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EXHIBIT 1

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LYNN HUBBARD III, ESQ, SBN 69773 SCOTTLYNN HUBBARD 1V ES Q., SBN 212970 DISABLED ADVOCACY G)kkOUP, APLC 12 WILLIAMSBURG LANE CHICO CA 95926 (530) 05-3 52 Attorneys for Plaintiff, DIANE CROSS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DIANE CROSS, Plaintiff, V.
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) Case No.: 07cv0486 J (LSP) Plaintiffs Op position to Defendants ValVista South, LLC and ValVista North LLC' s Motion for an Order for a More Definite Statement - an Order Declining Su pplemental Jurisdiction Over Plaintiffs State Claims ; an Order Dismissing Claims Against ValVista for Failure to State a Claim- and, an Order Setting an Evidentiary IJearing on Article III Standing Date: May 29, 2007 Time: 9:00 a.m. Room: 12 Hon. Napoleon A. Jones, Jr.

BOSTON MARKET CORPORATION dba BOSTON MARKET #1167; et al, Defendants

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PLAINTIFF'S OPPOSITION TO
DEFENDANTS' MOTION CROSS v.. BOSTON MARKET CORPORATION, ET AL.

EXHIBIT I

07cv0486J(LSP)

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1. INTRODUCTION Defendants ValVista South, LLC and ValVista North, LLC (hereinafter, collectively "ValVista") move this Court for: an order for a more definite statement; an order declining supplemental jurisdiction over plaintiff Diane Cross' state claims; an order dismissing Cross' claims against Valvista for failure to state a claim; and an order setting an evidentiary hearing on the issue of Cross' Article III standing. (To date, numerous other defendants in this action have joined in this motion. They are: Boston Market Corporation dba Boston Market #1167; System Capital Real Property Corporation; The Krausz Companies, Inc.; Krausz Vista, LLC; Krausz Vista Two, LLC; and, Michaels Stores, Inc. dba Michaels #9538. Hereinafter, Cross will refer to all defendants collectively, i.e. "defendants," unless referring to a specific defendant, at which time Cross will identify that defendant by name.) Defendants' arguments are without merit. Plaintiff will deal with these arguments seriatim.

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II. DISCUSSION A. More Definite Statement 1. Dates of Cross' Visits

Facts regarding the specific dates and times of Cross' visits to defendants' properties at issue in this matter are easily discerned through the process of discovery. Cross has done all she needs to do at this stage and pursuant to the liberal pleading standards of Fed. R. Civ. P. 8; she has alleged visiting the subject properties during the statutory period. However, Cross is more than happy to amend her complaint under the liberal pleading standards of Fed. R. Civ. P. 8 to indicate - and thereby allege - the specific dates of her visits to defendants' businesses, and would even attach documentary proof of said visits (in the form of receipts) if this Court deems it
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necessary to comply with the liberal pleading standards of Rule 8. Furthermore, Cross also must point out a glaring legal error on the part of ValVista. ValVista claims that it "is not liable for visits which occurred before" it -2PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION CROSS v.. BOsTONMARKET CORPORATION, ET AL. 07cv0486 J (LSP)

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acquired an ownership interest in the property, which was approximately two months prior to the filing of the complaint. Presumably, ValVista is arguing that unless Cross visited in the two-month time period between when ValVista acquired an ownership interest and the filing of the complaint, ValVista cannot possibly be guilty of discrimination, and should be allowed to walk scot-free. There are two problems with this argument. First, for support, ValVista points to a Florida district court case, Rodriguez v. Investco, 305 F.Supp.2d 1278 (M.D. Fla. 2004). This court ruled that since a defendant who acquired a property interest in the subject property did so after plaintiff Rodriguez visited the property, defendant could not be held liable under the ADA. The reasoned thusly (and as cited by ValVista in their moving papers): ...In light of the ADA's plain language, the intentional discrimination evidenced when one fails to abide by ADA accessibility guidelines can only be the intentional discrimination of a person who designs and constructs a place of public accommodation or causes that design or construction to be done. Rodriguez, 305 F.Supp. at 1282-83 (emphasis added). According to this Florida court, defendant Investco merely purchased an existing non-compliant facility. For whatever reason - and contrary to holdings across the country - this Florida court found a requirement of intentional discrimination in order to find a violation of the ADA. However, that is most certainly not the law in the Ninth Circuit. As the Ninth Circuit has so succinctly stated: "It is undisputed that a plaintiff need not show intentional discrimination in order to make out a violation of the ADA." Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 846 (9' Cir. 2004). ValVista's reliance on Rodriguez is misguided. It matters little whether ValVista intended for the design or construction of the subject property to be the way it is currently. Furthermore, ValVista is also incorrect in its none-too-subtle assertion that since

