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1 Defendants also brought a motion for a prefiling order declaring

plaintiff, and plaintiff’s attorney, vexatious litigants, see

Wilson v. Pier 1 Imports (US), Inc., 413 F.Supp.2d 1130 (E.D. Cal.

2006)), and a motion directed towards various asserted standing

1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON,

NO. CIV. S-04-633 LKK/CMK

Plaintiff,

O R D E R

v.

 

PIER 1 IMPORTS (US), INC;

and MELLON/PIER 1 PROPERTIES

LIMITED PARTNERSHIP I,

Defendants.

 /

Plaintiff, Ronald Wilson, a disabled individual, sues under

the ADA and various state disability laws. He alleges

accessibility violations in place at the Pier 1 Imports store in

Fairfield, California. He seeks both injunctive and monetary

relief. The parties have filed cross-motions for summary judgment.

I resolve those motions below.1

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issues, see Wilson v. Pier 1 Imports (US), Inc., 411 F.Supp.2d 1196

(E.D. Cal. 2006)). 

2 All facts are undisputed except where noted. The defendants

have submitted a reply to plaintiff’s response to defendants'

separate statement of undisputed facts. This submission is not

authorized by the local rules, which only provide for the optional

submission of an additional “statement of disputed facts” not a

reply to an opposing parties’ response. See Local Rule 56-260.

3 Defendants do not dispute many of these facts purely for the

“purposes of this motion.” 

2

I.

FACTS2

Wilson is a 69 year old male, who has been disabled since

1993. Wilson Dec. in Supp. of Pl.'s Mot. for Summ. J. (Wilson

Dec.) at ¶ 2; Dep. at 25:12-13; 33:20-21; 65:11-25; Pl.'s SUF 13;

Wilson Dec. at ¶ 3; Dep. at 115:5-8; 53:15-56:2.; Pl.'s SUF 2. He

has severe degenerative joint disease in his neck, legs, shoulders,

and spine; irregular heartbeat; multi-joint arthritis; slight foot

drop; and limited range of motion of upper extremities. Wilson

further suffers from gout, deafness, and peripheral neuropathy with

symptoms of ALS (a.k.a. Lou Gehrig's Disease). Wilson Dec. at 

¶ 4; Dep. at 45:22-23; 46:17-18, 23-25; 60:22; Pl.'s SUF 3. Wilson

has no control over his muscles, which are deteriorating faster

than doctors thought they would, and is forced to use either a

wheelchair or cane (or combination of both) when traveling in

public. Wilson Dec. at ¶ 6; Dep. at 46:17; 53:19-55:2; 55:25-56:7;

47:4-12; Pl.'s SUF 5. Wilson's condition will worsen over time.

Wilson Dec. at ¶ 7; Dep. at 48:19-21; Pl.'s SUF 6. 

////

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3

 Wilson has visited the store at issue approximately every two

or three months, Wilson Dec. at ¶ 9; Dep. at 123:17-124:15; Pl.'s

SUF 8, and purchased various items (viz., Lilian flutes, salt and

pepper racks, Ashlee Mugs). These purchases were documented with

four receipts that he received during his visits of September 8,

2003, March 13, 2004, September 25, 2004, and January 30, 2005.

Wilson Dec. at ¶ 8; Dep. at 117:8-13; 123:17-19; Pl.'s SUF 7.

Overall, Wilson has made approximately 16 visits to the store since

September 8, 2003. Wilson Dec. at ¶ 10; Pl.'s SUF 9.

Wilson was forced to roll over the threshold of the store’s

entrance backwards with "a lot of expended energy and pain" to get

into the store. Wilson Dec. at ¶ 13; Dep. at 145:9-19; Pl.'s SUF

12. The curb ramp in existence at the time of Wilson’s visits

projected into the access aisle and parking space, so his

wheelchair would roll away when Wilson tried to get into or out of

his vehicle. Wilson Dec. at ¶ 20' Dep. at 149:25-150:9. The ramp

also "came down too fast," so he had to use extra energy stopping

his wheelchair, or risk hitting his car. Wilson Dec. at ¶ 21; Dep.

at 150:11-18; 151:7-13. Wilson has never fallen off the ramp at

the store though he claims the risk is real. Wilson Dec. at ¶ 23;

Dep. at 134:17-19. 

For the purposes of the ADA, the store was "constructed" in

1989. Hubbard Dec. in Supp. of Pl.'s Mot. For Summ. J. (Hubbard

Dec.) at ¶ 4. It has not been altered, as defined under the ADA

and the CBC, since it opened. 

////

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4

Pier 1 operates and leases the property. Mellon/Pier 1

Properties Limited Partnership I owns the property. See Pier 1's

Response to Request for Admission No. 1 and Mellon's Response to

Request to Admission No. 1, attached as Exhibit 1 to Declaration

of Lynn Hubbard, III. Pier One admits that portions of the store

are considered public accommodations under the ADA. Hubbard Dec.

at ¶ 3.

Plaintiff always drove to the facility and parked in the

accessible parking spaces; he did not access the Store via public

streets, sidewalks, or public transportation. Plaintiff’s vehicle

was not towed. Pl.'s Dep. at 114:17-116:5, 153:7-9, 229:9-230:2;

Samsel Dec., Ex. A. Plaintiff never had a problem to report

pertaining to accessible parking at the Store. Pl.'s Dep. at

142:3-12; Samsel Dec., Ex. A. The Store is all one open space. 

Blackseth Report, page 12. The Store does not provide restrooms

to the public. Id. at 12-13. 

II.

STANDARDS

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Secor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

////

////

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5

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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6

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial." First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

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7

Thus, the "purpose of summary judgment is to 'pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)); See also Headwaters Forest Defense v.

County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000).

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party's obligation to produce a factual predicate from

which the inference may be drawn. See Richards v. Nielsen Freight

Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d

898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

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8

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

III.

