DONNA M. RYU, Magistrate Judge.
This case concerns the accessibility of Bacco, a restaurant in San Francisco. Plaintiff Craig Yates patronized Bacco on four occasions between 2010 and 2011. On March 31, 2011, Plaintiff brought this lawsuit against Defendants Bacco, Vi Pa, Inc., and Antone Metaxas and Hideko Metaxas, Trustees of the 2006 Metaxas Family Trust Under Declaration of Trust Dated March 15, 2006 (the "Trust"), alleging that Defendants failed to remove architectural barriers at Bacco in violation of the Americans with Disabilities Act of 1990 ("ADA"), the California Disabled Persons Act ("CDPA"), the Unruh Act, and California Health and Safety Code § 19955 et seq. First Am. Compl. ("FAC") [Docket No. 31] at ¶¶ 1, 21-22.
The parties agree that Plaintiff encountered a number of architectural barriers during his visits, and brought them to Defendants' attention. The parties also agree that, with the exception of the issues that were presented to the court for trial, Defendants addressed Plaintiff's concerns to his satisfaction.
The court held a bench trial in this matter. At trial, Plaintiff asserted the existence of three architectural barriers in one of Bacco's restrooms, and argued that his suggested plan for removing each of those barriers was "readily achievable" under the ADA. Plaintiff sought injunctive relief under the ADA, as well as statutory damages permitted under state law. The parties filed consents 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. L.R. 72-1. The court finds that Plaintiff has established that one of the three alleged architectural barriers can be remediated by means that are readily achievable. Accordingly, the court orders corresponding injunctive relief, as well as statutory damages. Pursuant to Federal Rule of Civil Procedure 52(a), the court makes the following findings of fact and conclusions of law.
Congress passed the ADA "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(2). Title III of the ADA prohibits discrimination against disabled individuals by public accommodations. Id. at § 12182(a). The landlord and tenant are both liable for failing to provide accessible facilities at the public accommodation. 28 C.F.R. § 36.201(b).
To recover on a claim for discrimination under the ADA, a plaintiff must prove (1) he or she is disabled within the meaning of the statute, (2) defendants are private entities that own, lease (or lease to), or operate a place of public accommodation, and (3) the plaintiff was denied public accommodations by defendant(s) because of his or her disability. Arizona ex rel. Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir.2010). Here, the parties have stipulated that the first two elements have been met.
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 public accommodation is accessible under the ADA if it meets the requirements promulgated by the Attorney General in the "ADA Accessibility Guidelines" or the "ADAAG," which is "essentially an encyclopedia of design standards." Oliver v. Ralphs Grocery Co., 654 F.3d 903, 904-905 (9th Cir. 2011); see 28 C.F.R. § 36.406; 28 C.F.R. pt. 36, app. A. However, less rigorous standards are imposed on facilities constructed prior to the ADA's enactment, which are considered "existing" facilities.
Existing, unaltered facilities such as Bacco's need not fully comply with the ADAAG 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 elements that do not meet ADAAG standards. See Wyatt v. Ralphs Grocery Co., 65 F. App'x 589, 590 (9th Cir. 2003) ("Violations of ADAAG standards indicate the existence of an architectural barrier.") (citing Parr v. L&L Drive-Inn Rest., 96 F.Supp.2d 1065, 1086 (D. Haw. 2000)); Moeller v. Taco Bell Corp., No. 02-cv-05849 MJJ, 2007 WL 2301778, at *5 (N.D. Cal. Aug. 8, 2007) ("Although existing facilities are not required to comply with the ADAAG (unless they have been altered), the ADAAG nevertheless provides guidance for determining whether an existing facility contains architectural barriers."); Pickern v. Best W. Timber Cove Lodge Marina Resort, No. 00-cv-1637-WBS-DA, 2002 WL 202442, at *2 (E.D. Cal. Jan. 18, 2002) superseded in part, 194 F.Supp.2d 1128 (E.D. Cal. 2002) ("[The ADAAG] . . . provides valuable guidance for determining when existing facilities contain architectural barriers that must be removed where readily achievable. In fact, the implementing regulations promulgated by the Department of Justice treat any element in an existing facility that does not meet or exceed the ADAAG standards as a barrier to access.") (citations and quotations omitted).
