exhibit 2 - SAP Lawsuit Portal

DISCUSSION
A. Legal Standard
Case4:07-cv-01658-PJH Document875-5 Filed09/16/10 Page5 of 17
Summary judgment is appropriate when there is no
genuine issue as to material facts and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P.
56. Material facts are those that might affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). [*10]
A dispute as to a material fact is "genuine" if there is
sufficient evidence for a reasonable jury to return a
verdict for the nonmoving party. Id.
A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion,
and of identifying those portions of the pleadings and
discovery responses that demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). Where the moving party will have the burden of
proof at trial, it must affirmatively demonstrate that no
reasonable trier of fact could find other than for the
moving party. On an issue where the nonmoving party
will bear the burden of proof at trial, the moving party
can prevail merely by pointing out to the district court
that there is an absence of evidence to support the
nonmoving partys case. Id. If the moving party meets its
initial burden, the opposing party must set forth specific
facts showing that there is some genuine issue for trial in
order to defeat the motion. See Fed. R. Civ. P. 56(e);
Anderson, 477 U.S. at 250.
"To show the existence [*11] of a genuine issue, . . .
[a plaintiff] must produce at least some significant
probative evidence tending to support the complaint."
Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963
(9th Cir. 1990) (quotations omitted). The court must view
the evidence in the light most favorable to the
non-moving party. United States v. City of Tacoma, 332
F.3d 574, 578 (9th Cir. 2003). The court must not weigh
the evidence or determine the truth of the matter, but only
determine whether there is a genuine issue for trial. Balint
v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). If
the nonmoving party fails to show that there is a genuine
issue for trial, "the moving party is entitled to judgment
as a matter of law." Celotex, 477 U.S. at 323. Regardless
of whether plaintiff or defendant is the moving party,
each party must "establish the existence of the elements
essential to [its] case, and on which [it] will bear the
burden of proof at trial." Id. at 322.
2006 U.S. Dist. LEXIS 38430, *9
B. Title III of the ADA
Page 4
Plaintiffs ADA claims arise under Title III of the
ADA, which prohibits discrimination against disabled
individuals [*12] in any place of public accommodation.
42 U.S.C. § 12182(a); Bird v. Lewis & Clark College,
303 F.3d 1015, 1020 (9th Cir. 2002). Liability is imposed
upon "any person who . . . operates a place of public
accommodation" that discriminates against an individual
on the basis of disability. Id. Aside from attorneys fees,
the only remedy available to a private litigant under Title
III of the ADA is injunctive relief. 42 U.S.C. §
12188(a)(1); see also Wander v. Kaus, 304 F.3d 856, 858
(9th Cir. 2002).
In enacting the ADA, Congress adopted two systems
for regulating building accessibility -- one to apply to
facilities designed and constructed for occupancy before
January 26, 1993, and one to apply to newly constructed
or altered facilities. See 42 U.S.C. § 12183(a)(1) and §
12182(b)(2)(A)(iv). Congress also directed the
Department of Justice (DOJ) to issue regulations
implementing Title III. 42 U.S.C. § 12186(b). The DOJ
regulations are at Part 36 of 28 C.F.R.
Only newly-constructed or altered facilities must
comply [*13] with the ADA Accessibility Guidelines
("ADAAG"), which were incorporated into the DOJ
regulations as Appendix A of 28 C.F.R. Part 36. See 28
C.F.R. § 35.151(c). When a facility is deemed "altered,"
the altered portion of the facility must be made accessible
"to the maximum extent feasible." The infeasibility
exception "applies to the occasional case where the
nature of an existing facility makes it virtually impossible
to comply fully with applicable accessibility standards. . .
." 28 C.F.R § 36.402(c).
The demand upon preexisting facilities that are not
deemed altered is much less stringent. Existing facilities
must remove architectural barriers to access only where
such removal is "readily achievable." See 42 U.S.C. §
12182(b)(2)(A)(iv). The term "readily achievable" means
"easily accomplished and able to be carried out without
much difficulty or expense." 42 U.S.C. § 12181(9); see
also 28 C.F.R § 36.304(a) (preexisting facilities must
remove barriers to accessibility only "where such
removal is readily achievable, i.e., easily [*14]
accomplishable and able to be carried out without much
difficulty or expense"). The applicable regulations
mandate that a public accommodation shall remove
architectural barriers where such removal is readily