Yates v. Bacco et al

Filing 94

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Magistrate Judge Donna M. Ryu on 03/17/14. (dmrlc2, COURT STAFF) (Filed on 3/17/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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CRAIG YATES,

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No. C-11-01573 DMR

Plaintiff(s),
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

v.
BACCO; VI PA, INC., a California
Corporation; ANTONE METAXAS and
HIDEKO METAXAS, TRUSTEES OF THE
2006 METAXAS FAMILY TRUST UNDER
DECLARATION OF DEED OF TRUST
DATED MARCH 15, 2006,

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Defendant(s).
___________________________________/

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I. INTRODUCTION
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This case concerns the accessibility of Bacco, a restaurant in San Francisco. Plaintiff Craig
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Yates patronized Bacco on four occasions between 2010 and 2011. On March 31, 2011, Plaintiff
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brought this lawsuit against Defendants Bacco, Vi Pa, Inc., and Antone Metaxas and Hideko
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Metaxas, Trustees of the 2006 Metaxas Family Trust Under Declaration of Trust Dated March 15,
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2006 (the “Trust”), alleging that Defendants failed to remove architectural barriers at Bacco in
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violation of the Americans with Disabilities Act of 1990 (“ADA”), the California Disabled Persons
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Act (“CDPA”), the Unruh Act, and California Health and Safety Code § 19955 et seq. First Am.
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Compl. (“FAC”) [Docket No. 31] at ¶¶ 1, 21-22.
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The parties agree that Plaintiff encountered a number of architectural barriers during his

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visits, and brought them to Defendants’ attention. The parties also agree that, with the exception of

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the issues that were presented to the court for trial, Defendants addressed Plaintiff’s concerns to his

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satisfaction.

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The court held a bench trial in this matter. At trial, Plaintiff asserted the existence of three

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architectural barriers in one of Bacco’s restrooms, and argued that his suggested plan for removing

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each of those barriers was “readily achievable” under the ADA. Plaintiff sought injunctive relief

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under the ADA, as well as statutory damages permitted under state law. The parties filed consents

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to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c). [Docket Nos. 5, 9.] The court therefore
may enter judgment in the case. See 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ.

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For the Northern District of California

United States District Court

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L.R. 72-1. The court finds that Plaintiff has established that one of the three alleged architectural

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barriers can be remediated by means that are readily achievable. Accordingly, the court orders

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corresponding injunctive relief, as well as statutory damages. Pursuant to Federal Rule of Civil

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Procedure 52(a), the court makes the following findings of fact and conclusions of law.
II. FINDINGS OF FACT1

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A. Parties
1. Plaintiff Craig Yates is triplegic and is a “disabled person” within the meaning of the

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ADA. JFF 1.
2. Plaintiff is a disability access activist. Tr. 33:14-16. He has filed at least 150 ADA

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lawsuits. Tr. at 33:8.
3. Bacco is a restaurant located at 737 Diamond Street in San Francisco, and is a place of

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public accommodation within the meaning of the ADA. JFF 2.

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The parties submitted four different documents that purport to contain stipulated undisputed
facts. These documents are: a list of undisputed facts in their joint pretrial statement (Docket No. 60 at
5-9), a Stipulation of Facts attached to their joint pretrial statement (Docket No. 60, Ex. A), Joint
Findings of Fact and Conclusions of Law (“JFF”, Docket No. 62) filed prior to the bench trial, and a
Revised Agreed Findings Statement (“RAFS,” Docket No. 91) filed after trial. Unfortunately, each
submission is different from the others, and none references the others. The court refers to all of these
to the extent they clearly represent the parties’ uncontested statements of facts and law. The court also
refers as needed to two other documents submitted by the parties after trial: Plaintiff’s Findings of Fact
and Conclusions of Law (“PFFCL,” Docket No. 90), and Defendants’ Proposed Findings of Fact and
Conclusions of Law (“DFFCL,” Docket No. 92).

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4. Defendants Antone Metaxas and Hideko Metaxas, Trustees of the 2006 Metaxas Family

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Trust Under Declaration of Trust Dated March 15, 2006 (the “Trust”), owns the building

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in which Bacco is housed, and is Bacco’s landlord. JFF 3, Tr. 150:3-6. Antone Metaxas

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provided testimony on behalf of the Trust.

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5. Sharon Dominici owns and runs Defendant Bacco through Vi Pa, Inc. JFF 4, Tr. 142-

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144.

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B. Non-Party Witnesses

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measurements, and photographs of the alleged architectural barriers at Bacco.
2. Gaylon Gregg, an architect and licensed building contractor, was called by Plaintiff as an

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For the Northern District of California

United States District Court

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1. Rick Sarantschin testified for Plaintiff regarding his personal observations,

expert witness regarding the cost of implementing certain repairs that would address the

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alleged architectural barriers.

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3. Kim Blackseth, a certified access specialist and licensed general building contractor, was

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called by Defendants as an expert witness regarding his personal observations of Bacco,

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his recommended remedial measures, and whether removal of certain architectural

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barriers is readily achievable. Tr. at 82:14-83:23.

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C. The Subject Property, the Restaurant, and the Trust
1. The building in which Bacco is housed is an “existing” facility under the ADA because it

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was constructed prior to and not altered after January 26, 1992. Tr. 83:3-7, 86:2-5. See

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28 C.F.R. §§ 36.401, 36.402.

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2. Bacco began operating at its current location in approximately June 1993. Tr. at 135:22136:2.
3. Dominici’s husband Paolo operated the restaurant from its opening until his death in a
boating accident in 2009. Tr. at 136:9-18, 143:17-18.

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4. Dominici took over operation of the restaurant in 2010. Tr. at 136:22-23. Dominici was

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not able to testify about the restaurant’s rent or profits prior to 2010, when she began

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operating the restaurant. Tr. at 136:3-137:5.

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5. Bacco’s monthly rent for the years 2010 to 2012 was $5,900. Tr. at 136:13-15, 136:24-

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137:2, 151:7-8. The Trust has not raised Bacco’s rent since 2009 out of sympathy for the

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death of Dominici’s husband. The rent is below market rate. Tr. at 155:6-20.

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6. Bacco’s net profits in 2010 were roughly $70,000 to $78,000. Tr. at 148:4-14.

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8. According to Metaxas, the Trust purchased the building that houses Bacco in

Bacco has employed approximately ten employees since 2010. Tr. at 137:16-138:6.

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approximately 1980 for $395,000. The market value of the building is now several

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million dollars. Tr. at 150:7-25.

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For the Northern District of California

United States District Court

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9. When asked by Plaintiff’s counsel whether the Trust could afford to spend $10,000 on
capital improvements at Bacco, Metaxas responded in the affirmative. Tr. at 154:19-21
D. Relevant Events
1. Plaintiff dined at Bacco on December 15, 2010, January 13, 2011, February 24, 2011,
and March 9, 2011. RAFS at 2.
2. During each of Plaintiff’s visits, numerous architectural barriers existed at Bacco,

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including the steepness of the ramp leading to the entrance, the entrance door pressure, as

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well as its handle/knob and width, the width of the men’s restroom doorway and the

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maneuvering space within the men’s restroom. PFFCL 7; DFFCL 3, 6; Tr. at 29:11-

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31:25.

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3. Plaintiff was unable to enter the restroom on each of his four visits to Bacco in 20102011. Tr. at 30:21-31:25.
4. On December 17, 2010, after his initial visit, Plaintiff sent a notice letter to the owner of

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the building as well as the manager of Bacco. JFFCL 6, Pl.’s Exs. 1, 2. The letter

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describes the difficulties Plaintiff encountered in accessing the restaurant. See, e.g. Pl.’s

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Ex. 1 (“[W]hen I went to use the restroom I had a lot of difficulty. First, you had those

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chairs stacked outside the restroom, then when I got to the door the entrance was too

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narrow. Even with all the help the bus boy tried to give me I still couldn’t use the

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restroom. Not being able to use the restroom was not good and it could have caused me a

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medical problem.”). It also recommended that the owner and manager repair the access

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problems and inform Plaintiff of any plans to do so. Id. (“[P]lease . . . tell me exactly

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what will be done and make me a promise that you will take care of this right away.”).

