On 02/06/2020 BRIAN WHITAKER filed a Civil Right - Other Civil Right lawsuit against URBAN OUTFITTERS WEST LLC, A CALIFORNIA LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
SERENA R. MURILLO
URBAN OUTFITTERS WEST LLC A CALIFORNIA LIMITED LIABILITY COMPANY
BALLISTER RAYMOND G. JR.
BUDDINGH JR. JAN
5/28/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)
5/28/2020: Proof of Personal Service - Proof of Personal Service
5/28/2020: Answer - Answer
2/6/2020: Complaint - Complaint
2/6/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
2/6/2020: Summons - Summons on Complaint
2/6/2020: First Amended Standing Order - First Amended Standing Order
2/6/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
Hearing02/09/2023 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
Hearing08/05/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
DocketAnswer; Filed by: Urban Outfitters West LLC, a California Limited Liability Company (Defendant); As to: BRIAN WHITAKER (Plaintiff)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by: Urban Outfitters West LLC, a California Limited Liability Company (Defendant); As to: BRIAN WHITAKER (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by: BRIAN WHITAKER (Plaintiff); As to: Urban Outfitters West LLC, a California Limited Liability Company (Defendant); Service Date: 04/24/2020; Service Cost Waived: NoRead MoreRead Less
DocketComplaint; Filed by: BRIAN WHITAKER (Plaintiff); As to: Urban Outfitters West LLC, a California Limited Liability Company (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: BRIAN WHITAKER (Plaintiff); As to: Urban Outfitters West LLC, a California Limited Liability Company (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: BRIAN WHITAKER (Plaintiff); As to: Urban Outfitters West LLC, a California Limited Liability Company (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
DocketNon-Jury Trial scheduled for 08/05/2021 at 08:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/09/2023 at 08:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street CourthouseRead MoreRead Less
Case Number: 20STLC01182 Hearing Date: February 03, 2021 Dept: 26
Whitaker v. Urban Outfitters West, LLC et al.
MOTION FOR SUMMARY ADJUDICATION
(CCP § 437c)
Plaintiff Brian Whitaker’s Motion for Summary Adjudication is DENIED.
Plaintiff Brian Whitaker (“Plaintiff”) filed the instant action for violation of the Unruh Civil Rights Act (“the Unruh Act”) against Defendant Urban Outfitters West, LLC (“Defendant”) on February 6, 2020. Plaintiff filed the instant Motion for Summary Adjudication (“the Motion”) against Defendant on October 26, 2020. Plaintiff filed an opposition on January 20, 2021 and Plaintiff replied on January 27, 2021.
Plaintiff alleges he is a California resident with physical disabilities. (Compl., ¶1.) He further alleges that he visited Defendant’s store at 810 S. Broadway, Los Angeles, California (“the Store”) on September 14, 2019. (Id. at ¶6.) On the day of his visit, Plaintiff alleges that there was an accessible service counter in the Store but it was not maintained in a manner that was readily accessible to and useable by Plaintiff and other persons with disabilities. (Id. at ¶10.) Specifically, Defendant allegedly converted “a significant portion of the sales counter to a display area where merchandise for sale is offered and displayed.” (Id. at ¶11.) As a result, Plaintiff was helped at the higher sales counter, which caused him difficulty. (Id. at ¶¶12, 16.) Also on the date of Plaintiff’s visit, Defendant failed to provide accessible paths of travel inside the Store, which also caused Plaintiff difficulty. (Id. at ¶¶13, 16.)
Defendant’s evidentiary objections are overruled.
Requests for Judicial Notice
Defendant’s request for judicial notice of the minute order of January 27, 2020 in the pending federal court action between plaintiff and defendant with respect to the store at issue, case no. 2:19-cv08444 is granted.
Plaintiff’s request for judicial notice of Whitaker v. Ling-Su Chinn, LLC, case no. 2:19-CV-08210-JFW-PLA, which appears to be an unpublished case, is denied for lack of relevance.
