ADA Litigant Did Not Need to Show Honest Intent to Transact

Monday, October 27, 2025

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Ninth Circuit:

ADA Litigant Did Not Need to Show Honest Intent to Transact

Opinion Says Rule Requiring Party Alleging Violation of Disability-Access Laws to Show Bona Fide Desire to Use Services Only Applies Where Barriers Actually Deterred Engagement, Inapplicable if Purchases Made

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals held Friday that case law establishing that a plaintiff who pursues statutory damages against a business under California’s Unruh Civil Rights Act, based on unequal access, must show a bona fide intent to use the defendant’s services only governs if an allegedly infringing barrier actually deterred engagement and is inapplicable where the disabled party actually transacted with the business.

Saying that the plaintiff’s admission that his “primary motivation in visiting the [s]tore was to obtain a settlement or damages” was irrelevant, as was the fact that he had filed approximately 70 lawsuits under the federal Americans with Disabilities Act (“ADA”), the court opined that any appeal to curtail serial litigation in this context must be directed to the Legislature and not to the courts.

Plaintiffs in disability discrimination actions in federal court in California typically sue both under the ADA, which has no provision for damages, and the Unruh Act, which does. Friday’s opinion affirms a $4,000 award of statutory damages.

Remodeling of Ramp

Circuit Judge Jennifer Sung authored Friday’s opinion, which also declared that a store’s voluntary remodeling of an access ramp connecting the parking lot to the store—performed after the plaintiff filed a complaint asserting difficulties in getting inside—established that the removal of the offending barrier was “readily achievable” as required by the ADA for remediation to be mandated.

Sung acknowledged that, under governing case law, a plaintiff bears an initial burden to articulate a plausible plan for removal and to show that the costs of the proposal do not outweigh the benefits. However, she said:

“Because…voluntary remodeling demonstrates that barrier removal was readily achievable, nothing further was required of [the plaintiff]. Under these circumstances, it does not matter that [the plaintiff] did not provide evidence to satisfy his initial burden.”

Complaint Filed

The dispute arose after plaintiff Darren Gilbert filed an October 2021 complaint against 7-Eleven Inc. and the operators of the company’s store in a suburb of Sacramento requesting injunctive relief under the ADA and statutory damages under the Unruh Act.

That statute, codified at Civil Code §51 et seq., provides that [a]ll persons within the jurisdiction of this state are free and equal, and no matter…their…disability [or] medical condition…are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments” and specifies that violators are liable for “up to…three times the amount of actual damage but in no case less than…$4,000.”

Under §55.56(c), a violation of the ADA “personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation.”

In his complaint, Gilbert alleged that he encountered difficulty accessing the store in question on Aug. 3, 2021, saying:

“Plaintiff could not find a van-accessible parking stall in the Facility’s parking lot, and parked in a standard accessible parking stall. There was no access aisle on the passenger side, which he requires to deploy his ramp to unload his wheelchair from the vehicle, and as a result he had to use his prosthetic leg instead of his wheelchair to enter the Facility which was more difficult.”

Excessively Sloped

He also claimed that the “access aisle to the driver’s side of [his] vehicle was excessively sloped up to the entry walkway” and it was “difficult” for him to make his way back to his van” after shopping.

Following a two-day bench trial in September 2023, Senior District Court Judge William B. Shubb of the Eastern District of California concluded that, although the defendants’ voluntary removal of the challenged barriers mooted Gilbert’s claim for injunctive relief, the plaintiff had “established that 7-Eleven violated the ADA with regard to the route of travel from the designated accessible parking to the [s]tore,” awarding statutory damages.

After Gilbert died in July 2024, his successors in interest were substituted as the plaintiffs/appellees.

Friday’s decision, joined in by Circuit Judge Gabriel P. Sanchez and Senior Circuit Judge Richard R. Clifton, declares:

“[W]e affirm the district court’s award of statutory damages for Gilbert’s claim that 7-Eleven violated…the Unruh Act. We remand to the district court to address any issues raised by the substitution of Gilbert’s successors during the pendency of this appeal.”

The court ordered 7-Eleven to pay costs on appeal.

ADA Claim

As to the plaintiff’s assertion that the store was in violation of the ADA, Sung explained:

“The district court concluded that Gilbert ‘personally encountered a lack of accessible route of travel from the designated accessible parking to the [s]tore’ because the location of the van-accessible parking space, the slope of the curb ramp, and the depth of the ramp’s top landing violated the applicable ADA Accessibility Guidelines. On appeal, 7 Eleven does not dispute that Gilbert personally encountered these barriers. 7-Eleven instead contends that Gilbert was further required to prove that his experience at the store while ambulating with a prosthetic leg was ‘different’ than that of ‘any other able-bodied person.’ ”

Rejecting this characterization of the law, she said “no such evidentiary burden exists” and remarked that “the record plainly shows that Gilbert personally encountered barriers that relate to his disability as a mobility-impaired individual who uses a prosthetic leg and wheelchair to ambulate.”

She pointed out that Title III of the ADA requires removal of an architectural barrier “where such removal is readily achievable” and acknowledged that the plaintiff bears the initial burden of showing a cost-benefit analysis associated with any proposal for remediation.

Unpersuaded that the requirement mandated that Gilbert offer some assessment of the difficulty associated with fixing the problem, she reasoned that “[w]e do not apply the burden-shifting framework formalistically.”

Unruh Act Violation

Addressing 7-Eleven’s argument that the plaintiff lacked standing to bring an Unruh Civil Rights Act claim even if he had established an ADA violation, the jurist wrote:

“California courts have long held that an individual who personally encounters an ADA violation while transacting with a brick-and-mortar business has standing to bring an Unruh Act claim.”

The defendants pointed to the 2019 California Supreme Court case of White v. Square Inc., which addressed whether standing under the act extends to a plaintiff who intended to transact with an online business but who failed to engage due to terms and conditions that allegedly denied him full and equal access. In that case, the high court held that a plaintiff who had a bona fide intent to transact may pursue his claims in court.

Saying that White was inapplicable, Sung commented:

“[T[he California Supreme Court in White never stated, much less implied, that bona fide intent is a requirement to establish standing for all Unruh Act claims. Rather, the Supreme Court made clear that it was adopting a fact- and claim-specific standing rule that does not apply here.”

Invitation to Extend

She continued:

“[T]o the extent 7-Eleven contends that we should extend the standing rule adopted in White to the circumstances of this case, we decline that invitation….Because the California Supreme Court has not yet addressed whether that standing rule should be extended to other types of Unruh Act claims, we must ‘predict how the state high court would resolve’ that question….”

Noting that the “reasoning in White makes clear that [the court] would not require a plaintiff to show they had a bona fide intent to use the defendant’s services where, as here, the plaintiff actually transacted with the defendant’s business,” Sung said that “[r]equiring such a plaintiff to also show they visited the business ‘with intent to use its services’ to establish standing would be manifestly inconsistent with the plain text of the Unruh Act….”

The judge added:

“Because the state legislature plainly chose not to include an intent requirement…, courts may not add such a requirement without contravening the broad deterrent and remedial purposes of the Unruh Act and California’s separation-of-power principles, which mandate that courts refrain from creating extra-statutory barriers to statutory remedies.”

The case is Gilbert v. 7-Eleven Inc., 23-4045.