Johnson v. Kohanbash Century Plaza, LLC ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT JOHNSON, No. 2:15-cv-2484-KJM-EFB 12 Plaintiff, 13 v. ORDER 14 KOHANBASH CENTURY PLAZA, LLC, a California Limited Liability Company; 15 JOSE CARDENAS; 16 MONICA SAAVEDRA; and MARCO A. NAJERA, 17 Defendants. 18 19 Plaintiff Scott Johnson brings this action against defendants Kohanbash Century 20 Plaza, LLC (“Kohanbash”), Jose Cardenas, Monica Saavedra and Marco A. Najera, alleging that 21 two businesses, Tocumbo #2 (“Tocumbo”) and Tierra Caliente Restaurant Y Taqueria (“Tierra 22 Caliente”), contain barriers to access in violation of the Americans with Disabilities Act 23 (“ADA”). Compl., ECF No 1. Plaintiff seeks injunctive relief under the ADA and statutory 24 damages under California’s Unruh Civil Rights Act (“Unruh Act”). Plaintiff moves for summary 25 judgment. Mot., ECF No. 34; Mem., ECF No. 34-1. In response, defendants filed a statement of 26 non-opposition. ECF No. 37. The court submitted the motion without a hearing. As explained 27 below, the court GRANTS plaintiff’s motion. 28 /// 1 I. BACKGROUND 2 A. Factual Background 3 Plaintiff filed a statement of undisputed facts. See ECF No. 34-2. Defendants 4 neither filed a statement of alternative facts nor responded specifically to plaintiff’s statement of 5 facts. The court treats each listed fact as undisputed unless otherwise stated. 6 Plaintiff is a quadriplegic. Johnson Decl. ¶ 2, ECF No. 34-6. He cannot walk and 7 has significant manual dexterity impairments. Id. Plaintiff uses a wheelchair for mobility and 8 drives a specially equipped van with a lift that deploys from the passenger side of the van to 9 accommodate his wheelchair. Id. On November 21, 2014, December 4, 2014, December 17, 10 2014, January 19, 2015 and October 22, 2015, plaintiff visited and purchased food at Tocumbo, 11 an ice cream shop, and Tierra Caliente, a restaurant, both located in Stockton, California. Id. 12 ¶¶ 4, 24; Johnson Receipts, ECF Nos. 34-7, 34-8. Defendant Jose Cardenas was the owner and 13 operator of Tocumbo in November and December 2014, and defendant Monica Saavedra has 14 been the owner and operator of Tocumbo since January 2015. Pl.’s Statement of Undisputed 15 Facts (“SUF”) ¶¶ 6–7. Defendant Marco A. Najera is the owner and operator of Tierra Caliente. 16 Id. ¶ 8. Both restaurants operate on real property owned by defendant Kohanbash. Id. ¶ 5. 17 According to plaintiff, on each of his visits to Tocumbo and Tierra Caliente, 18 defendants did not provide and maintain van-accessible parking for persons with disabilities as 19 required by the ADA. Johnson Decl. ¶¶ 6, 27. Specifically, the parking stalls and access aisles 20 for use by persons with disabilities were not level with each other, resulting in slopes and cross 21 slopes, which plaintiff asserts cause his wheelchair to tip in different directions and make it 22 difficult to exit his van safely. Id. ¶¶ 7–10, 28–31. Because he determined he could not safely 23 park in the designated van-accessible parking at Tocumbo and Tierra Caliente, plaintiff had to 24 park in a non-disabled parking space and leave his van lift deployed to avoid getting his van 25 blocked by a neighboring car. Id. ¶¶ 11, 32. 26 When plaintiff parked and exited his vehicle, he found the paths of travel from the 27 parking lot to the entrances of Tocumbo and Tierra Caliente were too narrow to navigate with his 28 wheelchair. Id. ¶¶ 13, 34. Additionally, the path of travel from the parking lot to the entrance of 1 Tocumbo provided a hinge-side approach to an outward-opening swinging door, which did not 2 provide the required width for wheelchair users. Id. ¶ 14. Once inside Tocumbo and Tierra 3 Caliente, plaintiff discovered the transaction counters were too high for him to use independently 4 and neither business provided a lowered counter. Id. ¶¶ 15–16, 35–36. 