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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

GYPSIE JONES,

NO. CIV. S 04-2002 MCE KJM

Plaintiff,

v. MEMORANDUM AND ORDER

DOLLAR TREE STORES, INC., dba

DOLLAR TREE #2041,

Defendant.

----oo0oo----

Plaintiff Gypsie Jones ("Jones") brings this action against

Defendant Dollar Tree Stores, Inc. (“Dollar Tree”) alleging that

Dollar Tree Store #2041 located at 3615 Northgate Boulevard,

Sacramento, California (“Store #2041") is in violation of

California’s Unruh Civil Rights Act, Cal. Civil Code §§ 51 et.

seq. (“Unruh Act”) and the Americans with Disabilities Act, 42

U.S.C. § 12188(a)(2) (“ADA”). She is seeking damages pursuant to

the Unruh Act and injunctive relief pursuant to the ADA. Jones

filed the instant suit against Dollar Tree on September 27, 2004,

and now brings this motion for summary judgment, or in the

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Because oral argument will not be of material assistance, 1

the Court orders this matter submitted on the briefs. E.D. Cal.

Local Rule 78-230(h). 

2

alternative, summary adjudication. For the reasons explained

below, Jones’ motion is denied.1

BACKGROUND

Gypsie Jones is a paraplegic and requires the use of a

wheelchair for mobility. This dispute arises out of Jones’

visits to Store #2041 during the spring and early summer of 2004

as well as the fall of 2005. During these visits, Plaintiff

alleges she encountered architectural barriers that made it

difficult or impossible for her to have full and equal access to

the goods and services provided by Defendant. The difficulty in

accessing Store #2041 is due to alleged defects in the entrance

doors, the check stand, the ATM screen, the exit door and the

women’s restrooms.

After her first visit to Store #2041, Jones advanced a

letter to the management of said store describing the alleged

barriers and requesting that they be remedied. On subsequent

visits to the store, Jones avers that none of the barriers she

identified in her letter had been corrected. As a result of

Defendant’s alleged inaction, Plaintiff filed the instant law

suit seeking damages and injunctive relief under both state and

federal law.

//

//

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STANDARD

The Federal Rules of Civil Procedure provide for summary

judgment when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). One of the

principal purposes of Rule 56 is to dispose of factually

unsupported claims or defenses. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).

Rule 56 also allows a court to grant summary adjudication on

part of a claim or defense. See Fed. R. Civ. P. 56(a) (“A party

seeking to recover upon a claim ... may ... move ... for a

summary judgment in the party’s favor upon all or any part

thereof.”); See also Allstate Ins. Co. v. Madan, 889 F. Supp.

374, 378-79 (C.D. Cal. 1995); France Stone Co., Inc. v. Charter

Township of Monroe, 790 F. Supp. 707, 710 (E.D. Mich. 1992).

The standard that applies to a motion for summary

adjudication is the same as that which applies to a motion for

summary judgment. See Fed. R. Civ. P. 56(a), 56(c); Mora v.

ChemTronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

Under summary judgment practice, the moving party

always bears the initial responsibility of informing

the district court of the basis for its motion, and

identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions

on file together with the affidavits, if any,’ which it

believes demonstrate the absence of a genuine issue of

material fact.

Celotex Corp. v. Catrett, 477 U.S. at 323(quoting Rule 56(c)).

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If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S.

253, 288-89 (1968).

In attempting to establish the existence of this factual

dispute, the opposing party must tender evidence of specific

facts in the form of affidavits, and/or admissible discovery

material, in support of its contention that the dispute exists. 

Fed. R. Civ. P. 56(e). The opposing party must demonstrate that

the fact in contention is material, i.e., a fact that might

affect the outcome of the suit under the governing law, and that

the dispute is genuine, i.e., the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52

(1986); Owens v. Local No. 169, Assoc. of Western Pulp and Paper

Workers, 971 F.2d 347, 355 (9th Cir. 1987). Stated another way,

“before the evidence is left to the jury, there is a preliminary

question for the judge, not whether there is literally no

evidence, but whether there is any upon which a jury could

properly proceed to find a verdict for the party producing it,

upon whom the onus of proof is imposed.” Anderson, 477 U.S. at

251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448, 20

L.Ed. 867 (1872)). As the Supreme Court explained, “[w]hen the

moving party has carried its burden under Rule 56(c), its

opponent must do more that simply show that there is some

metaphysical doubt as to the material facts .... Where the record

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taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue for trial.’” 