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 accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9). In determining whether an action is "readily achievable," factors to be considered include:
42 U.S.C. § 12181(9). The federal regulations give some examples of "modest measures that may be taken to remove barriers that are likely to be readily achievable": installing ramps, repositioning shelves, rearranging furniture, repositioning telephones, widening doors, installing offset hinges, repositioning a paper towel dispenser, designating accessible parking spaces, and installing raised toilet seats. 28 C.F.R. Pt. 36, App. B at 647; § 36.304(b).
If full compliance with the applicable ADAAG standard is not readily achievable, "a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specific requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements. No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others." 28 C.F.R. § 36.304(d)(3).
The flexible nature of the "readily achievable" standard takes into account the "imperfect realities of disability access law compliance." Rodriguez v. Barrita, Inc., ___ F. Supp. 2d. ___, No. 09-cv-4057-RS, 2014 WL 31739, at *14 (N.D. Cal. Jan. 3, 2014).
"The Ninth Circuit has yet to rule on whether the plaintiff or defendant bears the burden of proof in showing that removal of an architectural barrier is readily achievable, [but] the Ninth 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 999 (10th Cir.2001)." Freemyer v. Kyrene Vill. II, LLC, No. 10-cv-1506-PHX-GMS, 2011 WL 42681. at *5 (D. Ariz. Jan. 6, 2011).
In Colorado Cross, the Tenth Circuit held that the plaintiff bears the initial burden of proving (1) the existence of an architectural barrier and (2) suggesting a method of removing the barrier that is "readily achievable," that is, "easily accomplishable and able to be carried out without much difficulty or expense." Colorado Cross, 264 F.3d at 1002-03; 42 U.S.C. § 12181(9); Hubbard v. Rite Aid Corp., 433 F.Supp.2d 1150, 1159 (S.D. Cal. 2006). If the plaintiff satisfies his initial burden, the burden shifts to Defendants to show that removing the architectural barrier is not readily achievable. Defendants "bears the ultimate burden of persuasion that barrier removal is not readily achievable . . . ." Colorado Cross, 264 F.3d at 1003; see also Strong v. Valdez Fine Foods, No. 09-CV-1278-MMA JMA, 2011 WL 455285 (S.D. Cal. Feb. 4, 2011) rev'd on other grounds, No. 11-55265, ___ F.3d ___, 2013 WL 3746097 (9th Cir. July 18, 2013). This court will follow the "overwhelming majority of federal courts that apply the burden-shifting framework of Colo. Cross." Freemyer, 2011 WL 42681 at *6 (quotation omitted).
Some courts have offered guidance on how a plaintiff may meet his initial burden of proving the existence of an architectural barrier and suggesting a readily achievable method for its removal. See, e.g., Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1274 (11th Cir. 2006) ("[A] plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the cost implementation, and the economic operation of the facility"); Pascuiti v. New York Yankees, No. 98-CV-8186 SAS, 1999 WL 1102748, at *4 (S.D.N.Y. Dec. 6, 1999) (a plaintiff "must consider the four factors identified in 42 U.S.C. § 12181(9)2 and proffer evidence, including expert testimony, as to the ease and inexpensiveness of their proposed method of barrier removal"); Colorado Cross, 264 F.3d at 1009 (plaintiff failed to satisfy its initial burden where its expert provided only speculative conceptual sketches for the proposed modification rather than a specific design which would be easily accomplishable and able to be carried out without much difficulty or expense).
Because a private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier) under the ADA, a defendant's voluntary removal of alleged barriers prior to trial can have the effect of mooting a plaintiff's ADA claim. Oliver, 654 F.3d at 905 (citing 42 U.S.C. §§ 2000a-3(a), 12188(a)(2)). Prior to trial, the parties stipulated that several barriers have been remediated since the commencement of this action. Accordingly, Plaintiff's ADA claim is moot with respect to those barriers. Plaintiff also appears to have abandoned any argument that these barriers could form the basis of state law claims. Cf. Oliver, 651 F.3d at 905 ("The ADA provides for attorneys' fees and costs for prevailing plaintiffs, however, and ADA plaintiffs frequently seek damages by bringing parallel claims under applicable state civil rights laws.") (citation omitted); Hernandez v. Polanco Enterprises, Inc., ___ F.Supp.2d ___, 2013 WL 4520253, at *4 (N.D. Cal. August 23, 2013) (granting motion for summary judgment against plaintiff's Cal. Civ. Code § 54 and Unruh Act claims because plaintiff "made no showing that those barriers could support state-law claims independent of the alleged [mooted] ADA violations").
