Strong v. Walgreen Co. et al

Filing 125

FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER: Defendants' Motion to Strike (Doc. 116 ) Plaintiff's post-trial submissions is DENIED. Defendants' Motion to Strike (Doc. 108 ) certain evidence outside the scope of the final pretrial conference order is GRANTED. The following motions are denied as moot: Defendants' Motion for Judgment as a Matter of Law (Doc. 109 ), Plaintiff's Motion to Strike Legal Conclusions from Kim Blackseth's Testimony (Doc. 115 ) and Plai ntiff's Motion for Judgment on Partial Findings (Doc. 114 ). The Clerk of the Court shall enter judgment in favor of Defendants and against Plaintiff as to all claims. Any request for attorneys' fees shall be made by separate motion in accordance with Federal Rule of Civil Procedure 54(d)(2) within thirty (30) days of the date of this Order. Signed by Judge William Q. Hayes on 5/9/2013. (mdc)

FILED

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MAY - 9 2013

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MATTHEW STRONG,

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vs.

CASE NO. 09cv611 WQH
(WVO)

Plaintiff,

FINDINGS OF FACT AND
CONCLUSIONS OF LAW;
ORDER

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WALGREEN CO., doing business as
Walgreens; and RUDOL'PH BRAGG,
Trustee of the BraM Family Trust,
Dated April 22, 1gg2,

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Defendants.

1711 HAYES, Judge:
18 II

The matter before the Court is the Findings of Fact and Conclusions of Law

19 II pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. The following motions
20 II are also before the Court: (1) Defendants' Motion to Strike Evidence (ECF No. 108);
21 II (2) Defendants' Motion for Judgment as a Matter of Law (ECF No.1 09); (3) Plaintiff s

2211 Motion for Judgment on Partial Findings (ECF No. 114); (4) Plaintiffs Motion to
23 II Strike Legal Conclusions from Kim Blackseth's Testimony (ECF No. 115); and (5)
24 II Defendants' Motion to Strike Plaintiff s Post-Trial Motions and Proposed Findings of

2511 Fact/Conclusions of Law (ECF No. 116).
26

27

PROCEDURAL mSTORY
On March 25, 2009, Plaintiff Matt Strong initiated this action by filing a

2811 complaint against Defendants Walgreen Co., doing business as Walgreens
1-

09cv611 WQH (WVG)

111 ("Walgreens"), and Rudolf Bragg, Trustee of the Bragg Family Trust (collectively

211 "Defendants") (ECF No.1).
3 II

On April 28, 2011, Plaintiff filed the First Amended Complaint - the operative

4" complaint in this case - against Defendants.

(ECF No. 64). Plaintiff alleges that the

5 II Walgreens store ("Store"), located at 215 North 2nd Street in EI Cajon, California, is

611 a public sales or retail establishment designed or constructed after January 26, 1992,
711 and is not fully accessible to him because of architectural barriers.

Id. at 2, 7. Plaintiff

8 II alleges claims against Defendants for violation of the Americans with Disabilities Act

911 ("ADA"), the California Disabled Persons Act, the California Unruh Act, and the
10 II California Health and Safety Code. Plaintiff seeks injunctive relief; declaratory relief;

11 II attorney's fees, costs, and legal expenses; the statutory minimum damages; and interest.
12 II

On November 8, 2011, the Court granted Defendants' motion for summary

13 II judgment on Plaintiff s first claim for violation of the ADA with respect to the
14 II following alleged architectural barriers: (1) the lack of a marked crossing in the parking

15 II lot; (2) an incorrect sign in the van accessible parking space; (3) the location of
16 II detectable warnings; (4) the lack of a designated checkstand for the disabled open at

17 II all times; (5) the lack of a self-closing restroom door; (6) a toilet paper dispenser which
18 II protrudes into the clear maneuvering space needed to access the water closet; (7) the

19 II front roll of toilet paper located more than twelve inches from the water closet; (8) the
20

II lack of access to the disposable seat cover dispenser in the bathroom; (9) improperly

21 II or incompletely wrapped pipes in the bathroom; and (10) insufficient strike side

2211 clearance on the pull-side of the restroom door. (ECF No. 74 at 19). The motion for
2311 summary judgment was denied as to Plaintiffs ADA claim with respect to the
24

II following alleged architectural barriers: (1) the disabled parking spaces are not outlined

25

II in white; (2) improper slope in the disabled parking spaces and access aisles; and (3)

26 II the toilet paper dispenser contains sharp edges. Id. at 17. With respect to the exercise
27 II of supplemental jurisdiction over Plaintiff s remaining state law claims, the Court

2811 issued the following Order to Show Cause:
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09cv611 WQH r,wvG)

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6 ..

Plaintiff has also alleged several barriers relating to the three state law
claims of (1) violation of the California Disabled Persons Act, (2)
violation of the California Unruh Actha.Rd (3) violation of the California
Health and Safety Code. Plaintiff is OKl.JERED TO SHOW CAUSE why
the Court should continue to exercise supplemental jurisdiction over
Plaintiff s state claims by no later than twenfy days from the date of this
Order. Defendants may respond by no later than ten days from the date
that Plaintiff s response to the order to show cause is filed.
[d. at 19. The parties responded to the Order to Show Cause with additional briefing.

(ECF Nos. 75, 76, 78).
7

On May 30,2012, the Court issued the Final Pretrial Order. (ECF No. 87). The
8

Final Pretrial Order set forth the following issues of fact and law, and no others, which

911

1011
11
1211

1311

remained to be litigated at trial: (l) whether the following conditions constitute barriers
to access, exist(ed) at the Store, and violate state or federal law: a) there is no marked
crossing where the accessible route crosses the vehicular way; b) the signage posted
at the van accessible parking space is incorrect; c) the slopes and cross slopes of the
disabled parking spaces to the north side of the Store exceed 2.0%; d) the slopes and

1411

cross slopes of the access aisle(s) to the north side of the Store exceed 2.0%; e) the
1511
1611

disabled parking spaces are not outlined in white; f) the detectable warnings are located
on the ramp rather than prior to it; g) there are no check stands designated as being

17

accessible to the disabled and open at all times for persons with disabilities; h) the
1811
19

2011
21

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23
2411

25
2611
2711

restroom door is not self-closing; i) the toilet tissue dispenser protrudes in to the clear
maneuvering space needed to access the water closet; j) the toilet tissue dispenser
contains sharp edges; k) if having to use the front roll of toilet tissue, it is located more
than twelve inches from the front of the water closet; 1) the water closet is an
obstruction to the use of the disposable seat cover dispenser; m) the pipes underneath
the lavatory are improperly and/or incompletely wrapped; n) there is insufficient strike
side clearance on the pull-side of the restroom door; (2) whether Plaintiff visited the
Store and was denied "full and equal" enjoyment and use because of his disability; (3)
whether Plaintiff was deterred from visiting the Store because of actual knowledge that
the Store denied him "full and equal" enjoyment and use; (4) whether the slopes and

28

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09cv611 WQH (WVG)

1 II cross slopes of the disabled parking spaces to the north side of the Store violate the
211 ADA Accessibility Guidelines, constitute a barrier to access, and exceed the

3 II construction industry tolerance for field conditions; (5) whether the slopes and cross
4 II slopes of the access aisle( s) to the north side of the Store violate the AD A Accessibility

5 II Guidelines, constitute a barrier to access and exceed the construction industry tolerance

611 for field conditions; (6) whether the disabled parking spaces are not outlined in white
71\ and/or whether that condition violates the ADA or any other disabled accessibility
8 II requirement; (7) whether the toilet tissue dispenser contains sharp edges and whether

911 said condition violates the ADA or any other disabled accessibility requirement; (8)
10 1\ whether a violation or violations of one or more construction-related accessibility
1111 standards denied Plaintiff full and equal access to the Store; and (9) whether Plaintiff

12 II personally encountered one or more construction-related accessibility violations as that
13 II phrase is defined in Civil Code section 55.56. ld. at 6-9.

1411

On November 8,2012, the Court held a motions in limine! hearing, followed by

15 II a bench trial. At the conclusion of the bench trial, the Court ordered the parties to file
16 II any motions to strike and/or motions to dismiss, as well as proposed findings of fact

171\ and conclusions of law, by January 28,2013. (ECF No. 104).
18 II

On January 28, 2013, Defendants filed: (1) Proposed Findings of Fact and

19 II Conclusions of Law (ECF No. 110); (2) a Motion for Judgment as a Matter of Law
20 II pursuant to Federal Rule of Civil Procedure 50 (a) (ECF No. 109); and (3) a Motion to

21 II Strike Evidence "concerning alleged accessibility issues that were not identified in the
22 II Final Pre-Trial Order" (ECF No. 108).