Plaintiff’s Initial Burden of Proof
Plaintiff brings the instant motion for summary adjudication based on evidence that Defendant cannot demonstrate any defense to the claim for violation of the Unruh Act. On a motion for summary adjudication of a particular cause of action, a moving plaintiff must show that there is no defense by proving each element of the cause of action entitling the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the Court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)
A violation of the American with Disabilities Act (“ADA”) is a violation of section 51, subdivision (f) of California’s Unruh Act. (Cal. Civ. Code, § 51, subd. (f).) Statutory penalties are available for construction-related accessibility violations of the Unruh Act if a patron is denied full and equal access to the place of public accommodation on a particular occasion. (Cal. Civ. Code, § 55.56, subd. (a).) A denial of full and equal access to the place of public accommodation occurs when a patron experiences difficulty, discomfort, or embarrassment due to the violation. (Cal. Civ. Code, § 55.56, subd. (c).) Failure to remove a physical element of the property that does not meet the ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”) amounts to discrimination under the ADA. (42 U.S.C., § 12182, subd. (b)(2)(A)(iv).)
Accordingly, the elements of a claim for violation of the Unruh Act are that: (1) Plaintiff is a qualified individual with a disability; (2) Defendant owned, leased, or operated a place of public accommodation; (3) the place of public accommodation was in violation of one or more construction-related accessibility standards; (4) the violations denied Plaintiff full and equal access to the place of public accommodation; (5) the violations were personally encountered by Plaintiff on a particular occasion; (6) Plaintiff experienced difficulty, discomfort or embarrassment due to the violations; and (7) the discrimination was intentional unless premised exclusively upon a violation of the ADA. (Cal. Civ. Code § 55.56; Mundy v. Pro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1; Surrey v. TrueBeginnings (2009) 168 Cal.App.4th 414.)
In support of the Motion, Plaintiff presents the following evidence. On the date of Plaintiff’s September 14, 2019 visit to the Store, he tried to go through the aisles to browse the merchandise but found his access was blocked by the placement of merchandise. (Motion, Separate Statement, Fact No. 6; Whitaker Decl., ¶5 and Exh. 3.) He could tell that some of the merchandise aisles did not provide a clear path of at least 36 inches. (Motion, Separate Statement, Fact No. 6; Whitaker Decl., ¶5 and Exh. 3.) As a result, it was difficult, discomforting and frustrating to Plaintiff not being able to fit his wheelchair through. (Motion, Separate Statement, Fact No. 6; Whitaker Decl., ¶5 and Exh. 3.) When looking for a sales counter to purchase the items he selected, Plaintiff saw the lowered part of the sales counter was being used to display merchandise that took up most of the lower counter. (Motion, Separate Statement, Fact No. 7; Whitaker Decl., ¶6 and Exh. 3.) Handling his transaction at the higher counter caused Plaintiff difficulty and discomfort because the transaction was at chest level or higher, forcing Plaintiff to raise his arms higher. (Motion, Separate Statement, Fact No. 8; Whitaker Decl., ¶7.) A store employee had to help Plaintiff complete the transaction. (Motion, Separate Statement, Fact No. 8; Whitaker Decl., ¶7.)
When Plaintiff’s investigator visited the store on September 24, 2019, the lower part of the sales counter was still covered with merchandise and promotional material and did not have a point-of-sale device. (Motion, Separate Statement, Fact Nos. 9, 12; Louis Decl., ¶¶5-7 and Exh. 5.) Plaintiff is deterred from visiting the Store based on his knowledge of its non-compliant counter and aisles. (Motion, Separate Statement, Fact No. 19; Whitaker Decl., ¶10.)
