Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02301-JLS-POR

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Lynn Hubbard III, SBN 69773 Scottlynn J Hubbard, IV, SBN 212970 Law Offices of Lynn Hubbard 12 Williamsburg Lane Chico, CA. 95926 Telephone: (530) 895-3252 Facsimile: (530) 894-8244 Attorneys for Plaintiff, A.J. OLIVER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) ) ) Plaintiff, ) ) v. ) ) ) RALPHS GROCERY COMPANY ) dba FOOD 4 LESS #780; CYPRESS ) ) CREEK CO., LP dba PTC ) INVESTMENTS COMPANY, ) ) ) ) Defendants. ) ) A.J. OLIVER,

Case No. 07cv2301 JLS (POR) Plaintiff's Reply Brief in Support of His Motion to Modify the Scheduling Order and Amend His Complaint [FRCP 16(b)]

Date: August 7, 2008 Time: 1:30 p.m. Ctrm: H Honorable Janis L. Sammartino

Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Reply Brief in Support of His Motion to Amend His Complaint

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I. INTRODUCTION Plaintiff A.J. Oliver filed a motion seeking to add new barriers via a motion to amend, and to make clear exactly which barriers remain on the subject property following a remodel by defendant Ralphs Grocery Company. Co-defendant Cypress Creek Co., LP dba PTC Investments Company (hereafter "Cypress Creek") has now filed an opposition in response. The gist of Cypress Creek's opposition is two-fold: 1) plaintiff has not met the threshold of "good cause" that is required for the Court to grant his motion; and 2) even if plaintiff has met this threshold, the law precludes him from amending his complaint. Oliver will now briefly address these arguments. II. DISCUSSION The Law is on Oliver's Side: He Can Amend Cypress Creek argues that as the law stands now, "where the alleged violations are existing and are, or should be, known on the date the Complaint is filed, Plaintiff is precluded, as a matter of law, from amending his Complaint to add the additional alleged ADA defects." Cypress Creek Opposition, p. 5. To reach this conclusion, Cypress Creek misreads and/or misrepresents the recent Ninth Circuit decision of Doran v. 7-Eleven, 524 F.3d 1034 (9th Cir. 2008). Plaintiff's counsel is comfortable with his use of the words "misreads" and "misrepresents" for the simple reason that it was plaintiff's counsel that appealed the Doran v. 7-Eleven case, as well as won said appeal. In the case of Doran v. 7-Eleven, Inc., the Ninth Circuit, after a thorough analysis (and barely suppressing an annoyance that its earlier holding in Pickern v. Holiday Quality Foods, Inc., 293 F3d 1133 (9th Cir. 2002) had not been followed), issued the following crystal-clear holding so there would no longer be any doubt on this issue:
Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Reply Brief in Support of His Motion to Amend His Complaint

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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 Doran, 524 F.3d 1034, 1047 (emphasis added). Seldom are Ninth Circuit rulings so clear-cut and spelled out. The Ninth Circuit does no quibble about when the plaintiff learned about the barriers, or about how the plaintiff learned about them, or even if the plaintiff actually physically encountered them. Rather, the holding is nearly mathematical in its purity: if barriers exist, and a disabled plaintiff encounters even just one of them, then he can seek to remove all of them. Full stop, end of story. Therefore, Cypress Creek's argument is ­ and there is now absolutely no doubt on this ­ without merit. As Cypress Creek is not disputing the fact that Oliver encountered "at least one barrier" at the subject property prior to filing his suit (thereby giving him Article III standing), Oliver therefore has standing to challenge all access barriers that affect his disability, even those discovered after the filing of the complaint. Cypress Creek attempts to "fog" up this crystal clear ruling by trying to frame the holding of Doran as follows: if a disabled plaintiff was "prevented from observing a physical barrier that affected him because he was confronted with a barrier that prevented access to areas where [other] barriers existed," then if plaintiff could have physically observed other ADA barriers prior to the time he filed his complaint, he must do so or be barred from amending his Complaint later to allege them." Cypress Creek Opposition, pp. 5-6. With all due respect, this is pure, unadulterated nonsense. Cypress
Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Reply Brief in Support of His Motion to Amend His Complaint

An ADA plaintiff who has Article III standing as a result of at least one barrier at a place of public accommodation may, in one suit, permissibly challenge all barriers in that public accommodation that are related to his or her specific disability.

