Opinion
No. 2:18-cv-01886 WBS EFB
07-17-2020
SCOTT JOHNSON, Plaintiff, v. STARBUCKS CORPORATION, a Washington Corporation; and DOES 1-10, Defendants.
MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Scott Johnson, a disabled individual, initiated this action against defendant Starbucks Corporation ("Starbucks"), seeking damages under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, and the Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53. (Compl. (Docket No. 1).) Before the court are the parties' cross-motions for summary judgment. (Docket Nos. 35, 37.)
I. Background
Plaintiff is a quadriplegic who uses a wheelchair for mobility. (Decl. of Scott Johnson ("Johnson Decl.") ¶ 2 (Docket No. 37-3).) On at least six different occasions between July 2017 and January 2018, plaintiff visited and made purchases at the Starbucks-operated coffee shop located at 4332 Watt Avenue in Sacramento, California ("Watt Avenue Starbucks"). (Id. ¶ 3.) Plaintiff alleges that during his visits, he encountered access barriers that denied him full and equal access to the coffee shop. Specifically, plaintiff contends that he had difficulty using the sales counter because it "was crowded with merchandise and displays, which limited the usable space on the counter." (Id. ¶ 5.) He claims the condition of the sales counter caused him discomfort and frustration. (Id. ¶ 7.)
Plaintiff's investigator, Tim Wegman, conducted a site inspection of the Watt Avenue Starbucks on two separate occasions. (Decl. of Tim Wegman ("Wegman Decl.") ¶ 3 (Docket No. 37-6).) During his first visit on June 27, 2018, Wegman found the sales counter was approximately 34 inches high. (Id. ¶¶ 3-4.) Wegman measured approximately 14 inches of clear space near the register on the left, and 13 inches of clear space near the register on the right. (Id. ¶ 6.) Wegman conducted a follow-up investigation on October 11, 2019, and found approximately 16 inches of clear space near the register on the left and 15 inches of clear space on the right. (Id. ¶¶ 7-9.) The height of the sales counter remained unchanged.
Plaintiff filed this action on July 5, 2018, alleging the diminished counterspace violated the ADA, and, by extension, the Unruh Act. (See generally Compl.) Parties now cross-move for summary judgment on both claims. (Docket Nos. 35, 37.)
II. Standard
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the movant can demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id. Any inferences drawn from the underlying facts must, however, be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. Discussion
A. ADA Claim
The ADA was enacted in 1990 to "remedy widespread discrimination against disabled individuals," PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001), and permits private lawsuits against businesses that fail to accommodate individuals with disabilities, 42 U.S.C. § 12188(a). To prevail on an ADA claim, "the plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability." Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Only the third element is in dispute here.
"The third element--whether [a plaintiff is] denied public accommodations on the basis of disability--is met if there was a violation of applicable accessibility standards." Johnson v. Wayside Prop., Inc., 41 F. Supp. 3d 973, 976 (E.D. Cal. 2014) (Shubb, J.) (citation omitted); see Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc). Those standards are set forth by the ADA Accessibility Guidelines ("ADAAG").
The Department of Justice ("DOJ") promulgated the ADAAG in 1991 and revised them in 2010. See Kohler v. Flava Enters., Inc., 826 F. Supp. 2d 1221, 1229 (S.D. Cal. 2011). All architectural and structural elements in a facility are required to comply with the 1991 Standards to the extent that compliance is readily achievable; by contrast, the 2010 standards apply only to elements that have been altered in existing facilities, or that fail to comply with the 1991 Standards on or after March 15, 2012. 28 C.F.R. § 36.304(d)(1)-(2). These standards "provide[] the objective contours of the standard that architectural features must not impede disabled individuals' full and equal enjoyment of accommodations." Chapman, 631 F.3d at 945; see 28 C.F.R. pt. 1191 (2010 Standards); 28 C.F.R. pt. 36, App. D (1991 Standards).
