Johnson v. Lin, et al.

Filing 21

ORDER signed by Judge Garland E. Burrell, Jr. on 4/28/2015 DENYING 17 Motion for Summary Judgment. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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No. 2:13-cv-01484-GEB-DAD

Plaintiff,
v.

ORDER DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT

KUO LIN, in his individual
and representative capacity
as Trustee, Kuo & Chiu Lin
Family Trust; and CHIU LIN,
in his individual and
representative capacity as
Trustee, Kuo & Chiu Lin
Family Trust,
Defendants.

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Plaintiff

Scott

Johnson

moves

for

partial

summary

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judgment under Federal Rule of Civil Procedure (“Rule”) 56 on his

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claims alleged under the federal Americans with Disabilities Act

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(“ADA”)

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Plaintiff seeks an injunction under the ADA and damages under the

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and

the

California

Unruh

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Civil

Rights

Act

(“UCRA”).1

Plaintiff states he “stipulates to dismiss his Disabled Persons
[Act] and [n]egligence [claims] . . . to ensure that this motion
disposes of the entire case.” (Mot. 3:10-12.)

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UCRA

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Defendants‟

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Standards for Accessible Design: “[in]accessible parking, paths

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of

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Summ. J. (“Mot.”) 1:5-6, ECF No. 17-1.) Defendants counter the

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motion, arguing Plaintiff‟s “calculation of damages [under the

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UCRA] . . . raise[s] [a] genuine [dispute] of material fact.”

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(Defs.‟ Opp‟n to Pl.‟s Mot. for Summ. J. (“Opp‟n”) 2:1-2, ECF No.

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18.)

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concerning

travel,

the

following

restaurant,

transaction

which

barriers
he

counters,

I.

evinces

and

he

encountered

violated

restrooms.”

the

(Pl.‟s

at
ADA

Mot.

LEGAL STANDARD

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A party is entitled to summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” . . . . The moving party has the burden
of establishing the absence of a genuine
dispute of material fact.

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City of Pomona v. SQM North Am. Corp., 750 F.3d 1036, 1049 (9th

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Cir. 2014) (quoting Fed. R. Civ. P. 56(a)) (citing Celotex Corp.

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v. Catrett, 477 U.S. 317, 323 (1986)). “A fact is „material‟ when

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. . . it could affect the outcome of the case.” Thrifty Oil Co.

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v. Bank of Am. Nat‟l Trust & Sav. Ass‟n, 322 F.3d 1039, 1046 (9th

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Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986)). “A[] [dispute] of material fact is “genuine”

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when “the evidence is such that a reasonable jury could return a

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verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

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A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by . . . citing to particular parts of
materials in the record . . . or . . .
showing that the materials cited do not
establish the absence or presence of a
genuine dispute, or that an adverse party
cannot produce admissible evidence to support
the fact.
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Fed. R. Civ. P. 56(c)(1)(A)-(B).

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Summary judgment “evidence must be viewed in the light

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most

favorable

to

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inferences must be drawn in favor of that party.” Sec. & Exch.

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Comm‟n v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011) (citing

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Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,

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1227 (9th Cir. 2001)).

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the

II.

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The

following

nonmoving

party,

and

all

reasonable

UNCONTROVERTED FACTS
averments

in

Plaintiff‟s

declaration

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submitted in support of his motion are uncontroverted. Plaintiff

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ate

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at [Defendants‟ restaurant] on . . . February
15, 2013, February 21, 2013, February 22,
2013, March 4, 2013, April 2, 2013, June 4
2013, and June 5, 2013. On each of these
occasions,
[Plaintiff]
faced
.
.
.
difficulties and discomforts due to . . .
[the referenced] barriers [that hindered his
full and equal access to the restaurant.]

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(Decl. Scott Johnson ¶ 8; see also Defs.‟ Response & Objections

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to

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(“Defs.‟ SUF”) Nos. 3, 5, 1-2, 5-8, 10-11 12-14, 15-16, ECF No.

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18-1.)

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[Plaintiff last ate at Defendants‟ restaurant], Defendants made

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alterations

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restroom . . . .” (Defs.‟ SUF No. 16.)

