Johnson v. Starbucks Corporation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 SCOTT JOHNSON, No. 2:18-cv-01886 WBS EFB 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY 15 STARBUCKS CORPORATION, a JUDGMENT Washington Corporation; and DOES 16 1-10, 17 Defendants. 18 19 ----oo0oo---- 20 Plaintiff Scott Johnson, a disabled individual, 21 initiated this action against defendant Starbucks Corporation 22 (“Starbucks”), seeking damages under the Americans with 23 Disabilities Act (“ADA”), 42 U.S.C. § 12101, and the Unruh Civil 24 Rights Act, Cal. Civ. Code §§ 51-53. (Compl. (Docket No. 1).) 25 Before the court are the parties’ cross-motions for summary 26 judgment. (Docket Nos. 35, 37.) 27 I. Background 28 Plaintiff is a quadriplegic who uses a wheelchair for 1 mobility. (Decl. of Scott Johnson (“Johnson Decl.”) ¶ 2 (Docket 2 No. 37-3).) On at least six different occasions between July 3 2017 and January 2018, plaintiff visited and made purchases at 4 the Starbucks-operated coffee shop located at 4332 Watt Avenue in 5 Sacramento, California (“Watt Avenue Starbucks”). (Id. ¶ 3.) 6 Plaintiff alleges that during his visits, he encountered access 7 barriers that denied him full and equal access to the coffee 8 shop. Specifically, plaintiff contends that he had difficulty 9 using the sales counter because it “was crowded with merchandise 10 and displays, which limited the usable space on the counter.” 11 (Id. ¶ 5.) He claims the condition of the sales counter caused 12 him discomfort and frustration. (Id. ¶ 7.) 13 Plaintiff’s investigator, Tim Wegman, conducted a site 14 inspection of the Watt Avenue Starbucks on two separate 15 occasions. (Decl. of Tim Wegman (“Wegman Decl.”) ¶ 3 (Docket No. 16 37-6).) During his first visit on June 27, 2018, Wegman found 17 the sales counter was approximately 34 inches high. (Id. ¶¶ 3- 18 4.) Wegman measured approximately 14 inches of clear space near 19 the register on the left, and 13 inches of clear space near the 20 register on the right. (Id. ¶ 6.) Wegman conducted a follow-up 21 investigation on October 11, 2019, and found approximately 16 22 inches of clear space near the register on the left and 15 inches 23 of clear space on the right. (Id. ¶¶ 7-9.) The height of the 24 sales counter remained unchanged. 25 Plaintiff filed this action on July 5, 2018, alleging 26 the diminished counterspace violated the ADA, and, by extension, 27 the Unruh Act. (See generally Compl.) Parties now cross-move 28 for summary judgment on both claims. (Docket Nos. 35, 37.) 1 II. Standard 2 Summary judgment is proper “if the movant shows that 3 there is no genuine dispute as to any material fact and the 4 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 5 P. 56(a). A material fact is one that could affect the outcome 6 of the suit, and a genuine issue is one that could permit a 7 reasonable jury to enter a verdict in the non-moving party’s 8 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 9 (1986). 10 The party moving for summary judgment bears the initial 11 burden of establishing the absence of a genuine issue of material 12 fact and can satisfy this burden by presenting evidence that 13 negates an essential element of the non-moving party’s case. 14 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 15 Alternatively, the movant can demonstrate that the non-moving 16 party cannot provide evidence to support an essential element 17 upon which it will bear the burden of proof at trial. Id. Any 18 inferences drawn from the underlying facts must, however, be 19 viewed in the light most favorable to the party opposing the 20 motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 21 U.S. 574, 587 (1986). 22 III. Discussion 23 A. ADA Claim 24 The ADA was enacted in 1990 to “remedy widespread 25 discrimination against disabled individuals,” PGA Tour, Inc. v. 26 Martin, 532 U.S. 661, 674 (2001), and permits private lawsuits 27 against businesses that fail to accommodate individuals with 28 disabilities, 42 U.S.C. § 12188(a). To prevail on an ADA claim, 1 “the plaintiff must show that (1) she is disabled within the 2 meaning of the ADA; (2) the defendant is a private entity that 3 owns, leases, or operates a place of public accommodation; and 4 (3) the plaintiff was denied public accommodations by the 5 defendant because of her disability.” Molski v. M.J. Cable, 6 Inc., 481 F.3d 724, 730 (9th Cir. 2007). Only the third element 7 is in dispute here. 8 “The third element--whether [a plaintiff is] denied 9 public accommodations on the basis of disability--is met if there 10 was a violation of applicable accessibility standards.” Johnson 11 v. Wayside Prop., Inc., 41 F. Supp. 3d 973, 976 (E.D. Cal. 2014) 12 (Shubb, J.) (citation omitted); see Chapman v. Pier 1 Imps. 13 (U.S.), Inc., 631 F.3d 939, 945 (9th Cir. 2011) (en banc). Those 14 standards are set forth by the ADA Accessibility Guidelines 15 (“ADAAG”). 