United States v. 2017-03-22 | 15-15083 | Craig Yates V. Sweet Potato Enterprise, Inc. |…

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG YATES,
Plaintiff-Appellant, .
Cross-Appellee
v.
SWEET POTATO ENTERPRISE, INC., a
California Corporation d/b/a Popeyes Store
#2794, KUAN NG, Trustee of the Kuan L.
Ng and Helen L. Ng Revocable Trust of
1993; HELEN NG, Trustee of the Kuan L.
Ng and Helen L. Ng Revocable Trust of
1993,
Defendants-Appellees,
Cross-Appellants
No. 15-15083
15-15134
D.C. No. 3:11-cv-01950-LB
MEMORANDUM*
Appeals from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted December 12, 2016
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and BOULWARE,** District
Judge.
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard F. Boulware, United States District Judge for the
District of Nevada, sitting by designation.
FILED
MAR 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Craig Yates sued the owners and operators of a Popeyes Chicken store in
San Francisco, alleging the presence of unlawful architectural barriers in violation
of the Americans with Disabilities Act (“ADA”), the California Unruh Civil Rights
Act (“Unruh Act”), and the California Disabled Persons Act (“CDPA”). He sought
injunctive relief under the ADA and the CDPA, arguing that the entrance door to
the store was inaccessible and that remediation is readily achievable by installation
of a power door. He also sought statutory damages on his state claims for each of
thirteen visits to the store between March 8, 2011, and August 21, 2013.
The district court found that installation of the power door was readily
achievable, but denied injunctive relief mandating installation of the door on the
ground that a sign and employee assistance fixed the problem and mooted the
claim. The district court found that Yates was entitled to damages for the ADA
violation as incorporated by the California acts, but that California law barred
recovery for all but the first visit, and entered judgment in favor of Yates for
$4,000. We affirm in part and reverse in part.
1. Under the ADA, “[d]iscrimination includes . . . a failure to remove
architectural barriers . . . in existing facilities . . . where such removal is readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA defines “readily
achievable” as “easily accomplishable and able to be carried out without much
difficulty or expense.” Id. § 12181(9). The district court properly held that the

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installation of the power door was readily achievable as of October 2014, the date
of the bench trial. Indeed, the type of proposed installation in this case—
“[i]nstalling accessible door hardware”—is one of the examples provided in the
federal regulations as to the type of remedial step which might be “easily
accomplishable and able to be carried out without much difficulty or expense.” 28
C.F.R. § 36.304(a), (b)(11). The district court appropriately “credit[ed] and
accept[ed] [Sweet Potato’s] representation that [it] will install the power door
shortly.” That representation makes clear that the district court considered the
factors under Section 12181(9) and found that Appellees had the capacity and
financial wherewithal to install the power door, for a maximum of $5,850, with
readily obtainable financing in October 2014.
2. The district court did err, however, in its finding that remediation of the
barrier was readily achievable during Yates’ earlier visits. The readily achievable
analysis is necessarily time sensitive because of its consideration of cost and
practicality. The district court did not make sufficient factual findings to support
its determination that the remediation of the barrier was readily achievable between
March 8, 2011 and August 21, 2013. The district court did not make any findings
about the financial condition of Appellees during this time. The district court also
did not reference any affirmative statements from the Appellees about their

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intentions to remediate, to support a finding that such remediation was readily
achievable at the time of any of the visits by Yates.
3. As the district court’s only basis for the award of damages under the
California Acts is the sole violation of the ADA found by the district court—the
failure to remove a barrier where such removal was “readily achievable” in
October 2014—the district court erred in its imposition of damages. The district
court made no explicit findings that removal of the barrier was readily achievable
at the time of Mr. Yates’ first visit in March 2011—the visit upon which the
damages award was based—or at the time of any subsequent visit. We therefore
vacate the award of damages, and remand for reconsideration of statutory damages.
4. Having found that installation of the power door was readily achievable
in October 2014, the district court erred in denying an injunction on the ground that
the mechanism for employee assistance was a sufficient solution that remedied the
problem. “[A] facility may only substitute alternatives to barrier removal where
‘as a result of compliance with the alterations requirements specified in paragraph
(d)(1) of this section, the measures required to remove a barrier would not be
readily achievable.’” Molski v. Foley Estates Vineyard & Winery, LLC, 531 F.3d
1043, 1050 (9th Cir. 2008) (quoting 28 C.F.R. § 36.304(d)(2)). Having found that
the remediation of the barrier was readily achievable in October 2014 through the
installation of the power door, the district court was required to issue an injunction

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for the removal of the barrier and the installation of the power door. See id. On
remand, the district court shall determine the appropriate nature of the injunction to
be imposed and whether the imposition of an injunction to install the power door
has now been mooted by the adequate and appropriate installation of the power
door.
5. The issue of attorney fees was not considered or ruled on by the district
court, and we decline to consider it for the first time here.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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