2311

On January 31, 2013, Plaintiff filed: (1) Proposed Findings of Fact and

24" Conclusions of Law (ECF No. 113); (2) a Motion for Judgment on Partial Findings
25

IOn August 27,2012, the parties filed motions in limine. (ECF Nos. 88 89, 90,
91). On September 4,2012, the parties filed oppositions. On November 8,2b12, the
271\ Court granfed Plaintiffs unopp.0sed motion in limine to exclude un.pled affirmative
defenses (ECF No. 88), and denied the remaining motions in limine (ECF Nos. 89,90,
28 II 91) without prejudice and subject to renewal as motions to strike filed at the conclusion
of trial.
2611

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09cv611 WQH (WVG)

1 II

pursuant to Federal Rule of Civil Procedure 52(c) (ECF No. 114); and (3) a Motion to

211 Strike Legal Conclusions from Kim Blackseth's Testimony (ECF No. 115).

311

On February 4, 2013, Defendants filed a Motion to Strike (ECF No. 116),

4 II requesting that the Court strike Plaintiff's post-trial motions and Proposed Findings of

511 Fact and Conclusions of Law as untimely. (ECF No. 116).

611

On February 18,2013, Plaintiff filed: (1) an opposition to the Motion to Strike

711 Plaintiffs post-trial motions and Proposed Findings of Fact and Conclusions of Law

811 as untimely (ECF No. 121); (2) an opposition to the Motion for Judgment on Partial

911 Findings (ECF No. 120); and (3) an opposition to the Motion to Strike "certain

10 II accessibility issues that were not identified in the Final Pre-Trial Order" (ECF No.

1111 122). On February 18, 2013, Defendants filed: (1) an opposition to the Motion for

12 II Judgment on Partial findings (ECF No. 123-1); and (2) an opposition to the Motion to

13 II Strike Legal Conclusions from Kim Blackseth's Testimony (ECF No. 123).

1411

On February 20,2013, Plaintiff filed a Request for Judicial Notice of Doran v.

1511 7-Eleven, No. 11-55619,2013 WL 602251 (9th Cir. Feb. 19,2013). (ECF No 124).

16" That request is granted. See Lee v. City of Los Angeles, 250 F. 3d 668, 689 (9th Cir.

1711 2001).

1811

1911

FINDINGS OF FACT

Plaintiff, a quadriplegic, is disabled under the ADA and California law. At the

20 II time Defendants answered Plaintiffs Complaint, Walgreens owned, operated,

21 II managed, and/or leased the Store, which is located at 215 North 2nd Street, EI Cajon,

22 II CA, 92021. Walgreens provides goods, services, facilities, privileges, advantages, or

23 II accommodations at the Store. The Store is a sales or retail establishment, open to the

24 II public, which is intended for nonresidential use and whose operation affects commerce.

25 II The Store is a business establishment under California Civil Code sections 51 and 51.5,

2611 and a place of public accommodation as defined by 42 U.S.C. section 1218(7). The

2711 Store was designed and constructed for first occupancy after January 26, 1993.

28 II

Plaintiff submitted four receipts into evidence showing that he purchased

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09cv611 WQH (WVO)

1.

several items at the Store with cash in February and March of 2009. (ECF No. 107 at

2 I 14); Exh. 2. Plaintiff testified that he traveled and continues to travel to the Store either
3 I by wheelchair or public bus in order to purchase household items. (ECF No.1 07 at 12,

411 29-30). Plaintiff testified that he visited the Store on November 7, 2012, the day before

5 II trial, and that he intends to return to the Store in the future. [d. at 11, 18.

611

Plaintiff testified that as he crossed though the Store's disabled parking spaces

7 lion his way to the Store's entrance, the elevation of the surface changed and the wheels
8 II of his mechanized wheelchair lifted off the ground. [d. at 21. Plaintiff testified that no
9 II marked crossing existed from the vehicular way to the Store on his first visit in

10 II February of 2009~ Plaintiff testified that he noticed a marked crossing from the

1111 vehicular way to the Store for the first time on his November 7,2012 visit. [d. at 19­
12 II 20, 48, 70. Plaintiff testified that there was a "van accessible sign" by the parking
13 II spaces at the Store which he found "confusing" because it was also a disabled parking

1411 sign. [d. at 20. Plaintiff testified that there were no detectible warnings on any of the
15 II ramps in the parking lot leading to the store. [d. at 39-40. Plaintiff testified that, in the

16 II restroom of the Store, the location of the toilet seat cover dispenser was too high for

17 II him to reach; the sharp edges on the toilet paper dispenser prevented him from taking
18 II any toilet paper to wipe off his leg bag; there were unwrapped hot water pipes that

1911 prevented him from washing his hands; and he had difficulty leaving the restroom
20 II because the door was locked. [d. at 32, 34-35, 59-60. Plaintiff testified that no register

2111 in the Store was marked as accessible for the disabled, and that he had to throw his
22 II items onto the counter in order to pay, which was "a pain" and "difficult." [d. at 38-39.
23 II

Plaintiff testified that there was a sign hanging from the ceiling of the Store which

24 II indicated a checkout register for the disabled on his November 7, 2012 visit. [d. at 72.
25 II

Defendant's expert witness and disabled access consultant, Kim Blackseth,

26 II testified that he inspected the Store on two occasions: first on August 17, 2009, and

2711 again on November 7, 2012, the day before trial. [d. at 79, 118. Blackseth testified
28 II that he prepared two expert reports related to this case: (1) an independent report dated

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09cv611 WQH (WVG)

111 October 14, 2009, which was based upon his August 17, 2009 inspection; and (2) a
2 II report purporting to rebut a report prepared by Plaintiff s designated expert witness,
3 II Reed Settle, who was not called to testify. Id. at 75. Blackseth testified regarding
4 II observations he made and measurements he took of the Store's facilities, and provided
511 his expert opinion as to the Store's compliance with the relevant state and federal
6 II accessibility guidelines, i.e. the Americans with Disability and Accessibility Guidelines
7 II and the California Building Code.
8 II

Lance Zwanck, manager of the Store during all of 2009, testified regarding the

9 II checkout counters at the front of the store and the checkout stands in the pharmacy.

10 II Id. at 179-184. Zwanck testified that there were four checkout counters at the front of
11

II the Store, one of which was "a bit lower than the others" and was always open. Id. at

1211179-180.
13

II

Harold Hanson, a retired California Highway Patrolman, testified that he went

14 II to the Store on November 7, 2012 at the direction of Plaintiff and took photographs of
1511 the Store's checkout counters. Id. at 186-192; Exhs. 9-3,9-4,9-6,9-9.
16 II

CONCLUSIONS OF LAW 2

1711 I.

Defendants' Motion to Strike (ECF No. 108) Evidence Regarding

18

Accessibility Issues Not Identified in the Final Pretrial Order

19

Defendants move to strike evidence introduced at trial regarding "the tow-away

20

21

2Defendants contend that the Court should strike Plaintiffs post-trial motions
22 II and progosed findings of fact and conclusions oflaw because the documents were filed
late. (ECF No. 116 at 1-2). Plaintiff asserts that he intended to request an extension
2311 until January 31, 2013c-? the d~y the documents were filed; but "rain and flooding [in
Hawaii] prevented :>cott Hubbard[, counsel for Plaintiff,] from effectively
2411 communicating with the associate attorney..... " (ECF No. 121 at 2).
Plaintiff filed his post-trial motions and proposed findmgs of fact and
2511 conclusions of law on January 31, 2013, one day after the January 3U, 2013 deadline
imp'osed by the Court; however Defendants have not asserted, and the Court does not
26 II fino, any prejudice as a result ofthat one-day delay. The Court will decline to exercise
its discretIon to strike Plaintiffs post-trial motions and proposed findings of fact and
27 II conclusions oflaw. See Fantasy, Inc. v. Fogerry, 984 F.2d 1524, 1528 (9th Cir. 1993)
(stating that whether to grant a motion to strike lies within the sound discretion of the
2811 districf court) (citing Feu. R. Civ. P. 12(f). The Motion to Strike (ECF No. 116) filed
by Defendants is denied.
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09cv611 WQH (WVG)

111 signage (Trial Transcript 85:3-86:1-25,88:20-90:1-16) and [the] counters located in

211 the pharmacy department (TT 100:16-103:2)." (ECF No. 108 at 1). Defendants
3"

contend that evidence relating to the tow-away sign and the pharmacy counters issues

4 II is not relevant because "these conditions are not identified in the Final Pre-Trial Order

511 as issues in the trial." ld. at 2-3. Defendants assert that the Court denied Plaintiff's
6 II request to add the tow-away sign and pharmacy counters as alleged barriers of access

711 to Plaintiffs original complaint. ld.

