FINDINGS OF FACT AND CONCLUSIONS OF LAW

GARLAND E. BURRELL, Jr., Senior District Judge.

Plaintiff seeks injunctive relief under the Americans with Disabilities Act ("ADA") and $8,000.00 in statutory damages under the Unruh Civil Rights Act ("Unruh Act") for certain accessibility barriers at a barbecue restaurant in Sacramento, California.

A bench trial was held on August 25, 2015. The following witnesses testified: Plaintiff; Plaintiff's expert, Paul Bishop; Defendant's son, Bryan Lin; and Defendant's expert, Christopher Cormier. Exhibits 3, 4, 6, and 101 were admitted. The parties also stipulated to certain facts, which are incorporated in the June 17, 2015, Final Pretrial Order ("FPO").

The following findings of fact and conclusions of law are made under Federal Rule of Civil Procedure 52 after considering the stipulated facts, testimony, and documentary evidence presented.

FINDINGS OF FACT

1. Plaintiff Scott Johnson is a level C-5 quadriplegic; he cannot walk and uses a wheelchair for mobility. (FPO 3:21-27, ECF No. 27.)

2. Plaintiff has a specially equipped van with a wheelchair lift that deploys from the passenger side. (FPO 4:1-2.)

3. T&R Taste of Texas Restaurant (the "restaurant") is located at 3621 Broadway, Sacramento, California.

4. At all times relevant to this case, Defendant Chiu Lin, as Trustee of the Kuo & Chiu Family Trust, owned the restaurant.

5. Plaintiff visited and purchased food at the restaurant on the following dates: February 15, 2013; March 4, 2013; April 2, 2013; and June 5, 2013 ("visits"). (Trial Exs. 3-A — 3-D.)

6. Plaintiff drove himself to the restaurant on each visit. (Trial Tr. 31:23-25, ECF No. 41.)

7. On each visit, the restaurant did not offer sufficient, ADA-compliant accessible parking facilities to its disabled patrons. (FPO 5:3-5.)

8. During each visit, Plaintiff had difficulty in exiting and re-entering his vehicle. (Trial Tr. 32:7-11.)

9. During each visit, Plaintiff used the restaurant's restroom. (Id. at 31:16-18.)

10. On each visit, the restaurant's restroom had sink faucet handles with traditional "twisty style" knobs that required persons to grasp and twist with the wrist. (FPO 4:25-27.)

11. In using the restaurant's restroom to wash his hands and face after eating, Plaintiff experienced difficulty using the sink knobs. (Trial Tr. 30:23-24, 31:3-8, 31:16-20.)

12. On each visit, the grab bar mounted on the restaurant's restroom wall adjacent to the toilet jutted out 21 inches away from the wall. (FPO 5:1-3.)

13. In using the restaurant's restroom, the position of the grab bars "made it difficult [for Plaintiff] to keep [his] balance correct for using the toilet." (Trial Tr. 30:25-31:1, 31:16-18, 31:21-22.)

14. On April 16, 2012, the restaurant was inspected by a Certified Access Specialist ("CASp") inspector Christopher Cormier. (FPO 4:7-9.)

15. After receiving Mr. Cormier's report concerning his April 16, 2012 inspection, Defendant began to correct the accessibility barriers identified in the report. (Trial Tr. 47:21-48:4.)

16. Defendant's efforts to correct the accessibility barriers identified in Mr. Cormier's report were not completed until on or around October 2, 2013; work on the parking lot was not completed until on or around October 2, 2013. (Id. at 48:5-8, 52:10-53:18.)

17. All accessibility barriers referenced in the Complaint and in the Final Pretrial Order have been corrected. (Id. at 15:9-18, 17:5-17, 20:12-21:6, 22:22-24.)

DISCUSSION

A. ADA Claim for Injunctive Relief

"Title III of the ADA prohibits discrimination by public accommodations." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citing 42 U.S.C. § 12101, et seq.). "To prevail on a Title III discrimination claim, the plaintiff must show that (1) []he is disabled within the meaning of the ADA; (2) the defendant . . . owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of h[is] disability." Molski, 481 F.3d at 730 (citing 42 U.S.C. §§ 12182(a)-(b)). "The third element—that the plaintiff was denied public accommodations on the basis of disability—is satisfied if the defendant failed to remove architectural barriers where such removal was readily achievable." Lozano v. C.A. Martinez Family Ltd. Partnership, ___ F. Supp. 3d ___, 2015 WL 5227869, at *4 (S.D. Cal. 2015) (citing 42 U.S.C. § 12182(b)(2)(A)(iv)).

"Injunctive relief is the sole remedy available to private parties under the [ADA]; [the ADA] does not authorize a claim for money damages." Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1174 (9th Cir. 2010). "Because a private plaintiff can sue only for injunctive relief (i.e. for removal of the barrier [or barriers]) under the ADA, a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim." Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir. 2011).