A significant problem in this case is that Plaintiff failed to establish the alleged architectural barriers with precision. In large part, Plaintiff did not set forth each alleged barrier, identify the applicable ADAAG standard, and provide testimony or briefing on why it amounted to a legally cognizable architectural barrier. The lack of those specifics makes it difficult to analyze not only whether the alleged barriers exist, but also whether Plaintiff's proposed remedy for each barrier is readily achievable. As noted below, Defendants made a mid-trial "motion for non-suit," arguing that Plaintiff had not met the threshold for his claims because he failed to establish the existence of each architectural barrier.
Plaintiff contends that post-remediation, the following architectural barriers remain in the unisex restroom, and their removal is readily achievable:
Pl.'s Ex. 39 (Sarantschin report noting that these three elements had not been remediated); Tr. at 5:17-25.
Plaintiff suggested a plan for removing the above barriers that he claims is "readily achievable." That plan, a diagram of which was entered into evidence as Plaintiff's Exhibit 42, involves the following elements:
The door to the unisex restroom swings inward toward the clear space of the restroom, rather than out into the hallway outside the restroom.
At trial, Defendants' counsel moved for judgment on partial findings, see supra n. 6, on the basis that Plaintiff had failed to present evidence establishing that the accessibility issues identified by Plaintiff, including the door swing direction, constituted architectural barriers. See Tr. at 49:18-53:05; 78:12-80:8. To prove a prima facie case of violation of the ADA, Plaintiff must put forth evidence establishing the existence of architectural barriers. Lieber v. Macy's West, Inc., 80 F.Supp.2d 1065, 1077 (N.D. Cal. 1999) ("Plaintiffs bear the burden of establishing the existence of access barriers . . ."); Martinez v. Columbia Sportswear USA Corp., 859 F.Supp.2d 1174, 1178 (E.D.Cal.2002) ("Plaintiff has not provided any evidence regarding the height of the checkout counter at Eddie Bauer's Store. Therefore, this portion of Eddie Bauer's summary judgment motion is granted . . .").
Plaintiff did not call any witness to testify about what elements of Bacco constituted architectural barriers. Sarantschin testified about location and measurements of features in the bathroom. But Plaintiff did not provide a witness to testify about how those features and measurements amounted to architectural barriers. Nor did Plaintiff provide any legal argument regarding specific ADAAG standards, including any that prohibit in-swinging doors. In contrast, Defendant's expert testified that the swing direction of the door was likely not an architectural barrier. Tr. at 100:2-8 ("I am not sure the door swinging in would be an impediment. Because it's a unisex restroom, the new ADA says if the door swings in, it can swing to the clear space."). The 1991 ADAAG standards prohibit doors from swinging into the clear floor space required for any fixture. 28 C.F.R. Pt. 36, App. D §§ 4.22.2.
Even if Plaintiff had met his burden of establishing that the inward swing of the restroom door constitutes an architectural barrier, he failed to make any showing that changing the door from an inward to an outward swing would improve the accessibility of the restroom. Plaintiff presented no evidence or argument on this matter, and Defendants' expert did not opine either way.
Furthermore, even if Plaintiff had established that the inward swing of the restroom door was an architectural barrier and that changing its swing direction would provide better access, Plaintiff's suggestion of reversing the direction of the swing is not readily achievable. Plaintiff's expert admitted such an alteration would violate state building codes. Pl.'s Ex. 42 (corridor is only 42" wide); Tr. at 72:3-16 (Gregg testifying that code requirements required a 60" wide corridor for a door opening into a corridor, and that he did not know whether one would be able to obtain a permit for Plaintiff's suggested plan). Defendant's expert further testified that an alteration that violated state building codes would not be permitted by the authorizing agency. Tr. at 100:2-3. Cf. Moeller v. Taco Bell Corp., No. 02-cv-5849-MJJ, 2007 WL 2301778, at *17-18 (N.D. Cal. Aug. 8, 2007) ("The fact that building inspectors have discretionary governmental immunity as to the issuance of building and occupancy permits does not otherwise empower them to actually issue permits for facilities that violate statutory or regulatory requirements . . . building inspectors do not have discretion to issue building permits or certificates of occupancy for facilities that do not comply with [the California Building Code].").