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5. Defendants hired Kim Blackseth to review Bacco for compliance with state and federal

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access laws. DFFCL 4, Tr. 84:19-25. Blackseth’s company has provided disability

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access consulting services for somewhere between 3,000 to 4,000 clients. In the

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litigation context, Blackseth has provided expert witness services for both plaintiffs and

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defendants, about 60% of the time on the defense side. Tr. at 83:24-84:3.

laws. On June 21, 2011, Blackseth prepared a report identifying architectural barriers

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and suggesting repairs/alterations to “bring [Bacco] into substantial compliance with

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For the Northern District of California

6. On June 17, 2011, Blackseth visited Bacco to assess its compliance with disability access

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United States District Court

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applicable codes and requirements.” Defs.’ Ex. A at 1, 22 (Blackseth Report).

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Blackseth’s suggestions included reducing the entrance door pressure, providing signage

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on the exterior door, providing an electric door opener on both leaves of the entrance

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doors, relocating furniture within the restaurant, lowering the paper towel dispenser and

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mirror in the men’s restroom, providing a wall-mounted sink to replace the pedestal sink2

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in the men’s restroom, and providing a grab bar behind the toilet. Id. at 9-20; Tr. 87-:15-

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88:11, 144:11-145:2.

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7. Following Blackseth’s suggestions, Bacco installed a power door at a cost of $8,000, half

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of which was paid for by Bacco and the other half by the landlord. Tr. 139:18-140:1.

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8. Another post-remediation change involved converting what was formerly the men’s room

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into a unisex restroom. RAFS 4. The $7,000 cost for alterations to the restroom was

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borne by Bacco alone. Tr. at 140:2-10. The total cost of all remediations suggested by

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Blackseth was approximately $20,000, including the portion paid by the landlord. Tr. at

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145:7-9, 147:18-25.

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The ADA Accessibility Guidelines use the term “lavatory” to refer to a sink provided for hand
washing, and “water closet” for what is colloquially called a toilet. See 36 C.F.R. Pt. 1191, App. D.

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the trial.4 Tr. 144:11-145:2.

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Bacco completed all3 of the alterations recommended by Blackseth prior to the date of

10. On October 30, 2012, Plaintiff visited Bacco again. Tr. at 157:1-3. Plaintiff attempted to

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use the unisex restroom. Plaintiff was able to enter the restroom, turn around, and close

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the door, but he was unable to exit because he could not operate the door and maneuver

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his wheelchair at the same time. Tr. at 4-19.

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A. Legal Standards
i. Discrimination Under Title III of the ADA
Congress passed the ADA “to provide clear, strong, consistent, enforceable standards

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For the Northern District of California

United States District Court

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III. Conclusions of Law

addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Title III

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of the ADA prohibits discrimination against disabled individuals by public accommodations. Id. at

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§ 12182(a). The landlord and tenant are both liable for failing to provide accessible facilities at the

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public accommodation. 28 C.F.R. § 36.201(b).

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To recover on a claim for discrimination under the ADA, a plaintiff must prove (1) he or she

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is disabled within the meaning of the statute, (2) defendants are private entities that own, lease (or

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lease to), or operate a place of public accommodation, and (3) the plaintiff was denied public

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accommodations by defendant(s) because of his or her disability. Arizona ex rel. Goddard v.

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Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir.2010). Here, the parties have

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stipulated that the first two elements have been met.

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The third element is satisfied when there is a violation of applicable accessibility standards.
Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011). In general, a place of

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Blackseth testified that he did not see one of his recommended remediations—a rear grab bar
behind the toilet in the men’s room—in Plaintiff’s photographic exhibits. Tr. at 87:14-24. However,
the parties stipulated that the rear grab bar was installed on August 16, 2013, the day after the first day
of trial. See RAFS 8. Plaintiff does not raise the late installation of the grab bar as a basis for
Defendants’ liability for disability discrimination. Tr. at 5:17-6:11.
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The court made multiple requests that the parties submit a joint declaration setting forth the
dates of various remediations. The parties failed to do so. As a result, the court cannot be more specific
than the following. “As-is” refers to the conditions at Bacco as Plaintiff encountered them in his visits
to the restaurant between December 15, 2010 and March 9, 2011. The “post-remediation” condition
of Bacco refers to its state after completion of the recommendations that Blackseth opined as being
readily achievable in his report.
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public accommodation is accessible under the ADA if it meets the requirements promulgated by the

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Attorney General in the “ADA Accessibility Guidelines” or the “ADAAG,” which is “essentially an

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encyclopedia of design standards.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 904-905 (9th Cir.

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2011); see 28 C.F.R. § 36.406; 28 C.F.R. pt. 36, app. A. However, less rigorous standards are

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imposed on facilities constructed prior to the ADA’s enactment, which are considered “existing”

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facilities.5 Because the building that houses Bacco was constructed before and not altered after

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January 26, 1992, it is an “existing” facility under the ADA.

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Existing, unaltered facilities such as Bacco’s need not fully comply with the ADAAG

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standards. Instead, the ADA focuses first on the existence of architectural barriers. The ADA does
not define “architectural barrier,” but courts have held that “architectural barriers” are essentially

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For the Northern District of California

United States District Court

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elements that do not meet ADAAG standards. See Wyatt v. Ralphs Grocery Co., 65 F. App’x 589,

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590 (9th Cir. 2003) (“Violations of ADAAG standards indicate the existence of an architectural

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barrier.”) (citing Parr v. L&L Drive-Inn Rest., 96 F.Supp.2d 1065, 1086 (D. Haw. 2000)); Moeller v.

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Taco Bell Corp., No. 02-cv-05849 MJJ, 2007 WL 2301778, at *5 (N.D. Cal. Aug. 8, 2007)

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(“Although existing facilities are not required to comply with the ADAAG (unless they have been

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altered), the ADAAG nevertheless provides guidance for determining whether an existing facility

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contains architectural barriers.”); Pickern v. Best W. Timber Cove Lodge Marina Resort, No. 00-cv-

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1637-WBS-DA, 2002 WL 202442, at *2 (E.D. Cal. Jan. 18, 2002) superseded in part, 194 F. Supp.

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2d 1128 (E.D. Cal. 2002) (“[The ADAAG] . . . provides valuable guidance for determining when

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existing facilities contain architectural barriers that must be removed where readily achievable. In

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fact, the implementing regulations promulgated by the Department of Justice treat any element in an

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existing facility that does not meet or exceed the ADAAG standards as a barrier to access.”)

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(citations and quotations omitted).

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An architectural barrier need only be removed where it is “readily achievable” to do so. 42
U.S.C. § 12182(b)(2)(A)(iv). The removal of barriers is “readily achievable” when it is “easily

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The Title III accessibility standards come in three broad categories: the “new construction”
provisions, which apply to public accommodations first occupied after January 26, 1993; the “alteration”
provisions, which apply to post-January 26, 1992 alterations to buildings that existed as of that date; and
the “readily achievable” provisions, which apply to unaltered portions of buildings constructed before
January 26, 1992. 28 C.F.R. §§ 36.401, 36.402. See also Moeller v. Taco Bell Corp., 816 F.Supp.2d
831, 847 (N.D. Cal. 2011).
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accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. §

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12181(9). In determining whether an action is “readily achievable,” factors to be considered

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include:

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(A) the nature and cost of the action needed under this chapter;

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(B) the overall financial resources of the facility or facilities involved in the action; the
number of persons employed at such facility; the effect on expenses and resources, or the
impact otherwise of such action upon the operation of the facility;

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(D) the type of operation or operations of the covered entity, including the composition,
structure, and functions of the workforce of such entity; the geographic separateness,
administrative or fiscal relationship of the facility or facilities in question to the covered
entity.

