Ricardo Murillo v. Cwca Ramona 41 LLC ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICARDO MURILLO, No. 14-56351
Plaintiff - Appellant, D.C. No. 2:13-cv-08059-GW-JEM
v.
MEMORANDUM*
CWCA RAMONA 41, L.L.C., a Delaware
Limited Liability Company; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted May 3, 2016**
Pasadena, California
Before: BYBEE and N.R. SMITH, Circuit Judges and STEIN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
1. Plaintiff Ricardo Murillo has set forth sufficient evidence to satisfy each of
the three elements of Article III standing. See Chapman v. Pier 1 Imports (U.S.) Inc.,
631 F.3d 939, 946 (9th Cir. 2011) (en banc). First, evidence exists to show that
Murillo suffered the requisite injury in fact. Id. at 949-50. Murillo submitted evidence
that the lack of a wheelchair accessible path impacted his ability to access the
restaurant. We also infer from the record that Murillo intends to return to Cowboy
Burgers given his multiple trips there and the close proximity of the restaurant to his
home. Cf. Lujan v. Defs. of Wildlife, 504 U.S. 555, 579 (1992) (Kennedy, J.,
concurring in part and concurring in the judgment). This evidence suffices to show
that Murillo suffered the required injury. Chapman, 631 F.3d at 950.
Second and third, evidence exists in the record to demonstrate that Murillo’s
injury was fairly traceable to defendants’ conduct and is redressible. Id. at 946.
Murillo testified he has “no problem traveling short distances over close-cut grass.”
Consequently, had defendants made accessible the so-called stone paver pathway,
Murillo could have driven his wheelchair over the City’s grass and onto that newly
accessible pathway. Murillo’s injury was thus not caused by the City but rather by
Cowboy Burgers’ failure to provide an accessible pathway from the City’s grass. As
such, Murillo’s injury is fairly traceable to defendants’ conduct, and that injury can
be redressed by court-imposed injunction.
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2. The ADA does not entitle Murillo to the injunction he seeks, because no
evidence exists in the record to show that constructing an accessible route from “site
arrival points” such as a public street or a sidewalk to Cowboy Burgers is “readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv); 36 C.F.R. Pt. 1191, App. B § 206.2.1.
See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 966 (9th Cir. 2006). The
record demonstrates that Murillo proposed only two possible accessible routes—those
his expert Paul Bishop set forth. But undisputed facts in the record demonstrate that
the ADA does not require Cowboy Burgers to construct either route.
Bishop’s first solution fails because his proposed pathway indisputably does not
fall “completely on” Cowboy Burgers’ property. The ADA does not require Cowboy
Burgers to build on the City’s land; nor does it require defendants to “seek
permission” from the City “to build an accessible route over the City’s land.” Pickern,
457 F.3d at 967. This solution is thus not “readily achievable.” See 42 U.S.C.
§ 12181(9).
Bishop also proposes that Cowboy Burgers “replac[e] the paver-stone walkway
with a wheelchair accessible walkway.” But the ADA does not require Cowboy
Burgers to implement this solution because it does not result in an accessible pathway
that originates from a “site arrival point” such as a sidewalk or public street. See 36
C.F.R. Pt. 1191, App. B § 206.2.1. The City of Irwindale’s grassland—which is where
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such a pathway would originate—is not a cognizable “site arrival point.” The
grassland is a “sidewalk” neither colloquially nor as relevant regulations define that
term. See, e.g., 28 C.F.R. Pt. 36, App. D § 3.5 (defining the term “walk”).
Finally, Murillo’s reply brief on appeal for the first time proposes two
alternative routes. Neither route appears in the record. The Court may not speculate
as to whether these routes are “readily achievable” means of constructing an
accessible route from any site arrival point to Cowboy Burgers’ entrance.
AFFIRMED.
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