Quy Truong v. Garden Square Parking Ass'n

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2020
• Docket: 19-55169
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

QUY TRUONG, No. 19-55169

Plaintiff-Appellee, D.C. No. 8:17-cv-01758-AG-JDE v.

GARDEN SQUARE PARKING MEMORANDUM* ASSOCIATION, a California corporation,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted October 8, 2020 Pasadena, California

Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.

Defendant-Appellant Garden Square Parking Association (GSPA) appeals the

district court’s orders granting summary judgment to Plaintiff-Appellee Quy Truong

under the Americans with Disabilities Act (ADA) and California’s Unruh Civil

Rights Act, and requiring GSPA to post an appeal bond under Federal Rule of

Appellate Procedure 7. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Truong had standing to sue under the ADA. Truong, a paralytic,

alleged that when he visited GSPA’s parking lot, he was unable to find a correctly

configured parking space, which made his patronage of the property “dangerous”

and “difficult.” Truong had standing because “[o]nce a disabled individual has

encountered or become aware of alleged ADA violations that deter his patronage of

or otherwise interfere with his access to a place of public accommodation, . . . he

possesses standing under Article III.” Chapman v. Pier 1 Imports (U.S.) Inc., 631

F.3d 939, 947 (9th Cir. 2011) (en banc) (quoting Doran v. 7-Eleven, Inc., 524 F.3d

1034, 1042 n.5 (9th Cir. 2008)). Truong also sufficiently alleged that

“discriminatory architectural barriers deter[red] him from returning to a

noncompliant accommodation,” id. at 950, so that he could pursue injunctive relief.

2. Because there are no genuine disputes of material fact, the district court

correctly entered summary judgment for Truong. Fed. R. Civ. P. 56. To prevail on

an ADA claim, “a plaintiff must show that: (1) he is disabled within the meaning of

the ADA; (2) the defendant is a private entity that owns, leases, or operates a place

of public accommodation; and (3) the plaintiff was denied public accommodations

by the defendant because of his disability.” Arizona ex rel. Goddard v. Harkins

Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). GSPA argues only that

there is a factual dispute as to the ownership of the parking lot at issue. But Truong

submitted evidence confirming GSPA’s ownership of the lot. Summary judgment

2 for Truong was therefore proper.

3. The district court did not err in correcting its judgment. Under Federal

Rule of Civil Procedure 60(a), “[a] court may correct a clerical mistake or a mistake

arising from oversight or omission whenever one is found in a judgment.” Here, the

district court did so with leave of this court, confirming in its amended judgment that

Truong was entitled to both statutory damages and injunctive relief. GSPA’s

argument that attorney’s fees were improperly awarded because Truong was not the

prevailing party under the ADA is thus meritless.

4. GSPA claims the district court violated Federal Rule of Appellate

Procedure 7 in including anticipated appellate attorney’s fees in the appeal bond.

However, there is no indication that GSPA argued below that anticipated appellate

attorney’s fees should be excluded from the bond amount. As the district court

noted, Truong’s motion for an appeal bond was “substantively unopposed.”

In this court, GSPA argues only that appellate attorney’s fees should not have

been included in the bond because the district court’s original judgment was

defective. This argument fails because, as noted, the district court was permitted to

amend its judgment to correct a clerical mistake. Fed. R. Civ. P. 60(a). GSPA has

failed to preserve on appeal any other objections to the bond. See Corbin v. Time

Warner Ent.-Advance/Newhouse P’ship, 821 F.3d 1069, 1075 n.3 (9th Cir. 2016)

(quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986)) (“[W]e

3 ‘will not ordinarily consider matters on appeal that are not specifically and distinctly

argued in appellant’s opening brief.’”).

5. We have carefully considered GSPA’s other arguments and conclude they

are without merit.

AFFIRMED.1

1 We deny as unnecessary and irrelevant GSPA’s motions for judicial notice (ECF Nos. 16, 57, 72).