NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RAFAEL ARROYO, Jr., No. 22-55182
Plaintiff-Appellant, D.C. No. 2:18-cv-00594-FLA-JEM v.
ROBERT GOLBAHAR, in individual and MEMORANDUM* representative capacity as trustee of the Amanda Pavie Golbahar Childs Trust, dated January 28, 2010, and of the Alexis Margaux Golbahar Childs Trust, dated January 28, 2010,
Defendant-Appellee,
and
NICK BHANJI; DOES, 1-10,
Defendants.
Appeal from the United States District Court for the Central District of California Fernando L. Aenlle-Rocha, District Judge, Presiding
Argued and Submitted January 13, 2023 Pasadena, California
Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges. Partial Concurrence and Partial Dissent by Judge H.A. THOMAS.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Rafael Arroyo Jr. appeals the district court’s denial of relief under
California’s Unruh Civil Rights Act (UCRA) and grant of summary judgment on
one of his claims under the Americans with Disability Act (ADA). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
A.
Arroyo filed an action under the ADA and UCRA alleging he encountered
access barriers in the parking lot of Rainbow Cleaners. The district court granted
summary judgment to Arroyo with regard to liability but denied summary
judgment with regard to whether the alteration was readily achievable. Thereafter,
Defendants corrected the alleged barriers, and the district court vacated its earlier
grant of summary judgment. In response, Arroyo then alleged that the parking
space’s dimensions did not comply with the 2010 ADA Accessibility Guidelines
(ADAAG) Standards, and further alleged for the first time that the parking lot had
a noncompliant gradient. The district court denied summary judgment with regard
to whether the parking space’s dimensions complied with the ADAAG Standards,
but sua sponte granted summary judgment with regard to the newly raised gradient
issue, finding that it was outside the scope of the complaint. Prior to trial, Arroyo
conceded that the dimensions complied with ADAAG Standards. The district court
dismissed as moot the alleged ADA claims after the parties agreed that alleged
barriers were remedied. Exercising supplemental jurisdiction, the district court held
2 a one-day bench trial and denied Arroyo recovery under UCRA because he failed
to establish that he had a bona fide intent to use Rainbow Cleaners’ services.
B.
Following a bench trial, “[f]indings of fact . . . must not be set aside unless
clearly erroneous, and the reviewing court must give due regard to the trial court’s
opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6); see also
Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 (9th Cir. 2004). We “reverse
only if the district court’s findings are clearly erroneous to the point of being
illogical, implausible, or without support in inferences from the record.” Oakland
Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 613 (9th Cir.
2020). We review de novo the district court’s conclusions of law. See Lentini, 370
F.3d at 843.
C.
Arroyo has not shown that the district court erred in determining that he
lacked a bona fide intent to use Rainbow Cleaners and in denying him recovery on
his UCRA claim.
1. Although we have stated that “any violation of the ADA necessarily
constitutes a violation of the [UCRA],” Molski v. M.J. Cable, Inc., 481 F.3d 724,
731 (9th Cir. 2007), see also Arroyo v. Rosas, 19 F.4th 1202, 1214 (9th Cir. 2021),
we have yet to directly address recent California case law instructing that UCRA
3 plaintiffs must show “a bona fide intent” to use the defendant’s services, even
where there is an underlying violation of the ADA. Thurston v. Omni Hotels
Management Corp., 284 Cal. Rptr. 3d 341, 349 (Ct. App. 2021), review denied
(Dec. 22, 2021); see also Reycraft v. Lee, 99 Cal. Rptr. 3d 746, 751 (Ct. App.
2009) (“[T]he statutory standing requirements to recover monetary damages under
[California disability statutes] are not the same as those set forth for litigants who
pursue a cause of action under the ADA.”)
Unlike ADA claims which focus on injunctive relief, 42 U.S.C.
§ 12188(a)(2), UCRA also allows for damages, Cal. Civ. Code § 52. California has
enacted a “comprehensive statutory scheme” to “increase[] voluntary compliance
with equal access standards [for construction-related claims] ‘while protecting
businesses from abusive access litigation.’” Mundy v. Pro-Thro Enters., 121 Cal.
Rptr. 3d 274, 277 (Cal. App. Dep’t Super. Ct. 2011) (quoting Munson v. Del Taco,
Inc., 208 P.3d 623, 633 (Cal. 2009)); see also Cal. Civ. Code § 55.56, Cal. Civ.
