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1

 Plaintiff brings claims pursuant to Health and Safety Code

Part 5.5 (California Health and Safety Code §§ 19955 et seq.), the

Unruh Act (California Civil Code §§ 51 et seq.), the Disabled

Persons Act (California Civil Code §§ 54 et seq.), the Unfair

Business Practices Act (California Business and Professions Code

§§ 17200 et seq.), and Negligence (California Civil Code § 1714).

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

STEVE EIDEN,

NO. CIV. S-04-977 LKK/CMK

Plaintiff,

v. O R D E R

HOME DEPOT USA, INC., dba

HOME DEPOT #6609; and HD

PROPERTIES OF MARYLAND,

Defendants.

 /

Plaintiff, Steve Eiden, sues defendant, Home Depot, pursuant

to the American with Disabilities Act of 1990, 42 U.S.C. §§ 12101

et seq. (“ADA”). He also asserts state law claims.1. Defendant

moves for summary judgment asserting that plaintiff’s suit is moot

by virtue of its remedial efforts, while plaintiff cross-moves on

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 Facts are undisputed unless otherwise noted. 

2

his ADA and Unruh Act claims. Pl.’s Mot. at 2. I decide the

matter based on the pleadings, the parties’ papers, and after oral

argument. 

I. 

FACTS2

Plaintiff is a paraplegic who uses a wheelchair for

mobility. He is unable to walk, and has limited use of his arms.

Pl.’s SUF 1; Def.’s SUF 16. Eiden has patronized the Home Depot

located at 2580 Notre Dame Boulevard in Chico, California, for the

past five-to-six years, and visits the store approximately two-tothree times a month. Pl.’s SUF 2. Eiden contends that he has

encountered a number of barriers that have made it difficult for

him to fully access the facility. Pl.’s SUF 4. 

On May 20, 2004, plaintiff filed a complaint, which alleges

that he encountered “architectural barriers that denied him full

and equal access.” Compl. at 4. Attached to his complaint is a

list of barriers, which he claims were the barriers “known by

[him].” Ex. A to Pl.’s Compl. The complaint identifies the

following thirteen “barriers”: 

(1) Tow-Away Signage at Parking Lot Entrance is difficult to

read; 

(2) The cross-slope of the route of travel from public

streets, sidewalks, and transportation exceeds 2%, and is

7,3%;

(3) There is no directional signage along the route of travel

from the public streets or sidewalks to the building

entrance;

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3

(4) There are no detectable warnings at the route for a

person in a wheelchair traveling through vehicle areas to

reach the ramp;

(5) The accessible parking spaces are not dispersed and

located closest to the accessible entrances; 

(6) Shopping carts were left in disabled parking spaces and

access aisles creating an obstruction; 

(7) The words “NO PARKING” are not painted in the access

aisles; 

(8) The ISA signage on the entrance door is only 36 inches

above ground, making it difficult to see;

(9) Some aisles in the store were obstructed by merchandise

narrowing the width of the aisles;

(10) The sales counter is too high, 44 inches in height at

the customer service desk;

(11) There were no accessible check stands, and signage

identifying accessible checkout aisle was not mounted on

checkout locations;

(12) The compartment stall door in the men’s restroom does

not have a loop or U-shaped handle under the latch;

(13) The toilet paper dispenser projects 5 inches from the

wall, and is set above the grab bar and in the space a person

in a wheelchair needs for an approach to the toilet. 

Plaintiff claims that subsequent to filing this action, he

returned to defendant’s premises in September 2004, and that

despite his complaints, Home Depot failed to correct the

architectural barriers. Pl.’s SUF 5, 6. 

On July 13, 2005, plaintiff asked his expert, Joe Card

(“Card”), to visit the Home Depot in order to identify the

architectural barriers that violate the ADA and to create a report.

Pl.’s SUF 19. Card identified the architectural barriers Eiden

alleged in his complaint, but also identified additional barriers

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which Eiden did not previously note. Eiden claims he “now has

notice” of those barriers. Pl.’s SUF 19. 

On August 23, 2005, defendant filed for summary adjudication,

arguing that the suit is moot because defendant allegedly

eliminated the violations complained of in Eiden’s complaint.

Def.’s Mot. at 1. Plaintiff opposed this motion and moved for

further discovery under Fed. R. Civ. P. 56(f). On September 14,

2005, the court granted this request so that plaintiff’s expert

could return to the Home Depot “to determine if the previously

identified ADA violations have been removed.” September 14, 2005

Order at 3.

Card returned to defendant’s premises for an inspection on

October 7, 2005. Plaintiff’s counsel instructed Card to “reinspect

the location and document any corrections made to the violations

that were identified in the first report.” Card Dec. at 2. Card,

however, identified a myriad of other barriers which were not

previously identified by plaintiff in his complaint. See Card

Dec. 2-5; Ex. A to Card Dec. Discovery closed on October 4, 2005

pursuant to the court’s scheduling order. 

It is undisputed that certain conditions have been remediated.

The parties, however, dispute whether a number of other barriers

remain.

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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).

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,

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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,

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

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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.

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).

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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

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

PRELIMINARY QUESTIONS 

Pending before the court are cross-motions for summary

judgment filed by both parties. Home Depot asserts that the

thirteen architectural barriers alleged in the complaint no longer

exist. It maintains that no live controversy exists, and thus,

“[p]laintiff’s ADA claim must be dismissed.” Defendant also

asserts that plaintiff lacks standing to maintain the other alleged

barriers. Def.’s Mot. at 1. Plaintiff cross-moves on the grounds

that defendant has failed to correct multiple barriers properly

before the court. Plaintiff argues, inter alia, that defendant’s

motion should be denied because there remain barriers which “were

identified by plaintiff’s expert, and which relate to plaintiff’s

disability,” thus making the case a live controversy. Pl.’s Mot.

