ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

JOHN A. MENDEZ, District Judge.

Plaintiff Scott Johnson ("Plaintiff") sued Fred Arthur Ballew ("Defendant Ballew") and Tata Foods Corporation ("Defendant Tata Foods"), alleging that their business, a Denny's restaurant, does not comply with the Americans with Disabilities Act ("ADA") and the Unruh Civil Rights Act. Compl., ECF No. 1. A default judgment was entered against Defendant Tata Foods. ECF No. 6. Plaintiff now moves for partial summary judgment against Defendant Ballew. Mot., ECF No. 38. Defendant Ballew has not opposed Plaintiff's motion. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion.1

I. OPINION

Plaintiff, a quadriplegic, visited the Denny's restaurant, located at 5033 S. Hwy 99, Stockton, California, on March 11, 2014, March 18, 2019, and March 24, 2019. Johnson Decl. ¶¶ 4, 9, ECF No. 38-4. During these visits, Plaintiff found that the restaurant did not have a van accessible parking spot. Id. at ¶ 6. Inside the restaurant's restroom, Plaintiff was unable to use the coat hook and mirror as both were mounted too high. Id. at ¶¶ 13-14. Additionally, Plaintiff was worried about burning his legs on an unwrapped hot water pipe below the sink. Id. at ¶ 15. Plaintiff regularly visits businesses in the area but was deterred from patronizing the Denny's restaurant on several occasions because of the restaurant's barriers to access. Id. at ¶¶ 18, 21.

Plaintiff seeks injunctive relief and statutory damages under the Unruh Civil Rights Act corresponding to two (2) obstructed visits to the Denny's restaurant ($4,000.00 minimum statutory damages per visit, for a total amount of $8,000.00) and an additional $4,000 for the times he was deterred from visiting the restaurant because of his knowledge of the barriers. Mot. at 11-12.

Here, Plaintiff provided factual evidence that Defendant Ballew's business did not comply with the ADA and Unruh Civil Rights Act, that Plaintiff visited the restaurant on several occasions, and that Plaintiff was deterred from patronizing the restaurant thereafter. By failing to file an opposition to this motion, Defendant Ballew has not provided any evidence demonstrating an issue of material fact as to those violations. Thus, there is no dispute of fact as to Plaintiff's visits to the Denny's restaurant and Defendant's statutory noncompliance, making relief appropriate.

Although a plaintiff may recover statutory damages for several visits to a non-compliant facility, making multiple visits to a non-complaint facility in a short amount of time may constitute a failure to mitigate. See Johnson v. Guedoir, 218 F.Supp.3d 1096, 1103 (E.D. Cal. 2016). Here, Plaintiff visited the Denny's restaurant three times in one month. Johnson Decl. at ¶¶ 4, 9. These visits are close enough in time to constitute a failure to mitigate. Thus, the Court will only award Plaintiff $4,000 in statutory damages for the first of his visits to the restaurant.

Finally, the same plaintiff is entitled to statutory damages for one encounter and a separate award for deterrence. Guedoir, 218 F. Supp. 3d at 1100. Accordingly, the Court will award Plaintiff another $4,000 in statutory damages for the times he was deterred from visiting the restaurant.

II. ORDER

For the reasons provided, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion for Partial Summary Judgment. Defendants are enjoined to "alter facilities to make such facilities readily accessible to and useable by individuals with disabilities" to the extent required by the ADA. 42 U.S.C. § 12188(a)(2). The Court also awards Plaintiff statutory damages in the amount of $8,000.

IT IS SO ORDERED.