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1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON,

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

Plaintiff,

AMENDED ORDER

v.

 TO BE PUBLISHED

PIER 1 IMPORTS (US), INC;

and MELLON/PIER 1 PROPERTIES

LIMITED PARTNERSHIP I,

Defendants.

 /

On April 12, 2006, the court issued an order resolving the

parties' cross-motions for summary judgment in the abovecaptioned case. The court denied in part and granted in part the

parties' cross-motions. On April 26, 2006, defendants filed a

motion to clarify the court's order. Subsequently, both parties

were asked to brief an additional issue, namely, whether a

violation of the California Building Code also constitutes a

violation of the Americans with Disabilities Act. 

The court amends the April 12, 2006 as follows.

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1

 Defendants also brought a motion for a prefiling order declaring

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

motion directed towards various asserted standing issues. Both

motions were denied. See Wilson v. Pier 1 Imports (US), Inc., 413

F.Supp.2d 1130 (E.D. Cal. 2006); 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

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

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 

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¶ 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. 

 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

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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. 

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

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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,

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.

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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

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

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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).

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

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4

 Plaintiff stipulated to dismiss his claim pursuant to the Unfair

Business Practices Act (Section 172000). As to plaintiff's claim

under the Health and Safety Act as well as the Disabled Persons

Act, the court notes that neither party appears to have moved on

these claims, much less briefed these claims. The court will only

adjudicate those claims which are clearly being moved on. For this

reason, the court does not adjudicate these two state law claims.

8

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 partial summary

judgment filed by both parties. As best the court can decipher,

the parties move only as to the Unruh claim and ADA claim, and

thus, the court does not address plaintiff's other state law

claims.4 

Defendants move for summary judgment on the grounds that

plaintiff lacks standing and that plaintiff’s claims are either not

barriers as a matter of law, or have been remedied. Plaintiff

cross-moves on the grounds there remain barriers which were

identified by plaintiff and plaintiff’s expert. 

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

several threshold issues.

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A. WHICH CLAIMS ARE ACTIONABLE?

Before resolving the motions, the court must first

determine which architectural barriers are properly before the

court. Plaintiff asserts claims based upon the barriers alleged

in his complaint and on those identified by his expert, Joe Card.

Defendants argue that plaintiff only has standing to bring suit

with respect to the barriers he personally encountered and that

plaintiff lacks standing as to the violations discovered by Card.

The court recently had the opportunity to address the issue

of standing on two prior occasions, Eiden v. Home Depot, CIV. S-04-

977 LKK/CMK (E.D. Cal. 2004)and Wilson v. Pier 1 Imports, 413 F.

Supp. 2d 1130 (E.D. Cal. 2006). No purpose would be served by

repeating the analysis articulated in Wilson and Eiden. The court

therefor adopts by reference the standing analysis as set forth in

Wilson and Eiden. 

With respect to the Card report and the barriers raised in the

complaint, nothing in the ADA requires plaintiff to have personally

encountered all barriers in order to seek an injunction to remove

those barriers. See Eiden v. Home Depot, CIV. S-04-977 LKK/CMK

(E.D. Cal. 2004); Wilson v. Pier 1 Imports, 413 F. Supp. 2d 1130

(E.D. Cal. 2006).

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

alleged in his complaint. As this court previously explained,

“[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

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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 defendants'

argument that plaintiff should not be permitted to incorporate new

factual allegations that are not contained within the complaint.

Def.’s Opp'n at 7. 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 barriers

alleged in the Card report are actionable. The Card report was

served on defendants on May 2, 2005, two full months before the

close of discovery. Defendants became aware the Card report at

that time, if not before then. 

As with the issue of standing, the court recently addressed

the issue of notice in the Eiden order. Rather than repeat the

analysis here, the court adopts by reference the notice analysis

as set forth in Eiden. Where, as here, plaintiff discovered new

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

better practice – clearly it is.

11

alleged violations during the discovery period that were not pled

in the complaint, but disclosed to defendants in sufficient time

to permit defendants 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.5

For the reasons explained above, the court holds that the

claims asserted in the complaint and Card report are actionable and

shall be adjudicated by this court. 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 and

this claim is predicated upon defendant’s violation of the ADA.

See Pl.'s Mot. for Summ. J. at 8:2-5. He asserts that “a

violation of the right of any individual under the Americans with

Disabilities Act of 1990 shall also constitute a violation of

[Unruh]." Id. Defendants, meanwhile, argue that the court should

decline to exercise jurisdiction over the Unruh claim. Def. Reply

at 16.

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,

////

////

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 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.

12

declining jurisdiction is inappropriate.6 

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).

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

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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 Mot. for Summ. J. at 8. Plaintiff maintains

that the violations complained of in his complaint and in the Card

report violated both the ADA and California law. Indeed, both

plaintiff and Card noted how each alleged barrier violated the

ADAAG, or the California Building Code ("CBC"), or both. 

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? 

As in Eiden, the court concludes that 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 Pier 1 violate the

ADA. See Eiden, CIV. S-04-977 LKK/CMK (E.D. Cal. 2006). It does not

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

is also barred under the Unruh Act.

Again, as explained previously in Eiden, the state

legislature, unlike Congress, has provided that an individual may

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 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). 

14

recover damages for a violation of the Unruh Act. As in Eiden, I

conclude that plaintiff may recover under the Unruh Act, even

absent relief under the ADA.7 The second question seems equally

straight forward. See id.

