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1 On the day Plaintiff’s opposition to Defendant’s motion

for summary judgment was due, Plaintiff filed a request for a

continuance of Defendant’s motion and a counter-motion for a stay.

In the request for continuance and counter-motion to stay,

Plaintiff asserts that she “opposes [Defendant’s] motion,” and

requests that “if the court is disinclined to continue the hearing

date, she [be given] a 48-hour extension (from the moment the court

issues its order denying her continuance) to file her opposition.”

Although Plaintiff asserts she opposes the motion, she did not

timely file an opposition as required by Local Rule 78-230(c).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GYPSIE JONES, ) CIV-S-04-1030 GEB GGH

)

Plaintiff, ) ORDER

)

v. )

)

TACO BELL CORP., )

)

Defendant. )

 )

Defendant moves for summary judgment on Plaintiff’s claims

under the Americans with Disabilities Act (“ADA”). Plaintiff did not

file an opposition to Defendant’s motion, but instead moved to stay

the action.1 Defendant opposes Plaintiff’s motion to stay and moves

for the imposition of sanctions. For the following reasons,

Plaintiff’s motion to stay is denied, Defendant’s motion for summary

judgment is granted, and Defendant’s motion for sanctions is denied.

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2

DISCUSSION

I. Motion to Stay

Plaintiff asserts that her motion to stay this action should

be granted since a pending class action, which was filed before the

instant action was commenced, “share[s] identical issues and parties”

with the instant action. (Pl.’s Mot. for Stay at 7.) However,

Plaintiff’s stay motion is untimely in light of the litigation that

has occurred in the instant action and since it only appears to be

made in response to Defendant’s summary judgment motion. Therefore,

it is denied.

II. Motion for Summary Judgment

A. ADA Claims

Plaintiff alleges several violations of the ADA

Accessibility Guidelines (“ADAAG”) in Defendant’s Taco Bell Restaurant

#3007 (“Restaurant”). Defendant moves for summary judgment, arguing

that there is no genuine issue of material fact on any of Plaintiff’s

claims for injunctive relief under the ADA. For the following

reasons, Defendant’s motion for summary judgment on Plaintiff’s ADA

claims is granted. 

1. Plaintiff alleges that the tow away sign outside the

Restaurant is the wrong color. (Compl.: Preliminary Site

Accessibility Report (“AR”) ¶ 2.) However, the ADAAG does not require

tow away signs. (Id.; see ADAAG 4.6.) 

2. Plaintiff alleges that there are no exterior route of

travel signs. (AR ¶ 8.) However, no such signs are required at the

Restaurant “because there is no deviation from the route of way for

the general public.” (Def.’s Mot. for Summ. J. at 8; see ADAAG 4.1.) 

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3

3. Plaintiff alleges that there is “[n]o directional

signage to the restroom.” (AR ¶ 17.) However, the ADAAG only

requires signage when “not all [restrooms] are accessible.” (ADAAG

4.1.2(7)(d).) 

4. Relying on ADAAG 4.4.1, Plaintiff alleges that the

“[t]oilet tissue dispenser [in the restroom] protrudes more than 4

inches from [the] wall.” (AR ¶ 25.) However, Defendant avers that

the dispenser is below 27" and therefore is not covered by rule 4.4.1. 

(Blackseth Decl. at ¶ 6.) 

5. Plaintiff alleges that the “[t]oilet tissue dispenser is

3 inches in front of the water closet not [the] required 12 inches in

front.” (AR ¶ 22.) However, Defendant correctly notes that the ADAAG

only requires that the dispenser be “installed within reach.” (Def.’s

Mot. for Summ. J. at 9; ADAAG 4.16.)

6. Plaintiff alleges that the condiment counter fails to

comply with the ADAAG because it lacks a section that is 36" by 24"

and is 34" high. (AR ¶ 10.) However, Plaintiff cites no ADAAG

section supporting this allegation. (See id.) Furthermore, ADAAG 5.6

requires “Self-service shelves and dispensing devices for tableware,

dishware, condiments, food and beverages [to] be installed to comply

with 4.2.” ADAAG 4.2 specifies reach heights between 15" and 48" for

forward reach and 9" and 54" for side reach. Plaintiff does not

allege that the condiment counter fails to comply with these

requirements. 

7. Plaintiff alleges that the “[t]ow away sign has no phone

number”; the accessible parking signage lacks the required “separate

van accessible sign”; there is “[n]o accessible parking signage at one

space”; the accessible aisle is not painted with a “no parking” sign;

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2 Plaintiff does not specify which restroom she complains

does not comply with the ADAAG. However, it is assumed that

Plaintiff’s allegations concern the women’s restroom since

Plaintiff is a woman. (SUF ¶ 5.)

