You are on page 1of 39

Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 1 of 22

SCOTT N. JOHNSON, ESQ., SBN 166952


1 DISABLED ACCESS PREVENTS INJURY, INC.
5150 FAIR OAKS BLVD., SUITE 101
2 PMB #253
CARMICHAEL, CA 95608-5758
3 TELEPHONE (916) 485-3516
FAX (916) 481-4224
4 E-MAIL scottnjohnson@comcast.net
5 Attorney for Plaintiff Scott N. Johnson
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11
12
) Case No.:
13 Scott N. Johnson )
) COMPLAINT: CIVIL RIGHTS
14 Plaintiff, )
) COMPLAINT FOR PRELIMINARY AND
15 vs. ) PERMANENT INJUNCTIVE RELIEF;
) DECLARATORY RELIEF; AND
16 Sung Kyun Park, Individually ) MONETARY RELIEF: DENIAL OF
) CIVIL RIGHTS AND PUBLIC
17 and d/b/a Teriyaki House; Sung ) FACILITIES TO PHYSICALLY
) DISABLED PERSONS (CIVIL CODE §§
18 Jae Park, Individually and ) 51(f), 52); INJUNCTIVE RELIEF
) PER TITLE III, AMERICANS WITH
19 d/b/a Teriyaki House; Robert J. ) DISABILITIES ACT OF 1990
)
20 Gabbay, )
)
21 Defendants )
22
23 ///
24 ///
25 ///
26 ///
27
28

COMPLAINT - 1
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 2 of 22

1 Plaintiff, SCOTT N. JOHNSON, alleges:


2
3 THE PLAINTIFF
4 1. Plaintiff, SCOTT N. JOHNSON (hereinafter “Plaintiff”), is a
5 person with physical impairments of quadriplegia and is a
6 “person with a disability” and “physically handicapped person.”
7 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 36.104. Plaintiff has
8 substantial limitations and restrictions on many of his major
9 life activities including (but not limited to); standing,
10 walking, breathing, reaching, grasping {Plaintiff is missing
11 some of his fingers}, and balancing, therefore, either unable to
12 use portions of public facilities which contain architectural
13 barriers {ADAAG VIOLATIONS} related to the Plaintiff’s mobility
14 disability or is only able to use such portions with undue
15 difficulty. As such, Plaintiff requires the use of a “Service
16 Animal,” wheelchair, and full size van with hand-controls along
17 with a passenger side wheelchair lift. The Plaintiff has a
18 mobility related disability. The Plaintiff does not have either
19 a hearing or vision impairment. Attached, hereto, as Exhibit A,
20 is a copy of the Plaintiff’s DMV disabled parking placard.
21 Plaintiff is currently a resident of Sacramento County and has
22 been a resident for over 40 years.
23 //
24 //
25 //
26 //
27
28

COMPLAINT - 2
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 3 of 22

1 PUBLIC ACCOMMODATION
2 2. TERIYAKI HOUSE is a restaurant with a parking lot located
3 at 120 Parker Street, Vacaville, California, and is a public
4 accommodation as defined by 42 U.S.C. § 12181(7); 28 C.F.R. §
5 36.104; (hereinafter the “PUBLIC ACCOMMODATION”).
6 THE DEFENDANTS
7 3. Defendants own, operate, manage, lease (or lease to), the
8 PUBLIC ACCOMMODATION and property. Defendants include: Sung
9 Kyun Park, Individually and d/b/a Teriyaki House; Sung Jae Park,
10 Individually and d/b/a Teriyaki House; Robert J. Gabbay;
11 (hereinafter collectively “Defendants”). Attached, hereto, as
12 Exhibit B, are copies of ownership and operation documentation.
13 //
14 //
15 //
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27
28

COMPLAINT - 3
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 4 of 22

1 THE FACTS
2 4. Summary of facts: The Plaintiff was discriminated against
3 when he personally encountered the following architectural
4 barriers which relate directly to his mobility disability and
5 which deprive him full and equal enjoyment of the premises in
6 violation of the Americans with Disabilities Act (“ADA”) and
7 caused the Plaintiff to experience difficulty, discomfort and
8 embarrassment: the correct number and type of properly
9 configured disabled parking space(s) including the lack of a van
10 accessible disabled parking space {the Plaintiff drives a van
11 with a side entry wheelchair lift}, accessible route {the
12 Plaintiff utilizes a wheelchair for mobility and has limited
13 balance}, accessible restrooms {the Plaintiff requires
14 wheelchair access into and throughout the restroom, in addition
15 to having the restroom fixtures and accessories at compliant
16 heights and locations due to the Plaintiff’s reaching, grasping,
17 and balance limitations}, accessible entrance {the Plaintiff
18 requires compliant clear space and landing due to his
19 wheelchair, poor balance, reach and strength limitations. The
20 Plaintiff also requires compliant door width due to his
21 wheelchair and compliant door pressure and door handles due to
22 his limited grasping ability, strength and balance limitations.
23 Additionally, the Plaintiff requires compliant door closing
24 speeds so that the door does not close on either him or his
25 Service Animal}, accessibility signage, striping, and accessible
26 outside dining table, {because of the Plaintiff’s wheelchair he
27
28

