United States District Court, D. Arizona
MICHELLE H. BURNS, District Judge.
Pending before the Court is Defendant GIPHX10, LLC's ("GIPHX10") Motion for Summary Judgment (Doc. 66) and Plaintiff Jill Wiele's Motion for Summary Judgment (Doc. 68). After considering the arguments raised by the parties in their briefing, the Court now issues the following ruling.
Plaintiff visited Defendant Grace Holding Company, LLC's ("Grace") hotel property on February 4 and 5, 2013. During her visit, Plaintiff contends that she encountered access barriers that she believes violated the ADA and AzDA. Plaintiff filed this lawsuit against Grace on February 21, 2013. (Doc. 1.) On July 13, 2013, Plaintiff's expert inspected Grace's hotel, and opined that certain areas of the hotel violated the ADA and AzDA.
GIPHX10 purchased the hotel from Grace on July 31, 2013. GIPHX10 claims that immediately after purchasing the hotel, it closed the property for renovations to convert it to a Four Points by Sheraton franchise. GIPHX10 alleges that the hotel reopened on April 24, 2014, after passing inspections by the City of Phoenix, Maricopa County, and the Sheraton franchisor. Plaintiff filed her Second Amended Complaint to add GIPHX10 on October 9, 2013. (Doc. 33.) Plaintiff alleges that in May 2014, she checked to see if the hotel had become accessible and encountered missing signage at accessible parking spaces. The parties filed their cross-motions for summary judgment on June 16, 2014.
STANDARD OF REVIEW
Summary judgment is warranted if the evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The moving party must produce sufficient evidence to persuade the court that there is no genuine issue of material fact. See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc. , 210 F.3d 1099, 1102 (9th Cir. 2000). Conversely, to defeat a motion for summary judgment, the nonmoving party must show that there are genuine issues of material fact. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986). A material fact is one that might affect the outcome of the suit under the governing law, and a factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
The moving party bears the initial burden of 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 any genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). If the nonmoving party would bear the burden of persuasion at trial, the moving party may carry its initial burden of production under Rule 56(a) by producing "evidence negating an essential element of the nonmoving party's case, " or by showing, "after suitable discovery, " that the "nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire , 210 F.3d at 1105-06; High Tech Gays v. Defense Indus. Sec. Clearance Office , 895 F.2d 563, 574 (9th Cir. 1990).
When the moving party has carried its burden under Rule 56(a), the nonmoving party must produce evidence to support its claim or defense by more than simply showing "there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact for trial. See id. The nonmoving party's evidence is presumed to be true and all inferences from the evidence are drawn in the light most favorable to the nonmoving party. See Eisenberg v. Ins. Co. of North America , 815 F.2d 1285, 1289 (9th Cir. 1987). If the nonmoving party produces direct evidence of a genuine issue of material fact, the motion for summary judgment is denied. See id.
GIPHX10 argues that Plaintiff fails to present any evidence or demonstrate any violation against it pursuant to the ADA. Specifically, GIPHX10 states that the June 13, 2013 inspection was the result of alleged injuries Plaintiff suffered during her February 4 and 5, 2013 visit of the subject property. GIPHX10, however, contends that it did not own the property until July 31, 2013, and that prior to this - including the time the injuries and inspection occurred - the property was under the ownership of Grace. Therefore, the alleged injuries resulting from the Plaintiff's February 4 and 5, 2013 visit and the subsequent July 13, 2013 inspection, occurred before GIPHX10 owned and operated the property, closed the property for renovations, and converted the property to a Four Points by Sheraton franchise.
Additionally, GIPHX10 asserts that the only injury to have allegedly occurred while it owned the subject property, happened during Plaintiff's May 2014 visit. GIPHX10 contends, however, that this fact should not be considered by the Court as it was not disclosed during the discovery period or prior to the filing of Plaintiff's Motion for Summary Judgment. Even if considered by the Court, GIPHX10 argues that Plaintiff cannot show an injury-in-fact or that removal of the barrier is readily achievable.
Plaintiff argues that even if her injury began during her first visit to the hotel under Grace's ownership, she has standing for a claim for injunctive relief against GIPHX10, as the new owner, for the injury that she will suffer when she returns to the hotel and encounters the same barriers as before. As for the nondisclosure of information related to Plaintiff's May 2014 visit to the subject property, Plaintiff claims that the failure to disclose was justified and harmless. Plaintiff states that her May 2014 visit was undertaken without the knowledge of her counsel, who claims that he did not learn of the visit until mid-June, during the drafting of the Motion for Summary Judgment. In any event, ...