1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 Plaintiff also brings claims pursuant to The Unruh Act

(Cal. Civ. Code §§ 51 et seq.), and The Disabled Persons Act

(Cal. Civ. Code §§ 54 et seq.). (Other claims raised in the

complaint have since been abandoned by plaintiff).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

BYRON CHAPMAN,

NO. CIV. S-04-1339 LKK CMK

Plaintiff,

O R D E R

v.

PIER 1 IMPORTS, et al.,

Defendants.

 /

Plaintiff, Byron Chapman, a disabled and wheelchair bound man,

sues defendant, Pier 1 Imports store in Vacaville, California,

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

§§ 12101 et seq. (“ADA”). He also asserts several state law

claims.1 The matter is before the court on the parties’ crossmotions for summary judgment.

////

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 1 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 2

 Facts are undisputed unless otherwise noted. 

2

I. 

FACTS2

Plaintiff Byron Chapman (“plaintiff”) uses a wheelchair for

mobility due to multiple conditions caused by a spinal cord injury.

Pl.’s SUF 1. Plaintiff cannot walk unassisted for any distance,

and needs a wheelchair to travel in public. Pl.’s SUF 2. On May

22, 2004, plaintiff visited the Pier 1 located at 2070 Harbinson

Blvd. in Vacaville, CA to purchase a patio umbrella. He visited

the store again on June 1, 2004. Pl.’s SUF 5. During these

visits, plaintiff contends that he has encountered a number of

barriers that made it difficult for him to fully access the

facility. Pl.’s SUF 11. Because of these barriers, plaintiff

maintains that he is not able to patronize the Pier 1 as he would

like to. Pl.’s SUF 12. 

On July 6, 2004, plaintiff filed a complaint, which alleged

that he encountered “architectural barriers that denied him full

and equal access.” Compl. at 4. Plaintiff attached a list of

barriers to his complaint, which he claimed were the barriers

“known by [him].” Ex. A to Compl. This list of barriers is

referred to as the “accessibility survey.” 

The accessibility survey identified fifteen “barriers.” 

However, since the complaint was filed, plaintiff and defendant

jointly stipulated to dismissing all claims relating to the

exterior of the building. The remaining barriers identified in the

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 2 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 3

 A p-trap is part of the plumbing that is below a sink.

3

complaint are: 

(1) Improper posting of the ISA signage on the entrance doors

to the store. (Violations identified as 4a & b in the

accessibility survey.) 

(2) Improper or missing signs designating permanent rooms and

spaces. (6a in the accessibility survey.) 

(3) Improper sign on emergency exit door. (6b in the

accessibility survey.) 

(4) Routes of travel to restroom and emergency exits are

blocked. (6c & 7a in the accessibility survey.) 

(5) No sign for accessible restroom. (8a in the accessibility

survey.) 

(6) Within the men’s restroom, the seat cover dispenser

is located over the back grab bar in the accessible stall. (9a in

the accessibility survey.) 

(7) Within the men’s restroom, the back grab bar is improperly

located in the accessible stall. (10a in the accessibility

survey.) 

(8) Within the men’s restroom, the toilet tissue dispenser is

improperly located in the accessible stall. (11a & b in the

accessibility survey.) 

(9) There is insufficient floor space around the water closet

within the men’s restroom. (12a in the accessibility survey.) 

 

(10) A waste receptacle is located in an area that is required

to be clear floor space. (13a in the accessibility survey.) 

(11) The P-trap leading edge is noncompliant with ADAAG

regulations.3

 (13b in the accessibility survey.) 

(12) The accessible checkout aisles lack the required ISA

signage. (14a in the accessibility survey.) 

(13) Check stands lack required California Building Code

signage. (14a in the accessibility survey.) 

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 3 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

 The new violations identified by Card and listed in the

Oppo/Cross Mot. are: (1) the ISA signage at the entrance door is

improper; (2) entrance door requires 9 pounds of pressure to

operate; (3) the checkout counters lack ISA signage; (4) the height

of the service counter is improper; (5) the store’s aisles do not

provide the proper width clearance; (6) the drinking fountain

stream is too low; (7) the signage for the men’s restroom is

improper; (8) the men’s restroom door improperly requires 12 pounds

of pressure to operate; (9) in the men’s restroom, the mirror is

at an improper height; (10) in the men’s restroom, the water closet

is improperly centered from the sidewalls; (11) clear floor space

is not provided for the paper towel dispenser because a trash can

is located in the area. 

