Kalani v. Starbucks Corporation et al

Filing 82

ORDER by Judge Lucy H. Koh granting in part and denying in part 75 Motion for Summary Judgment; denying 76 Motion for Summary Judgment (lhklc1, COURT STAFF) (Filed on 2/25/2015)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 ROBERT KALANI, Plaintiff, 13 14 15 16 Case No.:13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. STARBUCKS CORPORATION, Defendant. Re: Dkt. Nos. 75, 76 17 18 Plaintiff Robert Kalani (“Plaintiff” or “Kalani”) brings this action against Defendant 19 Starbucks Corporation (“Defendant” or “Starbucks”) for alleged violations of the Americans with 20 Disabilities Act. Before the Court are the parties’ cross-motions for summary judgment. Having 21 considered the submissions of the parties, the record in this case, and the relevant law, the Court 22 hereby grants in part and denies in part Plaintiff’s motion for summary judgment and denies 23 Defendant’s motion for summary judgment. 24 25 26 27 28 1 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 2 I. BACKGROUND A. Factual Background It is undisputed that Plaintiff is mobility impaired and uses a wheelchair. See Stipulation 3 Regarding Undisputed Facts, ECF No. 75-6. On January 31, 2013, Plaintiff visited the Starbucks 5 Coffee Store #6931, located at 1228 Camden Avenue in Campbell, California. Id. According to 6 Plaintiff, on the day of his visit, he personally encountered several architectural barriers at the 7 store that “interfered with if not outright denied, Plaintiff’s ability to use and enjoy the goods, 8 services, privileges and accommodations offered” at the store. First Am. Compl. (“FAC”), ECF 9 No. 34, ¶ 10. Id. More specifically, Plaintiff alleges that the parking space was sloped, the surface 10 of the access aisle was cracked and uneven, the cashier counter had insufficient room for Plaintiff 11 United States District Court Northern District of California 4 to conduct his transaction, and the service counter where drinks were to be picked up was 12 “extremely high.” FAC ¶ 10. As a result of these architectural barriers, Plaintiff contends he 13 required assistance from his wife to place, pay for, and receive his order, all of which caused him 14 embarrassment. Id. The Starbucks store was completely renovated in or about September 2014, continuing 15 16 17 through October 2014. See Stipulation Regarding Undisputed Facts, ECF No. 75-6. B. Procedural History Plaintiff filed his original complaint on February 19, 2013, against Defendants Starbucks 18 19 and Brentina, LLC. ECF No. 1. Starbucks answered on March 20, 2013, ECF No. 7, and Brentina, 20 LLC answered on April 1, 2013, ECF No. 8. The parties stipulated to Plaintiff filing his First 21 Amended Complaint on March 14, 2014. ECF Nos. 32, 34. Starbucks filed its amended answer on 22 April 3, 2014, ECF No. 37, and Brentina, LLC filed its amended answer on April 4, 2014, ECF 23 No. 38. 24 On September 26, 2014, Plaintiff filed a notice of settlement as to Defendant Brentina, 25 LLC, ECF No. 63, and a stipulation of dismissal as to Defendant Brentina, LLC on October 27, 26 2014, ECF No. 66. 27 28 2 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 Plaintiff filed his motion for summary judgment on January 15, 2015. ECF No. 75. 2 Defendant Starbucks filed an opposition on January 29, 2015, ECF No. 78, and Plaintiff filed his 3 reply on February 5, 2015, ECF No. 79. 4 Defendant also filed its motion for summary judgment on January 15, 2015. ECF No. 76. 5 Plaintiff filed his opposition on January 29, 2015, ECF No. 77, and Starbucks filed its reply on 6 February 5, 2015, ECF No. 80. 7 II. LEGAL STANDARD 8 Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine issues of 10 material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 11 United States District Court Northern District of California 9 Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). At the summary judgment stage, the Court 12 “does not assess credibility or weigh the evidence, but simply determines whether there is a 13 genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559–60 (2006). A fact is “material” if 14 it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 15 477 U.S. 242, 248 (1986), and a dispute as to a material fact is “genuine” if there is sufficient 16 evidence for a reasonable trier of fact to decide in favor of the nonmoving party, id. “If the 17 evidence is merely colorable, or is not significantly probative, summary judgment may be 18 granted.” Id. 19 The moving party bears the initial burden of identifying those portions of the pleadings, 20 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex 21 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue at trial, 22 it must affirmatively demonstrate that no reasonable trier of fact could find other than for the 23 moving party, but on an issue for which the opposing party will have the burden of proof at trial, 24 the party moving for summary judgment need only point out “that there is an absence of evidence 25 to support the nonmoving party’s case.” Id. at 325; accord Soremekun v. Thrifty Payless, Inc., 509 26 F.3d 978, 984 (9th Cir. 2007). Once the moving party meets its initial burden, the nonmoving 27 28 3 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 party must set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that 2 there is a genuine issue for trial.” Anderson, 477 U.S. at 250. 3 III. DISCUSSION 4 The parties move for summary judgment as to two discrete issues: (1) whether the post- 5 September/October 2014 renovated Starbucks store complies with federal and state accessibility 6 requirements; and (2) whether Plaintiff is entitled to injunctive relief or damages. The parties also 7 object to certain expert declarations. The Court begins by addressing the parties’ evidentiary 8 objections before turning to the substance of the parties’ motions. 9 10 A. Evidentiary Objections Defendant moves for summary judgment on Plaintiff’s Americans with Disabilities Act United States District Court Northern District of California 11 (“ADA”) claims based on the expert declarations of Kim R. Blackseth. According to Ms. 12 Blackseth, the September 2014 and October 2014 renovations to the Starbucks store have removed 13 all of the architectural barriers identified by Plaintiff. Ms. Blackseth states that, as of November 4, 14 2014, “the facility is free of non-compliant issues.” See Declaration of Kim R. Blackseth 15 (“Blackseth First Decl.”), ECF No. 76-2, ¶ 9(b). In Ms. Blackseth’s second declaration, 16 (“Blackseth Second Decl.”), ECF No. 78-1, she opines that temporary obstructions are not 17 “barriers” and that the store therefore fully complies with the relevant ADA guidelines. 