COMPLAINT - 4
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 5 of 22

1 requires the dining table to be high enough so that he does not


2 scrape his knees when he pulls under the table. He also
3 requires clear space in front of the table for wheelchair
4 maneuvering}. The removal of the above referenced architectural
5 barriers is readily achievable. Written Notice: In a letter
6 dated November 13, 2009, which was mailed to the PUBLIC
7 ACCOMMODATION on November 13, 2009, and addressed to the
8 landlord/business operator, the Plaintiff informed the
9 Defendants about the lack of accessibility and requested that
10 the property be brought into conformity within 90 days. The
11 Plaintiff also enclosed a publication produced by the United
12 States Department of Justice concerning Americans with
13 Disabilities Act requirements, along with the official United
14 States Department of Justice web site (www.ADA.gov). This is
15 attached as Exhibit C. A certificate of mailing is attached as
16 Exhibit D. The Plaintiff first attempted to resolve the access
17 issues through voluntary compliance and education. The
18 Plaintiff was never contacted regarding the issues. Actual and
19 deterred visits: The Plaintiff has two (2) actual visits during
20 the past year in which he encountered the mobility related
21 architectural barriers, which prevented full and equal access to
22 the PUBLIC ACCOMMODATION and caused the Plaintiff to experience
23 difficulty, discomfort and embarrassment, one of which was on or
24 about April 26, 2011. The Plaintiff was deterred and foregone
25 two (2) visits to the PUBLIC ACCOMMODATION during the past year.
26 The following deterred visits are based upon personal knowledge
27
28

COMPLAINT - 5
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 6 of 22

1 of existing mobility related architectural barriers which limits


2 the Plaintiff’s full and equal enjoyment of the PUBLIC
3 ACCOMMODATION. The Plaintiff is not required to engage in the
4 “futile gesture” of actually returning to the inaccessible place
5 of public accommodation. Pickern v. Holiday Quality Foods, Inc.,
6 293 F3d. 1133, 1135 (9th Cir. 2002). The Plaintiff would like to
7 be able to return and receive the goods/services as an equal.
8 Opportunity to remove architectural barriers and provide
9 disabled access: The Plaintiff provided over eighteen (18)
10 months from the date of the original notice of architectural
11 barriers in hopes that the architectural barriers would be
12 removed without the need of this lawsuit. As of today’s date,
13 mobility architectural barriers remain. This case involves the
14 denial of access to the Plaintiff and others similarly situated.
15 Plaintiff was denied equal protection of the law and was denied
16 Civil Rights under both California law and federal law, as
17 hereinbelow described. Plaintiff was denied his rights to full
18 and equal access to the PUBLIC ACCOMMODATION because of the
19 mobility related architectural barriers which created
20 difficulty, discomfort and embarrassment when he went there on
21 the above referenced dates, which made the PUBLIC ACCOMMODATION
22 not properly accessible to Plaintiff. Plaintiff seeks
23 injunctive relief to require Defendants to remove all
24 architectural barriers related to his mobility disability at the
25 PUBLIC ACCOMMODATION; to comply with the Americans with
26 Disabilities Act of 1990 (ADA); and Americans with Disabilities
27
28

COMPLAINT - 6
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 7 of 22

1 Act Accessibility Guidelines (ADAAG) contained in 28 CFR Part


2 36. Including, but not limited to, §4.1.2 Accessible Sites and
3 Exterior: New Construction; §4.1.3 Accessible Buildings: New
4 Construction; §4.1.5 Accessible Buildings: Additions; §4.1.6
5 Alterations; §4.2 Space Allowance and Reach Ranges; §4.3
6 Accessible Route; §4.5 Ground and Floor Surfaces; §4.6 Parking
7 and Passenger Loading Zones, §4.7 Curb Ramps; §4.8 Ramps; §4.13
8 Doors; §4.14 Entrances; §4.15 Drinking Fountains and Water
9 Coolers; §4.16 Water Closets; §4.17 Toilet Stalls; §4.18
10 Urinals; §4.19 Lavatories and Mirrors; §4.22 Toilet Rooms; §4.23
11 Bathrooms, Bathing Facilities and Shower Rooms; §4.24 Sinks;
12 §4.26 Handrails, Grab Bars, and Tub and Shower Seats; §4.27
13 Controls and Operating Mechanisms; §4.30 Signage; §4.32 Fixed or
14 Built-In Seating and Tables; §5 Restaurants and Cafeterias and
15 Title 24 California Code of Regulations, California Building
16 Standards Code (CBC) where required; to remove all barriers to
17 access which are readily achievable, to make all reasonable
18 accommodations in policy in order to enable Plaintiff and others
19 similarly situated to use the PUBLIC ACCOMMODATION and at
20 minimum, to use readily achievable alternative methods to enable
21 Plaintiff to use the goods and services which the PUBLIC
22 ACCOMMODATION makes available to the non-disabled public. On
23 each of the above listed occasions, when the Plaintiff visited
24 the PUBLIC ACCOMMODATION, he was not allowed full and equal
25 enjoyment and access to the PUBLIC ACCOMMODATION because of the
26 mobility related architectural barriers. As a result, Plaintiff
27
28

COMPLAINT - 7
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 8 of 22

1 was embarrassed; made to feel as if he was a second class


2 citizen, experienced discomfort, difficulty and incurred minimal
3 physical personal injury. Plaintiff also seeks the recovery of
4 damages involved in the discriminatory experiences of the past
5 year and seeks recovery of reasonable attorney’s fees (if
6 incurred) and litigation expenses and costs according to
7 statute. Plaintiff does not seek daily damages and Plaintiff
8 does not seek actual damages in excess of the statutory minimum.
9 The Plaintiff seeks monetary damages based upon the statutory
10 minimums under California Civil Code Sections 51(f) and 52.
11 Attached, hereto, as Exhibit E, is a photograph of the non-
12 compliant van accessible disabled parking. Attached, hereto, as
13 Exhibit F, is a photograph of the non-compliant restroom.
14 Attached, hereto, as Exhibit G, is a photograph of the non-
15 compliant outside dining.
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27
28