5

 Although plaintiff attached the August Card report to his

cross-motion for summary judgment, only eleven barriers were

4

After the complaint was filed, plaintiff’s expert, Joe Card,

inspected the store on May 13, 2005 and prepared a report on August

25, 2005. This report identified thirty (30) violations. Some of

these violations pertained to violations raised in the complaint

and other violations were new. Additionally, some of the barriers

listed in the accessibility survey are not addressed at all in

Card’s report. 

On November 14, 2005, defendant filed a motion for summary

judgment, or in the alternative, summary adjudication, on all or

some of the claims raised in the complaint. Plaintiff filed an

opposition and cross-motion for summary judgment in which plaintiff

listed a new and separate list of eleven barriers that were

identified by Joe Card in his August report. See Pl.’s Opp’n. and

Cross-Mot. for Sum. J. at 2:22-321.4 Several of these newlyidentified barriers related to barriers identified in the

complaint, whereas the other barriers were unrelated to violations

raised in the complaint.5

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 4 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

identified in the actual brief. Plaintiff fails to clarify if he

is moving on all thirty violations raised in the Card report, or

only the eleven identified in the cross-motion brief. The court

concludes that since plaintiff identified only eleven barriers in

his actual brief, he is moving only as to those eleven barriers.

5

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); Sicor 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

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 5 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

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

an essential element of the nonmoving party's case necessarily

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

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

the district court demonstrates that the standard for entry of

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

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

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

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

391 U.S. 253, 288-89 (1968); Sicor 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,

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 6 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

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

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

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

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

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

In the endeavor to establish the existence of a factual

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

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

factual dispute be shown to require a jury or judge to , 04-

1993resolve 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

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 7 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

 Although defendant appears to move for summary judgment as

to all claims raised in the complaint, defendant and plaintiff only

brief the ADA and Unruh claims. The court will only adjudicate

those claims which are clearly being moved on. For that reason,

the court declines to adjudicate the related state law claims which

have not been briefed by either party. 

8

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

655 (1962) (per curium)). 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 partial summary

judgment filed by both parties. Defendant moves 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. See Def.’s Mot. for Sum. J. at 2.6 Plaintiff

cross-moves on the grounds that there remain barriers which were

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

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 8 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

 Plaintiff has filed one brief which contains his motion for

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

motion for summary judgment. 

8

 As explained in note 6, the court will only adjudicate

those claims that are briefed by the parties. Plaintiff is silent

as to his claim under the Disabled Persons Act. The court

concludes, therefore, that plaintiff is only moving on his Unruh

and ADA claims. 

9

disability. Pl.’s Opp’n and Cross-Mot. at 5.7 Plaintiff moves for

summary judgment on his ADA and Unruh Act claims.8

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

several threshold issues.

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 in the August Card report.

Defendant argues 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 this exact

issue in two prior cases, Eiden v. Home Depot, No. 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). As in Wilson and Eiden, 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 and Eiden. With respect to the Card

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 9 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10

report and the accessibility survey, 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, No. 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

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 incorporate new

factual allegations that are not contained within the complaint.

Def.’s Reply at 9:16-17. 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

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 10 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

9

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

the better practice – clearly it is.

11

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 defendant on August 26, 2005, two months before the close

of discovery. Defendant became aware of the Card report at that

time. 

As with the issue of standing, the court recently addressed

the issue of notice in Eiden. 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 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.9

For the reasons explained above, the court holds that the

claims asserted in the accessibility survey 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

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

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 11 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10 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.”).

12

ADA. Pl.’s Cross-Mot. and Opp’n at 6.10 He asserts that “a

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

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

maintains that the Unruh claim should be dismissed because it is

based solely on the alleged violations of the ADA and plaintiff

cannot establish any ADAAG violations. Def.’s Reply at 15. 

Alternatively, defendant argues that the court should decline to

exercise jurisdiction over the Unruh claim. Def.’s Reply at 16.

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 jurisdiction over

plaintiff’s state law claims. 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).