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For the Northern District of California

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(C) the overall financial resources of the covered entity; the overall size of the business of a
covered entity with respect to the number of its employees; the number, type, and location of
its facilities; and

42 U.S.C. § 12181(9). The federal regulations give some examples of “modest measures that may
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be taken to remove barriers that are likely to be readily achievable”: installing ramps, repositioning
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shelves, rearranging furniture, repositioning telephones, widening doors, installing offset hinges,
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repositioning a paper towel dispenser, designating accessible parking spaces, and installing raised
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toilet seats. 28 C.F.R. Pt. 36, App. B at 647; § 36.304(b).
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If full compliance with the applicable ADAAG standard is not readily achievable, “a public
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accommodation may take other readily achievable measures to remove the barrier that do not fully
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comply with the specific requirements. Such measures include, for example, providing a ramp with
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a steeper slope or widening a doorway to a narrower width than that mandated by the alterations
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requirements. No measure shall be taken, however, that poses a significant risk to the health or
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safety of individuals with disabilities or others.” 28 C.F.R. § 36.304(d)(3).
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The flexible nature of the “readily achievable” standard takes into account the “imperfect
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realities of disability access law compliance.” Rodriguez v. Barrita, Inc., _ F. Supp. 2d. _, No. 0924
cv-4057-RS, 2014 WL 31739, at *14 (N.D. Cal. Jan. 3, 2014).
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ii. Burden of Proving Removal Is “Readily Achievable”
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“The Ninth Circuit has yet to rule on whether the plaintiff or defendant bears the burden of
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proof in showing that removal of an architectural barrier is readily achievable, [but] the Ninth
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Circuit and several district courts within the Ninth Circuit have applied the burden-shifting
framework set forth in Colorado Cross Disability Coalition v. Hermanson Family, Ltd., 264 F.3d
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999 (10th Cir.2001).” Freemyer v. Kyrene Vill. II, LLC, No. 10-cv-1506-PHX-GMS, 2011 WL

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42681. at *5 (D. Ariz. Jan. 6, 2011).

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In Colorado Cross, the Tenth Circuit held that the plaintiff bears the initial burden of proving

is “readily achievable,” that is, “easily accomplishable and able to be carried out without much

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difficulty or expense.” Colorado Cross, 264 F.3d at 1002-03; 42 U.S.C. § 12181(9); Hubbard v.

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Rite Aid Corp., 433 F. Supp. 2d 1150, 1159 (S.D. Cal. 2006). If the plaintiff satisfies his initial

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burden, the burden shifts to Defendants to show that removing the architectural barrier is not readily

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achievable. Defendants “bears the ultimate burden of persuasion that barrier removal is not readily

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achievable . . . .” Colorado Cross, 264 F.3d at 1003; see also Strong v. Valdez Fine Foods, No. 09-

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For the Northern District of California

(1) the existence of an architectural barrier and (2) suggesting a method of removing the barrier that

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United States District Court

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CV-1278-MMA JMA, 2011 WL 455285 (S.D. Cal. Feb. 4, 2011) rev'd on other grounds, No. 11-

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55265, -- F.3d -- , 2013 WL 3746097 (9th Cir. July 18, 2013). This court will follow the

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“overwhelming majority of federal courts that apply the burden-shifting framework of Colo. Cross.”

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Freemyer, 2011 WL 42681 at *6 (quotation omitted).

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Some courts have offered guidance on how a plaintiff may meet his initial burden of proving

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the existence of an architectural barrier and suggesting a readily achievable method for its removal.

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See, e.g., Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1274 (11th Cir. 2006) (“[A]

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plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a

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barrier, the difficulty of accomplishing it, the cost implementation, and the economic operation of

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the facility”); Pascuiti v. New York Yankees, No. 98-CV-8186 SAS, 1999 WL 1102748, at *4

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(S.D.N.Y. Dec. 6, 1999) (a plaintiff “must consider the four factors identified in 42 U.S.C. §

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12181(9)2 and proffer evidence, including expert testimony, as to the ease and inexpensiveness of

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their proposed method of barrier removal”); Colorado Cross, 264 F.3d at 1009 (plaintiff failed to

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satisfy its initial burden where its expert provided only speculative conceptual sketches for the

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proposed modification rather than a specific design which would be easily accomplishable and able

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to be carried out without much difficulty or expense).

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B. Actionable Barriers

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i. Remediated Barriers

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Because a private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier)

of mooting a plaintiff’s ADA claim. Oliver, 654 F.3d at 905 (citing 42 U.S.C. §§ 2000a-3(a),

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12188(a)(2)). Prior to trial, the parties stipulated that several barriers have been remediated since

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the commencement of this action. Accordingly, Plaintiff’s ADA claim is moot with respect to those

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barriers. Plaintiff also appears to have abandoned any argument that these barriers could form the

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basis of state law claims. Cf. Oliver, 651 F.3d at 905 (“The ADA provides for attorneys’ fees and

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costs for prevailing plaintiffs, however, and ADA plaintiffs frequently seek damages by bringing

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parallel claims under applicable state civil rights laws.”) (citation omitted); Hernandez v. Polanco

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Enterprises, Inc., -- F.Supp.2d --, 2013 WL 4520253, at *4 (N.D. Cal. August 23, 2013) (granting

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For the Northern District of California

under the ADA, a defendant’s voluntary removal of alleged barriers prior to trial can have the effect

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United States District Court

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motion for summary judgment against plaintiff’s Cal. Civ. Code § 54 and Unruh Act claims because

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plaintiff “made no showing that those barriers could support state-law claims independent of the

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alleged [mooted] ADA violations”).

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ii. Remaining Barriers

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A significant problem in this case is that Plaintiff failed to establish the alleged architectural

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barriers with precision. In large part, Plaintiff did not set forth each alleged barrier, identify the

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applicable ADAAG standard, and provide testimony or briefing on why it amounted to a legally

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cognizable architectural barrier. The lack of those specifics makes it difficult to analyze not only

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whether the alleged barriers exist, but also whether Plaintiff’s proposed remedy for each barrier is

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readily achievable. As noted below, Defendants made a mid-trial “motion for non-suit,” arguing

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that Plaintiff had not met the threshold for his claims because he failed to establish the existence of

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each architectural barrier.6 However, as discussed below, in one instance, the defense expert

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himself acknowledged the existence of an architectural barrier, and in another, the parties had

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stipulated to the existence of the barrier. Due to the chaotic state of the evidence on both sides, the

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Defendants did not articulate the procedure through which it asserted “non-suit”; the court
construed Defendants’ request as a motion for judgment on partial findings under Federal Rule of Civil
Procedure 52(c) (“If a party has been fully heard on an issue during a nonjury trial and the court finds
against the party on that issue, the court may enter judgment against the party on a claim or defense that,
under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The
court may, however, decline to render any judgment until the close of the evidence.”).
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court denied the mid-trial motion and has spent considerable time and effort in unpacking the

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evidence for analysis in this opinion.

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Plaintiff contends that post-remediation, the following architectural barriers remain in the
unisex restroom, and their removal is readily achievable:
1. Barrier 1: The door swings into the clear space in the restroom, rather than out into the

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hallway outside the restroom;

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2. Barrier 2: There is insufficient clear space in the restroom in front of the toilet; and

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3. Barrier 3: The doorway to the restroom is not wide enough.

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Pl.’s Ex. 39 (Sarantschin report noting that these three elements had not been remediated); Tr. at
5:17-25.

