Johnson v. Akkaya

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SCOTT JOHNSON, Case No. 21-cv-04198-JST

8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. PARTIAL SUMMARY JUDGMENT

10 CIHAN AKKAYA, et al., Re: ECF No. 42 Defendants. 11

12 13 Before the Court is Plaintiff Scott Johnson’s motion for partial summary judgment. ECF 14 No. 42. The Court will grant the motion. 15 I. BACKGROUND 16 Plaintiff Scott Johnson is a “level C-5 quadriplegic” who “cannot walk and [has] 17 significant manual dexterity impairments.” ECF No. 42-1 at 21. Johnson “use[s] a wheelchair for 18 mobility and [has] a specially equipped van.” Id. 19 On March 17, 2021, Johnson visited a nail salon known as John’s Creation in San Carlos, 20 California, “to avail [himself] of [the] salon[’s] services.” Id. at 22. Johnson contends that he 21 “could not get inside and was deterred from further patronizing” the salon because “there was an 22 unramped step leading to the entrance” and he “cannot navigate steps in [his] wheelchair.” Id. 23 Johnson also observed that the salon had a “traditional round knob handle on the entrance door 24 hardware” that “required a tight grasp and twisting of the wrist to operate,” which “was difficult 25 for [him] to operate.” Id. Johnson and his investigator, Corey Taylor, visited the salon again on 26 May 24, 2021 and observed the same “unramped steps” and “inaccessible door hardware.” Id. at 27 22, 35. 1 before this action was filed “customers wheelchairs were able to enter [John’s Creation] by means 2 of a movable ramp.” ECF No. 48-3 ¶ 5. Additionally, in 2021, Defendants Cihan (“John”) 3 Akkaya and Serife Akkaya, the owners of the real property on which John’s Creation is located, 4 commonly known as 1161 Laurel Street, San Carlos, California, ECF No. 46 ¶¶ 2–3, “caused the 5 round ball handle to be replaced with a lever handle,” ECF No. 48-2 ¶ 4, and a “concrete ramp to 6 be installed,” id. ¶ 5. 7 Johnson filed a complaint against Defendants on June 2, 2021, alleging violations of the 8 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and California’s Unruh Civil 9 Rights Act (“Unruh Act”), California Civil Code § 51, et seq. ECF No. 1. Defendants answered 10 the complaint on July 7, 2021. ECF No. 9. 11 On February 15, 2022, the Court set the following deadlines and case schedule: (1) a 12 December 23, 2022 deadline to add parties or amend the pleadings; (2) a January 13, 2023 fact 13 discovery cut-off; (3) a March 9, 2023 dispositive motion hearing deadline; (4) a May 12, 2023 14 deadline to file a pretrial conference statement; (5) a May 12, 2023 pretrial conference; and (6) a 15 June 12, 2023 trial date. ECF No. 26 at 1. Pursuant to the parties’ stipulation, the Court extended 16 the dispositive motion hearing deadline to May 25, 2023; the deadline to file a pretrial conference 17 statement to August 11, 2023; the pretrial conference to August 18, 2023; and the trial to 18 September 11, 2023. ECF No. 41 at 1. 19 On August 16, 2022, Mike Bluhm, certified access specialist, conducted a site inspection 20 of John’s Creation to “provide [his] opinion as to whether it was compliant with the ADA and 21 [make] recommendations for remediating noncompliant facilities.” ECF No. 42-1 at 45. Bluhm 22 found the following ADA violations: (1) “the concrete portion of the route, at the exterior side of 23 the entrance door has a running slope that exceeds 1:20,” id. at 53; (2) “[t]he maneuvering 24 clearance at the exterior side of the entrance door has slopes that exceed 1:48,” id.; (3) “[t]he 25 interior (pull side) maneuvering clearances are obstructed by the offering plate and tray and 26 pedicure chair adjacent to the door” and “the flooring material transition creates changes in level 27 within the maneuvering clearances,” id. at 57; and (4) “[t]he space beneath the manicure stations 1 customer sides,” id. at 59. 2 Johnson filed an amended complaint on February 6, 2023 that included allegations 3 regarding unencountered barriers that were identified during Bluhm’s site inspection. ECF 4 No. 38. Defendants answered the complaint on March 10, 2023. ECF No. 46. 5 Johnson filed the instant motion on February 27, 2023. ECF No. 42. Defendants opposed 6 the motion, ECF No. 48,1 and Johnson replied, ECF No. 49. 7 II. JURISDICTION 8 The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367.2 9 III. LEGAL STANDARD 10 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 11 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 12 A dispute is genuine only if there is sufficient evidence for a reasonable trier of fact to resolve the 13 issue in the nonmovant’s favor, and a fact is material only if it might affect the case’s outcome. 14 Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014). 15 When the party moving for summary judgment would bear the burden of proof at trial, that 16 party “has the initial burden of establishing the absence of a genuine issue of fact on each issue 17 material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th 18 Cir. 2000). Once the movant has made this showing, the burden then shifts to the party opposing 19 summary judgment to designate “specific facts showing that there is a genuine issue for trial.” 20 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The court must draw all reasonable inferences 21 in the light most favorable to the nonmoving party. Johnson v. Rancho Santiago Cmty. Coll. Dist., 22 623 F.3d 1011, 1018 (9th Cir. 2010). “[A]t the summary judgment stage,” courts are “not 23 permitted to weigh evidence.” Zobmondo Entm’t, LLC v. Falls Media, LLC, 602 F.3d 1108, 1121 24 (9th Cir. 2010). 25