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 12 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

13

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

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 11. Plaintiff maintains that the

violations complained of in his complaint and in the Card report

violated both the ADA and California law. Indeed, both Card’s

report and the accessibility survey note how each alleged barrier

violates the ADAAG and the CBC. 

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:

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 13 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

14

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, No. 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

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. 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. 

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 14 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

11 Finally, the court notes that because Congress directed

that the Department of Justice, in conjunction with the

Architectural and Transportation Barriers Compliance Board (“Access

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.

15

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 new

construction.11

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.

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

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 15 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

16

Cir. 2002). Plaintiff avers that defendant discriminated against

him when it failed to remove certain architectural barriers at the

Pier 1 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

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 Pier 1 Imports is a place of public

accommodation and that plaintiff is disabled. 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

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 16 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

17

the ADA’s public accommodation provisions and the corresponding ADA

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

into three categories. The first category requires 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

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 Pier 1 facility at issue

falls within the first category described, as the building was

constructed in 2002. 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

////

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 17 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12 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

accessibility features.”). 

13 The following barriers all raise similar issues and so the

court disposes of these barriers first and as a group: Exit door

signage missing (barrier 6b in the accessibility survey); no

directional signage for accessible restrooms (barrier 8a); within

the men’s restroom, the seat cover dispenser is improperly located

(barrier 9a); within the men’s restroom, the back grab bar is

improperly located in the accessible stall (barrier 10a); within

the men’s restroom, the toilet tissue dispenser is improperly

located (11a & b); there is inadequate clear floor space in the

men’s restroom (barrier 12a); within the men’s restroom, the P-trap

leading edge is noncompliant (barrier 13b); accessible checkout

aisles lack ISA signage (barrier 14a); and check stands lack CBC

signage (barrier 15a). 

18

of the Act would be “structurally impracticable.” Id.12; See

also Long v. 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 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 expert

report.

B. BARRIERS RAISED IN COMPLAINT 

Defendant moves as to all the barriers alleged in plaintiff’s

complaint. The court quickly disposes of ten of the thirteen

barriers raised in the complaint.13 

With respect to these ten barriers, defendant’s motion for

summary judgment must be granted. First, plaintiff fails to supply

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 18 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

14 Specifically, plaintiff fails to cite a relevant ADAAG

standard with respect to the following alleged violations: Exit

door signage missing (barrier 6b in the accessibility survey); no

directional signage for accessible restrooms (barrier 8a); within

the men’s restroom, the seat cover dispenser is located over the

back grab bar (barrier 9a); the back grab bar is improperly located

(10a); accessible checkout aisles lack ISA signage (barrier 14a);

and check stands lack CBC signage (barrier 15a).

19

any legal basis for several of the alleged barriers.14 Often, the

ADAAG section cited to by plaintiff is not applicable (because it

does not address that specific barrier) or plaintiff does not

explain how the alleged barrier actually violates the ADAAG. The

court will not search for which section of the ADAAG, if any, is

applicable to the alleged barriers raised by plaintiff. 

Second, even when plaintiff has cited to the proper ADAAG

standard, defendant has established that there are no violations

with respect to these alleged barriers. Specifically, defendant

explains that plaintiff’s own expert, Joe Card, did not address any

of these alleged barriers in his August report. This is

significant for two reasons. One, Card testified that he was aware

of no other additional barriers that were not listed in his report.

Therefore, he did not identify any of these barriers (which were

raised in the complaint) as “violations”. Two, Card inspected the

store over a year after the accessibility survey was completed and

during that year, the store may have remedied the violation. In

short, defendant put forth facts that these ten alleged violations

do not, in fact, exist. Plaintiff, in turn, has failed to tender

any evidence to suggest that a factual dispute remains as to these

alleged violations. 

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 19 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

15 This alleged barrier was identified as “4a & b” in the

accessibility survey. This alleged barrier was raised in both the

complaint and in plaintiff’s cross-motion for summary judgment. 

16 Section 4.30.6 of ADAAG specifies that, "where permanent

identification is provided for rooms and spaces, signs shall be

installed on the wall adjacent to the latch side of the door 

. . . the mounting height “shall be 60 inches (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.”

