Case 2:18-cv-00936-WBS-EFB Document 1 Filed 04/17/18 Page 1 of 15

1 CENTER FOR DISABILITY ACCESS

Chris Carson, Esq., SBN 280048
2 Phyl Grace, Esq., SBN 171771
Dennis Price, Esq., SBN 279082
3 Mary Melton, Esq., SBN 164407
Mail: PO Box 262490
4 San Diego, CA 92196-2490
Delivery: 9845 Erma Road, Suite 300
5 San Diego, CA 92131
(858) 375-7385; (888) 422-5191 fax
6 phylg@potterhandy.com
7 Attorneys for Plaintiff
8
9
UNITED STATES DISTRICT COURT
10 EASTERN DISTRICT OF CALIFORNIA
11
12 Scott Johnson, Case No.
13 Plaintiff,
Complaint For Damages And
14 v. Injunctive Relief For Violations
Of: American’s With Disabilities
15 Mervyn Silberberg; Act; Unruh Civil Rights Act
Jointed Cue, Inc., a California
16 Corporation; and Does 1-10,
17 Defendants.
18
19 Plaintiff Scott Johnson complains of Defendants Mervyn Silberberg;
20 Jointed Cue, Inc., a California Corporation; and Does 1-10 (“Defendants”),
21 and alleges as follows:
22
23
PARTIES:
24
1. Plaintiff is a California resident with physical disabilities. Plaintiff is a
25
level C-5 quadriplegic. He cannot walk and also has significant manual
26
dexterity impairments. He uses a wheelchair for mobility and has a specially
27
equipped van.
28
2. Defendant Mervyn Silberberg owned the real property located at or

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1 about 2375 Fruitridge Rd., Sacramento, California, in August 2016.

2 3. Defendant Mervyn Silberberg owned the real property located at or
3 about 2375 Fruitridge Rd., Sacramento, California, in October 2016.
4 4. Defendant Mervyn Silberberg owned the real property located at or
5 about 2375 Fruitridge Rd., Sacramento, California, in March 2017.
6 5. Defendant Mervyn Silberberg owned the real property located at or
7 about 2375 Fruitridge Rd., Sacramento, California, in November 2017.
8 6. Defendant Mervyn Silberberg owned the real property located at or
9 about 2375 Fruitridge Rd., Sacramento, California, in January 2018.
10 7. Defendant Mervyn Silberberg owns the real property located at or about
11 2375 Fruitridge Rd., Sacramento, California, currently.
12 8. Defendant Jointed Cue, Inc. owned the The Jointed Cue Billiards
13 located at or about 2375 Fruitridge Rd., Sacramento, California, in August
14 2016.
15 9. Defendant Jointed Cue, Inc. owned the The Jointed Cue Billiards
16 located at or about 2375 Fruitridge Rd., Sacramento, California, in October
17 2016.
18 10. Defendant Jointed Cue, Inc. owned the The Jointed Cue Billiards
19 located at or about 2375 Fruitridge Rd., Sacramento, California, in March
20 2017.
21 11. Defendant Jointed Cue, Inc. owned the The Jointed Cue Billiards
22 located at or about 2375 Fruitridge Rd., Sacramento, California, in November
23 2017.
24 12. Defendant Jointed Cue, Inc. owned the The Jointed Cue Billiards
25 located at or about 2375 Fruitridge Rd., Sacramento, California, in January
26 2018.
27 13. Defendant Jointed Cue, Inc. owns the The Jointed Cue Billiards
28 (“Jointed Billiards”) located at or about 2375 Fruitridge Rd., Sacramento,

