Aureliano Galvez v. Automobile Club of Southern California et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to the Complaint

C.D. Cal.March 6, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:481579268.1 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal. Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendants, AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, THE AMERICAN AUTOMOBILE ASSOCIATION, INC., and AUTO CLUB SERVICES, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION AURELIANO GALVEZ, Plaintiff, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; THE AMERICAN AUTOMOBILE ASSOCIATION, INC.; AUTO CLUB SERVICES, LLC and DOES 1 through 10, inclusive, Defendants. Case No. 8:16-cv-00887-DOC-KES Hon. David O. Carter DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Hearing Date: April 3, 2017 Hearing Time: 8:30 a.m. Courtroom: 9D Action Filed: May 13, 2016 Trial Date: June 27, 2017 Case 8:16-cv-00887-DOC-KES Document 33 Filed 03/06/17 Page 1 of 3 Page ID #:141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:481579268.1 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 3, 2017 at 8:30 a.m. in Courtroom 9D of the above-entitled Court located at 411 West Fourth Street, Santa Ana, California 92701-4516, Defendants Automobile Club of Southern California (“Auto Club”), The American Automobile Association, Inc., and Auto Club Services, LLC (collectively, “Defendants”) will, and hereby do, move the Court for summary judgment or, in the alternative, summary adjudication on the grounds that there is no genuine issue as to any material fact and that Defendants are entitled to judgment as a matter of law for the following reasons: The undisputed facts show that Defendants are entitled to summary judgment. First, Plaintiff Aureliano Galvez (“Plaintiff”) has failed to establish that Defendants’ policies violate the ADA or that any violation of the ADA has occurred. Second, Plaintiff lacks standing to challenge Auto Club’s ERS policies because he failed to request a modification before bringing suit and that Auto Club refused failed to adduce any evidence that his proposed modification his request. Third, as Plaintiff has failed to propose any modification, he has also necessarily is “reasonable” or “necessary.” Fourth, Plaintiff’s claim is moot due to the policy implemented before Plaintiff brought his lawsuit. Finally, to the extent that Plaintiff’s claims under the California Unruh Act are not dismissed with prejudice, the Court should dismiss them for lack of jurisdiction. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on February 27, 2017. This Motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Statement of Uncontroverted Facts and Conclusions of Law, the Declaration of Nannalee Haywood and attached exhibits, the Declaration of Bradley J. Leimkuhler and attached exhibits, the record and files herein, and such other evidence as may be admitted at the time of the hearing of the motion. Case 8:16-cv-00887-DOC-KES Document 33 Filed 03/06/17 Page 2 of 3 Page ID #:142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- SMRH:481579268.1 DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Dated: March 6, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Gregory F. Hurley GREGORY F. HURLEY Attorneys for Defendants, AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; THE AMERICAN AUTOMOBILE ASSOCIATION, INC.; and AUTO CLUB SERVICES, LLC Case 8:16-cv-00887-DOC-KES Document 33 Filed 03/06/17 Page 3 of 3 Page ID #:143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal. Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendants, AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, THE AMERICAN AUTOMOBILE ASSOCIATION, INC., and AUTO CLUB SERVICES, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION AURELIANO GALVEZ, Plaintiff, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; THE AMERICAN AUTOMOBILE ASSOCIATION, INC.; AUTO CLUB SERVICES, LLC and DOES 1 through 10, inclusive, Defendants. Case No. 8:16-cv-00887-DOC-KES Hon. David O. Carter DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Hearing Date: April 3, 2017 Hearing Time: 8:30 a.m. Courtroom: 9D Action Filed: May 13, 2016 Trial Date: June 27, 2017 Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 1 of 29 Page ID #:144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................. 1 II. FACTUAL BACKGROUND ........................................................................... 2 A. The Alleged August 14, 2015 Incident. .................................................. 2 B. The Alleged January 20, 2016 Incident. ................................................. 3 C. Plaintiff’s January 27, 2016 Call To Auto Club. .................................... 5 D. Auto Club’s Policies For Transporting Disabled Members. .................. 6 III. ARGUMENT .................................................................................................... 8 A. Plaintiff Has Failed To Establish A Violation Of The ADA. ................. 8 B. Plaintiff Did Not Request A Modification To Auto Club’s Policy Before Filing Suit. ................................................................................. 12 C. Plaintiff Has Not Identified Any Proposed Change To Auto Club’s Policy And Has Adduced No Evidence That It Is “Reasonable” And/or “Necessary.” ...................................................... 15 D. Plaintiff’s Claim Is Moot. ..................................................................... 17 IV. TO THE EXTENT THE COURT DOES NOT DISMISS PLAINTIFF’S STATE LAW CLAIMS, IT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION. ........................................ 22 A. Dismissal Of Plaintiff’s Federal Claims Warrants Dismissal Of His State-Law Claims. .......................................................................... 23 B. Plaintiff’s Unruh Act Claim Raises Novel And Complex Issues Of State Law. ........................................................................................ 23 C. Plaintiff’s State-Law Claim Substantially Predominates Over His Federal Claims. ..................................................................................... 24 V. CONCLUSION ............................................................................................... 24 Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 2 of 29 Page ID #:145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES Page(s) Cases Acri v. Varian Assoc’s, Inc. 114 F.3d 999 (9th Cir. 1996) ................................................................................ 23 Alumni Cruises, LLC v. Carnival Corp. 987 F. Supp. 2d 1290 (S.D. Fla. 2013) ................................................. 9, 15, 16, 17 Amir v. St. Louis Univ. 184 F.3d 1017 (8th Cir. 1999) ................................................................................ 9 Angelucci v. Century Supper Club 41 Cal. 4th 160 (2007) ............................................................................................ 9 Carnegie-Mellon Univ. v. Cohill 484 U.S. 343 (1988) ............................................................................................. 23 Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership I 264 F.3d 999 (10th Cir. 2001) .............................................................................. 16 Corbett v. Insomniac Holdings LLC Case No. 2:16-cv-03604-PSG (C.D. Cal. Jan. 19, 2017) ................... 12, 13, 14, 15 Donald v. Café Royale, Inc. 218 Cal.App.3d 168 (1990) .................................................................................... 9 Dorsett v. Southeastern Pennsylvania Trans. Authority 2005 WL 2077252 (E.D. Penn. Aug. 29, 2005) ............................................... 9, 12 Dudley v. Hannaford Bros. Co. 333 F.3d 299 (1st Cir. 2003) .................................................................................. 8 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. 528 U.S. 167 (2000) ............................................................................................. 18 Gasper v. Marie Callender Pie Shops, Inc. 2006 U.S. Dist. LEXIS 96929 .............................................................................. 17 Gathright-Dietrich v. Atlanta Landmarks, Inc. 452 F. 3d 1269 (11th Cir. 2006) ........................................................................... 16 Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 3 of 29 Page ID #:146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Grutman v. The Regents of the University of California 807 F.Supp.2d 861 (N.D. Cal. 2011 ) ................................................................... 23 Gunther v. Lin 144 Cal. App. 4th 223 (2006) ............................................................................... 24 Jankey v. Beach Hut 2005 WL 5517235 (C.D. Cal. 2005) .................................................................... 24 Johnson v. Gambrinus Co./Spoetzl Brewery 116 F.3d 1052 (5th Cir. 1997) .............................................................................. 12 Mannick v. Kaiser Foundation Health Plan 2006 WL 2168877 (N.D. Cal. 2006) .............................................................. 12, 15 Midgett v. Tri-County Met. Transp. Dist. Of Oregon 254 F.3d 846 (9th Cir. 2001) ............................................................................ 9, 11 Molski v. EOS Estate Winery 2005 WL 3952249 (C.D. Cal. 2005) .................................................................... 24 Molski v. Mandarin Touch Rest. 347 F. Supp. 2d 860 (C.D. Cal. 2004) .................................................................. 24 Oliver v. Ralphs Grocery Co. 654 F.3d 903 (9th Cir. 2011) ................................................................................ 23 Pack v. Arkansas Valley Correctional Facility 894 P.2d 34 (Colo. Ct. App. 1995) ......................................................................... 9 PGA Tour, Inc. v. Martin 532 U.S. 661 (2001) ............................................................................................. 15 Pinnock v. Safino Des., Inc. 2007 WL 2462107 (S.D. Cal. 2007) .................................................................... 24 Powell v. McCormack 395 U.S. 486 (1969) ....................................................................................... 17, 18 Salinas v. Edwards Theaters, Inc. Case No. 15-07698-BRO (C.D. Cal. Aug. 24, 2016) ............................... 13, 14, 15 Stan v. Wal-Mart Stores, Inc. 111 F. Supp. 2d 119 (N.D.N.Y. 2000) ........................................................... 10, 11 Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 4 of 29 Page ID #:147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Tanner v. Wal-Mart Stores, Inc. 2000 WL 620425 (D.N.H. Feb. 8, 2000) ............................................................... 9 Thomas v. Branch Banking & Tr. Co. 32 F. Supp. 3d 1266 (N.D. Ga. 2014) .................................................................. 22 Wentzka v. Gellman 991 F.2d 423 (7th Cir. 1993) ................................................................................ 23 White v. Bank of America, N.A. 2016 U.S. Dist. LEXIS 100865 (D.D.C. Aug. 2, 2016) ........................... 19, 20, 21 Statutes 28 U.S.C. § 1367(c) ................................................................................................... 22 28 U.S.C. § 1367(c)(2) .............................................................................................. 24 42 U.S.C. § 12182(a) and (b)(2)(A)(ii) ....................................................................... 9 42 U.S.C. § 12182(b)(2)(A)(ii) .................................................................................. 12 Americans with Disabilities Act (“ADA”) ......................................................... passim California Unruh Act ......................................................................................... 2, 9, 23 Vehicle Code § 23116(c) ........................................................................................... 11 Other Authorities https://www.ada.gov/taman3.html ............................................................................. 10 http://www.gobutterfli.com/#on-demand .................................................................. 