216 F.3d 827 (9th Cir. 2000), 99-55580, Botosan v. Paul Mcnally Reality

Docket Nº:99-55580
Citation:216 F.3d 827
Party Name:KORNEL BOTOSAN, Plaintiff-Appellee, v. PAUL MCNALLY REALTY, a California corporation; CHUCK N. RUSTON, Trustee of Trust U/D/T Dated Eleven October 1990; JUDITH A. RUSTON, Trustee of Trust U/D/T Dated Eleven October 1990, Defendants-Appellants.
Case Date:June 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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216 F.3d 827 (9th Cir. 2000)

KORNEL BOTOSAN, Plaintiff-Appellee,


PAUL MCNALLY REALTY, a California corporation; CHUCK N. RUSTON, Trustee of Trust U/D/T Dated Eleven October 1990; JUDITH A. RUSTON, Trustee of Trust U/D/T Dated Eleven October 1990, Defendants-Appellants.

No. 99-55580

United States Court of Appeals, Ninth Circuit

June 20, 2000

Argued and Submitted November 2, 1999--Pasadena, California

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[Copyrighted Material Omitted]

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Donald Merkin, Merkin & Associates, La Jolla, California, for the defendants-appellants.

Russell C. Handy, Law Offices of Mark D. Potter, San Diego, California, for the plaintiff-appellee.

Miriam R. Eisenstein, United States Department of Justice, Washington, D.C., for amicus United States.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, Jr., District Judge, Presiding. D.C. No. CV-98-00367NAJ (JAH)

Before: James R. Browning and A. Wallace Tashima, Circuit Judges, and Samuel P. King,1 District Judge.

KING, District Judge:

Plaintiff-Appellee Kornel Botosan ("Appellee") filed a private action against Defendants-Appellants Chuck and Judith Ruston (the "Rustons") and Paul McNally Realty, Inc., dba Realty World ("Realty World"; collectively, "Appellants"), alleging violations of the Americans With Disabilities Act ("ADA" or the "Act"), 42 U.S.C. S 12101 et seq., and California's Unruh Civil Rights Act, Cal. Civ. Code S 51 et seq. Appellee claims he was denied access to Realty World's real estate office due to a lack of handicapped parking. Appellants argue, inter alia, that Appellee is not entitled to recovery because: (1) he did not provide notice of his ADA claim to a state or local agency charged with administering the relevant civil rights laws before filing suit; (2) McNally Realty assumed all liability for ADA compliance in its lease with the Rustons; (3) he did not prove actual damages; and (4) the ADA is an unconstitutional exercise of Congress' commerce power and unconstitutionally vague. The district court ruled in favor of Appellee on all arguments. We affirm.

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Appellee is a paraplegic who requires the use of a wheelchair at all times. In December 1997, he visited Realty World, a real estate office, and discovered that the office did not provide handicapped parking. Due to the lack of a designated parking space for disabled persons, he was prevented from entering the office and becoming a customer. He made no other attempt to patronize Realty World after that single incident. On February 18, 1998, he filed a complaint alleging violations of the public accommodations provisions of the ADA (Title III), California's Health and Safety Code, the California Civil Code, and California's Unruh Civil Rights Act. Only the claims brought under the ADA and the Unruh Civil Rights Act are relevant for the purposes of the instant appeal. Appellee requested monetary damages, punitive damages, injunctive relief, and attorney's fees. He did not notify any state or local authorities about the violations he alleged in the complaint before filing suit.

The Rustons are trustees of the trust that owns the property on which Realty World is situated. Realty World leases the property from the Rustons. The lease contains several provisions that allocate responsibility for maintenance of the property and compliance with the law, as between the landlord and tenant.

Appellants filed a motion for summary judgment on May 1, 1998. Their motion raised two arguments: (1) that the Rustons were entitled to summary judgment as to all claims against them because the lease on the property assigned responsibility for compliance with all laws to the tenant; and (2) that both the Rustons and Realty World were entitled to summary judgment as to Appellee's claims for injunctive relief because the alleged violations had been remedied. In an order dated August 12, 1998, the district court denied the motion for summary judgment.

On September 2, 1998, Appellants filed a motion to dismiss arguing that Appellee failed to provide notice to a state or local agency charged with enforcing civil rights laws before filing suit pursuant to 42 U.S.C. S 2000a-3(c), thereby depriving the district court of subject matter jurisdiction. The district court denied this motion on November 24, 1998.

On December 23, 1998, Appellee filed a motion for summary judgment. Appellants' opposition to the motion argued, inter alia, that the ADA violated the Commerce Clause, was unconstitutionally vague, violated due process, and that Appellee had not proven actual damages. The district court granted Appellee's motion, awarded him $1,000 in damages, and issued a final order on February 19, 1999. Appellants timely appealed all of the district court's rulings.


We review de novo a district court's grant or denial of summary judgment. See Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998). The district court's order denying Appellants' motion to dismiss involved a determination of the existence of subject matter jurisdiction. We review that order de novo as well. See Hexom v. Oregon Dep't of Transp., 177 F.3d 1134, 1135 (9th Cir. 1999).


The instant appeal presents four issues: (1) whether a plaintiff is required to notify the state or local agency charged with enforcing the applicable state civil rights laws at least 30 days prior to filing a private lawsuit under Title III of the ADA pursuant to 42 U.S.C. S 2000a-3(c); (2) whether a lease may allocate all responsibility for compliance with the ADA from the landlord to the tenant; (3) whether a plaintiff must prove actual damages under California's Unruh Civil Rights Act before awarding statutory minimum damages; (4) whether the ADA is an invalid exercise of the Commerce Clause power and unconstitutionally

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vague. These are issues of first impression for this Court.

A. Notice Requirement under Title III

Congress patterned Title III of the ADA ("Title III") after Title VII of the Civil Rights Act of 1964 ("Title VII"). Specifically, Title III provides that "[t]he remedies and procedures set forth in section 2000a-3(a) of [Title VII] are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability . . . ." 42 U.S.C. S 12188(a)(1). In turn, 42 U.S.C. S 2000a-3(a) provides that an aggrieved individual may bring "a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order . . . ." 42 U.S.C. S 2000a-3(a). Appellants suggest that the remedies and procedures applicable to Title III and those applicable to Title VII are completely identical--that is, that suits brought under Title III are subject to all limitations imposed on suits maintained pursuant to Title VII. The limitation relevant in this case is found in S 2000a-3(c):

[N]o civil action may be brought under subsection (a) of [S 2000a-3] before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.

42 U.S.C. S 2000a-3(c). The question before us is whether actions for violations of Title III are...

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