Johnson v. Ballew et al

Filing 41

ORDER signed by District Judge John A. Mendez on 2/5/2020 GRANTING IN PART AND DENYING IN PART 38 Motion for Summary Judgment; ENJOINING defendants to "alter facilities to make such facilities readily accessible to and useable by individuals with disabilities" to the extent required by the ADA. 42 U.S.C. § 12188(a)(2); and AWARDING plaintiff statutory damages in the amount of $8,000. (Coll, A)

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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.

2:14-cv-01672-JAM-DAD

Plaintiff,

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v.

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ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT

FRED ARTHUR BALLEW;
TATA FOODS CORPORATION, a
California Corporation,

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Defendants.

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Plaintiff Scott Johnson (“Plaintiff”) sued Fred Arthur

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Ballew (“Defendant Ballew”) and Tata Foods Corporation

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(“Defendant Tata Foods”), alleging that their business, a Denny’s

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restaurant, does not comply with the Americans with Disabilities

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Act (“ADA”) and the Unruh Civil Rights Act.

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A default judgment was entered against Defendant Tata Foods.

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No. 6. Plaintiff now moves for partial summary judgment against

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Defendant Ballew.

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opposed Plaintiff’s motion.

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Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion.

Mot., ECF No. 38.

I.

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Compl., ECF No. 1.
ECF

Defendant Ballew has not

For the reasons set forth below, the
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OPINION

Plaintiff, a quadriplegic, visited the Denny’s restaurant,

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for February 11, 2020.
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located at 5033 S. Hwy 99, Stockton, California, on March 11,

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2014, March 18, 2019, and March 24, 2019.

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ECF No. 38-4.

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restaurant did not have a van accessible parking spot.

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¶ 6.

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use the coat hook and mirror as both were mounted too high.

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at ¶¶ 13–14.

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his legs on an unwrapped hot water pipe below the sink.

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¶ 15. Plaintiff regularly visits businesses in the area but was

Johnson Decl. ¶¶ 4, 9,

During these visits, Plaintiff found that the
Id. at

Inside the restaurant’s restroom, Plaintiff was unable to
Id.

Additionally, Plaintiff was worried about burning
Id. at

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deterred from patronizing the Denny’s restaurant on several

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occasions because of the restaurant’s barriers to access.

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¶¶ 18, 21.

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Id. at

Plaintiff seeks injunctive relief and statutory damages

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under the Unruh Civil Rights Act corresponding to two (2)

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obstructed visits to the Denny’s restaurant ($4,000.00 minimum

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statutory damages per visit, for a total amount of $8,000.00) and

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an additional $4,000 for the times he was deterred from visiting

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the restaurant because of his knowledge of the barriers.

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11–12.

Mot. at

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Here, Plaintiff provided factual evidence that Defendant

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Ballew’s business did not comply with the ADA and Unruh Civil

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Rights Act, that Plaintiff visited the restaurant on several

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occasions, and that Plaintiff was deterred from patronizing the

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restaurant thereafter.

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motion, Defendant Ballew has not provided any evidence

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demonstrating an issue of material fact as to those violations.

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Thus, there is no dispute of fact as to Plaintiff’s visits to the

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Denny’s restaurant and Defendant’s statutory noncompliance,

By failing to file an opposition to this

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making relief appropriate.

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Although a plaintiff may recover statutory damages for

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several visits to a non-compliant facility, making multiple

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visits to a non-complaint facility in a short amount of time may

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constitute a failure to mitigate.

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Supp. 3d 1096, 1103 (E.D. Cal. 2016).

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the Denny’s restaurant three times in one month.

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at ¶¶ 4, 9.

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a failure to mitigate.

See Johnson v. Guedoir, 218 F.
Here, Plaintiff visited
Johnson Decl.

These visits are close enough in time to constitute
Thus, the Court will only award Plaintiff

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$4,000 in statutory damages for the first of his visits to the

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restaurant.

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Finally, the same plaintiff is entitled to statutory damages

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for one encounter and a separate award for deterrence.

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218 F. Supp. 3d at 1100.

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Plaintiff another $4,000 in statutory damages for the times he

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was deterred from visiting the restaurant.

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Guedoir,

Accordingly, the Court will award

II.

ORDER

For the reasons provided, the Court GRANTS IN PART and

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DENIES IN PART Plaintiff’s Motion for Partial Summary Judgment.

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Defendants are enjoined to “alter facilities to make such

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facilities readily accessible to and useable by individuals with

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disabilities” to the extent required by the ADA. 42 U.S.C.

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§ 12188(a)(2).

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in the amount of $8,000.

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The Court also awards Plaintiff statutory damages

IT IS SO ORDERED.
Dated: February 5, 2020

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