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CENTER FOR DISABILITY ACCESS

Ray Ballister, Jr., Esq., SBN 111282 Russell Handy, Esq., SBN 195058

Phyl Grace, Esq., SBN 171771

Dennis Price, SBN 279082

Teresa Allen, SBN 264865

Mail: PO Box 262490

San Diego, CA 92196-2490

Delivery: 9845 Erma Road, Suite 300 San Diego, CA 92131

(858) 375-7385; (888) 422-5191 fax

phylg@potterhandy.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Scott Johnson,

 Plaintiff,

 v.

Marina Plaza, LLC, a California 

Limited Liability Company; Pho Minh, LLC, a California Limited Liability Company;

and Does 1-10,

 Defendants.

Case No. 

Complaint For Damages And 

Injunctive Relief For Violations 

Of: American’s With Disabilities 

Act; Unruh Civil Rights Act

Plaintiff Scott Johnson complains of Defendants Marina Plaza, LLC, a 

California Limited Liability Company; Pho Minh, LLC, a California Limited 

Liability Company; and Does 1-10 (“Defendants”), and alleges as follows:

PARTIES:

1. Plaintiff is a California resident with physical disabilities. Plaintiff is a 

level C-5 quadriplegic. He cannot walk and also has significant manual 

dexterity impairments. He uses a wheelchair for mobility and has a specially 

equipped van.

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Complaint

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2. Defendant Marina Plaza, LLC owned the property located at or about 

10118 Bandley Dr., Cupertino, California, in June 2016.

3. Defendant Marina Plaza, LLC owned the property located at or about 

10118 Bandley Dr., Cupertino, California, in July 2016.

4. Defendant Marina Plaza, LLC owned the property located at or about 

10118 Bandley Dr., Cupertino, California, in August 2016.

5. Defendant Marina Plaza, LLC owned the property located at or about 

10118 Bandley Dr., Cupertino, California, in October 2016.

6. Defendant Marina Plaza, LLC owns the property located at or about 

10118 Bandley Dr., Cupertino, California, currently.

7. Defendant Pho Minh, LLC owned the Pho Minh located at or about 

10118 Bandley Dr., Cupertino, California, in June 2016.

8. Defendant Pho Minh, LLC owned the Pho Minh located at or about 

10118 Bandley Dr., Cupertino, California, in July 2016.

9. Defendant Pho Minh, LLC owned the Pho Minh located at or about 

10118 Bandley Dr., Cupertino, California, in August 2016.

10. Defendant Pho Minh, LLC owned the Pho Minh located at or about 

10118 Bandley Dr., Cupertino, California, in October 2016.

11. Defendant Pho Minh, LLC owns the Pho Minh (“Restaurant”) located at 

or about 10118 Bandley Dr., Cupertino, California, currently.

12. Plaintiff does not know the true names of Defendants, their business 

capacities, their ownership connection to the property and business, or their 

relative responsibilities in causing the access violations herein complained of, 

and alleges a joint venture and common enterprise by all such Defendants. 

Plaintiff is informed and believes that each of the Defendants herein, 

including Does 1 through 10, inclusive, is responsible in some capacity for the 

events herein alleged, or is a necessary party for obtaining appropriate relief. 

Plaintiff will seek leave to amend when the true names, capacities, 

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Complaint

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connections, and responsibilities of the Defendants and Does 1 through 10, 

inclusive, are ascertained.

JURISDICTION & VENUE:

13. The Court has subject matter jurisdiction over the action pursuant to 28 

U.S.C. § 1331 and § 1343(a)(3) & (a)(4) for violations of the Americans with 

Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.

14. Pursuant to supplemental jurisdiction, an attendant and related cause 

of action, arising from the same nucleus of operative facts and arising out of 

the same transactions, is also brought under California’s Unruh Civil Rights 

Act, which act expressly incorporates the Americans with Disabilities Act.

15. Venue is proper in this court pursuant to 28 U.S.C. § 1391(b) and is 

founded on the fact that the real property which is the subject of this action is 

located in this district and that Plaintiff's cause of action arose in this district.