Plaintiff makes a generalized argument that the California Building Code is preempted by the ADA "to the extent that . . . its forced application by a local building department official frustrates a public accommodation's ability" to remove a barrier, such that this court may not consider whether his suggested repair would be permitted under state building codes when determining whether that repair is "readily achievable." PFFCL at 13.
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 language or implicitly contained in its structure and purpose." Id. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1997)) Id. Nothing in the ADA expressly preempts state regulation of building codes, so preemption, if any, must be implied.
There are two types of implied preemption: conflict preemption and field preemption. Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007). Field preemption is inapposite here.
When addressing questions of preemption, the court must begin its analysis "with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). That assumption applies with particular force when, as here, Congress has legislated in a field traditionally occupied by the States. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) ("Because federal law is said to bar state action in a field of traditional state regulation, namely, advertising, we work on the assumption that the historic police powers of the States are not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress.") (quotations and brackets omitted). "[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 (2008) (citations omitted).
Congressional intent is the "ultimate touchstone" of any preemption analysis, express or implied. Gade v. Nat'l Solid Wastes Management Ass'n, 505 U.S. 88, 96 (1992). In determining Congressional intent to preempt, a court must "begin with the language employed by Congress and the assumption that the ordinary meaning of the language accurately expresses the legislative purpose," Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992), because "[t]he first and most important step in construing a statute is the statutory language itself." Royal Foods Co., Inc. v. RJR Holdings, Inc., 252 F.3d 1102, 1106 (9th Cir. 2001) (citing Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 842-44 (1984)).
The ADA defines discrimination as, inter alia, "the failure to remove barriers . . . in existing facilities . . .
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 without much difficulty or expense." Nothing in the ADA precludes the court from determining in a particular instance that "readily achievable" includes consideration of whether a suggested repair would be permitted under a state building standard. Conversely, the bare fact that a particular building code may appear to prohibit a suggested remediation does not necessarily mean that the remediation is not readily achievable. "Preemption analysis should take place on a case by case basis." Adkins v. Mireles, 526 F.3d 531, 541 (9th Cir. 2008). See also Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1155 (9th Cir. 2000) ("Preemption issues . . . must be decided on a case-by-case basis."). Here, Plaintiff makes a universal argument that the ADA preempts a building code "to 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 conflict upon which the court could perform a preemption analysis. Under the plain meaning of the ADA provisions, and given the lack of specificity in Plaintiff's argument, there is no actual conflict between the ADA and the state building code.
The post-remediation configuration of the restroom provides only 21" of clear space between the front of the toilet and the wall, and 18-20" between the toilet and the sink to its left. Pl.'s Ex. 39; Blackseth Report at 20; Tr. at 109:14-23.
With respect to the sufficiency of the clear space in the restroom in front of the toilet, Plaintiff did not provide any reference to the applicable ADAAG provision, or otherwise establish the legal foundation for an architectural barrier. However, Defendants themselves, through their stipulations and expert witness, provide the basis for the court's finding that this element constitutes an architectural barrier. Blackseth's report notes that even after his recommended remediations are made, the restroom will not fully comply with applicable standards because (1) the room dimensions are 55" by 89", which is not large enough for the 60" diameter turning area requirement, and (2) the toilet provides only 21" of space from the front of the toilet to the face of the wall. Blackseth Report 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 rendered the restroom noncompliant with ADAAG standards. Tr. at 92:3-4 ("[T]he 60-inch turning circle that's required is not going to fit in a 55-inch wide restroom."). In addition, Defendants stipulated prior to trial that "[t]he men's restroom does not have sufficient clear floor space pursuant to ADAAG 4.16.2 which requires a minimum of 56" by 60" and therefore constituted an architectural barrier." JFFCL at 4 ¶ 6. Accord 36 C.F.R. Pt. 1191, App. D § 604.3.1 (requiring clearance around toilet to be 60 inches measured perpendicular from the side wall and 56 inches minimum measured perpendicular from the rear wall); 28 C.F.R. Pt. 36, App. D § 4.16.2, Fig. 28 (providing three possible configurations for the required clear floor space around a toilet); § 4.2.3 (requiring wheelchair turning space of 60 inches in diameter or a 60 by 60 inch T-shaped space). The court therefore finds that through the parties' stipulations and Defendants' submissions and testimony, Plaintiff has met his burden of demonstrating that the lack of clear floor space in the restroom constitutes an architectural barrier.
