Free Response in Opposition to Motion - District Court of California - California

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Case 3:07-cv-02394-LAB-WMC

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Page 1 of 18

LAW OFFICES OF AMY B. VANDEVELD 2 n 1850 Fifth Avenue, Suite 22 San Diego, CA 92101
3 n Telephone: (619) 231-8883 Facsmrile: (619) 231-8329 4 5 6
7 8 9

1 n Amy B. Vandevel~ SBN 137904

Attorney for KAREL SPIKES

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KAREL SPIKES, Plaintiff,
vs.

10 11 12 13 14 15 16 17 18 19
20 n 21

Case No.: 07 CV 2394 LAB (WMc) DECLARATION OF KAREL SPIKES IN SUPPORT OF PLAINTIFF'S oPPOSmON TO DEFENDANTS' MOTION TO DISMISS [FRCP 12(B)(1)] Date: April 14, 2008 Time: 11:15 a.m. Courtroom: 9 Judge: The Honorable Larry A. Bums

EUROPEAN CAR SERVICE; ANDREW MACIEJEWSKI; ZENNON SMOCYNSKI and DOES 1 THROUGH 10, Inclusive, Defendants.

I, KAREL SPIKES, declare:

1.

I am the Plaintiff in the instant action. I am a resident of the County of San

22 II Diego, State of California and I have personal knowledge of the following facts. If called 23 n as a witness, I could and would competently testify to the following: 24

2.

I have at least three conditions which substantially impair my ability to

25 n walk, stan~ climb stairs and negotiate curbs: a) traumatic above-knee amputation of the 26 II right lower extremity; b) chronic instability of the left knee due to knee dislocation; and c) 27 n drop- foot due to permanent neurological injury at the left knee. 28

3.

I was prescribed a wheelchair because I cannot walk without great difficulty

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111

and pain, nor can I stand for more than fifteen to twenty minutes without great difficulty

2 U and pain.
3

4.

While I can walk, if wearing a prosthesis, my gait is severely imbalanced

4 R and unsteady, due to my disabilities. These conditions also severely limit the distance I 5 H am able to walk. Further, my disabilities make it difficult, if not impossible, for me to 611 negotiate curbs and/or stairs unless there are railings or other supportive features
7 n available.

8

5.

I suffer from "phantom pains" associated with my amputated extremity. I

9 n have been treated for debilitating phantom pains. 10

6.

I sued a number of businesses and property owners in the San Diego County

III

area, along with a few places outside of the San Diego County area, because of

12 n architectural barriers that prevent people with mobility impairments, including myself, 13 n from obtaining full and equal access to these places of public accommodation.
14

7.

All of my cases that have resolved thus far, were resolved by way of

15 H settlement. Before I will settle a case, I require the business and property owners to 16 H remove architectural barriers. Attached hereto collectively as Exhibit "1" are copies of 1 7 n pertinent pages of three non-confidential Settlement Agreements, which illustrate the 18 U modifications I typically require of Defendants. There have been only a few instances in 19 I which modifications were not presently required under the Settlement Agreement because 20 I the business was no longer operational or the business was going to cease operations in 211 the near future. In those cases, I typically required that the business and property owners 22 I agree to remove architectural barriers before the re-opening of the business, if that 231 occurred, or before another business opened for business at the particular site. For 24 I example, I was advised during my lawsuit that Steve's Cabana Bar would likely close 25 H after I filed my lawsuit. We still agreed, in the Settlement Agreement, that if the business 2 6 H re-opened at the property, it would remove architectural barriers before re-opening.

271 During the lawsuit against 99 Cent Variety Store on University Avenue, the Defendant 28
2

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1 n represented that it intended to cease doing business in the near future. In our Settlement

2 U Agreement, the Defendant agreed to make repairs to the interior of the facility if it 3 H continued to operate at the property. 4

8.

While I typically seek damages, fees and costs in my cases, I have never

5 n settled a case for just money. In fact, in several cases I have waived my claims for 6 n damages, fees and costs, or I have agreed to greatly reduced amounts for damages, fees 7
H

and costs so that the business owner could make our required modifications to their

8 n facilities. Most of the Settlement Agreements I have entered into are confidential with 9 II respect to the amount of money paid to me because, it is my understanding, this is a term
10
U

of settlement required by most defendants. Generally, however, I have settled almost

11 n one-quarter of my cases for $4,000.00 or less for damages, attorneys fees and costs. In 12 Hone-quarter of these cases, I settled for $2,500.00 or less for damages, fees and costs. In 13 n at least one case, I settled for costs only and in another, I waived all monetary claims so 14 n that modifications could be made to the properties. In each of these cases, the Defendants 15 H agreed to make substantial modifications to their properties to provide accessibility for 16 H people with disabilities.
17

9.

