Vallabhapurapu et al v. Burger King Corporation

Filing 41

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFFS' MOTION TO SUSPEND GENERAL ORDER NO. 56, Motions terminated: 25 MOTION To Suspend General Order No. 56 PLAINTIFFS MOTION TO SUSPEND GENERAL ORDER NO. 56 filed by D aniel Xenos, Diane Dailey, Elizabeth Baker, Priscilla Walker, Tyrey Mills, William Farber, Jenilyn Jimenez, Ron Sarfaty, Carol Picchi, Goldene Springer, Marsha Shining Woman, Kitty Dean, Bethany McClam, Carol Lacher, Kenneth Kilgore, Daniel Hernandez , George Partida, Richard Felix, William Showen, Mohan Vallabhapurapu, Erik Nieland, Uverda Harry, Alfred Brown, Kathleen Gonzalez, Anne Casey, Judy Cutler, Kathryn Tyler, 15 MOTION to Dismiss Complaint and to Add Franchisees/Lessees as Additional Defendants filed by Burger King Corporation. Signed by Judge Alsup on May 6, 2011. (whalc2, COURT STAFF) (Filed on 5/6/2011)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MOHAN VALLABHAPURAPU, et al., 11 For the Northern District of California United States District Court 10 Plaintiffs, 12 13 14 15 16 17 No. C 11-00667 WHA v. ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND GRANTING PLAINTIFFS’ MOTION TO SUSPEND GENERAL ORDER NO. 56 BURGER KING CORPORATION, Defendant. / INTRODUCTION In this follow-on action to an earlier ADA action concerning the accessibility of Burger 18 King franchise restaurants in California, defendant moves to dismiss for failure to join necessary 19 parties under FRCP 19 and for lack of standing as to certain franchises, and plaintiffs move to 20 suspend General Order No. 56. For the reasons stated below, defendant’s motion to dismiss is 21 DENIED, and plaintiffs’ motion to suspend General Order No. 56 is GRANTED. 22 23 STATEMENT This action is a follow-on to a prior action called Castaneda v. Burger King Corporation, 24 3:08-cv-04262-WHA. Counsel are the same. Both concern alleged ADA and state-law violations 25 by defendant Burger King Corporation at assertedly inaccessible restaurants in California that 26 Burger King leases to franchisees. There are 96 such restaurants in California. In Castaneda, an 27 order certified 10 classes, one for each of 10 restaurants at which plaintiffs had visited and 28 encountered access barriers, and a settlement was thereafter reached concerning the 10 restaurants. That left 86 Burger King restaurants in California that were leased to franchisees for 1 which classes were not certified in Castaneda. This new complaint brings the same claims and 2 asserts class action allegations as to the remaining 86 restaurants. 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 The order in Castaneda denying defendant’s motion to dismiss described succinctly the allegations therein: Plaintiff, a resident of California, has incomplete quadriplegia and uses a wheelchair for mobility. . . . Plaintiff alleges access violations at roughly 90 of Burger King’s approximately 500 restaurants in California: those that Burger King leases to or from other entities (“leased stores”) (Compl. ¶¶ 10–12, 23–24). [footnote omitted] Plaintiff alleges that the leased restaurants deny customers who use wheelchairs or scooters access to restaurant services on account of architectural or design barriers or discriminatory policies or practices. Those access barriers include inaccessible parking lots, entry and restroom doors that are too heavy, queue lines (to order food) that are too narrow for wheelchairs, inaccessible dining areas, and inaccessible restrooms. Plaintiff alleges that these access barriers are a result of intentional discrimination against the putative class (Compl. ¶¶ 1–2, 39–40, 44). 12 13 14 The complaint alleges that plaintiff has patronized “several” Burger King restaurants in California, including a restaurant at 677 Contra Costa Boulevard in Pleasant Hill and one at 2162 Railroad Avenue in Pittsburg, both allegedly leased restaurants. Plaintiff encountered access barriers such as those described above at those restaurants (Compl. ¶¶ 41–42). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although the complaint does not purport to challenge a single, identical architectural design or access policy at all of the (approximately) 90 leased restaurants, it alleges several common characteristics among the leased restaurants. It alleges that some or all of those stores were built according to “one or a limited number of architectural design prototypes developed by Burger King.” It alleges that Burger King exercises substantial control over some or all of the leased restaurants, including over the development, design, alteration, remodel, maintenance and operation of those restaurants. Burger King, it avers, has entered into development agreements requiring construction of some or all of the California restaurants, or the performance of “re-imaging” programs at those restaurants, in accordance with Burger