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3

 Plaintiff has filed one brief which represents his motion

for summary judgment as well as his opposition brief to defendant’s

motion for summary judgment. 

9

and Opp’n at 17.3

It is undisputed that a number of barriers alleged in

plaintiff’s complaint were subsequently corrected by defendant.

The tow-away signage posted at the entrance to the store has

numbers that are two-and-a-half inches tall. Def.’s SUF 5.

Defendant additionally installed the ISA symbol to the right of the

double doors at all three entrances to the store at a height of 60

inches above the ground to the center of the sign. Home Depot

painted the words “no parking” on the pavement of the access aisles

to the van accessible parking lots.” Def.’s SUF 7. Defendant

installed the ISA symbol above check out stand numbers one (1) and

six (6), as well as the check stand in the garden. A U-shaped

handle on the designated accessible stall in the men’s restroom was

installed and the toilet paper dispenser was positioned so it does

not protrude more than four (4) inches from the wall. Def.’s SUF

13, 14. 

Before addressing the merits of the case, however, I address

several threshold issues.

A. WHICH CLAIMS ARE ACTIONABLE?

Preliminary to resolving the motions, the court must first

determine which architectural barriers are properly before the

court. Plaintiff asserts claims based upon the thirteen barriers

alleged in his complaint and on those identified in the two Card

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4

 Before the close of discovery, Card first visited

defendant’s premises on July 13, 2004 to identify barriers that

violate the ADA and other state law and to generate a report. From

that visit, Card identified a total of twenty-three barriers, some

of which appear to overlap with the thirteen barriers plaintiff

identified and some which are newly identified barriers. 

On October 7, 2005, after the close of discovery, Card

returned to defendant’s premises. As a result of that visit, Card

identified twenty-nine additional violations. See Card Dec. 2-5;

Ex. A to Card Dec. 

10

expert reports. Defendant does not raise objections as to the

barriers alleged in plaintiff’s complaint, but argues that

plaintiff lacks standing to bring suit as to the violations

discovered by Card and which were identified in his two reports.4

Below, I conclude that the violations identified in the first Card

report are actionable, but those contained in the second Card

report are not cognizable in the instant suit.

Defendant contends that plaintiff lacks standing to sue on

barriers that he did not personally encounter on his visits to Home

Depot. It contends that “at the time he filed his complaint, Eiden

was not aware of and had not been affected by the alleged

violations identified in the Card Report.” Def.’s Rep. at 4. 

Defendant asserts that allowing plaintiff to sue on the violations

in the reports would offend standing principles. Put simply,

defendant argues that plaintiff is not entitled to allege

violations which were not alleged in his original complaint, citing

Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d

1357, 1366 (S.D. Fla. 2001)(holding that a plaintiff’s mere entry

into the stadium did not automatically confer upon him a

presumption of injury from any and all architectural barriers in

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the stadium). Defendant also relies on several cases which were

decided in this district. See Martinez v. Longs Drugs Stores,

Inc., 2005 WL 2072013, *4 (E.D. Cal. 2005) and White v. GMRI, Inc.,

CIV-S-04-0465 DFL/CMK (E.D. Cal. 2004).

Plaintiff, on the other hand, argues that in addition to the

barriers alleged in his complaint, he is entitled to assert claims

contained in his experts’ two reports because “the ADA encompasses

all barriers that relate to that person’s disability within the

entire subject public accommodation,” not just the ones known to

plaintiff prior to filing the complaint. Pl.’s Repl. at 6

(emphasis in the original). Plaintiff also contends that he can

allege further architectural barriers following the filing of his

complaint, relying on Pickern v. Holiday Quality Foods, Inc., 293

F.3d 1133 (9th Cir. 2002). Pl.’s Repl. at 6. 

The court recently had occasion to address the issue of

standing and the ADA in Wilson v. Pier 1 Imports, 413 F.Supp.2d

1130 (E.D. Cal. 2006). As in Wilson, defendant in the case at bar

relies on a standard offered in White/Martinez that this court

believes is “unduly restrictive,” and thus, the court cannot adhere

to it. No purpose would be served by repeating the analysis

articulated in Wilson. With respect to the two Card reports,

nothing in the ADA requires plaintiff to have personally

encountered all barriers in order to seek an injunction to remove

those barriers. 

Nor is plaintiff’s suit limited to the barriers that he

alleged in his complaint. As this court previously explained,

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“[o]nce plaintiff either encountered discrimination or learned of

the alleged violations through expert findings or personal

observation, he had ‘actual notice’ that defendant did not intend

to comply with the ADA.” See Wilson, 413 F.Supp.2d at 1134. As

the court further noted,

“the injury-in-fact requirement of Article III standing

is easily satisfied by liberally construing it in this

context. All that is required is to recognize that the

injury suffered relative to later-discovered barriers is

the threat of being subjected to discrimination suffered

by virtue of the existence of barriers, whether or not

initially encountered.” 

Id. 

Having explained that, as a general matter, plaintiff is not

bound by the specific ADA claims asserted in his complaint under

Constitutional standing principles, the court addresses defendant’s

argument that plaintiff “should not be permitted to construe his

complaint as entirely generic and incorporate new factual

allegations without seeking amendment” as this would “read the

‘fair notice’ requirement out of Rule 8(a).” Def.’s Repl. at 4.

Indeed, although plaintiff’s complaint need only state a “short and

plain statement of the claim showing that the pleader is entitled

to relief,” see Fed. R. Civ. P. 8(a)(2), plaintiff must still

provide “fair notice” for specific claims not asserted in his

complaint. 