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1 California, currently.
2 14. Plaintiff does not know the true names of Defendants, their business
3 capacities, their ownership connection to the property and business, or their
4 relative responsibilities in causing the access violations herein complained of,
5 and alleges a joint venture and common enterprise by all such Defendants.
6 Plaintiff is informed and believes that each of the Defendants herein,
7 including Does 1 through 10, inclusive, is responsible in some capacity for the
8 events herein alleged, or is a necessary party for obtaining appropriate relief.
9 Plaintiff will seek leave to amend when the true names, capacities,
10 connections, and responsibilities of the Defendants and Does 1 through 10,
11 inclusive, are ascertained.
12
13 JURISDICTION & VENUE:
14 15. The Court has subject matter jurisdiction over the action pursuant to 28
15 U.S.C. § 1331 and § 1343(a)(3) & (a)(4) for violations of the Americans with
16 Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.
17 16. Pursuant to supplemental jurisdiction, an attendant and related cause
18 of action, arising from the same nucleus of operative facts and arising out of
19 the same transactions, is also brought under California’s Unruh Civil Rights
20 Act, which act expressly incorporates the Americans with Disabilities Act.
21 17. Venue is proper in this court pursuant to 28 U.S.C. § 1391(b) and is
22 founded on the fact that the real property which is the subject of this action is
23 located in this district and that Plaintiff's cause of action arose in this district.
24
25 FACTUAL ALLEGATIONS:
26 18. Plaintiff went to the Jointed Billiards on a number of occasions during
27 the relevant statutory period, including August 2016, October 2016, March
28 2017, November 2017 and January 2018.

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1 19. The Jointed Billiards is a facility open to the public, a place of public
2 accommodation, and a business establishment.
3 20. Parking spaces are one of the facilities, privileges, and advantages
4 offered by Defendants to patrons of the Jointed Billiards.
5 21. Unfortunately, there were no compliant, accessible parking spaces
6 marked and reserved for persons with disabilities at the parking lot where the
7 Jointed Billiards is located during Plaintiff’s visits.
8 22. On information and belief, plaintiff alleges that the Jointed Billiards
9 used to have an accessible parking space in the parking lot.
10 23. Indeed, there is a sign in front of a parking suggesting that an accessible
11 space once existed. There is a faded International Symbol of Accessibility logo
12 in the space. Adjacent to the parking space there is faded paint that suggests
13 that an access aisle once existed as well.
14 24. The parking space and access aisle that likely existed have now faded to
15 the point of not being useful any longer. Customers are now able to park in the
16 old access aisle with impunity.
17 25. Currently, there is not a single, compliant, accessible parking space
18 marked and reserved for persons with disabilities at the Jointed Billiards.
19 26. Defendants have no policy in place to make sure that parking space is
20 maintained for use by persons with disabilities.
21 27. Defendants have failed to maintain in operable working condition those
22 features of facilities and equipment that are required to be readily accessible to
23 and usable by persons with disabilities at the Subject Property.
24 28. Entrance into the Jointed Billiards is another one of the facilities,
25 privileges, and advantages offered by Defendants to patrons of the business.
26 29. The entrance doorway clear passage width to the Jointed Billiards was
27 less than 32 inches and inaccessible to wheelchair users. In fact, the entrance
28 doorway is 27 inches wide. The other door is kept locked, so only one of the

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1 doors can be used for entrance.

2 30. Currently, the entrance doorway clear passage width to the Jointed
3 Billiards is less than 32 inches and inaccessible to wheelchair users.
4 31. Bar counters are also one of the facilities, privileges, and advantages
5 offered by Defendants to patrons of the Jointed Billiards.
6 32. Unfortunately, there was no portion of the dining bar counter that was
7 34 inches in height or less.
8 33. Additionally, there were no accessible tables inside the Bar.
9 34. Currently, there is no portion of the bar counter that is 34 inches in
10 height or less and no accessible tables in the bar area.
11 35. Transaction counters are one of the facilities, privileges, and advantages
12 offered by Defendants to patrons of the Jointed Billiards.
13 36. The transaction counter at the Jointed Billiards was more than 36 inches
14 in height. In fact, the transaction counter is 42 inches high.
15 37. There was no lowered, 36 inch portion of the transaction counter at the
16 Jointed Billiards for use by persons in wheelchairs.
17 38. Currently, the transaction counter at the Jointed Billiards is more than
18 36 inches in height.
19 39. Currently, there is no lowered, 36 inch portion of the transaction
20 counter at the Jointed Billiards for use by persons in wheelchairs.
21 40. Plaintiff personally encountered these barriers.
22 41. These inaccessible conditions denied the plaintiff full and equal access
23 and caused him difficulty, discomfort, and embarrassment.
24 42. Restrooms are one of the facilities, privileges, and advantages offered
25 by Defendants to patrons of the Jointed Billiards.
26 43. Meanwhile, and even though plaintiff did not confront the barrier, the
27 restroom doorway clear passage width is less than 32 inches and inaccessible
28 to wheelchair users. In fact, the restroom and toilet stall doorway are 29 inches

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1 wide and 26 inches wide, respectively.

