USDC SCAN INDEX SHEET

NMC 8/23/05 3 : 05-CV-01660 *i* *CMP. *

11:13 ANTONINETTI V. CHIPOTLE MEXICAN

1 Amy B. Vandeveld, State Bar No. 137904 LAW OFFICES OF AMY B. VANDEVELD
2 1850 Fifth Avenue, Suite 22 San Diego, California 92101
3 Telephone: (619) 231-8883 Facsimile: (619) 231-8329
4 Attorney for Plaintiff
5

I
F i L. ill
05/IUC, 22 P/t ~ 07

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

I0 MAURIZIO ANTONINETTI,

Case No.:

ii 12
vs.

Plaintiff,

05 CV 1660 J
CIVIL COMPLAINT

(W c)

13 CHIPOTLE MEXICAN GRILL, INC. and DOES DEMAND FOR JURY TRIAL

14 1 THROUGH i0, Inclusive,

[F.R.C.P. §38(b); Local Rule

15

Defendants.

16

17

Plaintiff, MALTRIZIO ANTONINETTI (hereinafter referred to as

18 "Plaintiff"), file this cause of action against Defendants,

19 ~HIPOTLE MEXICAN GRILL, INC. (hereinafter "CHIPOTLE MEXICAN

2O IRILL’) and DOES 1 THROUGH i0, Inclusive, and would show unto the

21 Court the following:

22

23

JURISDICTION AND VENUE

24

I.

This Court has original jurisdiction of this civil

25 action pursuant to 28 USC §1331, 28 USC §§1343(a) (3) and

26 1343(a) (4) for claims arising under the Americans with

27 Disabilities Act of 1990, 42 USC §12101 et seq. and the Court’s

28 supplemental jurisdiction, 28 USC §1367.

2.

Venue in this Court is proper pursuant to 28 USC

§§1391(b) and (c).

3.

Pursuant to 28 USC §1367(a), Plaintiff shall assert all

causes of action based on state law, as plead in this complaint,

under the supplemental jurisdiction of the federal court. All 6 the causes of action based on federal law and those based on 7 state law, as herein stated, arose from a common nuclei of
operative fact. That is, Plaintiff was denied equal access to

9 Defendants’ facilities, goods, and/or services in violation of i0 both federal and state laws and/or was injured due to violations

Ii of federal and state access laws. The state actions of Plaintiff

12 are so related to the federal actions that they form part of the

13 same case or controversy. The actions would ordinarily be

14 expected to be tried in one judicial proceeding.

15

16

TEE PARTIES

17

4~

Defendant CHIPOTLE MEXICAN GRILL is, and at all times

18 mentioned herein was, a business or corporatioh or franchise

19 organized and existing in and/or doing business under the laws of

20 the State of California. CHIPOTLE MEXICAN GRILL is located at 21 1504 Garnet Avenue, San Diego, CA and at 268 N. E1 Camino Real, 22 Encinitas, CA (hereinafter "the subject properties’). Plaintiff 23 is informed and believes and thereon alleges that Defendant 24 CHIPOTLE MEXICAN GRILL, INC. is, and at all times mentioned 25 herein was, the owner, lessor or lessee of the subject properties 26 and/or the owner and/or operator of the public accommodation 27 located at the subject properties.

28

5.

Plaintiff is informed and believes, and thereon

1 alleges, that Defendants and each of them herein were, at all

2 times relevant to the’action, the owners, franchisees, lessees,

3 general partners, limited partners, agents, employees, employers~

4 ~representlng partners, subsidiaries, parent companies, joint

5 venturers and/or divisions of the remaining Defendants and were

6 acting within the course and scope of that relationship.

7 Plaintiff is further informed and believes, and thereon alleges,

8 that each of the Defendants herein gave consent to, ratified,

9 and/or authorized the acts alleged herein of each of the i0 remaining Defendants.

ii

6.

Plaintiff is an otherwise qualified disabled individual

12 as provided in the Americans with Disabilities Act of 1990, 42

13 USC §12102, Part 5.5 of the California Health & Safety Code and 14 the California Unruh Civil Rights Act, §§51, et seq., 52, et

15 seq., the California Disabled Persons Act, §§54, et seq. and 55, 16 and other statutory measures which refer to the protection of the

17 rights of "physically disabled persons." Plaintiff visited the

18 public accommodation owned and/or operated by Defendants and/or

19 located at the subject properties for the purpose of availing

20 himself of the goods, services, facilities, privileges,

21 advantages, or accommodations operated and/or owned by Defendants 22 and/or located on the subject properties.

23

7.

Plaintiff is informed and believes and thereon alleges

24 that the subject facilities have been newly constructed and/or

25 underwent remodeling, repairs, or~ alterations since 1971, and

26 that Defendants have failed to comply with California access

27 standards which applied at the time of each such new construction

28 and/or alteration.

3

1

2

FACTS

3

8.

Plaintiff has a mobility impairment and uses a

4 wheelchair. Moreover, he has had a history of or has been

5 classified as having a physical impairment, as required by 42 USC

6 §12102 (2) (A) .

7

9.

On or about February 15, 2005 and February 22, 2005 and

8 and continuing through the present date, Plaintiff was denied

9 full and equal access to the facilities owned and/or operated by

i0 the Defendants because the facilities and/or subject properties

ii were inaccessible to members of the disabled community who use

12 wheelchairs ~or mobility. Plaintiff was denied full and equal

13 access because the food serving and viewing counters are

14 inaccessible to and not useable by people in wheelchairs. No

15 equivalent facilitation was and is provided. People in

16 wheelchairs have no opportunity to view the foods available for 17 selection, as are non-disabled people. Further, the properties

18 are inaccessible because of barriers which include, but are not

19 limited to, inaccessible parking, inaccessible entrances and

20 inaccessible restroomso Plaintiff was also denied full and equal

21 access because of discriminatory policies and practices regarding 22 accommodatin~ people with disabilities. Plaintiff filed this

23 lawsuit to compel compliance with access laws and regulations.

24

i0. As a result of Defendants’ failure to provide full and

25 equal access and to remove architectural barriers, Plaintiff

26 suffered injuries. People with disabilities, because of the

27 existing policies, practices and procedures and architectural

28 barriers, are denied full and equal access to the Defendants’

1 facilities, goods, services~ benefits and advantages that are

2 otherwise available to the non-disabled.

3

ii. Plaintiff is an otherwise qualified individual as

4 provided in the Americans with Disabilities Act or 1990, 42 USC

5 §12102, the Rehabilitation Act ~f 1973, Section 504 (as amended

6 29 USC §794) and the California Unruh Civil Rights Act, Civil

7 Code §§51, 52, 54.1, 54.3 and 55, and other statutory measures

8 which refer to the protection of the rights of "physically

9 disabled persons." Plaintiff visited the public facilities owned

I0 and operated by Defendants for the purpose of availing himself of

ii the goods and services offered and provided by Defendants and/or

12 for the purpose of obtaining removal of architectural barriers

13 and/or modification of policies, practices and procedures to

14 provide accessibility to people with disabilities. Plaintiff was

15 ~njured in fact, as set forth more specifically herein.

16

12. Plaintiff alleges that Defendants will continue to

17 operate public accommodations which are inaccessible to him and

18 to other individuals with disabilities. Pursuant to 42 USC 19 §12188(a), Defendants are required to remove architectural

20 barriers in their existing facilities and to modify their

21 policies, practices and procedures to accommodate people with

22 disabilities.

23

13. Plaintiff has no adequate remedy at law for the

24 injuries currently being suffered in that money damages will not

25 adequately compensate Plaintiff for the amount of harm suffered

26 as a result of the failure to provide full and equal access to

27 him and as a result of the exclusion from participation in the

28 economic and social life of this state.

5

1

14. Plaintiff believes that architectural barriers

2 >recluding Plaintiff full and equal access of the public

3 Lccommodation will continue to exist at Plaintiff’s future

4 visits, which will result in future discrimination of Plaintiff,

5 in violation of the Americans with Disabilities Act. Plaintiff

6 is currently being subjected to discrimination because Plaintiff

7 cannot return to, make use of or obtain full and equal access to 8 Ithe facilities, goods and/or services offered by Defendants to

9 the general public. Plaintiff seek damages for each offense

i0 relating to each of Plaintiff’s visits to the subject properties

ii when Plaintiff was denied full and equal access to the subject

12 properties, goods, services, privileges and advantages or was

13 deterred from attempting to avail himself of the benefits, goods,

14 services, privileges and advantages of the place of public

15 accommodation at the subject properties because of continuing

16 barriers to full and equal access.

17

XV.

18

FIRST CLAIM FOR

VIOLATION OF AMERICAN WITH DISABILITIES ACT

19

42 USC Sl2A01,..et ~eq.

20

15. Plaintiff re-alleges and incorporates by reference each

21 and every allegation contained in paragraphs 1 through 14,

22 inclusive, as though set forth fully herein.

23

16. Plaintiff was denied full and equal access to

Defendants’ goods, services, facilities, privileges, advantages,

25 or accommodations within a public accommodation owned, leased 26 and/or operated by Defendants, in violation of 42 USC §12182(a).

27 Plaintiff was, therefore, subjected to discrimination and is

28 entitled to injunctive relief pursuant to 42 USC §12188 as a

6

1 result of the actions or inaction of Defendants,

2

17. Among other remedies, Plaintiff seeks an injunctive

3 order requiring compliance with state and federal access laws for

4 all access violations whichexist at the properties, requiring

5 removal of architectural barriers, modification of policies,

6 practices and procedures and other relief as the court may deem

7 proper.

8

18. Plaintiff also seeks any other order that will redress

9 the discrimination to which he has been subjected, are being

i0 subjected and/or will be subjected.

ii

V.

12

SECOND CLAIR. FOR

VIOLATION OF CALIFORNIA CIVIL CODE

13

19. Plaintiff re-alleges and incorporates by reference each 14

and every allegation contained in paragraphs 1 through 18, 15

inclusive, as though set forth fully herein.

16 20. Based on the facts plead hereinabove and elsewhere in

17 this complaint, Defendants did, and continue to, discriminate

18

against Plaintiff and persons similarly situated by denying

19

disabled persons full and equal access to and enjoyment of the 20

subject facilities and of Defendants’ goods, services,

21 facilities, privileges, advantages or accommodations within a
22 public accommodation, in violation of California Civil Code §§51,

23 et seq., 52, et seq., and 54, et seq.

24

21. Defendants’ actions constitute a violation of 25

Plaintiff’s rights under California Civil Code §§51, et seqo, 52, 26

et seq., and 54, et seq., and therefore Plaintiff is entitled to 27

injunctive relief remedying all such violations of California

28

access laws and standards. In addition, Plaintiff is entitled to

7

1 ~amages under California Civil Code §54.3 for each offense. The

2 amount of damages suffered by Plaintiff is not yet determined.

3 When the amount is ascertained, Plaintiff will ask the Court for

4 leave to amend this complaint to reflect this amount. Plaintiff 5 is also entitled to and requests attorneys’ fees and costs.

6

22. The actions of Defendants were and are in violation of

7 the Unruh Civil Rights Act, California Civil Code §§51, et seq.

8 and therefore Plaintiff is entitled to injunctive relief

9 remedying all such violations of California access laws and

10 standards. In addition, Plaintiff is entitled to damages under

ii California Civil Code §52 for each offense. The amount of

12 damages suffered by Plaintiff is not yet determined. When the

13 amount is ascertained, Plaintiff will ask the Court for leave to 14 amend this Complaint to reflect this amount.

23. Plaintiff seeks ail of the relief available to him

16 under Civil Code §§51, 52 et seq., 54, 54.1, 54.2, 54.3, 55, 55.1

17 and any other Civil Code Sections which provide relief for the 18 discrimination suffered by Plaintiff, including damages and

19 attorneys fees.

20

VI.

21

THIRD CLAIM FOR

VIOLATION OF HEALTH AND

22

SAFETY CODE ~19950, ET SEO.

23

24. Plaintiff re-alleges and incorporates by reference each

24 ahd every allegation contained in paragraphs 1 through 23,

25 inclusive, .as though set forth fully herein~

26

25. Defendants’ facilities are public accommodations within

27 the meaning of Health and Safety Code §19950, et seq., and

28 Plaintiff is informed and believes and thereon alleges that

1 )efendants have newly built or altered the subject properties

2 and/or the subject facility since 1971 within the meaning of

3 California Health and Safety Code §19959. The aforementioned

4 acts and omissions of Defendants constitute a denial of equal

5 access to the use and enjoyment of the Defendants’ facilities by

6 people with disabilities.

7

26. Defendants~ failure to fulfill their duties to provide

8 full and equal access to their facilities by people with

9 disabilities has caused Plaintiff to suffer deprivation of

i0 Plaintiff’s civil rights, as well as other injuries.

ii

27. As a result of Defendants’ violations of Health and

12 Safety Code §§19955, et seq., described herein, Plaintiff is

13 entitled to and requests injunctive relief pursuant to Health and

14 Safety Code §§19953, and to reasonable attorney’s fees and costs.

15

VII.

16

FOURTH CLAIM FOR DECLARATORY RELIEF

17

28. Plaintiff re-alleges and incorporates by reference each

18 and every allegation contained in paragraphs 1 through 27,

19 inclusive, as though set forth fully herein.

20

29. An actual controversy now exists in that Plaintiff is

21 informed and believes and thereon alleges that Defendants’ 22 premises and facilities are in violation of the disabled access

23 laws of the State of California including, but not limited to,

24 Civil Code §§51, et seq., §~52, et seq., §§54, et seq., Health

25 and Safety Code §§19950, et seq., Government Code §§4450, et seq.

26 and 7250, et seq., Title 24 of the California Code of

27 Regulations, and/or Title III of the Americans with Disabilities

28 Act and its implementing Accessibility Regulations.

1

30. A declaratory judgment is necessary and appropriate at

2 ~his time so that each of the parties may know their respective

3 rights and duties and act accordingly.

4

VIII.

5

FIFTH CLAIM FOR INJUNCTIVE RELIEF

6

31. Plaintiff re-alleges and incorporates by reference each

7 and every allegation contained in paragraphs 1 through 30,

8 inclusive, as though set forth fully herein.

9

32. Plaintiff will suffer irreparable harm unless

I0 Defendants are ordered to remove architectural barriers at

ii Defendants’ public accommodations, and/or to modify their

12 policies, procedures and practices regarding accommodating people

13 with disabilities. Plaintiff has no adequate remedy at law to

14 redress the discriminatory conduct of Defendants.

15

33. Plaintiff seeks injunctive relief to redress

16 Plaintiff’s injuries.

17

IX.

18

JURY DEMAND

19

34. Pursuant to Rule 38 of the Federal Rules of Civil

20 Procedure, Plaintiffs hereby request a jury trial.

21

WHEREFORE, Plaintiff prays for judgment against the

22 Defendants, CHIPOTLE MEXICAN GRILL, INC. and DOES I through i0,

23 as follows:

24

i. An order enjoining Defendants from violating disabled

25

access laws of the United States and of the State of

26

California;

27

2. That the Court declare the respective rights and duties

28

of Plaintiff and Defendants as to the removal of

i0

1

2

3

4

3.

5

6 7

8

9

i0

4.

ll

5.

12

13

14

6.

15

16

7.

17

18 )ATED :

19

20

21

22

23

24

25

26

27

28

architectural barriers at Defendants’ public accommodations and/or as to the modification of Defendants’ policies, practices and procedures. An order awarding Plaintiff actual, special and/or statutory damages for violation of his civil rights and for restitution including, but not limited to, damages pursuant to the applicable C±vil Code Sections including, but not limited to, §§52 and 54.3 for each and every offense of Civil Code §§51 and 54; An award of compensatory damages according to proof; An award of up to three times the amount of actual damages pursuant to the Unruh Civil Rights Act and the Disabled Persons Act; and An order awarding Plaintiff reasonable attorneys’ fees and costs; Such other and further relief as the Court deems

, 2005

LA~ OFFI,CE/~F AMY B. VANDEVELD ~~ey for Plaintiff

ii

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~k¢~ Number

 
 USDC SCAN INDEX SHEET

KAJ 1013105 3 : 05-CV-01660 *3* *ANS. *

13:45 ANTONINETTI V. CHI POTLE MEXICAN

1 RYAN A. WILLIAMS, CA Bar No. 226579 MESSNER & REEVES, LLC
2 Attorneys at Law 1430 Wynkoop Street, Suite 400
3 Denver, CO 80202 Telephone: (303) 623-1800
4 Facsimile: (303) 623-0552

O5 OCT - 3 A;t I0:13

5 Attorneys for Defendant CH~OTLE MEXICAN GRILL, INC.
6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI,
12 Plaintiff,
13
V,
14 CHIPOTLE MEXICAN GRILL, INC. and DOES 1
15 through 10, inclusive,

/"
CASE NO. CV05-1660 J WMC
ANSWER TO COMPLAINT

16

Defendants. Date Filed: October 3, 2005

17

18

Defendant, Chipotle Mexican Grill, Inc. ("Chipotle" or "Defendant"), a Delaware

19 corporation, by and through its attorneys, Messner & Reeves, LLC, hereby answers Plaintiff’s

20 Complaint as follows:

21

RESPONSES TO PLAINTIFF’S ALLEGATIONS

22

1. As a statement constituting a legal conclusion, no response to Paragraph 1 is

23 required. To the extent that a response is required, Defendant denies all additional allegations in

24 Paragraph 1.

25

2. As a statement constituting a legal conclusion, no response to Paragraph 2 is

26 required. To the extent that a response is required, Defendant denies all additional allegations in

Paragraph 2.

28
MESSNER & REEVES Attorneys at Law Denver, Colorado

-1-
{00026277 / i }ANSWER TO COMPLAINT Case No. CV05-1660

1

3. As a statement constituting a legal conclusion, no response to Paragraph 3 is

2 required. To the extent that a response is required, Defendant denies all additional allegations in

3 Paragraph 3, including that it violated Plaintiff’s civil rights or caused Plaintiff damages.

4

4. Defendant admits that it was doing business under the laws of California and that it

operates a Chipotle Mexican Grill restaurant located at the subject properties. Defendant further

6 admits that it is a lessee of the subject properties, To the extent that Paragraph 4 sets forth further

allegations, those allegations are denied.

8

5. Defendant admits that it is a lessee of the subject properties. To the extent that a

9 response is required, Defendant denies all additional allegations in Paragraph 5.

10

6. Defendant is without sufficient knowledge or information to either admit or deny

11 the allegations of Paragraph 6, and therefore denies the same.

12

7. Denied.

13

8. Defendant is without sufficient knowledge or information to either admit or deny

14 the allegations of Paragraph 8, and therefore denies the same.

15

9. Denied.

t6

10. Denied.

17

11. Defendant denies Plaintiff was injured, or is entitled to relief. To the extent that

t8 Paragraph 11 sets forth additional allegations, Defendant is without sufficient knowledge or

19 information to either admit or deny the allegations of Paragraph 11, and therefore denies the same.

20

12. Denied,

21

13. Denied

22

14. Denied.

23

15. No response required.

24

16. As a statement constituting a legal conclusion, no response to Paragraph 16 is

25 required. To the extent that a response is required, Defendant denies all additional allegations in

26 Paragraph 16.

27

17. Defendant denies that Plaintiff is entitled to any relief.

28
MESSNER ~. REEVES Attorneys at Law Denver, Colorado

-2-
{0002627"// 1 }ANSWER TO COMPLAINT Case No+ CV05-1660

1

18, Defendant denies that Plaintiff is entitled to any relief.

2

19. No response required.

3

20. Denied.

4

2t. Denied.

5

22. Denied.

6

23. Defendant denies that Plaintiff is entitled to any relief.

7

24. No response required.

8

25. As a statement constituting a legal conclusion, no response to Paragraph 25 is

9 required. Defendant is without sufficient knowledge or information to either admit or deny the

10 remaining allegations of Paragraph 25, and therefore denies the same.

11

26. Denied.

12

27. Denied.

13

28. No response required.

14

29. To the extent that Paragraph 29 reiterates Plaintiff’s allegations, those allegations

15 are either admitted or denied elsewhere in Defendant’s answer. To the extent that a response is

16 required, Defendant denies all additional allegations in Paragraph 29.

17

30. Denied.

18

31. No response required.

19

32. Denied.

20

33. Defendant denies that Plaintiff is entitled to any relief.

21

34. No response required.

22

23

GENERAL DENIAL

24

35. Defendant denies each and every allegation and averment in Plaintiffs’ Complaint

25 not expressly admitted herein.

26

27

28
MESSNER & REEVES Attorneys at L~w Denver, Color~do

-3-
100026277 / 1 }ANSWER TO COMPLAINT Case No. CV(]5- ~ 660

1

AFFIRMATIVE DEFENSES

2

1. Further answenng and as a defense, Defendant states that Plaintiff’s Complaint fails

3 to state a claim upon which relief may be granted.

4

2. Further answenng and as a defense, Defendant states that Plaintiff has failed to

5 include all the necessary parties in order to afford the appropriate relief under the circumstances.

6

3. Further answenng and as a defense, Defendant states that Plaintiff’s claims for

7 equitable relief are barred by the doctrine of unclean hands,

8

4. Further answenng and as a defense, Defendant states that Plaintiff’s claims for

9 equitable relief are barred because Plaintiffs have adequate remedies at law.

10

5. Further answering and as a defense, Defendant states that Plaintiff’s claims are

11 barred by the doctrine of estoppel.

12

6. Further answenng and as a defense, Defendant states that Plaintiff’s claims are

13 barred by the doctrine of waiver.

14

7. Further answenng and as a defense, Defendant states that Plaintiff’s claims may be

15 barred by the doctrine of laches and/or by applicable statutes of limitation.

16

8. Further answenng and as a defense, Defendant states that Plaintiff failed to

17 reasonably mitigate his damages, if any.

18

9. Further answenng and as a defense, Defendant states that any damages suffered by

19 Plaintiff were caused by his own actions, fault, negligence and/or failure to exercise appropriate

20 care.

21

10. Further answering and as a defense, Defendant states that any damages suffered by

22 Plaintiffs were caused by someone other than Defendant and not within Defendant’s control.

23

11. Further answering and as a defense, Defendant states that Plaintiffs’ claims are

24 barred because Defendant acted in good faith.

25

12. Further answering and as a defense, Defendant complied with all applicable

26 statutory and Constituitonal requirements.

27

28
MESSNER & REEVES Atlorneys at Law Denver, Colorado

-4-
{00026277 / I }ANSWER TO COMPLAINT Case No. CV05-1660

1

RESERVATION OF ADDITIONAL DEFENSES

2

Defendant reserves the right to assert any additional applicable factual and legal defenses

3 following discovery and further investigation of this matter.

4

5

WHEREFORE, Defendant Chipotle Mexican Grill, Inc. requests that the Court:

6

a. Deny Each and Every Cause of Action against Defendant Chipotle Mexican Grill,

7

Inc. contained in Plaintiff’s Complaint;

8

b. Award Defendant any other relief the Court deems just and proper under the

9

circumstances.

10

11 Dated: October 3, 2005

12

13

Respectfully Submitted,

14

MESSNER & REEVES, LLC

15

16

By:.~

t7

Attorneys for CHIPOTLE MEXICAN GRILL,

t8

INC.

19

20

21

22

23

24

25

26

27

28
[VIESSNER & REEVES Attorneys at Law Denver, Colorado

-5-
{00026277 / 1 }ANSWER TO COMPLAINT Case No. CV05-1660

1 ANTONINETTI v. CHIPOTLE MEXICAN GRILL, INC~et al.;

CASE NO. CV05-1660

2

PROOF OF SERVICE

3

STATE OF COLORADO

)

4

CITY AND COUNTY OF DENVER

)

5

I am employed by the law firm of Messner & Reeves, LLC, in Denver, Colorado. Mr.

6 Williams is a member of the California Bar and is authorized to practice law before all California state

courts, and the United States District Court for the Southern District of California. I am over the age

7 of eighteen and not a party to the within action. My business address is 1430 Wynkoop Street, Suite

400, Denver, Colorado 80202.

8

On October 3, 2005, I served the foregoing document described as: ANSWER TO

9 COMPLAINT on all interested parties in this action by placing a true copy thereof enclosed in

sealed envelope(s) addressed as follows:

10

Amy B. Vandeveld

11 Law Offices of Amy B. Vandeveld

1850 Fifth Avenue

12 Suite 22

San Diego, CA 92101

13 319-231-8883

14

] am "readily familiar" with the firm’s practice of collection and processing documents for

mailing. It is deposited with Federal Express on that same day in the ordinary course of business. I

15 am aware that on motion of party served, service is presumed invalid if postal cancellation date or

postage meter date is more than one day after date of deposit for mailing in affidavit. Executed

16 October 3, 2005, at Denver, Colorado.

17

I declare under penalty of perjury under the laws of the Stat, e~f California that the foregoing

18

_ _ . _

._

19

20

21

22

23

24

25

26

27

28
ME$SNER & REEVES Altorneys al Law Denver, Colorado

-6-
{00026277 / 1 IANSWER TO COMPLAINT Case No. CV05-1660

 
 USDC SCAN INDEX SHEET

KAJ 1/31/06 3:05-CV-01660 "14" *3DPTYCMP. *

9:59 ANTONINETTI V. CHIPOTLE MEXICAN

1 CATHERINE M. CORFEE, SBN 155064 CORFEE STONE &. ASSOCIATES
2 5441 FAIR OAKS BLVD,, SUITE
CARMICHAI~t., CA 95608 3 TEt.EPHONE: (916)487-5441
lrAcsflvllLe: (916) 487-5440 4
Attorneys for Chipotle Mexican Grill, Inc.
5

06 JAN 0 PH h:lO

6 IN THE UNITED STATES DIS,
7 IN AND FOR. THE SOUTHERN DISTRI
8

9 MAURIZIO ANTONINETTI
10 Plaintiff,
11
V,
12 CHIPOTLE MEXICAN GRILL INC., and
13 DOES 1 THROUGH 10. inclusive

14

Defendants.

15
CROSS CLAIM 16

17 CHIPOTLE MEXICAN GRILL INC.

FILE BY FAX
) Case No.: 05-CV-1660-J(WMc) ) ) CROSS CLAIM OF CH/POTLE ) MEXICAN GRILL INC. AGAINST CARL ) KAKCHER. ENTERPRISES, INC. AND EL ) CAMI~rO PLAZA ASSOCIATES A ) CALIFORNIA JOINT VENTURE ) ) ) ) ) )). )

18

Cross-Complainant,

)

19 V.

)

)

20 CARL KARCHER. ENTERPRISES, INC. )

AND EL CAMINO PLAZA ASSOCIATES A ) 21 CALIFORNIA JOINT VENTURE, and DOES)

1 THROUGH 10, inclusive

22

Defendants.

)

23

)

Pursuant to Rule 13(g) of the Federal Rules of Civil Procedure, Cross-Claira~t

25 CHIPOTLE b~,X’ICAN GRII.L INC (’~Chipofle"), files this Croak.Claim agair~st CARL

26 KARCHEK ENTERPRISES, INC. AND EL CAMINO PLAZA ASSOCIATES A ¯

27 CALIFORNIA JOI~T VENTURE, (collectively "Landlords" or "Cross-Defendants") and allege

28 as follows:

-I-

JURISDICTION AND VENUE

2

I.

This cross claim arises out of the transactions and occurrences that arc the subje

matter of Plairttiffs’ Complaint and on file herein and relates to properties that is the subject 4
matter of said action. This Court has jurisdicti0n over this cross-claim 0_nd the parties to it un
2g 12SC §1331 a_rtd 1343, and Fe~L R. o£Civ. Prec. Rule 13. 6
2. Venu~ is proper in this district under 2g USC §1391(b), (c) because the events o

omissions giving rise to the claim occurred here and the subject property is situated here.

9

PARTIES ! ICACTS

3. Chipotl¢ is informed and believes that Carl Karcher Entre’prises, Inc is a

i0

Corporation doing business in the State of California and is the owner and landlord of the

11

property complained of by Pla/nr/ff, CA which is the subject of this litigation.

4. Chipotl¢ is informed and believes that E1 Camino Plaza Associate.s, is a Califor 13
Joint Venture, and is the owner and landlord of the pro~’ty complained of by Plaintiff, CA 14
which is ~e subject of this litigation. 15
5. In or about August 22, 2005, Plaintiff fi led a Complaint against Defendant/Cros 16
Claimant Chipotle seeking damages and remedies under state and federal law. He alleges that
17 was denied equal and full access to a public accommodation because of his disability. The pu
IS accommodation was leased, in part, by Cross-Complainant from Cross-Defendants, the
19 Laadlords.

5. Pursuant to a lca.s¢ agreement entered into between Chipotle and the Landlords, 21
Cross-Defendants promised to indenmif), and defend Chipotle for any and all claimed injuries

Plaintiff (including allcged statutory violations) relating to the common/parking ar~as of th

leased premises. Pursuant to that agreement, Cross-Defendants arc rcsponsible for any of
24
Plaintil~’s alleged violations and/or injuries caused by its negligence, conduct and/or inactio 25
r~lating to the common/parking are.as. 26
6. On or about D~cember 9, 2005, Chipot!e notified, demanded, and informed Cross
27 Defendants that it re,st make ADA accessibility changes to the common areas pursuant to
2~ Plaintiff’s Complaint, which was attached. Cbipofle did not receive a response.

1 FIRST CAUSE OF ACTION.. AGAINST ALL CROSS-DEFENDNATS ll~OR INDEMNITY
~ DEFENSE REGARDING AMERICAN WITH DISABILI~.IES ACT 42 USC §12101, 2 ET SEO.

3

7. Chipotle incorporate,s herein by references and re, alleges each and every allegation

4 set forth in panagraphs 1 through 6above.

5

8. Pursuant to Rule 13(g) of the Federal Rules of Civil Procedure, Chipotle files this

6 Cross claim against CARL KAP,.CKER ENTERPRISES UND., and EL CAMINO PLAZA

7 ASSOCIATES for indemnity and defense pursuant to the Lease Agreement (Agreement). The

8 Cross-Defendants/landlords are liable for the common areas as alleged by Plaintiff. Chipotle

9 seeks the landlords to assume liability for the common areas as alleged by Plaintiff.

10

11

9. Chipotle seeks an award of its attorneys fees and costs incurred to defend the

12. underlying Action by Plaintiffs, as to the common areas only, and to enforce the terms and

13 provisions of the Agreement by way o.f this Cross Complaint.

14

!NDEM]~/ITY _AND DEFENSE AGAINST CROSS-DEFENDANTS REGARDING

PLAINTII~’S SECOND CAUSE OF ACTION FOR VIOLAT/ON OF CALIFORNIA
16 CO, v.ES

17

t 0. Chipotie incorporates herein by references and re,alleges each and every

18 allegation set forth in paragraphs 1 through 9 above.

19

l 1. Chipotle seeks the landlords to assume liability for the common areas as alleged

20 by Plaintiff. Cross-Defendants must defend and indemnify Chipotle in this regard pursuant to t

21 lease agreemertt.

22

12. Chipotle seeks an award of its attorneys fees and costs incurred to defertd the

9.3 Imderlying Action by Plaintift~;, a~ to the common areas only, and to enforce the terms and

24 3rovisions of the Agreement by way of this Cross Complaint.

25

~qD]~~ AI~ D .E~E.. NSE AGAINST CROSS-DEFEND,A,NT~_ REGARDING

PLAINTIFF’S THIRD CAUSE OF AC’I~. ON.FOR V~OLA .TION OF

26

HEALTH AND SAFETY CODE ~t19950. ET SEO.

. 27

13,

Chipofle incorporates herein by referenc6s and realleges eaclx and every

28 allegation set forth in paragr~aphs 1 through 12 above.

- 3-
$~-~My D~um~,,tt~e~817 lWd~C~os~ Comphint.wpd

C1~.0S$ ~3Mt~L ktWr

1

14. Chipotlc socks the landlords to assume liability for the common areas as alleged

2 by PlaLutiff.Chipotl~ seeks the landlords to ~sume liability for the ¢~mmon area~ as alleged by

3 P[ai.uti~

4

15. Chipotle seeks an awm’d of its attorneys fees and costs incurred to defend the

5 underlying Action by Plaintiffs, as to the common areas only, and to enforce the temps and

6 p~’ovisions of the Agn~cment by way of this Cross Complaint.

7

~OlYRTH C~, uSEOF ACTION FOR DEC~TORY_.RELI~,F

16.

Chipotle ~nc~tporatcs herein, by kefet’~nces and realleges each and every

9 allegation set forth in paragraphs 1 through 15 above.

l 7. Chipot/e :~eek~ an award of its attorneys fees and costs hacurred to defend the 11 underlying Action by Plaintiffs, as to the common areas only, and to enforce the terms and

provisions or’the Agrcememt by way ofth/s Cross Complaint. Ckipotle seeks the landlords to

I3 assume liability for the common areas as alleg~i by plaintiff. Chipotle socks the landlords to

t4 assurae liability for file common areas as alleged by Plaintiff.

15

_F_ IFrHCAUSE OF ACTION FOR IN3UNCTIV~RELI~_A~.

16

18. Chipotle incorporates herein by references and realleges each and every

17 allegation set forth in paragraphs 1 through 17 above.

19. Chipotle seeks an award of its attorneys fees and costs in~arred to defend the

19 underlying Action by Plaintiffs, as to the common areas only, and to enforce the terms and

2O provisions of the Agreement by way or’this Cross Complaint. Chipotle .,ecks the landlords to

2l assume liability for the otmnon areas as alleged by Plaintiff.

22

20. Chipotle seeks the landlords to assume liability for the common areas ~ alleged

23 by Plaintiff.

24 WHEREFOILE, Defendant/Cross-Claimant prays for relief and judgment as follows::

1. That this Answering Defendant’s Crops-Claim against the Landlords be ~anted;
2. "l’imt an Order declare that Landlords must defend and defend the Landlords for 27
Plaintiffs" claims in the Action to the extent they address the common areas o£the subject 28
property, including for reasonable attorneys f~s and costs incurred by Chipatle in having to

S:LMy Docum~aLsX.;cv\81 ? IXPdgXCrosS Complaint.wpd

t.2gOSS COMPLAIhtl"

1 defend against said claims’.

2

3. Declaratory relief/judgment that ~e Landlords are partially, according to proof,

3 responsible to cure or remediate lhe accessibility barriers complained of by Plaintiff, if any su

4 exist to the common areas of the subject property;

5

4. Award of reasonable attorneys fees and costs incurred to defend the underlying

6 Action by Plaintiffs and to enforce the terms aad provisions oflhe Agreement, as to the comano

7 areas of the subject property, by way of this Cross Complaim; and

8

5. For such other and further relief as the Cottt~ may deem just and proper.

9

10

11

12

A~r De fendant/C/tfss-Complainaat

13 14

15

t6 17

18 19 20

21 22

23 24 25 26 27 28

-5-

J~N-30-06 MON 03:02 PM CORFEESTONE BSSOOIBTES

FBX NO. 9164875440

P. 02/03

Case Title: Antoninetti ,,. Chipotle CotmT: Southern District Court CAsg No.: 0 5- C V-16 6 0- J(If/Mc)

PROOF OF~SERV!CE

I am a resident of the State of California, over ~e age of eighteen years, and not a party to the within action. My business address is Coffee Stone & Associates, 5441 Fair Oaks Blvd.,
Suite B-1, Carrnichael, California 95608. On January 30, 2006, I served the within documents
6 described as:

7

(BY FACSIMILE) by transmitting via facsimile the document(s) listed above to the fax

number(s) set forth below on this date before 5:00 p.m.

9

(’BY U.S. MAIL) by placing the document(s) listed above in a sealed envelope with

10

postage thereon fully prepaid, in the United States mail at Sacramento, California

addressed as set forth below.

11

12

(tuhBsaiYtnsgOaFmVeeEdedRraNaylIiEGnxHapTrFeeMsdse®Ara(ILl E) xIpcraeussse~ddsruocphbdoox).cfuUomrnddeenelrti(vtseh)ratytotphbreeacnsteeixrceet

by overnight mail by
it would be deposited business day.

13

(BY PERSONAL SERV/CE) by causing personal delivery by

ofthe

14

document(s) listed above to the person(s) at the address(es) set forth below.

15

(BY PERSONAL SERVICE) by personally delivering the document(s) listed above to the

person(s) at the address(es) set forth below.

16

17

Amy Vandeveld

Carl Kaxeher Enterprises,

18

Law Office of Amy Vandeveld 1850 Fifth Avenue, Suite 22

1200 North Harbor Blvd Anaheim, CA 92803

19

San Diego, CA 92101

Facsimile: 619-231-8329

20

E1Camino Plaza Assoc.

21

1254IrvineBlvd.,Suite 210

22

Tustin, CA92780

23

24

I am readily familiar with the firm’s practice ofcoltectlon and processing correspondence

25 for u’tailing. U~der that practice it would be deposited with U.S. postal service on that same day with postage therebn tully prepaid.

26

27

28

$:\My Do~t~mtnt~ "Ss~kl~ i 7 IWdgkCmx~ Complaint.wpd

-6-

CROSS COMPLAINT

JAN-30-06 HON 03:02 ~ CORFEESTONE aSSOCIaTES

F~ NO. 9184875440

P, 03/03

1

I declaro under penalty of perjury under the laws or" the State of California that the

2 foregoing is trim ancdorrect, Exe~utod on January 3 O, 2006, at Carmichj~l,/Califomia.

3

4

5

6

7

9 10 11 I2 13 14 I5 I6 17 lg 19 20 21 22 23 24 25 26 27

S:~dV[y F~o¢~irm:nts~c~8171~dR\Cmss Complaial.wpd

,7-

CKO$$ COMPI,A.rNT

 
 USDC SCAN INDEX SHEET

KAJ 4/3106 3 : 05-CV-01660 "21" *ANS3DPTY. *

11:37 ANTONINETTI V. CHIPOTLE MEXICAN

1 SCOTT J. FERRELL, Bar No. 202091

2

JULIE R. TROTTER, Bar No. 209675 CALL, JENSEN & FERRELL

3 A Professional Corporation 610 Newport Center Drive, Suite 700

4 Newport Beach, CA 92660

Tel: (949) 717-3000 5 Fax: (949) 717-3100

6

sferrell~caltiensen.com jtrotter@c, a!_lj ensen.com

7 Attorneys for Cross-Defendant
8 Carl Karcher Enterprises, Inc.

9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

MAURIZIOANTONINETTI,

Case No. 05-CV-1660-J(WMc)

Plaintiff,

CROSS-DEFENDANT CARL

KARCHER ENTERPRISES, INC.’S

VS.

ANSWER TO CROSS-CLAIM OF

CHIPOTLE MEXICAN GRILL, INC.

15 CHIPOTLE MEXICAN GRILL INC., and

DOES 1 THROUGH 10, inclusive 16

IDEMAND FOR JURY TRIAL]

17

Defendants.

18 CROSS CLAIM
19

20 CHIPOTLE MEXICAN GR/LL INC.
21 Cross-Complainant,
22

Complaint Filed: Cross-Claim Filed: Trial Date:

23

VS.

24 CARL KARCHER ENTERPRISES, INC. AND EL CAMINO PLAZA
25 ASSOCIATES A CALIFORNIA JOINT VENTURE, and DOES 1 THROUGH 10,
26 Inclusive

August 22, 2005 January 30, 2006 None Set

Cross-Defendants.

CALL, J~N$£N ’~ Fir RRELL
A PROFESSIONAL
CORPORAT|O~

CKE01-09:191946_1:3-29-06 CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INff.’S ANSWER TO CROSS-CLAIM OF CH1POTLE

Cross-Defendant Carl Karcher Enterprises, Inc. ("Cross-Defendant") answers the

2 Cross-Claim (the "Cross-Claim") of Defendant/Cross-Complainant Chipotle Mexican

3 Grill, Inc. ("Defendant/Cross-Complainant"), as follows:

4

1. In response to paragraph 1 of the Cross-Claim, Cross-Defendant admits

5 this Court currently has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1342, until such

6 time as this Defendant establishes that Plaintiff is not entitled to injunctive relief as

7 authorized by the Americans with Disabilities Act, of 42 U.S.C. § 120I et seq. Cross-

8 Defendant is without knowledge or information sufficient to form a belief as to the truth

9 of the remaining allegations, and on that basis denies the same.

10

2. In response to paragraph 2 of the Cross-Claim, Cross-Defendant admits

11 that Venue is proper in this district under 28 U.S.C. §1319(b), (c).

12

3. In response to paragraph 3 of the Cross-Claim, Cross-Defendant is without

13 knowledge or information sufficient to form a belief as to the truth of this allegation,

14 and, on that basis, denies this allegation.

I5

4. In response to paragraph 4 of the Cross-Claim, Cross-Defendant is without

I6 knowledge or information sufficient to form a belief as to the truth of this allegation,

17 and, on that basis, denies this allegation.

18

5. In response to paragraph 5 of the Cross-Claim, Cross-Defendant admits

19 that on or about August 22, 2006, plaintiff filed a Complaint against Defendant/Cross-

20 Claimant Chipotle seeking damages and remedies under state and federal law. Cross-

21 Defendant is without knowledge or information sufficient to form a belief as to the truth

22 of the remaining allegations, and on that basis denies the same.

23

6. In response to paragraph 5 (erroneously listed as Paragraph 5 in

24 Defendant/Cross-Complainant’s Cross-Claim) of the Cross-Claim, Cross-Defendant is

25 without knowledge or information sufficient to form a belief as to the truth of this

26 allegation, and, on that basis, denies this allegation.

27

28
CALL, JENSEN & FEN’RELL
A PROFESSIONAL CORPORATION

CKE01-09:191946_i :3-29-06

-2-

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, 1NC.’S ANSWER TO CROSS-CLAIM OF CHIPOTLE MEXICAN GRILL, INC.

1

7. In response to paragraph 6 of the Cross-Claim, Cross-Defendant is without

2 knowledge or information sufficient to form a belief as to the truth of this allegation,

3 and, on that basis, denies this allegation.

4

8. In response to paragraph 7 of the Cross-Claim, Cross-Defendant

5 incorporates the responses contained in paragraphs 1 through 7 of this Answer.

6

9. In response to paragraph 8 of the Cross-Claim, Cross-Defendant asserts

7 that the language of the Lease Agreement speaks for itself.

8

10. In response to paragraph 9 of the Cross-Claim, Cross-Defendant is without

9 knowledge or information sufficient to form a belief as to the truth of this allegation

10 and, on that basis, denies this allegation.

11

11. In response to paragraph 10 of the Cross-Claim, Cross-Defendant

12 incorporates the responses contained in paragraphs 1 through 10 of this Answer.

13

12. In response to paragraph 11 of the Cross-Claim, Cross-Defendant is

14 without knowledge or information sufficient to form a belief as to the truth of this

15 allegation and, on that basis, denies this allegation.

16

13. In response to paragraph 12 of the Cross-Claim, Cross-Defendant is

17 without knowledge or information sufficient to form a belief as to the truth of this

18 allegation and, on that basis, denies this allegation.

19

14. In response to paragraph 13 of the Cross-Claim, Cross-Defendant

20 incorporates the responses contained in paragraphs 1 through 13 of this Answer.

21

15. In response to paragraph 14 of the Cross-Claim, Cross-Defendant is

22 without knowledge or information sufficient to form a belief as to the truth of this

23 allegation and, on that basis, denies this aIIegation.

24

I6. In response to paragraph 15 of the Cross-Claim, Cross-Defendant is

25 without knowledge or information sufficient to form a belief as to the truth of this

26 allegation and, on that basis, denies this allegation.

27

17. In response to paragraph 16 of the Cross-Claim, Cross-Defendant

28
CA~L, J~$EN ¯ FERRELL
A PROFESSIONAL CORPORATION

incorporates the responses contained in paragraphs 1 through 16 of this Answer.

CKE01-09:191946_1:3-29-06

- 3 -

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, 1NC.’S ANSWER TO CROSS-CLAIM OF CHIPOTLE MEXICAN GRILL, INC.

1

18. In response to paragraph 17 of the Cross-Claim, Cross-Defendant is

2 without knowledge or information sufficient to form a belief as to the truth of this

3 allegation and, on that basis, denies this allegation.

4

19. In response to paragraph 18 of the Cross-Claim, Cross-Defendant

5 incorporates the responses contained in paragraphs 1 through 18 of this Answer.

6

20. In response to paragraph 19 of the Cross-Claim, Cross-Defendant is

7 without knowledge or information sufficient to form a belief as to the truth of this

8 allegation and, on that basis, denies this allegation.

9

21. In response to paragraph 20 of the Cross-Claim, Cross-Defendant is

10 without knowledge or information sufficient to form a belief as to the truth of this

11 allegation and, on that basis, denies this allegation.

12

13

FIRST SEPARATE AND ADDITIONAL DEFENSE

14

(Failure To State A Claim)

15

22. The Cross-Claim filed herein and each purported claim alleged therein,

16 fails to state facts sufficient to constitute a valid cause of action against Cross-

17 Defendant.

18

SECOND SEPARATE AND ADDITIONAL DEFENSE

19

(Statute of Limitation)

20

23. The Cross-Claim and each purported claim alleged therein is barred in

21 whole or in part by the applicable statutes of limitations, including, without limitation

22 Sections 338 and 340 of the California Code of Civil Procedure.

23

THIRD SEPARATE AND ADDITIONAL DEFENSE

24

(Laches)

25

24. Defendant/Cross-Complainant, by delaying prosecution of this action until

26 the present time, is barred in whole or in part by the doctrine of laches from maintaining

27 each and every purported claim alleged in the Cross-Claim, or from recovering any

28
CALL. jENSF-.N & FERRELL
CORPORATION

damages thereunder from Cross-Defendant.

CKE01-09:191946_1:3-294)6

- 4 -

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC.’S ANSWER TO CROSS-CLAIM OF CHIPOTLE

MEXICAN GRILL, INC.