I believe that requiring defendants to pay money is an important tool to

18 H compel compliance with access laws. Ifbusiness and property owners think they can 19 I delay complying with the ADA because there are no real consequences to them, they will 20 H have no incentive to make modifications sooner rather than later. In every case, my 2111 attorney and I endeavor to obtain agreements by business and property owners to perform 22 H specific modifications by specific dates. 23 U 10. For each facility that I sued, at the time I filed each of the lawsuits, and

24 I even after the lawsuits were settled, I intended to return to the facility either to compel 25 I compliance with the ADA and/or to obtain the goods, services, benefits and privileges 26 U provided by the business.
27
~

28

11.

Not only do I fight for barrier removal, I make an effort to ensure that 3

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1

n

baniers are actually removed. I frequently monitor the status of the facilities I sue during

2 n the course of litigation and I routinely re-visit facilities following settlement of my cases 3 0 to ensure that modifications were properly performed. If, post-settlement, I fmd that a 4
U

business has not made the modifications that it had agreed to make, I notity my attorneys,

5 U including Amy B. Vandevelde It is my understanding that Ms. Vandeveld then contacts 6 I the business' or property owners' attorneys to demand that they comply with the 7 I Settlement Agreements' required modifications. 8B 12. Most recently, about a week before the European Car Service Defendants

9 n filed their Motion to Dismiss in this case, Ire-visited Sundance Market to confirm 10 I whether the modifications had been made that were required by our Settlement 11 U Agreement. I found that the modifications were inappropriate and I took photographs for 12 H my attorney, which I had printed on March 5, 2008, two days before the Defendants' 13 1 Motion to Dismiss was filed and served. Attached hereto as Exhibit "2" are true and 14 I correct copies of the front and back of two photographs that I took at Sundance Market on 15 I my recent visit, showing the print date-stamp on the back of the photographs. 16 H
17
n

13.

To the best of my recollection, some of the facilities that I re-visited to

compel ADA compliance, that still had baniers after our settlement, were: Murphy's

18 U Market, Corner Liquor, San Altos Liquor, Big K Market, Western Towing and Food 191 Center. I was represented by Mark Potter with respect to the Food Center matter. I 20 I advised Mr. Potter that the Food Center had not complied with our Settlement Agreement 21 U and it is my understanding that he contacted the defendants' attorney in that case since 22 I accessibility modifications were later made to that store. 23 U 14. Further, despite my re-visits to ensure compliance, at least one business

24 U continued to flout access laws and our Settlement Agreement. Murphy's Market 25 U originally did not comply with our Agreement and did not install an accessible parking 26 I space as was required. I understand that my attorney, Ms. Vandeveld, wrote a letter to 271 the defendant's attorney and an accessible parking space was installed, as required by the 28 4

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1 n Agreement. The space was located across the parking lot from the entrance, away from 2 n the building, and adjacent to the sidewalk, because the business owner wanted to be able 3 U to utilize a side door that would have been blocked if the accessible parking space were 4 I located next to the building. Two years later, in 2007, I again re-visited the facility, and 5 U the business appeared to have moved the accessible parking space next to the building, 6 I but the new space had no required access aisle. I took photographs, which I provided to 7 I my attorney and it is my understanding that she wrote another letter to the defense 8 n attorney. The current accessible parking space is now next to the building, with an access 9 n aisle. It is not in the same location as originally installed, but it is closer to the entrance 10 I and is acceptable to me. The original accessible parking space has been abandoned, the 11 n signs have been removed and the striping allowed to fade. But for my re-visits and my 12 n attorney's letters, the current space would have had no access aisle. 13 B 15. Given the fact that Murphy's originally complied with the Settlement

14 g Agreement and then relocated the space a few years later without providing a required 15 U access aisle, I have spent the last several months again re-visiting businesses to determine 16 U if any have since failed to maintain the accessibility of their facilities. I have re-visited

17 U virtually every facility, including the out-of-town motels, to check on the modifications. 18 n 19
U

16.

