                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             JAN 02 2018
                      UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                              FOR THE NINTH CIRCUIT


GILBERT SALINAS,                                 No. 16-55564

                Plaintiff - Appellee,            DC No. CV 14-1233 CJC

  v.
                                                 MEMORANDUM*
CBC RESTAURANT CORPORATION,
INC.,

                Defendant - Appellant.


                     Appeal from the United States District Court
                        for the Central District of California
                     Cormac J. Carney, District Judge, Presiding

                            Submitted November 6, 2017**
                                Pasadena, California

Before:         TASHIMA and BERZON, Circuit Judges, and PAYNE, Senior
                District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
          ***
             The Honorable Robert E. Payne, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
      Defendant-Appellant CBC Restaurant Corporation, Inc., (“CBC”) appeals

from the district court’s denial of its Fed. R. Civ. P. 60(b) (“Rule 60(b)”) motion

for relief from the judgment. The underlying judgment was summary judgment in

favor of Plaintiff-Appellee Gilbert Salinas (“Salinas”), who contended that CBC’s

check-out counter violated Americans with Disabilities Act (“ADA”) Accessibility

Guidelines (“ADAAG”). We have jurisdiction under 28 U.S.C. § 1291. We

review for abuse of discretion, Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th

Cir. 2004), and we affirm.

      1.     We reject CBC’s argument that the district court made either mistakes

of fact or of law, warranting relief from the judgment under Rule 60(b)(1). The

relevant dimensions and construction of the check-out counter in CBC’s restaurant

were clearly presented in dozens of photographs in the record. The facts are clear,

as was the district court’s application of the applicable ADAAG provision to the

relevant facts. Further, CBC has not cited any authority contrary to the district

court’s interpretation of the ADAAG guideline. The district court did not abuse its

discretion in determining that no mistake of fact or law existed that entitled CBC to

relief from the judgment under Rule 60(b)(1).

      2.     We also reject CBC’s contention under Rule 60(b)(3) that Salinas

misrepresented material facts and misrepresented the requirements of ADAAG

                                          2
§ 7.2(1), preventing CBC from “fully and fairly presenting [its] case.” Maudlin v.

M/V Peacock (In re M/V Peacock), 809 F.2d 1403, 1405 (9th Cir. 1987).

      CBC had full access to the counter in its own restaurant, and had a fair

opportunity to present its case before the district court. Although the district court

found Salinas’ arguments more persuasive, it was not due to any misrepresentation

of facts or law by Salinas. The district court did not abuse its discretion in denying

CBC’s motion for relief from the judgment under Rule 60(b)(3).

      3.     Finally, we reject CBC’s contention that it is entitled to judgment

under the catchall provision of Rule 60(b)(6). CBC argues that judgment in favor

of Salinas would result in injustice because other businesses that have similar

checkout counter configurations could be subject to ADA claims. But the relevant

inquiry is whether the district court’s interpretation of ADAAG § 7.2(1) was

erroneous. CBC has failed to establish that “manifest injustice” would result to it

from the judgment. Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103

(9th Cir. 2006) (internal quotation marks omitted).

      CBC also fails to show any “extraordinary circumstances” that prevented it

“from taking timely action to prevent or correct” a judgment that it claims was

erroneous. Id. CBC had a full and fair opportunity to oppose Salinas’ motion for

summary judgement. CBC also had the opportunity to file a direct appeal

                                           3
challenging the underlying judgment, which it did not do. CBC’s failure to do so

does not amount to an extraordinary circumstance justifying relief that is intended

to be used only sparingly. The district court did not abuse its discretion in denying

CBC relief from the judgment under Rule 60(b)(6).

                                      •   !    •

      None of CBC’s arguments meets the high standard required for relief from

judgment under Rule 60(b). The district court did not abuse its discretion in

denying relief.

      AFFIRMED.




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