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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAMES SANFORD

Plaintiff,

v.

DEL TACO, INC. dba DEL TACO

#140; YUTAKA MIURA and MARY

MIURA; and DOES 1 through 10,

Defendants. 

CIV-S-04-1337 DFL CMK

MEMORANDUM OF OPINION 

AND ORDER

Defendants move for summary judgment on all of plaintiff's

claims. In addition, defendants move to amend their answer to

include the affirmative defense that the removal of architectural

barriers from their store is not readily achievable. In his

opposition to the motion for summary judgment, plaintiff requests

a Rule 56(f) continuance. For the reasons stated below, the

court: (1) DENIES defendants' motion for summary judgment without

prejudice to its renewal; (2) GRANTS Sanford’s request for a Rule

56(f) continuance to allow for a site inspection within 30 days

of the filed date of this order; and (3) GRANTS defendants'

motion to amend their answer.

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I.

Plaintiff Sanford ("Sanford") is a disabled person who uses

a motorized wheel chair and a specially equipped van to travel. 

(Compl. ¶ 7.) Sanford alleges that architectural barriers within

and around the Del Taco restaurant ("restaurant") located at 2200

Arden Way denied him equal access to the restaurant and deterred

him from visiting it. (Compl. ¶¶ 18, 20, 21.) 

On July 13, 2004, Sanford filed this suit. He brings claims

under: (1) the ADA (42 U.S.C. §§ 12101 et seq.); (2) the Disabled

Persons Act (Cal. Civ. Code §§ 54 et seq.); (3) the Unruh Civil

Rights Act (Cal. Civ. Code §§ 51 et seq.); (4) California Health

and Safety Code § 19955; (5) the California Unfair Competition

Law (Cal. Bus. & Prof. Code §§ 17200 et seq.); and (6) state tort

law (negligence Per Se) (Cal. Civ. Code § 1714). (Compl. ¶¶

26-96.) 

II.

A. Motion for Summary Judgment

Defendants move for summary judgment on all of Sanford's

claims. In response, Sanford requests a continuance under Rule

56(f). (Opp'n to Mot. for Summary Judgment at 2.) Sanford

argues that he cannot respond to defendants' motion without an

additional site inspection. (Id. at 2.) 

"Federal Rule of Civil Procedure 56(f) provides a device for

litigants to avoid summary judgment when they have not had

sufficient time to develop affirmative evidence." Burlington N.

& Santa Fe R.R. Co. v. The Assiniboine and Sioux Tribes of the

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Fort Peck Indian Reservation, Mont., 323 F.3d 767, 773 (9th Cir.

2003).

To justify continuing a summary judgment motion under Rule

56(f), the party seeking a continuance must show the following:

"(1) that [the party has] set forth in affidavit form the

specific facts that [it] hope[s] to elicit from further

discovery; (2) that the facts sought exist; and (3) that these

sought-after facts are essential to resist the summary judgment

motion." California v. Campbell, 138 F.3d 772, 779 (9th Cir.

1998).

Here, Sanford did not file a motion under Rule 56(f). 

Instead he raised the issue in his opposition to defendants’

motion for summary judgment, and then, on September 14, 2005, he

filed a "Declaration for a Rule 56(f) Continuance." In these

documents, Sanford argues that he must conduct a site inspection,

before the summary judgment motion, because it is the only way he

can: (1) determine whether defendants removed the alleged ADA

violations; and (2) uncover any new ADA violations created by the

modifications. (Opp'n to Mot. for Summ. J. at 4; Hubbard Decl.

¶¶ 5-6.) 

Whether defendants have removed the architectural barriers

is the central issue in this case. If Sanford inspects the

restaurant and finds that defendants have not removed the

barriers, then his claim is not moot under the ADA. The facts

gained from another site inspection could defeat the motion for

summary judgment. In addition, discovery ended on October 19,

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2005, after Sanford requested the 56(f) continuance. (10/13/04

Order at 3.) 

Because an additional site inspection could lead to

“essential” facts that would defeat a motion for summary

judgment, defendants’ motion is premature. See Eiden v. Home

Depot USA, Inc., 2005 WL 2240462, at * 1 (E.D. Cal. 2005). 

Therefore, defendants’ motion for summary judgment is DENIED

without prejudice to its renewal. 

In addition, Sanford is granted a site inspection for the

limited purpose of determining whether defendants have removed

the alleged architectural barriers. The site inspection shall

not be the basis for new claims, and must be completed within 30

days from the date of this order. 

B. Motion to Amend the Answer

Defendants move to amend their answer to include the

affirmative defense that the removal of architectural barriers

from the store is not readily achievable. (Mot. to Amend at 7.) 

In the alternative, defendants argue that the not "readily

achievable" defense is not an affirmative defense. (Id.)

1. Affirmative Defense

It is not entirely clear whether the not “readily

achievable” defense should be viewed as an affirmative defense

under F.R.Civ.P. 8. The Tenth Circuit has found that it is an

affirmative defense. Colo. Cross Disability Coalition v.

Hermanson Family Ltd. P'Ship I, 264 F.3d 999, 1002-3 (10th Cir.

2001). The Ninth Circuit has not ruled on this particular issue.

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Assuming that defendants should have pleaded this defense in

their answer, there is no good reason to prohibit them from

amending their answer. Defendants notified Sanford at least

three times that they planned to argue that modifications to the

restaurant were not readily achievable. First, in their answer,

defendants denied Sanford's allegation in his complaint that it

was readily achievable for Del Taco to remove the architectural

barriers. (Wegner Decl. ¶ 2.) Second, on Jan 13, 2005,

defendants refused to sign a stipulation from Sanford that

barrier removal was readily achievable. (Wegner Decl. ¶ 3.) 

Finally, on May 5, 2005, in response to Sanford’s

interrogatories, defendants stated that modifications to the

store were not readily achievable. (Wegner Decl. ¶ 5.) 

Because defendants notified Sanford that they disputed

whether modifications to the store were readily achievable,

Sanford will not be prejudiced by defendants amendment to their

answer. In light of the circumstances, the court finds that

defendants have acted in good faith and that no prejudice will be

suffered by plaintiff if the amendment is permitted. Therefore,

defendants’ motion to amend the answer is GRANTED.

III.

For the reasons stated above, the court: (1) DENIES

defendants' motion for summary judgment without prejudice to its

renewal; (2) GRANTS Sanford's request for a Rule 56(f)

continuance to allow for a site inspection within 30 days of the

date of this order; and (3) GRANTS defendants' motion to amend

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their answer.

IT IS SO ORDERED.

Dated: 11/11/2005

DAVID F. LEVI

United States District Judge

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