5 Plaintiff also claims he encountered barriers to access when he attempted to use 6 the restroom at both Tocumbo and Tierra Caliente. Id. ¶¶ 17–23, 37–40. At Tocumbo, plaintiff 7 had difficulty reaching the restroom because the path of travel was too narrow for him to navigate 8 with his wheelchair. Id. ¶ 17. When plaintiff attempted to open the restroom door at Tocumbo, 9 he discovered that the door hardware was a traditional-style knob requiring tight grasping and 10 twisting of the wrist to operate, which is difficult for plaintiff because of his manual dexterity 11 issues. Id. ¶¶ 19–20. Inside the restroom, plaintiff found the mirror on the wall and the sink were 12 mounted too high for him to see his reflection and easily wash his hands. Id. ¶¶ 21–23. At Tierra 13 Caliente, the restroom doorway’s clear passage width was not wide enough for plaintiff’s 14 wheelchair and the wall mirror was mounted too high for plaintiff to see his reflection. Id. ¶¶ 38– 15 39. Finally, at both Tocumbo and Tierra Caliente the restrooms did not display the International 16 Symbol of Accessibility. Id. ¶¶ 18, 40. Plaintiff says that all of these access barriers at both 17 businesses caused him “difficulty, discomfort, and frustration.” Id. ¶ 41. 18 An investigator hired by plaintiff, Jon Meyers, visited Tocumbo and Tierra 19 Caliente on February 27, 2015. Gunderson Decl. ¶¶ 8–9, ECF No. 34-5; Meyers Notes Tocumbo, 20 ECF No. 34-17; Meyers Notes Tierra Caliente, ECF No. 34-18. Meyers measured the 21 transaction counter at Tocumbo to be forty-one inches high and the transaction counter at Tierra 22 Caliente to be forty-two inches high. Meyers Notes Tocumbo; Meyers Notes Tierra Caliente. In 23 the restroom at Tocumbo, Meyers measured the height of the bottom edge of the mirror to be 24 fifty-one inches above the floor and the height of the sink to be thirty-six inches above the floor. 25 Meyers Notes Tocumbo. Meyers measured the height of the bottom edge of the mirror in the 26 restroom at Tierra Caliente to be forty-nine inches above the floor. Meyers Notes Tierra Caliente. 27 He found the width of the restroom door there to be thirty-four inches. Id. 28 1 On June 5, 2018, Gary Waters, plaintiff’s expert, conducted a site inspection of 2 Tocumbo and Tierra Caliente. Waters Decl. ¶¶ 5–9, ECF No. 34-11. Mr. Waters’s September 3 17, 2018 report concluded that several access violations exist at Tocumbo and Tierra Caliente, 4 including noncompliant accessible parking due to excessive slopes and inappropriate signage and 5 access aisle marking, as well as inaccessible exterior paths of travel due to insufficient width and 6 excessive slopes. Waters Report at 4–9, ECF No. 34-12. 7 Plaintiff indicates he has visited Stockton to shop, eat and stay overnight on a 8 number of occasions over the past two years and plans to continue to do so in the future. Johnson 9 Decl. ¶ 46. Tocumbo and Tierra Caliente are conveniently located for him and he enjoys eating 10 the food served at both establishments. Id. ¶ 47. Plaintiff says he would like to patronize 11 Tocumbo and Tierra Caliente in the future, when the violations have been remedied. Id. ¶ 48. 12 B. Procedural Background 13 Plaintiff filed this action on December 1, 2015, asserting claims for violations of 14 the ADA, 42 U.S.C. § 12101, et seq., and the Unruh Act, Cal. Civ. Code §§ 51–53. ECF No. 1. 15 Defendants answered on January 14, 2016. ECF No. 8. Plaintiff filed the instant motion for 16 summary judgment on November 9, 2018. ECF No. 34. Plaintiff seeks injunctive relief ordering 17 defendants to make their businesses readily accessible to and usable by individuals with 18 disabilities to the extent required by the ADA. Mem. at 16–17. He also seeks $8,000 in statutory 19 damages under the Unruh Act, $4,000 each for violations at Tocumbo and Tierra Caliente. Id. at 20 18. 