Arroyo v. Mehrabi ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 RAFAEL ARROYO, JR., No. 2:19-cv-1147-WBS-CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION FOR 15 KARIM MEHRABI, STARS HOLDING SUMMARY JUDGMENT CO., a California Limited 16 Liability Company; AND DOES 1- 10, 17 Defendants. 18 19 20 ----oo0oo---- 21 Plaintiff moves for summary judgment in this disability 22 access action under the Americans with Disabilities Act (“ADA”), 23 42 U.S.C. § 12101, and the Unruh Civil Rights Act (“Unruh Act”), 24 California Civil Code §§ 51-53. (Docket No. 40.)1 25 The undisputed facts are as follows. Plaintiff is a 26 27 1 The motion was scheduled to be heard on February 22, 2022, but because of incurable problems with the Zoom connection, 28 the court took the motion under submission without oral argument. 1 paraplegic who uses a wheelchair for mobility. (Defs.’ Resp. to 2 Pl.’s Statement of Uncontroverted Facts (“PSUF”) at No. 1 (Docket 3 No. 41-4).) On December 2, 2018, plaintiff visited the Gas 4 Station at 4507 Howard Road, Westley, California. (Id. at Nos. 5 2, 6.) Defendant Mehrabi has owned and defendant Stars Holding 6 has leased and operated the Gas Station at all relevant times in 7 this suit, including today. (Id. at Nos. 4-5.) 8 Plaintiff needs parking with an access aisle to safely 9 deploy his vehicle ramp. (Decl. of Rafael Arroyo (“Arroyo 10 Decl.”) ¶ 6 (Docket No. 40-3).) Without an accessible aisle, 11 plaintiff runs the risk of getting struck by another car or 12 having another vehicle park next to him and block him from re- 13 entering. (Id. ¶¶ 7, 9.) When he arrived at the Gas Station on 14 December 2, 2018, plaintiff alleges he did not find any parking 15 space designated for persons with disabilities. (Id. ¶ 4.) Nor 16 did he find any parking space with an adjacent access aisle or 17 signage indicating disabled parking. (Id.)2 Plaintiff alleges 18 that defendants violated the ADA by not providing an ADA- 19 complaint accessible parking space, restroom mirror, and toilet 20 paper dispenser.3 21 2 Plaintiff notes that it appeared that there used to be 22 an accessible parking space in the parking lot, however, the surface markings seemed faded or paved over. (Arroyo Decl. ¶ 5.) 23 3 Plaintiff did not actually enter the restroom at the 24 Gas Station, and therefore, did not personally encounter the restroom mirror or the toilet paper dispenser. Nevertheless, the 25 Ninth Circuit allows “[a]n ADA plaintiff who has standing as a result of at least one barrier . . . [to] challenge all barriers 26 in that public accommodation that are related to his or her 27 specific disability.” Doran v. 7-Eleven, 524 F.3d 1034, 1047 (9th Cir. 2008). Here, it is undisputed that plaintiff 28 personally encountered the alleged inaccessible parking. The 1 I. ADA Liability 2 A. Inaccessible Parking 3 Any business that provides parking spaces must provide 4 them in accordance with the ADA Accessibility Guidelines 5 (“ADAAG”). 36 C.F.R, pt. 1191, App. B § 208.1. For parking lots 6 with one to 25 parking spaces, it is required that there is one 7 accessible parking space. Id. at § 208.2. Because the Gas 8 Station had “around 15 parking spaces,” defendants were required 9 to include one accessible parking space. (See Decl. of Tim 10 Wegman (“Wegman Decl.”) ¶ 4 (Docket No. 40-5).) The accessible 11 parking spot must comply with specific measurements, 36 C.F.R., 12 pt. 1191, App. D § 502, and be properly identified with required 13 markings and signage. Id. at § 502.3.3, 502.6. 14 Plaintiff has submitted photographs of the parking lot 15 taken by his investigator on December 22, 2018. (See Pl.’s Mot. 16 for. Summ. J., Ex. 4, 12-17 (Docket No. 40-6).) The photographs 17 do not show an accessible parking space in the Gas Station 18 parking lot. Defendants have also submitted photographs, taken 19 by an employee of the Gas Station in 2015, showing a designated 20 accessible parking space. (Decl. of Azad Amiri (“Amiri Decl.”) ¶ 21 8 (Docket No. 41-1)); (Id., Ex. B, photos of parking space 22 (Docket No. 41-3).) Plaintiff’s submitted photos do not show a 23 clear, close-up of the area which defendants’ photos capture. 24 (See Pl.’s Mot. for. Summ. J., Ex. 4, 12-17.) The contradicting 25 restroom mirror and toilet paper dispenser are barriers related 26 to plaintiff’s paraplegic status. Accordingly, plaintiff also 27 has standing to challenge the restroom mirror and toilet paper dispenser under the ADA. 28 1 photo evidence provided by the parties creates a genuine dispute 2 of material fact as to whether an accessible parking space 3 existed at the time of plaintiff’s visit to the Gas Station. 4 Further, plaintiff’s own declaration creates a genuine 5 dispute of material fact. Plaintiff claims he “did not find any 6 parking space designated for use by persons with disabilities.” 7 (Arroyo Decl. ¶ 4.) However, in the next paragraph, plaintiff 8 states that “[i]t appeared that there used to be an accessible 9 parking space” but that it was faded or paved over. (Id. ¶ 5.) 10 It is not clear from plaintiff’s statements whether no designated 11 spot for persons with disabilities existed, or whether the spot 12 existed but was not properly identified using visible markings 13 and signage. Therefore, the court cannot determine as a matter 14 of law whether an accessible parking space needs to be created, 15 or whether the accessible parking space exists but needs to be 16 “maintained” in a usable manner. See 28 C.F.R., pt. 36, App. C § 17 36.211 (“[a] public accommodation shall maintain in operable 18 working condition those features of facilities . . . that are 19 required to be readily accessible to and usable by persons with 20 disabilities”).4 21 Accordingly, plaintiff’s motion for summary judgment on 22 the ADA claim for accessible parking will be denied. 