Sellers v. Walker

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 RAYMON SELLERS, No. 2:20-cv-01787 WBS AC 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION FOR 15 DERRICK STEVENS dba STAGECOACH SUMMARY JUDGMENT RESTAURANT; JIN R. WONG; WONDA 16 Y. WONG; JANICE WONG; and JANET WONG, 17 Defendants. 18

19 ----oo0oo---- 20 Plaintiff moves for summary judgment against all 21 defendants1 in this disability access action under (1) the 22 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101; (2) 23 the Unruh Civil Rights Act (“Unruh Act”), California Civil Code 24 §§ 51-53; and (3) denial of full and equal access to public 25

26 1 Plaintiff’s motion also seeks default judgment against Derrick Stevens. The clerk’s office has already his default. 27 (Docket No. 47.) Plaintiff may file his motion for default judgment against Stevens with the assigned magistrate judge as 28 required by Local Rule 302(c)(19). 1 facilities, California Health & Safety Code § 19955.2 (Second 2 Am. Compl. (“SAC”) (Docket No. 36).) 3 I. Factual and Procedural Background 4 Plaintiff is a C5 quadriplegic who cannot walk and uses 5 a power wheelchair for mobility. (Defs.’ Resp. to Pl.’s 6 Statement of Facts (“PSUF”) at ¶ 1 (Docket no. 51-1).) 7 Stagecoach Restaurant (“Stagecoach”), constructed in 1968, is a 8 public accommodation located at 4365 Florin Road, Sacramento, 9 California. (Id. ¶ 2; Pl.’s Resp. to Defs.’ Statement of Facts 10 (“DSUF”) ¶ 90 (Docket no. 52-1).) Defendants Jin R. Wong, Wonda 11 Y. Wong, Janice Wong, and Janet Wong own the real property on 12 which Stagecoach is located, and lease it to defendant Derrick 13 Stevens who operates Stagecoach. (PSUF ¶¶ 3-4.) 14 Plaintiff visited Stagecoach on May 31, 2020, and it 15 was open to the public for take-out orders only. (Id. ¶ 7.) The 16 main entrance of Stagecoach is not accessible because there is no 17 ramp. (Id. ¶ 8.) There is a designated accessible parking space 18 behind Stagecoach with a curb ramp to the sidewalk that leads to 19 a rear entrance. (Id. ¶ 9.) On May 31, 2020, the rear entrance 20 was locked. (Id.) Plaintiff contends he was unable to place a 21 take-out order on May 31, 2020 because he could not access the 22 restaurant and there was no signage telling him how to place an 23 order. (Id. ¶ 10.) Defendants contend that there was signage 24 indicating that a take-out order could be placed by phone and 25

26 2 Neither side’s briefing makes any mention of plaintiff’s third claim under the Health and Safety Code. 27 Therefore, the court will not rule on plaintiff’s third claim in this order. 28 1 would be delivered to the vehicle. (Id.) 2 Plaintiff again visited Stagecoach on August 21, 2020 3 with a friend and it was open to the public for take-out orders 4 and outdoor dining. (Id. ¶¶ 11-12.) Plaintiff contends he 5 wanted to dine on the outdoor patio but could not access it or 6 the hostess table at the main entrance due to the lack of a curb 7 cut. (Id. ¶¶ 12-13.) However, plaintiff does not dispute that 8 the route leading from the accessible parking space to the rear 9 entrance also leads to the gated outdoor patio dining area. 10 (DSUF ¶ 91.) Plaintiff’s friend got out of the vehicle and 11 ordered food to go. (Decl. of Raymon Sellers ¶ 8 (Docket No. 48- 12 2).) Plaintiff contends he continues to order food from 13 Stagecoach at least twice a month but sends others to pick it up 14 for him. (PSUF ¶ 15.) 15 Plaintiff filed his initial complaint in this action on 16 September 30, 2020. (Docket No. 1.) After the filing of 17 plaintiff’s complaint, defendants renovated the inside and 18 outside of the property in 2021, including the parking lot, 19 dining counter, and restrooms. (PSUF ¶¶ 22-26.) 20 Plaintiff’s expert, Michael Bluhm, visited the 21 restaurant on January 20, 2021 and November 3, 2021. (Decl. of 22 Michael Bluhm ¶ 3 (Docket No. 48-4).) Defendants’ expert, Craig 23 Lobnow, visited Stagecoach on June 30, 2022. (DSUF ¶ 94.) 24 Plaintiff seeks in this motion injunctive relief under 25 the ADA for barriers he encountered and additional barriers he 26 has learned of during the pendency of this action, which are 27 described below, and statutory damages under the Unruh Act. 28 1 I. ADA Liability3 2 A. Accessible Entrance 3 Plaintiff acknowledges that the front entrance of 4 Stagecoach is not accessible pursuant to the ADA Accessibility 5 Guidelines (“ADAAG”), and it is likely not readily achievable to 6 make it accessible. (Pl.’s Mem. ISO Mot. (“Pl.’s Mot.”) at 12 7 (Docket No. 48-1).) The rear entrance to the restaurant is the 8 designated accessible entrance and has a gate outside of it. 9 Plaintiff seeks an injunction requiring defendants to: “(1) keep 10 the rear gate propped open at all times during business hours[;] 11 (2) keep the designated accessible rear entrance unlocked and 12 available for use during business hours[;]” and (3) if weather 13 conditions “prevent the rear entrance from being opened by 14 customers,” . . . “defendants [shall] install a doorbell or two- 15 way communication device at the rear door for customers to summon 16 Stagecoach staff to open the door for them.” (Id. at 13.) 17 Plaintiff’s expert has submitted photos of the rear 18 entrance area taken during the expert’s two visits to Stagecoach. 19 (Decl. of Bluhm, Exs. C-F.) The photographs show the rear gate 20 in an open position. (Id, Ex. D.) A sign in all-caps is posted