20

Finally, plaintiff fails to mention, much less discuss, any

of these ten alleged violations in his opposition, cross-motion and

reply brief. 

Given plaintiff’s lack of diligence in assisting the court

with the adjudication of each of these ten alleged barrier, it is

worth noting that “‘[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)). For this reason, defendant’s motion with respect to all

ten of these barriers is GRANTED.

The court next addresses barriers that require more

discussion. 

1. Improper Posting of the ISA Signage on the Entrance

Doors to the Store15 

Plaintiff alleged in the accessibility survey that there was

no ISA sign mounted on the right side of the entrance door (it was

on the left) and that the ISA symbol was not mounted at the

required height of 60 inches.16 However, by the time Joe Card

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 20 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 17 Violation identified as 6a in the accessibility survey.

21

surveyed the building, an ISA sign had been placed to the right

side of the door. See Card Report at 1. Even so, plaintiff

maintains in his cross-motion that the sign’s height remains in

violation of the ADAAG standards. Pl.’s Opp'n. at 2. Defendant

moves for summary judgment on the grounds that as a matter of law,

there is no violation of ADAAG as the ADAAG does not discuss entry

door signs. 

The ADAAG standards clearly requires that if there are ISA

signs, they must be posted 60 inches from the ground. Here,

plaintiff’s expert asserts that there is sign and it is posted 63

1/2 inches from the ground. Since defendant produces no factual

evidence to dispute plaintiff’s measurements, summary judgment is

GRANTED for plaintiff and DENIED as to defendant.

2. Improper or Missing Signs Designating Permanent Rooms

and Spaces17

In the accessibility survey, plaintiff maintains that “signs

designating permanent rooms and spaces (men’s and women’s rooms;

room numbers; exit signs) must have raised and brailled letters;

and must comply with finish and contrast standards.” Accessibility

Survey at 1. 

It is undisputed that plaintiff is not visually impaired and

thus, he has not suffered an “injury in fact” due to the absence

of braille. See Access Now, Inc. v. South Florida Stadium Corp.,

161 F.Supp.2d 1357, 1364 (S.D. Fla. 2001) ("To the extent that

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 21 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

18 The court also notes that plaintiff did not address this

barrier in his opposition and cross-motion for summary judgment.

19 Violations identified as 6c & 7a in the accessibility

survey. 

22

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). 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 a barrier

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

in the outcome” sufficient to “assure that concrete adverseness

which 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.18

3. Routes of Travel to Restroom and Emergency Exits are

Blocked19

Plaintiff claims that there was a ladder obstructing the

emergency exit door and merchandise obstructed an accessible route

of travel to the restroom. Defendant maintains that, “the ladder

and merchandise allegedly located in the store’s circulation aisles

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 22 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

23

constituted temporary obstructions that are not barriers as a

matter of law.” Def.’s Mot. at 14. Moreover, plaintiff’s own

expert, Joe Card, testified that most of the alleged obstructions

in the store’s aisles were temporary obstructions. 

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

28 C.F.R. Pt. 36.211(b). The regulations appear to suggest that

although defendant is required to maintain ready accessibility, it

would not be liable for “isolated” or 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 v. Abbott,

524 U.S. 624, 646 (1998) (citing Technical Assistance Manual and

noting that Justice Department's views entitled to deference).

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 23 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 20 Violation identified as 13a in the accessibility survey.

24

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). 

Here, defendant asserts that any obstruction was only

temporary in nature. Plaintiff fails to tender any evidence to the

contrary and fails to address this alleged barrier in either his

cross-motion for summary judgment or his reply brief.

For these reasons, defendant’s motion for summary judgment as

to this barrier is GRANTED.

4. A Waste Receptacle is Located in an Area that is

Required to be Clear Floor Space20

Plaintiff claims that within the men’s restroom, a waste

receptacle was placed in the required clear floor space and was a

barrier to people in wheelchairs attempting to reach the paper

towel dispenser. See Accessibility Survey at 3. This alleged

violation is also raised in plaintiff’s cross motion for summary

judgment. See Pl.’s Cross-Mot. at 3. Plaintiff’s expert also

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 24 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

21 The court has already disposed of two of the eleven

barriers as they were raised in the initial complaint. 