22 Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 5 of 29 Page ID #:148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendants AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA (“Auto Club”), THE AMERICAN AUTOMOBILE ASSOCIATION, INC. (“AAA”), and AUTO CLUB SERVICES, LLC (collectively “Defendants”), hereby submit their memorandum of points and authorities in support of their motion for summary judgment or, in the alternative, summary adjudication. I. INTRODUCTION This is the third, nearly identical, lawsuit that Plaintiff Aureliano Galvez’ (“Plaintiff”) counsel, Patricia Barbosa, has filed against Defendants alleging that they treat their physically disabled members in a manner that violates the Americans with Disabilities Act (“ADA”).1 Specifically, Plaintiff contends that the Auto Club fails to provide transportation for their physically disabled members in a full and equal manner. Despite this allegation, Plaintiff failed to propose any reasonable and necessary modification to Auto Club’s policies before filing suit or, even after conducting extensive discovery, identify any improvement mandated by the ADA. Of course, nothing could be further from the truth. Plaintiff’s inflammatory and unsupported allegations are belied by Auto Club’s actual policies – namely providing disabled members with alternative accessible transportation in the form of accessible taxicabs, accessible shuttles and vans, and/or other service as necessary depending upon the circumstances of the event and the needs of the disabled member. Auto Club has also provided to Plaintiff substantial evidence that its policies are being followed and are working. In fact, Auto Club has received praise from some of these disabled members on social media when Auto Club was able to find alternative accessible transportation for them when they most needed it. There 1 Ms. Barbosa had filed two other lawsuits on behalf of Christie Rudder. However, Ms. Barbosa was relieved as counsel for Ms. Rudder on December 1, 2016 after an unexplained conflict of interest arose between Ms. Barbosa and Ms. Rudder following over two years of litigation against Defendants. (See Dkt. No. 113 in Case No. 8:14-cv-00247). Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 6 of 29 Page ID #:149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT is simply no evidence that Plaintiff was ever treated in a discriminatory manner. The undisputed facts show that Defendants are entitled to summary judgment for several, independent reasons. First, Plaintiff has failed to establish that Defendants’ policies violate the ADA or that any violation of the ADA has occurred. Second, Plaintiff lacks standing to challenge Auto Club’s ERS policies because he failed to request a modification before bringing suit and that Auto Club refused his request. Third, as Plaintiff has failed to propose any modification, he has also necessarily failed to adduce any evidence that his proposed modification is “reasonable” or “necessary.” Fourth, Plaintiff’s claim is moot due to the policy implemented before Plaintiff brought his lawsuit. Finally, to the extent that Plaintiff’s claims under the California Unruh Act (“Unruh Act”) are not dismissed with prejudice, the Court should dismiss them for lack of jurisdiction. II. FACTUAL BACKGROUND A. The Alleged August 14, 2015 Incident. Plaintiff premises his lawsuit on two distinct “incidents” wherein he claims Auto Club failed to provide him with accessible transportation. The first of these alleged incidents occurred on August 14, 2015. On August 14, 2015, Plaintiff was travelling southbound on the 710 freeway near Long Beach, California, when his vehicle blew out a tire. [Exh. F at GAL000002]. Plaintiff maneuvered his vehicle to the left-hand side of the freeway, near the fast lane, and contacted the Auto Club for assistance. [Galvez II Tr. at 23:1-18]. Plaintiff advised Auto Club that he had a flat tire and a spare. [Galvez II Tr. at 25:20-25, Exh. F at GAL000002]. Auto Club dispatched one of its independent contractor service providers to provide assistance and elevated the call to “hot” because Plaintiff was in an unsafe location. [Exh. F at GAL000002]. In the meantime, a California Highway Patrol (“CHP”) officer arrived on the scene. [Galvez I Tr. at 47:18-48:20]. The CHP officer shut down all traffic on the 710 freeway so that Plaintiff could maneuver his vehicle to the other side of the Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 7 of 29 Page ID #:150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT freeway. [Id. at 49:15-19, 50:6-21]. Once the independent service provider arrived, he attempted to change the spare tire on Plaintiff’s vehicle. [Galvez II Tr. 32:14- 34:5]. However, for unknown reasons, the spare tire in Plaintiff’s vehicle was unable to be used. [Id.]. The independent contractor service provider then sent a second vehicle, a flatbed tow truck, to assist Plaintiff as he remained in an unsafe location. [Galvez I Tr. 48:21-49:1, 50:22-51:9]. Plaintiff then asked the tow truck driver to tow him in his vehicle on the flatbed tow truck to a nearby tire shop. [Galvez II Tr. 27:20- 28:10, 29:4-30:5]. Auto Club had no further contact, on August 14, 2015, with Plaintiff after his initial call for roadside assistance. [Galvez II Tr. 30:11-32:3, Exh. F at GAL 000002]. Plaintiff then obtained a replacement tire at the tire shop. [Galvez I Tr. 58:21-59:15]. Plaintiff did not contact the Auto Club regarding the service until January 2016. [Exh. F at GAL000003-4]. B. The Alleged January 20, 2016 Incident. On January 20, 2016, Plaintiff again contacted Auto Club for assistance when his vehicle would not start when he was at the unemployment office located at 54th and Crenshaw in Los Angeles. [Exh. F at GAL00005]. The timeline is as follows:  4:51 p.m. – Plaintiff contacted Auto Club for assistance. Plaintiff informed Auto Club that his car is out of gasoline and will not start. Auto Club dispatched one of its independent service providers to provide assistance. [Exh. F at GAL00005-6, Exh. 7 at 1-2].  5:19 p.m. – The independent contractor service provider provided fuel to Plaintiff. [Id. at GAL00006].  6:51 p.m. – Plaintiff’s vehicle still does not start. Plaintiff directly contacted the independent contractor service provider, and not Auto Club, for additional assistance. [Id. at GAL00006]. The independent contractor service provider sent out another driver to assist Plaintiff, as a courtesy, to try and jump start the car. [Id.] Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 8 of 29 Page ID #:151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT  7:16 p.m. – Plaintiff contacted Auto Club and claimed that the driver flooded his carburetor by pouring gas in it. Therefore, Plaintiff stated that he needed a tow. [Id.] Auto Club informed Plaintiff that he had reached the maximum number of service calls per year on his membership and, therefore, would incur a $60 service charge. [Exh. F at GAL00009, Exh. 7 at 3-4].  7:22 p.m. – Plaintiff’s mother, and Plaintiff, contacted Auto Club to request a tow. To avoid the service charge, Plaintiff and his mother informed Auto Club that his mother was present with him, even though she was not. [Exh. F at GAL000012; Exh. G (audio file), Exh. 7 at 6-7, Galvez I Tr. at 92:9-22].2 Auto Club initiated the process of finding a tow truck to accommodate Plaintiff. [Exh. F at GAL000012].  7:50 p.m. – Auto Club contacted Plaintiff’s mother (because the tow was now under her membership) to provide an update on the tow and determine the best way to get Plaintiff home. [Exh. F at GAL000012, Exh. 7 at 17-18]. Plaintiff answered the phone and falsely informed Auto Club that his mother was in the restroom. [Exh. G (audio file), Exh. 7 at 17]. The following exchange then took place: Auto Club: Okay, then it says that you need a wheelchair accessible. Is that correct? Plaintiff: Correct. It’s you know. Right now I just want to get the car home. I’m willing to even take the bus. That’s how I feel right now. Auto Club: Oh, okay. No we’re going to try and see if we can find. . . ‘cause the original station who runs that area, unfortunately they do not have. . . 2 This appears to be a routine arrangement between Plaintiff and his mother so that he can avoid service charges for using Auto Club’s roadside services. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 9 of 29 Page ID #:152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiff: Okay, you know I’ll tell you what. Just get the tow truck over here. My buddy. . . I’m going to have my buddy come get me. Auto Club: Are you sure? Plaintiff: Yea, because they’re going to close this parking lot on me. [Exh. G (audio file), Exh. 7 at page 18; see also Exh. F at GAL000012-13].  8:32 p.m. – The independent contractor service provider arrived to tow Plaintiff’s vehicle. The independent contractor service provider informed Auto Club that Plaintiff is in a safe location with a security guard and that Plaintiff told him to go ahead and leave while he waited for his friend to pick him up. [Exh. F at GAL000013, Exh. G (audio file), Exh. 7 at 24-25].  Shortly after 8:32 p.m. – Plaintiff’s friend, Chris Becerra,3 picked Plaintiff up from the unemployment office. [Galvez I at 98:7-14]. There is no evidence that Auto Club was not planning on providing Plaintiff with alternative accessible transportation in accordance with its policies, as discussed in section II(D) below. Plaintiff actually interrupted the Auto Club representative to inform her that he had a ride home and, therefore, alternative transportation was unnecessary.4 There is simply no evidence that Plaintiff was “denied access” to Auto Club’s services. C. Plaintiff’s January 27, 2016 Call To Auto Club. Approximately a week after Plaintiff’s January 20, 2016 service call, Plaintiff contacted Auto Club again and asked to speak with a supervisor. [Exh. F at 3 Plaintiff originally identified him as Chris Lozano but has since clarified his name. 4 Many Auto Club members, whether they are disabled or not, choose to obtain transportation from friends or family rather than ride with the tow truck driver to the location where their vehicle is towed. [Haywood Decl., ¶ 7]. Plaintiff’s request was not unusual. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 10 of 29 Page ID #:153 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT GAL00004, Exh. G (audio file), Exh. 7 at 28-42]. During this call, Plaintiff primarily complained about his August 2015 experience, while leaving out numerous important details, and asked to have his service charge removed from his membership. [Id.]. Plaintiff also asked for information about Auto Club’s policies for transporting disabled members, but did not request that Auto Club make any changes to its policies. [Galvez II Tr. at 95:2-11]. A few days later, Auto Club sent Plaintiff a letter apologizing for the service he received in August 2015 and, as a customer service gesture, removed the August 2015 service call from Plaintiff’s membership (so he could receive an additional service call at no charge). [Exh. 8 at PL00001]. Auto Club did not refuse to modify its policies in response to Plaintiff’s call. [Id., Galvez II Tr. 107:15-19]. Notwithstanding the above, Plaintiff shortly thereafter filed this lawsuit falsely accusing Auto Club of not following their policies and forcing him to find alternative transportation home.5 D. Auto Club’s Policies For Transporting Disabled Members. Auto Club takes very seriously its responsibility to serve its members with disabilities in a safe, full and equal manner. One of the benefits that Auto Club provides is emergency roadside assistance services (“ERS”). ERS includes a towing benefit. Under this towing benefit, when a member’s vehicle cannot be started or safely driven due to a breakdown, accident, or other covered vehicle disablement, Auto Club will arrange for an independent service provider to tow the vehicle back to a repair facility. This towing benefit is provided to all members of Auto Club. [Undisputed Material Fact (“UMF”) 1]. Auto Club services over six (6) million calls for emergency roadside assistance each year. [UMF 2]. 5 Plaintiff’s complaint omits that his friend picked him up who then drove him to a bus station approximately 5 miles away. [Complaint ¶¶ 26-27, Galvez I at 101:1-9]. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 11 of 29 Page ID #:154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT In Southern California, Auto Club does not own or operate its own fleet of tow trucks. [UMF 3]. Instead, Auto Club contracts with independent contractor service providers who own or operate tow trucks by and through their own employees or “technicians.” [UMF 4]. When a vehicle is towed, Auto Club permits the independent contractor service providers to allow members to ride in the tow truck cab, if desired by the member, to the tow destination of the vehicle. [UMF 5]. For Auto Club’s members who require the use of wheelchairs or other mobility-assistive device, or who are unable or unwilling to ride in the tow truck cab, Auto Club works with these members to serve them in a reasonable and safe manner as desired or requested by the member and depending upon the circumstances of their tow. [UMF 6]. If a member is unwilling or unable to ride in the tow truck cab but wishes to obtain transportation to the location of their vehicle, Auto Club policy is to work with the member to determine a reasonable method of transportation. That includes determining whether the member wishes to be picked up by friends or family members, has another form of available accessible transportation, or requires Auto Club to arrange for accessible transportation. [UMF 7]. If the member wishes for Auto Club to arrange for accessible transportation, Auto Club will contact a taxi or other transportation service on behalf of the member and cover the cost of the taxi or transportation service at no charge to the member. Auto Club will pay for the taxi or transportation service to the vehicle’s tow destination. [UMF 8]. In addition, Auto Club instructs its service representatives to alert supervisors of all calls involving members with disabilities to ensure proper handling. [UMF 9]. In the difficult or dangerous situation that a disabled member is unable to leave their vehicle, such as on a freeway, Auto Club permits the independent contractor service technician to make the judgment call to transport members in their vehicles a brief distance to a safe location. [UMF 10]. It is dangerous for persons in wheelchairs to transfer on the side of the freeway to a different vehicle and, for that reason, taxis and other vehicles refuse to pick up Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 12 of 29 Page ID #:155 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT members on the freeway. [UMF 11]. Auto Club has prepared training materials to ensure that its service representatives and dispatchers are aware of Auto Club’s policies and has required all relevant employees to undergo the training – in addition to the training they received at the time of hire. [UMF 12]. In keeping with its commitment to improving the experience for all of its members, Auto Club continues to update and improve a list of taxi companies that can service members with disabilities and looks for additional resources to service these important calls. [UMF 13]. To that end, Auto Club has developed relationships with companies that provide accessible transportation to persons with disabilities, including Secure Transportation and Butterfli. [UMF 14]. Auto Club’s policies have not substantively changed since Plaintiff filed this lawsuit in May 2016. As discussed below, Auto Club has located and arranged accessible transportation for numerous other members who have disabilities in accordance with its policies, both before and after Plaintiff brought his lawsuit. [UMF 15]. Some of these members have even taken to social media praising Auto Club for its efforts. [UMF 16]. All of this evidence demonstrates that Plaintiff’s allegations that Auto Club mistreats or discriminates against its disabled members are simply false. III. ARGUMENT A. Plaintiff Has Failed To Establish A Violation Of The ADA. In order to prove a violation of the ADA, Plaintiff must establish all of the following: (1) Plaintiff has a disability; (2) that Defendants are private entities that own, lease, or operate a place of public accommodation; (3) that Plaintiff came to the place of public accommodation with the intent of utilizing its services in the manner in which those services are typically offered to the public; (4) that Defendants had a discriminatory policy or practice in effect; (5) that Plaintiff requested a reasonable modification in that policy which, if granted, would have Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 13 of 29 Page ID #:156 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT afforded h[er] access to the desired goods/services; (6) that the requested modification was necessary to afford that access; and (7) that Defendants nonetheless refused to modify the policy or practice. Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307-08 (1st Cir. 2003); Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999); see also Angelucci v. Century Supper Club, 41 Cal. 4th 160 (2007) (Unruh Act); 42 U.S.C. § 12182(a) and (b)(2)(A)(ii). In addition, in order to be entitled to injunctive relief, a plaintiff “must make a showing that [s]he faces a real or immediate threat of substantial or irreparable injury.” Midgett v. Tri-County Met. Transp. Dist. Of Oregon, 254 F.3d 846, 850 (9th Cir. 2001); Donald v. Café Royale, Inc., 218 Cal.App.3d 168, 184 (1990) (Unruh Act); see also Dorsett v. Southeastern Pennsylvania Trans. Authority, 2005 WL 2077252, *5 (E.D. Penn. Aug. 29, 2005) (“Occasional problems, without more, do not constitute a violation of the ADA.”). Furthermore, in order to be entitled to statutory damages under the State of California Unruh Act, a plaintiff “must take the additional step of establishing [s]he was denied equal access on a particular occasion.” Donald, 218 Cal. App.3d at 183. Plaintiff has utterly failed to establish a violation of the ADA. “Title III’s purpose is to ensure that people with disabilities have access to public facilities, not to provide a remedy for specific acts of negligence.” Tanner v. Wal-Mart Stores, Inc., 2000 WL 620425, *6 (D.N.H. Feb. 8, 2000) (no viable ADA claim where retail store did not maintain handicapped parking area free of shopping carts, snow and ice on a particular occasion); Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34, 39 (Colo. Ct. App. 1995) (“an isolated instance of negligence regarding the failure to maintain access routes, without more, is not covered by the ADA.”); see also Alumni Cruises, LLC v. Carnival Corp., 987 F. Supp. 2d 1290, 1312-13 (S.D. Fla. 2013) (“AOTS's complaints about the speed of some servers' service does not attack a policy or procedure of Carnival and does not suggest a particular modification to Carnival's serving process. Instead, it simply bemoans the Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 14 of 29 Page ID #:157 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT individual service of some servers. In the absence of a specific proposal for addressing the speed of service of some servers, AOTS has not met its burden to identify a reasonable modification.”). Simply put, the ADA cannot regulate a particular individual’s conduct. E.g., Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 125-27 (N.D.N.Y. 2000) (“Unfortunately, legislation such as the ADA cannot regulate individuals’ conduct so as to ensure that they will never be rude or insensitive to persons with disabilities. Such a goal would be impossible to attain.”). In this case, Auto Club’s policy of providing alternative accessible transportation to it members with disabilities, at Auto Club’s expense, satisfies the ADA. This kind of comparable service, in lieu of providing a ride for members inside the cab of the tow truck, is reasonably equivalent. The Department of Justice’s technical assistance manual endorses such “alternative methods” as satisfying the ADA. For example: ILLUSTRATION 3: A self-service gas station determines that it is not readily achievable to redesign gas pumps to enable people with disabilities to use them; therefore, the gas station is not required to make physical modifications to the gas pumps. However, the gas station is required to provide its services to individuals with disabilities through any readily achievable alternative method, such as providing refueling service upon request to an individual with a disability.6 § 4.5100. See also Illustration 2 (curbside service sufficient where it is not readily achievable to install an accessible entrance). Therefore, Auto Club’s policy satisfies the ADA. Moreover, Auto Club’s policy of permitting independent service technicians to tow members inside their vehicles a limited distance in emergency situations – such as when a member is stranded on the side of the freeway – is also appropriate under the 6 The technical assistance manual is available at: https://www.ada.gov/taman3.html. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 15 of 29 Page ID #:158 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ADA.7 This policy has been endorsed by the CHP and is permissible under California law. See Vehicle Code § 23116(c), [UMF 17]. Plaintiff has failed to establish an ADA claim. In addition, there is no evidence that Auto Club handled the calls in a discriminatory manner. During the August 2015 incident, Plaintiff informed Auto Club that he had experienced a flat tire and had a spare. [UMF 18-19]. If the spare tire would have been usable, there would have been no need for Plaintiff to be towed. In addition, the CHP was present and Plaintiff asked the tow truck driver to tow him off of the freeway to a tire store and did not contact Auto Club again. [UMF 20, 21, 22]. The tow truck driver was an independent contractor service technician who is not employed by Auto Club. [UMF 4]. To the extent the tow truck driver decided, in conjunction with Plaintiff’s instructions, to disregard Auto Club’s recommended safety policies, Plaintiff’s complaint lies with the towing company. Further, during the January 20, 2016 incident, Plaintiff expressly informed Auto Club’s representative that he had a ride home. [UMF 23-24]. The audio tape shows that (1) Plaintiff interrupted Auto Club’s representative and, (2) Auto Club’s representative confirmed that Plaintiff did not need alternative transportation. [UMF 23-24]. To the extent Plaintiff believes that his service could have been handled better on a given occasion or was handled in a manner inconsistent with Auto Club’s policy, that is simply not actionable under the ADA. Midgett v. Tri-County Met. Transp. Dist. Of Oregon, 254 F.3d 846, 850 (9th Cir. 2001) (“occasional problems do not, without more, establish a violation of the ADA.”); Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 125-27 (N.D.N.Y. 2000) (“[L]egislation such as the ADA cannot regulate individuals’ conduct so as to ensure that they will never be rude or insensitive to persons with disabilities. Such a goal would be impossible to attain. 7 To the extent Plaintiff believes that his tow was not warranted under the circumstances or that he was towed inappropriately, Plaintiff’s complaint lies with the independent contractor technician that provided the service – not Auto Club. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 16 of 29 Page ID #:159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT For this reason, Defendants cannot guarantee than an individual employee will not act inappropriately on a particular instance.”); Dorsett v. Southeastern Penn. Transp. Auth., 2005 WL 2077252 (E.D. Penn. Aug. 28, 2005). B. Plaintiff Did Not Request A Modification To Auto Club’s Policy Before Filing Suit. Plaintiff’s claims fail for the additional reason that he failed to request a reasonable modification to Auto Club’s policy. Plaintiff’s complaint specifically demands that the Court order Auto Club to “modify their policies” as to his request for injunctive relief. (See Prayer at ¶ 1(a)). The statutory text of the ADA defines discrimination, in the context of a Title III policy case, to be: “A failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). In order to obtain injunctive relief under the ADA, an ADA plaintiff bears the burden of proving that he requested a modification to Defendants’ policy, that Defendants’ refused, and that the request was reasonable and necessary. See Mannick v. Kaiser Foundation Health Plan, 2006 WL 2168877, at *12 (N.D. Cal. 2006) (“Johnson held that the plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable. . . Plaintiff did not meet his burden because he did not show that he requested a transfer as a reasonable modification, and also because he did not provide evidence showing that a transfer was a reasonable modification.”); Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997); Corbett v. Insomniac Holdings Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 17 of 29 Page ID #:160 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT LLC, Case No. 2:16-cv-03604-PSG, *6-7 (C.D. Cal. Jan. 19, 2017) (“The ADA plaintiff must make a request for accommodation before filing suit, and if denied, must show that the request was reasonable and necessary.”) (emphasis added) (Leimkuhler Decl., Exh. 3); Salinas v. Edwards Theaters, Inc., Case No. 15-07698- BRO *15-16 (C.D. Cal. Aug. 24, 2016) (“Plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable.”) (Leimkuhler Decl., Exh. 4). The Salinas case is illustrative. In Salinas, plaintiff sued the defendant movie theater for failing to serve him at the lowered concession counter at the theater. Plaintiff’s central allegation was that the lowered counter was not open at the time and the cashier refused to assist him at the lowered counter. Id. at *2. The parties did not dispute that the movie theater had a lowered concession counter in place at the time the plaintiff patronized the theatre. Id. at *14. At deposition, the plaintiff admitted that he did not ask the movie theater to change its policy to, for example, have the lowered counter open at all times – only that he “brought it up as an issue” and explained how it affected him.8 Id. at *14-16. The plaintiff also failed to contact defendant again before bringing his lawsuit. Id. Therefore, the Court held: “Considering that Defendant has offered admissible, sworn testimony reflecting Plaintiff’s admission that he did not ask Defendant to change its policy, no reasonable jury would return a verdict for Plaintiff on this issue. Because Plaintiff failed to request that Defendant change its policy, this Court finds that the Plaintiff failed to establish a prima facie case of discrimination under the ADA.” Id. at *15-16. Therefore, the Court granted summary judgment to defendant. Similarly, in Corbett, the plaintiff brought suit against defendant music 8 The defendant theater disputed plaintiff’s claim that the lowered counter was not always available for its disabled customers. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 18 of 29 Page ID #:161 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT production company arguing that its policy of prohibiting over-the-counter medication and requiring patrons to disclose prescription medications before being allowed entry into the music festival violated the ADA. Id. at *1-2. Among other things, the defendant argued that plaintiff had failed to request a reasonable accommodation from defendant before bringing his lawsuit. Id. at *3. Instead, plaintiff merely reviewed defendant’s policy, chose not to attend the music festival, and sued the music festival for discrimination under the ADA. Id. at *5-6. The Court found that plaintiff’s claim would not survive summary judgment because plaintiff had failed to request an accommodation for his medications and/or disability before bringing suit. Id. at *6. The Court then granted defendant summary judgment. Id. at *7. The rule announced in these cases make sense. As discussed above, the statutory framework of the ADA assigns liability to public accommodations only where an entity refuses to modify its policy after a request to do so. This explicitly provides defendants with the opportunity to cure or modify their policy before the plaintiff can sue. This encourages resolution of claims before a lawsuit is brought and reduces the expenditure of judicial resources. Here, the undisputed evidence is that Plaintiff never asked Auto Club to modify its policies before he brought his lawsuit. During Plaintiff’s deposition, as in Salinas, Plaintiff conceded that he did not ask Auto Club to change its policies: Q: Now, when you called the Auto Club service operator, did you ask them to, you know, change their policy in any way? A: I don’t believe I asked them to change his policy. My biggest thing was trying to figure out what their policies were. I don’t – I don’t believe I asked him to change it. Q: So it was more of an informational call? A: Correct, well, informational call and a complaint about the two issues that happened. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 19 of 29 Page ID #:162 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT …. Q: So you don’t remember if Auto Club refused to modify their policy? A: No. He was very gracious and apologetic for the situation that happened and that he was going to look into the matter. [UMF 26, 27, 28]. Moreover, Plaintiff agreed to be towed in his vehicle on August 14, 2015. [UMF 21]. In addition, on January 20, 2016, Plaintiff informed Auto Club that he had a ride home before Auto Club could look for alternative accessible transportation. [UMF 24, 25]. Therefore, Plaintiff’s claim fails as a matter of law because he failed to request a modification before bringing his lawsuit. C. Plaintiff Has Not Identified Any Proposed Change To Auto Club’s Policy And Has Adduced No Evidence That It Is “Reasonable” And/or “Necessary.” To determine whether Defendants’ policies discriminate within the meaning of the ADA against people with disabilities, the Supreme Court has indicated that the Court must evaluate Plaintiff’s requests for proposed modifications by undertaking three inquiries: (1) whether the requested modification is reasonable, (2) whether it is necessary for the disabled person, and (3) whether it would fundamentally alter the nature of the service or accommodation at issue. PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n. 28 (2001); see also Alumni Cruises, LLC v. Carnival Corp., 987 F. Supp. 2d 1290, 1304 (S.D. Fla. 2013); Mannick, 2006 WL 2168877, at *12; Salinas, Case No. 15-07698-BRO *15-16, Corbett, Case No. 2:16- cv-03604-PSG, at *6-7. The analysis of whether a proposed policy modification is “reasonable” is analogous to the “readily achievable” barrier removal analysis in an architectural Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 20 of 29 Page ID #:163 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT barrier case.9 Alumni Cruises, 987 F. Supp. 2d at 1304-05 (“Subsection (iv) is analogous to subsection (ii) in that both sections require reasonable modifications to remedy discrimination, unless the proposed modifications are so burdensome that they satisfy the standard set forth in the respective sections.”). The Court explained that, for a plaintiff to meet its initial burden, “a plaintiff must provide enough evidence to allow a defendant to evaluate the proposed modification, the difficulty of accomplishing it, the cost of implementation, and the effect of the proposed modification on the economic operation of the entity.” Id. at 1305. The analysis undertaken in the Alumni Cruises case is apt – the Court goes through each requested modification and evaluates whether Plaintiff has presented evidence sufficient to show their proposed modifications are reasonable “in the run of cases.” Here, Plaintiff has yet to even identify the modification that he would like Defendants to make. In discovery, Auto Club asked Plaintiff to identify the specific injunctive relief he wants. Plaintiff responded: “Plaintiff does not have sufficient information to make a determination of the specific number of services to be modified, the number of accessible tow trucks, taxis, or rental cars, or other possible solutions to the lack of accessible transportation for disabled members.” [UMF 29]. Further, Plaintiff has conceded that Auto Club’s policy of providing alternative accessible transportation would accommodate him. [UMF 30]. Plaintiff identifies no alternative and has adduced no evidence that any other potential alternative is “reasonable.” [UMF 31, 32]. Plaintiff has produced no 9 In an ADA architectural barrier case subject to the readily achievable standard (i.e. easily accomplishable without much difficulty or expense), plaintiffs are required to put forth an initial proposal for removal of the barrier, which the defendant can then rebut. E.g., Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership I, 264 F.3d 999 (10th Cir. 2001); Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F. 3d 1269, 1273-75 (11th Cir. 2006). Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 21 of 29 Page ID #:164 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT evidence on the difficulty of accomplishing his proposed modification (as he has proposed nothing), the cost of any potential implementation, and/or the effect of the proposed modification on the economic operation of the Auto Club. Alumni Cruises, 987 F. Supp. 2d at 1305. Indeed, Plaintiff would have Defendants and the Court speculate as to what that might be. As a result, Plaintiff has not met his burden of identifying a proposed modification and adducing evidence that would support his claim that his proposed modification was reasonable. The Alumni Cruises court granted summary judgment to Defendant where plaintiffs failed to identify a precise proposed modification. For example, one of plaintiff’s requests was for a properly trained staff member to accompany developmentally disabled persons upon request on shore excursions. At deposition, the plaintiff’s witness conceded that it was not reasonable to require a staff member to accompany every person with a developmental disability and further conceded he could not identify a precise proposed modification. Id. at 1315. Therefore, the Court granted defendant summary judgment on that claim. See also id. at 1312-13 (“In the absence of a specific proposal for addressing the speed of service of some servers, AOTS has not met its burden to identify a reasonable modification.”). Put simply, Plaintiff has utterly failed to meet his burden to identify any reasonable modification and, as a necessary corollary, has failed to adduce any evidence that such modification was “reasonable” or “necessary.” [UMF 29-33]. D. Plaintiff’s Claim Is Moot. It is well-established law that a defendant’s remedial efforts will render a plaintiff’s ADA access claim for injunctive relief moot. See Powell v. McCormack, 395 U.S. 486, 496 (1969) (holding that “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome”); see also Gasper v. Marie Callender Pie Shops, Inc., 2006 U.S. Dist. LEXIS 96929, at *4 (holding that “if no ADA violations exist at the time the court is asked to Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 22 of 29 Page ID #:165 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT provide injunctive relief, the ADA claim is moot because there is no basis for relief and there is nothing for the court to order the facility to change”). Since before Plaintiff’s alleged incident or his lawsuit, Auto Club has maintained a roadside service policy, which includes procedures arranging for complimentary alternative transportation for disabled members. [UMF 7, 8]. As a result, Auto Club’s roadside assistance policy renders Plaintiff’s claim moot because he has no “live” controversy that the court can resolve. Powell, 395 U.S. at 496. There is nothing Plaintiff can point to in the record nor can Plaintiff adduce any facts to show that Auto Club will revert to any sort of discriminatory policy. The Supreme Court has held that “a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203 (1968)). This burden is usually met by making changes that are permanent in nature and that foreclose a reasonable chance of recurrence of the challenged conduct. Id. Of critical importance to this case is that Auto Club’s policies are permanent and there is no reasonable expectation that Auto Club will revert to any sort of discriminatory policy. Quite the opposite, Auto Club desires to be a good corporate citizen and provide excellent customer service to its members in conjunction with its mission of increasing its membership and retaining all members regardless of their physical abilities. Further, it is in Auto Club’s best interest to create and maintain an ADA compliant roadside service policy in order to avoid potential exposure to liability and to serve its disabled members in a full and equal manner. The case of Tandy v. City of Wichita is illustrative. 