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Cross potentially visited prior to its acquisition of any property interest in the subject
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property, is has no liability whatsoever. This is incorrect. At this point, now that ValVista does.possess a property interest, issues of liability do in fact attach: firstly, ValVista now has a responsibility to remove architectural barriers to access where it is readily achievable to do so, 42 U.S.C. §12182(b)(2)(A)(iv); and secondly, should this Court eventually rule for Ms. Cross and issue injunctive relief pursuant to the ADA, ValVista would naturally be a necessary party in order to carry out that injunctive relief with respect to the property it owns, leases and/or otherwise controls. At any rate, Cross is more than willing to amend her complaint should this Court find it too ambiguous or unclear as to when she visited, and should this Court find that such information would not available to ValVista through the process of discovery. 2. The Access Barriers Complained of by Cross are Not Ambiguous

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Defendants next argue that they cannot discern from the complaint which access
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barriers Cross is asserting; or, rather, and more accurately, they cannot discern which barriers plaintiff is not asserting. See Defendants' Motion, p. 6. Apparently, the confusion lies in the fact that Cross has identified barriers that, while not affecting her directly (that is, they are unrelated to her own disability), are in fact violations of the ADA. As the complaint itself makes clear, Ms. Cross identified these barriers as a courtesy to defendants; she clearly states that she is not seeking to remove those barriers not related to her disability. See Complaint, Docket Item #1, T 79. Defendants' argument is as disingenuous as it is meritless. Ms. Cross does not "hide the ball" as to what her disability is: "Cross is a paraplegic as a result of an automobile accident and requires the use of an electric wheelchair and mobility-equipped vehicle when traveling in public." See id., at T17.

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She does not claim to be hearing impaired. She does not claim to have a vision impairment. Obviously, those barriers that she is not seeking to remove would be those that relate to such disabilities as hearing and vision impairment. The overwhelming majority of the barriers asserted in the exhibits attached to plaintiffs complaint relate to issues that present barriers and obstacles to a person with a mobility disability, like Ms.
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Cross. However, a barrier such as a lack of restroom signage with Braille identification would be an example of a barrier that does not relate to Ms. Cross, but which she identified as a courtesy to defendants. This is not rocket science. However, if this Court so wishes, and deems it necessary pursuant to the liberal pleading standards of Rule 8, Ms. Cross will amend her Complaint and specifically identify those barriers that she identified as a courtesy but which she is not seeking to remove. 3. Identification of Where the Barriers are is Not Ambiguous

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Finally, defendants complain that they "cannot discern the exact location of [the] barriers and therefore whether these barriers are in areas within its ownership and control." See Defendants' Motion, p. 7. With all due respect, this is a ludicrous argument. To begin with, as defendants admit in their moving papers, Cross attached ten (10) separate exhibits to her Complaint; one exhibit for each property and/or business. Each exhibit identified barriers on that property, or within that business. Furthermore, plaintiff s complaint specifically addresses which defendants she contends own, operate, or have control over each property and/or business. See Complaint, Docket Item #1, ¶¶ 1, 2. Attaching such a detailed list of barriers - one exhibit for each business and/or property - goes far bg and the "short and plain statement" of allegations required by Fed. R. Civ. P. 8. Presumably each defendant is cognizant of the property interest it possesses, and/or which business it owns and/or operates. (Based on defendants' arguments, perhaps plaintiff presumes too much.) Cross simply cannot comprehend how, armed with this information, defendants are at a loss to identify the location of asserted barriers. For example, Exhibit F of the Complaint identifies barriers at the Michael's retail establishment. The third page of this Exhibit (or, page 116 of the Complaint) identifies barriers encountered or known to Cross that exist within the women's

