Michael Rocca v. Den 109 Lp

FILED
NOT FOR PUBLICATION
MAR 23 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ROCCA, Nos. 15-56407
15-56643
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-00538-ODW-MRW

DEN 109 LP, DBA Denny’s #7425;
FRITZ MOLLER; GEISELA MOLLER, MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding

Argued and Submitted March 9, 2017
Pasadena, California

Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.

Michael Rocca appeals the district court’s judgment in favor of the

defendants-appellees (“Denny’s”) on five alleged violations of the Americans with

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Disabilities Act (“ADA”) and related state law.1 Rocca also appeals the district

court’s order denying attorney’s fees under the California Disabled Persons Act.

Cal. Civ. Code § 55. We have jurisdiction under 28 U.S.C. § 1291 and affirm the

judgment on the merits, but reverse and remand the order denying attorney’s fees.2

1. The district court did not err in concluding that Rocca lacked standing to

challenge the three parking related barriers. We review de novo issues of standing

and for clear error underlying factual findings. Preminger v. Peake, 552 F.3d 757,

762 n.3 (9th Cir. 2008). The district court held that Rocca lacked standing because

he was not injured by any of those violations on his one visit, as he parked with no

problem. The district court also found Rocca neither intended to return nor was

deterred from doing so. The district court so concluded on the basis of the scant

evidence of either mindset and its determination that Rocca was not credible.

We reject Rocca’s challenge to the district court’s findings. There was no

legal error, and the court’s underlying factual determinations were not clearly

erroneous. See D’lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035,

1039-40 (9th Cir. 2008).

1
At oral argument, Rocca withdrew his sixth claim regarding the paper
towel dispenser. See Oral Argument at 0:53, Rocca v. Den 109., No. 15-56407,
15-56643, available at https://www.youtube.com/watch?v=UF2_CDsOr_I.
2
With this disposition, we deny Denny’s motion to take judicial notice as
unnecessary.
2
In particular, the district court found Rocca not credible because his stated

purpose for visiting Denny’s (a convenient stop en route to the beach), contradicted

his true purpose (“to identify potential ADA violations”) in light of Rocca’s

inconvenient route. The district court did not find Rocca not credible because he

was an ADA “tester,” which might have been legal error, see Havens Realty Corp.

v. Coleman, 455 U.S. 363, 373-75 (1982); rather, the district court found Rocca not

credible because he misrepresented the purpose of his visit.3

Because an ADA plaintiff seeking injunctive relief must show either an

intent to return or deterrence from doing so to establish standing, and the district

court did not err in finding that Rocca failed to show either, the district court did

not err in concluding that Rocca lacked standing. See Chapman v. Pier 1 Imports

(U.S.) Inc., 631 F.3d 939, 949 (9th Cir. 2011) (en banc).

2. The district court also did not err in finding that Rocca failed to prove that

the alleged unclear maneuvering space and insufficiently wrapped pipes in the

3
The district court also did not err in finding it implausible that Rocca would
return to Denny’s because it was far from his home. Unlike plaintiffs in ADA
cases where we found an intent to return to a business located far from the
plaintiff’s home, Rocca did not testify that he had an intent to return, let alone
provide detailed reasons for the long distance visit such as a regular business trip,
an annual amusement park visit, or a family member nearby. See D’Lil, 538 F.3d
at 1038-39; Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1040-41 (9th Cir. 2008);
Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135, 1137-38 (9th Cir.
2002).
3
men’s restroom violated the ADA. We review for clear error the district court’s

findings of fact and de novo its conclusions of law following a court trial.

O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1061 (9th Cir. 2015).

Although an ADA plaintiff may testify about barriers and need not present

precise measurements or utilize experts to prevail, the district court is entitled to

discount that testimony if the court finds the witness not credible. Kohler v.

Presidio Int’l, Inc., 782 F.3d 1064, 1068-69 (9th Cir. 2015) (citing Strong v.

Valdez Fine Foods, 724 F.3d 1042, 1046-47 (9th Cir. 2013)). The only evidence

regarding the size of the maneuvering space was Rocca’s testimony. Having found

that Rocca’s testimony was not credible, the district court did not err in concluding

that Rocca failed to prove the ADA violation. We also cannot say that the district

court clearly erred in finding that the pipes beneath the sink were sufficiently

wrapped as the only non-testimonial evidence, the photographs, supported the

court’s finding.

3. The district court erred, however, in denying Rocca’s request for attorney’s

fees. The district court erred in expressing skepticism as to whether Rocca was the

prevailing party. As a result of the district court’s grant of summary adjudication

for Rocca on three claims and a post-trial judgment on one claim, Denny’s was

legally obligated to remedy the violations, and Rocca was therefore the prevailing

4
party. See Barrios v. California Interscholastic Fed’n, 277 F.3d 1128, 1137 (9th

Cir. 2002). The district court also erred in denying fees because Rocca had filed

similar lawsuits in the past and attorney tasks required to litigate this case should

have required less time. A plaintiff’s other lawsuits are not a part of the record,

and fees should not be denied outright for excessive or duplicative attorney tasks.

Jankey v. Poop Deck, 537 F.3d 1122, 1132-33 (9th Cir. 2008).

Although Denny’s could argue that the amount of any fee award should be

reduced as a result of Rocca’s limited success or excessive fees, that is not a basis

for the outright denial of fees. See Cal. Civ. Code § 55 (providing for “reasonable”

attorney’s fees).

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

THE PARTIES SHALL BEAR THEIR OWN COSTS ON APPEAL.