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United States District Court

Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

FRANCISCA MORALEZ, 

Plaintiff, 

v. 

POWER SUPPLY COLLECTIVE, INC., 

et al., 

Defendants.

Case No. 17-cv-00634-CRB 

ORDER GRANTING IN PART AND 

DENYING IN PART PLAINTIFF'S 

MOTION FOR SUMMARY 

JUDGMENT AND DEFENDANT'S 

MOTION FOR SUMMARY 

JUDGMENT

Defendant Power Supply Collective, Inc. (“Power Supply”)1 offers a service 

through which customers place orders for pre-made meals through its website and Power 

Supply delivers those meals to either self-service refrigerators or—for a fee—to the 

customer’s home. Compl. ¶¶ 2-7 (Dkt. 1). Plaintiff Francisca Moralez contends that Power 

Supply’s self-service refrigerators and ordering process violate the Americans With 

Disabilities Act (“ADA”) and analogous provisions of the California Civil Code, see Cal. 

Civ. Code § 51.5; Cal. Health & Safety Code § 19959. Compl. ¶¶ 16-46. The parties have 

now filed cross motions for summary judgment. Pl. Mot. for Summ. J. at 3, 13-14 (Dkt. 

70); Def. Mot. for Summ. J. (Dkt. 71). For the following reasons, this Court GRANTS IN 

PART AND DENIES IN PART Moralez’s motion and GRANTS IN PART AND DENIES 

IN PART Moralez’s Power Supply’s motion. 

I. BACKGROUND 

The parties agree on the relevant facts. Power Supply operates a meal-delivery 

 

1

 Power Supply has subsequently changed its name to “Territory Foods.” Def. Mot. for 

Summ. J. at 1. For clarity, the Court refers to the Defendant as “Power Supply” 

throughout. 
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business. Stip. Undisp. Material Facts ¶¶ 2–3 (Dkt. 60–1). Customers order meals 

exclusively through Power Supply’s website, and can elect to either pick them up at selfservice refrigerators located within other businesses, or have the meals directly delivered 

to their homes for an additional cost of $7.95 per order. Id. ¶ 4. 

On December 29, 2016, Moralez ordered prepared meals from Power Supply’s 

website, and elected to pick them up from a Power Supply refrigerator located at a 

CrossFit gym approximately twenty miles from Moralez’s home. Id. ¶¶ 16–17. Moralez 

suffers from rheumatoid arthritis and uses a wheelchair for mobility. Id. ¶ 15. 

When Moralez arrived at the CrossFit gym, she contends she encountered a host of 

obstacles which “interfered with her full and equal access” to the facility, as well as her 

ability to retrieve her prepared meals. Pl. Mot. for Summ. J. at 5 n.2. Among these 

challenges was that her meals were located on a shelf within the Power Supply refrigerator 

that was more than forty-eight inches above the floor, and therefore beyond her reach. Stip. 

Undisp. Material Facts ¶ 18. 

Moralez brought suit against the gym owner, property owner, and Power Supply, 

alleging violations of the ADA and its California state law analogs. See generally Compl. 

Moralez reached settlements with the other parties, and Power Supply is now the only 

remaining Defendant. Pl.’s Mot. Summ. J. at 5 n.2. She seeks injunctive relief requiring 

that Power Supply locate all meals for pickup within the ADA’s “reach range” standard, 

which requires that items be placed no more than forty-eight inches above the ground, 

regardless of whether the meal purchaser is disabled. Pl.’s Mot. Summ. J. at 5; see also 36 

C.F.R. § 1191 App. D (describing “reach range” technical standards). Alternatively, 

Moralez seeks injunctive relief requiring Power Supply to offer “a mechanism within the 

online ordering process to advise it that the consumer needs the meals located on shelves 

with the ADA’s reach ranges,” Pl.’s Mot. Summ. J; Compl. ¶¶ 29-30; see 42 U.S.C. 

§ 12182(b)(2)(A)(ii). Moralez also seeks statutory damages of $4,000 under California 

law. See Pl.’s Mot. Summ. J; Compl. ¶¶ 34-46; see also Cal. Civ. Code § 52(a). 

