Gilbert v. 7-Eleven, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 DARREN GILBERT, No. 2:21-cv-01984 WBS KJN 13 Plaintiff, 14 v. MEMORANDUM OF DECISION, FINDINGS OF FACT, AND 15 7-ELEVEN, INC. dba 7-ELEVEN CONCLUSIONS OF LAW #23615; JATINDER BRAR dba 7- 16 ELEVEN #23615; JATINDER SINGH BRAR dba 7-ELEVEN #23615; I- 17 CHUNG HO, Trustee of the HO LIVING TRUST dated October 26, 18 1991; MIN-CHING HO, Trustee of the HO LIVING TRUST dated 19 October 26, 1991; and KATHLEEN A. HO, 20 Defendants. 21

22 ----oo0oo---- 23 Plaintiff Darren Gilbert brought this action against 24 defendant 7-Eleven, Inc. 1 (“7-Eleven”) alleging that he 25

26 1 The parties have stipulated to the dismissal of defendants Jatinder Brar and Jatinder Singh Brar, allegedly doing 27 business as 7-Eleven #23615; I-Ching Ho and Min-Ching Ho, Trustees of the Ho Living Trust; and Kathleen A. Ho. (Docket No. 28 52.) Because of the stipulation, 7-Eleven, Inc. is the only 1 encountered certain physical barriers to access when he purchased 2 items at a 7-Eleven store. He asserts that these barriers and 3 others present at the store violate the Americans with 4 Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”); the Unruh 5 Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51 et seq.; and 6 Cal. Health & Safety Code § 19955 et seq. (Compl. (Docket No. 7 1).) The court held a bench trial on plaintiff’s claims on 8 September 26 and 27, 2023. This memorandum constitutes the 9 court’s findings of fact and conclusions of law pursuant to 10 Federal Rule of Civil Procedure 52(a). 11 I. Findings of Fact 12 1. Gilbert visited 7-Eleven #23615, located at 348 13 Elkhorn Boulevard in Rio Linda, California (“the Store”) on 14 August 3, 2021 and June 4, 2022. 15 2. The Store is a convenience store which is open to 16 the public. 17 3. The Store was built in 1983. 18 4. Gilbert lives in Modesto, California. 19 5. Due to infections, Gilbert lost his left leg below 20 the knee to amputation as well as two toes from his right foot. 21 6. Gilbert prefers to use his prosthetic leg when 22 ambulating. 23 7. Gilbert uses a wheelchair for mobility when his 24 condition is such that he cannot easily ambulate with his 25 prosthetic leg. 26 8. At the times of his visits to the Store in 2021 27 remaining defendant in the case, and the court uses the term 28 “defendant” to refer to 7-Eleven. 1 and 2022, Gilbert could ambulate using his prosthetic leg. 2 9. Gilbert owns a van with a ramp that allows him to 3 offload into and out of his vehicle while using his wheelchair. 4 10. Gilbert has suffered multiple strokes that affect 5 his ability to balance and walk, including a series of strokes 6 between December 2022 and January 2023 which have left him 7 confined to a wheelchair. 8 11. Gilbert’s August 3, 2021 visit to the Store was 9 made while traveling from his home in Modesto to visit his 10 father, who lives in Oroville, California. 11 12. Gilbert’s June 4, 2022 visit to the Store was made 12 while traveling to the Aerospace Museum of California, located at 13 3200 Freedom Park Drive in McClellan, California. 14 13. During Gilbert’s August 3, 2021 visit to the 15 Store, the van accessible parking stall was occupied, and he 16 parked his van in an adjacent stall. 17 14. During Gilbert’s August 3, 2021 visit to the 18 Store, the designated van accessible parking stall was located 19 farther from the Store entrance than other, non-accessible 20 parking stalls. 21 15. During Gilbert’s August 3, 2021 visit to the 22 Store, after parking, he exited his vehicle and, using his 23 prosthetic leg, walked behind the vehicle parked in the van 24 accessible parking stall and walked up the sidewalk curb ramp 25 from the stall access aisle to the sidewalk in front of the 26 store. 27 16. During Gilbert’s August 3, 2021 visit to the 28 Store, he had some difficulty in walking up the sidewalk curb 1 ramp because of its excessive and uneven slope, due to his 2 balance issues. Gilbert also was tired because of the “energy” 3 he had to expend to get into the store. 4 17. Based on a subsequent inspection by plaintiff’s 5 expert, the access aisle next to the designated van-accessible 6 parking stall measured less than 96 inches in width while the 7 parking stall measured less than 132 inches in width. 8 18. Based on a subsequent inspection by plaintiff’s 9 expert, the designated accessible parking stall and access aisle 10 contained slopes over 2.08% and vertical changes in level over 11 1/4 inch high. 12 19. Based on a subsequent inspection by plaintiff’s 13 expert, the curb ramp contained slopes in excess of 8.33% in the 14 direction of travel and cross slopes in excess of 2%, and the top 15 landing of the curb ramp measured less than 48 inches in depth.2 16 20. Gilbert’s testimony about whether he personally 17 encountered any barriers during his June 4, 2022 visit to the 18 Store was vague, ambiguous, and somewhat contradictory. 