16 The Department of Justice (“DOJ”) promulgated the ADAAG 17 in 1991 and revised them in 2010. See Kohler v. Flava Enters., 18 Inc., 826 F. Supp. 2d 1221, 1229 (S.D. Cal. 2011). All 19 architectural and structural elements in a facility are required 20 to comply with the 1991 Standards to the extent that compliance 21 is readily achievable; by contrast, the 2010 standards apply only 22 to elements that have been altered in existing facilities, or 23 that fail to comply with the 1991 Standards on or after March 15, 24 2012. 28 C.F.R. § 36.304(d)(1)-(2). These standards “provide[] 25 the objective contours of the standard that architectural 26 features must not impede disabled individuals’ full and equal 27 enjoyment of accommodations.” Chapman, 631 F.3d at 945; see 28 28 C.F.R. pt. 1191 (2010 Standards); 28 C.F.R. pt. 36, App. D (1991 1 Standards). 2 The two 2010 standards at issue in this case are 3 Sections 904.4 and 904.4.1. Section 904.4 states: 4 Sales and Service Counters. Sales counters and service counters shall comply with 904.4.1 or 904.4.2. The 5 accessible portion of the counter top shall extend the same depth as the sales or service counter top. 6 EXCEPTION: In alterations, when the provision of a counter 7 complying with 904.4 would result in a reduction of the number of existing counters at work stations or a reduction 8 of the number of existing mail boxes, the counter shall be permitted to have a portion which is 24 inches (610 mm) long 9 minimum complying with 904.4.1 provided that the required clear floor or ground space is centered on the accessible 10 length of the counter. 11 36 C.F.R., Pt. 1191, App. D, § 904.4. Section 904.4.1, which 12 applies in this case because an individual would approach the 13 Watt Avenue Starbucks sales counter with his or her wheelchair 14 parallel to it, provides in full: 15 Parallel Approach. A portion of the counter surface that is 36 inches (915 mm) long minimum and 36 inches (915 mm) high 16 maximum above the finish floor shall be provided. A clear floor or ground space complying with 305 shall be positioned 17 for a parallel approach adjacent to the 36 inch (915 mm) minimum length of counter. 18 EXCEPTION: Where the provided counter surface is less than 19 36 inches (915 mm) long, the entire counter surface shall be 36 inches (915 mm) high maximum above the finish floor. 20 21 Id. § 904.4.1. Plaintiff concedes that the height of the Watt 22 Avenue Starbucks sales counter complies with the ADAAG. (Pl.’s 23 Mot. for Summ. J. at 8 (Docket No. 37).) However, plaintiff 24 contends the Watt Avenue Starbucks has failed “to make [the 25 counter] available for use by a wheelchair user” by crowding it 26 with merchandise and displays, in violation of Section 904.4.1. 27 (Id. at 9.) Additionally, plaintiff argues the width of the 28 counter violates Section 36.211 of the 1991 standards because it 1 is not maintained in an accessible or usable manner. See 28 2 C.F.R., Pt. 36, App. C, § 36.211(a) (“A public accommodation 3 shall maintain in operable working condition those features of 4 facilities and equipment that are required to be readily 5 accessible to and usable by persons with disabilities by the Act 6 or this part.”). 7 These precise arguments have been presented to this 8 court before. In Johnson v. Starbucks Corporation, No. 2:16-cv- 9 2797 WBS AC, 2019 WL 699136, at *1 (E.D. Cal. Feb. 20, 2019) 10 (“Johnson I”), the very same plaintiff presented the very same 11 arguments against another Starbucks location in Sacramento. 12 There, after careful analysis, this court found Section 904.4.1’s 13 text does not require businesses to provide 36 inches of usable 14 counterspace. Id. at *3-4. In the court’s view, this reading 15 “gives full and independent effect to the text of each provision 16 and avoids creating internal inconsistencies or surplusage.” Id. 17 (citation omitted). Accordingly, the court denied plaintiff’s 18 summary judgment motion for violation of the ADA under Section 19 904.4.1. Id. at *6. 20 The court also previously entertained plaintiff’s claim 21 under Section 36.211(a). Rather than make a legal conclusion, 22 however, the court found that plaintiff had failed to provide 23 facts to establish beyond dispute that the sales counter was not 24 accessible for or usable by persons with disabilities. Id. at 25 *5. Unlike Johnson I, here, Starbucks asks the court to grant 26 summary judgment in its favor. (See generally Def.’s Mot. for 27 Summ. J. (Docket No. 35).) As explained above, Section 904.4.1 28 expressly contemplates counters that are less than 36 inches 1 long. See 36 C.F.R., Pt. 1191, App. D, § 904.4.1. Accordingly, 2 the court cannot read Section 36.211(a) to require Starbucks to 3 “maintain in operable working condition,” a requirement that does 4 not exist. See Lindsay v. Overland Partners Sepulveda, LLC, No. 5 CV 18-1917-GW(PLAx), 2019 WL 8168068, at *7 (C.D. Cal. May 20, 6 2019) (holding counter in coffee shop “crowded . . . with 7 merchandise and displays” did not violate Sections 904.4.1 and 8 36.211(a)). This conclusion is only bolstered by a recent 9 memorandum disposition issued by the Ninth Circuit, which held 10 the same.1 See Johnson v. Starbucks Corp., -- Fed. App’x --, 11 2020 WL 3265063, at *1-2 (9th Cir. June 17, 2020) (finding 12 merchandise displays on counters did not violate Sections 904.4.1 13 and 36.211(a)). 14 Plaintiff asks this court to ignore the Ninth Circuit’s 15 ruling in Johnson because it is non-precedential and it allegedly 16 conflicts with two Ninth Circuit panel decisions: Chapman v. Pier 17 1 Imports (U.S.) Inc., 779 F.3d 1001 (9th Cir. 2015) and Kalani 18 v. Starbucks Coffee Company, 698 Fed. App’x. 883 (9th Cir. June 19 28, 2017). (Pl.’s Opp’n at 2 (Docket No. 43).) The court 20 disagrees with this characterization. Although for some reason 21 the Ninth Circuit chose not to publish its decision, it did 22 involve the same parties and the same facts as the case now 23 before this court, and it is not inconsistent with either Chapman 24 or Kalani. 25 In Chapman, the Ninth Circuit held that the plaintiff 26 1 Starbucks brought the court’s attention to this 27 decision through a Request for Judicial Notice. (Docket No. 39- 2.) Plaintiff does not oppose defendant’s Request. (See 28 generally Pl.’s Opp’n at 2 (Docket No. 43).) 1 had offered “insufficient evidence that the obstructions on the 2 counter violated his rights under Title III of the ADA. In 3 contrast to the items blocking the aisles for wheelchair users, 4 the items on the otherwise properly accessible sales counter 5 depicted in [the plaintiff's] photographs were not a barrier to 6 the use of the counter by persons with disabilities.” Id. at 7 1009. This did not, as plaintiff contends, hold that displays on 8 store counters were violations of the ADA. See Lindsay, 2019 WL 9 8168068, at *7. 10 Plaintiff’s reliance on Kalani also does little to 11 support his argument. In another memorandum disposition, the 12 Ninth Circuit affirmed the Northern District of California’s 13 finding that Starbucks failed to maintain adequate counter space 14 in violation of the ADA because the items on the store’s counter 15 were not “isolated or temporary interruptions.” 698 Fed. App’x 16 at 886. However, neither the Ninth Circuit nor the district 17 court addressed Section 904.4.1’s exception, which expressly 18 contemplates a counter being less than 36 inches long. See 19 generally 698 Fed. App’x at 886; Kalani v. Starbucks Corp., 81 F. 20 Supp. 3d 876, 887 (N.D. Cal. 2015). Other courts -- including 21 this court -- have found reliance on Kalani unavailing for that 22 reason. See, e.g., Kong v. Mana Inv. Co., LLC, No. SA CV 18- 23 01615-DOC (DFM), 2019 WL 3220027, at *4 (C.D. Cal. May 1, 2019); 24 Johnson v. Starbucks Corp., No. C 17-02454 WHA, 2019 WL 1427435, 25 at *3 (N.D. Cal. Mar. 29, 2019); Johnson I, 2019 WL 699136, at *3 26 n.3. 27 There is no textual support for plaintiff’s position 28 that counters must be 36 inches wide. See 36 C.F.R., Pt. 1191, 1 App. D, § 904.4.1. Consequently, there can be no requirement 2 that a 36-inch wide counter space must be “maintained” under 3 Section 36.211(a). Accordingly, the court will grant Starbucks’ 4 motion for summary judgment. 5 B. Unruh Act 6 The Unruh Act provides in relevant part that every 7 person is “entitled to the full and equal accommodations, 8 advantages, privileges, or services in all business 9 establishments of every kind whatsoever” notwithstanding his or 10 her disability. Cal. Civ. Code § 51(b). “A violation of the 11 right of any individual under the federal Americans with 12 Disabilities Act of 1990 shall also constitute a violation of 13 [the Unruh Act].” Cal. Civ. Code § 51(f) (internal citations 14 omitted). 15 Plaintiff does not allege a violation of the Unruh Act 16 independent of his claims under the ADA. (Compl. ¶¶ 45-47.) For 17 the reasons given above, plaintiff cannot rely on his alleged ADA 18 violations to support summary judgment on his Unruh Act claim. 19 While plaintiff could perhaps have relied independently upon the 20 Unruh Act by pleading and proving intentional discrimination, see 21 Greater Los Angeles Agency on Deafness, Inc. v. Cable News 22 Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014) (citing Munson 23 v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009)), he has failed to 24 do so. Accordingly, the court will grant defendant’s motion for 25 summary judgment with respect to the Unruh Act. 26 IT IS THEREFORE ORDERED that defendant’s motion for 27 summary judgment (Docket No. 35) be, and the same hereby is, 28 GRANTED. IT IS FURTHER ORDERED that plaintiff’s motion for WwOAOe 2.40 UV VLOOU VY RYDER BY MMUUETPOCTIL Sti FHM tiiey OAYyet VI AY 1 summary judgment (Docket No. 37) be, and the same hereby is, 2 DENIED. 3 | Dated: July 17, 2020 he bloom HK Ld. bE 4 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10