ANALYSIS

A. THE ADA

Title III of the ADA prohibits discrimination against

individuals on the basis of disabilities in the full and equal

enjoyment of the goods, services, facilities, privileges,

advantages or accommodations of any place of public accommodation.

See 42 U.S.C. § 12182(a). Title III defines "discrimination" as,

among other things, a failure to remove "barriers . . . where such

removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv);

Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th

Cir. 2002). 

In order to make a prima facie case under Title III of the

ADA, a plaintiff must prove that (l) he has a disability, (2)

defendants’ facility is a place of public accommodation, (3) and

he was denied full and equal treatment because of his disability.

To succeed on a ADA claim of discrimination on account of an

architectural barrier, the plaintiff must also prove that (l) the

existing facility at the defendants’ place of business presents an

architectural barrier prohibited under the ADA, and (2) the removal

of the barrier is readily achievable. See 42 U.S.C. 

§ 12182(b)(2)(A)(iv); Hubbard v. Twin Oaks Health and

Rehabilitation Center, 408 F.Supp.2d 923, 929 (E.D. Cal. 2004). 

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9

If plaintiff satisfies his burden, the burden shifts to the

defendant to show that removal of the barriers is not readily

achievable. 

1. What Constitutes a Barrier?

Defendants contest each one of the alleged barriers raised by

plaintiff. For each one they claim that no barrier exists because

plaintiff’s access was not hindered. As I explain below,

defendants' narrow reading of barrier is unwarranted.

The ADA does not define what constitutes an architectural

barrier for facilities construction prior to 1993. Compliance with

the ADAAG standards is requisite for recent construction. See 28

C.F.R. Pts. 36.401 & 36.406. These standards, however, do not

definitively establish the existence of an architectural barrier

for the Pier 1 store in question as it was constructed prior to

1993 and has not been altered since then. Plaintiff bears the

burden of demonstrating that the barriers exist and that removal

of the barriers is readily achievable. 42 U.S.C. 

§ 12182(b)(2)(A)(iv); Pickern v. Holiday Quality Foods Inc., 293

F.3d 1133, 1135 (9th Cir. 2002); Hubbard, 408 F.Supp.2d at 929. 

Nonetheless, the ADAAG standards “provide valuable guidance for

determining whether an existing facility contains architectural

barriers.” White v. Cinemark USA, Inc., 2005 WL 1856495, *3 (E.D.

Cal. 2005) (Burrell, J.); Access Now, Inc. v. South Florida Stadium

Corp., 161 F.Supp.2d 1357, 1368 (S.D. Fla. 2001) (quoting Pascuiti

v. New York Yankees, 87 F.Supp.2d 221, 226 (S.D.N.Y. 1999)); D'Lil

v. Stardust Vacation Club, 2001 WL 1825832, *4 (E.D. Cal. 2001)

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4 For this reason, the court must reject defendants' argument that

Joe Card’s expert report is unreliable. The objection appears to

rely on the erroneous belief that there is only one “correct” way

to identify barriers, although defendants never identify what

standard they actually believe is applicable. 

10

(Levi, J.)(also citing a DOJ letter which opined that "any element

in [an existing] facility that does not meet or exceed ADAAG

standards [is] a barrier to access.”). 

The presence of structures or other obstacles which do not

meet the AADAG standards does not alone make a prima facie ADA

violation for facilities built before 1993 because they must also

show that the barrier removal is readily achievable. See 36 C.F.R.

Pt. 36.304. However, non compliance with ADAAG standards can

demonstrate a prima facie barrier, which the defendants may rebut

by demonstrating that, despite the non-conformance with the

guidelines, the alleged barrier is not actually hindering equal

access by the plaintiff. See, e.g., White, 2005 WL 1856495 at *4

(citing Access Now, 161 F.Supp.2d at 1367). 

Plaintiff also relies on the 1987 version of the California

Building Code (CBC) which the parties agree was in place when the

facility was constructed. It is clear that, at a minimum, the

facility had an obligation to be in compliance with those

standards. Presence of a violation of those standards could thus

also constitute a barrier. Given that all the barriers discussed

below rely on either the ADAAG or CBC standards, the court need not

reach the question of the applicability, inter alia, of the

American National Standards Institute (ANSI) standards.4 I now

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turn to the parties' arguments. 

Defendants assert that “a ‘barrier’ is a condition that

hinders a disabled person from accessing goods and services at a

facility.” Defs.' Mot. for Summ. J. at 10 (citing Access Now, 161

F. Supp. 2d at 1367, 1370 and other cases). They maintain that

plaintiff was not hindered by the alleged barriers because they did

not entirely prevent his access to the Store. They note that

plaintiff has been able to successfully enter the store, browse

and/or purchase items and then exit the store on approximately 16

separate occasions. They assert that if the purported barriers did

not stop plaintiff from visiting the facility, or will not deter

him from visiting in the future that they could not be barriers.

Clearly, this argument cannot prevail as a matter of plain

English usage. The American Heritage Dictionary defines hinder as

(1) “to be or get in the way of”; or (2) “to obstruct or delay the

progress of” or “to interfere with action or progress.” The

American Heritage Dictionary of the English Language, Fourth Ed.,

Houghton Mifflin Company (2000). Put directly, a barrier need not

have completely blocked or forever deterred the plaintiff,

hindrance suffices. Moreover, defendants utterly misconstrue the

court’s decision in Access Now, Inc. v. South Florida Stadium

Corp., 161 F.Supp. 2d at 1369. Defendants represent that the case

held that the “court should only analyze ‘removal of a barrier that

actually denies disabled persons access . . . .” In fact, the

court used that phrase quite differently stating: “For example,

removal of a barrier that actually denies disabled persons access

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5 Even if defendants' misconstruction were accurate, the court

would be required to reject the assertion. The clear purpose of

the ADA is to provide equal access, not just any access. See

Wilson v. Pier 1 Imports (US), Inc., 413 F. Supp.2d 1130 (E.D. Cal.