2 44. The toilet stall is improperly configured and too small for wheelchair
3 users, measuring 57 inches in width and 37 inches in depth.
4 45. The restroom mirror is mounted on the wall so that its bottom edge is
5 approximately 49 inches above the floor and is not effectively used by
6 wheelchair users.
7 46. Instead of providing two grab bars on adjacent or parallel walls for use
8 by persons with disabilities who need to transfer to the toilet, there are no grab
9 bars.
10 47. The disposable toilet seat cover dispenser is mounted so that its highest
11 operable part is greater than 54 inches above the finished floor and
12 inaccessible to wheelchair users.
13 48. There is no clear floor space in front of the disposable toilet seat cover
14 dispenser because it is mounted on the wall behind the toilet.
15 49. The plumbing underneath the sink is not wrapped to protect against
16 burning contact.
17 50. The barriers existed during each of Plaintiff’s visits in 2016, 2017 and
18 2018.
19 51. The plaintiff lives in the Sacramento area.
20 52. Plaintiff plans to return and patronize the Jointed Billiards but will be
21 deterred from visiting until the defendants remove the barriers.
22 53. The defendants have failed to maintain in working and useable
23 conditions those features required to provide ready access to persons with
24 disabilities.
25 54. The barriers identified above are easily removed without much
26 difficulty or expense. They are the types of barriers identified by the
27 Department of Justice as presumably readily achievable to remove and, in fact,
28 these barriers are readily achievable to remove. Moreover, there are numerous

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1 alternative accommodations that could be made to provide a greater level of

2 access if complete removal were not achievable.
3 55. For example, there are numerous paint/stripe companies that will come
4 and stripe a parking stall and access aisle and install proper signage on rapid
5 notice, with very modest expense, sometimes as low as $300 in full
6 compliance with federal and state access standards.
7 56. Another common barrier removal project is modifying transaction
8 counters to make a portion of the counter accessible. This is a simple
9 construction task, well within the capabilities of any general contractor. The
10 task can be completed easily and for a modest price.
11 57. Meanwhile, the mirror in the restroom could be removed or lowered so
12 that it is accessible.
13 58. The restroom dispenser could be lowered to a compliant height for little
14 to no cost.
15 59. Wrap can be installed under the sink at a cost of no more than $25.
16 60. Plaintiff is and has been deterred from returning and patronizing the
17 Jointed Billiards of his knowledge of the barriers that exist. Plaintiff will,
18 nonetheless, return to assess ongoing compliance with the ADA and will
19 return to patronize the Jointed Billiards as a customer once the barriers are
20 removed.
21 61. Given the obvious and blatant nature of the barriers and violations
22 alleged herein, the plaintiff alleges, on information and belief, that there are
23 other violations and barriers on the site that relate to his disability. Plaintiff will
24 amend the complaint, to provide proper notice regarding the scope of this
25 lawsuit, once he conducts a site inspection. However, please be on notice that
26 the plaintiff seeks to have all barriers related to his disability remedied. See
27 Doran v. 7-11, 524 F.3d 1034 (9th Cir. 2008) (holding that once a plaintiff
28 encounters one barrier at a site, he can sue to have all barriers that relate to his

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1 disability removed regardless of whether he personally encountered them).

