Alma Clarisa HERNANDEZ, Plaintiff-Appellant, v. POLANCO ENTERPRISES, INC., Defendant-Appellee, 624 F. App'x 964

MEMORANDUM 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 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 remedi-ated barriers. 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 accessibility barrier. See 42 U.S.C. § 12188.

In contrast, the Unruh Act permits damages based on a plaintiffs personal encounter with an accessibility barrier on a past occasion; 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.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . 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.