FILED
UNITED STATES COURT OF APPEALS
JUL 16 2020
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NEHEMIAH KONG, No. 19-55465
Plaintiff-Appellant, D.C. No.
2:18-cv-02933-JFW-FFM
v. Central District of California,
Los Angeles
SHAMSI SHIRAZI-FARD, in individual
and representative capacity as trustee of the ORDER
Shamsi-Fard Trust dated February 25, 1977;
MICHAEL CHRISTOFORAKIS,
Defendants-Appellees,
and
VESTAKIS, VESTAKIS AND
CHRISTOFORAKIS, a General Partnership;
DOES, 1-10,
Defendants.
Before: OWENS and BADE, Circuit Judges, and MOSKOWITZ,* District Judge.
The Court construes Appellees’ motion for reconsideration (Docket Entry
No. 38) as a petition for panel rehearing under Fed. R. App. P. 40. The petition is
GRANTED. The Court will issue an amended memorandum disposition. No
further action is required from the parties.
*
The Honorable Barry Ted Moskowitz, United States District Judge for the
Southern District of California, sitting by designation.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEHEMIAH KONG, No. 19-55465
Plaintiff-Appellant, D.C. No.
2:18-CV-02933-JFW-FFM
v.
SHAMSI SHIRAZI-FARD, in individual
and representative capacity as trustee of the AMENDED MEMORANDUM*
Shamsi-Fard Trust dated February 25, 1977;
MICHAEL CHRISTOFORAKIS,
Defendants-Appellees,
and
VESTAKIS, VESTAKIS AND
CHRISTOFORAKIS, a General Partnership;
DOES, 1-10,
Defendants.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted May 4, 2020**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: OWENS and BADE, Circuit Judges, and MOSKOWITZ,*** District
Judge.
Nehemiah Kong, an individual with a disability, sued Appellees Shamsi
Shirazi-Fard and Michael Christoforakis under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., alleging twenty-one architectural features at
the restaurant Mike’s Classic Burgers (“Mike’s”) that rendered Mike’s inaccessible
for a disabled person. Architectural standards for public accommodations like
Mike’s are set forth in the ADA Standards for Accessible Design, 28 C.F.R. pt. 36,
app. D; 36 C.F.R. pt. 1191, apps. B, D; 28 C.F.R. § 36.104. As an “existing
facilit[y],” Mike’s must comply with these standards to the extent that they are
“readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a).
Appellees remedied nearly every ADA-noncompliant feature identified in Kong’s
complaint. This appeal concerns the remaining one: Mike’s front entrance.
Mike’s has two public entrances: one in the front and one on the west side of
the building. Kong’s complaint identified with specificity how each entrance was
deficient under the ADA. Second Amended Complaint ¶¶ 21c, o–q. But after
Appellees brought the side entrance into compliance, they moved for summary
judgment, arguing that Kong had only sought a means of entering the restaurant,
***
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
2
not two accessible entrances. The district court agreed and reasoned that Kong’s
complaint did not give Appellees fair notice that he wanted both entrances ADA-
compliant. The court entered summary judgment for Appellees and against Kong.
It also declined supplemental jurisdiction over Kong’s companion state law claim
for violation of the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. Kong
appeals these rulings. We vacate and remand for proceedings consistent with this
disposition.
We review de novo a district court’s order on summary judgment and its
determination of whether a complaint provides fair notice. Pickern v. Pier 1
Imports (U.S.), Inc., 457 F.3d 963, 966, 968 (9th Cir. 2006) (citations omitted).
The decision to decline supplemental jurisdiction is reviewed for abuse of
discretion. Binder v. Gillespie, 184 F.3d 1059, 1066 (9th Cir. 1999).
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests,”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citation omitted). A heightened pleading standard may be imposed only by
legislative directive, not by judicial interpretation. Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 515 (2002). The Federal Rules of Civil Procedure do not impose a
heightened pleading standard for ADA cases and no Ninth Circuit opinion may be
3
read to do so.
Kong provided specific “disclosures of barriers in a properly pleaded
complaint” and thus gave Appellees fair notice under Rule 8. Oliver v. Ralphs
Grocery Co., 654 F.3d 903, 909 (9th Cir. 2011). Though “[s]pecific facts are not
necessary,” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 841 (9th
Cir. 2007) (per curiam) (citation omitted), Kong’s complaint details every
inadequacy in the two entrances with precise measurements. This meets the
requirement to identify “the allegedly non-compliant architectural features at the
facility.” Oliver, 654 F.3d at 908 (citing Pickern, 457 F.3d at 968). Kong did not
plead ADA violations hypothetically, Pickern, 457 F.3d at 968–69, nor did he raise
a wholly new legal theory at summary judgment, Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1294 (9th Cir. 2000). Instead, his claim was transparent and
remained consistent: the front entrance was ADA-noncompliant and needed to be
remedied. Kong did not lead the Appellees or the district court into believing that
he was only seeking one accessible entrance. For example, in paragraph 22 of the
Second Amended Complaint, Kong stated that he “seeks to have all ADA
violations related to his disability removed so that he enjoys full and equal access
at Mike’s Classic Burgers.” Appellees had fair notice of this claim. The district
court erred in concluding otherwise.
Appellees ask us to affirm summary judgment on the alternative ground that
4
one accessible public entrance at Mike’s is sufficient under the ADA Standards.
We cannot do so. It is true that not every feature of a facility must be accessible.
But the 2010 ADA Standards set forth the proper accessibility ratios for a number
of common features. For public entrances, that ratio is 60 percent. 36 C.F.R. pt.
1191, app. C, F206.4.1; 36 C.F.R. pt. 1191, app. B, § 206.4.1. While 60 percent of
two entrances is not a whole number, the Department of Justice has issued
guidance indicating that public accommodations with only two entrances must
make both of them accessible. U.S. DEP’T OF JUSTICE, GUIDANCE ON THE 2010
ADA STANDARDS FOR ACCESSIBLE DESIGN 82–83 (2010). Appellees are not
protected by the safe harbor provision, 28 C.F.R. § 36.406(a), because Mike’s
public entrances were not in compliance with the 1991 ADA Standards by the
applicable compliance date. Even though Mike’s was built before the passage of
the ADA and was not altered until this lawsuit, Mike’s must make both of its
entrances accessible if it would be “readily achievable” to do so. 42 U.S.C. §
12182(b)(2)(A)(iv).
Because Kong’s federal ADA claim remains, we also vacate the district
court’s order declining to exercise supplemental jurisdiction over the parallel
California Unruh Act claim.
VACATED AND REMANDED. COSTS AWARDED TO
APPELLANT.
5