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C. Plaintiff’s Suggested Plan for Remediation

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Plaintiff suggested a plan for removing the above barriers that he claims is “readily

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achievable.” That plan, a diagram of which was entered into evidence as Plaintiff’s Exhibit 42,

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involves the following elements:

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1. Change the direction of the restroom door so that it swings out into the hallway outside
the restroom, instead of into the restroom, Tr. at 41:14-23;
2. Rotate the toilet 90 degrees so that it faces the door of the restroom, and also reposition

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the sink. This would create more clear space in front of the toilet by positioning the toilet

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so that its front edge is 35” from the edge of the sink and 60” from the door, Tr. at 40:13-

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41:13; and

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3. Widen the restroom door from 30” to 32” or 34” by widening the doorframe and

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installing a new door, Pl’s. Ex. 42; Tr. at 41:14-23. At trial, Plaintiff’s counsel elicited

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testimony about another suggested remediation not previously mentioned in any of

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Plaintiff’s briefs or exhibits: Gregg testified that installation of offset hinges on the

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doorway would provide an additional inch and a half of clearance. Tr. at 72:21-73:16.

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D. Plaintiff’s ADA Claims
i. Door Swing Direction
a. Is the door swing direction an architectural barrier?

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The door to the unisex restroom swings inward toward the clear space of the restroom, rather
than out into the hallway outside the restroom.7

basis that Plaintiff had failed to present evidence establishing that the accessibility issues identified

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by Plaintiff, including the door swing direction, constituted architectural barriers. See Tr. at 49:18-

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53:05; 78:12-80:8. To prove a prima facie case of violation of the ADA, Plaintiff must put forth

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evidence establishing the existence of architectural barriers. Lieber v. Macy's West, Inc., 80

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F.Supp.2d 1065, 1077 (N.D. Cal. 1999) (“Plaintiffs bear the burden of establishing the existence of

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access barriers . . . ”); Martinez v. Columbia Sportswear USA Corp., 859 F.Supp.2d 1174, 1178

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(E.D.Cal.2002) ( “Plaintiff has not provided any evidence regarding the height of the checkout

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For the Northern District of California

At trial, Defendants’ counsel moved for judgment on partial findings, see supra n. 6, on the

4

United States District Court

3

counter at Eddie Bauer’s Store. Therefore, this portion of Eddie Bauer's summary judgment motion

12

is granted . . . ”).

13

Plaintiff did not call any witness to testify about what elements of Bacco constituted

14

architectural barriers. Sarantschin testified about location and measurements of features in the

15

bathroom. But Plaintiff did not provide a witness to testify about how those features and

16

measurements amounted to architectural barriers. Nor did Plaintiff provide any legal argument

17

regarding specific ADAAG standards, including any that prohibit in-swinging doors. In contrast,

18

Defendant’s expert testified that the swing direction of the door was likely not an architectural

19

barrier. Tr. at 100:2-8 (“I am not sure the door swinging in would be an impediment. Because it’s a

20

unisex restroom, the new ADA says if the door swings in, it can swing to the clear space.”). The

21

1991 ADAAG standards prohibit doors from swinging into the clear floor space required for any

22

fixture. 28 C.F.R. Pt. 36, App. D §§ 4.22.2.8 The 2004 revisions to the ADAAG maintain this

23
24
25
26
27
28

7

Plaintiff did not put forward any clear piece of evidence demonstrating that the door was inswinging as of the date of trial. The court cobbles together this inference from the following facts. The
parties stipulated that during Plaintiff’s visits to Bacco, the door to the unisex restroom (at that time the
men’s restroom) swung into the restroom. JFFCL ¶ 12. Plaintiff also entered into evidence a report by
Sarantschin stating that he had inspected Bacco on September 17, 2012 and that the “door still swings
into restroom.” Pl.’s Ex. 39 at 2. See also Pl.’s Ex. 28 (photograph dated September 17, 2012 showing
in-swing of door). The court assumes that the in-swinging door existed as of the date of trial because
Defendants did not offer evidence to the contrary.
8

The 1991 ADAAG standards are available on the website of the United States Access Board.
See http://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-ada-standards/
background/adaag (last accessed Feb. 10, 2014).
12

1

prohibition, but permit doors “to swing into the required turning space” inside the restroom.9 36

2

C.F.R. Pt. 1191, App. D § 603.2.3. The 2004 revisions also provide several exceptions to the

3

prohibition, including the following: “Where the toilet room or bathing room is for individual use

4

and a clear floor space complying with [Section] 305.3 [providing a clear floor space of 30 inches by

5

48 inches] is provided within the room beyond the arc of the door swing, doors shall be permitted to

6

swing into the clear floor space or clearance required for any fixture.” Id. Plaintiff offered no

7

evidence demonstrating that the post-remediation configuration of the door fails to comply with

8

ADAAG. Plaintiff thus has not met his burden of demonstrating that the inward swing of the

9

restroom door constitutes an architectural barrier.

11
For the Northern District of California

United States District Court

10

b. Would Plaintiff’s suggested method of removing the barrier improve access?
Even if Plaintiff had met his burden of establishing that the inward swing of the restroom

12

door constitutes an architectural barrier, he failed to make any showing that changing the door from

13

an inward to an outward swing would improve the accessibility of the restroom. Plaintiff presented

14

no evidence or argument on this matter, and Defendants’ expert did not opine either way.

15

c. Is Plaintiff’s suggested method of removing the barrier readily achievable?

16

Furthermore, even if Plaintiff had established that the inward swing of the restroom door was

17

an architectural barrier and that changing its swing direction would provide better access, Plaintiff’s

18

suggestion of reversing the direction of the swing is not readily achievable. Plaintiff’s expert

19

admitted such an alteration would violate state building codes. Pl.’s Ex. 42 (corridor is only 42”

20

wide); Tr. at 72:3-16 (Gregg testifying that code requirements required a 60” wide corridor for a

21

door opening into a corridor, and that he did not know whether one would be able to obtain a permit

22

for Plaintiff’s suggested plan). Defendant’s expert further testified that an alteration that violated

23

state building codes would not be permitted by the authorizing agency. Tr. at 100:2-3. Cf. Moeller

24

v. Taco Bell Corp., No. 02-cv-5849-MJJ, 2007 WL 2301778, at *17-18 (N.D. Cal. Aug. 8, 2007)

25

(“The fact that building inspectors have discretionary governmental immunity as to the issuance of

26

building and occupancy permits does not otherwise empower them to actually issue permits for

27

facilities that violate statutory or regulatory requirements . . . building inspectors do not have

28
9

The 2004 ADAAG standards are available on the website of the U.S. Department of Justice,
Civil Rights Division. See http://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm
(last accessed Feb. 10, 2014).
13

1

discretion to issue building permits or certificates of occupancy for facilities that do not comply with

2

[the California Building Code].”).

3

Plaintiff makes a generalized argument that the California Building Code is preempted by the

4

ADA “to the extent that . . . its forced application by a local building department official frustrates a

5

public accommodation’s ability” to remove a barrier, such that this court may not consider whether

6

his suggested repair would be permitted under state building codes when determining whether that

7

repair is “readily achievable.” PFFCL at 13.

8
9

It is well-established that Congress has the power to preempt state law. U.S. Const. Art. VI,
cl. 2; Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992). It may do so expressly or
impliedly. Cipollone, 505 U.S. at 516. Congress’ intent may be “explicitly stated in the statute’s

11
For the Northern District of California

United States District Court

10

language or implicitly contained in its structure and purpose.” Id. (quoting Jones v. Rath Packing

12

Co., 430 U.S. 519, 525 (1997)) Id. Nothing in the ADA expressly preempts state regulation of

13

building codes, so preemption, if any, must be implied.10

14

There are two types of implied preemption: conflict preemption and field preemption.