19 Accordingly, the court finds that he has failed to meet his 20 burden of establishing by a preponderance of credible evidence 21 that he personally encountered any barriers during his June 4, 22 2022 visit to the Store. 23 21. After the filing of this lawsuit, the parking lot 24 and entry walkway were remodeled such that the Store now has an 25 ADA-compliant van accessible parking stall, access aisle, curb 26 2 Plaintiff’s expert also testified that the entry 27 walkway was excessively sloped, but plaintiff’s proposed findings of fact do not ask the court to so find, and plaintiff testified 28 that he had no problem walking on the sidewalk to the front door. 1 ramp, and entry walkway. 2 22. Gilbert concedes that after remodeling, the van 3 accessible parking stall, access aisle, curb ramp, and entry 4 walkway comply with the ADA. Gilbert did not request an 5 injunction as to these features in his pretrial filings or at 6 trial. 7 23. During Gilbert’s August 3, 2021 visit to the 8 Store, he did not have any difficulty walking from the top of the 9 sidewalk curb ramp to the front entrance of the store and did not 10 have any difficulty entering the store. 11 24. During Gilbert’s August 3, 2021 and June 4, 2022 12 visits to the Store, he used his prosthetic leg and did not use a 13 cane or a wheelchair or require any assistance. 14 25. During Gilbert’s August 3, 2021 visit, his wife 15 stayed in the car at all times. 16 26. Gilbert did not require the use of a wheelchair 17 during his August 3, 2021 and June 4, 2022 visits to the Store 18 and did not show that he wanted to use a wheelchair during either 19 visit. 20 27. Gilbert testified that he encountered barriers 21 inside the store due to narrow and/or obstructed aisles and 22 cluttered counters, but Gilbert has not shown that any of these 23 alleged barriers were in fact barriers to him as a person who 24 walks with a prosthetic leg on the days in question. The court 25 finds his testimony that these issues hindered his access not 26 credible. The court further finds that these alleged barriers 27 did not impact his access to the goods and services offered at 28 the Store on August 3, 2021 or June 4, 2022. 1 28. Gilbert has also identified purported ADA 2 violations inside the Store based on aisle widths, counter 3 heights, the entrance doors, a food display, the lottery ticket 4 kiosk, the fire extinguisher, the condiment counter, and self- 5 service food and beverage dispensers. Gilbert has not shown that 6 any of these purported violations constituted barriers to him as 7 a person with a prosthetic leg. These alleged barriers did not 8 impact Gilbert’s access to the goods and services offered at the 9 Store on August 3, 2021 and June 4, 2022. 10 29. Gilbert did not alert anyone at the store of the 11 barriers he encountered or identified and did not expect that any 12 of those barriers would be remedied after his first visit. 13 30. Gilbert is not a regular patron of the Store. 14 Gilbert lives more than an hour away from the store and has not 15 identified any family or friends currently living or working in 16 the area. Gilbert has no particular reason for visiting Rio 17 Linda or this store in the future. The Store is not located en 18 route to any location identified by Gilbert to which he is likely 19 to travel. Gilbert’s current medical condition also hinders his 20 ability to travel. The court does not find Gilbert’s testimony 21 that he would return to this store if the alleged barriers are 22 removed to be credible. 23 31. Gilbert has filed approximately 70 ADA lawsuits. 24 32. While Gilbert did purchase items at the Store 25 during his two visits, the court finds that his primary 26 motivation for the two visits was to further litigation. The 27 court does not believe that he would have visited the store on 28 either day but for his desire to find violations of the ADA and 1 Unruh Act in order to obtain a settlement or damages. 2 33. Gilbert has no genuine intent to return to the 3 Store. 4 34. In plaintiff’s proposed Findings of Fact and 5 Conclusions of Law, trial brief, and proposed Judgment, Gilbert 6 does not refer to his third claim for Denial of Full and Equal 7 Access to Public Facilities. Nor did plaintiff provide any 8 evidence or argument on this claim at trial. 