1

FOURTH SEPARATE AND ADDITIONAL DEFENSE

2

(Failure to Mitigate Damages)

3

25. The alleged claims in the Cross-Claim are barred to the extent

4 Defendant/Cross-Complainant failed to mitigate its damages.

5

FIFTH SEPARATE AND ADDITIONAL DEFENSE

6

(Acts or Omissions of Plaintiff)

7

26. The alleged claims in the Cross-Claim are barred to the extent that

8 damages, if any, resulted from the acts and/or omissions of Defendant/Cross-

9 Complainant.

10

SIXTH SEPARATE AND ADDITIONAL DEFENSE

11

(Unclean Hands)

12

27. Cross-Defendant asserts that Defendant/Cross-Complainant has acted with

13 "unclean hands" and such actions are directly related to the claims asserted by

14 Defendant/Cross-Complainant in the Cross-Claim and preclude Defendant/Cross-

15 Complainant from pursuing its claims. Therefore, the Cross-Claim and each purported

t6 claim alleged therein are barred, in whole or in part, by the doctrine of unclean hands.

17

SEVENTH SEPARATE AND ADDITIONAL DEFENSE

t8

(Not Readily Achievable)

19

28. All of Defendant/Cross-Complainant’s claims are barred because to the

20 extent architectural barriers alleged by Plaintiff exist (which supposition is denied and

21 merely stated for the purpose of this additional defense), the modification of such

22 barriers is not readily achievable.

23

EIGHTH SEPARATE AND ADDITIONAL DEFENSE

24

(Maximum Extent Feasible)

25

29. Defendant/Cross-Complainant’s claims are barred in whole or in part on

26 the ground that Cross-Defendant has made the public accommodation at issue

27 accessible to disabled customers to the maximum extent feasible.

28
CALL, J~NSE~I & FERI~ELL
A PROFE$SIO~’AL
CORPORATION

CKE01-09:191946_1:3-29-06

-5-

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC.’S ANSWER TO CROSS-CLAIM OF CHIPOTLE MEXICAN GRILL, 1NC.

1

NINTH SEPARATE AND ADDITIONAL DEFENSE

2

(Dimensional Tolerances)

3

30. Defendant/Cross-Complainant’s claims are barred in whole or in part

4 because, to the extent any architectural barriers alleged by Plaintiff exist (which

5 supposition is denied and merely stated for the purpose of this affirmative defense),

6 such barriers are within permissible state and federal dimensional tolerances.

7

TENTH SEPARATE AND ADDITIONAL DEFENSE

8

(Failure to Plead with Certainty and Particularity)

9

3 i. The alIegations of the Cross-Claim, and each purported claim therein, are

10 not pled with sufficient particularity and are uncertain, vague, ambiguous and

11 unintelligible.

12

ELEVENTH AFFIRMATIVE DEFENSE

13

(Estoppel)

14

32. The Cross-Claim and each purported cause of action alleged therein is

15 barred, in whole or in part, by the doctrine of estoppel.

16

TWELFTH AFFIRMATIVE DEFENSE

17

(Waiver)

18

33. The Cross-Claim, and each cause of action contained therein, is barred, in

19 whole or in part, because Defendant/Cross-Complainant has waived any and all claims

20 it had or may have had against Cross-Defendant by virtue of its own acts or omissions

21 relating to the subject matter of this action.

22

THIRTEENTH AFFIRMATIVE DEFENSE

23

(Wrongful Acts of Defendant)

24

34. Cross-Defendant is informed and believes, and based thereon alleges, that

25 the damages alleged in the Cross-Claim, if proved, were caused by persons and entities

26 other then Cross-Defendant, including but not limited to Defendant/Cross-Complainant.

27 Such intervening and superseding conduct of others bars and/or diminishes recovery, if

28
CALL, JF~NSEN & FERRELL
A PRO FI~$~tONAL CORPORATION

any, by Defendant/Cross-Complainant against Cross-Defendant.

C KE01-09:191946_1:3-29-06

- 6 -

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC.’S ANSWER TO CROSS-CLAIM OF CHIPOTLE MEXICAN GRILL, INC.

1

FOURTEENTH AFFIRMATIVE DEFENSE

2

(Assumption of Risk)

3

35. Defendant/Cross-Complainant is barred, in whole or in part, from

4 recovering damages herein because, if proved, it was solely directly caused by a risk of

5 which Defendant/Cross-Complainant had full knowledge and appreciation and

voluntarily assumed.

FIFTEENTH AFFIRMATIVE DEFENSE

(Percentage of Fault)

36. Cross-Defendant alleges that in the event it is found to be negligent, its

liability must be reduced to reflect its actual percentage of fault.

SIXTEENTH AFFIRMATIVE DEFENSE

(Ratification and/or Consent)

37. Defendant/Cross-Complainant is barred, in whole or in part, from

recovering damages from Cross-Defendant herein because Defendant/Cross-

Complainant ratified and/or consented to the conduct of Cross-Defendant now alleged

to be wrongful.

SEVENTEENTH AFFIRMATIVE DEFENSE

(Compliance with Applicable Laws)

38. Cross-Defendant is absolved from any and all liability for the wrongs alleged in the Cross-Claim by reason of its full compliance with all statutes, regulations,

or other laws in effect at the time of the conduct alleged in the Cross-Claim.

EIGHTEENTH AFFIRMATIVE DEFENSE

(Good Faith of Defendant) 39. At all relevant times Cross-Defendant acted in good faith, in an effort to

comply with all state and federal laws and regulations.

//

//

CKE01.09:191946_1:3-29-06

-7-

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC,’S ANSWER TO CROSS-CLAIM OF CHIPOTLE

MEXICAN GRILL, INC.

NINETEENTH SEPARATE AND ADDITIONAL DEFENSE

(Additional Defenses)

3

40. Cross-Defendant reserves the right to allege additional defenses as they

4 become known during discovery, and to amend their Answer accordingly.

5

6

WHEREFORE, this answering Cross-Defendant prays for judgment as follows:

7

1. That Defendant/Cross-Complainant take nothing by way of this Cross-

8

Claim;

9

2. That Judgment be rendered in favor of Cross-Defendant against

10

Defendant/Cross-Complainant and that the Cross-Claim be dismissed with

11

prejudice;

12

3. That Cross-Defendant be awarded its costs of suit incurred in the defense

13

of this action;

14

4. That Cross-Defendant be awarded its attorneys’ fees of suit incurred in the

15

defense of this action; and

16

5. For such other relief as the Court deems proper.

17

t8 Dated: March 29, 2006 19 20

CALL, JENSEN & FERRELL A Professional Corporation
SCOTT J. FERREEL JULIE R. TROTTER

21

By:

22

JULIE R. TROTTER

23

Attorneys for Cross-Defendant Carl

Karcher Enterprises, Inc.

24

25

26

27

28

FERRELL A PROFESSIONAL CORPORATION

CKE01-09:191946_1:3-29.06

-8-

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, 1NC.’S ANSWER TO CROSS-CLAIM OF CHIPOTLE

MEXICAN GRILL, INC.

DEMAND FOR JURY Cross-Defendant hereby demands a jury pursuant tFoRCP 38(b) on all issues raised in the Cross-Claim of Defendant/Cross-Complainant.

Dated: March 29, 2006 6 7 8 9 10 11 12 13 14

CALL, JENSEN & FERRELL A Professional Corporation SCOTT J. FERRELL JULIE R. TROTTER
Atto, e~ f~or Cross-Defendant Carl Karcher Enterprises, Inc.

16

17

18

19

2O

21

22

23 24

25

26

27

28

A PROFESS[O,NAL CKE01-09:191946_1:3-29-06

-9-

CORFORAT|ON CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC.’S ANSWER TO CROSS-CLAIM OF CHIPOTLE

MEXICAN GRILL, INC.

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

3

I am employed in the County of Orange, State of California. I am over the age of

4

18 and not a party to the within action; my business address is 610 Newport Center Drive, Suite 700, Newport Beach, CA 92660.

5

On March 29, 2006, I served the foregoing document described as CROSS-

6 DEFENDANT CARL KARCHER ENTERPRISES, INC.’S ANSWER TO

7

CROSS-CLAIM OF CHIPOTLE MEXICAN GRILL, INC. [DEMAND FOR JURY TRIAL] on the following person(s) in the manner indicated:

8

9 Any B. Vandeveld, Esq. Law Office of Amy B. Vandeveld
10 1850 5th Avenue, Suite 22 11 San Diego, CA 92101
Tel: (619) 231-8883 12 Fax: (619) 231-8329
abvandeveldesq@hotmail.com
13
Catherine M. Corfee, Esq. 14 Corfee Stone & Associates 15 5441 Fair Oaks Boulevard, Suite B- 1
Carmiehael, CA 95608 16 Tel: (916) 487-5441
Fax: (916) 487-5440 17 catherine@corfeestone.com

Attorneys for Plaintiff Maurizio Antoninetti
Attorneys for Defendant and Cross-Complainant Chipotle Mexican Grill, Inc.

18

19

SEE ATTACHED SERVICE LIST

20

IX] (BYMAIL)I am familiar with the practice of Call, Jensen & Ferrell for collection and processing of correspondence for mailing with the United States Postal

21

Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On this date, a copy of

22 said document was placed in a sealed envelope, with postage fully prepaid, addressed as

set forth herein, and such envelope was placed for collection and mailing at Call, Jensen 23 & Ferretl, Newport Beach, California, following ordinary business practices.

24 [ ] (BY FEDEX) I am familiar with the practice of Call, Jensen & Ferrell for 25 collection and processing of correspondence for delivery by overnight courier.
Correspondence so collected and processed is deposited in a box or other facility
26 regularly maintained by FedEx that same day in the ordinary course of business. On this
date, a copy of said document was placed in a sealed envelope designated by FedEx 27 with delivery fees paid or provided for, addressed as set forth herein, and such envelope
28 was placed for delivery by FedEx at Call, Jensen & Ferrell, Newport Beach, California, CALL, JENSEN &. following ordinary business practices.
FER~ELL A PROFI~SSIONAL
CORPO[tATtON

2

[ I (BY FACSIMILE TRANSMISSION) On this date, at the time indicated on the transmittal sheet, attached hereto, I transmitted from a facsimile transmission machine,

3 which telephone number is (949) 717-3100, the document described above and an unsigned copy of this declaration to the person, and at the facsimile transmission

4 telephone numbers, set forth herein. The above-described transmission was reported as

complete and without error by a properly issued transmission report issued by the

5 facsimile transmission machine upon which the said transmission was made

6 immediately following the transmission.

7 [ ] (BY E-MAIL) I transmitted a copy of the foregoing document)(s) by e-mail to the addressee(s).
8
[ X ] (FEDERAL) I declare that I am employed in the office of a member of the Bar 9 of this Court at whose direction the service was made.

10 the forIegdoeicnlgariseturunedearndpecnorarlteycto, fanpdertjhuartythuinsddeercltahreatliaowns/woafsthexeeSs#tatetde/o~f~ConalMifoarrnciha2t9h,at
11
2006, at Newport Beach, California.
12

13

14

~"///~.~.~.~Katie Dominick

15

16

17

18

19

20

21

22

23

24

25

26

27

28
CALL, JENSEN &
A PROFESSIONAL CORPORATION

 
 Case 3:05-cv-01660-J -WMC Document 28 Filed 08/11/06 Page 1 of 14 USDC SCAN INDEX SHEET

BAR 8/15/06 3:05-CV-01660
*28* *M.*

13:16 ANTONINETTI V. CHIPOTLE MEXICAN

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 2 of 14

1 SCOTT J. FERRELL, Bar No. 202091 2 LISA A. WEGNER, Bar No. 209917
CALL, JENSEN & FERRELL 3 A Professional Corporation
610 Newport Center Drive, Suite 700 4 Newport Beach, CA 92660
Tel: (949) 717-3000 5 Fax:(949)717-3100 6 sferrell@calljensen.com
lwegner@calljensen.com
7
Attorneys for Cross-Defendant 8 Carl Karcher Enterprises, Inc.

AUG I 1 200$

9

10

UNITED STATES DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA /

12 MAURIZIO ANTONlNETTI,

Case No. 05-CV-1660-J(WMc)

13

Plaintiff,

14 vs.
15
CHIPOTLE MEXICAN GRILL INC., and 16 DOES 1 THROUGH 10, inclusive

17
Defendants. 18

19 CROSS CLAIM 20

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Date: October 10, 2006 Time: 10:30 a.m. Ctrm: 12

21 CHIPOTLE MEXICAN GRILL INC.

22

Cross-Complainant,

23

vs.

[Filed concurrently with Cross-
Defendant's Separate Statement of Undisputed Facts; Declaration ofRee R. Ryan; and [Proposed} Order}

24 CARL KARCHER ENTERPRISES, INC.

25 AND EL CAMINO PLAZA

.

ASSOCIATES A CALIFORNIA JOINT Complaint Filed: August 22, 2005

~",:I~_______ ~~-r ~ 26 VENTURE, and DOES 1THROUGH 10, Cross-Claim Filed: January 30, 2006

Inclusive

Trial Date: None Set

D_e_fu_n_da_n_ts_'__

__

FERREL.L

" PROfESSIONA.L. CORPOPflTION

CKEOI-09:212326 1:8-10-06

CROSS·DEFENDANT CARL K C

E RPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; ME AN UM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 3 of 14

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

2

3

PLEASE TAKE NOTICE that on October 10,2006, at 10:30 a.m., or as soon

4 thereafter as the matter may be heard in the above-entitled court, located at 880 Front

5 Street, Courtroom 12, San Diego, California, Cross-defendant Carl Karcher Enterprises,

6 Inc. ("CKE") will and hereby does move the Court for an order granting summary

7 judgment of the Cross-claim by Chipotle Mexican Grill Inc. ("Chipotle").

8

9

GROUNDS FOR MOTION: This motion is made on the grounds that there are

10 no disputable material facts and judgment should be entered in CKE's favor as a matter

11 of law. Specifically, summary judgment is appropriate because there is no evidence

12 that CKE owes any duty to indemnifY or defend Chipotle, as evidenced by the contract

13 on which the Cross-claim is allegedly based.

14

15

BASIS OF MOTION: This motion will be based on this Notice of Motion and

16 Motion, the Statement of Uncontroverted Facts and Conclusions of Law filed herewith,

17 the Declaration of Ree R. Ryan, the pleadings and papers on file herein, and such

18 further arguments and papers as may be presented to the Court before or during the

19 hearing.
20 Dated: August &, 2006
21 22 23 24 25 26 27

CALL JENSEN & FERRELL A Professional Corporation SCOTT J. FERRELL LISA A. WEGNER
By·J.,,~Jl.,h.ls~-a-ar--e-~-e"'\'r'---I----........
Attorneys for Cross-Defendant Carl Karcher Enterprises, Inc.

CALl.. JENSsi1& FERRELL
A PROFESSIONAL
CORPORATION

CKEOI-09:212l26_1:8-IO-06

·2·

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 4 of 14

TABLE OF CONTENTS

2

3 I. INTRODUCTION .. ,....".. ,.. ,.. ,.. ,.. ,..".. ,.. ,..,..,............................................................. 1

4 II, FACTUAL BACKGROUND .................................................................................... 2

5

A. Chipotle Accepted The Terms OfThe Sublease Agreement .......................... 2

6

B. Under The Sublease Agreement, Chipotle Cannot Call On

7

CKE To Make Any Improvements Or Repairs ............................................... 2

8
9
10
II
12 IlL

C. The Landlord, EI Camino Plaza Associates, Is Responsible To Ensure That Common Areas Comply With All Governmental Requirements ........................................................................... 3
D. Upon Being Sued For ADA Violations, Chipotle Crossclaimed Against CKE And The Landlord ....................................................... 3
LEGAL ARGUMENT ............................................................................................... 4

13

A. Summary Judgment Standard .......................................................................... 4

14

B. CKE Is Entitled To Summary Judgment Because It Has No

Duty To IndemnifY Chipotle ........................................................................... 5
15

16

1. Chipotle Agreed To Take The Premises "As Is" .................................. 6

17

2. Chipotle Expressly Agreed That It Would Not Look To CKE For Improvements Or Repairs ................................................ 6

18
3. Chipotle Agreed To The Terms OfThe Master Lease,

19

Under Which The Landlord Is Responsible To Ensure

20

That Common Areas Comply With Governmental Requirements ........................................................................................ 7

21

4. To The Extent Any Repairs Or Improvements Are

22

Not The Landlord's Responsibility Under The Master

Lease, Chipotie Agreed To Make Such Repairs At Its

23

Own Expense ........................................................................................ 8

24 IV. CONCLUSION .......................................................................................................... 9
25

26

27

ell Lt, J£NSi1&
FERRELL II PROFESSIOSAL
CORPORATION

CKEOI·09:212326 1:8·10-06

• i·

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 5 of 14

TABLE OF AUTHORITIES

2

3

FEDERAL CASES

4

5 Anderson v. Liberty Lobby, Inc.

6

477 U.S. 242 (1986)................................................................................................... 5

7 Celotex Corp. v. Catrett

8

477 U.S. 317(1986)................................................................................................... 4

9

10

STATE CASES

11

12 Carma Developers (Calif) v. Marathon Development Calif

13

2 Cal. 4th 342 (1992) ................................................................................................. 5

14

15

FEDERAL STATUTES

16 28 U.S.C. 36.201(b) ........................................................................................................ 5

17 Federal Rule of Civil Procedure 56(c) ............................................................................ 4 18 Federal Rule of Civil Procedure 56(e) ............................................................................4

19

20

STATE STATUTES

21

22 California Civil Code

23

§ 1427 ........................................................................................................................ 5

24

§1549 ........................................................................................................................ 5

25

26

27

c.u. JENS.;J.&.
FERRELL
A. rROf'£SSIONAt.
CORPORATION

CKEOl.09:212326):8.10.o6

• ii·

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 6 of 14

I. INTRODUCTION

2

The moving party, Carl Karcher Enterprises, Inc. ("CKE"), appears in this action

3 only as a cross-defendant on a cross-claim for indemnification. Summary judgment

4 should be granted in CKE's favor on that cross-claim because, contrary to the

5 allegations of the cross-claim, the contract between the parties actually states that CKE

6 cannot be looked to for indemnification.

7

The complaint in this action by Maruizio Antoninetti ("Plaintiff') against

8 defendant and cross-claimant Chipotle Mexican Grill ("Chipotle") seeks damages and

9 an injunction ordering Chipotle to make improvements and repairs necessary to bring its

10 Encino, California, restaurant premises into compliance with the Americans with

11 Disabilities Act ("ADA") and related California statutes. Chipotle then cross-claimed

12 against CKE for indemnification and defense. Even though CKE neither owns nor

13 controls the leased premises, Chipotle alleges that CKE is liable for ADA accessibility

14 repairs and improvements to the common areas of the restaurant premises, based on the

15 sublease agreement between Chipotle and CKE.

16

However, the sublease agreement does not say what Chipotle wishes it said. A

17 simple review of the relevant contract between the parties makes it clear that Chipotle

18 has no valid claim for indemnification from CKE. ChipotJe subleased the premises "as

19 is" and accepted responsibility to make any repairs or alterations at its own expense. In

20 fact, the lease agreement specifically provides that CKE "shall not, under this

21 Sublease, be called upon to make any improvements or repairs to the Leased

22 Premises." Separate Statement of Undisputed Material Facts ("SS") '4, '5) (emphasis

23 added). Furthermore, the contract makes clear that the landlord of the shopping plaza-

24 not CKE-is responsible to ensure that common areas comply with governmental

25 requirements. It follows that CKE is not liable to indemnify Chipotle for costs

26 associated with ADA accessibility repairs. Summary judgment should therefore be

27 granted in favor of CKE on Chipotle' s Cross-claim.

CALL.JENS~
FERRELL A PRon:SSIONAL.
CORPORATION

CKEO 1·09:212326 1:8-10-06

• I•

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 7 of 14

II. FACTUAL BACKGROUND

2

A. Chipotle Accepted The Terms Of The Sublease Agreement

3

On December 24, 1985, CKE entered a lease agreement (the "Master Lease")

4 with landlord EI Camino Plaza Associates to lease restaurant premises located at 268

5 North EI Camino Real in Encinitas (the "Premises"). Separate Statement of Undisputed

6 Material Facts. (SS '1). In 1994, CKE subleased the premises to the Boston Market

7 restaurant chain, which in tum assigned its sublease to Chipotle on May 31, 2002 (the

8 "Assignment"). (SS '2).

9

As stated in the Assignment, Chipotle, as the assignee, accepted and assumed "all

10 of the terms, covenants and conditions in the Sublease" entered into by Boston Market

11 and CKE on June 1, 1994 (the "Sublease Agreement"). (SS '3). Accordingly, that

12 Sublease Agreement sets out the contractual and legal obligations between Chipotle (as

13 "Sublessee") and CKE (as "Sublessor,,).l

14

B. Under The Sublease Agreement, ChipotJe Cannot Call On CKE To

15

Make Any Improvements Or Repairs

16

Under paragraph 9 of the Sublease Agreement, Chipotle expressly took the

17 premises "as is." (SS'4). ("Sublessee acknowledges that it has inspected the Leased

18 Premises and accepts the same in an "as-is" condition). Paragraph 9 further provides

19 that "Sublessee [ChipotJe] shall, at Sublessee's own expense, make any and all repairs

20 required to be made by Sublessor, as Lessee under the Master Lease." Id. The Sublease

21 Agreement also makes it expressly clear that CKE shall have no obligation to make any

22 repairs with respect to the property: "Sublessor shall not, under this Sublease, be

23 called upon to make any improvements or repairs to the Leased Premises." Id.

24 (emphasis added). The "as is" provisions of paragraph 9 are consistent with other

25 provisions in the Sublease Agreement. For instance, paragraph 8 of the Sublease

26

27
cm.JENs.;!&
FERRELL A PROFESSIONAL
CORPORATION

1 Paragraph 13 of the Sublease Agreement provides for the recovery of "reasonable attorney's fees" by
the prevailing party in an action arising out of the Sublease Agreement. and eKE intends to seek such
fees should judgment be entered in its favor.

CKEOI.09:212326J:2123268·10·06

·2·

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 8 of 14

Agreement provides that any improvements to the leased premises "shall be at the sole

2 expense of the Sublessee [Chipotle]." (SS ~6).

3

C. The Landlord, EI Camino Plaza Associates, Is Responsible To Ensure

4

That Common Areas Comply With All Governmental Requirements

5

Paragraph 12 of the Sublease Agreement confirms that the Sublease Agreement is

6 subject to each and all terms of the Master Lease. (SS ~7). Included in the Master Lease

7 is an agreement that "Lessor"-that is, El Camino Plaza Associates, the landlord of the

8 shopping plaza in which the leased premises are located-is responsible for ensuring

9 that the common areas of the shopping center are "in good and sanitary order, condition

10 and repair, including making repairs where necessary, and in compliance with all

II governmental requirements," such as ADA accessibility requirements. (SS ~9). For

12 instance, EI Camino Plaza Associates is specifically responsible for repairs to the

13 common areas such as "remarking paved and unpaved surfaces," and "direction and

14 other signs." Id. (SS ~10).

15

D. Upon Being Sued For ADA Violations, Chipotle Cross-claimed

16

Against CKE And The Landlord

17

On August 22, 2005, plaintiff Maurizio Antoninetti filed suit against Chipotle,

18 alleging that Chipotle's location in Encinitas-the premises subject to the Sublease

19 Agreement and Master Lease-is not compliant with requirements of the ADA and

20 related state law. (Complaint ~~ 16, 20-22 and 25). The complaint seeks an injunction

21 requiring Chipotle to make the necessary repairs and improvements to make the

22 premises ADA-compliant, as well as statutory damages and attorney's fees. (Complaint

23 Prayer for Relief at pp. 10 and 11).

24

On January 30, 2006, Chipotle filed a cross-claim against CKE and the landlord,

25 El Camino Plaza Associates (the "Landlord"), seeking a declaration that CKE and El

26 Camino Plaza Associates have a duty under the Sublease Agreement to indemnify

27 Chipotie. (Cross-claim Prayer for Relief at pp. 4 and 5). Chipotle further seeks an

CALL,JENS~
VERREl.L
" PROFESSIONAL CORPORATION

CKEOI-09:212326_1:2123268-10-06

- 3·

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 9 of 14

award of reasonable attorney's fees in connection with defending plaintiffs action, but

2 only as to the common areas. (Cross-claim Prayer for Relief at pp. 4 and 5).

3

4 III. LEGAL ARGUMENT

5

A. Summary Judgment Standard

6

Summary judgment is proper "if the pleadings, depositions, answers to

7 interrogatories, and admissions on file, together with the affidavits, if any, show that

8 there is no genuine issue as to any material fact and that the moving party is entitled to

9 judgment as a matter of law." Fed. R. Civ. Proc. 56(c); Celotex Corp. v. Catrett, 477

10 U.S. 317, 322 (1986). Specifically, Federal Rule of Civil Procedure 56(c) "mandates

II the entry of summary judgment . . . against a party who fails to make a showing

12 sufficient to establish the existence of an element essential to that party's case, and on

13 which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. A

14 motion for summary judgment "pierces" the pleadings and puts the plaintiff to the test

15 of affirmatively coming forward with sufficient evidence for its claims. ld. at 325. If,

16 as here, the non-moving party on summary judgment has the burden of proof at trial, the

17 moving party has no burden to negate the opponent's claim. ld. at 323. The moving

18 party does not have the burden to produce any evidence showing the absence of a

19 genuine issue of material fact. ld. at 325. "Instead, ... the burden on the moving party

20 may be discharged by 'showing' that is, pointing out to the district court - that there is

21 an absence of evidence to support the nonmoving party's case." ld. (citations omitted).

22

Once the moving party satisfies this initial burden, "an adverse party may not rest

23 upon the mere allegations or denials of the adverse party's pleading.... [T]he adverse

24 party's response ... must set forth specific facts showing that there is a genuine issue

25 for trial." Fed. R. Civ. Pro. 56(e). A "genuine issue" of material fact exists only when

26 the nonmoving party makes a sufficient showing to establish the essential elements to

27 that party's case, and on which that party would bear the burden of proof at trial.

CAl.L, JENS~&
1"I1:IIIlEL.L. A PROfESSIONAl.
CORPORATION

Celotex, 477 U.S. at 322-23. "The mere existence of a scintilla of evidence in support

eKEO 1·09:212326_1 :2123268·1 0'()6

-4 -

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 10 of 14

of the plaintiffs position will be insufficient; there must be evidence on which a

2 reasonable jury could reasonably find for plaintiff." Anderson v. Liberty Lobby, Inc.,

3 477 U.S. 242, 252 (1986).

4

B. CKE Is Entitled To Summary Judgment Because It Has No Duty To

5

Indemnify Chipotle

6

The duties between two interacting parties can be defined by contract. The

7 California Civil Code, for instance, defines a contract as "an agreement to do or not to

8 do a certain thing." Cal. Civ. Code § 1549. A contract thus gives rise to an obligation

9 or legal duty, and at the same time defines the scope of that duty. Cal. Civ. Code §

10 1427. Where an express term defines the scope of the obligation, no implied term can

II be read into the contract to vary the express agreement. Carma Developers (Calif) v.

12 Marathon Dev. Calif, 2 Cal.4th 342, 374 (1 992)("implied terms should never be read to

13 vary express terms").

14

In the context of the ADA, landlords and tenants of places of public

15 accommodation can use a lease or other contract to define the extent to which each will

16 be obligated to the other for ensuring that leased premises comply with ADA

17 accessibility requirements. In fact, the ADA Title III Regulation subsection titled

18 "Landlord and tenant responsibilities," states as follows:

19

As between ["the landlord who owns the building" and "the tenant

20

who owns or operates the place of public accommodation"]'

21

allocations of responsibility for complying with the obligations of

22

this part may be determined by lease or other contract.

23 28 U.S.C. 36.201(b), quoting subsection (a). Thus, the question of whether and to what

24 extent the landlord or tenant will be liable to the other for obligations to make the leased

25 property ADA-compliant is a question that can be, and usually is, determined by the

26 terms of the lease.

27

In this action, Chipotle actually points to the Sublease Agreement as the basis for

cm.JENsOlS.
f&RRELJ. A PROFESSIO~AL
CORPOR.TION

its Cross-claim for indemnity and defense by CKE. (Cross-claim ~, 8, II). However,

CKEOI·09:212126_1:2123268.10.06

·5·

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 11 of 14

Chipotle does not allege any specific term or provision giving rise to the alleged duty in

2 CKE to indemnify and defend Chipotle, nor has Chipotle attached a copy of the lease to

3 the Cross-claim to support its vague allegations.

4

In actuality, the Sublease Agreement's terms are not what Chipotle represents

5 them to be, and in fact are quite the opposite. The terms of the Sublease Agreement

6 unambiguously confirm that CKE does not have any duty to indemnify or defend

7 Chipotle against claims that Chipotle must make ADA-related repairs and

8 improvements to the Premises. Summary judgm.ent is therefore appropriate because

9 there is no evidence that CKE has a duty to indemnify or defend Chipotle.

10

1. ChipotJe Agreed To Take The Premises "As Is"

11

ChipotJe operates its restaurant facility on the Premises pursuant to the May 31,

12 2002, Assignment of the Sublease Agreement from Boston Market to Chipotie. In the

13 Assignment, Chipotle agreed to accept and assume "all of the terms, covenants and

14 conditions" of the June I, 1994 Sublease Agreement. (SS ~ 3). By doing so, Chipotle

15 accepted and assumed the term in paragraph 9 of the Sublease Agreement that the

16 Premises be taken "as is": "Sublessee acknowledges that it has inspected the Leased

17 Premises and accepts the same in an 'as-is' condition." (SS ~4). Therefore, the terms

18 of the contract agreed to by Chipotle preclude Chipotle from now holding CKE

19 responsible to make improvement or repairs for the Premises.

20

2. Chipotle Expressly Agreed That It Would Not Look To CKE

21

For Improvements Or Repairs

22

One of the subjects covered by the Sublease Agreement is the allocation of

23 responsibility for improvements or repairs to the Premises. By accepting assignment of

24 the Sublease Agreement, Chipotie agreed to the express covenant that it would not look

25 to CKE to make any improvements or repairs, as specified in the unambiguous

26 language, "Sublessor shall not, under this Sublease, be called upon to make any

27 improvements or repairs to the Leased Premises." (SS ~ 5).

CALL, JENSa& FERReLL
A PROfESSIONAL
CORPORATION

CKEOl.09:212326.1:2123268·1O·06

·6·

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 12 of 14

Thus, in light of the express terms of the Sublease Agreement, there is no

2 question that Chipotle cannot make CKE responsible for ADA-related improvements or

3 repairs. The Sublease Agreement simply does not include a covenant that CKE will

4 indemnify and defend Chipotle against allegations that ChipotJe must make the

5 Premises ADA-compliant.

6

3. Chipotle Agreed To The Terms Of The Master Lease, Under

7

Which The Landlord Is Responsible To Ensure That Common

8

Areas Comply With Governmental Requirements

9

By agreeing to the terms of the Sublease Agreement, ChipotJe agreed to step into

10 the shoes of CKE as tenant on the Master Lease and to be subject to the terms of the

11 Master Lease. Paragraph 12 of the Sublease Agreement directly states that the Sublease

12 Agreement is "subject to each and all of the terms, conditions, and provisions of the

13 Master Lease," and further states that Chipotle accepted the same obligations that CKE

14 had under the Master Lease: "It is understood and agreed that Sublessee [Chipotle] shall

15 have the same obligations of those of the Sublessor [CKE] under the Master Lease."

16 (SS ~7 and ~8).

17

One important part of the Master Lease is the provision that the Landlord (not

18 CKE) is responsible for ensuring that common areas around the Premises comply with

19 governmental requirements. Specifically, paragraph 11 of the Master Lease discusses

20 the Landlord's responsibility to "pay and be responsible for maintaining all

21 improvements on the common area of the shopping center ... including making

22 repairs where necessary, and in compliance with all governmental requirements."

23 (SS ~9)(emphasis added). Paragraph 11 includes a sample, non-exclusive list of the

24 Landlord's responsibilities for maintaining the common areas, and included on that list

25 is "maintaining, repairing, replacing, and remarking paved and unpaved surfaces, curbs;

26 directional and other signs, landscaping, lighting facilities, drainage, and similar items."

27 (SS ~10).

CALL, J£NSRlS n;RftEU
A I'kOfESSIONAL
CORPORATION

CKEOI-09:212326_1:2IZ3?68-IO-o6

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CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 13 of 14

Thus, to the extent Chipotle seeks indemnification as to the common areas, it

2 must look to the Landlord, not to CKE. For instance, the Landlord is responsible to

3 ensure that disabled parking spaces are painted and signposted in accordance with the

4 ADA guidelines. Chipotle has no control over the common areas and by contract is not

5 responsible to ensure that the common areas are ADA-compliant. It follows that

6 Chipotle is not a proper defendant to Chipotle's Cross-claim for indemnification and

7 defense of ADA-related allegations, particularly because Chipotle seeks

8 indemnification and defense as to the common areas. (Cross-claim ~~8, II, 14).

9

4. To The Extent Any Repairs Or Improvements Are Not The

10

Landlord's Responsibility Under The Master Lease, Chipotle

11

Agreed To Make Such Repairs At Its Own Expense

12

If, under the Master Lease, responsibility for any repairs or improvements fell on

13 CKE, that responsibility transferred to Chipotle through the Sublease Agreement, and

14 Chipotle agreed to make the repairs at its own expense. Specifically, paragraph 9 of the

15 Sublease Agreement provides,

16

Sublessee [Chipotle] shall, at Sublessee's own expense, make any

17

and all repairs required to be made by Sublessor [CKE], as Lessee

18

under the Master Lease.

19 (SS ~4 and ~5). This provision is consistent with paragraph 8 of the Sublease

20 Agreement, which provides that any improvements on the Premises "shall be at the sole

21 expense of the Sublessee [Chipotle]." (SS ~6). It is further consistent with the express

22 agreement that CKE "shall not, under this Sublease, be called upon to make any

23 improvements or repairs to the Leased Premises." (SS ~5).

24

Thus, the Sublease Agreement makes abundantly clear that the costs for ADA-

25 related repairs or improvements fall on Chipotle if not on the Landlord, but do not fall

26 on CKE.

27

C.... LL, Jf:NSa,& FERRELL
A PROFESSIONAL
CORPORATION

CKEOI-09:212326 1:2123268-10-06

-8-

CROSS-DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

• Case 3:05-cv-01660-J -WMC Document 28

•Filed 08/11/06 Page 14 of 14

IV. CONCLUSION

2

Consequently, there IS no evidence to support ChipotJe's claim for

3 indemnification and defense by CKE, and summary judgment should be granted in

4 CKE's favor. CKE does not own nor control the Premises. More important, ChipotIe

5 agreed by contract that it would not call upon CKE to be responsible for repairs or

6 improvements-including repairs or improvements found necessary to make the

7 Premises ADA-compliant. Accordingly, CKE asks this Court to grant summary

8 judgment in favor of CKE and against Chipotle on Chipotle's Cross-claim.

9
10 Dated: August 10 , 2006
11 12 13 14

CALL JENSEN & FERRELL A Professional COlJloration
SCOTT J. FERRELL
LISA A. WEGNER
BY~

15

Attorneys for Cross-Defendant Carl

Karcher Enterprises, Inc.

16

17

18

19

20

21

22

23

24

25

26

27

C.cL, ,,,s.il.&
fERREl.L
A PROFESSIONAL
CORPORATION

eKEO 1-09:212326_1 :212326 8-10-06

- 9-

CROSS·DEFENDANT CARL KARCHER ENTERPRISES, INC'S NOTICE OF MOTION AND MOTION FOR

SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

 
 Case 3:05-cv-O1660-J-WMC Document 67 Filed 01/12/2007 Page 1 of 12

1 GREENBERG TRAURIG, LLP

2

GREGORY F. HURLEY (SBN 126791) STACEY L. HERTER (SBN 185366)

3 650 Town Center Drive, Suite t 700 Costa Mesa, CA 92626

4 Telephone: (714) 708-6500

Facsimile: (714) 708-6501 5 Email: herters@gtlaw.com

6 Attorneys for Defendant 7 CHIPOTLE MEXICAN GRILL, INC.

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIOANTONINETTI,

CASE NO.: 3:05-CV-01660-J-WMC

12

Assign: to Hon. Judge Napoleon A. Jones, Jr.

Plaintiff,

I3

MEMORANDUM OF POINTS AND

14 VS.

AUTHORITIES IN SUPPORT OF CHIPOTLE’S MOTION TO DISMISS CASE

15 CHIPOTLE MEXICAN GRILL, NO. 05 CV 01660-J-WMC FOR

INC.,

VIOLATION OF COURT RULES AND

16

COURT ORDERS, OR IN THE

17

Defendant.

ALTERNATIVE TO CONSOLIDATE WITH CASE NO. 06 CV 2671 PENDING IN

18

THIS COURT

19

[FRCP 16(f) & LOCAL CIVIL RULE 41.11

MAURIZIO ANTONINETTI, et

20 al.,

RELATED TO:

CASE NO.: 06 CV-267I-LAB (POR)

2I

- CLASS ACTION

22

Plaintiffs,

Assign: to Hon. Judge Larry Alan Burns

23 VS.

24 CHIPOTLE MEXICAN GRILL,

25 INC.,

Date" Time:

26

Defendant.

Dept:

27

February 12, 2007 10:30 a.m. Courtroom 12, 2’~d Floor

28

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Case 3:05-cv-O1660-J-WMC Document 67 Filed 01/12/2007 Page 2 of 12

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

i.

3

INTRODUCTION & PROCEDURAL HISTORY

4

Plaintiff Maurizio Antoninetti’s ("Plaintiff’) filing of two identical actions against

5 Defendant Chipotle Mexican Grill, Inc. ("Chipotle") in this court before two different

6 judges is improper and violates FRCP 16 and Local Rule 41.1. Plaintiff is either seeking

7 to avoid the case management orders set by Judge Jones in the first-filed case or Plaintiff

8 is "judge shopping." Plaintiff’s first-filed action is duplicative of the broader and all-

9 encompassing putative class action and Plaintiff’s attempts to double-dip into judicial

10 resources and circumvent prior court orders by initiating a new case is improper.

11

For the reasons discussed below, Plaintiff’s first-filed action should be dismissed

12 without prejudice and Plaintiff’s putative class action should be allowed to proceed anew.

13 A. Plaintiff Has Filed Identical Actions Before Two Different Judges In This

14

Court

15

On August 22, 2005, Plaintiff filed an individual lawsuit against Chipotle, which is

16 currently pending before the Honorable Napoleon Jones (Case No. 05 CV-1660 J

17 (WMc)) (the "first-filed action") (See Request For Judicial Notice, filed concurrently

18 herewith, No. 1). Plaintiff’s first-filed action is an individual action regarding the

19 Chipotte restaurants located at 1504 Garnet Avenue in San Diego and 268 North E1

20 Camino Real in Encinitas. In that first-filed action, Mr. Antoninetti alleges causes of

21 action for violations of the ADA, the Unruh Civil Rights Act, Health and Safety Code

22 Sections 19950, et seq. and declaratory and injunctive relief. Mr. Antoninetti prays for

23 injunctive relief, special, compensatory and statutory damages, attorneys’ fees and such

24 other relief as the court deems proper.

25

On October 3, 2006, Chipotle answered Plaintiff’s Complaint. (See Request For

26 Judicial Notice, No. 2).

27

On November 17, 2005, this Court entered its Order Regulating Discovery and

28 Other Pretrial Proceedings requiring, among other things, that "[a]ny motion to join other

POINTS AND AUTHORITIES FOR MOTION TO DISMISS 286119995v2 059908. 0"i0200

Case No. 05-CV-01660-J-WMC

Case 3:05-cv-O1660-J-WMC Document 67 Filed 01/12/2007 Page 3 of 12

1 parties, to amend the pleadings, or to file additional pleadings shall be filed on or before

2 December 12, 2005." (See Request For Judicial Notice, No. 3).

3

On December 12, 2005, the parties entered into a Stipulation for Extension of

4 Time to Join Parties, Amend Pleadings or File Additional Pleadings in the first-filed

5 action. (See Request For Judicial Notice, No. 4). On January 12, 2006, the pax’ties

6 entered into a second Stipulation for Extension of Time to Join Parties, Amend Pleadings

7 or File Additional Pleadings. (See Request For Judicial Notice, No. 5). The parties have

8 not entered into any subsequent stipulations extending the January 30, 2006 date.

9 (Declaration of Stacey L. Herter, ¶ 2.)

10

On December 6, 2006, Plaintiff filed a second action against Chipotle, which is a

11 putative class action that he initiated with four other individual putative class

12 representatives. (See Request For Judicial Notice, No. 6). This action is currently

13 pending before the Honorable Larry Burns (Case No. 06 CV-267 I-LAB (POR)) (the

14 "second-filed action" or "putative class action"). The second-filed purported class action

15 initiated by Plaintiff and putative class representatives, Jean Riker, James Perkins, Karen

16 Friedman and Michael Rifkin seeks relief identical to that in the first-filed action. In the

17 second-filed action, plaintiffs seek relief against all "83 Chipotle restaurants within the

18 State of California." This necessarily includes the restaurants at issue in the first-filed

19 action. The core factual issues in both cases are identical -- that the design of Chipotle’s 20 counter allegedly makes it difficult for a wheelchair user to see his or her food

21 preparation. Like Plaintiff’s first case, this action alleges causes of action for violations

22 of the ADA, the Unruh Civil Rights Act and declaratory relief. Plaintiffs have 23 additionally asserted causes of action for Unfair Business Practices, Intentional Infliction

24 of Emotional Distress and Negligence Per Se. Plaintiffs’ prayer seeks declaratory and 25 injunctive relief, compensatory damages, statutory damages, attorneys’ fees and such

26 other relief as the court deems just and fair.

27

On December 28, 2006, Chipotle answered the secon&filed action. (See Request

28 For Judicial Notice, No. 7).

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1

On January 1 I, 2007, Plaintiff filed a Notice of Related Cases in both actions. (See

2 Request For Judicial Notice, Nos. 8 & 9).

3 B. Chipotle’s Attempts To Meet And Confer With Plaintiff Re~,.ardin~ Dismissal

4

Of The First-Filed Action

5

On December 28, 2006, counsel for Chipotle telephoned counsel for Plaintiff and

6 left her a voicemail regarding Plaintiff’ s two actions and requesting that Plaintiff dismiss

7 the first-filed action since it would necessarily be encompassed by the second-filed

8 action. (Herter Decl., ¶ 3.)

9

On January 2, 2007, counsel for Chipotle sent correspondence to Plaintiff’s

10 counsel following up on the prior voicemail and attempting to meet and confer with

11 Plaintiff on this matter before filing a motion to dismiss and seeking sanctions. Counsel

12 for Chipotle requested that Plaintiff dismiss the first-filed action without prejudice and

13 offered to accept service of the second-filed action. (Herter Decl., ¶ 4.)

14

On January 3, 2007, Plaintiff’s counsel’s assistant telephoned Chipotle’s counsel

i5 and followed up with correspondence representing that Plaintiff’s counsel was out of the

16 country until January 10, 2007. (Herter Decl., ¶ 5.)

17

Thereafter, on January 9, 2007, counsel for both parties spoke via telephone.

18 During that telephone call, Plaintiff’s counsel stated that she had no interest in voiding or

19 continuing the Court’s Orders in the first-filed case and that she would not dismiss the

20 first-filed case and "start over" with the second-filed putative class action. (Herter Decl., 21 ¶ 6.) Also on January 9~h, Plaintiff’s counsel sent correspondence to Chipotle’s counsel

22 reiterating the telephone discussion, including Plaintiff’ s opinion that the two actions

23 were separate and distinct. (Herter Decl. ¶ 7.)

24

On January 10, 2007, counsel for Chipotle sent another letter to Plaintiff’s counsel

25 regarding Plaintiff’s improper attempts to circumvent the Court’s Orders in the first-filed

26 case and detailing Plaintiff’s improper attempts to "judge-shop." Chipotle once again

27 demanded dismissal of the first-filed case and requested that Plaintiff allow the all-

28 encompassing class action to proceed. (Herter Decl., ¶ 8.)

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1

On January 11, 2007, Plaintiff’s counsel responded to the January 10th

2 correspondence, again refusing to dismiss the first-filed action and stating that she had

3 filed a Notice of Related Case and requested that the cases either be joined or the putative 4 class action be stayed pending resolution of the first-filed action. ~ (Herter Decl., ¶ 9.)

5

This motion follows.

6

II.

7

ARGUMENT

8 A. The Filin~ Of The Second-Filed Action Violates Is Tantamount To An

9

Iml~roper And Untimely Amendment And Therefore Violates This Court’s

t0

Schedulin~ Orders Warrantin~ Dismissal

11

This Court’s November 17, 2005, Order Regulating Discovery and Other Pretrial

12 Proceedings requires the parties to file "[a]ny motion to join other parties, to amend the

13

.gs, or to file additional pleadings...on or before December 12, 2005." (Request

14 for Judicial Notice No. 3.)

15

Two prior stipulations between the parties extended the time to add new parties to

t6 January 9, 2006 and then January 30, 2006. (Request for Judicial Notice Nos. 4 & 5.)

17 No subsequent stipulations extending the January 30, 2006 date have been entered into.

18 FRCP 16(f) states that: 19 If a party or party’s attorney fails to obey a scheduling or pretrial order,... 20 the judge, upon motion or the judge’s own initiative, may make such orders 21 with regard thereto as are just, and among others any of the orders provided

22 in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction,

23 the judge shall require the party or the attorney representing the party or

24

both to pay the reasonable expenses incurred because of any noncompliance

25

26

Plaintiff’s purported Notice of Related Case is improper insofar as it goes beyond

laying out the criteria specified in Local Civil Rule 40.1 (f’) and requests joinder of the

27 two cases or a stay of the second-filed action. Such a notice is the incorrect vehicle by

28 which to request such relief and should therefore be wholly disregarded; Chipotle is entitled to oppose or respond to such representations and relief.

4

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1

with this rule, including attorney’s fees, unless the judge finds that the

2

noncompliance was substantially justified or that other circumstances make

3

an award of expenses unjust.

4

Likewise, Local Civil Rule 41.1 (b) provides that "[f]ailure to comply with the

5 provisions of the local rules of this court may also be grounds for dismissal under this

6 rule."

7

Plaintiff’s filing of the putative class action is tantamount to an amendment of the

Complaint in the first-filed action - albeit an untimely and improper amendment. This

9 Court has already entered a scheduling order setting December 12, 2005 as the deadline

10 for any amendments. The parties subsequent stipulations extended that time to January

11 30, 2006. Faced with a motion cut-off date of a little over a month and the inability to

12 amend the complaint, Plaintiff tactically filed the putative class action. Insofar as

13 Plaintiff is attempting to circumvent and disobey this Court’s scheduling orders, Chipotte

14 requests that this Court dismiss the first-filed action and allow the putative and all-

15 encompassing class action before Judge Burns to proceed.