15

Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007). Field preemption is inapposite here.11

16

With respect to conflict preemption, “where Congress has not entirely displaced State regulation in a

17

specific area, State law will still be preempted to the extent that it actually conflicts with federal

18

law.” Pacific Gas and Elec. Co., 461 U.S. at 204. Conflict preemption exists where “compliance

19

with both federal and state regulations is a physical impossibility, or where state law stands as an

20

obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id.

21

(citations omitted); Montalvo, 508 F.3d at 470.

22

When addressing questions of preemption, the court must begin its analysis “with the

23
24
25
26
27
28

10

Section 501(b) of the ADA provides that state laws which provide greater or equal protection
to individuals with disabilities are explicitly not preempted. See 42 U.S.C. § 12201.
11

Courts will find a state law field-preempted when congressional intent to “supercede state law
altogether may be found from a scheme of federal regulation so pervasive as to make reasonable the
inference that Congress left no room to supplement it, because the Act of Congress may touch a field
in which the federal interest is so dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject, or because the object sought to be obtained by the federal
law and the character of obligations imposed by it may reveal the same purpose.” Pacific Gas and Elec.
Co. v. State Energy Res. Conservation and Dev. Comm’n, 461 U.S. 190, 204 (1983) (internal quotations
omitted). Plaintiff does not appear to argue that the ADA preempts California’s building standards in
their entirety.
14

1

assumption that the historic police powers of the States [are] not to be superseded by the Federal Act

2

unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331

3

U.S. 218, 230 (1947). That assumption applies with particular force when, as here, Congress has

4

legislated in a field traditionally occupied by the States. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

5

(1996); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (“Because federal law is said to

6

bar state action in a field of traditional state regulation, namely, advertising, we work on the

7

assumption that the historic police powers of the States are not to be superseded by the Federal Act

8

unless that is the clear and manifest purpose of Congress.”) (quotations and brackets omitted).

9

“[W]hen the text of a preemption clause is susceptible of more than one plausible reading, courts
ordinarily accept the reading that disfavors preemption.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77

11
For the Northern District of California

United States District Court

10

(2008) (citations omitted).

12

Congressional intent is the “ultimate touchstone” of any preemption analysis, express or

13

implied. Gade v. Nat'l Solid Wastes Management Ass'n, 505 U.S. 88, 96 (1992). In determining

14

Congressional intent to preempt, a court must “begin with the language employed by Congress and

15

the assumption that the ordinary meaning of the language accurately expresses the legislative

16

purpose,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992), because “[t]he first and

17

most important step in construing a statute is the statutory language itself.” Royal Foods Co., Inc. v.

18

RJR Holdings, Inc., 252 F.3d 1102, 1106 (9th Cir. 2001) (citing Chevron USA v. Natural Resources

19

Defense Council, 467 U.S. 837, 842-44 (1984)).

20

The ADA defines discrimination as, inter alia, “the failure to remove barriers . . . in existing

21

facilities . . . where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv) (emphasis

22

added). “The term ‘readily achievable’ means easily accomplishable and able to be carried out

23

without much difficulty or expense.” 42 U.S.C. § 12181(9). One factor to be considered in the

24

determination of whether an action is readily achievable is “the nature and cost of the action

25

needed.” Id. Moreover, the ADA regulations further specify that “no measure shall be taken ... that

26

poses a significant risk to the health or safety of individuals with disabilities or others.” 28 C.F.R. §

27

36.304(d)(3).

28

Removal of barriers under the ADA is a conditional rather than absolute requirement. It may
be excused if it is not “readily achievable,” i.e. “easily accomplishable and able to be carried out
15

1

without much difficulty or expense.” Nothing in the ADA precludes the court from determining in a

2

particular instance that “readily achievable” includes consideration of whether a suggested repair

3

would be permitted under a state building standard. Conversely, the bare fact that a particular

4

building code may appear to prohibit a suggested remediation does not necessarily mean that the

5

remediation is not readily achievable. “Preemption analysis should take place on a case by case

6

basis.” Adkins v. Mireles, 526 F.3d 531, 541 (9th Cir. 2008). See also Williamson v. Gen. Dynamics

7

Corp., 208 F.3d 1144, 1155 (9th Cir. 2000) (“Preemption issues . . . must be decided on a case-by-

8

case basis.”). Here, Plaintiff makes a universal argument that the ADA preempts a building code “to

9

the extent that . . . its forced application by a local building department official frustrates a public
accommodation’s ability” to remove a barrier. PFFCL at 13. Plaintiff did not identify a particular

11
For the Northern District of California

United States District Court

10

conflict upon which the court could perform a preemption analysis. Under the plain meaning of the

12

ADA provisions, and given the lack of specificity in Plaintiff’s argument, there is no actual conflict

13

between the ADA and the state building code.

14
15
16

ii. Clear Space
a. Does the lack of clear space in the restroom constitute an architectural
barrier?

17

The post-remediation configuration of the restroom provides only 21” of clear space between

18

the front of the toilet and the wall, and 18-20” between the toilet and the sink to its left. Pl.’s Ex. 39;

19

Blackseth Report at 20; Tr. at 109:14-23.

20

With respect to the sufficiency of the clear space in the restroom in front of the toilet,

21

Plaintiff did not provide any reference to the applicable ADAAG provision, or otherwise establish

22

the legal foundation for an architectural barrier. However, Defendants themselves, through their

23

stipulations and expert witness, provide the basis for the court’s finding that this element constitutes

24

an architectural barrier. Blackseth’s report notes that even after his recommended remediations are

25

made, the restroom will not fully comply with applicable standards because (1) the room dimensions

26

are 55” by 89”, which is not large enough for the 60” diameter turning area requirement, and (2) the

27

toilet provides only 21” of space from the front of the toilet to the face of the wall. Blackseth Report

28

at 15-20. Blackseth referred to these as “ADA barrier[s].” Id. at 16. Blackseth also testified at trial
that the insufficient clear space in the restroom was in fact an architectural barrier because it
16

circle that’s required is not going to fit in a 55-inch wide restroom.”). In addition, Defendants

3

stipulated prior to trial that “[t]he men’s restroom does not have sufficient clear floor space pursuant

4

to ADAAG 4.16.2 which requires a minimum of 56” by 60” and therefore constituted an

5

architectural barrier.” JFFCL at 4 ¶ 6. Accord 36 C.F.R. Pt. 1191, App. D § 604.3.1 (requiring

6

clearance around toilet to be 60 inches measured perpendicular from the side wall and 56 inches

7

minimum measured perpendicular from the rear wall); 28 C.F.R. Pt. 36, App. D § 4.16.2, Fig. 28

8

(providing three possible configurations for the required clear floor space around a toilet); § 4.2.3

9

(requiring wheelchair turning space of 60 inches in diameter or a 60 by 60 inch T-shaped space).

10

The court therefore finds that through the parties’ stipulations and Defendants’ submissions and

11
For the Northern District of California

rendered the restroom noncompliant with ADAAG standards. Tr. at 92:3-4 (“[T]he 60-inch turning

2

United States District Court

1

testimony, Plaintiff has met his burden of demonstrating that the lack of clear floor space in the

12

restroom constitutes an architectural barrier.

13
14

b. Would Plaintiff’s suggested method of removing the barrier improve access?
Defendants’ expert admitted that Plaintiff’s suggested plan for repositioning the sink and

15

toilet would provide better accessibility for disabled users than the restroom in its current state. Tr.

16

at 109:14-111:02 (the suggested plan’s relocation of the sink is “better” than the post-remediation

17

placement of the sink); 108:5-19 (Blackseth testifying that rotating the toilet would make it easier

18

for a person in a wheelchair to make a side transfer onto the toilet); 124:10-23 (“I would agree [that

19

Plaintiff’s suggested plan is] better than Diagram 1 [depicting the restroom as Plaintiff first

20

encountered it].”).

21
22

c. Is Plaintiff’s suggested method of removing the barrier readily achievable?
Plaintiff elicited testimony by expert Gaylon Gregg on the cost of the suggested repairs.