Proc. Code § 425.55(a)(2), (b). California enacted safeguards to “ensure that the
claims [were] warranted.” Id. § 425.55(b). Applying these construction-related
safeguards, a plaintiff must establish (1) a violation under section 51 and (2) denial
of “full and equal access to the place of public accommodation on a particular
occasion.” See Cal. Civ. Code § 55.56(a)–(c).
4 As we recognized in Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d
1165 (9th Cir. 2010), California courts have long required that to obtain damages
under UCRA (or its related Disabled Persons Act), a plaintiff must intend to use
that business’s services. See Reycraft, 99 Cal. Rptr. 3d at 756. In Antoninetti, we
rejected a plaintiff’s request for damages for dates when plaintiff visited Chipotle
for reasons other than “to purchase food or to have the ‘Chipotle experience.’” 643
F.3d at 1177 (recognizing that plaintiff must show that “he actually presented
himself to the restaurant on a particular occasion, as any other customer would do,
with the intent of being served and to purchase food in the manner offered and
actually encountered access to the restaurant that was not full and equal”)
(alterations omitted) (quoting Reycraft, 99 Cal. Rptr. 3d at 756).
The California Supreme Court affirmed this intent requirement in White v.
Square, Inc., 446 P.3d 276 (Cal. 2019). The California Supreme Court recognized
that at the pleadings stage it was sufficient for a plaintiff to allege an intent to use a
business’s services, but clarified that, at the summary judgment or trial stage, a
plaintiff must establish that he or she “actually possess[ed] a bona fide intent to
. . . use its services.” See id. at 284.
This requirement was applied in Thurston, 284 Cal. Rptr. 3d at 348. The
appellate court rejected an argument that motivation was not an element of UCRA,
explaining: “While we agree that an Unruh Act claimant need not be a client or
5 customer of the covered public accommodation, and that he or she need not prove
intentional discrimination upon establishing an ADA violation, we do not agree
that an Unruh Act claimant’s intent or motivation for visiting the covered public
accommodation is irrelevant to a determination of the merits of his or her claim.”
Id. at 349. The court noted that the plaintiff had standing to assert a claim but
failed to prove at trial that she “actually possess[ed] a bona fide intent to use its
services.” Id. (alteration omitted) (quoting White, 446 P.3d at 284). Thus, it
appears that under California law Arroyo had to establish that (1) he “actually
presented himself” to Rainbow Cleaners “with the intent of . . . utilizing its
services,” Reycraft, 99 Cal. Rptr. 3d at 756, and (2) the parking space violation
caused him to “experience[] difficulty, discomfort, or embarrassment because of
the violation,” Cal. Civ. Code § 55.56(c); see also Mundy, 121 Cal. Rptr. 3d at 278.
On the record before us, Arroyo has not shown that the district court erred
by requiring that in order to obtain damages under UCRA, Arroyo, at trial, had to
establish that he actually intended to utilize Rainbow Cleaners’ services. See
White, 446 P.3d at 284; Thurston, 284 Cal. Rptr. 3d at 349; Reycraft, 99 Cal. Rptr.
3d at 756.
This conclusion does not conflict with our opinion in Rosas, 19 F.4th 1202.
In Rosas, the district court, after finding that uncontested evidence established that
Arroyo intended to visit the store, id. at 1208, declined to exercise supplemental
6 jurisdiction. Thus, California’s bona fide intent requirement was not at issue, and
we did not address Thurston. Indeed, we recognized that the distinct requirements
of UCRA created exceptional circumstances that might justify declining
supplemental jurisdiction. Id. at 1211–14. We held, however, that the district court
abused its discretion in declining supplemental jurisdiction at a “very late stage” of
the litigation because it “ha[d] effectively already decided” Arroyo’s UCRA claim.
Id. at 1214. Thus, unlike in our case, the district court in Rosas in deciding whether
to exercise supplemental jurisdiction had already considered (1) whether Arroyo
“intended to visit the store again the future”; (2) whether he had suffered
“difficulty, discomfort[,] inconvenience, embarrassment, anxiety and frustration”;
(3) “why he was in ‘the geographic area of the defendant’s business’”; and (4)
“why, specifically, he ‘desired to access the defendant’s business.’” Id. at 1208,
1215–16 (quoting Cal. Civ. Proc. Code § 425.50). The limitation of our opinion in
Rosas is clear from our treatment of Arroyo’s second claim for an “award of
statutory damages based on his claim that he was also deterred from visiting the
store in the future.” Id. at 1215. We denied a second award holding that Arroyo’s
declaration “is enough to warrant prospective injunctive relief under the ADA, but
it is not enough to show that he was actually deterred on a ‘particular’ occasion.”