380 F.3d 1277 (10th Cir. 2004). In Tandy, disabled passengers brought suit against the City of Wichita alleging that the city’s fixed-route bus system was intentionally inaccessible and unusable by people with disabilities. Id. at 1280. In particular, the defendant had a Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 23 of 29 Page ID #:166 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT “driver-discretion policy” where bus drivers were supposed to inform riders that, should they board an accessible bus on an inaccessible route, they may not be able to secure a ride back from their destination on the inaccessible route. Id. at 1283. The bus drivers then had the discretion to deploy wheelchair lifts only to passengers who, in the bus driver’s judgment, understood that they might be unable to secure a ride back. Id. However, after being sued by a class of disabled persons, the City of Wichita “trained its bus drivers to call out stops at major intersections, to operate lifts, to tie down wheelchairs, and to call for alternative transportation in the event of lift failure on accessible routes.” Id. The City of Wichita also disciplined bus drivers who failed to follow these instructions. Id. at 1283. The Court held that the portion of the plaintiffs’ claims that were based on being denied a ride because of the driver-discretion policy were moot. Id. at 1291. In particular, the Court was convinced by evidence establishing that both the policy of designating routes as inaccessible and its driver-discretion policy had been discontinued in addition to a lack of evidence in the record suggesting any intent to resume the discontinued policies if the case were dismissed as moot. Id. Similarly, the case of White v. Bank of America, N.A., 2016 U.S. Dist. LEXIS 100865 (D.D.C. Aug. 2, 2016) is instructive. In White, a deaf applicant brought suit under the ADA against Bank of America to challenge the bank’s alleged policy prohibiting its employees from conducting transactions made through third-party vendors, including relay services, for security reasons. Id. at *7. The bank changed its policy so they could accept “TDD” calls about two months before the plaintiff filed her lawsuit. Id. The bank defended the plaintiff’s lawsuit on mootness grounds. The Court agreed that the change in policy made the controversy moot. First, the Court rejected plaintiff’s argument that the controversy was not moot because defendant could change its policy back at any time and that it would not reinstitute the challenged policy. Id. at *16-17. The Court observed that there Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 24 of 29 Page ID #:167 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was no allegation or evidence that there was a “reasonable expectation that [the bank] will reinstitute the former Fraud Department guideline.” Id. Second, the Court adopted the D.C. Circuit’s analysis that “the mere power to reenact a challenged [policy] is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence that the challenged [policy] will likely be reenacted.” Id. at *17. The White court likewise found that the plaintiff had adduced no evidence that the bank was likely to revert to the former challenged guideline. Third, the Court found that, in the absence of any “evidence that the guideline will ever be reintroduced,” any injunction or declaratory judgment would constitute an advisory opinion. Id. at *17-18. As in Tandy and White, Plaintiff’s claim for injunctive relief is moot. Here, Auto Club has provided all of its relevant employees with training materials outlining procedures for serving members that require accessible roadside assistance. [UMF 12]. Operators are to ask whether there are (1) any safety concerns that the Auto Club should be aware of and (2) whether the member or their passenger needs an accessible mode of transportation. [Id.]. If transportation is needed, then the operator is to ask the following questions: (1) whether there is someone present who can assist the member or their passenger to board a tow truck; (2) whether a friend or family member is available to meet the member and provide assistance; or (3) whether the member would like Auto Club to call a taxicab or find other transportation at no extra charge. [Id.]. To ensure Auto Club can serve its members in compliance with its policy, Auto Club’s operators have a growing list of taxicab companies that they can contact on behalf of the member should accessible transportation be required. [UMF 13]. In addition, Auto Club has developed relationships with companies that provide accessible transportation, including Secure Transportation and Butterfli, to streamline the provision of accessible transportation services to its members. [UMF 14]. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 25 of 29 Page ID #:168 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT In addition, Auto Club has provided to Plaintiff numerous examples of where it has followed its policies and arranged for alternative transportation for their disabled members – from both before and after Plaintiff filed his lawsuit. A brief description of some of these events is below: On October 3, 2014, a member with a quadriplegic daughter was provided complimentary transportation on a WellNet Medi-Van. [UMF 15] (Exh. H at AUTO000297). The member was concerned about his daughter being exposed to heat by waiting outside for too long. Id. The WellNet Medi-Van reached the member’s location within 10-15 minutes. Id. The member was “very happy” with the service Auto Club provided. Id. On April 21, 2016, Auto Club handled a call with an elderly member who was having trouble with his vehicle’s transmission. [UMF 15] (Exh. H at AUTO000270). The member needed accessible transportation because he was disabled. Id. Making the situation more complicated, the member unfortunately had a bathroom accident while in his vehicle. Id. Auto Club called a taxicab for the member. Id. The member was taken to his destination at Auto Club’s expense. Id. On August 22, 2016, a member was stranded when her car broke down. [UMF 15] (Exh. H at AUTO000311-313). The member had her disabled mother in a wheelchair with her in the car and she needed accessible transportation. Id. Auto Club, after contacting ButterFli (a company that provides accessible transportation), was able to provide a paratransit service for the member and her mother free of charge. Id. The member was so pleased with the service that she gave the following testimonial on her FaceBook page: “I’ve been a caretaker for my mother, Pat, for 21 years. She has a motorized wheelchair, which requires a trained driver and a vehicle with a special lift. I feel blessed to discover ButterFLi when we needed it the most - when our car broke down and AAA pulled in ButterFLi to transport us home.” Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 26 of 29 Page ID #:169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ButterFli (last visited March 2, 2017), http://www.gobutterfli.com/#on- demand [UMF 16]. The member also posted an image of her mother being lifted into the paratransit van on social media. [Id.]. The above evidence is only a small fraction of the efforts that Auto Club takes to provide excellent service to all members regardless of whether they are disabled or not. Contrary to Plaintiff’s claims, Auto Club has expended significant resources to ensure that they provide adequate service to all members. See, e.g., Thomas v. Branch Banking & Tr. Co., 32 F. Supp. 3d 1266, 1271 (N.D. Ga. 2014) (holding plaintiff’s ADA claims moot because the Court found no evidence of “relapse into noncompliance” because “it would not only expose [the defendant] to liability in later suits, but would also be costly”). Therefore, Plaintiff’s claims are moot. IV. TO THE EXTENT THE COURT DOES NOT DISMISS PLAINTIFF’S STATE LAW CLAIMS, IT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION. To the extent the Court does not dismiss Plaintiff’s state-law claims with prejudice, the Court should decline supplemental jurisdiction over them. Under 28 U.S.C. § 1367(c), courts may properly exercise their discretion to decline supplemental jurisdiction if any of the four statutory grounds exist: “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” As explained below, in this case, at least three of the four statutory grounds exist for declining supplemental jurisdiction. Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 27 of 29 Page ID #:170 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT A. Dismissal Of Plaintiff’s Federal Claims Warrants Dismissal Of His State-Law Claims. As the Supreme Court has instructed, once the federal claims are dismissed courts should decline supplemental jurisdiction over related state-law claims: “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine, judicial economy, convenience, fairness, and comity will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, fn. 7 (1988); Wentzka v. Gellman, 991 F.2d 423, 425 (7th Cir. 1993) (“[W]e said quite clearly that, where a federal claim drops out before trial a district court should not retain the state law claims absent extraordinary circumstances”); Acri v. Varian Assoc's, Inc., 114 F.3d 999, 1001 (9th Cir. 1996) (“The Supreme Court has stated, and we have often repeated, that ‘in the usual case in which all federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state-law claims.’”); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911 (9th Cir. 2011) (same). B. Plaintiff’s Unruh Act Claim Raises Novel And Complex Issues Of State Law. Courts have recognized that claims under the Unruh Act raise novel and complex issues of state law, providing another basis to decline supplemental jurisdiction. For example, in Grutman v. The Regents of the University of California, 807 F.Supp.2d 861 (N.D. Cal. 2011 ), the court decided that the question of how damages are calculated under the Unruh Act presents novel and complex issues of unresolved state law. Numerous district courts have recognized that such unresolved state law issues are a proper basis to decline to exercise supplemental jurisdiction. See, e.g., Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 28 of 29 Page ID #:171 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -24- SMRH:481321564.1 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Molski v. EOS Estate Winery, 2005 WL 3952249 (C.D. Cal. 2005); Jankey v. Beach Hut, 2005 WL 5517235 (C.D. Cal. 2005). C. Plaintiff’s State-Law Claim Substantially Predominates Over His Federal Claims. Likewise, courts have recognized that a plaintiff’s state law claims for monetary damages substantially predominate over his or her claim for injunctive relief under the ADA, providing yet another ground for declining supplemental jurisdiction. “State law claims have become the tails that wag the dog of federal ADA litigation.” Gunther v. Lin, 144 Cal. App. 4th 223, 256 (2006). “[E]nterprising plaintiffs (and their attorneys) have found a way to circumvent the will of Congress by seeking money damages while retaining federal jurisdiction.” Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860, 862-63 (C.D. Cal. 2004). For these reasons, courts routinely decline to exercise supplemental jurisdiction. See Pinnock v. Safino Des., Inc., 2007 WL 2462107, *4 (S.D. Cal. 2007) (“Given the disparity in terms of comprehensiveness of the remedy sought, state law claims substantially predominate over the ADA for purposes of 28 U.S.C. § 1367(c)(2)”). V. CONCLUSION For all of the foregoing reasons, Defendants respectfully request that the Court grant their motion and enter judgment on their behalf and against Plaintiff. Dated: March 6, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Gregory F. Hurley GREGORY F. HURLEY Attorneys for Defendants AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, THE AMERICAN AUTOMOBILE ASSOCIATION, INC., and AUTO CLUB SERVICES, LLC Case 8:16-cv-00887-DOC-KES Document 33-1 Filed 03/06/17 Page 29 of 29 Page ID #:172 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal. Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendants, AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, THE AMERICAN AUTOMOBILE ASSOCIATION, INC., and AUTO CLUB SERVICES, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION AURELIANO GALVEZ, Plaintiff, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; THE AMERICAN AUTOMOBILE ASSOCIATION, INC.; AUTO CLUB SERVICES, LLC and DOES 1 through 10, inclusive, Defendants. Case No. 8:16-cv-00887-DOC-KES Hon. David O. Carter DEFENDANTS’ STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Hearing Date: April 3, 2017 Hearing Time: 8:30 a.m. Courtroom: 9D Action Filed: May 13, 2016 Trial Date: June 27, 2017 Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 1 of 22 Page ID #:173 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendants Automobile Club of Southern California (“Auto Club”), The American Automobile Association, Inc., and Auto Club Services, LLC (collectively, “Defendants”) hereby submit their Statement of Uncontroverted Facts and Conclusions of Law in support of their Motion for Summary Judgment or, in the Alternative, Summary Adjudication. STATEMENT OF UNCONTROVERTED FACTS UNCONTROVERTED FACTS SUPPORTING EVIDENCE 1. As part of its Emergency Road Services (“ERS”), Auto Club provides a towing benefit to all of its members. Declaration of Nannalee Haywood (“Haywood Decl.”), ¶¶ 3-5. 2. In Southern California, Auto Club processes over six (6) million calls for roadside assistance each year. Haywood Decl. ¶ 3. 3. In Southern California, Auto Club does not own or operate its own fleet of tow trucks. Haywood Decl. ¶ 6. 4. Auto Club contracts with independent contractor service providers who own or operate service vehicles and/or tow trucks independently from Auto Club. These independent contractor service providers are not employees of Auto Club. Haywood Decl. ¶ 6. 5. When a vehicle is towed, Auto Club permits the independent contractor service providers to allow members Haywood Decl. ¶ 7. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 2 of 22 Page ID #:174 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT to ride in the tow truck cab, if desired by the member, to the tow destination of the vehicle. 6. For Auto Club’s members who require the use of wheelchairs or other mobility-assistive device, or who are unable or unwilling to ride in the tow truck cab, Auto Club works with these members to serve them in a reasonable and safe manner as desired or requested by the member and depending upon the circumstances of their tow and the needs of the member. Haywood Decl. ¶ 8, and Exh. A. 7. Auto Club policy is to work with the member to determine a reasonable method of transportation. That includes determining whether the member wishes to be picked up by friends or family members, has another form of available accessible transportation, or requires Auto Club to arrange for accessible transportation. Haywood Decl. ¶ 8, and Exh. A. 8. Auto Club will contact a taxi or other transportation service on behalf of the member and cover the cost of the taxi Haywood Decl. ¶¶ 9-13, and Exhs. A, B, C, D, H. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 3 of 22 Page ID #:175 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT or transportation service at no charge to the member if the member wishes for Auto Club to arrange for accessible transportation. Auto Club will pay for the taxi or transportation service to the vehicle’s tow destination. 9. In addition, Auto Club instructs its service representatives to alert supervisors of all calls involving members with disabilities to ensure proper handling. Haywood Decl. ¶¶ 9-10, 14-15, and Exhs. A, E. 10. In the difficult or dangerous situation that a disabled member is unable to leave their vehicle, such as on a freeway, Auto Club permits the independent contractor service technician to make the judgment call to transport members in their vehicles a brief distance to a safe location. Haywood Decl. ¶ 17. 11. It is dangerous for persons in wheelchairs to transfer on the side of the freeway to a different vehicle and, Haywood Decl. ¶ 17, Deposition of Plaintiff Aureliano Galvez1 (“Galvez I” Tr.) at 48:21-49:1, 50:22-51:9. 1 Plaintiff’s deposition was conducted over four separate days and as part of two lawsuits. The portion of Plaintiff’s deposition conducted as part of Christie Rudder’s lawsuit against Auto Club is “Galvez I” and the portion of Plaintiff’s deposition conducted as part of this case is “Galvez II.” These are attached as Exhibits 1 and 2 to the concurrently filed Declaration of Bradley J. Leimkuhler. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 4 of 22 Page ID #:176 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT for that reason, taxis and other vehicles refuse to pick up members on the freeway. 12. Auto Club has updated its training materials to ensure that its service representatives and dispatchers are aware of Auto Club’s policies and has required all relevant employees to undergo additional training aside from the training they received at the time of hire. Haywood Decl. ¶ 14-16, Exh. E. 13. In keeping with its commitment to improving the experience for all of its members, Auto Club continues to update and improve a list of taxi companies that can service members with disabilities and looks for additional resources to service these important calls. Haywood Decl.¶¶ 11-13. 14. Auto Club has developed relationships with companies that provide accessible transportation to persons with disabilities, including Secure Transportation and Butterfli. Haywood Decl.¶¶ 11-13, Exh. D, I. 15. Auto Club has located and arranged accessible transportation for numerous other members who have Haywood Decl. ¶¶ 13, 20 Exh. D, H. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 5 of 22 Page ID #:177 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT disabilities in accordance with its policies, both before and after Plaintiff brought his lawsuit. 16. Some of these members have taken to social media praising Auto Club’s efforts. Haywood Decl. ¶ 22, Exh. I, Leimkuhler Decl. Exh. 6. 17. Auto Club has worked with the California Highway Patrol (“CHP”) to come up with policies and safely transport a disabled member from the freeway to a safe location. Auto Club’s policy has been approved by the CHP. Haywood Decl. ¶ 17. 18. On August 14, 2015, Plaintiff Aureliano Galvez (“Plaintiff”) contacted Auto Club for roadside assistance. Haywood Exh. F at GAL000002. 19. On August 14, 2015, Plaintiff informed Auto Club that he had experienced a flat tire and had a spare. Haywood Exh. F at GAL000002, Galvez II Tr. at 25:20-25. 20. On August 14, 2015, A CHP officer arrived and blocked traffic so that Plaintiff could maneuver his vehicle from one side of the freeway to the other. Galvez I Tr. at 47:18-48:20, 49:15-19, 50:6-21. 21. On August 14, 2015, Plaintiff asked Galvez II Tr. 27:20-28:10, 29:4-30:5. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 6 of 22 Page ID #:178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT the tow truck driver to tow him off of the freeway to a tire store. 22. On August 14, 2015, Plaintiff did not contact Auto Club again after his initial request for roadside assistance. Galvez II Tr. 30:11-32:3, Haywood Decl. Exh. F at GAL000002. 23. On January 20, 2016, Plaintiff Aureliano Galvez (“Plaintiff”) contacted Auto Club for roadside assistance. Exh. F at GAL00005. 24. On January 20, 2016, Plaintiff informed Auto Club that he would have someone pick him up. Haywood Decl., Exh. F at GAL000012- 13, Haywood Decl., Exh. G (audio file); see also Leimkuhler Decl. Exh. 7 at 18. 25. On January 20, 2016, Auto Club’s representative asked “Are you sure?” after Plaintiff informed Auto Club that he would have someone pick him up. Haywood Decl., Exh. G (audio file); see also Leimkuhler Decl. Exh. 7 at 18. 26. On January 27, 2016, Plaintiff contacted Auto Club and asked to speak to a supervisor. Haywood Decl., Exh. F at GAL000003- 4. 27. During the January 27, 2016 call, Plaintiff did not request that Auto Club modify its policy for serving members with disabilities. Galvez II Tr. at 95:2-11. 28. Auto Club did not refuse to modify its policy in response to Plaintiff’s January 27, 2016, phone call. Galvez II Tr. 107:15-19. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 7 of 22 Page ID #:179 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 29. Plaintiff has failed to identify any reasonable or necessary modification to Defendants’ policies. Leimkuhler Decl., Exh. 5 (Response to Interrogatory No. 1). 30. Plaintiff would be accommodated by a wheelchair accessible taxi, accessible van, or other alternative accessible transportation. Galvez II Tr. 94:5-95:1; 106:3-24. 31. Plaintiff has failed to adduce any evidence to show that the modifications he demands in his complaint are reasonable. Leimkuhler Decl., Exh. 5 (Response to Interrogatory Nos. 1, 13). 32. Plaintiff has adduced no evidence on the cost of any proposed modification, the cost of any potential implementation, and/or the effect of the proposed modification on the economic operation of the Auto Club. Leimkuhler Decl., Exh. 5 (Response to Interrogatory Nos. 1, 13). 33. Plaintiff has failed to adduce any evidence to show that the modifications he demands in his complaint are necessary. Leimkuhler Decl., Exh. 5 (Response to Interrogatory Nos. 1, 13). CONCLUSIONS OF LAW A. Plaintiff Has Failed To Establish A Violation Of The ADA. In order to prove a violation of the ADA, Plaintiff must establish all of the following: (1) Plaintiff has a disability; (2) that Defendants are private entities that own, lease, or operate a place of public accommodation; (3) that Plaintiff came to the place of public accommodation with the intent of utilizing its services in the Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 8 of 22 Page ID #:180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT manner in which those services are typically offered to the public; (4) that Defendants had a discriminatory policy or practice in effect; (5) that Plaintiff requested a reasonable modification in that policy which, if granted, would have afforded h[er] access to the desired goods/services; (6) that the requested modification was necessary to afford that access; and (7) that Defendants nonetheless refused to modify the policy or practice. Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307-08 (1st Cir. 2003); Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999); see also Angelucci v. Century Supper Club, 41 Cal. 4th 160 (2007) (Unruh Act); 42 U.S.C. § 12182(a) and (b)(2)(A)(ii). In addition, in order to be entitled to injunctive relief, a plaintiff “must make a showing that [s]he faces a real or immediate threat of substantial or irreparable injury.” Midgett v. Tri-County Met. Transp. Dist. Of Oregon, 254 F.3d 846, 850 (9th Cir. 2001); Donald v. Café Royale, Inc., 218 Cal.App.3d 168, 184 (1990) (Unruh Act); see also Dorsett v. Southeastern Pennsylvania Trans. Authority, 2005 WL 2077252, *5 (E.D. Penn. Aug. 29, 2005) (“Occasional problems, without more, do not constitute a violation of the ADA.”). Furthermore, in order to be entitled to statutory damages under the State of California Unruh Act, a plaintiff “must take the additional step of establishing [s]he was denied equal access on a particular occasion.” Donald, 218 Cal. App.3d at 183. Plaintiff has utterly failed to establish a violation of the ADA. “Title III’s purpose is to ensure that people with disabilities have access to public facilities, not to provide a remedy for specific acts of negligence.” Tanner v. Wal-Mart Stores, Inc., 2000 WL 620425, *6 (D.N.H. Feb. 8, 2000) (no viable ADA claim where retail store did not maintain handicapped parking area free of shopping carts, snow and ice on a particular occasion); Pack v. Arkansas Valley Correctional Facility, 894 P.2d 34, 39 (Colo. Ct. App. 1995) (“an isolated instance of negligence regarding the failure to maintain access routes, without more, is not covered by the ADA.”); see also Alumni Cruises, LLC v. Carnival Corp., 987 F. Supp. 2d 1290, 1312-13 (S.D. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 9 of 22 Page ID #:181 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Fla. 2013) (“AOTS's complaints about the speed of some servers' service does not attack a policy or procedure of Carnival and does not suggest a particular modification to Carnival's serving process. Instead, it simply bemoans the individual service of some servers. In the absence of a specific proposal for addressing the speed of service of some servers, AOTS has not met its burden to identify a reasonable modification.”). Simply put, the ADA cannot regulate a particular individual’s conduct. E.g., Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 125-27 (N.D.N.Y. 2000) (“Unfortunately, legislation such as the ADA cannot regulate individuals’ conduct so as to ensure that they will never be rude or insensitive to persons with disabilities. Such a goal would be impossible to attain.”). In this case, Auto Club’s policy of providing alternative accessible transportation to it members with disabilities, at Auto Club’s expense, satisfies the ADA. This kind of comparable service, in lieu of providing a ride for members inside the cab of the tow truck, is reasonably equivalent. The Department of Justice’s technical assistance manual endorses such “alternative methods” as satisfying the ADA. For example: ILLUSTRATION 3: A self-service gas station determines that it is not readily achievable to redesign gas pumps to enable people with disabilities to use them; therefore, the gas station is not required to make physical modifications to the gas pumps. However, the gas station is required to provide its services to individuals with disabilities through any readily achievable alternative method, such as providing refueling service upon request to an individual with a disability.2 § 4.5100. See also Illustration 2 (curbside service sufficient where it is not readily achievable to install an accessible entrance). Therefore, Auto Club’s policy satisfies the ADA. 2 The technical assistance manual is available at: https://www.ada.gov/taman3.html. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 10 of 22 Page ID #:182 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Moreover, Auto Club’s policy of permitting independent service technicians to tow members inside their vehicles a limited distance in emergency situations – such as when a member is stranded on the side of the freeway – is also appropriate under the ADA.3 This policy has been endorsed by the CHP and is permissible under California law. See Vehicle Code § 23116(c), [UMF 17]. Plaintiff has failed to establish an ADA claim. In addition, there is no evidence that Auto Club handled the calls in a discriminatory manner. During the August 2015 incident, Plaintiff informed Auto Club that he had experienced a flat tire and had a spare. [UMF 18-19]. If the spare tire would have been usable, there would have been no need for Plaintiff to be towed. In addition, the CHP was present and Plaintiff asked the tow truck driver to tow him off of the freeway to a tire store and did not contact Auto Club again. [UMF 20, 21, 22]. The tow truck driver was an independent contractor service technician who is not employed by Auto Club. [UMF 4]. To the extent the tow truck driver decided, in conjunction with Plaintiff’s instructions, to disregard Auto Club’s recommended safety policies, Plaintiff’s complaint lies with the towing company. Further, during the January 20, 2016 incident, Plaintiff expressly informed Auto Club’s representative that he had a ride home. [UMF 23-24]. The audio tape shows that (1) Plaintiff interrupted Auto Club’s representative and, (2) Auto Club’s representative confirmed that Plaintiff did not need alternative transportation. [UMF 23-24]. To the extent Plaintiff believes that his service could have been handled better on a given occasion or was handled in a manner inconsistent with Auto Club’s policy, that is simply not actionable under the ADA. Midgett v. Tri-County Met. Transp. Dist. Of Oregon, 254 F.3d 846, 850 (9th Cir. 2001) (“occasional problems do not, without more, establish a violation of the ADA.”); Stan v. Wal-Mart Stores, 3 To the extent Plaintiff believes that his tow was not warranted under the circumstances or that he was towed inappropriately, Plaintiff’s complaint lies with the independent contractor technician that provided the service – not Auto Club. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 11 of 22 Page ID #:183 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Inc., 111 F. Supp. 2d 119, 125-27 (N.D.N.Y. 2000) (“[L]egislation such as the ADA cannot regulate individuals’ conduct so as to ensure that they will never be rude or insensitive to persons with disabilities. Such a goal would be impossible to attain. For this reason, Defendants cannot guarantee than an individual employee will not act inappropriately on a particular instance.”); Dorsett v. Southeastern Penn. Transp. Auth., 2005 WL 2077252 (E.D. Penn. Aug. 28, 2005). B. Plaintiff Did Not Request A Modification To Auto Club’s Policy Before Filing Suit. Plaintiff’s claims fail for the additional reason that he failed to request a reasonable modification to Auto Club’s policy. Plaintiff’s complaint specifically demands that the Court order Auto Club to “modify their policies” as to his request for injunctive relief. (See Prayer at ¶ 1(a)). The statutory text of the ADA defines discrimination, in the context of a Title III policy case, to be: “A failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). In order to obtain injunctive relief under the ADA, an ADA plaintiff bears the burden of proving that he requested a modification to Defendants’ policy, that Defendants’ refused, and that the request was reasonable and necessary. See Mannick v. Kaiser Foundation Health Plan, 2006 WL 2168877, at *12 (N.D. Cal. 2006) (“Johnson held that the plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable. . . Plaintiff did not meet his burden because he did not show that he requested a Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 12 of 22 Page ID #:184 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT transfer as a reasonable modification, and also because he did not provide evidence showing that a transfer was a reasonable modification.”); Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997); Corbett v. Insomniac Holdings LLC, Case No. 2:16-cv-03604-PSG, *6-7 (C.D. Cal. Jan. 19, 2017) (“The ADA plaintiff must make a request for accommodation before filing suit, and if denied, must show that the request was reasonable and necessary.”) (emphasis added) (Leimkuhler Decl., Exh. 3); Salinas v. Edwards Theaters, Inc., Case No. 15-07698- BRO *15-16 (C.D. Cal. Aug. 24, 2016) (“Plaintiff bears the burden of proving that a modification was requested and that the requested modification was reasonable.”) (Leimkuhler Decl., Exh. 4). The Salinas case is illustrative. In Salinas, plaintiff sued the defendant movie theater for failing to serve him at the lowered concession counter at the theater. Plaintiff’s central allegation was that the lowered counter was not open at the time and the cashier refused to assist him at the lowered counter. Id. at *2. The parties did not dispute that the movie theater had a lowered concession counter in place at the time the plaintiff patronized the theatre. Id. at *14. At deposition, the plaintiff admitted that he did not ask the movie theater to change its policy to, for example, have the lowered counter open at all times – only that he “brought it up as an issue” and explained how it affected him.4 Id. at *14-16. The plaintiff also failed to contact defendant again before bringing his lawsuit. Id. Therefore, the Court held: “Considering that Defendant has offered admissible, sworn testimony reflecting Plaintiff’s admission that he did not ask Defendant to change its policy, no reasonable jury would return a verdict for Plaintiff on this issue. Because Plaintiff failed to request that Defendant change its policy, this Court finds that the Plaintiff failed to 4 The defendant theater disputed plaintiff’s claim that the lowered counter was not always available for its disabled customers. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 13 of 22 Page ID #:185 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT establish a prima facie case of discrimination under the ADA.” Id. at *15-16. Therefore, the Court granted summary judgment to defendant. Similarly, in Corbett, the plaintiff brought suit against defendant music production company arguing that its policy of prohibiting over-the-counter medication and requiring patrons to disclose prescription medications before being allowed entry into the music festival violated the ADA. Id. at *1-2. Among other things, the defendant argued that plaintiff had failed to request a reasonable accommodation from defendant before bringing his lawsuit. Id. at *3. Instead, plaintiff merely reviewed defendant’s policy, chose not to attend the music festival, and sued the music festival for discrimination under the ADA. Id. at *5-6. The Court found that plaintiff’s claim would not survive summary judgment because plaintiff had failed to request an accommodation for his medications and/or disability before bringing suit. Id. at *6. The Court then granted defendant summary judgment. Id. at *7. The rule announced in these cases make sense. As discussed above, the statutory framework of the ADA assigns liability to public accommodations only where an entity refuses to modify its policy after a request to do so. This explicitly provides defendants with the opportunity to cure or modify their policy before the plaintiff can sue. This encourages resolution of claims before a lawsuit is brought and reduces the expenditure of judicial resources. Here, the undisputed evidence is that Plaintiff never asked Auto Club to modify its policies before he brought his lawsuit. During Plaintiff’s deposition, as in Salinas, Plaintiff conceded that he did not ask Auto Club to change its policies: Q: Now, when you called the Auto Club service operator, did you ask them to, you know, change their policy in any way? A: I don’t believe I asked them to change his policy. My biggest thing was trying to figure out what their policies were. I don’t – I don’t believe I asked him to change it. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 14 of 22 Page ID #:186 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Q: So it was more of an informational call? A: Correct, well, informational call and a complaint about the two issues that happened. …. Q: So you don’t remember if Auto Club refused to modify their policy? A: No. He was very gracious and apologetic for the situation that happened and that he was going to look into the matter. [UMF 26, 27, 28]. Moreover, Plaintiff agreed to be towed in his vehicle on August 14, 2015. [UMF 21]. In addition, on January 20, 2016, Plaintiff informed Auto Club that he had a ride home before Auto Club could look for alternative accessible transportation. [UMF 24, 25]. Therefore, Plaintiff’s claim fails as a matter of law because he failed to request a modification before bringing his lawsuit. C. Plaintiff Has Not Identified Any Proposed Change To Auto Club’s Policy And Has Adduced No Evidence That It Is “Reasonable” And/or “Necessary.” To determine whether Defendants’ policies discriminate within the meaning of the ADA against people with disabilities, the Supreme Court has indicated that the Court must evaluate Plaintiff’s requests for proposed modifications by undertaking three inquiries: (1) whether the requested modification is reasonable, (2) whether it is necessary for the disabled person, and (3) whether it would fundamentally alter the nature of the service or accommodation at issue. PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n. 28 (2001); see also Alumni Cruises, LLC v. Carnival Corp., 987 F. Supp. 2d 1290, 1304 (S.D. Fla. 2013); Mannick, 2006 WL 2168877, at *12; Salinas, Case No. 15-07698-BRO *15-16, Corbett, Case No. 2:16- cv-03604-PSG, at *6-7. The analysis of whether a proposed policy modification is “reasonable” is analogous to the “readily achievable” barrier removal analysis in an architectural Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 15 of 22 Page ID #:187 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT barrier case.5 Alumni Cruises, 987 F. Supp. 2d at 1304-05 (“Subsection (iv) is analogous to subsection (ii) in that both sections require reasonable modifications to remedy discrimination, unless the proposed modifications are so burdensome that they satisfy the standard set forth in the respective sections.”). The Court explained that, for a plaintiff to meet its initial burden, “a plaintiff must provide enough evidence to allow a defendant to evaluate the proposed modification, the difficulty of accomplishing it, the cost of implementation, and the effect of the proposed modification on the economic operation of the entity.” Id. at 1305. The analysis undertaken in the Alumni Cruises case is apt – the Court goes through each requested modification and evaluates whether Plaintiff has presented evidence sufficient to show their proposed modifications are reasonable “in the run of cases.” Here, Plaintiff has yet to even identify the modification that he would like Defendants to make. In discovery, Auto Club asked Plaintiff to identify the specific injunctive relief he wants. Plaintiff responded: “Plaintiff does not have sufficient information to make a determination of the specific number of services to be modified, the number of accessible tow trucks, taxis, or rental cars, or other possible solutions to the lack of accessible transportation for disabled members.” [UMF 29]. Further, Plaintiff has conceded that Auto Club’s policy of providing alternative accessible transportation would accommodate him. [UMF 30]. Plaintiff identifies no alternative and has adduced no evidence that any other potential alternative is “reasonable.” [UMF 31, 32]. Plaintiff has produced no 5 In an ADA architectural barrier case subject to the readily achievable standard (i.e. easily accomplishable without much difficulty or expense), plaintiffs are required to put forth an initial proposal for removal of the barrier, which the defendant can then rebut. E.g., Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership I, 264 F.3d 999 (10th Cir. 2001); Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F. 3d 1269, 1273-75 (11th Cir. 2006). Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 16 of 22 Page ID #:188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT evidence on the difficulty of accomplishing his proposed modification (as he has proposed nothing), the cost of any potential implementation, and/or the effect of the proposed modification on the economic operation of the Auto Club. Alumni Cruises, 987 F. Supp. 2d at 1305. Indeed, Plaintiff would have Defendants and the Court speculate as to what that might be. As a result, Plaintiff has not met his burden of identifying a proposed modification and adducing evidence that would support his claim that his proposed modification was reasonable. The Alumni Cruises court granted summary judgment to Defendant where plaintiffs failed to identify a precise proposed modification. For example, one of plaintiff’s requests was for a properly trained staff member to accompany developmentally disabled persons upon request on shore excursions. At deposition, the plaintiff’s witness conceded that it was not reasonable to require a staff member to accompany every person with a developmental disability and further conceded he could not identify a precise proposed modification. Id. at 1315. Therefore, the Court granted defendant summary judgment on that claim. See also id. at 1312-13 (“In the absence of a specific proposal for addressing the speed of service of some servers, AOTS has not met its burden to identify a reasonable modification.”). Put simply, Plaintiff has utterly failed to meet his burden to identify any reasonable modification and, as a necessary corollary, has failed to adduce any evidence that such modification was “reasonable” or “necessary.” [UMF 29-33]. D. Plaintiff’s Claim Is Moot. It is well-established law that a defendant’s remedial efforts will render a plaintiff’s ADA access claim for injunctive relief moot. See Powell v. McCormack, 395 U.S. 486, 496 (1969) (holding that “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome”); see also Gasper v. Marie Callender Pie Shops, Inc., 2006 U.S. Dist. LEXIS 96929, at *4 (holding that “if no ADA violations exist at the time the court is asked to Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 17 of 22 Page ID #:189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT provide injunctive relief, the ADA claim is moot because there is no basis for relief and there is nothing for the court to order the facility to change”). Since before Plaintiff’s alleged incident or his lawsuit, Auto Club has maintained a roadside service policy, which includes procedures arranging for complimentary alternative transportation for disabled members. [UMF7, 8]. As a result, Auto Club’s roadside assistance policy renders Plaintiff’s claim moot because he has no “live” controversy that the court can resolve. Powell, 395 U.S. at 496. There is nothing Plaintiff can point to in the record nor can Plaintiff adduce any facts to show that Auto Club will revert to any sort of discriminatory policy. The Supreme Court has held that “a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203 (1968)). This burden is usually met by making changes that are permanent in nature and that foreclose a reasonable chance of recurrence of the challenged conduct. Id. Of critical importance to this case is that Auto Club’s policies are permanent and there is no reasonable expectation that Auto Club will revert to any sort of discriminatory policy. Quite the opposite, Auto Club desires to be a good corporate citizen and provide excellent customer service to its members in conjunction with its mission of increasing its membership and retaining all members regardless of their physical abilities. Further, it is in Auto Club’s best interest to create and maintain an ADA compliant roadside service policy in order to avoid potential exposure to liability and to serve its disabled members in a full and equal manner. The case of Tandy v. City of Wichita is illustrative. 380 F.3d 1277 (10th Cir. 2004). In Tandy, disabled passengers brought suit against the City of Wichita alleging that the city’s fixed-route bus system was intentionally inaccessible and unusable by people with disabilities. Id. at 1280. In particular, the defendant had a Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 18 of 22 Page ID #:190 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT “driver-discretion policy” where bus drivers were supposed to inform riders that, should they board an accessible bus on an inaccessible route, they may not be able to secure a ride back from their destination on the inaccessible route. Id. at 1283. The bus drivers then had the discretion to deploy wheelchair lifts only to passengers who, in the bus driver’s judgment, understood that they might be unable to secure a ride back. Id. However, after being sued by a class of disabled persons, the City of Wichita “trained its bus drivers to call out stops at major intersections, to operate lifts, to tie down wheelchairs, and to call for alternative transportation in the event of lift failure on accessible routes.” Id. The City of Wichita also disciplined bus drivers who failed to follow these instructions. Id. at 1283. The Court held that the portion of the plaintiffs’ claims that were based on being denied a ride because of the driver-discretion policy were moot. Id. at 1291. In particular, the Court was convinced by evidence establishing that both the policy of designating routes as inaccessible and its driver-discretion policy had been discontinued in addition to a lack of evidence in the record suggesting any intent to resume the discontinued policies if the case were dismissed as moot. Id. Similarly, the case of White v. Bank of America, N.A., 2016 U.S. Dist. LEXIS 100865 (D.D.C. Aug. 2, 2016) is instructive. In White, a deaf applicant brought suit under the ADA against Bank of America to challenge the bank’s alleged policy prohibiting its employees from conducting transactions made through third-party vendors, including relay services, for security reasons. Id. at *7. The bank changed its policy so they could accept “TDD” calls about two months before the plaintiff filed her lawsuit. Id. The bank defended the plaintiff’s lawsuit on mootness grounds. The Court agreed that the change in policy made the controversy moot. First, the Court rejected plaintiff’s argument that the controversy was not moot because defendant could change its policy back at any time and that it would not reinstitute the challenged policy. Id. at *16-17. The Court observed that there Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 19 of 22 Page ID #:191 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was no allegation or evidence that there was a “reasonable expectation that [the bank] will reinstitute the former Fraud Department guideline.” Id. Second, the Court adopted the D.C. Circuit’s analysis that “the mere power to reenact a challenged [policy] is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence that the challenged [policy] will likely be reenacted.” Id. at *17. The White court likewise found that the plaintiff had adduced no evidence that the bank was likely to revert to the former challenged guideline. Third, the Court found that, in the absence of any “evidence that the guideline will ever be reintroduced,” any injunction or declaratory judgment would constitute an advisory opinion. Id. at *17-18. As in Tandy and White, Plaintiff’s claim for injunctive relief is moot. Here, Auto Club has provided all of its relevant employees with training materials outlining procedures for serving members that require accessible roadside assistance. [UMF 12]. Operators are to ask whether there are (1) any safety concerns that the Auto Club should be aware of and (2) whether the member or their passenger needs an accessible mode of transportation. [Id.]. If transportation is needed, then the operator is to ask the following questions: (1) whether there is someone present who can assist the member or their passenger to board a tow truck; (2) whether a friend or family member is available to meet the member and provide assistance; or (3) whether the member would like Auto Club to call a taxicab or find other transportation at no extra charge. [Id.]. To ensure Auto Club can serve its members in compliance with its policy, Auto Club’s operators have a growing list of taxicab companies that they can contact on behalf of the member should accessible transportation be required. [UMF 13]. In addition, Auto Club has developed relationships with companies that provide accessible transportation, including Secure Transportation and Butterfli, to streamline the provision of accessible transportation services to its members. [UMF 14]. Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 20 of 22 Page ID #:192 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT In addition, Auto Club has provided to Plaintiff numerous examples of where it has followed its policies and arranged for alternative transportation for their disabled members – from both before and after Plaintiff filed his lawsuit. A brief description of some of these events is below: On October 3, 2014, a member with a quadriplegic daughter was provided complimentary transportation on a WellNet Medi-Van. [UMF 15] (Exh. H at AUTO000297). The member was concerned about his daughter being exposed to heat by waiting outside for too long. Id. The WellNet Medi-Van reached the member’s location within 10-15 minutes. Id. The member was “very happy” with the service Auto Club provided. Id. On April 21, 2016, Auto Club handled a call with an elderly member who was having trouble with his vehicle’s transmission. [UMF 15] (Exh. H at AUTO000270). The member needed accessible transportation because he was disabled. Id. Making the situation more complicated, the member unfortunately had a bathroom accident while in his vehicle. Id. Auto Club called a taxicab for the member. Id. The member was taken to his destination at Auto Club’s expense. Id. On August 22, 2016, a member was stranded when her car broke down. [UMF 15] (Exh. H at AUTO000311-313). The member had her disabled mother in a wheelchair with her in the car and she needed accessible transportation. Id. Auto Club, after contacting ButterFli (a company that provides accessible transportation), was able to provide a paratransit service for the member and her mother free of charge. Id. The member was so pleased with the service that she gave the following testimonial on her FaceBook page: “I’ve been a caretaker for my mother, Pat, for 21 years. She has a motorized wheelchair, which requires a trained driver and a vehicle with a special lift. I feel blessed to discover ButterFLi when we needed it the most - when our car broke down and AAA pulled in ButterFLi to transport us home.” Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 21 of 22 Page ID #:193 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21- SMRH:481580254.1 SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ButterFli (last visited March 2, 2017), http://www.gobutterfli.com/#on- demand [UMF 16]. The member also posted an image of her mother being lifted into the paratransit van on social media. [Id.]. The above evidence is only a small fraction of the efforts that Auto Club takes to provide excellent service to all members regardless of whether they are disabled or not. Contrary to Plaintiff’s claims, Auto Club has expended significant resources to ensure that they provide adequate service to all members. See, e.g., Thomas v. Branch Banking & Tr. Co., 32 F. Supp. 3d 1266, 1271 (N.D. Ga. 2014) (holding plaintiff’s ADA claims moot because the Court found no evidence of “relapse into noncompliance” because “it would not only expose [the defendant] to liability in later suits, but would also be costly”). Therefore, Plaintiff’s claims are moot. Dated: March 6, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Gregory F. Hurley GREGORY F. HURLEY Attorneys for Defendants, AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; THE AMERICAN AUTOMOBILE ASSOCIATION, INC.; and AUTO CLUB SERVICES, LLC Case 8:16-cv-00887-DOC-KES Document 33-2 Filed 03/06/17 Page 22 of 22 Page ID #:194 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:481618567.1 [PROPOSED] JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GREGORY F. HURLEY, Cal. Bar No. 126791 ghurley@sheppardmullin.com BRADLEY J. LEIMKUHLER, Cal. Bar No. 261024 bleimkuhler@sheppardmullin.com 650 Town Center Drive, 4th Floor Costa Mesa, California 92626-1993 Telephone: 714.513.5100 Facsimile: 714.513.5130 Attorneys for Defendants, AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, THE AMERICAN AUTOMOBILE ASSOCIATION, INC., and AUTO CLUB SERVICES, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION AURELIANO GALVEZ, Plaintiff, v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; THE AMERICAN AUTOMOBILE ASSOCIATION, INC.; AUTO CLUB SERVICES, LLC and DOES 1 through 10, inclusive, Defendants. Case No. 8:16-cv-00887-DOC-KES Hon. David O. Carter [PROPOSED] JUDGMENT GRANTING DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Hearing Date: April 3, 2017 Hearing Time: 8:30 a.m. Courtroom: 9D Action Filed: May 13, 2016 Trial Date: June 27, 2017 Case 8:16-cv-00887-DOC-KES Document 33-3 Filed 03/06/17 Page 1 of 2 Page ID #:195 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:481618567.1 [PROPOSED] JUDGMENT Defendants Automobile Club of Southern California (“Auto Club”), The American Automobile Association, Inc., and Auto Club Services, LLC (collectively, “Defendants”) Motion for Summary Judgment or, in the Alternative, Summary Adjudication came on for hearing on April 3, 2017 at 8:30 a.m. in the above-titled Court. After considering the papers, the evidence, and the arguments of counsel, the Court ORDERS as follows: There are no disputed issues of material fact. Defendants’ motion is GRANTED in its entirety and all of Plaintiff’s claims are hereby dismissed with prejudice. IT IS SO ORDERED. DATED: __________, 20__ HON. DAVID O. CARTER United States District Judge Case 8:16-cv-00887-DOC-KES Document 33-3 Filed 03/06/17 Page 2 of 2 Page ID #:196