2 62. Additionally, on information and belief, the plaintiff alleges that the
3 failure to remove these barriers was intentional because: (1) these particular
4 barriers are intuitive and obvious; (2) the defendants exercised control and
5 dominion over the conditions at this location and, therefore, the lack of
6 accessible facilities was not an “accident” because had the defendants
7 intended any other configuration, they had the means and ability to make the
8 change.
9
10 I. FIRST CAUSE OF ACTION: VIOLATION OF THE AMERICANS
11 WITH DISABILITIES ACT OF 1990 (On behalf of Plaintiff and against all
12 Defendants.) (42 U.S.C. section 12101, et seq.)
13 63. Plaintiff re-pleads and incorporates by reference, as if fully set forth
14 again herein, the allegations contained in all prior paragraphs of this
15 complaint.
16 64. Under the ADA, it is an act of discrimination to fail to ensure that the
17 privileges, advantages, accommodations, facilities, goods and services of any
18 place of public accommodation is offered on a full and equal basis by anyone
19 who owns, leases, or operates a place of public accommodation. See 42 U.S.C.
20 § 12182(a). Discrimination is defined, inter alia, as follows:
21 a. A failure to make reasonable modifications in policies, practices,
22 or procedures, when such modifications are necessary to afford
23 goods, services, facilities, privileges, advantages, or
24 accommodations to individuals with disabilities, unless the
25 accommodation would work a fundamental alteration of those
26 services and facilities. 42 U.S.C. § 12182(b)(2)(A)(ii).
27 b. A failure to remove architectural barriers where such removal is
28 readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). Barriers are

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1 defined by reference to the ADAAG, found at 28 C.F.R., Part 36,

2 Appendix “D.”
3 c. A failure to make alterations in such a manner that, to the
4 maximum extent feasible, the altered portions of the facility are
5 readily accessible to and usable by individuals with disabilities,
6 including individuals who use wheelchairs or to ensure that, to the
7 maximum extent feasible, the path of travel to the altered area and
8 the bathrooms, telephones, and drinking fountains serving the
9 altered area, are readily accessible to and usable by individuals
10 with disabilities. 42 U.S.C. § 12183(a)(2).
11 65. Any business that provides parking spaces must provide accessible
12 parking spaces. 1991 Standards § 4.1.2(5); 2010 Standards § 208. To qualify
13 as a reserved handicap parking space, the space must be properly marked and
14 designated. Under the ADA, the method, color of marking, and length of the
15 parking space are to be addressed by State or local laws or regulations. See 36
16 C.F.R., Part 1191, § 502.3.3. Under the California Building Code, to properly
17 and effectively reserve a parking space for persons with disabilities, each
18 parking space must be at least 216 inches in length. CBC § 11B-502.2 Under
19 the California Building Code, to properly and effectively reserve a parking
20 space for persons with disabilities, each such space must be identified with a
21 reflectorized sign permanently posted adjacent to and visible from each stall
22 or space. CBC § 1129B.4. The sign must consist of the International Symbol
23 of Accessibility (‫ )׮‬in white on a blue background. Id. It cannot be smaller than
24 70 square inches and must be mounted so that there is a minimum of 80 inches
25 from the bottom of the sign to the parking space. Id. Signs must be posted so
26 that they cannot be obscured by a vehicle parking in the space. Id. An
27 additional sign or additional language below the symbol of accessibility must
28 state, “Minimum Fine $250” to ensure that the space remains available for

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1 persons with disabilities. Id. Another sign must be posted in a conspicuous