811
9

Plaintiff contends that the tow-away sign and pharmacy counter issues are

II encompassed by the Final Pretrial Order. Plaintiff asserts that the Final Pretrial Order

10 II "identifies improper signage at the van accessible parking space," and contends that

1111 "tow away signage is one of the signs that must be posted above the van accessible
1211 parking spaces." (ECF No. 122 at 2) (emphasis in original). Plaintiff asserts that the
13

II Final Pretrial Order "identified ... no checkstands designated as being open or

1411 accessible to the disabled," and contends that "Lance Zwanck testified that the

1511 pharmacy also had a checkstand counter so the lack of signage at that counter was
1611 included in the pretrial order, too." ld. "Long story short," Plaintiff asserts, "the Ninth
17 II Circuit has instructed district courts to liberally construe the pretrial order to permit

1811 trial of issues reasonably embraced within its language." ld.
1911
20

"The court may hold a final pretrial conference to formulate a trial plan,

II including a plan to facilitate the admission of evidence." Fed. R. Civ. P. 16(e). "A

2111 Rule 16(e) order controls the subsequent course of action in the litigation unless it is
2211 modified by a subsequent order. Although we liberally construe pretrial orders, a
23

II theory will be barred if not at least implicitly included in the order." Eagle v. Am. Tel.

2411 & Tel. Co., 769 F.2d 541,548 (9th Cir. 1985) (citing United States v. First National
2511 Bank of Circle, 652 F.2d 882, 886 (9th Cir. 1981); Fed. R. Civ. P. 16(e».
26

II

On February 18, 2011, Plaintiff filed a motion for leave to file a first amended

27

II complaint, seeking to add, inter alia, allegations of 19 barriers to access which were

28 II not alleged in the original complaint - including allegations that "the tow away sign
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1 II

is incorrect" and "there is no lowered portion of the pharmacy counter." (ECF No. 48).

211 On April 18, 2011, the Court denied Plaintiff's request for leave to add the 19 new
3

II barriers to the First Amended Complaint. (ECF No. 63 at 7-8). On May 30, 2012, the

4 II Court issued the Final Pretrial Order, which identified the issues of fact and law to be

5 II litigated at trial and stated that "no other" issues, besides those expressly identified in
6

II the Order, remained to be litigated; the tow-away sign and pharmacy counter issues

7 II were not identified in the Final Pretrial Order. (ECF No. 87 at 6, 12). Based upon the

8 II factual allegations of the First Amended Complaint, the plain language of the Final
9 II Pretrial Order, and the procedural history of this case, the Court finds that the tow away
10 II sign and pharmacy counter issues were not "implicitly included in the pretrial order."

1111 Eagle, 769 F.2d at 548 ("We find that the tax liability theory was not implicit in the
1211 pretrial order. [Plaintiff's] initial and amended complaints allege that the minority

13 II shareholders were injured by the refund [the defendant] was ordered to pay. Neither
1411 complaint mentions the tax liability."). The Motion to Strike (ECF No. 108) filed by

15 II Defendants is granted.

1611 II.

Plaintiff's Americans with Disabilities Act Claims

17 II

Title III ofthe ADA prohibits discrimination "on the basis ofdisability in the full

18 II and equal enjoyment of the goods, services, facilities, privileges, advantages, or

1911 accommodations of any place of public accommodation by any person who owns,
20

II leases (or leases to), or operates a place of public accommodation." 42 U.S.C. §

21 II 12182(a). To establish a violation of the ADA, Plaintiff must show that (1) he is

22 II "disabled"; (2) Defendants own, lease, or operate a "public accommodation"; and (3)
23

II he was denied full and equal treatment because of his disability. See Molski v. M.J.

24 II Cable, 481 F.3d 724, 730 (9th Cir. 2007). The parties do not dispute that Plaintiff is
25
26

27

II "disabled" and the Store is a "place of public accommodation" within the meaning of
the ADA.
The ADA Accessibility Guidelines ("ADAAG") "provides the objective contours

2811 of the standard that architectural features must not impede disabled individuals' full
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09cv611 WQH (WVG)

1 II

and equal enjoyment of accommodations." Chapman v. Pier 1 Imports (U.S.), Inc., 631

211 F.3d 939, 945 (9th Cir. 2011) (en banc); 41 C.F.R. Subpart 101-19 .6 App. A. "If a
3 II particular architectural feature of a place of public accommodation is inconsistent with

411 the ADAAG, a plaintiff can bring a civil action claiming that the feature constitutes a
5 II barrier that denies the plaintiff full and equal enjoyment of the premises in violation of

611 the ADA." Oliverv. Ralphs Grocery Co., 654 F.3d 903,905 (9th Cir. 2011)(citing 42
7 II U.S.C. §§ 2000a-3(a), 12188(a)(2)). "The ADAAG's requirements are as precise as

8 II they are thorough, and the difference between compliance and noncompliance with the
9 II standard of full and equal enjoyment established by the ADA is often a matter of
10 II inches." Chapman, 631 F.3d at 945-46; see also, e.g., ADAAG § 4.16.4 (requiring
11 " grab bar behind water closets to be at least thirty-six inches long); ADAAG § 4.19.6

12 II ("Mirrors shall be mounted with the bottom edge of the reflecting surface no higher
13 II than 40 in (lOIS mm) above the finish floor .... ").

1411

A plaintiff has sufficient personal stake in the outcome of an ADA claim only

15 II to the extent that the alleged barrier relates to the plaintiff's personal disability.

16" Chapman, 631 F.3d at 947; see also Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1044 n.

1711 7 (9th Cir. 2008) (explaining that a wheelchair-dependent plaintiff "may challenge
1811 only those barriers that might reasonably affect a wheelchair user's full enjoyment of
19 II the store"); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000) (holding that a
20 II plaintiff who is not blind lacks standing to sue for ADA violations that only affect the

21 II blind).
22 II

With respect to Plaintiffs ADA claim, the following alleged barriers of access

23 II remain at issue: (l) improper slope in the disabled parking spaces and access aisles; (2)

24 II the toilet paper dispenser contains sharp edges; and (3) the disabled parking spaces are
25" not outlined in white. See ECF No. 74 at 17 (order denying Plaintiff's motion for

2611 summary judgment and granting in part Defendants' motion for summary judgment);
27 II ECF No. 87 (Final Pretrial Order).

2811/1
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1 II

A.

2 II
3 II

Slopes and cross slopes of the disabled parking spaces and access
aisles

"A cross slope that is too steep can cause a wheelchair occupant to have difficult

411 steering and, in extreme cases, cause the wheelchair to overturn."

Hubbard v.

511 7-Eleven, Inc., 433 F. Supp. 2d 1134, 1137 (S.D. Cal. 2006) (citing Parr v. L & L

611 Drive-Inn Rest., 96F. Supp. 2d 1065,1087 (D. Haw. 2000». Pursuantto the ADAAG,

7 II "[p]arking spaces and access aisles shall be level with surface slopes not exceeding

8 II 1:50 (2%) in all directions." 28 C.F.R. part 36, App. D, § 4.6.3; see also 28 C.F.R. part

911 36 § 4.3.7; Hubbard, 433 F. Supp. 2d at 1137 ("Under the federal law, a cross slope of

10 II an accessible route cannot exceed 1:50, or 2%.").

11 II

The ADAAG further provides that "[a]U dimensions are subject to conventional

1211 building industry tolerances for field conditions." 28 C.F.R. part 36, App. D, § 3.2.

13 II "This is intended to allow for construction tolerances, such as variations based on field,

1411 material, manufacturing and workmanship conditions." Cherry v. City Coli. of San

1511 Francisco, C 04-04981 WHA, 2006 WL 6602454, *5 (N.D. Cal. Jan. 12,2006). The

16" district court in Cherry explained:

17
18
19

[T]he burden is on plaintiffs to prove that the variance exceeds the
allowed tolerance. It is not enough to simply show that a particular
bathroom stall, for examQle, is less than the required WIdth. The
agproximate extent of any Shortfall must be proven. Arid, the dimensional
toferance at the time of construction must be proven.

