Filed 2/6/14 Treter v. Plaza Bonita CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA

JOSEPH TRETER, Plaintiff and Appellant,

v. PLAZA BONITA, L.P., Defendant and Respondent. D062732

(Super. Ct. No. 37-2011-00074753-CU-CR-SC)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Reversed. Mataele Law Offices, Isileli Topou Mana ia Mataele for Plaintiff and Appellant. Katten Muchin Rosenman, LLP, Holly Michele Parker and Stacey Knight for Defendants and Respondents.2 I. INTRODUCTION Plaintiff Joseph Treter appeals from a judgment entered in favor of defendant Plaza Bonita, L.P. (Plaza Bonita). 1 Treter, who is disabled, was an employee of a retail store in a mall owned and oper ated by Plaza Bonita. Treter brought an action against Plaza Bonita alleging that Plaza Bonita violat ed the Unruh Civil Rights Act (Unruh Act) (Civ. Code, § 51 et seq.) by denying him ac cess to full and equal accommodations at the mall, in multiple ways. For example, Treter alleged that the mall ha d forced him to park in a distant employee lot during the busy holiday season as a re sult of its employee holiday parking policy. Treter also allege d that the mall contai ned a variety of access barriers, including an insufficient number of handicapped-accessible parking spaces, handicapped-accessible spaces that did not ha ve proper correspondi ng access aisles, and access aisles that were directed to routes w ithout curb cuts or ramps. Treter further alleged that the mall's policy of locking its automated slidin g doors when the mall closed for the day constituted a barrier to his a ccess. Plaza Bonita moved for summary judgment. The trial court determined that Plaza Bonita was entitle d to judgment as a matter of law. On appeal, Treter challenges the trial cour t's determination, as well as some of the evidentiary rulings on which the court's summary judgment ruling was based. We

1 Plaza Bonita was erroneously sued as We stfield America, Inc. The parties do not dispute that Plaza Bonita is the correct defend ant. Judgment was en tered with respect to Plaza Bonita.3 conclude that with respect to Treter's allega tions that Plaza Bonita violated the Unruh Act by failing to make the mall accessible because its parking lot did not comply with the requirements of the Act, Plaza Bonita is not entitled to judgment as a matter of law. Plaza Bonita presented no evidence as to the st ate of its parking lot, or specifically, its handicapped-accessible parking spaces, dur ing the time period co vered by Treter's complaint. Rather, the evid ence that Plaza Bonita submitted described the state of the mall's parking lots approximately two years after the time that Treter alleges he suffered discrimination. There thus remains a triable i ssue of fact as to whether the parking lots suffered from the defects that Treter allege s in his complaint during the relevant time period. However, as to Treter's other factua l theories for recovery under the Unruh Act, Plaza Bonita has established that there are no tr iable issues of material fact as to those theories, and that Treter cannot prevail on an y of those factual theories, as a matter of law. Because there remain factual issues in di spute with respect to one of Treter's theories for recovery pursuant to his single cause of action alleging violations of the Unruh Act, Plaza Bonita is not entitled to summary judgment. For this reason, we reverse the judgment of the trial court.
II. FACTUAL AND PROCEDUR AL BACKGROUND From October 2009 until March 2010, Tret er worked as a store manager at Magic Bug, a retail store located in defendant Plaz a Bonita's Westfield Plaza Bonita Mall (the4 Mall). Treter alleges, and the Mall appears to concede, that Treter is a " 'person with physical disabilities' as defi ned by all applicable Califor nia and United States laws." On December 2, 2009, Treter went to th e Mall and attempted to park in a parking lot closest to his store. Treter elected to park in a non-handicap ped accessible space in the parking lot even th ough a handicapped-accessible space was available at the time. A security guard for the Mall asked Treter whet her he was a Mall employee. When Treter said that he was, the secur ity guard told Treter that he would "have to park in the handicap [space]—or . . . park in the employe e parking lot." Treter moved his car to a handicapped-accessible parking space without further problem. Treter's father called the Mall's administ rative office to clarify the holiday parking policy as it applied to disabled employees. The trial court excluded as hearsay what a Mall employee allegedly told Treter's father about the Mall's policy regarding disabled employee holiday parking. According to Treter's declaration and hi s deposition testimony, after December 2, 2009, on days when there was no handicappe d-accessible parking space available, he would "park in the employee parking lot" in or der to not "get ticketed or towed." This occurred between 10 and 15 times duri ng the holiday season that year. On January 14, 2011, Treter file d a complaint against Plaza Bonita. 2 In his complaint, Treter alleged a single cause of action for "Denial of Access to Full and Equal Accommodations, Advantages, Facilities, Privile ges and/or Services in Violation of

