Moore v. Johnny Quik Food Stores, Inc. et al, No. 1:2013cv01301 - Document 11 (E.D. Cal. 2013)
Court Description: STIPULATION and ORDER GRANTING the parties' request that plaintiff may file a first amended complaint within five (5) days of service of this Order. Defendants' responsive pleading is due fourteen (14) days thereafter. Order signed by Magistrate Judge Sandra M. Snyder on 12/2/2013. (Rooney, M)
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Moore v. Johnny Quik Food Stores, Inc. et al 1 2 3 4 5 6 Doc. 11 Stacy Tanya E. Moore, SBN 206683 MOORE LAW FIRM, P.C. 332 North Second Street San Jose, California 95112 Telephone (408) 298-2000 Facsimile (408) 298-6046 Email: tanya@moorelawfirm.com Attorneys for Plaintiff Ronald Moore 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 ) ) ) Plaintiff, ) ) ) vs. ) JOHNNY QUIK FOOD STORES, INC., dba ) ) JOHNNY QUIK FOOD STORES #175, et al., ) ) ) Defendants. ) ) ) RONALD MOORE, No. 1:13-CV-01301-AWI-SMS STIPULATION GRANTING PLAINTIFF LEAVE TO FILE FIRST AMENDED COMPLAINT; ORDER THEREON 19 20 21 22 23 24 25 26 27 28 STIPULATION GRANTING PLAINTIFF LEAVE TO FILE FIRST AMENDED COMPLAINT; [PROPOSED] ORDER Page 1 Dockets.Justia.com 1 IT IS HEREBY STIPULATED by and between Plaintiff, Ronald Moore (“Plaintiff”), 2 and Defendants, Johnny Quik Food Stores, Inc. dba Johnny Quik Food Stores #175 and Beal 3 Properties, Inc., a California Corporation (collectively “Defendants,” and together with 4 Plaintiff, the “Parties”), the parties hereto, through their respective attorneys of record, that 5 Plaintiff may file a First Amended Complaint, a copy of which is attached hereto as Exhibit 6 “A.” 7 IT IS FURTHER STIPULATED that Plaintiff will file his First Amended Complaint 8 within five (5) calendar days of the Court’s Order permitting such filing, and that Defendants’ 9 response thereto shall be filed within fourteen (14) days after the First Amended Complaint is 10 11 12 filed. IT IS SO STIPULATED. Dated: November 26, 2013 MOORE LAW FIRM, P.C. 13 /s/ Tanya E. Moore Tanya E. Moore Attorneys for Plaintiff, Ronald Moore 14 15 16 17 Dated: November 27, 2013 WILD, CARTER & TIPTON 18 19 20 21 22 /s/ Steven E. Paganetti Steven E. Paganetti Attorneys for Defendants, Johnny Quik Food Stores, Inc. dba Johnny Quik Food Stores #175 and Beal Properties, Inc., a California Corporation 23 24 25 26 27 28 STIPULATION GRANTING PLAINTIFF LEAVE TO FILE FIRST AMENDED COMPLAINT; [PROPOSED] ORDER Page 2 1 ORDER 2 The Parties having so stipulated and good cause appearing, 3 IT IS HEREBY ORDERED that Plaintiff file his First Amended Complaint, a copy of 4 which was filed with the Parties’ stipulation, within five (5) calendar days of the date this 5 Order is filed. 6 7 IT IS FURTHER ORDERED that Defendants’ response thereto shall be filed within fourteen (14) days after the First Amended Complaint is filed. 8 9 IT IS SO ORDERED. 10 11 Dated: 12/2/2013 /s/ SANDRA M. SNYDER 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION GRANTING PLAINTIFF LEAVE TO FILE FIRST AMENDED COMPLAINT; [PROPOSED] ORDER Page 3 EXHIBIT A 1 2 3 4 5 Tanya E. Moore, SBN 206683 MOORE LAW FIRM, P.C. 332 North Second Street San Jose, California 95112 Telephone (408) 298-2000 Facsimile (408) 298-6046 E-mail: tanya@moorelawfirm.com Attorney for Plaintiff Ronald Moore 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 ) ) ) Plaintiff, ) ) vs. ) JOHNNY QUIK FOOD STORES, INC., dba ) ) JOHNNY QUIK FOOD STORES # 175; ) BEAL PROPERTIES, INC., a California ) Corporation; GURMEJ SINGH dba JOHNNY ) ) QUIK FOOD STORES #175, ) ) Defendants. ) ) RONALD MOORE, No. 1:13-CV-01301-AWI-SMS FIRST AMENDED COMPLAINT ASSERTING DENIAL OF RIGHT OF ACCESS UNDER AMERICANS WITH DISABILITIES ACT FOR INJUNCTIVE RELIEF, DECLARATORY RELIEF, DAMAGES, ATTORNEYS’ FEES AND COSTS (ADA) 19 20 21 I. SUMMARY 1. This is a civil rights action by plaintiff RONALD MOORE (“Plaintiff”) for 22 discrimination at the building, structure, facility, complex, property, land, development, 23 and/or surrounding business complex known as: Johnny Quik Food Stores # 175 4395 W. Ashlan Avenue Fresno, California 93722 (hereafter “the Facility”) 24 25 26 27 28 2. Plaintiff seeks damages, injunctive and declaratory relief, attorney fees and costs, against JOHNNY QUIK FOOD STORES, INC., dba JOHNNY QUIK FOOD Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 5 1 STORES # 175; BEAL PROPERTIES, INC., a California Corporation; and GURMEJ 2 SINGH dba JOHNNY QUIK FOOD STORES #175 (hereinafter collectively referred to as 3 “Defendants”), pursuant to the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 4 et seq.) (“ADA”) and related California statutes. II. 5 6 7 8 9 10 3. This Court has original jurisdiction under 28 U.S.C. §§ 1331 and 1343 for ADA claims. 