20 II Cherry, 2006 WL 6602454 at *6.

2111

Plaintiff testified that, on each of his visits, he crossed though disabled parking

22 II spaces on the north side of the Store and, as he approached the entrance, "the elevation
23 II on the parking lot change[d] ... [,] lifting [his] chair off the ground." (ECF No. 107 at

24 II 21). When Plaintiff was asked whether the elevation change "makes it difficult for you
25 II to cross those spaces," Plaintiff responded: "It is unsafe." Id. Plaintiff testified that it

2611 is difficult for him to control his wheelchair when he has only two wheels on the
27 II ground.
28 II

Id. at 69. Plaintiff testified that he noticed no difference in the elevation of the

disabled parking spaces when he visited the Store the day before trial because his
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09cv61 J WQH (WVG)

1 II wheels still lifted off the ground when he traveled over the slopes. [d. at 57. Plaintiff
2 II estimated that his wheels lift "a foot" off of the ground as he travels over the disabled

3 II parking space to the right of the access aisle. [d. at 58. 3

411

Blackseth testified that he made several measurements of the slopes of the

5 II disabled parking spots and access aisles in the Store's parking lot area. [d. at 94.
6

II Blackseth testified that his August 17,2009 measurements indicated slopes ofbetween

7

II 2% and 2.9%. [d. at 95. Blackseth testified that he "'found no condition ... that

811 exceeded two percent [slope] ... " during his November 7, 2012 inspection. 4 [d. at 129.
911 Blackseth testified that he "would find it inconceivable that [his] wheels would leave
10 II the ground at anything ... under four or five percent [slope]." [d. at 132. Blackseth

11 II testified that he has never experienced a situation in his entire life in a motorized

1211 wheelchair where his wheels raised a foot off of the ground. [d. at 133. Blackseth
13 II testified that if he were traveling on his motorized wheelchair over a 2.9% slope, the

1411 slope would be "imperceptible" to him without measuring equipment. [d. at 132.
15

Blackseth testified that his motorized wheelchair is similar to Plaintiff's wheelchair.

16

Regarding the slopes ofparking spaces and access aisles generally, Blackseth testified:

17

Both the federal and state requirements prohibit anY!hing that exceeds two
percent [slope] in any direction .... Both the federal and the state codes[,
I.e. the ADA and the California Building Code,] have identical language.
They are in my report, but to paraphrase, it talks about the measurements
are to be withm quote-unquote, normal construction industry standards,
end quote ....

18
19
20

21

rWhat this means is that] it is relative to the work you are doing. Clearly
the construction - as a general contractor for many years, the tolerances
that you use when you are framing are different tIian the tolerances you

22
23

3The Court did not receive the photographs numbered 84 and 86 on Exhibit 3-3

24 II into evidence.

4Plaintiff objected to Defendants' questioning of Blackseth about his November
7 2012 inspection as "bey:ond his scope of expert disclosure." (ECF No. 107 at 123).
26 /I The Court overruled that objection and stated that "you can address it in the [post-trial]
briefing." [d. at 124. At the conclusion of the bench trial, the Court instructed the
27 II parties file any "motions to strikeJ motions to dismiss, ... and your initial proposed
findings of fact and conclusions or law" by January 28 2013. rd. at 193. The record
28 II reflects that Plaintiff did not file any motion to striKe Blackseth's testimony regarding
his November 7, 2012 inspection.

25 II

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09cv611 WQH (WVG)

1
2

3
4

~se ~hen yqu are hanging

IS trymg to Imply.

cabinet work, and that is what the code section

We're usiJ:!g asphalt which is elastic and it swells. It is not a precision
material. In my experience both as a contractor and as an expert, one
percent, an 8th of an inch per foot, is a fairly exacting standard in my
opinion within normal construction industry standards.

5 II Id. at 130-31. Blackseth based his testimony regarding the constructional tolerance of
6

asphalt on "[his] experience working with the material[, his] experience as an expert

7

in this field for 20 some years[, his] experience as a user of those spaces, in a

8

wheelchair, but primarily [his] experience as a general contractor." Id. at 159.

9

The testimony on this issue is inconsistent. Blackseth testified that the slopes

10

and cross-slopes at the Store were as steep as 2.9% on August 17, 2009, but did not

11

exceed 2.0% on November 7, 2012. On the other hand, Plaintiff testified that the

12

slopes and cross-slopes remained unchanged between his 2009 visits and his November

13

7, 2012 visit. The Court finds Blackseth' s testimony to be more reliable and believable

14

than Plaintiff s testimony on this issue for two main reasons. First, Blackseth's

15

testimony was based upon measurements that he took with sophisticated measuring

16

equipment, while Plaintiff s testimony was based solely upon his subjective

17

recollections that, over the course of three years, his wheels have consistently lifted off

18

the ground the same amount as he traversed the Store's parking lot. Second, the Court

19

finds Plaintiff s statement that his wheels lifted a foot off the ground not to be credible

20

in light of Blackseth' s expert opinion that a 2.9% slope would be imperceptible to

21

someone traveling over it. The Court finds that Plaintiff has failed to prove, by a

22

preponderance of the evidence, that a slope exceeding 2% currently exists at the Store.

23

Finally, even if a 2.9% slope does exist, Blackseth testified that a 1% variance in the

24

slope of asphalt is within industry tolerances, id. at 131, 134, and Plaintiff submitted

25

no evidence to the contrary; accordingly, the Court finds that Plaintiff has failed to

26

prove that a 1% variance in the slope of asphalt exceeds the "conventional building

27

industry tolerances for field conditions." Cherry, 2006 WL 6602454 at *6 ("[T]he

28

burden is on plaintiffs to prove that the variance exceeds the allowed tolerance.").

-13

09cv611 WQH (WVG)

111 Plaintiff has failed to prove, by a preponderance of the evidence, that the slope and/or
2

cross-slope of any disabled parking space or access aisle constitutes a barrier to access

3

pursuant to the ADAAG.

4

judgment in their favor on Plaintiffs ADA claim as to this alleged barrier.

The Court concludes that Defendants are entitled to

5 II

B.

Sharp Edges on Toilet Paper Dispenser

611

Pursuant to the ADAAG, "[a] handrail or grab bar and any wall or other surface

7 II adjacent to it shall be free of any sharp or abrasive elements." 28 C.F.R. part 36, App.

8 II D, § 4.26.4 (emphasis added). While the ADAAG does not define the word "adjacent,"

911 it is defined in the most recent edition of Black's Law Dictionary as "lying near or
10 II close to, but not necessarily touching." Black's Law Dictionary (9th ed. 2009).
11

Plaintiff testified that the toilet paper dispenser "was too low. I couldn't reach

12

it. It was like you had to reach under the outlet. There was sharp edges, plastic. I

13

couldn't reach my hands under there and was afraid I would cut my hands underneath

14

the bottom of it, and I wasn't able to actually grab any toilet paper at that time." (ECF

15 II No. 107 at 35). Plaintiff testified that he did not cut himself on the toilet paper

1611 dispenser. Id.

Blackseth testified that he inspected the bottom of the toilet paper

17

dispenser and noticed "a plastic serrated device that allows the paper to be tom off.

18

[The serrated device] is approximately 20 inches below the grab bar and about 16

19

inches above the ground.... It was serrated, but I ... didn't notice anything sharp or

20

anything that would have damaged my hand." Id. at 106-07.

21

Based upon Blackseth's uncontroverted testimony that the grab bar was 20

22

inches from the serrated device on the toilet paper dispenser, the Court does not find

23

that the serrated device was "near or close to" the grab bar in the context of a bathroom

24

stall. The Court concludes that Plaintiff has failed to prove, by a preponderance of the

25

evidence, that any sharp edge on the toilet paper dispenser "constitutes a barrier that

26

denies the plaintiff full and equal enjoyment of the premises in violation of the ADA."

27

Oliver, 654 F.3d at 905. The Court concludes that Defendants are entitled to judgment

28

in their favor on Plaintiff s ADA claim as to this alleged barrier.

- 14-

09cv611 WQH (WVG)

1

C.

Outlining of disabled parking spaces

2

Plaintiff testified that the paint was worn on the disabled parking spaces, and

3 II

testified that "you can barely see it" and "you could see the asphalt right through the

4

paint." (ECF No. 107 at 22).

5

Plaintiff has not cited to any ADAAG guideline regulating the outlining of

6

II disabled parking spaces. Plaintiff has failed to prove, by a preponderance of the

7

evidence, that the worn paint on the disabled parking spaces "constitutes a barrier that

8

denies the plaintiff full and equal enjoyment of the premises in violation of the ADA."

