Daniel Lopez v. Catalina Channel Express, Inc. ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL LOPEZ, No. 19-55136
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-03232-
SVW-AS
CATALINA CHANNEL EXPRESS, INC.,
a California Corporation; DOES, 1–
10, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 7, 2020
Pasadena, California
Filed September 9, 2020
Before: Mary H. Murguia and Morgan Christen, Circuit
Judges, and Alvin K. Hellerstein, * District Judge.
Opinion by Judge Murguia
*
The Honorable Alvin K. Hellerstein, United States District Judge
for the Southern District of New York, sitting by designation.
2 LOPEZ V. CATALINA CHANNEL EXPRESS
SUMMARY **
Americans with Disabilities Act
The panel reversed the district court’s grant of summary
judgment in favor of defendant Catalina Channel Express,
Inc., and remanded, in an action under Title III of the
Americans with Disabilities Act.
Plaintiff alleged that he was unable to use the restroom
aboard the passenger vessel Jet Cat Express because the
restroom’s door was too narrow to allow his wheelchair to
enter, and he therefore was denied public accommodations
because of his disability.
The panel affirmed the district court’s conclusion that
plaintiff failed to meet his initial burden of plausibly
showing that widening the Jet Cat Express’s restroom door
was “readily achievable.” In doing so, the panel joined the
Second Circuit and adopted a burden-shifting framework
whereby plaintiffs have the initial burden at summary
judgment of plausibly showing that the cost of removing an
architectural barrier does not exceed the benefits under the
particular circumstances. The defendant then bears the
ultimate burden of persuasion that barrier removal is not
readily achievable. The panel distinguished Molski v. Foley
Estates Vineyard & Winery, LLC, 531 F.3d 1043 (9th Cir.
2008), which places the initial burden on the defendant in a
case of an architectural barrier in a historic facility.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LOPEZ V. CATALINA CHANNEL EXPRESS 3
The panel nonetheless reversed the district court’s grant
of summary judgment because the district court did not
evaluate whether Catalina made the restroom available to
plaintiff through “alternative methods.” The panel
instructed that on remand, the district court should determine
in the first instance whether there was sufficient evidence
that Catalina made the restroom “available through
alternative methods” pursuant to 42 U.S.C.
§ 12182(b)(2)(A)(v).
COUNSEL
Russell Handy (argued) and Dennis Price, Center for
Disability Access, San Diego, California, for Plaintiff-
Appellant.
Douglas J. Collodel (argued) and Alison K. Beanum, Clyde
& Co. US LLP, Los Angeles, California, for Defendants-
Appellees.
OPINION
MURGUIA, Circuit Judge:
Daniel Lopez is confined to a wheelchair due to a
disability and he alleges that he was unable to use the
restroom aboard the Jet Cat Express, a passenger vessel
sailing between Long Beach and Santa Catalina Island,
California, because the restroom’s door was too narrow to
allow his wheelchair to enter. Lopez sued Catalina Channel
Express, Inc. (“Catalina”), which owns and operates the
vessel, under the Americans with Disabilities Act of 1990
(“ADA”) and California’s Unruh Civil Rights Act (“Unruh
4 LOPEZ V. CATALINA CHANNEL EXPRESS
Act”) for failing to widen the vessel’s restroom door. The
district court denied Lopez’s motion for summary judgment
and instead granted summary judgment to Catalina on
Lopez’s ADA claim. The district court also refused to
exercise supplemental jurisdiction over Lopez’s Unruh Act
claim.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we reverse and remand.
I. Factual and Procedural Background
Daniel Lopez is a T-10 paraplegic, which means he is
unable to walk and is dependent on a wheelchair for
mobility. In April 2017, Lopez returned from Catalina
Island to Long Beach on the Jet Cat Express, a passenger
vessel owned and operated by Catalina. While aboard,
Lopez soiled himself because the restroom’s door was too
narrow for his wheelchair to enter.
Catalina has not altered the restroom in the Jet Cat
Express since it was built in 2001. According to Tony Ross,
Catalina’s Vice President of Vessel Engineering, no
passenger—other than Lopez—has ever reported any
difficulty accessing the restroom. Ross also testified that the
sliding “pocket door” creates a 26-inch-wide entryway when
fully opened and the door cannot be widened because its
handle is placed three inches from the outer edge of the door.