23

Gregg provided a cost estimate that itemized the cost of materials, labors, permits, and other

24

requirements for executing Plaintiff’s suggested plan for all of the bathroom remediations. Pl.’s Ex.

25

37 (“Gregg Report”). Gregg also testified at trial. See Tr. 55:25-77:23.

26

Gregg’s report estimates that the total cost of the suggested plan, including changing the door

27

swing, widening the door, turning the toilet, and repositioning the sink, would be $4,104.33. Gregg

28

Report at 8. Gregg’s trial testimony was not a model of clarity. For example, Gregg estimated the
total cost of rotating the toilet to be “about a hundred dollars.” Tr. at 66:23-67:3. The court
17

testimony, report or exhibits whether rotation of the toilet would necessitate significant replumbing.

3

See Tr. at 73:22-75:13. Gregg testified without much elaboration that the existing plumbing could

4

be used for the rotated toilet through the addition of an offset flange, and that his estimate included

5

labor and material contingencies that would cover that cost. Tr. at 74:21-75:13. Blackseth testified

6

that installing an offset flange would not be sufficient and rotating the toilet would require relocation

7

of plumbing, Tr. 105:21-106:2, but Defendants provided no evidence challenging Plaintiff’s estimate

8

of the costs of repositioning the toilet and sink, because on Plaintiff’s motion, the court refused to

9

allow Blackseth to testify on that subject.12 Furthermore, Metaxas testified that the Trust would be

10

able to pay $10,000 to cover capital improvements at Bacco. Tr. at 154:19-21. The court therefore

11
For the Northern District of California

questioned Gregg further regarding the costs for rotating the toilet, since it was not clear from the

2

United States District Court

1

finds that financial factors do not prohibit a determination that repositioning the toilet and sink is

12

readily achievable.

13

However, the court nonetheless determines that Plaintiff’s remediation plan is not readily

14

achievable because Defendants put forth unrebutted expert testimony that the suggested repairs

15

would violate building codes and would not be allowed by the permitting authorities. Blackseth

16

testified that building codes require 48” of clear space in front of the toilet; Plaintiff’s plan, which

17

would not provide the required 48”, would not receive a permit and therefore could not be built. Tr.

18

at 109:24-110:12. Accord Cal. Code Regs. tit. 24 (2013, effective Jan. 1, 2014) (Cal. Building

19

Standards Code) Ch. 11B § 604.3.1 (“A minimum of 50 inches (1524 mm) wide and 48 inches

20

(1219) deep maneuvering space shall be provided in front of the water closet.”); Cal. Code Regs. tit.

21

24 (2010) (Cal. Building Code) Ch. 11B § 1115B.3.2 (same).13 Plaintiff did not provide contrary

22

evidence. As discussed above, the court finds that the ADA does not automatically preempt state

23

building codes such as to prevent this court from determining that a suggested repair for which a

24

building permit would not be issued is not a readily achievable repair.

25
26
27
28

12

The court did not permit Plaintiff’s expert Blackseth to testify to the monetary cost of the
suggested plan, because, as stated in the pretrial order, “Blackseth did not discuss cost in his report;
Plaintiff therefore was not put on notice and did not have a fair opportunity to decide whether to depose
Mr. Blackseth on that topic, and/or to designate a rebuttal expert. Allowing Mr. Blackseth to testify
about the cost of various repairs or removal of architectural barriers would result in prejudice to
Plaintiff.” Docket No. 81 at 4. See also Tr. at 92:15-20.
13

The California Building Standards Code (Title 24 of the California Code of Regulations) may
be accessed online at http://www.bsc.ca.gov/codes.aspx (last accessed February 7, 2014).
18

1
2
3

iii. Doorway Width
a. Is the doorway width an architectural barrier?
The post-remediation width of the restroom doorway is 30 inches. RAFS ¶ 4 (“The existing

4

men’s restroom at Bacco prior to conversion to a unisex restroom did not have a door that when

5

open at 90 degrees provided 32” of clearance as required by ADAAG . . . . No remedial work was

6

done to widen the door.”); Pl.’s Ex. 39 (Sarantschin report of inspection dated September 17, 2012,

7

noting that unisex restroom doorway had only 30” clearance when opened at 90 degrees); Pl.’s Ex.

8

41 (showing as-is doorway width of 30 inches). This does not meet the ADAAG standard, which

9

requires that “doorways shall have a minimum clear opening of 32 in. [] with the door open 90
degrees.” 28 C.F.R. Pt. 36, App. D § 4.13.5. The parties stipulated that the width of the doorway is

11
For the Northern District of California

United States District Court

10

an architectural barrier. JFFCL at 4 ¶ 5 (“The door to the men’s restroom at Bacco Restaurant does

12

not provide 32” of clearance when open at 90 degrees, and therefore constitutes an architectural

13

barrier pursuant to ADAAG § 4.13.5.”).

14

b. Would Plaintiff’s suggested method of removing the barrier improve access?

15

Blackseth testified that he did not believe that widening the doorway to 32” from 30” would

16

improve the accessibility of the restroom. Tr. 100:23-101:1 (“Quite frankly, I don’t think it would

17

make it any better. For me to make a turn in my electric wheelchair from a 42-inch opening into a

18

32-inch opening would be extremely difficult.”). However, somewhat contrary to his own

19

testimony, Blackseth also opined that the use of offset hinges in the doorway, which would have the

20

effect of broadening the doorway, “is an excellent idea,” is “appropriate” and would “help” with

21

accessibility. Tr. at 100:13-20. Plaintiff has thus met his burden of demonstrating that expanding

22

the doorway would improve access to the restroom.

23
24
25
26
27
28

c. Is Plaintiff’s suggested method of removing the barrier readily achievable?
Plaintiff suggested two methods of expanding the doorway to improve access to the
restroom: widening the doorway, or using offset hinges.
1. Widening the Doorway
Plaintiff’s suggested repairs include installing a wider door which would provide 32” of
clearance when opened to 90 degrees. Pl.’s Ex. 42. Gregg’s report shows that labor and materials

19

1

costs for this new door would be $525.13. Gregg Report at 4. At trial, Gregg testified that the total

2

cost of installing a wider door would be $734.58. Tr. at 64:21-65:10.

3

Defendants produced no evidence regarding whether Plaintiff’s suggestion to install a wider

4

door is readily achievable. Defendants’ expert admitted at trial that he had overlooked the doorway

5

width barrier in his report:

6

Frankovich [Plaintiff’s counsel]: Nowhere in your report do you discuss door width or
door swing, isn’t that correct?

7
8
9

Blackseth: I don’t talk about door swing because I was going to leave it swinging in. But
you are correct, no one is perfect . . . . I am not perfect. I do a lot of these.
Tr. at 100:10-19. Defendants did not produce evidence or argument, including expert or lay
testimony, regarding the costs of installing a wider door or any of the other variables the court may

11
For the Northern District of California

United States District Court

10

consider when determining whether a repair is readily achievable.

12

The ADAAG standards list widening a door as an example of a repair likely to be readily

13

achievable. See 28 C.F.R. Pt. 36, App. B - Preamble to Nondiscrimination on the Basis of Disability

14

by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544-01 (“Section

15

36.304(b) provides a wide-ranging list of the types of modest measures that may be taken to remove

16

barriers and that are likely to be readily achievable.”); § 36.304(b) (“Examples of steps to remove

17

barriers included . . . widening doors . . . .”); § 36.304(c) (“[A] public accommodation should take

18

measures to provide access to restroom facilities. These measures include . . . widening of doors.”).

19

Considering this, and Plaintiff’s evidence regarding the costs of installing a wider door and the

20

parties stipulation that the landlord has funds to cover $10,000 of renovations, the court finds that

21

Defendants have failed to prove that Plaintiff’s suggestion for removing the doorway width barrier

22

by installing a wider door was not readily achievable. Accordingly, Defendants violated the ADA

23

by failing to do so, and Plaintiff is entitled to injunctive relief.

