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Kelley v. Cervantes

United States District Court, D. Utah

June 18, 2018

TREVOR KELLEY, Plaintiff,
v.
MARTINA CERVANTES d.b.a. GUALBERTOS MEXICAN FOOD, Defendant.

          MEMORANDUM DECISION AND ORDER DENYING MOTION TO DISMISS AND DENYING MOTION FOR SUMMARY JUDGMENT

          Jill N. Parrish United States District Court Judge

         I. INTRODUCTION

         Plaintiff Trevor Kelley sued Defendant Maria Cervantes d.b.a Gualbertos Mexican Food. Mr. Kelley requires the use of a wheelchair, and he alleges that he encountered five “architectural barriers, ” such as towel dispensers that were too high, when he visited Ms. Cervantes' restaurant, Gualbertos Mexican Food. Based on this, he alleges that Ms. Cervantes violates the Americans with Disabilities Act (the “ADA”).

         Ms. Cervantes moves to dismiss the case on the grounds that she removed the architectural barriers of which Mr. Kelley complained, rendering the case moot. But she has not actually removed all of the architectural barriers, so the case is not moot.

         Ms. Cervantes moves for summary judgment on the grounds that she is not a proper defendant because Cervantes Restaurant, LLC is the sole owner of Gualbertos. But the evidence on which Ms. Cervantes relies does not support this defense, and she previously swore under oath that she is “one of the owners of Gualbertos.” So her motion for summary judgment must be denied because there is a genuine dispute as to whether she owns Gualbertos.

         II. FACTUAL BACKGROUND

         Mr. Kelley alleges that he encountered the following five architectural barriers when he visited Gualbertos:

1. “Failure to provide an unobstructed high forward reach to the towel dispenser no greater than 48 inches (1220 mm) above the ground.”
2. “Failure to provide operable parts of entry door hardware that are operable with one hand and do not require tight grasping, pinching, or twisting of the wrist with no more than 5 pounds of operable force.”
3. “Failure to provide accessible parking space identification signs 60 inches (1525 mm) above the finish floor or ground surface.”
4. “Failure to provide sings containing the designation ‘van accessible' that identify van parking spaces.”
5. “Failure to locate mirrors over lavatories and countertops with the bottom edge of the reflecting surface no greater than 40 inches (1015 mm) above the ground.”

         Ms. Cervantes moves to dismiss Mr. Kelley's complaint on the grounds that she removed these architectural barriers from Gualbertos. Ms. Cervantes also states that she is not the proper defendant because “[t]he actual owner of the restaurant in question is Cervantes Restaurant, LLC.” Ms. Cervantes did, however, submit a declaration that provides, “I am one of the owners of Gualbertos Mexican Food located at 478 East 12300 South, Draper, Utah . . . which is the subject of the instant legal action.”

         After reviewing Ms. Cervantes motion to dismiss, the court indicated that it was not inclined to reach the merits of the motion because Ms. Cervantes was arguing that the proper, unnamed defendant-Cervantes Restaurant, LLC-removed the architectural barriers from Gualbertos. Accordingly, the court instructed Ms. Cervantes to either (1) concede that she is a proper defendant or (2) “file a ...


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