COMPLAINT - 8
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 9 of 22

1 JURISDICTION
2 5. Jurisdiction: The Court has jurisdiction of the action
3 pursuant to 28 USC § 1331 for violations of the Americans with
4 Disabilities Act of 1990, 42 USC 12101 et seq. Pursuant to
5 supplemental jurisdiction, attendant and related causes of
6 action arising from the same facts are also brought under
7 California Civil Code §§ 51(f), 52. The Plaintiff does not seek
8 relief under the California Disabled Persons Act, Health and
9 Safety Code, or California Civil Code Section 55.
10 VENUE
11 6. Venue: Venue is proper in this Court pursuant to 28 USC
12 1391(b) and is founded on the fact that the location where
13 Plaintiff experienced his discrimination is located in this
14 district and that Plaintiff’s causes of action arose in this
15 district.
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27
28

COMPLAINT - 9
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 10 of 22

1 INTRADISTRICT
2 7. Intradistrict: This case should be assigned to the
3 Sacramento intradistrict because the incident occurred in, and
4 Plaintiff’s rights arose in, the Sacramento intradistrict.
5 PLAINTIFF WILL STIPULATE TO A VOLUNTARY DISPUTE RESOLUTION
6 PROGRAM (VDRP). PLAINTIFF CONSENTS AN EARLY SETTLEMENT
7 CONFERENCE.
8 8. The PUBLIC ACCOMMODATION is a “public accommodation or
9 facility” subject to the requirements of California Civil Code
10 §§51(f), 52; and the Americans with Disability Act of 1990. 42
11 U.S.C. § 12181(7); 28 C.F.R. § 36.104.
12 9. Plaintiff is a person with quadriplegia and is confined to
13 a wheelchair and yet Plaintiff and his “Service Animal” (Lennox)
14 remain highly active and are involved in their community.
15 Plaintiff drives a full size Ford van which is equipped with
16 hand-controls and a wheelchair lift. If (and when) Plaintiff
17 was to park in a non-van accessible disabled parking space, he
18 could very easily be blocked from returning to his vehicle,
19 which would restrict Plaintiff from leaving. If (and when)
20 Plaintiff was to access a non-accessible restroom the problem
21 could be compounded and could turn dangerous because of the non-
22 accessibility.
23 10. Defendants are and were the owners, operators, managers,
24 leasers’ and lessors of the PUBLIC ACCOMMODATION and of the
25 subject real property and at all times relevant herein.
26 Plaintiff is informed and believes that each of the Defendants
27
28

COMPLAINT - 10
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 11 of 22

1 is and was the agent, employee or representative of each of the


2 other Defendants, and performed all acts and omissions stated
3 herein within the scope of such agency or employment or
4 representative capacity and is responsible in some manner for
5 the acts and omissions of the other Defendants in proximately
6 causing the damages complained of herein.
7 11. Plaintiff is unable to use public facilities on a “full and
8 equal” basis unless each such facility is in compliance with the
9 provisions of the Americans with Disabilities Act of 1990 and
10 the regulations thereof as they relate to his mobility
11 disability. Under Civil Code §51(f), Defendants were required
12 to comply with the requirements of the Americans with
13 Disabilities Act of 1990 and the federal regulations adopted
14 pursuant thereto. The acts and omissions of which Plaintiff
15 complains took place at the PUBLIC ACCOMMODATION.
16 //
17 //
18 //
19 //
20 //
21 //
22 //
23 //
24 //
25 //
26 //
27
28

COMPLAINT - 11
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 12 of 22

1 FIRST CLAIM FOR RELIEF:


2 VIOLATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990
3 42 USC §§ 12101 FF
4
12. Plaintiff re-alleges the allegations of paragraphs 1-11
5
6 hereof.

7 13. Pursuant to law, in 1990 the United States Congress made


8 findings per 42 USC §12101 regarding physically disabled
9
persons, finding that laws were needed to more fully protect
10
"some 43 million Americans [with] one or more physical or mental
11
12 disabilities"; that "historically society has tended to isolate

13 and segregate individuals with disabilities"; and that "such


14 forms of discrimination against individuals with disabilities
15
continue to be a serious and pervasive social problem"; that
16
"the Nation's proper goals regarding individuals with
17
18 disabilities are to assure equality of opportunity, full

19 participation, independent living and economic self sufficiency


20 for such individuals"; and that "the continuing existence of
21
unfair and unnecessary discrimination and prejudice denies
22
people with disabilities the opportunity to compete on an equal
23
24 basis and to pursue those opportunities for which our free

25 society is justifiably famous ..."


26
27
28

COMPLAINT - 12
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 13 of 22

14. Congress stated as its purpose in passing the Americans


1
2 with Disabilities Act (42 USC §12101(b)): It is the purpose of

3 this act (1) to provide a clear and comprehensive national


4 mandate for the elimination of discrimination against
5
individuals with disabilities;
6
7 (2) to provide clear, strong, consistent, enforceable
8 standards addressing discrimination against individuals
9 with disabilities;
10
11 (3) to ensure that the Federal government plays a central
12 role in enforcing the standards established in this act on
13 behalf of individuals with disabilities; and
14
15 (4) to invoke the sweep of Congressional authority,
16 including the power to enforce the 14th Amendment and to
17 regulate commerce, in order to address the major areas of
18 discrimination faced day to day by people with disabilities
19 (emphasis added).
20
15. As part of the Americans with Disabilities Act, Public Law
21
22 101-336; (hereinafter the "ADA"), Congress passed "Title III -

23 Public Accommodations and Services Operated by Private Entities"


24 (42 USC 12181 ff). Among "private entities" which are
25
considered "public accommodations" for purposes of this Title is
26
a PUBLIC ACCOMMODATION (Regulation 36.104).
27
28