The court finds that under the circumstances, the alleged

barriers in the first Card report are actionable, while the ones

contained in the second Card report are not. Card performed a site

inspection on July 13, 2005 and subsequently created a report based

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 The court’s scheduling order specified discovery would

close on October 4, 2005.

6

 That is not to say that amendment of the complaint is not

the better practice – clearly it is.

13

on that inspection which identified architectural barriers that he

believed were in violation of the ADA Accessibility Guidelines and

the California Building Code. Card Dec. at 2 (September 12, 2005).

Defendant concedes that it was aware of these alleged barriers as

early as July 29, 2005, over two months before the close of

discovery.5

 It appears to this court that an action on particular

barriers lies so long as “the parties and the court [were] able to

identify the alleged violations with reasonable certainty.” 

Independent Living Resources v. Oregon Arena Corp., 982 F.Supp.

698, 770 (D. Or. 1997); see also Parr v. L & L Drive-Inn

Restaurant, et al., 96 F.Supp.2d 105, 1083-84 (D. Haw. 2000)(citing

Independent Living Resources). Rule 8(a)'s "simplified notice

pleading standard relies on liberal discovery rules and summary

judgment motions to define disputed facts and issues and to dispose

of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S.

506, 512 (2002). Where, as here, plaintiff discovered new alleged

violations during the discovery period that were not pled in the

complaint, but disclosed to defendant in sufficient time to permit

defendant to address them in discovery and by way of law and

motion, the court concludes plaintiff is not precluded from raising

these allegations on a motion for summary judgment or at trial.6

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As for the barriers contained in the second Card report, the

court holds that they are not cognizable in this litigation because

defendant did not have sufficient notice that they would be an

element of plaintiff’s law suit. It was not until three days after

the close of discovery, on October 7, 2005, that Card returned to

defendant’s premises to determine whether the previously-identified

barriers were removed. Consistent with this court’s order,

plaintiff’s counsel instructed Card to “reinspect the location and

document any corrections made to the violations that were

identified in the first report.” Card Dec. at 2. Rather than

reinspect the location and document any corrections previously

identified, Card identified twenty-nine other barriers which were

not previously identified by plaintiff in his complaint. See Card

Dec. 2-5; Ex. A to Card Dec. Because the court’s scheduling order

made clear that discovery would close on October 4, 2005, plaintiff

is precluded from asserting any further ADA claims after this

deadline without the court’s permission. Put differently, because

plaintiff did not provide fair notice to defendant of the new

violations, and because he did not comply with the court’s

scheduling order, he cannot assert these violations now in his

motion for summary judgment, or at trial. To hold otherwise

undermines the whole thrust and purpose of scheduling orders. See

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992)

("A schedule shall not be modified except upon a showing of good

cause and by leave of the district judge") (quoting Fed. R. Civ.

P. 16(b)). 

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7

 Plaintiff pleads in his complaint that his Unruh Act claim

is predicated upon the ADA claim. See ¶ 63 of Compl. (“The Unruh

Act also specifically incorporates (by reference) an individual’s

rights under the ADA”).

15

For the reasons explained above, the court holds that the

claims asserted in the first Card report are actionable and shall

be adjudicated by this court, but that the claims alleged in the

second Card report are not actionable in this suit. The court now

turns to Unruh Civil Rights Act and ADA violations alleged by

plaintiff.

B. THE UNRUH ACT

Plaintiff seeks summary judgment pursuant to the Unruh Act

because his claim is predicated upon defendant’s violation of the

ADA. Pl.’s Mot. and Opp’n at 2, 20, 23.7 He asserts that “a

violation of his rights under the ADA is a per se violation of his

rights under the Unruh Act.” Id. at 23 (italics in the original).

Defendant, however, maintains that plaintiff’s claims should be

dismissed as moot. They argue that because only injunctive relief

may be granted under the ADA, once a plaintiff has received

everything the court would order, the claims are moot. Def.’s

Repl. at 10. Further, they maintain that because the court has

jurisdiction over this case because of the federal claims, the

court should refuse to exercise supplemental jurisdiction over the

state law claims. Repl. at 10. I do not agree.

First, because there remain disputed issues as to a number of

the ADA claims, there remains a live controversy as to the federal

claims. Thus, the court may still exercise supplemental

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jurisdiction over plaintiff’s state law claims. As to defendant’s

assertion that plaintiff is not entitled to relief once an

injunction is inappropriate under the ADA, nothing prevents the

court from exercising supplemental jurisdiction even as to those

barriers which have been corrected. I now turn to the provisions

of the Unruh Act.

The Unruh Civil Rights Act, codified in California Civil Code

§ 51, provides that “[a]ll persons . . . are entitled to full and

equal accommodations, advantages, facilities, privileges, or

services in all business establishments of every kind whatsoever.”

Cal. Civ. Code § 51(b). The purpose of the Unruh Act “is to compel

a recognition of the equality of citizens in the right to the

peculiar service offered” by the entities covered by the acts.

Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 737 (1982)(quotation

omitted); see also Strother v. Southern California Permanente

Medical Group, 79 F.3d 859 (9th Cir. 1996).

Prior to 1992, to prove a claim under the Unruh Act plaintiff

was required to demonstrate that the facility was in violation of

Title 24 and that the discrimination he experienced was

intentional. See Harris v. Capital Growth Investors XIV, 52 Cal.3d

1142, 1175 (1991)(“[W]e 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, 970 F.3d

837, 847 (9th Cir. 2004).