According to Ross, there are two reasons why widening
the restroom door is not readily achievable. First, “installing
a different type of handle at the outer edge of the ‘pocket
door’ . . . may make it more likely that passengers’ hands
would be injured in the doorway when closing the door, due
to the constant movement of the vessel.” Second, Catalina
“cannot structurally alter the restroom without negatively
LOPEZ V. CATALINA CHANNEL EXPRESS 5
impacting the stability of the vessel . . . [which] is a threat to
the safety of navigation.” Specifically, Ross explained:
[M]odifications and alterations to a vessel
can negatively impact the stability of the
vessel in many ways. For example, here, in
order to expand the doorway of the disabled-
accessible restroom on the Jet Cat Express,
the structure of the restroom itself would
need to be expanded which, in turn, would
impact the structure of the adjoining
restroom. As walls shift, the vessel’s overall
weight changes. These changes may cause
the overall center of gravity (“COG”) of the
vessel to move, and the freeboard to be
reduced. These two factors affect the stability
of a vessel.
. . . Simply put, as the COG moves and the
amount of freeboard becomes lower, the
vessel becomes more susceptible to unstable
situations.
In other words, Ross declared that widening the vessel’s
restroom door is not readily achievable.
Lopez sued Catalina alleging violations of the ADA,
42 U.S.C. §§ 12101–12213, and the Unruh Act, Cal. Civ.
Code § 51. The district court bifurcated Lopez’s ADA
claims from his state law claim, and after some discovery,
granted summary judgment to Catalina on Lopez’s ADA
claims and declined to exercise supplemental jurisdiction
over his Unruh Act claim. Lopez timely appealed.
6 LOPEZ V. CATALINA CHANNEL EXPRESS
II. Standard of Review
We review a district court’s grant of summary judgment
de novo. Tauscher v. Phx. Bd. of Realtors, Inc., 931 F.3d
959, 962 (9th Cir. 2019) (citing Furnace v. Sullivan,
705 F.3d 1021, 1026 (9th Cir. 2013)). Summary judgment
is appropriate only if, taking the evidence and all reasonable
inferences in the light most favorable to the non-moving
party, there are no genuine issues of material fact, and the
movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). “An issue of material fact is genuine if there
is sufficient evidence for a reasonable jury to return a verdict
for the non-moving party.” Tauscher, 931 F.3d at 962
(quoting Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
2010)).
“The interpretation of [the ADA] is a question of law
subject to de novo review.” Molski v. Foley Estates
Vineyard & Winery, LLC, 531 F.3d 1043, 1046 (9th Cir.
2008) (alteration in original) (quoting Barden v. City of
Sacramento, 292 F.3d 1073, 1075 (9th Cir. 2002)). We also
review the district court’s allocation of the burden of proof
de novo. Id. (citing Ferrari, Alvarez, Olsen & Ottoboni v.
Home Ins. Co., 940 F.2d 550, 555 (9th Cir. 1991)).
III. Analysis
Congress enacted the ADA to address discrimination
against individuals with disabilities. 42 U.S.C.
§§ 12101(b)(1)–(4). Title III, at issue in this case, provides
that “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a
place of public accommodation.” Id. § 12182(a). In simpler
LOPEZ V. CATALINA CHANNEL EXPRESS 7
terms, owners of “places of public accommodation”—which
include a passenger vessel like the Jet Cat Express—have a
duty to make sure that individuals with disabilities can fully
enjoy the facilities. 1
To prevail on a Title III discrimination claim, Lopez
must establish that: (1) he is disabled within the meaning of
the ADA; (2) Catalina is a private entity that owns, leases,
or operates a place of public accommodation; and
(3) Catalina discriminated against him by denying him
public accommodations because of his disability. Molski v.
M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citing
42 U.S.C. §§ 12182(a)–(b)). Here, the first two elements of
Lopez’s discrimination claim are met because neither party
disputes that Lopez is disabled, see 42 U.S.C. § 12102, or
that the Jet Cat Express is a place of public accommodation
within the meaning of the ADA, see id. § 12181(7);
28 C.F.R. § 36.104. Only the third element is at issue:
whether the inaccessibility of the restroom on the Jet Cat
Express constitutes discrimination under the ADA. See
Strong v. Valdez Fine Foods, 724 F.3d 1042, 1044 (9th Cir.