9

Oliver, 654 F.3d at 905. Even if the outlining of the parking spaces did violate an

10

ADAAG guideline, the Court finds that such a barrier would not relate to the plaintiff's

11

personal disability. See Chapman, 631 F.3d at 947; see also Doran, 524 F.3d at 1044

12

n. 7 (explaining that a wheelchair-dependent plaintiff "may challenge only those

13

barriers that might reasonably affect a wheelchair user's full enjoyment of the store").

14

The Court concludes that Defendants are entitled to judgment in their favor on

15

Plaintiff's ADA claim as to this alleged barrier.

16

III.

Plaintiff's State Disability Law Claims

17

Unlike the ADA, which only provides injunctive relief, the Unruh Act and the

18

California Disabled Persons Act ("CDPA") provide a statutory minimum amount of

19

damages. See 42 U.S.C. § 12205; Cal. Civ. Code §§ 52(a), 54.3(a). A violation of the

20

ADA constitutes a violation of the Unruh Act and the CDPA. See CaL Civ. Code §

21

54.1(d) (regarding the CDPA); Munson v. Del Taco, Inc., 46 CaL 4th 661,687 (CaL

22

App. 2009) ("A plaintiff who establishes a violation of the ADA, ... need not prove

23

intentional discrimination in order to obtain damages under [California'S Unruh Act]

24

section 52."). As discussed above, see supra Part II., Plaintiff has failed to prove any

25

violation of the ADA.

26

In addition, "[a] violation of a California Code of Regulations, title 24 (title 24)

2711 building
28

standard that denies access to a disabled individual has been found to

constitute a violation of both the Unruh Act and the [California Disabled Persons
- 15 -

09cv611 WQH (WVG)

1 II Act]."

Californians/or Disability Rights v. Mervyn's LLC, 165 Cal. App. 4th 571,585­

2 II 86 (2008) (citations omitted). The 2009 Construction Related Accessibility Standards
3 II Compliance Act ("CRAS"), Cal. Civ. Code §§ 55.51-55.57, provides in pertinent part:
4

5

6
7

(a) Statutory damages under either [the Unruh Act] or [the
California Disabled Persons Act] may be recovered in a

construction-related accessibility claim against a place of public
accommodation only if a violatton or violations of one or more
construction-related accessibility standards denied the plaintiff

full !ind equal a<;cess to the place of public accommodatIOn on a

partIcular occaSIOn.
(b) A plaintiff is denied full and e~ual access only if the plaintiff
Rersonally encountered the violation on a particular occasion, or
the plaintiff. was deterrt::d from ac,?essing a place of public
accommodation on a partIcular occaSIOn.

8
9

10

(c) A violation personally encountered by a plaintiff may be
sufficient to cause a deniaf of full and equal access if the plamtiff
experienced difficulty, discomfort, or embarrassment because of
the violation.

11

12

13 II Cal. Civ. Code § 55.56 (a)-(c).

1411

In Mundy v. Pro-Thro Enters., 192 Cal. App. 4th Supp. 1 (2011), the Appellate

1511 Division of the California Superior Court held that section 55.56(c) requires evidence
16 II of difficulty, discomfort, or embarrassment in order for a plaintiff to recover statutory
17 II

damages. The Court of Appeals for the Ninth Circuit recently issued an unpublished

1811 opinion, citing Mundy, which affirmed the district court's denial of statutory damages
1911 under the Unruh Act and the CDPA to a plaintiff who failed to prove that "he
20

II personally encountered the violation and 'experienced difficulty, discomfort, or

21 II

embarrassment because ofthe violation. '" Doran v. 7-Eleven, No. 11-55619,2013 WL

2211 602251, *2 (9th Cir. Feb. 19, 2013) (quoting Cal. Civ. Code § 55.56 (c»; see also
23 II

Kohler v. Presidio Int'l, Inc., CV 10-4680 PSG PJWX, 2013 WL 1246801 (C.D. Cal.

2411 Mar. 25, 2013) (citing Doran and Mundy, and holding that "Plaintiff must offer
25

II evidence of difficulty, discomfort, or embarrassment in relation to his personal

26

II encounter of a barrier in order to recover statutory damages under the Unruh Act or the

27

II [C]DPA."). The Court finds the reasoning of Doran and Mundy to be persuasive. In

28 II order for Plaintiff to recover statutory damages under the Unruh Act or the CDPA, the
- 16-

09cv611 WQH (WVG)

111 Court holds that Plaintiff must prove that he experienced difficulty, discomfort, or
2 II embarrassment because of an encounter with a violation of an accessibility standard.

A.

3

No marked crossing where the accessible route crosses the vehicular
way

4

Plaintiff testified that, on his first trip to the Store in February of 2009, there was

5 II

6 II no marked crossing from the vehicular way to the Store and "you [would] have to
7 II dodge cars." (ECF No.1 07 at 19-20). Plaintiff testified that on November 7, 2012, the

8 II day before trial, he noticed a marked crossing from the vehicular way to the Store for
9 II the first time. Id. at 48, 70. Plaintiff testified that there was never a situation where he
10 II

was almost hit by a vehicle while traversing the parking lot. Id. at 50. Plaintiff was

11 II asked the following question: "It wasn't very difficult for you to roll through the
1211 parking lot in your ... mechanized wheelchair, was itT' Plaintiff answered, "No." Id.

1311 at 47.
14 II

Blackseth testified that "there was no marked crossing" during his August 17,

15 II 2009 inspection; however, Blackseth testified that "there was no requirement that I was

1611 able to find in the ... California Building Code that required the marked crossing." Id.
1711 at 125. Blackseth testified that, during his inspection on November 7,2012, "[t]here

1811 was a marked crossing installed," which "connected a walkway from the public
1911 sidewalk and the bus stop through a landscaped area with a walkway, then a painted
20 II marked crosswalk that attached to the access aisle and curb ramp to get a person onto

2111 the walkway in front of Walgreens." Id. at 124.
22 II

Plaintiff does not cite to any building standard that regulates marked crossings

23

in accessible routes. Plaintiff contends that the California Manual on Uniform Traffic

24

Control Devices ("MUTCD") requires marked crossings in parking lots, but does not

25 II cite to any case supporting that proposition. Defendants contend that the California

2611 MUTCD does not apply on private property.

27 II

The Court finds that Plaintiff has failed to prove, by a preponderance of the

28 II evidence, that the lack ofa marked crossing violates a construction-related accessibility

- 17 -

09cv611 WQH (WVG)

1 II

standard. Even if the MUTCD did apply and the Store was in violation of one of its

2 II

provisions, Plaintiff testified that he had "no [difficulty]" traveling through the parking

3

II lot on his mechanized wheelchair. Although Plaintiff testified, in the abstract, that

4 II "you have to dodge cars" crossing the parking lot, there is no evidence that Plaintiff

5 II suffered any "discomfort or embarrassment" due to the lack of a marked crossing on
6 II any particular occasion. Cal. Civ. Code § 55.56. Plaintiff provided no evidence that

711 he was "deterred from accessing" the Store. Cal. Civ. Code § 55.56(b). "A claimant
811 who offers no such evidence is 'not entitled as a matter of law' to recover statutory
9 II damages under the CRAS. By the same token, he is not entitled to recover statutory
10 II

damages under the Unruh Act or the CDPA." Doran, 2013 WL 602251, at *2 (citing

1111 Mundy, 192 Cal. App. 4th Supp. at 5; Munson, 208 P.3d at 633-34 (noting that the
12 II CRAS was intended to protect "businesses from abusive access litigation" and "impose
13

II limitations on damages")). The Court concludes that Defendants are entitled to

1411 judgment in their favor on Plaintiffs CDPA and Unruh Act claims as to this alleged
15 II barrier.

1611

B.

No van accessible parking space sign below disabled parking sign

17 II

Plaintiff testified that there was a "van accessible sign" by the parking spaces at

18 II the Store, but he found the sign "confusing" because it was also a disabled parking
1911 sign. (ECF No. 107 at 20). Blackseth testified that he observed a van accessible
20 II parking sign during his 2009 and 2012 inspections. [d. at 127.