With respect to my lawsuits against car repair and car sales facilities, I am a

car fanatic. I lovecars. In the past ten yearsI have ownedseveraldifferentcars. Most of

20 U them are older vehicles that have required regular maintenance and frequent repairs. 211 Since becoming disabled, I have owned a 1987 Maxima, 1984 300ZX, 1977 Cadillac 22. Seville, two 1978 Cadillac Seville (although not at the same time) and 1979 Cadillac

231 Seville and a late 1970's Chevy Chevette. I currently own a 1997 Ford Expedition (with 24 H 248,000 miles on it) and a 1992 Mercedes station wagon. My experience, having been a 25 I longtime car owner and having been an automotive parts and sales technician, is that 26 II smaller repair shops do not charge as much as dealerships. This is why I try to visit 27 H smaller shops when looking for estimates and repairs for my vehicles. I have always 28 5

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1

R

been, and intend to continue to be, a comparison shopper. I look for the best service at the lowest cost. In fact, I visited another repair shop that specifically specializes in

2

H

3 H Mercedes Benz repairs around the time of my visit to European Car Service. The other 4. facility had an accessible parking space, but it was blocked by repair vehicles, and I have

5 I not yet filed a lawsuit against it. 6n 17. I initially visited the facilities listed in Defendants' Exhibit "7" for the

7 I purpose of obtaining information about repair services and parts and to get estimates for 8 H repairs. For example, I wanted to visit MD Auto Repair to compare prices for tires and 9 H rims for my SUY. I wanted to visit JD Collision Center because my Mercedes' spoiler 10 U was cracked and needed to be repaired and I wanted to determine if they perform that sort 111 of work. I wanted to visit Precision Motors to get prices on tune-ups and oil changes for 12 U regular maintenance on my SUY. I have already monitored these facilities, after I filed 13 B the lawsuit, and I intend to return to each of these facilities in June of 2008. While I 14 H cannot disclose the terms of my Settlement Agreement with those business owners and 15 II property owners, I am hopeful that each of these facilities will be accessible to people 16 n with disabilities in June of 2008. All of the facilities are relatively close to my home in 17 n Spring Valley and are located in a commercial area that is like an "auto shop alley", 18 n where car owners can get multiple estimates ftom multiple repair and auto facilities. I 19 n intend to return to these facilities to ensure that they are accessible to people with 20 B disabilities so that I have the option of utilizing their services and purchasing their goods 21

in the future.
1

22

18.

1NT Auto Sales is an auto sales lot, which I visited in April of 2007. I am

23 n always interested in looking at, pricing and potentially purchasing other vehicles, as is 24 I evidenced by my car ownership history. I often go to automobile sales lots to see what is 251 for sale, as well as to compare the prices of the inventory. I intend to re-visit 1NT Auto 26 n Sales shortly after they complete the reconstruction of their facility and the pavement of 27 Utheir lot, which I understand will occur in the near future.
28 6

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1n

19.

I visited the Auto Center to see if I could get an estimate for a tune-up on
At that time, I was actually directed by an Auto Center employee to

2 II my Mercedes.

3 B another shop that specializes in Mercedes Benz cars. I intend to return to the Auto Center 4
II

to compel compliance with the ADA. Also, my SUY receives an oil change almost every

5 H three months. I intend to re-visit the Auto Center, when it is accessible, to determine if 6 n their prices are competitive and, if so, to get an oil change. 7I 20. I went to Import Auto Body around the same time as my visits to JD

8 I Collision, Precision Motors, MD Auto Repair and the Auto Center. As with JD Collision, 9 H I hoped to get an estimate for the repair of my Mercedes Benz spoiler. I spoke with a 10 I man of Asian descent who told me that he was not able to give me an estimate at that 11 U time. He gave me a card and requested that I call for an appointment. I could not get out 12 U of my car because there was no accessible parking space. I have not returned to the 13 U facility since my first visit because it is not accessible. I intend to return to Import Auto 14 U Body after I am advised that modifications have been made so that I can determine if the 15 U facility has, in fact, complied with the ADA. I also want to customize the fender flares on 16 U my Mercedes, so I would like to return to determine if they perform this sort of work and,
17
II

if so, the cost. If the cost is reasonable, I would like to have Import Auto Body perform