FACTUAL ALLEGATIONS:

16. Plaintiff has gone to the Restaurant on a number of occasions during the 

relevant statutory period, including June 2016, July 2016, August 2016 and 

October 2016. Plaintiff went there to eat. 

17. The Restaurant is a facility open to the public, a place of public 

accommodation, and a business establishment.

18. Parking spaces are one of the facilities, privileges, and advantages 

offered by Defendants to patrons of the Restaurant.

19. Unfortunately, although parking spaces were one of the facilities 

specifically reserved for patrons, there were no compliant van accessible 

handicap parking spaces available for persons with disabilities that complied 

with the Americans with Disability Act Accessibility Guidelines (ADAAG)

during plaintiff’s visits. 

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Complaint

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20. In fact, the parking space measured 95 inches in width.

21. The parking space did not have the required signage bearing the 

International Symbol of Accessibility (ISA) logo. 

22. The parking space did not have the required “Minimum Fine $250” 

signage.

23. The parking space did not have the required tow-away signage.

24. The parking space did not have the required “NO PARKING” lettering

in the access aisle. 

25. The existing access aisle did not have the required blue border.

26. The parking stall and access aisle for use by persons with disabilities is

not level with each other because there is a built up curb ramp that runs into 

the access aisle and parking stall. This results in slopes greater than 2.1%.

27. The parking space and access aisle had cross slopes greater than 2.1%.

28. The parking space and access aisle had running slopes greater than 

2.1%.

29. The Defendants had no policy or plan in place to make sure that the 

parking spaces reserved for persons with disabilities remained useable prior to 

plaintiff’s visits. 

30. Currently, there are no compliant van accessible parking spaces 

designed and reserved for persons with disabilities in the parking lot serving 

the Restaurant.

31. Currently, the parking space measures 95 inches in width.

32. Currently, the parking space does not have the required signage bearing 

the International Symbol of Accessibility (ISA) logo.

33. Currently, the parking space does not have the required “Minimum Fine 

$250” signage.

34. Currently, the parking space does not have the required tow-away 

signage.

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Complaint

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35. Currently, the parking space does not have the required “NO 

PARKING” lettering in the access aisle. 

36. Currently, the parking stall and access aisle for use by persons with 

disabilities is not level with each other because there is a built up curb ramp 

that runs into the access aisle and parking stall. This results in slopes greater 

than 2.1%.

37. Currently, the cross slopes are greater than 2.1%.

38. Currently, the running slopes are greater than 2.1%.

39. Currently, the Defendants have no policy or plan in place to make sure 

that the parking spaces reserved for persons with disabilities remained useable 

prior to plaintiff’s visits.

40. Restrooms are one of the facilities, privileges and advantages offered by 

Defendants to patrons of the Restaurant.

41. The restroom door hardware at the Restaurant had a traditional knob 

style knob that required tight grasping or twisting of the wrist to operate.

42. Currently, the restroom door hardware at the Restaurant has a 

traditional knob style knob that requires tight grasping or twisting of the wrist 

to operate.

43. The violations existed during each of plaintiff’s visits in 2016.

44. The plaintiff frequents the Cupertino area and has visited there on 

scores of occasions this year. He ate at the Restaurant in August 2016 and

encountered the barriers. He visited the Restaurant on four other occasions 

but was deterred from going inside.

45. Plaintiff visited the Restaurant once in June 2016.

46. Plaintiff visited the Restaurant twice in July 2016.

47. Plaintiff visited the Restaurant once in August 2016.

48. Plaintiff visited the Restaurant once in October 2016.

49. These barriers caused Plaintiff great difficulty and frustration.

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Complaint

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50. Plaintiff would like to return and patronize the Restaurant but will be

deterred from visiting until the defendants cure the violations. 

51. The defendants have failed to maintain in working and useable 

conditions those features required to provide ready access to persons with 

disabilities.

52. The violations identified above are easily removed without much 

difficulty or expense. They are the types of barriers identified by the 

Department of Justice as presumably readily achievable to remove and, in fact, 

these barriers are readily achievable to remove. Moreover, there are numerous 

alternative accommodations that could be made to provide a greater level of 

access if complete removal were not achievable.