18 In opposition, Plaintiff objects to several paragraphs in Ms. Blackseth’s declaration as 19 impermissible legal conclusions, and argues that Ms. Blackseth’s conclusions are inadmissible. 20 See ECF No. 77 (“Pl. Opp.”). Plaintiff also contends that the displays and other movable objects 21 located on the floor and counters do not fall within the exception for “temporary” obstructions 22 under 28 C.F.R. § 36.211(b). 23 Although an expert may not provide testimony on an ultimate legal issue, she may testify 24 as to findings that support the ultimate issue. See Hangarter v. Provident Life & Accident Ins. Co., 25 373 F.3d 998, 1016–17 (9th Cir. 2004) (“While [the expert’s] testimony that Defendants deviated 26 from industry standards supported a finding that they acted in bad faith, the expert] never testified 27 4 28 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 that he had reached a legal conclusion that Defendants actually acted in bad faith (i.e., an ultimate 2 issue of law).”). Further, an expert may refer to the law in expressing an opinion without crossing 3 the line into a legal conclusion. See id. However, mere “legal conclusions without underlying 4 factual support . . . constitute ‘unsupported speculation’ and are therefore inadmissible.” Plush 5 Lounge Las Vegas LLC v. Hotspur Resorts Nevada Inc., 371 F. App’x 719, 720 (9th Cir. 2010) 6 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)). 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 Here, Plaintiff specifically objects to the following statements: A) Plaintiff’s allegations in his First Amended Complaint (Court Docket No. 32-1) are without merit. B) The subject store fully complies with all federal and state access regulations as Plaintiff ROBERT KALANI alleges them and as they relate to his disability of a mobility impaired person who uses an automatic wheelchair. As of November 4, 2014, the facility is free of non-compliant issues. C) The disabled, van accessible parking spot and access aisle in front of the store complies with all applicable access requirements after the renovation. A proper accessible route is provided from this parking spot to the front door. D) The point of sale (or cashier counter) at the location complies with applicable access requirements. Allegations of nonarchitectural items that may temporarily be placed in that are [sic] do not trigger violations of access regulations. 19 G) The store’s disabled seating (interior and exterior) are movable tables. They can on occasion be moved around, but they are configured to meet access requirements and comply with all requirements included [sic] clearances and turning space. 20 H) Clear floor space is provided at the fire extinguisher. 21 I) The store’s restroom complies with all access requirements including transfer clearance space in the toilet room. 18 22 See Blackseth First Decl. ¶ 9(A)–(D), 9(G)-(I). 23 24 25 First, the Court sustains Plaintiff’s objections to paragraphs 9(A)–(D), 9(G)–(I). Conclusory opinions that the “facility is free of non-compliant issues,” or that particular features, e.g., the accessible parking or point of sale, “compl[y] with all applicable access requirements,” 26 27 28 5 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 constitute improper legal conclusions. See, e.g., Hangarter, 373 F.3d at 1016–17; see also Sharp 2 v. Islands Cal. Ariz. LP, 900 F. Supp. 2d 1101, 1112 (S.D. Cal. 2012) (statement that the “waiting 3 area is accessible to wheelchair users and complies with all ADAAG requirements” constituted 4 improper legal conclusions). These statements do not identify any factual support for Ms. 5 Blackseth’s opinions. The Court notes that Plaintiff properly does not object to ¶ 9(E), where Ms. 6 Blackseth opines that “[t]he pick-up counter . . . as modified now provides a length of 36 inches 7 and a height of 34 inches, as such it complies with access regulations.” Blackseth First Decl. ¶ 8 9(E). Unlike that statement, the objected-to paragraphs do not provide factual support for Ms. 9 Blackseth’s expert conclusions and are also an insufficient basis on which to grant summary 10 judgment. See Sharp, 900 F. Supp. 2d at 1112. United States District Court Northern District of California 11 Defendant relies on Miller v. California Speedway Corp., 453 F. Supp. 2d 1193 (C.D. Cal. 12 2006), reversed on other grounds by 536 F.3d 1020 (9th Cir. 2008), to argue that Ms. Blackseth’s 13 statements constitute admissible evidence. Even assuming the district court’s order in Miller 14 remained good law, the Court concludes that Miller only undermines Defendant’s argument. The 15 district court in Miller found that the plaintiff’s expert’s opinion addressed a matter of fact, even 16 though the expert used the same phrase as the relevant regulation. 453 F. Supp. 2d. at 1196. In 17 contrast, the district court concluded that the defendant’s expert in Miller offered an impermissible 18 conclusion of law where the expert opined that “the subject seating does in fact comply with the 19 applicable” laws and regulations without any factual support for that conclusion. See id. Here, Ms. 20 Blackseth’s opinions offer legal conclusions, e.g., “the point of sale . . . complies with applicable 21 access requirements,” without addressing the factual bases for her opinions. As such, Miller is of 22 no assistance to Defendant. 23 The Court therefore finds that paragraphs 9(A)–(D), 9(G)–(I) are impermissible legal 24 conclusions lacking factual support and therefore inadmissible. See Plush Lounge, 371 F. App’x at 25 720. 26 Defendant objects to certain statements made in Plaintiff’s expert Dawn Anderson’s 27 6 28 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 Declaration, ECF No. 75-2. More specifically, Defendant argues that Ms. Anderson conducted 2 “unnoticed and unauthorized site inspections” in contravention of a court order. See Def. Reply at 3 2. Ms. Anderson apparently conducted an unnoticed site inspection on December 3, 2014, which 4 occurred after the close of expert discovery on November 21, 2014. Moreover, Defendant 5 contends that Ms. Anderson’s November 13, 2014 site inspection, while before the close of expert 6 discovery, occurred after the Court-imposed site-inspection deadline of September 30, 2014. See 7 id.; ECF No. 42; see also Declaration of Dawn Anderson (“Anderson Decl.”), ECF No. 75-2. 