Brian Whitaker v. CookieSB, Inc., et al.

Case Number

24CV07014

Case Type

Hearing Date / Time

Mon, 04/14/2025 - 10:00

Nature of Proceedings

Early Evaluation Conference

Tentative Ruling

Brian Whitaker v. CookieSB, Inc., et al.                         

Case No. 24CV07014

           

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 CookieSB, 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 defendant’s 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 CookieSB, 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 12, 2024, plaintiff Brian Whitaker (Whitaker) filed in this action a verified complaint against defendants CookieSB, Inc. (CookieSB) and The Cookie Plug (Cookie Plug) (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:

CookieSB owns Cookie Plug, which is a restaurant located at 918 S. State Street in Santa Barbara, California. (Compl., ¶¶ 2-3.) 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., ¶ 25.)

On September 6, 2024, while on vacation in Santa Barbara, Whitaker went to the Cookie Plug to dine in. (Compl., ¶ 10.) On the date of Whitaker’s visit, Whitaker observed or encountered tables provided for dining which were not accessible to wheelchair users, that paths of travel inside the facility were less than 36 inches in some places, that entrance door hardware had a handle that required tight grasping or twisting of hands, and that the door stop protruded out 3 inches. (Compl., ¶ 12.) These conditions impacted Whitaker’s disability, caused Whitaker to be unable to complete his dining experience without difficulty or embarrassment, and fail to comply with standards of the Americans with Disabilities Act (the ADA), codified as 42 U.S.C section 12101 et seq. (Compl., ¶¶ 13-14 & 18.) These conditions currently exist. (Compl., ¶ 16.)

On February 10, 2025, CookieSB 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, CookieSB asserts that the site which is the subject of Whitaker’s claim is owned or occupied by a defendant that is a business, that the site 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).) CookieSB further contends that the violations have been corrected, or will be corrected within sixty days of CookieSB being served with the complaint. (Application, ¶ 3(b)(3).)

In addition to a stay of these proceedings and an early evaluation conference, CookieSB requested in the application, among other things, that the court order Whitaker to, within 30 days, meet with CookieSB at the site, 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 Whitaker and his counsel to, within 30 days, meet with defendants at the site that is the subject of this action, in person, for a joint inspection to review the issues that Whitaker claims are a violation of construction-related accessibility standards. (Order, ¶ 3.)

On April 8, 2025, CookieSB filed an early evaluation conference statement (the Statement), in which CookieSB provides background information regarding the bakery owned and operated by the Cookie Plug that is the subject of this action, and denies the allegations of the complaint. (Statement at pdf pp. 1-3.) To support its denials of Whitaker’s claims, CookieSB submits as exhibits A and B to the Statement photos of, respectively, the premises at issue including its entrance door. (Statement at pdf p. 3 & Exhs. A-B.)

In the Statement, CookieSB 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.) CookieSB further asserts 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 CookieSB, 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. 4.) CookieSB contends that Whitaker has not proposed dates 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 CookieSB 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 subject site 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 also 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).)

As a preliminary matter, though the application includes a request for an order requiring CookieSB 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 CookieSB on February 10, 2025, fails 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). CookieSB 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 CookieSB 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.

In addition, as noted above, the Order directs the parties to, within 30 days, meet at the site that is the subject of this action, in person, for a joint inspection to review any issues that Whitaker claims are a violation of construction-related accessibility standards by CookieSB. Though CookieSB 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 CookieSB 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 CookieSB at the subject site 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 CookieSB at the site that is the subject of this action, in person, for a joint inspection as described in, and in compliance with, the Order.