 20 21 22 23 24 25 26 27 28