Brian Whitaker vs 1212 State Street LLC et al

Case Number

24CV07015

Case Type

Hearing Date / Time

Fri, 05/02/2025 - 10:00

Nature of Proceedings

Hearing: Early Evaluation Conference

Tentative Ruling

1) For all reasons discussed herein, plaintiff and defendants shall appear at the early evaluation conference and be prepared to discuss and confirm each of the matters described herein. To the extent plaintiff and defendants confirm each of the matters described herein, the stay of these proceedings shall be lifted.

(2) If 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 6, 2025. To the extent the stay is extended and the early evaluation conference continued, the parties shall, on or before May 16, 2025, meet in person for a joint inspection in compliance with the court’s February 18, 2025, order. Further, plaintiff shall, on or before May 23, 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 addition, the parties shall file, on or before May 30, 2025, 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 1212 State Street, LLC, (1212 State) and Good Lion Cocktails, LLC, (GL LLC) doing business as The Good Lion (Good Lion), (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:

GL LLC owns the Good Lion which is a cocktail bar located at 1212 State Street (the property) in Santa Barbara, California. (Compl., ¶¶ 4-5.) 1212 State owns the property. (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., ¶ 29.)

On September 6, 2024, Whitaker was vacationing in Santa Barbara when he visited the Good Lion for a few drinks. (Compl., ¶¶ 10 & 12-13.) While at the Good Lion, Whitaker encountered barriers which prevented Whitaker from accessing entrances and the bar counter at the Good Lion, caused Whitaker to be unable to enjoy his drinks without difficulty, and which violate the Americans with Disabilities Act (the ADA), codified as 42 U.S.C section 12101 et seq. (Compl., ¶¶ 14-19.) These barriers or non-compliant conditions, which currently exist, include a bar counter that is 42 inches and too high for or inaccessible to people in a wheelchair, a right facing west entrance that involves an un-ramped step, and a left-facing east entrance with a ramp but no handrails. (Compl., ¶¶ 15 & 20.)

Whitaker believes that there exist other violations and barriers at the property that relate to Whitaker’s disability, and of which Whitaker will give notice once he conducts a site inspection. (Compl., ¶ 25.)

On February 10, 2025, GL LLC 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, GL LLC asserts that the property is owned or occupied by 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).) GL LLC further contends that the violations have been corrected, or will be corrected within sixty days of GL LLC being served with the complaint. (Id. at ¶ 3(b)(3).)

On February 18, 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 11, 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 for a joint inspection to review the issues that Whitaker claims are a violation of construction-related accessibility standards.

Court records reflect that neither Whitaker nor his counsel appeared at the conference which proceeded on April 11, 2025.

On April 11, 2025, the court entered a minute order (the April Order) adopting its tentative ruling, which included a modification to note that defendants submitted an early evaluation conference statement on April 8, 2025, 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 that there exists any 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 GL LLC 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 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 GL LLC on February 10, 2025, and entered by the court on February 18, 2025, failed to direct GL LLC 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). Therefore, to comply with statutory requirements, the Order requires modification.

Furthermore, 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 at the conference. For these and all reasons further discussed herein, the court will continue the conference.

Absent information showing an exemption from the requirements of the Act, 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). GL LLC 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 complaint; (2) the status of any plan of corrections including whether GL LLC 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.”

Pursuant to the April Order, the court continued the conference to May 2, 2025, modified the February Order as further described above, and ordered the parties to, on or before April 23, 2025, file joint or individual status reports setting forth the matters described above and in the April Order.

On April 23, 2025, defendants submitted a status report, in which defendants state that the property was remodeled in 2009 pursuant to floor plans approved by the City of Santa Barbara (the City.) (Def. Status Report at pdf p. 1.) Though defendants state that a copy of the approved floor plans are attached as exhibit A to the status report, the court’s copy of that report does not include exhibits. Defendants assert that no changes have been made to the property, and that the footprint and measurements match the plans approved by the City. (Ibid.)

In support of their status report, defendants submit the declaration of Brandon Ristaino (Ristaino), who is a member of GL LLC. (Ristaino Decl., ¶ 1.) Ristaino declares that, over the past three years, GL LLC has employed fewer than 25 employees and had annual gross receipts which are less than $3.5 million. (Id. at ¶ 7.) Noted above, Ristaino declares the measurements at the property match the plans approved by the City. (Id. at ¶ 3.)

As to the first condition or violation alleged by Whitaker in the complaint and described above, which Whitaker describes as a “Bar Counter”, Ristaino states that he measured the bar counter and confirms that it is 34 inches from the floor. (Ristaino Decl., ¶ 3.)