21 3 Plaintiff did not personally encounter all of the 22 alleged barriers. Nevertheless, the Ninth Circuit allows “[a]n ADA plaintiff who has standing as a result of at least one 23 barrier . . . [to] challenge all barriers in that public accommodation that are related to his or her specific 24 disability.” Doran v. 7-Eleven, 524 F.3d 1034, 1047 (9th Cir. 2008). Here, plaintiff personally encountered the alleged 25 barriers in accessing the entrance and the outdoor patio dining area on May 31, 2020 and August 21, 2020. The other alleged 26 barriers relate to plaintiff’s quadriplegic status. Accordingly, 27 plaintiff also has standing to challenge these other barriers under the ADA. 28 1 by the rear gate which reads: “Due to COVID-19 gate is locked! 2 For handicap entrance please call (916) 422-9296 and we will 3 assist you immediately!” (Id., Ex. E.) There are also signs on 4 the rear door, which comes after entering the rear gate, that 5 state: “Due to windy conditions please use front door,” “please 6 check in at the front counter to be seated,” and that take-out is 7 available from 7am-3pm daily and the number to call to place an 8 order. (Id., Exs. E-F.) 9 Defendants’ expert has submitted photos taken on June 10 30, 2022 which again show the rear gate in an open position. 11 (Decl. of Craig Lobnow, Ex. 1 (“Lobnow Evaluation”), at 2-3, 19, 12 22 (Docket No. 51-4).) The photos also appear to show the sign 13 about calling Stagecoach for the “handicap entrance” to still be 14 in place. (Id. at 2.) 15 The only photos submitted by plaintiff which show the 16 rear gate in a locked position were taken in August 2020, and 17 were not taken by plaintiff during either of his visits to 18 Stagecoach. (Decl. of Sellers, Exs. D, E; id. ¶¶ 11-12.) 19 However, there is no indication that Stagecoach was open for 20 business at the time these photographs were taken as all the 21 doors and gates are closed and there are no cars in the parking 22 lot. The photo angles also do not show the rear entrance door 23 beyond the rear gate, and therefore, the court cannot determine 24 if there is any sign posted about calling for take-out orders or 25 access. 26 The evidence submitted by the parties shows the rear 27 gate, which leads to the rear accessible entrance, in an unlocked 28 position on multiple occasions, including as recent as June 30, 1 2022. Plaintiff presents no evidence that the rear gate or 2 entrance is locked during business hours. Further, plaintiff 3 presents no evidence about the need for a “doorbell or two-way 4 communication system” as there is a sign stating the number 5 customers can call for the “handicap entrance.” 6 Based on the evidence submitted by both parties, it is 7 disputed whether the rear gate and entrance were unlocked, and if 8 the above-described signs were posted at the time of plaintiff’s 9 two visits. There is a genuine dispute of material fact as to 10 whether the accessible entrance needs to be “maintained” in a 11 usable manner as plaintiff’s injunctive relief requests. See 28 12 C.F.R., pt. 36, App. C § 36.211 (“[a] public accommodation shall 13 maintain in operable working condition those features of 14 facilities . . . that are required to be readily accessible to 15 and usable by persons with disabilities”). 16 Accordingly, plaintiff’s motion for summary judgment on 17 the ADA claim for an accessible entrance will be denied. 18 B. Slopes within Designated Accessible Parking 19 The ADAAG require that floor or ground surfaces of the 20 parking space and access aisle must not include slopes steeper 21 than 1:48 (approximately 2.0 percent). 36 C.F.R., pt. 1191, App. 22 D § 502.4.4 After renovations of the parking lot were complete 23 at Stagecoach, plaintiff’s expert measured slopes within the 24 designated accessible parking space and aisle up to 5.5 percent. 25 (Decl. of Bluhm ¶ 16; id., Ex. G.) Defendants’ expert measured 26

