                                                                               FILED
                        UNITED STATES COURT OF APPEALS
                                                                                JUL 16 2020
                               FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS




NEHEMIAH KONG,                                        No. 19-55465

                 Plaintiff-Appellant,                 D.C. No.
                                                      2:18-cv-02933-JFW-FFM
   v.                                                 Central District of California,
                                                      Los Angeles
SHAMSI SHIRAZI-FARD, in individual
and representative capacity as trustee of the         ORDER
Shamsi-Fard Trust dated February 25, 1977;
MICHAEL CHRISTOFORAKIS,

                 Defendants-Appellees,

and

VESTAKIS, VESTAKIS AND
CHRISTOFORAKIS, a General Partnership;
DOES, 1-10,

                                   Defendants.

Before: OWENS and BADE, Circuit Judges, and MOSKOWITZ,* District Judge.

        The Court construes Appellees’ motion for reconsideration (Docket Entry

No. 38) as a petition for panel rehearing under Fed. R. App. P. 40. The petition is

GRANTED. The Court will issue an amended memorandum disposition. No

further action is required from the parties.

        *
              The Honorable Barry Ted Moskowitz, United States District Judge for the
Southern District of California, sitting by designation.
                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 16 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NEHEMIAH KONG,                                  No.    19-55465

                Plaintiff-Appellant,            D.C. No.
                                                2:18-CV-02933-JFW-FFM
 v.

SHAMSI SHIRAZI-FARD, in individual
and representative capacity as trustee of the   AMENDED MEMORANDUM*
Shamsi-Fard Trust dated February 25, 1977;
MICHAEL CHRISTOFORAKIS,

                Defendants-Appellees,

and

VESTAKIS, VESTAKIS AND
CHRISTOFORAKIS, a General Partnership;
DOES, 1-10,

                Defendants.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                              Submitted May 4, 2020**
                                Pasadena, California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: OWENS and BADE, Circuit Judges, and MOSKOWITZ,*** District
Judge.

      Nehemiah Kong, an individual with a disability, sued Appellees Shamsi

Shirazi-Fard and Michael Christoforakis under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., alleging twenty-one architectural features at

the restaurant Mike’s Classic Burgers (“Mike’s”) that rendered Mike’s inaccessible

for a disabled person. Architectural standards for public accommodations like

Mike’s are set forth in the ADA Standards for Accessible Design, 28 C.F.R. pt. 36,

app. D; 36 C.F.R. pt. 1191, apps. B, D; 28 C.F.R. § 36.104. As an “existing

facilit[y],” Mike’s must comply with these standards to the extent that they are

“readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv); 28 C.F.R. § 36.304(a).

Appellees remedied nearly every ADA-noncompliant feature identified in Kong’s

complaint. This appeal concerns the remaining one: Mike’s front entrance.

      Mike’s has two public entrances: one in the front and one on the west side of

the building. Kong’s complaint identified with specificity how each entrance was

deficient under the ADA. Second Amended Complaint ¶¶ 21c, o–q. But after

Appellees brought the side entrance into compliance, they moved for summary

judgment, arguing that Kong had only sought a means of entering the restaurant,



      ***
            The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.

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not two accessible entrances. The district court agreed and reasoned that Kong’s

complaint did not give Appellees fair notice that he wanted both entrances ADA-

compliant. The court entered summary judgment for Appellees and against Kong.

It also declined supplemental jurisdiction over Kong’s companion state law claim

for violation of the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. Kong

appeals these rulings. We vacate and remand for proceedings consistent with this

disposition.

      We review de novo a district court’s order on summary judgment and its

determination of whether a complaint provides fair notice. Pickern v. Pier 1

Imports (U.S.), Inc., 457 F.3d 963, 966, 968 (9th Cir. 2006) (citations omitted).

The decision to decline supplemental jurisdiction is reviewed for abuse of

discretion. Binder v. Gillespie, 184 F.3d 1059, 1066 (9th Cir. 1999).

      A complaint must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and “give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citation omitted). A heightened pleading standard may be imposed only by

legislative directive, not by judicial interpretation. Swierkiewicz v. Sorema N. A.,

534 U.S. 506, 515 (2002). The Federal Rules of Civil Procedure do not impose a

heightened pleading standard for ADA cases and no Ninth Circuit opinion may be


                                            3
read to do so.

      Kong provided specific “disclosures of barriers in a properly pleaded

complaint” and thus gave Appellees fair notice under Rule 8. Oliver v. Ralphs

Grocery Co., 654 F.3d 903, 909 (9th Cir. 2011). Though “[s]pecific facts are not

necessary,” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 841 (9th

Cir. 2007) (per curiam) (citation omitted), Kong’s complaint details every

inadequacy in the two entrances with precise measurements. This meets the

requirement to identify “the allegedly non-compliant architectural features at the

facility.” Oliver, 654 F.3d at 908 (citing Pickern, 457 F.3d at 968). Kong did not

plead ADA violations hypothetically, Pickern, 457 F.3d at 968–69, nor did he raise

a wholly new legal theory at summary judgment, Coleman v. Quaker Oats Co.,

232 F.3d 1271, 1294 (9th Cir. 2000). Instead, his claim was transparent and

remained consistent: the front entrance was ADA-noncompliant and needed to be

remedied. Kong did not lead the Appellees or the district court into believing that

he was only seeking one accessible entrance. For example, in paragraph 22 of the

Second Amended Complaint, Kong stated that he “seeks to have all ADA

violations related to his disability removed so that he enjoys full and equal access

at Mike’s Classic Burgers.” Appellees had fair notice of this claim. The district

court erred in concluding otherwise.

      Appellees ask us to affirm summary judgment on the alternative ground that


                                          4
one accessible public entrance at Mike’s is sufficient under the ADA Standards.

We cannot do so. It is true that not every feature of a facility must be accessible.

But the 2010 ADA Standards set forth the proper accessibility ratios for a number

of common features. For public entrances, that ratio is 60 percent. 36 C.F.R. pt.

1191, app. C, F206.4.1; 36 C.F.R. pt. 1191, app. B, § 206.4.1. While 60 percent of

two entrances is not a whole number, the Department of Justice has issued

guidance indicating that public accommodations with only two entrances must

make both of them accessible. U.S. DEP’T OF JUSTICE, GUIDANCE ON THE 2010

ADA STANDARDS FOR ACCESSIBLE DESIGN 82–83 (2010). Appellees are not

protected by the safe harbor provision, 28 C.F.R. § 36.406(a), because Mike’s

public entrances were not in compliance with the 1991 ADA Standards by the

applicable compliance date. Even though Mike’s was built before the passage of

the ADA and was not altered until this lawsuit, Mike’s must make both of its

entrances accessible if it would be “readily achievable” to do so. 42 U.S.C. §

12182(b)(2)(A)(iv).

      Because Kong’s federal ADA claim remains, we also vacate the district

court’s order declining to exercise supplemental jurisdiction over the parallel

California Unruh Act claim.

      VACATED AND REMANDED. COSTS AWARDED TO

APPELLANT.


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