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Creek spouts this argument with no support from the actual Doran opinion ­ not a single word is cited from Doran by defendant in support of such an assertion. This is because the actual holding of Doran ­ as quoted supra ­ says the exact opposite: if a public accommodation has access barriers, and a disabled person encounters just one of those barriers, that person has Article III standing and can seek to remove each and every access barrier on the property that affects his disability, regardless of whether he knew about the barrier before or after filing the complaint. It literally boggles the mind that defendant (and it is not alone) still insists on trying to warp this most basic and simple holding, even when the Ninth Circuit took great pains in Doran to make it as simple, uncomplicated, and clear as possible. Indeed, the great thrust of Doran ­ and where the Ninth Circuit located the power for such a holding ­ was the Court's lengthy discussion of "the prudential aspects of the standing doctrine," and its intersection with judicial economy. See Doran, 524 F.3d at 1045-46. Perhaps defendant should re-read this part of the opinion. According to Cypress Creek, "Plaintiff is attempting to expand his claims beyond the scope of the original Complaint." Cypress Creek Opposition, p. 6. Without hesitation, Oliver can state that, yes, he is; plaintiff aims to amend his complaint to add barriers that affect his disability that were not known about prior to his filing the complaint. And the Ninth Circuit, in Doran, says unequivocally that he can. B. Modifying the Scheduling Order In his opening brief, Oliver has previously presented to this Court the facts, chronology and circumstances that gave rise to the need for this motion. Plaintiff has put his "best foot forward" as to why good cause exists for this Court to grant his motion to modify the scheduling order. Plaintiff will neither repeat, nor belabor, this argument now. However,
Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Reply Brief in Support of His Motion to Amend His Complaint

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Oliver would like to stress a couple of further points. First, it is undisputed that Cypress Creek agrees with Oliver regarding one of his main arguments, and that is should this Court grant Oliver's motion ­ modifying its scheduling order and allowing plaintiff to amend his complaint ­ defendants will not be prejudiced in any way. Nowhere in its opposition does Cypress Creek contest this argument; indeed, defendant does not even address this point, therefore conceding that it will not be prejudiced should this Court grant the instant motion. Not to put to fine a point on it, but it is easy to understand why Cypress Creek does not argue that it would be prejudiced if the instant motion is granted. Oliver is not seeking to add or remove defendants; he is not seeking to add complicated new legal theories that would necessitate changes in legal strategies on the past of defendant; he is not seeking to add claims or facts in a way to surprise or sandbag defendant. Oliver merely seeks to add additional claims of access barriers learned about since the filing of the complaint and to place on the record those barriers he alleges remain after the completion of a subject property remodel. Very simply put, this will not affect how Cypress Creek litigates and defends this case in the least. Secondly, going back to the Doran case, there is another reason for this Court to consider granting this motion, and that is judicial economy. If this Court should deny this motion ­ and Oliver fully accepts this possibility, as well as the responsibility for failing to file his motion to amend prior to the cut-off date ­ then this may simply translate to more litigation in the future. That is, if plaintiff is not allowed to amend his complaint in order to seek correction and/or remediation of all access barriers on the subject property in the instant litigation, then this may very well translate to "piecemeal litigation," something the Ninth Circuit
Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Reply Brief in Support of His Motion to Amend His Complaint

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repeatedly warned about in Doran. See Doran, 524 F.3d at 1043 ("Indeed, the enforcement scheme of Title III of the ADA would be severely undermined if we were to adopt the piecemeal approach to standing advocated by 7-Eleven"); Id at 1045 ("...a rule limiting the plaintiff's standing to the signage barrier he personally encountered and forbidding the plaintiff from challenging other barriers related to his disability would result in "piecemeal compliance" with the ADA"); Id at 1046 (observing that not allowing a disabled plaintiff to seek to remove all access barriers "not only would invite but would require disabled plaintiffs to engage in piecemeal litigation to eliminate barriers the ADA prohibits") (emphasis added in all citations). Although the Ninth Circuit was sounding the alarm of "piecemeal litigation" as it relates to standing and judicial economy, its analysis is equally applicable here, especially in light of the facts. In comparison to this succinct and significant point that the Ninth Circuit repeatedly made in Doran, Oliver's admitted negligence in failing to file his motion on time seems slight when viewed through the lens of Doran. In summary, Oliver respectfully requests that this Court modify its scheduling order, and allow Oliver to amend his Complaint. /// /// /// /// /// /// /// /// ///
Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Reply Brief in Support of His Motion to Amend His Complaint

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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 Dated: July 30, 2008

III. CONCLUSION Oliver seeks to amend his complaint in order to add new ADA violations that he has either encountered or learned about from an inspection of the property, and to make clear which barriers alleged in the original complaint remain after defendants' re-model. Oliver has not acted in a dilatory manner, and is not acting in bad faith. There will be absolutely no prejudice to the defendants should this Court allow its scheduling order to be modified so that Oliver can amend his complaint. Therefore, Oliver respectfully asks that this Court GRANT his motion. LAW OFFICES OF LYNN HUBBARD /s/ Lynn Hubbard, III LYNN HUBBARD, III Attorneys for Plaintiff, A.J. Oliver

Oliver v. Ralphs Grocery Company, et al, Case No. 07cv2301 JLS (POR)
Plaintiff's Reply Brief in Support of His Motion to Amend His Complaint

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