2006).

12

to an element of the accommodation would be greatly effective and

the court would be justified in imposing a costly injunction,

provided that the cost is proportionate to the benefit it offers.”

Id. at 1369. In no way was the Access Now court limiting ADA

violations to those barriers which completely deny the plaintiff

access.5 

The apparently deliberate indifference of defendants to their

obligations under the ADA is manifest. In one of the more

egregious examples, defendants claim that the design of the door

was not a barrier to plaintiff because someone else opened the door

for him when he visited the store. This is exactly the sort of

situation the ADA seeks to prevent: the need for a disabled person

to rely upon the help of more able bodied persons in order to go

about day-to-day activities. Wilson, 413 F.Supp.2d at 1130. Put

differently, the fact that plaintiff was able to overcome the

physical obstacles that he faced while in Pier 1 in no way suggests

that the Store is not in violation of the law.

2. When is Barrier Removal Readily Achievable?

The ADA provides that: 

The term "readily achievable" means easily

accomplishable and able to be carried out without much

difficulty or expense. In determining whether an action

is readily achievable, factors to be considered include–

(A) the nature and cost of the action needed under this

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chapter;

(B) the overall financial resources of the facility or

facilities involved in the action; the number of persons

employed at such facility; the effect on expenses and

resources, or the impact otherwise of such action upon

the operation of the facility;

(C) the overall financial resources of the covered

entity; the overall size of the business of a covered

entity with respect to the number of its employees; the

number, type, and location of its facilities; and

(D) the type of operation or operations of the covered

entity, including the composition, structure, and

functions of the workforce of such entity; the

geographic separateness, administrative or fiscal

relationship of the facility or facilities in question

to the covered entity.

42 U.S.C.A. § 12181(9); see also 28 C.F.R. Pt. 36.304(a). Clearly,

this is not a bright line rule, but rather involves a “fact

intensive inquiry that will rarely be decided on summary judgment.”

White v. Divine Investments, Inc., 2005 WL 2491543, *6 (E.D. Cal.

2005) (Damrell, J.). 

It is plaintiff’s burden to demonstrate that barrier removal

is readily achievable. Id.; Pascuiti v. New York Yankees, 87

F.Supp.2d 221 (S.D.N.Y. 1999); Colorado Cross Disability Coalition

v. Hermanson Family Limited Partnership I, 264 F.3d 999, 1002 (10th

Cir. 2001). In the matter at bar, plaintiff’s expert has provided

a report which includes a “Cost Analysis for Retrofit per Plans for

Barrier Removal.” Plaintiff does not provide any analysis of why

these cost should be considered reasonable, or “easily

accomplishable and able to be carried out without much difficulty

or expense.” 28 C.F.R. Pt. 36.304. He claims that all “a

plaintiff must do is present evidence that a suggested method of

barrier removal” meets the standard. 

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 Defendants maintain that the changes proposed by the

plaintiff are not the minimal and small costs that Congress had in

mind. They do not, however, provide any rebuttal design or cost

estimates. Instead, they spend most of their argument disputing

the quality of the Card declaration. They question whether the

Card declaration took into account various factors besides the

cost, including whether the proposed changes would comply with the

applicable codes and regulations, whether the changes would be

approved by the City of Fairfield, etcetera.

The state of the record is disheartening. In sum, neither

party has addressed the statutory standards.

B. UNRUH AND DISABLED PERSONS ACT VIOLATIONS

In addition to seeking relief under the ADA, the plaintiff has

also brought suit under the Unruh Act, a state statute which

provides that damages may be awarded if defendants are found to

have violated § 51 of the California Civil Code. Cal. Civ. Code

§ 52(a). Section 51 provides that:

 All persons within the jurisdiction of this state are

free and equal, and no matter what their sex, race,

color, religion, ancestry, national origin, disability,

or medical condition are entitled to the full and equal

accommodations, advantages, facilities, privileges, or

services in all business establishments of every kind

whatsoever. 

Cal. Civ. Code § 51(b). It further provides that a “violation of

the right of any individual under the Americans with Disabilities

Act of 1990 (Public Law 101-336) shall also constitute a violation

of this section.” Cal. Civ. Code § 51(f). 

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Absent a violation of the ADA, plaintiff must prove that Pier

1 engaged in intentional discrimination. Harris v. Capital Growth

Investors XIV, 52 Cal.3d 1142, 1175 (1991)(“we hold that a

plaintiff seeking to establish a case under the Unruh Act must

plead and prove intentional discrimination in public accommodations

in violation of the terms of the Act.”); Lentini v. California

Center for the Arts, 370 F.3d 837, 847 (9th Cir. 2004) (Holding

that no showing of intentional discrimination is required under the

Unruh Act when the violation is premised on an ADA violation.).

Neither plaintiff nor defendants have provided any briefing on

whether there is intentional discrimination sufficient to establish

an Unruh Act violation for the barriers listed above. Thus,

liability turns on the ADA.

Plaintiff’s complaint also seeks relief under the state’s

Disabled Persons Act (DPA), Cal. Civ. Code §§ 54 et seq. This

statue also provides that a violation of the ADA constitutes a

violation of the DPA. Cal. Civ. Code § 54.1(d). Under the DPA,

however, there is no requirement that the plaintiff show

intentional discrimination in order to demonstrate a violation of

its provisions. Organization for Advancement of Minorities with

Disabilities v. Brick Oven Restaurant, 406 F.Supp.2d 1120 1129-30

(S.D. Cal. 2005)(holding that “a showing of intent to discriminate

is not required to obtain damages under the California DPA.”)

(citing Donald v. Café Royale, Inc., 218 Cal.App.3d 168, 177-180

(1990)); Lonberg v. City of Riverside, 300 F.Supp.2d 942, 951 (C.D.

