Arroyo v. Mehrabi, et al.

Filing 43

ORDER signed by Senior Judge William B. Shubb on 2/23/2022 GRANTING IN PART 40 Motion for Summary Judgment on the issue of liability on plaintiff's ADA claim based upon inaccessibility of the restroom mirror and toilet paper dispenser. The final judgment in this action will include an injunction requiring defendants to provide an accessible restroom mirror and toilet paper dispenser. In all other respects 40 Motion for Summary Judgment is DENIED. (Huang, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAFAEL ARROYO, JR.,
Plaintiff,

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No. 2:19-cv-1147-WBS-CKD

v.
KARIM MEHRABI, STARS HOLDING
CO., a California Limited
Liability Company; AND DOES 110,

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MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT

Defendants.

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Plaintiff moves for summary judgment in this disability

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access action under the Americans with Disabilities Act (“ADA”),

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42 U.S.C. § 12101, and the Unruh Civil Rights Act (“Unruh Act”),

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California Civil Code §§ 51-53.

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(Docket No. 40.)1

The undisputed facts are as follows.

Plaintiff is a

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The motion was scheduled to be heard on February 22,
2022, but because of incurable problems with the Zoom connection,
the court took the motion under submission without oral argument.
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paraplegic who uses a wheelchair for mobility. (Defs.’ Resp. to

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Pl.’s Statement of Uncontroverted Facts (“PSUF”) at No. 1 (Docket

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No. 41-4).)

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Station at 4507 Howard Road, Westley, California.

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2, 6.)

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has leased and operated the Gas Station at all relevant times in

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this suit, including today.

(Id. at Nos.

Defendant Mehrabi has owned and defendant Stars Holding

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On December 2, 2018, plaintiff visited the Gas

(Id. at Nos. 4-5.)

Plaintiff needs parking with an access aisle to safely
deploy his vehicle ramp.

(Decl. of Rafael Arroyo (“Arroyo

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Decl.”) ¶ 6 (Docket No. 40-3).)

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plaintiff runs the risk of getting struck by another car or

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having another vehicle park next to him and block him from re-

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entering.

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December 2, 2018, plaintiff alleges he did not find any parking

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space designated for persons with disabilities.

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did he find any parking space with an adjacent access aisle or

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signage indicating disabled parking.

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that defendants violated the ADA by not providing an ADA-

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complaint accessible parking space, restroom mirror, and toilet

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paper dispenser.3

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Plaintiff notes that it appeared that there used to be
an accessible parking space in the parking lot, however, the
surface markings seemed faded or paved over. (Arroyo Decl. ¶ 5.)

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(Id. ¶¶ 7, 9.)

Without an accessible aisle,

When he arrived at the Gas Station on

(Id.)2

(Id. ¶ 4.)

Nor

Plaintiff alleges

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Plaintiff did not actually enter the restroom at the
Gas Station, and therefore, did not personally encounter the
restroom mirror or the toilet paper dispenser. Nevertheless, the
Ninth Circuit allows “[a]n ADA plaintiff who has standing as a
result of at least one barrier . . . [to] challenge all barriers
in that public accommodation that are related to his or her
specific disability.” Doran v. 7-Eleven, 524 F.3d 1034, 1047
(9th Cir. 2008). Here, it is undisputed that plaintiff
personally encountered the alleged inaccessible parking. The
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I.

ADA Liability
A.

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Inaccessible Parking
Any business that provides parking spaces must provide

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them in accordance with the ADA Accessibility Guidelines

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(“ADAAG”).

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with one to 25 parking spaces, it is required that there is one

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accessible parking space.

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Station had “around 15 parking spaces,” defendants were required

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to include one accessible parking space.

36 C.F.R, pt. 1191, App. B § 208.1.

Id. at § 208.2.

For parking lots

Because the Gas

(See Decl. of Tim

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Wegman (“Wegman Decl.”) ¶ 4 (Docket No. 40-5).)

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parking spot must comply with specific measurements, 36 C.F.R.,

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pt. 1191, App. D § 502, and be properly identified with required

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markings and signage.

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The accessible

Id. at § 502.3.3, 502.6.

Plaintiff has submitted photographs of the parking lot

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taken by his investigator on December 22, 2018.

(See Pl.’s Mot.

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for. Summ. J., Ex. 4, 12-17 (Docket No. 40-6).)

The photographs

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do not show an accessible parking space in the Gas Station

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parking lot.

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by an employee of the Gas Station in 2015, showing a designated

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accessible parking space.

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8 (Docket No. 41-1)); (Id., Ex. B, photos of parking space

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(Docket No. 41-3).)

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clear, close-up of the area which defendants’ photos capture.

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(See Pl.’s Mot. for. Summ. J., Ex. 4, 12-17.)

Defendants have also submitted photographs, taken

(Decl. of Azad Amiri (“Amiri Decl.”) ¶

Plaintiff’s submitted photos do not show a

The contradicting

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restroom mirror and toilet paper dispenser are barriers related
to plaintiff’s paraplegic status. Accordingly, plaintiff also
has standing to challenge the restroom mirror and toilet paper
dispenser under the ADA.

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photo evidence provided by the parties creates a genuine dispute

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of material fact as to whether an accessible parking space

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existed at the time of plaintiff’s visit to the Gas Station.

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Further, plaintiff’s own declaration creates a genuine

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dispute of material fact.

Plaintiff claims he “did not find any

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parking space designated for use by persons with disabilities.”

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(Arroyo Decl. ¶ 4.)

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states that “[i]t appeared that there used to be an accessible

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parking space” but that it was faded or paved over.