Specifically, the court already addressed the alleged violation

regarding the sign by the entrance door and the trash can in the

men’s restroom. 

25

asserts in his report that a trash can is blocking the clear space

below the paper towel dispenser. See Card Report at “Mens Page 

# 07." 

Defendant argues that the trash basket is a temporary obstacle

that can be moved and thus does not constitute a barrier. Def.’s

Mot. at 18. This argument is unavailing. Plaintiff has put forth

factual allegations that the trash basket is an on-going barrier,

and defendant has failed to tender any evidence that the trash

basket is in fact a temporary object that does not violate the

ADAAG. For this reason and with respect to this barrier,

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

C. ALLEGED BARRIERS RAISED IN PLAINTIFF’S CROSS-MOTION 

FOR SUMMARY JUDGMENT

Plaintiff moves for summary judgment with respect to eleven

barriers which were identified in the August 2005 Card report.21

The court addresses each in turn. 

////

////

////

////

////

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 25 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

22 Section 4.32.4 of ADAAG states that the “tops of

accessible tables and counters shall be from 28 in to 34 in . . .

above the finish floor or ground.” 

23 Section 4.19.6 states that “[m]irrors shall be mounted

with the bottom edge of the reflecting surface no higher than 40

in (1015 mm) above the finish floor.” 

24 Section 4.17.3 (Fig. 30(a)) states that “the centerline of

the water closet shall be 18 inches (455 mm) from the side wall.”

26

1. Violations involving “dimensional tolerances”

Three of the violations moved on by plaintiff involve very

small deviations in measurement. Specifically, plaintiff alleges

the following violations:

(I) The lowered section of the service counter is 34-3/16

inches from the floor, citing ADAAG 4.32.4. 22

(ii) The men’s restroom mirror is mounted with the bottom edge

at 40 3/4 inches above the floor, citing to ADAAG § 4.19.6. 23

(iii) In the men's restroom, the water closet is centered at

19 inches from the sidewall, citing to ADAAG 4.17.3. 24

Defendant maintains that all three of these alleged violations

involve very small deviations from the measurements required by

ADAAG. Defendant argues that the differences (3/16 of an inch with

respect to the service counter, 3/4 of an inch with respect to the

mirror and 1 inch with respect to the floor space) are within

dimensional tolerances, as provided for by ADAAG section 3.2. 

Section 3.2 of ADAAG states that “[a]ll dimensions are subject

to conventional building industry tolerances for field conditions.”

////

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 26 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

Although defendant attempts to catagorize these small differences

in measurements as being within “dimensional tolerance,” defendant

has failed to provide evidence regarding applicable 

conventional building industry tolerances. See United States v.

AMC Entertainment, Inc., 245 F.Supp.2d 1094, 1100 (C.D. Cal. 2003).

“[M]any standards set forth in the ADAAG speak in terms of minimums

that must be provided,” and defendant’s argument suggests that the

court should “shave half an inch or an inch off these articulated

minimums.” Id. See also Independent Living Resources v. Oregon

Arena Corp., 1 F.Supp.2d 1124, 1135 (D. Or. 1998) (“defendant has

not furnished this court with evidence of what those conventional

tolerances are for the particular construction work in question.”).

Since defendant has failed to show that there is a remaining

dispute as to these barriers, plaintiff’s motion for summary

judgment as to these three barriers is GRANTED.

2. The Entrance Door Requires 9 pounds of Pressure

to Operate, which Violates CBC § 1133B.2.5 (1998 version)

Plaintiff only cites to the California Building Code in

support of this alleged barrier. Plaintiff fails to cite to any

section of 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.

////

////

////

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 27 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

28

3. The Counter Lacks International Symbol of Accessibility

Signage to Direct Disabled Customers to the Lowered

Section of the Counter (the Lowered Section of the

Counter is Not Visible from the Front of the Store),

which Violates ADAAG § 4.30.7

Plaintiff alleges that the counter lacks ISA signage to direct

disabled customers to the lowered section of the checkout counter

(citing ADAAG 4.30.7) Defendant maintains that there is no

requirement for this type of signage. 

Section 4.30.7 of the ADAAG states that “[f]acilities and

elements required to be identified as accessible by 4.1 shall use

the international symbol of accessibility.” Section 4.1 states

that: 

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.