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17

To effectuate its long-stated policy of ridding the state of

discrimination, see Warfield v. Peninsula Golf & Country Club, 10

Cal.4th 594 (1995), the California legislature amended the Unruh

Act in 1992 to broaden the scope of its protection. As amended,

§ 51 provides that “[a] violation of the right of any individual

under the Americans with Disabilities Act of 1990 . . . shall also

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

It is pursuant to this subsection that plaintiff seeks to recover.

See Pl.’s Compl. at 10-12. Plaintiff claims he was denied his

right to “equal and full enjoyment of the premises as provided by

the ADA and California law.” Plaintiff’s expert testified “that

said barriers violate ADAAG standards and the CBC [California

Building code].” Pl.’s Mot. and Opp’n at 21. While, as a general

matter, a plaintiff may rely on both the ADAAG and CBC when

pursuing an Unruh claim, the question is whether he may do so where

his Unruh claim is based solely on purported violations of the ADA.

This issue raises two different questions: Is plaintiff’s Unruh

claim proceeding only on the amendment allowing recovery under

state law for violation of the federal statute? If so, may

plaintiff rely on the CBC in doing so? The first question is

easily resolved.

Nowhere in plaintiff’s filings is there any suggestion of

intentional discrimination. Accordingly, the only legal theory

available to plaintiff on his Unruh claim is that architectural

barriers at Home Depot violate the ADA. It does not follow,

however, that where relief is barred under the ADA, relief is also

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barred under the Unruh Act.

As I have explained previously, the state legislature, unlike

Congress, has provided that an individual may recover damages for

a violation of the Unruh Act. The plain language and purpose of

the Unruh Act is to provide that individuals need only prove an ADA

violation to obtain relief under the statute, not that they must

first obtain relief under the federal statute. State law requires

a liberal interpretation of the Unruh Act. Isbister v. Boys' Club

of Santa Cruz, 40 Cal.3d 72, 75-76 (1985). Because § 51(f) employs

broad language, without any indication of an intent to limit

recovery, it seems clear that the legislature intended to provide

a remedy for individuals who suffered a violation of the ADA but

who could not recover under that Act because the conditions

justifying injunctive relief no longer obtain. See Hubbard v. Twin

Oaks Health and Rehabiliation Center, 408 F.Supp.2d at 928-30. As

a result, the court holds that plaintiff may recover under the

Unruh Act, even absent relief under the ADA. The second question

seems equally straight forward. 

C. The CBC and the ADA

At various places throughout plaintiff’s brief and the Card

reports, reliance is placed on the California Building Code as well

as the Manual on Uniform Traffic Devices to assert violations of

the ADA. As the parties note, it is clear that the federal statute

does not preempt state law where the state law provides "greater

or equal protection." 42 U.S.C. § 12201(b). The question here,

however, is not whether state law is more protective, but whether

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8

 The statute provides:

"a failure to design and construct facilities for first

occupancy later than 30 months after July 26, 1990, that

are readily accessible to and usable by individuals with

disabilities, except where an entity can demonstrate

that it is structurally impracticable to meet the

requirements of such subsection in accordance with

standards set forth or incorporated by reference in

regulations issued under this subchapter . . . ." 

42 U.S.C. § 12183(a)(1).

9

 Finally, the court notes that because Congress directed

that the Department of Justice, in conjunction with the

Architectural and Transportation Barriers Compliance Board (“Access

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a violation of state regulations establishes a barrier for purposes

of the ADA. As I explain below, the ADAAG, the Title III Standards

promulgated by the Department of Justice, are the exclusive

standards by which to establish architectural barriers under Title

III. 

Section 12183(a)(1) of Title 42 provides that a violation is

measured by regulations “issued under this subchapter . . . ."8

Thus, it would appear that ADA violations are directly tied to the

ADAAG. See Independent Living Resources v. Oregon Arena Corp., 982

F.Supp. 698, 746 (1997)("[t]he implication is that the standards

are the exclusive source for design requirements.)" 

In turn the ADAAG defines "accessible" as "a site, building,

facility or portion thereof that complies with these guidelines."

ADAAG 3.5 (adopted by the DOJ as Standard 3.5). This language also

plainly implies that compliance with the ADAAG, and not another

standard, constitutes compliance with the ADA requirements for new

construction.9

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Board”), issue the ADAAG, and that these standards constitute

binding regulation, the court is not authorized to evaluate Title

III disability discrimination claims under any other standard, and

to determine what engineering or architectural modifications are

necessary, or whether such modifications would be feasible and

desirable.

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For all of the reasons set forth above, the court concludes

that the ADAAG constitutes the exclusive standards under Title III

of the ADA.

IV.

THE MERITS

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). Plaintiff avers that defendant discriminated against

him when it failed to remove certain architectural barriers at the

Home Depot location at issue in this litigation.

Under Title III of the ADA, a plaintiff must prove that (1)

he has a disability, (2) defendant’s facility is a place of public

accommodation, (3) and plaintiff was denied full and equal

treatment because of his disability. To succeed on an ADA claim

of discrimination on account of an architectural barrier, the

plaintiff must also prove that (1) the existing facility at the

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defendant’s 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); see also

Pascuiti v. New York Yankees, No. 98 CIV. 8186 (SAS), 1999 WL

1102748, at * 5 (S.D.N.Y. Dec.6, 1999) (plaintiff bears the initial

burden of proving that barrier removal is readily achievable). If

plaintiff satisfies his burdens, the burden shifts to the defendant

to show that removal of the barriers is not readily achievable.

It is undisputed that Home Depot is a place of public

accommodation. Further, plaintiff is disabled because he is a

paraplegic who must use a wheelchair to travel in public.

Plaintiff thus meets the first two elements of an ADA prima facie

case. What remains in dispute is whether plaintiff was

discriminated against on account of his disability based on an

architectural barrier.