Id. Thus, we read Rosas as not precluding the district court’s application of
California’s bona fide intent to the trial of Arroyo’s UCRA claim.
7 2. Arroyo has not shown that the record does not support the district court’s
finding that he lacked a bona fide intent. The district court questioned the
plausibility of Arroyo’s testimony that Rainbow Cleaners was a convenient place
to get his jacket fixed and that he believed that Rainbow Cleaners could fix a snap
button within the allotted time frame. The district court also considered Arroyo’s
litigation history, as allowed by Cal. Civ. Proc. Code § 425.55, in determining
whether Arroyo had a bona fide intent to use Rainbow Cleaners’ services. Arroyo
argues that his litigation history should not be used in making credibility
determinations, citing D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031,
1040 (9th Cir. 2008). See also Langar v. Kiser, 57 F.4th 1085 (9th Cir. 2023). But
even assuming that D’Lil applies to UCRA claims, we only cautioned courts from
making “credibility determinations that rely on a plaintiff’s past ADA litigation.”
538 F.3d at 1040. Here, Arroyo’s “past ADA litigation” was only one factor in the
district court’s factual determination that he lacked a bona fide intent to use
Rainbow Cleaners. The district court’s factual finding is entitled to great deference,
see D’Lil, 538 F.3d at 1035, and is not “clearly erroneous to the point of being
illogical, implausible, or without support in inferences from the record,” Oakland
Bulk & Oversized Terminal, LLC, 960 F.3d at 613.
D.
8 Finally, Arroyo has failed to show that the district court erred in not
allowing him to pursue a parking lot gradient claim after Defendants had
remediated his initial claims that the handicapped parking space was inaccessible.
The district court properly granted summary judgment based on Arroyo’s
newly raised claim under the ADA. Arroyo’s failure to raise the gradient issue
prior to November 2019 precluded “fair notice” to Defendants of the “specific
barriers for which [Arroyo sought] injunctive relief.” See Oliver v. Ralphs Grocery
Co., 654 F.3d 903, 908 (9th Cir. 2011). Contrary to Arroyo’s assertions, rejection
of this claim does not violate the mootness doctrine or Federal Rules of Civil
Procedure 8 or 15. None of these provisions alleviate Arroyo’s obligation to
identify specific barriers. See Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1178
(9th Cir. 2021) (rejecting plaintiff’s argument that defendants could avoid liability
by remedying identified barriers, noting that a plaintiff could avoid such a result by
(1) conducting discovery prior to a summary judgment motion being filed, (2)
“identifying other barriers within the defendant’s facility, and [(3)] amending his
complaint”). Finally, the district court was not required to allow Arroyo to amend
his complaint almost two years after the complaint was filed. See Alaska v. United
States, 201 F.3d 1154, 1163–64 (9th Cir. 2000) (holding that when “a party does
not ask the district court for leave to amend, ‘the request [on appeal] to remand
with instructions to permit amendment comes too late.’”) (alteration in original).
9 AFFIRMED.
10 FILED FEB 17 2023 Arroyo v. Golbahar, 22-55182 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
H.A. THOMAS, Circuit Judge, concurring in part and dissenting in part:
I join the portion of the majority disposition affirming the district court’s
grant of summary judgment to Robert Golbahar on Rafael Arroyo’s parking lot
gradient claim. I disagree, however, with the majority’s holding that California’s
Unruh Civil Rights Act (“UCRA” or “Unruh Act”) requires a plaintiff to have a
“bona fide intent” to use a business’s services, even when the plaintiff has
independently established a violation of the Americans with Disabilities Act of
1990 (“ADA”). I therefore respectfully dissent from the majority’s decision to
affirm the district court’s judgment in favor of Golbahar on Arroyo’s UCRA claim.