16 B. Plaintiff’s Filin~ Of Two Identical Actions Is Iml~ermissible Judge Shopping:

17

For Which Plaintiff And Counsel May Face Sanctions, Includin~ Dismissal

18

Judge-shopping "doubtless disrupts the proper functioning of the judicial system

19 and may be disciplined." Standing Comm. on Discipline of the U.S. Dist. Ct. for the

2O Cent. Dist. of Cal. v. gagman, 55 F.3d 1430, 1443 (9th Cir. 1995). These "attempts to

21 manipulate the random case assignment process are subject to universal condemnation."

22 United States v. Phillips, 59 F.Supp.2d 1178, 1180 (D.Utah 1999) (citing United States v.

23 Conforte, 457 F.Supp. 641,652 (D.Nev. 1978), affd, 624 F.2d 869 (gth Cir. t980)).

24

The Ninth Circuit in Hernandez v. City of El Monte, 138 F.3d 393 (9th Cir. 1998)

25 discussed the practice of judge-shopping as well as the district court’s prerogative to 26 sanction said practice. Although the Ninth Circuit reversed the dismissal with prejudice 27 of plaintiffs’ action, holding that the district court abused its discretion in failing to 28 consider less drastic sanctions, it upheld the district court’s finding of judge-shopping.

POINTS AND AUTHORITIES FOR MOTION TO DISMISS 286119995v2 059908. 010200

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1 The plaintiffs in Hernandez had originally filed their action in federal court. One month

2 after filing their action in federal court, and eighteen days after receiving notice of the

3 assignment to a particular judge, the plaintiffs filed an identical action in state court, 4 shuffling the order in which the names of the parties appeared as to effectively change

5 the case caption. The defendants removed this second action to federal court. When the

6 district court inquired as to the second filing, the plaintiffs explained that they had 7 initially filed in federal court because of discovery advantages but then decided to

8 dismiss that action and file in state court in order to gain advantages in jury selection.

9 The district court then dismissed the action with prejudice upon the defendants’ motion to

10 dismiss. Although the dismissal with prejudice was reversed, the Ninth Circuit

t 1 recognized that "[t]he district court’s inherent power to impose dismissal or other

12 appropriate sanctions therefore must include the authority to dismiss a case for judge-

13 shopping." Id. at 399.

14

In Smith v. Mt. Sinai Hospital, 1985 WL 561, No. 84 Civ. 9111-CSH (S.D.N.Y.

15 Apr. 22, 1985), affd, 857 F.2d 1461 (2d Cir. 1987), the plaintiff moved to voluntarily

16 dismiss the complaint and later refiled the same complaint. The defendants alerted the

17 Court to this fact, alleging that the plaintiffs counsel had expressed that she did not want 18 to "deal" with the first assigned judge and "wanted to get away from" him and would

19 therefore withdraw the complaint without prejudice and refile it again in order to obtain a

20 different judge. The plaintiff’s attorney sharply disputed this version of the facts. She

21 averred that she had moved to dismiss the complaint in order to protect her client from 22 the divulgation of certain information she learned from the defendants’ counsel and, that 23 after discussing the same with her client, she decided that the information would not have 2411 as negative of an impact as the defendants’ counsel had first led her to believe and refiled
25 the complaint. The Court found that the defendants’ allegations "at the very least raise 26 the appearance of ’judge-shopping.’ " Id. at *2. Pursuant to its local rules, the Court

27 proceeded to transfer the action back to the original judge, stating that the case could be 28 returned if the first judge found that the local rule banning judge-shopping had not been

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1 violated.

2

in In re Fieger, 1999 WL 717991, 1999 U.S.App. Lexis 22435, No. 97-1359 (6th

3 Cir. Sept. 10, 1999) the plaintiffs filed thirteen duplicate complaints in the same district

4 and then dismissed all but one of them. Their attorney publicly admitted that he had

5 done so in order to ensure assignment to his judge of preference. He was sanctioned and

6 reprimanded by a three-judge panel. The Sixth Circuit upheld the reprimand, finding

7 that Fieger had "circumvented the random assignment rule," and thus "violated the

8 [local] rules, as well as his duties as an officer of the court." Id., 1999 WL 717991, * 1 9 1999 U.S.App. Lexis 22435, at * 3.

I0

Similarly, in Murray v. Sevier, 1992 WL 75212, 1992 U.S. Dist. Lexis 4057

ll (D.Kan. March 13, 1992), counsei filed six actions, all alleging the same general factual

12 claims. Each was assigned a different case number and each was independently was

13 assigned to a judge. The following business day, counsel voluntarily dismissed all but

14 one of the cases. In the remaining case, he requested leave to amend the complaint to

15 add the parties contained in the dismissed actions. The Court expressed that it could

16 "easily thwart these efforts [to judge-shop] by the judicious exercise of the tools of t7 judicial administration." Murray, 1992 WL 75212, *t, 1992 U.S. Dist. Lexis at *2

18 (quoting Gen. Elec. v. Merhige, 1972 WL 2601 (4th Cir. 1972)). The Murray Court then

19 decided that it would dismiss the action without prejudice until it could hold a conference

20 with all litigants in which it would determine whether the case would be assigned to the

21 first judge selected when all the cases were filed or, alternatively, consolidate all cases

22 before it, or another court.

23

It stems from this discussion that a court faced with judge-shopping has the

24 authority to act to preserve the integrity and control of its docket. See Span-Eng Assocs.

25 v. Weidner, 771 F.2d 464, 470 (10th Cir. 1985). Moreover, "[i]t is particularly important

26 for a district utilizing a random selection process to jealously guard the integrity of the

system from potential abuse which attempts to circumvent the process." Murray, 1992 27
WL 75212, 1992 U.S. Dist. Lexis 4057 (citing Knox v. McGinnis, 1990 WL 103277, * 1, 28

POINTS AND AUTHORITIES FOR MOTION TO DISMISS 286119995v2 059908.010200

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1 1990 U.S. Dist. Lexis 8711, *2 (N.D.Ill. July 12, 1990)). By engaging in judge-

2 shopping, parties contravene the very purpose of random assignment, which is to

3 "prevent judge-shopping by any party, thereby enhancing public confidence in the

4 assignment process." United States v. Mavroules, 798 F.Supp. 61 (D.Mass. 1992).

5

Policy considerations and judicial economy also weigh heavily against condoning

6 a party’s judge-shopping practices. In addressing this issue, the District Court of Kansas

7 expressed serious and well-reasoned concerns regarding the unnecessary expenditure of

8 judicial resources:

9

Judicial economy is well-served; with over 750 cases filed in this court in

I0

the past year, this court is unduly burdened by a claim that could more

11

efficiently be heard in a case already pending in Judge Crow’s court. This

12

district’s docket would become clogged and suffer virtual incapacitation if

13

all litigants were allowed to bring a new cause of action every time a motion

14

to amend was denied or partial summary judgment was granted.

15

Furthermore, to allow the approach plaintiffs advocate would grant this

16

court’s seal of approval to a practice of flagrant judge-shopping. While the

17

court is aware that a certain amount of judge-shopping occurs each time a

18

litigant decides whether to file a case in Wichita, Topeka, or Kansas City,

19

the court cannot condone plaintiffs’ practice of running to a different city

20

within the district and filing a new case every time a judge in a prior action

21

makes a ruling adverse to that litigant’s position. The court cannot be made

22

a party to what is in effect an appeal from Judge Crow’s ruling in the t 985

23

action.

24 Oxbow Energy, Inc. v. Koch Industries, Inc., 686 F.Supp. 278, 282 (D.Kan. 1988).

25

The timing of Plaintiff’s actions lead to the conclusion that he is engaging in judge-

26 shopping. As shown above, case law supports the proposition that a district court has the

inherent power to dismiss an action for judge-shopping. "District courts have inherent 27

28 power to control their dockets and may impose sanctions, including dismissal, in the

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Case 3:05-cv-O1660-J-WMC Document 67 Filed 01/12/2007 Page 10 of 12

1 exercise of that discretion." (Oliva v. Sullivan, 958 F.2d 272 at 273 (9th Cir. 1992).) The

2 Supreme Court has also stated that a "primary aspect" of every federal court’s inherent

3 power is "the ability to fashion an appropriate sanction for conduct which abuses the

4 judicial process." Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 2133,

5 115 L.Ed.2d 27 (199 I). Judge-shopping clearly constitutes "conduct which abuses the

6 judicial process."

7

Accordingly, Chipotle requests that this Court exercise its inherent power to

8 impose dismissal of the first-filed action without prejudice for Plaintiff’s judge-shopping.

9 C. In The Alternative, Plaintiffs’ First-Filed Case Should Be Consolidated Into

t0

The All-Encompassin~ Class Action

11

When actions involving a common question of law or fact are pending before the

12 court, it may order a joint hearing or trial of any or all the matters in issue in the actions;

13 it may order all the actions consolidated; and it may make such orders concerning

14 proceedings therein as may tend to avoid unnecessary costs or delay." (FRCP Rule

15 42(a).)

Rule 42(a) applies only to "actions... pending before the court" and thus does not

17 empower the court to consolidate related proceedings pending in any other forum. The 18 purpose of course is to enhance trial court efficiency (i.e., to avoid unnecessary 19 duplication of evidence and procedures); and to avoid the substantial danger of 20 inconsistent adjudications (i.e., different results because tried before different juries, or a 21 iudge and jury, etc.). (E.E.O.C.v. HBE Corp. (Sth Cir. 1998) 135 F.3d 543, 55t, 22 :onsolidation inappropriate, however, if it leads to inefficiency, inconvenience or unfair 23 prejudice to a party.) The single essential requirement is questions of law or fact 24 common to the cases that are to be consolidated. (Enterprise Bank v. Saettele (8th Cir.

25 1994) 21 F.3d 233,235.)

26

As discussed in detail above, both cases are based upon and involve the same

27 claims, the same property, transaction or event and substantially the same facts and same

28 questions of law. in particular, both actions are based on Plaintiff’s allegations that the

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1 design of Chipotle’s counter allegedly makes it difficult for a wheelchair user to see his

2 or her food preparation and violates the ADA and Unruh Civil Rights Act. The second-

3 filed action necessarily encompasses all issues and relief in the first-filed action, while

4 the first-filed action does not. Accordingly, Chipotle’s request for consolidation of the

5 first-filed action into the broader second-filed action is reasonable in that it will avoid

6 repetitive trials of the same common issues and thus avoid unnecessary costs and delays

7 to the Court and to the parties, as well as the substantial risk of inconsistent

8 adjudications.

9

iii.

10

CONCLUSION

11

For all of the foregoing reasons, Chipotle respectfully requests that this Court

12 dismiss the first-filed action and aIlow the putative class action to proceed. In the

13 alternative, Chipotle requests that the cases be consolidated for all purposes, with the 14 first-filed action being consolidated into the second-filed action.

15

16 DATED: January 12, 2007

GREENB.ERG TRAURIG, LLP

17

18

Gregbry F. H~.~y

19

Staqey L. Hefte

2O

Att~[neys for~-E~ :fendant CHIPOTLE MEXICAN

GRmL, INC.

21

22

23

24

25

26

27

28

10
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t

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE COUNTY
3 I am employed in the aforesaid county, State of California; I am over the age of 18
4 years and not a party to the within action; my business address is 650 Town Center
5 Drive, Suite 650, Costa Mesa, CA 92626.

6

On the below date, I electronically filed the MEMORANDUM OF POINTS

AND AUTHORITIES IN SUPPORT OF CHIPOTLE’S MOTION TO DISMISS

7 CASE NO. 05 CV 01660-J-WMC, with the Clerk of the United States District Court for

the Southern District of California, using the CM/ECF System. The Court’s CM/ECF 8 System will send an email notification of the foregoing filing to the following parties and

9 counsel of record who are registered with the Court’s CM/ECF System:

10

11 Amy B. Vandevetd Law Offices of Amy B. Vandeveld
12 1850 Fifth Avenue, Suite 22

13

San Diego, CA 92101 T: (619) 231-8883

14 F: (619) 231-8329 Email: abvusdc@hotmail.com
15

Attorneys for Plaintiffs 16

17

BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM)

18

In accordance with the electronic filing procedures of this Court, service has been

19

effected on the aforesaid party(s) above, whose counsel of record is a registered

participant of CM/ECF, via electronic service through the CM/ECF system.

20 ~] (FEDERAL) I declare under penalty of perjury that the foregoing is true and

21

correct, and that I am employed at the office of a member of the bar of this Court at whose direction the service was made.

22

Executed on January 12, 2007, at Costa Mesa, California.

23

/s/

24

Susan Jackson

25

26

27

28

PROOF OF SERVICE 286119995v2 059908.010200

Case No. 05-CV-01660-J-WMC

 
 Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 1 of 8

1 Amy B. Vandeveld, State Bar No. 137904 LAW OFFICES OF AMY B. VANDEVELD
2 1850 Fifth Avenue, Suite 22 San Diego, California 92101
3 Telephone: (619) 231-8883 Facsimile: (619) 231-8329
4 Attorney for Plaintiff
5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 MAURIZIO ANTONINETTI

Case No.: 05 CV 1660 J

11 Plaintiff,

(WMc)

12 vs.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

13

PLAINTIFF’S OPPOSITION TO

CHIPOTLE MEXICAN GRILL, INC. and DOES MOTION TO DISMISS OR, IN

14 1 THROUGH 10, Inclusive,

THE ALTERNATIVE, TO CONSOLIDATE WITH PENDING

15

Defendants.

CASE

16

Date: February 12, 2007

Time: 10:30 a.m.

17

Judge: Napoleon A. Jones,

Jr.

18

19

20

Plaintiff, MAURIZIO ANTONINETTI, (hereinafter “Plaintiff"),

21 hereby submits the following Memorandum of Points and Authorities

22 in Support of his Opposition to the Motion to Dismiss or, in the

23 alternative, to consolidate Case No. 05 CV 1660 J (WMc) with Case

24 No. 06 CV 2671 LAB (POR).

25 ///

26 ///

27 ///

28 ///

1

Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 2 of 8

1

I.

2

PLAINTIFF DOES NOT OPPOSE CONSOLIDATION OF

CASE NO. 06 CV 2671 WITH THE INSTANT CASE

3

4

Plaintiff has no objection to the consolidation of Case No.

5 06 CV 2671 with the instant case. In fact, in his Notices of

6 Related Cases filed in the two actions on January 11, 2007,

7 Plaintiff specifically requested that the later-filed case be

8 assigned to Judge Jones, who had been assigned the instant case.

9

Of note, the Plaintiff recommended that the cases be

10 assigned to the same Judge the day before Defendant filed it’s

11 Motion to Dismiss.

12

II.

13

DEFENDANT’S MOTION WAS FILED WITHOUT

ANY REASONABLE BASIS AND WAS DONE

14

FOR IMPROPER PURPOSES

15 A. This Motion was Completely Unnecessary.

16

Defendant contended, and continues to contend, that

17 Plaintiff engaged in “judge-shopping” when he filed, along with

18 four other plaintiffs, a subsequent class action lawsuit that

19 involved all of Chipotle’s restaurants in California. Defendant

20 also contended, and continues to contend, that Plaintiff tried to

21 “do an end run” around the Court’s Scheduling Order in the

22 instant action by filing the subsequent class action.

23

When Defendant first leveled these charges, Plaintiff’s

24 counsel took immediate action to disabuse Defendant and it’s

25 attorneys of those notions. (Please see Exhibits “C” and “E” to

26 Defendant’s Motion and Plaintiff’s Notice of Related Cases filed

27 in the instant matter.)

28

In addition to Plaintiff’s counsel’s letters to defense

2

Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 3 of 8

1 counsel, Plaintiff’s Notice of Related Cases, filed and served

2 the day before Defendant filed the instant Motion, clearly stated

3 that Plaintiff’s claims in the instant case were separate and

4 distinct from those asserted in the Class Action. The Notice

5 also specifically and emphatically stated that Plaintiff had no

6 desire to modify the Court’s Scheduling Order in the instant

7 case.

8

In fact, Plaintiff offered to file an Amended Complaint in

9 the later-filed action to address Defendant’s concerns about

10 “duplicative claims”. (Please see Exhibit “E” to Defendant’s

11 Motion.) Plaintiff even provided Stacey Herter, at a deposition

12 on January 22, 2007, with a Stipulation to allow Plaintiffs to

13 amend the Complaint in Case No. 06 CV 2671 LAB (POR). Ms. Herter

14 stated that she needed to “check with Greg” to see if the

15 Stipulation would be signed by defense counsel. To date, the

16 Stipulation has not been executed by defense counsel. (See ABV

17 Dec., par. 5.)

18

Rather than act responsibly, with professionalism and in

19 good faith, Defendant and/or it’s attorneys, including Gregory F.

20 Hurley, decided to simply ignore the Plaintiff’s representations

21 and his offer to stipulate to amend the Complaint and, instead,

22 filed the instant motion. There is absolutely no reason for this

23 motion to take up this Court’s time and resources, or for the

24 Plaintiff to expend attorney’s fees reviewing and responding to

25 the motion.

26

Had Defendant simply agreed to the Stipulation to Amend the

27 Complaint, the issues of duplication would be moot. Further,

28 Defendant’s allegations regarding the Scheduling Order are belied

3

Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 4 of 8

1 by the fact that at no time has Plaintiff ever indicated, by

2 implication or otherwise, that he wished to modify the Court

3 dates in the instant action. Moreover, the Notice of Related

4 Cases specifically refutes Defendant’s position.

5

Defendant’s motion should be denied and Defendant and/or his

6 attorneys should be sanctioned for filing a frivolous motion.

7 The Court should also take note that, while the Motion is signed

8 by Ms. Herter, her supervising attorney, and the person in charge

9 of this litigation, is Mr. Hurley.

10 B. 11

Defense Counsel, Greg Hurley, Has Been Sanctioned by Other Courts for Improper Conduct.

12

In Lonberg v. Home Depot Store 610 U.S. District Court,

13 Central District case number SACV-00-221DOC, the Court personally

14 sanctioned Mr. Hurley for presenting information to the Court

15 that he knew or should have known was false. (Please See Exhibit

16 “A” to the Declaration of Amy B. Vandeveld, par. 5.)

17

Not only did the Court find that Mr. Hurley and his client

18 had misrepresented facts to the Court, it also found that Mr.

19 Hurley and his client filed a removal action for an “improper

20 purpose”. (Ex. “A” to Vandeveld Dec., par. 8.) The Court also

21 stated:

22

“Defendant has made it as difficult as possible for

Plaintiff to vindicate his rights, forcing him to

23

retain an attorney instead of proceeding in small

claims court. Actions like this may make disabled

24

individuals reluctant to try and enforce their civil

rights for fear that they can do so only with the help

25

of an attorney at significant cost.”

26 Ex. “A” to Vandeveld Dec., par. 7.

27

In a published opinion, another Court found Mr. Hurley’s

28 mischaracterization of a decision of another case “intellectually

4

Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 5 of 8

1 dishonest and insulting to this Court.” United States v. AMC

2 Entertainment, Inc. (C.D. Cal. 2002) 232 F.Supp.2d 1092, at n.

3 14. In fact, the Court found that Mr. Hurley’s sworn

4 declarations were not credible because, among other reasons, they

5 contradicted statements of his own witnesses and clients.

6

In another published decision, the Court criticized Mr.

7 Hurley for attempting to rely on his own declaration as evidence.

8 United States v. AMC Entertainment, Inc. (C.D. Cal. 2003) 245

9 F.Supp.2d 1094, at n. 9)

10

The California Court of Appeal even criticized Mr. Hurley.

11 In Hankins v. El Torito (1998) 63 Cal.App.4th 510, the Court

12 chastised Mr. Hurley for his improper attempts to cite

13 unpublished case law: “we also note, with considerable distress,

14 that El Torito’s counsel has improperly cited two other

15 depublished cases... It is difficult to excuse these errors

16 especially in light of El Torito’s numerous other violations of

17 rule 15(a) of the California Rules of Court by, e.g., its failure

18 to provide record citations for a veritable host of its factual

19 assertions.”

20

Mr. Hurley was personally sanctioned in United States v. AMC

21 Entertainment, U.S. District Court, Central District case number

22 CV-99-1034 FMC for (a) failing to produce records, (b)

23 intentionally deleting responsive e-mail documents, (c) failing

24 to act reasonably to recover documents and (d) opposing a

25 discovery motion without substantial justification. (Ex. “B” to

26 Vandeveld Dec.)

27

While the instant motion is signed by Ms. Herter, it is

28 clear that Mr. Hurley is simply hiding behind his associate to

5

Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 6 of 8

1 avoid further sanctions. He is the supervising attorney on this

2 case. It is unlikely that the motion would have been filed

3 without Mr. Hurley’s direction and approval. Unless Mr. Hurley

4 is sanctioned for his improper conduct in filing the instant

5 motion, he will not be deterred from filing other frivolous

6 motions, all to the detriment of the Court and to the Plaintiff

7 and class plaintiffs.

8 C. 9

Mr. Hurley Has Engaged in other Harassing and Annoying Conduct Against People with Disabilities.

10

In 2005, a disabled advocate, Ruthee Goldkorn, sought a

11 quick and economical resolution, in small claims court, of her

12 claims relating to access violations at a Claire’s Boutique store

13 in Moreno Valley, CA. She won her case. Claire’s threatened to

14 appeal the judgment unless Ms. Goldkorn agreed to provide notice

15 of other access barriers at Claire’s stores before filing a

16 lawsuit.

17

Ms. Goldkorn agreed to the requested notice provision, even

18 though she was not legally obligated to give notice prior to

19 filing a lawsuit. In fact, when Ms. Goldkorn did confront other

20 barriers at a different Claire’s store, she attempted an even

21 more informal and cost-effective resolution. Rather than give

22 notice as prescribed by the Settlement Agreement, Ms. Goldkorn

23 sent an informal email to Claire’s counsel, Stacy Herter,

24 regarding problems she had encountered at the Ontario store. As

25 noted above, Stacy Herter is Mr. Hurley’s associate and is

26 involved in both of the Antoninetti v. Chipotle cases filed with

27 this Court.

28

Unfortunately, Ms. Goldkorn agreed to the notice provision

6

Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 7 of 8

1 to her extreme detriment. After receiving notice of the other

2 violations, Claire’s Boutique, represented by Mr. Hurley and

3 Stacey Herter, actually sued Ms. Goldkorn for declaratory relief,

4 alleging that the notice given by Ms. Goldkorn gave rise to a

5 justiciable case or controversy. (See Case No.: RCV 085784,

6 filed in the County of San Bernardino.)

7

In that case, Ms. Goldkorn was forced to locate an attorney

8 who would defend her, pro bono, in a lawsuit that would never

9 have been filed but for the fact that Ms. Goldkorn agreed to

10 notify Claire’s of access problems at other stores. She was

11 tricked into this vulnerable position by Claire’s or Claire’s

12 attorney, Gregory Hurley, who was the lead attorney in the

13 declaratory relief lawsuit against Ms. Goldkorn.

14

Upon Ms. Goldkorn’s request, and after a hearing on her

15 motion, the Court dismissed Claire’s lawsuit against Ms.

16 Goldkorn, without leave to amend. (Please see Exhibit “C” to

17 Vandeveld Dec.) If Ms. Goldkorn had not been able to find an

18 attorney to defend her pro bono, she would have been unable to

19 defend the case against her.

20

III.

21

CONCLUSION

22

Based upon the foregoing, Plaintiff respectfully requests

23 that the Court deny Defendant’s Motion to Dismiss. Plaintiff

24 further requests that the Court consolidate USDC Case No. 06 CV

25 2671 LAB (POR) with USDC Case No. 05 CV 1660 J (WMc). Finally,

26 Plaintiff requests that the Court sanction Defense counsel for

27 ///

28 ///

7

Case 3:05-cv-01660-J-WMC Document 70-1 Filed 01/24/2007 Page 8 of 8

1 filing a frivolous motion. 2 DATED: January 24, 2007 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES OF AMY B. VANDEVELD /S/ Amy B. Vandeveld AMY B. VANDEVELD, Attorney for Plaintiff
8

 
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1 GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791)
2 STACEY L. HERTER (SBN 185366) 3 650 Town Center Drive, Suite 1700
Costa Mesa, CA 92626 4 Telephone: (714) 708-6500
Facsimile: (714) 708-6501 5 Email: herters@gtlaw.com
6 Attorneys for Defendant 7 CHIPOTLE MEXICAN GRILL, INC.

8

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
MAURIZIO ANTONINETTI,
12

13

Plaintiff,

14 vs.

15 CHIPOTLE MEXICAN GRILL, 16 INC.,

17

Defendant.

18

CASE NO.: 3:05-CV-01660-J-WMC
Assigned to Hon. Judge Napoleon A. Jones, Jr.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CHIPOTLE MEXICAN GRILL, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

19

[Filed concurrently with Notice of Motion,

Separate Statement, Declaration of Shippey,

20

Declaration of Sedillo, Declaration of Stupp,

Declaration of Blackseth, Declaration of

21

Herter, Request for Judicial Notice, and

Order] 22

23

Date: May 21, 2007 Time: 9:00 a.m.

24

Ctrm: 12

25

26

27

28

CHIPOTLE’S MOTION FOR SUMMARY JUDGMENT
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1

TABLE OF CONTENTS

2

3 I. INTRODUCTION .................................................................................................. 1

4 II. FACTUAL BACKGROUND ................................................................................ 2

5 III. ARGUMENT ......................................................................................................... 4

6 A. Summary Judgment Should Be Granted as to Plaintiff’s ADA

Claim Because the Court Lacks Subject Matter Jurisdiction .......................... 4

7

1. The Injunctive Relief Requested by Plaintiff is Either Not

8

Not Required or Has Already Been Accomplished.................................... 6

9

2. Chipotle’s Food Preparation Area and Transaction Station

Fully Comply with Pertinent Accessibility Regulations ............................ 9

10

3. Chipotle Possesses a Policy to Accommodate its Customers

11

With Disabilities and to Deliver Excellent Customer Service ................... 12

12 B. Plaintiff Cannot Rely on the General Anti-Discrimination

Provisions of the ADA to Require Chipotle to Re-Design

13

The Restaurants................................................................................................ 16

14 C. Section 19957 of the Health and Safety Code Provides Local

Building Departments With Discretion to Enforce the California

15

Building Code .................................................................................................. 19

16 D. The Height of the Food Service Counter and The Placement

Of the Sneeze Guard is Required by Law to Ensure Sanitary

17

Conditions for Chipotle’s Customers .............................................................. 23

18 E. If Plaintiff’s Federal Claims are Dismissed, His State Law Claims Should Also Be Dismissed ................................................................... 23
19
IV. CONCLUSION..................................................................................................... 25
20

21

22

23

24

25

26

27 28

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1

TABLE OF AUTHORITIES

2 Federal Cases

3

Association for Disabled Americans v. City of Orlando (153 F.Supp.2d 1310 (M.D.Fla., 2001) ..........................................................................15

4
Barilla v. Ervin 5 886 F.2d 1514 (9th Cir. 1989) ..........................................................................................4

6
Brewer v. Wisconsin Bd. of Bar Examiners 7 2007 WL 527484, at *4-*5 (E.D. Wis. Feb. 14, 2007) ....................................................8

8
Brother v. CPL Invts., Inc. 9 317 F. Supp. 2d 1358 (S.D. Fla. Mar. 22, 2004)..........................................................4, 5

10 Carnegie-Mellon Univ. v. Cohill 11 484 U.S. 343 (1988) .......................................................................................................24

12 Caruso v. Blockbuster-Sony Music Entertainment Centre 13 968 F.Supp. 210 (D.N.J. 1997).................................................................................16, 18

14 Clark v. City of Lakewood 15 259 F.3d 996 (9th Cir. 2001) ............................................................................................4

16 Doe v. National Board of Medical Examiners 17 199 F.3d 146 (3d Cir. 1999); ..........................................................................................16

18 Fischer v. SJB-P.D. Inc. 19 214 F.3d 1115 (9th Cir. 2000) ..........................................................................................6

20 Gathright-Dietrich v. Atlanta Landmarks, Inc. 21 435 F.Supp.2d 1217 (N.D.Ga., 2005) ............................................................................15

22 Grove v. De La Cruz 407 F. Supp. 2d 1126 (C.D. Cal. Oct. 31, 2005)..........................................................4, 5
23

24 Hickman v. State of Missouri
144 F.3d 1141 (8th Cir. 1998) ..........................................................................................5
25

26 Independent Living Resources v. Oregon Arena Corp. 982 F.Supp. 698 (D. Or. 1997).......................................................................5, 14, 16, 17
27

28

Lewis v. Continental Bank Corp. 494 U.S. 472 (1990) .........................................................................................................6

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1 Lonberg v. Sanborn Theatres, Inc. (1999 WL 33993012, *2 (C.D.Cal., 1999).....................................................................14

2

3

Long v. Coast Resorts, Inc., 32 F.Supp.2d 1203 (D.Nev. 1998) .................................................................................14

4
Martinez v. Longs Drug Stores, Inc., 5 No. CIVS-03-1843DFL CMK, 2005 WL 2072013 *3-4 (E.D.Cal. Aug. 25, 2005) .......2

6
Mass. v. E*Trade Access, Inc. 7 WL 2511059 (D. Mass. 2005)........................................................................................18

8
Medical Society of New Jersey v. Herr 9 191 F. Supp. 2d 574 (D.N.J. Mar. 21, 2002)....................................................................4

10 Ostendorf v. Dawson County Corrections Bd. 11 No. 4:98CV3038, 2002 WL 31085085, at *6 (D. Neb. Sept. 18, 2002)..........................6

12 Paralyzed Veterans Inc. v. Ellerbe Becket Architects & Engineers 13 950 F.Supp. 393 (D.D.C. 1996)......................................................................................15

14 Parr v. L & L Drive-Inn Rest. 15 96 F. Supp.2d 1065 (D. Haw. 2000).................................................................................5

16 Patel v. Penman, 17 103 F.3d 868 (9th Cir. 1996) ...........................................................................................23

18 Pickern v. Best Western Timber Cove Lodge Marina Resort 19 194 F.Supp.2d 1128 (E.D. Cal. Apr. 1, 2002)..................................................................5

20 Renne v. Geary 21 501 U.S. 312 (1991) .........................................................................................................4

22 Security Pac. Nat'l Bank v. Resolution Trust Corp. 63 F.3d 900 (9th Cir. 1995) ............................................................................................16
23

24 Troiano v. Supervisor of Elections in Palm Beach County 382 F.3d 1276 (11th Cir. 2004).............................................................................................4
25

26 U.S. v. National Amusements 180 F. Supp.2d 251 (D. Mass 2001)...............................................................................17
27

28

Utah Animal Rights Coalition v. Salt Lake City Corp. 371 F.3d 1248 (10th Cir. 2004) ........................................................................................6

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1 West v. Secretary of Dept. of Transp. 206 F.3d 920 (9th Cir. 2000) ............................................................................................4
2 State Cases
3
Bringle v. Board of Supervisors 4 54 Cal. 2d 86 (1960) .......................................................................................................20
5
Cf. Sutherland v. City of Fort Bragg 6 86 Cal. App. 4th 13 (Cal. Ct. App. 2000).......................................................................21
7
Fox v. County of Fresno 8 170 Cal. App. 3d 1238 (Cal. Ct. App. 1985)..................................................................21
9 Haggis v. City of Los Angeles 10 22 Cal. 4th 490 (2000)....................................................................................................21
11 Inland Empire Health Plan v. Superior Court 12 108 Cal. App. 4th 588 (Cal. Ct. App. 2003)...................................................................21
13 Thompson v. City of Lake Elsinore 14 18 Cal.App.4th 49 (Cal. Ct. App. 1993).........................................................................20
15 Federal Statutes
16 28 U.S.C. § 1367(c) ...........................................................................................................23 17 28 U.S.C. § 1367(c)(3).................................................................................................23, 24
42 U.S.C. § 12188(a)(1).......................................................................................................6 18 42 U.S.C. §§ 12100..............................................................................................................1 19 ADAAG § 4.13.9 .............................................................................................................7, 8
ADAAG § 4.3.11 (2)(b)...................................................................................................7, 8 20 ADAAG § 4.6.3 ...................................................................................................................7 21 Uniform Building Code § 307(a) & (c) (1985) .................................................................20 22 State Statutes
23 Cal. Code of Regs., Title 24, § 101.17.11.4.3....................................................................20 Cal. Title 24 § 1115B.2.1.2.1...............................................................................................8
24 Cal. Title 24 § 1115B.7.1.4..............................................................................................7, 8 25 Cal. Title 24 § 1127B.3........................................................................................................7
26 Federal Rules

27 FRCP 26(a)(2)......................................................................................................................3
28

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1 State Regulations

2 Cal. Bldg. Code § 2-105(b)(6) & (11)(C)(3) (1981) .........................................................20

3

Cal. Health & Safety Code § 19956 ..................................................................................19 Cal. Health & Safety Code § 19958 ..................................................................................19

4 California Health & Safety Code § 114080.......................................................................23

5
Other Authorities
6
7 H. Rep. No. 101-485(II) at 104, Reprinted in 1990 U.S. Code. Cong. & Admin. News 387 ...........................................16
8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 28

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1

I.

2

INTRODUCTION

3

This is an ADA Title III lawsuit1 and, as far as ADA claims go, Plaintiff Maurizio

4 Antoninetti’s (“Plaintiff”) lawsuit is relatively typical to dozens, if not thousands, of

5 other ADA lawsuits filed against countless businesses. This lawsuit alleges many of the

6 same boilerplate, hyper-technical violations of the Americans With Disabilities Act

7 Accessibility Guidelines (“ADAAG”) or Title 24. In fact, none of the alleged barriers

8 ever deterred Plaintiff from visiting the restaurants. Ironically, despite all of the claimed

9 lack of access, inconveniences and humiliation, Plaintiff ate dinner with his entire family 10 at the San Diego restaurant on the weekend prior to his deposition. (SUF # 20.)2

11 Plaintiff has also admitted placing his order by using the menu board. (SUF #21.)

12 Moreover, Plaintiff’s requested modification of Chipotle’s food preparation counter lacks

13 any support under controlling ADA regulations.

14

Plaintiff’s claims satisfy neither the letter nor the spirit of the ADA. The ADA

15 requires facilities to provide disabled individuals equal enjoyment of goods and services,

16 to maintain a facility that is accessible to and usable by individuals with disabilities, and

17 not to discriminate against individuals based on their disability. The point of the ADA is

18 to protect the disabled from actual denial of access, actual deterrence, and actual

19 discrimination. But that simply has not happened here. What the ADA could not

20 possibly have been intended to do is to provide financial windfalls – to Plaintiff and

21 Plaintiff’s counsel – whenever there exists a technical deviation from a construction

22 standard that injured no one and deterred no one, let alone the Plaintiff himself. Yet that

23 is precisely what Plaintiff seeks.

24

Fortunately, case law prohibits this illegitimate strategy. Under both the ADA and

25

26 1

The Americans With Disabilities Act, 42 U.S.C. §§ 12100 et seq. (the “ADA”) consists of three

27

subchapters pertaining to employment, public services and public accommodations. Subchapter III, commonly referred to as “Title III,” pertains to disabled access to public accommodations operated by

28 private entities.

2

“SUF” refers to Chipotle’s Statement of Undisputed Facts, filed concurrently herewith.

1

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1 related California statutes, plaintiffs cannot challenge barriers to access that they never

2 actually encountered, were not personally aware of prior to filing suit, and that are

3 unrelated to their particular disability. Martinez v. Longs Drug Stores, Inc., No. CIVS-

4 03-1843DFL CMK, 2005 WL 2072013 *3-4 (E.D.Cal. Aug. 25, 2005).

5

Fundamentally, Plaintiff cannot continue to sue under the ADA for alleged

6 problems that have already been remedied by Chipotle. As to each and every one of the

7 items that Plaintiff identified, Chipotle has addressed it and either determined that the

8 item was already in compliance, or accomplished a fix. The alleged architectural barriers

9 do not exist at the restaurants. Plaintiff’s ADA claim must therefore be dismissed as

10 moot, and because he lacks standing.

11

If this Court dismisses the ADA claim, there will no longer be any pending

12 question of federal law; nor is there diversity of parties. Consequently, the Court may –

13 and should – decline to exercise supplemental jurisdiction and dismiss Plaintiff’s state 14 law claims without prejudice.3 For all these reasons, Chipotle is entitled to summary

15 judgment as to each of Plaintiff’s claims.

16

II.

17

FACTUAL BACKGROUND

18

Plaintiff, a disabled individual, argues that he was denied access to two Chipotle

19 restaurants because of his disability. (SUF # 1.) Specifically, Plaintiff claims that on 20 February 15th and 22nd of 2005, he visited the Chipotle restaurants located at 268 N. El

21 Camino Real in Encinitas (individually, the “Encinitas restaurant”) and 1504 Garnet

22 Avenue in San Diego (individually, the “San Diego restaurant”) (collectively, the

23 “restaurants”) and encountered various structural barriers at the entrance to the

24 restaurants, the restaurants’ parking lots and restrooms. (SUF # 2.) Plaintiff further

25 claims that the alleged barriers denied him access to the food serving and viewing

26 counters as “people in wheelchairs have no opportunity to view the foods available for

27 3

In the alternative, Chipotle moves for Summary Adjudication as to specific items of injunctive

28 relief requested by Plaintiff that are now moot or for which Plaintiff lacks standing to pursue.

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1 selection.” (SUF # 3.) .) More specifically, Plaintiff complains that, because of an

2 obstruction, he was “unable to choose exactly what he wanted from the Chipotle food

3 selection” and that he “could not see the food preparer make his food.” (SUF # 4.) He

4 seeks, in addition to injunctive relief, substantial compensatory damages, as well as his

5 attorney’s fees and costs. (SUF # 5.)

6

The claimed violations include technical violations ranging from “barriers in the

7 bathrooms, parking lot, dining tables and path of travel.” (SUF # 6.) These technical

8 violations were generally referenced in the Complaint but more specifically articulated

9 by an ADA consultant hired by Plaintiff in a FRCP 26(a)(2) disclosure. Chipotle

10 completed all repairs by October 5, 2006. (SUF # 7.) In support of this purported sight-

11 line obligation, Plaintiff’s consultant points only to a state building code regulation

12 requiring that a restaurant have a 28-34-inch high transaction counter.

13

Chipotle’s expert witness, Mr. Kim Blackseth, finds the analysis of Plaintiff’s

14 expert fundamentally flawed. (See Declaration of Kim Blackseth, filed concurrently

15 herewith.) Mr. Blackseth is a licensed architect, a 2006 appointee of Governor

16 Schwarzenegger to the California Building Standards Commission (responsible for

17 requirements and modifications to the CBC, including its disabled access provisions) and

18 is perhaps the most respected ADA expert in the State of California. See id. Mr.

19 Blackseth appropriately points out that the Chipotle food preparation area is fully

20 compliant with all ADA regulations and that the Chipotle restaurants possess the required

21 transaction counter. See id.

22

Finally, Chipotle, as discussed infra, has closely examined the restaurants, and has

23 modified them to comply with the ADAAG, including adoption and implementation of

24 an effective nationwide Customers With Disabilities Policy. As a result, Plaintiff’s

25 demands for injunctive relief under the ADA are moot.

26

27 28

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1

III.

2

ARGUMENT

3 A. Summary Judgment Should be Granted as to Plaintiff’s ADA Claim Because

4

the Court Lacks Subject Matter Jurisdiction.

5

A case is moot “when the issues presented are no longer ‘live’ or the parties lack a

6 legally cognizable interest in the outcome.” Clark v. City of Lakewood, 259 F.3d 996,

7 1011 (9th Cir. 2001). “Past exposure to illegal conduct does not in itself show a present

8 case or controversy . . . if unaccompanied by any continuing, present adverse effects.”

9 Renne v. Geary, 501 U.S. 312, 320-21 (1991) (citation omitted). “This requisite ensures

10 that the courts are able to grant effective relief, rather than rendering advisory opinions.”

11 Medical Society of New Jersey v. Herr, 191 F. Supp. 2d 574, 581 (D.N.J. Mar. 21, 2002).

12 “The question is whether there can be any effective relief.” West v. Secretary of Dept. of

13 Transp., 206 F.3d 920, 925 (9th Cir. 2000); Brother v. CPL Invts., Inc., 317 F. Supp. 2d

14 1358, 1372 (S.D. Fla. Mar. 22, 2004) (Martinez, J.) (“An issue is moot when actions

15 subsequent to the commencement of a lawsuit create an environment in which the Court

16 can no longer give meaningful relief.”). “[P]art or all of a case may become moot if (1)

17 ‘subsequent events [have] made it absolutely clear that the allegedly wrongful behavior

18 [cannot] reasonably be expected to recur,’ and (2) ‘interim relief or events have

19 completely and irrevocably eradicated the effects of the alleged violation.’” Grove v. De

20 La Cruz, 407 F. Supp. 2d 1126, 1130 (C.D. Cal. Oct. 31, 2005) (Snyder, J.) (citations

21 omitted) (emphasis added).

22

Mootness is a jurisdictional defect that can be raised at any time by the parties or

23 the court sua sponte. Barilla v. Ervin, 886 F.2d 1514, 1519 (9th Cir. 1989) (“this court

24 cannot be divested of its obligation to consider the issue of mootness on the grounds that

25 the timing or manner in which a party has raised the issue is somehow procedurally

26 improper”). Generally, a defendant’s remedial efforts will render a plaintiff’s ADA

27 claim for injunctive relief moot. See, e.g., Troiano v. Supervisor of Elections in Palm 28 Beach County, 382 F.3d 1276, 1286 (11th Cir. 2004) (holding that a defendant County’s

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1 subsequent voluntary installation of audio devices in all voting precincts rendered the

2 ADA class action by visually-impaired registered voters moot); Grove v. De La Cruz,

3 407 F.Supp.2d 1126, 1131 (C.D. Cal. Oct. 31, 2005) (Snyder, J.) (holding that the

4 plaintiff’s ADA claim to install grab bars in the women’s restroom was moot); Brother v.

5 CPL Invts., Inc., 317 F. Supp. 2d 1358, 1372 (S.D. Fla. Mar. 22, 2004) (Martinez, J.)

6 (holding that a hotel’s modifications made after it was notified of alleged barriers via the

7 ADA lawsuit rendered the claims moot); Pickern v. Best Western Timber Cove Lodge

8 Marina Resort, 194 F.Supp.2d 1128, 1130 (E.D. Cal. Apr. 1, 2002) (Shubb, J.) (“Plaintiff

9 concedes, as she must, that defendants’ latest remedial efforts have rendered her ADA

10 claim for injunctive relief moot.”); Parr v. L & L Drive-Inn Rest., 96 F. Supp.2d 1065,

11 1087 (D. Haw. 2000) (dismissing plaintiff’s ADA claims predicated on alleged violations

12 that had been corrected as moot); Independent Living Resources v. Oregon Arena Corp.,

13 982 F.Supp. 698, 771 (D. Or. 1997) (“If plaintiffs already have received everything to

14 which they would be entitled, i.e., the challenged conditions have been remedied, then

15 these particular claims are moot absent any basis for concluding that these plaintiffs will

16 again be subjected to the same alleged wrongful conduct by this defendant.”).

17

In Hickman v. State of Missouri, 144 F.3d 1141 (8th Cir. 1998), the Eighth Circuit

18 held that an ADA action brought by state prison inmates against state and various

19 governmental entities was moot notwithstanding the voluntary cessation of illegal

20 conduct doctrine. The Eighth Circuit noted that the “defendants’ compliance with the

21 ADA, including structural changes such as installation of ramps, pull and grab bars, and

22 chair lifts, is far ‘more than a mere voluntary cessation of alleged illegal conduct, where

23 we would leave [t]he defendant[s] . . . free to return to [their] old ways.’” Id. at 1144

24 (emphasis added). The Eighth Circuit also held that in federal courts, there is no public

25 interest exception to mootness. Id. (“’[A]lthough state law may save [a] case from

26 mootness based on public interest, federal courts require litigants’ rights be affected.’”)

27 (citation omitted).

28

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1

“Monetary relief is not an option for private individuals under Title III of the

2 ADA.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1120 (9th Cir. 2000). “As a result, a

3 plaintiff who files an ADA claim can at most hope to improve access through an

4 injunction.” Id.; 42 U.S.C. § 12188(a)(1). In addition, the prospect of attorneys fees does

5 not affect whether the underlying claim is justiciable. Utah Animal Rights Coalition v.

6 Salt Lake City Corp., 371 F.3d 1248, 1269 (10th Cir. 2004). As the Supreme Court

7 has stated, the “interest in attorney’s fees is, of course, insufficient to create an Article III

8 case or controversy where none exists on the merits of the underlying claim.” Lewis v.

9 Continental Bank Corp., 494 U.S. 472, 480 (1990). “A claim for equitable relief is moot

10 ‘absent a showing of irreparable injury, a requirement that cannot be met where there is

11 no showing of any real or immediate threat that the plaintiff will be wronged again.”

12 Ostendorf v. Dawson County Corrections Bd., No. 4:98CV3038, 2002 WL 31085085, at

13 *6 (D. Neb. Sept. 18, 2002) (citation omitted).

14

1. The Injunctive Relief Requested by Plaintiff is Either Not Required or Has

15

Already Been Accomplished.

16

The injunctive relief as to particular alleged barriers that Plaintiff seeks under the

17 ADA cannot be granted because every “barrier” item either was already in compliance

18 with the ADAAG, or Chipotle has modified the item to be in compliance. Consequently,

19 Plaintiff’s ADA claim is moot.

20

As demonstrated below, Chipotle’s remedial efforts have rendered Plaintiff’s ADA

21 claim for injunctive relief moot.4 The Declaration of Scott Shippey filed concurrently

22 herewith, provides direct and uncontroverted testimony regarding the current condition of

23 the restaurants. Likewise, the Declaration of Ron Sedillo, also filed concurrently

24 herewith, provides undisputed testimony regarding Chipotle’s effective “Customers With

25 Disabilities” policy. As such, there is no further remedy under the ADA that this Court

26 can provide.

27
4
28

Plaintiff is free to pursue his state law claims via a state court action.

