Johnson v. Parmar et al
Filing
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ORDER signed by Judge Kimberly J. Mueller on 1/5/12 VACATING 17 Findings and Recommendations. The case is REFERRED back to the Magistrate judge for further consideration in light of the above. (Meuleman, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SCOTT N. JOHNSON,
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Plaintiff,
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No. CIV-S-11-1340-KJM-KJN
vs.
GURMINDER PARMAR, Individually
and d/b/a/ TOKAY LIQUORS; FRASIER
CORP., a Nevada Corporation,
Defendants.
____________________________________/
ORDER
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On October 21, 2011, the magistrate judge filed findings and recommendations,
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which were served on the parties and which contained notice that any objections to the findings
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and recommendations were to be filed within fourteen days. No objections were filed.
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The court presumes that any findings of fact are correct. See Orand v. United
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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are
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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.
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1983). Having carefully reviewed the file, the court declines to adopt the findings and
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recommendations and refers the matter back to the magistrate judge.
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In his complaint for violations of the Americans With Disability Act, 42 U.S.C.
§§ 12101, et seq., and California’s Unruh Act, Cal. Civ. Code §§ 51(f), 52, plaintiff alleges that
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he suffered discrimination at defendant’s place of business because of the lack of the “correct
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number and type of properly configured disabled parking space(s) including the lack of a van
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accessible disabled parking space (no disabled parking exists) . . . accessible route . . . ,
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accessibility signage and striping. The removal of the above referenced architectural barriers is
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readily achievable.” ECF No. 1 at 4. Plaintiff says he “seeks injunctive relief to require
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Defendants to remove all architectural barriers related to his mobility disability. . . to remove all
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barriers to access which are readily achievable” Id. at 6-7.
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“To succeed on an ADA claim of discrimination on account of one's disability
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due to an architectural barrier, the plaintiff must also prove that: (1) the existing facility at the
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defendant's place of business presents an architectural barrier prohibited under the ADA, and
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(2) the removal of the barrier is readily achievable.” Parr v. L & L DriveInn Rest., 96 F.Supp.2d
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1065, 1085 (D.Haw. 2000). “Readily achieveable” means “easily accomplishable and able to be
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carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). Although the Ninth
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Circuit has not yet determined whether the plaintiff or defendant bears the burden in showing
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that removal of the barrier in a non-historic building is readily achievable, other circuits have
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placed the initial burden of production on the plaintiff. Colorado Cross Disability Coalition v.
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Hermanson Family Ltd., 264 F.3d 999, 1005-06 (10th Cir. 2001); Roberts v. Royal Atlantic
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Corp., 542 F.3d 363, 373 (2d Cir. 2008); see also Vesecky v. Garick, Inc., 2008 WL 4446714, at
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*4 (D. Ariz. Sept. 30, 2008) (following Colorado Cross); compare Molski v. Foley Estates
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Vineyard and Winery, LLC., 531 F.3d 1043 (9th Cir. 2008) (historic winery had initial burden of
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production on issue of ready achievability). Taking into account the question of burden, it is not
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clear whether the magistrate judge considered whether all the “necessary facts” for liability were
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contained in the pleadings. See Cripps v. Life Ins. Co. of North America, 980 F.2d 1261, 1267
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(9th Cir. 1992).
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/////
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Accordingly, IT IS HEREBY ORDERED that:
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1. The court declines to adopt the findings and recommendations filed October
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21, 2011 (ECF No. 17); and
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2. The case is referred back to the magistrate judge for further consideration in
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light of the above.
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DATED: January 5, 2012.
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UNITED STATES DISTRICT JUDGE
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john1340.jo
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