Opinion
2:04-CV-2002-MCE-KJM.
May 19, 2006
MEMORANDUM AND ORDER
Plaintiff Gypsie Jones ("Plaintiff") filed the instant action against Defendant Dollar Tree Stores, Inc. ("Defendant") alleging that Dollar Tree Store #2041, located at 3615 Northgate Boulevard, Sacramento, California ("Store #2041"), is in violation of California's Unruh Civil Rights Act ("Unruh Act"), Cal. Civil Code §§ 51 et seq. and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. She seeks damages pursuant to the Unruh Act and injunctive relief pursuant to the ADA.
The case is now before the Court on Defendant's Motion for Summary Judgment. For the reasons explained below, Defendant's motion is granted in part and denied in part.
While Defendant does not specifically ask for partial summary judgement, the Court has discretion to adjudicate individual claims when it believes the criteria for summary adjudication are met. See Fed.R.Civ.P. 56(d) (indicating that, on denying a motion for summary judgement on the whole case, the court may determine whether partial summary judgment is appropriate).
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
Plaintiff is a paraplegic who requires the use of a wheelchair for mobility. Plaintiff visited Store #2041 twice in 2004 and claims that, during those visits, she encountered architectural barriers that made it difficult or impossible for her to have full and equal access to the goods and services provided by Defendant. Plaintiff's first visit occurred in the Spring of 2004. Shortly thereafter, Plaintiff sent a letter to the management of Store #2041 describing the barriers she encountered and requested that they be remedied. Upon returning to Store #2041 in the summer of that same year, Plaintiff alleges the barriers she identified on her first visit had not been resolved. Consequently, on September 27, 2004, Plaintiff filed the instant action.In her Complaint, Plaintiff identifies five potential access issues including (1) the lack of an International Symbol of Accessibility ("ISA") on the store's entrance door, (2) the lack of an accessible check stand, (3) the dimensions of the checkout counter, do not match the requirements prescribed by the ADA Accessibility Guidelines ("ADAAG"), (4) the lack of at least one 36 inch wide route through the store, and (5) the lack of an accessible route to the restroom. (Compl. at Ex. A.)
Plaintiff's Complaint contains fifteen additional alleged violations related to the parking lot and a public telephone located outside the store. As indicated above, the parking lot is controlled by Defendant's landlord. The same is true of the public telephone. Because Plaintiff has already settled with Defendant's landlord, these fifteen claims are now moot.
Approximately one year after filing her Complaint, Plaintiff sent her expert, Joe Card ("Card"), to Store #2041 to audit the facility. Card was to confirm the ADA violations allegedly encountered by Plaintiff and to search for additional violations. Although Card's inspection report included more than thirty potential accessibility issues, Plaintiff is pursuing only the following thirteen issues:
Plaintiff has chosen not to pursue the remainder of these potential claims for reasons not disclosed. Accordingly, the Court considers those claims abandoned.
(1) The ISA sticker on the entrance door is mounted at the wrong height;
(2) The pressure required to open the entrance door exceeds the legal limit;
(3) The store's accessible checkstand does not provide a sign mounted above the checkstand that states "This check stand to be open at all times for customers with disabilities;"
(4) One of the store's exit doors is locked and blocked with merchandise;
(5) The automated teller machine (ATM) located at the accessible checkstand is not visible to users;
(6) The signage on the women's restroom door is mounted at the wrong height;
(7) The pressure required to open the door to the women's restroom exceeds the legal limit;
(8) The women's restroom does not contain an ISA on the accessible stall door;
(9) The women's restroom lavatory does not provide at least 29 inches of knee clearance as required by law;
(10) The women's restroom's lavatory's drainpipes are not properly insulated;
(11) The women's restroom's accessible stall has boxes in the required clear floor space;
(12) The women's restroom's accessible stall has shelves mounted at a height which improperly protrudes into the head clearance space of a potential user; and
(13) The toilet paper dispenser and a trash can in the women's restroom's accessible stall improperly protrude into the required clear floor space.
See Card Decl. in Supp. Mot. Summ. J.
Plaintiff's Complaint also alleges the following two violations: (1) failure to maintain at least one 36 inch wide route through the store, and (2) improper dimensions with respect to the checkstand counter. While Plaintiff has alleged these barriers in her Complaint, she makes no further mention of them in her filings with this Court. Accordingly, the Court considers those claims abandoned.