2 Again, Treter originally erroneously su ed Westfield America, Inc. Treter was represented by counsel in the trial court.5 California Civil Code § 51 et seq. (the Unruh Ci vil Rights Act)." In this cause of action, Treter alleged a number of independent acts or omissions that could support his claim that the defendant violated the Unruh Act. Specifically, Treter alleged (1) that the Mall had forced him to park in the employee lot; (2 ) that the Mall contained a variety of access barriers, including having an insufficient number of handicapped-accessible parking spaces, having handicapped-accessible spaces that did not have corresponding access aisles, and having access aisles that were direct ed to routes without curb cuts or ramps; and (3) that he was denied full and e qual accommodations because he suffered "hardships" due to the Mall's policy of lo cking its automated s liding doors upon the closing of the Mall at night. Plaza Bonita filed a motion for summary judgment in response to Treter's complaint. In support of its motion, Plaza Bonita submitted the declaration of Sherry Jones, general manager of the Mall, and the declaration of Karen Haney, an expert on compliance with the American s with Disabilities Act (ADA). Jones's declaration identified the Mall's employee holiday parking policy, which specifically exempts handicapped employees from its terms. Jones also verified that for safety reasons the Mall's policy was to lo ck all automatic door s while the Mall was closed. However, manual doors remained unloc ked from the inside, allowing patrons and employees to safely exit the Mall after closing. In her declaration, Haney attested that none of the architectural barriers identified in Treter's complaint actually existed at the Mall at the time she surveyed th e property. For example, Haney explained that all of the handicapped-accessible spaces contained6 access aisles, that the access ai sles lead to accessible entr ances to the mall, and that wherever these accessible routes cross a curb, th ere is a "curb ramp or flush transition." Haney also concluded that the manual doors lo cated adjacent to the automatic doors were compliant with ADA design standards. Treter opposed Plaza Bonita's motion fo r summary judgment, arguing that there were triable issues of fact regarding: (1) whether the exemption to the employee parking policy applied to him; (2) whether the access aisles at the Mall comp ly with ADA design standards; and (3) whether the manual doors at the Mall's entrance /exits complied with ADA design standards. 3 In support of his opposition to Plaza Bon ita's summary judgment motion, Treter attempted to submit evidence in the form of an expert's "re port" regarding accessibility at the Mall. This "report" was attached as an exhibit to a declaration submitted by Treter's attorney. Plaza Bonita objected to much of the evidence that Treter offered. The trial court sustained a number of Plaza Bonita's evidentia ry objections and ultimately granted its motion for summary judgment in full. The court concluded that the Mall had a written holiday employee parking policy that exempted employees with disabilities from its coverage, and that even if the court were to consider the excluded statement of the security guard who, Treter alleged, had said some thing different, this would not place in dispute whether the Mall employee holiday parking policy was discriminatory. The court also concluded that the Mall's policy of locking the automated