A. ARCHITECTURAL BARRIERS AND STANDARDS GOVERNING NEW

CONSTRUCTION

Plaintiff contends that defendant violated the ADA by failing

to abide by the Department of Justice’s Regulations implementing

the ADA’s public accommodation provisions and the corresponding ADA

Accessibility Guidelines (“ADAAG”). These regulations are divided

into three categories. The first category require that newlyconstructed public accommodations must comply with specific

accessibility requirements set forth in the ADAAG. See 28 C.F.R.

Pt. 36.401; 28 C.F.R. Pt. 36.406. The second category concerns the

accessibility requirements imposed on public accommodations altered

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10 On April 6, 2006, the court ordered the parties to submit

evidence as to when the facility at issue in this litigation was

built. On behalf of the parties, plaintiff’s counsel submitted a

verified response to plaintiff’s interrogatories which states that

“[d]efendant does not believe that there have been ‘alterations’

to the store since its initial construction,” and that “[t]he

building was constructed in 1998 and opened for business on August

27, 1998.” Response to Interrogatory Nos. 7 and 8. 

11 See also 28 C.F.R. Pt. 36.401(c)(structural

impracticability means “those rare circumstances where the unique

characteristics of the terrain prevent the incorporation of

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after January 26, 1992. See id. The third category requires the

removal of architectural barriers in preexisting public

accommodations (those designed and constructed for occupancy before

January 26, 1993). See 28 C.F.R. Pt. 36.304. Under the ADA's

continuing barrier removal obligation, it is discriminatory for

owners, operators, lessors or lessees to fail to remove

architectural barriers that deny disabled persons the goods and

services offered to the general public. See Hubbard v. Twin Oaks

Health and Rehabilitation Center, 408 F.Supp.2d 923, 930 (E.D. Cal.

2004)(citing Parr v. L & L Drive-Inn Restaurant, 96 F.Supp.2d 1065,

1086 (D. Haw. 2000)). 

For purposes of the ADA, the Home Depot facility at issue

falls within the first category described, as the building was

constructed in 1998 and first opened for business on August 27,

1998.10 The ADA requires that newly-constructed facilities be

“readily accessible and usable by individuals with disabilities.”

See 42 U.S.C. § 12183(a)(1). This command to build accessible

facilities is excepted only if meeting the requirements of the Act

would be “structurally impracticable.” Id.11; See also Long v.

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26 accessibility features.”). 

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Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001)(“We need not

decide whether the ADA forecloses the possibility that a court

might exercise its equitable discretion in fashioning relief for

violations of § 1283(a) . . . because there is no room for

discretion even if it exists”)(citation omitted)). 

Below, the court addresses the thirteen ADA violations alleged

in the complaint, which plaintiff moves on in his summary

judgment motion, as well as the violations identified by Joe Card

in the first expert report.

B. ADA VIOLATIONS IDENTIFIED IN THE COMPLAINT

1. Barriers Which Have Been Remedied

Because under the ADA only injunctive relief may be granted

to a private party, 42 U.S.C. § 2000a-3(A); see also Wander v.

Kaus, 304 F.3d 856, 858 (9th Cir. 2002), once a plaintiff has

received everything the court would order, the federal claims are

moot. Independent Living Resources v. Oregon Arena Corp., 982

F.Supp. 698, 771 (1997); Dufresne v. Veneman, 114 F.3d 952, 953-954

(9th Cir. 1997) (finding plaintiffs' suit moot when spraying they

sought to stop was completed before resolution of the suit). Thus,

generally, a defendant's successful remedial efforts will render

a plaintiff's ADA suit subject to dismissal as moot. Pickern v.

Best Western Cove Lodge Marina Resort, 194 F.Supp.2d 1128, 1130

(E.D. Cal. 2002).

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12 As the court noted previously in this order, plaintiff may

recover under the Unruh Act for damages even absent relief under

the ADA for violations which were rendered moot by Home Depot’s

remedial efforts. 

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The parties do not dispute that five of the thirteen barriers

complained of in the complaint have been remedied: (1) The towaway sign has been replaced and the number is now 2 1⁄2” tall, Def.’s

SUF 5; (2) Home Depot has painted “No Parking” on the pavement of

the access aisles to the van accessible parking lots, Def.’s 7; (3)

The ISA signage on the entrance door at all three entrances to the

store is now placed 60" above the ground, Def.’s SUF 8; (4) Home

Depot installed a U-shaped handle on the designated accessible

stall door in the men’s restroom, Def.’s SUF 13; and (5) The toilet

paper dispenser in the men’s restroom has been positioned so that

it does not protrude more than four inches from the wall, Def.’s

SUF 14. Home Depot’s remedial efforts renders Eiden’s ADA claims

as to these barriers moot.12

2. Detectable Warnings at Travel Routes

Plaintiff seeks relief as to a barrier that is not related 

to his personal disability of non-mobility. In his complaint,

Eiden alleges that “[t]here are no detectable warnings at the route

for a person in a wheelchair traveling through vehicle areas to

reach the ramp,” citing ADAAG 4.29.5, Detectable Warnings at

Hazardous Vehicular Areas. Compl., Ex. A at 4; Card Dec., Ex. B,

Part 1. Eiden, however, has not suffered an "injury in fact" due

to the absence of detectible warnings because it is undisputed that

he is not visually impaired and that such accommodations are

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13 The relevant ADAAG section provides the a detectable

warning is defined as a standardized surface feature built in or

applied to walking surfaces or other elements to warn visually

impaired people of hazards on a circulation path.” 28 C.F.R. Pt.

36, App. A ADAAG 3.5.

