FILED
NOT FOR PUBLICATION
JAN 02 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBERT SALINAS, No. 16-55564
Plaintiff - Appellee, DC No. CV 14-1233 CJC
v.
MEMORANDUM*
CBC RESTAURANT CORPORATION,
INC.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted November 6, 2017**
Pasadena, California
Before: TASHIMA and BERZON, Circuit Judges, and PAYNE, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Robert E. Payne, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Defendant-Appellant CBC Restaurant Corporation, Inc., (“CBC”) appeals
from the district court’s denial of its Fed. R. Civ. P. 60(b) (“Rule 60(b)”) motion
for relief from the judgment. The underlying judgment was summary judgment in
favor of Plaintiff-Appellee Gilbert Salinas (“Salinas”), who contended that CBC’s
check-out counter violated Americans with Disabilities Act (“ADA”) Accessibility
Guidelines (“ADAAG”). We have jurisdiction under 28 U.S.C. § 1291. We
review for abuse of discretion, Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th
Cir. 2004), and we affirm.
1. We reject CBC’s argument that the district court made either mistakes
of fact or of law, warranting relief from the judgment under Rule 60(b)(1). The
relevant dimensions and construction of the check-out counter in CBC’s restaurant
were clearly presented in dozens of photographs in the record. The facts are clear,
as was the district court’s application of the applicable ADAAG provision to the
relevant facts. Further, CBC has not cited any authority contrary to the district
court’s interpretation of the ADAAG guideline. The district court did not abuse its
discretion in determining that no mistake of fact or law existed that entitled CBC to
relief from the judgment under Rule 60(b)(1).
2. We also reject CBC’s contention under Rule 60(b)(3) that Salinas
misrepresented material facts and misrepresented the requirements of ADAAG
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§ 7.2(1), preventing CBC from “fully and fairly presenting [its] case.” Maudlin v.
M/V Peacock (In re M/V Peacock), 809 F.2d 1403, 1405 (9th Cir. 1987).
CBC had full access to the counter in its own restaurant, and had a fair
opportunity to present its case before the district court. Although the district court
found Salinas’ arguments more persuasive, it was not due to any misrepresentation
of facts or law by Salinas. The district court did not abuse its discretion in denying
CBC’s motion for relief from the judgment under Rule 60(b)(3).
3. Finally, we reject CBC’s contention that it is entitled to judgment
under the catchall provision of Rule 60(b)(6). CBC argues that judgment in favor
of Salinas would result in injustice because other businesses that have similar
checkout counter configurations could be subject to ADA claims. But the relevant
inquiry is whether the district court’s interpretation of ADAAG § 7.2(1) was
erroneous. CBC has failed to establish that “manifest injustice” would result to it
from the judgment. Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103
(9th Cir. 2006) (internal quotation marks omitted).
CBC also fails to show any “extraordinary circumstances” that prevented it
“from taking timely action to prevent or correct” a judgment that it claims was
erroneous. Id. CBC had a full and fair opportunity to oppose Salinas’ motion for
summary judgement. CBC also had the opportunity to file a direct appeal
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challenging the underlying judgment, which it did not do. CBC’s failure to do so
does not amount to an extraordinary circumstance justifying relief that is intended
to be used only sparingly. The district court did not abuse its discretion in denying
CBC relief from the judgment under Rule 60(b)(6).
• ! •
None of CBC’s arguments meets the high standard required for relief from
judgment under Rule 60(b). The district court did not abuse its discretion in
denying relief.
AFFIRMED.
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