Brian Whitaker v. The B&E M Family, LLC, et al

Case Number

24CV06727

Case Type

Hearing Date / Time

Wed, 04/09/2025 - 10:00

Nature of Proceedings

Early Evaluation Conference

Tentative Ruling

For Plaintiff Brian Whitaker: Prathima Reddy Price, Sumedh Rishi, The ReddyLaw Firm LLC

                            

For Defendants The Red Piano, LLC and The B&E M. Family, LLC: Matthew Olufs, Law Office of Matthew Olufs

RULING

(1) For all reasons discussed herein, the early evaluation conference is continued to April 30, 2025.

(2) The February 18, 2025, Order granting defendants’ application for a stay and early evaluation conference pursuant to Civil Code section 55.54 is modified to include the following: At least 15 days before the continued conference, plaintiff Brian Whitaker shall file and serve a statement that includes all of the items described under Civil Code section 55.54, subdivision (d)(7)(A) through (D). Within 10 calendar days after the completion of the corrections described in the application, defendants The Red Piano, LLC, and The B&E M. Family, LLC, shall file and serve evidence showing that the violation or violations have been corrected as required under Civil Code section 55.54, subdivision (d)(4)(B).

(3) Plaintiff and defendants shall, on or before April 21, 2025, file joint or, if necessary, individual status reports setting forth the following matters: (1) the current condition of the site at issue in plaintiff’s first amended complaint; (2) the status of any plan of corrections including whether defendants have corrected or are willing to correct the violations alleged in the first amended complaint; (3) the timeline for the correction of any violations alleged in the first amended complaint; (4) 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 first amended complaint have been corrected within specified time periods; (5) whether this matter can be settled; (6) whether or not there exists good cause to lift the stay; and (7) any other information the parties request the court to consider at the continued conference or which may facilitate the early evaluation and resolution of the parties’ dispute.

Background

On December 3, 2024, plaintiff Brian Whitaker (Whitaker) filed a verified complaint against defendants The B&E M Family, LLC, (the Family LLC) and The Red Piano, LLC, (the Red Piano) (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.). On January 8, 2025, without any response having been filed, Whitaker filed a verified first amended complaint (the FAC) against defendants alleging the same two causes of action. As alleged in the operative FAC:

Whitaker is a quadriplegic who cannot stand or walk, and who uses a wheelchair for mobility. (FAC, ¶ 1.) Whitaker is an advocate and tester, and qualifies as a high frequency litigant as that term is defined in Code of Civil Procedure section 425.50, subdivision (a)(4)(B). (FAC, ¶¶ 30-31.)

On September 6, 2024, Whitaker, while on vacation, went to the Red Piano (the Bar), which is a bar located at 519 State Street in Santa Barbara, California (the property). (FAC, ¶¶ 10 & 12-13.) The Red Piano owns the Bar, and the Family LLC owns the property where the Bar is located. (FAC, ¶¶ 2-5.) While at the Bar, Whitaker encountered barriers which prevented Whitaker from accessing and entering the Bar, and accessing seating areas and a restroom at the Bar, in violation of the Americans with Disabilities Act (the ADA), codified as 42 U.S.C section 12101 et seq. (FAC, ¶¶ 10, 14-16.) As a result of these barriers, Whitaker was unable to enter, or avail himself of, the Bar and its benefits without difficulty. (FAC, ¶¶ 10 & 17-19.) The barriers currently exist. (FAC, ¶ 21.)

On February 10, 2025, the Family LLC and the Red Piano (collectively, 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 the property has had new construction or improvements on or after January 1, 2008, which were approved pursuant to the local building permit and inspection process, and that there have been no modifications or alterations completed or commenced since that approval that impacted compliance with construction-related accessibility standards with respect to Whitaker’s claim. (Application, ¶ 3(b)(1)-(2).) Defendants further contend that the violations have been corrected, or will be corrected within sixty days of defendants being served with the complaint. (Application, ¶ 3(b)(3).)

On February 18, 2025, this court entered an order (the Order) granting the application, imposing a 90 day stay of these proceedings, and scheduling an early evaluation conference (the conference) for April 9, 2025. Further, the court directed the parties to appear in person at the conference, and ordered plaintiff and his counsel to, within 30 days, meet with defendants at the property for a joint inspection to review the issues that Whitaker claims are a violation of construction-related accessibility standards.

The court’s records reflect that neither Whitaker nor defendants have submitted any additional filings relating to the application.

Analysis

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 the parties to this action dispute whether Whitaker has alleged in the complaint a “construction-related accessibility claim” as that term is defined under the Act. (See Civ. Code, § 55.52, subd. (a)(1) [defining claim].)

Information appearing in the application indicates that defendants are not “qualified” defendants as that term is defined in the Act. (See Civ. Code, § 55.52, subd. (a)(8).) Instead, defendants’ application is based, in part, on the purported existence of new and approved construction or improvements at the property on or after January 1, 2008, which have not been modified. (Civ. Code, § 55.54, subd. (b)(2)(A).) 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).)

Relevant here, “[u]pon the filing of an application for stay and early evaluation conference by … a defendant described by paragraph (2) of subdivision (b), 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 also requires that the conference include an evaluation of all of the matters set forth in subdivision (f) of Section 55.54, and that the court to lift the stay “when a defendant described by paragraph (2) of subdivision (b) has failed to file and serve the evidence showing correction of the violation or violations as required by law.” (Civ. Code, § 55.54, subd. (e)(2)(B).) Further, 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 direct defendants to file and serve “evidence showing correction of the violation or violations within 10 calendar days after the completion of the corrections” as required under Civil Code section 55.54, subdivision (d)(4)(B). The lodged order also does not direct Whitaker to file and serve “at least 15 days before the date of the conference” the statement required under Civil Code section 55.54, subdivision (d)(7)(A) through (D).

To comply with the Act’s requirements, the Order requires modification. In addition, the court requires additional information to facilitate the evaluation under the Act, and to determine whether the stay of these proceedings should be lifted at the conference. For these and all reasons further discussed herein, the court will continue the early evaluation conference.

As there is no information or evidence in the present record that would indicate or suggest that the proposed order lodged by defendants is exempt from Civil Code section 55.54, subdivision (d)(4)(B) or (d)(7), the court will amend the Order to include the following: Whitaker shall, at least 15 days before the continued 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). Defendants shall, within 10 calendar days after the completion of the corrections described in the application, file and serve evidence showing that the violation or violations have been corrected as required under Civil Code section 55.54, subdivision (d)(4)(B).

Further, the parties shall, 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 in the FAC; (2) the status of any plan of corrections including whether defendants have corrected or are willing to correct the violations alleged in the FAC; (3) the timeline for the correction of any violations alleged in the FAC; (4) 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 FAC have been corrected within specified time periods; (5) whether this matter can be settled; (6) whether or not there exists good cause to lift the stay; and (7) any other information the parties request the court to consider at the continued conference or which may facilitate the early evaluation and resolution of the parties’ dispute.