Section 4.29.2 of the ADAAG states that:

Detectable warnings shall consist of raised truncated

domes with a diameter of nominal 0.9 in (23 mm), a

height of nominal 0.2 in (5 mm) and a center-to-center

spacing of nominal 2.35 in (60 mm) and shall contrast

visually with adjoining surfaces, either light-on-dark,

or dark-on-light (emphasis supplied).

These sections clearly pertain to those who are visually impaired.

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reserved for the visually impaired. Def.’s SUF 16.13 Eiden lacks

standing to assert this claim. See Access Now, Inc. v. South

Florida Stadium Corp., 161 F.Supp.2d 1357, 1364 (S.D. Fla. 2001)

("To the extent that Plaintiffs complain about violations that

would discriminate against blind or deaf persons, or any

disabilities other than that suffered by Plaintiff Resnick, they

lack standing to pursue such claims."); Martinez v. Longs Drug

Stores, Inc., 2005 WL 2072013, *2 (E.D. Cal. 2005). 

Standing is limited to claims for which the plaintiff is

“among the injured.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-561 (1992). While the statute requires plaintiff’s assertion

that the defendant must be in compliance with the ADA regulations,

allowing plaintiff to sue on behalf of all the disabled would

extend beyond the limitations of Article III because plaintiff

cannot ultimately prove “injury in fact” as to this barrier which

does not affect him. A plaintiff must have a “personal stake in

the outcome” sufficient to “assure that concrete adverseness which

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14 Section 4.3.1 provides that “[a]ll walks, halls,

corridors, aisles, skywalks, tunnels, and other spaces that are

part of an accessible route shall comply with 4.3.”

Section 4.3.7 of the ADAAG, which applies specifically to this

allegation, provides that “[a]n accessible route with a running

slope greater than 1:20 is a ramp and shall comply with 4.8.

Nowhere shall the cross slope of an accessible route exceed 1:50.”

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sharpens the presentation of issues upon which the court so largely

depends for illumination of difficult . . . questions.” Baker v.

Carr, 369 U.S. 186, 204 (1962). Accordingly, the court holds that

this claim must be DISMISSED due to lack of standing.

3. Cross-Slope of Wheelchair Route

Defendant moves for summary judgment as to all the barriers

alleged in plaintiff’s complaint, but say nothing at all about this

particular allegation. Plaintiff maintains in his complaint that

the cross-slope of the [wheelchair route] exceeds 2%, and that it

is actually 7.3%, in violation of the ADAAG 4.3.7.14 Plaintiff’s

expert report includes pictures of various cross slopes which

exceed the allowable 2% slope pursuant to the ADAAG. Card Dec.,

Ex. B, Part 3. 

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). Because

defendant has failed to meet its burden of informing the court of

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15 This section provides as follows: 

(7) Building Signage. Signs which designate permanent

rooms and spaces shall comply with 4.30.1, 4.30.4,

4.30.5 and 4.30.6. Other signs which provide direction

to, or information about, functional spaces of the

building shall comply with 4.30.1, 4.30.2, 4.30.3, and

4.30.5. Elements and spaces of accessible facilities

which shall be identified by the International Symbol of

Accessibility and which shall comply with 4.30.7 are:

(a) Parking spaces designated as reserved for

individuals with disabilities;

(b) Accessible passenger loading zones;

(c) Accessible entrances when not all are accessible

(inaccessible entrances shall have directional signage

to indicate the route to the nearest accessible

entrance);

(d) Accessible toilet and bathing facilities when not

all are accessible.

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the basis for its motion as to this “barrier,” and because

plaintiff has tendered evidence apparently showing that there is

an ADAAG violation with respect to the cross-slope, plaintiff’s

motion with respect to this barrier is GRANTED.

4. Directional Signage Along the Route of Travel

Plaintiff alleges in his complaint that defendant is not in

compliance with the ADAAG because “[t]here is no directional

signage along the route of travel from the public streets or

sidewalks to the building entrance.” Compl., Ex. A at 3, citing

ADAAG 4.1.2 (7). The cited section, however, does not discuss

directional signage along routes of travel from public streets or

sidewalks to the building entrance, but rather relates to building

signage.15 Because plaintiff has failed to meet its burden of

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16 This section provides that:

In buildings with multiple accessible entrances with

adjacent parking, accessible parking spaces shall be

dispersed and located closest to the accessible

entrances.

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informing the court of the basis for its motion as to this barrier,

the court determines that defendant has not violated this section

of the ADAAG. Defendant’s motion for summary judgment as to this

alleged barrier must GRANTED.

5. Barriers Where Disputed Facts Remain

a. Parking Spaces Closest to Entrance

In his complaint, plaintiff alleges that “[t]he accessible

parking spaces are not dispersed and located closest to the

accessible entrances” and that “[t]here are no disabled parking

spaces next to the garden entrance,” in violation of ADAAG 4.6.2.16

Compl., Ex. A at 5 (Picture 8). Home Depot moves for summary

judgment asserting that “twelve (12) accessible parking spaces have

been installed at the closet location to the main entrance of the

Store.” Def.’s Mot. at 5. This appears to be undisputed. Whether

there exists accessible parking spaces located at the entrances to

the nursery/garden area, however, remains in dispute. Because the

court is unable to determine based on plaintiff’s evidence whether

the garden area entrance contains parking spaces, see picture #8,

Ex. A to Compl., the parties’ motions must be DENIED as to this

alleged barrier. 

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17 Section 7.2(1) provides that:

In areas used for transactions where counters have cash

registers and are provided for sales or distribution of

goods or services to the public, at least one of each

type shall have a portion of the counter which is at

least 36 in (915mm) in length with a maximum height of

36 in (915 mm) above the finish floor. It shall be on an

accessible route complying with 4.3. Such counters shall

include, but are not limited to, counters in retail

stores, and distribution centers. The accessible

counters must be dispersed throughout the building or

facility. In alterations where it is technically

infeasible to provide an accessible counter, an

auxiliary counter meeting these requirements may be

provided.