Matsushita, 475 U.S. at 586-87.

In resolving a summary judgment motion, the evidence of the

opposing party is to be believed, and all reasonable inferences

that may be drawn from the facts placed before the court must be

drawn in favor of the opposing party. Anderson, 477 U.S. at 255. 

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party’s obligation to produce a factual predicate

from which the inference may be drawn. Richards v. Nielsen

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

aff’d, 810 F.2d 898 (9th Cir. 1987).

ANALYSIS

Under the ADA, “[n]o individual shall be discriminated

against on the basis of a disability in the full and equal

enjoyment of the goods, services, facilities, privileges,

advantages or accommodations of any place of public accommodation

by any person who owns, leases (or leases to), or operates a

place of public accommodation.” 42 U.S.C. § 12182(a). Unlawful

discrimination exists when there is a “...failure to design and

construct facilities ... that are readily accessible to and

usable by persons with disabilities, except where an entity can

demonstrate that it is structurally impracticable to meet the

requirements.” 42 U.S.C. § 12183(a)(1). 

Defendant Dollar Tree opposes Plaintiff’s summary judgement

motion on the ground that her allegations are without merit under

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disability access requirements. Defendant contends that Store

#2041 is, in fact, compliant with the Americans with Disabilities

Act Accessibility Guidelines (“ADAAG”) as codified at 28 C.F.R.

Pt. 36, Appendix A. In reply, Plaintiff argues that Defendant

has failed to raise any issue of material fact regarding the

existence of barriers in Store #2041. She avers that the sworn

declarations submitted by Defendant are inadmissible and should,

therefore, be disregarded by this Court.

In fact, Defendant submitted the sworn declarations of its

Senior Project Manager, John Fox (“Fox”) and its ADA

accessibility expert, Kim Blackseth (“Blackseth”). Both Fox and

Blackseth expressly and unequivocally contradict the facts

presented by Plaintiff regarding Store #2041 and the existence of

alleged architectural barriers. Specifically, both Defendant’s

declarants claim that Store #2041 is ADA compliant. 

As her main assignment of error, Plaintiff claims that both

declarants fail to base their declarations on personal knowledge

of the underlying facts as required under Rule 56. Consequently,

Plaintiff claims, both declarations should be disregarded by this

Court in resolving the present summary judgment motion.

Plaintiff is correct that, as a general matter, if a party

chooses to utilize a sworn statement in support or opposition of

a summary judgment motion, that statement must be based on

personal knowledge. See Fed. R. Civ. P. 56(e); see also Columbia

Pictures Indus., Inc. v. Prof. Real Estate Investors, Inc., 944

F.2d 1525, 1529 (9th Cir. 1991). Nonetheless, in certain limited

circumstances, personal knowledge may be inferred from the

content of a declaration. See Barthelemy v. Air Lines Pilots

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Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (CEO’s personal

knowledge of various corporate activities could be presumed by

virtue of his position).

Fox’s declaration plainly states that he is a Senior Project

Manager for Dollar Tree and is largely responsible for ADA

compliance. See Fox Decl. at ¶1 and ¶3. As the person charged

with ADA compliance for Defendant, his personal knowledge can be

inferred from the content of his declaration. In addition, his

declaration states that he was present during Plaintiff’s

inspection of Store #2041 further establishing his personal

knowledge of the facts in this case. See Fox Decl. 1 at ¶4. 

Similarly, Blackseth’s declaration expressly establishes his

personal knowledge of the structure and conditions in Store #2041

wherein he states that he “...personally inspected [Store #2041]

for [ADA] compliance.” Blackseth Decl. 2, ¶8. The Court is

satisfied that both declarants have sufficient personal knowledge

to meet the requirements of Rule 56(e).

Both Fox’s and Blackseth’s declarations unequivocally

contradict Plaintiff’s assertion that Store #2041 is not ADA

compliant. The evidence presented by a party opposing a summary

judgment motion is to be believed, and all reasonable inferences

that may be drawn from the facts placed before the court must be

drawn in favor of the opposing party. In drawing all reasonable

inferences in favor of Defendant, the Court finds that sufficient

issues of material fact exist to preclude summary judgment.

//

//

//

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CONCLUSION

For the foregoing reasons, Plaintiff’s summary judgment

motion is DENIED.

IT IS SO ORDERED.

DATED: December 6, 2005

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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