Cal. 2004)(explaining how subtle differences in the language of the

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6 Plaintiff also sought damages for negligence per se, but during

a hearing before Magistrate Judge Kellison, plaintiff stipulated

that he was only seeking statutory damages, effectively dismissing

that claim. Order filed March 28, 2005 at 1. 

16

DPA and Unruh lead to different requirements with regards to

discriminatory intent); Hankins v. El Torito Restaurants, Inc., 63

Cal.App.4th 510, 520 n. 4 (1998). Neither party in this case has

briefed the merits of a DPA violation outside of the context of a

plain ADA violation. 

Both state statutes provide for monetary damages for

accessibility violations. Under the Unruh Act, a plaintiff can

recover statutory damages in the amount of three times the actual

damages, but in no case less than $4,000.00 “for each and every

offense.” Cal. Civ. Code § 52(a). The California DPA likewise

allows for damages in the amount three time the actual damages, but

in no case less than $1,000.00 “for each offense.” Cal. Civ. Code

§ 54.3. Neither of the statutes require that the party demonstrate

actual damages if they wish to simply collect the statutory

minimum. Brick Oven Restaurant, 406 F.Supp.2d at 1129-30 (citing

Botosan, 216 F.3d 827 and Koire v. Metro Car Wash, 40 Cal.3d 24

(1985)). Under the state’s statutory scheme a defendant cannot be

held liable for damages pursuant to both the DPA and the Unruh Act

for the same barrier. See Cal. Civ. Code § 54.3; and see Brick

Oven Restaurant, 406 F.Supp.2d at 1130. 

Finally, plaintiff has also brought a claim under Health and

Safety Code Part 5.5, and the Business and Professions Code 

§§ 17200 et seq.

6 Again, none of these claims have been briefed

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7 Moreover, declining jurisdiction at this stage would be

inappropriate in any event, given the amount of judicial resources

the court has expended in resolution of the instant motion.

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and thus the court is unable to make any determination with respect

to them. 

Defendants ask the court to decline to exercise subject

matter jurisdiction over the state law claims. A number of courts

have done so, but usually where there were no ADA violations

remaining. See Wander v. Kaus., 304 F.3d 856, 858 (9th Cir. 2002);

Pickern v. Best Western Timber Cove Lodge Marina Resort, 194

F.Supp.2d 1128, 1133 (E.D. Cal. 2002)(Shubb, J.)(“Under 28 U.S.C.

§ 1367(c)(3), the court has discretion to dismiss state law claims

when it has dismissed all of a plaintiff's federal claims.”).

Since the court has found summary judgment for plaintiff

appropriate as to at least one barrier, it is necessary for the

court to exercise jurisdiction for remedial purposes. Thus,

declining jurisdiction is inappropriate.7 Since the court has

not lost the head of federal jurisdiction, there appears to be no

principled justification for declining jurisdiction. See Grove v.

De La Cruz, 407 F.Supp.2d 1126, 1133 (C.D. Cal. 2005). 

C. SPECIFIC BARRIERS

Below, I discuss each of the barriers which plaintiff has

raised in his motion for summary judgment. The complaint also

raised a number of issues which plaintiff has not addressed in his

motion for summary judgment. Along with the obvious fact that he

has moved for summary judgment and not partial adjudication,

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plaintiff has also waived his ability to raise these issues by

stating in various places that it is “[u]ndisputed that the pending

motion for summary judgment addresses the currently known

architectural barriers from the store.” See, e.g., Pl.'s Resp. to

Defs.' SUF at ¶¶ 16, 38, 56, 63. Plaintiff further states that it

is “[u]ndisputed that Card identified all of the violations that

existed at the facility during his inspection” in response to

defendants' note that plaintiff’s expert report failed to address

a number of specific allegations, and that Mr. Card testified that

he was aware of no violations not listed in his report. See, e.g.,

id. at ¶¶ 41, 59, 84. The court therefore grants summary judgment

to defendants on all other purported barriers raised in their

motion for summary judgment which were not identified in

plaintiff’s motion.

Before addressing the motions, the court will briefly address

certain defenses raised by defendant. Defendants, inter alia,

alleged that plaintiff’s complaint was a form which was not drafted

with particularity in regard to this facility. That allegation in

no way prevented defendants from repeatedly raising in response to

each barrier alleged by plaintiff two clearly meritless defenses.

First, they assert as to each barrier that it is not actionable

because, despite the barrier, plaintiff was able to enter the

facility, and that as to each barrier plaintiff applied an

inapplicable standard. This argument is faulty, as explained

above. The latter claim is also erroneous, as discussed above,

because it confuses the finding of a barrier and the “readily

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achievable” standard. Defendants do not point to other standards

which contradict the ADAAG or CBC citations provided. As it has

already addressed these two defenses, the court will make no

further consideration of the “no barrier” or “inapplicable

standards” arguments in this order. 

1. Accessible Parking Spaces and Access Aisles

Plaintiff sets out a number of arguments about the condition

of the accessible parking lot, spaces and their access aisles.

Each will be addressed separately.

a. Tow-Away Signage

Plaintiff argues that the store lacks a sign at the entrance

to the off street parking facility (or in front of each accessible

parking stall) which warns that “unauthorized vehicles not

displaying distinguishing placards or license plates issued for the

physically disabled persons may be towed away at the owner’s

expense.” Pl.'s Mot. for Summ. J. at 5. This issue is raised in

the addendum to the complaint as items numbers two and three. The

expert report submitted by plaintiff refers to the 1987 CBC

requirement 2-7102(e) that each parking space have a sign which

designates that unauthorized vehicles will be towed and which

includes the ISA designation. Defendants do not explain why the

1987 CBC, the 2001 CBC and/or the ADAAG, all of which require the

signs, are inapplicable. The contention appears frivolous.

It appears from the pictures provided by plaintiff that the

sign did not exist at the time his expert visited the store. See

Card Dec., First Photo (they are not numbered). Defendants have

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26 8 Plaintiff makes no showing concerning a future violation.

