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

28

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

TONY HARRIS,

CASE NO. CIV. S-04-1149 WBS PAN

Plaintiff,

v. MEMORANDUM AND ORDER

CHICO NISSAN, INC., RAY L.

BOWEN, and DOES 1 through 10,

Defendants.

----oo0oo----

Plaintiff Tony Harris alleges that defendants Chico

Nissan, Inc., and its owner, Ray L. Bowen, violated Title III of

the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-

12300 and various California statutes. He now moves for summary

judgment pursuant to Federal Rule of Civil Procedure 56.

I. Factual and Procedural Background

Plaintiff, who is partially paralyzed, purchased a

Nissan Frontier pick-up from defendants at their place of

business in Chico, Ca. (Harris Decl. ¶¶ 2-3; Pl.’s Statement of

Undisputed Material Facts ¶ 6.) Based on his experience that day

Case 2:04-cv-01149-DFL-CMK Document 74 Filed 12/02/05 Page 1 of 4
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

28

2

and on a subsequent visit for maintenance on the truck, plaintiff

filed suit against defendants under the ADA, alleging that

“architectural barriers” denied him full and equal access to

defendants’ business. (Compl. ¶¶ 18-19.) Specifically,

plaintiff claimed that he encountered: (1) accessible parking

spaces taken up by unauthorized vehicles, (2) ramps that were too

steep or too narrow, (3) a door that was too narrow, and (4) a

men’s restroom that lacked grab bars. (Swenson Decl. Ex. 1

(Harris Dep. at 53-57).) He now moves for summary judgment on

these four claims.

II. Discussion

Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is 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). A material fact is one that could affect the outcome of

the suit, and a genuine issue is one that could permit a

reasonable jury to enter a verdict in the non-moving party’s

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Here, the facts regarding whether the four “barriers”

identified by plaintiff actually violate the ADA, or even exist,

are in dispute.

A. Parking Spaces

Regarding plaintiff’s first claim that accessible

parking spaces were taken up by defendants’ unauthorized

vehicles, defendants respond that plaintiff has no evidence of

these alleged violations. They also offer testimony asserting

Case 2:04-cv-01149-DFL-CMK Document 74 Filed 12/02/05 Page 2 of 4
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

28

3

that they have never left company cars in accessible spaces. 

(Bowen Decl. ¶ 10; Swenson Decl. Ex. 3 (Carey Dep. at 11:8-12).) 

B. Ramps

Likewise, defendants rebut plaintiff’s second claim

that ramps were too steep or too narrow by presenting a report

from their own expert, Michael Boga. Boga’s measurements

contradict those of plaintiff’s expert, Joseph Card. (Boga Decl.

& Exs. 1-3.) 

C. Narrow Door

Defendants present evidence that the allegedly too

narrow door was only temporarily in place during a remodeling

project and has since been removed. If defendants’ claim is

true, then plaintiff’s ADA claim regarding the door is moot,

because the ADA offers only injunctive relief for Title III

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

D. Restrooms

Finally, defendants respond to plaintiff’s claim that

the men’s restroom lacked grab bars by explaining that the unisex

restroom rather than the men’s room was the one intended to be

accessible to disabled patrons. Plaintiff selected the men’s

room, which was not marked with the international sign for

accessibility, in lieu of the unisex bathroom, which was marked

and arguably properly equipped.

 In light of these factual disputes, plaintiff has not

made the necessary showing to warrant summary judgment in his

favor. Therefore, as plaintiff’s counsel admitted at oral

argument, plaintiff is not entitled to summary judgment.

///

Case 2:04-cv-01149-DFL-CMK Document 74 Filed 12/02/05 Page 3 of 4
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

28

 Plaintiff’s motion for summary judgment on his state law 1

claims under the Unruh Civil Rights Act and Disabled Persons Act,

which plaintiff argues “are wholly predicated upon a violation of

the [ADA],” is thus also denied. (Pl.’s P. & A. in Supp. of Mot.

for Summ. J. at 17.)

4

IT IS THEREFORE ORDERED that plaintiff’s motion for

summary judgment be, and the same hereby is, DENIED.1

DATED: December 1, 2005

Case 2:04-cv-01149-DFL-CMK Document 74 Filed 12/02/05 Page 4 of 4