4. Supplemental jurisdiction for claims brought under parallel California law – arising from the same nucleus of operative facts – is predicated on 28 U.S.C. § 1367. 5. Plaintiff’s claims are authorized by 28 U.S.C. §§ 2201 and 2202. III. 11 12 JURISDICTION 6. VENUE All actions complained of herein take place within the jurisdiction of the 13 United States District Court, Eastern District of California, and venue is invoked pursuant to 14 28 U.S.C. § 1391(b), (c). IV. 15 16 17 18 7. PARTIES Defendants own, operate, and/or lease the Facility, and consist of a person (or persons), firm, and/or corporation. 8. Plaintiff requires the use of a wheelchair when traveling about in public. 19 Consequently, Plaintiff is “physically disabled,” as defined by all applicable California and 20 United States laws, and a member of the public whose rights are protected by these laws. V. 21 22 23 24 9. FACTS The Facility is a public accommodation facility, open to the public, which is intended for nonresidential use and whose operation affects commerce. 10. Plaintiff visited the Facility and encountered barriers (both physical and 25 intangible) that interfered with, if not outright denied, Plaintiff’s ability to use and enjoy the 26 goods, services, privileges and accommodations offered at the Facility. Plaintiff personally 27 encountered the following barriers at the Facility during Plaintiff’s visit to the Facility on or 28 about July 21, 2012: Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 6 1 a) 2 When Plaintiff parked at the Facility, he was unable to use the access aisle, as it was not properly marked and another vehicle had blocked it. 3 b) After Plaintiff struggled with unloading from his car and wheeling 4 towards the entrance, he discovered that the entrance door to the Facility 5 was very heavy. Plaintiff experienced difficulty opening the door and 6 found himself stuck between the door and the frame with the door 7 hitting his wheelchair. 8 c) 9 While at the Facility, Plaintiff needed to use the restroom. Inside, he found that there were insufficient clearances and struggled with 10 maneuvering his chair in and out of the stall. 11 d) At the Facility, Plaintiff purchased a bag of ice. Plaintiff found that due 12 to a lack of room to maneuver his chair between the ice chest and the 13 heavy door, he could not get the door to open himself. Plaintiff was 14 forced to ask for help to exit the Facility. 15 11. The barriers identified in paragraph 10 herein are only those that Plaintiff 16 personally encountered. Plaintiff is presently unaware of other barriers which may in fact 17 exist at the Facility and relate to his disabilities. Plaintiff will seek to amend this Complaint 18 once such additional barriers are identified as it is Plaintiff’s intention to have all barriers 19 which exist at the Facility and relate to his disabilities removed to afford him full and equal 20 access. 21 12. Plaintiff was, and continues to be, deterred from visiting the Facility because 22 Plaintiff knows that the Facility’s goods, services, facilities, privileges, advantages, and 23 accommodations were and are unavailable to Plaintiff due to Plaintiff’s physical disabilities. 24 Plaintiff enjoys the goods and services offered at the Facility, and will return to the Facility 25 once the barriers are removed. 26 13. Defendants knew, or should have known, that these elements and areas of the 27 Facility were inaccessible, violate state and federal law, and interfere with (or deny) access to 28 the physically disabled. Moreover, Defendants have the financial resources to remove these Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 7 1 barriers from the Facility (without much difficulty or expense), and make the Facility 2 accessible to the physically disabled. To date, however, Defendants refuse to either remove 3 those barriers or seek an unreasonable hardship exemption to excuse non-compliance. 4 14. At all relevant times, Defendants have possessed and enjoyed sufficient 5 control and authority to modify the Facility to remove impediments to wheelchair access and 6 to comply with the 2010 Standards for Accessible Design and the California Code of 7 Regulations Title 24. 8 modified the Facility to conform to accessibility standards. Defendants have intentionally 9 maintained the Facility in its current condition and have intentionally refrained from altering 10 11 Defendants have not removed such impediments and have not the Facility so that it complies with the accessibility standards. 