8 Here, while the Court acknowledges that Ms. Anderson conducted “unnoticed” site 9 inspections after the Court’s September 30, 2014 deadline, the Court overrules Defendant’s objections. The Court notes that Ms. Anderson did conduct a site inspection with both Plaintiff’s 11 United States District Court Northern District of California 10 and Defendant’s counsel present on September 30, 2014, pursuant to the Court’s order. See 12 Anderson Decl. ¶ 8. Additionally, Defendant cannot contest that the renovations to the Starbucks 13 store were not completed until late October 2014, after the Court’s September 30, 2014 deadline. 14 At the time the Court imposed the September 30, 2015 site-inspection deadline, Defendant 15 Starbucks represented to the Court that renovations would occur between September 7, 2014 and 16 September 19, 2014. See Joint Case Management Statement, ECF No. 47. The Court’s September 17 30, 2014 deadline assumed that Defendant would have completed all renovations, giving Plaintiff 18 an opportunity to determine whether the renovations fully addressed the identified barriers. The 19 Court therefore overrules Defendant’s objection based on the Court’s site-inspection deadline. 20 Moreover, Defendant offers no reason why Ms. Anderson’s unnoticed December 2014 21 visit prejudiced Defendant. During both Ms. Anderson’s November 13, 2014 and December 3, 22 2014 site inspections, Ms. Anderson evaluated publicly accessible areas of the Starbucks store and 23 observed the continued presence of barriers that Plaintiff had previously identified. See Anderson 24 Decl. ¶¶ 10–24 (describing point of sale and pick up counters, restroom, and public seating areas). 25 Defendant has not identified any harm that it has suffered as a result of Ms. Anderson’s 26 subsequent visits, and in light of the limited scope of Ms. Anderson’s observations, all of which 27 28 7 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 correspond to previously identified barriers, the Court finds no harm to Defendant. See Doran v. 2 7-Eleven, Inc., 524 F.3d 1034, 1038 n.2 (9th Cir. 2008) (discussing district court’s denial of 3 motion to strike expert’s declaration based on unnoticed site inspections following close of expert 4 discovery). 5 In sum, the Court sustains Plaintiff’s objections to ¶¶ 9(A)–(D), 9(G), and 9(I) of Ms. 6 Blackseth’s declaration and overrules Defendant’s objections to ¶¶ 10–20 and 23 of Ms. 7 Anderson’s declaration. 8 9 B. Post-Renovation Barriers Title III of the ADA “prohibits discrimination on the basis of disability in the ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 11 United States District Court Northern District of California 10 anyplace of public accommodation’ with a nexus in interstate commerce.” Oliver v. Ralphs 12 Grocery Co., 654 F.3d 903, 904 (9th Cir. 2011) (quoting 42 U.S.C. §§ 2000a(b), 12182(a)). The 13 ADA requires that facilities altered after January 26, 1992, “be altered in such manner that the 14 altered portion of the facility is readily accessible to and usable by individuals with disabilities.” 15 28 C.F.R. § 35.151(b)(1). A facility is generally “readily accessible” within the meaning of the 16 ADA if it complies with the applicable Guidelines. Oliver, 654 F.3d at 905. Alterations to 17 facilities undertaken after March 15, 2012 are subject to the 2010 ADA Standards for Accessible 18 Design (“2010 Standards”). See 28 C.F.R. § 35.151(c)(5)(i); Fortyune v. City of Lomita, 766 F.3d 19 1098, 1103 (9th Cir. 2014). 20 Moreover, to prevail on a Title III discrimination claim, a plaintiff must show that (1) she 21 is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, 22 or operates a place of public accommodation; and (3) the plaintiff was denied full and equal 23 treatment by the defendant because of her disability. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 24 (9th Cir. 2007). 25 26 27 28 Here, Defendant does not dispute that Plaintiff would otherwise satisfy the elements of a Title III discrimination claim based on Plaintiff’s January 31, 2013 store visit, but contends that 8 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 Defendant’s renovations to the Starbucks store have brought all of Plaintiff’s identified barriers 2 into compliance with the 2010 Standards. As discussed above, the Court has excluded several 3 paragraphs of Defendant’s expert’s declaration as impermissible legal conclusions that cannot 4 support a finding of summary judgment. 5 Plaintiff contests whether Defendant’s renovations have actually brought the store into full 6 compliance with the 2010 Standards. More specifically, Plaintiff both opposes Defendant’s motion 7 for summary judgment and moves for summary judgment based on the presence of movable 8 displays and items that are placed on and near the counters that allegedly impede access to the 9 counters or apparently affect the corresponding width or length of the counters or pathways. The Court begins by addressing a legal dispute between the parties as to whether these movable objects 11 United States District Court Northern District of California 10 fall within an exception to the ADA Guidelines, before turning to the specific barriers at issue. 12 1. 28 C.F.R. § 36.211 13 The parties dispute whether “temporary” or “movable” objects that may cause a feature 14 like an access path or a counter to measure less than the legally required width or length constitute 15 actionable barriers to access. More specifically, Defendant argues that Plaintiff’s claims fail as a 16 matter of law because the “movable displays” of which Plaintiff complains are exempted by 17 § 36.211(b). Plaintiff contends that § 36.211(b) refers to only temporary barriers that are “due to 18 maintenance or repairs,” and cannot be read to cover the types of movable objects at issue in the 19 instant litigation, e.g., display baskets of goods that are placed near counters for patrons to view. 20 21 22 23 24 25 26 27 28 Section 36.211, titled “Maintenance of accessible features,” provides: (a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part. (b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 36.211 (emphasis added). Here, the Court concludes that Defendant’s interpretation of § 36.211(b) is