COMPLAINT - 13
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 14 of 22

16. Pursuant to §302, 42 USC §12182, "No individual shall be


1
2 discriminated against on the basis of disability in the full and

3 equal enjoyment of the goods, services, facilities, privileges,


4 advantages or accommodations of any place of public
5
accommodation by any person who owns, leases or leases to, or
6
operates a place of public accommodation."
7
8 17. Among the specific prohibitions against discrimination were

9 included: §12182(b)(2)(A)(ii): "A failure to make reasonable


10 modifications in policies, practices or procedures when such
11
modifications are necessary to afford such goods, services,
12
facilities, privileges, advantages or accommodations to
13
14 individuals with disabilities ..."; §12182(b)(A)(iii): "a

15 failure to take such steps as may be necessary to ensure that no


16 individual with a disability is excluded, denied service,
17
segregated, or otherwise treated differently than other
18
individuals because of the absence of auxiliary aids and
19
20 services ..."; §12182(b)(A)(iv): "A failure to remove

21 architectural barriers and communication barriers that are


22 structural in nature, in existing facilities ... where such
23
removal is readily achievable"; §12182(b)(A)(v): "Where an
24
entity can demonstrate that the removal of a barrier under
25
26 clause (iv) is not readily achievable, a failure to make such

27 goods, services, facilities, privileges, advantages, or

28

COMPLAINT - 14
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 15 of 22

accommodations available through alternative methods if such


1
2 methods are readily achievable". The acts and omissions of

3 Defendants set forth herein were in violation of Plaintiff's


4 rights under the ADA, Public Law 101-336, and the regulations
5
promulgated thereunder, 28 CFR Part 36ff.
6
18. Title III of the ADA establishes that "[n]o individual shall
7
8 be discriminated against on the basis of disability in the full

9 and equal enjoyment of the goods, services, facilities,


10 privileges, advantages, or accommodations of any place of public
11
accommodation...." 42 U.S.C. § 12182(a). "Discrimination" is
12
defined as, among other things, "a failure to make reasonable
13
14 modifications in policies, practices, or procedures, when such

15 modifications are necessary to afford such goods, services,


16 facilities, privileges, advantages, or accommodations to
17
individuals with disabilities...." 42 U.S.C. §
18
12182(b)(2)(A)(ii). Defendants had an obligation to have some
19
20 sort of plan which would have allowed Plaintiff to enjoy the

21 PUBLIC ACCOMMODATION services without having to suffer the


22 indignities as aforesaid.
23
19. Pursuant to the Americans with Disabilities Act, 42 USC
24
12188ff, §308, Plaintiff is entitled to the remedies and
25
26 procedures set forth in §204(a) of the Civil Rights Act of 1964,

27 42 USC 2000(a)-3(a), as Plaintiff is being subjected to

28

COMPLAINT - 15
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 16 of 22

discrimination on the basis of disability in violation of this


1
2 Title or has reasonable grounds for believing that he is about

3 to be subjected to discrimination in violation of §12182. On


4 information and belief, Defendants have continued to violate the
5
law and deny the rights of Plaintiff and of other disabled
6
persons to access this public accommodation since on or before
7
8 May 17, 2011. Pursuant to §12188(a)(2), “In cases of violations

9 of §12182(b)(2)(A)(iv) ... injunctive relief shall include an


10 order to alter facilities to make such facilities
11
readily accessible to and usable by individuals with
12
disabilities to the extent required by this title."
13
14 20. Plaintiff seeks relief pursuant to remedies set forth in

15 §204(a) of the Civil Rights Act of 1964, (42 USC 2000(a)-3(a),


16 and pursuant to Federal Regulations adopted to implement the
17
Americans with Disabilities Act of 1990. Plaintiff is a person
18
for purposes of Section 12188(a) of the ADA who is being
19
20 subjected to discrimination on the basis of disability in

21 violation of Title III and who has reasonable grounds for


22 believing he will be subjected to such discrimination each time
23
that he may attempt to patronize the PUBLIC ACCOMMODATION.
24
21. Injunctive relief: Plaintiff seeks injunctive relief to
25
26 prohibit the acts and omissions by Defendants at the PUBLIC

27 ACCOMMODATION as stated above which appear to be continuing, and

28

COMPLAINT - 16
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 17 of 22

which have the effect of wrongfully excluding Plaintiff from


1
2 using the PUBLIC ACCOMMODATION. Plaintiff frequently travels

3 within a short distance of the PUBLIC ACCOMMODATION, and thus


4 will either continue to use the PUBLIC ACCOMMODATION and
5
encounter the mobility related architectural barriers, which
6
limit his full and equal enjoyment of the PUBLIC ACCOMMODATION
7
8 or will refrain from using the PUBLIC ACCOMMODATION until the

9 accommodations are provided. Such acts and omissions are the


10 cause of humiliation and mental and emotional suffering of
11
Plaintiff in that these actions continue to treat Plaintiff as
12
an inferior and second class citizen and serve to discriminate
13
14 against Plaintiff on the sole basis that Plaintiff is a person

15 with a mobility related disability and requires the use of a


16 wheelchair and a van with a wheelchair lift for movement in
17
public places. Plaintiff is unable so long as such acts and
18
omissions of Defendants continue, to achieve equal access to and
19
20 use of the public facility. The acts of Defendants have

21 proximately caused and will continue to cause irreparable injury


22 to Plaintiff if not enjoined by this Court. Plaintiff seeks an
23
injunction as to every violation of Federal disability access
24
law which is related to his mobility disability.
25
26 //

27
28

COMPLAINT - 17
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 18 of 22

1 SECOND CLAIM FOR RELIEF: DAMAGES


2 FOR DENIAL OF FULL AND EQUAL ACCESS TO A PUBLIC
3 ACCOMMODATION: PUBLIC FACILITIES AT A PUBLIC
4 ACCOMMODATION
5 (Civil Code §§ 51(f), 52)
6
22. Plaintiff re-alleges the allegations of paragraphs 1-21
7
8 hereof.