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provided no evidence to demonstrate this was not a barrier, and

there is no evidence to counter that it once existed. Thus, the

court finds this to be a barrier. 

Defendants claim that fully compliant tow-away signage is now

provided, citing their expert report. Blackseth Report at 10. 

Plaintiff disputes that, but only by citation to his expert report

which is now dated. Card Dec. at ¶ 7(a). Rule 56(e) provides

that: 

When a motion for summary judgment is made and supported

. . . an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleading,

but the adverse party’s response, by affidavits or as

otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.

If the adverse party does not so respond, summary

judgment, if appropriate, shall be entered against the

adverse party.

Here, plaintiff’s response is insufficient because it does not

adequately counter defendants' expert report which avers that a

fully compliant tow sign is now provided. Since the ADA only

provides for injunctive relief, if the barrier has already been

remedied, the issue becomes moot under the ADA, unless there is

some evidence that the violation is likely to re-occur. See Grove

v. De La Cruz, 407 F. Supp. 2d 1126, 1133 (C.D. Cal. 2005); Friends

of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167,

190 (2000); Renne v. Geary, 501 U.S. 312, 320-21 (1991).8

Therefore, the court concludes that the issue is moot for the

purposes of the ADA. However, the claim is not moot under the

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Unruh Act or the DPA since damages are still available, and thus

the court is obligated to complete the ADA analysis. Grove, 407

F.Supp.2d at 1131.

Having found a barrier, the next step is determining whether

the removal of the barrier is readily achievable. Given that the

barrier has already been removed, the court must find that it was

readily achievable, and thus that it violated the ADA and

subsequently the Unruh Act and the DPA. 

In sum, the court finds that the barrier existed, cure was

readily achievable, and therefore the barrier violated the ADA, the

Unruh Act and the DPA. 

b. Sign for Each Accessible Parking Space

Plaintiff claims that accessible parking spaces must be

reserved with a sign showing the ISA, citing the ADAAG § 4.6.4 and

1987 CBC 2-7102(e). This is raised in plaintiff’s complaint as

item 3(a). Defendants again claim that compliant tow-away signage

is now provided. 

ADAAG § 4.6.4 provides that “Accessible parking spaces shall

be designated as reserved by a sign showing the symbol of

accessibility. See 4.30.7. Spaces complying with 4.1.2(5)(b)

shall have an additional sign "Van-Accessible" mounted below the

symbol of accessibility. Such signs shall be located so they

cannot be obscured by a vehicle parked in the space.” Card’s

report refers to the 1987 CBC’s requirement 2-7102(e) that each

parking space have a sign which designates that unauthorized

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9 Plaintiff’s motion for summary judgment on the earlier question

of tow-away signs at the entrance for some reason states that “a

sign must be posted at the entrance to the off street parking

facility (or in front of each accessible parking stall).” The 1987

CDC, however, clearly requires signs in both locations. 

10 Again, given that defendant’s cured the deficiency, there is

no reason to conclude that cure was not readily achievable. 

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vehicles will be towed and which includes the ISA designation.

9

Once again, defendants have not provided any convincing argument

as to why the absence of requisite signage is not a barrier.

Defendants' expert reports that the appropriate signs are provided,

and given that it is more recent in time than plaintiff’s report,

the court must conclude that defendants have cured the defect,

mooting the ADA claim.10 Once again, however, for the same

reasons noted above, the state claims are not moot and the court

grants summary judgment to plaintiff under those. 

c. Size of Accessible Stalls

Plaintiff’s motion for summary judgment claims that the

“[s]ingle accessible stalls constructed in 1987 must be 108 inches

wide, and have a 96-inch wide access aisle. Both must be level,

with surface slopes not exceeding 1:150(2%) in all directions. And

any vertical change in level must not exceed half-an-inch (1⁄2”).”

Pl.'s. Mot. for Summ. J. 5. 

This barrier was not raised in the complaint nor has plaintiff

moved to amend the complaint to add it, although it is identified

in the plaintiff’s expert report. As I now explain, these facts

in no way represent defects preventing the court’s consideration

of plaintiff’s claim.

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11 Fed. R. Civ. P. 8(a) only requires “a short and plain statement

of the claim showing that the pleader is entitled to relief.” See

also Feezor v. Chico Lodging, LLC, F.Supp.2d , 2006 WL 488153,

*3 (E.D. Cal. 2006).

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It is beyond dispute that Rule 8 of the Federal Rules of Civil

Procedure sets out a liberal pleading standard which applies in

every civil case not addressed by Rule 9, unless Congress has

specifically directed otherwise. Galbraith v. County of Santa

Clara, 307 F.3d 1119, 1124-26 (9th Cir. 2002)(confirming that

heightened pleading standards may not be set out by judicial

interpretation, rather “federal courts and litigants must rely on

summary judgment and control of discovery to weed out unmeritorious

claims sooner rather than later”)(citing Leatherman v. Tarrant

County Narcotics Intelligence & Coordination Unit, 507 U.S. 163

(1993); Crawford-El v. Britton, 523 U.S. 574 (1998) and

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).

Liberal pleading standards do not require that the plaintiff

identify each individual ADA violation in the initial complaint.11

See Parr v. L & L Drive-Inn Rest., 96 F.Supp.2d 1065, 1083 (D. Haw.

2000); Independent Living Resources v. Oregon Arena Corporation,

982 F.Supp. 698, 770 (D. Or. 1997). Of course, defendants may,

during the course of the litigation, require plaintiff to supply

them with a fair apprisal of his contentions. Id. This can be

accomplished through the exchange of expert reports, through

contention interrogatories, a motion to amend, or through the

procedures applicable to motions for summary judgment. 

Swierkiewicz, 534 U.S. at 512 (“This simplified notice pleading

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12 There was also ample time in the course of this litigation for

the defendant to request a more specific statement, but none was

sought. 

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standard relies on liberal discovery rules and summary judgment

motions to define disputed facts and issues and to dispose of

unmeritorious claims.”). 