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1

The results of Chipotle’s investigation and remediation efforts as to each item,

2 respectively, are as follows:5

3
A. The San Diego Restaurant

4

5

1. Parking Lot and Driveway Items

6

a) The curb ramp at the disabled-accessible parking space does not

interfere with the access aisle. (ADAAG § 4.6.3) (SUF # 8.)
7

8

b) The tow away signs already had the proper phone number to contact

on them (Cal. Title 24 § 1129B.5) (SUF # 9);
9

10

2. Entrance

11

a) ISA signage is posted at all entrances to the restaurant. (Cal. Title 24

12

§ 1127B.3 and ADAAG § 4.1.3(16)(b).) (SUF # 10.)

13

3. Men’s Restroom

14

15

a) Door pressure does not exceed 5 lbf. (ADAAG § 4.3.11 (2)(b).) (SUF # 11.)

16

17

b) The accessible stall has an automatic-closing device in the men’s restroom (Cal. Title 24 § 1115B.7.1.4) (SUF # 12.)

18

19

c) A loop/U-shaped handle was installed on the designated accessible

stall door (Cal. Title 24 § 1115B.7.1.4 and ADAAG § 4.13.9) (SUF # 13.)

20

21

B. The Encinitas Restaurant

22

1. Parking Lot and Driveway Items

23

a) The curb ramp at the disabled-accessible parking space does not

24

interfere with the access aisle. (ADAAG § 4.6.3) (SUF # 14); and

25

26

5
27

Although this memorandum will sometimes cite to California Title 24 regulations hereinafter, it

does this only to demonstrate its good faith in attempting to comply in every aspect. For the purposes of

28 this motion to dismiss the federal ADA claims, only compliance with the ADAAG need be shown.

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1

b) The tow away signs already had the proper phone number to contact

on them (Cal. Title 24 § 1129B.5) (SUF # 15.).

2

3

2. Men’s Restroom

4

a) Door pressure does not exceed 5 lbf. (ADAAG § 4.3.11 (2)(b)) (SUF

5

# 16.);

6

b) The accessible stall has an automatic-closing device in the men’s

7

restroom (Cal. Title 24 § 1115B.7.1.4) (SUF # 17.);

8

c) A loop/U-shaped handle was installed on the designated accessible

9

stall door (Cal. Title 24 § 1115B.7.1.4 and ADAAG § 4.13.9) (SUF # 18.);

and

10

11

d) The center of the lavatory is 18 inches from the nearest side wall (Cal.

Title 24 § 1115B.2.1.2.1) (SUF # 19.).

12
Here, Chipotle has taken significant steps to ensure that Plaintiff will not suffer

13
any future alleged disability discrimination at the restaurants. As such, Plaintiff’s request

14
for injunctive relief has been satisfied and there is no cognizable danger of Chipotle

15
violating any of the alleged ADA violations in the future. Correspondingly, all of

16
Plaintiff’s demands for injunctive relief, as stated above, have been satisfied and rendered

17
nugatory, and, therefore, should be dismissed as moot. See, e.g., Parr, 96 F.Supp.2d at

18
1087 (remediated architectural barriers mooted plaintiff’s claims); Pickern, 194

19
F.Supp.2d at 1130 (removal of architectural barriers renders ADA claim moot.) Unless

20
Plaintiff can come forward with admissible evidence creating a reasonable expectation

21
that Chipotle’s expressed intent is disingenuous and that its purported actions are always

22
so short as to evade review, Plaintiff’s ADA claim must be dismissed. Brewer v.

23
Wisconsin Bd. of Bar Examiners, 2007 WL 527484, at *4-*5 (E.D. Wis. Feb. 14, 2007)

24
(“It is no secret that defendants are interested in ending this litigation, but neither the

25
timing of defendants’ offer nor the fact that it might work a benefit in their favor (i.e.,

26
result in dismissal of this case) suggests the offer itself is disingenuous.”).

27

28

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1

2. Chipotle’s Food Preparation Area and Transaction Station Fully Comply

2

with Pertinent Accessibility Regulations.

3

Plaintiff complains that, because of an obstruction -- namely, a 44 inch high

4 counter -- he was “unable to choose exactly what he wanted from the Chipotle food

5 selection” and that he “could not see the food preparer make his food.” In support of his

6 position, Plaintiff’s expert, Mr. Steven Schraibman, points to Section 5 of the ADAAG

7 which refers to “restaurants and cafeterias.” Specifically, Section 5.1 (General) provides:

8
Except as specified or modified in this section, restaurants and cafeterias

9

shall comply with the requirements of 4.1 to 4.35. Where fixed tables (or

10

dining counters where food is consumed but there is no service) are

provided, at least 5 percent, but not less than one, of the fixed tables (or a

11

portion of the dining counter) shall be accessible and shall comply with 4.32

12

as required in 4.1.3(18). In establishments where separate areas are

designated for smoking and non-smoking patrons, the required number of

13

accessible fixed tables (or counters) shall be proportionally distributed

14

between the smoking and non-smoking areas. In new construction, and

where practicable in alterations, accessible fixed tables (or counters) shall be

15

distributed throughout the space or facility. (Emphasis added.)

16 Likewise, Section 5.2 (Counters and Bars) provides:

17
Where food or drink is served at counters exceeding 34 in (865 mm) in

18

height for consumption by customers seated on stools or standing at the

19

counter, a portion of the main counter which is 60 in (1525 mm) in length

minimum shall be provided in compliance with 4.32 or service shall be

20

available at accessible tables within the same area.

21

Plaintiff’s position is incorrect. The counters referred to in sections 5.1 and 5.2

22 clearly are counters “where food is consumed” (i.e., bar and dining counters, not

23 transaction counters). No food or drink is consumed by customers at the counter in

24 question. (SUF # 22 & # 23.) On the contrary, Chipotle’s food preparation area is fully 25 compliant with all ADA regulations and CBC sections insofar as a retail establishment 26 such as Chipotle is only required to have a portion of the transaction counter (e.g., where

27 sales are made) that is 34 inches high by 36 inches long. (SUF # 24.)

28

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1

Moreover, Chipotle’s food preparation area is a sales or service counter (SUF #26.)

2 and the applicable federal ADA requirements are found in Section 7.2 (Sales and Service

3 Counters, Teller Windows, Information Counters) as follows:

4
(1) In department stores and miscellaneous retail stores where counters

5

have cash registers and are provided for sales or distribution of goods or

6

services to the public, at least one of each type shall have a portion of the

counter which is at least 36 in (915 mm) in length with a maximum height of

7

36 in (915 mm) above the finish floor. It shall be on an accessible route

8

complying with 4.3. The accessible counters must be dispersed throughout

the building or facility. In alterations where it is technically infeasible to

9

provide an accessible counter, an auxiliary counter meeting these

10

requirements may be provided.

11

(2) At ticketing counters, teller stations in a bank, registration counters in

12

hotels and motels, box office ticket counters, and other counters that may

not have a cash register but at which goods or services are sold or

13

distributed, either:

14

(i) a portion of the main counter which is a minimum of 36 in (915 mm)

15

in length shall be provided with a maximum height of 36 in (915 mm); or

16

(ii) an auxiliary counter with a maximum height of 36 in (915 mm) in

17

close proximity to the main counter shall be provided; or

18

(iii) equivalent facilitation shall be provided (e.g., at a hotel registration

19

counter, equivalent facilitation might consist of: (1) provision of a folding

20

shelf attached to the main counter on which an individual with disabilities

can write, and (2) use of the space on the side of the counter or at the

21

concierge desk, for handing materials back and forth).

22

All accessible sales and service counters shall be on an accessible route

23

complying with 4.3.

24 Similarly, CBC 1122B.4 (Height of Work Surfaces) provides as follows:

25

The tops of tables and counters shall be 28 inches to 34 inches (711 mm to

26

864 mm) from the floor or ground. Where a single counter contains more

27

than one transaction station, such as (but not limited to) a bank counter with

multiple teller windows or a retail sales counter with multiple cash register

28

stations at least 5 percent, but never less than one, of each type of station

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1

shall be located at a section of a counter that is at least 36 inches (914 mm)

long and no more than 28 to 34 inches (711 to 864 mm) high.

2

This “work surface” requirement demands the presence of certain table-like

3 surfaces at heights low enough to be utilized by individuals in wheelchairs. The only

4 “work surface” that is required here is that to enable the receipt of food items and the

5 payment of money: the “transaction station.” (SUF # 25.)

6

CBC Section 1122B.4 pertains to and specifically notes the required existence of

7 work services or transaction counters. (SUF #27.) Mr. Schraibman concedes that the

8 Chipotle restaurants possess a compliant transaction station. (SUF # 28.) This

9 “transaction station” requirement mirrors the Federal ADAAG regulations. ADAAG

10 Section 7.2 requires that retail establishments possess counters with “a portion of the

11 counter which is at least 36 in (915 mm) in length with a maximum height of 36 in (915

12 mm) above the finish floor.” (SUF # 29.)

13

Second, Plaintiff alleges that the counter is non-compliant because a seated

14 wheelchair user cannot view the food and “select” their order. In support of Plaintiff’s

15 and Mr. Schraibman’s position that there is a requirement for a “food viewing counter,”

16 Mr. Schraibman cites only to an inapplicable California building code provision as

17 support for Plaintiff’s unique sight-line claim. In particular, Mr. Schraibman suggests

18 that CBC Section 1122B.4 applies to Chipotle’s food preparation area and constitutes a

19 sight-line requirement. This argument fails for a number of reasons.

20

First, Plaintiff conveniently ignores the fact that food is selected verbally by

21 referencing the large menu hung above the counter, not by pointing at food behind a

22 sneeze guard. Nobody is required to see the condiments and components to place an

23 order. (SUF # 30 & # 31.) Second, sight-line requirements, when they exist, are

24 addressed very directly by the ADA regulations. (SUF # 31.) See, for example,

25 ADAAG Section 4.33.3, the regulation pertaining to “Assembly Areas/Placement of

26 Wheelchair Locations” and creating a “sight-line” requirement. As one would expect,

27 sight-line requirements exist for appropriate industries, namely, theatre venues. (SUF

28

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1 # 32.) Plaintiff may not, therefore, impose such a theatre-specific requirement on a

2 restaurant such as Chipotle.

3

3. Chipotle Possesses a Policy to Accommodate its Customers with Disabilities

4

and to Deliver Excellent Customer Service.

5

On February 23, 2007, as part of Chipotle’s longstanding and ongoing efforts to

6 ensure that all of its customers receive excellent customer service, Chipotle implemented

7 a nationwide “Customers With Disabilities” policy that sets forth in writing that which

8 Chipotle has always done informally, i.e., provide excellent customer service to all of its

9 customers, including customers with disabilities (the “Policy”). (SUF # 33.)

10

Chipotle’s Customers With Disabilities policy provides:

11
Excellent customer service is of paramount importance at every Chipotle

12

restaurant at all times. A customer with a disability (for example, a visual

13

or mobility impairment) may benefit from some alternative means of

presenting or describing our food. In all such cases the restaurant staff will

14

offer a suitable accommodation based on the individual circumstances, and

15

will be responsive to the customer’s requests. Depending on the

circumstances, our crew member or manager may ask the customer if we

16

can accommodate them during their visit. Examples of some of the ways we

17

accommodate individuals include:

18

1. Samples of the food can be placed in soufflé cups and shown or

19

handed to the customer.

20

2. Some customers may prefer an opportunity to see or even sample the

21

food at a table.

22

3. Customers may simply wish to have the food or food preparation

23

process described to them.

24

4. Or combinations of the above accommodations with any other

25

reasonable accommodation requested or appropriate for the individual.

26

The point of good customer service is that it has to be personalized. It is the

27

manager and crew’s responsibility to ensure that the experience a customer

with a disability has is excellent.
28

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1

Considerations of throughput, productivity or efficiency are secondary to

ensuring a positive experience for disabled customers. Crew members are

2

encouraged to inform their Restaurant Manager regarding the experiences of

3

their disabled customers and such experiences will be considered during the

performance review process, both for the crew member and the manager.

4

5

The above example details a scenario involving only a visual or mobility

impaired customer. Other disabilities may exist among our customers and it

6

is our policy at Chipotle to make good faith, reasonable accommodations for

7

all of our disabled customers. This practice is consistent with our goal of

providing excellent customer service to all of our customers.

8
Chipotle disseminated the Policy via high priority email to its Regional Directors,

9
Human Resources Training Directors, and Operations Directors and began formally

10
training its employees on the Policy between March and May 2007. (SUF # 34.) The

11
Policy training efforts involve the Director of Training and Development going out to the

12
field and working in conjunction with Chipotle’s Human Resource Generalists and

13
Human Resource Training Directors to train Chipotle’s Operations Directors, Area

14
Managers, and Managers, who will in turn train their respective crews. (SUF #35.)

15
Additionally, this policy is incorporated into Chipotle’s “The Know” policy as an

16
addendum and has been added as a new section: "5.5 Customers With Disabilities."

17
(SUF # 36.)

18
As evidence of the success and effectiveness of the Policy, Chipotle received an

19
email from a customer who visited Chipotle’s River Oaks restaurant in Houston, Texas

20
on March 13, 2007. (SUF # 37.) Chipotle received this email in the ordinary course of

21
business via the “SPEAK” section of Chipotle’s website, which is reachable directly at

22
www.chipotle.com/speak. (SUF # 38.) The customer comment stated:

23

24

I frequently visit the location in the River Oaks area, it is close to my work.

On my recent visit, I saw something that stirred my curiousity [sic]... there

25

was a blind gentleman infront [sic] of me in line with a lady. I was

26

extremely curious to how the food was going to be presented to him. The

manager, it was obviously the manager with the polo red shirt, noticed the

27

seeing eye dog and the dark shades on the gentlemen so he made his way to

28

the tortila [sic] machine. The manager greeted the gentlemen with a warm

13
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1

"hello" and asked him for his order. As he was heating the tortilla, he asked

him if he had been there before, it was obvious that the answer was no. The

2

manager started by explaining to the gentlemen "the heat you are feeling is

3

from the tortilla press", "you now have your choice of two beans, pento [sic]

or black", he further explained the choice of meats. The manager did not

4

pass the burrito down to the other lady on the line, he politely signaled her to

5

take care of the next customer. He explained to the customer the different

choices of "fixins"... not once did he make the customer feel out of place or

6

uncomfortable, he was very curteous [sic] and his explanations of the food

7

to me sounded more accurate than what my eyes were telling me.

When it was my turn to pay, I complimented him on his excellent service, he

8

very politely nodded and said thank you. I grabbed several of Aiyad's

9

business cards that I will be passing to everyone at my place of employment.

Thank you Chipotle for being so curteous [sic] to EVERYONE.

10

Given that the restaurants have a policy regarding accommodating customers with

11
disabilities, including one that resolves Plaintiff’s complaint that “people in wheelchairs

12
have no opportunity to view the foods available for selection,” Plaintiff’s demand for

13
injunctive relief on these claims has been satisfied and rendered nugatory, and, therefore,

14
should be dismissed as moot. Case law supports this proposition.

15
For instance, in Lonberg v. Sanborn Theatres, Inc. (1999 WL 33993012, *2

16
(C.D.Cal., 1999)), Judge Matz in the Central District held that “plaintiffs’ desire to have

17
the wheelchair accessible portion of the concession counter staffed separately from the

18
rest of the counter has no support in the law.” Judge Matz went onto grant summary

19
judgment for the defendants, finding that the evidence showed that defendants’

20
challenged practices and policies were sufficient to meet its obligations under the ADA.

21
(Citing Long v. Coast Resorts, Inc., 32 F.Supp.2d 1203, 121 (D.Nev. 1998) (alterations

22
not required where defendant had “substantially compl[ied] with the spirit of the law”);

23
Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 716 (D.Ore.

24
1997) (concluding that arena is in compliance with wheelchair number and dispersal

25
requirement so long as “deviation from absolute proportionality does not exceed ten

26
percent”); Paralyzed Veterans Inc. v. Ellerbe Becket Architects & Engineers, 950 F.Supp.

27

28

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1 393 (D.D.C. 1996) (requiring defendants to provide wheelchair seating which

2 “substantially complies” with ADA requirements).

3

In Gathright-Dietrich v. Atlanta Landmarks, Inc., 435 F.Supp.2d 1217 (N.D.Ga.,

4 2005) wheelchair bound theater patrons sued a historic theater alleging violations of Title

5 III of the ADA. The theater moved for summary judgment. The District Court granted

6 the motion and held that the disabled patrons failed to establish that their proposed

7 solutions to alleged violations were readily achievable and that the theater complied with

8 Title III of ADA:

9
Plaintiffs’ claim of access to concession facilities centers on complaints that

10

the facilities made available to wheelchair patrons are not comparable to the

11

concessions available to other patrons. Plaintiffs appear to argue that this

existing facility is required to provide access to wheelchair patrons at the

12

same locations, under the same circumstances and with the same selection of

13

items, as those available to other patrons. They, again, rely on strict

compliance with the Standards. The Court finds, using the Standards as a

14

guide, that the undisputed facts show that wheelchair-accessible concession

15

areas are available and that what is available does not constitute a barrier to

access. The Court finds that The Fox concession areas are accessible to

16

wheelchair patrons and The Fox provides persons to assist wheelchair

17

patrons to purchase concession items. Id. at 1233.

18

Similarly, in Association for Disabled Americans v. City of Orlando (153

19 F.Supp.2d 1310 (M.D.Fla., 2001)), disabled plaintiffs maintained that they could not use

20 the concession counters when seated in their wheelchairs because the counters were too

21 tall. In response, defendant contended that the counters were part of the “structural

22 design” of the Arena because the return air ducts were located underneath the counters.

23 Defendant also asserted that ushers were instructed to assist disabled patrons in obtaining

24 concessions. The court conducted a bench trial and found that the concession stands

25 were accessible to and usable by individuals with disabilities.

26

Chipotle, like the defendants in the cases detailed above, has an effective policy to

27 accommodate disabled customers and to provide them with excellent customer service

28 and a dining experience comparable to that of able-bodied customers -- Chipotle’s own

15
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1 customer testimonials prove this point. Accordingly, summary judgment should be

2 entered on behalf of Chipotle and Plaintiff’s action should be dismissed.

3 B. Plaintiff Cannot Rely On The General Anti-Discrimination Provisions Of The

4

ADA To Require Chipotle To Re-Design The Restaurants.

5

Chipotle expects that Plaintiff will ask this Court to ignore the ADAAG and find

6 that the general anti-discrimination requirements of the ADA mandate that this Court

7 order Chipotle to re-design the restaurants and lower its transaction and sales counter at

8 the restaurants.

9

Although Section 302 of the ADA (42 U.S.C. § 12182) broadly precludes

10 discrimination against the disabled, Congress defined discrimination with reference to

11 regulations which it explicitly required the Department of Justice (“DOJ”) to promulgate.

12 See Caruso v. Blockbuster-Sony Music Entertainment Centre, 968 F.Supp. 210, 217

13 (D.N.J. 1997) (“Congress did not intend for the ADA to be enforceable except through

14 the adoption of a detailed regulatory framework”), aff’d., 193 F.3d 730 (3rd Cir 1999);

15 Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 707 (D.Or.

16 1997) (“[i]n drafting Title III of the ADA, Congress painted with a broad brush and then

17 directed the Attorney General to promulgate regulations to implement the law”). The

18 legislative history of the ADA further explains that “the specific provisions, including the

19 limitations in those provisions, control over the general provisions.” H. Rep. No. 101-

20 485(II) at 104, reprinted in 1990 U.S. CODE. CONG. & ADMIN. NEWS 387. Allowing

21 Plaintiff to create new requirements not found in the specific regulations would offend

22 not only the clear intent of Congress, but would contravene fundamental principles of

23 statutory construction. It is well established that the specific governs the general, and

24 that however inclusive may be the general language of a statute, it will not be held to

25 apply to a matter specifically dealt with in another part of the same enactment. See Doe v.

26 National Board of Medical Examiners, 199 F.3d 146, 155 (3d Cir. 1999); Security Pac.

27 Nat'l Bank v. Resolution Trust Corp., 63 F.3d 900, 904 (9th Cir. 1995).

28

16
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1

Congress, through ADA Section 504, has created a complex regulatory scheme for

2 the enforcement of the general directives contained in ADA Title III. National

3 Amusements, 180 F.Supp.2d at 257 and Independent Living Resources, 982 F.Supp. at

4 746. Second, Congress, through ADA section 306(d), provided a default set of standards

5 that applied prior to the passage of the now-controlling regulations. National

6 Amusements, 180 F.Supp.2d at 258 and Independent Living Resources, 982 F.Supp. at

7 746. Third, Congress, through ADA Section 303(a), provides that new construction must

8 be accessible “in accordance with … regulations issued under this subchapter.” National

9 Amusements, 180 F.Supp.2d at 258 and Independent Living Resources, 982 F.Supp. at

10 746. The Courts applying and otherwise interpreting the effect of these statutory

11 provisions appropriately concluded that compliance with the ADA regulations would

12 represent compliance with the ADA.

13

In Independent Living Resources, the court noted the inherent unfairness and due

14 process concerns implicated by asking the courts to craft regulations under the ADA:

15
The courts are ill-equipped to evaluate such claims and to make what

16

amount to engineering, architectural, and policy determinations as to

17

whether a particular design feature is feasible and desirable. In addition,

although plaintiffs would limit such claims to design issues that DOJ and the

18

Access Board have not expressly addressed, the courts often would have no

19

way of knowing whether the Access Board had considered enacting such a

requirement, but decided against it. Id. at 746.

20

Courts addressing Plaintiff’s secondary argument in other cases have flatly rejected

21 it. See, for example, U.S. v. National Amusements, 180 F. Supp.2d 251, 260 (D. Mass

22 2001) (“Compliance with a specific regulation must mean something; the Court rejects

23 the Attorney General’s attempt to render such compliance entirely meaningless by

24 opening it to challenge under the general regulatory provisions”); Independent Living

25 Resources v. Oregon Arena Corporation, 982 F.Supp. 698, 746 (D. Ore. 1997) (“I am

26 convinced that Congress intended that compliance with the design standards enacted by

27 the Access Board and DOJ for new construction would be deemed to satisfy the Title III

28 obligations with respect to the design of a structure”), supplemented by: 1 F.Supp.2d

17
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1 1159 (D. Oregon 1998); Mass. v. E*Trade Access, Inc., WL 2511059 (D. Mass. 2005)

2 (“the DOJ’s regulations therefore establish the limits of ADA liability;” and “If the law is

3 to impose certain requirements to assist those with disabilities and to impose an

4 obligation to make expensive retrofits if that law is violated, it is essential that those

5 requirements be clearly articulated in the regulations”) and Caruso v. Blockbuster-Sony

6 Music, 968 F.Supp. 210, 217 (“in the absence of an applicable regulation, we cannot rely

7 solely on the “full and equal enjoyment” statutory language to hold the defendants

8 liable”).

9

Even if the language of the ADA and the ADAAG were not enough to refute

10 Plaintiff’s argument, it has been noted that the constitutional right to due process and the

11 notice and comment procedures of the Administrative Procedures Act prevent the

12 imposition of a specific ADA design requirement via a mere statutory directive. The

13 court in Caruso emphasized that due process required that new ADA requirements be

14 adopted only through the rulemaking process: “Compliance with ADA rulemaking

15 ensures, hopefully at least, that all points of view are heard and that the resulting

16 regulation provides concrete guidance” and “Congress did not intend for defendants to

17 be responsible, in the absence of applicable regulations…Therefore, in the absence of an

18 applicable regulation, we cannot rely solely on the “full and equal enjoyment” statutory

19 language to hold the defendants liable…” (Caruso v. Blockbuster-Sony Music

20 Entertainment Centre, 968 F. Supp. at 215-217.) Rather, it is through the ADA

21 regulations that business owners are placed on notice of the design requirements to which

22 their facilities will be held. To demand that a company such as Chipotle adhere to a

23 design requirement supported only through by general statutory directive, when the

24 regulations interpreting the statute lack the requirement, is to ignore Chipotle’s

25 fundamental right to be placed on notice of the requirement.

26

Finally, Plaintiff’s argument that an ADA violation may exist in the absence of an

27 ADAAG or code violation, raises important public policy considerations. Business

28 owners, architects, developers and others consistently look to the ADAAG and building

18
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1 code to confirm that a design or structure is or will be compliant. These regulations are

2 voluminous and this process alone requires substantial investment of time and money.

3 Public facilities are designed and constructed to be compliant with the regulations.

4 Therefore, it would be unfair and potentially economically devastating to suddenly

5 determine that compliance is simply not compliance any longer. If developers never

6 enjoyed any certainty of compliance, the increased risk would drastically reduce the

7 number and frequency of future development and structural improvement projects. Also,

8 under Plaintiff’s theory, public facilities would always be subject to a re-design and

9 associated costs and downtime. Such costs would fall disproportionately upon small

10 businesses, for which even one costly re-design could result in closure or bankruptcy.

11

In short, Plaintiff’s contention that they may require Chipotle to lower its

12 transaction and sales counter based on the “full and equal enjoyment” provision of

13 Section 302 contravenes the text of the ADA and offends due process.

14 C. Section 19957 of the Health and Safety Code Provides Local Building

15

Departments With Discretion to Enforce the California Building Code.

16

Plaintiff’s Complaint and the allegations therein fail to appreciate that the

17 certificates of occupancy issued by the local building officials charged with enforcement

18 of the accessibility provisions of the California Building Code, as well as other

19 requirements constitute prima facie evidence that the restaurants were constructed in

20 compliance with the California Building Code. (SUF # 39 & # 40.) (See Request for

21 Judicial Notice Exs. 1 & 2.)

22

Section 19956 of the California Health and Safety Code provides in relevant part

23 that “[a]ll public accommodations constructed in this state shall conform to the

24 provisions of Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the

25 Government Code.” (Cal. Health & Safety Code § 19956.) Section 19958 provides that

26 “[t]he building department of every city, county, or city and county shall enforce this part

27 within the territorial area of its city, county, or city and county.” (Cal. Health & Safety

28 Code § 19958.)

19
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1

Historically, the local building department has been designated as the enforcing

2 agency tasked with the responsibility of ensuring compliance with applicable Building

3 Code standards. (Cal. Bldg. Code § 2-105(b)(6) & (11)(C)(3) (1981).) This remains in

4 effect to date. (Cal. Code of Regs., Title 24, § 101.17.11.4.3.) Thus, the judgment,

5 expertise and discretion of the local building officials and their staff are expressly

6 required to evaluate whether existing occupancies comply with the California Building

7 Code.

8

The Court can and should infer that the issuance of certificates of occupancy by the

9 local building officials tasked with enforcing the California Building Code indicates that

10 such officials either determined that the restaurants complied with the California

11 Building Code or determined that some type of exemption warranted some deviation

12 from the California Building Code. Bringle v. Board of Supervisors, 54 Cal. 2d 86, 89

13 (1960) (noting presumption that official duty was performed and that necessary facts

14 were found to exist to grant variance).

15

The analysis in Thompson v. City of Lake Elsinore, 18 Cal.App.4th 49 (Cal. Ct.

16 App. 1993), regarding the nature and scope of a certificate of occupancy and the process

17 whereby it is issued, is instructive. First, the Court of Appeal noted that section 307 of

18 the Uniform Building Code in effect during the relevant time frame (i.e., the 1985 edition

19 of the Uniform Building Code) provided as follows:

20
(a) Use or Occupancy. No building or structure . . . shall be used or occupied

21

. . . until the building official has issued a Certificate of Occupancy therefor

22

as provided herein . . . .

. . .

23

(c) Certificate Issued. After the final inspection when it is found that the

24

building or structure complies with the provisions of this code and other

laws which are enforced by the code enforcement agency, the building

25

official shall issue the Certificate of Occupancy . . . .

26

Thompson, 18 Cal. App. 4th at 56 (quoting Uniform Building Code § 307(a)

& (c) (1985)) (emphasis added).

27

28

20
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1

Second, the Court of Appeal recognized that some discretion is, in fact, exercised

2 by a building official before a certificate of occupancy is issued (even if such discretion

3 is not as broad the discretion exercised to issue a building permit). The Court of Appeal

4 proceeded to clarify that while the discretion to issue a certificate of occupancy was not

5 as broad as the discretion to issue a building permit, such circumstance did not

6 automatically entitle the holder of a building permit to a certificate of occupancy. That

7 is, the building official did not have a mandatory duty to issue one.

8

The Thompson decision is significant for several reasons. First, the Thompson

9 decision goes to great lengths to point out the discretion utilized by local building

10 officials in determining whether a building complies with the applicable building code

11 requirements. Subsequent court decisions have relied upon Thompson for this

12 proposition. See, e.g., Haggis v. City of Los Angeles, 22 Cal. 4th 490, 502, 993 P.2d 983

13 (2000) (noting that the defendant city had discretion to determine whether a completed

14 project met building permit requirements in order to issue a certificate of occupancy);

15 Inland Empire Health Plan v. Superior Court, 108 Cal. App. 4th 588, 594, 133 Cal. Rptr.

16 2d 735, 740 (Cal. Ct. App. 2003) (holding that a building official called upon to

17 determine whether a renovation project meets the requirements of the local building code

18 is making a discretionary decision). The Thompson decision is also consistent with Fox

19 v. County of Fresno, 170 Cal. App. 3d 1238 (Cal. Ct. App. 1985), wherein the California

20 Court of Appeal construed section 17980 of the California Health and Safety Code,

21 applicable to housing, as providing the enforcement agency a choice or discretion to

22 choose which course of action would be appropriate when a violation of the building

23 standards published by the State Building Standards Code is found notwithstanding that

24 such statute makes several references to the seemingly obligatory term “shall”. Id. at

25 1243-44. Thus, local building officials have discretion to decide how the applicable

26 building code should be applied. Cf. Sutherland v. City of Fort Bragg, 86 Cal. App. 4th

27 13, 24, 102 Cal. Rptr. 2d 736, 742-43 (Cal. Ct. App. 2000) (holding that the fire chief

28 “exercises considerable discretion in deciding how [the fire code] should be applied”)

21
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1 (emphasis added); (“Aware of a violation of the [fire] code’s exit provisions, the chief

2 has an array of remedies at his disposal under the code, all involving the exercise of

3 official discretion. These enforcement remedies include orders requiring an offending use

4 to cease, declaring a building a public nuisance to be abated or, in his discretion,

5 declining any enforcement measures at all.”) (emphasis added).

6

Second, the Thompson decision makes it clear that the issuance of a certificate of

7 occupancy should not occur unless and until the local building official has found the

8 inspected building to be in compliance. The California Uniform Retail Food Facilities

9 Law (“CURFFL”) governs the uniform statewide health and sanitation standards for

10 retail food facilities. Section 113915 of the CURFFL regarding submission of plans

11 provides as follows:

12
A person proposing to build or remodel a food facility shall submit

13

complete, easily readable plans, drawn to scale, and specifications to the

14

local enforcement agency for review and approval before starting any new

construction or remodeling of any facility for use as a retail food facility as

15

defined in this chapter. Plans and specifications may also be required by the

16

local enforcement agency if it determines that they are necessary to assure

compliance with the requirements of this chapter. The plans shall be

17

approved or rejected within 20 working days after receipt by the local

18

enforcement agency and the applicant shall be notified of the decision.

Unless the plans are approved or rejected within 20 working days, they shall

19

be deemed approved. The building department shall not issue a building

20

permit for a food facility until after it has received plan approval by the local

enforcement agency. Nothing in this section shall require that plans or

21

specifications be prepared by someone other than the applicant.

22

Thus, the issuance of certificates of occupancy for the restaurants is prima facie

23 evidence that the respective local building officials charged with enforcement of the

24 California Building Code and the CURFFL determined that the restaurants complied with

25 the provisions of the California Building Code and the CURFFL at the time such

26 certificates were issued or were exempt based upon local conditions.

27

28

22
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1 D. The Height Of The Food Service Counter And The Placement Of The Sneeze

2

Guard Is Required By Law To Ensure Sanitary Conditions for Chipotle’s

3

Customers.

4

In determining that sneeze guards were required along the food service lines at the

5 restaurants, Chipotle relied upon and complies with applicable CURFFL Sections

6 114080(b)(2)(A) and 114080(c) and Health & Safety Code Section 114080. (SUF # 41.)

7

A subsection of California Health & Safety Code § 114080 pertaining to the

8 storage of food, as well as the display and sale of unpackaged food provides in pertinent

9 part:

10

(c) Unpackaged food may be displayed and sold in bulk in other than

self-service containers if both of the following conditions are satisfied:

11

12

(1) The food is served by an employee of the food establishment directly

to a consumer.

13

14

(2) The food is displayed in clean, sanitary, and covered or otherwise

protected containers.

15
Therefore, in order to ensure sanitary dining conditions, as required by California

16 law, Chipotle is legally justified in maintaining the counter height and the sneeze guard at

17 the restaurants.

18
E.
19
20

If Plaintiff’s Federal Claims are Dismissed, His State Law Claims Should Also Be Dismissed. Under 28 U.S.C. § 1367(c), a district court may decline to exercise supplemental

21 jurisdiction over state law claims “if [inter alia]. . . the court has dismissed all the

22 original-jurisdiction claims.” Patel v. Penman, 103 F.3d 868, 877 (9th Cir. 1996).

23

If this court should decide to grant summary judgment on the ADA claims herein,

24 there will be no original jurisdiction claims remaining. The law is clear: “The district

25 courts may decline to exercise supplemental jurisdiction over a claim. . . if. . . the district

26 court has dismissed all claims over which it had original jurisdiction.” 28 U.S.C.

27 § 1367(c)(3). Indeed, as the Supreme Court has written:

28

23
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1

[I]n the usual case in which all federal-law claims are eliminated before trial,

the balance of factors to be considered under the pendent jurisdiction

2

doctrine – judicial economy, convenience, fairness, and comity – will point

3

toward declining to exercise jurisdiction over the remaining state-law

claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)

4

(emphasis added).

5

Plaintiff’s sole claim grounded in federal law is his ADA claim. Should the Court

6 dismiss Plaintiff’s ADA claim, the Court may decline to exercise supplemental

7 jurisdiction over the companion state law claims. See 28 U.S.C. § 1367(c)(3).

8

The Ninth Circuit has given guidance on this issue in a case similar to the present

9 one. See Wander v. Kaus, 304 F.3d 856, 859 (9th Cir. 2002). In that case, plaintiff

10 brought claims for injunctive relief under Title III of the ADA and for damages under the

11 California Disabled Person’s Act. Plaintiff’s claims for injunctive relief under the ADA

12 became moot. Defendants sought the dismissal of the federal claim. Defendants also

13 sought the dismissal of the claim under the California statute, without prejudice. The

14 district court agreed, dismissing the ADA claim as moot and dismissing the state claims

15 without prejudice by declining to exercise supplemental jurisdiction.

16

The Ninth Circuit affirmed. It wrote:

17
We hold today that there is no federal-question jurisdiction over a lawsuit

18

for damages brought under California’s Disabled Person's Act, even though

19

the California statute makes a violation of the federal Americans with

Disabilities Act a violation of state law. Congress intended that there be no

20

federal cause of action for damages for a violation of Title III of the ADA.

21

To exercise federal-question jurisdiction in these circumstances would

circumvent the intent of Congress.

22
Id. at 857.

23
Upon dismissing Plaintiff’s ADA claim, the Court possesses the discretion to, and

24
should, dismiss Plaintiff’s companion state law claims without prejudice for lack of

25
subject matter jurisdiction as the Ninth Circuit has suggested.

26

27 28

24
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1

IV.

2

CONCLUSION

3

Plaintiff’s claims for injunctive relief under the ADA have been rendered moot by

4 Chipotle’s remediation efforts. For that reason and all the foregoing reasons, Chipotle

5 respectfully requests that the Court enter an Order granting its Motion for Summary

6 Judgment and dismissing Plaintiff’s ADA claim, and enter judgment in favor of Chipotle.

7 Chipotle also respectfully requests that the Court dismiss Plaintiff’s companion state law

8 claims without prejudice for lack of subject matter jurisdiction.

9

10 DATED: April 16, 2007

GREENBERG TRAURIG, LLP

11

12

By /s/ Stacey L. Herter

13

Gregory F. Hurley Stacey L. Herter

14

Attorneys for Defendant CHIPOTLE MEXICAN

GRILL, INC.

15

16

17

18

19

20

21

22

23

24

25

26

27 28

25
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1

PROOF OF SERVICE

2
STATE OF CALIFORNIA, COUNTY OF ORANGE COUNTY
3
I am employed in the aforesaid county, State of California; I am over the age of 18 4 years and not a party to the within action; my business address is 650 Town Center 5 Drive, Suite 650, Costa Mesa, CA 92626.

6

On the below date, I electronically filed the MEMORANDUM OF POINTS

AND AUTHORITIES IN SUPPORT OF CHIPOTLE MEXICAN GRILL, INC.’S

7 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE,

MOTION FOR SUMMARY ADJUDICATION with the Clerk of the United States 8 District Court for the Southern District of California, using the CM/ECF System. The

9

Court’s CM/ECF System will send an email notification of the foregoing filing to the following parties and counsel of record who are registered with the Court’s CM/ECF

10 System:

11

12 Amy B. Vandeveld

13

Law Offices of Amy B. Vandeveld 1850 Fifth Avenue, Suite 22

14 San Diego, CA 92101 T: (619) 231-8883

15 F: (619) 231-8329

Email: abvusdc@hotmail.com
16

17 Attorneys for Plaintiff

18

19

BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM) In accordance with the electronic filing procedures of this Court, service has been

20

effected on the aforesaid party(s) above, whose counsel of record is a registered

participant of CM/ECF, via electronic service through the CM/ECF system.

21

(FEDERAL) I declare under penalty of perjury that the foregoing is true and

22

correct, and that I am employed at the office of a member of

the bar of this Court at whose direction the service was made.

23

Executed on April 16, 2007, at Costa Mesa, California.

24

25

/s/ Stacey L. Herter STACEY L. HERTER

26

27

28
PROOF OF SERVICE
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1 GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791)
2 STACEY L. HERTER (SBN 185366) 650 Town Center Drive, Suite 1700
3 Costa Mesa, CA 92626
Telephone: (714) 708-6500 4 Facsimile: (714) 708-6501
Email: herters@gtlaw.com 5
Attorneys for Defendant 6 CHIPOTLE MEXICAN GRILL, INC.

7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9

10 MAURIZIO ANTONINETTI,

CASE NO.: 05-CV-1660 J WMC

11 12 vs.

Plaintiff,

Class Action - Related to & Consolidated for Discovery With 06-CV-2671 LAB (POR)

13 CHIPOTLE MEXICAN GRILL, INC.,

Assigned to Hon. Judge Napoleon A. Jones, Jr.

14

Defendant.

15

16

17

18

CHIPOTLE MEXICAN GRILL, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
[Filed concurrently with Response and Objection to Plaintiff’s Supplemental Separate Statement; Request for Judicial Notice]

19

Date: June 4, 2007

20

Time: 9:00 a.m.

21

Ctrm: 12

22

23

24

25

26

27

28

REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
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1

I.

2

INTRODUCTION

3

Placing Chipotle in the role of the discriminatory bus company and likening his desire to watch

4 while Chipotle employees assemble his burrito to Rosa Parks’ historical struggle to attain equal rights 5 (see footnote 1, page 2 of Plaintiff’s Opposition)1, Plaintiff concedes that “[t]his case does not involve

6 the design and construction of the food preparation counter itself.” (See Plaintiff’s Opposition, page 4,

7 lines 9-10.)

8

Plaintiff also fails to dispute 90% of Chipotle’s 41 undisputed material facts -- Plaintiff outright

9 conceded that 21 of those facts were undisputed (see Plaintiff’s Response to Chipotle’s Separate

10 Statement, Numbers 1, 2, 3, 4, 6, 8, 10, 13, 14, 15, 18, 19, 20, 21, 23, 28, 30, 31, 39, 40 & 41); as to the

11 remaining undisputed facts, Plaintiff makes a weak attempt to dispute them, claiming that they are either

12 not facts (see Plaintiff’s Response to Chipotle’s Separate Statement, Numbers 24, 25, 26, 27 & 29), or

13 that he has insufficient information to dispute them. (See Plaintiff’s Response to Chipotle’s Separate

14 Statement, Numbers 9, 11, 12, 16, 17, 33, 34, 35, 36, 37 & 38.) This latter claim should be disregarded

15 and those facts should be deemed undisputed insofar as Plaintiff fails to dispute these facts by

16 declaration or other written evidence. Furthermore, Plaintiff himself admits that “[e]xtensive discovery

17 was conducted in this case, including the production of thousands of pages of documents by Chipotle

18 and numerous depositions of defense witnesses. Discovery . . . is now complete.” (See Plaintiff’s

19 Opposition, page 19, lines 22-25.)

20

Whether or not Chipotle admitted that modifications could be made with no difficulty or expense

21 is of absolutely no import for the purposes of this case. (See Chipotle’s Response to Plaintiff’s

22 Supplemental Separate Statement of Undisputed Facts.) The two restaurants at issue were built after the

23 enactment of the ADA -- Plaintiff does not dispute this. (See Plaintiff’s Response to Chipotle’s

24 Separate Statement, Numbers 39 and 40.) Accordingly, the readily achievable barrier removal standard,

25 which applies to existing facilities (pre-ADA facilities) and takes into consideration factors such as

26

27

1

These disparaging statements violate Local Rule 83.4(a)(2), which mandates that attorneys

before this Court not “disparage the ethics, morals, integrity or behavior of opposing parties . . . unless

28 such characteristics are at issue.” For these reasons, this footnote should be stricken from Plaintiff’s Opposition; Chipotle anticipates filing a separate motion to strike on this issue.

1

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1 difficulty and expense, does not apply and Plaintiff’s Supplemental Separate Statement should be 2 disregarded as superfluous and wholly inapplicable.2

3

For these reasons, and as further discussed in detail below, Chipotle’s Motion for Summary

4 Judgment should be granted and Plaintiff’s case dismissed.

5

II.

6 7 A.
8

ARGUMENT
Section 4.33.3 Of The ADAAG Does Not Impose Line Of Sight Requirements On Areas Such As Chipotle’s Food Preparation Counters That Are Not Part Of A Fixed Seating Plan.

9

1. The plain language of Section 4.33.3 demonstrates that its line of sight requirements

are only applicable to fixed seating plans and to assembly areas. 10

Plaintiff’s opposition attempts to broaden the scope of the line of sight requirements established

11

by Section 4.33.3 of the ADAAG by obscuring the plain language of this governing regulation. Section

12

4.33.3 plainly states that:

13

14

Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of

15

sight comparable to those for members of the general public. They shall adjoin an

accessible route that also serves as a means of egress in case of emergency. At least one

16

companion fixed seat shall be provided next to each wheelchair seating area. When the

seating capacity exceeds 300, wheelchair spaces shall be provided in more than one

17

location. Readily removable seats may be installed in wheelchair spaces when the spaces

18

are not required to accommodate wheelchair areas. EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies,

19

and other areas having sight lines that require slopes of greater than 5 percent.

20

2
21

The term “readily achievable” is defined as “easily accomplishable and able to be carried out

without much difficulty or expense.” 42 U.S.C. § 12181(9) (emphasis added). In determining whether

22 an action is readily achievable, factors to be considered include--

(A) the nature and cost of the action needed under this chapter; 23 (B) the overall financial resources of the facility or facilities involved in the action; the number of

24 persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;

25 (C) the overall financial resources of the covered entity; the overall size of the business of a covered

entity with respect to the number of its employees; the number, type, and location of its facilities; and 26 (D) the type of operation or operations of the covered entity, including the composition, structure, and

27

functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.

28 (42 U.S.C. § 12181(9).)

2
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1

Equivalent accessible viewing positions may be located on levels having accessible egress.

2 28 C.F.R. § 36 - Appendix A § 4.33.3 (emphasis added). The statement that “wheelchair areas shall be

3 an integral part of any fixed seating plan” plainly indicates that the requirements of 4.33.3, including its

4 line of sight requirements, are limited to wheelchair seating areas in a fixed seating plan, such as the

5 seating generally found in movie theatres, playhouses, and sports arenas. Chipotle’s food preparation

6 counters are not part of a fixed seating plan. Accordingly, those areas of Chipotle’s restaurants are not

7 subject to the line of sight requirements set forth in Section 4.33.3 of the ADAAG.

8

Plaintiff’s tortured interpretation of “wheelchair areas” is inconsistent with the plain language of

9 Section 4.33.3, and reads the phrase “of any fixed seating plan” out of the regulation. The statement in

10 Section 4.33.3 that “wheelchair areas shall be an integral part of any fixed seating plan” plainly indicates

11 that the wheelchair areas to which the requirements of that standard apply are located in fixed seating

12 areas. If the DOJ had intended the requirements of Section 4.33.3 to apply to parts of a facility other

13 than fixed seating areas, it would have so stated. Additionally, the remaining portions of Section 4.33.3

14 - requiring that accessible routes and companion fixed seats adjoin wheelchair areas - further establish

15 that the “wheelchair areas” to which the requirements apply are located in fixed seating areas, and not in

16 locations like Chipotle’s food preparation and checkout areas.

17

Perhaps recognizing the problems with their proposed interpretation of Section 4.33.3 of the

18 ADAAG, Plaintiff asserts that if Chipotle’s interpretation of Section 4.33.3 is accepted, people in

19 wheelchairs could not see museum exhibits, gallery art, stage performances, animal exhibits at the zoo,

20 jugglers perform on stage, politicians speak on election night, watch football games at their local bars,

21 etc. (Plaintiff’s Opposition, page 5, lines 6-10). This parade of horribles does not change the plain

22 language of the ADAAG - which limits line of sight requirements to fixed seating areas and “assembly

23 areas.” In any event, this case does not involve any of those hypothetical situations; nor is there any

24 evidence to support Plaintiff’s assertion that adopting Chipotle’s interpretation of Section 4.33.3 would

25 result in such dire consequences.

26

2. Sight-Line Requirements Exist For Appropriate Industries, Namely, Theatre Venues3

27

28 3

For further explanation, Chipotle respectfully directs this Court to the Georgetown Law Journal

Article “Down in Front!”: Judicial Deference, Regulatory Interpretation, and the ADA’s Line of Sight

3

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1

Section 36.308 is a part of the implementing regulations of Title III and addresses “seating in

2 assembly areas” and provides as follows:

3

(a) Existing facilities.