As to the second condition alleged in the complaint, which Whitaker describes as a “Path of Travel”, Ristaino asserts that there are two entrances to the property which are visible from State Street and face the same direction, one of which has a ramp and the other a step. (Ristaino Decl., ¶ 4.) Ristaino states that, within 30 days of receiving the complaint, GL LLC installed a sign to indicate where the second entrance is located. (Id. at ¶ 5.) Though Ristaino states that a copy of the sign is attached to the declaration as exhibit B, the court’s copy of the Ristaino declaration does not include a photo or exhibits.

As to the third condition alleged in the complaint, which Whitaker describes as “Handrails”, Ristaino states that the ramp located at the bar’s second entrance does not have a rise greater than 6 inches, and therefore does not require a handrail as required under section 405 of the ADA. (Ristaino Decl., ¶ 6.)

Defendants contend that, to the extent liability is found, damages should be reduced under Civil Code section 55.56, subdivision (g)(2). (Def. Status Report at pdf p. 3.) Defendants further assert that on February 25, March 11, and March 24, 2025, they attempted to coordinate the joint inspection required by the February Order, and that Whitaker’s counsel has repeatedly declined, refused to schedule, or participate in that inspection. (Def. Status Report at pdf pp. 3-4.) Defendants request that the court extend the stay to permit the joint inspection to proceed. (Id. at pdf p. 3.)

Whitaker also filed a status report on April 23, 2025. In that report, Whitaker contends that his counsel contacted defendants’ counsel to prepare a joint report. (Pl. Status Report at p. 1.) Whitaker submits an individual status report because, according to Whitaker, defendants’ counsel declined to participate in a joint report. (Ibid.)

Whitaker states that he is unaware of any remediation efforts or plans, and that he requests that defendants remediate the access barriers identified in the complaint, specifically, the inaccessible bar counter, handrails, and path of travel. (Pl. Status Report, ¶¶ 1-3.) Whitaker further states that he is willing to accept a report confirming such corrections. (Ibid.) In addition, Whitaker asserts that though he is willing to conduct an on-site inspection, that “such a meeting now appears unnecessary and would only serve to increase the accrual of fees.” (Ibid.)

Whitaker appears to contend that subdivision (f) of Civil Code section 55.56 is not applicable to this case, and asserts that statutory reductions do not apply here. (Pl. Status Report, ¶ 4.) Whitaker states that he has made a final offer to resolve this case globally without incurring additional attorneys’ fees, that Whitaker is awaiting confirmation from defendants, and that, absent an immediate settlement on the material terms, the stay should be lifted.. (Pl. Status Report, ¶ 5-6.)

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 by 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. In addition, wholly absent from Whitaker’s status report is any information addressing any specific conditions at the property apart from those identified in the complaint and described above, which Whitaker contends are the basis of the violations claimed in the complaint.

In addition, though Whitaker alleges in the complaint that he will identify additional conditions or violations after Whitaker conducts a site inspection, 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.) Moreover, and for reasons unknown to the court, Whitaker asserts that an inspection is no longer necessary.

As Whitaker has not submitted the statement described in Civil Code section 55.54, subdivision (d)(7)(A), as required by the February Order and April Order, and has not attended the joint inspection ordered by the court pursuant to the February Order, 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 described in paragraph 15 of the complaint. Noted above, defendants represent that they have corrected these conditions or violations.

To determine whether or not the stay of these proceedings should be lifted at this stage, the court requires additional information from the parties. The court will order the parties to appear at the conference, and to confirm the following: (1) that the specific conditions or barriers identified in paragraph 15 of Whitaker’s complaint are the only conditions which are the basis of the violations of construction-related accessibility standards claimed by Whitaker in this action; (2) that there exist no other or additional conditions which are the basis of the violations claimed in this action apart from those alleged in paragraph 15 of the complaint; (3) that each of the conditions or violations which form the basis of Whitaker’s claims in this action have been corrected by the defendants; (4) that Whitaker accepts as true defendants’ representations that each of the conditions or violations which are the basis of Whitaker’s claims have been corrected; (5) that the conditions or violations at issue in this action no longer exist; (6) that the purpose for the joint inspection ordered by the court pursuant to the February Order has been fulfilled; (7) that an inspection of the property is no longer necessary due to defendants’ corrections of the conditions or violations which give rise to Whitaker’s claims in this action; (8) that the stay of this action may be lifted; and (9) dates on which the parties are available for trial.

To the extent the parties appear and confirm at the conference each of the matters stated above, the court intends to lift the stay of these proceedings, and expects the parties to be prepared to discuss trial dates.

To the extent the parties fail to appear at the conference or confirm the matters described above, the court intends to continue the conference and extend the stay of these proceedings. Further, 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 corrections 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 defendants 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. Defendants’ 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.