contrary to the 9 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 plain language of the regulation. Section 36.211(a) requires that once a facility is brought into 2 compliance with the relevant standards, accessibility be maintained so that persons with 3 disabilities may continue to access and use the facility. Section 36.211(b) provides a narrow 4 exception for “isolated or temporary interruptions in service or access due to maintenance or 5 repairs.” (emphasis added). As Plaintiff correctly notes, the Department of Justice (“DOJ”) 6 responded to comments regarding the scope of § 36.211 in its section analysis during the 7 rulemaking process by stating that: 8 9 10 United States District Court Northern District of California 11 12 [A]llowing obstructions or “out of service” equipment to persist beyond a reasonable period of time would violate this part, as would repeated mechanical failures due to improper or inadequate maintenance. Failure of the public accommodation to ensure that accessible routes are properly maintained and free of obstructions, or failure to arrange prompt repair of inoperable elevators or other equipment intended to provide access, would also violate this part. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial 13 Facilities, 56 Fed. Reg. 35544-01 (July 26, 1991) (emphasis added). The Court agrees with 14 Plaintiff that § 36.211, as analyzed by the DOJ, does not create a wholesale exception to ADA 15 accessibility requirements if the obstruction is not permanently affixed to a surface. Read as a 16 whole, and in light of the DOJ’s commentary, the Court concludes that “temporary” should be 17 understood as referring to the duration of time an obstruction might exist, not whether the 18 obstruction might theoretically be movable. 19 Defendant argues only that the objects of which Plaintiff complains, display baskets and 20 21 items, are “movable” and therefore “temporary” under § 36.211. While Defendant uses the word “movable” interchangeably with “temporary” to describe the display baskets and other 22 obstructions placed on and around the point of sale counter, the Court finds no support for 23 Defendant’s interpretation of § 36.211 in either the language of the regulation itself or any other 24 legal authority. Moreover, the only other district court in this Circuit to specifically address this 25 issue similarly concluded that “nothing in the DOJ’s . . . commentaries or its technical assistance 26 27 28 10 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 materials—nor in the ADA itself, its implementing regulations or the ADA Accessibility 2 Guidelines . . . state or imply that ‘movable obstructions’ cannot violate the ADA.” Chapman v. 3 Pier 1 Imports (U.S.), Inc., 870 F. Supp. 2d 995, 1006 (E.D. Cal. 2012). The Court agrees with the 4 Chapman court that the term “temporary” as used in § 36.211 is more akin to “transitory,” because 5 the regulations require an “intention of removing [the barrier or obstruction] as soon as possible.” 6 See id. at 1008 (citing the DOJ’s 1993 Technical Assistance Manual). This interpretation 7 corresponds not only with the explicit analysis and explanation provided by the DOJ, but also 8 § 36.211(b)’s requirement that the temporary interruption in access be “due to maintenance and 9 repairs,” i.e., events that are intended to last for a determined period of time before ending. 10 In sum, the Court concludes that in order for a “temporary” obstruction to fall under the United States District Court Northern District of California 11 § 36.211(b) exception, the obstruction or interruption in service or access must be “due to 12 maintenance or repairs,” and requires more than a mere showing that the obstruction or barrier is 13 movable. Defendant has put forth no evidence or argument that the obstructions that Plaintiff 14 identifies are related to maintenance or repairs. The Court will address this defense in the context 15 of each barrier below, but as a general matter concludes that neither Defendant’s motion for 16 summary judgment nor opposition to Plaintiff’s motion for summary judgment can rely on 17 Defendant’s erroneous interpretation of the scope of § 36.211(b). 18 19 2. Individual Barriers a. Point of sale counter 20 In his FAC, Plaintiff alleges that the counter where patrons order and pay for drinks 21 (“point of sale”) does not conform to the 2010 Standards, which requires the counter be at least 36 22 inches long and a maximum of 36 inches tall. Defendant contends that the point of sale counter 23 now conforms to the 2010 Standards. In addition to arguing that the counter is an insufficient 24 length, Plaintiff also claims that the placement of large display baskets has created an “alcove” 25 that obstructs access to the counter. 26 27 28 Defendant has submitted Ms. Blackseth’s statement that the point of sale counter stands “at 11 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 a height of 34 inches with a length of 36 inches.” See Blackseth Second Decl. ¶¶ 8(D). In contrast, 2 Plaintiff’s expert, Ms. Anderson, states that the length of the service counter is “only 35 inches 3 measured between the two fixed obstructions at the counter.” Pl. Opp. at 3 (citing Anderson Decl. 4 ¶ 12.). Plaintiff further argues that the point of sale counter likely measures even less than 35 5 inches when taking into account other “reoccurring items relocated within the transaction service 6 counter area,” including “blackboard bins,” foodstuffs for sale such as bananas, cookies, and 7 candy, and “permanently displayed” consumer goods such as cash cards, music, and candy. See 8 Anderson Decl. ¶ 13; Pl. Reply at 5. When the counter is measured with these additional items 9 covering the counter surface, Ms. Anderson concluded the point of sale counter measured only 8 10 United States District Court Northern District of California 11 inches. See Pl. MSJ at 8; Anderson Decl. ¶ 13, Exh. E. Defendant argues that these objects and display items are “movable” and therefore 12 exempted under § 36.211(b). See Def. Opp. at 2 (citing Blackseth Second Decl. ¶ 8(D)). Ms. 13 Blackseth’s determination that the counter measures 36 inches appears to rely on the assumption 14 that “movable” objects are “temporary.” See Blackseth First Decl. ¶ 9(D) (“Allegations of non- 15 architectural items that may temporarily be placed [on the counter] . . . do not trigger violations of 16 access regulations.”). However, Defendant has put forth no evidence that the blackboard bins, 17 foodstuffs, or consumer goods placed on the point-of-sale counter are “due to maintenance or 18 repair,” or that these are “isolated” interruptions in access. 