Perfect 10 Inc v. Google Inc et al

Filing 64

DECLARATION of Allen Wang In Support of Perfect 10's Reply Re: Motion of Plaintiff Perfect 10 Inc for Preliminary Injunction 22 filed by Plaintiff Perfect 10 Inc. (dw, )

1 IIAmy B. Vandeveld,

SBN

137904
t
C! p~ L~--:; II c: I'~?V"J

LAW OFFICES OF AMY B. VANDEVELD 2 "1850 Fifth Avenue, Suite 22 San Diego, California 92101 3 IITelephone: [phone] Facsimile: [phone]

---- '
N"'

OCT

I 0 am

4 5

Attorney

for Plaintiff

G(;. i ~~ U.ST hiCT Cf ~Ur:W.iIIA f!Y [)fr../T

~

6 7 8 9
10 "KAREL SPIKES,

IN THE UNITED

STATES DISTRICT

COURT

SOUTHERN DISTRICT

OF

~y:O:~~O 67 2 6
CIVIL COMPLAINT

Jf~

(J x) C

11
Plaintiff,

12

vs.
DEMAND FOR JURY TRIAL [F.R.C.P. §38 (b);
Local Rule 38.1]

13 "POPEYE'S CHICKEN & BISCUITS; RUTH 1411REICH PARTNERS, LLC; ISH DON'T THINK SO, LLC and DOES 1 THROUGH 10,
15 "Inclusive,

16 17

Defendants.

Plaintiff, 18 " "Plaintiff"), -

KAREL

SPIKES

(hereinafter

referred

to as

file this cause of action against
.

Defendants

19 20

""

POPEYE'S CHICKEN & BISCUITS herelnafter "POPEYE'S CHICKEN"),
(

"

"RUTH REICH PARTNERS, II
21 ""THROUGH 10, Inclusive,

LLC, ISH DON'T THINK SO, LLC and DOES 1
and would show unto the Court the

22 23 24 25

_

.

followlng:

I.
JURISDICTION
1.

AND VENUE jurisdiction of this civil

This Court has original

26

"

.

II

actlon pursuant to 28 USC §1331,
claims arising

28 USC §§1343(a) (3) and
the Americans with

27 ""1343(a) (4) for

under

28

111Disabilities Act of 1990, 42 USC §§12101, 2I1seq., 12182, et seq., and/or 311supplemental jurisdiction,

et seq., 12181, et

12183, et seq., and the Court's

28 USC §1367. to 28 USC

4

2.

Venue
and

in this Court is proper pursuant

5 1I§§1391 (b)

(c).

6

3.

Pursuant

to 28 USC §1367(a),

Plaintiff

shall assert in this

7 lIallcauses of action based on state law, as plead 8 IIcomplaint, under the supplemental 9l1court. All the causes jurisdiction

of the federal law and those

of action based on federal

10llbased on state law, as herein 11110f operative fact.

stated, arose from a common nuclei equal access in violation due to

That is, Plaintiff was denied goods, and/or services

12 litoDefendants'

facilities,

13 lIofboth federal and state laws and/or was injured 1411violations of federal 15 lIofPlaintiff and state access laws.

The state actions that they

are so related

to the federal actions

16 IIformpart of the same case or controversy.
17 lIordinarily be expected to be tried in one

The actions would
judicial proceeding.

18 19 20
4.

II.
THE PARTIES Defendant POPEYE'S
was,

CHICKEN & BISCUITS
a business

is, and at all
or

21 IItimes mentioned

herein

or corporation

22 IIfranchise organized

and existing

and/or doing business POPEYE'S CHICKEN CA

under the is

23111aws of the State of California. 24 IIlocated at 8530 Figueroa 2511"the subject property".)

& BISCUITS (hereinafter

Street, Los Angeles, Plaintiff

is informed

and believes & BISCUITS
lessor and/or or

and

2611thereon alleges that Defendant
27 lIand at all times mentioned

POPEYE'S CHICKEN
was, the the owner, owner

is,

herein

28 Illes ee of the s

subject

property

and/or

operator

2

1 lIofthe public

accommodation

located at the subject

property.

2

5.