C. THE CBC AND THE ADA

At various places throughout plaintiff’s brief and the Card

report, reliance is placed on the California Building Code 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 a violation of state regulations

establishes a barrier for purposes of the ADA. 

This exact issue was also addressed in Eiden. Rather than

repeat the analysis, the court adopts by reference the analysis

articulated in Eiden with respect to the ADAAG and the CBC. As in

Eiden, I conclude that compliance with the ADAAG, and not another

standard, constitutes compliance with the ADA requirements.

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

that the ADAAG constitutes the exclusive standards under Title III

of the ADA. I now turn to plaintiff’s ADA claims, since his Unruh

Act claims turn on ADA liability.

////

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 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 defendants discriminated against

him when they failed to remove certain architectural barriers at

the Pier 1 location at issue in this litigation. 

A. WHAT CONSTITUTES A BARRIER

Plaintiff avers that defendants violated the ADA by failing

to abide by the ADDAG standards. These regulations are divided

into three categories. The first category of regulations require

that newly constructed public accommodations must comply with

specific accessibility requirements set forth in the ADAAG. See

28 C.F.R. Pts. 36.401, 36.406. The second category of regulations

concerns the accessibility requirements imposed on public

accommodations altered after January 26, 1992. See id. The third

category requires the removal of architectural barriers in

preexisting public accommodations. 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

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to remove architectural barriers that deny disabled persons the

goods and services offered to the general public. Hubbard v. Twin

Oaks Health and Rehabilitation Center, 408 F.Supp.2d 923, 929

(E.D. Cal. 2004). For purposes of the ADA, the Pier 1 facility

is a preexisting facility, as it was built prior to 1993. 

Accordingly, Pier 1 is governed by the third category of

regulations and is obligated only to remove existing architectural

barriers. 

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); Id. at 929. If plaintiff satisfies his

burden, the burden shifts to the defendant to show that removal of

the barriers is not readily achievable. 

 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

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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 v. Cinemark USA, Inc.,

2005 WL 1856495, *4 (E.D. Cal. 2005)(Burrell, J.)(citing 

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

1357, 1367 (S.D. Fla. 2001)). 

B. WHEN BARRIER REMOVAL IS 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

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.). 

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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. 

 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.

C. SPECIFIC BARRIERS

Below, I discuss each of the barriers which plaintiff has

raised in his motion for summary judgment. The complaint also

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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,

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.

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

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

expense.” Pl.'s Mot. for Summ. J. at 5. The expert report

submitted by plaintiff refers only to the CBC and not to the ADAAG.

For the reasons discussed in section III (C) of this order, the

court need not address the CBC violations. For this reason, as to

this barrier, defendant’s motion is GRANTED.

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.

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.” 

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. 

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

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

Unruh Act, since damages are still available, and the court is

obligated to complete the ADA analysis. Grove, 407 F. Supp. 2d at

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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 cured, the court must find that it was

readily achievable, and thus that it violated the ADA and

subsequently the Unruh Act. 

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

readily achievable, and therefore the barrier violated the ADA and

the Unruh Act.

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. 

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

found in the ADAAG at 4.1.2. Plaintiff claims that the “store’s

access aisle is 62 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.

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 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.”

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 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.” 

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

the Unruh Act and thus the court must determine whether 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. 

d. Slope of Space is too great

Plaintiff claims that the accessible parking space exceeds the

slope permitted by the ADAAG §§ 4.5.28 and 4.6.39. 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.

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

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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 claim is 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. 

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.

Accordingly, the court concludes that the claim is moot under the

ADA, that the correction was readily achievable and violation of

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10 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.”

11 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)).”

12 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.”

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the state claim is not moot.

3. Curb Ramps

Plaintiff claims that the curb ramps violate the ADAAG 

§§ 4.7.2,10 4.7.5,11 and 4.8.212 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 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 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. Once again, since defendants have already remedied

the barrier, the court must find its removal was readily achievable

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

Pt. 36.304(c)(1). 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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and grant summary judgment to plaintiff under the state law claim.

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.13 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

barrier, and thus summary judgment must be granted for defendants

on this issue under the ADA and the Unruh Act. 

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

backside of the store. 

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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 travel14 has a 4 3/4 inch

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

4.3.10. The 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. This appears to be

correct, as the ADAAG only requires that at least one accessible

route be provided. ADAAG § 4.3.10, 4.1.3 (1). Thus, summary

judgment shall be granted for defendants on this issue under the

ADA and the Unruh Act. 

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

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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

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. 

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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,

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

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removal of this barrier is readily achievable. Therefore, summary

judgment shall be granted for plaintiff on this issue under the

ADA, and the Unruh Act.

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).” 

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

inches. Defendants argue 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

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. 

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

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

this court as persuasive or merely some evidence.

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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.”

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

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

4.5.15 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

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16 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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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,

and the Unruh Act. 

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

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.16 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

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17 The court reserves judgment on the award of damages. Since

plaintiff's claims under the California Health and Safety Code and

the Disabled Persons Act have yet to be resolved, it appears

premature for the court to award damages. Once all claims are

resolved, plaintiff may move for an award of damages. 

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physical measurements match those in the ADAAG.

V.

ORDER

The parties' cross-motions for summary judgment are GRANTED

in part and DENIED in part as set forth above.17 Defendants'

motion to clarify the court's April 12, 2006 order is now rendered

moot. 

IT IS SO ORDERED.

DATED: July 7, 2006.

Case 2:04-cv-00633-LKK -CMK Document 125 Filed 07/14/06 Page 32 of 32