21 II

Plaintiff does not cite to any building standard requiring a van accessible sign

22

II separate from a traditional disabled parking sign. The Court finds that Plaintiff has

23

II failed to prove, by a preponderance of the evidence, that the lack of a van accessible

24 II parking sign separate from the disabled parking sign violated a construction-related

25 II accessibility standard. Even if the Store's sign did violate an accessibility standard,

2611 Plaintiff testified that he merely found the sign "confusing." [d. at 20. Plaintiff
27

II testified that he never drove a vehicle to the Store, never attempted to drive a vehicle

2811 to the Store, and was never driven to the Store in anyone's vehicle. [d. at 46. Plaintiff
- 18-

09cv611 WQH (WVG)

1 II offered no evidence that he suffered any "difficulty, discomfort or embarrassment" due
2 II to the lack of a marked crossing, nor did Plaintiff provide any evidence that he was

311 deterred from accessing the Store. Cal. Civ. Code § 55.56(c). "A claimant who offers
411 no such evidence is 'not entitled as a matter of law' to recover statutory damages under
511 the CRAS. By the same token, he is not entitled to recover statutory damages under
611 the Unruh Act or the CDPA." Doran, 2013 WL 602251 at *2 (citations omitted). The
7 II Court concludes that Defendants are entitled to judgment in their favor on Plaintiff's

811 CDPA and Unruh Act claims as to this alleged barrier.
9 II
10 II
11 II

C.

Slopes and cross slopes of the disabled parking spaces and access
aisle(s)

Pursuant to the California Building Code, "[ s]urface slopes of accessible parking

12 II spaces and access aisles shall be the minimum possible and shall not exceed one unit
13 II vertical in 50 units horizontal (2-percent slope) in any direction.

24 C.C.R §

1411 1129B.3.4. The California Building Code states that "[a]ll dimensions are subject to
15 II conventional industry tolerances except where the requirement is stated as a range with
1611 specific minimum and maximum end points." 24C.C.R. § 110IB.5; see also 28 C.F.R.
1711 Part 36 App. A at § 3.2 (pursuant to the ADAAG, "[a]ll dimensions are subject to
1811 conventional building industry tolerances for field conditions."). The "industry
1911 tolerance" provision "is intended to allow for construction tolerances, such as
20 II variations based on field, material, manufacturing and workmanship conditions."

21 II Cherry v. City Coll. o/San Francisco, C 04-04981 WHA, 2006 WL 6602454, *5 (N.D.
2211 Cal. Jan. 12,2006).
23 II

Blackseth testified that, during his August 17, 2009 inspection of the Store's

24 II premises, each of his measurements of the parking spots and access aisles indicated a
2511 slope of between 2 and 2.9 percent. (ECF No. 107 at 95). Blackseth testified that if
26 II he were traveling on his motorized wheelchair over a 2.9% slope, the slope would be
2711 "imperceptible" to him without measuring equipment. [d. at 132.
2811

The Court finds that the California Building Code's surface slope requirement
- 19-

09cv611 WQH (WVG)

1 II

is "subject to conventional industry tolerances" because the requirement is not "stated

2 II as a range with specific minimum and maximum end points"; while the regulation lists
3 " a specific maximum slope of 2%, it also calls for a nonspecific "minimum possible"

411 slope atthe low end of the range. 24 C.C.R § 1101B.5. As discussed above, Blackseth
5 II testified that a 1% variance in slope is within industry tolerances for asphalt, and
6 II Plaintiff submitted no evidence to the contrary. Accordingly, the Court finds that
7 II Plaintiff has failed to prove that a 1% variance in slope exceeds the "conventional

8 II building industry tolerances for field conditions." Cherry, 2006 WL 6602454 at *6
9

II ("[T]he burden is on plaintiffs to prove that the variance exceeds the allowed tolerance.

10 II It is not enough to simply show that a particular bathroom stall, for example, is 'less
11

II than' the required width. The approximate extent of any shortfall must be proven.");

12" 24 C.C.R § 1101B.5. Plaintiff has failed to prove, by a preponderance of the evidence,
13 II that any slope and/or cross-slope in a parking space or access aisle violated a

1411 construction-related accessibility standard.
15 "

Even if a 2.9% slope did violate an accessibility standard, the Court does not find

16" Plaintiff's testimony that his wheels lifted off the ground to be credible, especially in
17 II light of Blackseth's expert opinion that a 2.9% slope would be imperceptible to

18 II someone traveling over it.

Id. at 20. Plaintiff offered no other evidence that he

1911 suffered any "difficulty, discomfort or embarrassment" due to the slope ofthe disabled
20 II parking spaces or access aisles, nor did Plaintiff provide any evidence that he was

2111 deterred from accessing the Store. CaL Civ. Code § 55.56(c). "A claimant who offers
22 II no such evidence is 'not entitled as a matter oflaw' to recover statutory damages under
23 II the CRAS. By the same token, he is not entitled to recover statutory damages under

24" the Unruh Act or the CDPA." Doran, 2013 WL 602251 at *2 (citations omitted). The
25 II Court concludes that Defendants are entitled to judgment in their favor on Plaintiff s
26 " CDPA and Unruh Act claims as to this alleged barrier.
27

II

2811

D.

Outlining of disabled parking spaces

The California Building Code provides detailed requirements for disabled
- 20-

09cv611 WQH (WVG)

1 II

parking spaces. See 24 C.C.R. § 1129.B.3(1). Plaintiff testified that the paint was

211 worn on the Store's disabled parking spaces and that "you could see the asphalt right
311 through the paint." (ECF No. 107 at 22). However, Plaintiff has offered no evidence
4 II that he was "deterred from accessing" the Store due to insufficient outlining of the

511 parking spaces, Cal. Civ. Code § 55.56(b), nor has Plaintiff offered any evidence that
6

II he "personally encountered" the violation and "experienced difficulty, discomfort, or

7

II embarrassment because of the violation." CaL Civ. Code § 55.56(c). (,(,Aclaimant who

8 II offers no such evidence is (,not entitled as a matter of law' to recover statutory damages

911 under the CRAS. By the same token, he is not entitled to recover statutory damages
10

II under the UnruhActortheCDPA." Doran, 2013 WL602251 at *2 (citations omitted).

11 II

The Court concludes that Defendants are entitled to judgment in their favor on

1211 Plaintiff's CDPA and Unruh Act claims as to this alleged barrier.
13

II

1411

E.

Detectable warnings

Pursuant to the California Building Code, a "[d]etectible warnmg

IS

a

15 II standardized surface or feature built into or applied to walking surfaces or other
1611 elements to warn visually impaired persons of hazards in the path of traveL" 24 C.C.R.
1711 § 1102B.
18

II

Plaintiff testified there were no detectible warnings on any of the ramps in the

1911 parking lot leading to the store. (ECF No. 107 at 39-40). Plaintiff testified that the
20 II

parking lot "doesn't have any bumps or any kind of motion detector showing you it is

21 II going to be a ramp." Id. at 40. Plaintiff was asked the following question: "So does
22

II it make it difficult if there aren't detectible warnings?"; Plaintiff gave the following

23

II answer: "At least - at least it let's you know that you are corning upon a ramp or

2411 actually dropping from one level to another, yes." Id.

II

Blackseth testified that "[d]etectabIe warnings as defined in the code are the

26 II

yellow raised bump mats that you see at the comers. The grooves at the top of the curb

25

27 II ramps are different issues. They are not called detectable warnings. Both the grooves
28 II

and the detectable warnings in my opinion are there for the visually impaired." Id. at
- 21 -

09cv611 WQH (WVG)

111 136. Blackseth based that opinion on "[y]ears of experience with the code, [his] code

2 II advisory committee [experience], the Office ofthe State Architect, [and his] time in the
3 II Building Standards [Commission] .... " [d. at 136.
4 II

Plaintiff is a quadriplegic. Plaintiff is not visually impaired. The Court finds

511 Blackseth's expert testimony regarding the purpose of detectable warnings to be
6 II

credible. Although Plaintiff testified generally that a detectible warning "lets you know

711 that you are coming upon a ramp," the Court finds that Plaintiff has failed to prove, by
8 II a preponderance of the evidence, that he suffered any "difficulty, discomfort, or
9 II embarrassment ... on a particular occasion" as a result of the lack of detectable
10 II warnings at the Store. Cal. Civ. Code § 55.56. "A claimant who offers no such

11 II evidence is 'not entitled as a matter of law' to recover statutory damages under the

1211 CRAS. By the same token, he is not entitled to recover statutory damages under the
13 II Unruh Act or the CDPA." Doran, 2013 WL 602251 at *2 (citations omitted); see also

1411 Chapman, 571 F.3d at 858 (stating that, with respect to an ADA claim, "[t]he Ninth
1511 Circuit does not ... grant a plaintiff standing to challenge un-encountered barriers not
1611 related to his or her disability. For example, a non-blind, non sight-impaired person
17 II who needs a wheelchair for mobility cannot challenge barriers that would only restrict
1811 access for a person who is blind or sight-impaired."). The Court concludes that
1911 Defendants are entitled to judgment in their favor on Plaintiffs CDPA and Unruh Act
20 II claims as to this alleged barrier.

