1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 SCOTT JOHNSON, No. 2:17-cv-02474 WBS DB 13 Plaintiff, 14 v. ORDER RE: MOTION FOR SUMMARY

JUDGMENT

15 SWEET SPARK, INC., 16 Defendant. 17 18 ----oo0oo---- 19 Plaintiff Scott Johnson, an individual with a 20 disability, initiated this action against defendant Sweet Spark, 21 Inc. (“Sweet Spark”), seeking damages under the Unruh Civil 22 Rights Act (“Unruh Act”), California Civil Code §§ 51-53; 23 injunctive relief under the American with Disabilities Act 24 (“ADA”), 42 U.S.C. § 12101, and the Unruh Act; and attorney’s 25 fees and costs. Before the court is plaintiff’s motion for 26 summary judgment. 27 I. Facts 28 Plaintiff is a quadriplegic who uses a wheelchair for 1 mobility and has a specially equipped van. (Decl. of Scott 2 Johnson (“Johnson Decl.”) ¶¶ 2-3 (Docket No. 24-5).) Plaintiff 3 alleges that on at least five different occasions between March 4 2017 and September 2017, he visited Fix Auto Sacramento (“Fix 5 Auto”) at 4220 Stockton Boulevard, Sacramento, California. (Id. 6 ¶¶ 4, 13.) At all relevant times, Sweet Spark owned, and 7 presently owns, Fix Auto. (Def’s Resp. to Pl.’s Req. for Admis. 8 2-5 (Docket No. 24-12).) 9 Plaintiff alleges that during these visits, he 10 encountered access barriers that denied him full and equal access 11 to Fix Auto and caused him difficulty and frustration. (Johnson 12 Decl. ¶¶ 6-12.) First, he contends there were no ADA compliant 13 parking spaces available at Fix Auto during his visits. (Id. ¶ 14 6-11.) In part, plaintiff alleges that the parking space 15 reserved for persons with disabilities had no access aisle, 16 improper signage, and faded markings. (Id. ¶¶ 8-10, 14.) 17 Second, plaintiff alleges in his complaint that Fix Auto’s 18 bathroom presents an access barrier because its path of access is 19 obstructed by stairs and it lacks fixtures that are ADA 20 compliant, although he admits he did not personally encounter 21 this barrier. (Compl. ¶¶ 39, 42-51 (Docket No. 1).) Plaintiff 22 claims he has been deterred from returning and patronizing Fix 23 Auto because of these barriers. (Johnson Decl. ¶ 13.) 24 On October 4, 2017, plaintiff’s investigator, Evens 25 Louis, conducted his first investigation of Fix Auto. (Decl. of 26 Evens Louis (“Louis Decl.”) ¶¶ 2-3. (Docket No. 24-8).) He found 27 Fix Auto’s accessible parking space and bathroom were not 28 compliant with ADA or California Building Code (“CBC”) standards. 1 (Id. ¶¶ 6-12.) On January 11, 2018, Louis returned to Fix Auto 2 and concluded that, while Fix Auto had repainted the parking 3 space, it still did not conform to CBC or ADA requirements. (Id. 4 ¶¶ 14-17.) His declaration does not include a second evaluation 5 of Fix Auto’s bathroom. (See generally id.) 6 II. Discussion 7 A. Legal Standard 8 Summary judgment is proper “if the movant shows that 9 there is no genuine dispute as to any material fact and the 10 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 11 P. 56(a). A material fact is one that could affect the outcome 12 of the suit, and a genuine issue is one that could permit a 13 reasonable jury to enter a verdict in the non-moving party’s 14 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 15 (1986). Any inferences drawn from the underlying facts must be 16 viewed in the light most favorable to the party opposing the 17 motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 18 U.S. 574, 587 (1986). 19 B. Americans with Disabilities Act 20 To prevail on an ADA claim, the plaintiff must show 21 that (1) he is disabled within the meaning of the ADA; (2) the 22 defendant is a private entity that owns, leases, or operates a 23 place of public accommodation; and (3) the plaintiff was denied 24 public accommodations by the defendant because of his 25 disability.1 Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th 26 1 Defendants argue that a reasonable jury could find 27 plaintiff did not visit Fix Auto for bona fide patronization, but rather “to look for ADA litigation opportunities.” (Opp. to Mot. 28 for Summ. J. at 7-8.) While plaintiff claims he did intend to 1 Cir. 2007). 2 Plaintiff has established, and defendant does not 3 contest, the first two elements. Whether plaintiff was denied 4 access to a public accommodation because of his disability is the 5 only element in dispute. 6 1. Parking Lot Violations 7 Plaintiff cites the CBC and the ADA Accessibility 8 Guidelines (“ADAAG”) to support his contention that defendant 9 violated the ADA. 10 Plaintiff asserts that defendant violated the CBC 11 because the markings delineating the accessible parking space 12 were faded, signs detailing fine information and other warnings 13 were not posted above the space, and the access aisle did not 14 have “NO PARKING” painted on top of it. (Mot. for Summ. J. at 9- 15 10 (citing CBC §§ 1129B4,2 11B-502.3.3).) However, failing to 16 use Fix Auto’s services and will seek to do so in the future 17 because it is close to his home (Johnson Decl. ¶¶ 17-18), even if 18 the defendant is correct, “motivation is irrelevant to the question of standing under Title III of the ADA.” See Civ. Rts. 19 Educ. and Enf’t Ctr. v. Hosp. Props. Tr., 867 F.3d 1093, 1102 (9th Cir. 2017). 