21 II. LEGAL STANDARD 22 A court will grant summary judgment “if . . . there is no genuine dispute as to any 23 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 24 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 25 resolved only by a finder of fact because they may reasonably be resolved in favor of either 26 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 27 The moving party bears the initial burden of showing the district court “there is an 28 absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 1 317, 325 (1986). Then the burden shifts to the nonmovant to show “there is a genuine issue of 2 material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986) 3 (citing Fed. R. Civ. P. 56(e); First Nat’l Bank of Ariz. V. Cities Serv. Co., 391 U.S. 253, 288–89 4 (1968)). In carrying their burdens, both parties must “cit[e] to particular parts of materials in the 5 record . . .; or show[ ] that the materials cited do not establish the absence or presence of a 6 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 7 Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[the nonmovant] must do more 8 than simply show that there is some metaphysical doubt as to the material facts”). Also, “[o]nly 9 disputes over facts that might affect the outcome of the suit under the governing law will properly 10 preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. 11 In deciding summary judgment, the court draws all inferences and views all 12 evidence in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587–88 (quoting 13 United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). “Where the record taken 14 as a whole could not lead a rational trier of fact to find for the [nonmovant], there is no ‘genuine 15 issue for trial.’” Id. at 587 (quoting First Nat'l Bank of Ariz., 391 U.S. at 289). 16 III. DISCUSSION 17 Plaintiff moves for summary judgment against all defendants, as the owners, 18 operators or lessees of places of public accommodation, on grounds that Tocumbo and Tierra 19 Caliente are not ADA-compliant, including with respect to the configuration of the disabled 20 parking spaces, the path of travel to the entrances and restrooms, the restrooms and the cashier 21 counters. As noted above, defendants filed a statement of non-opposition to plaintiff’s motion for 22 summary judgment. ECF No. 37. A district court, however, may not grant a motion for summary 23 judgment solely because it is unopposed. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 24 1993). Instead, the court must determine whether the movant has satisfied “its burden of showing 25 its entitlement to judgment.” Cristobal v. Siegel, 26 F.3d 1488, 1491 (9th Cir. 1994). 26 A. ADA Claim 27 Title III of the ADA prohibits discrimination on the basis of disability by places of 28 public accommodation. 42 U.S.C. § 12182(a). To prevail on a claim under Title III of the ADA, 1 “a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) the defendant is 2 a private entity that owns, leases, or operates a place of public accommodation; and (3) the 3 plaintiff was denied public accommodations by the defendant because of his disability.” Arizona 4 ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010) (citing 5 Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)). 6 The third element requires a plaintiff to show “there was a violation of applicable 7 accessibility standards.” Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011) 8 (citing Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011); Donald v. Cafe 9 Royale, 218 Cal. App. 3d 168, 183 (1990)). For purposes of Title III, discrimination includes “a 10 failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily 11 achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA defines “readily achievable” as “easily 12 accomplishable and able to be carried out without much difficulty or expense.” Id. § 12181(9). 13 The ADA’s antidiscrimination mandate requires that newly constructed facilities, or facilities 14 altered after January 26, 1992, be “readily accessible to and usable by individuals with 15 disabilities.” Id. § 12183(a)(1)–(2); 28 C.F.R. § 36.402. To satisfy these standards, new 16 construction and alterations must comply with either the 1991 or 2010 ADA Standards of 17 Accessible Design, depending on the date the construction or alterations began. 