2013) (“There is no dispute that [the plaintiff] is disabled,
[or] that the restaurant is covered by the ADA . . . . The only
question is whether any barriers interfered with [the
plaintiff’s] ability ‘to participate in or benefit from the
goods, services, facilities, privileges, advantages, or
1
Catalina argues that the ADA does not apply to Lopez’s claims
because its operations do not affect commerce for the purposes of
42 U.S.C. § 12184. Section 12184 prohibits discrimination “in specified
public transportation services provided by private entities.” Id. But
Lopez’s claims arise under 42 U.S.C. § 12182, not § 12184, and § 12182
prohibits discrimination “by public accommodations.” Catalina
admitted in its answer that it was a place of public accommodation, and
this admission is binding. Am. Title Ins. Co. v. Lacelaw Corp., 961 F.2d
224, 226 (9th Cir. 1988).
8 LOPEZ V. CATALINA CHANNEL EXPRESS
accommodations’ of the restaurant.” (quoting Chapman v.
Pier 1 Imps. (U.S.), Inc. (“Chapman I”), 631 F.3d 939, 945
(9th Cir. 2011) (en banc))). Lopez alleges that Catalina’s
failure to widen the restroom door—an “architectural
barrier” under the statute—prevented him from fully
enjoying the facilities aboard the Jet Cat Express. 2
A. Removal of Architectural Barriers Under the
ADA
Discrimination under Title III of the ADA specifically
includes “a failure to remove architectural barriers . . . in
existing facilities . . . where such removal is readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv) (emphases
added). In addition, even if “an entity can demonstrate that
the removal of a barrier . . . is not readily achievable,” the
entity is still liable under the ADA if it fails to “make [its]
goods, services, facilities, privileges, advantages, or
accommodations available through alternative methods” so
long as “such methods are readily achievable.” Id.§ 12182(b)(2)(A)(v) (emphases added). The ADA defines
the phrase “readily achievable” as “easily accomplishable
and able to be carried out without much difficulty or
expense.” Id. § 12181(9).
Examples of architectural barriers that are subject to the
ADA include slopes and cross-slopes in a parking lot that are
too steep (more than two percent incline), Kohler v. Bed Bath
& Beyond of Cal., LLC, 780 F.3d 1260, 1262 (9th Cir. 2015);
2
Lopez’s complaint also raises claims that Catalina failed to make
“reasonable modifications in policies, practices, or procedures” and
“alterations.” 42 U.S.C. §§ 12182(b)(2)(A)(ii), 12183(a)(2). However,
he moved for summary judgment only on his claim that Catalina did not
remove an architectural barrier, in violation of §§ 12182(b)(2)(A)(iv)–
(v).
LOPEZ V. CATALINA CHANNEL EXPRESS 9
aisles in a store that are not wide enough for wheelchairs,
Chapman v. Pier 1 Imps. (U.S.), Inc. (“Chapman II”),
779 F.3d 1001, 1005 (9th Cir. 2015); seating in a restaurant
that does not accommodate wheelchairs; Strong, 724 F.3d
at 1044; soap dispensers and hand dryers that are mounted
too high (more than forty inches from the floor), Oliver v.
Ralphs Grocery Co., 654 F.3d 903, 905 n.5 (9th Cir. 2011);
and a bar that is too high to drink from, Jankey v. Poop Deck,
537 F.3d 1122, 1123 (9th Cir. 2008).
Accordingly, to prevail on his discrimination claim,
Lopez must establish either: (1) that Catalina failed to alter
the restroom door when doing so was readily achievable; or
(2) even if the alteration was not readily achievable, that
Catalina could have made the restroom available to Lopez
through alternative methods without much difficulty or
expense. 42 U.S.C. §§ 12182(b)(2)(A)(iv)–(v). We address
each of these alleged bases of liability in turn.