9 10 B. Conclusions of Law 11 1. Because Gilbert is substantially limited in his 12 ability to walk, Gilbert is disabled as that term is defined by 13 the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. 14 2. As a convenience store, the Store is a place of 15 public accommodation. 42 U.S.C. § 12181(7)(B). 16 3. 7-Eleven is obligated to make the Store accessible 17 to persons with disabilities. 42 U.S.C. § 12182(b)(1)(A)(i). 18 4. The Store is subject to the ADA Accessibility 19 Guidelines (“ADAAG”). The Department of Justice (“DOJ”) 20 promulgated the ADAAG in 1991 and revised them in 2010. See 21 Kohler v. Flava Enters., 826 F. Supp. 2d 1221, 1229 (S.D. Cal. 22 2011). All architectural and structural elements in a facility 23 are required to comply with the 1991 Standards to the extent that 24 compliance is readily achievable. By contrast, the 2010 25 standards apply only to elements that have been altered in 26 existing facilities, or that fail to comply with the 1991 27 Standards, on or after March 15, 2012. 28 C.F.R. § 36.304(d)(1)- 28 (2). 1 5. Plaintiff has not shown by a preponderance of 2 credible evidence that any architectural or structural elements 3 of the Store have been altered since the Store was completed in 4 1983. Accordingly, defendant is therefore only liable for 5 architectural barriers that failed to comply with the 1991 6 Standards. See 28 C.F.R. § 36.304(d)(2)(i). However, because 7 defendant made architectural modifications to the Store after 8 plaintiff filed this lawsuit, the court applies the 2010 9 standards in determining whether those modifications have 10 remedied the alleged ADA violations. See id. 11 6. At the times Gilbert visited the Store, the Store 12 failed to provide a van-accessible parking space fully compliant 13 with the ADA. 14 7. During his visits to the Store, Gilbert personally 15 encountered a lack of accessible route of travel from the 16 designated accessible parking to the Store entrance because the 17 designated accessible parking was not located on the shortest 18 route to the Store entrance in violation of ADAAG 4.6.2, the curb 19 ramp contained slopes in excess of 8.33% in the direction of 20 travel and cross slopes in excess of 2% in violation of ADAAG 21 4.3.7, and the top landing of the curb ramp measured less than 22 60” inches in depth in violation of ADAAG 4.8.4. 23 8. Because 7-11 was able to alter its van accessible 24 parking stall, access aisle, curb ramp, and entry walkway to 25 comply with the ADA, “there is no genuine dispute that the 26 changes it implemented were ‘readily achievable.’” See Johnson 27 v. Wayside Prop., Inc., 41 F. Supp. 3d 973, 978 (E.D. Cal. 2014) 28 (Shubb, J.); see also Wilson v. Pier 1 Imps. (US), Inc., 439 F. 1 Supp. 2d 1054, 1069 (E.D. Cal. 2006) (Karlton, J.) (“Given that 2 the barrier has already been cured, the court must find that 3 [removal] was readily achievable, and thus that it violated the 4 ADA . . . .”). Accordingly, Gilbert has established that 7- 5 Eleven violated the ADA with regard to the route of travel from 6 the designated accessible parking to the Store. 7 9. Because Gilbert has established a violation of the 8 ADA, he has also established a violation of the Unruh Act. Cal. 9 Civ. Code § 51(f) (“A violation of the right of any individual 10 under the federal Americans with Disabilities Act of 1990 . . . 11 shall also constitute a violation of this section.”). 12 10. Because the Store now has an ADA-compliant van 13 accessible parking stall, access aisle, curb ramp, and entry 14 walkway, his claim for injunctive relief as to those features is 15 moot. See, e.g., Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 16 (9th Cir. 2011).3 17 11. Gilbert is also not entitled to an injunction as 18 to the ADA-compliant van accessible parking stall, access aisle, 19 curb ramp, and entry walkway because there is no likelihood that 20 these barriers will recur. See Johnson v. Gallup & Whalen Santa 21 Maria, No. 17-cv-01191 SI, 2018 WL 2183254, at *3 (N.D. Cal. May 22 11, 2018) (quoting Lozano v. C.A. Martinez Family Ltd. P’ship, 23 129 F. Supp. 3d 967, 971 (S.D. Cal. 2015)) (explaining that 24 “where defendants would have to undo structural alterations to 25 violate the ADA,” violations could not be reasonably expected to 26 recur). 27 3 Gilbert also does not request an injunction as to 28 these features. 1 12. Once an ADA plaintiff personally encounters 2 conditions which interfere with his full and equal access to a 3 public accommodation, he has standing to seek the removal of all 4 conditions, even those he did not encounter, that would interfere 5 with his full and equal access in the future. Chapman v. Pier 1 6 Imps. (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). 