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CENTER FOR DISABILITY ACCESS

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

Mary Melton, Esq., SBN 164407

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.

A & M Motor Supply, a California Corporation; 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 A & M Motor Supply, a 

California Corporation; 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.

2. Defendant A & M Motor Supply owned the A & M Motor Supply located 

at or about 16165 Los Gatos Blvd., Los Gatos, California, in March 2015. 

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3. Defendant A & M Motor Supply owned the A & M Motor Supply located 

at or about 16165 Los Gatos Blvd., Los Gatos, California, in April 2015.

4. Defendant A & M Motor Supply owned the A & M Motor Supply located 

at or about 16165 Los Gatos Blvd., Los Gatos, California, in May 2015.

5. Defendant A & M Motor Supply owned the A & M Motor Supply located 

at or about 16165 Los Gatos Blvd., Los Gatos, California, in June 2015.

6. Defendant A & M Motor Supply owns the A & M Motor Supply (“Store”) 

located at or about 16165 Los Gatos Blvd., Los Gatos, California, currently.

7. 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, 

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

inclusive, are ascertained.

JURISDICTION & VENUE:

8. 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.

9. 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.

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

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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:

11. Plaintiff has gone to the Store on a number of occasions during the 

relevant statutory period, including March 2015, April 2015, May 2015 and 

June 2015. Plaintiff went there to shop. 

12. The Store is a facility open to the public, a place of public 

accommodation, and a business establishment.

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

offered by Defendants to patrons of the Store.

14. However, there were no parking spaces marked and reserved for 

persons with disabilities during any of plaintiff’s visits.

15. Currently, there is not a single parking space marked and reserved for 

persons with disabilities.

16. Transaction counters are another one of the facilities, privileges, and 

advantages offered by Defendants to patrons of the Store.

17. The transaction counter at the Store was more than 36 inches in height.

18. There was no lowered, 36-inch or lower portion of the transaction 

counter at the Store for use by persons with disabilities during any of plaintiff’s 

visits.

19. Currently, the transaction counter at the Store is more than 36 inches in 

height.

20. Currently, there is no lowered, 36-inch or lower portion of the 

transaction counter at the Store for use by persons with disabilities. 

21. Path of travel is also one of the facilities, privileges and advantages 

offered by Defendants to patrons of the Store.

22. Unfortunately, the defendants have placed their parking spaces such 

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that there is no path of travel into the entrance when people park in the parking 

spaces in front of the business. 

23. Plaintiff personally encountered these barriers. 

24. These inaccessible conditions denied the plaintiff full and equal access 

and caused him difficulty and frustration.

25. The barriers existed during each of plaintiff’s visits in 2015.

26. The plaintiff frequents the Los Gatos area and has visited there on scores 

of occasions in 2015. He purchased items at the Store in May 2015 and 

encountered the barriers. He visited the Store on three other occasions but was 

deterred from going inside.

27. Plaintiff visited the Store once in March 2015.

28. Plaintiff visited the Store once in April 2015.

29. Plaintiff visited the Store twice in May 2015.

30. Plaintiff visited the Store once in June 2015.

31. Plaintiff would like to return and patronize the Store but will be deterred 

from visiting until the defendants cure the violations. 

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

conditions those features required to provide ready access to persons with 

disabilities.

33. 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. 

34. 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, 

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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.

35. For example, there are numerous paint/stripe companies that will come 

and stripe a parking stall and access aisle and install proper signage on rapid 

notice, with very modest expense, sometimes as low as $300 in fully 

compliance with federal and state access standards. 

36. Additionally, one of the common barrier removal projects is to modify 

transaction counters so that there is an accessible portion of counter. This is a 

simple architectural and construction task, well within the capabilities of any 

general contractor, and done with a modicum of expense and effort.

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

Store because of his knowledge of the illegal barriers that exist. Plaintiff will, 

nonetheless, return to the business to assess ongoing compliance with the 

ADA and will return to patronize the Store as a customer once the barriers are 

removed.

38. 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, 506 F.3d 1191 

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

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

of whether he personally encountered them).

39. 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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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.)

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

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

complaint. 

41. 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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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).

42. Any business that provides parking spaces must provide a sufficient 

number of handicap parking spaces. 1991 Standards § 4.1.2(5). 2010 

Standards § 208. The required minimum number of handicap parking spaces 

is dependent on the total number of parking spaces available. Id. According to 

the 1991 Standards, if a parking lot has 1-25 spaces, it must have at least 1 

accessible parking space. 1991 Standards § 4.1.2(5)(a). And 1 in every 8 of 

those accessible parking spaces, but not less than 1, must be a “van” accessible 

parking space, i.e., having an eight foot access aisle. 1991 Standards § 

4.1.2(5)(b). Under the 2010 Standards, a parking lot with 1-25 spaces must 

have at least 1 accessible space and 1 of them must be van accessible. 2010 

Standards § 208.2 & § 208.2.4.

43. Here, the failure to provide accessible parking spaces is a violation of the 

ADA. 

44. In areas used for transactions where counters have cash registers and 

are provided for sales or distribution of goods or services to the public, at least 

one of each type shall have a portion of the counter which is at least 36 inches 

in length with a maximum height of 36 inches above the floor. 1991 Standards 

§ 7.2(1). Under the 2010 Standards, where the approach to the sales or service 

counter is a parallel approach, such as in this case, there must be a portion of 

the sales counter that is no higher than 36 inches above the floor and 36 inches 

in width and must extend the same depth as the rest of the sales or service 

counter top. 2010 Standards § 904.4 & 904.4.1. 

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45. Here, no such accessible transaction counter or a lowered, 36 inch 

counter has been provided in violation of the ADA.

46. Under the ADA, there must be an accessible route within the boundary 

of the site from the accessible parking to the accessible building entrance they 

serve. 1991 Standards § 4.3.2(1); 2010 Standards § 206.2. The accessible 

route shall, to the maximum extent feasible, coincide with the route for the 

general public. Id. The accessible route must be at least 36 inches in width 

except at doors. 1991 Standards § 4.3.3; 2010 Standards § 403.5.1. 

47. Here, the failure to provide an accessible path of travel from the parking 

lot to the entrance is a violation of the law. 

48. 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).

49. 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.

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

patronize the Store 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.

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.)

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

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

complaint. 

52. 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. 

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Civ. Code § 51(f), 52(a).) 

53. 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).) 

54. 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. 

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

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

Dated: February 21, 2017 CENTER FOR DISABILITY ACCESS

By: ____________________________________

Russell Handy, Esq. 

Attorneys for plaintiff

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