18 U the work. 19 U 21. I want the same opportunities that non-disabled people have for car repairs.

20 n I want to be able to shop around, get various estimates, and have my car fixed at a 21 n reasonably priced, qualified facility. I do not have that opportunity if the car repair 22 U facility or auto sales center does not even have an accessible parking space for my use. I 23 U have returned to each of the facilities that I have sued that have not yet agreed to make 24 B accessibility modifications to monitor their status. I also intend to return to each of the 25 D facilities to compel compliance with the ADA. 261 22. With respect to the European Car Service business, I went to this repair

271 shop because I wanted to have my 1992 Mercedes Benz tuned up. The car was running 28

7

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1

n

rough and I wanted to find a reasonably priced repair shop.
23. I actually went to European Car Service and two other facilities looking for

2 II

3 n a tune up for my Mercedes. I went to European Car Service first to see if they could fix 4 a my car and, if so, what the cost would be. I was not able to get an estimate for repairs, so 5 II the next day, I went to the Auto Center. The Auto Center pointed me to another facility,

6 n which I later visited. I knew that a neighbor of mine worked at the other facility, but I 7 n never knew where the other facility was located. When I was directed to the other facility 8 n by the Auto Center, I was able to talk with my neighbor about getting an estimate at that 9 n other facility. The accessible space at the other facility was blocked by vehicles being 10 II repaired and I could not park my car there. Also, they were busy and I was given a card 11 n to call back to schedule an appointment. Ultimately, my Mercedes was repaired by my 12 U neighbor who perfonned the work at my apartment parking space. 13 B 14 R Center. 24. European Car Service had no accessible parking space, nor did the Auto

The other facility had an accessible space but it was blocked by repair vehicles.

15 g If I can park in an accessible spot, no one can park too close to me, so I can then open my 16
H

car door all the way. I need to fully open my door because of my drop foot and

1 7 I prosthesis. Even at my apartment, I park my vehicles next to each other, and far enough 18 n away from each other, so that I can open the Mercedes' door all the way. In fact, I back 19 n my Mercedes into my parking space so that my driver's door is next to my other car. This 20 H is evident in the photos included in Defendants' Exhibit "5" to their Motion. The vehicle 21
n

to the right of my Mercedes is an SUV that I also own. I back the SUV into its space so

22 H that the driver's door is adjacent to the ramp located to the right of that second space. 23 U That ramp leads to a level walkway that leads to my apartment. 24 I 25. At European Car Service, I called out to a man who said he was the owner

25 I of the business and I told him my car was running rough. I asked ifhe could look at my 26 R car and give me an estimate, but he told me that he was too busy and he refused to tell me 27
U

when he would have some time to look at my car. I have monitored the facility during the
8

28

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1

n

course of this lawsuit and no modifications have been made as of March 5, 2008. At

2 n European Car Service, I am not able to exit my vehicle or get into the office because of 3 n the absence of an accessible parking space and a ramp. 4n 26. When I filed my lawsuit against European Car Service, and even today, I

5 B intended to return to the repair shop. First, I want to compel European Car Service to 6 II remove architectural barriers, as required by the ADA. I want to be able to park my car in 7 g an accessible spot and walk or roll into the office, like other non-disabled people. Since 8 n my Mercedes is about 16 years old, it requires regular maintenance. I want to be able to 9 n take it to low-cost repair shops that specialize in Mercedes vehicles. Ultimately I may

10 H learn that European's repair costs are quite reasonable or I may learn that they are outside 11 n of my budget, but I will never have that opportunity if I cannot even get out of my car at 12 I the repair shop. 13 B 14
n

27.

I am committed to making my world more accessible for me and for others

with disabilities. Not only do I file lawsuits when I find facilities are not accessible, but I

15 n also follow up to ensure that barriers are removed. I have spent my own money on gas 16 n and photographs re-visiting businesses after lawsuits were settled simply because 17 II accessibility is important to me. 18 II 28. Attached hereto as Exhibit "3" are photographs of the parking lot and

19 n walkway at European Car Service. These photos accurately depict the conditions that I 20 I observed on July 10, 2007 during my first visit and on March 5, 2008 when I drove past 211 the facility to monitor its status. There was no ramp at the walkway and there were no 22 I accessible parking spaces in the lot during either of my visits to the property. 23 a I declare under penalty of perjury under the laws of the State of California and the

24 H United States of America that the foregoing is true and correct. 251 26 Executed this

3 -5 I

day of March, 2008 at San Diego, California.