19 To the contrary, Defendant’s own designated representative, Antoinette Westerfelt, 20 testified that managers are instructed to place sale and promotional items, so-called “impulse 21 buys,” on the transaction counter. See Declaration of Tanya E. Moore in support of Plaintiff’s 22 motion for summary judgment (“Moore Decl.”), ECF No. 75-4, Exh. B (“Westerfelt Depo.”) at 23 26:21–27:16 (discussing instructions from “corporate” as to placement of sale and promotional 24 items on point of sale counter). In addition to this testimony, Plaintiff also notes that his expert, 25 Ms. Anderson, has made multiple visits to the store and that the point of sale counter “has always 26 measured less than the required 36 inches in length” due to the placement of fixed point objects 27 28 12 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 like the cash registers, and the various display and sale items. Pl. Reply at 5; Anderson Decl. ¶¶ 7– 2 13. 3 Additionally, Plaintiff also contends that Defendant’s placement of large baskets and 4 produce displays “created an alcove of more than 15 inches with a space of less than 60 inches 5 between the two side obstructions.” Anderson Decl. ¶ 16; Pl. MSJ at 14. According to Plaintiff, 6 these obstructions, placed in front of the point of sale counter, would prevent or severely hamper 7 an individual in a wheelchair from making a parallel approach to the counter. See Pl. MSJ at 15; 8 Declaration of Robert Kalani in support of motion for summary judgment (“Kalani Decl.”), ECF 9 No. 75-2, ¶ 13(a). The 2010 Standards require that “[w]here a clear floor or ground space is located in an alcove or otherwise confined on all or part of three sides, additional maneuvering 11 United States District Court Northern District of California 10 clearance shall be provided.” 2010 Standards 305.7. More specifically, where patrons are expected 12 to make a parallel approach into the alcove and the depth of the alcove is 15 inches or more, there 13 must be a minimum of 60 inches of width. 2010 Standards 205.7.2. 14 Other than its reliance on § 36.211(b)’s exemption for temporary barriers, Defendant does 15 not otherwise dispute or contest that the large baskets placed in front of the pick up counter would 16 create an alcove, that the width between the two objects was less than the required 60 inches, or 17 that Plaintiff would have difficulty maneuvering into the alcove. See Def. Opp. 2. In contrast, Ms. 18 Anderson measured the alcove created by the placement of the baskets and displays on both 19 November 13, 2014, and December 3, 2014, and concluded that the alcoves had a depth of greater 20 than 15 inches and a width of less than 60 inches. See Pl. MSJ at 14–15; Anderson Decl. ¶¶ 16, 17. 21 Here, the Court concludes that Defendant has failed to show “that there is an absence of 22 evidence to support” Plaintiff’s claim as to length of the point of sale counter or the alcoves 23 created by Defendant’s displays. See Celotex Corp., 477 U.S. at 325. The Court therefore denies 24 Defendant’s motion for summary judgment as to the point of sale counter. The Court further finds 25 that Plaintiff has put forth sufficient evidence to show that no reasonable trier of fact could 26 conclude that the point of sale counter satisfies the 36 inch length requirement or the minimum 60 27 13 28 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 inch alcove width requirement under the 2010 Standards. The Court therefore grants Plaintiff’s 2 motion for summary judgment as to the point of sale counter. 3 4 b. Ramp from the public way Plaintiff contends that the slope of the newly constructed exterior ramp exceeds the 5 percentage permitted under the 2010 Standards. Pl. MSJ at 17–18. The parties agree that under 6 2010 Standards 405.7.1, the ramp slope cannot exceed 2.08 percent. 7 Here, both parties’ experts measured the slope of the exterior ramp and came up with two 8 different measurements. Defendant’s expert, Ms. Blackseth, declares that the cross-slope is “less 9 than 2%” and that this cross-slope was “checked on October 29, 2014.” Blackseth First Decl. ¶ 9(F). In contrast, Plaintiff’s expert, Ms. Anderson, declares that she measured the cross-slope of 11 United States District Court Northern District of California 10 the ramp on November 13, 2014, and concludes that the cross-slope is 2.5 percent. Anderson Decl. 12 ¶ 18. While Plaintiff complains that Ms. Blackseth’s statement is insufficiently precise, the Court 13 concludes that there is a genuine dispute as to the cross-slope of the exterior ramp. 14 15 16 17 The Court therefore denies both Plaintiff’s and Defendant’s motions for summary judgment as to the ramp from the public way. c. Exterior seating area Defendant provides an exterior seating and dining area that includes a single designated 18 accessible table. Plaintiff moves for summary judgment on the grounds that given the number of 19 tables, umbrella stands, and chairs in the confined space, “there is no configuration that will allow 20 a minimum of 36 inches of clearance as required,” or the minimum of 30 inches by 48 inches of 21 clear ground space for the approach to the accessible table as required under the 2010 Standards. 22 Pl. MSJ at 18. 23 In moving for summary judgment, Defendant does not dispute that Plaintiff has identified 24 the applicable standards for required clearance (36 inches) or clear ground space (30 inches by 48 25 inches). Rather, Defendant relies on ¶ 9(G) of Ms. Blackseth’s declaration, which states that the 26 tables “are configured to meet access requirements and comply with all requirements including 27 28 14 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 clearances and turning space,” and are “movable.” Blackseth First Decl. ¶ 9(G). As discussed 2 above, the Court finds this paragraph to be an impermissible legal conclusion which provides no 3 factual support for Ms. Blackseth’s conclusion. Nor do the attached exhibits to Defendant’s reply 4 in support of its motion for summary judgment provide any additional evidence supporting 5 Defendant’s argument that the exterior seating area provides the required 36 inches of clearance 6 and clear ground space of 30 inches by 48 inches. See Def. Reply., Exh. A. In support of Plaintiff’s motion for summary judgment on this barrier, Plaintiff’s expert 8 describes the location of the accessible table in a “nook” in the furthest corner along an exterior 9 wall, provides a photograph of the placement and location of the various tables, umbrella stands, 10 and chairs, and concludes that given the number of objects within the walled-off exterior seating 11 United States District Court Northern District of California 7 area, it would be physically impossible to provide the requisite clearance and clear ground space. 