Here, the parties do not dispute that Plaintiff has established all three elements of his Title III claim concerning the accessibility barriers alleged in the Complaint and referenced in the FPO. Plaintiff is disabled within the meaning of the ADA; at all relevant times, Defendant owned the restaurant, which is a place of public accommodation as defined by the ADA; and Plaintiff encountered accessibility barriers at the restaurant, the removal of which was readily achievable. Further, it is undisputed that Defendant has removed all accessibility barriers referenced in the Complaint and Final Pretrial Order. (Trial Tr. 15:9-18, 17:5-17, 20:12-21:6, 22:22-24.)

Therefore, the sole issue to be decided on Plaintiff's Title III claim is whether Plaintiff is entitled to injunctive relief to remedy two accessibility barriers that were raised for the first time at trial: the incorrect verbiage and location of an old tow-away sign, and the restroom door's inadequate amount of strike-side clearance. (Trial Tr. 9:16-11:11, 20:12-21:6.)

Although the parties dispute in post-trial briefing whether Plaintiff may obtain injunctive relief for barriers not alleged in the Complaint, the Court need not reach this issue since the trial record does not support awarding injunctive relief to remedy either newly mentioned barrier for the following reasons.

1) Old Tow-Away Sign

Plaintiff's expert, Paul Bishop, testified that during his November 2014 visit to the restaurant, he "found an older tow-away sign at the entrance to the parking lot that did not comply with the current California Building Code or California Vehicle Code requirements." (Trial Tr. 9:16-10:1.) Specifically, Mr. Bishop testified that "[t]he wording or the text on that sign does not comply with the current building code or vehicle code requirements, and . . . lacks the contact information for how to reclaim a towed vehicle." (Id. at 10:5-9.) Mr. Bishop further testified that the sign was not located where it should have been. (Id. at 10:15-11:11.)

However, Defendant's expert, Christopher Cormier, testified that the restaurant's "signage at the handicapped parking" is ADA compliant, making the older sign at the restaurant's entrance "unnecessary." (Id. at 59:13-60:24; see also Trial Ex. 6-B.) Plaintiff presented no evidence to rebut Mr. Cormier's testimony.

In light of the record concerning the restaurant's ADA-compliant signage, injunctive relief requiring Defendant to correct the older tow-away sign is not warranted.

2) Restroom Door Strike-Side Clearance

"An architectural barrier need only be removed where it is `readily achievable' to do so." Yates v. Bacco, No. C-11-01573 DMR, 2014 WL 1089101, at *5 (N.D. Cal. Mar. 17, 2014) (citing 42 U.S.C. 12182(b)(2)(A)(iv)). "Readily achievable means `easily accomplishable and able to be carried out without much difficulty or expense.'" Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (quoting 42 U.S.C. § 12181(9)).

"Th[e Ninth C]ircuit has `yet to decide who has the burden of proving that removal of an architectural barrier is readily achievable.'" Moore v. Robinson Oil Corp., 588 F. App'x 528, 530-31 (9th Cir. 2014) (quoting Vogel v. Rite Aid Corp., 992 F.Supp.2d 998, 1010 (C.D. Cal. 2014)). However, "[i]n this case, regardless of the allocation of the burden of proof, there [i]s insufficient evidence to support a conclusion that [removal of the side-strike door clearance barrier i]s `readily achievable.'" Id.

Defendant presented the only evidence at trial on the subject. Mr. Cormier's report concerning his April 16, 2012 inspection of the restaurant identified the restroom door's inadequate strike-side clearance. (Trial Ex. 101, p. 27.) However, the report states: "The location of the existing door does not allow for the required 12[ inch] strike-side clearance...." (Id.) Further, when discussing the restroom door at trial, Mr. Cormier testified that "[b]ased on . . . looking [at] and evaluating the structure[,] . . . it appeared that there was no feasible way to change that swing of the door to make it fully compliant to match the required strike-side clearance." (Trial Tr. 64:17-23.) Plaintiff presented no evidence to rebut Mr. Cormier's opinions.

Plaintiff's attorney suggested that automating the restroom door "where there is a button you push, and the door is automatically opened[,]" is an alternative means to remedy the strike-side clearance barrier. However, Plaintiff presented no evidence concerning this proposed alternative; Plaintiff's counsel's argument is not evidence.

On this record, injunctive relief requiring Defendant to provide 12 inches of strike-side clearance for the restroom door is unwarranted.

B. Unruh Act Claim for Statutory Damages

"In the disability context, [the Unruh Act] operates virtually identically to the ADA." Molski, 481 F.3d at 731. "Any violation of the ADA necessarily constitutes a violation of the Unruh Act." Id. (citing Cal. Civ. Code § 51(f)). "The Unruh Act, however, . . . allow[s] for monetary damages." Id. "And even if a defendant has removed barriers to access and thereby mooted the plaintiff's ADA claim, those remedial measures will not moot a[n Unruh Act] claim for damages." Johnson v. Wayside Property, Inc., 41 F.Supp.3d 973, 980-81 (E.D. Cal. 2014).