27 28 9

Case 3:07-cv-02394-LAB-WMC

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LAW OFFICES OF AMY B. VANDEVELD 2 H 1850 Fifth Avenue, Suite 22 San Diego, CA 92101
3 U Telephone: (619) 231-8883 Facsmrile: (619) 231-8329 4 5 6
7 8 9

1 n Amy B. Vandeveld, SBN 137904

Attorney for KAREL SPIKES

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KAREL SPIKES, Plaintiff,
vs.

10 11 12
13 14 15 16 17 18 19 20
H

Case No.: 07 CV 2394 LAB (WMc) DECLARATION OF KAREL SPIKES IN SUPPORT OF PLAINTIFF'S oPPOSmON TO DEFENDANTS' MOTION TO DISMISS [FRCP 12(B)(1)] Date: April 14, 2008 Time: 11:15 a.m. Courtroom: 9 Judge: The Honorable Larry A. Bums

EUROPEAN CAR SERVICE; ANDREW MACIEJEWSKI; ZENNON SMOCYNSKI and DOES 1 TIlROUGH 10, Inclusive, Defendants.

I, KAREL SPIKES, declare: 1. I am the Plaintiff in the instant action. I am a resident of the County of San

21 22

Diego, State of California and I have personal knowledge of the following facts. If called
1

23
24

as a witness, I could and would competently testifYto the following: 2. I have at least three conditions which substantially impair my ability to

25 26 27
28

wa~ stand, climb stairs and negotiate curbs: a) traumatic above-knee amputation of the right lower extremity; b) chronic instability of the left knee due to knee dislocation; and c) drop-foot due to permanent neurological injury at the left knee. 3. I was prescribed a wheelchair because I cannot walk without great difficulty

Case 3:07-cv-02394-LAB-WMC

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111and pain, nor can I stand for more than fifteen to twenty minutes without great difficulty
2 U and pain. 3

4.

While I can walk, if wearing a prosthesis, my gait is severely imbalanced

4 n and unsteady, due to my disabilities. These conditions also severely limit the distance I 5 D am able to walk. Further, my disabilities make it difficult, if not impossible, for me to 611 negotiate curbs and/or stairs unless there are railings or other supportive features 7 I available. 8

5.

I suffer from "phantom pains" associated with my amputated extremity. I

9 n have been treated for debilitating phantom pains. 10

6.

I sued a number of businesses and property owners in the San Diego County

111 area, along with a few places outside of the San Diego County area, because of 12 I architectural barriers that prevent people with mobility impairments, including myself, 13 D from obtaining full and equal access to these places of public accommodation.
14 15.

7.

All of my cases that have resolved thus far, were resolved by way of

settlement. Before I will settle a case, I require the business and property owners to

16 U remove architectural barriers. Attached hereto collectively as Exhibit "1" are copies of 1 7 II pertinent pages of three non-confidential Settlement Agreements, which illustrate the 18 n modifications I typically require of Defendants. There have been only a few instances in 19 H which modifications were not presently required under the Settlement Agreement because 20 U the business was no longer operational or the business was going to cease operations in 21
U

the near future. In those cases, I typically required that the business and property owners

22 n agree to remove architectural barriers before the re-opening of the business, if that 231 occurred, or before another business opened for business at the particular site. For 24 I example, I was advised during my lawsuit that Steve's Cabana Bar would likely close 25 U after I filed my lawsuit. We still agreed, in the Settlement Agreement, that if the business 26 H re-opened at the property, it would remove architectural barriers before re-opening.

271 During the lawsuit against 99 Cent Variety Store on University Avenue, the Defendant 28 2

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1

n

represented that it intended to cease doing business in the near future. In our Settlement

2 U Agreement, the Defendant agreed to make repairs to the interior of the facility if it 3 n continued to operate at the property. 4

8.

While I typically seek damages, fees and costs in my cases, I have never

5 U settled a case for just money. In fact, in several cases I have waived my claims for 6 II damages, fees and costs, or I have agreed to greatly reduced amounts for damages, fees 7
U

and costs so that the business owner could make our required modifications to their

8 U facilities. Most of the Settlement Agreements I have entered into are confidential with 9 n respect to the amount of money paid to me because, it is my understanding, this is a term 10 n of settlement required by most defendants. Generally, however, I have settled almost 11 none-quarter of my cases for $4,000.00 or less for damages, attorneys fees and costs. In

12 Hone-quarter of these cases, I settled for $2,500.00 or less for damages, fees and costs. In 13 n at least one case, I settled for costs only and in another, I waived all monetary claims so 14 n that modifications could be made to the properties. In each of these cases, the Defendants 15 H agreed to make substantial modifications to their properties to provide accessibility for 16 H people with disabilities.
17

9.