9 23. Civil Code §§ 51(f) and 52, et seq., were enacted to


10 prohibit discrimination against people with disabilities and to
11
encourage the full and free use by people with disabilities of
12
public facilities and other public places. CC §51(f) states
13
14 that a violation of the Americans with Disabilities Act of 1990

15 is a violation of this section. A violation of the ADA is a per


16 se violation of CC § 51 ( KATHLEEN LENTINI v. CALIFORNIA CENTER
17
FOR THE ARTS, ESCONDIDO; 370 F.3d 837 (9th Cir. 2004)); CC § 52
18
states that minimum damages for discrimination are $4,000 for
19
20 each and every offense (KATHLEEN LENTINI v. CALIFORNIA CENTER

21 FOR THE ARTS, ESCONDIDO; 370 F.3d 837 (9th Cir. 2004)). The
22 Plaintiff IS NOT ASKING FOR DAILY DAMAGES OR ACTUAL DAMAGES.
23
24. On each of the above listed occasions, when the Plaintiff
24
visited the PUBLIC ACCOMMODATION, he was not allowed full and
25
26 equal enjoyment and access to the PUBLIC ACCOMMODATION because

27
28

COMPLAINT - 18
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 19 of 22

of the mobility related architectural barriers. As a result,


1
2 Plaintiff was embarrassed; made to feel as if he was a second

3 class citizen, experienced discomfort, difficulty and incurred


4 minimal physical personal injury. Plaintiff IS NOT ASKING FOR
5
DAILY DAMAGES OR ACTUAL DAMAGES IN EXCESS OF THE STATUTORY
6
MINIMUM.
7
8 25. Defendants’ failure to institute policies in furtherance of

9 accessibility or at least have an alternate policy to enable


10 Plaintiff to use the goods and services offered to the non-
11
disabled public without having to suffer the indignities, as
12
aforesaid, was a violation of the Americans with Disabilities
13
14 Act and federal regulations adopted pursuant thereto, and as a

15 consequence, was a violation of Civil Code §51(f).


16 26. Damages: As a result of the denial of full and equal
17
enjoyment and access to the PUBLIC ACCOMMODATION and due to the
18
acts and omissions of Defendants and each of them in owning,
19
20 operating and/or leasing the subject real property, Plaintiff

21 suffered a violation of Civil Rights under Civil Code §§ 51(f),


22 52 and as a result, Plaintiff was embarrassed; made to feel as
23
if he was a second class citizen, experienced discomfort,
24
difficulty and incurred minimal physical personal injury.
25
26 Defendants’ actions and omissions to act constituted

27 discrimination against Plaintiff on the sole basis that

28

COMPLAINT - 19
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 20 of 22

Plaintiff was physically disabled and unable to use the


1
2 facilities on a full and equal basis as other persons.

3 Plaintiff seeks the minimum damages of $4,000 pursuant to CC §52


4 for each and every offense and is limited to his actual and
5
deterred visits. Plaintiff IS NOT ASKING FOR DAILY DAMAGES OR
6
ACTUAL DAMAGES IN EXCESS OF THE STATUTORY MINIMUM.
7
8 27. Fees and costs: As a result of Defendants’ acts, omissions

9 and conduct, Plaintiff has incurred costs and might be required


10 incur attorney’s fees, litigation expenses, and costs as
11
provided by statute, in order to enforce Plaintiff’s rights and
12
to enforce provisions of the law protecting access for disabled
13
14 persons and prohibiting discrimination against disabled persons.

15 Plaintiff therefore seeks recovery of all reasonable attorney’s


16 fees (if incurred) and costs, pursuant to the provisions of
17
Civil Code §52.
18
28. Wherefore, Plaintiff asks this Court to preliminarily and
19
20 permanently enjoin any continuing refusal by Defendants to

21 comply with the requirements of the Americans with Disabilities


22 Act of 1990 and regulations adopted pursuant thereto with
23
respect to mobility related access of disabled persons to the
24
PUBLIC ACCOMMODATION; for minimum damages pursuant to CC §52 and
25
26 for attorneys’ fees (if incurred) and costs pursuant to CC §52.

27
28

COMPLAINT - 20
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 21 of 22

1
Wherefore Plaintiff prays for relief as hereinafter stated:
2
3 PRAYER
4
1. Issue a preliminary and permanent injunction directing
5
Defendants to modify its facilities and policies as required by
6
7 law to comply with the ADA and ADA regulations as they relate to

8 mobility related architectural barriers, including the ADAAG


9 where required, institute policies in furtherance of
10
accessibility or at least have an alternate policy to enable
11
Plaintiff to use the goods and services offered to the non-
12
13 disabled public so that it provides adequate access to all

14 citizens, including persons with disabilities; and issue a


15 preliminary and permanent injunction directing Defendants to
16
maintain its facilities usable by plaintiff and similarly
17
situated persons with disabilities in compliance with federal
18
19 regulations, and which provide full and equal access, as

20 required by law;
21 2. Retain jurisdiction over the Defendants until such time
22
as the Court is satisfied that Defendants' unlawful policies,
23
practices, acts and omissions, and maintenance of inaccessible
24
25 public facilities as complained of herein no longer occur, and

26 will not recur;


27
28

COMPLAINT - 21
Case 2:11-cv-01337-DAD Document 1 Filed 05/17/11 Page 22 of 22

3. Award to Plaintiff statutory damages under California


1
2 Civil Code §52 for each actual visit to the PUBLIC ACCOMMODATION

3 and for each deterred visit, all according to proof. Plaintiff


4 IS NOT ASKING FOR DAILY DAMAGES, ACTUAL DAMAGES IN EXCESS OF THE
5
STATUTORY MINIMUM OR PUNITIVE DAMAGES.
6
4. Award to Plaintiff all reasonable attorneys' fees (if
7
8 incurred), all litigation expenses, and all costs of this