27 4 Plaintiff cites to the 1991 ADAAG which state the slope cannot be more than 1:50 (exactly 2.0 percent). See 28 C.F.R., 28 pt. 36, App. D § 4.6.3. 1 slopes not greater than 2.0 percent in the designated accessible 2 parking space and aisle. (Lobnow Evaluation at 4-16; Decl. of 3 Craig Lobnow ¶ 12 (Docket No. 51-3).) 4 There is a genuine dispute of material fact whether the 5 designated accessible parking space and aisle have slope levels 6 compliant with the ADAAG. Accordingly, plaintiff’s motion for 7 summary judgment on the ADA claim for accessible parking will be 8 denied. 9 C. Accessible Route from Public Sidewalk 10 Pursuant to the ADAAG, “[a]tleast one accessible route 11 shall be provided within the site from . . . public streets and 12 sidewalks.” 36 C.F.R., pt. 1191, App. B § 206.2.1. Plaintiff 13 argues that there is a “somewhat accessible path of travel to the 14 front entry walkway” but that it is not compliant with the ADAAG 15 in several ways (excessive slopes, large openings within the 16 walking surface, no kick plate, and a closed front gate). (Pl.’s 17 Mot. at 14.) Defendants’ expert acknowledges that there is no 18 accessible path of travel from the public sidewalk. (Decl. of 19 Lobnow ¶ 9.) Therefore, the next inquiry is whether removing 20 this barrier is “readily achievable.” See 42 U.S.C. § 21 12182(b)(2)(A)(iv). 22 The ADA sets out four factors to be considered in 23 determining whether removal of a barrier is “readily achievable”:

24 “(A) the nature and cost of the action needed under this chapter; 25

26 (B) the overall financial resources of the facility or facilities involved in the action; 27 the number of persons employed at such facility; the effect on expenses and resources, or the 28 1 impact otherwise of such action upon the operation of the facility; 2 (C) the overall financial resources of the 3 covered entity; the overall size of the business 4 of a covered entity with respect to the number of its employees; the number, type, and location of 5 its facilities; and

6 (D) the type of operation or operations of the covered entity, including the composition, 7 structure, and functions of the workforce of such 8 entity; the geographic separateness, administrative or fiscal relationship of the 9 facility or facilities in question to the covered entity.” 10

11 42 U.S.C. § 12181(9)(A)-(D). Notably, the four-factor test set 12 forth by the ADA inevitably is a question of fact which requires 13 a showing of evidence. 14 An ADA plaintiff bears the initial burden of “plausibly 15 showing how removal of an architectural barrier is readily 16 achievable under the circumstances.” Lopez v. Catalina Channel 17 Express, Inc., 974 F.3d 1030, 1035-36 (9th Cir. 2020). “Only if 18 the plaintiff first makes a plausible showing that the barrier 19 removal is readily achievable, does the defendant then have to 20 negate the showing and prove that removal is not readily 21 achievable.” Id. at 1036 (emphasis in original). 22 Here, plaintiff does not plausibly show that an 23 accessible route is readily achievable. Plaintiff’s expert 24 concluded that filling in gaps in the front walkway would cost 25 $50. (PSUF ¶ 47.) However, a response to plaintiff’s claim 26 would also require the renovation of the parking lot, the front 27 entry walkway, the front gate, and the dining patio. Paintiff 28 1 presents no evidence of the costs of the totality of these 2 renovations. Nor does plaintiff provide any evidence of 3 defendants’ financial resources or the nature of defendants’ 4 business. (See Pl.’s Mot. at 14.) 5 Even if plaintiff met his initial burden, defendants’ 6 expert concludes that an accessible route from the sidewalk is 7 not possible because “[g]iven the ground conditions, the entire 8 lot would have to be regraded with extensive ramping and terrain 9 alteration in order to eliminate the changes in elevation” – 10 making the renovations not readily achievable. (Decl. of Lobnow 11 ¶ 9) 12 Therefore, because plaintiff has not met his burden of 13 establishing an essential element of his ADA claim for an 14 accessible route from the public sidewalk plaintiff’s motion for 15 summary judgment on this part of the ADA claim will be denied. 16 D. Slopes and Height Changes at Accessible Entrance 17 Under the ADAAG, “required maneuvering clearances” at 18 doorways, changes in level of the floor or ground surface are not 19 permitted.5 36 C.F.R., pt. 1191, App. D § 404.2.4.4. 20 Plaintiff’s expert measured slopes of up to 3.4 percent at the 21 exterior side of the designated accessible entrance. (Decl. of 22 Bluhm ¶ 19; id., Ex. I.) Defendants do not dispute this fact and 23 instead state that “the entry has a path of travel with a maximum 24 5.0 [percent] slope allowance.” (PSUF ¶ 37; DSUF ¶ 107.) 25 Plaintiff’s expert also found that a floor mat at the 26