4

(1) To the extent that it is readily achievable, a public accommodation in assembly

areas shall --

5

(i) Provide a reasonable number of wheelchair seating spaces and seats with

removable aisle-side arm rests; and

6

(ii) Locate the wheelchair seating spaces so that they --

7

(A) Are dispersed throughout the seating area; (B) Provide lines of sight and choice of admission prices comparable to those for members of

8 the general public.

9

As Chipotle’s expert witness, Mr. Blackseth testified in his declaration in opposition to

10 Plaintiff’s Motion for Summary Judgment (Docket No. 109, ¶ 13), “[s]ight-line requirements, when they

11 exist, are addressed very directly by the ADA regulations. As one would expect, sight-line requirements

12 exist for appropriate industries, namely, theatre venues. Plaintiff may not, therefore, impose such a

13 theatre-specific requirement on a restaurant such as Chipotle.”

14

Likewise, if one looks to the Notice of Proposed Rulemaking and the request for comments

15 pertaining to “assembly areas” (4.33), it is clear that the specific subsection at issue -- 4.33.3 -- applies

16 specifically to theatres, playhouses, sports arenas and other similar venues -- not to all public

17 accommodations as Plaintiff persists. In particular, on January 22, 1991, the Architectural and

18 Transportation Compliance Board sought comments on two issues concerning seating in “assembly

19 areas”:

20 Question 32: The first issue involves row spacing. Many people with mobility

21

impairments find it difficult to get to mid-row seats in assembly areas such as theaters or

sports arenas. Wider row spacing, with a greater distance between the edge of the seat

22

and the back of the seat in the next row forward, would make it much easier for everyone

23

to access mid-row seating. Building codes currently provide options in the design of seating areas. One option is to limit the number of seats in rows that have conventional

24

narrow row spacing; and another option is to allow an increase in the allowable number

of seats per row when there is a corresponding increase in the distance between rows

25

("continental" seating). The Board seeks comments on whether row spacing should also

26

27 Standard, 86 Geo.L.J. 2653 (1998) for further analysis of the history and interpretation of 4.33.3. (See

28 Request for Judicial Notice in support of Reply to Plaintiff’s Opposition to Motion for Summary Judgment, filed concurrently herewith.)

4

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1

be addressed as an accessibility issue.

2

Question 33: The second issue involves lines of sight at seating locations for people who

use wheelchairs. Section 4.33.3 provides that seating locations for people who use

3

wheelchairs shall be dispersed throughout the seating area and shall be located to provide

lines of sight comparable to those for all viewing areas. This requirement appears to be

4

adequate for theaters and concert halls, but may not suffice in sports arenas or race tracks

5

where the audience frequently stands throughout a large portion of the game or event. In alterations of existing sports arenas, accessible spaces are frequently provided at the

6

lower part of a seating tier projecting out above a lower seating tier or are built out over

existing seats at the top of a tier providing a great differential in height. These solutions

7

can work in newly constructed sports arenas as well, if sight lines relative to standing

patrons are considered at the time of initial design. The Board seeks comments on

8

whether full lines of sight over standing spectators in sports arenas and other similar

9

assembly areas should be required.

10

See Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and

11 Facilities 56 FR 2296, 2313 -2314.

12

13

3. Other Courts Have Rejected And Outright Dismissed Plaintiff’s Interpretation of

4.33.3

14

In a factually-similar case currently pending before the United States District Court for the

15 Eastern District of Virginia (Alexandria Division) styled Rosemary Ciotti v. Chipotle Mexican Grill,

16 Case No. 1:07cv161, Plaintiffs’ Complaint alleged, inter alia, that Chipotle discriminated against them

17 under the ADA by failing to ensure that wheelchair users have comparable lines of sight from which to

18 observe the freshness of the food items sold at Chipotle and the preparation of the food. (See Docket

19 No. 109 [Request for Judicial Notice], No. 2, filed concurrently herewith.) Chipotle moved to dismiss

20 those claims at the pleading stage pursuant to FRCP 12(b)(1) and (6) and Plaintiffs opposed the motion.

21 (See Docket No. 109, Nos. 3 &4.) On April 20, 2007, Judge Leonie Brinkema dismissed the Plaintiffs’

22 claims “involving sight-line problems in Defendant’s restaurants” with prejudice. (See Docket No. 109,

23 No. 5.)

24 Chipotle urges this Court to adopt the same approach as the Eastern District of Virginia and find

25 that there is no line of sight requirement for Chipotle and deny Plaintiff’s motion for summary judgment

26 outright.

27

28

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1

B. Plaintiff May Not Rely On The General Anti-Discrimination Provisions Of The ADA To Create A Cause Of Action On An Issue That Is Expressly Addressed In The Governing

2 Regulations.

3

Plaintiff asserts that notwithstanding the fact that the ADAAG expressly limits sight line

4 requirements to fixed seating locations, he may state a claim for Chipotle’s alleged failure to ensure

5 equal lines of sight in its food preparation areas under the general anti-discrimination provisions of the

6 ADA. This assertion lacks any legal support. Plaintiff fails to genuinely distinguish the cases cited in

7 Chipotle’s original memorandum in support of its motion to dismiss holding that where the ADAAG

8 expressly addresses the structural requirements for a particular facility, a plaintiff may not use the

9 general anti-discrimination provisions of Title III to add new requirements for that facility.

10

Chipotle’s moving brief cites four cases standing for the proposition that where the ADA’s

11 structural requirements for a particular facility are addressed in the ADAAG, a plaintiff may not seek to

12 impose new or different requirements under the general anti-discrimination provisions of the ADA. See

13 Chipotle’s Motion for Summary Judgment citing U.S. v. National Amusements, 180 F.Supp.2d 251, 260

14 (D. Mass. 2001); Independent Living Resources v. Oregon Arena Corporation, 982 F.Supp. 698, 746

15 (D. Or. 1997), supplemented by, 1 F.Supp.2d 1159 (D. Or. 1998); Caruso v. Blockbuster-Sony Music

16 Entertainment Centre, 968 F.Supp. 210, 217 (D. N.J. 1997), aff’d. by, 193 F.3d 730 (3rd Cir. 1999);

17 Com. of Mass v. E*Trade Access, Inc., 2005 WL 2511059, *1 (D. Mass. 2005)). Plaintiff’s opposition

18 attempts to distinguish the those cases from the present case, but these arguments fail.

19

Independent Living Resources held that the Title III standards promulgated by the DOJ are

20 exclusive as to all architectural design issues, including sight line requirements, and may not be

21 expanded by a plaintiff under the general non-discrimination provisions of Title III. Plaintiff contends

22 that this holding is in error because it would allow persons or entities to discriminate against the

23 disabled if they can find a way to do so that the ADAAG does not expressly forbid. This argument is

24 circular and unavailing. Discrimination is a broad term that is defined by the ADA and the interpretive

25 regulations enacted by the DOJ pursuant to its enforcement authority. The ADAAG is part of the DOJ’s

26 interpretive regulations and sets out the specific structural requirements for facilities that qualify as

27 places of public accommodation. The question of whether a structural feature of such a facility limits

28 the ability of the disabled to access or enjoy the facility in such a way as to “discriminate” against the

6
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1 disabled is expressly addressed in the ADAAG. Therefore, to the extent that the ADAAG limits a

2 particular structural requirement, including sight line requirements, to certain locations within a place of

3 public accommodation, a person or entity who owns or operates such a facility does not “discriminate”

4 against disabled individuals by not going beyond those requirements. The court in Independent Living

5 Resources based its holding on precisely this line of reasoning, as did the courts in the National

6 Amusements and E*Trade Access, Inc. cases. See Independent Living Resources, 982 F.Supp. at 746

7 (“compliance with the DOJ regulations, once issued, would similarly suffice to satisfy the requirements

8 of § 12183,” which “provides that discrimination includes ‘a failure to design and construct facilities ...

9 that are readily accessible to and usable by individuals with disabilities except where an entity can

10 demonstrate that it is structurally impracticable to meet the requirements of such subsection in

11 accordance with standards set forth or incorporated by reference in regulations issued under this

12 subchapter…”) (emphasis in original); National Amusements, Inc., 180 F.Supp.2d at 260 (“the

13 regulations themselves indicate that ADAAG § 4.33.3 is determinative as to whether there is a violation

14 of the general regulatory and statutory provisions”); E*Trade Access, Inc., 2005 WL 2511059 at *4

15 (“the statutory language and structure of the ADA indicate that Congress intended that the DOJ’s

16 regulations and the ADAAG, when passed, would set forth standards sufficient to satisfy ADA

17 obligations; the DOJ’s regulations therefore establish the limits of ADA liability”). As the court in

18 National Amusements, Inc. noted, “[c]ompliance with a specific regulation must mean something,” and

19 courts should therefore reject attempts to render such compliance entirely meaningless by opening it to

20 challenge under general anti-discrimination provisions of Title III. 180 F.Supp.2d at 260.

21

Plaintiff’s attempt to distinguish Caruso is equally unavailing. There is no support for Plaintiff’s

22 insinuation that the Third Circuit reversed the portion of the district court’s decision holding that the

23 plaintiff could not seek to impose more stringent line of sight requirements than those contained in the

24 ADAAG by simply invoking the general anti-discrimination provisions of Title III. The Third Circuit

25 affirmed the district court’s holding that the plaintiff in that case could not state a claim for failure to

26 afford disabled patrons of a concert pavilion sightlines over standing spectators where the relevant

27 ADAAG standard set forth no such requirement. Caruso v. Blockbuster-Sony Music Entertainment

28 Centre (“Caruso II”), 193 F.3d 730 (3rd Cir. 1999). In so doing, it did not disturb the district court’s

7
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1 holding that a plaintiff may not seek to expand the specific requirements of the ADAAG with respect to

2 a particular structure or facility by means of the more general provisions of Title III of the ADA. The

3 language of Justice Alito’s opinion in Caruso II, quoted at length by Plaintiff in his opposition, did not

4 address the question of whether the specific requirements of the ADAAG with respect to sight lines may

5 be expanded by means of the general anti-discrimination provisions of the ADA. Rather, that portion of

6 the opinion addressed a separate, unrelated issue - namely, how to apply the ADA’s structural

7 impracticability exception to its general requirement that at least one accessible rout connect accessible

8 buildings, facilities, elements and spaces that are on the same site. Caruso II, at 737-740. Indeed,

9 nothing in the passage quoted by Plaintiff in any way suggests that the general provisions of the ADA

10 may be used to impose new structural requirements that are not expressly contained in applicable

11 ADAAG standards.

12

Finally, in arguing that Chipotle’s position would somehow make the general anti-discrimination

13 provisions of the ADA superfluous, Plaintiff mischaracterizes the nature of Chipotle’s arguments.

14 Chipotle does not ask this Court to read the general anti-discrimination provisions of the ADA out of the

15 Act; rather, Chipotle’s position is simply that the general provisions of the ADA cannot be applied in

16 such a way as to create new structural requirements for facilities whose structural requirements are

17 already expressly addressed by the more specific provisions of the ADAAG.

18

This Court will not be rendering the general anti-discrimination provisions of the ADA

19 meaningless by holding that Plaintiff may not expand the specific requirements of the ADAAG through

20 the general anti-discrimination provisions of the ADA. Those provisions still have their application.

21 Holding that Plaintiff may not expand the specific requirements of the ADAAG by invoking the general

22 anti-discrimination provisions of the ADA will simply ensure harmony between the requirements of the

23 ADA as they have been interpreted by the DOJ in the ADAAG (and by the courts). Such a rule properly

24 recognizes that “courts are ill-equipped to evaluate [building design requirements] and make what

25 amount to engineering, architectural and policy determinations as to whether a particular design feature

26 is feasible and desirable.” Independent Living Resources, 982 F.Supp. at 746.

27

28

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1

C. The Court Should Decline To Exercise Supplemental Jurisdiction Over Plaintiff’s State Law Claims.

2

Under 28 U.S.C. § 1367(c), the Court may decline to exercise supplemental jurisdiction over

3 Plaintiff’s state law claims “if [inter alia]. . . the court has dismissed all the original-jurisdiction

4 claims.” Patel v. Penman, 103 F.3d 868, 877 (9th Cir. 1996). So, if the Court grants summary judgment

5 on Plaintiff’s sole original-jurisdiction claim – the ADA claim – there will be no original jurisdiction

6 claims remaining. In such case, “the balance of factors to be considered under the pendent jurisdiction

7 doctrine – judicial economy, convenience, fairness, and comity – will point toward declining to exercise

8 jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

9 n. 7 (1988) (emphasis added).

10

In this case, Plaintiff’s only available remedy under the ADA – injunctive relief to compel

11 compliance with the ADAAG – has been mooted. This is because, as shown in Chipotle’s moving

12 papers, there is no remaining injunctive relief that Plaintiff may receive for any of the ADA claims in

13 his Complaint. Once a plaintiff has received everything the court would order, his claims are moot.

14 See, e.g., Pickern v. Best Western Cove Lodge Marina Resort, 194 F. Supp. 2d 1128, 1130 (E.D.Cal.

15 2002). Where, as here, the federal ADA claims are moot, the Court should decline jurisdiction over the

16 state law claims. See, e.g., Wander v. Kaus, 304 F.3d 856, 858-860 (9th Cir. 2002) (no federal subject

17 matter jurisdiction over California Disabled Persons Act claims where all ADA violations were

18 mooted).

19

Even if the Court finds that Plaintiff’s ADA claim has not been entirely mooted, and that a few

20 ADAAG violations remain, the state law causes of action predominate over the sole federal claim.

21 Where “[t]he state injunctive relief Plaintiff seeks is broader than the injunctive relief Plaintiff seeks

22 under the ADA, and Plaintiff seeks damages under California law, . . . ‘the state claims substantially

23 predominate over the federal claims.’” Sanford, 2006 WL 2669351 at *6 (quoting United Mine Workers

24 v. Gibbs, 383 U.S. 715, 726 (1966)). All that Plaintiff can receive under the federal claim for an

25 ADAAG violation is a remedial injunction. Under the Unruh Act and DPA, however, Plaintiff stands to

26 gain tens of thousands of dollars, in addition to potentially broader injunctive relief. Id. at *5-6

27 (dismissing state claims because, inter alia, “Plaintiff’s state claims substantially predominate the

28 litigation”). Thus, the state claims predominate, and the Court should allow a state court to hear the

9
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1 case. See also Molski v. Hitching Post I Restaurant, Inc., No. CV 04-1077SVWRNBX, 2005 WL

2 3952248 *7 (C.D.Cal. May 25, 2005) (“the statutory damages available to the plaintiff under the Unruh

3 Act substantially predominate over the relief available under the ADA”); Organization for Advancement

4 of Minorities with Disabilities v. Brick Oven Restaurant (“OAMD”), 406 F.Supp.2d 1120, 1130-31

5 (S.D.Cal. 2005) (same analysis).

6

Moreover, Plaintiff’s claims under the Unruh Act and the DPA present novel and complex issues

7 of state law. Sanford, supra, at *3-4 (declining supplemental jurisdiction over, inter alia, Unruh Act

8 and DPA disability claims, because those “state law claims raise novel and complex issues of state law”)

9 (citing Gibbs and Molski v. Mandarin Touch Rest., 359 F.Supp.2d 924, 936 (C.D.Cal. 2005) (law for

10 recovering damages under state disability statutes is poorly defined). See also Molski v. Hitching Post,

11 supra, at *3 et seq. (“the damages provisions of the Unruh Act and DPA raise complex issues of

12 unsettled state law which are better left to the California courts to resolve”); OAMD, 406 F.Supp.2d at

13 1130 (“the remedial provisions of the Unruh Act and the California DPA present novel and complex

14 issues of unresolved state law”).

15

Thus the Court should decline to exercise supplemental jurisdiction over the state claims, and

16 dismiss those claims without prejudice.

17

III.

18

CONCLUSION

19

The ADA claims in the Complaint are moot. Thus judgment should be awarded against

20 Plaintiff’s ADA claims. Furthermore, Chipotle respectfully requests that, because there are no

21 remaining original jurisdiction claims, the Court decline to exercise supplemental jurisdiction over

22 Plaintiff’s predominant state law claims. The Motion should be granted in its entirety.

23

24 DATED: May 25, 2007

GREENBERG TRAURIG, LLP

25

26

By /s/ Stacey L. Herter

Gregory F. Hurley

27

Stacey L. Herter

Attorneys for Defendant

28

CHIPOTLE MEXICAN GRILL, INC.

10
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1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE COUNTY

3

I am employed in the aforesaid county, State of California; I am over the age of 18 years and not

4

a party to the within action; my business address is 650 Town Center Drive, Suite 650, Costa Mesa, CA 92626.

5

On the below date, I electronically filed the CHIPOTLE MEXICAN GRILL, INC.’S REPLY

6

TO PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT with the Clerk of the United States District Court for the Southern District of California, using the CM/ECF System. The

7

Court’s CM/ECF System will send an email notification of the foregoing filing to the following parties and counsel of record who are registered with the Court’s CM/ECF System:

8

9 Amy B. Vandeveld

10

Law Offices of Amy B. Vandeveld 1850 Fifth Avenue, Suite 22

11

San Diego, CA 92101 T: (619) 231-8883

12

F: (619) 231-8329 Email: abvusdc@hotmail.com

13 Attorneys for Plaintiff

14

15 BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM)

In accordance with the electronic filing procedures of this Court, service has been effected on the

16

aforesaid party(s) above, whose counsel of record is a registered participant of CM/ECF, via

electronic service through the CM/ECF system. 17
(FEDERAL) I declare under penalty of perjury that the foregoing is true and correct,

18

and that I am employed at the office of a member of the bar of this Court

at whose direction the service was made.

19

20

Executed on May 25, 2007, at Costa Mesa, California.

21

s/Stacey L. Herter

STACEY L.HERTER

22

23

24

25

26

27

28
PROOF OF SERVICE
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1 Amy B. Vandeveld, State Bar No. 137904 LAW OFFICES OF AMY B. VANDEVELD
2 1850 Fifth Avenue, Suite 22 San Diego, California 92101
3 Telephone: (619) 231-8883 Facsimile: (619) 231-8329
4 Attorney for Plaintiff
5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 MAURIZIO ANTONINETTI

11 Plaintiff,

12 vs.

13 CHIPOTLE MEXICAN GRILL, INC. and DOES 1
14 THROUGH 10, Inclusive,

15

Defendants.

16

17

18

Case No.: 05 CV 1660 J (WMc)

PLAINTIFF’S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S REPLY TO CHIPOTLE’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Date:

June 4, 2007

Time:

9:00 a.m.

Courtroom: 12

Judge: The Honorable Napoleon A.

Jones, Jr.

19

Plaintiff, MAURIZIO ANTONINETTI, (hereinafter “Plaintiff"), hereby submits the

20 following Memorandum of Points and Authorities in Support of his Reply to Chipotle’s

21 Opposition to Plaintiff’s Motion for Summary Judgment. Plaintiff’s Reply is based upon this

22 Memorandum of Points and Authorities, as well as all other pleadings, declarations and other

23 evidence filed in Opposition to Chipotle’s Motion for Summary Judgment or, in the alternative,

24 Summary Adjudication.

25 ///

26 ///

27 ///

28

1

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1

I.

2

DEFENDANT HAS FAILED TO ESTABLISH

A DISPUTE OF MATERIAL FACT

3

4

To successfully defeat a motion for summary judgment, the opposing party must show

5 that pleadings, depositions and discovery responses, together with any affidavits, establish that

6 there is a genuine issue of material fact. F.R.Civ.P. Rule 56(c). “Material facts” are those

7 which, under applicable substantive law, may affect the outcome of the case. Anderson v. Liberty

8 Lobby, Inc., 477 US 242.

9

Although Chipotle claims that numerous facts are “disputed”, the “evidence” offered by

10 Chipotle does not refute the factual assertions by Plaintiff at all. It should be noted that the vast

11 majority of the evidence offered by Plaintiff is testimony from Chipotle’s own managers and

12 Persons Most Knowledgeable (PMKs), excerpts from Chipotle’s own training manual (“ the

13 Know”) and Chipotle’s own website. In an effort to raise a “dispute of fact”, Chipotle points to

14 other deposition testimony of its witnesses that, even if accepted as true, does not contradict

15 Plaintiff’s assertions, as discussed more specifically in Plaintiff’s Reply to Chipotle’s Response

16 to Plaintiff’s Separate Statement of Uncontroverted Facts, filed separately herewith.

17 below. Chipotle also relies on its legal arguments relating to “lines of sight”, which are not facts

18 and which, therefore, cannot raise a dispute of fact.

19

II.

20

DEFENDANT’S NARROW READING OF

SECTION 4.33.3 SHOULD BE REJECTED

21

22

Chipotle argues that the language of Section 4.33.3 should be narrowly read to apply just

23 to fixed seating locations, when no such limitation actually exists in the language of the

24 Standard. Instead, the language is more properly interpreted, in keeping with the broad purpose

25 of the ADA and the expansive definition of “Assembly Area”, as follows:

26

1) If fixed seating is provided, then wheelchair locations shall be integral to the

27 seating plan. They shall also have fixed companion seats and be on an accessible aisle.

28

2) If different admission prices are charged, then wheelchair locations shall be

2

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1 provided so as to provide people with physical disabilities a choice of admission prices.

2

3) If lines of sight are provided or necessary, then wheelchair locations shall be

3 provided so as to provide people with physical disabilities comparable lines of sight to those for

4 members of the general public.

5

Clearly the requirement that wheelchair areas be integrated into fixed seating is necessary

6 because the construction is permanent. This element must be incorporated into the original

7 design. Such a requirement is not necessary or even possible in places with no seating because

8 wheelchair users are free to move about and to integrate themselves. If moveable seats are

9 provided, they can be moved to allow wheelchair users to integrate into the “seating area.”

10

Plaintiff’s suggestion of a broad interpretation of 4.33.3 and its application to restaurants

11 is not based solely on the language of Section 5.1, as urged by Chipotle. It is also based upon the

12 fact that Section 4.33 is entitled “Assembly Areas”, which the Department expended effort to

13 specifically define. It should be kept in mind that Section 4.33 is the ONLY Standard which

14 specifically refers to Assembly Areas - therefore, the definition must have special meaning.

15

The definition includes not just spaces for amusement purposes, it also includes places

16 for educational, social and political purposes. These descriptions might include stadiums and

17 theaters (for example, a showing of “An Inconvenient Truth” at a movie theater might be

18 considered an “educational purpose”.) But the definition of Assembly Areas is not limited to

19 places with fixed seating. It includes convention centers and museums, where fixed seating is

20 rarely, if ever, found. If the definition of “Assembly Areas” is to be given any meaning, Section

21 4.33 must be read to apply its requirements (including Sec. 4.33.3) to ALL of the places and

22 spaces that could fall within its definition, including restaurants.

23

More importantly, Section 5.1 and Section 4.33 cross-reference each other! Section 5.1

24 incorporates Sections 4.1 through 4.35. Section 4.33 relates to “Assembly Areas”, which

25 specifically includes restaurants in its definition! It could not be more clear that the drafters of

26 the ADAAG intended to apply Section 4.33.3 to restaurants.

27

Reading Section 4.33.3 as suggested by Chjpotle effectively negates the definition of

28 “Assembly Area”, since

3

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1

III.

2

THE CIOTTI RULING IS MISPLACED

3

With all due respect to plaintiffs’ counsel in Ciotti v. Chipotle Mexican Grill, Inc., Case

4 No. 1:07cv161, Mr. Weintraub did not clearly address the interplay between “Assembly Areas”

5 and Sec. 4.33.3. Judge Leonie’s ruling failed to address these legal issues and, respectfully, is

6 wrong. She also appeared to base her opinion, in part, on the contention that people of short

7 stature could also not see the food viewing counter. This line of thought should be flatly rejected

8 by this Court. A similar argument was raised in Miller v. The California Speedway Corp., 453 F.

9 Supp. 2d 1193, 1204 (C.D. Cal. 2006):

10

One argument raised at the hearing on this matter by defense

counsel cannot pass without comment. Defense counsel's efforts to

11

conflate the position of a wheelchair-bound quadriplegic with, to

use counsel's phrase, a "height-disadvantaged" person such as

12

herself, is not persuasive. Counsel's argument focuses solely on the

height differential between individuals who use wheelchairs for

13

mobility and ambulatory individuals; however, "height-

disadvantaged ambulatory individuals have options that are not

14

available to those who must use wheelchairs. Cf. Independent

Living, 982 F.Supp. at 733 ("[A]mbulatory patrons can move

15

around or angle their bodies to obtain a better view, or stand on

their chairs. Small children may be held aloft by their parents...

16

While some ambulatory spectators occasionally have an obstructed

view, that experience is the rule, rather than the exception, for

17

those who attend Rose Garden events in a wheelchair. It is no

answer to say that some ambulatory spectators may also have

18

obstructed sightlines."). Moreover, the height differential which

counsel references is not nearly as pronounced as that experienced

19

by a person who must sit in a place where other adults--short and

tall alike--may stand to their full height or may maneuver their

20

bodies to gain maximum visual access.

21

It should also be noted that, while Judge Leonie dismissed the plaintiffs’ claims which

22 were based upon Section. 4.33.3 with prejudice, she also allowed the plaintiffs to amend their

23 complaint to state claims under the general anti-discrimination provisions of the ADA.

24

In the event this Court determines that Section 4.33.3 is inapplicable, Plaintiff is still

25 entitled to summary judgment in his favor because the construction of a wall in front of an

26 otherwise accessible counter renders the benefits, advantages and accommodations at that food

27 viewing counter inaccessible to people in wheelchairs.

28

IV.

4

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1

THE “PARADE OF HORRIBLES” ONLY RESULTS

FROM A NARROW READING OF THE ADAAG AND ADA

2

3

Chipotle’s reference to a “parade of horribles” (Opp. Brief, Docket No. 109, 7:16) is an

4 accurate description of the travesty that would result if Section 4.33.3 were narrowly read to

5 exclude those “Assembly Areas” where lines of sight are integral to the goods, services or

6 benefits provided by the accommodation but where fixed seating is not provided: museums,

7 galleries, zoos, amusement parks, etc.

8

A narrow reading of Section 4.33.3 would also vitiate any point of including museums,

9 galleries, zoos, etc. in the definition of “public accommodation”, since the main purpose of these

10 places is to provide things to be seen and viewed by the public! Making the line-of-sight

11 requirement inapplicable to these facilities would render moot any other access obligations. Why

12 provide an accessible path of travel to an exhibit that is blocked by a four foot wall? Why

13 provide accessible bathrooms at the zoo if all of the animals are hidden behind walls or windows

14 that allow only standing patrons to view the animals?

15

While Chipotle argues that it is “not a museum”, that is not the point. Rather, like a

16 museum, like a gallery, Chipotle provides an experience that is intended to be viewed by its

17 customers. It is not happenstance that Chipotle put the food bins on counters close to the

18 ordering line. It is not happenstance that Chipotle included a transparent sneeze guard in its

19 design of the offending wall.

20

To the contrary, Chipotle intentionally advertises that its restaurants are unique because

21 customers get to watch while their food is made. Chipotle intentionally trains its employees to

22 ensure the food appears fresh because simply viewing food can effect a customer’s dining

23 experience. Chipotle even tells its crew to make burritos a certain way so that the customer can

24 see the “burrito being built.”

25

If viewing the food selection and preparation was not important, Chipotle could have

26 constructed a wall six-feet high that would have still provided protection for the food, but which

27 would have excluded everyone from the “Chipotle experience”, not just wheelchair users.

28

If the Court determines, however, that Section 4.33.3 does not apply line-of-sight

5

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1 requirements to “Assembly Areas” other than theaters and stadiums with fixed seating,

2

V.

3

CONCLUSION

4

Because no genuine issue of material fact exists with respect to Defendant's failure to

5 comply with the ADA and/or California disabled access laws, and because either Section 4.33.3

6 of the ADAAG and/or the general anti-discrimination statutes require that Mr. Antoninetti be

7 provided an equal opportunity to participate in the Chipotle experience, which was denied to

8 him, he is entitled to summary judgment in his favor on all Claims.

9 DATED: May 25, 2007

LAW OFFICES OF AMY B. VANDEVELD

10

s/ AMY B. VANDEVELD

11

Attorney for Plaintiff

Email: abvusdc@hotmail.com

12

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14

15

16

17

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25

26

27

28

6

 
 Case 3:05-cv-01660-J -WMC Document 129 Filed 06/14/07 Page 1 of 26

1

2

3

4

5

6

7
UNITED STATES DISTRICT COURT
8
SOUTHERN DISTRICT OF CALIFORNIA
9

10

MAURIZIO ANTONINETTI

) Civil No. 05CV1660-J (WMc)

11

)

Plaintiff,

)

12

) ORDER:

v.

)

13

) (1) GRANTING IN PART AND

CHIPOTLE MEXICAN GRILL, INC., ) DENYING IN PART DEFENDANT’S

14 AND DOES 1 THROUGH 10, inclusive, ) MOTION FOR SUMMARY

) JUDGMENT [DOC. NO. 94];

15

Defendants. )

) (2) GRANTING IN PART AND

16

) DENYING IN PART PLAINTIFF’S

) MOTION FOR SUMMARY

17

) JUDGMENT [DOC. NO. 87]; AND

)

18

) (3) DENYING DEFENDANT’S

) MOTION TO STRIKE [DOC. NO.

19

) 128].

)

20

21

Before the Court are three motions. First, Defendant Chipotle Mexican Grill, Inc.

22 (“Defendant”) has filed a Motion for Summary Judgment. [Doc. No. 94.] Second, Plaintiff

23 Maurizio Antoninetti (“Plaintiff”) has filed a Motion for Summary Judgment. [Doc. No. 87.]

24 Third, Defendant has filed a Motion to Strike portions of Plaintiff’s Opposition to Defendant’s

25 Motion for Summary Judgment. [Doc. No. 128.] The issues presented are decided without oral

26 argument. See S.D. Cal. Civ. R. 7.1.d.1 (2006). For the reasons stated below, the Court: (1)

27 GRANTS IN PART AND DENIES IN PART Defendant’s Motion for Summary Judgment;

28

1

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1 (2) GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion for Summary Judgment;

2 and (3) DENIES Defendant’s Motion to Strike.

3

Background

4

At issue in this action is whether two of Defendant’s restaurants provide full and equal

5 access to customers in wheelchairs. Plaintiff is a paraplegic and uses a wheelchair for mobility.

6 (Maurizio Antoninetti Decl. ¶ 2.) Defendant owns and operates Chipotle Mexican Grill

7 restaurants at 268 N. El Camino Real, Encinitas, California (“Encinitas Restaurant”), and 1504

8 Garnet Ave., San Diego, California (“San Diego Restaurant”). (Compl. ¶ 4.) The Encinitas and

9 San Diego Restaurants opened for first occupancy in 2002. (Def.’s Resp. to Interrogs. No. 7.)

10

Plaintiff has visited Defendant’s restaurants six to eight times. (Antoninetti Decl. ¶ 24.)

11 During his visits to the restaurants, Plaintiff alleges he encountered architectural barriers denying

12 him full and equal access to the services offered therein. (Id. ¶¶ 24-26.) Specifically, Plaintiff

13 alleges he encountered barriers to access as a result of the configuration of the seating, parking,

14 and food-preparation counters at the San Diego and Encinitas Restaurants. (Id.) According to

15 Plaintiff, the curb ramps at both restaurants extended into the disabled parking spaces and their

16 access aisles, making it difficult for him to exit his car.1 (Id. ¶ 26; Pl.’s Mot. for Summ. J. at 16.)

17 As to the seating at both restaurants, Plaintiff asserts that the dining tables did not have sufficient

18 knee clearance space to accommodate his wheelchair.2 (Antoninetti Decl. ¶¶ 25, 26.) The

19

20

21
1Defendant objects to the portion of Mr. Antoninetti’s Declaration stating that “the curb ramp 22 extends into the parking space and access aisle” on the basis that this statement is an improper legal
conclusion. (Objs. to Antoninetti Decl. at 11.) However, the Court finds that a layperson could 23 determine from visual observation whether the ramp extended into the parking space and access aisle.
Accordingly, Mr. Antoninetti’s observation does not constitute an improper legal conclusion. 24
2 Defendant objects to the portions of Mr. Antoninetti’s Declaration stating that “there was 25 insufficient knee clearance” and “None of the tables at the Pacific Beach restaurant had the required
knee clearance” on the basis that these statements are improper legal conclusions. (Objs. to Antoninetti 26 Decl. at 11.) Mr. Antoninetti does not state the dimensions of the restaurant tables in his declaration,
and the declaration is therefore inadmissible for purposes of determining whether the tables violated the 27 ADA Accessibility Guidelines. However, the Court finds that a layperson would be able to determine
from personal experience whether it is difficult to sit at a particular table while using a wheelchair. Mr. 28 Antoninetti’s Declaration is therefore admissible for the limited purpose of supporting his assertion that
he had difficulty sitting at the tables.

2

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1 parking lots and dining tables at both restaurants were later modified to comply with the

2 Americans with Disabilities Act (“ADA”). (See Scott Shippey Dep. 31:5-32:2.3)

3

The parties’ motions for summary judgment and accompanying documents focus on the

4 design of Defendant’s food-preparation counters. Defendant’s restaurants serve burritos, tacos,

5 and other Mexican cuisine. (Matthew Cieslak Dep. Ex. 1 at 1.1-1.4) Customers order food

6 verbally by referring to a large menu board hung above the food-preparation counter. (Kim R.

7 Blackseth Decl. ¶ 18.5) The menu board lists the ingredients that customers may add to their

8 entrees. (Id. Ex. T.) In ordering their entrees, customers move along a service line and select

9 various ingredients from bins. (Shippey Dep. 19:19-20:18.) Defendant’s employees then

10 prepare the entrees in front of customers using the selected ingredients. (Cieslak Dep. Ex. 1 at

11 1.1-1.) As stated in Defendant’s employee manual, “Customers can step up to our serving line

12 and see, select and direct exactly what will go into their burritos.” (Id. Ex. 1 at 1.1-2.)

13

Defendant’s employees prepare the entrees on counters that are approximately 35 inches

14 high and 12 feet long. (Steven Schraibman Decl. ¶ 9.6) A wall separates restaurant customers

15 from the food-preparation counters. (Id.) The wall serves to conceal restaurant equipment from

16 customers and to delineate the food-preparation area from the area in which customers pay for

17 their entrees. (Shippey Dep. 47:2-15, 53:3-54:4.) The wall is 44 inches from the floor and is

18 approximately 4.25 inches wide. (Schraibman Decl. ¶ 9.) A sneeze guard is attached to the top

19 of the wall by a metal bracket that is approximately 2 inches high. (Id.) To watch their food

20 being prepared by Defendant’s employees, customers must look over the top of the wall and the

21 attached metal bracket, which, together, are approximately 46 inches from the floor. (Id. at 10.)

22

23 3 Scott Shippey is the director of design for Defendant and is responsible for maintenance,
24 repairs, and improvements to the San Diego and Encinitas Restaurants. (Shippey Decl. ¶ 1.)

25

4 Matthew Cieslak has worked as a manager at Defendant’s restaurants for several years.

(Cieslak Dep. 8:23-9:24.) 26

5 Kim R. Blackseth is a consultant on disabled access issues whom Defendant has retained as an 27 expert. (Blackseth Decl. ¶ 1.)

28

6 Steven Schraibman is a licensed architect and general contractor whom Plaintiff has retained as

an expert. (Schraibman Decl. ¶ 2.)

3

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1

After customers order their entrees and the employees prepare them, they immediately

2 move down the service line to a transaction station to pay for and pick up their entrees. (Shippey

3 Dep. 20:16-19.) The transaction stations adjoin the food-preparation counters and consist of

4 cash registers mounted on counters that are 34 inches high. (See id. Ex. 25; Blackseth Decl. Ex.

5 S7.) Unlike the food-preparation counters, there is no 44-inch-high wall between customers and

6 the transaction stations. (See Shippey Dep. Ex. 25; Blackseth Decl. Ex. S6.)

7

Plaintiff asserts that when he first visited the Encinitas Restaurant in February 2005, he

8 could not see the ingredients the restaurant offered due to the height of the wall in front of the

9 food-preparation counter. (Antoninetti Decl. ¶¶ 12-13.) Plaintiff states that, unlike standing

10 customers, he could not see his burrito being prepared. (Id.) Plaintiff alleges that Defendant’s

11 employees did not show him any of the ingredients, nor did they describe the ingredients to him.

12 (Id.) Plaintiff states that he ordered his burrito off the menu board but was unable to select from

13 the various ingredients that were available because he did not know what they were, and he

14 could not see them arranged on the food-preparation counter. (Id.)

15

On October 6, 2006, the parties conducted site inspections of the San Diego and Encinitas

16 Restaurants as part of discovery. (Id. ¶ 16.) During the inspections, Defendant’s employees

17 lifted some of the ingredients above the wall using tongs so that Plaintiff could see them. (Id.)

18 Defendant’s employees also showed Plaintiff samples of the ingredients in small plastic cups.

19 (Id.) Plaintiff states that the employees did not show him the ingredients unless he asked to see

20 them, and that he was not given an opportunity to select how much of a particular ingredient he

21 wanted in his burrito. (Id. ¶¶ 17-23.) Plaintiff also states that he was unable to see his burrito

22 being assembled. (Id. ¶ 23.) Plaintiff states that he “felt extremely uncomfortable” during the

23 site inspections because he was disrupting the flow of the food-ordering line while the employ-

24 ees showed him the ingredient samples.7 (Id. ¶ 20.)

25

26

7 Defendant objects to the statement in Mr. Antoninetti’s Declaration that he “felt extremely

uncomfortable because I was acutely aware that I was disrupting the flow of the line” on the basis that 27 the statement calls for speculation. (Objs. to Antoninetti Decl. at 8.) However, Defendant does not

explain why Mr. Antoninetti’s statement would call for speculation. Mr. Antoninetti would be able to 28 determine from personal observation whether he was disrupting the flow of the line. Further, his

statement has some basis in fact given other evidence suggesting that it takes Defendant’s employees

4

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1

On February 23, 2007, Defendant implemented a nationwide “Customers With Disabili-

2 ties” policy. (Ron Sedillo Decl. ¶ 3.8) The policy provides that “[a] customer with a disability

3 (for example, a visual or mobility impairment) may benefit from some alternative means of

4 presenting or describing our food.” (Id. ¶ 4.) The policy sets forth several examples of the ways

5 in which Defendant’s employees can accommodate individuals with disabilities, such as

6 showing customers samples of food in cups, giving customers an opportunity to see or sample

7 the food at a table, or describing the food or food-preparation process to customers. (Id.) The

8 policy notes that considerations of productivity or efficiency “are secondary to ensuring a

9 positive experience for disabled customers.” (Id.)

10

Plaintiff filed a Complaint on August 22, 2005, alleging various causes of action,

11 including violations of the ADA, the California Unruh Civil Rights Act (“Unruh Act”), and the

12 California Disabled Persons Act (“DPA”). [Doc. No. 1.] On April 16, 2007, Defendant filed a

13 motion for summary judgment, contending: (1) Plaintiff’s claims for injunctive relief under the

14 ADA are moot because Defendant has remedied the alleged architectural barriers; (2) Defen-

15 dant’s food-preparation area and transaction station fully comply with accessibility regulations;

16 and (3) the Court should decline jurisdiction over Plaintiff’s state law claims. [See Doc. No. 94.]

17 On April 12, 2007, Plaintiff filed a motion for summary judgment, arguing that (1) the design of

18 Defendant’s restaurants violates the ADA Accessibility Guidelines; and (2) the benefits,

19 advantages, and privileges of Defendant’s restaurants are not available to persons in wheelchairs.

20 [See Doc. No. 87.]

21

Legal Standards

22 I. Summary Judgment

23

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure

24 on “all or any part” of a claim where there is an absence of a genuine issue of material fact and

25 the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex

26

27 longer than usual to serve customers if they are shown samples of the ingredients. (See Josefina Garcia Dep. 62:6-14.)
28
8 Ron Sedillo is the director of training and development for Defendant. (Sedillo Decl. ¶ 1.)

5

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1 Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing

2 substantive law, the fact might affect the outcome of the case. See Anderson v. Liberty Lobby,

3 Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if “the evidence is

4 such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. When

5 making its determination, the Court must view all inferences drawn from the underlying facts in

6 the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v.

7 Zenith Radio Corp., 475 U.S. 574, 587 (1986).

8

The party seeking summary judgment bears the initial burden of establishing the absence

9 of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If the moving party does not

10 bear the burden of proof at trial, it need not produce evidence to negate the non-moving party’s

11 claim, but rather can satisfy the initial burden by demonstrating that the non-moving party failed

12 to establish an essential element of that party’s case. See id. at 322-23.

13

If the moving party meets the initial burden, the nonmoving party must set forth specific

14 facts showing there is a genuine issue for trial. Anderson, 477 U.S. at 250. It is insufficient for

15 the party opposing summary judgment to “rest upon the mere allegations or denials of [his or

16 her] pleading.” Fed. R. Civ. P. 56(e). Rather, the party opposing summary judgment must “by

17 [his or her] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

18 file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S.

19 at 324 (quoting Fed. R. Civ. P. 56). The Court is not obligated “to scour the record in search of a

20 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing

21 Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). “[T]he district court may

22 limit its review to the documents submitted for the purposes of summary judgment and those

23 parts of the record specifically referenced therein.” Carmen v. San Francisco Unified Sch. Dist.,

24 237 F.3d 1026, 1030 (9th Cir. 2001).

25 II. Americans with Disabilities Act

26

Title III of the ADA prohibits discrimination “on the basis of disability in the full and

27 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of

28 any place of public accommodation.” 42 U.S.C. § 12182(a). The ADA definition of “public

6

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1 accommodation” includes restaurants such as Chipotle Mexican Grill. See 42 U.S.C. §

2 12181(7)(B) (“Public accommodation [includes] a restaurant, bar, or other establishment serving

3 food or drink . . . .”). Title III requires that facilities constructed for first occupancy on or after

4 January 26, 1993, be “readily accessible to and usable by individuals with disabilities, except

5 where an entity can demonstrate that it is structurally impracticable.” See 42 U.S.C. §

6 12183(a)(1); see also 28 C.F.R. § 36.401(a)(1).

7

Title III gives the Department of Justice authority to develop regulations implementing

8 the requirements of the ADA. See 42 U.S.C. § 12186(b). The ADA Accessibility Guidelines

9 (“ADAAG”) are codified at 28 C.F.R. Part 36, Appendix A. Failure of newly constructed

10 buildings to abide by the construction guidelines set forth in the ADAAG violates the ADA. See

11 42 U.S.C. § 12183(a)(1). As newly constructed public accommodations, Defendant’s San Diego

12 and Encinitas Restaurants must comply with the specific accessibility requirements set forth in

13 the ADAAG. See 28 C.F.R. §§ 36.401, 36.406. The final part of the ADA’s multi-tiered legal

14 and regulatory scheme is the Technical Assistance Manual (“TAM”), published by the Depart-

15 ment of Justice and providing guidance on the applicability of the ADAAG to Title III facilities.

16

Discussion

17 I. Defendant’s Motion for Summary Judgment

18

Defendant’s motion for summary judgment addresses two basic areas of ADA noncom-

19 pliance alleged by Plaintiff. First, Defendant argues that there is no genuine issue of material

20 fact as to whether its food-preparation counters comply with the ADA. (See Def.’s Mot. for

21 Summ. J. at 9-10.) Second, Defendant argues that Plaintiff’s claims regarding technical

22 violations of the ADAAG are moot because its restaurants either already complied with the

23 ADA, or Defendant modified them to comply with the ADA. (Id. at 6.)

24

A. Defendant’s Food-Preparation Counters

25

Defendant asserts that summary judgment against Plaintiff is appropriate because there is

26 no genuine issue of material fact that its food-preparation counters comply with the ADA.

27 (Def.’s Mot. for Summ. J. at 9.) Defendant asserts that its food-preparation counters are

28 properly characterized as sales or service counters, and the dimensions of the food-preparation

7

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1 counters comply with the ADAAG’s requirements for sales and service counters. (Id. at 10.)

2 Defendant further argues that it has a policy in place to reasonably accommodate customers with

3 disabilities. (Id. at 12.) Finally, Defendant argues that Plaintiff cannot rely on the ADA’s

4 general anti-discrimination provisions because challenges to a public accommodation’s

5 structural design are controlled by the more specific requirements of the ADAAG. (Id. at 16.)

6 In opposition, Plaintiff argues that ADAAG § 4.33.3 requires that Defendant provide disabled

7 and non-disabled customers with comparable lines of sight to its food-preparation counters.

8 (Opp’n to Def.’s Mot. for Summ. J. at 8.) In the alternative, Plaintiff argues that if the Court

9 finds that ADAAG § 4.33.3 does not apply to Defendant’s food-preparation counters, the Court

10 should find that the ADA’s general anti-discrimination provisions require Defendant to modify

11 the food-preparation counters. (Id. at 12.)

12

The Court first examines which ADAAG provisions regulate the food-preparation

13 counters. Plaintiff asserts that ADAAG § 4.33.3, which governs placement of wheelchair

14 locations in assembly areas, applies to the food-preparation counters. (Opp’n to Def.’s Mot. for

15 Summ. J. at 6.) Defendant argues that ADAAG § 4.33.3 applies only to venues such as theaters,

16 and the regulation therefore cannot govern the food-preparation counters at Defendant’s

17 restaurants. (Def.’s Mot. for Summ. J. at 11-12.) Defendant asserts that ADAAG § 7.2, which

18 governs sales and service counters, applies to the food-preparation counters. (Id. at 10.)

19

1. ADAAG § 4.33.3

20

The parties dispute whether ADAAG § 4.33.3, which governs placement of wheelchair

21 locations in assembly areas, applies to Defendant’s food-service counters. The Court first

22 examines the text of ADAAG § 4.33.3 to determine whether it can plausibly be read to encom-

23 pass Defendant’s food-preparation counters. The text of ADAAG § 4.33.3 provides as follows:

24

Placement of Wheelchair Locations. Wheelchair areas shall be an integral part of any

25

fixed seating plan and shall be provided so as to provide people with physical

26

disabilities a choice of admission prices and lines of sight comparable to those for

members of the general public. They shall adjoin an accessible route that also serves

27 as a means of egress in case of emergency. At least one companion fixed seat shall

28

be provided next to each wheelchair seating area. When the seating capacity exceeds

8

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1

300, wheelchair spaces shall be provided in more than one location. Readily

2

removable seats may be installed in wheelchair spaces when the spaces are not

3

required to accommodate wheelchair users.