9 proceeding as provided by law;


10 5. Declaratory relief that Defendants violated the ADA
11
for the purpose of Unruh Act.
12
13
14 Dated: May 17, 2011

15
__/S/ SCOTT N.JOHNSON_
16 By: SCOTT N. JOHNSON
Attorney for Plaintiff
17
18
19
20
21
22
23
24
25
26
27
28

COMPLAINT - 22
Case 2:11-cv-01337-DAD Document 1-1 Filed 05/17/11 Page 1 of 1
Case 2:11-cv-01337-DAD Document 1-2 Filed 05/17/11 Page 1 of 2

Exhibit A- Disabled Placard


DEPARTMENT OF MOTOR VEHICLES PLACARD NUMBER: 094898N
Case 2:11-cv-01337-DAD Document 1-2 Filed 05/17/11 Page 2 of 2
EXPIRES: 06/30/2011
DISABLED PERSON
PLACARD IDENTIFICATION DATE ISSUED: 04/22/2009

I CARD/RECEIPT

This identification card or facsimile copy is to be carried by the placard owner. Present it to any
peace officer upon demand. Immediately notify DMV by mail of any change of address. When
parking, hang the placard from the rear view mirror, remove it from the mirror when driving.
When your placard is properly displayed,
you may park in or on:
TYPE: N1 TV: 92 CO: 34 ' • Djsabled person parking spaces (blue zones)
DOB: 03/29/1962 • Metered zones without paying.
I
• Green zones without restrictions to time limits.
ISSUED TO
• Streets where preferential parking privileges are given to
residents and merchants.
JOHNSON SCOTT
You may not park in or on:
• Red, Yellow, White or Tow Away Zones.
CARMICHAEL CA 95608 • Cro~shatch marked spaces next to disabled person
parking spaces.
It is considered misuse to:
• Display a placard unless the disabled owner is being
transported.
• Display a placard which has been cancelled or revoked.
Purchase of fuel • Loan your placard to anyone,"including family members.
(Business & Professions Code 13660):
State law requires service stations to refuel a Misuse is a misdemeanor (section 4461VC) and can
disabled person's vehicle at self-service rates, result in cancellation or revocation of the placard, loss
except self-service facilities with only one cashier. of parking privileges, and/or fines.
039
DPPOOO Rev(3/01
Case 2:11-cv-01337-DAD Document 1-3 Filed 05/17/11 Page 1 of 7

Exhibit B - Ownership & Operations Documentation


Case 2:11-cv-01337-DAD Document 1-3 Filed 05/17/11 Page 2 of 7
Firm Teriyaki House

Account # 014793

Firm Teriyaki House Bus. Sf.'us Active

Firm (Add")

St,•• t , 20 Parker St Ace' No 014793

CIty Vacaville, CA 95688 014793

l.oc~flon Inside Loc. Type Commercial Phone (707) 455-0680

Mall (Add'l) Alt Phone

",_11 Add' 120 Parker St 02/01/2002

"'.11 CIty Vacaville, CA 95688

81.1". Rat. RetailiWhsllMfg Ownership Sole Proprietorship

BIDA,•• B BID R.t. B Retail


3,d Area 3,d R.t. Excise Tax

I.•• r Rec Update 05/02/2010 clf

Summary Screen

Owne,1 Park Sung Kyun n'/e Owner Confidential

Ucen •• Issued 05/02/2010 Application Renewal

Ucense Expires 04/30/2011 Rflnew.' Annual (end of Apr)

HAle Cod. 722 - Food Services and Drinking Places

SIC Code 5812036 - Restaurants

Bus Type A49 - RESTAURANTS

APN FEIN Confidential Milmnl1 u •• Yes

BEAN SRJHF 100052799 SEIN Confjdential Spec,., Condlr/ons No


California ABC - License Query System - Data Summary Page 1 of2

Case 2:11-cv-01337-DAD Document 1-3 Filed 05/17/11 Page 3 of 7

California Department of Alcoholic

Beverage Control

License Query System Summary


as of 4/27/2011

ILicl'nse Information I
tLicense Number: 394199 I
[Primary Owner: PARK, SUNG JAE I
[ABC Office of Application: 22 - OAKLAND I
IBusiness Nalnl'
[Doing Business As: TERIYAKI HOUSE
IUusiness Address
!Address: 120 PARKER ST Census Tract: 2532.03
[City: VACAVILLE County: SOLANO
[State: CA Zip Code: 95688
ILicensee Information I
llJicensee: PARK, SUNG JAE I
lLicensee: PARK, SUNG KYUN
ILicense Types
I 1) License Type: 41 - ON-SALE BEER AND WINE - EATING PLACE
[ License Type Status: ACTIVE
I Status Date: 18-FEB-2003 Term: 12 Month(s)
I Original Issue Date: 18-FEB-2003 Expiration Date: 31-JAN-2012
[ Master: Y Duplicate: 0 Fee Code: P40
[ Condition: OPERATING RESTRICTIONS
I License Type was Transferred On: 18-FEB-2003 FROM: 41-332184 I
[ 2) License Type: 30 - TEMPORARY PERMIT I
[ License Type Status: EXPIRED I
I Status Date: 17-0CT-2002 Term: 4 Month(s) I
I Original Issue Date: 17-0CT-2002 Expiration Date: 13-FEB-2003 I
I Master: Duplicate: Fee Code: I
I Condition: OPERATING RESTRICTIONS I
I License Type was Transferred On: 18-FEB-2003 FROM: 41-332184 I
ICurrent Disciplinary Action I
1. . . No Active Disciplinary Action found . .. I
jDisciplinary History I
I. .. No Disciplinary History found . .. I
I! II old I nfurm ation I
l .. No Active Holds found . .. I

http://www.abc.ca.gov/datportJLQSData.asp?ID=19390613 4/28/2011
SCIPSWEB Page 1 of 1