B. Readily Achievable
The district court granted summary judgment to Catalina
largely because it concluded that Lopez bore—and failed to
carry—the burden of establishing that altering the Jet Cat
Express’s restroom door was “readily achievable.” Our
court has not decided which party bears the burden to
establish that removal of an architectural barrier is or is not
readily achievable. The district court recognized this was an
undecided question and decided to “follow[] the lead of ‘the
overwhelming majority of federal courts that apply the
burden-shifting framework of’” the Tenth Circuit’s decision
in Colorado Cross Disability Coalition v. Hermanson
Family Limited Partnership., 264 F.3d 999 (10th Cir. 2001).
In affirming the district court’s conclusion that Lopez failed
to meet his initial burden, we join the Second Circuit and
adopt a burden-shifting framework that slightly differs from
10 LOPEZ V. CATALINA CHANNEL EXPRESS
the Tenth Circuit’s framework in Colorado Cross. Under
the Second Circuit’s approach, plaintiffs have the initial
burden at summary judgment of plausibly showing that the
cost of removing an architectural barrier does not exceed the
benefits under the particular circumstances. See Roberts v.
Royal Atl. Corp., 542 F.3d 363, 373 (2d Cir. 2008).
Title III of the ADA is silent as to who bears the burden
of proving at summary judgment that removal of an
architectural barrier is, or is not, readily achievable. The
Tenth Circuit was the first court of appeals to articulate a
two-part burden-shifting framework for evaluating whether
removing an architectural barrier is “readily achievable”
under the ADA. Colo. Cross, 264 F.3d at 1002–07. Under
Colorado Cross, the plaintiff “must initially present
evidence tending to show that the suggested method of
barrier removal is readily achievable under the particular
circumstances.” Id. at 1002. If the plaintiff meets that initial
burden, the defendant “then bears the ultimate burden of
persuasion that barrier removal is not readily achievable.”
Id. at 1002–03 (emphasis added). In other words, the
defendant “bears the ultimate burden of persuasion
regarding its affirmative defense that a suggested method of
barrier removal is not readily achievable.” Id. at 1006(emphasis added).
The Eighth and Eleventh Circuits have adopted
Colorado Cross’s burden-shifting framework for evaluating
barrier removal claims. See Wright v. RL Liquor, 887 F.3d
361, 364 (8th Cir. 2018) (“[T]his court holds that the district
court properly required [the plaintiff] to initially present
evidence tending to show that the suggested method of
barrier removal was readily achievable under the
circumstances.”); Gathright-Dietrich v. Atlanta Landmarks,
Inc., 452 F.3d 1269, 1274 (11th Cir. 2006) (“The district
LOPEZ V. CATALINA CHANNEL EXPRESS 11
court did not err in following the burden of proof enunciated
in Colorado Cross, and we adopt that burden shifting
framework for the reasons articulated by the Colorado Cross
court.”). 3 The Second Circuit tweaked the test slightly,
requiring plaintiffs to first “articulate a plausible proposal
for barrier removal” and recognizing that “the defendant
may counter the plaintiff’s showing by meeting its own
burden of persuasion and establishing that the costs of a
plaintiff’s proposal would in fact exceed the benefits.”
Roberts, 542 F.3d at 373 (emphasis added). Importantly,
while it is clear that the defendant bears the ultimate burden
of proving the affirmative defense, all of our sister circuits
have placed the initial burden of proof on the plaintiff. This
makes sense because at a minimum, at the outset, a plaintiff
must make clear what accommodation is needed, and
disability accommodations can be idiosyncratic.
Indeed, placing the initial burden on the plaintiff of
plausibly showing how removal of an architectural barrier is
readily achievable under the circumstances is sensible for
several reasons. First, subsections 12182(b)(2)(A)(iv) and
(v)—which, read together, require the removal of an
architectural barrier unless such removal is not readily
achievable—place the ultimate burden on the defendant to
3
In the absence of direction from us, most district courts in our
circuit have also followed Colorado Cross, assigning plaintiffs the initial
burden of establishing that removing an architectural barrier is readily
achievable. See, e.g., Vogel v. Rite Aid Corp., 992 F. Supp. 2d 998,
1010–11 (C.D. Cal. 2014); Paulsen v. PS Bus. Parks, LP, No. C10-1031,
2011 WL 3419894, at *2 (W.D. Wash. Aug. 4, 2011); Moeller v. Taco
Bell Corp., 816 F. Supp. 2d 831, 854 (N.D. Cal. 2011); Vesecky v.