Defendants' expert admitted that Plaintiff's suggested plan for repositioning the sink and toilet would provide better accessibility for disabled users than the restroom in its current state. Tr. at 109:14-111:02 (the suggested plan's relocation of the sink is "better" than the post-remediation placement of the sink); 108:5-19 (Blackseth testifying that rotating the toilet would make it easier for a person in a wheelchair to make a side transfer onto the toilet); 124:10-23 ("I would agree [that Plaintiff's suggested plan is] better than Diagram 1 [depicting the restroom as Plaintiff first encountered it].").
Plaintiff elicited testimony by expert Gaylon Gregg on the cost of the suggested repairs. Gregg provided a cost estimate that itemized the cost of materials, labors, permits, and other requirements for executing Plaintiff's suggested plan for all of the bathroom remediations. Pl.'s Ex. 37 ("Gregg Report"). Gregg also testified at trial. See Tr. 55:25-77:23.
Gregg's report estimates that the total cost of the suggested plan, including changing the door swing, widening the door, turning the toilet, and repositioning the sink, would be $4,104.33. Gregg 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 questioned Gregg further regarding the costs for rotating the toilet, since it was not clear from the testimony, report or exhibits whether rotation of the toilet would necessitate significant replumbing. See Tr. at 73:22-75:13. Gregg testified without much elaboration that the existing plumbing could be used for the rotated toilet through the addition of an offset flange, and that his estimate included labor and material contingencies that would cover that cost. Tr. at 74:21-75:13. Blackseth testified that installing an offset flange would not be sufficient and rotating the toilet would require relocation of plumbing, Tr. 105:21-106:2, but Defendants provided no evidence challenging Plaintiff's estimate of the costs of repositioning the toilet and sink, because on Plaintiff's motion, the court refused to allow Blackseth to testify on that subject.
However, the court nonetheless determines that Plaintiff's remediation plan is not readily achievable because Defendants put forth unrebutted expert testimony that the suggested repairs would violate building codes and would not be allowed by the permitting authorities. Blackseth testified that building codes require 48" of clear space in front of the toilet; Plaintiff's plan, which would not provide the required 48", would not receive a permit and therefore could not be built. Tr. at 109:24-110:12. Accord Cal. Code Regs. tit. 24 (2013, effective Jan. 1, 2014) (Cal. Building Standards Code) Ch. 11B § 604.3.1 ("A minimum of 50 inches (1524 mm) wide and 48 inches (1219) deep maneuvering space shall be provided in front of the water closet."); Cal. Code Regs. tit. 24 (2010) (Cal. Building Code) Ch. 11B § 1115B.3.2 (same).
The post-remediation width of the restroom doorway is 30 inches. RAFS ¶ 4 ("The existing men's restroom at Bacco prior to conversion to a unisex restroom did not have a door that when open at 90 degrees provided 32" of clearance as required by ADAAG . . . . No remedial work was done to widen the door."); Pl.'s Ex. 39 (Sarantschin report of inspection dated September 17, 2012, noting that unisex restroom doorway had only 30" clearance when opened at 90 degrees); Pl.'s Ex. 41 (showing as-is doorway width of 30 inches). This does not meet the ADAAG standard, which 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 an architectural barrier. JFFCL at 4 ¶ 5 ("The door to the men's restroom at Bacco Restaurant does not provide 32" of clearance when open at 90 degrees, and therefore constitutes an architectural barrier pursuant to ADAAG § 4.13.5.").
Blackseth testified that he did not believe that widening the doorway to 32" from 30" would improve the accessibility of the restroom. Tr. 100:23-101:1 ("Quite frankly, I don't think it would make it any better. For me to make a turn in my electric wheelchair from a 42-inch opening into a 32-inch opening would be extremely difficult."). However, somewhat contrary to his own testimony, Blackseth also opined that the use of offset hinges in the doorway, which would have the effect of broadening the doorway, "is an excellent idea," is "appropriate" and would "help" with accessibility. Tr. at 100:13-20. Plaintiff has thus met his burden of demonstrating that expanding the doorway would improve access to the restroom.