21 II

F.

22

The California Building Code provides:

23

In new and existing constructioIk accessible check stands shall provide a
clear checkout aiSle width of .,6 inches (914 mm) with a maximum
adjoining counter height not exceeding 38 inches (965 mm) above the
finish floor. The top' 01' the counter lip shall not exceed 40 inches (1016
mm) above the finish floor. Accessible checkstands shall always be open
to customers with disabilities and shall be identified by a sIgn clearly
visible to those in wheelchairs. The sign shall display the international
symbol of accessibility in white on a blue background and shall state
'This check stand to be open at all times for customers with disabilities.'

24
25
26

27

Check stands

2811 24 C.C.R. § 1110B.1.3.
- 22-

09cv611 WQH (WVG)

Plaintiff testified that after he left the Store restroom, he went to the checkout

1 II

211 register. (ECF No. 107 at 38). Plaintiff testified that there was not a register in the
3 II Store marked as accessible for the disabled and open at all times. [d. Plaintiff testified

4 II that he never asked any employees whether there were any checkout registers with a

511 lower counter. [d. at 63. Plaintiff testified that when he was visiting the Store, he
6 II noticed a checkout register with a lower counter as he traveled to the checkout registers
7 II

with higher counters. [d. at 64. Plaintiff testified that no employees were stationed at

8 II the register with the lower counter and that "it was used for storage ... There [were]
9 II boxes, all kinds of stuff on top of the counter. It wasn't being used for purchase in and
10 II out." [d. at 64-65. Plaintiff testified that in order to pay for his items at the Store, he
11 II

"had to throw [his items] up on the counter," which was "a pain," and "difficult." [d.

1211 at 39.
13 II

Lance Zwanck, manager of the Store during all of 2009, testified that there were

14 II four checkout counters at the front of the Store, one of which was a bit lower than the
15 II others and was always open. [d. at 179-180. Zwanck testified that he never received

16 II a complaint from a disabled customer unable to use the lower counter.
17 II

Blackseth testified that he measured the height of the checkout counters at the

18

II front of the store at 36 inches, except for one counter which he measured at 34 inches.

19

II [d. at 103-04. Blackseth stated that, "[f1or purposes of trying to resolve this case" and

20 II because "it was cheap and easy to do," he recommended that Walgreens add a sign

21 II identifying the 34-inch checkout stand as accessible for the disabled. [d. at 104.

22 II

The uncontroverted evidence presented at trial shows that each checkout counter

2311 at the Store was below 40 inches from the floor and in compliance with 24 C.C.R. §
2411 1110B.1.3. The Court does not find that 24 C.C.R. § 1110B.1.3 requires the posting
25 II of an accessible sign if every checkout aisle is accessible to the disabled; such a

26 II requirement would force Defendants to post an accessible sign above every checkout
27 II

aisle and leave every checkout aisle open at all times. The Court finds that Plaintiff has

28 II

failed to prove, by a preponderance of the evidence, that any checkout counter or
- 23 -

09cv611 WQH (WVG)

111 checkout aisle violated a construction-related accessibility standard.

Even if an

2 II accessible sign should have been posted, Plaintiff has offered no evidence that he was

3 " "deterred from accessing" the Store due to the lack of such a sign, Cal. Civ. Code §
411 55.56(b), nor has Plaintiff offered any evidence that he "personally encountered" the

511 violation and "experienced difficulty, discomfort, or embarrassment because of the

611 violation." Cal. Civ. Code § 55.56(c). "A claimant who offers no such evidence is 'not
711 entitled as a matter of law' to recover statutory damages under the CRAS. By the same

8 II token, he is not entitled to recover statutory damages under the Unruh Act or the

911 CDPA." Doran, 2013 WL 602251 at *2 (citations omitted). The Court concludes that
10 II Defendants are entitled to judgment in their favor on Plaintiff s CDPA and Unruh Act
11

II claims as to this alleged barrier.

12 II

G.

Restroom stall door

13 II

Pursuant to the California Code ofRegulations, "[t] he water closet compartment

1411 shall be equipped with a door that has an automatic-closing device .... " 24 C.C.R. §
15

II 1115B.3.1.4-4.

16/1

Blackseth testified that, during his August 17, 2009 inspection, he observed a

17 II "closer" - i.e. a "device that is in the hinge that brings the door back to the latch so that
18

II a disabled user doesn't have to pull it closed" - on the door of the restroom stall. (ECF

1911 No. 107 at 105, 138). Blackseth testified that, during that initial inspection, the door
20

II "did not close completely, stopped about an inch short of the jamb. The closer was

2111 there, but it stopped approximately an inch from the strike." Id. at 105. Blackseth
22 II testified that, during his November 7,2012 inspection, the closer had been adjusted and
23 II "[t]here was no gap." Id. at 139.

2411
25

Based upon Blackseth's uncontroverted testimony, the Court finds that Plaintiff

II has failed to prove, by a preponderance of the evidence, that the water closet

2611 compartment door lacked an automatic-closing device in violation of a construction­
27

II related accessibility standard. Even if the water closet compartment door did violate

28

II an accessibility standard, Plaintiff has offered no evidence that he was "deterred from
- 24

09cv611 WQH (WVG)

111

accessing" the Store due to the lack of such a sign, Cal. Civ. Code § 55.56(b), nor has

211

Plaintiff offered any evidence that he "personally encountered" the violation and

3 II "experienced difficulty, discomfort, or embarrassment because of the violation." Cal.
411

Civ. Code § 55.56(c). "A claimant who offers no such evidence is 'not entitled as a

5 II matter of law' to recover statutory damages under the CRAS. By the same token, he

611 is not entitled to recover statutory damages under the Unruh Act or the CDPA."
711 Doran,

8 II

2013 WL 602251 at *2 (citations omitted).

The Court concludes that

Defendants are entitled to judgment in their favor on Plaintiff's CDPA and Unruh Act

911 claims as to this alleged barrier.
10

II

H.

Toilet tissue dispenser
1.

11

SbarpEdges

1211

The California Building Code provides: "A grab bar and any wall or other

13 II

surface adjacent to it shall be free of any sharp or abrasive elements." 24 C.C.R. §

14 II

1115B.7.3. For the reasons stated above, see supra Part II.B., Defendants have failed

15 II

to prove that the dispenser constituted a barrier of access pursuant to 24 C.C.R. §

16" 1115B.7.3 because the toilet paper dispenser is not "adjacent" to the grab bar;
17 II

accordingly, Defendants are entitled to judgment in their favor on Plaintiff s CDPA and

1811

Unruh Act claims as to this alleged barrier.

19

II

2.

Protruding Object

20

The California Building Code provides:

21

Objects projecting from walls (for example, telephones), with their
leaOing edges between 27 inches (686 mm) and 80 inches (2032 mm)
above the finished floor, shall protrude no more than 4 inches (102 mm)
into walks, halls, corridors, passa~eways or aisles. Objects mounted with
their leading edges at or below 'I7 indles (686 mm) above the finished
floor may protruoe any amount. Free-standmg objects mounted on posts
or "pylons may overhang 12 inches (305 mm) maximum from 27 inches
(686 mm) to 80 inches (2032 mm) above the ground or finished floor.
Protruding opjects shall not reduce the clear width of an accessible route
or maneuvenng space.

22
23
24

25

26

24 C.C.R. § 1133.B.8.6.1. Blackseth testified that, during both of his inspections, the

27

toilet paper dispenser protruded 3.5 inches from the wall. (ECF No. 107 at 95, 140).
28

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I

1 II

Blackseth testified that the toilet paper dispenser "is under 27 inches [from the floor]."

2 II [d. at 96. Plaintiff testified that he does not know how far the toilet paper dispenser

3 II sticks out from the wall. [d. at 40.

411
5

Based upon Blackseth's uncontroverted testimony, the Court finds that the toilet

II paper dispenser was located under 27 inches from the floor, and therefore "may

611 protrude any amount." 24 C.C.R. § 1133.B.8.6.1. Plaintiff has failed to prove, by a
711 preponderance of the evidence, that the dispenser violated a construction-related
8 II accessibility standard due to the distance it protruded from the wall.