I believe that requiring defendants to pay money is an important tool to

18 n compel compliance with access laws. If business and property owners think they can 19 U delay complying with the ADA because there are no real consequences to them, they will 20 H have no incentive to make modifications sooner rather than later. In every case, my 21 U attorney and I endeavor to obtain agreements by business and property owners to perform 22 U specific modifications by specific dates. 23 D 24
R

10.

For each facility that I sued, at the time I filed each of the lawsuits, and

even after the lawsuits were settled, I intended to return to the facility either to compel

25 R compliance with the ADA and/or to obtain the goods, services, benefits and privileges 26 I provided by the business.
27
~

28

11.

Not only do I fight for barrier removal, I make an effort to ensure that 3

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1 n barriers are actually removed. I frequently monitor the status of the facilities I sue during 2 U the course of litigation and I routinely re-visit facilities following settlement of my cases 3 II to ensure that modifications were properly performed. If, post-settlement, I find that a 4 II business has not made the modifications that it had agreed to make, I notify my attorneys, 5 U including Amy B. Vandevelde It is my understanding that Ms. Vandeveld then contacts 6 n the business' or property owners' attorneys to demand that they comply with the 7 n Settlement Agreements' required modifications. 8n 12. Most recently, about a week before the European Car Service Defendants

9 II filed their Motion to Dismiss in this case, Ire-visited Sundance Market to confIrm 10 U whether the modifications had been made that were required by our Settlement 11 H Agreement. I found that the modifications were inappropriate and I took photographs for 12 U my attorney, which I had printed on March 5, 2008, two days before the Defendants' 13 H Motion to Dismiss was filed and served. Attached hereto as Exhibit "2" are true and 14 R correct copies of the front and back of two photographs that I took at Sundance Market on 15 H my recent visit, showing the print date-stamp on the back of the photographs. 16 U 13. To the best of my recollection, some of the facilities that I re-visited to

17 U compel ADA compliance, that still had barriers after our settlement, were: Murphy's 18 U Market, Comer Liquor, San Altos Liquor, Big K Market, Western Towing and Food 19 n Center. I was represented by Mark Potter with respect to the Food Center matter. I 20 n advised Mr. Potter that the Food Center had not complied with our Settlement Agreement 21 n and it is my understanding that he contacted the defendants' attorney in that case since 22 I accessibility modifications were later made to that store. 23 I 14. Further, despite my re-visits to ensure compliance, at least one business

24 I continued to flout access laws and our Settlement Agreement. Murphy's Market 25 B originally did not comply with our Agreement and did not install an accessible parking 26 II space as was required. I understand that my attorney, Ms. Vandeveld, wrote a letter to

2711 the defendant's attorney and an accessible parking space was installed, as required by the 28

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1 n Agreement. The space was located across the parking lot from the entrance, away from 2 H the building, and adjacent to the sidewalk, because the business owner wanted to be able 3 U to utilize a side door that would have been blocked if the accessible parking space were 4
II

located next to the building. Two years later, in 2007, I again re-visited the facility, and

5 II the business appeared to have moved the accessible parking space next to the building, 6 n but the new space had no required access aisle. I took photographs, which I provided to 7 H my attorney and it is my understanding that she wrote another letter to the defense 811 attorney. The current accessible parking space is now next to the building, with an access 9 H aisle. It is not in the same location as originally installed, but it is closer to the entrance 10 II and is acceptable to me. The original accessible parking space has been abandoned, the 11 U signs have been removed and the striping allowed to fade. But for my re-visits and my 12 II attorney's letters, the current space would have had no access aisle. 1311 15. Given the fact that Murphy's originally complied with the Settlement

14 U Agreement and then relocated the space a few years later without providing a required 15 n access aisle, I have spent the last several months again re-visiting businesses to determine 16 U if any have since failed to maintain the accessibility of their facilities. I have re-visited

17 II virtually every facility, including the out-of-town motels, to check on the modifications.

18 U

16.