In the matter at bar, plaintiff provided an initial list of

specific violations in the complaint, and subsequently provided

further violations in the expert report, the plaintiff’s motion for

summary judgment moves only on items which were identified in the

expert report and/or the complaint.12 It is plain that defendants

have been fairly apprised of the alleged existence of the barrier.

Thus, the court now turns to plaintiff’s contentions.

It appears that the 96-inch wide access aisle requirement is

found in the ADAAG at 4.1.2, while the 108 inch requirement comes

from the 1987 CBC at 2-7102(B). Plaintiff claims that the “store’s

access aisle is 62 inches wide” and “the accessible parking stall

is only 102 1⁄2-inches wide.” Id. Plaintiff’s expert report

demonstrates the inadequate size of the space, and defendants’

report does not contradict that. Defendants claim that the “the

disabled parking space was replaced by two new disabled parking

spaces.” Defs.' Opp'n to Pl.'s Mot. for Summ. J. at 19. Thus,

summary judgment must be granted for defendants as to the ADA

claim, as it appears the issue is mooted by defendants' conduct.

As explained above, the claim is not moot, however, under

the Unruh Act or the DPA and thus the court must determine whether

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13 4.5.2 Changes in Level: “Changes in level up to 1/4 in (6 mm)

may be vertical and without edge treatment (see Fig. 7(c)). Changes

in level between 1/4 in and 1/2 in (6 mm and 13 mm) shall be

beveled with a slope no greater than 1:2 (see Fig. 7(d)). Changes

in level greater than 1/2 in (13 mm) shall be accomplished by means

of a ramp that complies with 4.7 or 4.8.”

14 4.6.3 Parking Spaces: “Accessible parking spaces shall be at

least 96 in (2440 mm) wide. Parking access aisles shall be part

of an accessible route to the building or facility entrance and

shall comply with 4.3. Two accessible parking spaces may share a

common access aisle (see Fig. 9). Parked vehicle overhangs shall

not reduce the clear width of an accessible route. Parking spaces

and access aisles shall be level with surface slopes not exceeding

1:50 (2%) in all directions.” 

15 Slope of parking space: “Surface slopes of parking spaces for

the physically handicapped shall be the minimum possible and shall

not exceed 1/4-inch per foot (2.083% gradient) in any direction.”

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the removal of the barrier was readily achievable. Given that the

barrier has already been removed, the court must find that it was

readily achievable, and thus that it violated the ADA and

subsequently the Unruh Act and the DPA. 

d. Slope of Space is too great

Plaintiff claims that the accessible parking space exceeds the

slope permitted by the ADAAG §§ 4.5.213, 4.6.314 and 1987 CBC 2-

7102(d).15 He claims that the slope is 3.6%, with a cross slope

between 2.8% and 3.2% and an abrupt, vertical changes of 2 inches

(without a ramp). . . .” Pl.'s Mot. for Summ. J. at 5-6. 

Plaintiff cites to his expert report, which includes a photograph.

Defendants claim that the barrier does not now exist because

“the disabled parking space was replaced by two new disabled

parking spaces.” Defs.' Opp'n to Pl.'s Mot. for Summ. J. at 25.

////

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They do not dispute that the original space was actually too steep.

The court thus finds that a barrier existed. Summary judgment must

be granted for defendants, as it appears the issue is moot for the

purposes of the ADA if the proper parking spaces are now in place.

For the same reasons noted above, the state claims are not mooted,

and the court must again consider whether cure was readily

achievable. Once again, given defendants' conduct, the court

concludes that it was and thus that it violated the ADA and

subsequently the Unruh Act and the DPA. 

e. The Ramp Protrudes into Aisle

Plaintiff claims that the ramp which serves the accessible

parking space protrudes into the access aisle and thus violates

ADAAG § 4.6.3 by creating too extreme of a slope for the aisle.

Plaintiff cites to his expert report, which includes a photograph.

This issue was raised in the complaint by item 7(a) of the survey

of access code violations.

Defendants cite to their expert report, and plaintiff states

that it is “unknown” whether a new ramp has been installed and

contend that “[i]f this change occurred after Wilson’s Rule 56(f)

site inspection, then a second inspection is needed.” Pl.'s

Resp. to Defs.' SUF 53. Unfortunately for plaintiff, discovery has

closed and no further 56(f) delays are appropriate. Thus, summary

judgment must be granted for defendants on this issue as it is

moot, the state of the record being that a ramp has been installed

and the parking spaces are in compliance with the ADAAG and recent

CBC standards. Accordingly, the court concludes that the claim is

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16 4.7.2 Slope: “Slopes of curb ramps shall comply with 4.8.2.

The slope shall be measured as shown in Fig. 11. Transitions from

ramps to walks, gutters, or streets shall be flush and free of

abrupt changes. Maximum slopes of adjoining gutters, road surface

immediately adjacent to the curb ramp, or accessible route shall

not exceed 1:20.”

17 4.7.5 Sides of Curb Ramps: “If a curb ramp is located where

pedestrians must walk across the ramp, or where it is not protected

by handrails or guardrails, it shall have flared sides; the maximum

slope of the flare shall be 1:10 (see Fig. 12(a)). Curb ramps with

returned curbs may be used where pedestrians would not normally

walk across the ramp (see Fig. 12(b)).”

18 4.8.2 Slope and Rise: “The least possible slope shall be used

for any ramp. The maximum slope of a ramp in new construction

shall be 1:12. The maximum rise for any run shall be 30 in (760

mm) (see Fig. 16). Curb ramps and ramps to be constructed on

existing sites or in existing buildings or facilities may have

slopes and rises as allowed in 4.1.6(3)(a) if space limitations

prohibit the use of a 1:12 slope or less.”

19 The 1987 CBC 2-7101(a) provides a highly general statement that

“site development and grading shall be designed to provide access

to primary entrances and access to normal paths of travel and where

necessary to provide access shall incorporate pedestrian ramps,

curb ramps, etc.” 