King designs; has provided building plans used to construct some or all of those restaurants; and has provided construction teams to aid in designing and building some or all of those restaurants. Finally, the complaint alleges that some or all of the leased restaurants are required to comply with Burger King’s Manual of Operating Data (“MOD”), which contains official operating standards and procedures (Compl. ¶¶ 25–34). Plaintiff alleges that some or all of the leased restaurants have been altered since 1992, when the ADA regulations regarding alterations went into effect. Plaintiff further alleges that some or all of those stores have undergone alterations, structural repairs and/or additions since 1970, when California access regulations went into effect (Compl. ¶¶ 37–38). Plaintiff brings this action on behalf of a putative class that includes all individuals with manual and/or mobility disabilities who use wheelchairs or electronic scooters and who were thereby denied access by the alleged barriers. 2 1 The class is alleged to consist of “at least several thousand members” dispersed across California (Compl. ¶¶ 13–14). 2 3 4 5 The complaint asserts three claims. The first claim asserts violations of the Americans with Disabilities Act. 42 U.S.C. 12182(a). The second claim arises under California’s Unruh Civil Rights Act. Cal. Civ. Code §§ 51 et seq. The third claim is for violations of California’s Disabled Persons Act. Cal. Civ. Code §§ 54 et seq. The complaint seeks declaratory and injunctive relief under the ADA, and minimum statutory damages for the two state claims. (Dkt. No. 69). The complaint in our new case is very similar, except that it explicitly targets only 7 the 86 restaurants omitted from certification in Castaneda. The named plaintiffs now number 27. 8 They all are alleged to have disabilities that confine them to a wheelchair or scooter for mobility 9 (Compl. ¶¶ 12–38). Plaintiffs again allege access violations at the remaining restaurants in 10 California that Burger King leases to or from other entities, i.e. the franchisees (Compl. ¶ 6). 11 For the Northern District of California United States District Court 6 Plaintiffs again allege that the leased restaurants deny customers who use wheelchairs or 12 scooters access to restaurant services on account of architectural or design barriers as a 13 consequence of discriminatory policies or practices. Those access barriers include entry and 14 restroom doors that are too heavy, and inaccessible restrooms, parking lots, paths of travel to 15 service counters, service counters, dining areas, and drink and self-service dispensers. Plaintiffs 16 allege that these access barriers are a result of intentional discrimination against the putative class 17 (Compl. ¶¶ 1, 4, 161). 18 The complaint contains extensive allegations concerning which targeted Burger King 19 restaurants have been patronized by plaintiffs, where they allegedly encountered such access 20 barriers (Compl. ¶¶ 12–38, 79–159). As with Casteneda, the complaint does not challenge a 21 single, identical architectural design or access policy at all of leased restaurants, but rather it 22 alleges common characteristics among them and that Burger King exercises control over their 23 development, design, remodel, alteration, maintenance, and operation (Compl. ¶¶ 64–76). The 24 complaint alleges that some or all of the leased restaurants have been altered since 1992, when the 25 ADA regulations regarding alterations went into effect, and that some or all have undergone 26 alterations, structural repairs and/or additions since 1970, when California access regulations 27 went into effect (Compl. ¶¶ 77–78). 28 3 1 Plaintiffs bring this action on behalf of a putative class that includes “all individuals who 2 use wheelchairs or electronic scooters for mobility who, . . . on the basis of disability, were 3 denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or 4 accommodations in any Remaining BKL because of noncompliance with Disability Access 5 Requirements pertaining to width of accessible parking spaces and access aisles, excessive door 6 force, lack of or obstructed accessible routes, and/or customer self-service dispensers” (Compl. ¶ 7 41). This class is alleged to consist of more than a thousand members from across California 8 (Compl. ¶ 42). Plaintiffs also seek certification of 67 subclasses to be represented by specified 9 named plaintiffs who visited each specific restaurant (Compl. ¶¶ 51–53). The complaint asserts three claims: (1) violation of the Americans with Disabilities Act, 11 For the Northern District of California United States District Court 10 42 U.S.C. 12181 et seq.; (2) violation of the California Unruh Civil Rights Act, CAL. CIV. CODE § 12 51 et seq.; and (3) violation of the California Disabled Persons Act, CAL. CIV. CODE § 54 et seq. 13 The complaint seeks declaratory and injunctive relief, and minimum statutory damages for the 14 two state-law claims. 