Brian Whitaker vs Stearns Wharf Inc et al

Case Number

24CV06870

Case Type

Hearing Date / Time

Mon, 05/12/2025 - 10:00

Nature of Proceedings

Hearing re Early Evaluation Conference

Tentative Ruling

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

Case No. 24CV06870

           

Hearing Date: May 12, 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) Plaintiff and defendant shall appear at the early evaluation conference and be prepared to discuss and confirm each of the matters described herein.

(2) To the extent any party fails to appear at the early evaluation conference or to confirm each of the matters described herein, the stay of these proceedings shall be extended, and the early evaluation conference shall be continued to June 9, 2025. To the extent the stay is extended and the early evaluation conference is continued, plaintiff shall, on or before May 21, 2025, meet in person for a joint inspection in compliance with the court’s February 19 and April 14, 2025, orders. In addition, plaintiff shall, on or before May 28, 2025, file and serve a statement that includes all of the items described in Civil Code section 55.54, subdivision (d)(7)(A) through (D), in compliance with the court’s February 19 and April 14, 2025, orders. Further, the parties shall, on or before June 2, 2025, file joint or individual status reports addressing, in full, each of the matters described 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 (the Trading Company) (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.) As alleged in the complaint:

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, Whitaker went to the Trading Company with the intention to avail himself of its goods and services. (Compl., ¶¶ 10 & 12-13.) The Trading Company, which is a store located at 217 Stearns Wharf #A in Santa Barbara, California (the property), is owned by Stearns Wharf and the City owns the property. (Compl., ¶¶ 2-5.)

While trying to patronize the Trading Company, Whitaker encountered barriers and non-compliant conditions 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.) These conditions, which currently exist, include transaction counters which are 41 to 48 inches in height; the absence of a lowered, 36 inches, counter for use by persons in wheelchairs; a wood podium which is 48 inches above a finished floor; a second sales counter towards the back of the store which has a wood podium that is 38 inches and no attendant; and benches which protrude out 20 inches. (Compl., ¶¶ 15 & 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 accessible entrance. (Compl., ¶ 21.) Whitaker did not personally encounter these conditions. (Ibid.)

Whitaker believes that there are other violations and barriers at the site which relate to Whitaker’s disability, and will amend the complaint to provide proper notice regarding the scope of this lawsuit once Whitaker conducts a site inspection. (Compl., 25.)

On January 30, 2025, Whitaker dismissed 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, which is owned or occupied by a business, has had new construction or improvements on or after January 1, 2008, which were approved pursuant to a 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 at issue have been corrected, or will be corrected within sixty days of Stearns Wharf being served with the complaint. (Id. at ¶ 3(b)(3).)

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

On February 19, 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 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 Stearns Wharf 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), providing information regarding the souvenir shop that is the subject of this action, denying the allegations of the complaint, and describing corrections made by Stearns Wharf with respect to the installation of an ADA sign at the entrance to the Trading Company. (Statement at pdf pp. 1-4 * Exh. C.) Stearns Wharf also describes efforts to coordinate the court-ordered joint inspection with Whitaker, and asserts that Whitaker has not proposed a date for that inspection. (Statement at pdf pp. 4-5.)

Whitaker did not submit a response to the Statement, or any additional or separate filings prior to the conference.

Court records reflect that the conference proceeded on April 14, 2025, and that neither Whitaker nor his counsel appeared at the conference.

On April 14, 2025, the court entered a minute order (the April Order) adopting its tentative ruling 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 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.”

Pursuant to the April Order, the court continued the conference to May 12, 2025, modified the February Order as further described above, and ordered the parties to, on or before April 30, 2025, file joint or individual status reports setting forth the matters described above and in the April Order.

On April 30, 2025, Whitaker filed a status report requesting that Stearns Wharf “remedy the inaccessible dining tables, path of travel, and non-compliant door hardware” to avoid the cost of an on-site inspection. (Pl. Status Report, ¶ 1.) Whitaker further asserts that he remains available to participate in an inspection. (Ibid.)

Whitaker also states that he is unaware of any remediation efforts or plans regarding the violations alleged in the complaint, that statutory reductions do not apply in this case, and that he is awaiting confirmation from Stearns Wharf as to Whitaker’s final offer to resolve this case. (Pl. Status Report, ¶¶ 2-5.) Whitaker contends that, absent an immediate settlement on material terms, it is appropriate to lift the stay and proceed with litigation. (Id. at ¶ 6.)

Stearns Wharf also submitted a status report on April 30, 2025, which is supported by a declaration of Patrick Hartmann (Hartmann), who is the Chief Executive and Chief Financial Officer of Stearns Wharf. (Hartmann Decl., ¶ 1.) Hartmann declares that, over the past three years, Stearns Wharf has employed, on average, fewer than 25 employees, and has had annual gross receipts which are less than $3.5 million. (Id. at ¶ 7.)

Hartmann states that there are two transaction counters located at the back of the store and two at the front, and submits a photograph of these counters. (Hartmann Decl., ¶ 2 & Exh. A.) According to Hartmann, the two transaction counters that are located at the back of the store are 38 inches high and comply with ADA requirements. (Id. at ¶ 3.)