24

2. Offset Hinges

25

With respect to the installation of offset hinges, Plaintiff presented no evidence on the cost or

26

nature of the action required. Offset hinges were not discussed in Gregg’s cost estimate,

27

Sarantschin’s submissions, or any other evidence presented by either Plaintiff or Defendants. The

28

suggestion appeared to have been raised for the first time through Plaintiff’s counsel, in a
hypothetical he posed to Gregg. Tr. at 72:22 (“Frankovich: Let me ask you this. If you took that
20

1

existing door . . . and put offset hinges on, how much more clear space would you get by doing

2

that?”).

3

Plaintiff did not present sufficient evidence so that Defendants could evaluate the proposed

(plaintiff failed to satisfy its initial burden where its expert provided only speculative conceptual

6

sketches for the proposed modification rather than a specific design). Blackseth’s testimony that

7

offset hinges are an “excellent idea” that would “help” with accessibility, speaks to the fact that

8

offset hinges would improve access. It does not speak to the question of whether widening the

9

doorway through use of offset hinges is readily achievable. Although common sense leads the court

10

to believe that installation of offset hinges is likely to cost no more than widening the doorway and

11
For the Northern District of California

solution to a barrier and the difficulty of accomplishing it. See Colorado Cross, 264 F.3d at 1009

5

United States District Court

4

replacing the door, and is unlikely to trigger a building permit obstacle, the court cannot make a

12

finding without the existence of evidence. More importantly, it is improper for an ADA plaintiff to

13

surprise a defendant at trial with newly suggested remediations. The mechanisms embodied in the

14

Colorado Cross burden-shifting process and in this district’s general order regarding ADA access

15

litigation14 provide Plaintiff with the opportunity to propose a concrete remediation plan for

16

Defendant to consider and possibly implement to address a particular barrier. Allowing a Plaintiff to

17

raise a proposed remediation for the first time at trial is antithetical to this process. The court

18

therefore finds that Plaintiff failed to meet his initial burden of suggesting offset hinges as a readily

19

achievable method for the removal of the doorway width barrier.

20

E. State Law Claims

21

i. The Unruh Act

22

The Unruh Act broadly outlaws arbitrary discrimination in public accommodations,

23

including discrimination based on disability. Cal. Civ.Code § 51(b); Jankey v. Sung Koo Lee, 55

24

Cal.4th 1038, 1044, 150 Cal.Rptr.3d 191, 290 P.3d 187 (2012). In the disability context, the Unruh

25

Act operates virtually identically to the ADA. Molski, 481 F.3d at 731. Any violation of the ADA

26

necessarily constitutes a violation of the Unruh Act. Id. (citing Cal. Civ.Code § 51(f)). Where the

27

basis of liability for an Unruh Act violation is an ADA violation, plaintiff need not prove intentional

28
14

See General Order 56, http://www.cand.uscourts.gov/filelibrary/142/GO_56_5-29-12_
Corrected.pdf (last accessed March 14, 2014).
21

1

discrimination. Munson v. Del Taco, Inc., 46 Cal.4th 661, 678, 94 Cal.Rptr.3d 685, 208 P.3d 623

2

(2009). Moreover, the Unruh Act allows for monetary damages including automatic minimum

3

penalties in the amount of $4,000, and attorneys’ fees as “may be determined by the court.” Cal. Civ.

4

Code § 52. Proof of actual damages is not required to recover statutory minimum damages under

5

the Unruh Act. See, e.g., Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir.2000).

6

ii. The CDPA

7

The CDPA, Cal. Civ. Code. § 54, substantially overlaps with and complements the Unruh

187. It ensures that people with disabilities have equal rights of access “to public places, buildings,

10

facilities and services, as well as common carriers, housing and places of public accommodation.”

11
For the Northern District of California

Act, although it is narrower in focus. Jankey, 55 Cal.4th at 1044, 150 Cal.Rptr.3d 191, 290 P.3d

9

United States District Court

8

Id. at 1044–45, 150 Cal.Rptr.3d 191, 290 P.3d 187 (citation omitted). As with the Unruh Act, the

12

California Legislature amended the CDPA to incorporate ADA violations and make them a basis for

13

relief under the act. Id.; Cal. Civ.Code §§ 54(c), 54.1(d). The CDPA allows for monetary damages,

14

including automatic minimum penalties in the amount of $1,000, and attorneys’ fees for the

15

prevailing party. Cal. Civ. Code § 54.3(a), § 55. Recognizing the overlap between the Unruh Act

16

and the CDPA, the Legislature expressly foreclosed recovery under both acts. Cal. Civ.Code §

17

54.3(c).

18

iii. California Civil Code § 55.562

19

“The California Legislature enacted the Construction Related Accessibility Standards

20

Compliance Act in 2009, embodied in California Civil Code §§ 55.51-55.57, to improve compliance

21

with disability access laws while protecting businesses from abusive access litigation.” Kohler v.

22

Presidio Int'l, Inc., No. 10-cv-4680-PSG PJWX, 2013 WL 1246801, at *6 (C.D. Cal. Mar. 25, 2013)

23

(citing Cal. Civ.Code §§ 55.51-55.57; Munson v. Del Taco, Inc., 46 Cal.4th 661, 677 (2009)). This

24

legislation restricts the availability of statutory damages under the Unruh Act and the DPA. Id.

25

(citing Munson, 46 Cal.4th at 677).

26

Section 55.56 requires that a plaintiff seeking statutory damages under the Unruh Act or

27

DPA show that the violation denied the plaintiff “full and equal access,” which can occur either if

28

(1) the plaintiff “personally encountered” the barrier on a particular occasion or (2) the plaintiff was

22

1

deterred from accessing that place of accommodation on a particular occasion. Cal. Civ. Code §

2

55.56(a)-(b); Munson, 46 Cal.4th at 677.

3

As to the first circumstance, personally encountering a barrier may be sufficient to give rise

4

to damages if “the plaintiff experienced difficulty, discomfort, or embarrassment because of the

5

violation.” Cal. Civ. Code § 55.56(c). Thus a plaintiff proceeding under this provision “must offer

6

evidence of difficulty, discomfort, or embarrassment in relation to his personal encounter of a barrier

7

in order to recover statutory damages under the Unruh Act or the DPA.” Kohler, 2013 WL

8

1246801 at *7 (discussing prior courts’ analysis of the statutory language and citing Mundy v.

9

ProThro Enterprises, 192 Cal. App. 4th Supp. 1, 6, 121 Cal. Rptr. 3d 274 (2011) and Doran v.

11
For the Northern District of California

United States District Court

10

7–Eleven, Inc., Nos. 11-55031, 11-55619, 2013 WL 602251, at *1 (9th Cir. Feb. 19, 2013).
As to the second circumstance, a deterrence will only give rise to damages if (a) the plaintiff

12

had actual knowledge of a violation and (b) the violation would have actually denied the plaintiff

13

full and equal access if he attempted to access the place on a particular occasion. Id. § 55.56(d).

14

iv. California Health and Safety Code § 19955

15

The FAC alleges a state law claims arising under California Health & Safety Code § 19955,

16

et seq. The purpose of § 19955 is to ensure that places of public accommodation constructed with

17

private funds adhere to the accessibility standards in California Government Code § 4450. Cal.

18

Health & Safety Code § 19955. Government Code § 4450 requires that all buildings constructed

19

with public funds be accessible to and usable by the physically handicapped. It also directs the State

20

Architect to develop standards for making buildings accessible to persons with disabilities. Cal.

21

Gov. Code § 4450. The requirements of Section 19955 only apply to public accommodations

22

constructed on or after (or altered on or after) July 1, 1970, the effective date of the legislation. Cal.