Defendant

RUTH REICH PARTNERS,

LLC is, and at all times or franchise under the laws of and believes and

3 IImentioned

herein was, a business or corporation
in and/or doing business Plaintiff is informed

4 lIorganized and existing 5 litheState of California. 6 IIthereon alleges

that Defendant

RUTH REICH PARTNERS,

LLC is, and

7 lIatall times mentioned
8 lithe subject property.

herein was, the owner, lessor or lessee of

9

6.

Defendant

ISH DON'T THINK SO, LLC is, and at all times

h 10 IImentioned erein was, a business or corporation or franchise
11 lIorganized and existing 12 litheState of California. 1311thereon alleges in and/or doing business Plaintiff is informed under the laws of and believes and

that Defendant

ISH DON'T THINK SO, LLC is, and at

14 lIalltimes mentioned
15 lithe subject property.

herein was, the owner, lessor or lessee of

16

7.

Plaintiff

is informed and believes,

and thereon

17l1alleges, that Defendants
18 IItimes relevant to the

and each of them herein were, at all
the owners, agents, franchisees, employees, lessees,

action,

19 IIgeneral partners, 20 lIemployers, 21 IIcompanies,

limited

partners, partners,

representing

subsidiaries,

parent

joint venturers

and/or divisions

of the remaining

22 IIDefendants and were acting within the course and scope of that 23 IIrelationship.
24 IIthereon alleges,

Plaintiff
that

is further informed
of the Defendants

and believes,
herein gave

and

each

25 IIconsent to, ratified,
26110f each of the

and/or authorized
Defendants.

the acts alleged

herein

remaining

27

8.

Plaintiff

is an otherwise

qualified

disabled Act

28 lIindividual as provided

in the Americans

with Disabilities

3

1 of 1990, 42 USC §12102, Part 5.5 of the California
2 Safety Code and the California 3 seq. , 52, et seq.,
the

Health

&

Unruh Civil Rights Act,
Disabled Persons Act,

§§51, et §§54,

California

411et seq., and other statutory 5 protection 6 Plaintiff

measures

which

refer to the persons."

of the rights of "physically visited

disabled

the public accommodation

owned and/or

7 lIoperated by Defendants 8 IIforthe purpose

and/or located at the subject property himself of the goods, services, operated

of availing

9 IIfacilities, privileges,

advantages,

or accommodations

10 lIand/or owned by Defendants

and/or located on the subject

11 IIproperty. 12

9.

Plaintiff

is informed

and believes

and thereon

alleges

13 IIthatthe subject facility 14 /lunderwent remodeling, 15 IIthatDefendants
16 IIstandards which 17 IIconstruction

has been newly constructed or alterations

and/or

repairs,

since 1971, and access

have failed to comply with California
applied at the time of each such new

and/or

alteration.

18 19 20
II

III. FACTS 10. Plaintiff has a mobility impairment and uses a
Moreover, he has had a history impairment, of or has been as required by 42

21/1wheelchair.

22 IIclassified as having a physical
2311usc §12102 (2) (A)
.

24

II

11.

On or about March 4, 2008 and continuing through the
was denied full and equal access to the by the Defendants were inaccessible because the

25 IIpresent date, Plaintiff

26 IIfacilities owned and/or operated 27 facility and/or subject property 28 of the disabled community

to members

who use wheelchairs

for mobility.

4

1 IIPlaintiff was denied 2 IIproperty because

full and equal access to portions which included,

of the

of barriers

but are not cashier

3 IIlimited to, inaccessible 4 IIcounter, inaccessible 5 lIaccessible parking
6 IIspace.

path of travel, inaccessible facilities and lack of

restroom

space, as well as, lack of signage was also denied policies

for said

Plaintiff

full and equal access and practices regarding filed this

7 IIbecause of discriminatory

8 lIaccommodating people with disabilities. 911lawsuit to compel compliance

Plaintiff

with access laws and regulations.

10

II

12.

As a result of Defendants' failure to remove
Plaintiff suffered injuries. barriers, People are denied

11 lIarchitectural barriers,
12 IIwi h disabilities, t

because

of the existing

13 IIfull and equal access to the Defendants' 14 IIhasbeen in effect

facilities. Given

The ADA

for more than 17 years.

the vast including of

15 lIavailability of information 16 FREE documents
II

about ADA obligations,

which are available [phone]

from the u.s. Department or at the following web

17 IIJustice by calling

18 IIsites: www.sba.gov/ada/smbusgd.pdf, 19I1www.usdoj.gov/crt/ada, 20lltheir barrier removal

www.ada.gov/taxpack.pdf

and

the failure of Defendants obligations is contemptible.

to comply with

21

II

13.