Garick, Inc., No. 07-1173, 2008 WL 4446714, at *3 (D. Ariz. Sept. 30,
2008); Wilson v. Pier 1 Imps. (US), Inc., 439 F. Supp. 2d 1054, 1067
(E.D. Cal. 2006); Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1159
(S.D. Cal. 2006).
12 LOPEZ V. CATALINA CHANNEL EXPRESS
prove the affirmative defense that removal of an architectural
barrier is not readily achievable. Colo. Cross, 264 F.3d
at 1002. Subsection (iv) starts by requiring defendants to
remove architectural barriers if that removal is readily
achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). Subsection
(v), in turn, offers the defendant an opportunity to avoid
liability by “demonstrat[ing] that the removal of a barrier
under clause (iv) is not readily achievable[.]” Id.§ 12182(b)(2)(A)(v) (emphasis added). In other words, only
if the plaintiff first makes a plausible showing that the barrier
removal is readily achievable, does the defendant then have
to negate that showing and prove that the removal is not
readily achievable. This is consistent with the ADA’s
mandate that an entity must remove an architectural barrier
unless it can show that removal is not readily achievable.
Colo. Cross, 264 F.3d at 1002.
Second, applying a burden-shifting framework in this
context is consistent with our application of burden-shifting
frameworks to other similarly worded subsections of Title
III. For example, the first clause of subsection
12182(b)(2)(A)(ii) requires defendants to make reasonable
modifications to their policies, practices, or procedures to
allow individuals with disabilities to enjoy their goods and
services. 42 U.S.C. § 12182(b)(2)(A)(ii). The second clause
of subsection (ii), in turn, offers defendants an opportunity
to avoid liability by “demonstrat[ing] that making such
modifications would fundamentally alter the nature of such
goods [or] services.” 42 U.S.C. § 12182(b)(2)(A)(ii)
(emphases added). In Lentini v. California Center for the
Arts, we endorsed the Fifth Circuit’s holding that, under
subsection (ii), the plaintiff must initially prove that a
modification was requested and that the requested
modification was reasonable. 370 F.3d 837, 845 (9th Cir.
2004) (citing Johnson v. Gambrinus Co./Spoetzl Brewery,
LOPEZ V. CATALINA CHANNEL EXPRESS 13
116 F.3d 1052, 1059 (5th Cir. 1997)). If the plaintiff meets
that initial burden, then the defendant bears the ultimate
burden of persuasion that the requested modification would
fundamentally alter the nature of the public accommodation.
See id. More recently, in Karczewski v. DCH Mission Valley
LLC, we confirmed that to prevail on a claim under
subsection (ii) the plaintiff must first establish a prima facie
case that the defendant “fail[ed] to make a requested
reasonable modification that was . . . necessary to
accommodate the plaintiff’s disability.” 862 F.3d 1006,
1010 (9th Cir. 2017) (quoting Fortyune v. Am. Multi-
Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004)). Only
then must the defendant “make the requested modification
unless it proves that doing so would alter the fundamental
nature of its business.” Id.Finally, a burden-shifting approach is congruent with
how we adjudicate employment claims under Title I of the
ADA. For example, under Title I, a disabled employee
seeking an employment accommodation under 42 U.S.C.
§ 12112(b)(5)(A)–(B) 4 must initially prove that the
4
Discrimination under these subsections includes, among other
things,
(A) not making reasonable accommodations to the
known physical or mental limitations of an otherwise
qualified individual with a disability who is an
applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of
such covered entity; or (B) denying employment
opportunities to a job applicant or employee who is an
otherwise qualified individual with a disability, if such
denial is based on the need of such covered entity to
14 LOPEZ V. CATALINA CHANNEL EXPRESS
accommodation “seems reasonable on its face[.]” U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). If the
employee meets that initial burden, then the defendant “must
show special (typically case-specific) circumstances that
demonstrate undue hardship in the particular
circumstances.” Id. at 402. Similarly, when it comes to
disparate-treatment employment claims under the ADA, the
Supreme Court has clarified that once an employee makes “a
prima facie showing of discrimination, the next question . . .
