NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALMA CLARISA HERNANDEZ, No. 13-17345
Plaintiff - Appellant, D.C. No. 4:11-cv-02247-YGR
v.
MEMORANDUM*
POLANCO ENTERPRISES, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted December 11, 2015
San Francisco, California
Before: CLIFTON and OWENS, Circuit Judges and SMITH,** Chief District
Judge.
Plaintiff Alma Clarisa Hernandez appeals from the district court’s summary
judgment in favor of Defendant Polanco Enterprises. The district court appears to
have found that Hernandez’s claim for damages under California’s Unruh Civil
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
Rights Act, codified at section 51 et seq. of the California Civil Code, was
necessarily mooted when her corresponding claim under Title III of the Americans
with Disabilities Act, codified at 42 U.S.C. § 12181 et seq., was mooted. We have
jurisdiction under 28 U.S.C. § 1291. We reverse and remand.
Hernandez, an individual with a disability who uses a wheelchair, visited a
gas station owned by Polanco. She was unable to enter the gas station’s
convenience store because the landing at the entrance was too narrow. Before the
district court ruled on the parties’ cross-motions for summary judgment, Polanco
removed many of the barriers Hernandez had identified, including expanding the
size of the landing. It appears that the district court then dismissed all of
Hernandez’s federal and state-law claims related to the remediated barriers.1
Regarding the size of the entrance landing, the district court erred when it
held that Hernandez’s claim for damages under the Unruh Act was necessarily
mooted when the related ADA claim was mooted. Under Title III of the ADA, a
plaintiff may only seek injunctive relief for the removal of an existing accessability
barrier. See 42 U.S.C. § 12188. In contrast, the Unruh Act permits damages based
on a plaintiff’s personal encounter with an accessibility barrier on a past occasion;
1
The district court held that Polanco had removed a number of barriers, but
the only barrier at issue on appeal is the size of the entrance landing.
2
as such, subsequent removal of the barrier is irrelevant. See Cal. Civ. Code §
55.56(a)-(c).
Hernandez seeks statutory damages under the Unruh Act based on an
underlying ADA violation. See Cal. Civ. Code § 51(f). Under California law, she
must prove—in addition to the ADA violation—that she “personally encountered
the violation [of a construction-related accessibility standard] on a particular
occasion” and that it caused her “difficulty, discomfort, or embarrassment,” thus
denying her full and equal access to a place of public accommodation. Cal. Civ.
Code § 55.56(a)-(c). We REVERSE and REMAND for the district court to
determine, in the first instance, whether Hernandez is entitled to statutory damages
under the Unruh Act with respect to the size of the entrance landing.
REVERSED AND REMANDED.
3