2 place at the entrance to the parking lot or immediately adjacent to each
3 handicap parking space, with lettering 1 inch in height, that clearly and
4 conspicuously warn that unauthorized vehicles parking in the handicap
5 parking spaces can be towed at the owner’s expense. Id. Additionally, the
6 surface of the handicap parking stall must have a profile view of a wheelchair
7 occupant (‫ )׮‬that is 36 inches by 36 inches. Id. And the surface of the access
8 aisle must have a blue border. CBC § 1129B.3. The words “NO PARKING” in
9 letters at least a foot high must be painted on the access aisle. Id.
10 66. Here, there was no blue border around an access aisle or parking space,
11 there was a faded “NO PARKING” lettering, no striping, no blue border, no
12 fine language, and the parking simply failed to comply.
13 67. Doorways must have a minimum clear opening of 32 inches with the
14 door open 90 degrees, measured between the face of the door and the opposite
15 stop. 1991 Standards § 4.13.5.
16 68. Here, the failure to provide the 32 inch wide doorway opening is a
17 violation of the ADA.
18 69. Where food or drink is served at counters exceeding 34 inches in height
19 for consumption by customers seated on stools or standing at the counter, a
20 portion of the main counter which is 60 inches in length minimum shall be
21 provided that is no higher than 34 inches above the floor or service shall be
22 available at accessible tables within the same area. 1991 Standards § 5.2 and
23 4.32; 2010 Standards § 226.1. If seating is provided for persons in
24 wheelchairs at the counter or bar, there must be knee clearance for wheelchair
25 users measuring at least 27 inches high, 30 inches wide, and 19 inches deep.
26 1991 Standards § 4.32.3; 2010 Standards § 306.3 (the 2010 Standards
27 actually require a different depth).
28 70. Here the failure to provide an accessible counter/bar is a violation of the

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1 law.
2 71. In areas used for transactions where counters have cash registers and
3 are provided for sales or distribution of goods or services to the public, at least
4 one of each type shall have a portion of the counter which is at least 36 inches
5 in length with a maximum height of 36 inches above the floor. 1991 Standards
6 § 7.2(1). Under the 2010 Standards, where the approach to the sales or service
7 counter is a parallel approach, such as in this case, there must be a portion of
8 the sales counter that is no higher than 36 inches above the floor and 36 inches
9 in width and must extend the same depth as the rest of the sales or service
10 counter top. 2010 Standards § 904.4 & 904.4.1.
11 72. Here, no such accessible counter has been provided in violation of the
12 ADA.
13 73. All doors to restrooms must have a minimum clear opening of 32 inches
14 with the door open 90 degrees, measured between the face of the door and the
15 opposite stop. 1991 Standards § 4.22.2; 4.13.5; 2010 Standards § 404.2.3.
16 74. Here, the failure to provide the 32 inch wide restroom doorway opening
17 is a violation of the ADA.
18 75. Where a toilet stall is provided in a restroom in existing facilities, the size
19 and arrangement of the standard toilet stall shall comply with either Fig. 30(a)
20 (standard stall) or Figure 30(b) (alternate stall). 1991 Standards § 4.17.3. A
21 standard stall must be at least 60 inches wide by 56 inches deep (if the toilet is
22 wall mounted) or 59 inches deep if the toilet is floor mounted. 1991 Standards
23 § Figure 30(a). An alternate stall must meet one of two configurations: either
24 (1) be exactly 36 inches by at least 66 inches deep (if the toilet is wall mounted)
25 or 69 inches (if the toilet is floor mounted) and provide front transfer grab bars
26 or (2) be at least 48 inches wide by at least by at least 66 inches deep (if the
27 toilet is wall mounted) or 69 inches (if the toilet is floor mounted) and provide
28 side transfer grab bars. 1991 Standards § Figure 30(b).

11

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1 76. Here, the toilet stall does not meet any option under the ADA and is in
2 violation of the law.
3 77. Mirrors shall be mounted with the bottom edge of the reflecting surface
4 no higher than 40 inches above the finish floor. 1991 Standards § 4.19.6;
5 2010 Standards § 603.3.
6 78. Here, the mirror was mounted higher than the maximum permitted and
7 is a violation of the ADA.
8 79. For a toilet to be considered accessible under the ADA, there must be
9 two grab bars on walls adjacent to the toilet to assist persons with disabilities
10 to transfer to the toilet. 1991 Standards § 4.16.4; 2010 Standards § 604.5.
11 80. Here, the failure to provide compliant grab bars is a violation.
12 81. If controls, dispensers, receptacles or other equipment is provided in a
13 restroom, they must be on an accessible route and be mounted so that their
14 highest operable parts are no greater than 54 inches above the floor. 1991
15 Standards § 4.22.7; 4.27.
16 82. Here, the failure to ensure that the wall mounted accessories met the
17 height requirement is a violation of the ADA.
18 83. Clear floor space that allows a forward or a parallel approach by a person
19 using a wheelchair shall be provided at controls, dispensers, receptacles, and
20 other operable equipment. 1991 Standards § 4.27.2; 2010 Standards § 309.2.
21 84. Here, the failure to provide such floor space is a violation of the law.
22 85. Hot water and drain pipes under lavatories must be insulated or
23 otherwise configured to protect against contact. 1991 Standards § 4.19.4;
24 2010 Standards §606.5.
25 86. Here, the failure to wrap the plumbing underneath the sink is a violation
26 of the ADA.
27 87. A public accommodation must maintain in operable working condition
28 those features of its facilities and equipment that are required to be readily