The UCRA states that “[a] violation of the right of any individual under the
federal Americans with Disabilities Act of 1990 shall also constitute a violation of”
the UCRA. Cal. Civ. Code § 51(f). Both we and the Supreme Court of California
have therefore made clear that “a violation of the ADA is automatically, without
more, a violation of the Unruh Act.” Arroyo v. Rosas, 19 F.4th 1202, 1214 (9th
Cir. 2021); Munson v. Del Taco, Inc., 208 P.3d 623, 630 (Cal. 2009) (“all ADA
violations . . . [are] violations of the Unruh Civil Rights Act as well.”) (citing Cal.
Civ. Code § 51(f)). It is undisputed that Golbahar violated the ADA by failing to
provide a van-accessible parking space at his business. Accordingly, the district
1 court should have entered judgment for Arroyo on his UCRA claim. See Rosas, 19
F.4th at 1216.
The majority holds that Arroyo lacked statutory standing to bring a claim for
a UCRA violation. In the majority’s view, a plaintiff must have a “bona fide
intent” to use a defendant’s services to have standing under the UCRA. California
law, however, contains no such requirement. California Civil Code Section 55.56
provides two routes through which a plaintiff may seek statutory damages for a
“construction-related accessibility claim.” Cal. Civ. Code § 55.56(a); see also
Rosas, 19 F.4th at 1214. A plaintiff may bring a claim “only if the plaintiff
personally encountered the violation on a particular occasion, or the plaintiff was
deterred from accessing a place of public accommodation on a particular
occasion.” Cal. Civ. Code § 55.56(b). A plaintiff who personally encounters a
violation “may” bring a claim “if the plaintiff experienced difficulty, discomfort, or
embarrassment because of the violation.” Id. § 55.56(c). Nothing in the statute
imposes a requirement that the plaintiff seeking statutory damages have a “bona
fide intent” to use a defendant’s services. It “may be sufficient”—though not
necessary—for a plaintiff to encounter an unlawful barrier, and experience
“difficulty, discomfort, or embarrassment” as a result. Id.
The majority cites the Supreme Court of California’s decision in White v.
Square, Inc. for the rule that a UCRA plaintiff must have a “bona fide intent” to
2 use the defendant’s services. 446 P.3d 276, 284 (Cal. 2019). But White does not
stand for such a general principle. In White, the plaintiff visited the defendant’s
website but declined to enter into an agreement with the defendant after
encountering discriminatory terms and conditions. Id. at 278. Because the plaintiff
did not actually use the defendant’s services, his bona fide intent to do so was
relevant to show that he was actually deterred by the discriminatory policy rather
than merely aware of such a policy. See id. at 278, 280–81 (explaining that “mere
awareness of a business’s discriminatory policy or practices is not enough for
standing.”).
The plaintiff in White did not attempt to rely on an ADA violation to support
his claim. See White, 446 P.3d at 278. White therefore did not disturb Munson’s
holding that, while some provisions of UCRA may impose stricter requirements
than the ADA, the “effect” of Section 51(f) is to “create an exception” to these
requirements when the plaintiff can independently establish a violation of the
ADA. Munson, 208 P.3d at 630. Additionally, standing to raise a “construction-
related accessibility claim” does not require that a plaintiff be deterred from using
a business’s services, so long as the plaintiff “personally encountered the violation
on a particular occasion.” Cal. Civ. Code § 55.56(b). Because the plaintiff’s
standing in White was based on the deterrent effect of the defendant’s
3 discriminatory policy, the decision’s standing analysis does not apply to a UCRA
claim based on a violation that the plaintiff personally encountered.
The majority’s reliance on Thurston v. Omni Hotels Management Corp., 69
Cal. App. 5th 299 (2021), is similarly misplaced. The plaintiff in Thurston sued a
travel website, alleging that the website was not accessible to visually impaired
persons in violation of the ADA and UCRA. Id. at 302. The Thurston court held
that the plaintiff’s UCRA claim required the plaintiff to have a “bona fide intent”
to use the defendant’s services. Id. at 308 (quoting White, 446 P.3d at 276).
Thurston, however, did not hold that this intent requirement was a necessary
element of UCRA standing 1—on the contrary, the court held that the plaintiff “had
standing to assert an Unruh Act claim.” Id. at 309.