3 These are the only ground s that Treter raised in hi s opposition to Plaza Bonita's motion for summary judgment.7 doors at closing did not violate the ADA be cause the adjacent manual doors provided a reasonable alternative point of exit from the Mall. Finally, the court concluded that the Mall's expert's declaration and supporting e xhibits established that the access aisle problems identified in Treter 's complaint did not exist. The trial court entered judgment in favo r of Plaza Bonita. Treter filed a timely notice of appeal.
III. DISCUSSION
A. Legal standards
1. Summary judgment A moving party is entitled to summary judgment when the party establishes that it is entitled to the entry of judgm ent as a matter of law. (C ode Civ. Proc., § 437c, subd. (c); see also Conroy v. Regents of Un iversity of California (2009) 45 Cal.4th 1244, 1250 [" 'A trial court properly gr ants summary judgment where no triable issue of material fact exists and the moving pa rty is entitled to judgment as a ma tter of law.' [Citation.]"]) A defendant may make this showin g by establishing that the pl aintiff cannot establish one or more elements of all of his causes of action, or that the defendant has a complete defense to each cause of action. ( Towns v. Davidson (2007) 147 Cal.Ap p.4th 461, 466.) In reviewing a trial court's ruling on a motion for summary judgment, the reviewing court makes " 'an inde pendent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to8 judgment as a matter of law. [Citations.]' " ( Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App. 4th 1133, 1143.) The issues on a motion for summary judg ment are framed by the pleadings. ( Sweat v. Hollister (1995) 37 Cal.Ap p.4th 603, 607.)
2. State Disability Access Remedies "The Unruh Civil Rights Act broadly outla ws arbitrary discrimination in public accommodations and includes disability as one among many prohibited bases. ([Civ. Code,] § 51, subd. (b).)[ 4 ] As part of the 1992 reformatio n of California's state disability law, the Legislature amended the Unruh Civ il Rights Act to incorporate by reference the ADA [(42 U.S.C. § 12101 et seq.)], making viol ations of the ADA per se violations of the Unruh Civil Rights Act. ([Civ. Code,] § 51, subd. (f); Munson v. Del Taco, Inc. [(2009)] 46 Cal.4th [661,] 668-669 [( Munson )].) This amendment was intended to extend to disabled individuals aggrieved by an ADA violation the full panoply of Unruh Civil Rights Act remedies. ( Munson [, supra ,] at p. 673.) These include injunctive relief, actual damages (and in some cases as much as treble damages), and a minimum statutory award of $4,000 per violation. ([C iv. Code,] § 52, subds. (a), (c)(3); Turner v.

4 Civil Code section 51 prov ides, in pertinent part: "(a) This section shall be known, and may be cited, as the Unruh Civil Rights Act. [¶] (b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orienta tion are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."9 Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1058.)" ( Jankey v. Lee (2012) 55 Cal.4th 1038, 1044 ( Jankey ).) "The ADA prohibits discrimi nation on the basis of disa bility in the enjoyment of public accommodations, including w ith respect to access." ( Jankey, supra , 55 Cal.4th at p. 1044.) The ADA provides in pertinent par t: "No individual shall be discriminated against on the basis of 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 . . . operates a place of public accommodation." (42 U.S.C. § 12182(a).) The ADA defines discrimi nation as "a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of su ch goods, services, facilities, privileges, advantages, or accommoda tions." (42 U.S.C. § 12182(b)(2)(A)(ii).) Thus, "[b]usinesses must ' "remove ar chitectural barriers . . . in existing facilities . . . where su ch removal is readily achievable." ' [Citation.] Liability does not depend on proof of intenti onal discrimination, but a pr ivate litigant cannot obtain damages for the denial of access, only in junctive relief[, unde r the ADA]." ( Jankey,