4 ADAAG § 4.33.3. The plain language of ADAAG § 4.33.3 does not lend itself to application to

5 Defendant’s food-preparation counters. ADAAG § 4.33.3 states that “[w]heelchair areas shall

6 be an integral part of any fixed seating plan and shall be provided so as to provide people with

7 physical disabilities a choice of . . . lines of sight.” ADAAG § 4.33.3 (emphasis added).

8 Defendant’s food service counters are not part of a “fixed seating” plan. Defendant’s customers

9 do not place their orders while seated and instead proceed through a line in order to select

10 ingredients for their entrees. (See Shippey Dep.19:19-20:18.) Defendant’s employees prepare

11 the entrees as customers move through the line. (See Cieslak Dep. Ex. 1 at 1.1-1) ADAAG §

12 4.33.3 repeatedly refers to “seats” and “seating,” indicating that the regulation was not intended

13 to apply to food-service lines. See ADAAG § 4.33.3. Indeed, the Department of Justice’s ADA

14 Title III Technical Assistance Manual (“TAM”), a publication issued to assist individuals in

15 understanding their rights under the ADA, states that public accommodations “must locate

16 seating for individuals who use wheelchairs so that it . . . [provides] lines of sight and choices of

17 admission prices comparable to those offered to the general public.” See Title III TAM § 4.4600

18 (emphasis added). This section of the TAM indicates that ADAAG § 4.33.3’s line-of-sight

19 requirement was intended to apply to fixed seating. Further, virtually all of the case law

20 addressing ADAAG § 4.33.3 examines the accessibility of fixed seating areas in venues such as

21 theaters, arenas, and stadiums. See, e.g. United States v. Hoyts Cinemas Corp., 380 F.3d 558,

22 562 (1st Cir. 2004) (applying ADAAG § 4.33.3 to fixed seating at movie theater); United States

23 v. Cinemark USA, Inc., 348 F.3d 569, 576 (6th Cir. 2003) (same); Oregon Paralyzed Veterans of

24 America v. Regal Cinemas, Inc., 339 F.3d 1126, 1133 (9th Cir. 2003) (same); Lara v. Cinemark

25 USA, Inc., 207 F.3d 783, 786 (5th Cir. 2000) (same); Caruso v. Blockbuster-Sony Music Entm’t

26 Ctr., 193 F.3d 730, 732 (3d Cir. 1999) (applying ADAAG § 4.33.3 to fixed seating at pavilion);

27 Miller v. Cal. Speedway Corp., 453 F. Supp. 2d 1193, 1196 (C.D. Cal. 2006) (applying ADAAG

28 § 4.33.3 to fixed seating at track and stadium complex); United States v. AMC Entm’t, Inc., 232

9

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1 F. Supp. 2d 1092, 1094 (C.D. Cal. 2002) (applying ADAAG § 4.33.3 to fixed seating at movie

2 theater). Because there is no indication that ADAAG § 4.33.3’s line-of-sight requirement

3 governs areas without fixed seating, the Court FINDS that this regulation does not apply to

4 Defendant’s food-preparation counters.

5

2. ADAAG § 7.2

6

As noted above, Defendant’s food-preparation counters adjoin transaction stations, which

7 consist of cash registers mounted on 34-inch-high counters. (See Shippey Dep. Ex. 25;

8 Blackseth Decl. Ex. S7.) The parties dispute whether the food-preparation counters constitute

9 “Sales and Service Counters” as described in ADAAG § 7.2. Defendant argues that its food-

10 preparation area, combined with the adjoining transaction area where customers pay for their

11 entrees at cash registers, constitutes a sales or service counter. (See Def.’s Mot. for Summ. J. at

12 9-10.) Defendant further argues that because the 34-inch-high transaction counters satisfy

13 ADAAG § 7.2’s requirement that a portion of a sales or service counter be 36 inches high or

14 less, the entire food-preparation area complies with ADAAG § 7.2. In opposition, Plaintiff

15 argues that because no goods or services are exchanged at Defendant’s food-preparation

16 counters, these counters cannot be considered sales or service counters, and ADAAG § 7.2 does

17 not apply. (Opp’n to Def.’s Mot. for Summ. J. at 20-21.) Plaintiff asserts that the cashier

18 counter alone can be considered a sales or service counter because it is the only place in

19 Defendant’s restaurants where money is exchanged. (Id. at 21.)

20

Section 7.2 of the ADAAG is titled “Sales and Service Counters, Teller Windows,

21 Information Counters.” ADAAG § 7.2 ADAAG § 7.2(1) applies to counters that have cash

22 registers, and provides in pertinent part:

23

In areas used for transactions where counters have cash registers and are provided for

sales or distribution of goods or services to the public, at least one of each type shall

24

have a portion of the counter which is at least 36 in (915mm) in length with a

maximum height of 36 in (915 mm) above the finish floor. . . . Such counters shall

25

include, but are not limited to, counters in retail stores, and distribution centers.

26 ADAAG § 7.2(1). ADAAG § 7.2(2) applies to counters that do not have cash registers, and

27 provides in pertinent part:

28

In areas used for transactions that may not have a cash register but at which goods or

services are sold or distributed, including, but not limited to, ticketing counters, teller

10

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1

stations, registration counters in transient lodging facilities, information counters, box

office counters and library check-out areas, either: 2

3

(i) a portion of the main counter which is a minimum of 36 in (915 mm) in length

shall be provided with a maximum height of 36 in (915 mm); or

4

(ii) an auxiliary counter with a maximum height of 36 in (915 mm) in close proximity

5

to the main counter shall be provided; or

6 (iii) equivalent facilitation shall be provided (e.g., at a hotel registration counter,

7

equivalent facilitation might consist of: (1) provision of a folding shelf attached to the

main counter on which an individual with a disability can write, and (2) use of the

8

space on the side of the counter or at the concierge desk, for handing materials back

9

and forth).

10 ADAAG § 7.2(2).

11

Sales and service counters in retail establishments and restaurants must comply with the

12 requirements of ADAAG § 7.2. See Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1166

13 (S.D. Cal. 2006) (holding that counter at which ice cream cones were sold violated ADAAG §

14 7.2 because it did not have section of counter that was at least 36 inches in length with a

15 maximum height of 36 inches); Parr v. Waianae L & L, Inc., 2000 WL 687655, at *21 (D.

16 Hawaii May 16, 2000) (holding that counter at which fast food was sold violated ADAAG § 7.2

17 because it did not have section of counter that was at least 36 inches in length with a maximum

18 height of 36 inches); Independent Living Res. v. Or. Arena Corp., 1 F. Supp. 2d 1124, 1137 (D.

19 Or. 1998) (holding that counter at which concessions were sold violated ADAAG § 7.2 because

20 it did not have section of counter that was at least 36 inches in length). Thus, sales and service

21 counters in retail establishments and restaurants must have a section of counter that is at least 36

22 inches in length with a maximum height of 36 inches, or an auxiliary counter in close proximity

23 to the main counter, or equivalent facilitation. See ADAAG § 7.2; Hubbard, 433 F. Supp. 2d at

24 1166; Independent Living Res., 1 F. Supp. 2d at 1137.

25

The Court first examines whether ADAAG § 7.2(1) or ADAAG § 7.2(2) applies to

26 Defendant’s food-preparation counters. ADAAG § 7.2(1) applies to “areas used for transactions

27 where counters have cash registers.” ADAAG § 7.2(1). Although the transaction counters that

28 adjoin the food-preparation counters have cash registers, the food-preparation counters them-

11

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1 selves do not have cash registers. The Court thus FINDS that ADAAG § 7.2(1), on its face,

2 does not apply to Defendant’s food-preparation counters. ADAAG § 7.2(2), in contrast, applies

3 to “areas used for transactions that may not have a cash register.” ADAAG § 7.2(2). The Court

4 has not located any case law directly addressing the applicability of ADAAG § 7.2(2) to

5 establishments that have food-preparation areas similar to those at Defendant’s restaurants, i.e., a

6 single food-preparation counter that adjoins a transaction counter with a cash register. The

7 Court thus looks to the plain language of ADAAG § 7.2(2) to determine whether this regulation

8 governs Defendant’s food-preparation counters. See Molski v. M.J. Cable, Inc., 481 F.3d 724,

9 732 (9th Cir. 2007) (“Statutory interpretation begins with the plain meaning of the statute’s

10 language.”). If the language of ADAAG § 7.2(2) is clear and consistent with the ADAAG’s

11 overall scheme, “the plain language of the statute is conclusive and the judicial inquiry is at an

12 end.” See id.

13

As previously noted, ADAAG § 7.2(2) applies to “areas used for transactions.” See

14 ADAAG § 7.2(2). The Court must first determine whether the food-preparation counters

15 constitute “areas used for transactions.” Plaintiff argues that the food-preparation counters do

16 not constitute areas used for transactions because no money is exchanged at the food-preparation

17 counters. The ADAAG does not define “transaction.” Black’s Law Dictionary provides several

18 definitions of the word, including “The act or an instance of conducting business or other

19 dealings”; “Something performed or carried out; a business agreement or exchange”; and “Any

20 activity involving two or more persons.” Black’s Law Dictionary 1503 (7th ed. 1999). Under

21 any one of these three definitions, the activities carried out at Defendant’s food-preparation

22 counters constitute transactions. A customer’s placing of an order constitutes “conducting

23 business.” An employee’s preparation of a customer’s entree constitutes “[s]omething per-

24 formed or carried out” as well as an “activity involving two or more persons.” The Court thus

25 FINDS that Defendant’s food-preparation counters constitute “areas used for transactions.”

26

Plaintiff also challenges the applicability of ADAAG § 7.2 to Defendant’s food-prepara-

27 tion counters on the grounds that no goods or services are exchanged at the food-preparation

28 counters. (Opp’n to Def.’s Mot. to Dismiss at 20.) Plaintiff asserts that no goods or services are

12

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1 exchanged at the food-preparation counters because customers receive their entrees at the

2 transaction stations after paying for them. (See id.)

3

ADAAG § 7.2(2) applies to “areas used for transactions at which goods or services are

4 sold or distributed.” ADAAG § 7.2(2) (emphasis added). The ADAAG does not define goods or

5 services. Black’s Law Dictionary defines “service” as “[a]n intangible commodity in the form of

6 human effort, such as labor, skill, or advice.” Black’s Law Dictionary 1372 (7th ed. 1999). The

7 acts performed by Defendant’s employees at the food-preparation counter, including taking

8 customers’ orders and preparing their entrees, readily fall within this definition of “service.”

9 The “labor” and “skill” Defendant’s employees exert in taking customers’ orders and preparing

10 their entrees constitutes “an intangible commodity in the form of human effort.” See id. There

11 is no indication that ADAAG § 7.2(2) applies only to counters at which tangible goods or

12 commodities are exchanged. In fact, the regulation cites as examples several areas in which

13 intangible commodities are exchanged, such as registration and information counters. See

14 ADAAG § 7.2(2). Accordingly, the Court concludes that the efforts of Defendant’s employees

15 in taking customers’ orders and preparing their entrees constitute “services.” In sum, because

16 the food-preparation counters are “areas used for transactions that may not have a cash register

17 but at which goods or services are sold or distributed,” the Court FINDS that ADAAG § 7.2(2)

18 governs Defendant’s food-preparation counters.

19

The Court next examines whether Defendant’s food-service counters comply with the

20 requirements of ADAAG § 7.2(2). The regulation provides three options for compliance. First,

21 a public accommodation with a sales or service counter can satisfy the regulation by providing

22 “a portion of the main counter” which is a minimum of 36 inches long and a maximum of 36

23 inches high. See ADAAG § 7.2(2)(i). Second, a public accommodation can provide an

24 “auxiliary counter” in close proximity to the “main counter” that is a maximum of 36 inches

25 high. See ADAAG § 7.2(2)(ii). Third, a public accommodation can provide “equivalent

26 facilitation.” See ADAAG § 7.2(2)(iii). The Court analyzes the design of Defendant’s food-

27 preparation counters to determine whether they meet any of the three options for compliance.

28

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1

a. ADAAG § 7.2(2)(i)

2

The first option for compliance is for Defendant to provide “a portion of the main

3 counter” that is a minimum of 36 inches long and a maximum of 36 inches high. See ADAAG §

4 7.2(2)(i). The Court initially notes that the dimensions of food-preparation counter, standing

5 alone, exceed the maximum height requirement of ADAAG 7.2(2)(i). As previously noted, a

6 44-inch-high wall is attached to the food-preparation counter and separates restaurant customers

7 from the food-preparation area. (See Schraibman Decl. ¶ 9.) The wall serves to conceal

8 restaurant equipment from customers and to delineate the food-preparation area from the

9 transaction counters where customers pay for their entrees. (See Shippey Dep. 47:2-15, 53:3-

10 54:4.) Because the wall attached to the food-preparation counter is 44 inches high, it exceeds

11 ADAAG 7.2(2)(i)’s maximum height requirement of 36 inches. See ADAAG 7.2(2)(i).

12 However, the food-preparation counter can still comply with ADAAG 7.2(2)(i) if a portion of

13 the counter is less than 36 inches high. See ADAAG 7.2(2)(i).

14

Defendant argues that the 34-inch-high transaction counters on which its cash registers

15 are mounted satisfy the requirement that it provide “a portion of” the food-preparation counter

16 that is no more than 36 inches high. (See Def.’s Mot. for Summ. J. at 11.) The Court notes that

17 the transaction counters, unlike the food-preparation counters, are not obstructed by a 44-inch-

18 high wall. Further, at 34 inches high, the transaction counters do not exceed the ADAAG’s

19 maximum height requirement of 36 inches. (See Shippey Dep. Ex. 25; Blackseth Decl. Ex. S7.)

20 However, the Court declines to characterize the transaction counter as “a portion of” the food-

21 preparation counter where customers select the ingredients for their entrees and have them

22 assembled. See ADAAG § 7.2(2)(i). The food-preparation counter and the transaction counter

23 serve different functions. Customers select ingredients for their entrees and watch them being

24 prepared at the food-preparation counter, and they pay for their entrees and pick them up at the

25 transaction counter. (See Shippey Dep. 19:19-20:19.) Customers cannot select the ingredients

26 for their entrees or watch them being prepared at the transaction counter, and, vice versa, they

27 cannot pay for their entrees at the food-preparation counter. (See id. 20:20-21:8.) In other

28 words, the services obtained at the food-preparation counter are not offered at the transaction

14

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1 counter. Customers in wheelchairs therefore cannot receive full and equal access to Defendant’s

2 restaurants by utilizing the transaction counter alone. ADAAG § 7.2(2)(i) does not state, on its

3 face, that a public accommodation is required to provide full and equal access to its services at

4 both a main counter and the wheelchair-accessible portion of the counter. However, it would be

5 absurd for the Court to conclude that the requirements of ADAAG § 7.2(2)(i) are satisfied where

6 a public accommodation provides a wheelchair-accessible counter, but does not provide all of its

7 essential services at this counter. Well-accepted rules of statutory construction provide that

8 “statutory interpretations which would produce absurd results are to be avoided.” Ariz. State Bd.

9 for Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006) (citing Ma v.

10 Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004)). An interpretation of ADAAG § 7.2(2)(i) permit-

11 ting Defendant to provide wheelchair-accessible counters for only part of its essential services

12 would lead to absurd results. For example, if the transaction counters had 52-inch-high walls

13 constructed in front of them, and were adjoined by 34-inch-high food-preparation counters, the

14 food-preparation counters would arguably constitute a “portion of” the transaction counters.

15 However, it would be difficult for some customers in wheelchairs to reach over the 52-inch-high

16 wall in front of the transaction counter to pay for their meals and receive their entrees.

17 See ADAAG § 4.2.5 (stating that if the floor space in a public accommodation only allows a

18 forward approach to an object, the maximum high forward reach allowed is 48 inches);

19 Blackseth Decl. Exs. Q2, Q3 (stating that the “typical eye height” of an adult wheelchair user is

20 43-51 inches high).

21

In the instant case, the Court has already noted that the dimensions of the food-prepara-

22 tion counters, standing alone, fail to satisfy ADAAG § 7.2(2) due to the 44-inch-high wall

23 constructed in front of the food-preparation counters. Defendant asserts that the food-prepara-

24 tion counters still comply with the ADA because they adjoin 34-inch-high transaction counters,

25 which do not exceed ADAAG § 7.2(2)’s maximum height requirement. (See Def.’s Mot. for

26 Summ. J. at 11.) However, the fact remains that the services offered at the food-preparation

27 counters, namely, ordering entrees and selecting ingredients, are not offered at the transaction

28 counters. Customers in wheelchairs therefore cannot obtain full and equal access to Defendant’s

15

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1 restaurants by using the transaction counters alone. As a result, the Court FINDS that Defen-

2 dant’s transaction counters cannot constitute a “portion of” the food-preparation counters for

3 purposes of ADAAG § 7.2(2)(i).

4

b. ADAAG § 7.2(2)(ii)

5

The second option for compliance is for Defendant to provide “an auxiliary counter with

6 a maximum height of 36 in (915 mm) in close proximity to the main counter.” ADAAG §

7 7.2(2)(ii). The Court notes that the transaction counters adjoin the food-preparation counters,

8 and therefore are in “close proximity” to the food-preparation counters. However, as already

9 noted in Section I.A.2.a of this Order, the transaction counters alone do not provide customers in

10 wheelchairs with full and equal access to Defendant’s restaurants. For the reasons stated in

11 Section I.A.2.a of this Order, the Court FINDS that because the essential services obtained at the

12 food-preparation counters are not offered at the transaction counters, Defendant’s transaction

13 counters do not constitute “auxiliary counters” for purposes of ADAAG 7.2(2)(ii).

14

c. ADAAG § 7.2(2)(iii)

15

The third option for compliance is for Defendant to provide “equivalent facilitation.”

16 See ADAAG 7.2(2)(iii). The ADAAG authorizes “the use of other designs and technologies . . .

17 where the alternative designs and technologies used will provide substantially equivalent or

18 greater access to and usability of the facility.” See ADAAG § 2.2. The equivalent facilitation

19 provision acknowledges “that the federal government does not enjoy a monopoly on good ideas,

20 and that there may be more than one means to accomplish a particular objective.” Independent

21 Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 727 (D. Or. 1997).

22

Defendants assert that their Customers With Disabilities Policy (“Policy”) accommodates

23 customers with disabilities and provides them with “a dining experience comparable to that of

24 able-bodied customers.” (Def.’s Mot. for Summ. J. at 15.) The Policy provides that restaurant

25 staff “will offer a suitable accommodation based on the individual circumstances” of an

26 individual with a disability. (Sedillo Decl. ¶ 4.) The Policy provides several examples of

27 accommodations, such as placing samples of food in cups to be handed or shown to the

28 customer; permitting customers to see or sample food at a table; or describing the food or food-

16

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1 preparation process to the customer. (Id.) The Policy further states that considerations of

2 productivity or efficiency “are secondary to ensuring a positive experience for disabled custom-

3 ers.” (Id.) In opposition, Plaintiff argues that the Policy fails to provide full and equal access to

4 the goods and services offered at Defendant’s restaurants. (Opp’n to Def.’s Mot. for Summ. J. at

5 22.) Plaintiff asserts that placing food in sample cups or showing customers spoonfuls of food

6 does not provide customers in wheelchairs the same opportunity as standing customers to see the

7 full array of ingredients offered by Defendant’s restaurants. (See Antoninetti Decl. ¶¶ 19, 21.)

8 Plaintiff also alleges that sample cups cannot enable customers in wheelchairs to determine the

9 freshness or quality of food. (See Josefina Garcia9 Dep. 72:8-23.) Plaintiff also asserts that

10 placing the ingredients at an adjacent table or spooning them into sample cups deprives

11 individuals in wheelchairs the fast service that is customarily provided to standing customers at

12 Defendant’s restaurants. (See id. 62:6-14; Antoninetti Decl. ¶ 20).

13

To prevail on its motion for summary judgment, Defendant must show that there is no

14 genuine issue of material fact as to whether its Policy provides equivalent facilitation. Specifi-

15 cally, Defendant must demonstrate that there is no genuine issue of material fact that the Policy

16 “provide[s] substantially equivalent or greater access to and usability of the facility.” See

17 ADAAG § 2.2. A reasonable jury might accept Defendant’s statements that handing sample

18 cups to customers or displaying ingredients on an adjacent table provides equivalent access to

19 Defendant’s restaurants. A jury might find, for example, that because customers in wheelchairs

20 are still able to place orders and purchase entrees regardless of the wall in front of the food-

21 preparation counter, Defendant’s Policy provides equivalent facilitation. On the other hand, a

22 reasonable jury might accept Plaintiff’s statements that placing samples in cups or displaying

23 them on an adjacent table does not provide equivalent access. A jury might find that the food

24 samples do not enable customers in wheelchairs to judge the freshness of the food or receive fast

25 service to the same degree as standing customers. The Court thus FINDS that this fact-intensive

26

27

28

9 Josefina Garcia began working for Defendant in July 2004 and worked as a general manager at

Defendant’s Encinitas Restaurant. (Garcia Dep. 8:15-24, 9:19-23, 11:13-17.)

17

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1 issue presents material questions of fact and renders summary judgment on the question of

2 equivalent facilitation inappropriate.

3

3. The ADA’s General Anti-Discrimination Provisions

4

The parties dispute whether the ADA’s general anti-discrimination provisions should

5 apply to Defendant’s food-preparation counters. Defendant argues that Plaintiff cannot rely on

6 the general anti-discrimination provisions because the ADAAG specifically addresses the design

7 standards for counters in public accommodations. (See Mot. for Summ. J. at 17.) In opposition,

8 Plaintiff argues that because there is no specific ADAAG provision addressing Defendant’s

9 counters, the general anti-discrimination provisions should control. (See Opp’n to Def.’s Mot.

10 for Summ. J. at 12.)

11

A general regulatory or statutory provision typically cannot be used to trump a specific

12 provision. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524-26 (1989); Crawford

13 Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987). “Where there is no clear

14 intention otherwise, a specific statute will not be controlled or nullified by a general one,

15 regardless of the priority of enactment.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153

16 (1976) (quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974)). In the ADA context, courts

17 have held that where there is a specific regulation that governs a particular design issue, that

18 specific provision is determinative as to whether there is a violation of the more general

19 regulatory and statutory provisions. See United States v. Nat’l Amusements, Inc., 180 F. Supp.

20 2d 251, 258 (D. Mass. 2001); Independent Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 746

21 (D. Or. 1997).

22

As discussed in Section I.A.2 of this Order, Defendant’s food-preparation counters

23 constitute “areas used for transactions that may not have a cash register but at which goods or

24 services are sold or distributed.” See ADAAG § 7.2(2). This Court therefore found that the

25 food-preparation counters are governed by the design standards of ADAAG § 7.2(2). Because

26 there is a specific design provision governing Defendant’s food-preparation counters, that

27 provision controls over the ADA’s general anti-discrimination provisions. See Green, 490 U.S.

28

18

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1 at 524-26. The Court therefore declines to apply the ADA’s general anti-discrimination

2 provisions to Defendant’s food-preparation counters.

3

4. California Building Code

4

The parties dispute whether the issuance of certificates of occupancy to Defendant’s San

5 Diego and Encinitas Restaurants constitutes prima facie evidence that the restaurants complied

6 with all applicable accessibility regulations. (See Def.’s Mot. for Summ. J. at 19-22; Opp’n to

7 Def.’s Mot. for Summ. J. at 24.) Compliance with a state building code creates a rebuttable

8 presumption of compliance with the ADA. See United States v. AMC Entm’t, Inc., 245 F. Supp.

9 2d 1094, 1101 (C.D. Cal. 2003). This Court concludes that because Plaintiff has demonstrated

10 that there is a genuine issue of material fact as to whether the food-preparation counters comply

11 with the ADA, Plaintiff has sufficiently rebutted this presumption. Accordingly, the Court

12 FINDS that the issuance of the certificates of occupancy, standing alone, does not constitute

13 sufficient evidence for granting Defendant’s Motion for Summary Judgment.

14

5. California Health and Safety Code

15

Defendant asserts that summary judgment is appropriate because the height of the wall

16 constructed in front of the food-preparation counter is required by law to ensure sanitary

17 conditions for Defendant’s customers. (Def.’s Mot. for Summ. J. at 23.) Defendant cites

18 California Health and Safety Code § 114080, which provides that unpackaged food must be

19 displayed “in clean, sanitary, and covered or otherwise protected containers.” See Cal. Health &

20 Safety Code § 114080. However, Defendant has failed to allege facts demonstrating that the

21 wall constructed in front of the food-preparation counter is the only mechanism available for

22 complying with the state health code. Defendant has provided no declarations or deposition

23 testimony supporting its assertion that the height of the wall is required by law. Further, the

24 plain language of the statute does not indicate that the wall is mandated. The statute states that

25 unpackaged food must be displayed in “covered or otherwise protected containers.” See Cal.

26 Health & Safety Code § 114080. The statute does not dictate what constitutes covered or

27 protected containers, and the prevalence of cafeteria and buffet-style restaurants in this state

28 indicates that there are several ways in which restaurants can comply with this requirement.

19

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1 Accordingly, the Court FINDS that Defendant has failed to demonstrate that the wall is

2 mandated by California Health and Safety Code § 114080.

3

After reviewing the ADAAG, the ADA’s general anti-discrimination provisions, the state

4 building code, and the state health code, the Court FINDS that there are genuine issues of

5 material fact as to whether Defendant’s food-preparation counters comply with state and federal

6 accessibility laws. Accordingly, the Court DENIES Defendant’s Motion for Summary

7 Judgment as to Plaintiff’s ADA and state law claims regarding the food-preparation counters.

8

B. The Parking at the San Diego Restaurant

9

Defendant asserts that summary judgment against Plaintiff is appropriate because there is

10 no genuine issue of material fact that the curb ramp at the parking lot at the San Diego Restau-

11 rant complies with the ADA. (Def.’s Mot. for Summ. J. at 7.) Specifically, Defendant asserts

12 that the curb ramp does not interfere with the access aisle.10 (Shippey Decl. ¶ 6.) Plaintiff

13 concedes that the parking lot at the San Diego restaurant currently complies with the ADA,

14 rendering his ADA claims as to the parking lot moot. (Opp’n to Def.’s Mot. for Summ. J. at 18.)

15 However, Plaintiff asserts that his state law claims for damages relative to the parking lot remain

16 a live controversy. (Id.)

17

ADAAG § 4.6.3 provides that “[p]arking spaces and access aisles shall be level with

18 surface slopes not exceeding 1:50 (2%) in all directions.” ADAAG § 4.6.3. If the curb ramp at

19 the San Diego Restaurant extended into the access aisle, as Plaintiff asserts, this would constitute

20 a violation of ADAAG § 4.6.3 because the access aisle would not be level. Plaintiff asserts that

21 he experienced problems with the parking at the San Diego restaurant because the curb ramp

22 extended into the disabled parking space and access aisle, causing his car to tilt. (Antoninetti

23 Decl. ¶ 26.) Plaintiff also provides deposition testimony stating that the curb ramp previously

24 extended into the access aisle. (Blackseth Dep. 88:17-89:8.) Defendant does not dispute

25 Plaintiff’s assertion that the curb ramp previously extended into the access aisle, and instead

26 contends that Plaintiff’s ADA claims are moot because Defendant has modified the curb ramp.

27
10 The ADAAG defines “access aisle” as “[a]n accessible pedestrian space between elements, 28 such as parking spaces, seating, and desks, that provides clearances appropriate for use of the elements.”
ADAAG § 3.5.

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1 (See Def.’s Mot. for Summ. J. at 7.) Because Defendant has cured the defect, and because only

2 injunctive relief is available to Plaintiff under the ADA, the Court GRANTS Defendant’s

3 Motion for Summary Judgment as to Plaintiff’s ADA claims regarding the parking at the San

4 Diego Restaurant. However, Plaintiff’s state law claims are not moot because damages are still

5 available. See Wilson v. Pier 1 Imports (US), Inc., 439 F. Supp. 2d 1054, 1069 (E.D. Cal. 2006).

6 The Court thus DENIES Defendant’s Motion for Summary Judgment as to Plaintiff’s state law

7 claims regarding the parking at the San Diego Restaurant.

8

C. The Parking at the Encinitas Restaurant

9

Defendant asserts that summary judgment against Plaintiff is appropriate because there is

10 no genuine issue of material fact that the curb ramp at the parking lot at the Encinitas Restaurant

11 complies with the ADA. (See Def.’s Mot. for Summ. J. at 7.) In support of this assertion,

12 Defendant offers the declaration of its director of design, which states that the curb ramp does

13 not interfere with the access aisle at the Encinitas Restaurant. (See Shippey Decl. ¶ 8.) Plaintiff

14 concedes that the parking lot at the Encinitas restaurant currently complies with the ADA,

15 rendering his ADA claims as to the parking lot moot. (Opp’n to Def.’s Mot. for Summ. J. at 18.)

16 However, Plaintiff asserts that his state law claims for damages relative to the parking lot remain

17 a live controversy. (Id.)

18

As noted above, the extension of a curb ramp into an access aisle constitutes a violation

19 of ADAAG § 4.6.3. Plaintiff has set forth facts demonstrating that the curb ramp at the

20 Encinitas restaurant previously extended into the access aisle. (See Blackseth Dep. 89:12-17.)

21 Defendant does not dispute Plaintiff’s assertion that the curb ramp previously extended into the

22 access aisle, and instead contends that Plaintiff’s ADA claims are moot because Defendant has

23 modified the curb ramp. (See Def.’s Mot. for Summ. J. at 7.) Because Defendant has cured the

24 defect, and because only injunctive relief is available to Plaintiff under the ADA, the Court

25 GRANTS Defendant’s Motion for Summary Judgment as to Plaintiff’s ADA claims regarding

26 the parking at the Encinitas Restaurant. However, Plaintiff’s state law claims are not moot

27 because damages are still available. The Court thus DENIES Defendant’s Motion for Summary

28 Judgment as to Plaintiff’s state law claims regarding the parking at the Encinitas Restaurant.

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1

D. The Entrances to the San Diego Restaurant

2

Defendant asserts that summary judgment against Plaintiff is appropriate because there is

3 no genuine issue of material fact that the signs posted at the entrances to its San Diego Restau-

4 rant comply with the ADA. (See Def.’s Mot. for Summ. J. at 7.) In support of this assertion,

5 Defendant offers the declaration of its director of design, which states that International Symbol

6 of Accessibility signs are posted at all entrances to the San Diego Restaurant. (See Shippey

7 Decl. ¶ 8.) Although Plaintiff’s Complaint alleges that Defendant’s restaurants have “inaccessi-

8 ble entrances,” Plaintiff is required to go beyond his pleadings and designate specific facts

9 showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322

10 (1986). Other than the allegations in the Complaint, Plaintiff has failed to set forth any facts

11 establishing that the entrances are inaccessible. Finding no genuine issue of material fact, the

12 Court GRANTS Defendant’s Motion for Summary Judgment as to Plaintiff’s ADA and state

13 law claims regarding the accessibility of the entrances to the San Diego Restaurant.

14

E. The Men’s Restrooms at the San Diego and Encinitas Restaurants

15

Defendant asserts that summary judgment against Plaintiff is appropriate because there is

16 no genuine issue of material fact that the men’s restrooms at its San Diego and Encinitas

17 Restaurants comply with the ADA. (Def.’s Mot. for Summ. J. at 7.) Plaintiff concedes that

18 Defendant has modified the restrooms to comply with the law. (Opp’n to Def.’s Mot. for Summ.

19 J. at 18.) Plaintiff also states that he does not seek damages in relation to the restroom barriers.

20 (Id. at 18 n.4.) Because Plaintiff seeks only injunctive relief for the restroom violations, and

21 because Defendant has remedied these violations, Plaintiff’s claims relating to the restrooms are

22 moot. The Court thus GRANTS Defendant’s Motion for Summary Judgment as to Plaintiff’s

23 ADA and state law claims regarding the restrooms at the San Diego and Encinitas Restaurants.

24

In sum, the Court DENIES Defendant’s Motion for Summary Judgment as to Plaintiff’s

25 ADA and state law claims regarding the food-preparation counters. The Court also DENIES

26 Defendant’s Motion for Summary Judgment as to Plaintiff’s state law claims regarding the

27 parking at the San Diego and Encinitas Restaurants. The Court GRANTS Defendant’s Motion

28 for Summary Judgment as to Plaintiff’s ADA claims regarding the parking at the San Diego and

22

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1 Encinitas Restaurants. The Court also GRANTS Defendant’s Motion for Summary Judgment as

2 to Plaintiff’s claims relating to the entrances at the San Diego Restaurant and the bathrooms at

3 the San Diego and Encinitas Restaurants.

4 II. Plaintiff’s Motion for Summary Judgment

5

Plaintiff’s Motion for Summary Judgment asserts that he is entitled to summary adjudica-

6 tion regarding two basic areas of ADA noncompliance. First, Plaintiff argues that there is no

7 genuine issue of material fact that Defendant’s food-preparation counters violate the ADA. (See

8 Pl.’s Mot. for Summ. J. at 17.) Second, Plaintiff alleges that there is no genuine issue of material

9 fact that Defendant’s restaurants committed technical violations of the ADAAG. (Id.)

10

A. Defendant’s Food-Preparation Counters

11

As noted in Section I.A.2.c of this Order, Defendant’s food-preparation counters are

12 governed by ADAAG § 7.2, and there is a genuine issue of material fact as to whether Defen-

13 dant’s Customers with Disabilities Policy provides equivalent facilitation to customers in

14 wheelchairs. Accordingly, the Court DENIES Plaintiff’s Motion for Summary Judgment as to

15 Defendant’s food-preparation counters.

16

B. The Parking at the San Diego Restaurant

17

Plaintiff seeks summary judgment on his claim that the parking at the San Diego

18 Restaurant violated the ADA. (Pl.’s Mot. for Summ. J. at 16.) As noted above, Plaintiff

19 concedes that the parking at the San Diego restaurant currently complies with the ADA,

20 rendering his ADA claims for injunctive relief moot. (Opp’n to Def.’s Mot. for Summ. J. at 18.)

21 The Court thus DENIES Plaintiff’s Motion for Summary Judgment as to his ADA claims

22 regarding the parking at the San Diego Restaurant. However, Plaintiff’s state law claims for

23 damages relative to the parking lot remain a live controversy. As discussed above, Plaintiff has

24 set forth facts establishing that the parking at Defendant’s San Diego Restaurant violated the

25 ADAAG because the curb ramp extended into the access aisle. (See Antoninetti Decl. ¶ 26;

26 Blackseth Dep. 88:17-89:8.) Defendant has set forth no facts disputing that the parking at the

27 San Diego Restaurant previously violated the ADAAG.

28

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1

A violation of the ADAAG also constitutes a violation of the California Unruh Civil

2 Rights Act (“Unruh Act”) and the California Disabled Persons Act (“DPA”). See Cal. Civ. Code

3 §§ 51, 54.1. Because it is undisputed that the parking at the San Diego Restaurant previously

4 violated the ADAAG and, therefore, the Unruh Act and the DPA, the Court GRANTS Plain-

5 tiff’s Motion for Summary Judgment as to his state law claims relating to the parking at the San

6 Diego Restaurant.

7

C. The Parking at the Encinitas Restaurant

8

Plaintiff seeks summary judgment on his claim that the parking at the Encinitas Restau-

9 rant violated the ADA. (Pl.’s Mot. for Summ. J. at 16.) As noted above, Plaintiff concedes that

10 the parking lot at the Encinitas Restaurant currently complies with the ADA, rendering his ADA

11 claims for injunctive relief moot. (Opp’n to Def.’s Mot. for Summ. J. at 18.) The Court thus

12 DENIES Plaintiff’s Motion for Summary Judgment as to his ADA claims regarding the parking

13 at the Encinitas Restaurant. However, Plaintiff’s state law claims for damages relative to the

14 parking lot remain a live controversy. As discussed above, Plaintiff has set forth facts establish-

15 ing that the parking at Defendant’s Encinitas Restaurant violated the ADAAG because the curb

16 ramp extended into the access aisle. (See Blackseth Dep. 89:12-17.) Defendant has set forth no

17 facts disputing that the parking at the Encinitas Restaurant previously violated the ADAAG.

18

A violation of the ADAAG also constitutes a violation of the Unruh Act and the DPA.

19 See Cal. Civ. Code §§ 51(f), 54.1(d). Because it is undisputed that the parking lot at the

20 Encinitas Restaurant previously violated the ADAAG and, therefore, the Unruh Act and the

21 DPA, the Court GRANTS Plaintiff’s Motion for Summary Judgment as to his state law claims

22 relating to the parking at the Encinitas Restaurant.

23

D. The Tables at the San Diego and Encinitas Restaurants

24

Plaintiff seeks summary judgment on his claim that the tables at the San Diego and

25 Encinitas Restaurants violated the ADA. (Pl.’s Mot. for Summ. J. at 16.) However, Plaintiff’s

26 claims regarding the tables at the San Diego and Encinitas Restaurants were never included in

27 the Complaint or any timely amendment to the Complaint. Therefore, these claims are not part

28 of this lawsuit and will not be addressed further. See Gospel Missions of Am. v. City of Los

24

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1 Angeles, 419 F.3d 1042, 1052 (9th Cir. 2005) (declining to consider claims not included in the

2 complaint). Accordingly, the Court DENIES Plaintiff’s Motion for Summary Judgment as to

3 his claims relating to the tables at the San Diego and Encinitas Restaurants.

4

In sum, the Court DENIES Plaintiff’s Motion for Summary Judgment as to his claims

5 relating to the tables and the food-preparation counters at the San Diego and Encinitas Restau-

6 rants. The Court also DENIES Plaintiff’s Motion for Summary Judgment as to his ADA claims

7 relating to the parking at the San Diego and Encinitas Restaurants. The Court GRANTS

8 Plaintiff’s Motion for Summary Judgment as to his state law claims relating to the parking at the

9 San Diego and Encinitas Restaurants.

10 III. Defendant’s Motion to Strike

11

Defendant moves to strike footnote 1 of Plaintiff’s Opposition to Defendant’s Motion for

12 Summary Judgment, arguing that the footnote disparages the ethics, morals, integrity, and

13 behavior of Defendant and its employees. (Mot. to Strike at 1-2.) The footnote compares

14 Defendant’s policies to those of a hypothetical discriminatory bus company that requires female

15 passengers to sit in the back of its buses. (Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 2 n.1.) The

16 Court, in formulating its decision, has not relied on, been influenced by, or made reference to

17 this footnote. Defendant’s Motion to Strike is therefore DENIED.

18

Conclusion

19

The Court: (1) GRANTS IN PART AND DENIES IN PART Defendant’s Motion for

20 Summary Judgment; (2) GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion for

21 Summary Judgment; (3) DENIES Defendant’s Motion to Strike.

22 //

23 //

24 //

25 //

26 //

27 //

28 //

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1

The Court reserves judgment on the award of damages. Since Plaintiff’s claims regarding

2 the food-preparation counters have yet to be resolved, it appears premature for the Court to

3 award damages. Once all claims are resolved, Plaintiff may move for an award of damages.

4

IT IS SO ORDERED.

5 DATED: June 14, 2007

6

HON. NAPOLEON A. JONES, JR.

7

United States District Judge

8 cc: Magistrate Judge McCurine All Parties
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1 GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791)
2 E-Mail: HurleyG@gtlaw.com JEANNE U. VU (SBN 232950)
3 E-Mail: VuJ@gtlaw.com
3161 Michelson Drive, Suite 1000 4 Irvine, CA 92612
Telephone: 949-732-6500 5 Facsimile: 949-732-6501

6 GREENBERG TRAURIG, LLP
JOHN F. SCALIA (SBN 154560) 7 E-Mail: ScaliaJ@gtlaw.com
MATTHEW H. SORENSEN (Pro Hac Vice) 8 E-Mail: SorensenM@gtlaw.com
1750 Tysons Blvd., Suite 1200 9 McLean, VA 22102
Telephone: 703-749-1380 10 Facsimile: 703-714-8380

11 Attorneys for Defendant CHIPOTLE MEXICAN GRILL, INC.
12

13

UNITED STATES DISTRICT COURT

14

SOUTHERN DISTRICT OF CALIFORNIA

15

16 MAURIZIO ANTONINETTI,

17

Plaintiff,

18 vs.

19 CHIPOTLE MEXICAN GRILL, INC.,

20

Defendant.

21

22

CASE NO.: 05-CV-1660 J (WMc)
Related to & Consolidated for Discovery With 06-CV-2671 J (WMc)
DEFENDANT CHIPOTLE MEXICAN GRILL, INC.’S TRIAL BRIEF
Trial Date: November 27, 2007 Time: 8:00 a.m. Before: Hon. Napoleon A. Jones, Jr.

23

24

25

26

27

28

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1 Pursuant to the Court’s September 21, 2007 Order, Defendant Chipotle Mexican Grill, Inc.

2 (“Chipotle”), hereby submits its Trial Brief in the above captioned matter.

3 I.
4

STATEMENT OF THE CASE This lawsuit arises under Title III of the Americans With Disabilities Act (“ADA”) and the

5 California Disabled Persons Act (“CDPA”).1 Plaintiff Maurizio Antoninetti (“Plaintiff”) claims that he

6 was denied full and equal access to two Chipotle-owned restaurants, one located at 268 N. El Camino

7 Real in Encinitas (the “Encinitas Restaurant”) and the other located at 1504 Garnet Avenue in San

8 Diego (the “Pacific Beach Restaurant”) (collectively the “Restaurants”). In particular, Plaintiff alleges

9 that the 44 inch high wall in front of the Restaurants’ food preparation counters at the Restaurants

10 obstruct his view of the preparation counters and thereby deny him the right to see the food ingredients

11 and customize his food order. (Plaintiff also has claimed that the men’s restrooms, seating areas and

12 parking areas of the Encinitas and Pacific Beach Restaurants were inaccessible and that the entrances to

13 the Pacific Beach restaurant were inaccessible.)

14 In April of 2007, the parties filed cross motions for summary judgment. The Court granted

15 Chipotle’s summary judgment motion as to Plaintiff’s ADA and CDPA claims regarding the restrooms

16 and seating areas of the Encinitas and Pacific Beach Restaurants and his claims regarding the entrances

17 to the Pacific Beach Restaurant. The Court also granted Chipotle’s summary judgment motion as to

18 Plaintiff’s ADA claims regarding the parking lots of the Encinitas and Pacific Beach Restaurants

19 because Chipotle altered the parking lots of those restaurants to ensure their compliance with the ADA,

20 but granted Plaintiff’s summary judgment motion as to his CDPA claim for damages based on its

21 determination that the parking lots did not comply with the ADA prior to Chipotle’s alterations.

22 The Court denied both parties’ summary judgment motions with respect to Plaintiff’s claims

23 regarding the wall in front of the food preparation counters. The Court first held that Section 4.33.3 of

24 the ADA Accessibility Guidelines (“ADAAG”), which requires that wheelchair users be afforded lines

25 of sight that are comparable to those of standing persons in fixed seating areas, was inapplicable to

26

27 1 Plaintiff also raised a claim under the California Unruh Civil Rights Act (“Unruh Act”). A party seeking damages and other relief under the CDPA may not also seek relief under the Unruh Act. Cal.
28 Civ. Code § 54.3(c). Plaintiff’s counsel has informed Chipotle’s counsel that Plaintiff has abandoned his Unruh Act claim and elected to pursue his CDPA claim.

1

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1 Chipotle’s food preparation counters. The Court found instead that Section 7.2(2) of the ADAAG

2 applies to the food preparation counters. Under Section 7.2(2), a portion of the main counter that is a

3 minimum of 36 inches in length must be provided with a maximum height of 36 inches, or an auxiliary

4 counter with a maximum height of 36 inches must be provided in close proximity to the main counter,

5 or equivalent facilitation must be provided. The Court found that the 34 inch high transaction station

6 attached to the food preparation counters, at which the cash registers are located, was not “a portion of

7 the main counter” or an “auxiliary counter” within the meaning of Subsections 7.2(2)(i) and (ii).

8 However, the Court noted that on February 23, 2007, Chipotle implemented a nationwide “Customers

9 With Disabilities” policy pursuant to which Chipotle required its employees to provide any necessary

10 accommodations to disabled restaurant patrons to ensure that they have equal access to the goods,

11 services, privileges, advantages and accommodations of Chipotle’s restaurants. That policy refined and

12 improved Chipotle’s always-existing unwritten policy and practice of accommodating disabled

13 customers as part of its general policy of providing great customer service. The Court held that

14 Chipotle’s Customers With Disabilities Policy may constitute an “equivalent facilitation” under Section

15 7.2(2)(iii), but that that issue is a fact-intensive inquiry requiring an evidentiary hearing.

16

Following the Court’s summary judgment rulings, the parties filed cross motions for

17 reconsideration. In Plaintiff’s reconsideration motion he argued that Chipotle’s Customers With

18 Disabilities Policy could not constitute an equivalent facilitation as a matter of law because it was not an

19 “alternative design or technology” within the meaning the ADAAG. The Court rejected this argument

20 in its August 23, 2007 Order denying the parties’ reconsideration motions. The Court again rejected this

21 argument in its Order on Plaintiff’s Motion to Amend the Pretrial Order and his first Motion in Limine

22 to exclude evidence and argument regarding the Customers With Disabilities Policy.

23

The primary issue remaining to be tried in this case is whether Chipotle’s Customers with

24 Disabilities Policy is an equivalent facilitation under Section 7.2(2)(iii). The evidence presented at trial

25 will establish that the Customers With Disabilities Policy does constitute an equivalent facilitation under

26 that Section. The evidence will show that the Policy allows customers with mobility impairments or

27 other disabilities an equal opportunity to see the food ingredients available at Chipotle’s restaurants, to

28

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1 watch their food preparation, customize their food, and to generally enjoy all aspects of Chipotle’s

2 restaurants as they so choose based on their individual needs and desires.

