Brian Whitaker v. Stearns Wharf, Inc., et al.

Case Number

24CV06870

Case Type

Hearing Date / Time

Mon, 04/14/2025 - 10:00

Nature of Proceedings

Early Evaluation Conference

Tentative Ruling

Brian Whitaker v. Stearns Wharf, Inc., et al.                             

Case No. 24CV06870

           

Hearing Date: April 14, 2025                                                  

HEARING:              Early Evaluation Conference

                                   

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

                             For Defendant Stearns Wharf, Inc.: Matthew Olufs, Law Office of Matthew Olufs

TENTATIVE RULING:

(1) The early evaluation conference is continued to May 12, 2025.

(2) The court’s February 19, 2025, order granting defendants’ application for a stay and early evaluation conference pursuant to Civil Code section 55.54 is modified as follows: At least 15 days before the early evaluation 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 filed by defendant Stearns Wharf, Inc., on February 10, 2025, defendant 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 shall, on or before April 30, 2025, meet with defendant at the site that is the subject of this action, in person, to conduct a joint inspection to review any issues that plaintiff claims are a violation of construction-related accessibility standards, as required by and in compliance with the court’s February 19, 2025, order.

(4) The parties shall, on or before April 30, 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 complaint; (2) the status of any plan of corrections including whether defendants have corrected or are willing to correct the violations alleged in the complaint; (3) the timeline for the correction of any violations alleged in the 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 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 early evaluation conference or which may facilitate the early evaluation and resolution of the present dispute.

(5) On or before April 21, 2025, defendant shall file a proof of service of the court’s February 19, 2025, order on plaintiff, and shall give notice of the court’s ruling herein.

Background: 

On December 9, 2024, plaintiff Brian Whitaker (Whitaker) filed a verified complaint against defendants the City of Santa Barbara (the City) and Stearns Wharf, Inc. (Stearns Wharf), doing business as Old Wharf Trading Company (Trading Company) (collectively, defendants), alleging two causes of action for violation of the Unruh Civil Rights Act (Civ. Code, § 51), and violation of the California Disabled Persons Act (Civ. Code, § 54 et seq.) As alleged in the complaint:

The City owns real property located at 217 Stearns Wharf #A in Santa Barbara, California (the property). (Compl., ¶¶ 2-3.) Stearns Wharf owns the Trading Company which is a store located at the property. (Compl., ¶¶ 4-5.) Whitaker is a quadriplegic who cannot stand or walk, and who uses a wheelchair for mobility. (Compl., ¶ 1.) Whitaker is also 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). (Compl., ¶ 29.)

On September 5, 2024, while vacationing in the area, Whitaker went to the Trading Company with the intention to avail himself of its goods and services. (Compl., ¶¶ 10 & 12-13.) While trying to patronize the Trading Company, Whitaker encountered barriers at the facility’s transaction counters which prevented Whitaker from completing the transaction without difficulty, and which violate the Americans with Disabilities Act (the ADA), codified as 42 U.S.C section 12101 et seq. (Compl., ¶¶ 10, 14-19.) This condition currently exists. (Compl., ¶ 19.)

In addition, an investigation by Whitaker made Whitaker aware that the paths of travel inside the Trading Company are less than 36 inches in width in some places, and that the main entrance has un-ramped steps and no signage directing wheelchair uses to an alternate accessible entrance. (Compl., ¶ 21.) Whitaker did not personally encounter these conditions. (Ibid.)

On January 30, 2025, Whitaker filed a request to dismiss the action, without prejudice, as to the City.

On February 10, 2025, Stearns Wharf filed an application (the application) requesting a stay of these proceedings and an early evaluation conference pursuant to Civil Code section 55.54.

In the application, Stearns Wharf asserts that the property is owned or occupied by a defendant that is a business, 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 which impacted compliance with construction-related accessibility standards with respect to Whitaker’s claim. (Application, ¶ 3(b)(1)-(2) & d(1).) Stearns Wharf further contends that the violations have been corrected, or will be corrected within sixty days of Stearns Wharf being served with the complaint. (Application, ¶ 3(b)(3).)

Stearns Wharf also requests in the application, among other things, that the court order Whitaker to, within 30 days, meet at the property with Stearns Wharf, in person, for a joint inspection.

On February 19, 2025, the 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 14, 2025. Further, the court directed the parties to appear in person at the conference, and ordered Whitaker and his counsel to, within 30 days, meet with defendants at the property, in person, for a joint inspection to review the issues that Whitaker claims are a violation of construction-related accessibility standards.

On April 9, 2025, Stearns Wharf filed an early evaluation conference statement (the Statement), in which Stearns Wharf provides information regarding the souvenir shop that is the subject of this action, and denies the allegations of the complaint. (Statement at pdf pp. 1-4.)

To support its denials of Whitaker’s claims, Stearns Wharf submits as exhibits A and B to the Statement photos of, respectively, the transaction counters at issue in the complaint which Stearns Wharf contends comply with ADA requirements, and paths of travel at the premises which Stearns Wharf contends each maintain a continuous width of 36 inches as required under the ADA. (Statement at pdf pp. 2-3.) Stearns Wharf further contends that it has installed an ADA sign at the entrance to the premises. (Statement at pdf p. 4 & Exh. C.)

Stearns Wharf further asserts that on February 25, 2025, its counsel delivered a copy of the Order to Whitaker’s counsel and requested that the parties coordinate a date for the joint inspection ordered by the court. (Statement at pdf p. 4.) In addition, Stearns Wharf states that on March 11 and March 24, 2025, its counsel emailed Whitaker’s counsel regarding the court-ordered joint inspection. (Statement at pdf p. 5.)

According to Stearns Wharf, Whitaker’s counsel stated that an inspection in March would not be feasible, that an in-person inspection would increase costs and impact settlement discussions, that the inspection could not be arranged with “limited notice”, and that Whitaker and his counsel would not be available until the end of April. (Statement at pdf p. 5.) Stearns Wharf contends that Whitaker has not proposed a date for the joint inspection. (Ibid.)

The court’s records reflect that Whitaker has not responded to the Statement, or 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 a dispute as to 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 Stearns Wharf is not a “qualified” defendant as that term is defined in the Act. (See Civ. Code, § 55.52, subd. (a)(8).) Instead, the 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 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).)

Though the application includes a request for an order requiring Stearns Wharf to file and serve “evidence showing correction of all violations within 10 days of completion of the correction”, and an order requiring Whitaker to file and serve the statement required by Civil Code section 55.54, subdivision (d)(6), at least 15 days before the date of the conference, the proposed order lodged by Stearns Wharf on February 10, 2025, failed to include these directives. For these reasons, the Order requires modification to comply with statutory requirements.

In addition, the court 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 an exemption from the Act’s requirements applies under the circumstances present here, the court will amend the Order to include the following: 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). Stearns Wharf 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).

The court will further 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 in the complaint; (2) the status of any plan of corrections including whether Stearns Wharf has corrected or is willing to correct the violations alleged in the complaint; (3) the timeline for the correction of any violations alleged in the 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 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 or resolution of the parties’ dispute.

Noted above, the Order requires that the parties meet in person within 30 days, at the site that is the subject of this action, for a joint inspection to review any issues that Whitaker claims are a violation of construction-related accessibility standards by Stearns Wharf. Though Stearns Wharf contends that it served a copy of the Order on Whitaker, the court has no record showing service of the Order on Whitaker. Therefore, the court will require Stearns Wharf to file a proof of service showing valid and effective service of the Order on Whitaker.

The record reflects that Whitaker has failed to meet with Stearns Wharf, in person, at the property for a joint inspection as required by the Order. Whitaker has not filed an objection or other response to the application, and has not filed an appropriate motion requesting that the court amend or modify the Order. For these reasons, the court finds that Whitaker has failed to comply with the Order. Therefore, the court will order Whitaker to, prior to the continued conference, meet with Stearns Wharf at the subject site, in person, for a joint inspection as required by, and in compliance with, the Order.