Plaintiff's Complaint also alleges the following two violations: (1) failure to maintain at least one 36 inch wide route through the store, and (2) improper dimensions with respect to the checkstand counter. While Plaintiff has alleged these barriers in her Complaint, she makes no further mention of them in her filings with this Court. Accordingly, the Court considers those claims abandoned.
STANDARD
The Federal Rules of Civil Procedure provide for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Rule 56 also allows a court to grant summary adjudication on part of a claim or defense. See Fed.R.Civ.P. 56(a) ("A party seeking to recover upon a claim . . . may . . . move . . . for a summary judgment in the party's favor upon all or any part thereof."); See also Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).
The standard that applies to a motion for summary adjudication is the same as that which applies to a motion for summary judgment. See Fed.R.Civ.P. 56(a), 56(c); Mora v. ChemTronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. at 323(quoting Rule 56(c)).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
In attempting to establish the existence of this factual dispute, the opposing party must tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way, "before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more that simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586-87.
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
ANALYSIS
The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. mandates that places of public accommodation and commercial facilities be accessible to persons with disabilities. For commercial facilities and places of public accommodation, this mandate is encompassed within Title III of the ADA, 42 U.S.C. §§ 12181 et seq. ("Title III"). Title III's provisions are implemented through regulations promulgated by the Department of Justice which include guidelines for new construction and alterations. See 42 U.S.C. § 12186(a); 28 C.F.R. Part 36 Appendix A. These guidelines are known as the Americans with Disabilities Act Access Guidelines or ADAAG. In addition to these federal enactments, California has promulgated similar rules in its Building Code. See Cal. Code of Regs., tit. 24 (2001). Together these laws form the framework for assuring that disabled persons have equal access and enjoyment of commercial facilities.
It is Plaintiff's contention that Dollar Tree Stores, Inc. has violated the foregoing rules and regulations at Store #2041. Defendant disagrees and, through the present Motion, seeks to have Plaintiff's claims dismissed.
1. Standing
The United States Constitution limits the jurisdiction of federal courts to the resolution of "cases" and "controversies." U.S. Const. Art. III § 2, cl. 1. This limitation is given effect by the constitutional standing requirements, which ensure that the exercise of judicial power is restricted to litigants who can show that they have been adversely affected by the action which they seek to have the court adjudicate. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 473 (1982). To satisfy Article III's standing requirements, a plaintiff must show that: (1) she has suffered an "injury in fact" that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-181 (2000).
The injury in fact prong is generally considered the "principal limitation imposed by Article III." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.C. Cir. 2001) (citations omitted).
In order to determine whether a plaintiff has established the requisite injury in fact, courts look to the facts in existence at the time an action is filed. Friends of the Earth, Inc., 528 U.S. at 170.
In the context of ADA litigation, courts are split over whether a plaintiff can sue for access barriers never encountered or known about prior to filing suit. Some courts have held that to satisfy the injury in fact prong, an ADA plaintiff must either personally encounter the barrier complained of, or have reason to know of the barrier and be deterred from visiting a public accommodation because of that barrier at the time the complaint is filed. Martinez v. Longs Drug Stores, Inc., 2005 WL 2072013, *4 (E.D. Cal.); White v. Divine Investments, Inc., 2005 WL 2491543, *3 (E.D. Cal.). Other courts find that, so long as an ADA plaintiff encounters one access barrier prior to filing suit, the plaintiff has standing to sue for any other violations subsequently discovered. Steger v. Franco, 228 F.3d 889, 893-894 (8th Cir. 2000); Wilson v. Pier 1 Imports, Inc., 412 F.Supp.2d 1130, 1131-1136 (E.D. Cal.). For the reasons below, it is this Court's finding that Plaintiff lacks standing for certain of her claims because she cannot show a "concrete" or "particularized" injury.
The Ninth Circuit has clarified that in order to show a concrete or particularized injury, Plaintiff must show that she is affected in a personal and individual way. Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1137-38 (9th Cir. 2002). Specifically, Plaintiff may seek redress only for those violations which she personally encountered, or which she knew of, or had reason to know of, and which deterred her from visiting Store #2041 at the time her Complaint was filed. Id. at 1136-38. Upon review of the thirteen claims currently pending, the Court finds that only five have any relationship to the violations alleged in Plaintiff's Complaint. In particular, the Court concludes that Plaintiff's standing is limited to the following five claims: (1) the mounting height of the ISA on Store #2041's entrance door; (2) the lack of signage stating "this check stand to be open at all times for customers with disabilities" on the store's accessible checkstand; (3) alleged visibility problems with respect to an automated teller machine (ATM) located at the store's accessible checkstand; (4) the mounting height of signage on the women's restroom door; and (5) the pressure required to open the door to the women's restroom.