3 II. STATEMENT OF FACTS

4

Plaintiff is a paraplegic who uses a wheelchair for mobility. Plaintiff claims that his eye level,

5 when seated in his wheelchair, is approximately 45 inches from the finished floor. The average eye

6 level of persons in wheelchairs is between 43 and 51 inches from the finished floor. Plaintiff has visited

7 the Encinitas and Pacific Beach Restaurants a combined total of five to seven times.

8

Chipotle’s restaurants serve burritos, tacos, and other Mexican cuisine. Customers who order

9 their food in the restaurant typically do so by entering Chipotle’s food service line and proceeding down 10 the line while selecting the various ingredients they desire in, and directing the making of, their entrees.2

11 Chipotle’s customers can order their food by referring to a large menu board hung above the food-

12 preparation counter that lists all of the ingredients that they may add to their entrees. Chipotle’s

13 employees then prepare the entrees on counters that are approximately 35 inches high and 12 feet long.

14 At the beginning of the food preparation counters is a tortilla press station, where the tortillas are heated

15 and the customers’ orders are taken. After his or her order has been taken at the tortilla station, the

16 customer proceeds down the line to the next station on the food preparation counter where the

17 customers’ choice of rice, beans, peppers, and/or meat is added to the entree. From there, the customer

18 proceeds to the salsa station where his or her choice of sauces, sour cream, cheese, guacamole and

19 lettuce may be added to the entree. If the customer orders a burrito, it is generally wrapped at the salsa 20 station.3 The order is then passed down to the point of sale station of the food preparation counters,

21 where the cash registers are located.

22 2 Chipotle also allows its customers to submit their orders by internet and facsimile. Customers who

23 submit their orders by these alternative means do not have to proceed through the food serving line.

Also, from time to time, Chipotle customers who order their food in the restaurant, including mothers 24 with small children, elderly patrons, or disabled patrons, will request that a Chipotle employee take their

25

order at a table in the seating area of the restaurant or other similar accommodations that would allow them to avoid proceeding through the food serving line. As part of its general policy of providing great

26 customer service and its current Customers With Disabilities Policy, Chipotle has accommodated and continues to accommodate such requests.
27 3 As set forth in detail below, Chipotle will, at the request of its customers, accommodate requests to

have their burritos wrapped elsewhere, such as at the point of sale counter or at a table in the restaurant’s 28 seating area.

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1

The food preparation counters, with the exception of the point of sale station, separate the

2 employees from the customers by a wall that is approximately 44 inches high and 4.25 inches deep. The

3 wall serves to conceal restaurant equipment from customers and to delineate the food preparation area

4 from the area in which customers pay for their entrees. A clear glass sneeze guard is attached to the top

5 of the wall by a metal bracket that is approximately 2 inches high. Accordingly, the wall and the metal

6 bracket to which the sneeze guard is attached are a total of 46 inches in height. Depending on their

7 height, Chipotle’s customers may look over the wall to see the food ingredients available, watch as their

8 entrees are created, and, if they so choose, direct the creation of their entrees.

9

Plaintiff asserts that when he first visited the Encinitas Restaurant in February 2005, he could not

10 see the ingredients offered at the restaurant or the preparation of his entree because of the height of the

11 wall in front of the food preparation counter. Plaintiff contends that he ordered his burrito off the menu

12 board but was unable to select from the various ingredients that were available because he did not know

13 what they were, and he could not see them arranged on the food preparation counter. He further

14 contends that he did not have the opportunity to customize his burrito because he could not observe the

15 assembly of his entree over the wall in front of the food preparation counter. Although it is possible that

16 Plaintiff did not in fact see the food ingredients or the preparation of his entree on that particular visit, he

17 did have the opportunity to view the food ingredients and direct the preparation of his entree, because at

18 that time it was (as it still is) Chipotle’s policy and practice to accommodate all of its customers’ needs

19 and desires for assistance or individualized attention.

20

Since its inception Chipotle has maintained a policy of providing great customer service.

21 Chipotle refers to this as the “WOW factor” in its internal training documents and manuals, including its

22 policy handbook “the Know.” Chipotle trains each of its employees that providing the best customer

23 service requires that the employees carefully assess the wants and needs of each individual customer.

24 For instance, some customers may want the opportunity to taste samples of the food ingredients. Or,

25 some parents with small children, or some elderly customers, may want special assistance in placing

26 their order -- such as having an employee take the order at a table rather than in the food service line.

27 Similarly, some customers who are not tall enough to see over the wall in front of the food preparation

28 counter, or some customers in wheelchairs, may want to see samples of the food ingredients, which can

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1 be accommodated in several ways (including holding the food items up in a serving utensil or taking the

2 food items to a table for the customer to observe). Under Chipotle’s general policy of providing great

3 customer service, restaurant employees have always been trained and expected to use their judgment in

4 order to best accommodate the needs or wants of those customers. The end purpose is to ensure that

5 each customer has access to all aspects of the Chipotle experience, based his or her particular needs or

6 desires. While that experience includes enjoying the smells, sights, sounds and tastes of the restaurant,

7 the most important aspect of the Chipotle experience is the ultimate enjoyment of eating one’s food.

8

Although Chipotle’s general customer service policy does not expressly refer to the

9 accommodation of persons in wheelchairs, it has always been applied to ensure that such

10 accommodations are provided to customers who desire them. One important aspect of Chipotle’s

11 culture is that it trains and then trusts its restaurant employees to think independently and make their

12 own decisions as to how to respond to the particular needs and wants of each customer - disabled and

13 non-disabled alike. This is one of the reasons Chipotle has traditionally maintained relatively general

14 written policies, rather than specific word-for-word guidelines for each and every situation that its

15 employees may encounter.

16

The evidence presented at trial will establish that Chipotle has always effectively accommodated

17 disabled customers’ desire to see the food or watch or participate in the preparation of their entree, just

18 as it has always accommodated non-disabled customers who, for whatever reason, cannot see the food

19 or otherwise desire assistance or special attention in placing their orders. Such accommodations are not

20 given to customers as a form of “special treatment,” but rather as an important and quite normal part of

21 Chipotle’s overall business philosophy and of how Chipotle operates its restaurants. Indeed, in its

22 training materials and handbooks, Chipotle notes that “we concentrate on building Chipotle one burrito,

23 one customer, one employee and one restaurant at a time,” and that “everything we do is focused on

24 helping our people on the front line make our customers happy.” It is for this reason that Chipotle

25 encourages its employees and managers to “go beyond … [e]xtend yourself and be different.”

26

Ron Sedillo (Chipotle’s Director of Training), Matthew Cieslak (the former manager of the

27 Pacific Beach Restaurant), and Josephina Garcia (the former manager of the Encinitas Restaurant)

28 testified in their depositions that customers in wheelchairs who cannot see over the wall in front of the

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1 food preparation counters nevertheless have the opportunity to see the food ingredients because Chipotle

2 employees will lift up spoonfuls of the ingredients, place samples of the ingredients into soufflé cups

3 and pass the cups to the customer, or even pick up the entire bin of a particular ingredient and show it to

4 the customer. Furthermore, Chipotle will prepare the customer’s entrée at the point of sale station or at

5 a separate table to allow the customer to see the preparation of his or her food. Indeed, Ron Sedillo,

6 Matthew Cieslak and Josefina Garcia testified in their depositions that they themselves have seen

7 Chipotle employees giving some or all of those accommodations (and other similar accommodations) to

8 customers. Similarly, Maritza Arriaga, the current general manager of the Encinitas Restaurant, and

9 Ben Williams, the current area manager for the Encinitas Restaurant, will testify at trial that they

10 themselves have given such accommodations to Chipotle customers or witnessed other Chipotle

11 employees giving such accommodations to customers.

12

On October 6, 2006, as part of the discovery process of this litigation, the parties conducted site

13 inspections of the Pacific Beach and Encinitas Restaurants. Plaintiff video-taped those site-inspections.

14 As Plaintiff’s own video-tapes will show, during those inspections Chipotle’s employees showed

15 Plaintiff food ingredients by lifting the ingredients above the wall using serving utensils and by putting

16 the ingredients in cups. Plaintiff’s own video-tape demonstrates that Plaintiff had no difficulty

17 whatsoever in proceeding through Chipotle’s food serving line, and that it did not take Plaintiff

18 substantially longer than other customers to proceed through the line. On that point, first time

19 customers, or customers who desire to taste samples of the ingredients, can take as long as, or longer

20 than, Plaintiff to proceed through the line. While Chipotle prides itself on providing what the media has

21 coined as “gourmet food fast,” considerations of speed and throughput have always been - and remain -

22 secondary to ensuring that each and every one of its customers is fully satisfied with his or her

23 experience at the restaurant. Furthermore, to the extent that on the site inspections Plaintiff did not see

24 the assemblage or wrapping of his entree or receive any other accommodations, that was because he did

25 not ask for, and presumably did not need, any such additional accommodations.

26

Apart from Plaintiff’s claims pending before this Court (and his same claims in the related class

27 action before this Court), there is no evidence that any customer in a wheelchair at the Pacific Beach or

28 Encinitas Restaurant has been unable to see the food or participate in the preparation of his or her entree.

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1

On February 23, 2007, as part of its longstanding and ongoing efforts to ensure that all of its

2 customers receive excellent customer service, Chipotle implemented a nationwide “Customers With

3 Disabilities” policy (“the Policy”) that sets forth in writing that which Chipotle has always done as a

4 matter of unwritten policy and practice, i.e., provide excellent customer service to all of its customers,

5 including customers with disabilities. The Policy has served to refine and improve Chipotle’s unwritten

6 policy and practice of accommodating its customers, by adding further clarity. Chipotle disseminated

7 the Policy via high priority email to its Regional Directors, Human Resources Training Directors, and

8 Operations Directors, and began formally training its employees on the Policy between March and May

9 of 2007. As part of its efforts to ensure that all of its employees are aware of and fully understand the

10 Policy, Chipotle’s Director of Training and Development, Ron Sedillo, with help from Chipotle’s

11 Human Resource Generalists and Human Resource Training Directors, has provided specific instruction

12 regarding the Policy to Chipotle’s Operations Directors, Area Managers, and Managers, who in turn

13 train their respective crews regarding the Policy. The Policy has also been incorporated into Chipotle’s

14 training and policy manual, “The Know,” as a new section: “5.5 Customers With Disabilities.” This

15 new section of “the Know” states:

16

Excellent customer service is of paramount importance at every Chipotle

17

restaurant at all times. A customer with a disability (for example, a visual or

mobility impairment) may benefit from some alternative means of presenting or

18

describing our food. In all such cases the restaurant staff will offer a suitable

accommodation based on the individual circumstances, and will be responsive to

19

the customer’s requests. Depending on the circumstances, our crew member or

20

manager may ask the customer if we can accommodate them during their visit. Examples of some of the ways we accommodate individuals include:

21 (a) Samples of the food can be placed in soufflé cups and shown or handed to

22

the customer.

23

(b) Some customers may prefer an opportunity to see or even sample the food

24

at a table.

25

(c) Customers may simply wish to have the food or food preparation process

described to them.

26

(d) Or combinations of the above accommodations with any other reasonable

27

accommodation requested or appropriate for the individual.

28

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1

The point of good customer service is that it has to be personalized. It is the manager and crew’s responsibility to ensure that the experience a customer with a

2

disability has is excellent.

3

Considerations of throughput, productivity or efficiency are secondary to ensuring

a positive experience for disabled customers. Crew members are encouraged to

4

inform their Restaurant Manager regarding the experiences of their disabled

5

customers and such experiences will be considered during the performance review process, both for the crew member and the manager.

6 The above example details a scenario involving only a visual or mobility impaired

7

customer. Other disabilities may exist among our customers and it is our policy at

Chipotle to make good faith, reasonable accommodations for all of our disabled

8

customers. This practice is consistent with our goal of providing excellent

9

customer service to all of our customers.

10

Under the Policy, when a customer with a disability enters the food serving line he or she will be

11 greeted at the tortilla press station by a management level employee. That employee will then ask the

12 customer if he or she has ever been to Chipotle and if he or she would like to see the food or receive any

13 other kind of assistance. If the customer answers in the affirmative, such assistance will be provided

14 based on the individual customer’s particular needs and desires. As set forth above, Chipotle employees

may place samples of food ingredients in soufflé cups or hold up samples of the food with spoons or 15

16 tongs so that the customer can see the ingredients. The Restaurants also have accessible tables adjacent

17 to the food service lines that, if the customer so desires, can be used to view the food presented by

18 Chipotle staff. Furthermore, a customer may, in some instances, choose to have his or her entree

prepared at the point of sale station at the end of the food serving line. The Policy allows Chipotle’s 19

managers the flexibility to make appropriate and effective accommodations based on each particular 20

situation, while ensuring that each and every customer will receive any accommodations necessary to 21
ensure that he or she has access to all aspects of the Chipotle experience.4 22

Since the creation of the Customers With Disabilities Policy, Chipotle has not received any 23

complaints from customers in wheelchairs claiming that they cannot see the food ingredients or that they 24

cannot see or participate in the preparation of their food at the Restaurants. With the implementation of 25

26

27 4 To that end, Chipotle holds its employees and managers responsible for following the Policy. An employee’s adherence to the Policy is a factor considered in his or her twice-annual performance
28 evaluation, and failure to adhere to the Policy can subject an employee to discipline

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1 the “Customers With Disabilities Policy” there is no cognizable danger of Plaintiff suffering any future

2 alleged disability discrimination at the Restaurants.

3 III. LEGAL ISSUES

4

A. Title III of the ADA.

5

The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., was enacted on July

6 26, 1990. The primary purpose of the ADA is to provide a “clear and comprehensive national mandate

7 for the elimination of discrimination” with “clear, strong, consistent, enforceable standards” to address

8 such discrimination. 42 U.S.C. § 12101(b)(1), (2).

9

Plaintiff’s ADA claims in this action are based on Title III of that statute. Section 302 of Title

10 III prohibits discrimination against disabled individuals in any place of public accommodation. 42

11 U.S.C. § 12182. Restaurants, bars and other establishments serving food or drink are public

12 accommodations within the meaning of the ADA. 42 U.S.C. § 12181(7). Section 302 of Title III of the

13 ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full

14 and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any

15 place of public accommodation . . . .” 42 U.S.C. § 12182(a). To prove a Title III claim, a plaintiff must

16 prove that: (1) he has a disability; (2) defendant’s restaurant is a place of public accommodation; (3) and

17 he was denied full and equal treatment because of his disability. Mayberry v. Von Valtier, 843 F. Supp.

18 1160, 1166 (E.D. Mich. 1994).

19

Title III gives the Department of Justice the authority to develop regulations implementing the

20 requirements of the anti-discrimination requirements of the statute. 42 U.S.C. §§ 12183(a)(1), 12186(b).

21 Pursuant to that authority the Department of Justice has adopted the ADAAG, which set forth general

22 construction guidelines to ensure that new facilities are accessible to persons with disabilities. 28 C.F.R.

23 §§ 36.401(a)(1), (c)(1), 36.402 (a)(1), Appendix B – Preamble to Regulations on Nondiscrimination on

24 the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed. Reg. 35,546

25 (July 26, 1991), page 593. Failure of newly constructed facilities (such as the Encinitas and Pacific

26 Beach Restaurants) to abide by the construction guidelines in the ADAAG violates the ADA. Id.; 42

27 U.S.C. § 12183(a)(1).

28

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1

This Court held in its June 14, 2007 summary judgment order that Section 7.2(2) of the

2 ADAAG, which governs sales and service counters that may not have a cash register but at which goods 3 or services are sold or distributed, applies to the wall in front of Chipotle’s food preparation counters.5

4 That section of the ADAAG provides:

5

At ticketing counters, teller stations in a bank, registration counters in hotels and motels,

6

box office ticket counters, and other counters that may not have a cash register but at

which goods or services are sold or distributed, either:

7

(i) a portion of the main counter which is a minimum of 36 in (915 mm) in length shall

be provided with a maximum height of 36 in (915 mm); or

8

(ii) an auxiliary counter with a maximum height of 36 in (915 mm) in close proximity to

9

the main counter shall be provided; or (iii) equivalent facilitation shall be provided.

10 ADAAG § 7.2(2). The Court also found in the same order that the portion of the food service counter

11 where the cash registers are located (the transaction station), which is approximately 35 inches high,

12 does not satisfy the requirements of subsections (i) and (ii) of Section 7.2(2). However, the Court found

13 that Chipotle’s “Customers With Disabilities Policy” may constitute an equivalent facilitation under

14 Section 7.2(2)(iii). This is the central issue to be decided at trial.

15

B. CDPA Standards.

16

The CDPA incorporates the substantive rights guaranteed under the ADA, such that a violation

17 of the ADA also constitutes a violation of the CDPA. Moeller v. Taco Bell Corp., No. C02-05849, 2007

18 U.S. Dist. LEXIS 60714, at *20 (N.D. Cal. Aug. 8, 2007).

19 IV. ARGUMENT.

20

Plaintiff contends that the height of the wall in front of the food preparation counter violates the

21 ADA and the CDPA because it does not allow customers in wheelchairs to see the food ingredients

22 available at Chipotle’s restaurants or participate in the making of their entrees, and that the Customers

23 With Disabilities Policy is not an equivalent facilitation for the alleged barrier. Should the Court decide

24 this issue in favor of Plaintiff, it must also consider whether Plaintiff has established that he is entitled to

25 an injunction requiring Chipotle to lower the counters of the Pacific Beach and Encinitas Restaurants,

26 and whether Plaintiff has established that he suffered any damages as a result of his visits to Chipotle’s

27

28 5 Chipotle preserves its right to appeal that holding.
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1 Restaurants. As set forth in detail below, the evidence presented at trial will establish that both

2 Chipotle’s “Customers With Disabilities Policy” and its prior unwritten practice of accommodating

3 restaurant customers with disabilities constitute an equivalent facilitation within the meaning of Section

4 7.2(2).

5

A. Policies Like Chipotle’s “Customers With Disabilities Policy” Can Be A Form of

6

Equivalent Facilitation.

7

Section 2.2 of the ADAAG defines equivalent facilitation as “departures from particular

8 technical and scoping requirements of the ADAAG by the use of other designs and technologies …

9 [that] will provide substantially equivalent or greater access to and usability of the facility.” The

10 designer or defendant who chooses to utilize alternative methods that it believes will provide equal or

11 greater access has the burden of demonstrating that the alternative design or technology qualifies as

12 equivalent facilitation. Ind. Living Center v. Oregon Arena, 982 F.Supp. 698, 727 (D. Or. 1997).

13

Plaintiff has contended throughout this litigation that a policy like the “Customers With

14 Disabilities Policy” cannot meet the requirements of “equivalent facilitation” as a matter of law. Those

15 arguments have been repeatedly rejected by this Court, first in its June 14, 2007 order on the parties’

16 cross summary judgment motions (Docket No. 129), next in its August 23, 2007 order on the parties’

17 cross reconsideration motions (Docket No. 147), again in its October 4, 2007 order denying Plaintiff’s

18 motion to amend the Pretrial Order (Docket No. 173), and most recently in its November 8, 2007 order

19 on the parties’ motions in limine (Docket Nos. 202 and 203). The Court did not err in so holding.

20

Both the ADAAG and federal courts recognize that policies like Chipotle’s Customers With

21 Disabilities Policy can be forms of equivalent facilitation. Section 7.2(2)(iii) of the ADAAG expressly

22 directs that a hotel may provide equivalent facilitation for a registration counter that does not meet the

23 specific requirements of Sections 7.2(2)(i) or (ii) by establishing a policy that hotel employees use the

24 space on the side of the counter or at the concierge desk for handing materials back and forth to guests

25 with disabilities. ADAAG § 7.2(2)(iii). Similarly, in Independent Living Resources v. Oregon Arena,

26 the court found that a stadium’s policy of providing high quality folding companion seats rather than

27 fixed companion seats required by Section 4.33.3 of the ADAAG was a form of equivalent facilitation.

28 Independent Living Resources, 982 F.Supp. 698, 726-28. Furthermore, in Access 4 All, Inc. v. The

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1 Atlantic Hotel Condominium Association, LLC, the court held that a defendant provided equivalent

2 facilitation for its check-in desk through its “front desk standard operating procedure whereby a disabled

3 person is directed to the couch seating area near the registration desk, and a staff person personally

4 accommodates the disabled person through the registration process.” Access 4 All, Case No. 04-61740,

5 2005 U.S. Dist. LEXIS 41601 (S.D. Fla., November 22, 2005). It is well-settled law that a policy such

6 as Chipotle’s Customers with Disabilities Policy can constitute a form of equivalent facilitation as a

7 matter of law.

8

B. Chipotle’s “Customers With Disabilities Policy” And Its Prior Unwritten Policy and

9

Practice of Accommodating Customers With Disabilities Qualify As Equivalent

10

Facilitation.

11

In analyzing whether Chipotle’s policy of accommodating customers with disabilities in fact

12 constitutes an equivalent facilitation, a distinction must be drawn between the unwritten policy and

13 practice that existed prior to February of 2007, on the one hand, and the written Customers With

14 Disabilities Policy that was created in February of 2007, on the other. Although Chipotle has always

15 had an effective policy and practice of accommodating customers with disabilities (just as it

16 accommodates any of other customer with special needs or desires), the implementation of Chipotle’s

17 written “Customers With Disabilities Policy” in the Spring of 2007 refined and improved its pre-existing

18 policy and practices in a manner that insured even more than before that Chipotle’s disabled customers

19 would receive whatever accommodations were necessary and appropriate to their individual needs and

20 desires. In any event, the evidence that will be presented at trial in this matter will establish that both

21 Chipotle’s unwritten policy of accommodating customers with disabilities and its written “Customers

22 With Disabilities Policy” provided, and continue to provide, Chipotle’s customers with disabilities with

23 equal or greater access to its food serving lines as required by Sections 2.2 and 7.2(2)(iii) of the

24 ADAAG.

25

1. Chipotle’s Written Customers With Disabilities Policy Is A Form Of

26

Equivalent Facilitation.

27

Defendant’s Customers With Disabilities Policy provides Chipotle’s customers with disabilities

28 with equal or greater access to its food serving line. Pursuant to the Policy, Chipotle’s managers and

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1 employees are required to accommodate a customer with a disability based on the particular needs and

2 desires of that individual. When a customer with a disability enters the food serving line and approaches

3 the tortilla press (the first station in the food serving line), he or she is greeted by a management

4 employee of Chipotle and asked whether he or she has ever visited a Chipotle restaurant. The customer

5 is then asked if he or she would like any assistance in placing his or her order. Based on the customer’s

6 answers to these questions, the management employee assisting the customer then determines what

7 accommodation, if any, is most appropriate given the needs and wants of the individual customer. In

8 some cases the employee will hand samples of food to the customer in serving cups, in other cases the

9 employee will use tongs or a serving spoon to show samples of the food to the customer, in other cases

10 the employee will orally describe the ingredients and food preparation process to the customer, and in

11 still other cases the employee will bring samples of the food ingredients to the customer at an adjacent

12 table and allow him or her to sample each of the items and/or watch as his or her entree is made.

13 Through these accommodations customers with mobility impairments or other disabilities are afforded

14 an equal or greater opportunity to see the food ingredients and watch and participate in the assembly of

15 their entree.

16

Although in some instances accommodating a particular disabled customer’s desire to see or

17 sample the food or watch or participate in the preparation of his or her entree may result in the customer

18 taking slightly more time than on average to proceed through the food serving line,, the same would be

19 true of non-disabled customers who desire the same accommodations. For example, non-disabled

20 customers who are not tall enough to see over the wall in front of the food preparation counters, parents

21 with children, or even first-time customers may ask to sample food items or to see their entrees prepared

22 at an adjacent table. Both the disabled and non-disabled customers who desire such accommodations

23 may take slightly longer to be served than on average. But in either case the customer still receives

24 quick service. Indeed, the film of Plaintiff’s inspections of the Encinitas and Pacific Beach Restaurants

25 in October of 2006 demonstrates that Plaintiff was able to proceed through the food service line quickly

26 and easily.

27

Any assertion by Plaintiff that he should not have to ask to see the various ingredients is without

28 merit. Chipotle has designed its Customers With Disabilities Policy to allow its managers and

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1 employees the maximum amount of flexibility possible to ensure that they can tailor any

2 accommodations to the particular needs and wants of each individual customer. This allows Chipotle to

3 account for the fact that not all persons with a particular disability will want the same accommodation.

4 Some disabled customers may not care to see the ingredients or to see their entrees prepared, just as is

5 the case with many of Chipotle’s non-disabled customers. It is for this reason that as soon as a customer

6 approaches the first station of the food service line Chipotle’s managers and employees ask the customer

7 to provide input as to any accommodations he or she may need or want. This Policy is in keeping with

8 the ADA’s general requirement that public accommodations “make decisions based on facts applicable

9 to individuals and not on the basis of presumptions as to what a class of individuals with disabilities can

10 do.” 28 C.F.R. § 36, App. B., at 622.

11

The evidence presented at trial will establish that Chipotle has thoroughly trained its managers

12 and employees about their responsibilities under the Policy. Ron Sedillo, Chipotle’s Director of

13 Training and Development has, with the help of others in Chipotle’s Human Resources and Training

14 departments, advised each of Chipotle’s area managers and training managers as to the details of the

15 Customers With Disabilities Policy and the manner in which it should be applied at each of Chipotle’s

16 restaurants. Those area managers have ensured that each of Chipotle’s general managers and apprentice

17 managers have been trained on the Policy, and the general and apprentice managers have, in turn,

18 ensured that their service managers and employees are thoroughly familiar with the Policy. The

19 evidence presented at trial will also establish that Chipotle holds its managers and employees

20 responsible for following the Customers With Disabilities Policy. An employee’s adherence to the

21 Policy is a factor considered in the employee’s performance evaluations, and an employee’s failure to

22 adhere to the Policy can subject that employee to discipline. As further evidence of the effectiveness of

23 its Customers With Disabilities Policy, Chipotle will prove at trial that it has not received any

24 complaints from customers in wheelchairs claiming that they cannot see the food ingredients or cannot

25 see or participate in the preparation of their food at the Restaurants.

26

The evidence presented at trial by Chipotle will therefore demonstrate that with the creation of

27 the written Customers With Disabilities Policy, Chipotle’s customers with disabilities have substantially

28 equal or greater access to the food serving line as its non-disabled customers, and that there is no

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1 cognizable danger of Plaintiff suffering any future alleged disability discrimination at the Pacific Beach

2 or Encinitas Restaurants.

3

2. Chipotle’s Unwritten Policy Also Qualifies As An Equivalent Facilitation.

4

In determining whether Plaintiff is entitled to damages under the CDPA for any of his visits to

5 the Encinitas and Pacific Beach Restaurants prior to the implementation of Chipotle’s written Customers

6 With Disabilities Policy, the Court must examine whether Chipotle’s unwritten policy and practice of

7 accommodating customers with disabilities qualified as an equivalent facilitation. As set forth above,

8 Chipotle’s written Customers With Disabilities Policy was implemented in the Spring of 2007. Prior to

9 that time Chipotle maintained an unwritten policy and practice of providing accommodations to disabled

10 customers to ensure that they had equal access to all aspects of the Chipotle experience as part of the

11 company’s general policy of providing great customer service. This unwritten policy and practice has

12 existed since the restaurant’s inception.

13

The evidence presented at trial will establish that Chipotle has always trained its employees that

14 providing the best customer service requires that the employees carefully assess the wants and needs of

15 each individual customer, and, in the case of some customers with mobility impairments, may require

16 the employee serving the customer to provide samples of the food ingredients or assemble the

17 customer’s entree at an adjacent table or at the transaction station at the end of the food preparation

18 counter. The evidence presented at trial will also establish that Chipotle has always offered

19 accommodations to customers with mobility impairments to allow them to see the food or watch or

20 direct the preparation of their entree, just as it has always so accommodated non-disabled customers

21 who cannot see the food for whatever reason or who otherwise desire assistance in placing their orders.

22 While the written Customers With Disabilities Policy has refined and improved Chipotle’s efforts to

23 ensure that its disabled customers receive the full Chipotle experience, the company’s prior unwritten

24 policy and practice of accommodating disabled restaurant patrons was also effective in ensuring that

25 result.

26

Indeed, the evidence presented at trial will demonstrate that Plaintiff received any

27 accommodations he requested during his visits to Chipotle’s restaurants in Encinitas and Pacific Beach.

28 During the site inspections of the Pacific Beach and Encinitas Restaurants, Chipotle’s employees

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1 showed Plaintiff samples of each of the ingredients he requested to be shown by holding those

2 ingredients above the wall using tongs and serving spoons and by placing those ingredients in small

3 plastic cups. To the extent that no further assistance was provided, that is because Plaintiff did not

4 request it and presumably did not need it. In addition, as is evident from the video-tape of the site

5 inspections, Plaintiff had no difficulty whatsoever in proceeding quickly through Chipotle’s food

6 serving line with these accommodations.

7

The treatment Plaintiff received during the site inspections was not an anomaly. The Encinitas

8 Restaurant’s general manager, Maritza Arriaga, will testify at trial that on the same day as the site

9 inspection at the Encinitas Restaurant, she served an elderly woman with a mobility impairment that

10 required her to use a walker; that, in accordance with her obligations to accommodate disabled

11 customers under Chipotle’s general policy of providing great customer service, Ms. Arriaga approached

12 the customer and asked if she could be of assistance in any way in placing her order; and that, at the

13 customer’s request, Ms. Arriaga took the customer’s order at one of the tables in the seating area of the

14 restaurant and brought the food to the customer. Furthermore, Ron Sedillo (Chipotle’s Director of

15 Training) will testify that he has seen Chipotle employees providing accommodations such as samples

16 of food ingredients, lifting spoonfuls of food ingredients high in the air, or making entrees at the point of

17 sale counters so that customers who cannot see over the wall in front of the food preparation counters

18 can see the food ingredients or watch their entree being assembled.

19

This evidence will establish that equivalent facilitation was provided at the Encinitas and Pacific

20 Beach Restaurants prior to the implementation of the Customers With Disabilities Policy in the Spring

21 of 2007.

22

C. Remedies.

23

1. Injunctive Relief.

24

The remedies available under Title III of the ADA are limited to injunctive relief, including

25 injunctive relief to require the defendant to alter facilities to make such facilities “readily accessible to

26 and usable by persons with disabilities,” or, where appropriate, injunctive relief “requiring the provision

27 of an auxiliary aid or service, modification of a policy, or provision of alternative methods.” 42 U.S.C.

28

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1 § 12188(a)(2); 42 U.S.C. § 2000a-3(a). Injunctive relief is also available under the CDPA. Cal. Civ.

2 Code § 54.3(a).

3

Injunctive relief is an equitable remedy, and is not available as a matter of course. Weinberger v.

4 Romero-Barcelo, 456 U.S. 305, 311 (1982). An injunction is available only when it is essential to

5 protect property or other rights against injuries that are otherwise irremediable. Id. at 312. In order to

6 obtain injunctive relief, the plaintiff must show irreparable injury and the inadequacy of legal remedies.

7 Id. Injunctive relief should be denied unless it is the only means of ensuring compliance. Id. at 314.

8

The specific elements that must be proven in order to obtain injunctive relief are: (1) an

9 irreparable injury; (2) inadequacy of legal remedies; (3) a balance of hardships favoring the plaintiff; 10 and (4) advancement of the public interest. Walters v. Reno, 145 F.3d 1032, 1048 (9th Cir. 1998); 11 Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). It is the plaintiff’s burden to establish these elements. 12 West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 956 (11th Cir. 1982). One federal district court

13 has held that a plaintiff seeking injunctive relief under the ADA “must demonstrate that an injunction …

14 is justified by the relief it will provide.” Access Now, Inc. v. South Florida Stadium Corporation, 161

15 F.Supp.2d 1357, 1369 (S.D. Fla. 2001). That court further explained that, “whether a requested

16 alteration would be effective is relative to the impediment presented by the barrier and the associated

17 cost of removing it.” Id., at 1369-70.

18

Plaintiff seeks an injunction requiring Chipotle to alter or remove the wall in front of its food

19 preparation counters. As set forth above, Defendant will establish at trial that its Customers With

20 Disabilities Policy is an equivalent facilitation, and that Plaintiff is not entitled to any relief under the

21 ADA or the CDPA. However, even if the Court were to determine that the Policy is not an equivalent

22 facilitation, it nevertheless must find that the injunctive relief requested by Plaintiff is inappropriate

23 unless Plaintiff can establish that his proposed alterations to the wall in front of Chipotle’s food

24 preparation counters can be made, the cost of altering the wall is justified by the relief it will provide,

25 and that the injunctive relief will be in the public interest.

26

Chipotle designed its food preparation counters in order to ensure their compliance with

27 California Uniform Retail Food Facilities Law (“CURFFL”) Sections 114080(b)(2)(A) and 114080(c)

28 and Health & Safety Code Section 114080. Subsection (c) of California Health & Safety Code §

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1 114080, which pertains to the storage of food, as well as the display and sale of unpackaged food,

2 provides in pertinent part:

3

(c) Unpackaged food may be displayed and sold in bulk in other than self-service

4

containers if both of the following conditions are satisfied:

(1) The food is served by an employee of the food establishment directly to a

5

consumer.

(2) The food is displayed in clean, sanitary, and covered or otherwise protected

6

containers.

7 Chipotle’s food preparation counters must comply with these legal requirements. As such, Plaintiff

8 must establish that any alterations he proposes also meet these legal requirements in order to be entitled

9 to injunctive relief. Plaintiff has not yet done so. Indeed, he has not even specified precisely what

10 alterations he is seeking to have made to the wall in front of the food preparation counters.

11

2. CDPA Damages.

12

If the Court decides that Plaintiff has proved his CDPA claim against Chipotle, it may also

13 award Plaintiff damages not less than $1,000 for each offense. Cal. Civ. Code § 54.3(a). Plaintiff’s

14 attorney has represented to counsel for Chipotle that Plaintiff will not seek damages in excess of the

15 $1,000 statutory minimum provided by Cal. Civ. Code § 54.3(a). To establish his entitlement to

16 monetary damages Plaintiff must demonstrate that he or she was denied “equal access” on a particular

17 occasion, i.e., that the violation interfered with his visit to a place of public accommodation. See

18 Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 183, 266 Cal. Rptr. 804, 813 (Cal. Ct. App. 1990).

19

Notwithstanding any technical violation, Plaintiff cannot prove that the height of the wall in

20 front of the food preparation counter hindered his access to the Restaurants or their services. He was not

21 denied “equal access” on any of his visits because accommodations were available that would have

22 allowed him to see the food ingredients available and watch the preparation of his entree. To the extent

23 that these accommodations were not provided on any occasions, that is because no accommodation was

24 requested by Plaintiff.

25 V. CONCLUSION.

26

As set forth above, the evidence presented at trial in this matter will demonstrate that both

27 Chipotle’s current Customers With Disabilities Policy and its prior unwritten policy and practice of

28 providing accommodations to disabled customers upon request provide its disabled customers with

Defendant’s Trial Brief
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Case 3:05-cv-01660-J-WMC Document 209 Filed 11/20/2007 Page 20 of 21

1 substantially equivalent or greater access to Chipotle’s facilities as is afforded to its non-disabled

2 customers.

3

4 DATED: November 20, 2007

GREENBERG TRAURIG, LLP

5

6

By /s/ John F. Scalia________________

Gregory F. Hurley

7

John F. Scalia

Matthew H. Sorensen

8

Jeanne U. Vu

9

Attorneys for Defendant CHIPOTLE MEXICAN GRILL, INC.

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Defendant’s Trial Brief
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1

CERTIFICATE OF SERVICE

2 STATE OF VIRGINIA, COUNTY OF FAIRFAX

3

I am employed in the aforesaid county, State of Virginia; I am over the age of 18 years and not a

4 party to the within action; my business address is 1750 Tysons Blvd., Suite 1200, McLean, VA 22102. .

5 On the below date, I electronically filed the DEFENDANT CHIPOTLE MEXICAN GRILL, INC.’S
6 TRIAL BRIEF with the Clerk of the United States District Court for the Southern District of

California, using the CM/ECF System. The Court’s CM/ECF System will send an email notification of 7 the foregoing filing to the following parties and counsel of record who are registered with the Court’s

8 CM/ECF System:

9 Amy B. Vandeveld

10

Law Offices of Amy B. Vandeveld 1850 Fifth Avenue, Suite 22

11

San Diego, CA 92101 T: (619) 231-8883

12

F: (619) 231-8329 Email: abvusdc@hotmail.com

13 Attorneys for Plaintiffs

14

15 BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM)

In accordance with the electronic filing procedures of this Court, service has been effected on the

16

aforesaid party(s) above, whose counsel of record is a registered participant of CM/ECF, via

electronic service through the CM/ECF system. 17

(FEDERAL) I declare under penalty of perjury that the foregoing is true and correct,

18

and that I am employed at the office of a member of the bar of this Court

at whose direction the service was made.

19

20

Executed on November 20, 2007, at McLean, Virginia.

21

/s/ John F. Scalia

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Case No. 05-CV-01660-J-WMC

OC 286198089v2 11/20/2007

 
 Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 1 of 13

1 Amy B. Vandeveld, State Bar No. 137904 LAW OFFICES OF AMY B. VANDEVELD
2 1850 Fifth Avenue, Suite 22 San Diego, California 92101
3 Telephone: (619) 231-8883 Facsimile: (619) 231-8329
4 Attorney for Plaintiff
5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 MAURIZIO ANTONINETTI

11 Plaintiff,

12 vs.

13 CHIPOTLE MEXICAN GRILL, INC. and DOES
14 1 THROUGH 10, Inclusive,

15

Defendants.

Case No.: 05 CV 1660 J (WMc)

PLAINTIFF’S TRIAL BRIEF

Trial Date: November 27, 2007

Time:

8:00 a.m.

Courtroom: 12

Judge: The Honorable Napoleon

A.

Jones, Jr.

16

17

Plaintiff MAURIZIO ANTONINETTI hereby submits his Trial Brief, setting

18 forth his theories of the case and what he expects the evidence to show, pursuant to the

19 Court’s Order Re: Trial, Document No. 156, 2:26-27.

20

I.

21

BACKGROUND

22

Defendant Chipotle Mexican Grill, Inc. (“Chipotle”) operates a national chain of

23 fast-food Mexican restaurants, including the two restaurants at issue in this case. The

24 restaurants are designed so that standing customers can see into the food preparation

25 area and can see not only the ingredients available for selection, but the actual

26 construction of their entrees and the entrees of other customers. This enables standing

27 customers to customize their burritos because they can see the amount of ingredients

28 being placed on their entrees. This also enables standing customers to see

simultaneously all of the 16 ingredients from which to choose, which are displayed in

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 2 of 13

1 bountiful, appetizing quantities.

2

Chipotle has specific standards for appearance of its ingredients. Chipotle values

3 and emphasizes the appearance of its food and the freshness of its ingredients. Chipotle

4 also values and emphasizes that its food is served “fast”.

5

The food preparation area consists of manufactured equipment, the top of which

6 is at a height of approximately 34 inches from the finished floor. In front to the food

7 preparation area, Chipotle constructed an independent wall which obstructs the view of

8 the preparation area to a height of 46 inches from the finished floor. The average eye

9 level of a person in a wheelchair is 43 to 51 inches from the finished floor. People in

10 wheelchairs, with eye levels within this range, cannot see the food items on display, nor

11 can they see the preparation of their entrees made in the food preparation area.

12

Chipotle intends for its standing customers to see the bins of ingredients and to

13 watch the making of their entrees. Chipotle specifically included a transparent sneeze

14 guard into the design of the wall in front of the food preparation area.

15

Plaintiff has never been provided the opportunity to see the assembly of his

16 entree at any Chipotle restaurant. Prior to October 6, 2006, on at least four occasions,

17 Plaintiff was not shown any ingredients available for selection, nor was he provided the

18 opportunity to see the assembly of his entree.

19

At the formal site inspections of October 6, 2006, Plaintiff, again, was never

20 provided the opportunity to see the display of large bins of food. Again, he was never

21 provided the opportunity to see the amount of ingredients placed on his entree. Again,

22 he was never provided the opportunity to see the making of his entree. Instead, he was

23 simply shown small samples of food by Chipotle employees. The samples were shown

24 to Plaintiff in thin, plastic cups, by lifting spoonfuls, tongfuls or handfuls of food. He

25 was only shown food items when he asked to see them.

26

Chipotle contends that it is not required to lower the offending wall. Chipotle

27 contends that, despite the fact that the wall obstructs the view of the food preparation

28 area for people in wheelchairs, Chipotle has had, and continues to have, a policy of

2

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 3 of 13

1 accommodating people with disabilities (“the Policy”). Pursuant to the Policy, Chipotle

2 employees are allowed to show people in wheelchairs small samples of food by various

3 methods. Chipotle further contends that the Policy allows employees to assemble

4 entrees in front of customers in wheelchairs by taking trays of ingredients to the cashier

5 counter or to a dining table.

6

Plaintiff contends the Policy is simply “improvised access” which is inadequate

7 because it does not provide people in wheelchairs with the same benefits, advantages,

8 privileges, goods or services as are provided to non-disabled customers. Plaintiff

9 contends that the offensive wall must be lowered to a height which will allow people in

10 wheelchairs the same opportunities, goods and services, as are provided by Chipotle to

11 its non-disabled customers.

12

II.

13

PLAINTIFF’S THEORIES OF THE CASE

14 i. 15

Plaintiff Does not Abandon Legal Arguments Previously Addressed by the Court.

16

By limiting his Trial Brief to the issues, theories and evidence contained herein,

17 Plaintiff does not intend to, nor does he, abandon his legal arguments relative to

18 Chipotle’s Policy, the applicability of various sections of the ADAAG, or any other

19 issues that were previously ruled upon by the Court in this case. While Plaintiff will

20 not address those arguments and issues herein, he specifically reserves those issues for

21 appeal.

22 ii. 23

The Plaintiff is Entitled to Receive the Same Benefits, Privileges, Accommodations, Goods and Services as Other Standing Customers.

24

Assuming arguendo that Chipotle is entitled to rely on the “equivalent

25 facilitation”option under ADAAG Sec. 7.2(2)(iii), Chipotle must establish that its

26 Policy of accommodation satisfies the definition of “equivalent facilitation.” ADAAG

27 Section 2.2 defines “equivalent facilitation” as follows:

28

“Departures from particular technical and scoping requirements of

3

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 4 of 13

1

this guideline by the use of other designs and technologies are

permitted where the alternative designs and technologies used will

2

provide substantially equivalent or greater access to and usability

of the facility.”

3

4

The “equivalency” of the facilitation must be considered in light of the goods,

5 services, facilities, benefits, privileges and accommodations that are being provided by

6 the public accommodation to the general public. That is, one must first determine the

7 standard to which the facilitation is to be compared in order to determine if that

8 facilitation is equivalent. Plaintiff is entitled to ALL of the benefits, services, goods,

9 privileges, accommodations, advantages and facilities which are made available to the

10 general public.

11

Properly read, the "Equivalent Facilitation" provision does not allow facilities to

12 deny access under certain circumstances, but instead allows facilities to bypass the

13 technical requirements laid out in the Standards when alternative designs will provide

14 "equivalent or greater access to and usability of the facility." Caruso v. Blockbuster-Sony 15 Music Entertainment Centre, 193 F.3d 730, 739 (3rd Cir. 1999)

16

The language of Title III itself precludes a reading of the "Equivalent

17 Facilitation" provision that would allow public accommodations to provide separate

18 benefits or unintegrated benefits. Caruso v. Blockbuster-Sony Music Entertainment 19 Centre, 193 F.3d 730, 739 (3rd Cir. 1999), citing 42 U.S.C. § 12182(b)(1)(A)(iii)

20 (discriminatory to provide a separate benefit unless necessary to provide equal benefit);

21 id. at (b)(1)(B) (benefits of a public accommodation must be provided in the most

22 integrated setting appropriate to the needs of the individual).

23

The plain language of Title III also precludes a reading of “Equivalent

24 Facilitation” that would allow public accommodations to provide a different benefit to

25 people with disabilities. (See, Caruso v. Blockbuster-Sony Music Entertainment Centre, 26 193 F.3d 730, 740 (3rd Cir. 1999), citing See 42 U.S.C. § 12182(b)(1)(c)

27 ("Notwithstanding the existence of separate or different programs or activities . . . an

28 individual with a disability shall not be denied the opportunity to participate in such

4

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 5 of 13

1 programs or activities that are not separate or different."). )

2 iii. 3

Plaintiff is Denied Access to and Usability of the Food Viewing Area.

4

Chipotle’s Policy fails to meet the standard of “equivalent facilitation” because it

5 denies people in wheelchairs, including Plaintiff, with substantially equal access to and

6 usability of the food preparation area of the facility. Plaintiff’s entitlement to access is

7 not limited to just the interior of the restaurant. Rather, he is entitled to access to all

8 elements of the facility if they are made available to the general public, including the

9 restrooms, the dining area and the food preparation area. If Chipotle wishes to design

10 the wall so that it blocks the view of wheelchair users, it must show that it has provided

11 some other means for people to access the food viewing area, in a substantially

12 equivalent way.

13

Standing customers have access to the food preparation area. They can

14 simultaneously see all of the bountiful bins of ingredients available for selection. They

15 can see the making of their entrees in a quick manner. Standing customers do not go to

16 the cashier counter or to the dining area to see the making of their burrito.

17

Rather than provide an alternative manner of accessing the food preparation

18 area, the Policy simply provides people in wheelchairs with access to completely

19 different benefits, goods and services. It provides access only to small samples of food,

20 shown one at a time, or displayed at the cashier counter or in the dining area.

21

People in wheelchairs are completely denied access to the food preparation area

22 and, instead, have access only as far as the wall in front of the food preparation area.

23 They must go to the cashier counter or the dining area to see their entrees assembled

24 from small cups of food samples. Thus, the Policy fails to provide equal access to the

25 food preparation area of the facility.

26

The Policy also fails to meet the standard of “equivalent facilitation” because it

27 does not provide equivalent usability of the facility for wheelchair users. Standing

28 customers are able to utilize the food preparation area to enhance their gastronomic

5

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 6 of 13

1 enjoyment by viewing large quantities of food. They also utilize the food preparation

2 area to judge the freshness of the food and to determine the quantities of ingredients

3 placed on their entree, which enables them to “customize” their entrees. Standing

4 customers are provided these opportunities and benefits without having to ask for them.