Plaintiff suggested two methods of expanding the doorway to improve access to the restroom: widening the doorway, or using offset hinges.
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 costs for this new door would be $525.13. Gregg Report at 4. At trial, Gregg testified that the total cost of installing a wider door would be $734.58. Tr. at 64:21-65:10.
Defendants produced no evidence regarding whether Plaintiff's suggestion to install a wider door is readily achievable. Defendants' expert admitted at trial that he had overlooked the doorway width barrier in his report:
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 consider when determining whether a repair is readily achievable.
The ADAAG standards list widening a door as an example of a repair likely to be readily achievable. See 28 C.F.R. Pt. 36, App. B — Preamble to Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544-01 ("Section 36.304(b) provides a wide-ranging list of the types of modest measures that may be taken to remove barriers and that are likely to be readily achievable."); § 36.304(b) ("Examples of steps to remove barriers included . . . widening doors . . . ."); § 36.304(c) ("[A] public accommodation should take measures to provide access to restroom facilities. These measures include . . . widening of doors."). Considering this, and Plaintiff's evidence regarding the costs of installing a wider door and the parties stipulation that the landlord has funds to cover $10,000 of renovations, the court finds that Defendants have failed to prove that Plaintiff's suggestion for removing the doorway width barrier by installing a wider door was not readily achievable. Accordingly, Defendants violated the ADA by failing to do so, and Plaintiff is entitled to injunctive relief.
With respect to the installation of offset hinges, Plaintiff presented no evidence on the cost or nature of the action required. Offset hinges were not discussed in Gregg's cost estimate, Sarantschin's submissions, or any other evidence presented by either Plaintiff or Defendants. The 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 existing door . . . and put offset hinges on, how much more clear space would you get by doing that?").
Plaintiff did not present sufficient evidence so that Defendants could evaluate the proposed solution to a barrier and the difficulty of accomplishing it. See Colorado Cross, 264 F.3d at 1009 (plaintiff failed to satisfy its initial burden where its expert provided only speculative conceptual sketches for the proposed modification rather than a specific design). Blackseth's testimony that offset hinges are an "excellent idea" that would "help" with accessibility, speaks to the fact that offset hinges would improve access. It does not speak to the question of whether widening the doorway through use of offset hinges is readily achievable. Although common sense leads the court to believe that installation of offset hinges is likely to cost no more than widening the doorway and replacing the door, and is unlikely to trigger a building permit obstacle, the court cannot make a finding without the existence of evidence. More importantly, it is improper for an ADA plaintiff to surprise a defendant at trial with newly suggested remediations. The mechanisms embodied in the Colorado Cross burden-shifting process and in this district's general order regarding ADA access litigation
The Unruh Act broadly outlaws arbitrary discrimination in public accommodations, including discrimination based on disability. Cal. Civ.Code § 51(b); Jankey v. Sung Koo Lee, 55 Cal.4th 1038, 1044, 150 Cal.Rptr.3d 191, 290 P.3d 187 (2012). In the disability context, the Unruh Act operates virtually identically to the ADA. Molski, 481 F.3d at 731. Any violation of the ADA necessarily constitutes a violation of the Unruh Act. Id. (citing Cal. Civ.Code § 51(f)). Where the basis of liability for an Unruh Act violation is an ADA violation, plaintiff need not prove intentional discrimination. Munson v. Del Taco, Inc., 46 Cal.4th 661, 678, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009). Moreover, the Unruh Act allows for monetary damages including automatic minimum penalties in the amount of $4,000, and attorneys' fees as "may be determined by the court." Cal. Civ. Code § 52. Proof of actual damages is not required to recover statutory minimum damages under the Unruh Act. See, e.g., Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir.2000).