II. DISCUSSION 

Summary judgment is appropriate if “there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 
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dispute of material fact is genuine if the evidence, viewed in the light most favorable to the 

nonmoving party, “is such that a reasonable jury could return a verdict for the nonmoving 

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for 

summary judgment bears the initial burden of identifying those portions of the evidence 

that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 

477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, 

that party must affirmatively show that no reasonable jury could find other than in the 

moving party’s favor. Id. at 331 (Brennan, J., dissenting). 

Once the moving party meets its initial burden, the nonmoving party must go 

beyond the pleadings and show that there is a genuine issue for trial. Anderson, 477 U.S. 

at 250. The nonmoving party does this by citing to specific parts of the materials in the 

record or by showing that the materials cited by the moving party do not compel a 

judgment in the moving party’s favor. Fed. R. Civ. P. 56(c). A triable dispute of material 

fact exists only if there is sufficient evidence favoring the nonmoving party to allow a jury 

to return a verdict for that party. Anderson, 477 U.S. at 249. If the nonmoving party fails to 

make this showing, “the moving party is entitled to judgment as a matter of law.” Celotex, 

477 U.S. at 323. 

A. ADA Claim 

Congress enacted the ADA “to provide clear, strong, consistent, enforceable 

standards addressing discrimination against individuals with disabilities.” 42 U.S.C. 

§ 12101(b)(2). To prevail on an ADA Title III discrimination claim, a plaintiff must show 

that: “(1) she is disabled within the meaning of the ADA; (2) the defendant is a private 

entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff 

was denied public accommodations by the defendant because of her disability.” Molski v. 

M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. §§ 12182(a)–(b)). 

The parties agree that the first element is met, Stip. Undisp. Material Facts ¶ 15, but 

vigorously dispute whether Power Supply’s facility qualifies as a “place of public 

accommodation,” such that it is subject to ADA regulation, see 42 U.S.C. § 12181(7), and 

whether Power Supply denied Moralez a public accommodation because of her disability. ; 

Def. Opp’n to Pl. Mot. for Summ. J. at 3-5 (Dkt. 77); Pl. Reply in Support of Mot. for 
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Summ. J. (Dkt. 78) at 2-8. Moralez advances two theories as to this third step: that Power 

Supply’s facility was required to comply with the 2010 ADA Accessibility Guidelines’ 

(“ADAAG”) “reach range” requirement, which requires that certain types of facilities be 

located no more than forty-eight inches above the ground, 2010 ADAAG § 308; Pl. Mot. 

for Summ. J. at 9-11; Def. Mot. for Summ. J. at 6-10, and that Power Supply failed to 

make “reasonable modifications in [its] policies, practices, or procedures, when such 

modifications” to accommodate people with disabilities, as required by the ADA, 42 

U.S.C. § 12182(b)(2)(A)(ii); Compl. ¶¶ 29-30. 

Power Supply responds that the ADA and California’s state law analogs do not 

apply to its refrigerator because Power Supply does not operate a “place of public 

accommodation,” and, in the alternative, its refrigerator is exempt from the ADA’s design 

standards. See Def. Opp’n to Pl. Mot. for Summ. J at 3–8. Power Supply goes on to argue 

that it already provides an adequate mechanism within its online ordering process to 

accommodate disabled patrons, namely that a customer can call or email Power Supply 

and request that the item be placed on a lower shelf. Id. at 11. 

1. Place of Public Accommodation 

The ADA prohibits “any person who owns . . . or operates a place of public 

accommodation” from discriminating against individuals “on the basis of disability in the 

full and equal enjoyment of the goods, services, [or] facilities” offered. 42 U.S.C. 

§ 12182(a). It defines “public accommodations” as facilities operated by a private entity 

whose operations affect commerce, and which fall into one of twelve defined categories. 

Id. § 12181(7); 28 C.F.R. § 36.104 (2018). These categories include, as relevant here, an 

“establishment serving food or drink,” a “sales or rental establishment,” and a “service 

establishment.” 42 U.S.C. § 12181(7). 

