                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 18 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ALMA CLARISA HERNANDEZ,                          No. 13-17345

              Plaintiff - Appellant,             D.C. No. 4:11-cv-02247-YGR

 v.
                                                 MEMORANDUM*
POLANCO ENTERPRISES, INC.,

              Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                     Argued and Submitted December 11, 2015
                             San Francisco, California

Before: CLIFTON and OWENS, Circuit Judges and SMITH,** Chief District
Judge.

      Plaintiff Alma Clarisa Hernandez appeals from the district court’s summary

judgment in favor of Defendant Polanco Enterprises. The district court appears to

have found that Hernandez’s claim for damages under California’s Unruh Civil

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
Rights Act, codified at section 51 et seq. of the California Civil Code, was

necessarily mooted when her corresponding claim under Title III of the Americans

with Disabilities Act, codified at 42 U.S.C. § 12181 et seq., was mooted. We have

jurisdiction under 28 U.S.C. § 1291. We reverse and remand.

      Hernandez, an individual with a disability who uses a wheelchair, visited a

gas station owned by Polanco. She was unable to enter the gas station’s

convenience store because the landing at the entrance was too narrow. Before the

district court ruled on the parties’ cross-motions for summary judgment, Polanco

removed many of the barriers Hernandez had identified, including expanding the

size of the landing. It appears that the district court then dismissed all of

Hernandez’s federal and state-law claims related to the remediated barriers.1

      Regarding the size of the entrance landing, the district court erred when it

held that Hernandez’s claim for damages under the Unruh Act was necessarily

mooted when the related ADA claim was mooted. Under Title III of the ADA, a

plaintiff may only seek injunctive relief for the removal of an existing accessability

barrier. See 42 U.S.C. § 12188. In contrast, the Unruh Act permits damages based

on a plaintiff’s personal encounter with an accessibility barrier on a past occasion;



      1
        The district court held that Polanco had removed a number of barriers, but
the only barrier at issue on appeal is the size of the entrance landing.

                                           2
as such, subsequent removal of the barrier is irrelevant. See Cal. Civ. Code §

55.56(a)-(c).

      Hernandez seeks statutory damages under the Unruh Act based on an

underlying ADA violation. See Cal. Civ. Code § 51(f). Under California law, she

must prove—in addition to the ADA violation—that she “personally encountered

the violation [of a construction-related accessibility standard] on a particular

occasion” and that it caused her “difficulty, discomfort, or embarrassment,” thus

denying her full and equal access to a place of public accommodation. Cal. Civ.

Code § 55.56(a)-(c). We REVERSE and REMAND for the district court to

determine, in the first instance, whether Hernandez is entitled to statutory damages

under the Unruh Act with respect to the size of the entrance landing.

      REVERSED AND REMANDED.




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