ADAAG, Sec. 4.2.1(7). Defendant maintains that read together,

these provisions establish that ISA signs are only required for

these specific locations. Def.’s Opp’n. at 15. Plaintiff, on the

other hand, argues that this list is not exhaustive and “common

sense” dictates that there should be a sign placed over the

counter. See Pl.’s Reply at 13. The court is bound by law, which,

for better or worse, does not always comport with common sense. 

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 28 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

29

The ADAAG standards do not mandate that a sign be placed over an

accessible checkout counter, and thus the court cannot expect

defendant to comply with a standard that does not exist. For this

reason, plaintiff’s motion for summary judgment as to this barrier

is DENIED. 

4. The Store's Aisles Do Not Provide the Proper Width

Clearance of 44 Inches

Plaintiff asserts that the “the store’s aisles do not provide

the proper width clearance of 44 inches, the aisles widths are 39

1/2, 38 1/2, 41, 42 1/2, 40 1/2, 41 1/2, 27 1/4, 36, 38 inches,

which violates ADAAG 4.3.3.” Pl. Opp’n. at 3. 

Plaintiff misreads the ADAAG section. Section 4.3.3 of ADAAG

specifically states that “the minimum clear width of an accessible

route shall be 36 in (915 mm) except at doors.” That said,

plaintiff asserts that one of the aisles measures only 27 1/4

inches, which does not comply with the ADAAG requirement.

Defendants fail to present any evidence that disputes this fact.

Given that at least one aisle is non-compliant with the ADAAG,

plaintiff’s motion for summary judgment is GRANTED.

5. The Drinking Fountain Stream is only 21⁄2 Inches High

Plaintiff alleges that the drinking fountain stream is only

2 1/2 inches high, citing ADAAG section 4.15.3. Section 4.15.3

provides that the “spout shall provide a flow of water at least 4

in (100 mm) high so as to allow the insertion of a cup or glass

under the flow of water.” 

////

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 29 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

30

Defendant argues that plaintiff’s expert made unreliable

measurement and that the expert did not clarify which fountain he

purportedly measured. This argument is unavailing.

Plaintiff puts forth evidence in the form of expert testimony

that the water stream is lower than the ADAAG requirement. 

Defendant fails to present any evidence that disputes this fact.

In short, defendant does not present any evidence which would

establish that a disputed fact remains with respect to the height

of the water stream. For this reason, the court GRANTS plaintiff’s

motion with respect to this barrier. 

6. On the Men's Restroom Wall, the Pictogram is only 4

Inches High

Plaintiff alleges that the men’s restroom wall signage has a

pictogram that is only 4 inches high, citing ADAAG 4.30.4. Section

4.30.4 states that “the border dimension of the pictogram shall be

6 in (152 mm) minimum in height.” Defendant’s expert, however,

measured the boarder at 8 inches. Given that there is a factual

dispute, summary judgment is inapplicable and therefore,

plaintiff’s motion as to this barrier is DENIED.

7. The Men's Restroom Door Requires 12 Pounds of Pressure

to Operate

Plaintiff alleges that the men’s restroom door requires 12

pounds to operate, which violates ADAAG § 4.13.11. Section 4.13.11

states that the maximum force for pushing or pulling open an

interior door is five pounds. Defendant contends that plaintiff’s

measurements are inaccurate and that defendant’s expert measured

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 30 of 31
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

25 Plaintiff requests from the court statutory damages in

the amount of $8,000.00 pursuant to the Unruh Act. See Pl.’s

Cross-Mot. and Opp’n at 7. However, because there remain disputed

facts as to the ADA violations upon which plaintiff predicates his

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

award of damages. 

31

the restroom doors at “completely compliant pressures.” Def.’s

Opp’n. at 17. It is clear that a genuine issue of material fact

remains and plaintiff’s motion as to this barrier must therefore

be DENIED.

V.

CONCLUSION

The parties’ cross-motions for summary judgment and/or summary

adjudication are GRANTED in part and DENIED in part as consistent

with this order.25

IT IS SO ORDERED. 

DATED: June 16, 2006.

Case 2:04-cv-01339-MCE-AC Document 93 Filed 06/19/06 Page 31 of 31