20 2 Plaintiff claims these deficiencies violate California Building Code § 1129B.4, though it appears he may have intended 21 to cite § 11B-502.6. See 22 https://codes.iccsafe.org/content/CABCV12019/chapter-11b- accessibility-to-public-buildings-public-accommodations- 23 commercial-buildings-and-public-housing (last visited on October 22, 2019). Other courts have struggled to find plaintiff’s cited 24 regulation. See, e.g., Johnson v. Siu Keung Chan, No. 2:17-cv- 00138-KJM-AC, 2019 WL 2448443, at *4 (E.D. Cal. June 12, 2019); 25 Johnson v. Lababedy, No. 2:16-CV-0126-KJM-AC, 2016 WL 4087061, at *4 (E.D. Cal. Aug. 2, 2016) (“[T]here are no sections ‘1129B.4’ 26 or ‘1129B.3’ in the current California Building Code.”) 27 Conversely, § 11B-502.3.3 does exist in the current version of the CBC. 28 1 comply with the CBC standards does not establish a violation of 2 the ADA. See, e.g., Johnson v. Siu Keung Chan, No. 2:17-cv- 3 00138-KJM-AC, 2019 WL 2448443, at *4 (E.D. Cal. June 12, 2019) 4 (collecting cases). Therefore, these allegations are immaterial 5 to resolving whether plaintiff is entitled to summary judgment on 6 his ADA claim. 7 Parties agree that under the ADAAG, access aisles must 8 be at least 96 inches wide. See 28 C.F.R. Pt. 36, App. D § 9 4.1.2(5)(b) (1991 ADAAG); 36 C.F.R. Pt. 1191, App. B § 208.2.4 10 (2010 ADAAG). They disagree, however, as to whether Fix Auto’s 11 access aisle is 96 inches wide. During his January 11, 2018 12 investigation, plaintiff’s investigator found the access aisle 13 was only five feet (or 60 inches) wide. (Louis Decl. ¶ 17.) But 14 defendant’s Chief Executive Officer, Dave Picton, claims he 15 measured the access aisle “shortly after [he] became aware of 16 plaintiff’s lawsuit” and found the aisle was 96 inches wide. 17 (Picton Decl. ¶¶ 4, 7.) Based on the evidence submitted to this 18 court, there is a factual dispute between the parties regarding 19 whether the aisle is five feet or eight feet wide. The court 20 cannot resolve this dispute as a matter of law. Accordingly, 21 plaintiff’s motion for summary judgment as to the parking space 22 violation will be denied. 23 2. Restroom Violations 24 Plaintiff alleges the defendant’s bathroom presents 25 multiple access barriers, including path of travel and 26 inaccessible fixtures. (Louis Decl. ¶¶ 7-12.) 27 Defendant asserts that it does not offer a bathroom to 28 the public, and that the restroom is reserved for employees 1 alone. (Picton Decl. ¶ 9.) If the bathroom is closed to the 2 public, then “is not a place of public accommodation and thus is 3 not subject to Title III of the ADA.” Doran v. 7-Eleven, Inc., 4 524 F.3d 1034, 1048 (9th Cir. 2008). But plaintiff’s 5 investigator was able to evaluate the bathroom and take pictures 6 and measurements on October 4, 2017. (Louis Decl. ¶ 7-12; Docket 7 No. 24-9 (pictures).) This at least suggests that the bathrooms 8 may be open to the public, and therefore must be ADA compliant. 9 The court must deny plaintiff’s summary judgment motion on this 10 claim because the bathroom’s availability to the public -- and 11 therefore whether the ADA applies to the bathroom -- presents a 12 genuine issue of material fact. 13 C. The Unruh Act 14 The Unruh Act provides in relevant part that every 15 person is “entitled to the full and equal accommodations, 16 advantages, privileges, or services in all business 17 establishments of every kind whatsoever” notwithstanding his or 18 her disability. Cal. Civ. Code § 51(b). “A violation of the 19 right of any individual under the federal Americans with 20 Disabilities Act of 1990 shall also constitute a violation of 21 [the Unruh Act].” Cal. Civ. Code § 51(f) (internal citations 22 omitted). Plaintiff does not allege a violation of the Unruh Act 23 independent from his claims under the ADA. (See Compl. at 10- 24 11.) Because the court does not grant summary judgment on the 25 alleged ADA violations above, the court cannot grant plaintiff’s 26 motion for summary judgment with respect to the Unruh Act. 27 Accordingly, plaintiff’s motion as to the Unruh Act will be 28 denied. 1 IT IS THEREFORE ORDERED that plaintiff's Motion for 2 Summary Judgment (Docket No. 24) be, and the same hereby is, 3 DENIED. 4 Dated: October 23, 2019 □□ □□□ ~ ~ ak beg! sé □□□ 5 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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