12 See Anderson Decl. ¶ 19, Exh. K. This is sufficient evidence to support Plaintiff’s motion for 13 summary judgment as to the exterior seating area. Plaintiff has adduced specific evidence showing 14 that whether or not the tables are “movable,” it would be impossible, given the number of tables, 15 umbrella stands, and chairs located in the walled-off seating area, to configure the seating area to 16 provide the required clearance and clear ground space. As such, the Court finds that no reasonable 17 trier of fact could conclude that Defendant’s exterior seating area complies with the 2010 18 Standards or that the “movable” chairs, tables, and umbrella stands fall under the exception for 19 temporary obstructions under § 36.211(b). The Court therefore grants Plaintiff’s motion for 20 summary judgment as to the exterior seating area. 21 22 d. Interior Tables Plaintiff argues that the two designated interior tables are “improperly located” and “lack 23 amenities provided at non-accessible tables.” Pl. MSJ at 19. According to Plaintiff, the accessible 24 tables are “configured such that an individual in a wheelchair must face a wall (i.e., cannot face 25 ‘out’ to view the ongoings at the Store).” Id. Other patrons at the non-accessible tables have a 26 variety of seating options, including seats that allow them to view the store or interact with other 27 28 15 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 patrons. Id. Plaintiff contends that forcing disabled patrons to sit facing a wall when other patrons 2 have choices of whether to sit facing the store, other patrons, or the wall, is an unequal 3 accommodation that is different or separate from those provided to able-bodied patrons. Id. (citing 4 42 U.S.C. § 12182(b)(1)(A)(ii)–(iii)). 5 Defendant offers no contrary argument in either its motion for summary judgment or its 6 opposition to Plaintiff’s motion for summary judgment. While there appears to be no factual 7 dispute as to whether the designated accessible tables require a patron to face sitting a wall, the 8 Court finds that there is a genuine factual dispute as to whether the ability to sit facing the store is 9 a “privilege” or “service” offered to other patrons. Cf. Cristobal v. Siegel, 26 F.3d 1488, 1494–95 & n.4 (9th Cir. 1994) (district court must determine there are no material issues of fact even if 11 United States District Court Northern District of California 10 motion for summary judgment is unopposed). Plaintiff offers no authority, and the Court has 12 found none, concluding that the ability to sit facing the interior of a store is a “privilege” or 13 “service” as a matter of law. Plaintiff’s arguments in support of his motion for summary judgment 14 reveal that there is a genuine dispute of material fact as to whether choices in seating constitute a 15 “privilege” or “service.” It is also not evident based on Plaintiff’s evidence that no reasonable trier 16 of fact could conclude that the two accessible tables are not sufficiently equivalent 17 accommodations under Title III. 18 The Court therefore denies Plaintiff’s motion for summary judgment as to the 19 configuration of the interior tables. To the extent Defendant may believe it has moved for 20 summary judgment on this claim, the Court also denies Defendant’s motion. 21 22 e. Floor clearance at the fire extinguisher The parties do not dispute that the 2010 Standards require clear floor space at the fire 23 extinguisher to allow patrons in wheelchairs to access the fire extinguisher. Under the 2010 24 Standards, turning spaces must comply with either 304.3.1 for circular spaces or 304.3.2 for T- 25 shaped spaces. Defendant does not contest that the standard for T-shaped spaces is as follows: 26 27 28 16 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 2 3 4 The turning space shall be a T-shaped space within a 60 inch (1525 mm) square minimum with arms and base 36 inches (915 mm) wide minimum. Each arm of the T shall be clear of obstructions 12 inches (305 mm) minimum in each direction and the base shall be clear of obstructions 24 inches (610 mm) minimum. The space shall be permitted to include knee and toe clearance complying with 306 only at the end of either the base or one arm. 2010 Standards 304.3.2. 5 Defendant’s expert states that “clear floor space is provided at the fire extinguisher.” 6 Blackseth First Decl. ¶ 9(H). As discussed above, the Court finds this to be an unhelpful and 7 8 9 10 impermissible legal conclusion. In Ms. Blackseth’s second declaration, attached to Defendant’s opposition, she states that “more than 36 inches of clear floor space is provided in the area near the fire extinguisher.” Blackseth Second Decl. ¶ 8(H). Plaintiff’s expert states that the floor area at the fire extinguisher does not provide the minimum 36 inches of clear space to make a 60 inch “T” 11 United States District Court Northern District of California turn because there are display bins placed in front of the extinguisher and display shelving that 12 obstructs turning clearances. Anderson Decl. ¶ 21. Ms. Anderson also provides a photograph of 13 the fire extinguisher which depicts the obstructions described in her declaration. Id., Exh. N. 14 15 16 Here, the Court concludes that Defendant has failed to show “that there is an absence of evidence to support” Plaintiff’s claim as to the 36 inches of clear space required in front of the fire extinguisher. See Celotex Corp., 477 U.S. at 325. The Court therefore denies Defendant’s motion 17 for summary judgment as to the floor space in front of the fire extinguisher. 