This case was last updated from Los Angeles County Superior Courts on 10/19/2021 at 01:01:34 (UTC).

BRIAN WHITAKER VS URBAN OUTFITTERS WEST LLC, A CALIFORNIA LIMITED LIABILITY COMPANY

Case Summary

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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1182

  • Filing Date:

    02/06/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

WHITAKER BRIAN

Defendant

URBAN OUTFITTERS WEST LLC A CALIFORNIA LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

BALLISTER RAYMOND G. JR.

Defendant Attorney

BUDDINGH JR. JAN

 

Court Documents

Minute Order - Minute Order (Order to Show Cause Re: Dismissal (Settlement))

9/13/2021: Minute Order - Minute Order (Order to Show Cause Re: Dismissal (Settlement))

Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 09/13/2021

9/13/2021: Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 09/13/2021

Notice of Settlement - Notice of Settlement

8/2/2021: Notice of Settlement - Notice of Settlement

Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

8/2/2021: Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

Offer to Compromise - Offer to Compromise

7/22/2021: Offer to Compromise - Offer to Compromise

Offer to Compromise and Acceptance Under Code of Civil Procedure Section 998 - Offer to Compromise and Acceptance Under Code of Civil Procedure Section 998

7/22/2021: Offer to Compromise and Acceptance Under Code of Civil Procedure Section 998 - Offer to Compromise and Acceptance Under Code of Civil Procedure Section 998

Separate Statement - Separate Statement

10/26/2020: Separate Statement - Separate Statement

Memorandum of Points & Authorities - Memorandum of Points & Authorities

10/26/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Motion for Summary Adjudication - Motion for Summary Adjudication

10/26/2020: Motion for Summary Adjudication - Motion for Summary Adjudication

Declaration (name extension) - Declaration and Exhibits

10/26/2020: Declaration (name extension) - Declaration and Exhibits

Request for Judicial Notice - Request for Judicial Notice

1/20/2021: Request for Judicial Notice - Request for Judicial Notice

Objection (name extension) - Objection EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

1/20/2021: Objection (name extension) - Objection EVIDENTIARY OBJECTIONS IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

Separate Statement - Separate Statement

1/20/2021: Separate Statement - Separate Statement

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

1/20/2021: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

1/20/2021: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Declaration (name extension) - Declaration DECLARATION OF NEELAM LAVINGA IN OPPOSTION TO PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

1/20/2021: Declaration (name extension) - Declaration DECLARATION OF NEELAM LAVINGA IN OPPOSTION TO PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

Declaration (name extension) - Declaration OF JAN BUDDINGH, JR. IN OPPOSTION TO PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

1/20/2021: Declaration (name extension) - Declaration OF JAN BUDDINGH, JR. IN OPPOSTION TO PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

Notice of Lodging (name extension) - Notice of Lodging NOTICE OF LODGMENT OF EXHIBITS IN OPPOSTION TO PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

1/20/2021: Notice of Lodging (name extension) - Notice of Lodging NOTICE OF LODGMENT OF EXHIBITS IN OPPOSTION TO PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION

21 More Documents Available

 

Docket Entries

  • 10/28/2021
  • Hearing10/28/2021 at 09:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)

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  • 09/13/2021
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 10/28/2021 at 09:30 AM in Spring Street Courthouse at Department 26

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  • 09/13/2021
  • DocketMinute Order (Order to Show Cause Re: Dismissal (Settlement))

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  • 09/13/2021
  • DocketCertificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 09/13/2021; Filed by: Clerk

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  • 09/13/2021
  • DocketPursuant to the request of plaintiff, Order to Show Cause Re: Dismissal (Settlement) scheduled for 09/13/2021 at 09:30 AM in Spring Street Courthouse at Department 26 Held - Continued was rescheduled to 10/28/2021 09:30 AM

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  • 08/02/2021
  • DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 09/13/2021 at 09:30 AM in Spring Street Courthouse at Department 26

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  • 08/02/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: Clerk

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  • 08/02/2021
  • DocketNon-Jury Trial scheduled for 08/05/2021 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Advanced and Vacated on 08/02/2021

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  • 08/02/2021
  • 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 26 Not Held - Advanced and Vacated on 08/02/2021

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  • 07/22/2021
  • DocketOffer to Compromise; Filed by: Urban Outfitters West LLC, a California Limited Liability Company (Defendant)

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23 More Docket Entries
  • 05/28/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: Urban Outfitters West LLC, a California Limited Liability Company (Defendant); As to: BRIAN WHITAKER (Plaintiff)

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  • 05/28/2020
  • 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: No

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  • 02/06/2020
  • DocketNon-Jury Trial scheduled for 08/05/2021 at 08:30 AM in Spring Street Courthouse at Department 26

    Read MoreRead Less
  • 02/06/2020
  • 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 26

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  • 02/06/2020
  • DocketComplaint; Filed by: BRIAN WHITAKER (Plaintiff); As to: Urban Outfitters West LLC, a California Limited Liability Company (Defendant)

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  • 02/06/2020
  • DocketSummons on Complaint; Issued and Filed by: BRIAN WHITAKER (Plaintiff); As to: Urban Outfitters West LLC, a California Limited Liability Company (Defendant)

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  • 02/06/2020
  • DocketCivil Case Cover Sheet; Filed by: BRIAN WHITAKER (Plaintiff); As to: Urban Outfitters West LLC, a California Limited Liability Company (Defendant)

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  • 02/06/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 02/06/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 02/06/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

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Tentative Rulings

Case Number: 20STLC01182    Hearing Date: February 03, 2021    Dept: 26

Whitaker v. Urban Outfitters West, LLC et al.

MOTION FOR SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Brian Whitaker’s Motion for Summary Adjudication is DENIED.

ANALYSIS:

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.

Discussion

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.)

Evidentiary Objections

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.

Conclusion

Plaintiff Brian Whitaker’s Motion for Summary Adjudication, is DENIED.

Defendant to give notice.

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