The CDPA, Cal. Civ. Code. § 54, substantially overlaps with and complements the Unruh Act, although it is narrower in focus. Jankey, 55 Cal.4th at 1044, 150 Cal.Rptr.3d 191, 290 P.3d 187. It ensures that people with disabilities have equal rights of access "to public places, buildings, facilities and services, as well as common carriers, housing and places of public accommodation." Id. at 1044-45, 150 Cal.Rptr.3d 191, 290 P.3d 187 (citation omitted). As with the Unruh Act, the California Legislature amended the CDPA to incorporate ADA violations and make them a basis for relief under the act. Id.; Cal. Civ.Code §§ 54(c), 54.1(d). The CDPA allows for monetary damages, including automatic minimum penalties in the amount of $1,000, and attorneys' fees for the prevailing party. Cal. Civ. Code § 54.3(a), § 55. Recognizing the overlap between the Unruh Act and the CDPA, the Legislature expressly foreclosed recovery under both acts. Cal. Civ.Code § 54.3(c).
"The California Legislature enacted the Construction Related Accessibility Standards Compliance Act in 2009, embodied in California Civil Code §§ 55.51-55.57, to improve compliance with disability access laws while protecting businesses from abusive access litigation." Kohler v. Presidio Int'l, Inc., No. 10-cv-4680-PSG PJWX, 2013 WL 1246801, at *6 (C.D. Cal. Mar. 25, 2013) (citing Cal. Civ.Code §§ 55.51-55.57; Munson v. Del Taco, Inc., 46 Cal.4th 661, 677 (2009)). This legislation restricts the availability of statutory damages under the Unruh Act and the DPA. Id. (citing Munson, 46 Cal.4th at 677).
Section 55.56 requires that a plaintiff seeking statutory damages under the Unruh Act or DPA show that the violation denied the plaintiff "full and equal access," which can occur either if (1) the plaintiff "personally encountered" the barrier on a particular occasion or (2) the plaintiff was deterred from accessing that place of accommodation on a particular occasion. Cal. Civ. Code § 55.56(a)-(b); Munson, 46 Cal.4th at 677.
As to the first circumstance, personally encountering a barrier may be sufficient to give rise to damages if "the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation." Cal. Civ. Code § 55.56(c). Thus a plaintiff proceeding under this provision "must offer evidence of difficulty, discomfort, or embarrassment in relation to his personal encounter of a barrier in order to recover statutory damages under the Unruh Act or the DPA." Kohler, 2013 WL 1246801 at *7 (discussing prior courts' analysis of the statutory language and citing Mundy v. ProThro Enterprises, 192 Cal.App.4th Supp. 1, 6, 121 Cal.Rptr.3d 274 (2011) and Doran v. 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 had actual knowledge of a violation and (b) the violation would have actually denied the plaintiff full and equal access if he attempted to access the place on a particular occasion. Id. § 55.56(d).
The FAC alleges a state law claims arising under California Health & Safety Code § 19955, et seq. The purpose of § 19955 is to ensure that places of public accommodation constructed with private funds adhere to the accessibility standards in California Government Code § 4450. Cal. Health & Safety Code § 19955. Government Code § 4450 requires that all buildings constructed with public funds be accessible to and usable by the physically handicapped. It also directs the State Architect to develop standards for making buildings accessible to persons with disabilities. Cal. Gov. Code § 4450. The requirements of Section 19955 only apply to public accommodations constructed on or after (or altered on or after) July 1, 1970, the effective date of the legislation. Cal. Health & Safety Code §§ 19955, 19959; Marsh v. Edwards Theatres Circuit, Inc., 64 Cal.App.3d 881, 888, 134 Cal.Rptr. 844 (1976), superceded by statute on another ground, see Hankins v. El Torito Rest., Inc., 63 Cal.App.4th 510, 521, 74 Cal.Rptr.2d 684 (1998); Mannick v. Kaiser Found. Health Plan, Inc., No. 03-cv-5905-PJH, 2006 WL 1626909, at *6 (N.D. Cal. June 9, 2006).
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 trial submissions do not address this statute. Therefore, Plaintiff is deemed to have abandoned his claim premised on Section 19955.
Having proven that Bacco failed to make a readily achievable repair by widening the restroom door, Plaintiff has therefore established that the same barrier violates the CPDA and Unruh Act as well, and is entitled to damages. See Cal. Civ. Code §§ 51(f), 54(c); see also Rodriguez, ___ F. Supp. 2d. ___, 2014 WL 31739 at *17. As a preliminary matter, Plaintiff has satisfied the requirements for statutory damages under California Civil Code § 55.562 because he personally 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 Act of $4,000 for each of his four visits to Bacco, or $16,000 total. Defendants argue that Plaintiff is only entitled to statutory damages in the amount of $4,000.