supra , 55 Cal.4th at p. 1044.) In order to prevail on a discrimination cl aim under Title III of the ADA, a plaintiff "must show that (1) [he/]she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public10 accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [his/]her disability." ( Molski v. M.J. Cable, Inc . (9th Cir., 2007) 481 F.3d 724, 730.) For buildings and facilities that were altere d or constructed after January 26, 1993, "discrimination" includes the fa ilure to design and construct facilities or the failure to make alterations to the fac ility that render it "readily ac cessible to and usable by individuals with disabilities." (42 U.S.C. § 12183(a)(1).) "Whe ther a facility is 'readily accessible' is defined, in part, by the ADA Accessibility Guidelines." ( Chapman v. Pier 1 Imports (U.S.) Inc . (9th Cir. 2011) 63 1 F.3d 939, 945 ( Chapman ).) The ADA Accessibility Guidelines (ADAAG) are developed by the Ar chitectural and Transportation Barriers Compliance Board (the Access Board), a federal agency composed of 13 members of the public appoi nted by the President and the heads of 12 federal agencies. ( Rush v. Hyun Suk Kim (C.D.Cal., 2012) 908 F.Supp.2d 1117, 1119 ( Rush ); see also 29 U.S.C. § 792(a)(1).) The De partment of Justice is "required to promulgate regulations consistent with the Access Board's guidelines, although the regulations need not be iden tical to the guidelines." ( Rush , supra , at p. 1119.) 5

5 The architectural regulations or "des ign standards" implemented by the federal ADA are often referred to in the literature as "ADAAG" which is an acronym for "ADA Accessibility Guid elines." (See Independent Living Resources v. Oregon Arena Corp. (D.Oregon 1997) 982 F. Supp . 698, 707–708 ["The guidelin es issued by the Access Board are denominated the 'ADA A ccessibility Guidelines' ('ADAAG')"]; Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd. (S.D.Fla. 2001) 1 46 F.Supp.2d 1334, 1336 ["These guidelines are called . . . ('ADAAG')"].) The ADAAG are found in appendix A to part 36 of title 28 of the Code of Federal Regulations.11 "A disabled person who encoun ters a "barrier," i.e., an architectural feature that fails to comply with an AD AAG standard relating to hi s disability, suffers unlawful discrimination as defined by the ADA. [Cita tion.] Indeed, by 'est ablish[ing] a national standard for minimum levels of accessibility in all new facilities,' [citation], the ADAAG removes the risk of vexatious litigation that a more subjective test would create. Those responsible for new construction are on notice that if they comply with the ADAAG's objectively measurable requirements, they will be free from suit by a person who has a particular disability related to that requirement." ( Chapman , supra , 631 F.3d at p. 947, fn. 5.)
B. The trial court did not err in concluding that Treter c ould not establish his claim for a violation of the Unruh Act based on the holiday employee parking policy Treter alleges that on a single occasion in December 2009, he a ttempted to park in the Mall's regular parking lot during a time period in which the Mall's employee holiday parking policy was in effect. According to the complaint, a parking enforcement employee for the Mall told Treter that he had to either park in a handicapped-accessible parking space or in one of the employee park ing lots, which were much farther from the Mall's entrances. Treter goes on to allege that on subsequent days during the month of December in 2009, he parked in the employe e parking lot because, he claims, he was "forced" to do so. In support of its motion for summary ju dgment, Plaza Bonita submitted a copy of its written employee holiday parking policy, whic h provides in relevant part: "Employees who are disabled and have place cards issu ed through the California Department of12 Motor Vehicles are exempt fro m the employee parking policy." Treter admitted that he received a copy of this written policy before th e alleged December 2, 2009 incident. By its terms, the Mall's employ ee holiday parking policy did no t require disabled employees to park in the far employee lots. Rather, it permitted disabled employees, including Treter, to park anywhere that they could have parked under the employee parking policy in effect during non-holiday times. Pla za Bonita therefore presented evidence establishing that the employee holiday parking policy was not discriminatory on its face. This evidence also contradicts Treter's allegati on in his complaint that he was "forced" to park in the employee parking lot during December 2009. In response, Treter contends that a pa rking enforcement employee for the Mall, as well as a Mall employee named "Renee," made st atements to the effect that Treter would be required to park in the employee parking lo t. Indeed, in an attempt to address the evidence that Plaza Bonita submitted in su pport of its motion for summary judgment regarding the employee holiday parking policy, Treter presented evidence, in the form of his personal declaration and a declarati on submitted by his father, Daniel Treter (Daniel), 6 in which Treter and his father relate d the statements allegedly made by these Mall employees. Treter stated that when he attempted to park in a non-handicappedaccessible parking space in the regular Mall parking lot, a parking enforcement employee told Treter that he was required to park in the employee parking lot, and threatened to tow Treter's car and/or issue Treter a citation if Treter did not park in the employee lot.