[is] whether [the employer] offered a legitimate,
nondiscriminatory reason for its actions so as to demonstrate
that its actions were not motivated by [the employee’s]
disability.” Raytheon Co. v. Hernandez, 540 U.S. 44, 55
(2003).
Lopez argues that, under our decision in Molski, Catalina
bears the initial burden of establishing that removal of the
restroom door is not readily achievable. 531 F.3d at 1043.
In Molski, a paraplegic man sued a winery because it refused
to remove external architectural barriers that prevented
wheelchair access to its historic wine-tasting room. Id. at
1045–46. We held that, under those circumstances, the
defendant had the initial burden of proving that removal of
the barriers was not readily achievable because federal
regulations “do[] not place that burden on the party
advocating for remedial measures,” but “on the party with
the best access to information regarding the historical
significance of the building.” Id. at 1048 (emphasis added).
Indeed, 28 C.F.R. § 36.405 requires qualified historic
buildings to “comply to the maximum extent feasible with”
make reasonable accommodation to the physical or
mental impairments of the employee or applicant.”
42 U.S.C. § 12112(b)(5) (emphases added).
LOPEZ V. CATALINA CHANNEL EXPRESS 15
the Americans with Disabilities Act Accessibility
Guidelines for Buildings and Facilities, § 4.1.7 (“§ 4.1.7”).
In turn, § 4.1.7 requires entities who own historic places of
public accommodation to “consult with the State Historic
Preservation Officer” if they “believe[] that compliance with
the requirements would threaten or destroy the historic
significance of the building.” Therefore, the Molski court
concluded Ҥ 4.1.7 counsels in favor of placing the burden
of production on the defendant.” Molski, 531 F.3d at 1048.
Molski applies only to the removal of architectural
barriers “in historic facilities.” Id. Notably, the plaintiff had
identified the nature of the accommodation requested. We
reasoned in Molski that:
The defendant sought the historical
designation in this case. Thus, the defendant
possesses the best understanding of the
circumstances under which that designation
might be threatened. The defendant is also in
the best position to discuss the matter with the
Santa Barbara County Historic Landmarks
Advisory Commission and to request an
opinion on proposed methods of barrier
removal. As a result, the defendant is in a
better position to introduce, as part of its
affirmative defense, detailed evidence and
expert testimony concerning whether the
historic significance of a structure would be
threatened or destroyed by the proposed
barrier removal plan.
Id. (emphases added). Here, by contrast, the Jet Cat Express
is not a historic facility. Catalina need not consult with a
historic preservation entity on proposed methods of barrier
16 LOPEZ V. CATALINA CHANNEL EXPRESS
removal to evaluate how the alteration of the vessel’s
restroom door might threaten the vessel’s historic
significance. Molski only applies in cases that involve
removal of architectural barriers to historic facilities—it is
the exception, not the rule. 5
Although every circuit applies a burden-shifting
framework when addressing claims for removal of
architectural barriers at summary judgment, the initial
burden placed on plaintiffs varies. For example, the Tenth
Circuit requires plaintiffs to provide “precise cost estimates”