Plaintiff’s evidence with respect to the lowered portion of the sales counter does not demonstrate a violation of ADA standards. Under section 904.4.1 of the 2010 ADA Standards, a counter must be no more than 36 inches above the floor but is not required to be “clear,” that is, free of clutter. (See Kong v. Mana Investment Company, LLC (9th Cir. June 17, 2020) No. 19-55577; Johnson v. Starbucks Corp. (N.D. Cal. 2019) 2019 WL 1427435, *2-3.) In Skaff v. Meredien North America Beverly Hills, LLC (9th Cir. 2007) 506 F.3d 832, 839-840, the Ninth Circuit ruled that the failure of a hotel to provide the plaintiff with a roll-in shower as requested was not a violation of the law because the failure was corrected by the next day. (Skaff v. Meredien North America Beverly Hills, LLC (9th Cir. 2007) 506 F.3d 832.) “The ancient maxims of de minimis non curat lex and lex non curat de minimis teach that the law cares not about trifles. (Citations omitted.) The mere delay during correction of the problem is too trifling to support constitutional standing.” (Id. at 839-840.) Here, Plaintiff has not shown that the items on the lowered sales counter could not have been removed to provide him with a compliant space to complete the transaction.
With respect to the aisle width, Plaintiff presents sufficient evidence to carry his initial burden of proof that they were not ADA-compliant based on his own experience and subsequent investigation. Store aisles are required to be 36 inches wide. (28 CFR, pt. 36, subp. D; 36 CFR, pt. 1191, appxs. B, D.) Because the aisles in the Store were not the required width, Plaintiff experienced discomfort, difficulty and frustration being unable to navigate through and has been deterred from visiting the store until the violations are corrected. Plaintiff’s evidence carries its initial burden of proof with respect to all elements of an Unruh violation. The burden now shifts to Defendant to demonstrate the existence of triable issues of material fact.
Defendant’s Burden to Demonstrate the Existence of a Triable Issue of Material Fact
In opposition, Defendant points to relevant case law regarding the “cluttered” counter theory discussed above. It also presents evidence that the lowered portion of the sales counter could have been used to handle Plaintiff’s transaction because it had a point-of-sale machine. (Opp., Separate Statement, Fact Nos. 7, 11-12; Lavinga Decl., ¶¶3-4, 6; NOL, Exh. 2.) To the extent Plaintiff testified he did not feel like he should have to ask to use the lowered counter, despite its presence, “[s]ome courts have interpreted [42 USC section 12182, subd. (b)(2)(A)(ii)] to “require[ ] a person with a disability to request a reasonable and necessary modification, thereby informing the operator of a public accommodation about the disability.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 309 (1st Cir. 2003). This requirement makes sense, to prevent liability and a coercive remedy without notice and an opportunity to address the problem. (Access Living of Metropolitan Chicago v. Uber Technologies, Inc. (N.D. Ill. 2018) 351 F.Supp.3d 1141, 1157.)
With respect to Plaintiff’s contention that certain aisles were blocked, Defendant argues that Plaintiff has not shown there were no alternative accessible aisles, as permitted by the ADA. (28 CFR, § 36.304, subd. (b)(10).) Specifically, Plaintiff testified at his deposition that he could not recall if there were alternate paths of travel. (Opp., Separate Statement, Fact No. 6; NO, Exh. 1, pp. 45:4-7, 48:5-8.) Plaintiff also could not testify that he was unable to get to any product that was available for purchase on the sales floor. (Opp., Separate Statement, Fact No. 6; NO, Exh. 1, pp. 70:24-71:24.) Defendant also presents evidence that neither Plaintiff, nor anyone else, has complained about the width of any aisle in the Store. (Opp., Lavinga Decl., ¶5.)
This evidence creates triable issues of material fact regarding whether the Store violated ADA standards for counter height and aisle width, and whether Plaintiff experienced compensable difficulty or discomfort during his visit to the Store as a result.
Plaintiff Brian Whitaker’s Motion for Summary Adjudication, is DENIED.
Defendant to give notice.
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