6 We will refer to Treter's father as Daniel for the purpose of clarity.13 However, Treter admitted that at that point in time, he successfully parked in a handicapped-accessible parking space in the regul ar Mall parking lot, and that no adverse action was taken with respect to his car. Daniel stated in his declaration that on the day following the incident between Treter and the parking enforcement employee, Daniel called the "mall's administration office to inquire about their parking policy as it related to handicapped employees." Daniel stated that he spok e with "Renee," who, Daniel asserted, told him that "handicapped employees could not park in a regular, non-handicapped parking stall." The trial court sustained Plaza Bonita's ev identiary objections to Treter's evidence regarding the statements allege d to have been made by th e mall employees, on the ground that the statements constitute d inadmissible hearsay. With out this evidence, the only evidence in the record with respect to the Mall's empl oyee holiday parking policy is the evidence submitted by Plaza Bonita, which esta blishes a nondiscriminatory policy. On appeal, Treter argues that the trial court abused its discretion in refusing to admit the evidence of the Mall employees' stat ements, contending that the evidence was admissible pursuant to three sepa rate exceptions to the hearsay rule. Specifically, Treter contends that the employees' statements were admissible as inconsistent statements by witnesses, as evidence of th e employees' states of mind, and as admissions of a party opponent. Upon review, we conclude that th e trial court did not abuse its discretion in excluding on hearsay grounds th e evidence regarding the stat ements that Treter alleged the two Mall employees made to him and to Daniel.14 It is clear that the statements in Treter a nd Daniel's declarations that they attribute to the Mall employees constitute hearsay evidence : " 'Hearsay evidence ' is evidence of a statement that was made other th an by a witness while testifyi ng at the hearing and that is offered to prove the truth of the matter stated ." (Evid. Code, § 12 00.) Treter submitted the alleged statements to pr ove that the Mall was not "exe mpting" him from the employee parking policy, as it wa s supposed to do under the policy' s written terms. The statements thus come within the definition of hearsay and are not to be admitted unless they fall within an exception to the hearsay rule. No su ch exception applies here. Treter was not offering the statements as inconsistent statements under Evidence Code section 1235, which provides that "[e] vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Because the statements were not offered to show any inco nsistency in these employees' testimony at a hearing, they are not admissible as inconsistent statements. Nor are the statements admissi ble as evidence of the de clarants' state of mind. Evidence Code section 1250 provides that the out-of-court statement of a declarant about his or her "then existing state of mind, em otion, or physical sensation (including a statement of intent, plan, motive, design, ment al feeling, pain, or bodily health) is not made inadmissible by the hearsa y rule when: [¶] (1) The evid ence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The ev idence is offered to prove or explain acts or conduct of the declarant." Treter was not offering the statements to15 demonstrate the employees' states of mind, but instead, was attempti ng to establish that the employee holiday parking policy was being a pplied to him despite the fact that as a disabled employee, he was supposed to be ex empt from the policy. The statements were therefore not admissible under the state-o f-mind exception to the hearsay rule. Finally, Treter contends that the empl oyees' statements are admissible as admissions by a party opponent. Evidence Code section 1220 provides that "evidence of a statement is not made inadmissible by th e hearsay rule when offered against the declarant in an action to which he is a part y in either his individual or representative capacity." A corollary provis ion in Evidence Code section 1222 states: "Evidence of a statement offered against a party is not made inadmissible by the hear say rule if: [¶] (a) The statement was made by a person authoriz ed by the party to make a statement or statements for him concerning the subject matter of the statement; and [¶] (b) The evidence is offered either afte r admission of evidence suffici ent to sustain finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence." It is clear that in order for a statement to qualify as an authorized admission under Evidence Code section 1222, th ere must be a foundational showing that the declarant was authorized to speak on beha lf of the defendant. ( Rochlis v. Walt Disney Co . (1993) 19 Cal.App.4th 201, 217.) The substantive law of agency determines whether or not a statement is an authorized admission. ( O'Mary v. Mitsubishi Electronics America, Inc