The two 2010 standards at issue in this case are Sections 904.4 and 904.4.1. Section 904.4 states:
Sales and Service Counters. Sales counters and service counters shall comply with 904.4.1 or 904.4.2. The accessible portion of the counter top shall extend the same depth as the sales or service counter top.36 C.F.R., Pt. 1191, App. D, § 904.4. Section 904.4.1, which applies in this case because an individual would approach the Watt Avenue Starbucks sales counter with his or her wheelchair parallel to it, provides in full:
EXCEPTION: In alterations, when the provision of a counter complying with 904.4 would result in a reduction of the number of existing counters at work stations or a reduction of the number of existing mail boxes, the counter shall be permitted to have a portion which is 24 inches (610 mm) long minimum complying with 904.4.1 provided that the required clear floor or ground space is centered on the accessible length of the counter.
Parallel Approach. A portion of the counter surface that is 36 inches (915 mm) long minimum and 36 inches (915 mm) high maximum above the finish floor shall be provided. A clear floor or ground space complying with 305 shall be positioned for a parallel approach adjacent to the 36 inch (915 mm) minimum length of counter.Id. § 904.4.1. Plaintiff concedes that the height of the Watt Avenue Starbucks sales counter complies with the ADAAG. (Pl.'s Mot. for Summ. J. at 8 (Docket No. 37).) However, plaintiff contends the Watt Avenue Starbucks has failed "to make [the counter] available for use by a wheelchair user" by crowding it with merchandise and displays, in violation of Section 904.4.1. (Id. at 9.) Additionally, plaintiff argues the width of the counter violates Section 36.211 of the 1991 standards because it is not maintained in an accessible or usable manner. See 28 C.F.R., Pt. 36, App. C, § 36.211(a) ("A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.").
EXCEPTION: Where the provided counter surface is less than 36 inches (915 mm) long, the entire counter surface shall be 36 inches (915 mm) high maximum above the finish floor.
These precise arguments have been presented to this court before. In Johnson v. Starbucks Corporation, No. 2:16-cv-2797 WBS AC, 2019 WL 699136, at *1 (E.D. Cal. Feb. 20, 2019) ("Johnson I"), the very same plaintiff presented the very same arguments against another Starbucks location in Sacramento. There, after careful analysis, this court found Section 904.4.1's text does not require businesses to provide 36 inches of usable counterspace. Id. at *3-4. In the court's view, this reading "gives full and independent effect to the text of each provision and avoids creating internal inconsistencies or surplusage." Id. (citation omitted). Accordingly, the court denied plaintiff's summary judgment motion for violation of the ADA under Section 904.4.1. Id. at *6.
The court also previously entertained plaintiff's claim under Section 36.211(a). Rather than make a legal conclusion, however, the court found that plaintiff had failed to provide facts to establish beyond dispute that the sales counter was not accessible for or usable by persons with disabilities. Id. at *5. Unlike Johnson I, here, Starbucks asks the court to grant summary judgment in its favor. (See generally Def.'s Mot. for Summ. J. (Docket No. 35).) As explained above, Section 904.4.1 expressly contemplates counters that are less than 36 inches long. See 36 C.F.R., Pt. 1191, App. D, § 904.4.1. Accordingly, the court cannot read Section 36.211(a) to require Starbucks to "maintain in operable working condition," a requirement that does not exist. See Lindsay v. Overland Partners Sepulveda, LLC, No. CV 18-1917-GW(PLAx), 2019 WL 8168068, at *7 (C.D. Cal. May 20, 2019) (holding counter in coffee shop "crowded . . . with merchandise and displays" did not violate Sections 904.4.1 and 36.211(a)). This conclusion is only bolstered by a recent memorandum disposition issued by the Ninth Circuit, which held the same. See Johnson v. Starbucks Corp., -- Fed. App'x --, 2020 WL 3265063, at *1-2 (9th Cir. June 17, 2020) (finding merchandise displays on counters did not violate Sections 904.4.1 and 36.211(a)).