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restroom. See Complaint, Docket Item # 1, Exhibit F attached thereto. Plaintiff assumes
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that a student in junior high school could deduce that this refers to the women's
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restroom at Michael's, and not the restroom located within (a) different defendants' business and/or property, say, for example, Target. Is this truly an issue for defendants' learned counsel? This argument is without merit. B. Supplemental Jurisdiction Defendants' argument here centers on the recent state appellate court decision of Gunther v. Lin, 144 Cal.App.4 h 223 (2006), as well as a recent case from within this District, Cross v. Pacific Coast Plaza Invest., No. 06cv2543 JM (RBB) (S.D.Cal. Mar. 6, 2007). However, it is Cross' belief that Gunther: 1) misinterpreted statutes at issue, as well as ignored the statutes' clear legislative history; and 2) is wrong on the law. Given the importance of this issue, Cross will spend considerable time analyzing Gunther. 1. Gunther Misinterprets Both the Language of the Statues at Issue as

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Well as Ignores Legislative History Recently, in the Eastern District, Senior District Court Judge Lawrence Karlton
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offered a thorough and succinct analysis of the Gunther case, and whether it should be interpreted to mean that Unruh Act requires intent, even when an ADA violation has been proven.' This analysis, which takes apart Gunter bit by bit, is eminently applicable here, and is a strong and reasoned counterpoint to this Court's recent decision in the Cross case cited by defendants. a. Gunther is Not Controlling and it Directly Contradicts Prior Ninth

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Circuit Law As an initial matter, Judge Karlton notes that when a state's highest court declines to rule on an issue of state law, a federal court must use its own best judgment

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1 Cross has attached a copy of Judge Karlton's Order to his concurrently filed Request for Judicial Notice for the convenience of the Court.

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to discern how that high court would decide. As the California Supreme Court recently declined to hear the appeal of Gunther, the decision of the California appellate court in Gunther is not controlling on a federal court. See Wilson v. Haria and Gogri Corp. dba Jack-In-The-Box #551, Case No. CIV.S-05-01239 LKK-DAD, March 22, 2007, To Be Published (hereinafter "Jack-in-the-Box"), p. 13-14. Rather, "a federal court sitting in diversity must use its own best judgment to predict how the [California Supreme] court would decide the issue." Id. at 13, citing Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9t' Cir. 1980). Furthermore, this Court cannot presume that because California's highest court declined to hear the Gunther appeal, Gunther is the law of the land. A denial of review may occur for many reasons: for example, a lack of appellate split on the issue at the present time. Such denial therefore cannot be taken as California's Supreme Court's approval of Gunther. See Digenova v. State Bd ofEduc. 57 Cal.2d 167, 178 (1962). Judge Karlton - like the court in Cross v. Pacific Coast Plaza - noted that Gunther directly contradicts the Ninth Circuit case of Lentini v. Calif. Cntr. for the Arts, 270 F.Supp.3d 837, 847 (9' Cir. 2004), which held that because a disabled plaintiff need not prove discriminatory intent under the ADA, plaintiffs also need not prove discriminatory intent under the Unruh Act, since the California legislature amended the Act to incorporate the ADA standards of liability. See Jack-in-the-Box, at 14.

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Judge Karlton then framed the issue: Whether, therefore, a federal court is bound by Lentini, or is obligated to reconsider Lentini in light of Gunther? As Judge Karlton then observed, answering this question was not necessary, as a statutory and legislative history analysis of the Unruh Act convincingly shows that Gunther is not the law of the state, and federal courts are free to disregard intermediate state court decisions where there is "convincing evidence" that the state's highest court would decide differently.
Idd, at 15, citing In re Watts, 298 F.3d. 1077, 1083 (9' Cir. 2002). Cross will now discuss this "convincing evidence."
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b.

The Unruh Act Includes BOTH Sections 51 AND 52

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As Judge Karlton notes, Gunther's [legal] reasoning is "flawed from the outset," because the linchpin of the Gunther court analysis is its assertion that the Unruh Act is comprised solely of Calif. Civil Code section 51. See Gunther v. Lin, 50 Cal.Rptr.3d 317, 320 (Ca1.App. 4 Dist., 2006). However, asserting that the Unruh Act consists only of section 51 would mean that the enforcement section of the Unruh Act - Calif. Civil Code section 52 - is not part of the Unruh Act. This inconsistency is not explained - or reasonably dealt with - by the Gunther court. Indeed, as Judge Karlton notes in Jack-in-the-Box, the case that Gunther so heavily relies upon, Harris v. Capital Growth InvestorsA7V, (1991) 52 Cal.3d 1142, even acknowledges that the Unruh Act encompasses both sections 51 and 52. See Jack-in-the-Box, at 17, citing Harris, 52 Cal.3d at 1172 (where the Harris court stated that section 52 is "the language of the Act").