. (1997) 59 Cal.App.4th 563, 570.) The auth ority of a declarant employee to make a statement on behalf of an employer can be either implied or express. ( Id. at p. 570.)16 "[T]he determination requires an examination of the nature of the employee's usual and customary authority, the nature of the statement in relati on to that authority, and the particular relevance or purpose of the statement." ( Ibid .) Treter assumes that both of the declarants whose statements he wishes to have admitted in evidence were authorized to speak on behalf of Plaza Bonita on this issue. However, he presented no evidence of either person's authority to make a statement on behalf of Plaza Bonita with respect to the employee holid ay parking policy. 7 Thus, there was no foundation that either of these people wa s an agent of Plaza Bonita or that either was authorized to speak on Pl aza Bonita's behalf with respec t to the parking policy. The trial court did not abuse its di scretion in declining to cons ider these statements, given their hearsay nature. Based on the admissible eviden ce presented to the trial cour t, no triable issues of fact remain regarding whether Plaza Bonita discriminated against Treter as a result of its employee holiday parking policy.
C. The trial court erred in concluding that Treter could not est ablish his Unruh Act violation claim based on the alleged la ck of adequate access aisles and accessibility routes Treter alleges in his complaint that th e Mall's handicapped-accessible parking suffered from a number of architectural barrier s which, he asserted, denied him equal access to the Mall. Among the barriers to access that Treter alleges are that the Mall had handicapped-accessible parking spaces without access aisles, that the access aisles for

7 In fact, there was no evidence at all pres ented regarding the id entity of the person Treter refers to as "Renee."17 other handicapped-accessible spac es did not comply with app licable standards (i.e., they were directed toward inaccessible entrances), a nd that some of the access aisles adjacent to handicapped-accessible parking spaces were di rected to routes that did not have curb cuts or ramps. In support of its motion for summary ju dgment, Plaza Bonita submitted evidence in the form of Haney's expert declaration in which she stated that at the time sh e surveyed the Mall, it did not suffer from these alleged architectural barriers. Haney's declaration established that at the time she survey ed the Mall, it had a sufficient number of handicapped-accessible parking spaces as required under the ADAAG, that those handicapped-accessible parking spaces were pr operly located within the Mall's various parking lots, that all of the handicapped-ac cessible parking spaces are accompanied by access aisles, and that all of the accessibility routes were directed properly and there was a curb ramp wherever a route cr ossed a curb. In response to this evidence, Treter argued that there remained a triable issue of fact "whether or not th e Mall's handicapped accessible aisles are in violation of th e ADAAG." Treter offered as evidence contradicting Plaza Bonita's expert evidence an "Accessi bility Survey Report," which was apparently prepared by someone named Jon Rose and attached to a declaration submitted by Treter's attorney. The trial court did not accept Treter's pr offered evidence, concluding that the "Accessibility Survey Report" ha d not been properly authenti cated. Given that Treter failed to present any admissible evidence to rebut Plaza Bonita's evidence, the court determined that there was no triable issue of fact with respec t to this claim.18 On appeal, Treter argues that "[t]he evidence submitted [by Plaza Bonita] was regarding the access aisles from the expert in 2012" and that this evidence "did not contradict the evidence of [Treter's] depos ition . . . that they violated the ADAAG in 2009." We agree. Haney attests in her declaration that she was retained by Plaza Bonita "[o]n or around January of 2012." She was "instructed to inspect the architectural barriers alleged in Plaintiff's complaint and id entify whether any of the allege d items were found not to be in compliance with the Am ericans With Disabilities Ac t Accessibility Guidelines ('ADAAG')." Haney states that she "conducted [h er] survey and . . . found that all of the complained of conditions in Plaintiff's complaint comp ly with the ADAAG." The declaration is signed by Hane y and is dated March 8, 2012 . Thus, assuming that Haney conducted her surv ey of the Mall immediately upon bein g retained by Plaza Bonita, her declaration establishes that as of January 2012 , the Mall's handicapped-accessible parking spaces and accompanying access ai sles met the ADAAG requirements. However, her declaration does not establish that the Mall's pa rking lots met the requisite standards as of late 2009 and into January 2010, which is the time period during which Treter alleges that the parking lo ts did not meet those standards. 8