28 C.F.R. 18 § 36.406. Even minor or technical violations of these access standards are per se violations of the 19 ADA when removal is readily achievable. Chapman, 631 F.3d at 945–46. Indeed, the ADA’s 20 requirements are as “precise as they are thorough, and the difference between compliance and 21 noncompliance with . . . the ADA is often a matter of inches.” Id. 22 The ADA defines a person as disabled if, among other things, the person has “a 23 physical . . . impairment that substantially limits one or more major life activities.” 42 U.S.C. 24 § 12102(1)(A). The ADA lists “walking” as an example of a major life activity. Id. 25 § 12102(2)(A). Thus, because plaintiff is a quadriplegic, Johnson Decl. ¶ 2, he is considered 26 disabled within the meaning of the ADA. Further, as private establishments serving food and 27 drink, Johnson Decl. ¶ 47, Tocumbo and Tierra Caliente are expressly identified under the ADA 28 as places of public accommodation. See 42 U.S.C. § 12181(7)(B). Therefore, to the extent the 1 physical layouts of Tocumbo and Tierra Caliente fail the requirements set forth in the ADA 2 Standards, the businesses contain barriers to access in violation of the ADA. See id. 3 § 12182(b)(2)(A)(iv). 4 Plaintiff claims several barriers to access exist at Tocumbo and Tierra Caliente; the 5 court addresses these below in turn. The parties do not address when Tocumbo and Tierra 6 Caliente were constructed or altered, or which set of accessibility standards apply to the barriers 7 plaintiff alleges he encountered at the businesses. Instead, plaintiff asserts the alleged barriers 8 violate both the 1991 and 2010 Standards, and that removal of the barriers is readily achievable. 9 See Mem. at 10 n.1, 15–16. Accordingly, plaintiff argues defendants violated the ADA and he is 10 entitled to injunctive relief. Mem. at 16–17. 11 1. Lack of Accessible Parking 12 Plaintiff asserts defendants violated the ADA by failing to provide level parking 13 spaces for and access aisles to Tocumbo and Tierra Caliente. Mem. at 11. Under § 4.6.3 of the 14 1991 Standards, “[p]arking spaces and access aisles shall be level with surface slopes not 15 exceeding 1:50 (2%) in all directions.” Similarly, § 502.4 of the 2010 Standards provides that 16 “[a]ccess aisles shall be at the same level as the parking spaces they serve. Changes in level are 17 not permitted.” Specifically, under the 2010 Standards, slopes shall not exceed 1:48. Id. Here, 18 Mr. Waters’s report indicates “[t]he slope exceeds 1:48 at multiple locations throughout the 19 accessible parking space and access aisle; measured up to 8.9%.” Waters Report at 7. 20 Plaintiff also argues defendants did not provide ADA-compliant parking because 21 the bottom edge of the sign marking the accessible parking space is less than sixty inches above 22 the ground. Mem. at 12. Section 502.6 of the 2010 Standards requires the bottom edge of signs 23 identifying accessible parking spaces to be at lease sixty inches above the ground. Mr. Waters 24 measured the bottom edge of the sign at Tocumbo and Tierra Caliente to be fifty inches above the 25 ground. Waters Report at 7. 26 Additionally, plaintiff contends defendants violated § 502.3.3 of the 2010 ADA 27 Standards by not adhering to California Building Code section 11B-502.3.3 in not marking the 28 perimeter of the access aisle with a blue painted borderline and by allowing diagonal hatch lines 1 marking the aisle to extend beyond the borderline. Mem. at 12. Although § 502.3.3 of the 2010 2 Standards mandates the access aisles be “clearly marked,” it does not specify the “method and 3 color of marking,” leaving those specifications to state or local law and regulations. Therefore, 4 this claimed barrier to access relates solely to a violation of the California Building Code and 5 does not establish a violation of the ADA. See 42 U.S.C. § 12183(a)(1) (an ADA violation is 6 measured by “regulations issued under this subchapter); Wilson v. Pier 1 Imports (US), Inc., 7 439 F. Supp. 2d 1054, 1066 (E.D. Cal. 2006) (compliance with the ADA Accessibility Guidelines 8 (“ADAAG”), and not another standard, constitutes compliance with ADA requirements). 