Therefore, when the California legislature in 1992 amended the Unruh Act to incorporate the ADA at section 51(f), there can be no doubt that the legislature also intended that victims of ADA discrimination would be entitled to the remedies
provided by the enforcement section of section 52. Simply put, sections 51 and 52 cannot be divorced - they both comprise the Unruh Act. Yet Gunther's analysis attempts to do just that - separate the Act. Under
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Gunther an ADA violation is a violation of the Unruh Act, but section 52 does not apply unless intent is proven. As Judge Karlton eloquently explains, this is flawed reasoning. If section 51 was amended by the legislature to include the standards of liability of the ADA - which clearly does not require discriminatory intent - then section 52 was obviously part of this amendment process. Therefore there is no intent required when an ADA violation is shown in order to trigger section 52's enforcement provision. . Simply put, if Gunther's analysis is correct - section 51 can be amended without any effect on section 52 - then the California's Legislature's amending of the Unruh
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Act to include violations of the ADA is rendered completely meaningless. C. Legislative History

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Indeed, the most powerful part of Judge Karlton's analysis involves an examination of the history of the legislation leading up to the 1992 amendment of the Unruh Act - what, exactly, did the California Legislature intend? This is essential, because California's Supreme Court has explained that analysis of state statutes begins with "the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent." Kimmel v. Goland, 51 Cal.3d 202, 208 (1990) (emphasis added). regarding this is clear and to the point: The legislative history of Section 51(f) reveals an intent to include unintentional disability discrimination within the scope of the Unruh Act. The Assembly Committee on Judiciary report on AB 1077 (as amended January 2, 1992, p.2) stated that the bill would: `Make a violation of the ADA a violation of the Unruh Act. Thereby providing persons injured by a violation of the ADA with the remedies provided by the Unruh Act (e.g., right of private action for damages).' Jack-in-the-Box, at 18 (emphasis added). Judge Karlton also noted that the California Senate Committee on Judiciary evinced the same intent: [T]his bill would make a violation of the ADA a violation of the Unruh Act. Thereby providing persons injured by a violation of the ADA with the remedies provided by the Unruh Act (e.g., right of private action for damages, including punitive damages). As usual, Judge Karlton's finding

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Id. at 18, n.14. In neither of these statements do either the Assembly or Senate Committee state - or even imply - that somehow the standards of ADA liability, where no showing of discriminatory intent is required , would somehow be changed so
that the intent requirement of Cal. Civ. Code section 52 would be the new standard, or that, conversely , intent would still be required under the Unruh Act even though none is required under the ADA.
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Logically, and legally, Gunther makes no sense . It leaves the very real scenario
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of a disabled plaintiff proving an ADA violation, and therefore an Unruh violation, but yet not able to avail himself to the remedies of the Unruh Act unless intent is proven. This completely undermines the purpose of the legislature's amending of the Act, which obviously was to broaden the scope of the Unruh Act to include violations of the ADA against disabled persons. (And it goes without saying that this also undermines the standards of ADA liability, where correcting benevolent inaction is just as important as correcting intentional discriminatory actions, and why, therefore, a showing of intent is not required.) If a remedy under the Unruh Act is unavailable unless intent is shown, then the legislature's action would truly be "all bark and no bite. ,2 d. Plain Language

Judge Karlton continues to eviscerate Gunther by applying the analyses of liberal construction and other canons of statutory construction (see Jack-in-the-Box, pp. 2026), but, as usual, the simplest is almost always the most powerful. Under any objective view, by applying the doctrine of "plain meaning," or assigning the "usual and ordinary meanings" of words to the statute at issue (see Wells v. One2One Learning Found., 29 Cal. 41h 1164, 1170 (2006)), the amended language of the Unruh Act could not possibly be clearer: "A violation of any right of any individual under the [ADA] shall also constitute a violation of this section." Cal. Civ. Code