and “a specific design” regarding their proposed
accommodation, Colo. Cross, 264 F.3d at 1009, whereas the
Second Circuit requires plaintiffs only to “articulate a
plausible proposal for barrier removal, ‘the costs of which,
facially, do not clearly exceed its benefits,’” Roberts,
542 F.3d at 373 (quoting Borkowski v. Valley Cent. Sch.
Dist., 63 F.3d 131, 138 (2d Cir. 1995)). We believe that the
5
Unsurprisingly, most district courts in our circuit have declined to
apply Molski when a case does not involve a historic facility. See, e.g.,
Vogel, 992 F. Supp. 2d at 1011 n. 35 (“Molski appears to be limited to
the historic building context . . . . The decision does not address non-
historic building compliance and is not controlling in this case.”);
Vesecky, 2018 WL 4446714, at *3 (“[U]ntil the Ninth Circuit provides
additional and specific instruction to the lower courts this Court will
follow the overwhelming majority of federal courts that apply the
burden-shifting framework of [Colorado] Cross, specifically in cases
where a historic building is not at issue.”); Ridola v. Chao, No. 16-CV-
02246-BLF, 2018 WL 2287668, at *10 (N.D. Cal. May 18, 2018)
(same); Gonzalez v. Riverrock Properties, LLC, No. 2:14-CV-2362-
TLN-EFB, 2016 WL 3267116, at *3 (E.D. Cal. June 14, 2016) (same);
Paulsen, 2011 WL 3419894, at *2 (same); but see Rodriguez, 2012 WL
3538014, at *11 (“While it is true that [Molski] is, by its terms, limited
to cases where the historical exception is asserted, its concerns regarding
the availability of evidence have equal weight when defendant claims
that remediation would be too costly or impractical.”).
LOPEZ V. CATALINA CHANNEL EXPRESS 17
Second Circuit’s approach is most sensible because
otherwise we would be asking too much of plaintiffs,
especially considering that defendants have more knowledge
and information regarding their own facilities, which allows
them to quickly and easily counter implausible barrier-
removal proposals. See Roberts, 542 F.3d at 373 (“Neither
the estimates nor the proposal are required to be exact or
detailed, for the defendant may counter the plaintiff’s
showing by meeting its own burden of persuasion and
establishing that the costs of a plaintiff’s proposal would in
fact exceed the benefits.”). Accordingly, we hold that to
satisfy their initial burden, ADA plaintiffs must plausibly
show how the cost of removing the architectural barrier at
issue does not exceed the benefits under the circumstances.
Additionally, the ADA requires courts to consider four
enumerated factors when “determining whether an action is
readily achievable,” including:
(A) the nature and cost of the action needed
[];
(B) the overall financial resources of the
facility or facilities involved in the action; the
number of persons employed at such facility;
the effect on expenses and resources, or the
impact otherwise of such action upon the
operation of the facility;
(C) the overall financial resources of the
covered entity; the overall size of the
business of a covered entity with respect to
the number of its employees; the number,
type, and location of its facilities; and
18 LOPEZ V. CATALINA CHANNEL EXPRESS
(D) the type of operation or operations of the
covered entity, including the composition,
structure, and functions of the workforce of
such entity; the geographic separateness,
administrative or fiscal relationship of the
facility or facilities in question to the covered
entity.
42 U.S.C. § 12181(9)(A)–(D). Lopez argues that ADA
plaintiffs will not have the information required by
§ 12181(9), but under the test we adopt, plaintiffs are not
required to address in detail each of the four factors to meet
their initial burden of plausibly explaining why it is readily
achievable to remove an architectural barrier. If the plaintiff
makes a plausible showing that the requested
accommodation is readily achievable, the burden shifts to
the defendant to counter the plaintiff’s initial showing, and
at that point the district court is required under the statute to
weigh each of the § 12181(9) factors to determine whether
removal of the architectural barrier is readily achievable or
not. Therefore, it is in plaintiffs’ best interest to submit as
much evidence as possible pertaining to each of the
§ 12181(9) factors in their initial barrier-removal proposal,
even if it is not required to satisfy their initial burden of
plausibly showing how the costs of removal outweigh the
benefits. Otherwise, plaintiffs risk meeting their initial
burden but failing to ultimately prevail on summary
judgment. 6
6
See e.g., Garibay v. Rodriguez, No. CV 18-09187, 2019 WL
8060795, at *4 (C.D. Cal. Dec. 19, 2019); Lopez v. Lopez, No. CV 18-
6473, 2019 WL 7905742, at *6 (C.D. Cal. Oct. 17, 2019); Mannick v.
Kaiser Found. Health Plan, Inc., No. C 03-5905, 2006 WL 1626909,
at *12 (N.D. Cal. June 9, 2006).