Plaintiff's remaining claims are not identified in Plaintiff's Complaint and were only identified upon Mr. Card's inspection of Store #2041 nearly a year after Plaintiff's Complaint was filed. Plaintiff did not personally encounter those barriers nor was she aware of them at the time she filed her Complaint. Under this Court's analysis, she lacks standing to pursue them. Accordingly, those claims are dismissed.
For example, Plaintiff's expert alleges that the pressure required to open Store #2041's entrance door exceeds the legal limit; however, there is nothing in Plaintiff's Complaint to indicate that Plaintiff encountered that barrier. Similarly, Plaintiff's Complaint is devoid of any reference to accessibility issues with respect to the store's exit doors or to the six alleged violations found inside the women's restroom.
2. Entrance Door ISA
Plaintiff alleges that Store #2041 is not in compliance with either federal or state access laws in that the ISA signage at the entrance of the store is improperly mounted. In fact, Card's report shows that the ISA sign is mounted approximately 29 inches from its center point to the finished floor. See Card Decl. in Supp. Mot. Summ. J., p. 6. Plaintiff contends that both the ADAAG section 4.30.6 and CBC section 1117B.5.7 require the ISA sign be mounted at a height of 60 inches from its center point to the finish floor. As support for her argument, Plaintiff points to ADAAG section 4.1.2(7)(c) which provides as follows:
"[e]lements and spaces of accessible facilities which shall be identified by the International Symbol of Accessibility and which shall comply with 4.30.7 are: (c) Accessible entrances when not all are accessible (inaccessible entrances shall have directional signage to indicate the route to the nearest accessible entrance."28 C.F.R. Part 36, App. A. This section clearly requires that, when not all entrances to a commercial facility are accessible, those that are must be identified by an ISA.
Defendants contend that even if the entrance at issue is the only handicap accessible entrance, there is no requirement under either federal or state law that the ISA be mounted sixty inches from the finish floor. The Court disagrees.
ADAAG section 4.30.6 reads
"[w]here permanent identification is provided for rooms and spaces, signs shall be installed on the wall adjacent to the latch outside of the door . . . [m]ounting height shall be 60 inches (1524 mm) above the finish floor to the center line of the sign." Precisely that same language is found in California'sId.
Building Code ("CBC") section 1117B.5.7. See Cal. Code of Regs. tit. 24, § 1117B.5.7 (2001). As is clear from a plain reading of the foregoing provisions, the ADAAG and the CBC expressly require that where permanent signage is provided, it must be mounted at 60 inches from its center to the finish floor.
While Defendant may be correct in asserting that there is no mandate under either federal or state law that this particular entrance factually requires the posting of an ISA, Defendant has failed to meet its burden of establishing either that the entrance at issue is the only accessible entrance or that the signage posted at the entrance is not permanent.
Assuming, as the Court must, that this entrance is not the only accessible entrance and that Defendant's ISA is a permanent sign, there is no question it must be mounted 60 inches above the finish floor. It is undisputed that Store #2041's ISA is mounted at 29 inches, well below the minimum 60 inch requirement for permanent signs. Consequently, summary adjudication on this claim is inappropriate and is, therefore, denied.
3. Accessible Check Stand
Plaintiff also contends that Store #2041 is in violation of both the ADAAG and the CBC because it does not provide a sign mounted above the check stand stating "This check stand to be open at all times for customers with disabilities." California's building code section 1110B.1.3 states:
"accessible checkstands . . . shall be identified by a sign clearly visible to those in wheelchairs . . . The sign shall display the international symbol of accessibility . . . and shall state `This checkstand to be open at all times for customers with disabilities.'"
Plaintiff's expert found that Store #2041's accessible check stand, although providing the required ISA, failed to display the above language. Plaintiff does not dispute this finding. Accordingly, Defendant's Motion for Summary Judgment on this claim is denied.
4. Accessible Check Stand ATM Screen
Plaintiff alleges that Store #2041's ATM screen in the accessible check stand is not visible to the user in violation of the CBC. CBC section 1117B.7.5 provides:
LED, cathode ray, or other screen devices intended to be viewed by the user shall be positioned so they are readily visible to and usable by a person sitting in a wheelchair with approximate eye level of 45 inches (1143 mm), and shall comply with the following requirements:
3. Horizontally mounted screen devices. If mounted at an angle between 60 degrees and 90 degrees tipped away from the viewer, the center line of screens and other screen devices shall be located a maximum of 34 inches (864 mm) above grade.