The Court

9 II concludes that Defendants are entitled to judgment in their favor on Plaintiff s CDPA
10 II and Unruh Act claims as to this alleged barrier.
11

3.

II

12 II

Location of the Toilet Paper Dispenser

The California Building Code provides: "Toilet tissue dispensers shall be located

13 lion the wall within 12 inches (305 mm) of the front edge of the toilet seat, mounted

1411 below the grab bar, at a minimum height of 19 inches (485 mm), and 36 inches (914
15

II mm) maximum to the far edge from the rear wall." 24 C.C.R. § 1115B.8.4.

16 II

Blackseth testified that, during both ofhis inspections, the toilet paper dispenser

17

II was a "double-roll dispenser" and that "there was a roll of toilet paper well within 36

18

II inches of the back wall." (ECF No. 107 at 96). Blackseth testified that "[t]he second

1911 roll may have exceeded [the 36-inch distance] .... " [d.
20

II

Based upon Blackseth's uncontroverted testimony, the Court finds that the toilet

2111 paper dispenser was located within 36 inches of the back wall. No evidence was
2211 presented at trial to suggest that the toilet paper dispenser was located more than 12
23

II inches from the toilet seat. Plaintiff has failed to prove, by a preponderance of the

24

II evidence, that the dispenser violated a construction-related accessibility standard due

25

to its distance from either the back wall or the toilet seat. The Court concludes that

26

Defendants are entitled to judgment in their favor on Plaintiff s CDPA and Unruh Act

27

II claims as to this alleged barrier.

28

II

I.

Location of the disposable seat cover dispenser
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·

1

The California Building Code provides:

2

Where towel, sanitary napkins, waste receptacles}. dispensers, other
equipment and controls are provided, at leasf one or each type shall be
located on an accessible route, with all operable parts, inc1uding coin
slots, within 40 inches 0016 mm) from the fimshed floor and shall
comply with Section 1117B.6, Controls and operating mechanisms.

3
4

511 24 C.C.R. § 1115B.8.3.
6 II

Plaintiff testified that the location of the toilet seat cover dispenser "was too

7 II

high. I couldn't reach it." (ECF No. 107 at 34). Blackseth testified that, during his

8 II August 17, 2009 inspection, he noticed the toilet seat dispenser "was not in the
911 appropriate location," id. at 143, but that, during his November 7, 2012 inspection, "it
10 II had been moved .... [I]t was under 40 inches high and had a clear approach." [d.
11 II

Blackseth, a C-5 quadriplegic himself, testified: "I am unaware of any C-5 quad that

12 II

transfers himself independently. I've never used [a disposable toilet seat cover], never

13 II

had a use for one. I don't know of friends that are similarly situated to my disability,

1411 I am unaware of them ever using them." [d. at 145.

1511

The Court does not find Plaintiffs testimony, that he attempted to reach for a

16 II disposable seat cover, to be credible. Plaintiff testified that he uses the restroom to
17 II

empty his leg bag, and offered no testimony that he transfers himself independently

18 II

onto the toilet; Blackseth testified that he is unaware of any quadriplegic who does so.

1911 In Plaintiffs opposition to Defendants' motion for summary judgment on Plaintiff's
20 II ADA claim as to this barrier, Plaintiff stated that "the location of the toilet seat covers
21 II

behind the water does not relate to Strong's disability (a point that we freely conceded),

22 II

and [P]laintiff has no objection to a grant of summary judgment - for want of Article

23 II

III standing - on this barrier." (ECF No. 68 at 11). The Court finds that Plaintiff has

24 II failed to prove, by a preponderance of the evidence, that he "personally encountered"

25 II any barrier of access related to the location of the toilet seat cover dispenser during his
2611 visits to the Store.
27 II

Cal. Civ. Code § 55.56(b), (c). The Court concludes that

Defendants are entitled to judgment in their favor on Plaintiff s CDPA and Unruh Act

28 II claims as to this alleged barrier.
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111

J.

2 II

Plaintiff testified that he attempted to wash his hands in the restroom but was

Pipes underneath the restroom sink

3 II unable to do so because "[t]he sink was exposed[.] [T]he hot water piper, and all the

411 hardware underneath was exposed, [and] were not covered. I was afraid to bum my
511 legs." (ECFNo. 107 at 32). Plaintiff testified that he used the Store's restroom the day
611 before the trial, and noticed that the sink pipes "were wrapped." ld. at 59-60.
7 II

Plaintiff has not cited to any current California accessibility guideline, and the

8 II Court is not aware of any guideline, regUlating the wrapping of pipes in restrooms.

9 II Plaintiff has failed to prove, by a preponderance of the evidence, that the pipes
10 II underneath the sink in the restroom violated a construction-related accessibility

11 II standard. The Court concludes that Defendants are entitled to judgment in their favor
1211 on Plaintiffs CDPA and Unruh Act claims as to this alleged barrier.
13 II

K.

Strike side clearance on the pull-side of the restroom door

1411

Pursuant to the California Code of Regulations, "Minimum maneuvering

1511 clearances at doors shall be as shown in Figures IIB-26A and IIB-26B." 24 C.C.R.
16" § 1133B.2.4.2. Pursuant to Figure IIB-26A, an interior door must have a minimum
17 II of 18 inches of strike side clearance.
18 II

Plaintiff testified that he had difficulty leaving the restroom because the door

19 II was locked. (ECF No. 107 at 32). Plaintiff testified that he "tr[ied] to open the door
20

II at the same time and pull the door open [but] there was no room for me to back up and

2111 pull the door open by itself under my own power and get around the door to get out."

22111d. at 33. Plaintiff testified that he knocked on the door for 30 minutes until an
23 " employee heard him knocking and opened the door. ld. at 33-34. Plaintiff testified that

2411 he felt "frustrated [he] couldn't get out." ld. at 37-38. Plaintiff testified that, during

2511 his visit to the Store on November 7, 2012, he could not open the door to leave the
2611 restroom and that "someone helped [him]" open the door to leave. ld. at 70.
2711

Blackseth testified that, based upon his measurements on November 7, 2012,

2811 "[t]here was 18 inches of strike side clearance on the pull side [of the Store's main
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09cv611 WQH (WVG)

111 restroom door]." Id. at 140. When counsel for Plaintiff questioned Blackseth about
2

II the strike side clearance during Plaintiff s visits to the Store, the following exchange

3

II took place:

411
5

Blackseth: I would find it almost inconceivable there were structural
walls that they moved [between 2009 and 2012].
Counsel:

8

I don't know that the structural walls haven't been moved.
I would give you that.

Counsel:

7

I would agree it would seem

Blackseth

6

Fair enough. Little victories, sir.

911Id. at 171-172.
10 II

Plaintiff has presented no evidence that any structural changes took place

1111 between Plaintiff's visits to the Store in 2009 and Blackseth's visit on November 7,
1211 2012, when he measured the strike side clearance of the restroom door at 18 inches.

13 II Because an 18-inch clearance satisfies the requirements of the California Building

1411 Code, the Court finds that Plaintiff has failed to prove, by a preponderance of the

1511 evidence, that the strike side clearance of the restroom door violated a
16" construction-related accessibility standard. See 24 C.C.R. § 1133B.2.4.2, Figure 11B­
17 II 26A. The Court concludes that Defendants are entitled to judgment in their favor on

1811 Plaintiffs CDPA and Unruh Act claims as to this alleged barrier.
19 II
20 II

CONCLUSION

IT IS HEREBY ORDERED that Defendants' Motion to Strike (ECF No. 116)

21 " Plaintiffs post-trial submissions is DENIED. Defendants' Motion to Strike (ECFNo.
22

II 108) certain evidence outside the scope of the final pretrial conference order is

23

II GRANTED. The following motions are denied as moot: Defendants' Motion for

2411 Judgment as a Matter of Law (ECF No. 109), Plaintiffs Motion to Strike Legal
2511 Conclusions from Kim Blackseth's Testimony (ECF No. 115) and Plaintiffs Motion
2611 for Judgment on Partial Findings (ECF No. 114).
27111/

2811 II
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1 II

;,~

The Clerk of the Court shall enter judgment in favor of Defendants and against

2 " Plaintiff as to all claims. Any request for attorneys' fees shall be made by separate
i

3 II motion in accordance withfFederal Rule of Civil Procedure 54(d)(2) within thirty (30)

4 II days of the date of this Or er.

511

6~DATED:

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