9 Accordingly, the court finds plaintiff has not met his burden of establishing that defendants’ 10 alleged California Building Code violations violate the ADA. 11 Because defendants do not oppose summary judgment, they offer no evidence to 12 counter plaintiff’s claims regarding the lack of ADA-compliant parking. See Defs.’ Statement of 13 Non-Opp’n, ECF No. 37. Therefore, the record shows no triable issues as to the presence 14 plaintiff’s claimed ADA violations based on the lack of accessible parking, except as to the 15 alleged California Building Code section 11B-502.3.3 violations. 16 2. Lack of Accessible Path of Travel 17 Plaintiff next contends defendants violated the ADA by not providing accessible 18 paths of travel. Mem. at 12–13. Under the ADA, places of public accommodation must provide 19 an accessible path of travel connecting all buildings, facilities, elements and spaces within the 20 same site. 1991 Standards § 4.3.2(2); 2010 Standards § 206.2.2. Places of public accommodation 21 must also provide an accessible route within the boundary of a site from the accessible parking 22 spaces to the accessible building entrance the parking spaces serve. 1991 Standards § 4.3.2(1); 23 2010 Standards § 206.2.1. To be ADA-compliant, an accessible path of travel must be at least 24 thirty-six inches wide, except at doorways. 1991 Standards § 4.3.3; 2010 Standards § 403.5.1. 25 Further, when the path of travel provides a side approach to the hinge side of an outward- 26 swinging door, the minimum permissible width of the path of travel is either fifty-four or sixty 27 inches, depending on the amount of clearance on the latch side of the door. 1991 Standards 28 § 4.13.6 (Fig. 25); 2010 Standards § 404.2.4.1. 1 Plaintiff asserts defendants did not provide ADA-compliant paths of travel from 2 their accessible parking spaces to the entrances of Tocumbo and Tierra Caliente. Mem. at 12–13. 3 He also argues defendants did not provide an accessible path of travel to the restroom within 4 Tocumbo. Mem. at 13. In support of the claimed violations at Tocumbo, plaintiff provides only 5 his declaration, in which he states in imprecise terms that (1) the path of travel from the parking 6 lot to the entrance “was too narrow for wheelchair users to navigate through it comfortably” and 7 “provided a hinge-side approach to an outward-opening swinging door that did not provide the 8 required width for wheelchair users,” and (2) he “had difficulty reaching the unisex restroom 9 because there the path of travel to the restroom was too narrow.” Johnson Decl. ¶¶ 13–14, 17. 10 Regarding the claimed violations at Tierra Caliente, plaintiff provides photographs of the path of 11 travel without any measurements, Johnson Photos at 15–16, ECF No. 34-9, and his declaration, in 12 which he states “[t]he path of travel from the parking to Tierra Caliente was narrow in places due 13 to the existence of manholes on the path of travel,” Johnson Decl. ¶ 34. Although plaintiff has 14 not provided objective and precise measurements to support his conclusory statements, 15 defendants do not dispute the existence of these violations at Tocumbo and Tierra Caliente. See 16 Defs.’ Statement of Non-Opp’n. Therefore, plaintiff is entitled to summary judgment on his 17 ADA claims for lack of accessible paths of travel if removal of these access barriers is readily 18 achievable. See Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (finding “even 19 without precise measurements,” a quadriplegic plaintiff’s “personal observations, based on his 20 prolonged experience with ADA-compliant (and non-compliant) access ramps, are enough to 21 propel him past summary judgment”). 