Instead, Thurston held that the plaintiff’s intent was relevant to the “merits
of her claim.” Id. But Thurston predates our holding in Rosas that an ADA
violation “automatically” constitutes a violation of the UCRA. Rosas, 19 F.4th at
1214 (citing Cal. Civ. Code § 51(f)). To the extent that Thurston requires a plaintiff
to show a bona fide intent to use a defendant’s services to succeed on the merits of
a UCRA claim, even when the plaintiff has independently established an ADA
1 Additionally, Thurston did not deal with a “construction-related accessibility claim.” See Cal. Civ. Code § 55.56.
4 violation, its ruling is foreclosed by our precedent in Rosas, 2 id., and the holding of
the Supreme Court of California in Munson, 208 P.3d at 630. We need not follow
it. See Radcliffe v. Hernandez, 818 F.3d 537, 543 (9th Cir. 2016) (when deciding a
question of state law, “we look to intermediate appellate courts for guidance,
although we are not bound by them if we believe that the state supreme court
would decide otherwise.”), accord DW Aina Le’a Dev., LLC v. State of Hawai’i
Land Use Comm’n, 918 F.3d 602, 607 (9th Cir. 2019).
The majority also cites our decision in Antoninetti v. Chipotle Mexican Grill,
Inc., for the proposition that a UCRA plaintiff must “present[] himself to the
[business] on a particular occasion, as any other customer would do, with the intent
of being . . . served.” 643 F.3d 1165, 1177 (9th Cir. 2010) (quoting Reycraft v. Lee,
177 Cal. App. 4th 1211, 1224 (2009)). As we explained in Antoninetti, however,
the plaintiff’s intent was relevant because the violations at issue “occurred only
when he visited the restaurants to purchase food and sat in line in his wheelchair.”
Id. Accordingly, when the plaintiff visited the restaurant purely for the purposes of
litigation, he could neither be deterred from ordering food at the restaurant, nor
personally encounter a relevant violation. Cf. Cal. Civ. Code § 55.56.
2 The majority argues that its holding is consistent with Rosas, noting that the district court in that case had already assessed the plaintiff’s intent to visit the defendant’s store. But our decision in Rosas explained that intent was relevant to the plaintiff’s “second award of statutory damages based on his claim that he was . . . deterred from visiting the store in the future.” Rosas, 19 F.4th at 1215 (emphasis added). The plaintiff’s first claim for statutory damages, based on a violation that he “personally encountered,” required no showing of intent. See id. at 1214–15 (quoting Cal. Civ. Code § 55.56(b)). 5 Even assuming such an intent requirement applies to this case, it still would
not support the district court’s judgment. Antoninetti required that the plaintiff
have an intent to use the defendant business’s services to maintain an action for
damages, but it did not inquire into the plaintiff’s motivation for using those
services. See Antoninetti, 643 F.3d at 1177. Here, however, the district court found
that Arroyo lacked standing to seek statutory damages under UCRA because of his
desire “to inspect the business for possible construction-related accessibility
barriers and to file a lawsuit under the ADA and Unruh Act.” Nothing in our
precedent or California law bars UCRA claims arising out of visits motivated by a
desire to initiate litigation. Arroyo’s intent to use Golbahar’s services—even if
motivated by a desire to sue Golbahar—is sufficient for standing under the UCRA.
Regardless of his motivations, Arroyo attempted to utilize Golbahar’s parking
space “as any other customer would do, with the intent” of utilizing it “in the
manner offered,” and “actually encountered access . . . that was not full and equal.”
Reycraft, 177 Cal. App. 4th at 1224.
The “bona fide intent” requirement that the district court applied, and which
the majority affirms, creates a roadblock to “tester” standing for damages claims
brought under the UCRA. California law, though, contains no prohibition on tester
litigation, and the Supreme Court of California has already declined invitations to
impose extra-statutory restrictions on UCRA standing in order to curb serial
6 litigation tactics. See Angelucci v. Century Supper Club, 158 P.3d 718, 729 (Cal.
2007) (“It is for the Legislature . . . to determine whether to alter the statutory
elements of proof to afford business establishments protection against abusive
private legal actions and settlement tactics.”); see also Munson, 208 P.3d at 633
(“[W]e are bound to interpret the Unruh Civil Rights Act in accordance with the
legislative intent as we can best discern it, regardless of any policy views we may
hold.”). Because it is undisputed that Golbahar violated the ADA, our precedent
requires judgment for Arroyo on his UCRA claim as well. Rosas, 19 F.4th at 1216.