However, in the next paragraph, plaintiff

(Id. ¶ 5.)

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It is not clear from plaintiff’s statements whether no designated

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spot for persons with disabilities existed, or whether the spot

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existed but was not properly identified using visible markings

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and signage.

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of law whether an accessible parking space needs to be created,

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or whether the accessible parking space exists but needs to be

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“maintained” in a usable manner.

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36.211 (“[a] public accommodation shall maintain in operable

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working condition those features of facilities . . . that are

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required to be readily accessible to and usable by persons with

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disabilities”).4

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Therefore, the court cannot determine as a matter

See 28 C.F.R., pt. 36, App. C §

Accordingly, plaintiff’s motion for summary judgment on
the ADA claim for accessible parking will be denied.

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Plaintiff also states that he “chose to leave without
attempting to further patronize the Gas Station.” (Arroyo Decl.
¶ 10.) As part of the same declaration, plaintiff submits a copy
of his receipt from the Gas Station visit. (Id., Ex. 2.)
Plaintiff provides no explanation for how he patronized the Gas
Station when he claims no accessible parking existed and he chose
to leave.
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B.

Restroom Mirror

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Pursuant to the ADAAG, “mirrors located above

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lavatories or countertops shall be installed with the bottom edge

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of the reflecting surface 40 inches [] maximum above” the floor.

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36 C.F.R., pt. 1191, App. D § 603.3.

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investigator show a mirror located above a sink in the restroom,

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meaning the mirror’s bottom edge must be no higher than 40 inches

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from the floor.

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of these photos includes a measuring device at the bottom edge of

Photos taken by plaintiff’s

(See Pl.’s Mot. for. Summ. J., Ex. 4, 4.)

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the mirror and reads 55 and 1/4 inches.

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do not offer any evidence that the bottom edge of the mirror was

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40 inches or less from the floor.

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“readily achievable” as it will not require much of defendants’

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resources.

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(Id. at 5.)

One

Defendants

Lowering of the mirror is also

See 42 U.S.C. § 12182(b)(2)(A)(iv).

There is no genuine dispute of material fact pertaining

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to the height of the mirror.

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defendants failed to comply with the ADA requirement for mirror

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height.

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judgment for plaintiff on the issue of ADA liability for the

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restroom mirror.

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C.

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Plaintiff has proven that

Accordingly, the court will grant partial summary

Toilet Paper Dispenser
The ADAAG requires that toilet paper dispensers be

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seven to nine inches in front of the toilet fixture “measured to

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the centerline of the dispenser.”

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604.7.

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by his investigator, that the toilet paper dispenser was mounted

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at 21 inches in front of the toilet fixture.

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Defendants do not offer any evidence or argument that plaintiff’s

36 C.F.R., pt. 1191, App. D §

Plaintiff claims, based on a photo of a measurement taken

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(Pl.’s MSJ at 12.)

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measurement is incorrect.

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toilet paper dispenser from the toilet fixture is also “readily

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achievable” as it will not require much of defendants’ resources.

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See 42 U.S.C. § 12182(b)(2)(A)(iv).

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Modification of the distance of the

As no genuine dispute of material fact exists regarding

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the toilet paper dispenser, and plaintiff has shown that

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defendants failed to comply with the ADA requirement for toilet

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paper dispensers, the court will grant partial summary judgment

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for plaintiff on the issue of ADA liability for the toilet paper

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dispenser.

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II.

Unruh Civil Rights Act

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The Unruh Act provides in relevant part that every

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person is “entitled to the full and equal accommodations,

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advantages, privileges, or services in all business

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establishments of every kind whatsoever” notwithstanding his or

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her disability.

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right of any individual under the federal Americans with

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Disabilities Act of 1990 shall also constitute a violation of

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[the Unruh Act].”

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omitted).

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Cal. Civ. Code § 51(b).

“A violation of the

Cal. Civ. Code § 51(f) (internal citations

Plaintiff does not allege a violation of the Unruh Act

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independent from his claims under the ADA. (Compl. at 7.)

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discussed above, there are genuine issues of material fact

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regarding plaintiff’s ADA claim for inaccessible parking.

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Therefore, the court will not grant summary judgment for

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plaintiff on his Unruh Act claim based on an inaccessible parking

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violation.

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As

Unlike the ADA, under the Unruh Act, for every alleged
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violation plaintiff must “personally encounter[] the violation”

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or be “deterred from accessing a place of public accommodation on

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a particular occasion.”

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record does not establish that plaintiff personally encountered

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the restroom mirror or the toilet paper dispenser.

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also does not establish that plaintiff was deterred from

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accessing the Gas Station due to knowledge of the restroom

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violations because plaintiff did not become aware of the

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violations until his investigator visited the restroom weeks

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later, after which plaintiff did not attempt to visit the Gas

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Station on “a particular occasion.”

See Cal. Civ Code §55.56(a-b).

The

The record

Id.

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Therefore, the court cannot grant summary judgment for

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plaintiff on his Unruh Act claim based on the restroom mirror or

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toilet paper dispenser violation.

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IT IS THEREFORE ORDERED that plaintiff’s motion for

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summary judgment (Docket No. 40) be, and the same hereby, is

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GRANTED IN PART on the issue of liability on plaintiff’s ADA

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claim based upon inaccessibility of the restroom mirror and

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toilet paper dispenser. The final judgment in this action will

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include an injunction requiring defendants to provide an

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accessible restroom mirror and toilet paper dispenser.

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IT IS FURTHER ORDERED that in all other respects

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plaintiff’s motion for summary judgment be, and the same hereby

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is, DENIED.

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Dated:

February 23, 2022

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