15. Plaintiff further alleges that the (continued) presence of barriers at the Facility 12 is so obvious as to establish Defendants discriminatory intent. On information and belief, 13 Plaintiff avers that evidence of this discriminatory intent includes Defendants’ refusal to 14 adhere to relevant building standards; disregard for the building plans and permits issued for 15 the Facility; conscientious decision to maintain the architectural layout (as it currently exists) 16 at the Facility; decision not to remove barriers from the Facility; and allowance that 17 Defendants’ property continues to exist in its non-compliance state. Plaintiff further alleges, 18 on information and belief, that the Facility is not in the midst of a remodel, and that the 19 barriers present at the Facility are not isolated (or temporary) interruptions in access due to 20 maintenance or repairs. 21 VI. FIRST CLAIM 22 Americans with Disabilities Act of 1990 23 Denial of “Full and Equal” Enjoyment and Use 24 16. 25 this claim. 26 17. Plaintiff incorporates the allegations contained in paragraphs 1 through 15 for Title III of the ADA holds as a “general rule” that no individual shall be 27 discriminated against on the basis of disability in the full and equal enjoyment (or use) of 28 goods, services, facilities, privileges, and accommodations offered by any person who owns, Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 8 1 operates, or leases a place of public accommodation. 42 U.S.C. § 12182(a). 2 18. Defendants discriminated against Plaintiff by denying Plaintiff “full and equal 3 enjoyment” and use of the goods, services, facilities, privileges and accommodations of the 4 Facility during each visit and each incident of deterrence. 5 Failure to Remove Architectural Barriers in an Existing Facility 6 19. The ADA specifically prohibits failing to remove architectural barriers, which 7 are structural in nature, in existing facilities where such removal is readily achievable. 42 8 U.S.C. § 12182(b)(2)(A)(iv). 9 20. When an entity can demonstrate that removal of a barrier is not readily 10 achievable, a failure to make goods, services, facilities, or accommodations available through 11 alternative methods is also specifically prohibited if these methods are readily achievable. 12 Id. § 12182(b)(2)(A)(v). 13 21. Here, Plaintiff alleges that Defendants can easily remove the architectural 14 barriers at the Facility without much difficulty or expense, and that Defendants violated the 15 ADA by failing to remove those barriers, when it was readily achievable to do so. 16 22. In the alternative, if it was not “readily achievable” for Defendants to remove 17 the Facility’s barriers, then Defendants violated the ADA by failing to make the required 18 services available through alternative methods, which are readily achievable. 19 Failure to Design and Construct an Accessible Facility 20 23. Plaintiff alleges on information and belief that the Facility was designed and 21 constructed (or both) after January 26, 1992 – independently triggering access requirements 22 under Title III of the ADA. 24. 23 The ADA also prohibits designing and constructing facilities for first 24 occupancy after January 16, 1993, that aren’t readily accessible to, and usable by, individuals 25 with disabilities when it was structurally practicable to do so. 42 U.S.C. § 12183(a)(1). 25. 26 Here, Defendants violated the ADA by designing and constructing (or both) 27 the Facility in a manner that was not readily accessible to the physically disabled public – 28 /// Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 9 1 including Plaintiff – when it was structurally practical to do so.1 2 Failure to Make an Altered Facility Accessible 26. 3 4 Plaintiff alleges on information and belief that the Facility was modified after January 26, 1992, independently triggering access requirements under the ADA. 27. 5 The ADA also requires that facilities altered in a manner that affects (or could 6 affect) its usability must be made readily accessible to individuals with disabilities to the 7 maximum extent feasible. 42 U.S.C. § 12183(a)(2). Altering an area that contains a 8 facility’s primary function also requires making the paths of travel, bathrooms, telephones, 9 and drinking fountains serving that area accessible to the maximum extent feasible. Id. 10 28. Here, Defendants altered the Facility in a manner that violated the ADA and 11 was not readily accessible to the physically disabled public – including Plaintiff – to the 12 maximum extent feasible. 13 Failure to Modify Existing Policies and Procedures 14 29. The ADA also requires reasonable modifications in policies, practices, or 15 procedures, when necessary to afford such goods, services, facilities, or accommodations to 16 individuals with disabilities, unless the entity can demonstrate that making such 17 modifications would fundamentally alter their nature. 