15 Further detail about motion practice in Castaneda will be reviewed below, because its 16 review is vital to resolution of the instant motions, which raise issues identical to those raised in 17 Castaneda. At the conclusion of discovery in Castaneda but before motions for partial summary 18 judgment were heard, the parties settled. Preliminary, and later final, approval of the settlement 19 was granted (Castaneda Dkt. Nos. 342 and 361). 20 ANALYSIS 21 This and the Castaneda actions raise nearly identical legal issues, as acknowledged by the 22 parties. Counsel for both sides are obviously well aware of the rulings in Castaneda, as they were 23 counsel there as well. Yet, defendant raises identical arguments in its motion to dismiss to those 24 raised in Castaneda, thinking that — despite no change in the law or the pleadings — the result 25 might be different the second time around. Defense counsel has cut and pasted sections of its 26 briefs in Castaneda (briefs in support of motions that they lost), into their current briefs (compare 27 Castaneda Dkt. No. 29 at 4–11 with Dkt. No. 15 at 18–23 (identical standing argument), and 28 4 1 compare Castaneda Dkt. No. 145 at 6–14 with Dkt. No. 15 at 7–16 (identical Rule 19 argument)). 2 Defendant adds no new arguments. Defendant adds no new law. 3 Perhaps Burger King can be forgiven for copying its prior arguments, given that the 4 complaint itself is a copy of the earlier one. But still, after further reflection, the rulings will be 5 the same. 6 In Castaneda, one of the first things that happened was that plaintiffs moved to compel “General Order 56 wasn’t meant for this kind of situation, so I’m going to suspend it” (Dkt. No. 9 31 at 19). That order was memorialized in a written order, which stated: “General Order 56 is 10 suspended as it applies to this case. Discovery is now permitted” (Dkt. No. 18). Plaintiffs now 11 For the Northern District of California compliance with General Order No. 56. At a hearing on the dispute, the undersigned stated: 8 United States District Court 7 move to suspend General Order No. 56. For the same reasons as in Castaneda, General Order 12 No. 56 was not meant for this type of case, so it is therefore suspended here.* Plaintiffs’ motion is 13 accordingly GRANTED. 14 The first of two arguments in defendant’s motion to dismiss — identical to its argument in 15 Castaneda — is that certain class allegations, those concerning restaurants that the named 16 plaintiffs did not visit, should be dismissed for lack of standing under Rule 12(b)(1). This same 17 argument was made — and denied — in Castaneda. Docket number 69, pages four through 18 eleven, is incorporated herein by reference. That order went through detailed analysis of why 19 plaintiffs do not lack standing to assert claims with respect to those restaurants they have not 20 allegedly visited. It concluded: “[This] has been a maneuver to defeat class certification in 21 advance by denying all class discovery and insisting that plaintiff[s] prove up [their] Rule 23 22 motion within the four corners of the pleading. This is topsy-turvy. . . . This should not be 23 decided as a matter of the pleadings.” Nor should it now. 24 25 26 27 28 * Defendant does raise an issue not presented in Castaneda regarding the potential implications of the California Construction-Related Accessibility Standards Compliance Act, CAL. CIV. CODE § 55.54. Burger King solely appears to argue, however, that General Order No. 56 should not yet be suspended because the franchisees — as opposed to Burger King itself — should be given an opportunity to litigate this issue (Opp. 6–8). Because defendant’s motion to dismiss to bring the franchisees in as parties is denied below, this argument is irrelevant. 5 1 As stated above, defendant’s arguments here are verbatim to those made preceding the 2 above-cited order denying defendant’s motion to dismiss in Castaneda (compare Castaneda Dkt. 3 No. 29 at 4–11 with Dkt. No. 15 at 18–23). Although defense counsel assert that the post- 4 pleading factual findings in Castaneda should allow them to ignore the difference between 5 pleading and class certification standards of review here (see, e.g., Reply 12), this is not the law 6 now any more than it was then. For the same reasons, defendant’s motion to dismiss for lack of 7 standing under Rule 12(b)(1) is DENIED. 