LOPEZ V. CATALINA CHANNEL EXPRESS 19
In this case, the district court correctly found that Lopez
not only failed to address the § 12181(9) factors, but that he
also did not meet his initial burden of plausibly showing how
the cost of widening the Jet Cat Express’s restroom door
does not exceed the benefits. The only evidence that Lopez
submitted to that effect was a two-page declaration from
Corey Taylor, a private investigator who conducted “an
investigation” consisting of “taking photographs and
measurements of the restroom at the Catalina Express Jet Cat
Express.” The extent of Taylor’s testimony is that the
restroom pocket door at issue in this case “opens only
25 inches in width” but “could have opened 34 inches, if not
blocked by the metal pin, located on the top of the sliding
door.” Taylor does not estimate why he is qualified to opine
on this issue, or even how he reached his conclusion. Taylor
also attaches three photographs of the door, none of which
display any measurements, and one of which, construed
generously, seems to depict what looks like a “pin” on the
pocket door’s top rail. The district court correctly concluded
that, even if Taylor’s statement that the pin is blocking the
door from opening more widely is true, it “only identifies the
problem; it does not bear on the question of whether
remediating the problem is readily achievable.” Nowhere
does Lopez explain how much he thinks widening the door
would cost, let alone why that cost does not exceed the
potential benefits of a wider door. Therefore, Taylor’s
declaration is patently insufficient for Lopez to meet his
initial burden.
Accordingly, we affirm the district court’s conclusion
that Lopez failed to meet his initial burden of plausibly
showing that the costs of widening the Jet Cat Express’s
restroom door do not exceed the benefits such that widening
the door was shown to be “readily achievable.”
20 LOPEZ V. CATALINA CHANNEL EXPRESS
C. Alternative Methods
Even if widening the Jet Cat Express’s restroom door
was not readily achievable, Lopez could still prevail on his
Title III discrimination claim if he establishes that Catalina
chose not to make the restroom available to him even though
it could have done so through alternative methods without
much difficulty or expense. 42 U.S.C.
§§ 12182(b)(2)(A)(v).
On appeal, Catalina argues that it offers narrow
wheelchairs to individuals with disabilities who need to use
the restroom on the Jet Cat Express. Lopez does not dispute
that evidence; rather, he argues that he was never offered a
different wheelchair that would fit through the restroom’s
door. Lopez did testify, however, that he rejected Catalina’s
offer to transfer him from his wheelchair to the toilet
directly: “I’m a hefty guy, and I’ve had bad experiences with
people trying to help me. They assume they can. I’ve been
dropped, so I wouldn’t.” It is therefore unclear whether
Lopez would have accepted an offer to use a narrower
wheelchair or whether an offer to transfer him directly to the
toilet would satisfy Catalina’s duty to offer “alternative
methods” to use the restroom. In any case, the district court
did not evaluate whether Catalina made the restroom
available to Lopez through alternative methods. 7
7
The district court did address Lopez’s alternative argument that
“even if ‘full barrier removal’ is not readily achievable, readily
achievable partial accommodations must still be made.” This appears to
be a different argument having to do with Catalina’s duty to remove
architectural barriers that is unrelated to Catalina’s duty to make the
restroom available to Lopez through “alternative methods.” 42 U.S.C.
§§ 12182(b)(2)(A)(v).
LOPEZ V. CATALINA CHANNEL EXPRESS 21
Accordingly, we reverse the district court’s grant of
summary judgment to Catalina and remand for the district
court to determine in the first instance whether there is
sufficient evidence that Catalina made the restroom
“available through alternative methods” pursuant to
§ 12182(b)(2)(A)(v).
IV. Conclusion
We affirm the district court’s conclusion that Lopez
failed to meet his initial burden of plausibly showing that
widening the Jet Cat Express’s restroom door was “readily
achievable” under 42 U.S.C. §§ 12182(b)(2)(A)(iv). In
doing so, we adopt a burden-shifting framework whereby
plaintiffs have the initial burden at summary judgment of
plausibly showing that the cost of removing an architectural
barrier does not exceed the benefits under the particular
circumstances. The defendant then bears the ultimate
burden of persuasion that barrier removal is not readily
achievable.
We reverse the district court’s grant of summary
judgment, however, because the district court did not
evaluate whether Catalina made the restroom available to
Lopez through “alternative methods.” On remand, the
district court should determine in the first instance whether
there is sufficient evidence that Catalina made the restroom
“available through alternative methods” pursuant to
§ 12182(b)(2)(A)(v).
REVERSED and REMANDED with instructions.
Each party shall bear its own costs.