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b. Sales Counter Height

 Plaintiff maintains that “[t]he sales counter is 44 inches in

height at the customer service desk,” in violation of the ADAAG 

§ 7.2(1).17 See Compl., Ex. A at 9. Home Depot contests this,

maintaining that all counters are 36 inches above the floor. Boggs

Dec. ¶ 8. Plaintiff’s expert, Joe Card, maintains that the

Customer Service Counter is not accessible with respect to height.

Card Dec. ¶ 8(p). Because there is a disputed issue of material

with regard to this barrier, the parties’ motions as to this

barrier are DENIED.

c. Accessible Check Stands and Signage Identifying

Accessible Checkout Aisle

Plaintiff asserts that "[t]here was [sic] no accessible check

stands and that the “[s]ignage identifying accessible checkout

aisle was not mounted on any checkout locations, in violation of

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18 Section 7.7.3 states that “[s]ignage identifying

accessible check-out aisles shall comply with 4.30.7 and shall be

mounted above the check-out aisle in the same location where the

check-out number or type of check-out is displayed.”

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ADAAG § 7.3.3.18 Compl., Ex. A at 10. In the course of this

litigation, Home Depot claims that it mounted ISA signage above

three (3) of its thirteen (13) checkstands. Boggs Dec. ¶ 7. This

section of the ADAAG, however, also requires “accessible” checkout

aisles. Plaintiff maintains that although there were signage

indicating accessibility, during his visit to Home Depot no

accessible check stands were open to him. Pl.’s Opp’n at 17.

Defendant maintains that it has a policy of keeping checkstand one

open at all times. Def.’s SUF 11. The parties’ tendered evidence

demonstrates that a genuine issue of material fact is in dispute

as to whether at least one accessible checkout aisle was available

to plaintiff when he visited Home Depot. The parties’ motions as

to this barrier are DENIED.

d. Movable Obstructions

Two of Eiden’s claims involve movable obstructions. Plaintiff

alleges that shopping carts were left in disabled parking spaces

and access aisles creating an obstruction for wheelchair users in

violation of the ADAAG. Compl., Ex. A at 5. He also avers that

some aisles in the store were obstructed by merchandise narrowing

the width of the aisles. Compl., Ex. A at 7. Defendant argues,

however, that movable objects are not governed by the ADAAG. 

Plaintiff fails to cite any authority for the proposition that

movable objects, such as shopping carts or merchandise in the

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aisles, falls within the ambit of the ADAAG. Defendant, however,

cites authority that is inapposite to the issue at bar. Lieber v.

Macy’s West, 80 F.Supp.2d 1065 (N.D. Cal 1999)(Patel, J.), does not

stand for the proposition that the ADA does not govern movable

objects, but that the ADA does not address access to merchandise

located on movable display racks.

Neither the ADA nor the ADAAG addresses movable objects. The

statute’s implementing regulations explicitly require, however,

that “[p]ublic accommodations are required to maintain those

features of their facilities that need to be readily accessible to

people with disabilities.” See 28 C.F.R. Pt. 36.211(a). The

regulations also state that “[i]solated or temporary interruptions

in access due to maintenance or repairs are not prohibited.” See

Pt. 36.211(b). The regulations appear to suggest that although

defendants such as Home Depot are required to maintain ready

accessability, they would not be liable for “isolated” or

“temporary” movable objects which temporarily restrict access where

the barrier is caused by maintenance or repair. 

The Justice Department has also determined that regular use

of an accessible route for storage of supplies would violate Title

III, but an isolated instance of placement of an object in an

accessible route is not a violation if the object is promptly

removed. See United States Department of Justice, Civil Rights

Division, The Americans with Disabilities Act: Title III Technical

Assistance Manual § III-3.7000 (1993); see also Bragdon, 524 U.S.

624, 646 (citing Technical Assistance Manual and noting that

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Justice Department's views entitled to deference).

Two cases which have addressed this issue, a Colorado Court

of Appeals case and an unpublished New Hampshire District Court

case, have both held that isolated failures to maintain access

routes or parking spaces, without more, are not covered by the ADA.

See Tanner v. Wal-Mart Stores, Inc., 2000 DNH 34 (D. N.H. 2000)

(isolated incident of failure to remove shopping carts does not

constitute a Title III violation); Pack v. Arkansas Valley

Correctional Facility, 849 P.2d 34, 38 (Colo Ct. App. 1995)

(isolated instance of negligence regarding failure to remove ice

and snow from handicapped parking zone not an ADA violation). Home

Depot argues that it has a "long-standing, widely-disseminated and

enforced written policy of maintaining an accessible route of at

least 32 inches throughout the store." Def.’s Mot. at 5; Def.'s

SUF 3. Eiden argues that "policy or no policy, [the policy] is not

enforced" and asserts that he has experienced "blocked paths of

travel." Disputed facts remain as to whether Home Depot had a

practice of failing to remove obstructions from accessible routes

of travel or parking spaces. The parties’ motions as to the

movable obstructions are DENIED.

e. Alleged Barriers Identified in the First Card Report

As the court explained above, only the allegations contained

in the first Card report (filed with the court on September 12,

2005) are actionable. The court has carefully examined the Card

report and plaintiff’s papers, and although the Card report listed

twenty-three violations, only about half of those violations are

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19 These violations are described by Joe Card in his 7(a),

(b), (c), and (d) of his September 12, 2005 declaration. 

Unfortunately, because defendant argues that plaintiff lacks

standing to even move on allegations contained in the Card report,

their papers fail to discuss these allegations. Defendant,

however, argues in its response to plaintiff’s statement of

undisputed facts (“SUF”). While hardly the appropriate place, the

court will consider the arguments defendant made in its response

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new ones, not already contained in plaintiff’s complaint and thus

discussed above in this order. The new violations are described

in 7 (a), (b), (c), (d), (g), (i), (p), (q), (r), (s), (t), (v),

and (w) of Joe Card’s declaration.

Although plaintiff moves on all alleged barriers contained in

the complaint and the Card reports, only five of the violations

contained in the first Card report are even mentioned in

plaintiff’s papers, and plaintiff appears to have tendered evidence

only with regard to these barriers. Given the large number of

exhibits and the lengthy briefs filed by the parties, the court has

already expended an excessive amount of time adjudicating the

claims made by the parties, which they often fail to address in a

careful and orderly manner. As has been said,“‘[j]udges are not

like pigs, hunting for truffles buried in’ the record.” 

Albrechtsen v. Board of Regents of University of Wisconsin System,

309 F.3d 433, 436 (7th Cir. 2002) (quoting United States v. Dunkel,

927 F.2d 955, 956 (7th Cir. 1991)). Under the circumstances, the

court will only address the barriers discussed by plaintiff in his

motion for summary judgment and opposition brief, and only the

alleged barriers where evidence is tendered. See Pl.’s Mot. and

Opp’n at 5-6.19 As discussed further below, for various reasons,

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the court must DENY plaintiff’s motion as to these claims and GRANT

defendant’s motion.

i. Towaway Signage

Plaintiff argues that tow-away signage must be provided

adjacent to the disabled parking and must have the proper

information. Plaintiff argues that the sign’s “reclaim information

is not in reflective white letters,” citing CBC § 2-7102(d) and

D.O.T. § R1008B. Pl.’s Mot. and Opp’n at 6. As defendant rightly

notes, plaintiff only cites to the California Building Code and the

Manual on Uniform Traffic Devices which the court determined above

was improper under the plaintiff’s pleadings. Accordingly,

plaintiff’s motion is DENIED and defendant’s motion is GRANTED as

to this alleged barrier. 

ii. Accessible Parking Signage

Plaintiff maintains that the sign stating that the space is

van accessible violates ADAAG § 4.6.4 in that it must be mounted

below the International Sign of Accessibility (“I.S.A.”), and that

the accessible parking signage “is not mounted at a height of

minimum of 80 inches, when the sign is in a path of travel as

required by ADAAG § 4.2.2." Pl.’s Mot. and Opp’n at 6. Defendant

takes issue with these allegations. The court has examined

defendant’s exhibits, and in fact, defendant has provided blue and

white ISA signage stating “Van Accessible.” Further, the words

“Van Accessible” are mounted below the I.S.A. See Boggs Dec. at

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20 That section of the ADAAG states that “[t]he minimum width

for two wheelchairs to pass is 60 in (1525 mm).”

21 Section 4.30.6 of the ADAAG states:

Where permanent identification is provided for rooms and

spaces, signs shall be installed on the wall adjacent to

the latch side of the door. Where there is no wall space

to the latch side of the door, including at double leaf

doors, signs shall be placed on the nearest adjacent

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¶ 4 and Ex. B. Plaintiff’s motion as to this barrier is DENIED and

defendant’s motion is GRANTED. 

As to the allegation that the accessible parking signage is

not mounted at a height of 80 inches, plaintiff cites to ADAAG 

§ 4.2.2. However, that section of the ADAAG refers to “Width for

Wheelchair Passing.”20 Because plaintiff has failed to tender

evidence suggesting that defendant has violated that particular

section of the ADAAG, as he must, plaintiff’s motion is DENIED as

to that barrier, and defendant’s motion is GRANTED.

iii. ISA on Exit Doors

Plaintiff avers that at exit doors throughout the store, the

“I.S.A. that is provided is not a white figure on a blue background

as required by CBC § 1117B.5.8.1,” citing SUF 23. The allegation

only addresses the California Building Code. Accordingly,

plaintiff’s motion as to this alleged barrier must be DENIED and

defendant’s motion must be GRANTED.

iv. ISA Signage for Restroom

Finally, plaintiff contends that defendant has violated 

§ 4.30.6 of the ADAAG by not mounting the ISA signage on the wall

adjacent to the restroom door, not on the door itself.21 Pl.’s

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wall. Mounting height shall be 60 in (1525 mm) above the

finish floor to the centerline of the sign. Mounting

location for such signage shall be so that a person may

approach within 3 in (76 mm) of signage without

encountering protruding objects or standing within the

swing of a door.

22 Plaintiff requests from the court a final judgment of

$20,000.00 in statutory damages pursuant to the Unruh Act (five

visits multiplied by the statutory minimum of $4,000.000 per

visit). See Pl.’s Mot. and Opp’n at 23. Because there remain

disputed facts as to the violations upon which plaintiff predicates

his Unruh Act claims, it is inappropriate at this time to determine

the award of damages. 

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Mot. and Opp’n at 6. The court must DENY plaintiff’s motion and

GRANT defendant’s motion as to this alleged barrier because, as

defendant argues, this ADAAG requirement applies to those who are

blind. Plaintiff’s disability is his immobility. As the court

explained in the analysis pertaining to “Detectable Warnings at

Travel Routes,” standing is limited to claims for which the

plaintiff is "among the injured." Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-561 (1992). Defendant’s motion must be GRANTED

as to this barrier and plaintiff’s motion must be DENIED.

V. 

 CONCLUSION

The parties’ motions are GRANTED in part and DENIED in part

as specified above.22

IT IS SO ORDERED.

DATED: May 24, 2006.

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