22 3. Lack of Accessible Transaction Counters 23 Plaintiff claims defendants did not provide an accessible transaction counter 24 complying with the ADA’s requirements at Tocumbo and Tierra Caliente. Mem. at 13–14. The 25 ADA mandates that counters used for sales or services have a maximum height of thirty-six 26 inches from the floor. 1991 Standards § 7.2(1); 2010 Standards §§ 904.4, 904.4.1. As noted 27 above, according to Meyers, plaintiff’s investigator, the transaction counters at Tocumbo and 28 Tierra Caliente measured forty-one inches and forty-two inches high, respectively. Meyers Notes 1 Tocumbo; Meyers Notes Tierra Caliente. Defendants do not dispute that the transaction counters 2 violate the ADA Standards. See Defs.’ Statement of Non-Opp’n. Accordingly, there is no triable 3 issue as to the existence of these claimed ADA violations. 4 4. Lack of Accessible Restrooms 5 Finally, plaintiff argues defendants did not provide ADA-compliant restrooms at 6 Tocumbo and Tierra Caliente. Mem. at 14–15. Specifically, plaintiff claims the configuration of 7 the restroom mirror, sink and door hardware at Tocumbo and of the mirror and doorway at Tierra 8 Caliente violated the ADA. Mem. at 14–15. Plaintiff also contends the restrooms at Tocumbo 9 and Tierra Caliente did not display the International Symbol of Accessibility in violation of the 10 ADA. Mem. at 15. 11 The record shows several restroom-related ADA violations at Tocumbo and Tierra 12 Caliente. Under the ADA, wall mirrors must be mounted with the bottom edge of the reflective 13 surface no higher than forty inches above the floor. 1991 Standards § 4.19.6; 2010 Standards 14 § 603.3. The bottom edge of the restroom wall mirrors at Tocumbo and Tierra Caliente measured 15 fifty-one and forty-nine inches above the ground, respectively. Meyers Notes Tocumbo; Meyers 16 Notes Tierra Caliente; Meyers Photos at 8, ECF No. 34-10. The ADA requires sinks be mounted 17 with the counter or rim no higher than thirty-four inches above the floor. 1991 Standards 18 § 4.24.2; 2010 Standards § 606.3. The rim of the restroom sink at Tocumbo measured thirty-six 19 inches above the ground. Meyers Notes Tocumbo. ADA-compliant restroom door hardware 20 must have handles and other operating devices that have a shape that is easy to use with one hand 21 and does not require tight grasping, pinching or twisting of the wrist to operate. 1991 Standards 22 §§ 4.13.9, 4.23.2; 2010 Standards §§ 309.4, 404.2.7. The restroom door hardware at Tocumbo is 23 a traditional-style knob, requiring tight grasping and twisting of the wrist to operate. Meyers 24 Notes Tocumbo; Meyers Photos at 7; Johnson Photos at 13; Johnson Decl. ¶ 19. The ADA 25 mandates that all restroom doors have a minimum clear opening of thirty-two inches with the 26 door open ninety degrees, as measured between the face of the door and the opposite stop. 1991 27 Standards §§ 4.13.5, 4.22.2; 2010 Standards § 404.2.3. In his declaration, plaintiff states the 28 “restroom doorway clear passage width at Tierra Caliente was not wide enough for wheelchair 1 users.” Johnson Decl. ¶ 38. Finally, under the 2010 Standards, when existing restroom facilities 2 do not comply with the ADA’s accessibility requirements, or when clustered single user restroom 3 facilities fall under exceptions to those requirements, directional signs including the International 4 Symbol of Accessibility shall indicate the location of the nearest ADA-compliant restroom. 2010 5 Standards § 216.8. The restrooms at Tocumbo and Tierra Caliente in fact did not display the 6 International Symbol of Accessibility. Johnson Decl. ¶¶ 18, 40; Johnson Photos at 19–20; Meyer 7 Photos at 7. 8 Defendants do not dispute the presence of the above-listed, well-documented 9 violations. Accordingly, no reasonable factfinder could disagree that defendants did not provide 10 ADA-compliant restrooms at Tocumbo and Tierra Caliente. 11 5. Readily Removable 12 Plaintiff points out that repositioning shelves, widening doors, creating accessible 13 parking and installing accessible door hardware and mirrors are among the types of barriers 14 whose removal are defined by regulation as readily achievable. 