26 1 Defendants also filed an opposition at ECF No. 47, which is identical to the opposition at ECF No. 48 but it does not contain the declarations filed at ECF Nos. 48-1–48-3. Accordingly, the 27 Court considers only ECF No. 48. 1 IV. DISCUSSION 2 A. Rule 56(d) Request 3 Defendants argue Johnson’s motion is “premature” and they request additional time to 4 depose Johnson pursuant to Rule 56(d) of the Federal Rules of Civil Procedure “to confirm their 5 position that [Johnson] lacks standing.” ECF No. 48 at 2, 4. Defendants contend that they have 6 not previously engaged in discovery because of the “uncertainty of the extent of [Johnson’s] 7 claims as he amends his pleadings.” Id. Johnson counters that (1) his amended complaint adds 8 only “the barriers found at” Bluhm’s site investigation where Defendants’ counsel was present and 9 discussed these barriers, ECF No. 49 at 2; (2) Defendants agreed to extend the dispositive motion 10 hearing deadline and trial date because Johnson intended to file an amended complaint, id.; and (3) 11 Defendants “had time prior to the closing of discovery to take . . . Johnson’s deposition, and never 12 elected to do so.” Id. at 3. 13 Rule 56(d) of the Federal Rules of Civil Procedure provides:

14 If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a 15 motion for summary judgment], the court may: (1) defer considering the motion [for summary judgment] or deny it; (2) allow time to 16 obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. 17 Fed. R. Civ. P. 56(d). To prevail on a Rule 56(d) request, the “part[y] opposing a motion for 18 summary judgment must make (a) a timely application [that] (b) specifically identifies (c) relevant 19 information, (d) where there is some basis for believing that the information sought actually 20 exists.” Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (citations and 21 internal quotations omitted). “A party requesting a continuance pursuant to Rule 56(f) must 22 identify by affidavit the specific facts that further discovery would reveal, and explain why those 23 facts would preclude summary judgment.” Tatum v. City & Cnty. of San Francisco, 441 F.3d 24 1090, 1100 (9th Cir. 2006) (citations omitted). “Rule 56(d) is designed to deal with ‘premature’ 25 summary judgment motions, where the nonmoving party has not had a fair opportunity to conduct 26 discovery prior to filing its opposition.” Drake v. Kernan, No. 117CV01500ADASABPC, 2023 27 WL 3467048, at *2 (E.D. Cal. May 15, 2023) (citing Celotex Corp v. Catrett, 477 U.S. 317, 326 1 (1986)). “The failure to conduct discovery diligently is grounds for the denial of a Rule 56(f) 2 motion.” Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir. 2002) (citations omitted). 3 Here, despite stating in a February 4, 2022 case management statement that they intended 4 to “seek discovery related to Plaintiff’s availing himself of goods and services at 1161 Laurel 5 Street, San Carlos, California,” including taking his deposition, ECF No. 24 at 5, Defendants took 6 no discovery whatsoever during the discovery period. They did not seek Johnson’s deposition 7 until their opposition to his motion for partial summary judgment, which was filed on March 13, 8 2023, two months after fact discovery had closed, ECF No. 48 at 2–4. Nor do Defendants provide 9 an excuse for their lack of diligence: their proffered reason for deposing Johnson now is to 10 explore whether he has standing to bring the action, but whatever concerns Defendants have 11 regarding that subject should have been present since the filing of the original complaint. 12 Defendants identify nothing about the amended complaint – and the Court sees nothing – that 13 affects the standing analysis in this case. Thus, there is no reason Defendants could have not taken 14 Plaintiff’s deposition during the fact discovery period. 15 The Court accordingly denies Defendants’ request for an enlargement of the discovery 16 deadline. 17 B. The Merits of Plaintiff’s Claim 18 Johnson argues that he is entitled to summary judgment on his Unruh Act claim because 19 there is no genuine dispute of fact that Defendants violated the ADA, ECF No. 42-1 at 16, or that 20 Johnson “was denied full and equal access” to John’s Creation, id. at 42-1 at 19. Johnson seeks 21 $4,000 in statutory damages under the Act. In opposition, Defendants do not dispute that they 22 violated the ADA or that Johnson was denied full and equal access to John’s Creation. ECF No. 23 48 at 2–4. Instead, they argue only that Johnson lacks standing to bring this action. Id. at 4. 