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§ 51(f). Full stop, end of story. If the ADA is violated, then the Unruh Act (which as discussed above, includes section 52) is violated as well, with no further inquiry into intent necessary or required. Again, if this is not the case - that is, if the ADA can be violated but not the
2 Also of importance to the legislative history is a letter to the author of the amendment bill that directly addressed the issue of intent, and which complained that the amendment provided disabled persons injured by the ADA with the remedies of the Unruh Act, with no intent required. See Jackin-the-Box, at 18. This letter clearly had no impact on the amendment. Thus, the author of the bill was in fact well aware that amending the Unruh Act as planned meant that a violation of the ADA -10PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION CROSS v.. BOsTONMARKET CORPORATION, ETAL. 07CV0486 J (LSP)

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Unruh Act, as laid bare by the Gunther analysis - then the California legislature's 1992 amending of the Unruh Act is meaningless. 2. Even Without a Statutory Analysis, Gunther is WRONG on the Law

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Plainly stated, there is no requirement of intent to discriminate under either state or federal law, the Gunther case notwithstanding. This is even a truer statement when considered in light of the statutory analysis of the Unruh Act, as discussed supra. First, there is a distinction between ( 1) intentional conduct on the one hand and (2) discriminatory intent on the other hand. They are not the same and should not be confused or conflated. There are four published decisions that need to be harmonized to understand the state of the law with respect to the Unruh Civil Rights Act. Those cases are: Harris v. Capital Growth Investors MV, (1991) 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d 873; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 707 P.2d 195, 219 Cal.Rptr. 133; Modern Development Co. v. Navigators, Ins. Co. (2nd Dist. 2003) 111 Cal.App.4th 932, 4 Cal.Rptr.3d 528; and Gunther v. Lin. Again, when analyzed in light of a proper statutory analysis of the Unruh Act one that takes into account the all-important intent of the California Legislature - these cases do not conflict with each other, and also do not conflict with Lentini. The Harris case, in particular, is relevant because it is the case upon which Gunther relies, and it seemingly conflicts with an earlier California Supreme Court case, Koire. First, let us begin with the highest authority on state law. The California Supreme Court has ruled that there is no need to establish discriminatory intent under the Unruh Civil Rights Act. See Koire v. Metro Car Wash, 40 Cal.3d 24, 707 P.2d 195, 219 Cal.Rptr. 133 (1985). In Koire, the plaintiff was challenging the practice of a car wash in providing for cheaper car washes for women on "ladies' days" and, therefore, discriminating against men on those days. The trial court found "no intent"

was a violation of the Unruh Act with all remedies of said Act available, regardless of intent. Indeed, this is what the author of the bill -as well as the Senate and Assembly - intended.
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to exclude or to make men "feel unwelcome, unaccepted or undesired." Koire, 40 Cal.3d at 33. But the California Supreme Court, found a violation of the law and pointed out that : "discriminatory intent is not required by the Unruh Act ... Plaintiff was entitled to equal treatment, no matter what his sex, and regardless of defendants' intent in denying him equal treatment." Id. (emphasis added, internal quotations removed). There could not be a more clear statement of the law: There is no need to establish an intent to exclude . See also Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 847 (9t' Cir. 2004) ("We find that ... no showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation.") Given this clear statement of the law by the California Supreme Court (and the Ninth Circuit in Lentini), one must then ask how we harmonize the subsequent California Supreme Court holding in Harris v. Capital Growth Investors MV (1991) 52 Cal.3d 1142 (and upon which the Gunther court so heavily relied, and by extension, defendants in the instant motion), that, "the language of the Act suggests that intentional acts of discrimination, not disparate impact, was the object of the legislation" or "the damages provision ... reveals a desire to punish intentional and morally offensive conduct" or "we hold that a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. A disparate impact analysis or test does not apply to Unruh Act claims." Idd, at 1172 and 1175. A key to harmonizing the statement, " discriminatory intent is not required" (Koine) with " a plaintiff must prove intentional discrimination " (Harris) was revealed in a published decision that has had great practical impact in these ADA/Unruh cases: Modern Development Co. v. Navigators, Ins. Co. (2nd Dist. 2003) 111 Cal.App.4th 932, 4 Ca1.Rptr.3d 528. In Modern Development, the court was faced with this very question: what is intentional conduct under the ADA and the Unruh Civil Rights Act? (The court needed to resolve this question in order to decide whether the -12PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION CROSS v.. BosTONMARKET CORPORATION, ETAL. 07cv0486 J (LSP)

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defendant insurance company had a duty to defend: if the conduct of plaintiff Modern Development was accidental, the company had a duty to defend; if intentional, then no duty to defend.) The Modern Development court found that "as a matter of law" the inaccessible restrooms were "intentional conduct" and reasoned:

