NOT FOR PUBLICATION FILED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). 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 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.

7