24 Defendants contend that Johnson lacks standing because “[f]ollowing notification of noncompliant 25 ADA issues related to door hardware and wheelchair access, [they] took action to remedy the 26 situation,” and “Johnson has not attempted to visit” John’s Creation. Id. at 3. 27 This argument is insufficient to defeat Johnson’s motion. “Allegations that a plaintiff has 1 accommodation by accessibility barriers establish that a plaintiff’s injury is actual or imminent.” 2 Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008). Here, Johnson alleges just that. He 3 states that (1) he could not access John’s Creation when he visited in 2021 because of the door 4 hardware and unramped step and “was deterred from further patronizing” the salon; (2) he 5 continues to “be[] deterred from returning to [John’s Creation] because of [his] knowledge of . . . 6 the barriers found by” Bluhm after Defendants contend they remedied the door hardware and 7 unramped step; (3) his “efforts to identify law-breaking businesses bring [him] to the geographical 8 area where [John’s Creation] is located on a continuing and ongoing basis”; and (4) “once it has 9 been represented to [him] that the barriers have been allegedly removed, [he] intend[s] to return to 10 [John’s Creation] to assess it for compliance with access laws.” ECF No. 42-1 at 22–23. 11 Accordingly, Johnson has standing to bring this action. 12 The Court next considers whether Johnson has established that he is entitled to judgment in 13 his favor on his Unruh Act claim and $4,000 in statutory damages under the Act. The Unruh Act 14 provides, in relevant part, that “[a]ll persons . . . are entitled to the full and equal accommodations, 15 advantages, facilities, privileges, or services in all business establishments of every kind 16 whatsoever.” Cal. Civ. Code § 51(b). “A violation of the right of any individual under the federal 17 [ADA] . . . constitute[s] a violation” of the Unruh Act. Id. § 51(f); see also Cullen v. Netflix, Inc., 18 880 F. Supp. 2d 1017, 1023 (N.D. Cal. 2012) (“A violation of the ADA is, by statutory definition, 19 a violation of . . . the Unruh Act[.]”). 20 To prove that Defendants violated the ADA, Johnson must establish that: “(1) he is 21 disabled within the meaning of the ADA; (2) [Defendants] are private individuals or entities that 22 own, lease, or operate a place of public accommodation; and (3) he was denied public 23 accommodations by [Defendants] because of his disability.” Johnson v. Cala Stevens 24 Creek/Monroe, LLC, 401 F. Supp. 3d 904, 912 (N.D. Cal. 2019). “This last requirement ‘is met if 25 there was a violation of applicable accessibility standards.’” Id. (quoting Moeller v. Taco Bell 26 Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011)). 27 “Accessibility requirements can differ depending on when the public accommodation was 1 were altered or constructed after 1993 must be ‘readily accessible to and usable by individuals 2 with disabilities,’ 42 U.S.C. § 12183(a)(1), architectural barriers in then-existing facilities need 3 only be removed if doing so is ‘readily achievable,’ id. § 12182(b)(2)(A)(iv).”3 Id.; Lopez v. 4 Catalina Channel Express, Inc., 974 F.3d 1030, 1034 (9th Cir. 2020) (“Discrimination under Title 5 III of the ADA specifically includes ‘a failure to remove architectural barriers . . . in existing 6 facilities . . . where such removal is readily achievable.’” (emphasis omitted) (citing 42 U.S.C. 7 § 12182(b)(2)(A)(iv)). 8 The “readily accessible” standard is in turn defined in part “by the ADA Accessibility 9 Guidelines,” which “lay out the technical structural requirements of places of public 10 accommodation.” Johnson, 401 F. Supp. 3d at 912 (internal quotations and citations omitted). 11 “Readily achievable” means “easily accomplishable and able to be carried out without much 12 difficulty or expense.” Id. (citing 42 U.S.C. § 12181(9)). The plaintiff bears the initial burden to 13 “plausibly show how the cost of removing the architectural barrier at issue does not exceed the 14 benefits under the circumstances,” which a defendant may rebut. Id. at 1038. But even if 15 removing the architectural barriers is not readily achievable, an entity will still be liable for 16 discrimination under the ADA if it could have made its “goods, services, facilities, privileges, 17 advantages, or accommodations available through alternative methods” that were readily 18 achievable. Id. at 1034 (citing 42 U.S.C. § 12182(b)(2)(A)(v)). 