Case 2:11-cv-01337-DAD Document 1-3 Filed 05/17/11 Page 4 of 7


Situs Address IEtal Name/Assessee Mailing Address
0130 ·093·160 Gabbay Robert J 100.00 % SA

120 Parker Street Gabbav Robert J


Vacaville ~ 1090 Shiloh Rd
Windsor CA 95492 ~
TRA: 6056

Property Information - Roll Being Prepared I I SSN I


Land Value $108,243 Acres 0.26 TRANo 313 Valued By AR56 - 03/30/05
Improvements $227,311 Lot SqFt 11,325 TRA 6056 Exempt By
[Trees and Vines $0 Units 0 TRA Last 6056 Census 2532.030
Fixtures $0 GovtOwn NO TRA Year 8485 Record Map
Penalties $0 CIP Code NO Tax Roll CIP NO Bill Control NR
Personalty $0 Spec Stat NO Sublink 0 Late File 00
frotal Value $335554
Exemption - NA $0 Description 3500 - Commercial Sales & Services
Net Total $335,554 Subdivison N/A
Created By Combination Requested By Owner On 02/28/1978

Unit: n/a Lot: nla

Block: nla Sublot: nla

Property Characterisitcs

NO Property Characteristics Information Available

SecRoIII

lAudltor Information [ 200910 - 200102 ]


I [:8
2009/10 2008/09 2007/08 2006/07 2005/06 2004/05
Status AC AC AC AC AC AC
!Tax Rate Area 6056 6056 6056 6056 6056 6056
TRA Last Year 6056 6056 6056 6056 6056 6056
Use Code 3500 3500 3500 3500 3500 3500
Govt Owned NO NO NO NO NO NO
Exem Status NA NA NA NA NA NA
Full Values
Land $108,243 $106,121 $104,040 $102,000 $100,000 $114,554
Improvements $227,311 $222,854 $218,484 $214,200 $210,000 $85,916
Mineral Rights $0 $0 $0 $0 $0 $0
!TreesNines $0 $0 $0 $0 $0 $0
Fixtures $0 $0 $0 $0 $0 $0
Personalty $0 $0 $0 $0 $0 $0
Penalties $0 $0 $0 $0 $0 $0
irotal Value $335,554 $328,975 $322524 $316,200 $310,000 $200470
Exemptions $0 $0 $0 $0 $0 $0
Net Total $335554 $328,975 $322524 $316,200 $310,000 $200,470
End of Listing I

•I Help I• Jcontactl • I Print I•IE-Mail I•

http://scipsweb/web_dir/asr/SecInquiry/ScipsViewerDetai1.asp?PARCEL_NUMBER=013... 411312010
Pag 1 of 1

Case 2:11-cv-01337-DAD Document 1-3 Filed 05/17/11 Page 5 of 7


On-line Property Information
umb r
0130-093-160

California Government code section 6254.21 prohibits the displaying of names and addresses on a
Government website

Pro ert Information


Acres 0.26 Exemption $0
Lot Size 11,325 Census 2532030
Tac 6056 Tac No 313
Tac Last Year 6056 Tac Year 8485
Recorded Map n/a Created on n/a
Created By n/a Subdivison -
Use Code - 3500 - commercial sales & Unit - n/a Lot - n/a Block - n/a Sublot - n/a
services

operty Charae ensite

No Property Characteristics Information Available

lues By Year
2009/10 2008/09 2007/08 2006/07 2005/06
Status AC AC AC AC AC
Tax Area Code 6056 6056 6056 6056 6056
Tac Last Year 6056 6056 6056 6056 6056
Use Code 3500 3500 3500 3500 3500
Exem Status NA NA NA NA NA
Full Values
Land $108,243 $106,121 $104,040 $102,000 $100,000
Improvements $227,311 $222,854 $218,484 $214,200 $210,000
TreesNines $0 $0 $0 $0 $0
Mineral Rights $0 $0 $0 $0 $0
FM&E $0 $0 $0 $0 $0
Personal Prop $0 $0 $0 $0 $0
Penalties $0 $0 $0 $0 $0
Exemptions $0 $0 $0 $0 $0
Total $335,554 $328,975 $322,524 $316,200 $310,000

http://webapp.solanocounty.com/SCIPSApps/asrlPropCharPrint.asp?Parcel Id=O 1300931... 11/13/2009


Case 2:11-cv-01337-DAD Document
? , \
1-3 Filed 05/17/11 Page 6 of 7
.(~------------------~
r'
RECORDING REQUESTED BY Recorded In Official Records, Solano County 9/14/2004
8:00 AM
PLACER TITLE COMPANY
Skip Thomson AR59
Assessor/Recorder 06
Escrow Number: 501-13878-MAP
06 Placer Title Co
AND WHEN RECORDED MAIL TO
Doc#: 200400129147 Titles: 1 Pages: 2

IIIIIIIIIIII~
Fees

I
ROBERTJ.GABBAY 10.00
745 Lincoln Rd Taxes 341 .00
Yuba CA 95991 Other 0.00
PAID $351.00

SPACE ABOVE THIS LINE FOR RECORDER'S USE


GRANT DEED
The undersigned grantor(s) declare(s):/

Documentary transfer tax is $341.00 City Transfer Tax: $0.00

(~J computed on full value of property conveyed, or

(_) computed on full value less value of liens and encumbrances remaining at time of sale.

FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, HAK SUNG KANG AND YEON OK

KANG, HUSBAND AND WIFE, AS JOINT TENANTS

,.­
Hereby GRANT(S) to ROBERT J. GABBAY , AN UNMARRIED MAN

THE LAND DESCRIBED HEREIN IS SITUATED IN THE ST ATE OF CALIFORNIA, COUNTY OF SOLANO, CITY OF
VACAVILLE, AND IS DESCRIBED AS FOLLOWS:

PARCEL 'A', AS SHOWN ON THAT CERTAIN PARCEL MAP "RESUBDIVISION OF LOTS 6, 7 AND 8, BLOCK 23, MAP
OF THE TOWN OF VACAVILLE", FILED IN THE OFFICE OF THE RECORDER OF SOLANO COUNTY, CALIFORNIA
ON AUGUST 12,1976 IN BOOK 11 OF PARCEL MAPS, PAGE 27.

A.P.N.0130-093-160 /

Dated: September 09, 2004

MAIL TAX STATEMENTS TO PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY SHOWN, MAIL AS
DIRECTED ABOVE

SAME AS ABOVE

Name Street Address City & State


Page I of 2 - 9/1312004
O:ICorrOml.dDc (711001)
Case 2:11-cv-01337-DAD Document
.. , ., 1-3 Filed 05/17/11 Page 7 of 7 .
:~GNATURE PAZ:;;~
.

By
YEON
~JiL",~<
KANG C'

personally appeared

personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument an acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument

WITNESS my

Signature: .........'7'r:>L.l..-'.........I-'+----"--'=,L--',-=O"""'---::::::::-=---!---'<­
Commission

'#;:M!I

MAIL TAX STATEMENTS TO PARlY SHOWN ON FOLLOWING LINE, IF NO PARTY SHOWN, MAIL AS
DrRECTEn ABOVE

SAME AS ABOVE
Name Slreet Address City&State
O:ISIrPkg.doc (4/2002)
Case 2:11-cv-01337-DAD Document 1-4 Filed 05/17/11 Page 1 of 2

Exhibit C - Notice Letter


Case 2:11-cv-01337-DAD Document 1-4 Filed 05/17/11 Page 2 of 2

Novennber13,2009

LandlordlBusinesS Operator
Teriyaki House
120 Parker St
Vacaville, CA 95688

Dear LandlordIBusiness owner.

I would like to inform you that your property located at 120 Parker Street in Vacaville, CA is not in
compliance with the Americans with Disabilities Act (ADA). Please bring the property into Federal and State
disability access reqUirements within 90 days*. In the alternative, provide me with a disabled access compliance
report within 60 ~ays and a post construction review within 6 months. I am enclosing a publication which is
produced by the United States Department of Justice and covers some of the basic ADA gUidelines. Their web
site is www.ADAgov.

The State Of California has always been a leader in disability access and as such there are also State of
Califomia disabilitY access regulations which must be in compliance. Obtaining the correct mix of Federal and
State disability acfess laws is a very complicated procedure and is best performed by an expert consultant
trained in disabil~ access laws and regulations. Please do not rely on City or County building inspectors, State
Lottery inspectors, or non-existent grandfather clauses.

In January IOf 2009, Governor Schwarzenegger signed into law and made for the first time a procedure in
which disabled ac¢ess consultants can be certified by the State of Califomia. If a business operator or property
owner of commercial real estate which is considered to be a public accommodation and subject to the
Americans with Disabilities Act, they can simply retain the services of a certified inspector. If they do so and
bring the property ~nto compliance with the certified inspectors report and do this prior to litigation, they receive
certain state court procedure benefits. To learn more, please refer to the official California website
https:/ANww.apps.dgs.ca.gov/casp/casp main.aspx. The list of Certified Access Specialists (CASp) can be
found at https:/ANWw.apps.dgs.ca.gov/casp/casp certified list.aspx and is subject to change. Certified Access
Specialists (CASp) typically are retained and charge for their services on an individualized basis.

If you would like assistance in obtaining the services of an expert disability access consultant, please let
me know as soon as possible.

sent by a governmental agency.

Enclosure: ADA Guide for Small Businesses

Disabled Access Prevents Injury, Inc.


5150 Fair Oaks Boulevard, Suite 101
Carmichael, CA 95608-5758
Q)J\f\!\ Q~?lcl tq \~) 001
dS
Case 2:11-cv-01337-DAD Document 1-5 Filed 05/17/11 Page 1 of 2

Exhibit D - Certificate of Mailing


Case 2:11-cv-01337-DAD Document 1-5 Filed 05/17/11 Page 2 of 2
Affix fee here in stamps
U.S POSTAL SERVICE CERTIFICATE OF MAILING
or meter poslage and
MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL. DOES NOT post mark. Inquire of
PROVIDE FOR INSURANCE-POSTMASTER Postmaster for currenl
fee.
Received From:

Scott N. Johnson
5150 Fair Oaks Blvd Suite 101
Carmichael, Ca 95608

One piece of ordinary mail addressed 10:

Landlord/Business Operator

Teriyaki House I~
I""
\ ...J
120 Parker St
Vacaville, CA 95688

PS Form 3817, January 2001


Case 2:11-cv-01337-DAD Document 1-6 Filed 05/17/11 Page 1 of 1

Exhibit E - Non Compliant Van Accessible Disabled Parking


Case 2:11-cv-01337-DAD Document 1-7 Filed 05/17/11 Page 1 of 1

Exhibit F - Non Compliant Restroom


cv-01337-DAD Document 1-8 Filed 05/17/11

Exhibit G - Non Compliant Outside Dining