18 The Court also concludes that there is a genuine factual dispute as to whether there is 19 sufficient clear floor space in front of the fire extinguisher. It is not clear from Plaintiff’s evidence 20 whether the display baskets placed near the fire extinguisher might actually fall within 21 § 36.211(b)’s exception for temporary obstructions. See Anderson Decl., Exh. N. Unlike with the 22 displays in front of the point of sale counter, Plaintiff does not argue or otherwise provide any 23 evidence that Defendant regularly or intentionally places the baskets by the fire extinguisher. In 24 25 light of Ms. Blackseth’s conclusion that “more than 36 inches of clear floor space is provided,” the Court finds there is a genuine factual dispute. The Court therefore denies Plaintiff’s motion for 26 27 28 17 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 summary judgment as to the floor space in front of the fire extinguisher. 2 f. Proper transfer clearance in the restroom 3 Plaintiff argues that the freestanding trashcan placed in the accessible bathroom violates 4 the 2010 Standards for 48 inches of clear floor space required to approach any “element” in the 5 restroom and the 60 inch diameter floor space required for a wheelchair to turn around in the 6 restroom. 2010 Standards 603.2.1, 304; Pl. MSJ at 20. In both moving for summary judgment and in opposition to Plaintiff’s motion for summary 7 8 judgment, Defendant relies on Ms. Blackseth’s statement that: The store’s restroom complies with all access requirements including transfer clearance space in the toilet room. Plaintiff’s expert often references a ‘movable’ trash receptacle that is not an architectural ‘barrier’ for purposes of her measurements. This trash receptacle does not interfere with the lawful clear space that is provided for in the subject store’s restroom. 9 10 United States District Court Northern District of California 11 12 Blackseth Second Decl. ¶ 8(I). The Court finds this statement to be both unhelpful in determining 13 whether there is any factual support for Ms. Blackseth’s conclusion that the restroom satisfies 14 2010 Standards 603.2.1 and 304, and to be impermissible legal conclusions for the same reasons 15 the Court excluded ¶ 9(I) of Ms. Blackseth’s first declaration.1 Plaintiff’s expert states that during 16 her September 30, 2014 visit to the store, she noted the freestanding trashcan was within the 17 required 30 inch by 48 inch clear floor space of the toilet seat cover dispenser. Anderson Decl. ¶ 18 22. Ms. Anderson subsequently prepared an expert report stating there was insufficient 19 maneuvering room and recommended that Defendant install a recessed trashcan. Id. Following 20 renovations, Ms. Anderson again found the freestanding trashcan in the accessible bathroom, and 21 concluded that based on the size of the trashcan and size of the restroom, “there is no location 22 within the toiletroom where a free-standing trash receptacle can be located such that the clear floor 23 24 1 25 26 27 28 Ms. Blackseth’s statement regarding the transfer clearance in her first declaration ends after the first sentence quoted above. See Blackseth First Decl. ¶ 9(I). The Court has found ¶ 9(I) of Ms. Blackseth’s first declaration to be an impermissible legal conclusion. To the extent ¶ 8(I) of Ms. Blackseth’s second declaration is identical and also attempts to make a legal conclusion as to whether “movable” objects can constitute barriers, the Court similarly finds it to be impermissible. 18 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 2 space and/or maneuvering clearances will not be obstructed within the room.” Id. ¶ 24. Here, the Court denies Defendant’s motion for summary judgment as Plaintiff has put for 3 specific evidence supporting his claim that there is insufficient transfer clearance and maneuvering 4 space in the restroom. 5 Moreover, given the absence of competent evidence put forward by Defendant and the 6 specific evidence adduced by Plaintiff, the Court finds that no reasonable trier of fact could 7 conclude that the restroom complies with 2010 Standards 603.2.1 and 304. As discussed 8 previously, the fact that the trashcan is “movable” does not necessarily bring it within the scope of 9 § 36.211(b)’s exception. Additionally, the 2010 Standards require that a wheelchair user be able to access features, such as a toilet cover dispenser, and also be able to turn around within the 11 United States District Court Northern District of California 10 restroom in order to enter, exit, and otherwise use the facilities. As Plaintiff’s expert has stated, the 12 presence of the “movable” freestanding trashcan would always interfere with the required floor 13 space because there is no location where the trashcan could be placed that would allow an 14 individual in a wheelchair to both have the requisite floor space to approach an element, such as 15 the toilet cover dispenser, and also make a full circular turn. See Anderson Decl. ¶ 24. Defendant 16 has put forth no contrary evidence, only the legal conclusion that “movable” objections cannot 17 constitute architectural barriers. As the Court has already rejected that legal argument, the Court 18 grants Plaintiff’s motion for summary judgment as to the floor clearance and maneuvering 19 clearance in the restroom. 20 3. Injunctive Relief 21 Defendant makes two arguments as to why Plaintiff is not entitled to injunctive relief: (1) 22 that Plaintiff lacks standing to pursue injunctive relief; and (2) the alleged barriers no longer exist. 23 The Court addresses each argument in turn. 24 First, as to standing for injunctive relief, Defendant does not dispute that Plaintiff has 25 otherwise satisfied the Article III standing requirements of an injury-in-fact, causation, and 26 redressability. See Def. Opp. at 3; Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 27 28 19 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 (2010). Instead, Defendant argues only that Plaintiff has not established a likelihood of future 2 injury, as required to show standing to pursue injunctive relief. Standing for injunctive relief 3 under the ADA requires either (1) “demonstrating deterrence” or (2) “demonstrating injury-in-fact 4 coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1 Imports (U.S.) 5 Inc., 631 F.3d 939, 944 (9th Cir. 2011) (en banc). Here, Defendant contends that because Plaintiff resides 137.5 miles away from the 7 Starbucks store in question, Plaintiff cannot show an intent to return. See Def. Opp. at 3–4. While 8 distance is certainly a factor to consider in determining whether a plaintiff has demonstrated “an 9 intent to return to a noncompliant facility,” distance alone is insufficient to defeat injunctive 10 standing as a matter of law. See, e.g., Doran, 524 F.3d at 1037–38 (holding that plaintiff had 11 United States District Court Northern District of California 6 shown an intent to return to 7-Eleven 550 miles away from his home). Moreover, the Court finds that Plaintiff has put forth evidence demonstrating his intent to 12 13 return to the Starbucks store in Campbell. Plaintiff has testified that he has visited the store on 14 other occasions, and that the store is “conveniently located off the freeway.” Kalani Decl. ¶ 14. 