7 13. However, “[a] plaintiff’s standing to claim an ADA 8 violation is necessarily linked to the nature of his disability.” 9 Id. at 947 n.4. “Thus, a blind person would have standing to 10 assert an ADA violation where a newly constructed multi-story 11 facility has elevators lacking floor buttons in Braille,” while a 12 defendant who is not visually impaired would not have standing in 13 that situation. Id. See also Doran v. 7-Eleven, Inc., 524 F.3d 14 1034, 1044 n.7 (9th Cir. 2008) (wheelchair user could only 15 “challenge those barriers that might reasonably affect a 16 wheelchair user’s full enjoyment of the store,” and did not have 17 standing to challenge barriers to someone who is blind). Thus, a 18 plaintiff may not obtain an injunction “if the barriers he seeks 19 to enjoin do not pose a real and immediate threat to him due to 20 his particular disability.” Chapman, 631 F.3d at 953. 21 14. There is no indication that the requirements of 22 ADAAG 4.6.2 and ADAAG 4.3.7, pertaining to the slope of the curb 23 ramp, were intended to accommodate only wheelchairs to the 24 exclusion of disabled persons walking with the assistance of 25 prosthetic legs. Thus, because Gilbert personally encountered 26 violations of those provisions that relate to his disability, he 27 has standing to seek an injunction requiring the Store to be made 28 fully accessible to him, including the remediation of barriers he 1 did not personally encounter. 2 15. However, because none of the purported barriers 3 inside the store on August 3, 2021 and June 4, 2022 reasonably 4 affected Gilbert’s full enjoyment of the Store as a person with a 5 prosthetic leg, they did not interfere with his full and equal 6 access to the Store, and he has no standing to seek injunctive 7 relief under the ADA as to these barriers. See Chapman, 631 F.3d 8 at 953. 9 16. Gilbert is also not entitled to an injunction to 10 any of the purported barriers at the Store because he is unlikely 11 to return. Chapman, 631 F.3d at 944 (plaintiff lacks standing 12 “if he is indifferent to returning to the store or his alleged 13 intent to return is not genuine”). 14 17. Because none of the purported barriers inside the 15 store on August 3, 2021 and June 4, 2022 interfered with his full 16 and equal access to the Store, he may not recover under 17 California Civil Code § 55.56 for these barriers. 18 18. Even if a defendant has removed barriers to access 19 and thereby mooted the plaintiff’s ADA claim, those remedial 20 measures will not moot an Unruh claim for damages. Wayside 21 Prop., 41 F. Supp. 3d at 980–81 (citing, inter alia, Wilson, 439 22 F. Supp. 2d at 1069. 23 19. Defendant argues that a plaintiff may not recover 24 damages under the Unruh Act where, as here, his visit was 25 motivated primarily by a desire to advance his position in 26 litigation, citing Thurston v. Omni Hotels Management Corp., 69 27 Cal. App. 5th 299, 308–9 (4th Dist. 2021); Antoninetti v. 28 Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1177 (9th Cir. 1 2010); Antoninetti v. Chipotle Mexican Grill, Inc., No. 05CV01660 2 BTM (WMC), 2012 WL 12845619, at *5 (S.D. Cal. Mar. 21, 2012). 3 The court does not read these cases to support defendant’s 4 proposition. 5 Thurston explains that under the Unruh Act, a defendant 6 must have a “bona fide intent” to use a business’s services. 7 Thurston, 69 Cal. App. 5th at 308-09. However, Thurston involved 8 an Unruh Act claim by a plaintiff who claimed a hotel’s website 9 was not accessible, but the plaintiff never tried booking a 10 reservation by using a third-party website or calling the hotel 11 directly, never looked at any other hotel websites, and never 12 made any hotel reservation when she searched for a room. The 13 jury rejected her Unruh Act claim finding, among other things, 14 that the plaintiff never intended to make a hotel reservation or 15 ascertain the hotel’s prices and accommodations for the purpose 16 of making a hotel reservation, and the Court of Appeal affirmed. 17 In contrast, here, there is no dispute that plaintiff actually 18 purchased items during his visits to the Store, which is direct 19 evidence of a bona fide intent to use the Store’s services, even 20 if his motivation for using those services was primarily to 21 establish standing to bring a subsequent lawsuit. 22 The Antoninetti cases,4 instead of supporting 23 defendant’s position, support Gilbert’s claim for damages. As 24 the Ninth Circuit explained, under the Unruh Act, an individual 25 must establish that he was denied equal access on a particular 26