23 24 4 Plaintiff also states that he “chose to leave without attempting to further patronize the Gas Station.” (Arroyo Decl. 25 ¶ 10.) As part of the same declaration, plaintiff submits a copy of his receipt from the Gas Station visit. (Id., Ex. 2.) 26 Plaintiff provides no explanation for how he patronized the Gas 27 Station when he claims no accessible parking existed and he chose to leave. 28 1 B. Restroom Mirror 2 Pursuant to the ADAAG, “mirrors located above 3 lavatories or countertops shall be installed with the bottom edge 4 of the reflecting surface 40 inches [] maximum above” the floor. 5 36 C.F.R., pt. 1191, App. D § 603.3. Photos taken by plaintiff’s 6 investigator show a mirror located above a sink in the restroom, 7 meaning the mirror’s bottom edge must be no higher than 40 inches 8 from the floor. (See Pl.’s Mot. for. Summ. J., Ex. 4, 4.) One 9 of these photos includes a measuring device at the bottom edge of 10 the mirror and reads 55 and 1/4 inches. (Id. at 5.) Defendants 11 do not offer any evidence that the bottom edge of the mirror was 12 40 inches or less from the floor. Lowering of the mirror is also 13 “readily achievable” as it will not require much of defendants’ 14 resources. See 42 U.S.C. § 12182(b)(2)(A)(iv). 15 There is no genuine dispute of material fact pertaining 16 to the height of the mirror. Plaintiff has proven that 17 defendants failed to comply with the ADA requirement for mirror 18 height. Accordingly, the court will grant partial summary 19 judgment for plaintiff on the issue of ADA liability for the 20 restroom mirror. 21 C. Toilet Paper Dispenser 22 The ADAAG requires that toilet paper dispensers be 23 seven to nine inches in front of the toilet fixture “measured to 24 the centerline of the dispenser.” 36 C.F.R., pt. 1191, App. D § 25 604.7. Plaintiff claims, based on a photo of a measurement taken 26 by his investigator, that the toilet paper dispenser was mounted 27 at 21 inches in front of the toilet fixture. (Pl.’s MSJ at 12.) 28 Defendants do not offer any evidence or argument that plaintiff’s 1 measurement is incorrect. Modification of the distance of the 2 toilet paper dispenser from the toilet fixture is also “readily 3 achievable” as it will not require much of defendants’ resources. 4 See 42 U.S.C. § 12182(b)(2)(A)(iv). 5 As no genuine dispute of material fact exists regarding 6 the toilet paper dispenser, and plaintiff has shown that 7 defendants failed to comply with the ADA requirement for toilet 8 paper dispensers, the court will grant partial summary judgment 9 for plaintiff on the issue of ADA liability for the toilet paper 10 dispenser. 11 II. Unruh Civil Rights Act 12 The Unruh Act provides in relevant part that every 13 person is “entitled to the full and equal accommodations, 14 advantages, privileges, or services in all business 15 establishments of every kind whatsoever” notwithstanding his or 16 her disability. Cal. Civ. Code § 51(b). “A violation of the 17 right of any individual under the federal Americans with 18 Disabilities Act of 1990 shall also constitute a violation of 19 [the Unruh Act].” Cal. Civ. Code § 51(f) (internal citations 20 omitted). 21 Plaintiff does not allege a violation of the Unruh Act 22 independent from his claims under the ADA. (Compl. at 7.) As 23 discussed above, there are genuine issues of material fact 24 regarding plaintiff’s ADA claim for inaccessible parking. 25 Therefore, the court will not grant summary judgment for 26 plaintiff on his Unruh Act claim based on an inaccessible parking 27 violation. 28 Unlike the ADA, under the Unruh Act, for every alleged nen ee nnn nen nee non nnn nnn ee nnn nen nnn nn nn ne on 1 violation plaintiff must “personally encounter[] the violation” 2 or be “deterred from accessing a place of public accommodation on 3 a particular occasion.” See Cal. Civ Code §55.56(a-b). The 4 record does not establish that plaintiff personally encountered 5 the restroom mirror or the toilet paper dispenser. The record 6 also does not establish that plaintiff was deterred from 7 accessing the Gas Station due to knowledge of the restroom 8 violations because plaintiff did not become aware of the 9 | violations until his investigator visited the restroom weeks 10 later, after which plaintiff did not attempt to visit the Gas 11 |} Station on “a particular occasion.” Id. 12 Therefore, the court cannot grant summary judgment for 13 | plaintiff on his Unruh Act claim based on the restroom mirror or 14 toilet paper dispenser violation. 15 IT IS THEREFORE ORDERED that plaintiff’s motion for 16 summary judgment (Docket No. 40) be, and the same hereby, is 17 GRANTED IN PART on the issue of liability on plaintiff’s ADA 18 claim based upon inaccessibility of the restroom mirror and 19 toilet paper dispenser. The final judgment in this action will 20 include an injunction requiring defendants to provide an 21 accessible restroom mirror and toilet paper dispenser. 22 IT IS FURTHER ORDERED that in all other respects 23 plaintiff’s motion for summary judgment be, and the same hereby 24 is, DENIED. . « 25 | Dated: February 23, 2022 ah he AS fh be WILLIAM B. SHUBB 26 UNITED STATES DISTRICT JUDGE 27 28