8 9 The second of two arguments in defendant’s motion to dismiss is again identical to the argument made in Castaneda that the individual franchisees who run each Burger King location targeted by the complaint are necessary under Rule 19, and thus the complaint should be 11 For the Northern District of California United States District Court 10 dismissed under Rule 12(b)(7) (compare Castaneda Dkt. No. 145 at 6–14 with Dkt. No. 15 at 12 7–16). Unlike here, however, this argument was only raised in Castaneda at the motion for class 13 certification stage, via a separate motion by defendant. Defendant moved at that time for “an 14 order requiring Plaintiffs to add the franchisees/lessees of the restaurants at issue in this case as 15 additional defendants in this litigation” (Dkt. No. 145 at 1). Despite the difference in timing, 16 defendant’s motion under Rule 19 was denied by the order granting class certification. Instead, 17 that order allowed permissive joinder of the franchisees under Rule 20. 18 19 20 21 22 23 Defendant now points to language in that order justifying permissive joinder in support of its instant motion: Here, the franchisees/lessees operate and maintain the facilities in question and, under the terms of their lease agreements with Burger King Corporation, must indemnify Burger King Corporation for any accessibility violations that occur. Plaintiffs do not dispute that the franchisees/lessees are jointly and severally liable with Burger King Corporation for any violations, or that the claims against them do not arise out of the same transactions and occurrences. The joinder of the franchisees/lessees, furthermore, will be useful in efficiently effecting any necessary injunctive relief at the stores under their control. 24 (Dkt. No. 226 at 26–27). Defendant ignores that Rule 19 joinder was denied. This must be 25 repeated because defendant’s current motion equates permissive joinder in Castaneda with a 26 finding that the franchisees are necessary parties under Rule 19, which the Castaneda order 27 specifically did not find. Plaintiffs never joined the franchisees, and Castaneda was settled 28 6 1 without the franchisees as parties. Pursuant to that settlement, Burger King conducted work on 2 the premises of the Castaneda restaurants. 3 This order must note that in addition to Castaneda and the instant action, there is an in- 4 between lawsuit called Newport et al. v. Burger King Corporation, 3:10-cv-04511-WHA, which 5 has also been related before the undersigned judge, in which the franchisees of restaurants at issue 6 in Castaneda are suing Burger King for declaratory relief and certain damages resulting from 7 Castaneda. Contrary to defendant, this does not show that the franchisees should be brought in as 8 necessary parties here under Rule 19. Rather, it shows that defendant’s intention to name the 9 franchisees as parties under Rule 14 may make sense — so defendant avoids a fourth lawsuit down the road. That does not change the Rule 19 inquiry, however. This action, based on nearly 11 For the Northern District of California United States District Court 10 the same issues as Castaneda, is well able to proceed without the individual franchisees being 12 brought in as defendants, just as it was before. 13 In addition, the Burger King franchise agreement, which is signed by all of the franchisees 14 who run the restaurants targeted by the complaint, states that “BKC shall have the unrestricted 15 right to enter the Franchised Restaurant to conduct such activities as it deems necessary to 16 ascertain Franchisee’s compliance with this Agreement” (Franklin Decl. Exh. A at 6). And 17 Burger King restaurants must be “constructed and improved in the manner authorized and 18 approved” by Burger King (id. at 3). Furthermore, defendant acknowledges that before the 19 franchisees can make any changes to the premises they have to get Burger King’s written consent 20 (Archer Decl. Exh. A–E at § 5.3). And if a franchisee does not make required repairs, Burger 21 King “may enter the Premises for the purpose of making such Repairs,” and may bill the 22 franchisees for the costs and expenses incurred (id. at § 5.2). 23 Three franchisee owners have filed declarations in which they describe how Burger King 24 conducted surveys of their restaurants and directed changes for access compliance, which the 25 franchisees completed (Patel, Rubin, and Cook Decls.). Defendant does not challenge, and in fact 26 acknowledges, that it maintains all of these powers over restaurant premises (see, e.g., Reply 27 5–6). The franchisees have “specially appeared” through counsel to make clear that they do not 28 7 1 want to be named as parties. For the reasons stated, this action need not be dismissed pursuant to 2 Rule 12(b)(7), and accordingly defendant’s motion to dismiss is DENIED. 3 CONCLUSION 4 For the foregoing reasons, defendant’s motion to dismiss for failure to join required 5 parties under FRCP 19 and for lack of standing as to certain class allegations is DENIED, and 6 plaintiffs’ motion to suspend General Order No. 56 is GRANTED. This order is without prejudice 7 to a motion under FRCP 14 or the issue of third-party severance. 8 IT IS SO ORDERED. 9 10 For the Northern District of California United States District Court Dated: May 6, 2011. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?