27 5 Plaintiff cites to the 1991 ADAAG which contain the same requirement. See 28 C.F.R., pt. 36, App. D § 4.13.6. 28 1 interior side of the designated accessible entrance creates a 2 vertical height change of more than 1/4 inch. (Decl. of Bluhm ¶ 3 22.) Defendants argue that the floor mat was moved slightly to 4 cover the threshold of the entrance during plaintiff’s expert’s 5 inspection. (DSUF ¶ 109; Defs.’ Opp’n at 2 (Docket No. 51).) 6 However, plaintiff does not argue that the threshold of the 7 doorway entrance is too high, rather that there is an excessive 8 height change within the maneuvering clearances at the designated 9 accessible entrance. 10 There is no genuine dispute of material fact as to the 11 excessive slopes and height changes within the maneuvering 12 clearances at the designated accessible entrance. Plaintiff has 13 proven that defendants failed to comply with the ADA requirement 14 that there be no changes in level of the floor or ground surface 15 within the maneuvering clearances at doorways. 16 Again, however, plaintiff bears the initial burden of 17 “plausibly showing how removal of an architectural barrier is 18 readily achievable under the circumstances.” Lopez, 974 F.3d at 19 1035-36. Plaintiff’s expert opines that grinding the pavement 20 would cost between $300 to $500 and replacing the landing would 21 be $1,000. (PSUF ¶ 39.) However, plaintiff presents no further 22 evidence concerning the other readily achievable factors that the 23 ADA requires to be considered such as the overall financial 24 resources or the effect on expenses and resources. See 42 25 U.S.C. § 12181(9)(A)-(D). Therefore, plaintiff has not met his 26 initial burden. 27 Accordingly, the court will deny summary judgment for 28 plaintiff on the ADA claim for the excessive slope and height 1 changes within the maneuvering clearances at the designated 2 accessible entrance because plaintiff has failed to prove an 3 essential element of his claim. 4 E. Seating Spaces 5 Plaintiff argues that the dining counter within 6 Stagecoach is only 38 inches in length and is required to be 60 7 inches in length. (PSUF ¶ 51.) For this requirement, plaintiff 8 cites to the 1991 ADAAG, not the 2010 ADAAG. (See Pl.’s Mot. at 9 14 (citing 28 C.F.R., pt. 36, App. D § 5.2).) There is no such 10 requirement in the 2010 ADAAG. See 36 C.F.R., pt. 1191, App. D § 11 902. 12 The Department of Justice promulgated the ADAAG 13 in 1991 and revised it in 2010. See Kohler v. Flava Enters., 14 Inc., 826 F. Supp. 2d 1221, 1229 (S.D. Cal. 2011). All 15 architectural and structural elements in a facility are required 16 to comply with the 1991 ADAAG to the extent that compliance is 17 readily achievable; by contrast, the 2010 ADAAG apply only to 18 elements that have been altered in existing facilities, or that 19 fail to comply with the 1991 ADAAG, on or after March 15, 2012. 20 28 C.F.R. § 36.304(d)(1)-(2). Plaintiff admits that the dining 21 counter was altered in 2021. (PSUF ¶ 25.) Therefore, it is 22 subject to the 2010 ADAAG. 23 Because the 2010 ADAAG do not contain a requirement 24 that the dining counter be 60 inches in length, there is no ADA 25 violation. Accordingly, plaintiff’s motion for summary judgment 26 on the ADA claim for the dining counter will be denied. 27 Plaintiff also argues that there are not enough 28 accessible table seating spaces at Stagecoach. The ADAAG require 1 that 5.0 percent of seating spaces at Stagecoach be accessible. 2 See 36 C.F.R., pt. 1191, App. B § 226.1. Plaintiff’s expert 3 contends that Stagecoach only has one of four required accessible 4 tables and that the following tables need to be added: two in the 5 main dining area, one in the outdoor patio, and one in the rear 6 dining area. (Decl. of Bluhm ¶¶ 33-37.) In contrast, 7 defendants’ expert contends that there are 21 total tables at 8 Stagecoach in “three functional areas” of the restaurant, and 9 that there is an accessible table in each area, which meets the 5 10 percent requirement. (Decl. of Lobnow ¶¶ 26-28; Lobnow 11 Evaluation at 24-26.) 