4

the “[e]ntrance door has no [International Symbol of Accessibility]”;

the “[d]ining room booths do not have 30 inches between cushions”; the

“[d]ining room seating does not offer 19 inches before an

obstruction”; and the “[p]atio seating does not offer 19 inches before

an obstruction.” (AR ¶¶ 1, 3-5, 9, 11-12, 15.) Defendant avers that

all of these conditions have been fixed or are otherwise in

compliance. (Def.’s Separate Statement of Undisputed Material Facts

(“SUF”) at ¶¶ 10-14, 17, 19-20.)

8. Plaintiff also alleges that the following violations are

present in the Restaurant’s restroom:2 the “[s]tall door [is] not self

closing”; the “[o]utside stall door does not have [an] accessible

handle”; the “[i]nside stall door does not have [an] accessible

handle”; the “[c]learance for [the strike side] area on [the] interior

doors is not 18 inches on the pull side and 12 inches on the push

side”; the “[t]oilet tissue dispenser[’s] leading edge is 44 inches

from [the] back wall, not 36 inches maximum”; the “[t]oilet tissue

dispenser [is] not mounted below [the] grab bar”; the “[c]enter of

[the] lavatory [is] 9 inches from wall not 18 inch minimum”; the

“[d]rainpipes under [the] lavatory [are] 9 inches from the wall not 6

inch maximum”; the “[h]ot water and drainpipes are not insulated”;

there is “[n]ot a 30 by 48 inch minimum clear space in front of [the]

lavatory”; and the “[s]tall door is an obstruction to [the] lavatory

and soap dispenser.” (AR ¶¶ 18-21, 23-24, 26-30.) However, Defendant

avers that all of these conditions have been fixed or are otherwise in

compliance with the ADAAG. (SUF ¶¶ 25-27, 29-30, 34-37.) 

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For the stated reasons, Defendant’s summary judgment motion

on Plaintiff’s ADA claims is granted.

B. State Law Claims

Since all of the claims over which original jurisdiction was

exercised have been resolved, the issue whether jurisdiction should

continue being exercised over Plaintiff’s remaining state law claims

is decided because exercise of supplemental jurisdiction is

discretionary. City of Chicago v. Int’l Coll. of Surgeons, 522 U.S.

156, 172-173 (1997); Mendoza v. Zirkel Fruit Co., 301 F.3d 1163, 1174

(9th Cir. 2002). Under 28 U.S.C. § 1367(c), a district court may

decline to exercise supplemental jurisdiction over a state claim where

“the district court has dismissed all claims over which it has

original jurisdiction . . . .” 28 U.S.C. § 1367(c). “[W]hen deciding

whether to exercise supplemental jurisdiction, a federal court should

consider and weigh in each case, and at every stage of litigation, the

values of judicial economy, convenience, fairness, and comity.” City

of Chicago, 522 U.S. at 173 (internal citations omitted). “[I]n 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.” 

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see

Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1169 (9th Cir.

2002) (applying Carnegie-Mellon to supplemental jurisdiction). 

“Needless decisions of state law should be avoided both as a matter of

comity and to promote justice between the parties, by procuring for

them a surer-footed reading of applicable law.” United Mine Workers

of Am. v. Gibbs, 383 U.S. 715, 726 (1966). In this action,

application of these values favors dismissal of Plaintiff’s remaining

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state claims under 28 U.S.C. § 1367(c). Therefore, Plaintiff’s state

claims are dismissed as of the date on which this Order is filed.

III. Motion for Sanctions

Defendant moves for the imposition of sanctions “under the

Court’s inherent powers and Federal Rule of Civil Procedure 16.” 

(Def.’s Notice of Mot. for Sanctions at 1.) Defendant has not shown

that sanctions are warranted under Rule 16(f). Furthermore, Defendant

has not shown the need for the use of inherent authority since 28

U.S.C. § 1927 provides the explicit authority applicable to the

alleged conduct at issue. Therefore, Defendant’s motion for sanctions

is denied.

CONCLUSION

Plaintiff’s motion to stay is denied, Defendant’s motion for

summary judgment on Plaintiff’s ADA claims is granted, and Defendant’s

motion for sanctions is denied. Further, Plaintiff’s state law claims

are dismissed as of the date on which this Order is filed. Therefore,

the Clerk of the Court is directed to enter judgment in favor of

Defendant. 

IT IS SO ORDERED.

Dated: June 14, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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