                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 06 2014

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



                            FOR THE NINTH CIRCUIT


WILLIAM C. COHEN, an individual,                 No. 13-55079

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00156-RGK-
                                                 PJW
  v.

CITY OF CULVER CITY and                          MEMORANDUM*
EXCHANGE CLUB OF CULVER CITY,
a California corporation,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                     Argued and Submitted December 2, 2013
                              Pasadena, California

Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.

       William Cohen appeals the district court’s grant of summary judgment for

the defendants in this action under the federal Americans with Disabilities Act of

1990 (ADA) and California statutes. Cohen’s claims arise from injuries he



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sustained when a vendor’s display at a public street fair blocked a disabled access

curb ramp, leading Cohen to trip and fall as he attempted to step up on to the

sidewalk. In a published opinion accompanying this disposition, we reverse the

district court’s grant of summary judgment for the City of Culver City as to

Cohen’s claims under the ADA and two California statutes: the Disabled Persons

Act (DPA) and the Unruh Civil Rights Act. Here, we address Cohen’s claims

against the Exchange Club of Culver City (“the ECCC”) under the DPA and the

Unruh Act. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse in

part and affirm in part.

      1.     The district court erred by granting summary judgment for the ECCC

on Cohen’s DPA claim on the ground that Cohen was not “denied access to any

facilities.” A plaintiff may be denied full and equal access to a facility without

having been denied physical access it to it entirely. See Madden v. Del Taco, 58

Cal. Rptr. 3d 313, 318 (Cal. Ct. App. 2007). Here, Cohen did not simply decline to

use an available disabled access route of which he was aware. See Urhausen v.

Longs Drug Stores Cal., Inc., 65 Cal. Rptr. 3d 838, 844 & n.6 (Cal. Ct. App. 2007).

Rather, he sustained injuries because he was unable to use the only disabled access

route that he knew about. These injuries may be evidence that Cohen was denied

full and equal access under the DPA. See id. at 845 & n.7.
      2.     The district court did not err in granting summary judgment for the

ECCC on Cohen’s Unruh Act claim. We may affirm the district court on any basis

supported by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th

Cir. 2009). A plaintiff may prove a violation of the Unruh Act solely by proving a

violation of the ADA, without proving intentional discrimination. See Munson v.

Del Taco, Inc., 208 P.3d 623, 625 (Cal. 2009). If his Unruh Act claim is separate

from an ADA claim, however, the plaintiff must prove intentional discrimination.

See id. at 626; Wilkins-Jones v. Cnty. of Alameda, 859 F. Supp. 2d 1039, 1051

(N.D. Cal. 2012). Cohen does not appeal the district court’s ruling that the ECCC

cannot be liable under Title II of the ADA because it is not a public entity or an

instrumentality thereof, and Cohen did not raise a Title III claim against the ECCC.

Cohen must therefore prove intentional discrimination to prevail on this

freestanding Unruh Act claim. Because no evidence in the record supports an

inference that the ECCC intentionally discriminated against Cohen, summary

judgment in its favor is proper.

      Each party shall bear its own costs.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
                                                                             FILED
Cohen v. City of Culver City, No. 13-55079                                    JUN 06 2014
Rawlinson, Circuit Judge, dissenting in part:                             MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

      I agree with the district court’s grant of summary judgment in favor of

defendant Exchange Club of Culver City on William Cohen’s claims predicated on

the Disabled Persons Act (DPA) and his claims predicated on the Unruh Civil

Rights Act.

      I do not agree that the sidewalk Cohen sought to use was “the only disabled

access route that he knew about.” As the district court noted, there was undisputed

evidence in the record that two wheelchair access ramps were located 20 yards east

and 90 yards west of the location where Cohen chose to access the sidewalk.

Cohen offered no explanation regarding his failure to utilize either of these

alternative access routes and never expressed any lack of knowledge of their

existence. California courts have not found denial of equal access where an

alternative access route is available. See Urhausen v. Longs Drug Stores

California, Inc., 155 Cal. App. 4th 254, 265-66 (2007). Therefore, I respectfully

dissent from that portion of the disposition reversing the district court’s grant of

summary judgment on Cohen’s claim under the DPA.