12 The experts dispute whether the number of accessible 13 tables in Stagecoach is sufficient under the ADA, and therefore, 14 there is a genuine dispute of fact. Accordingly, plaintiff’s 15 motion for summary judgment on the ADA claim for the amount of 16 seating spaces will be denied. 17 F. Restroom 18 Plaintiff lists a number of alleged violations present 19 in the restroom at Stagecoach: (1) insufficient clear width of 20 the doorway opening; (2) door lock that requires tight grasping, 21 pinching, and/or twisting; (3) insufficient turning space; (4) 22 improperly positioned toilet and flush control; (5) improperly 23 positioned toilet paper dispenser; (6) improperly positioned grab 24 bars; (7) insufficient knee and toe clearances under the 25 lavatory; (8) improper height of light switch; and (9) improper 26 height of mirror. (Pl.’s Mot. at 16-19.) Defendants do not 27 dispute that these ADA violations exist in the restroom. (See 28 PSUF ¶¶ 59-83.) 1 In response, defendants merely note that as of the date 2 of their expert’s visit to Stagecoach, June 30, 2022, there was 3 no restroom open to the public. (Lobnow Evaluation at 27.) The 4 restroom at Stagecoach was completely renovated in 2021, and 5 defendants present no explanation regarding why the restroom was 6 closed on June 30, 2022. (See PSUF ¶ 26.) 7 Even if the restroom is not open to the public, 8 plaintiff’s ADA claim for the restroom is not necessarily mooted. 9 Injunctive relief is the only form of relief available in a 10 private action for violation of the ADA’s Title III, and 11 therefore a “defendant’s voluntary removal of alleged barriers 12 prior to trial can have the effect of mooting a plaintiff’s ADA 13 claim.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th 14 Cir. 2011). However, if the ADA violation could “reasonably be 15 expected to recur” then the claim is not moot. Friends of the 16 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 17 190 (2000). 18 Defendants present no evidence that the restroom will 19 remain closed. Accordingly, the court must conclude that the ADA 20 violations are likely to recur because defendants simply can 21 unlock the restroom door and open it to the public again. 22 However, once again, plaintiff carries the initial 23 burden of plausibly demonstrating that removal of the barriers is 24 readily achievable. See Lopez, 974 F.3d at 1035-36. Plaintiff 25 presents not even an iota of evidence to meet this burden with 26 respect to the restroom violations. Despite sending an expert to 27 examine every inch of Stagecoach in order to find additional 28 barriers, plaintiff does not provide the court with any evidence 1 whatsoever of the readily achievable factors through his expert. 2 See 42 U.S.C. § 12181(9)(A)-(D). 3 Plaintiff appears to assume that just because 4 defendants were able to renovate portions of the restroom in 2021 5 that it is readily achievable for defendants to remove all 6 barriers in the restroom now. If plaintiff wanted the court to 7 take this motion seriously, he could have given the court some 8 tangible evidence beyond bald unsupported assumptions. 9 Accordingly, plaintiff’s motion for summary judgment 10 for the ADA claim for the restroom will be denied. 11 III. Unruh 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. (SAC ¶¶ 38-39.) As 23 discussed above, the court will not grant summary judgment on any 24 of the alleged ADA violations. Therefore, the court will not 25 grant summary judgment for plaintiff on his Unruh Act claim based 26 on the alleged ADA violations. 27 IT IS THEREFORE ORDERED that plaintiff’s motion for 28 summary judgment (Docket No. 48) be, and the same hereby is, eee mE INE ROS IRIE OIE IRE IE ID eee

1 DENTED without prejudice to re-filing the motion after further 2 discovery. 3 | Dated: August 4, 2022 blew (ht. —~E——- WILLIAM B. SHUBB 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15