53. Plaintiff is and has been deterred from returning and patronizing the 

Restaurant because of his knowledge of the illegal barriers that exist. Plaintiff 

will, nonetheless, return to assess ongoing compliance with the ADA and will 

return to patronize the Restaurant as a customer once the barriers are 

removed.

54. Given the obvious and blatant violation, the plaintiff alleges, on 

information and belief, that there are other violations and barriers on the site 

that relate to his disability. Plaintiff will amend the complaint, to provide 

proper notice regarding the scope of this lawsuit, once he conducts a site 

inspection. However, please be on notice that the plaintiff seeks to have all 

barriers related to his disability remedied. See Doran v. 7-11, 524 F.3d 1034 

(9th Cir. 2008) (holding that once a plaintiff encounters one barrier at a site, 

he can sue to have all barriers that relate to his disability removed regardless of 

whether he personally encountered them).

55. Additionally, on information and belief, the plaintiff alleges that the 

failure to remove these barriers was intentional because: (1) these particular 

barriers are intuitive and obvious; (2) the defendants exercised control and 

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Complaint

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dominion over the conditions at this location and, therefore, the lack of 

accessible facilities was not an “accident” because had the defendants 

intended any other configuration, they had the means and ability to make the 

change.

I. FIRST CAUSE OF ACTION: VIOLATION OF THE AMERICANS 

WITH DISABILITIES ACT OF 1990 (On behalf of Plaintiff and against all 

Defendants.) (42 U.S.C. section 12101, et seq.)

56. Plaintiff re-pleads and incorporates by reference, as if fully set forth 

again herein, the allegations contained in all prior paragraphs of this

complaint. 

57. Under the ADA, it is an act of discrimination to fail to ensure that the 

privileges, advantages, accommodations, facilities, goods and services of any 

place of public accommodation is offered on a full and equal basis by anyone 

who owns, leases, or operates a place of public accommodation. See 42 U.S.C. 

§ 12182(a). Discrimination is defined, inter alia, as follows:

a. A failure to make reasonable modifications in policies, practices, 

or procedures, when such modifications are necessary to afford 

goods, services, facilities, privileges, advantages, or 

accommodations to individuals with disabilities, unless the 

accommodation would work a fundamental alteration of those 

services and facilities. 42 U.S.C. § 12182(b)(2)(A)(ii).

b. A failure to remove architectural barriers where such removal is 

readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). Barriers are 

defined by reference to the ADAAG, found at 28 C.F.R., Part 36, 

Appendix “D.”

c. A failure to make alterations in such a manner that, to the 

maximum extent feasible, the altered portions of the facility are 

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Complaint

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readily accessible to and usable by individuals with disabilities, 

including individuals who use wheelchairs or to ensure that, to the 

maximum extent feasible, the path of travel to the altered area and 

the bathrooms, telephones, and drinking fountains serving the 

altered area, are readily accessible to and usable by individuals 

with disabilities. 42 U.S.C. § 12183(a)(2).

58. Any business that provides parking spaces must provide accessible 

parking spaces. 1991 Standards § 4.1.2(5); 2010 Standards § 208. To qualify 

as a reserved handicap parking space, the space must be properly marked and 

designated. Under the ADA, the method, color of marking, and length of the 

parking space are to be addressed by state or local laws or regulations. See 36 

C.F.R., Part 1191, § 502.3.3. Under the California Building Code, to properly 

and effectively reserve a parking space for persons with disabilities, each 

parking space must be at least 216 inches in length. CBC § 11B-502.2. The 

access aisle must extend the full length of the parking spaces it serves. 2010 

Standards § 502.3.2. Under the California Building Code, a sign must be 

posted in a conspicuous place at the entrance to the parking lot or immediately 

adjacent to each handicap parking space, with lettering 1 inch in height, that 

clearly and conspicuously warn that unauthorized vehicles parking in the 

handicap parking spaces can be towed at the owner’s expense. CBC § 

1129B.4. The surface of the access aisle must have a blue border. CBC § 

1129B.3. The words “NO PARKING” in letters at least a foot high must be 

painted on the access aisle. Id. 