Plaintiff is an otherwise qualified individual as
with Disabilities Act or 1990, 42 USC 504 (as amended

22 IIprovided in the Americans 2311§12102, the Rehabilitation

Act of 1973, Section

24 1129USC §794) and the California

Unruh Civil Rights Act, Civil measures

2511Code §§51, 52, 54, 54.1, and 54.3, and other statutory 26 IIwhich refer to the protection 27 IIdisabled persons." 28 lIowned and operated Plaintiff

of the rights of "physically visited the public for the purpose facilities of availing

by Defendants

5

1 IIhimself of the goods and services 2 IIDefendants and/or
3 lIarchitectural

offered and provided of obtaining removal

by of

for the purpose
and/or

barriers

modification

of policies,

4 practices

and procedures

to provide

accessibility

to people

5 with disabilities. 6 IImore specifically

Plaintiff herein.

was injured in fact, as set forth

7

II

14.

Plaintiff alleges that Defendants will continue to
accommodations which are inaccessible Pursuant to him and

8 lIoperate public

9 litoother individuals 10 1I§12188(a), Defendants

with disabilities. are required

to 42 use

to remove architectural

1111barriers to their existing

facilities.

12

II

15.

Plaintiff has no adequate remedy at law for the
being suffered in that money damages will

13 lIinjuries currently 14 IInotadequately

compensate

Plaintiff

for the amount of harm in the

15 IIsuffered as a result
16 lIeconomic and social

of exclusion
life of this

from participation
state.

17

II

16.

Plaintiff believes that architectural barriers
full and equal access of the public to exist at Plaintiff's
discrimination

18 IIprecluding Plaintiff

1911accommodation will continue
20 IIvisits, which will result

future
of

in future

21l1Plaintiff, in violation
22 IIPlaintiff is currently 23 IIbecause Plaintiff

of the Americans
being subjected from

with Disabilities

Act.

to discrimination the subject

is deterred

visiting

24 IIfacilities and/or cannot make use of and obtain 25 lIaccess to the facilities, goods and/or services Plaintiff

full and equal offered by for

2611Defendants to the general public. 2711each offense relating
28 IIsubject property when

seeks damages visits to the
and equal

to each of Plaintiff's
Plaintiff was denied

full

6

1 lIaccess to the subject property
2 lIand/or attempting

or was deterred

from visiting goods,

to avail himself of the benefits, and advantages of the place

3 IIservices, privileges

of public

4 lIaccommodation at the subject

property because

of continuing

511barriers to full and equal access.

6 7
VIOLATION

IV.
FIRST CLAIM FOR OF AMERICAN WITH DISABILITIES 42 USC §12101. et seq. ACT

8 9
II

17.

Plaintiff re-alleges and incorporates by reference
every allegation set contained forth fully in paragraphs herein. 1 through 16,

10 lIeach and

11 lIinclusive,

as though

12

II

18.

Plaintiff was denied full and equal access to
services, facilities, privileges, accommodation in violation of 42

13l1Defendants' goods,

14 lIadvantages, or accommodations 15 Ilowned, leased and/or 1611use §§12181, operated

within a public by Defendants,

et seq., 12182, et seq., and/or subjected

12183, et seq. and is

17 IIPlaintiff was, therefore, 18 lIentitled to injunctive 1911result of the actions

to discrimination

relief pursuant or inaction

to 42 use §12188 as a

of Defendants.

20

II

19.

Among other remedies, Plaintiff seeks an injunctive
compliance
violations

21 lIorder requiring
22 IIfor all access

with state and federal
which exist at the

access laws

property,

23 IIrequiring removal of architectural 24 lithecourt may deem proper. 25 lIorder that will redress 26l1subjected, is being

barriers

and other relief as

Plaintiff also seeks any other to which he has been

the discrimination

subjected

and/or will be subjected.

27 11/ / 28 11/ / 7