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moot under the ADA, that the correction was readily achievable and

violation of the state claims is not moot.

3. Curb Ramps

Plaintiff claims that the curb ramps violate the ADAAG 

§§ 4.7.2,16 4.7.5,17 4.8.218 and the 1987 CBC 2-7101(a)19 because the

slope of the ramp generally is 9.3%, and the slope of the flares

is 48%. Defendants claim that this ramp has been replaced with a

depressed style ramp that complies with the current ADAAG and CBC

standards. Defendants do not dispute that the slope was measured

correctly by plaintiff. Thus, the court finds that a barrier did

exist. Summary judgment must be granted for defendants on this

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20 They cite ADAAG §§ 4.1.2(1), 4.3.2(1), 4.1.4.1; 28 C.F.R. 

Pt. 36.304(c)(1); and CBC § 2-7101(a) (1987 version). These all

generally provide that there must be at least one route “provided

within the boundary of the site from public transportation stops,

accessible parking spaces, passenger loading zones if provided, and

public streets or sidewalks, to an accessible building entrance.”

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issue for the purposes of the ADA as the issue is moot if a new

ramp has been installed and the parking spaces re-done to be in

compliance with the ADAAG and recent CBC standards. Once again,

since defendant has already remedied the barrier, the court must

find its removal was readily achievable and grant summary judgment

to plaintiff under the state law claims.

4. Routes of Travel

Plaintiff claims that a public accommodation must provide

access from the public sidewalks to the store’s entrance, and they

claim there is no such access here.20 Defendants claim that there

is a 48-inch wide continuous unobstructed path between the store

and public sidewalk. ADAAG defines an accessible route as “A

continuous unobstructed path connecting all accessible elements and

spaces of a building or facility. . . . Exterior accessible routes

may include parking access aisles, curb ramps, crosswalks at

vehicular ways, walks, ramps, and lifts.” ADAAG 3.5 “Definitions”

(emphasis added). Plaintiff disputes the existence of an access

way, but it appears that he is basing this on the belief that there

needs to be a separate route other than via the parking lot. There

does not appear to be any such requirement in any of the

regulations plaintiff cites. Therefore, it does not appear that

they have raised an issue of fact as the existence of such a

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21 The court believes this refers to the emergency exit at the

backside of the store. 

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barrier, and thus summary judgment must be granted for defendants

on this issue under the ADA. Plaintiff has not provide a separate

analysis under the Unruh Act or the California DPA and thus the

court will grant summary judgment to defendants for those claims

as well. 

5. Doors

a. The Landing is Not Level

Plaintiff claims that the floor or landing in front of an

accessible door must be level, with a slope no greater than 2%.

He claims that the store’s egress path of travel21 has a 4 3/4 inch

rise with no landing. His brief cites to ADAAG §§ 4.13(9), 4.3.10

and CBC 2-3304(h). The CBC states that the floor or landing shall

not be more than 1⁄2-inch lower than the threshold of the doorway,

and ADAAG requires that “accessible means of egress” be provided

“in the same number as required for exits by local building/life

safety regulations.” Defendants' expert claims that only one

access route is required by ADAAG and the CBC. This appears to be

correct, as the ADAAG and the CBC only requires that at least one

accessible route be provided. ADAAG § 4.3.10, 4.1.3 (1); CBC 2-

3304(a)(1) (“Buildings or structures used for human occupancy shall

have at least one approved exit door.”). Thus, summary judgment

shall be granted for defendants on this issue under the ADA, the

Unruh Act and the California DPA. 

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b. Panel Handles are Difficult to Use With One Hand

ADAAG § 4.13.9 requires that “[h]andles, pulls, latches,

locks, and other operating devices on accessible doors shall have

a shape that is easy to grasp with one hand and does not require

tight grasping, tight pinching, or twisting of the wrist to

operate. Lever-operated mechanisms, push-type mechanisms, and

U-shaped handles are acceptable designs.” Plaintiff claims that

the panel type handles are not easy to use with one hand. 

Defendants, however, claim that the panel handle can be opened

without grasping, pinching or twisting of the wrist. This item was

raised in the complaint, see item 9b, and plaintiff and defendants

have moved on the issue. 

The Department of Justice and the U.S. Small Business

Administration have issued a publication entitled the ADA Guide for

Small Businesses. Card Dec., Ex. 2 (also available at

http://www.ada.gov/smbusgd.pdf (last visited on Feb. 27, 2006)).

The publication examines a number of architectural barriers

including the types of door handles which are considered to be

accessible. The documents specifically states that panel-type

handles require “the user to tightly grasp the handle to open the

door. Many people with mobility disabilities and others with a

disability that limits grasping, such as arthritis, find this type

of handle difficult or impossible to use” and thus lists the paneltype handles as “not accessible.” ADA Guide for Small Businesses

at 8. While this document does not rise to the level of a

regulation, the court is entitled to give appropriate respect to

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agency interpretation contained in opinion letters or similar

documents so long as they have the power to persuade. See

Christensen v. Harris County, 529 U.S. 576, 587 (2000);

Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 793 (9th Cir. 2004). The

reasons given in the document appear to be persuasive and it

comports with the regulations themselves and thus the court finds

that the panel type handle is a barrier as defendants have offered

no persuasive evidence otherwise.

As set out above, the plaintiff bears the initial burden of

establishing that removal of the barrier is readily achievable. 

Plaintiff’s expert, Joe Card, has provided a cost analysis of the

different barriers that he identified. This lists a total cost of

$785.00 to repair the threshold, door pressure, door hardware, and

“door closer.” The report does not break down the cost of

replacing just the door handle. That said, defendants do not

respond with specific evidence to demonstrate that replacing the

handle is not readily achievable due to the cost or other factors.

