                                  NOT FOR PUBLICATION                    FILED
                                                                         MAR 22 2017
                        UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                                  FOR THE NINTH CIRCUIT


CRAIG YATES,                                      No. 15-15083
                                                       15-15134
         Plaintiff-Appellant, .
         Cross-Appellee                           D.C. No. 3:11-cv-01950-LB
    v.

SWEET POTATO ENTERPRISE, INC., a                  MEMORANDUM*
California Corporation d/b/a Popeyes Store
#2794, KUAN NG, Trustee of the Kuan L.
Ng and Helen L. Ng Revocable Trust of
1993; HELEN NG, Trustee of the Kuan L.
Ng and Helen L. Ng Revocable Trust of
1993,

     Defendants-Appellees,
     Cross-Appellants

                      Appeals from the United States District Court
                         for the Northern District of California
                      Laurel D. Beeler, Magistrate Judge, Presiding

                        Argued and Submitted December 12, 2016
                                San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and BOULWARE,** District
Judge.

*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
       The Honorable Richard F. Boulware, United States District Judge for the
District of Nevada, sitting by designation.
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       Craig Yates sued the owners and operators of a Popeyes Chicken store in

San Francisco, alleging the presence of unlawful architectural barriers in violation

of the Americans with Disabilities Act (“ADA”), the California Unruh Civil Rights

Act (“Unruh Act”), and the California Disabled Persons Act (“CDPA”). He sought

injunctive relief under the ADA and the CDPA, arguing that the entrance door to

the store was inaccessible and that remediation is readily achievable by installation

of a power door. He also sought statutory damages on his state claims for each of

thirteen visits to the store between March 8, 2011, and August 21, 2013.

       The district court found that installation of the power door was readily

achievable, but denied injunctive relief mandating installation of the door on the

ground that a sign and employee assistance fixed the problem and mooted the

claim. The district court found that Yates was entitled to damages for the ADA

violation as incorporated by the California acts, but that California law barred

recovery for all but the first visit, and entered judgment in favor of Yates for

$4,000. We affirm in part and reverse in part.

       1. Under the ADA, “[d]iscrimination includes . . . a failure to remove

architectural barriers . . . in existing facilities . . . where such removal is readily

achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA defines “readily

achievable” as “easily accomplishable and able to be carried out without much

difficulty or expense.” Id. § 12181(9). The district court properly held that the

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installation of the power door was readily achievable as of October 2014, the date

of the bench trial. Indeed, the type of proposed installation in this case—

“[i]nstalling accessible door hardware”—is one of the examples provided in the

federal regulations as to the type of remedial step which might be “easily

accomplishable and able to be carried out without much difficulty or expense.” 28

C.F.R. § 36.304(a), (b)(11). The district court appropriately “credit[ed] and

accept[ed] [Sweet Potato’s] representation that [it] will install the power door

shortly.” That representation makes clear that the district court considered the

factors under Section 12181(9) and found that Appellees had the capacity and

financial wherewithal to install the power door, for a maximum of $5,850, with

readily obtainable financing in October 2014.

      2. The district court did err, however, in its finding that remediation of the

barrier was readily achievable during Yates’ earlier visits. The readily achievable

analysis is necessarily time sensitive because of its consideration of cost and

practicality. The district court did not make sufficient factual findings to support

its determination that the remediation of the barrier was readily achievable between

March 8, 2011 and August 21, 2013. The district court did not make any findings

about the financial condition of Appellees during this time. The district court also

did not reference any affirmative statements from the Appellees about their




                                          3
intentions to remediate, to support a finding that such remediation was readily

achievable at the time of any of the visits by Yates.

      3. As the district court’s only basis for the award of damages under the

California Acts is the sole violation of the ADA found by the district court—the

failure to remove a barrier where such removal was “readily achievable” in

October 2014—the district court erred in its imposition of damages. The district

court made no explicit findings that removal of the barrier was readily achievable

at the time of Mr. Yates’ first visit in March 2011—the visit upon which the

damages award was based—or at the time of any subsequent visit. We therefore

vacate the award of damages, and remand for reconsideration of statutory damages.

      4. Having found that installation of the power door was readily achievable

in October 2014, the district court erred in denying an injunction on the ground that

the mechanism for employee assistance was a sufficient solution that remedied the

problem. “[A] facility may only substitute alternatives to barrier removal where

‘as a result of compliance with the alterations requirements specified in paragraph

(d)(1) of this section, the measures required to remove a barrier would not be

readily achievable.’” Molski v. Foley Estates Vineyard & Winery, LLC, 531 F.3d

1043, 1050 (9th Cir. 2008) (quoting 28 C.F.R. § 36.304(d)(2)). Having found that

the remediation of the barrier was readily achievable in October 2014 through the

installation of the power door, the district court was required to issue an injunction

                                          4
for the removal of the barrier and the installation of the power door. See id. On

remand, the district court shall determine the appropriate nature of the injunction to

be imposed and whether the imposition of an injunction to install the power door

has now been mooted by the adequate and appropriate installation of the power

door.

        5. The issue of attorney fees was not considered or ruled on by the district

court, and we decline to consider it for the first time here.

        Each party shall bear its own costs on appeal.

        AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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