The complaint alleged that the Swap Meet failed to comply with various antidiscrimination laws relating to the disabled and that because of the resulting lack of access he was injured. These events are not covered events under The Policy because they do not constitute "accidents" or "occurrences" as such terms are defined in the Policy. As argued by Navigators, Moreno's alleged injuries were caused by the architectural configuration of the Swap Meet and Modern Development's alleged failure to remove architectural barriers, not by an accident. The Swap Meet intended for the bathrooms to be configured as they were. The result is that the incident involving Mr. Moreno is not a covered event. Id. at 941. Thus, under Modern Development, a plaintiff does not need to prove that the defendant harbored some sort of animus towards the disabled. Instead, the intentional discrimination required under the law (i.e. under Harris) is the intention to present the architectural layout as it exists (discriminatory or not). In Modern Development, the

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court found that such intent was present based on the architectural configuration of the Swap Meet. This finding jibes with both Koire ("discriminatory intent is not required") and Harris ("a plaintiff must prove intentional discrimination"). In fact, this fits the statutory scheme perfectly. Under the Americans With Disabilities Act, it is an act of discrimination to "fail to remove" certain barriers. See 42 U.S.C. § 12182(b)(2)(A)(iv). The Unruh Civil Rights Act has incorporated that provision and, therefore, the failure to remove certain barriers is a violation of the Unruh Civil Rights Act. See Cal. Civ. § 51(f). In light of the Koire/Harris/Modern trifecta, we should say that it is a violation of the Unruh Civil Rights Act where there is an intentional decision to not remove barriers, or, similarly, an intention to present the architectural layout as it exists.
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This harmonization does justice to each of the Koire/Harris/Modern decisions.
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Moreover, it helps make sense of a poorly worded Gunther decision. In Gunther, the plaintiff had complained about two violations: (1) lack of wrapped plumbing and (2) a non-compliant mirror. After considering the evidence, the Gunther court found that:

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There is also no question that defendant Lin never intended to violate the ADA. In his answer to Gunther's complaint Lin claimed that Gunther had entered the restroom "before our handyman had finished his work" of wrapping insulation around the pipe under the sink. Moreover, normally the restroom never has mirrors for anybody (because the mirror was subject to vandalism); an employee simply hung one by mistake. Id. at *4. Thus, because defendant Lin had intended that there be wrapped plumbing and had intended that there not be any mirror, the "violations" complained of by plaintiff Gunther were unintentional. In other words, the "intentionality" addressed by the Gunther court deals with whether the defendant intended its property to be the way that it was - not that defendant Lin had to desire to exclude persons with disabilities or treat them differently. In Gunther, the defendant did NOT intend that there be a mirror and did NOT intend that its plumbing be exposed and, therefore, the Gunther court found no violation. In the present case, therefore, the parties must examine whether the various defendants have intended to maintain the subject properties without, e.g., accessible parking, accessible paths of travel, and accessible restrooms (among other violations) since effective business start-up dates, acquirement of ownership interests, or since enactment of the ADA. The question is not whether the various defendants here intended to specifically discriminate against disabled persons such as Cross; that is, the question is not whether defendant possessed discriminatory animus. Rather, the question is whether a defendant intended to design the subject property in its current state, which design happens to deny full and equal access to disabled persons such as -14PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION CROSS v.. BOSTON MARKET CORPORATION, ET AL. 07cv0486 J (LSP)