19 Here, Johnson has established a violation of the ADA. First, Johnson proffered a 20 declaration attesting to his disability, ECF No. 42-1 at 21, which Defendants do not dispute. 21 Second, Defendants have admitted that they own the real property on which John’s Creation is 22 located, ECF No.46 ¶¶ 2–3, and that John’s Creation constitutes a place of public accommodation, 23 42 U.S.C. §12181(7)(F) (defining as a public accommodation as “a beauty shop . . . or other 24 service establishment”). Third, Defendants do not contest expert witness Bluhm’s findings about 25 the existing barriers that violate the ADA at John’s Creation – the two declarations Defendants 26 submitted in opposition address the owners’ apparent good faith but do not rebut the existence of 27 1 all individual ADA violations. See, e.g., ECF Nos. 48-2 ¶ 4 (“In 2021, upon being notified that 2 the door handle on the front door of the property was not accessible for disabled individuals I 3 caused the round ball handle to be replaced with a level handle.”); id. ¶ 5 (“In 2021, upon being 4 notified that there was no ramp providing a path of travel to the property, I caused the concrete 5 ramp to be installed.”); 48-3 ¶ 5 (“My wife and I serve a lot of disabled customers . . . [in] our 6 shop[.]”). Additionally, Defendants do not contest that removal of the subject barriers is “readily 7 achievable,” i.e., that the cost of removing the architectural barriers is lower than the benefits 8 under the circumstances. Lopez, 974 F.3d at 1038. Bluhm provided estimates for repairs to 9 remedy the ADA violations, which Johnson contends are readily achievable. And Defendants do 10 not state that these repairs would be too difficult or expensive. Therefore, Johnson has carried his 11 burden in showing that removing those barriers is “readily achievable.” Lopez, 974 F.3d at 1038- 12 39. Johnson has therefore established Defendants violated the Unruh Act by proving that they 13 violated the ADA. 14 Because Johnson has established that Defendants violated the Unruh Act, he may seek 15 statutory damages of no less than $4,000 per violation. Cal. Civ. Code § 52(a). An Unruh Act 16 plaintiff is entitled to statutory damages if a “violation denied the plaintiff full and equal access to 17 the place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(a). A 18 plaintiff suffers denial of full and equal access when he “personally encountered the violation on a 19 particular occasion, or [if he meets certain criteria establishing that he] was deterred from 20 accessing a place of public accommodation on a particular occasion.” Cal. Civ. Code § 55.56(b). 21 Even if he did not personally encounter a barrier, a plaintiff has a right to statutory damages if he 22 can show that (1) he “had actual knowledge of a violation or violations that prevented or 23 reasonably dissuaded [him] from accessing a place of public accommodation that the plaintiff 24 intended to use on a particular occasion,” id. § 55.56(d)(1); (2) the violations “would have actually 25 denied [him] full and equal access if [he] had accessed the place of public accommodation on that 26 particular occasion,” id. § 55.56(d)(2); and (3) if he claims multiple instances of deterrence, that 27 his conduct was reasonable “in light of [his] obligation, if any, to mitigate damages,” id. 1 Here, Johnson’s evidence establishes his right to statutory damages under the Unruh Act 2 || for the barriers identified at John’s Creation. Johnson has shown that he had actual knowledge of 3 barriers, that those barriers denied him equal access to John’s Creation or would have denied him 4 equal access had he entered, and that those barriers have deterred him from returning. ECF No. 5 42-1 9915, 7. Defendants do not contest these facts. Johnson is therefore entitled to the minimum 6 statutory award of $4,000 he requests. 7 CONCLUSION 8 For the foregoing reasons, the Court grants Johnson’s motion for partial summary 9 || judgment. 10 IT IS SO ORDERED. ® 11 Dated: August 15, 2023 JON S. TIGAR 13 nited States District Judge

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