                                                                              FILED
                           NOT FOR PUBLICATION                                APR 01 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SANDI RUSH,                                      No. 11-56763

              Plaintiff - Appellee,              D.C. No. 3:10-cv-00877-BEN-
                                                 WMC
  v.

HIGHGROVE RESTAURANTS, INC.,                     MEMORANDUM*
DBA Denny’s # 7041; ALLEN E. HOM,

              Defendants - Appellants.



SANDI RUSH,                                      No. 11-57226

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00877-BEN-
                                                 WMC
  v.

HIGHGROVE RESTAURANTS, INC.,
DBA Denny’s # 7041; ALLEN E. HOM,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Southern District of California
                   Roger T. Benitez, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted March 4, 2013**
                               Pasadena, California

Before: HAWKINS, THOMAS, and HURWITZ, Circuit Judges.

      The district court granted summary judgment to defendant Highgrove

Restaurants, Inc., on sixteen of the seventeen Americans with Disabilities Act

(“ADA”) claims (and the related California law claims) asserted in plaintiff Sandi

Rush’s first amended complaint. The court granted summary judgment to Rush on her

remaining claim, finding that handicapped accessible parking spaces at Highgrove’s

restaurant violated current Americans with Disabilities Act Accessibility Guidelines

(“ADAAG”). Both Highgrove and Rush appealed. We have jurisdiction pursuant to

28 U.S.C. § 1291. We vacate the district court’s summary judgment against

Highgrove and remand, but otherwise affirm.

      1. Highgrove is required under the ADA only to make “readily achievable”

modifications to an existing facility that complied with the Act when constructed. 42

U.S.C. § 12182(b)(2)(A)(iv); see 28 C.F.R. § 36.104 (defining an existing facility as

“a facility in existence on any given date, without regard to whether the facility may

also be considered newly constructed or altered under this part”); 28 C.F.R. pt. 36,



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
app. A (“A newly constructed facility remains subject to the accessibility standards

in effect at the time of design and construction, with respect to those elements for

which, at that time, there were applicable ADA Standards. That same facility,

however, after construction, is also an existing facility, and subject to the public

accommodation’s continuing obligation to remove barriers where it is readily

achievable to do so.”). In granting summary judgment, the district court erroneously

treated Highgrove’s restaurant, built in 1997, as a new construction automatically

subject to the requirements of the current ADAAG, instead of considering whether

modifications to the existing facility were “readily achievable.”

      2. Rush’s briefing on appeal does not contend that the district court erred in

dismissing the sixteen other counts of her first amended complaint. Instead, she briefs

at length two issues identified in a Joint Petition for Initial Hearing En Banc that was

previously denied by this Court.

      But neither issue is relevant to this case in its current posture. First, Rush

contends that Oliver v. Ralphs Grocery Co., 654 F.3d 903 (9th Cir. 2011), which

discusses the particularity of pleading required in an ADA complaint, conflicts with

Skaff v. Meridien North America Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007).

The district court, however, did not dismiss any counts in Rush’s first amended




                                           3
complaint for failure to plead with particularity.1 Rush’s second argument concerns

Oliver’s treatment of van accessible signage; however, because the parties stipulated

that this issue was remediated, the district court correctly dismissed the relevant count

of the first amended complaint as moot.

      We therefore vacate the portion of judgment below in favor of Rush and

remand for the district court to determine in the first instance (1) whether the

restaurant’s parking spaces met the requirements of the version of the ADAAG in

effect in 1997, and (2) if so, whether adapting the spaces to meet current standards is

“readily achievable.” We affirm the balance of the district court’s judgment.

      Highgrove is awarded its costs on appeal.

      VACATED IN PART AND AFFIRMED IN PART.




1
       Perhaps Rush is objecting to the district court’s refusal to consider additional
alleged violations first identified by her expert in an untimely affidavit submitted in
response to Highgrove’s motion for summary judgment. But because none of these
violations were the subject of Rush’s first amended complaint, and she did not seek
leave to file a second amended complaint, these additional claims are not before us.

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