Free Amended Complaint - District Court of California - California

Case 3:08-cv-01472-BEN-POR

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LYNN HUBBARD, III, SBN 69773 SCOTTLYNN J HUBBARD, IV, SBN 212970 DISABLED ADVOCACY GROUP, APLC 12 Williamsburg Lane Chico, CA 95926 Telephone: (530) 895-3252 Facsimile: (530) 894-8244 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Case No. 08cv1472 BEN (POR) ) Plaintiff, ) ) Plaintiff's First Amended ) Complaint vs. ) THE PEP BOYS MANNY MOE & ) ) JACK of CALIFORNIA dba PEP ) ) BOYS #651; ROBERT SARKIS ) LION, ) ) Defendants. A. J. OLIVER,

Oliver v. The Pep Boys Manny Moe & Jack of California, et al. Plaintiff's First Amended Complaint

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. 6. 3. 4. 1343 for ADA claims. Pep Boys #651 454 Broadway Chula Vista, CA 91910 (hereafter "the Store") 2. 1.

I. SUMMARY This is a civil rights action by plaintiff A. J. Oliver ("Oliver") for discrimination at the building, structure, facility, complex, property, land, development, and/or surrounding business complex known as:

Oliver seeks damages, injunctive and declaratory relief, attorney fees

and costs, against The Pep Boys Manny Moe & Jack of California dba Pep Boys #651 and Robert Sarkis Lion (collectively "Pep Boys") pursuant to the Americans with Disabilities Act of 1990, ( 42 U.S.C. §§ 12101 et seq.), and related California statutes. II. JURISDICTION This Court has original jurisdiction under 28 U.S.C. §§ 1331 and 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. Oliver's claims are authorized by 28 U.S.C. §§ 2201 and 2202. III. VENUE All actions complained of herein take place within the jurisdiction of the United States District Court, Southern District of California, and venue is invoked pursuant to 28 U.S.C. § 1391(b), (c). IV. PARTIES Pep Boys owns, operates, and/or leases the Store, and consists of a person (or persons), firm, and/or corporation.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Store.

8.

Oliver suffered a stroke approximately 13 years ago. The stroke left

him paralyzed, speech impaired, and unable to stand or walk. Oliver requires the use of a motorized wheelchair when traveling about in public. Consequently, Oliver is "physically disabled," as defined by all applicable California and United States laws, and a member of the public whose rights are protected by these laws. V. FACTS 9. 10. 11. The Store is a sales or retail establishment, open to the public, Oliver has a receipt dated July 22, 2008 evidencing a visit to the During this visit (as well as other undocumented visits) to the Store, which is intended for nonresidential use and whose operation affects commerce.

Oliver encountered barriers (both physical and intangible) that interfered with--if not outright denied--his ability to use and enjoy the goods, services, privileges, and accommodations offered at the facility. To the extent known by Oliver, the barriers at the Store included, but are not limited to, the following: · There is no tow away signage posted; · At least one disabled parking stall has a cross slope that exceeds 2.0%; · The access aisle adjacent to the disabled parking has a cross slope that exceeds 2.0%; · There are no spaces designated as "van accessible;" · The platform leading into the southwest entrance (furthest from Broadway) is not level; · The platform leading into the main entrance (closest to Broadway) is not level; · There is no International Symbol of Accessibility at either entrance; · The counters in the service area are too high and do not have a portion lowered to accommodate patrons in wheelchairs; · The pay point machines in the service area are too high;
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· The counters in the parts area are too high and do not have a portion lowered to accommodate patrons in wheelchairs; · The signage at the entrance to the men's restroom is not correct; · The entrance door to the men's restroom requires twisting; · The drinking fountain is too high; · The pipes underneath the lavatory are not wrapped; · There is insufficient clear floor space between the water closet and the lavatory; · The grab bars do not extend 24 inches from the front of the water closet; and, · The operable part of the paper towel dispenser is mounted more than 40 inches from the floor. These barriers prevented Oliver from enjoying full and equal access. 12. Oliver was also deterred from visiting the Store because he knew that the Store's goods, services, facilities, privileges, advantages, and accommodations were unavailable to physically disabled patrons (such as himself). He continues to be deterred from visiting the Store because of the future threats of injury created by these barriers. 13. Oliver also encountered barriers at the Store, which violate state and federal law, but were unrelated to his disability. Nothing within this complaint, however, should be construed as an allegation that Oliver is seeking to remove barriers unrelated to his disability. 14. Pep Boys knew that these elements and areas of the Store were Moreover, Pep Boys has the financial resources to inaccessible, violate state and federal law, and interfere with (or deny) access to the physically disabled. remove these barriers from the Store (without much difficulty or expense), and make the Store accessible to the physically disabled. To date, however, Pep Boys
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refuses to either remove those barriers or seek an unreasonable hardship exemption to excuse non-compliance. 15. At all relevant times, Pep Boys has possessed and enjoyed sufficient control and authority to modify the Store to remove impediments to wheelchair access and to comply with the Americans with Disabilities Act Accessibility Guidelines and Title 24 regulations. standards. Pep Boys has not removed such impediments and has not modified the Store to conform to accessibility Pep Boys has intentionally maintained the Store in its current condition and has intentionally refrained from altering the Store so that it complies with the accessibility standards. 16. Oliver further alleges that the (continued) presence of barriers at the On Store is so obvious as to establish Pep Boys' discriminatory intent.1