28 C.F.R. § 36.304(b)(3), (8), 15 (11), (16), (18). Additionally, defendants do not argue that removal of the identified barriers is 16 not readily achievable for lack of financial resources or otherwise, despite having the opportunity 17 to have so argued. See Defs.’ Statement of Non-Opp’n; Joint Stipulation of Fact Re: Defs.’ 18 Financial Wherewithal, ECF No. 31, at 3. Further, defendants admitted in their answer that they, 19 respectively, operate Tocumbo and Tierra Caliente and own the real property on which the 20 businesses are located. Answer ¶¶ 2–19, ECF No. 8. Because the record shows no genuine 21 dispute regarding the existence of the barriers to access identified by plaintiff and whether 22 removal of these barriers is readily achievable, the court will grant plaintiff’s motion for summary 23 judgment on the issue of liability under the ADA, except as noted above. 24 B. Unruh Civil Rights Act Claim 25 Plaintiff also moves for summary judgement on his Unruh Act claim. The Unruh 26 Act provides that “[a] violation of the right of any individual under the [ADA] shall also 27 constitute a violation of” the Unruh Act. Cal. Civ. Code § 51(f) (footnote omitted). While the 28 ADA does not provide for monetary damages in private suits, the Unruh Act generally authorizes 1 a $4,000 minimum in statutory damages for each occasion on which a plaintiff has been denied 2 full and equal access to a place of public accommodation. See id. §§ 52(a), 55.56(a). “A plaintiff 3 is denied full and equal access only if the plaintiff personally encountered the violation on a 4 particular occasion, or the plaintiff was deterred from accessing a place of public accommodation 5 on a particular occasion.” Id. § 55.56(b). Further, to establish a denial of full and equal access a 6 plaintiff must demonstrate he or she “experienced difficulty, discomfort, or embarrassment 7 because of the violation.” Id. § 55.56(c). A plaintiff, however, “need not prove she suffered 8 actual damages to recover the independent statutory damages of $4,000.” Molski, 481 F.3d at 731 9 (citing Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (explaining “[t]he 10 statute lists actual damages and statutory damages as two separate categories of damages that a 11 plaintiff may recover”)). 12 Although plaintiff made four visits each to Tocumbo and Tierra Caliente, plaintiff 13 seeks only $4,000 in damages for each establishment, for a total award of $8,000 in Unruh Act 14 statutory damages. Mem. at 18. Defendants do not dispute plaintiff’s evidence that he personally 15 encountered the ADA violations described above at both businesses on November 21, 2014, 16 December 4, 2014, December 17, 2014, January 19, 2015 and October 22, 2015. Neither do they 17 dispute plaintiff’s statement that he experienced difficulty, discomfort and frustration when he 18 encountered the lack of accessible parking, paths of travel, transaction counters and restrooms at 19 Tocumbo and Tierra Caliente. Johnson Decl. ¶ 41. The court thus concludes plaintiff has 20 established he is entitled to statutory damages for his visits to Tocumbo and Tierra Caliente. 21 Accordingly, the court grants plaintiff’s motion for summary judgment on his Unruh Act claim 22 and awards him $8,000 in statutory damages. 23 IV. CONCLUSION 24 As explained above, the court GRANTS plaintiff’s motion for summary judgment 25 except as to the alleged California Building Code violations. The court GRANTS plaintiff an 26 injunction ordering defendants to alter their facilities to make such facilities readily accessible to 27 and usable by individuals with disabilities to the extent required by the ADA and specifically as 28 1 identified above. The court also awards plaintiff statutory damages in the sum of $8,000 for the 2 access barriers he encountered at Tocumbo and Tierra Caliente. 3 IT IS SO ORDERED. 4 DATED: August 6, 2019. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28