Defendants object to various aspects of the Joe Card report

including a specific objection to the costs estimates as being

“untimely.” Defendants claim that the court ordered that the

expert reports be submitted by April 1st (Card’s cost estimates

were not submitted until April 22nd). However, the order actually

requires that the name of all experts and their reports be

submitted sixty days before the close of discovery, which the order

designates as July 1, 2005. No matter how you add it up, that does

not make the report due on or before April 22, 2005. Therefore,

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the report was timely submitted. 

As set out above, the ADA highlights a number of factors to

help determine whether the barrier is repairable. Despite the

limited information provided by both parties, it seems plain that

replacing a door handle is readily achievable. 42 U.S.C. 

§ 12181(9). Defendants object to the design plans provided by the

Card Report, but it is unnecessary to use those here since the

issue is a simple one of replacing a door handle. Based on the

apparent simplicity of the task, the overall size of Pier 1 and the

company’s resources, there appears to be little question that the

removal of this barrier is readily achievable. Therefore, summary

judgment shall be granted for plaintiff on this issue under the

ADA, the Unruh Act, and the DPA.

c. Doorway Threshold

ADAAG § 4.13.8 states “[t]hresholds at doorways shall not

exceed 3/4 in (19 mm) in height for exterior sliding doors or 1⁄2 in

(13 mm) for other types of doors. Raised thresholds and floor

level changes at accessible doorways shall be beveled with a slope

no greater than 1:2 (see 4.5.2).” CBC 2-3304(h) requires any

“change in level between 1/4-inch and 1/2-inch shall be beveled

with a slope no greater than 1:2. Change in level greater than 1⁄2

inch shall be accomplished by means of a ramp.” 

Plaintiff claims that the doorway has a threshold of 11⁄2

inches. Defendant argues that the condition has been modified so

that there is now only a 1⁄2 inch threshold, thus making the issue

moot under the ADA. Plaintiff disputes this by citing the older

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22 The 1987 CBC -3301(F) also provides that recessed doormats

shall be adequately anchored to prevent interference with

wheelchair traffic. There appears to be no dispute that there are

no recessed doormats.

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Card Declaration, thus not providing an adequate response to the

newer report by defendants' counsel. Defendants do not, however,

contest that the threshold was not originally greater than 1⁄2 inch.

Summary judgment must be granted for defendants on this issue under

the ADA as the change makes the issue moot, but not under the state

claim. Again, given the repair there appears to be no question of

ease of repair. Thus, the court must find that the condition

violated the ADA and the Unruh Act and the DPA. 

6. Store’s Interior

Plaintiff claims that the doormats at the entrance to the

store violate the ADA. ADAAG § 4.5.3 states: “[i]f carpet or

carpet tile is used on a ground or floor surface, then it shall be

securely attached; have a firm cushion, pad, or backing, or no

cushion or pad; and have a level loop, textured loop, level cut

pile, or level cut/uncut pile texture. The maximum pile thickness

shall be 1⁄2 in (13 mm) (see Fig. 8(f)). Exposed edges of carpet

shall be fastened to floor surfaces and have trim along the entire

length of the exposed edge. Carpet edge trim shall comply with

4.5.2.”22

In defendants’ objections to Mr. Card’s report, they cite to

the website of the Access Board (which includes members of the DOJ

who set the ADA regulations) which contains a “Frequently Asked

Questions” section. Therein, the question asked is whether “the

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23 It is unclear whether the Board’s answer should be treated by

this court as persuasive or merely some evidence.

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mats placed on the floor of my office lobby during wet weather are

considered carpet that must be firmly attached?” In response, the

Board states: 

No, such mats are "furnishings" not covered by ADAAG.

However, section 36.211 of the Department of Justice

rule requires that accessible features be maintained so

such furnishings cannot degrade the accessible route.

So-called "walk-off mats" are designed to provide

traction on wet floors and, as long as they are stable

and do not pose a tripping hazard, they may actually

improve the accessibility of a surface. On the other

hand, loose throw rugs, for example, could decrease the

accessibility of a surface. 

http://www.access-board.gov/adaag/about/FAQ.htm#gfs1 at Question

4.5.23 The district court in White v. Divine Invs. held that these

mats were not carpet, and therefore did not violate the ADA by not

being pinned down. 2005 WL 2491543, at * 6 (E.D. Cal. 2005)

(Damrell, J.). The doormats pictured are likely provided for the

safety of customers to keep them from slipping on wet floors. They

have a trim and are backed with rubber and are meant to stick to

the floor. These mats do not fairly constitute a barrier and

therefore summary judgment for defendants is granted under the ADA,

Unruh and California DPA. 

F. OBJECTIONS AND MOTION TO STRIKE

Defendants have filed a forty page list of objections and

requests to strike evidence submitted by the plaintiff. The court

has already addressed a number of these objections above and will

now discuss the single remaining objection relevant to the use of

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24 Card also comments on the cost of making repairs, and the

design, but the court did not rely on this testimony for this

motion with the exception of the discussion above relative to the

door handle and therefore need not analyze further whether Card has

sufficient expertise in this area.

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the report in the resolution of these motions. 

Defendants request that the court strike Mr. Card as an expert

because they claim that he is not qualified.24 Essentially, to

report on the matters addressed in the report all that appears to

be required is the ability to read a tape measure and use a level.

Fed. R. Evid. 702. Mr. Card is a licensed contractor (Contractor

License # 725153) with almost ten years of experience, along with

six years working as a disabled access expert. Card Dec., Ex. 1;

Pl.'s Opp'n to Mot. to Strike at 2-3. He also has received

approximately 30-40 hours of training on the CBC, part of which

included a brief discussion of the ADA in one of the classes. Id.

This appears to be sufficient for the task of determining whether

physical measurements match those in the ADAAG and CBC.

IV.

ORDER

The parties' cross-motions for summary judgment are GRANTED

in part and DENIED in part as set forth above. 

IT IS SO ORDERED. 

DATED: April 12, 2006.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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