12

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1 accessible to and usable by persons with disabilities. 28 C.F.R. § 36.211(a).

2 88. Here, the failure to ensure that the accessible facilities were available
3 and ready to be used by the plaintiff is a violation of the law.
4 89. Given its location and options, plaintiff will continue to desire to
5 patronize the Jointed Billiards but he has been and will continue to be
6 discriminated against due to the lack of accessible facilities and, therefore,
7 seeks injunctive relief to remove the barriers.
8
9 II. SECOND CAUSE OF ACTION: VIOLATION OF THE UNRUH CIVIL
10 RIGHTS ACT (On behalf of Plaintiff and against all Defendants.) (Cal. Civ.
11 Code § 51-53.)
12 90. Plaintiff repleads and incorporates by reference, as if fully set forth
13 again herein, the allegations contained in all prior paragraphs of this
14 complaint. The Unruh Civil Rights Act (“Unruh Act”) guarantees, inter alia,
15 that persons with disabilities are entitled to full and equal accommodations,
16 advantages, facilities, privileges, or services in all business establishment of
17 every kind whatsoever within the jurisdiction of the State of California. Cal.
18 Civ. Code §51(b).
19 91. The Unruh Act also provides that a violation of the ADA, or of California
20 state accessibility regulations, is a violation of the Unruh Act. Cal. Civ. Code,
21 § 51(f); Arnold v. United Artists Theatre Circuit, Inc., 866 F.Supp. 433, 439
22 (N.D.Cal.1994).
23 92. Defendants’ acts and omissions, as herein alleged, have violated the
24 Unruh Act by, inter alia, denying, or aiding, or inciting the denial of, Plaintiff’s
25 rights to full and equal use of the accommodations, advantages, facilities,
26 privileges, or services offered.
27 93. Defendants’ acts and omissions, as herein alleged, have also violated
28 the Unruh Act by denying, or aiding or inciting the denial of, Plaintiff’s right to

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1 equal access arising from the provisions of the ADA (see Plaintiff’s First Cause
2 of Action).
3 94. Because the violation of the Unruh Civil Rights Act resulted in difficulty,
4 discomfort or embarrassment for the plaintiff, the defendants are also each
5 responsible for statutory damages, i.e., a civil penalty. (Civ. Code § 55.56(a)-
6 (c).)
7 95. Although the plaintiff was markedly frustrated by facing discriminatory
8 barriers and this frustration possibly qualifies as an emotional distress injury,
9 even manifesting itself with minor and fleeting physical symptoms, the
10 plaintiff does not value this very modest frustration and physical personal
11 injury greater than the amount of the statutory damages.
12
13 PRAYER:
14 Wherefore, Plaintiff prays that this Court award damages and provide
15 relief as follows:
16 1. For injunctive relief, compelling Defendants to comply with the
17 Americans with Disabilities Act and the Unruh Civil Rights Act. Note: the
18 plaintiff is not invoking section 55 of the California Civil Code and is not
19 seeking injunctive relief under the Disabled Persons Act at all.
20 2. Damages under the Unruh Civil Rights Act, which provides for actual
21 damages and a statutory minimum of $4,000.
22 3. Reasonable attorney fees, litigation expenses and costs of suit, pursuant
23 to 42 U.S.C. § 12205; and Cal. Civ. Code §§ 52.
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1 Dated: April 16, 2018 CENTER FOR DISABILITY ACCESS

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4 By:
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Chris Carson, Esq.
6 Attorney for plaintiff
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