15 Plaintiff states that he frequently visits the area where the store is located in order to meet with his 16 attorney, attends a yearly “Abilities Expo” in San Jose, attends meetings of the San Jose chapter of 17 the Californians for Disability Rights organization that holds meetings in San Jose, and has family 18 nearby that he visits regularly. Id. ¶ 15. Plaintiff has also testified that he will continue to patronize 19 the Starbucks store when he is in the area. Id. ¶ 17. These facts are sufficient to support a showing 20 that Plaintiff intends to return to the Starbucks store. See, e.g., Doran, 524 F.3d at 1037–38; D’Lil 21 v. Best Western Encina Lodge & Suites, 598 F.3d 1031, 1037 (9th Cir. 2008) (discussing similar 22 cases).2 The Court therefore concludes that Plaintiff has shown both an injury-in-fact based on his 23 24 2 26 In light of controlling Ninth Circuit authority on this question, the Court finds Defendant’s citations to contrary out-of-circuit district court cases to be unpersuasive. See Def. Opp. at 3–4. Moreover the two district court decisions from within this Circuit that Defendant cites pre-date the Ninth Circuit’s decisions in Doran and D’Lil. 27 20 25 28 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 2 January 2013 visit and an intent to return to the Starbucks store. Second, Defendant argues that Plaintiff is not entitled to injunctive relief as a matter of law 3 because the alleged barriers no longer exist. As the Court has granted summary judgment as to 4 some of Plaintiff’s claims and denied Defendant’s motion for summary judgment as to all 5 individual barriers, this argument lacks merit. See Def. MSJ at 3–4. 6 In sum, the Court finds that Plaintiff has standing to seek injunctive relief. 7 4. State law damages 8 Plaintiff contends he is entitled to damages under the Unruh Civil Rights Act (“Unruh 9 Act”). Under the Unruh Act, any violation of the ADA is an automatic violation of the Unruh Act. See Cal. Civ. Code § 51(f). In order to recover damages, a plaintiff must demonstrate that she 11 United States District Court Northern District of California 10 suffered difficulty, discomfort, or embarrassment as a result of her encounter with a barrier. Id. 12 § 55.56. Plaintiff contends that an Unruh Act plaintiff is entitled to a minimum of $4,000 in 13 statutory damages for a violation of the Unruh Act. Id. 52(a). Plaintiff seeks only $4,000 in the 14 instant case. See Pl. MSJ at 22. 15 Defendant moves for summary judgment as to Plaintiff’s damages on the grounds that 16 Plaintiff is not entitled to damages following Defendant’s renovations to the store. According to 17 Defendant, as no barriers currently exist, Plaintiff is not entitled to damages under the Unruh Act. 18 See Def. MSJ at 5; Def. Opp. at 5–6. Putting aside whether Plaintiff would still be entitled to 19 damages for past violations of the ADA under the Unruh Act, the Court finds that Plaintiff is 20 entitled to damages under the Unruh Act for the still existing violations of the ADA. The Court 21 has granted summary judgment in favor of Plaintiff as to three alleged noncompliant aspects of the 22 store: the point of sale counter, the exterior seating, and the restroom. Defendant does not argue 23 that Plaintiff would not be entitled to damages under the Unruh Act for violations of the ADA that 24 were not remedied by the September and October 2014 renovations. The Court therefore denies 25 Defendant’s motion for summary judgment as to damages. 26 27 28 In the instant case, the Court finds that Plaintiff has sufficiently shown both ongoing and 21 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 past violations of the ADA. Moreover, Plaintiff has also shown that he suffered embarrassment 2 because he was unable to order, pay for, or reach for his drink, and encountered barriers in the 3 path of travel from the parking space to the store. See Pl. MSJ at 22–23; Kalani Decl. ¶¶ 11–12 4 (describing humiliating experience). As such, Plaintiff is entitled to damages under the Unruh Act. 5 See Cal. Civ. Code §§ 51(f), 55.56. Plaintiff seeks only $4,000, which the Court awards. 6 IV. CONCLUSION 7 For the foregoing reasons, the Court DENIES Defendant’s motion for summary judgment. 8 The Court GRANTS in part and DENIES in part Plaintiff’s motion for summary judgment as 9 follows: 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 The Court GRANTS Plaintiff’s motion for summary judgment that Defendant’s point of sale counter does not comply with the 2010 Standards. The Court DENIES Plaintiff’s motion for summary judgment that Defendant’s exterior ramp does not comply with the 2010 Standards. The Court GRANTS Plaintiff’s motion for summary judgment that Defendant’s exterior seating area does not comply with the 2010 Standards. The Court DENIES Plaintiff’s motion for summary judgment that Defendant’s interior seating area does not comply with the ADA. The Court DENIES Plaintiff’s motion for summary judgment that Defendant’s fire extinguisher approach area does not comply with the 2010 Standards. The Court GRANTS Plaintiff’s motion for summary judgment that Defendant’s restroom does not comply with the 2010 Standards. As Plaintiff has prevailed in showing violations of the ADA, Plaintiff is also entitled to 23 damages under the Unruh Act. The Court awards Plaintiff the requested award of $4,000. Plaintiff 24 is also entitled to injunctive relief as to his claims regarding the point of sale counter, the exterior 25 seating area, and the restroom. 26 27 28 22 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 IT IS SO ORDERED. 2 Dated: February 25, 2015 3 4 ______________________________________ LUCY H. KOH United States District Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Case No.: 13-CV-00734-LHK ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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