23

Health & Safety Code §§ 19955, 19959; Marsh v. Edwards Theatres Circuit, Inc., 64 Cal.App.3d

24

881, 888, 134 Cal.Rptr. 844 (1976), superceded by statute on another ground, see Hankins v. El

25

Torito Rest., Inc., 63 Cal.App.4th 510, 521, 74 Cal.Rptr.2d 684 (1998); Mannick v. Kaiser Found.

26

Health Plan, Inc., No. 03-cv-5905-PJH, 2006 WL 1626909, at *6 (N.D. Cal. June 9, 2006).

27
28

No evidence in the record demonstrates that the building that houses Bacco was constructed
on or after, or altered on or after, July 1, 1970, within the meaning of the statute. Plaintiff’s post

23

1

trial submissions do not address this statute. Therefore, Plaintiff is deemed to have abandoned his

2

claim premised on Section 19955.

3

v. Damages

4

Having proven that Bacco failed to make a readily achievable repair by widening the

5

restroom door, Plaintiff has therefore established that the same barrier violates the CPDA and Unruh

6

Act as well, and is entitled to damages. See Cal. Civ. Code §§ 51(f), 54(c); see also Rodriguez, _ F.

7

Supp. 2d. _, 2014 WL 31739 at *17. As a preliminary matter, Plaintiff has satisfied the

8

requirements for statutory damages under California Civil Code § 55.562 because he personally

9

encountered the restroom barriers on each of his visits to Bacco, and this caused him difficulty
because he was unable to use the restroom. Plaintiff now seeks statutory damages under the Unruh

11
For the Northern District of California

United States District Court

10

Act of $4,000 for each of his four visits to Bacco, or $16,000 total. Defendants argue that Plaintiff is

12

only entitled to statutory damages in the amount of $4,000.

13

Under Section 55.56, multiple awards may accrue to plaintiffs as a result of multiple visits to

14

a facility. See Cal. Civ. Code § 55.56(e) (“Statutory damages may be assessed . . . based on each

15

particular occasion that the plaintiff was denied full and equal access . . . .”). See also Yates v.

16

Vishal, No. 11-cv-643-JCS, 2013 WL 6073516, at *3 (N.D. Cal. Nov. 18, 2013) (“In the hotel and

17

restaurant context, a plaintiff can recover separate statutory damages for each time a plaintiff visits

18

(or is deterred from visiting) a non-compliant establishment . . . .”); Grutman v. Regents of Univ. of

19

California, 807 F.Supp.2d 861, 869 (N.D. Cal. 2011) (quoting Org. for the Advancement of

20

Minorities with Disabilities v. Pacific Heights Inn, 2006 W L 2560754 (N.D.Cal. Sept. 5, 2006)).

21

The award of statutory damages for multiple occasions of discrimination at a public accommodation

22

is permissive rather than mandatory. Cal. Civ. Code § 55.56(e) (“Statutory damages may be

23

assessed . . . based on each particular occasion . . . .”); see also Ramirez v. Sam’s for Play, No. 11-

24

cv-1370-MEJ, 2013 WL 4428858, *8-9 (N.D. Cal. Aug. 15, 2013) (denying motion for summary

25

judgment on the issue of multiple statutory damages).

26

“The California Supreme Court has stated in dicta that there may be a point at which

27

statutory damages for each offense will be so high that equity and constitutional constraints cabin a

28

defendant’s liability under the Unruh Act.” Vogel v. Rite Aid Corp., No. 13-cv-288-MMM EX,
2014 WL 211789, at *11 (C.D. Cal. Jan. 17, 2014) (awarding plaintiff a total of $12,000, or $4,000
24

1

for each of plaintiff’s three visits) (citing Angelucci v. Century Supper Club, 41 Cal. 4th 160, 179-80

2

(2007)). However, an award of the size Plaintiff requests does not appear to trigger such concerns,

3

as courts frequently make an award of this magnitude under the Unruh Act. See e.g., Vishal Corp.,

4

2013 WL 6073516 at *5 (awarding $12,000 based on three occasions that plaintiff visited defendant

5

hotel/restaurant); McCune v. Singh, No. 10-cv-02207-JAM, 2012 WL 2959436 (E.D. Cal. July 19,

6

2012) motion for relief from judgment denied, 10-cv-02207-JAM, 2013 WL 3367515, at *5 (E.D.

7

Cal. July 5, 2013) (“Plaintiff visited the Plaza four times to patronize its stores and encountered

8

barriers to access each time in violation of the ADA, and he is therefore entitled to $16,000 in

9

damages under the Unruh Act, $4,000 for each visit.”); Freezor v. Del Taco, Inc. 431 F. Supp. 2d
1088, 1091 (S.D. Cal.2005) (“[T]he Court finds Plaintiff is entitled to the statutory minimum of

11
For the Northern District of California

United States District Court

10

$12,000–$4,000 for each time he patronized the Restaurant”).

12

Even if equitable or constitutional concerns do not prohibit the award of multiple statutory

13

damages, the court must consider whether Plaintiff has met his duty to mitigate damages. Cal. Civ.

14

Code § 55.56(g) (“[Section 55.56] does not alter . . . any legal obligation of a party to mitigate

15

damages.”). “One way that plaintiffs may fail to meet their duty is to make multiple visits to the

16

same facility before they could reasonably expect that the barrier was corrected; this is sometimes

17

referred to as stacking.” Vishal Corp., 2013 WL 6073516 at *4. In Ramirez, for example, the court

18

denied summary judgment for plaintiffs on the issue of multiple statutory damages because a factual

19

question remained as to whether plaintiffs had met their duty to mitigate their damages. 2013 WL

20

4428858 at *8. The plaintiffs were entitled to one award for their first visit to the non-compliant

21

facility, but the court found that the fact that they increased the frequency of their visits just prior to

22

filing suit—up from eight times per year to three times in one month—gave rise to a question of fact

23

regarding mitigation. Id.; see also Vishal Corp., 2013 WL 6073516 at *4 (describing Ramirez

24

holding).

25

At trial, Defendants had the opportunity to question Plaintiff about his four visits to Bacco

26

over a three-month period. Defendants chose not to question Plaintiff about these details. Nothing

27

in the record suggests that Plaintiff engaged in inappropriate behavior to “stack” his damages. The

28

court thus finds that each of Plaintiff’s four visits to Bacco between December 15, 2010 and March
9, 2011 gives rise to a separate award of statutory damages under the Unruh Act and Section 55.56.
25

1

IV. Conclusion

2

Defendants have violated the ADA, Unruh Act, and CDPA by failing to make a readily

3

achievable repair to widen a doorway that presented an architectural barrier at Bacco. Plaintiff

4

failed to establish that Defendants violated federal or state law with respect to the swing of the

5

restroom door, or the “clear space” inside the restroom. Accordingly, the court grants Plaintiff

6

injunctive relief in part, and orders that Defendants immediately remove the doorway barrier in a

7

manner consistent with this decision. In addition, the court finds Defendants liable to Plaintiff for

8

statutory damages in the amount of $16,000. The parties are directed to meet and confer and jointly

9

submit a proposed judgment consistent with this order by March 26, 2014. This matter is referred

11

mediation, Plaintiff shall file a motion for attorneys’ fees and costs by May 23, 2014.

12
13

17

onna
Judge D

M. Ryu

DONNA M. RYU
United States Magistrate Judge

RT

ER

H

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Dated: March 17, 2014

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A

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R NIA

IT IS SO ORDERED.

FO

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DERED

O OR
IT IS S

LI

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UNIT
ED

S

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S DISTRICT
TE
C
TA

RT
U
O

For the Northern District of California

to the ADR unit for appointment of a mediator. If the parties cannot resolve the matter through

NO

United States District Court

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N

D IS T IC T
R

OF

C