27 4 Antoninetti, 2012 WL 12845619, is the district court’s decision on remand from the Ninth Circuit, whose decision is 28 found at 643 F.3d 1165. 1 occasion. 643 F.3d at 1177. To do so, the plaintiff complaining 2 of barriers in a restaurant “must show that he actually presented 3 himself to the restaurant on a particular occasion, as any other 4 customer would do, with the intent of being served and to 5 purchase food in the manner offered and actually encountered 6 access to the restaurant that was not full and equal.” Id. 7 (cleaned up) (citing Reycraft v. Lee, 177 Cal. App. 4th 1211, 8 1226 (4th Dist. 2009)). 9 On remand, the trial court held that the plaintiff 10 encountered barriers and was a bona fide customer on the five 11 visits he made to the restaurant where he purchased food, and the 12 plaintiff was thus entitled to damages for each of those five 13 visits. 2012 WL 12845619, at *4-7. In contrast, the plaintiff 14 was not entitled to damages for the three visits he made where he 15 did not make any purchases and was only gathering evidence for 16 litigation. Id. at *4-5. 17 Here, Gilbert presented himself to the Store as any 18 other customer would, purchased items at the Store as any other 19 customer would, and encountered access to the Store that was not 20 full and equal given the parking lot barriers he encountered. 21 That is all that is required for damages under the Unruh Act. As 22 the court has found, Gilbert’s primary motivation in visiting the 23 Store was to obtain a settlement or damages from 7-Eleven. If 24 the Unruh Act permitted a court to deny damages where the primary 25 motivation is litigation, the court would deny damages here. 26 However, defendant has cited no case, and the court is unaware of 27 any, establishing that a plaintiff who makes purchases at the 28 business as a normal member of the public would may not recover 1 damages simply because the primary motivation for the visit to 2 business was for litigation purposes. 3 20. A violation of the Unruh Act entitles Gilbert to 4 mandatory statutory damages of $4,000 for each occurrence he was 5 discriminated against. Cal. Civ. Code § 52(a); Jankey v. Lee, 55 6 Cal. 4th 1038, 1044 (2012). 7 21. Because Gilbert established that there was an ADA 8 violation during his August 3, 2021 visit to the Store, he is 9 entitled to $4,000 in statutory damages under the Unruh Act. 10 22. “[I]n an action alleging multiple claims for the 11 same construction-related accessibility violation on different 12 particular occasions, California law requires the trier of fact 13 to consider the reasonableness of the plaintiff’s conduct in 14 light of the plaintiff’s obligation, if any, to mitigate 15 damages.” Wayside Props., 41 F. Supp. 3d at 981 (cleaned up) 16 (quoting Cal. Civ. Code § 55.56(h). Relevant to this analysis is 17 whether the plaintiff alerted the defendant to the barriers he 18 encountered or whether he expected the barriers to have been 19 removed after the first visit. Id. 20 23. Because Gilbert did not establish that he 21 personally encountered any barriers during his June 4, 2022 visit 22 to the Store, because he has not shown that he mitigated his 23 damages, and most importantly because he does not appear to 24 request damages on account of that visit, the court will not 25 award any damages under the Unruh Act for the June 4, 2022 visit. 26 24. Because plaintiff has no standing under the ADA to 27 assert his claims regarding features inside the Store and his 28 claims regarding features outside the Store are moot, the court eee eee ee EE OSI ED

1 will enter judgment for defendant 7-Eleven on the ADA claim. 2 25. Because Gilbert has established a violation of the 3 Unruh Act and is entitled to $4,000 in statutory damages, the 4 court will enter judgment for Gilbert on the Unruh Act claim and 5 award $4,000 in damages. 6 26. Because Gilbert did not provide any evidence or 7 argument in support of his third claim for Denial of Full and 8 Equal Access to Public Facilities during trial, he has not proven 9 this claim by the preponderance of the evidence, and the court 10 will enter judgment for defendant on this claim. 11 ITI. Conclusion 12 For all the foregoing reasons, THE COURT HEREBY FINDS 13 in favor of plaintiff on his claim against defendant 7-Eleven, 14 Inc. under the Unruh Act and awards plaintiff $4,000 against said 15 defendant. THE COURT FURTHER FINDS in favor of defendants on all 16 | other claims. 17 The Clerk of Court is instructed to enter judgment 18 accordingly. 19 IT IS SO ORDERED. 20 | Dated: October 2, 2023 he bloom HK Ad. KE 21 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE

23 24 25 26 27 28 15