With respect to my lawsuits against car repair and car sales facilities, I am a

19 U car fanatic. I love cars. In the past ten years I have owned several different cars. Most of 20 U them are older vehicles that have required regular maintenance and frequent repairs. 21 U Since becoming disabled, I have owned a 1987 Maxima, 1984 300ZX:, 1977 Cadillac 22 II Seville, two 1978 Cadillac Seville (although not at the same time) and 1979 Cadillac 23 U Seville and a late 1970's Chevy Chevette. I currently own a 1997 Ford Expedition (with 24 n 248,000 miles on it) and a 1992 Mercedes station wagon. My experience, having been a 25 U longtime car owner and having been an automotive parts and sales technician, is that 26 U smaller repair shops do not charge as much as dealerships. This is why I try to visit 271 smaller shops when looking for estimates and repairs for my vehicles. I have always 28

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1

n

been, and intend to continue to be, a comparison shopper. I look for the best service at the lowest cost. In fact, I visited another repair shop that specifically specializes in

2

H

3 I Mercedes Benz repairs around the time of my visit to European Car Service. The other 4 I facility had an accessible parking space, but it was blocked by repair vehicles, and I have 5 n not yet filed a lawsuit against it. 6U 17. I initially visited the facilities listed in Defendants' Exhibit "7" for the

7 II purpose of obtaining information about repair services and parts and to get estimates for 8 U repairs. For example, I wanted to visit MD Auto Repair to compare prices for tires and 9 g rims for my SUY. I wanted to visit JD Collision Center because my Mercedes' spoiler 10 I was cracked and needed to be repaired and I wanted to determine if they perform that sort 111 of work. I wanted to visit Precision Motors to get prices on tune-ups and oil changes for 12 H regular maintenance on my SUY. I have already monitored these facilities, after I filed 13 n the lawsuit, and I intend to return to each of these facilities in June of2008. While I

14 B cannot disclose the terms of my Settlement Agreement with those business owners and 15 I property owners, I am hopeful that each of these facilities will be accessible to people 16 D with disabilities in June of 2008. All of the facilities are relatively close to my home in 1 7 n Spring Valley and are located in a commercial area that is like an "auto shop alley", 18 H where car owners can get multiple estimates from multiple repair and auto facilities. I 19 I intend to return to these facilities to ensure that they are accessible to people with 20 H disabilities so that I have the option of utilizing their services and purchasing their goods 21

in the future.
1

22

18.

1NT Auto Sales is an auto sales lot, which I visited in April of 2007. I am

23 I always interested in looking at, pricing and potentially purchasing other vehicles, as is 24 I evidenced by my car ownership history. I often go to automobile sales lots to see what is 25 H for sale, as well as to compare the prices of the inventory. I intend to re-visit 1NT Auto 26 n Sales shortly after they complete the reconstruction of their facility and the pavement of 27 H their lot, which I understand will occur in the near future.
28 6

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111

19.

I visited the Auto Center to see if I could get an estimate for a tune-up on At that time, I was actually directed by an Auto Center employee to

2 II my Mercedes.

3 U another shop that specializes in Mercedes Benz cars. I intend to return to the Auto Center 4 n to compel compliance with the ADA. Also, my SUV receives an oil change almost every 5 II three months. I intend to re-visit the Auto Center, when it is accessible, to determine if
6
II

their prices are competitive and, if so, to get an oil change.
20. I went to Import Auto Body around the same time as my visits to JD

7U

8 II Collision, Precision Motors, MD Auto Repair and the Auto Center. As with JD Collision, 9 H I hoped to get an estimate for the repair of my Mercedes Benz spoiler. I spoke with a 10
II

man of Asian descent who told me that he was not able to give me an estimate at that

11 n time. He gave me a card and requested that I call for an appointment. I could not get out 12 I of my car because there was no accessible parking space. I have not returned to the 13 U facility since my first visit because it is not accessible. I intend to return to Import Auto 14 I Body after I am advised that modifications have been made so that I can determine if the 15 U facility has, in fact, complied with the ADA. I also want to customize the fender flares on 16 I my Mercedes, so I would like to return to determine if they perform this sort of work and, 17 I if so, the cost. If the cost is reasonable, I would like to have Import Auto Body perform 18 I the work.
19 I 21. I want the same opportunities that non-disabled people have for car repairs.