"The [Unruh Act] generally provides for a minimum of $4,000 in statutory damages for each occasion a plaintiff has been denied full and equal access to a place of public accommodation." Johnson v. Patel, No. 2:14-cv-02078 WBS DAD, 2015 WL 5560257, at *3 (E.D. Cal. Sept. 21, 2015) (citing Cal. Civ. Code §§ 52(a), 55.56(a)). "A plaintiff is denied full and equal access if a plaintiff has `personally encountered' a violation or has been `deterred from accessing a place of public accommodation' on a particular occasion." Id. (quoting Cal. Civ. Code § 55.56(b)). "A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation." Cal. Civ. Code § 55.56(c).

Here, although Plaintiff personally encountered accessibility barriers at the restaurant on at least four occasions, Plaintiff requests statutory damages for only two occasions, totaling $8,000. (See Pl.'s Post Trial Br. 5:2-23, ECF No. 42.) However, Defendant argues Plaintiff's statutory damages should be reduced because of her affirmative defenses, which are addressed below.

1) California Civil Code section 55.56(f)(1)

Defendant argues Plaintiff's statutory damages should be limited to $1,000 per occasion under California Civil Code section 55.56(f)(1). This section "provides that a defendant's liability for statutory damages is reduced to a minimum of $1,000 for each [occasion] if the defendant shows[, inter alia,] that [she] has corrected all construction-related violations that are the basis of [Plaintiff's complaint] within 60 days of being served with the complaint." Lozano, 2015 WL 5227869, at *6.

Here, Defendant presented no evidence at trial concerning the date she was served with the Complaint. Further, even if the Court takes judicial notice, sua sponte, of this date, the trial record establishes that Defendant did not remedy all accessibility barriers that are the subject of Plaintiff's Complaint within sixty days of being served. Plaintiff filed a proof of service for Defendant, which states Defendant was served on July 27, 2013. (See Proof of Service, ECF No. 6.) However, Defendant's son testified at trial that construction on the restaurant's parking lot was not completed until early October 2013, more than sixty days later. (Trial Tr. 48:5-8, 52:10-53:18.)

Accordingly, Defendant has not shown this affirmative defense applies.1

2) California Civil Code section 55.56(h)

Defendant also contends it was unreasonable for Plaintiff to visit the restaurant on more than one occasion, and therefore, his statutory damages should be limited to one occasion under California Civil Code section 55.56(h).

"When a plaintiff [seeks] multiple claims for statutory damages, the UCRA requires the court to consider the reasonableness of the plaintiff's conduct in light of his duty to mitigate damages." Johnson v. Patel, 2015 WL 5560257, at *3 (citing Cal. Civ. Code § 55.56(h)). Specifically, California Civil Code section 55.56(h) prescribes:

Assuming, without deciding, that section 55.56(h) applies to Plaintiff's statutory damages claims2, Defendant has not shown that Plaintiff acted unreasonably in visiting the restaurant on two occasions.

Plaintiff's following trial testimony is relevant to Defendant's mitigation affirmative defense:

(Trial Tr. 35:13-36:11.)

Plaintiff testified that on some of the dates he ate at the restaurant, he also visited a nearby bait & gun store and that his visits to that store are the subject of another ADA accessibility complaint he filed in this federal judicial district. (Trial Tr. 36:12-38:11.) Defendant presumably asked Plaintiff about these visits to challenge Plaintiff's stated motive in eating at the restaurant. However, there is no evidence that Plaintiff visited the bait and gun store when he dined at the restaurant on February 15, 2013, and March 4, 2013. Therefore, Defendant has not shown that it was unreasonable for Plaintiff to visit the restaurant on these two occasions.

For the stated reasons, Plaintiff is entitled to a statutory damages award of $8,000 ($4,000 per occasion for two visits to the restaurant).

CONCLUSIONS OF LAW

1. Plaintiff is disabled within the meaning of the ADA and Unruh Act.

2. At all relevant times, Defendant owned the restaurant, which is a place of public accommodation under the ADA and Unruh Act.

3. During his visits to the restaurant, Plaintiff was denied full and equal access to a place of public accommodation because of his disability(ies).

4. Injunctive relief to remedy the two accessibility barriers raised for the first time at trial is unwarranted.

5. Plaintiff is entitled to $8,000 in statutory damages ($4,000 per occasion, for two actual visits to the restaurant).

CONCLUSION

Given the above conclusions of law, Defendant is ordered to pay Plaintiff $8,000 in statutory damages.

Within ten days from the date this Order is filed, the parties shall file a joint proposed judgment consistent with this Order or separate proposed judgments, if agreement cannot be reached on a joint proposed judgment.