Hartmann further states that while staff are not always stationed at the registers, it is common practice for patrons to request assistance when they are ready to check out, particularly during the slower season, and that, upon request, staff can promptly open any register at the front or back of the store. (Hartmann Decl., ¶ 2.) Hartmann is not aware of any benches obstructing access to the back registers, and states that, even if temporary obstructions had been present, the alternate ADA compliant transaction counter located at the back of the store remains available for use. (Id. at ¶ 4.)

Hartmann asserts that, following the filing of Whitaker’s complaint, he re-measured all paths of travel throughout the subject premises and confirmed that each path maintains a continuous width of at least 36 inches. (Hartmann Decl., ¶ 5.) Hartmann submits as exhibit B, a photo of these paths of travel. (Ibid.)

Hartmann further asserts that, within 30 days of receipt of the complaint, Stearns Wharf installed an ADA sign at the entrance, a copy of which is attached to Hartmann’s declaration as exhibit C. (Hartmann Decl., ¶ 6.)

In the status report, Stearns Wharf asserts denials and defenses to Whitaker’s claim including as to whether Whitaker personally encountered any barriers. (Def. Status Report at pdf pp. 2-4.) Stearns Wharf also contends that it has corrected the alleged violations in a timely manner, and is entitled to statutory reductions. (Id. at pdf pp. 4-5.)

Stearns Wharf further states that on February 25, March 11, and March 24, 2025, it attempted to coordinate with Whitaker 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. 5.)

Analysis:

The temporary stay and early evaluation conference authorized by 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, such as the claims alleged by Whitaker in the complaint, to correct the violations which form the basis of that claim within the time prescribed under the Act. (Civ. Code, §§ 55.54, subd. (a)(1).)

Noted above, the April Order modified the February Order to include a requirement that Whitaker file and serve, no later than 15 days before the conference, 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).)

The court has no record showing that Whitaker submitted the statement required under Civil Code section 55.54, subdivision (d)(7), as ordered by the court. In addition, though Whitaker includes in his status report a request that Stearns Wharf complete corrections to the conditions at issue in this action, the conditions described in the status report and above do not appear to relate to those alleged in the complaint as also further described above. Wholly absent from Whitaker’s status report is any discussion of the conditions or violations specifically alleged in the complaint.

Considering that Whitaker alleges in the complaint that he believes there exist additional conditions at the Trading Company which Whitaker will identify after a site inspection, and that Whitaker appears to identify additional conditions in the status report further described above, it is unclear to the court what, if any, specific conditions apart from those identified in the complaint are the basis of the violations at issue. Moreover, the undisputed record shows that Whitaker did not attend the joint inspection as required by the February Order, which was intended to permit the parties to review any issues that Whitaker claims are a violation of construction-related accessibility standards. (See Feb. Order, ¶ 5.)

In addition, Stearns Wharf asserts that it has installed an ADA sign at the entrance to the Trading Company. This information and evidence appears to suggest that the compliance issue identified in paragraph 21 of the complaint, with respect to the lack of “directional signage” alleged by Whitaker, has been corrected. Additional information and evidence presented in Stearns Wharf’s status report also suggests that the remaining conditions alleged in paragraphs 15 and 21 of the complaint did not exist as Whitaker alleges. Though Whitaker offers no information to dispute these assertions, Whitaker appears to identify different or additional conditions in his status report. For these reasons, the court requires additional information to determine whether or not the stay of these proceedings should be lifted.

For all reasons discussed above, the court will require the parties to appear at the conference, and to confirm each of the following: (1) that the specific conditions or barriers identified in paragraphs 15 and 21 of Whitaker’s complaint and described above are the only conditions which are the basis of the violations of construction-related accessibility standards alleged by Whitaker in this action; (2) that there exist no additional conditions which give rise to the violations claimed by Whitaker in this action apart from those alleged in paragraphs 15 and 21 of the complaint; (3) that the lack of “directional signage” alleged in paragraph 21 of the complaint has been corrected by Stearns Wharf, and that Whitaker accepts as true Stearns Wharf’s representation that this condition has been corrected; (4) that the remaining conditions apart from the “directional signage” alleged in paragraphs 15 and 21 of the complaint, which give rise to the claims alleged by Whitaker in this matter, did not exist, and that Whitaker accepts as true Stearns Wharf’s representations that each of these conditions or violations did not exist; (5) that the purpose for the joint inspection ordered by the court pursuant to the February Order has been fulfilled; (6) that an inspection of the property is no longer necessary because the conditions or violations which give rise to Whitaker’s claims in this action have either been corrected, or did not exist; (7) that the stay may be lifted.

The parties shall also be prepared to discuss whether or not a trial is necessary and if so, dates on which the parties are available for trial.

To the extent the parties appear at the conference and confirm each of the matters described above, the court intends to lift the stay of these proceedings, and to set a trial date.

To the extent the parties fail to appear at the conference or to confirm the matters described above, the court intends to continue the conference and extend the stay of these proceedings. Further, and to the extent any party fails to appear at the conference or confirm the matters described above, the court will require the parties to meet in person at the property for a joint inspection in compliance with the February Order, require Whitaker to file and serve a statement that includes all of the items described in Civil Code section 55.54, subdivision (d)(7)(A) through (D), and require the parties to submit further joint or individual status reports addressing, in full and with sufficient detail, each of the matters described above including with respect to the existence or correction of any conditions or violations which are the basis of Whitaker’s claims in this action, whether the case can be settled in whole or in part, and whether the stay should be lifted or extended.

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 Stearns Wharf 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. Stearns Wharf’s 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.