Power Supply argues that because its refrigerator is “located inside a third-party 

business . . . it is not an ‘establishment’” of the type contemplated by the ADA. Id. at 4. In 

support of this claim, Power Supply relies on Magee v. Coca-Cola Refreshments USA, 

Inc., 833 F.3d 530 (5th Cir. 2016), cert. denied, 138 S. Ct. 55 (2017). There, the Fifth 

Circuit held that a vending machine was not a public accommodation, because, the Fifth 
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Circuit concluded, “establishment” under § 12181 refers only to stores, not smaller units 

within those stores like vending machines. Id. at 534. It reasoned that, because § 12181(7) 

“uses the term ‘sales establishment’ following a list of retailers occupying physical stores,” 

the term “establishment” was meant to refer exclusively to stores. Id.; see also Def. Opp’n 

to Pl. Mot. for Summ. J at 4-5. Like vending machines, Power Supply argues, its 

refrigerator is located within a third-party place of business that provides other services, 

rather than occupying an entire store itself. Def. Opp’n to Pl. Mot. for Summ. J at 4-5. So, 

it contends, this Court ought to conclude that its refrigerators are not “places of public 

accommodation.” Id. at 5. 

Moralez responds that this Court may not follow the suggestion of Magee because 

the Ninth Circuit’s holding in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 

(9th Cir. 2000), forecloses the result that Magee reached. Pl. Reply (Dkt. 78) at 4-8. Weyer

defined a “places of public accommodations” as “actual, physical places where goods or 

services are open to the public, and places where the public gets those goods or services.” 

198 F.3d at 1114. Power Supply’s refrigerator, Moralez urges, meets this standard because 

a refrigerator occupies physical space and provides goods—premade meals—to the public. 

Pl. Reply at 3-4. 

Moralez is correct. This Court is bound by the Ninth Circuit’s conclusion that 

“places of public accommodations” are defined as “physical places” that provide public 

goods or services. Weyer, 198 F.3d at 1114. A refrigerator is a physical place, and while 

Congress’s listed examples in § 12181(7)(B) describe stores, nothing about that list 

suggests that the inquiry into whether a facility is a place of public accommodation hinges 

on the size of the facility, rather than activities that occur there. To the contrary, the text of 

42 U.S.C. § 12181(7)(B) defines “establishments” by their activities, not the size of their 

physical footprint, as in, for instance, “a restaurant, bar, or other establishment serving 

food or drink.” Id. And nothing in Weyer indicates that the size of an “actual, physical 

place[,]” rather than whether those facilities are “places where the public gets . . . goods or 

services,” is relevant to the analysis. See Weyer, 198 F.3d at 1113-15. Finally, in the case 
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of ambiguity, Congress has instructed that the scope of public accommodations “should be 

construed liberally, consistent with the intent of the legislation that people with disabilities 

should have equal access[.]” H.R. Rep. 101–485 (II), 100, 1990 U.S.C.C.A.N. 303, 383. 

In light of this Congressional instruction and Weyer’s definition of “places of public 

accommodation,” this Court concludes that, as a matter of law, Power Supply’s 

refrigerator is a “place of public accommodation,” and thus subject to the ADA. Thus, this 

Court concludes that, as to step two of the ADA inquiry, “the defendant is a private entity 

that owns, leases, or operates a place of public accommodation.” Molski, 481 F.3d at 730. 

The Court thus GRANTS summary judgment to Moralez on the question whether Power 

Supply’s refrigerator is a place of public accommodation. 

2. Reach Range Requirements 

As a “place of public accommodation,” Power Supply’s facility must be designed to 

be “readily accessible to and usable by individuals with disabilities.” 42 U.S.C. 

§ 12183(a)(1); accord Molski, 481 F.3d at 730. Whether a facility is “readily accessible” is 

defined, in part, by the 2010 ADAAG. See Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 

939, 945 (9th Cir. 2011). As relevant here, the ADAAG require that certain portions of 

facilities, including storage spaces, 36 C.F.R. § 1191 App. B at § 225, are built within a 

“reach range” of forty-eight inches to ensure readily accessible and usable facilities for 

disabled individuals. 2010 ADAAG § 308.3; 75 Fed. Reg. 56,236, 56,319 (Sept. 15, 2010); 

36 C.F.R. § 1191 App. B; see also 42 U.S.C. § 12183(a)(1). 

The parties agree that some, but not all, of the shelving in Power Supply’s 

refrigerator is within that forty-eight inch reach range. Stip. Undisp. Material Facts ¶ 11. 