59. Here, there was no pole or wall mounted signage with the wheelchair 

logo, in violation of the ADA.

60. Here, Defendants failed to post the required “Minimum Fine $250” 

signs, in violation of the ADA.

61. Here, Defendants failed to post the required tow-away signs, in violation 

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of the ADA.

62. Here, there was no “NO PARKING” lettering in the access aisle, in 

violation of the ADA.

63. Here, there was no blue border on the access aisle, in violation of ADA.

64. Under the 1991 Standards, parking spaces and access aisles must be 

level with surface slopes not exceeding 1:50 (2%) in all directions. 1991 

Standards § 4.6.3. Here, the access aisle is not level and has a ramp taking up 

part of the access aisle. Under the 2010 Standards, access aisles shall be at the 

same level as the parking spaces they serve. Changes in level are not 

permitted. 2010 Standards 502.4. “Access aisle are required to be nearly level 

in all directions to provide a surface for wheelchair transfer to and from 

vehicles.” 2010 Standards § 502.4 Advisory. Specifically, built up curb ramps 

are not permitted to project into access aisles and parking spaces. Id. No more 

than a 1:48 slope is permitted. 2010 Standards § 502.4.

65. Here, the failure to provide level parking is a violation of the law.

66. Door hardware must 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. 1991 Standards § 4.13.9; 2010 Standards § 404.2.7. 

67. Here the failure to provide such door hardware is a violation of the ADA.

68. A public accommodation must maintain in operable working condition 

those features of its facilities and equipment that are required to be readily 

accessible to and usable by persons with disabilities. 28 C.F.R. § 36.211(a).

69. Here, the failure to ensure that the accessible facilities were available 

and ready to be used by the plaintiff is a violation of the law.

70. Given its location and options, plaintiff will continue to desire to 

patronize the Restaurant but he has been and will continue to be discriminated 

against due to the lack of accessible facilities and, therefore, seeks injunctive 

relief to remove the barriers.

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II. SECOND CAUSE OF ACTION: VIOLATION OF THE UNRUH CIVIL 

RIGHTS ACT (On behalf of Plaintiff and against all Defendants.) (Cal. Civ. 

Code § 51-53.)

71. Plaintiff re-pleads and incorporates by reference, as if fully set forth 

again herein, the allegations contained in all prior paragraphs of this

complaint. 

72. Because the defendants violated the plaintiff’s rights under the ADA, 

they also violated the Unruh Civil Rights Act and are liable for damages. (Cal. 

Civ. Code § 51(f), 52(a).) 

73. Because the violation of the Unruh Civil Rights Act resulted in difficulty, 

discomfort or embarrassment for the plaintiff, the defendants are also each 

responsible for statutory damages, i.e., a civil penalty. (Cal. Civ. Code § 

55.56(a)-(c).) 

74. Although the plaintiff was markedly frustrated by facing discriminatory 

barriers and this frustration possibly qualifies as an emotional distress injury, 

even manifesting itself with minor and fleeting physical symptoms, the 

plaintiff does not value this very modest frustration and physical personal 

injury greater than the amount of the statutory damages.

PRAYER: 

Wherefore, Plaintiff prays that this Court award damages and provide 

relief as follows:

1. For injunctive relief, compelling Defendants to comply with the 

Americans with Disabilities Act and the Unruh Civil Rights Act. Note: the 

plaintiff is not invoking section 55 of the California Civil Code and is not 

seeking injunctive relief under the Disabled Persons Act at all. 

2. Damages under the Unruh Civil Rights Act, which provides for actual 

damages and a statutory minimum of $4,000. 

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3. Reasonable attorney fees, litigation expenses and costs of suit, pursuant 

to 42 U.S.C. § 12205; and Cal. Civ. Code §§ 52.

Dated: December 11, 2016 CENTER FOR DISABILITY ACCESS

By: ____________________________________

Russell Handy, Esq. 

Attorney for plaintiffs

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