8 Treter filed his complaint on January 14 , 2011. Although th e complaint is less than specific about the time pe riod during which Treter allege s that he found the Mall to be inaccessible to him due to problems with th e access aisles in the parking lot, there is nothing in the record to indicate that Pl aza Bonita challenged the specificity of the complaint prior to moving for summary judgmen t or moved to strike Treter's allegations about the access aisles for lack of specificity. We therefore construe the allegations of the complaint regarding the ac cess aisles as encompassing the time period between May19 Jones's declaration does not assist Plaza Bonita with respect to the accessibility aisle issues raised by Treter's complaint. Jones does not state that the Mall's parking lots had not been altered betwee n January 2010 and January 2012, nor does she make any other claim as to the state of the Mall's parking lots, or the handicapped-accessible parking spaces and accompanying access ai sles, during the relevant time period. 9
Plaza Bonita thus did not submit any competent eviden ce that could establish that it was entitled to summary judgment with respect to the al legations that Treter raises in his complaint about th e inadequacies of the access aisl es and access aisle routes to accessible entrances in late 2009/early 2010. In the absence of evidence demonstrating that Treter cannot establish on e or more elements of his cause of action, or that Plaza Bonita has a complete defense to each ca use of action, summary judgment in Plaza Bonita's favor is not warranted. Plaza Bonita also suggests that Treter doe s not have standing to assert damages for the failings in any access aisles in the Mall's parking lot because he did not demonstrate that the access aisle barriers about which he is complaining were "related to his