But the parties dispute whether the reach range requirement applies to Power Supply’s 

refrigerator’s shelving. Power Supply argues that its refrigerator is not a storage unit, but 

rather is self-service shelving, which is not required to comply with the ADAAG’s reach 

range requirements. Def. Mot. Summ. J. at 7-10; 2010 ADAAG § 225.2.2. Moralez 

contends that the refrigerator qualifies as a storage space, and thus, “at least one of each 

type of [Power Supply’s] storage must be within the reach ranges . . . however, it is 
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permissible to install additional storage outside the reach ranges.” 2010 ADAAG § 225.2; 

Pl. Mot. for Summ. J. at 9. 

The Court begins with Power Supply’s contention that its refrigerator shelves are 

“self-service shelves” because customers pick up their pre-purchased items from the 

shelves; an employee does not retrieve customers’ items for them. Def. Mot. Summ. J. at 

9. Power Supply further urges that if the Court concludes that the refrigerator shelves are 

storage, then “all food in supermarket refrigerators or freezers . . . stored on those shelves 

while awaiting sale” would likewise constitute storage, rather than self-service shelving. 

Def. Opp’n to Pl. Mot. for Summ. J. at 9-10. 

But Power Supply’s argument misunderstands the nature of “self-service shelving.” 

While Power Supply is correct that customers themselves retrieve the items from the 

refrigerator’s shelves, customers do not arrive at Power Supply’s refrigerator and browse 

through Power Supply’s selection of available items, as customers in a supermarket do. 

See Stip. Undisp. Material Facts ¶¶ 4-8. And the ADAAG contemplates that self-service 

shelving is of the kind found in libraries, stores, and post-office shelves, which are all 

places in which customers typically select from a variety of available items, rather than 

picking up a pre-selected and pre-purchased item. See 2010 ADAAG Advisory § 225.2.2. 

Self-service shelving, thus, is best read to reference this type of open-selection shelves 

found in a “library, store, or post office,” id., not merely any shelving where customers, 

rather than employees, take down an item. 

Power Supply’s facility is better understood as “storage.” The ADAAG does not 

offer a definition of “storage,” but it does provide a helpful list of “[t]ypes of storage,” 

which “include, but are not limited to, closets, cabinets, shelves, clothes rods, hooks, and 

drawers.” 2010 ADAAG Advisory § 225.2. In general usage, “storage” is often used to 

refer to the retention of a specific and individual item, as in a “personal storage unit.” 

“Storage,” then, is best read to cover areas that contain specific items. See 2010 ADAAG 

Advisory § 225.2. 

The distinction between the placement of specific items in “storage” and the 
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placement of items generally available to the public on “self-service shelving” ameliorates

Power Supply’s concern that all refrigerated supermarket shelves could be viewed as 

storage. Def. Opp’n to Pl. Mot. for Summ. J. at 9-10. Supermarket refrigerator shelves 

allow customers to select freely from available items just as customers do from nonrefrigerated supermarket shelves. And nothing in the distinction between self-service 

shelving, where customers are free to select from generally available items, and storage, 

where specific items are placed, turns on whether the facility in question is refrigerated. A 

refrigerated supermarket shelf, thus, would be, despite Power Supply’s protestations to the 

contrary, properly deemed “self-service shelving.” 

By contrast, Power Supply’s refrigerator shelves, from which customers pick up 

their pre-selected and pre-purchased meals, Stip. Undisp. Material Facts ¶¶ 4-8, are 

properly categorized as storage, not self-service shelving. Power Supply’s refrigerator 

stores meals that are customer-specific, pre-selected and pre-purchased, placed on shelves 

while awaiting pickup, and are not available for other customers to purchase. See Stip. 

Undisp. Material Facts ¶¶ 4-8. Nor does anything in the ADAAG suggest that the fact that 

Power Supply facility is refrigerated alter this understanding. See 2010 ADAAG § 225.2. 

Thus, Power Supply’s refrigerator is best understood as storage. And, as a result, “at least 

one of” Power Supply’s facility “must be within the reach ranges . . . however, it is 

permissible to install additional storage outside the reach ranges.” 2010 ADAAG § 225.2. 

There is one further matter to address on this issue: whether Power Supply’s 

“storage” area is properly construed as the shelves within the refrigerator or the 

refrigerator itself. Moralez appears to contend both that the refrigerator itself is “storage” 

and that the shelves within that refrigerator are “storage.” See Pl. Mot. for Summ. J. at 10-

11. Given that most of the items in the list of examples of storage provided in the 

ADAAG—“closets, cabinets, shelves, clothes rods, hooks, and drawers,” 2010 ADAAG 

§ 225.2—refer to a portion of a larger storage unit, rather than the full unit itself, the Court 

concludes the proper unit is the refrigerator shelves, rather than the entire refrigerator. The 

correct “storage” unit is thus the shelves inside the refrigerator, not the refrigerator as a 
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whole. 