information and belief, Oliver avers that evidence of this discriminatory intent includes Pep Boys' refusal to adhere to relevant building standards; disregard for the building plans and permits issued for the Store; conscientious decision to the architectural layout (as it currently exists) at the Store; decision not to remove barriers from the Store; and allowance that the Store continues to exist in its noncompliant state. Oliver further alleges, on information and belief, that Pep Boys is not in the midst of a remodel, and that the barriers present at the Store are not isolated (or temporary) interruptions in access due to maintenance or repairs.2 VI. FIRST CLAIM Americans with Disabilities Act of 1990 Denial of "Full and Equal" Enjoyment and Use 17. Oliver incorporates the allegations contained in paragraphs 1 through 15 for this claim.

E.g., Gunther v. Lin, 144 Cal.App.4th 223, fn. 6 Id.; 28 C.F.R. § 36.211(b) Oliver v. The Pep Boys Manny Moe & Jack of California, et al. Plaintiff's First Amended Complaint
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18.

Title III of the ADA holds as a "general rule" that no individual shall

be discriminated against on the basis of disability in the full and equal enjoyment (or use) of goods, services, facilities, privileges, and accommodations offered by any person who owns, operates, or leases a place of public accommodation. 42 U.S.C. § 12182(a). 19. Pep Boys discriminated against Oliver by denying "full and equal enjoyment" and use of the goods, services, facilities, privileges or accommodations of the Store during each visit and each incident of deterrence. Failure to Remove Architectural Barriers in an Existing Facility 20. The ADA specifically prohibits failing to remove architectural The term "readily barriers, which are structural in nature, in existing facilities where such removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). without much difficulty or expense." Id. § 12181(9). 21. When an entity can demonstrate that removal of a barrier is not readily achievable, a failure to make goods, services, facilities, or accommodations available through alternative methods is also specifically prohibited if these methods are readily achievable. Id. § 12182(b)(2)(A)(v). 22. Here, Oliver alleges that Pep Boys can easily remove the architectural barriers at the Store without much difficulty or expense, and that Pep Boys violated the ADA by failing to remove those barriers, when it was readily achievable to do so. 23. In the alternative, if it was not "readily achievable" for Pep Boys to remove the Store's barriers, then Pep Boys violated the ADA by failing to make the required services available through alternative methods, which are readily achievable. achievable" is defined as "easily accomplishable and able to be carried out

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Failure to Design and Construct an Accessible Facility On information and belief, the Store was designed or constructed (or both) after January 26, 1992--independently triggering access requirements under Title III of the ADA. 25. The ADA also prohibits designing and constructing facilities for first occupancy after January 26, 1993, that aren't readily accessible to, and usable by, individuals with disabilities when it was structurally practicable to do so. 42 U.S.C. § 12183(a)(1). 26. Here, Pep Boys violated the ADA by designing or constructing (or both) the Store in a manner that was not readily accessible to the physically disabled public--including Oliver--when it was structurally practical to do so.3 Failure to Make an Altered Facility Accessible On information and belief, the Store was modified after January 26, The ADA also requires that facilities altered in a manner that affects 1992, independently triggering access requirements under the ADA. (or could affect) its usability must be made readily accessible to individuals with disabilities to the maximum extent feasible. 42 U.S.C. § 12183(a)(2). Altering an area that contains a facility's primary function also requires adding making the paths of travel, bathrooms, telephones, and drinking fountains serving that area accessible to the maximum extent feasible. Id. 29. Here, Pep Boys altered the Store in a manner that violated the ADA and was not readily accessible to the physically disabled public--including Oliver--to the maximum extent feasible. Failure to Modify Existing Policies and Procedures The ADA also requires reasonable modifications in policies, practices, or procedures, when necessary to afford such goods, services, facilities,
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. Oliver v. The Pep Boys Manny Moe & Jack of California, et al. 08cv1472 BEN (POR) Plaintiff's First Amended Complaint
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or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter their nature. 42 U.S.C. § 12182(b)(2)(A)(ii). 31. Here, Pep Boys violated the ADA by failing to make reasonable modifications in policies, practices, or procedures at the Store, when these modifications were necessary to afford (and would not fundamentally alter the nature of) these goods, services, facilities, or accommodations. 32. Oliver 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. 33. Oliver also seeks a finding from this Court (i.e., declaratory relief) that Pep Boys violated the ADA in order to pursue damages under California's Unruh Civil Rights Act or Disabled Persons Act. VII. SECOND CLAIM Disabled Persons Act 34. 35. Oliver incorporates the allegations contained in paragraphs 1 California Civil Code § 54 states, in part, that: Individuals with through 30 for this claim. disabilities have the same right as the general public to the full and free use of the streets, sidewalks, walkways, public buildings and facilities, and other public places. 36. California Civil Code § 54.1 also states, in part, that: Individuals with disabilities shall be entitled to full and equal access to accommodations, facilities, telephone facilities, places of public accommodation, and other places to which the general public is invited. 37. Both sections specifically incorporate (by reference) an individual's rights under the ADA. See Civil Code §§ 54(c) and 54.1(d).
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38.

