Scott Johnson v. Azizur Rehman ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT JOHNSON, No. 19-16557
Plaintiff-Appellee, D.C. No.
2:14-cv-01454-MCE-AC
v.
AZIZ UR REHMAN, MEMORANDUM*
Defendant-Appellant,
and
OMAR GHAITH,
Defendant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted November 18, 2020**
San Francisco, California
Before: TASHIMA, NGUYEN, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendant Aziz Ur Rehman appeals a grant of summary judgment in favor
of plaintiff Scott Johnson on claims under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12182–12183, the Unruh Act, Cal. Civ. Code § 51, and the
Disabled Persons Act, id. §§ 54–54.6. We have jurisdiction under 28 U.S.C.
§ 1291. Reviewing de novo, see Kohler v. Flava Enters., Inc., 779 F.3d 1016,
1018 (9th Cir. 2015), we affirm.
1. Rehman challenges “Johnson’s motivation for visiting the business,” but
“motivation is irrelevant to the question of standing under Title III of the ADA.”
Civ. Rts. Educ. & Enf’t Ctr. v. Hosp. Props. Tr., 867 F.3d 1093, 1102 (9th Cir.
2017). Nor was Johnson’s motivation relevant to his Unruh Act claim, because “a
violation of the ADA constitutes a violation of the Unruh Act.” Cohen v. City of
Culver City, 754 F.3d 690, 701 (9th Cir. 2014) (first citing Cal. Civ. Code § 51(f);
and then citing Munson v. Del Taco, Inc., 208 P.3d 623, 625 (Cal. 2009)).
2. Rehman asserts that he was not required to remove barriers to access
because he “did not make any structural alterations to the building he purchased.”
However, discrimination under Title III of the ADA “includes ‘a failure to remove
architectural barriers . . . in existing facilities . . . where such removal is readily
achievable.’” Kohler v. Bed Bath & Beyond of Cal., LLC, 780 F.3d 1260, 1263
(9th Cir. 2015) (emphasis added) (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)). An
“[e]xisting facility” is “a facility in existence on any given date, without regard to
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whether the facility may also be considered newly constructed or altered . . . .” 28
C.F.R. § 36.104.
Even assuming that the building and parking lot complied with the
Sacramento City Code, that does not alter Rehman’s obligations under the ADA
and Unruh Act. See U.S. Const. art. VI, cl. 2. When the City Code says that
certain parking uses “may continue,” it is saying simply that it may continue
without violating the City Code. It does not establish that compliance with the
City Code negates any additional requirements imposed by state or federal law.
See U.S. Dep’t of Justice, Civil Rights Div., ADA Certification of State and Local
Accessibility Requirements, https://www.ada.gov/certcode.htm (“Design and
construction under state and local codes complies with the ADA only when the
codes provide accessibility that equals or exceeds the ADA requirements. When
these laws are inconsistent, the burden falls on building owners and design
professionals to ensure compliance with both federal and state laws.”).
3. Rehman disputes that he failed to remove an architectural barrier, but he
did not produce evidence showing a triable issue of fact on this issue. His
subsequent remediation efforts—replacing a doorknob and repainting the
wheelchair-accessible parking space—do not lessen his liability for past violations
of state law. Cf. Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905–06, 906 n.6 (9th
Cir. 2011) (explaining that “a defendant’s voluntary removal of alleged barriers
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prior to trial can have the effect of mooting a plaintiff’s ADA claim,” because
unlike the Unruh Act, the ADA does not provide for money damages to a private
plaintiff).
Rehman does not dispute that when Johnson visited SmarTEK, Johnson
encountered parking spaces and a door handle that did not comply with the ADA
Accessibility Guidelines. Nor does Rehman dispute that removing these barriers
would have been readily achievable. He argues only that the non-compliant
elements were insignificant and thus did not affect Johnson’s “full and equal
enjoyment of the facility on account of his particular disability.” Chapman v. Pier
1 Imports (U.S.) Inc., 631 F.3d 939, 946–47 (9th Cir. 2011) (en banc).
Johnson provided evidence that he encountered barriers not faced by
individuals without his physical limitations and that these barriers deterred him
from patronizing SmarTEK, and caused him difficulty, embarrassment, discomfort,
and frustration. The parking lot did not reserve a space for disabled individuals, so
Johnson had to leave his van lift deployed while he was inside the store—a
security risk—to prevent another vehicle from blocking him. When he reached
SmarTEK’s door, he could not enter the store on his own because the door was
closed, and he had difficulty manipulating the doorknob. Although a SmarTEK
employee opened the door for him, a non-disabled individual would not have had
to endure embarrassment and frustration while waiting for assistance.
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Rehman’s personal opinions regarding Johnson’s credibility and the extent
of Johnson’s physical limitations did not create a genuine dispute of material fact.
See Schuler v. Chron. Broad. Co., 793 F.2d 1010, 1011 (9th Cir. 1986). That
Johnson was able to shop at SmarTEK notwithstanding the access barriers is not
proof of their nonexistence. See Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 n.4
(9th Cir. 2008) (“[The ADA] does not limit its antidiscrimination mandate to
barriers that completely prohibit access.”).
AFFIRMED.
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