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Cross, or intended to not remove architectural barriers where such removal was readily achievable as required by law. Cross urges this Court to reject the narrow and self-serving interpretation urged by ValVista and the other joined defendants in this motion, and interpret the law consistent with the published decisions, as well as based on sound canons of statute construction, as explicated by Judge Karlton. Regarding the Unruh Civil Rights Act, the California "Legislature's desire to banish [discrimination] from California's community life has led [the California Supreme Court] to interpret the Act's coverage `in the broadest sense reasonably possible ."' Isbister v. Boys' Club of Santa Cruz, (1985) 40 Cal.3d 72, 75-76, 219 (emphasis added), quoting Burks v. Poppy Construction Co., (1962) 57 Cal.2d 463, 468, 20. After all, it is in that very spirit of interpreting the Act's coverage `in the broadest sense reasonably possible," that Judge Karlton stated: "Furthermore, the court finds that the issue of state law presented by the instant action is not particularly novel or complex in light of the overwhelming body of case law finding that proof of intent is not required [under the Unruh Act when an ADA violation is show]." aberration, not the law. C. Since ValVista Now Possesses a Property Interest in the Subiect Property it is a Necessary Party to this Action and it Can be Held Liable Under the ADA & State-Pled Statutes [Note: It is not clear whether it is defendant ValVista North or defendant ValVista South that is making this argument, therefore Cross will assume it is both defendants, collectively referred to as "ValVista".]
ValVista, relying once again on the Florida district court case of Rodriguez v. Investco, 305 F.Supp.2d 1278 (M.D. F1a.2004), argues that Cross has failed to state a claim upon which relief can be granted as to ValVista because ValVista "merely purchased an existing non-compliant property"; it therefore "cannot be held liable for violating the ADA." See Defendants' Motion, pp. 10-11. This argument is specious, -15PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION CROSS V. BOsTONMARKET CORPORATION, ETAL. 07cv0486 J (LSP)

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and Cross has already effectively dealt with it, and with the Rodriguez case, supra, Section II (A)(1). However, it bears repeating that ValVista is incorrect in its none-too-subtle assertion that since Cross potentially visited prior to its acquisition of any property interest in the subject property, it has no liability whatsoever since it just acquired an existing non-compliant property. This is incorrect. At this point, now that ValVista does possess a property interest, issues of liability do in fact attach: firstly, ValVista now has a responsibility to remove architectural barriers to access where it is readily achievable to do so, 42 U.S.C. §12182(b)(2)(A)(iv), and where Cross has asserted that she is deterred from visiting the subject property until such barriers are removed, as she has in the instant matter (see Complaint, Docket Item #1, ¶¶ 31, 36, 41, 46, 51, 56, 61,66, 71, and 76); and secondly, should this Court eventually rule for Ms. Cross and issue injunctive relief pursuant to the ADA, ValVista would naturally be a necessary party in order to carry out that injunctive relief with respect to the property it owns, leases and/or otherwise controls. D. Cross Has Established Article III Standing at this Stage of the Litigation Finally, defendants argue that this Court must order an evidentiary hearing so that Cross can prove she has Article III standing. Furthermore, defendants argue that they should be able to conduct discovery to this end, while at the same time discovery should remain stayed as to Cross. See Defendants' Motion, pp. 11-14. Although defendants cite to the three prongs required to establish Article III standing, defendants utterly fail to substantially address any of them with undisputed facts. What defendants really want is permission to conduct a fishing expedition, while at the same time preventing plaintiff Cross from pursuing her case through discovery. It is premature, to say the least, to at this point allow defendants to halt plaintiff s case while they pursue a piscatorial expedition for facts - any facts - that will support the theory that Cross lacks Article III standing.
Furthermore, contrary to defendants' statement that in such a challenge to -16PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION CROSS v.. BosTONMARKET CORPORATION, ETAL. 07cv0486 J (LSP)

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standing "the allegations of a complaint are not presumed true" (Defendants' Motion, p. 11, emphasis in original), when the basis for a district court's jurisdiction is related to the relief sought, then the allegations of the complaint are in actuality assumed to be true unless controverted by undisputed facts in the record. See, e.g., Cross v. Pacific Coast Plaza Invest., Case No. 06cv2543 JM (RBB), Order Denying Defendant Bed Bath & Beyond's Motion for Order Setting Evidentiary Hearing On The Issue Of Article III Standing (March 23, 2007, S.D. Cal.), pp. 3-4 (denying motion, and finding that at the pleading stage - since a plaintiff need only make sufficient allegations of injury - alleging visiting defendant's business, encountering barriers which caused injury, and being deterred from returning due to the barriers, was sufficient to establish standing at the pleading stage);3 Organization for Advancement of Minorities with Disabilities v. Brick Oven Restaurant, 406 F.Supp.2d 1120, 1126 n.5 (S.D. Cal. 2005) (finding that, "where the basis for a district court's jurisdiction is intertwined with the substantive relief sought, the court `assumes the truth of the allegations in a complaint. ..unless controverted by undisputed facts in the record'... The basis for this Court's jurisdiction is intertwined with the basis for plaintiffs' substantive claims because both are based on the ADA. Accordingly, defendants are not entitled to an evidentiary hearing ") (citation omitted) (emphasis added). Cross has alleged all she needs to at this stage of the litigation to establish Article III standing. To establish standing, a plaintiff bears the burden of showing: (1) injuryin-fact, or the invasion of a legally protected interest, that is both (a) concrete and particularized, and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of, and (3) a likelihood that a favorable decision will regress the wrong. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

