Brian Whitaker vs CookieSB Inc

Case Number

24CV07014

Case Type

Hearing Date / Time

Mon, 05/12/2025 - 10:00

Nature of Proceedings

Hearing re Early Evaluation Conference

Tentative Ruling

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

Case No. 24CV07014

           

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 CookieSB, Inc.: Matthew Olufs, Law Office of Matthew Olufs

TENTATIVE RULING:

(1) Plaintiff and defendants 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 and defendants 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 12, 2024, plaintiff Brian Whitaker (Whitaker) filed 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:

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, which is a restaurant owned by Cookie SB and located at 918 S. State Street in Santa Barbara, California, to dine in. (Compl., ¶¶ 2-3 & 10.) On the date of Whitaker’s visit, Whitaker observed or encountered non-compliant conditions which 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.)

The conditions observed or encountered by Whitaker, which currently exist, include tables provided for dining which were not accessible to wheelchair users and whose tops were 42 inches, paths of travel that were less than 36 inches in some places, entrance door hardware with a horizontal pull bar style handle that required tight grasping or twisting of hands to operate, and a door stop that protruded out 3 inches. (Compl., ¶¶ 12 & 16.)

Whitaker believes that there are other violations and barriers at the Cookie Plug which relate to his disability, and will amend the complaint to provide proper notice regarding the scope of this lawsuit once he conducts a site inspection. (Compl., ¶ 21.)

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 subject site, 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 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. (Id. at ¶ 3(b)(3).) CookieSB requests in the application that the court order Whitaker to, within 30 days, meet with CookieSB at the site, in person, for a joint inspection, among other things. (Id. at ¶ 4.)

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 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. (Feb. Order, ¶ 3.)

On April 8, 2025, CookieSB filed an early evaluation conference statement (the Statement) providing background information regarding the bakery which is the subject of this action and which is owned and operated by the Cookie Plug, and denying 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.)

CookieSB also asserts in its Statement that on February 25, 2025, its counsel delivered a copy of the February 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. (Id. at pdf p. 5.) According to CookieSB, Whitaker’s counsel stated that an inspection in March could not be arranged with “limited notice” and would not be feasible, that an in-person inspection would increase costs and impact settlement discussions, and that Whitaker and his counsel would not be available until the end of April. (Id. at pdf p. 4.) CookieSB contends that Whitaker has not proposed dates for the joint inspection. (Ibid.)

Whitaker did not respond to the Statement, and did not, prior to the conference, submit any additional or separate filings relating to the application.

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 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.”

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 defendants 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 any necessary 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, that he is awaiting confirmation from defendants regarding a final offer made by Whitaker 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 this litigation. (Id. at ¶ 6.)

Defendants also submitted a status report on April 30, 2025, which is supported by a declaration of Annette Rodriguez (Rodriguez), who states that she is a member of the Cookie Plug. (Rodriguez Decl., ¶ 1.) Rodriguez asserts that the plans which were inspected and approved by the “City” were built and developed within seven months of the date of Whitaker’s allegations, and that no modifications from these plans have been made. (Id. at 5.) Attached to the Rodriguez declaration as exhibit A is a photograph of the subject premises.

Rodriguez states that the Cookie Plug is not permitted to offer indoor dining, and that the counters referenced by Whitaker, which are informational in nature, are not intended for dining and do not have accompanying chairs. (Rodriguez Decl., ¶ 2.) Rodriguez further states that tables are provided solely for customers to review menus while they wait, that there exist counters at the store entrance and near the front counter which are at or below the 34-inch height requirements and which display menus which are equally accessible to all individuals. (Id. at ¶ 3.) In addition, Rodriguez asserts that there are no areas in the store that are or have ever been less than 36 inches for a path of travel. (Id. at ¶ 4.)

According to Rodriguez, the entrance door to the subject premises swings open in both directions, allowing guests the push the door from either side, and the door handles, which are level, can be pushed and do not require grasping or twisting. (Rodriguez Decl., ¶ 6.) Based on Rodriguez’s measurements, the door entrance is 41.5 inches wide, and the doorstop is 3 inches. (Id. at ¶ 7.)  Attached as exhibit B to the Rodriguez declaration is a photograph of the door to the subject premises.

In their status report, defendants state that they have made a settlement offer, and that Whitaker has failed to make a good faith effort to participate in this matter and to comply with the court’s orders. (Def. Status Report at pdf p. 3.) Defendants also include information regarding their attempts to coordinate the joint inspection required by the February Order, which his also included in the Statement further described above. (Id. at pdf p. 4.)

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).)

Whitaker has not submitted the statement required under Civil Code section 55.54, subdivision (d)(7), as ordered by the court. Though Whitaker includes in his status report a request that defendants complete the corrections of the conditions which Whitaker alleges exist at the Cookie Plug, Whitaker also alleges in the complaint that he believes there exist additional conditions that Whitaker will identify after a site inspection. As Whitaker has not filed the statement required by the February Order, it is unclear to the court whether there exist specific conditions apart from those identified in the complaint which give rise to the violations alleged by Whitaker in the complaint. 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.)

For all reasons discussed above, it is the court’s understanding that the only conditions or violations which are the basis of the claims alleged by Whitaker in this proceeding are those specifically identified in paragraph 12 of the complaint. Noted above, CookieSB asserts that these conditions or violations did not exist at the Cookie Plug. Whitaker offers no information to dispute CookieSB’s representations that the conditions alleged by Whitaker did not exist. As Whitaker has failed to submit the statement required by the February Order and April Order and to attend the court-ordered joint inspection, the court requires additional information to determine whether or not the stay of these proceedings should be lifted, and whether a trial is necessary or the claims alleged in Whitaker’s complaint have been resolved.

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 paragraph 12 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 at the Cookie Plug which give rise to the violations claimed by Whitaker in this action apart from those alleged in paragraph 12 of the complaint; (3) that each of the conditions or violations which form the basis of Whitaker’s claims did not, as CookieSB contends, exist at the Cookie Plug; (4) that Whitaker accepts as true CookieSB’s representations that each of the conditions or violations which are the basis of Whitaker’s claims 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 did not exist; and (7) that the stay may be lifted.

Considering that the available information and evidence suggests that the conditions which are the basis of the violations alleged by Whitaker in this action did not exist, the parties shall also be prepared to discuss whether a trial is necessary, or whether the dispute is or can be resolved.

To the extent the parties appear at the conference and confirm each of the matters stated above, the court intends to lift the stay of these proceedings and, if necessary, 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, extend the stay of these proceedings, and require the parties to meet in person at the property for a joint inspection in compliance with the February Order. Further, the court will 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 CookieSB 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. CookieSB’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.