As a result, because the ADAAG requires only that “at least one of each type of 

storage must be within the reach ranges,” and the parties agree that at least one shelf in 

Power Supply’s refrigerator is within the forty-eight inch reach range, Stip. Undisp. 

Material Facts ¶ 11, the design of Power Supply’s refrigerator does not violate the 

ADAAG. See 2010 ADAAG § 225.2. So, Power Supply’s refrigerated shelving, and thus 

the design of its refrigerator, is not in violation of the ADA’s design requirements. The 

Court thus GRANTS IN PART Power Supply’s motion for summary judgment, as to 

Moralez’s claim that the physical design of Power Supply’s refrigerator violates the ADA. 

3. Reasonable Modifications 

The foregoing conclusion does not, however, end the case, or even Moralez’s ADA 

claim. In addition to her ADA design claim, Moralez also alleges that Power Supply has 

failed to make “reasonable modifications in [its] policies, practices, or procedures” to 

accommodate people with disabilities, as required by the ADA. 42 U.S.C. 

§ 12182(b)(2)(A)(ii); Compl. ¶¶ 29-30. However, she has not sought summary judgment 

on this issue, instead instructing the Court that “the parties can craft an injunction whereby 

[Power Supply] offers a mechanism within the online ordering process to advise it that the 

consumer needs the meals located on shelves with the ADA’s reach range.” Pl. Mot. for 

Summ. J. at 13. Power Supply asserts that if Moralez “had actually needed help reaching 

her order, she could have asked,” Def. Mot. for Summ. J. at 10, but offers no support in the 

record for this claim. Id. It further asserts that customers seeking ADA accommodation can 

call or email Power Supply and request that the item be placed on a lower shelf. Def. 

Opp’n to Pl. Mot. for Summ. J at 11. But, it provides no support in the record for this 

claim, nor any legal basis on which to conclude that this qualifies as a “reasonable 

modification.” See id. 

In light of Power Supply’s unsupported claims and Moralez’s failure to offer a basis 

for summary judgment on this issue, the Court cannot conclude that “there is no genuine 

dispute as to any material fact” that would support summary judgment to either party on 
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Moralez’s reasonable modifications claim. See Fed. R. Civ. P. 56(a). As a result, this Court 

cannot conclude, as a matter of law, whether Power Supply violated the ADA, because, 

though the design of Power Supply’s refrigerator did not violate the ADA’s design 

requirements, there remains a “genuine issue of material fact” as to whether Power Supply 

could have made “reasonable modifications” to its website or ordering process to 

accommodate people with disabilities. The Court DENIES summary judgment as to 

Moralez’s reasonable modifications ADA claim to either party. 

B. California Law Claims 

Moralez has not sought summary judgment as to her two California antidiscrimination law claims. See Pl. Mot. for Summ. J. at 1. Power Supply has only sought 

summary judgment on these claims on the basis of its arguments discussed above. Def. 

Mot. for Summ. J. at 1. The parties agree that “California access laws are identical to 

federal law with regards to the self-service shelving reach range requirements.” Pl. Opp. to 

Def. Mot. for Summ. J. at 13; Def. Mot. for Summ. J. at 1; accord Cal. Code. Tit. 24, 

§§ 11B-225.2.2, 11B-904.5.1. As such, this Court GRANTS summary judgment Power 

Supply on whether the design of its refrigerator is compliant with California law. 

However, as discussed above, there remains uncertainty as to whether Power 

Supply could have modified its website in order to provide Moralez with a reasonable 

accommodation. Nor does either party offer any basis specific to California law on which 

this Court could grant summary judgment on this issue. See generally Pl. Mot. for Summ. 

J.; Def. Mot. for Summ. J. Thus, the Court DENIES summary judgment to either party on 

this aspect of Moralez’s state law claims. See Celotex Corp, 477 U.S. at 323 (“[A] party 

seeking summary judgment always bears the initial responsibility of informing the district 

court of the basis for its motion.”).