Pl.‟s

Separate

It

is

to

Statement

uncontroverted

the

parking,

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that

Undisputed

“[s]ometime

ramp,

Material

[after]

transaction

Facts,

.

counter

.

.

and

III. DISCUSSION
a. Plaintiff’s ADA Claims

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i) Barriers Alleged in Plaintiff’s Complaint

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of

Plaintiff seeks summary judgment on his ADA injunctive
relief

claims

alleged

in

his

Complaint;
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however,

there

is

a

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genuine dispute of material fact as to whether those barriers

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still

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“alterations”

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Defendants‟

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Plaintiff‟s summary judgment motion on his ADA claims alleged in

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his Complaint is denied.

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exist

since
to

it
the

is

uncontroverted

barriers

restaurant.

since

(Defs.‟

SUF

that

Defendants

Plaintiff
No.

last

16.)

made

ate

at

Therefore,

ii) The Newly Installed Curb Ramp

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Plaintiff also argues in his motion that “[a] newly

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installed ramp from the sidewalk to the . . . restaurant . . .

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[violates

the

cross

slope

requirements

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Standards

for

Accessible

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rejoin that this is the “first time” Plaintiff has made this

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claim. (Opp‟n 1:26-2:1.)

Design].”

prescribed

(Mot.

in

2:17-22.)

the

ADA

Defendants

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Plaintiff did not allege the existence of this barrier

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in his Complaint, nor has he sought leave to amend his Complaint

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to allege its existence. This pleading issue is governed by what

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is

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(Pretrial

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pleadings is permitted, except with leave of Court for good cause

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shown.” (Status Order 2:4-6, ECF No. 9.) “The [status] order

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„control[s] the subsequent course of the action‟ unless modified

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by the court.” Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 608 (9th Cir. 1992) (alteration in original). Status orders

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“may be modified upon a showing of „good cause.‟” Id.

prescribed

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as

follows

Scheduling)

Since

in

Order:

Plaintiff

the
“No

has

November

19,

2013

Status

further . . . amendments

not

satisfied

the

good

to

cause

standard, this portion of his motion is disregarded.
ii.

Plaintiff’s UCRA Claim
Plaintiff

argues

since
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Defendants

violated

the

ADA

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standards referenced in his Complaint “there has been a per-se

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violation

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“damages in the amount of $8,000 . . . for one visit and one

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deterrence.” (Mot. 10:22-23, 1:8, 11:16-18.)

of

[the

UCRA]”,

and

he

is

therefore

entitled

to

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The UCRA prescribes: “a violation of the right of any

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individual under the [ADA] shall also constitute a violation of

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[the UCRA].” Cal. Civ. Code § 51(f). A plaintiff may recover

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“actual damages . . . in no case less than four thousand dollars

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($4,000)” for “each offense” under the UCRA. Cal. Civ. Code §§

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52(a), 55.56(a).
[Further, the UCRA] provides that statutory
damages
. . . are available under two
circumstances: (1) if a plaintiff encountered
the violation on a particular occasion or (2)
if a plaintiff was deterred from accessing a
place of public accommodation on a particular
occasion. As to the first circumstance, a
violation may be sufficient to give rise to
damages
if
the
plaintiff
experienced
difficulty, discomfort, or embarrassment as a
result of the violation. As to the second
circumstance, a deterrence will only give
rise to damages if (a) the plaintiff had
actual knowledge of a violation and (b) the
violation would have actually denied the
plaintiff full and equal access if he
attempted to access the place on a particular
occasion.

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Yates v. Vishal Corp., No. 11-CV-00643-JCS, 2013 WL 6073516, at

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*3 (N.D. Cal. Nov. 18, 2013) (emphasis added) (internal quotation

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marks and citations omitted); see also Cal. Civ. Code § 55.56(b)-

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(d) (describing the circumstances under which a plaintiff may

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recover statutory damages).

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Plaintiff has not provided facts evincing that he was

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deterred from visiting Defendants‟ restaurant on a “particular

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occasion.” Therefore, this portion of his motion is denied.
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V.

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CONCLUSION

For the foregoing reasons, Plaintiff‟s partial motion

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for summary judgment is denied.

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Dated:

April 28, 2015

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