Brian Whitaker vs 1212 State Street LLC et al

Case Number

24CV07015

Case Type

Hearing Date / Time

Fri, 06/06/2025 - 10:00

Nature of Proceedings

Hearing: Early Evaluation Conference

Tentative Ruling

(1) For all reasons discussed herein, the stay of this proceeding is extended, and the early evaluation conference is continued, to June 27, 2025.

(2) Plaintiff’s counsel, Prathima Reddy Price, and defendants’ counsel, Matthew Olufs, are ordered to appear on June 27, 2025, at 10:00 a.m. in this Department, and show cause why monetary sanctions not to exceed $1,500 should not be imposed against each of them for violating the court’s Minute Order entered on May 2, 2025, as discussed herein. On or before June 20, 2025, counsel for plaintiff and counsel for defendants shall each file and serve their respective written responses to the court’s order to show cause.

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.

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

On April 11, 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 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 stating 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.)

Court records reflect that counsel for the parties appeared at the continued conference on May 2, 2025, and represented to the court that they were going to schedule a joint inspection. The court accordingly entered a Minute Order on May 2, 2025, extending the stay of these proceedings, continuing the conference to June 6, 2025, and directing the parties to submit a joint status report by May 30, 2025. (May 2, 2025, Minute Order.)

Court records further reflect that the parties did not submit a joint status report by May 30, 2025.

Analysis:

“A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both.” (Code Civ. Proc., § 177.5.)

Noted above, and for reasons wholly unclear to the court, the parties have failed to submit a joint status report by May 30, 2025, as required by the court’s Minute Order entered on May 2, 2025, and described above. For these reasons, the court finds that Whitaker and defendants have violated the May 2, 2025, Minute Order.

Neither Whitaker nor defendants have offered any information demonstrating a valid excuse, good cause, or substantial justification for their violation of the May 2, 2025, Minute Order. (Code Civ. Proc., § 177.5; see also Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 1081 [“section 177.5 does not even require a willful violation, but merely one committed ‘without good cause of substantial justification,’ that is, without a valid excuse”].)

For all reasons further discussed above, the court will order counsel for Whitaker, Prathima Reddy Price, and counsel for defendants, Matthew Olufs, to appear and show cause why monetary sanctions not to exceed $1,500 should not be imposed against each of them for violating the May 2, 2025, Minute Order as further discussed herein. The hearing on this order to show cause shall be set for June 27, 2025, at 10:00 a.m. in this Department. Counsel for the parties shall each file and serve their written responses to the court’s order herein on or before June 20, 2025.

Further, the court will extend the stay of this proceeding to June 27, 2025.