Contrary to Plaintiff's assertion, the Court finds the card reader in question fully compliant with CBC section 1117B.7.5. First, the CBC merely requires that the card reader be "visible to and usable by a person sitting in a wheelchair." See Cal. Code of Regs. tit. 24, § 1117B.5.7 (2001).
With respect to visibility, the card reader must be positioned at a height of "approximately 45 inches." Id. It is undisputed that the card reader at issue is positioned at a height of 44 inches when attached to the check stand rendering it substantially in compliance with the CBC for purposes of visibility. See Card Decl. in Supp. Mot. Summ. J., p. 9.
With respect to whether the card reader is "usable" by a wheelchair bound patron, the Court finds the card reader at issue is, in fact, usable as required by the CBC. Specifically, CBC section 1117B.7.5, subsection 3, which governs horizontally mounted screen devices, requires the center line of horizontally "mounted" screen devices to be located at a maximum of 34 inches above grade. The card reader at issue is not "mounted" to the check stand. Indeed, Store #2041's card reader is readily removable from its position by wheelchair bound patrons as it is attached by velcro. This mobility permits handicapped patrons to easily utilize the card reader as required by the CBC.
Here, the Court finds the flexibility offered by Defendant's card reader in compliance with the CBC because it is visible and useable by disabled patrons. For the foregoing reasons, Defendant's Motion for Summary Judgment on this claim is granted.
5. Women's Restroom Signage
CBC section 1115B.5 mandates that women's restroom facilities are identified by signage centered on the door and mounted at a height of 60 inches. Cal. Code of Regs. tit. 24, § 1115B.5 (2001). Similarly, the ADAAG 4.30.6 provides that signage designating permanent rooms and spaces shall be installed on the wall adjacent to the latch side of the door at a mounting height of 60" (1525 mm) above the finish floor to the centerline of the sign.
Plaintiff contends that the symbol identifying Store #2041's women's restroom is mounted at 59 3/4 inches rendering it noncompliant with ADA accessibility requirements. Through this claim, Plaintiff is ultimately seeking a judgment from this Court that interior signage posted 1/4" at variance with the strict terms of the ADAAG entitles her to damages and injunctive relief. The Court disagrees.
The ADA, by and through the ADAAG, mandates that places of public accommodation and commercial facilities be accessible to persons with disabilities, which includes dimensional requirements for various elements of the accessible environment, such as signage, water closets, grab bars, lavatories, and placement of emergency alarm notification devices. These guidelines, however, also permit equivalent facilitation. ADAAG § 2.2. Equivalent facilitation applies to all sections of the ADAAG and generally permits alternative technologies or designs to be used to create substantially equivalent or greater access to or usability of facilities. ADAAG § 2.2; see also 56 F.R. 35408, comments on "4.30 Signage" (pagination not available). Pursuant to the doctrine of equivalent facilitation, employing alternatives which provide equal or greater access to disabled patrons does not violate the ADA merely by virtue of the fact those alternatives do not comply with the strict terms of the ADAAGs. Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 2001 U.S. Dist. LEXIS 6660, 28-30 (D. Fla. 2001).
It has been noted that the reason for the 60" mounting height is to provide uniformity of sign location and consistency in Braille location for visually impaired persons. See 56 F.R. 35408, comments on "4.30 Signage" (pagination not available) (stating that original recommendation of a range of 54" to 66" was discarded in favor of a fixed dimension of 60" because that height places the sign at a more comfortable reading distance for users of Braille and raised characters.) In fact, the ADAAG Manual itself recognizes this purpose and recommends that "signs containing pictograms or other non-tactile information . . . should be measured to the centerline of the raised/Braille portion so that it is not too low (or high)." ADAAG Manual p. 106.
Given that the strictures of the 60" height requirement are subject to equivalent facilitation as set forth in the ADAAG section 2.2 and that a 1/4" variation provides at least equivalent access to Plaintiff, her claim must fail.
The Court finds that Store #2041's signage height provides Plaintiff with equivalent facilitation because the 59 3/4" height gives her at least equivalent access to the facilities and is therefore in compliance with the ADA pursuant to the ADAAG section 2.2. Accordingly, Defendant's Motion for Summary Adjudication of this claim is granted.