20 n I want to be able to shop around, get various estimates, and have my car fixed at a 21 a reasonably priced, qualified facility. I do not have that opportunity if the car repair 22 H facility or auto sales center does not even have an accessible parking space for my use. I 23 n have returned to each of the facilities that I have sued that have not yet agreed to make 24 n accessibility modifications to monitor their status. I also intend to return to each of the 25 U facilities to compel compliance with the ADA. 26 n
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22.

With respect to the European Car Service business, I went to this repair

28

shop because I wanted to have my 1992 Mercedes Benz tuned up. The car was running 7

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1

n

rough and I wanted to find a reasonably priced repair shop.
23. I actually went to European Car Service and two other facilities looking for

2.

3 I a tune up for my Mercedes. I went to European Car Service first to see if they could fIx 4 II my car and, if so, what the cost would be. I was not able to get an estimate for repairs, so 5 II the next day, I went to the Auto Center. The Auto Center pointed me to another facility,

6 I which I later visited. I knew that a neighbor of mine worked at the other facility, but I 7 n never knew where the other facility was located. When I was directed to the other facility 8 I by the Auto Center, I was able to talk with my neighbor about getting an estimate at that 9 H other facility. The accessible space at the other facility was blocked by vehicles being 10 H repaired and I could not park my car there. Also, they were busy and I was given a card 11 B to call back to schedule an appointment. Ultimately, my Mercedes was repaired by my 12 U neighbor who performed the work at my apartment parking space. 13 n 14 n Center. 24. European Car Service had no accessible parking space, nor did the Auto

The other facility had an accessible space but it was blocked by repair vehicles.

15 H If I can park in an accessible spot, no one can park too close to me, so I can then open my 16 H car door all the way. I need to fully open my door because of my drop foot and 1 7 n prosthesis. Even at my apartment, I park my vehicles next to each other, and far enough 18 R away from each other, so that I can open the Mercedes' door all the way. In fact, I back 19 I my Mercedes into my parking space so that my driver's door is next to my other car. This 20 I is evident in the photos included in Defendants' Exhibit "5" to their Motion. The vehicle 21 n to the right of my Mercedes is an SUY that I also own. I back the SUY into its space so 22 U that the driver's door is adjacent to the ramp located to the right of that second space. 23 n That ramp leads to a level walkway that leads to my apartment. 24 n 25. At European Car Service, I called out to a man who said he was the owner

25 H of the business and I told him my car was running rough. I asked if he could look at my 26 II car and give me an estimate, but he told me that he was too busy and he refused to tell me
27
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when he would have some time to look at my car. I have monitored the facility during the 8

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11 course of this lawsuit and no modifications have been made as of March 5, 2008. At 2 I European Car Service, I am not able to exit my vehicle or get into the office because of 3 II the absence of an accessible parking space and a ramp.
4
n

26.

When I filed my lawsuit against European Car Service, and even today, I

5 I intended to return to the repair shop. First, I want to compel European Car Service to 6 II remove architectural barriers, as required by the ADA. I want to be able to park my car in 7 n an accessible spot and walk or roll into the office, like other non-disabled people. Since 8 D my Mercedes is about 16 years old, it requires regular maintenance. I want to be able to 9 n take it to low-cost repair shops that specialize in Mercedes vehicles. Ultimately I may

10 H learn that European's repair costs are quite reasonable or I may learn that they are outside 111 of my budget, but I will never have that opportunity if I cannot even get out of my car at 12 U the repair shop. 13 D 14
n

27.

I am committed to making my world more accessible for me and for others

with disabilities. Not only do I file lawsuits when I find facilities are not accessible, but I

15 U also follow up to ensure that barriers are removed. I have spent my own money on gas 16 I and photographs re-visiting businesses after lawsuits were settled simply because 1 7 H accessibility is important to me. 18 U 28. Attached hereto as Exhibit "3" are photographs of the parking lot and

19 I walkway at European Car Service. These photos accurately depict the conditions that I 20 I observed on July 10, 2007 during my first visit and on March 5, 2008 when I drove past 211 the facility to monitor its status. There was no ramp at the walkway and there were no 22 n accessible parking spaces in the lot during either of my visits to the property. 23 n I declare under penalty of perjury under the laws of the State of California and the

24 n United States of America that the foregoing is true and correct 251 Executed this 3 -5 I dayof March,2008at SanDiego,California.

26 27 28

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