2009, which is the earliest date that Treter indicates he could not properly access the Mall, and the filing of the complaint in January 2011.
9 It is questionable whether Jones could have attested to such facts, given that she states in her declaration that she had been the general manager of the Mall for one year, and had previously been employ ed as the manager of five other shopping centers owned by Westfield LLC. Since Jones signed her declaration on March 8, 2012, placing her employment as the Mall's general manager as beginning in March 2011, it does not appear that Jones would have had personal knowledge of the state of the Mall's parking lot and handicapped-accessible parking spaces as of late 2009 and early 2010, the relevant time period for purpos es of Treter's complaint.20 disability." (See Chapman, supra, 631 F.3d at pp. 947-948 [to demonstrate the existence of an injury-in-fact for purposes of fede ral standing under the ADA, a plaintiff must demonstrate an encounter with the noncompliant barrier that is rela ted to the plaintiff's disability].) Treter alleges in his complaint that he suffers from "Scolios is, Kyphosis, Chronic Fatigue Syndrome, and Arnold Chiari Malfor mation Type 1, and sometimes requires the use of a wheelchair." He further alleges th at "[o]n numerous and separate occasions" Plaza Bonita "failed to make the Westfield Bonita Plaza [ sic ] mall accessible" to him due to problems with the access aisles and accessib ility routes. Plaza Bonita contends that Treter "conceded that during the time period relevant to hi s complaint—when he worked at Magic Bug—he did not use a whee lchair." This is not an accu rate statement. It is true that Treter admitted during his deposition that he did not use the wheelchair to get to work when he work ed at Magic Bug. However, immedi ately after making that statement, Treter was asked whether he "had to go to the mall using a wheelchair." Treter responded in the affirmative and indicated that he had done so "[m]aybe 20 [times]." The evidence thus clearly does not defin itively demonstrate that Treter did not use a wheelchair when going to the mall; rather, at a minimum, the evidence regarding Treter's use of a wheelchair while patronizi ng the Mall is in dispute. In view of this evidence, Plaza Bonita has not establishe d that Treter does not have "standing" to allege a violatio n of the ADA (and resultant Unruh Act violation) based on his complaints about the access ai sles in the Mall's parking lots. He clearly alleges that he sometimes used a wheelchai r, including on occasion when he went to the Mall as a21 patron. As a result, Plaza Bonita has not es tablished that it is en titled to judgment as a matter of law on Treter's claim that the Mall suffered from architectural barriers that made it difficult for him to patroni ze the Mall using his wheelchair.
D. The trial court did not err in determinin g that Plaza Bonita demonstrated that Treter could not establish the elements of his Unruh Act claim based on the Mall's locking its automated doors at closing Treter alleges in his complaint that Plaz a Bonita violated the ADA by locking the handicapped-accessible automatic sliding doors at closing time and requiring him to use the manual doors to exit the Mall. According to the co mplaint, Treter called the administration office for the Mall to discuss this issue and was told that the sliding doors were not supposed to be locked. He alleges that despite being told that the sliding doors were not supposed to be locked, he c ontinued to encounter locked handicappedaccessible sliding doors after the Mall was cl osed to the public in the evenings. In response to Plaza Bon ita's evidence that the Mall's policy regarding the locking of the automated doors at closing time was ba sed on safety, and that at each of the entrances there are manual doo rs that remained unlocked from the inside, allowing patrons and employees to exit th e mall, Treter contends that there remains a triable issue of fact as to whether the manual doors "are in violation of the ADAAG." According to Treter, there is conflicting evidence as to wh ether the Mall's manual entrance doors were ADAAG compliant, because, he maintains, un der the ADAAG, these manual doors must require less than five pounds of force to be op ened. He asserts that "[t]here is nothing in the opposition to state that the doors required less than five pounds [of force for activation] in 2012 mu ch less in 2009."22 Regardless whether the manual doors require d more or less than five pounds of force to open during the relevant time period, that information is irrelevant to Treter's claim. Contrary to Treter's position in opposition to summary judgment and now on appeal, the ADAAG does not contain a require ment that exterior doors have a push/pull force of less than five pounds to open. The relevant portion of the ADAAG provides: " 4.13.11[] Door Opening Force. The maximum force for pushing or pulling open a door sha ll be as follows: "(1) Fire doors shall have the minimum opening force allowable by the appropriate administrative authority. "(2) Other doors. "(a) exterior hinged doors: (Reserved). "(b) interior hinged doors: 5 lbf (22.2N) "(c) sliding or folding doors: 5 lbf (22.2N)" (ADAAG, § 4.13.11.) The doors at issue in Tret er's complaint are exterior hinged doors. There is no "maximum force for pushing or pulling open" this type of door under the ADAAG. Rather, that component of the guidelines has been "reser ved," indicating that this portion of the guidelines has not been set. Thus , the ADAAG does not contain a maximum force requirement for the exterior doors that Treter used to exit the Mall after closing, and there are no triable issues of fact regarding whet her the manual doors that Treter had to use when the automatic doors were locked were ADA compliant under the ADAAG.23 IV. DISPOSITION The judgment of the trial court is reversed . The parties are to bear their own costs on appeal.

AARON, J.
WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.