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3 Cross has attached a copy of this Order to her Request for Judicial Notice for the convenience of the Court. -17PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION CROSS v.. BOsTONMARKET CORPORATION, ETAL. 07cv0486 J (LSP)

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In order to establish standing under the ADA for injunctive relief, "[Plaintiffs] must demonstrate that [they have] suffered or [are] threatened with a concrete and particularized legal harm, coupled with a sufficient likelihood that [they] will again be wronged in a similar way." Bird v. Lewis & Clark College, 303 F.3d 1015, 1019 (9' Cir. 2002) (quotations and citations omitted). A plaintiff can establish injury-in-fact by showing that she has encountered barriers at a place of public accommodation and that she intends to return to the public accommodation if it is made accessible. Pickern v. Holiday Quality Foods, Inc., 293 F.Supp.3d 1133, 1138 (9t' Cir. 2002); see also Molski v. Price, 2244 F.R.D. 479,483 (C.D. Cal. 2004). Cross' complaint does exactly all that is required. It alleges that plaintiff Diane Cross is a paraplegic due to an automobile accident and due to this impairment, uses a wheelchair when traveling about in public. See Complaint ¶ 17. Ms. Cross alleges that upon visiting the defendants' facilities, she encountered barriers - both physical and intangible - that interfered with, if not outright denied, her ability to use and enjoy in a full and equal manner the goods, services, privileges, and accommodations offered by these facilities, and she took pains to list such barriers in her Complaint. See Complaint

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¶ 28, et al. She alleges that she suffered injury-in-fact because she patronized defendants' stores that discriminated against her by failing to provide full and equal access to their goods and services, failing to make alternations in such a manner that the altered portions of the facility are readily accessible and usable by individuals with disabilities, failing to remove architectural barriers and failing to modify practices, policies and procedures in violation of 42 U.S.C. § 12812(a), among other pled statutes. See Complaint ¶¶ 80-449. Finally, plaintiff Cross also states that she is currently deterred from visiting the subject stores - even though she would like to - due to her knowledge of the barriers and the future threats of injury and discrimination caused by these barriers. See Complaint ¶¶ 31, 36, 41, 46, 51, 56, 61, 66, 71, 76. Without question, these allegations satisfy the first element necessary to establish standing.
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The second element of standing requires that there be a causal connection between a plaintiffs injury and the defendant 's conduct . Lujan, 504 U. S. at 560. 42 U.S.C. § 12182( a) expressly holds "any person who owns, leases (or leases to), or operates a place of public accommodation" liable for ADA noncompliance . 42 U.S.C. § 12182(a). Cross has alleged that defendants own, operate , license, franchise , and/or do business as the subject retail establishments and that defendants discriminated against her by violating federal and state laws. See Complaint ¶¶ 7-17, 80-449. Therefore, Cross has established the second element of standing. Lastly, a plaintiff must show that the requested relief is available to redress the claimed injury . Lujan, 504 U. S. at 560 . Under the ADA, injunctive relief is available to any person who is being subjected to discrimination on the basis of disability. 42 U.S C. § 12188( a)(1). As discussed above , Cross has sufficiently alleged that defendants ' conduct constitutes ADA violations and that Cross has been subject to discrimination on the basis of disability because of those violations . Therefore, as injunctive relief is available under the ADA, and such relief would redress her injuries, Cross has established the third element of standing . Accordingly, this Court should find that Cross has established the standing necessary to pursue an ADA cause of action. Defendants ' argument for an evidentiary hearing at this stage of litigation is without merit.

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III. CONCLUSION Cross apologizes for the length of her opposition, but defendants brought up multiple arguments, one of which, based on Gunther v. Lin, required extensive analysis so that the Court was fully apprised of the issues. Defendants' arguments are without merit across the board. Cross respectfully requests that this Court deny defendants' motion in its entirety.

Dated : May 10, 2007

DISABLED ADVOCACY GROUP, APLC

/s/ Lynn Hubbard, III LYNN HUBBARD, III Attorney for Plaintiff Diane Cross

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