Under Section 55.56, multiple awards may accrue to plaintiffs as a result of multiple visits to a facility. See Cal. Civ. Code § 55.56(e) ("Statutory damages may be assessed . . . based on each particular occasion that the plaintiff was denied full and equal access . . . ."). See also Yates v. Vishal, No. 11-cv-643-JCS, 2013 WL 6073516, at *3 (N.D. Cal. Nov. 18, 2013) ("In the hotel and restaurant context, a plaintiff can recover separate statutory damages for each time a plaintiff visits (or is deterred from visiting) a non-compliant establishment . . . ."); Grutman v. Regents of Univ. of California, 807 F.Supp.2d 861, 869 (N.D. Cal. 2011) (quoting Org. for the Advancement of Minorities with Disabilities v. Pacific Heights Inn, 2006 W L 2560754 (N.D.Cal. Sept. 5, 2006)). The award of statutory damages for multiple occasions of discrimination at a public accommodation is permissive rather than mandatory. Cal. Civ. Code § 55.56(e) ("Statutory damages may
"The California Supreme Court has stated in dicta that there may be a point at which statutory damages for each offense will be so high that equity and constitutional constraints cabin a 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 for each of plaintiff's three visits) (citing Angelucci v. Century Supper Club, 41 Cal.4th 160, 179-80 (2007)). However, an award of the size Plaintiff requests does not appear to trigger such concerns, as courts frequently make an award of this magnitude under the Unruh Act. See e.g., Vishal Corp., 2013 WL 6073516 at *5 (awarding $12,000 based on three occasions that plaintiff visited defendant hotel/restaurant); McCune v. Singh, No. 10-cv-02207-JAM, 2012 WL 2959436 (E.D. Cal. July 19, 2012) motion for relief from judgment denied, 10-cv-02207-JAM, 2013 WL 3367515, at *5 (E.D. Cal. July 5, 2013) ("Plaintiff visited the Plaza four times to patronize its stores and encountered barriers to access each time in violation of the ADA, and he is therefore entitled to $16,000 in 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 $12,000-$4,000 for each time he patronized the Restaurant").
Even if equitable or constitutional concerns do not prohibit the award of multiple statutory damages, the court must consider whether Plaintiff has met his duty to mitigate damages. Cal. Civ. Code § 55.56(g) ("[Section 55.56] does not alter . . . any legal obligation of a party to mitigate damages."). "One way that plaintiffs may fail to meet their duty is to make multiple visits to the same facility before they could reasonably expect that the barrier was corrected; this is sometimes referred to as stacking." Vishal Corp., 2013 WL 6073516 at *4. In Ramirez, for example, the court denied summary judgment for plaintiffs on the issue of multiple statutory damages because a factual question remained as to whether plaintiffs had met their duty to mitigate their damages. 2013 WL 4428858 at *8. The plaintiffs were entitled to one award for their first visit to the non-compliant facility, but the court found that the fact that they increased the frequency of their visits just prior to filing suit—up from eight times per year to three times in one month—gave rise to a question of fact regarding mitigation. Id.; see also Vishal Corp., 2013 WL 6073516 at *4 (describing Ramirez holding).
At trial, Defendants had the opportunity to question Plaintiff about his four visits to Bacco over a three-month period. Defendants chose not to question Plaintiff about these details. Nothing in the record suggests that Plaintiff engaged in inappropriate behavior to "stack" his damages. The 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.
Defendants have violated the ADA, Unruh Act, and CDPA by failing to make a readily achievable repair to widen a doorway that presented an architectural barrier at Bacco. Plaintiff failed to establish that Defendants violated federal or state law with respect to the swing of the restroom door, or the "clear space" inside the restroom. Accordingly, the court grants Plaintiff injunctive relief in part, and orders that Defendants immediately remove the doorway barrier in a manner consistent with this decision. In addition, the court finds Defendants liable to Plaintiff for statutory damages in the amount of $16,000. The parties are directed to meet and confer and jointly submit a proposed judgment consistent with this order by
