IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 24, 2012
SCOTT N. JOHNSON, PLAINTIFF,
RICKY CHU, ET AL.,
On September 30, 2011, plaintiff filed a complaint, which names the following defendants in the caption: Ricky Chu, individually and d/b/a Wah Shine Restaurant; Isela Margarita Hernandez, individually and d/b/a Sharkees Billiards; Lorna Walter, individually and d/b/a Healing Hands Therapeutic Massage; Ly Thi Phan, individually and d/b/a Kazan Japanese Cuisine; Kwi Cha Sustarich, individually and d/b/a The Seagull Lounge; and Guerreros Launderland.*fn1 Complaint, ECF No. 1 at 1, 3.
Plaintiff, who is quadriplegic, uses a motorized wheelchair, is accompanied by a service animal, and drives a van equipped with a passenger side wheelchair lift. Id. at 2. He alleges that he encountered the following architectural barriers at the businesses, located along Peabody Road in Vacaville: inadequate accessible routes to the businesses; inaccessible restrooms; an inaccessible entrance at Wah Shine Restaurant; doors of non-compliant width and with non-compliant closing speeds and door pressure; and counters of improper height at The Seagull Lounge, Kazan Japanese Cuisine, and Sharkees Billiards. Id. at 4-5. He alleges causes of action under the Americans With Disabilities Act (ADA) and California's Unruh Act, California Civil Code §§ 51(f) and 52.
On November 7, 2011, Ricky Chu on behalf of Wah Shine Restaurant, filed an answer reporting that he had made all the changes required by the ADA and asked the Chief Building Officer for the City of Vacaville, Jay Salazar, P.E. CASp, to inspect. ECF No. 7.
On November 8, 2011, Gerson Guerrero, on behalf of Guerrero's Launderland, filed an answer reporting that he had complied with plaintiff's request for modifications by lowering one of the folding tables and fixing the pressure on the front door, as approved by the city building inspector. ECF No. 9. Defendant Kwi Cha Sustarich on behalf of the Seagull Lounge said that she had complied with plaintiff's request for modifications by lowering the counter, fixing the bathroom, adjusting the height of the table, widening the hallway and front door and erecting the appropriate handicapped signs. ECF No. 10. Defendant Ly Thi Phan, on behalf of Kazan Japanese Cuisine, said that everything had been fixed as required by law and inspected by Jay Salazar, P.E. CASp. 075. ECF No. 11. Finally, defendant Hui Lan Liu, the new owner of Healing Hands Massage, said that she owns the business only, not the property. ECF No. 12.
On November 15, 2011 the court dismissed defendant Isela Margarita Hernandez and on May 7, 2012 it dismissed defendant Lorna Walter, both at plaintiff's request. ECF Nos. 8, 24.
A private individual who brings suit under Title III of the ADA cannot recover damages but rather may seek only injunctive relief; under the Unruh Act and other state statutes, however, damages are available. Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002). When facilities are brought into ADA compliance during the course of the litigation, the ADA action becomes moot. Id. In that situation, a court lacks federal question jurisdiction over the state law claims and may decline to exercise supplemental jurisdiction over that aspect of the litigation. Id. at 860; Pickern v. Best Western Timber Cove Lodge Marina Resort, 194 F. Supp. 2d 1128, 1133 (E.D. Cal. 2002). In light of the claims of the defendants identified above, that the ADA violations have been addressed, plaintiff is directed to show cause within fourteen days of the date of this order why the ADA action is not moot and why this court should not decline to exercise its supplemental jurisdiction over his state law claims.
In addition, defendant Liu suggests that she does not control the property. The exhibits to plaintiff's complaint show that in 2009 he corresponded with Dkm & Rkm Investments LP, owner of 129 Peabody Lane, and that the owner had retained a certified Access Specialist to survey the property and was committed to following up on the recommendations. This suggests that this portion of the action may also be moot. Moreover, in light of the owner's control over the necessary repairs and the fact that the owner is not named as a defendant, plaintiff is directed to show cause within fourteen days of the date of this order why Dkm & Rkm Investments is not a necessary and indispensable party and how the removal of the barriers is readily achievable in its absence. FED. R. CIV. P. 19; Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 879-83 (9th Cir. 2004); Botosan v. Paul McNally Realty, 216 F.3d 827, 834 (9th Cir. 2000).
IT IS SO ORDERED.