5. Women's Restroom Door Pressure
Plaintiff alleges that the door to the women's restroom violates the ADA because it requires 12 pounds of pressure to open rather than 5 pounds as required under the ADA. Defendant answers that its restroom facilities are not open to the public and, consequently, the pounds of pressure required to open the door does not pose a barrier to Plaintiff.
In Louie v. Ideal Cleaners, 1999 WL 1269191 (N.D. Cal.), the district court was confronted with exactly the same issue. There, defendants operated a dry cleaning business that provided restroom facilities to employees, but not to the general public. The court held that since the restroom facilities were not made available to customers in general, they did not need to be made available to disabled customers. The Louie court's holding was based, in part, on its interpretation of California Health Safety Code § 19955. That section provides that "[w]hen sanitary facilities are made available for the public, clients or employees . . . they shall be made available for the handicapped." Cal. Health Safety Code § 19955 (2006).
The language of the statute is capable of two different interpretations. Plaintiff interprets the statute to say that if a business provides restroom facilities to employees but not the general public, it nonetheless must provide those facilities to disabled individuals, including disabled members of the general public.
The Louie court correctly rejected this interpretation. As an equal access statute, Health Safety Code section 19955 is intended to ensure that a disabled individual is able to utilize public accommodations to the same extent as would be possible if the individual were not disabled. See Louie, 1999 WL 1269191 at *3; see also Donald v. Café Royale, Inc., 218 Cal.App.3d 168, 182-183 (1990). Consequently, the Louie plaintiff was not denied equal access because no members of the public — disabled or not — were permitted to use the dry cleaner's employee-only restroom. Louie, 1999 WL 1269191 at *3. The fact that section 19955 required the restroom to be made accessible to disabled employees was irrelevant since the plaintiff was not an employee.Id.
Plaintiff argues that the Louie court was incorrect, and offers a 1971 committee analysis from the Assembly Committee on Commerce and Public Utilities as evidence that her interpretation is in fact what the Legislature intended. (Opp. at 7-10, Ex. A:3-4.) The Court is not persuaded by Plaintiff's argument. The analysis proffered by Plaintiff involved legislation predating the current version of section 19955. The version of section 19955 now in effect was enacted over two years later by an entirely different Legislature, a point Plaintiff freely conceded. Consequently, the Court agrees with Louie and holds that section 19955 requires Defendant to provide accessible restrooms for disabled customers only if restrooms are provided for non-disabled customers as well.
Plaintiff next alleges that Store #2041's women's restroom is, in fact, open to the public. Defendant, however, has steadfastly maintained that Store #2041's restrooms have been closed to the public since long before Plaintiff's first visit to the store. The only evidence supporting Plaintiff's contention is her declaration filed in opposition to the present motion. This declaration marks the first time Plaintiff has alleged that she personally encountered barriers inside the women's restroom.
At no point in her declaration does Plaintiff claim that she entered the women's restroom. She merely claims that she "encountered the following barriers on the inside of the Store." (Jones Decl. at 2:10-11). She then lists the alleged barriers identified by her expert. Id.
The Court views Plaintiff's later filed declaration with skepticism. As an initial matter, Plaintiff's Complaint makes no reference to any barriers inside the women's restroom. Rather, she simply claims there was "no accessible route to the restroom." Compl. at Ex. A. More importantly, Plaintiff sent a letter to Defendant after her initial visit to Store #2041 wherein she complained "when I tried to use your rest room [sic] a sign said it was out of order., [sic] so I hurriedly checked out to find another facility." Jones Decl. at Ex. A. It is only now, in opposition to Defendant's assertion that the restrooms are for employee use only, that Plaintiff alleges she encountered barriers therein.
As a general matter, the evidence presented by a party opposing a summary judgement motion is to believed by the Court. However, the opposing party must demonstrate that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, "before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)).
The Court finds that no credible evidence has been produced by Plaintiff that she encountered barriers inside the women's restrooms during her visit to Store #2041. As a result, Defendant's Motion for summary adjudication on this claim is granted.
CONCLUSION
The Court grants Defendant's Motion for Summary Judgment on the following claims: 1) there is no accessible check stand; 2) the signage on the women's restroom door creates an accessibility barrier; and 3) the pressure required to open the women's restroom door creates an accessibility barrier. The Court denies Defendant's Motion for Summary Judgment on the following claims: 1) the ISA signage is improperly mounted on the entrance door; and 2) there is no signage identifying the accessible checkstand.IT IS SO ORDERED.