Starbucks brought the court's attention to this decision through a Request for Judicial Notice. (Docket No. 39-2.) Plaintiff does not oppose defendant's Request. (See generally Pl.'s Opp'n at 2 (Docket No. 43).)
Plaintiff asks this court to ignore the Ninth Circuit's ruling in Johnson because it is non-precedential and it allegedly conflicts with two Ninth Circuit panel decisions: Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001 (9th Cir. 2015) and Kalani v. Starbucks Coffee Company, 698 Fed. App'x. 883 (9th Cir. June 28, 2017). (Pl.'s Opp'n at 2 (Docket No. 43).) The court disagrees with this characterization. Although for some reason the Ninth Circuit chose not to publish its decision, it did involve the same parties and the same facts as the case now before this court, and it is not inconsistent with either Chapman or Kalani.
In Chapman, the Ninth Circuit held that the plaintiff had offered "insufficient evidence that the obstructions on the counter violated his rights under Title III of the ADA. In contrast to the items blocking the aisles for wheelchair users, the items on the otherwise properly accessible sales counter depicted in [the plaintiff's] photographs were not a barrier to the use of the counter by persons with disabilities." Id. at 1009. This did not, as plaintiff contends, hold that displays on store counters were violations of the ADA. See Lindsay, 2019 WL 8168068, at *7.
Plaintiff's reliance on Kalani also does little to support his argument. In another memorandum disposition, the Ninth Circuit affirmed the Northern District of California's finding that Starbucks failed to maintain adequate counter space in violation of the ADA because the items on the store's counter were not "isolated or temporary interruptions." 698 Fed. App'x at 886. However, neither the Ninth Circuit nor the district court addressed Section 904.4.1's exception, which expressly contemplates a counter being less than 36 inches long. See generally 698 Fed. App'x at 886; Kalani v. Starbucks Corp., 81 F. Supp. 3d 876, 887 (N.D. Cal. 2015). Other courts -- including this court -- have found reliance on Kalani unavailing for that reason. See, e.g., Kong v. Mana Inv. Co., LLC, No. SA CV 18-01615-DOC (DFM), 2019 WL 3220027, at *4 (C.D. Cal. May 1, 2019); Johnson v. Starbucks Corp., No. C 17-02454 WHA, 2019 WL 1427435, at *3 (N.D. Cal. Mar. 29, 2019); Johnson I, 2019 WL 699136, at *3 n.3.
There is no textual support for plaintiff's position that counters must be 36 inches wide. See 36 C.F.R., Pt. 1191, App. D, § 904.4.1. Consequently, there can be no requirement that a 36-inch wide counter space must be "maintained" under Section 36.211(a). Accordingly, the court will grant Starbucks' motion for summary judgment.
B. Unruh Act
The Unruh Act provides in relevant part that every person is "entitled to the full and equal accommodations, advantages, privileges, or services in all business establishments of every kind whatsoever" notwithstanding his or her disability. Cal. Civ. Code § 51(b). "A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 shall also constitute a violation of [the Unruh Act]." Cal. Civ. Code § 51(f) (internal citations omitted).
Plaintiff does not allege a violation of the Unruh Act independent of his claims under the ADA. (Compl. ¶¶ 45-47.) For the reasons given above, plaintiff cannot rely on his alleged ADA violations to support summary judgment on his Unruh Act claim. While plaintiff could perhaps have relied independently upon the Unruh Act by pleading and proving intentional discrimination, see Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (citing Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009)), he has failed to do so. Accordingly, the court will grant defendant's motion for summary judgment with respect to the Unruh Act.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Docket No. 35) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that plaintiff's motion for summary judgment (Docket No. 37) be, and the same hereby is, DENIED. Dated: July 17, 2020
/s/ _________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE