Brian Whitaker vs State Street Enterprises LLC et al

Case Number

24CV06641

Case Type

Hearing Date / Time

Fri, 05/02/2025 - 10:00

Nature of Proceedings

Hearing: Early Evaluation Conference

Tentative Ruling

For all reasons discussed herein, the stay of these proceedings is lifted. Counsel for the parties shall appear at the early evaluation conference and be prepared to discuss trial dates.

Background: 

On November 26, 2024, plaintiff Brian Whitaker (Whitaker) filed a verified complaint against defendants State Street Enterprises, LLC, (SSE), and Viva Oliva, LLC, (Viva LLC), doing business as Viva Oliva (Viva Oliva) (collectively, defendants), alleging two causes of action: (1) violation of the Unruh Civil Rights Act (Civ. Code, § 51); and (2) violation of the California Disabled Persons Act (Civ. Code, § 54 et seq.) (Note: Information appearing in the record appears to suggest that Viva Oliva was named erroneously in this action.) As alleged in the complaint:

Viva LLC owns Viva Oliva which is located at 927 State Street (the property) in Santa Barbara, California. (Compl., ¶¶ 4-5.) SSE owns the property. (Compl., ¶¶ 2-3.) Whitaker, a resident of Cameron Park, California, is a quadriplegic who cannot stand or walk, and who uses a wheelchair for mobility. (Compl., ¶¶ 1 & 12.) Whitaker is also an advocate and tester who qualifies as a high frequency litigant under Code of Civil Procedure section 425.50, subdivision (a)(4)(B). (Compl., ¶ 29.)

On September 6, 2024, while on vacation in Santa Barbara, Whitaker visited Viva Oliva with the intention to avail himself of its benefits, goods, and services, as well as to determine if defendants comply with disability access laws. (Compl., ¶¶ 10 & 13.) While at Viva Oliva, Whitaker encountered a condition which prevented Whitaker from completing his transaction and which failed to conform to the Americans with Disabilities Act (the ADA), codified as 42 U.S.C section 12101 et seq. (Compl., ¶¶ 10 & 15-19.) The condition, which currently exists, includes a transaction counter which is 44 inches in height with small tables on either side of the counter, and which defendants crowd with a display of merchandise and do not use for transactions. (Compl., ¶¶ 16 & 20.)

Whitaker believes that there are other violations and barriers at the property which relate to Whitaker’s disability, and of which Whitaker will provide notice once he conducts a site inspection. (Compl., ¶ 25.)

On February 10, 2025, defendants filed an application (the application) requesting a stay of these proceedings and an early evaluation conference pursuant to pursuant to Civil Code section 55.54. In the application, defendants assert that they are a business, that the property has been inspected by a Certified Access Specialist or “CASp”, that an inspection report by a CASp has been issued, and that there have been no modifications completed or commenced since the date of that inspection which may impact compliance with construction-related accessibility standards. (Application, ¶¶ 3(a)(1)-(2) & (d)(1).)

On February 18, 2025, the court entered an order (the February Order) granting the application, imposing a 90 day stay of these proceedings, and scheduling an early evaluation conference (the conference) for April 2, 2025. Further, the court directed the parties to appear in person at the conference, and to meet at the property within 30 days for a joint inspection to review the issues that Whitaker claims are a violation of construction-related accessibility standards.

On March 20, 2025, the court, on its own motion, continued the conference to April 11, 2025. (See Mar. 20, 2025, Minute Order.)

Also on March 20, 2025, defendants lodged the CASp report (the CASp Report), which is designated as confidential, with the court.

Court records reflect that, though the conference proceeded on April 11, 2025, neither Whitaker nor his counsel appeared at the conference.

On April 11, 2025, the court entered a minute order (the April Order) adopting its tentative ruling, which included a modification to note that defendants submitted an early evaluation conference statement on April 8, 2025, as follows:

“Civil Code section 55.51 et seq. (the Construction-Related Accessibility Standards Compliance Act or Act) sets forth procedures under which certain defendants may request a stay and early evaluation conference upon being served with a summons and complaint asserting a “construction-related accessibility claim” as that term is defined in the Act. (Civ. Code, § 55.54, subd. (b)(1).) There is no information in the present record to suggest or indicate that any party to this action disputes whether Whitaker has alleged in the complaint a “construction-related accessibility claim”. (See Civ. Code, § 55.52, subd. (a)(1) [defining the claim].)

Information appearing in the application indicates that defendants are “qualified” defendants under the Act. (See Civ. Code, § 55.52, subd. (a)(8).) The record also reflects that the application is based in part on Whitaker’s status as a high-frequency litigant. (Civ. Code, § 55.54, subd. (b)(2)(D).)

Defendants have submitted the Report as required under Civil Code section 55.54, subdivisions (c)(1)(B) and (d)(4)(A). Whitaker submits no information showing why the application fails to comply with subdivision (c)(1) of Civil Code section 55.54, why defendants have failed to file any documents required to be submitted under the Act, or why any purported inspection of the property by a CASp, or the Report, fails to comply with any provision of the Act, including section 55.53.

Relevant here, “[u]pon the filing of an application for stay and early evaluation conference by a qualified defendant … , the court shall immediately issue an order” that includes all of the matters set forth in Civil Code section 55.54, subdivision (d)(1) through (7). (Civ. Code, § 55.54, subd. (d).) The Act further requires that the early evaluation conference must include an evaluation of all of the matters set forth in subdivision (f) of section 55.54. (Civ. Code, § 55.54, subd. (f).) The court “may lift the stay at the conclusion of the early evaluation conference upon a showing of good cause by the plaintiff.” (Civ. Code, § 55.54, subd. (e)(3).)

As a preliminary matter, the proposed order lodged by defendants on February 10, 2025, and entered by the court on February 18, 2025, did not set forth the terms under which the Report shall remain confidential as required under the Act. (See Civ. Code, § 55.54, subd. (d)(5). The proposed order also does not direct Whitaker to file and serve the statement required under Civil Code section 55.54, subdivision (d)(7)(A) through (D). Therefore, to comply with the Act’s requirements, the Order requires modification.

The court also requires additional information to facilitate the evaluation required under the Act, and to determine whether the stay of these proceedings should be lifted. For these and all reasons further discussed herein, the court will continue the conference.

Absent information showing that, under the circumstances present here, there exists an exemption from any of the Act’s requirements, the court will modify the Order to include the following: any CASp inspection report submitted by defendants may be disclosed only to the court, the parties to the action and their attorneys, those individuals employed or retained by the attorneys to assist in the litigation, and insurance representatives or others involved in the evaluation and settlement of the case. The confidentiality of the inspection report shall terminate upon the conclusion of the claim unless the owner of that report obtains a court order pursuant to the California Rules of Court to seal the record. In addition, Whitaker shall, at least 15 days before the conference, file and serve a statement that includes all of the items described under Civil Code section 55.54, subdivision (d)(7)(A) through (D).

In addition, the court will order the parties to, prior to the continued conference, file joint or, if necessary, individual status reports setting forth the following matters: (1) the current condition of the site at issue; (2) whether or not any corrections have been noted by a CASp or in the Report, and the status of defendants’ efforts to make reasonably timely progress toward completion of any such corrections; (3) the status of any plan of corrections including whether defendants have corrected or are willing to correct the violations alleged in the complaint; (4) the timeline for the correction of any violations alleged in the complaint; (5) whether Civil Code section 55.56, subdivision (f), is or may be applicable to this case including whether all violations giving rise to the claims alleged in the complaint have been corrected within specified time periods; (6) whether this matter can be settled; (7) whether or not there exists good cause to lift the stay; and (8) any other information the parties request the court to consider at the continued conference or which may facilitate the early evaluation or resolution of the present dispute.”

Pursuant to the April Order, the court continued the conference to May 2, 2025, modified the February Order as further described above, and ordered the parties to, on or before April 23, 2025, file joint or individual status reports setting forth the matters described above and in the April Order.

On April 23, 2025, defendants filed a status report. In support of their status report, defendants submit the declaration of Sven Dybdahl (Dybdahl), who is a member of Viva LLC. (Dybdahl Decl., ¶ 1.) Dybdahl declares that, over the past three years, Viva LLC has employed significantly fewer than 50 employees. (Id. at ¶ 4.)

As to the condition alleged by Whitaker in the complaint and described above, which Whitaker describes as a “Transaction Counter”, Dybdahl states that Viva LLC was never notified of the alleged violation either before or after the CASp inspection as this condition was not identified in the CASp Report. (Dybdahl Decl., ¶ 5.) Dybdahl further states that, while there is merchandise on the lower ADA counter, there is space available and any display merchandise would be removed in seconds should Viva LLC ever need to free up space. (Id. at ¶ 2.) Dybdahl asserts that, within 30 days of receipt of the complaint, out of an abundance of caution, Viva LLC cleared the ADA counter and makes sure to keep it clear from any displays of merchandise. (Id. at ¶ 3.)

Defendants also assert in the status report that the transaction counter referred to by Whitaker has an auxiliary counter in front of the main counter which measures at 34 inches in height and 36 inches in width, has the prerequisite space to meet accessibility requirements in the front and on the sides, and is ADA compliant. (Def. Status Report at pdf p. 2.) Defendants contend that Viva Oliva uses this table when patrons in a wheelchair visit and prefer the accessible counter. (Ibid.)

Defendants also state that the CASp Report did not note the violations of the ADA which are the basis of Whitaker’s claim, and that the only reference in the CASp Report of the transaction counter was a mention of where to put an “International Symbol of Access” sign. (Def. Status Report at pdf p. 3; CASP Report at p. 19.) Defendants contend that they are entitled to a finding of no liability and will seek a full dismissal of Whitaker’s claim. (Id. at pdf pp. 3-4.)

In addition, defendants state that on February 25, March 11, and March 24, 2025, they attempted to coordinate the joint inspection required by the February Order, and that Whitaker’s counsel has repeatedly declined or refused to schedule or participate in that inspection. (Def. Status Report at pdf p. 4.)

Whitaker also filed a status report on April 23, 2025. In that report, Whitaker states that, as to defendants’ representations that the condition identified in the complaint has been remedied, Whitaker accepts these representations. (Pl. Status Report, ¶ 1.) Whitaker further states that an inspection “now appears unnecessary….” (Ibid.)

Whitaker also appears to contend that subdivision (f) of Civil Code section 55.56 is not applicable to this case, and states that he has made a final offer to resolve this case globally without incurring additional attorneys’ fees, that he is awaiting confirmation from defendants, and that, absent an immediate settlement on the material terms, the stay imposed under the February Order should be lifted.. (Pl. Status Report, ¶ 4-6.)

Analysis:

The temporary stay and early evaluation conference authorized under Civil Code section 55.51 et seq. (the Construction-Related Accessibility Standards Compliance Act or Act) is intended to permit a defendant against whom a construction-related accessibility claim is asserted to correct the violations which form the basis of that claim within the time frames prescribed in the Act. (Civ. Code, §§ 55.54, subd. (a)(1).)

Noted above, the April Order modified the February Order to require Whitaker to, no later than 15 days before the conference, file and serve a statement that includes all of the items described in Civil Code section 55.54, subdivision (d)(7)(A) through (D). These items include a list of the specific conditions which are the basis of the violations claimed in the complaint. (Civ. Code, § 55.54, subd. (d)(7)(A).)

Whitaker has not submitted the statement required under Civil Code section 55.54, subdivision (d)(7), as ordered by the court. In addition, absent from Whitaker’s status report is any information addressing these items or identifying any specific conditions which are the basis of the violations alleged in the complaint apart from the condition or barrier identified in the complaint and described above.

In addition, though Whitaker alleges in the complaint that he will identify additional conditions or violations after Whitaker conducts a site inspection, the undisputed record shows that Whitaker did not attend the joint inspection as required by the February Order. The joint inspection ordered by the court was intended to permit the parties to review any issues at Viva Oliva that Whitaker claims are a violation of construction-related accessibility standards. (See Feb. Order, ¶ 5.)

The record also shows that Whitaker accepts the truth of defendants’ representations that the condition or violation specifically identified in the complaint has been remedied. (Pl. Status Report, ¶ 1.) Ostensibly for this reason, Whitaker asserts that an inspection is no longer necessary.

As Whitaker has not submitted the statement described in Civil Code section 55.54, subdivision (d)(7)(A), as required by the February Order and April Order, has not attended the joint inspection ordered by the court pursuant to the February Order, and contends that this inspection is no longer necessary, it is the court’s understanding that the only condition or violation which is the basis of the claims alleged by Whitaker in this proceeding is the condition described in paragraph 16 of the complaint, which defendants have addressed in their status report as further described above.

The court construes Whitaker’s acceptance of the truth of the representations made in the Dybdahl declaration and defendants’ status report as a concession by Whitaker that the condition or violation which is the basis of the claims alleged in the complaint has been corrected by defendants, and no longer exists.

Absent any objection or other response by Whitaker apart from those further described above, and based on information and evidence appearing in the Dybdahl declaration and the parties’ respective status reports, it appears to the court that defendants have, within 30 days of receiving Whitaker’s complaint, corrected the condition or violation giving rise to the claims alleged by Whitaker in this action. Moreover, as Whitaker states that he accepts the truth of defendants’ representations regarding the correction of this condition or violation, it appears to the court that the purpose for the joint inspection required by the February Order has been fulfilled notwithstanding Whitaker’s failure to attend that inspection.

For all reasons discussed above, and as the information offered by the parties does not appear to indicate that this case can presently be settled in whole or in part, the court intends to lift the stay of these proceedings. At the continued conference, the parties shall be prepared to discuss appropriate trial dates.

Procedural matters:

Subject to exceptions which do not appear to apply here, California Rules of Court, rule 2.109, requires that each page of paper filed with the court “be numbered consecutively at the bottom…. The page numbering must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3).” (Cal. Rules of Court, rule 2.109.)

The status report filed by defendants does not include consecutive page numbers at the bottom of each page of the report as required under California Rules of Court, rule 2.109. Defendants’ failure to include consecutive page numbers has made it difficult for the court to refer or cite to matters appearing within the status report. Counsel is reminded of their obligation to comply with court rules.