42 U.S.C. § 12182(b)(2)(A)(ii). 18 30. Here, Defendants violated the ADA by failing to make reasonable 19 modifications in policies, practices, or procedures at the Facility, when these modifications 20 were necessary to afford (and would not fundamentally alter the nature of) these goods, 21 services, facilities, or accommodations. 31. 22 23 Plaintiff seeks all relief available under the ADA (i.e., injunctive relief, attorney fees, costs, legal expense) for these aforementioned violations. 42 U.S.C. § 12205. 32. 24 Plaintiff seeks a finding from this Court (i.e., declaratory relief) that 25 Defendants violated the ADA in order to pursue damages under California’s Unruh Civil 26 Rights Act or Disabled Persons Act. 27 28 1 Nothing within this Complaint should be construed as an allegation that plaintiff is bringing this action as a private attorney general under either state or federal statutes. Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 10 1 VII. 2 SECOND CLAIM Unruh Act 3 33. 4 this claim. 5 34. Plaintiff incorporates the allegations contained in paragraphs 1 through 32 for California Civil Code § 51 states, in part, that: All persons within the 6 jurisdiction of this state are entitled to the full and equal accommodations, advantages, 7 facilities, privileges, or services in all business establishments of every kind whatsoever. 8 9 10 11 12 13 35. California Civil Code § 51.5 also states, in part that: No business establishment of any kind whatsoever shall discriminate against any person in this state because of the disability of the person. 36. California Civil Code § 51(f) specifically incorporates (by reference) an individual’s rights under the ADA into the Unruh Act. 37. Defendants’ aforementioned acts and omissions denied the physically 14 disabled public – including Plaintiff – full and equal accommodations, advantages, facilities, 15 privileges and services in a business establishment (because of their physical disability). 16 17 18 19 20 38. These acts and omissions (including the ones that violate the ADA) denied, aided or incited a denial, or discriminated against Plaintiff by violating the Unruh Act. 39. Plaintiff was damaged by Defendants’ wrongful conduct, and seeks statutory minimum damages of four thousand dollars ($4,000) for each offense. 40. Plaintiff also seeks to enjoin Defendants from violating the Unruh Act (and 21 ADA), and recover reasonable attorneys’ fees and costs incurred under California Civil Code 22 § 52(a). VIII. THIRD CLAIM 23 Denial of Full and Equal Access to Public Facilities 24 25 41. 26 this claim. 27 42. 28 Plaintiff incorporates the allegations contained in paragraphs 1 through 40 for Health and Safety Code § 19955(a) states, in part, that: California public accommodations or facilities (built with private funds) shall adhere to the provisions of Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 11 1 Government Code § 4450. 2 43. Health and Safety Code § 19959 states, in part, that: Every existing (non- 3 exempt) public accommodation constructed prior to July 1, 1970, which is altered or 4 structurally repaired, is required to comply with this chapter. 5 44. Plaintiff alleges the Facility is a public accommodation constructed, altered, 6 or repaired in a manner that violates Part 5.5 of the Health and Safety Code or Government 7 Code § 4450 (or both), and that the Facility was not exempt under Health and Safety Code 8 § 19956. 9 45. Defendants’ non-compliance with these requirements at the Facility aggrieved 10 (or potentially aggrieved) Plaintiff and other persons with physical disabilities. Accordingly, 11 Plaintiff seeks injunctive relief and attorney fees pursuant to Health and Safety Code 12 § 19953. 13 IX. PRAYER FOR RELIEF 14 WHEREFORE, Plaintiff prays judgment against Defendants, and each of them, for: 15 1. Injunctive relief, preventive relief, or any other relief the Court deems proper. 16 2. Declaratory relief that Defendants violated the ADA for the purposes of 17 Unruh Act damages. 18 19 3. Statutory minimum damages under section 52(a) of the California Civil Code according to proof. 20 4. Attorneys’ fees, litigation expense, and costs of suit.2 21 5. Interest at the legal rate from the date of the filing of this action. 22 6. For such other and further relief as the Court deems proper. 23 24 Dated: 25 Tanya E. Moore Attorneys for Plaintiff, Ronald Moore\ 26 27 28 MOORE LAW FIRM, P.C. 2 This includes attorneys’ fees under California Code of Civil Procedure § 1021.5. Moore v. Johnny Quik Food Stores, Inc., et al. First Amended Complaint Page 12
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