Here, Pep Boys discriminated against the physically disabled

public--including Oliver--by denying them full and equal access to the Store. Pep Boys also violated Oliver's rights under the ADA, and, therefore, infringed upon or violated (or both) Oliver's rights under the Disabled Persons Act. 39. For each offense of the Disabled Persons Act, Oliver seeks actual damages (both general and special damages), statutory minimum damages of one thousand dollars ($1,000), declaratory relief, and any other remedy available under California Civil Code § 54.3. 40. He also seeks to enjoin Pep Boys from violating the Disabled Persons Act (and ADA) under California Civil Code § 55, and to recover reasonable attorneys' fees and incurred under California Civil Code §§ 54.3 and 55. VIII. THIRD CLAIM Unruh Civil Rights Act 41. 42. Oliver incorporates the allegations contained in paragraphs 1 California Civil Code § 51 states, in part, that: All persons within the through 30 for this claim. jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. 43. 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. 44. 45. California Civil Code § 51(f) specifically incorporates (by reference) Pep Boys' aforementioned acts and omissions denied the physically an individual's rights under the ADA into the Unruh Act. disabled public--including Oliver--full and equal accommodations, advantages,
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facilities, privileges and services in a business establishment (because of their physical disability). 46. Unruh Act. 47. 48. Oliver was damaged by Pep Boys' wrongful conduct, and seeks Oliver also seeks to enjoin Pep Boys from violating the Unruh Act statutory minimum damages of four thousand dollars ($4,000) for each offense. (and ADA), and recover reasonable attorneys' fees and costs incurred under California Civil Code § 52(a). IX. FOURTH CLAIM Denial of Full and Equal Access to Public Facilities 49. 50. Oliver incorporates the allegations contained in paragraphs 1 Health and Safety Code § 19955(a) states, in part, that: California through 13 for this claim. public accommodations or facilities (built with private funds) shall adhere to the provisions of Government Code § 4450. 51. Health and Safety Code § 19959 states, in part, that: Every existing (non-exempt) public accommodation constructed prior to July 1, 1970, which is altered or structurally repaired, is required to comply with this chapter. 52. Oliver alleges the Store is a public accommodation constructed, altered, or repaired in a manner that violates Part 5.5 of the Health and Safety Code or Government Code § 4450 (or both), and that the Store was not exempt under Health and Safety Code § 19956. 53. Pep Boys' non-compliance with these requirements at the Store aggrieved (or potentially aggrieved) Oliver and other persons with physical disabilities. Accordingly, he seeks injunctive relief and attorney fees pursuant to Health and Safety Code § 19953.
Oliver v. The Pep Boys Manny Moe & Jack of California, et al. Plaintiff's First Amended Complaint 08cv1472 BEN (POR)

These acts and omissions (including the ones that violate the ADA)

denied, aided or incited a denial, or discriminated against Oliver by violating the

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X. PRAYER FOR RELIEF WHEREFORE, Oliver prays judgment against Pep Boys for: 1. 2. 3. 4. 5. Injunctive relief, preventive relief, or any other relief the Court deems Declaratory relief that Pep Boys violated the ADA for the purposes of Statutory minimum damages under either sections 52(a) or 54.3(a) of the Attorneys' fees, litigation expenses, and costs of suit.4 Interest at the legal rate from the date of the filing of this action. DISABLED ADVOCACY GROUP, APLC /s/ Lynn Hubbard, III LYNN HUBBARD, III Attorney for Plaintiff A.J. Oliver proper. Unruh Act or Disabled Persons Act damages. California Civil Code (but not both) according to proof.

DATED: August 14, 2008

This includes attorneys' fees under California Code of Civil Procedure § 1021.5. Oliver v. The Pep Boys Manny Moe & Jack of California, et al. Plaintiff's First Amended Complaint

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