5

Customers in wheelchairs cannot utilize the facility in the same way. Pursuant to

6 the Policy, they are shown only small amounts of ingredients, one at a time, which fails

7 to enhance the enjoyment of the food. Customers in wheelchairs cannot utilize the

8 facility to determine the quantities of food placed on their entrees and, therefore, cannot

9 customize their entrees. The small samples of food do not afford Plaintiff the ability to

10 judge the freshness of the food. Showing him small samples, one at a time, does not

11 allow him the opportunity to simultaneously compare ingredients to each other.

12 iv. 13

The Benefits, Privileges, Accommodations, Goods and Services Provided to Plaintiff are Different Than Those Provided to Standing Customers and are Presented in Non-Integrated, Separate Settings.

14

Chipotle provides standing customers the opportunity to see the available

15 ingredients and the making of their burrito as they traverse the food service line.

16 Standing customers follow one another down the line as they see, select and direct the

17 making of their entrees. The ordering process is quick.

18

Plaintiff, and people in wheelchairs, are provided with different benefits, services

19 and goods. Small samples of food, shown in cups, by tongfuls, spoonfuls or by

20 handfuls is clearly different than large, steaming bins of food. These benefits, services,

21 etc. are provided at the cashier counter or in the dining area. This is separate from and

22 non-integrated with the food service line utilized by standing customers, which is

23 available to the general public.

24 v. 25 26

It is not “Full and Equal Access” if a Person with a Disability Simply Receives an Entree, Without the Opportunity to Participate In and Receive the Advantages, Privileges and Accommodations Which are Part of the “Chipotle Experience”.

27

“Title III of the ADA protects individuals against discrimination" on the basis of

28 disability in the full and equal enjoyment of the goods, services, facilities, privileges,

6

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 7 of 13

1 advantages, or accommodations of any place of public accommodation." 42 U.S.C. §

2 12182(a). Title III requires that newly constructed facilities be "readily accessible to

3 and usable by individuals with disabilities, except where an entity can demonstrate that

4 it is structurally impracticable." 42 U.S.C. § 12183. In order to carry out these

5 provisions, Congress has directed the Department of Justice (DOJ) to "issue regulations

6 . . . that include standards applicable to facilities" covered by Title III. 42 U.S.C.

7 12186(b).” Caruso v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730, 8 731 (3rd Cir. 1999)

9

The regulations of the ADAAG, then, including the definition of “Equivalent

10 Facilitation”, must be interpreted in such a way that they provide full and equal

11 enjoyment of the goods and services, as well as the facilities, privileges, advantages, or

12 accommodations of any place of public accommodation.

13

The “Chipotle experience” is specifically intended to include the advantage of

14 being able to see all of the available food items, simultaneously, to have the privilege of

15 enjoying the appetizing appearance of the bountiful food, to have the advantage of

16 judging the freshness of the items, to have the privilege of “seeing, selecting and

17 directing” the making of a perfect burrito, to customize one’s burrito or entree, to have

18 the advantage of being able to actually see the preparation of one’s entree so that one

19 can order more or less of an ingredient and to have the privilege of getting one’s food

20 “fast”.

21

42 U.S.C. Sec. 12182(a), does not limit Chipotle’s obligation to provide full and

22 equal access to simply its goods and services. It also requires full and equal

23 “enjoyment” of the “facilities, privileges, advantages, or accomm odations” provided

24 by Chipotle. The opportunity to see tantalizing bins of food is a privilege, not a good or

25 service. The opportunity to “see, select and direct” the making of the perfect burrito is

26 an advantage, not a good or service. The opportunity to order and receive one’s food

27 “fast”, is also an advantage, not a benefit or service.

28

To satisfy the “equivalent facilitation” provision of ADAAG Sec. 2.2, Chipotle

7

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 8 of 13

1 must show that its Policy provides full and equal enjoyment of all that is embraced by

2 the ADA, including the privileges, advantages, accommodations provided by the

3 Chipotle experience.

4

Further, Chipotle’s Policy does not even provide full and equal access to the

5 goods and services available to the general public. Plaintiff did not receive a

6 customized entree because he could not see the portions of ingredients placed into his

7 burrito. He recieved different services because he was shown small smaples of food

8 rather than the bountiful displays available to standing customers.

9 vi. 10

Plaintiff is Entitled to Damages Because He Was Not Provided “Full and Equal Access” to Defendant’s Goods, Services, Accommodations, Benefits, Privileges.

11

Proof of actual damages is not required to recover statutory damages under Civil

12 Code Section 54.3 (See, e.g. Botosan v. McNally Realty, 216 F.3d 827 (9th Cir. 2000).)

13 Plaintiff need only show that he was denied full and equal access to the Chipotle

14 experience. Even if the Policy does constitute “equivalent facilitation”, Plaintiff is still

15 entitled to damages because the Policy was not fully implemented with respect to his

16 visits. That is, Plaintiff was denied any opportunity to see food items on at least four

17 separate visits, which took place prior to the site inspections. Moreover, on all visits to

18 Chipotle, including the site inspections, he was denied the opportunity to see the making

19 of his entree. He, therefore, was denied the opportunity to customize his burrito and/or

20 to see food ingredients despite the existence of the Policy.

21 vii. Plaintiff is Entitled to Injunctive Relief Requiring

Chipotle to Lower The Walls, Which is The Only Way to Provide

22

“Full and Equal Access to Defendant’s Facilities.

23

Chipotle’s ongoing Policy coupled with Plaintiff’s past injury establishes a "real

24 and immediate threat" of his injury occurring again. See Pickern v. Holiday Quality

25 Foods, Inc., 293 F.3d 1133, 1138 (9th Cir. 2002).

26

The Policy is defective, insufficient and discriminatory because it provides

27 access for people in wheelchairs only to benefits, accommodations, privileges,

28 advantages, goods and services which are different, from those provided to standing

8

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 9 of 13

1 customers, and which are separate and non-integrated with those provided to standing

2 customers.

3

The Policy is also defective, insufficient and discriminatory because it allows

4 employees to make subjective decisions about when, if and how the Policy will actually

5 be implemented. Verbal or written descriptions of food and pictures of food do not

6 allow customers to judge the freshness of the ingredients or to determine whether the

7 ingredients are appetizing. The only way that Plaintiff will be provided full and equal

8 access, uniformly and consistently, is to require Chipotle to lower the wall.

9

III.

10

THE EVIDENCE

11

In addition to the admitted facts which require no proof, Plaintiff expects that the

12 evidence will show:

13

1. On his visits, Plaintiff told Chipotle crew members that he could not see

14 over the wall.

15

2. Chipotle crew members never offered accommodations to Plaintiff during

16 any of his visits. Instead, no accommodations of any kind were provided to Plaintiff

17 until he asked for them.

18

3. Plaintiff could not see over the wall and, therefore, had no idea that any

19 accommodations were available, let alone possible.

20

4. Chipotle employees are trained that it is important for customers to be

21 able to see the making of their entrees.

22

5. Chipotle designed the wall in front of the food preparation counter to

23 include a transparent sneeze guard, which allows standing customers to see the

24 ingredients available and the making of their entrees.

25

6. The wall obstructs the view of the average wheelchair users, including

26 Plaintiff.

27

7. Chipotle provides its standing customers with the opportunity to see their

28 entrees built right before their eyes.

9

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 10 of 13

1

8. Plaintiff was never provided the opportunity to watch the making of his

2 entree, or to see his entree built right before his eyes. He never saw his burrito

3 assembled.

4

9. It is typical that standing customers will watch the amount of ingredients

5 being put into their entrees.

6

10. Plaintiff was never provided the opportunity to see the amount of the

7 ingredients placed in his entrees so he never had an effective opportunity to ask for

8 more or less of an ingredient. He was never provided the opportunity to fully customize

9 his entrees.

10

11. It is not uncommon that standing customers will ask for a little bit more or

11 less of an ingredient. Standing customers can see the size of the portion already

12 provided.

13

12. Employees are taught that appearance of the food is very important and

14 seeing the food is also an important part of the “Chipotle experience.” (This is not to

15 be contested per PTC, no. 54, but also appears as contested issue at no.72.).)

16

13. In fact, regular inspections are made of the food to ensure the appearance

17 is up to Chipotle standards.

18

14. Chipotle teaches its employees that the appearance of food greatly

19 influences the perception of the food. It wants its customers to see “visually fresh”

20 food.

21

15. Plaintiff has never been provided an opportunity to determine if the

22 ingredients appear visually fresh.

23

16. As customers place their orders, Chipotle employees are supposed to

24 repeat the order back to the customer and to point to the items the customers has

25 ordered. This correlates the description on the menu board with the food on the line.

26 This is important because some people are visual eaters and “if it looks good then

27 they’ll want it.”

28

17. On numerous occasions, Plaintiff was not been provided an opportunity to

10

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 11 of 13

1 see any portion of the ingredients and, therefore, had no opportunity to correlate the

2 description on the menu board with the food in the line.

3

18. The beans are inspected to determine if they have a hardened crust and are

4 too old to still be on the line. A crust could effect the customer’s evaluation of the food.

5 Standing customers can instantaneously make a decision to decline the crusty beans.

6

19. Showing Plaintiff samples of food in spoons does not allow him the

7 opportunity to judge the freshness of the food - he cannot see if beans are crusty or the

8 barbacoa is dry, for example.

9

20. Mr. Antoninetti was only shown food items one at a time, by spoonfuls,

10 handfuls or in small plastic cups during the site inspections of October 6, 2006. This

11 method is unappetizing and does not allow him to determine the freshness of the food,

12 the elements of a particular ingredient (i.e. whether there are chunks of bacon in the

13 pinto beans) or whether one item is more appetizing in comparison to another item..

14

21. Showing Antoninetti food items in cups, by spoonfuls, by tongfuls and

15 handfuls significantly extended the amount of time to serve Mr. Antoninetti. The delay

16 is embarrassing to Plaintiff.

17

22. Antoninetti visited local Chipotle 2 times before his lawsuit and has

18 returned to Chipotle at least 4 times, including the site inspection.

19

23. Chipotle intends to serve all of its customers fast.

20

24. It may take five minutes for a Chipotle employee to bring ingredients to a

21 separate table so that a customer in a wheelchair could have the experience of having

22 their burrito built right before their eyes.

23

25. Chipotle employees are taught that burritos are made right in front of the

24 customers and the customers get to see and select exactly what goes into their burritos.

25 This is part of the “Chipotle experience” and this is what makes Chipotle different from

26 other fast food Mexican restaurants.

27

26. The menu board fails to accurately or adequately describe all of the items

28 available for selection.

11

Case 3:05-cv-01660-J-WMC Document 210 Filed 11/20/2007 Page 12 of 13

1

27. Standing customers have the opportunity to customize their burrito

2 pursuant to their individual preferences.

3

28. Plaintiff was never able to choose exactly what he wanted in his burrito.

4

29. Customers may make select their type of entree by looking at the large

5 menu hung above the counter. Standing customers then typically look at the bins of

6 ingredients when selecting the actual ingredients and the amounts of ingredients to be

7 placed in their entree. They can see the freshness and quality of the ingredients. They

8 see large bins of appetizing ingredients. They can see all of the ingredients

9 simultaneously and can compare one ingredient to another. Standing customers can

10 customize their entrees.

11

30. Plaintiff selected his types of entrees by looking at the menu board at the

12 restaurants. However, Plaintiff was unable to see the ingredients and had no

13 opportunity to judge their freshness or to see the amount of the ingredients placed on his

14 entree. He, therefore, was not able to customize his entrees.

15

31. All standing customers are able to direct the making of their entree.

16

32. Plaintiff was not able to direct the making of his entree.

17

33. The “Chipotle Experience” involves customers following their burritos as

18 they’re being made and directing what they want in their burritos. One of the “great

19 things about Chipotle” is that customers follow their food items as they’re being

20 prepared and they direct what goes into their burrito.

21

34. Chipotle recognizes that customers want their food fast and Chipotle tries

22 to provide high quality food fast so that the customers have “instant gratification”.

23

35. Chipotle tracks the number of transactions during a given time frame.

24

36. The La Jolla Chipotle typically has 120 to 150 transactions per hour.

25

37. The Encinitas Chipotle has about 84 customers going through the line

26 from noon to 1:00 p.m. Customers are served in less than one minute.

27

38. Employees are taught that customers love to interact and watch closely as

28 their meal is put together.

12

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1

39. The Pacific Beach Chipotle typically has 150 transactions during the

2 three-hour lunch period from 11:00 a.m. to 2:00 p.m. From 12:00 p.m. to 1:00 p.m.,

3 Pacific Beach has approximately 60 to 65 transactions, with an average of 70 to 80

4 customers being served in that hour.

5

40. Plaintiff’s eye level is 45 inches. He could not see over the wall.

6

41. The Know contains everything you need to know to be a manager at

7 Chipotle. Managers are expected to convey to the crew members all of the information

8 in The Know that relates to customer service.

9

Respectfully submitted.

10 DATED: November 20, 2007

LAW OFFICES OF AMY B. VANDEVELD

11

/S AMY B. VANDEVELD

Attorney for Plaintiff

12

email: abvusdc@hotmail.com

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 Case 3:05-cv-01660-J-WMC Document 221 Filed 11/26/2007 Page 1 of 6

1 Amy B. Vandeveld, State Bar No. 137904 LAW OFFICES OF AMY B. VANDEVELD
2 1850 Fifth Avenue, Suite 22 San Diego, California 92101
3 Telephone: (619) 231-8883 Facsimile: (619) 231-8329
4 Attorney for Plaintiff
5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 MAURIZIO ANTONINETTI

11 Plaintiff,

12 vs.

13 CHIPOTLE MEXICAN GRILL, INC. and DOES
14 1 THROUGH 10, Inclusive,

15

Defendants.

16

Case No.: 05 CV 1660 J (WMc)

PLAINTIFF’S REPLY TO CHIPOTLE’S TRIAL BRIEF RE: ISSUE OF INJUNCTIVE RELIEF

Trial Date: November 27, 2007

Time:

8:00 a.m.

Courtroom: 12

Judge: The Honorable Napoleon

A.

Jones, Jr.

17

18

Plaintiff MAURIZIO ANTONINETTI hereby submits his Reply to Chipotle’s

19 Trial Brief Re: the issue of injunctive relief.

20

I.

21

PLAINTIFF NEED ONLY SHOW A VIOLATION

OF THE ADAAG TO ESTABLISH AN ENTITLEMENT

22

TO INJUNCTIVE RELIEF

23 A. Background.

24

Plaintiff contends that the wall which Chipotle constructed in front of its food

25 preparation area prevents him and other wheelchair users from seeing the food

26 ingredients available for selection and the making of his burrito. Plaintiff contends that

27 the opportunity to see these things is integral to the Chipotle experience. Plaintiff

28 further contends that Chipotle’s “Policy” of accommodation fails to provide him with

Case 3:05-cv-01660-J-WMC Document 221 Filed 11/26/2007 Page 2 of 6

1 substantially equivalent or greater access to the benefits, services, privileges and

2 accommodations that Chipotle provides to the general public at its food preparation

3 areas.

4

Plaintiff contends the wall must be lowered to a height which will enable him to

5 see the food preparation area. Plaintiff has not identified any particular design that must

6 be followed to achieve the objective of allowing people in wheelchairs, with eye levels

7 between 43 and 51 inches, to see the food preparation area. In fact, there are myriad

8 ways of accomplishing this. Plaintiff merely seeks an order from the Court ordering

9 Chipotle to modify its wall, in whatever manner Chipotle chooses, as long as the

10 modification results in the ability of people in wheelchairs to see the food preparation

11 area and the ingredients available for selection in the same manner that it is available to

12 standing customers.

13 B. General Injunctive Relief Elements are Inapplicable.

14

Defendant Chipotle Mexican Grill, Inc. (“Chipotle”) incorrectly relies upon

15 Walters v. Reno, 145 F.3d 1032, 1048 (9th Cir. 1998) as setting forth the elements that a

16 plaintiff must prove to obtain injunctive relief in a case brought under the Americans

17 with Disabilities Act (“ADA”) for new construction. The standard requirements for

18 equitable relief need not be satisfied when an injunction is sought to prevent the

19 violation of a federal statute which specifically provides for injunctive relief. Atchison,

20 Topeka and Santa Fe Railway v. Lennen, 640 F.2d 255, 259-61 (10th Cir.1981); see

21 United States v. City and County of San Francisco, 310 U.S. 16, 30-31, 60 S.Ct. 749,

22 756-57, 84 L.Ed. 1050 (1940).

23

In the instant case, Chipotle violated a specific statute designed to protect

24 Plaintiff from the very harm at issue. The Pacific Beach and Encinitas restaurants were

25 designed and constructed for first occupancy in 2002 and, therefore, are “new

26 construction”. The obligations of a public accommodation, with respect to the design

27 ///

28 ///

2

Case 3:05-cv-01660-J-WMC Document 221 Filed 11/26/2007 Page 3 of 6

1 and construction of new facilities, are set forth at 42 U.S.C. Section 121831 of the ADA

2 which states in pertinent part:

3

...(D)iscrimination for purposes of this part includes a

failure to design and construct facilities... that are readily

4

accessible to and usable by individuals with disabilities.

5

Further, 42 U.S.C. Section 12188 of the ADA, states in pertinent part:

6

In the case of violations of ...section 12183(a) of this title,

injunctive relief shall include an order to alter facilities to

7

make such facilities readily accessible to and usable by

individuals with disabilities to the extent required by this

8

subchapter. (emphasis added.)

9

The elements which Plaintiff must satisfy to entitle him to injunctive relief,

10 therefore, are different than the general standards applicable to garden variety claims for

11 injunctions.

12 C. 13

Cost is Not a Factor in Fashioning a Remedy for Violations of New Construction Standards.

14

Plaintiff need not prove the cost of the remedy to bring the facility into

15 compliance with the ADA. Rather, Chipotle had an obligation to design the facility so

16 that it was accessible to and useable by people in wheelchairs from day one. Chipotle

17 allegedly opted to adopt a Policy of accommodation instead of designing the food

18 preparation area with a wall at a height low enough to allow people in wheelchairs to

19 see the food ingredients and the assembly of their entrees. Chipotle’s penalty for

20 guessing wrong is that it must modify the wall to accommodate people in wheelchairs,

21 even if that means completely destroying the whole wall.

22

(A) designer who chooses to utilize alternative methods that

it believes will provide equal or greater access runs the risk

23

that DOJ or the courts will not share his or her enthusiasm.

In any enforcement action the burden will be upon the

24

designer to demonstrate that the alternative method

qualifies as an equivalent facilitation. See TAM (1994

25

supp.) § III-7.2100. The penalties for guessing wrong can be

quite severe, especially for new construction; in extreme

26

27

28 1

The parallel regulations is 28 CFR 36.401.

3

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1

cases the court may order a non-compliant structure to

be torn down and rebuilt in compliance with ADA

2

standards. That prospect should serve to discourage abuse

of the equivalent facilitation exception.

3

Independent Living Resources v. Oregon Arena,

4 (D. Or. 1997) 982 F.Supp. 698, 727

5

In Independent Living Resources, the court addressed the different standards

6

applicable to new construction and to existing facilities:

7

This particular discussion (about Technical Assistance

8

Manual (“TAM”) § III-4.4600) concerned the requirements

for removing barriers in existing construction. The Rose

9

Garden is subject to the rules for new construction.

Consequently, the "readily achievable" qualification is

10

inapplicable here, since new construction must meet the

highest standards. See H.R. Rep. No. 101-485 (III) at 60

11

(explaining distinction between the two standards), reprinted

at 1990 U.S.C.C.A.N. 445, 483, 485-86. In contrast to

12

existing construction, there is no cost defense to the

requirements for new construction. TAM § III-5. 1000.

13

(emphasis added.)

14 Independent Living Resources, 982 F.Supp. 698 at fn. 38

15

Chipotle’s reliance on Access Now, Inc. v. South Florida Stadium Corporation,

16 161 F.Supp.2d 1357, 1369 (S.D. Fla. 2001) is inapposite. That case involved an

17 existing facility. The “readily achievable” standard applied, which involved a

18 consideration of the cost and effort required to remove the barrier. (See 28 C.F.R. Sec.

19 36.304 and 28 C.F.R. Sec. 36.104 (definition of “readily achievable”).)

20

In contrast, new construction must be designed and constructed in the first

21 instance so that it is accessible to and useable by people with disabilities. The only

22 defense to compliance with the ADA is structural impracticability.

23

The ADA requires that newly-constructed facilities be

"readily accessible and usable by individuals with

24

disabilities. " See 42 U.S.C. § 12183(a)(1). This command

to build accessible facilities is excepted only if meeting the

25

requirements of the Act would be "structurally

impracticable." (citation omitted); See also Long v. Coast

26

Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001)("We need

not decide whether the ADA forecloses the possibility that a

27

court might exercise its equitable discretion in fashioning

relief for violations of § 12183(a) . . . because there is no

28

room for discretion even if it exists")(citation omitted)).

4

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1 Eiden v. Home Depot, 2006 U.S. Dist. LEXIS 38423 (E.D. CA. May 26, 2006)

2

While the Magistrate Judge in Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir.

3 2001) was persuaded by an argument similar to that raised by Chipotle in this case,

4 (“Considering the enormous expense required to modify the structure, and the near

5 absence of hardship and that constituting a minimal inconvenience to wheelchair users,

6 this Court is loathe [sic] to grant injunctive relief to Plaintiffs on this issue"), our Ninth

7 Circuit decidedly rejected that position:

8

The magistrate judge's ruling was in error. In contrast to

grandfathered facilities, the ADA requires that newly

9

constructed facilities be "readily accessible and usable by

individuals with disabilities." 42 U.S.C. § 12183(a)(1). We

10

need not decide whether the ADA forecloses the possibility

that a court might exercise its equitable discretion in

11

fashioning relief for violations of § 12183(a), see e.g., Tenn.

Valley Auth. v. Hill, 437 U.S. 153, 174, 57 L. Ed. 2d 117, 98

12

S. Ct. 2279 (1978), because there is no room for discretion

here even if it exists. This violation resulted in the very

13

discrimination the statute seeks to prevent: it denied

individuals with disabilities access to public

14

accommodations. Moreover, the only statutory defense for

noncompliance -- structural impracticability -- does not

15

apply to the Orleans because the terrain on which it is

constructed has no unique characteristics which would make

16

accessibility unusually difficult to achieve. See 42 U.S.C. §

12183(a)(1). Thus, we reverse the magistrate's

17

determination that, because the Orleans demonstrated

obedience to the spirit of the ADA, plaintiffs were not

18

entitled to injunctive relief.

19 Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001) (emphasis added.)

20 D. 21

Chipotle Must Modify the Wall to Satisfy Its Obligation to Provide Equivalent Facilitation.

22

The Court previously ruled on the parties’ motions for summary judgment and

23 decided that ADAAG Section 7.2(2) applied to the food preparation area at issue.

24 ADAAG Section 7.2(2) provides three options for compliance with a public

25 accommodation’s obligations to provide full and equal access to its goods, services,

26 facilities, accommodations, privileges, etc. The Court rejected the first two options and

27 held that Chipotle might still satisfy its obligations under the third option if its Policy

28 provided “equivalent facilitation” to people in wheelchairs.

5

Case 3:05-cv-01660-J-WMC Document 221 Filed 11/26/2007 Page 6 of 6

1

In the instant case, if the Court determines that Chipotle’s Policy does not

2 provide equivalent facilitation, Chipotle has offered no other alternative design,

3 construction or method that would provide equivalent facilitation. The Court, then,

4 would have no discretion but to order Chipotle to modify the wall so that people in

5 wheelchairs, with eye levels of between 43 and 51 inches, can see the food preparation

6 area. Chipotle can only avoid this obligation if it can show that it was structurally

7 impracticable in the first instance to design a food preparation area that is accessible to

8 and useable by people in wheelchairs.

9

II.

10

CONCLUSION

11

Plaintiff need not establish that the wall can be modified. Nor must he show that

12 the cost of modification is outweighed by the benefit to people in wheelchairs. If

13 Chipotle fails to establish that the Policy does not provide equivalent facilitation, it must

14 provide a food viewing area that is visible to people in wheelchairs, regardless of the

15 expense.

16

Respectfully submitted.

17 DATED: November 26, 2007

LAW OFFICES OF AMY B. VANDEVELD

18

/S AMY B. VANDEVELD

Attorney for Plaintiff

19

email: abvusdc@hotmail.com

20

21

22

23

24

25

26

27

28

6

 
 Case 3:05-cv-01660-J -WMC Document 239 Filed 04/21/08 Page 1 of 10

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10

11

12 MAURIZIO ANTONINETTI,

)

)

13

Plaintiff,

)

v.

)

14

)

15

CHIPOTLE MEXICAN GRILL, INC. and DOES 1 THROUGH 10, Inclusive,

) ) )

16

Defendants.

) )

17

)

Civil Case No. 05cv1660 J (WMc)
ORDER DENYING PLAINTIFF’S MOTION TO AMEND FINDINGS OF FACT AND FOR ADDITIONAL FINDINGS.

18

19

Before the Court is Plaintiff Maurizio Antoninetti’s (“Plaintiff”) Motion to Amend

20 Findings of Fact and for Additional Findings of Fact (“Motion”) pursuant to Federal Rules of

21 Civil Procedure, Rule 52(b). For the reasons set forth below, the Court DENIES Plaintiff’s

22 Motion.

23

Background

24

On August 22, 2005, Plaintiff, who is wheelchair bound, brought the above-captioned

25 action against Defendant Chipotle Mexican Grill, Inc. (“Defendant” or “Chipotle”) under Title

26 III of the Americans with Disabilities Act (“ADA”) and under the California Disabled Persons

27 Act (“CDPA”). [Doc. No. 1.] Plaintiff claimed that Defendant denied him full and equal access

28 to two of its restaurants, one in Encinitas and the other in Pacific Beach. (Id.) Plaintiff claimed

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05cv1660 J (WMc)

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1 that he was denied the Chipotle experience because the 44 inch food preparation counters

2 obstructed his view. (Id.)

3

On November 27, 29, 30 and December 3, the Court held a bench trial. In its Findings of

4 Fact, Conclusions of Law, and Judgment, the Court found that: (1) Defendant’s prior practice of

5 accommodating customers with disabilities, including customers in wheelchairs, did not

6 constitute equivalent facilitation under Section 7.2(2)(iii) of the ADAAG; (2) Defendant’s

7 current written Customers with Disabilities Policy constitutes equivalent facilitation under

8 Section 7.2(2)(iii) of the ADAAG; (3) Plaintiff is not entitled to an injunction requiring

9 Defendant to lower the wall in front of the Restaurants’ food preparation counters; and (4)

10 Plaintiff is entitled to a total of $5000.00 in damages for the occasions on which he encountered

11 barriers to his entrance into Defendant’s restaurants. [Doc. No. 229 at 2-3.]

12

On January 22, 2008, Plaintiff filed a Motion to Amend Findings of Fact and for

13 Additional Findings of Fact. [Doc. No. 230.] On February 25, 2008, Defendant filed its

14 Opposition to Plaintiff’s Motion. [Doc. No. 236.] On March 3, 2008, Plaintiff filed its Reply to

15 Defendant’s Opposition. [Doc. No. 237.]

16

Legal Standard

17

Rule 52(b) of the Federal Rules of Civil Procedure states the applicable standard for a

18 party to amend a court’s findings of fact: “On a party’s motion filed no later than 10 days after

19 entry of judgment, the court may amend its findings- or make additional findings- and may

20 amend the judgment accordingly.” Fed. R. Civ. P. 52(b).

21

One of the purposes of Rule 52(b) is to provide the court an opportunity to correct

22 manifest errors of law or fact. Pro Edge L.P. v. Gue, 377 F.Supp.2d 694, 698 (N.D. Iowa 2005);

23 Padilla v. Miller, 143 F.Supp.2d 479, 487 (M.D. Pa. 2001) (“To prevail on a motion to amend ...

24 the movant must show that the motion is necessary to correct manifest errors of law or fact.”).

25 Other recognized grounds for a motion under Rule 52(b) are where a party seeks to amend a

26 judgement based on new evidence not available at trial or where there has been a change in the

27 controlling law. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1291-1220 (5th Cir. 1986);

28 Diebitz v. Arreola, 834 F.Supp.298, 302 (E.D. Wis. 1993).

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1

However, Rule 52(b) is “not intended to serve as a vehicle for rehearing.” Davis v.

2 Mathews, 450 F.Supp.308, 318 (E.D. Cal. 1978). A party may not use a Rule 52(b) motion to

3 introduce any new facts or legal theories that were available to them at trial, much less re-litigate

4 facts and legal theories that have previously been rejected by the court. Fontenot, 791 F.2d at

5 1291-1220; Diebitz, 834 F.Supp. at 302.

6

The court’s findings of fact and conclusions of law are entitled to a presumption of

7 validity, and the party seeking to amend those findings bears the heavy burden of establishing a

8 sufficiently serious factual or legal error that would warrant such. U.S. v. Anderson, 591 F.Supp.

9 1, 4 (E.D. Wash. 1982), aff’d in part, rev’d in part on other grounds (citing Purer & Co. v.

10 Aktiebolaget Addo, 410 F.2d 871, 878 (9th Cir. 1969)); Wallace v. Brown, 485 F.Supp. 77, 79

11 (S.D.N.Y. 1979). Furthermore, a motion to amend a court’s factual and legal findings is

12 properly denied where the proposed additional facts would not affect the outcome of the case or

13 are immaterial to the court’s conclusions. Weyerhaeuser Co. V. Atropos Island, 777 F.2d 1344,

14 1352 (9th Cir. 1985); Lyons v. Jefferson Bank & Trust, 793 F.Supp. 989, 991 (D. Colo. 1992),

15 aff’d in part, rev’d in part on other grounds, 994 F.2d 716 (10th Cir. 1993).

16

Discussion

17

Plaintiff argues that “to determine whether Chipotle’s methods of accomodation provide

18 equivalent facilitation, and to determine the nature of the required remedy, the “Chipotle

19 Experience” must first be adequately and accurately defined.” [Doc. No. 230 at 2.] Specifically,

20 he argues that the Court should include additional findings of fact relating to the “Chipotle

21 experience” for standing customers who can see over the wall, the methods of accommodation

22 for people in wheelchairs, Plaintiff’s experience at Chipotle, his litigation history, Chipotle’s

23 written Customers With Disabilities Policy, and the menu board. (Id. at 3-12.)

24

Plaintiff has failed to establish any factual or legal grounds for his motion to amend under

25 52(b). As stated above, amendment under 52(b) requires a showing of manifest error of law or

26 fact in the Court’s judgment, new evidence not available at trial, a change in the controlling law,

27 or additional facts that would affect the outcome of the case. E.g., Pro Edge, 377 F.Supp.2d

28

3

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1 694, 698; Fontenot, 791 F.2d 1207, 1291-1220; Anderson, 591 F.Supp. 1, 4; Weyerhaeuser, 777

2 F.2d 1344, 1352. Plaintiff has failed to make any of these showings.

3 I. Absence of Manifest Error of Law or Fact in the Court’s Judgment

4

Plaintiff argues that the Court must include his proposed additional findings of fact

5 regarding the “Chipotle experience” for standing customers who can see over the wall. [Doc.

6 No. 230 at 3-6.] With respect to this argument, Plaintiff has failed to identify any manifest error

7 in the Court’s findings. Plaintiff wishes to elaborate on the ability of standing customers to

8 determine, for example, whether the chicken is in chunks or strips, whether or not the barbacoa

9 is dry, and whether or not the bins are empty or recently replenished. (Id.) In its Findings of

10 Facts and Conclusions of Law, the Court made the specific finding that “Chipotle provides

11 specific details for the appearance of its food” and that “[c]ustomers can actually see if the rice is

12 bright white or has freshly chopped cilantro in it.” [Doc. No. 229 at 3.] The Court also found

13 that “[s]ome people are visual eaters and if the food looks good, they will want to eat it.” (Id. at

14 11.) Most importantly, though, the Court described the elements that Plaintiff now attempts to

15 elaborate on in great detail as being part of the “Chipotle experience,” yet found that “the ability

16 to see the freshness of the quality ingredients ... has always been of secondary importance to the

17 appearance and taste of the food.” (Id. at 3.) Plaintiff has not identified any error in these

18 factual findings. Instead, Plaintiff merely attempts to include additional facts that are not

19 inconsistent with what the Court already found. This is insufficient to show manifest error.

20

Plaintiff’s argument that the Court must include his proposed additional findings of fact

21 regarding the methods of accommodation for people in wheelchairs again fails to identify any

22 manifest error in the Court’s findings. [Doc. No. 230 at 6.] Plaintiff claims that Chipotle’s

23 methods of accommodation deny people in wheelchairs the opportunity to be served as quickly

24 as standing customers. (Id.) Plaintiff wishes to include findings that some customers are able to

25 proceed through the line in one minute or less, that it takes a customer an average of two minutes

26 to proceed through, and that it took Plaintiff three minutes to proceed through. (Id. at 6-7.)

27 Plaintiff’s proposed findings are unnecessary, however, because the Court already included the

28 latter two findings in its Findings of Fact. [Doc. No. 229 at 14.] The first proposed finding, that

4

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1 some customers can be served in one minute or less, is implicitly included in the finding about

2 average times. (Id.) Furthermore, Plaintiff fails to establish that the length of time needed to

3 proceed through the line is in direct correlation with whether a person has a disability. Indeed,

4 the Court found that many able-bodied customers can take up to ten minutes to proceed through

5 the line, substantially longer than the average of two minutes. (Id.) With this finding in mind, it

6 is apparent that Plaintiff has failed to show any manifest error.

7

Plaintiff also argues that the Court failed to include evidence critical to Mr. Antoninetti’s

8 experience at Chipotle during the site inspections of October 6, 2006, such as the fact that he

9 was not advised of available accommodations, he was not shown food items until he asked to see

10 them, and he did not know how much of each food item went into his burrito. [Doc. No. 230 at

11 8-10.] Again, Plaintiff’s argument fails to establish any manifest error of law or fact. The Court

12 found that Chipotle created and implemented its written Policy for Customers With Disabilities

13 in February of 2007, after Plaintiff’s experiences at either restaurant as a bona fide customer.

14 The Court indeed found that it could not with any confidence find that Plaintiff had received

15 equivalent facilitation during his bona fide visits, and found in favor of Plaintiff for those visits.

16 [Doc. No. 229 at 31-32.] However, the Court also found that “Plaintiff [was] not entitled to

17 recover damages in connection with his visit to the Pacific Beach Restaurant three days before

18 his deposition or in connection with site-inspection visits to the two Restaurants, because, in

19 each instance, he was not a bona fide customer ... []” (Id.) Hence, Plaintiff’s proposed

20 additional findings regarding his experience during the site inspections are irrelevant and do not

21 establish manifest error in the Court’s findings concerning Chipotle’s written policy.

22

Finally, Plaintiff fails to establish any manifest error of law or fact with respect to his

23 proposed additional findings about Plaintiff’s litigation history. [Doc. No. 230 at 12.] The

24 Court found that Plaintiff has personally sued at least twenty-two establishments or businesses

25 for alleged accessibility violations. [Doc. No. 229 at 4.] Plaintiff argues that he has filed suit

26 against only six different sites. [Doc. No. 230 at 12.] To arrive at this number, Plaintiff is

27 counting eighteen different stores at Oceanside Mall as one site. Plaintiff’s proposed finding of

28 fact is misleading, and is not inconsistent with the Court’s findings. The Court found that “[a]s a

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1 result of his visit to Oceanside Mall, Plaintiff agreed to be, and in fact became, a plaintiff in

2 accessibility lawsuits ... against at least eighteen separate businesses that had stores at Oceanside

3 Mall.” [Doc. No. 229 at 5.] Plaintiff has not demonstrated any manifest error in these findings

4 of fact.

5 II. Absence of New Evidence not Available at Trial or a Change in the Controlling Law.

6

In his Motion to Amend, Plaintiff has failed to introduce either new evidence that was not

7 available at trial or a change in the controlling law that would justify his proposed amendments.

8 In his proffer, Plaintiff actually cites exclusively to the trial transcripts and exhibits in this case,

9 showing that all of the evidence upon which Plaintiff relies was available and was presented at

10 trial. Moreover, Plaintiff has not cited any new controlling case law that would affect the

11 Court’s decision. Motions to amend a court’s factual and legal findings may not be used to re-

12 litigate arguments that have already been presented to the Court. Davis v. Mathews, 450 F.Supp.

13 at 318; Fontenot, 791 F.2d at 1291-1220; Diebitz, 834 F.Supp. at 302. The Court evaluated and

14 reached a concise conclusion on all matters brought forth at trial, and its order reflects that.

15 Plaintiff’s motion, if granted, would just render the order repetitive.

16 III. Ineffectiveness of Plaintiff’s Proposed Additional Facts.

17

A motion to amend a district court’s factual and legal findings is properly denied where

18 the facts that the moving party seeks to add would not affect the outcome of the case or are

19 immaterial to the court’s conclusions. Weyerhaeuser Co., 777 F.2d at 1352. None of the facts

20 Plaintiff proposes to add would affect the outcome of the case, and furthermore, most of them

21 are immaterial to the Court’s conclusions.

22

Plaintiff argues for the inclusion of facts pertaining to the Chipotle experience for

23 customers who can see over the wall, such as their ability to look at all the bins and ingredients,

24 determine which items are more visually appealing or fresh, and watch the burrito being built.

25 [Doc. No. 230 at 3-6.] These proposed additional findings would not affect the outcome of the

26 case because they do not take into account Chipotle’s written accommodations for disabled

27 customers and non-disabled customers who cannot see over the wall. The Court found that

28 Chipotle’s written policy “describes at least three accommodations ... which provide substan-

6

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1 tially equal access to Chipotle facilities.” [Doc. No. 229 at 32.] These accommodations

2 include, but are not limited to, placing samples of food in souffle cups and showing them to the

3 customer, allowing a customer to see or sample the food at a table, and describing the food or

4 food preparation process to the customer. (Id. at 21.) As such, Plaintiff’s proposed findings of

5 fact regarding the experience for standing customers would have no bearing on the Court’s

6 finding that Chipotle’s written accommodations provide disabled and non-disabled customers

7 who cannot see over the wall with a substantially similar opportunity to enjoy the Chipotle

8 experience. (Id. at 32.)

9

Moreover, Plaintiff’s proposed additional findings regarding the amount of time it takes

10 to serve its customers would have no affect on the outcome of the case. Plaintiff moves to

11 include the fact that a standing customer can go through the line in one minute or less, that

12 Chipotle employees determined that the average amount of time to serve customers is two

13 minutes, and that it took three minutes for Plaintiff to be able to see the food ingredients

14 available for selection, not including the time it took for him to watch his burrito being assem-

15 bled. [Doc. No. 30 at 6-7.] As outlined above, the Court has already included Plaintiff’s

16 proposed additional findings about the average length of time it takes for a customer to proceed

17 through the line as well as the length of time it took Plaintiff to proceed through. [Doc. No. 229

18 at 28.] Again, the fact that it takes some customers one minute to proceed through the line is

19 implicit in the finding that the average time is two minutes. (Id.) Accordingly, such additional

20 facts would have no effect on the outcome of the case.

21

Plaintiff’s proposed additional findings of fact regarding the menu board would also have

22 no affect on the outcome of the case. [Doc. No. 230 at 8.] Plaintiff argues that the Court must

23 include the fact that “simply looking at the menu board does not offer the Chipotle Experience,”

24 because the menu board itself does not allow a person to see, for example, the freshness of

25 ingredients, or to determine whether a mistake has been made. (Id.) The Court expressly found

26 that “the ability to see the freshness of the quality of ingredients ... has always been of secondary

27 importance to the appearance and taste of the food once it has been prepared and served to the

28 customer.” [Doc. No. 229 at 3.] Furthermore, the Court did not rely on any assumption that the

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1 menu board provided such information in reaching its conclusion that Chipotle’s written policy

2 provides customers with disabilities with equivalent facilitation. Therefore, Plaintiff’s proposed

3 findings of fact are irrelevant and would have no effect on the outcome of the case.

4

Plaintiff’s argument that the Court should include additional findings regarding

5 Chipotle’s written Policy for Customers With Disabilities is equally without merit. [Doc. No.

6 230 at 10-11.] In its findings, the Court dismissed Chipotle’s general policy as insufficient but

7 determined that the written policy guidelines rendered equivalent facilitation because they

8 provided disabled customers with substantially equal or greater access to Chipotle’s facilities.

9 [Doc. No. 229 at 32.] The written policy provides that Chipotle “will offer a suitable accommo-

10 dation based on the individual circumstances, and will be responsive to customer’s requests.”

11 (Id. at 21.) Plaintiff alleges deficiencies with Chipotle’s written policy, namely, that it is

12 defective and inadequate because not all methods of accommodation are listed and because

13 employees are allowed to use their common sense in devising accommodations. [Doc. No. 230

14 at 10-11.] The absence of a list of every possible accommodation does not render the written

15 policy ineffective, particularly because accommodations differ drastically depending on the

16 specific disability or the disabled person’s needs and desires. [Doc. No. 229 at 32-33.] If

17 accepted, Plaintiff’s request would limit Chipotle’s methods of accommodation by requiring

18 Chipotle to abide by a specific set written in policy form as opposed to providing general

19 guidelines but allowing employees to use their best judgment and listen to disabled customers’

20 accommodation requests. Since the language of the order explicitly considered the multitude of

21 options available to Chipotle employees in accommodating disabled persons, none of Plaintiff’s

22 proposed additional findings relating to the written policy would change the outcome of the

23 Court’s findings.

24

Plaintiff’s proposed additional findings of fact regarding his experiences also would have

25 no impact on the outcome of the case. Plaintiff moves to include evidence that he was not

26 advised of available accommodations, he was not shown food items until he asked to see them,

27 and he did not know how much of each food item went into his burrito. [Doc. No. 230 at 8-10.]

28 As explained above, the Court has already found that Plaintiff did not visit the restaurants as a

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1 bona fide customer when Chipotle’s written Customers With Disabilities Policy was imple-

2 mented. [Doc. No. 229 at 34.] Accordingly, Plaintiff’s experiences prior to that have no bearing

3 on the Court’s findings about the policy.

4

Finally, Plaintiff’s proposed additional factual findings regarding his litigation history,

5 outlined above, would not affect the outcome of the case. The central issue in the case was

6 whether Plaintiff was denied full and equal access to two of Chipotle’s restaurants. [Doc. No.

7 229 at 1.] The Court has already determined that Chipotle’s policy prior to the implementation

8 of the written policy did not constitute equivalent facilitation, but that Chipotle’s written policy

9 did constitute such. [Doc. No. 229 at 32.] Neither the Court’s finding that Chipotle’s written

10 disability policy is an equivalent facilitation, nor its award of damages for Plaintiff’s visits to the

11 restaurants prior to the creation of the policy was dependent upon Plaintiff’s litigation history.

12

The Court only considered Plaintiff’s litigation history in determining whether injunctive

13 relief was appropriate, an element of which is irreparable injury. [Doc. No. 229 at 34-35.] The

14 Court found that Plaintiff failed to satisfy his evidentiary burden for his requested injunctive

15 relief, because he could not show that he had a sincere intent to return. (Id. at 35). The Court

16 found that “Plaintiff has sued over twenty business entities for alleged accessibility violations,

17 and in all (but one) of those cases, he never returned to the establishment he sued after settling

18 the case and obtaining a cash payment.” (Id. at 36). The Court specifically found that eighteen

19 of those lawsuits were filed after a one-day visit to a mall in Oceanside, rendering Plaintiff’s

20 argument that he filed suit against only six sites not only misleading, but irrelevant, given the

21 Court’s discussion of the specifics. (Id.) The Court additionally considered, in determining

22 whether Plaintiff has a sincere intent to return to Chipotle, the fact that Plaintiff only visited the

23 Encinitas Restaurant once, three years ago (disregarding his site inspection for the purposes of

24 litigation), and that Plaintiff only visited the Pacific Beach Restaurant once in February 2005,

25 and twice, for purposes of litigation, in October 2006. (Id. at 35-36). Aside from those visits,

26 Plaintiff was unable to recall the dates or even the exact number of his other visits to the Pacific

27 Beach Restaurant, other than that they all occurred after he filed this lawsuit. (Id. at 36). The

28 Court carefully considered the full details of Plaintiff’s litigation history as well as the details of

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1 his Restaurant visits in this case, in reaching its conclusion that Plaintiff does not have a sincere

2 intent to return to Chipotle. Accordingly, Plaintiff’s proposed findings do not merit amendment

3 to the Court’s Findings of Fact and Conclusions of Law.

4

Conclusion

5

For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Amend Findings of

6 Fact and for Additional Findings of Fact.

7

IT IS SO ORDERED.

8

9 DATED: April 21, 2008

10

HON. NAPOLEON A. JONES, JR.

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United States District Judge

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cc: Magistrate Judge William McCurine 13 All Counsel of Record

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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10

MAURIZIO ANTONINETTI

) Civil No. 05CV1660-J (WMc)

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)

Plaintiff,

) Related to & Consolidated for Discovery

12

) with 06cv2671 (Wmc)

v.

)

13

) ORDER:

CHIPOTLE MEXICAN GRILL, INC., ) (1) DENYING PLAINTIFF’S

14 AND DOES 1 THROUGH 10, inclusive, ) MOTION FOR

) RECONSIDERATION [DOC. NO.

15

Defendants. ) 273]

)

16

(2) GRANTING IN PART AND

DENYING IN PART PLAINTIFF’S

17

AMENDED BILL OF COSTS

18

19

Presently before the Court is Plaintiff’s Motion for Reconsideration and Bill of Amended

20 Costs. On August 21, 2008, the Court issued an order granting in part Plaintiff’s Motion for

21 Attorney’s Fees and Costs, awarding reasonable attorneys’ fees to Plaintiff based on reasonable

22 time spent litigating the claims upon which Plaintiff prevailed at trial, and directing Plaintiff to

23 submit an amended Bill of Costs. [Doc. No. 271.] Plaintiff filed a Motion for Reconsideration of

24 this ruling and submitted an Amended Bill of Costs. [Docs. No. 273-274.] Defendant has

25 opposed both the Motion for Reconsideration and the Amended Bill of Costs. [Docs. No. 283-

26 284.] The Court heard oral argument on these matters on October 20, 2008.

27 //

28 //

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1

Background

2

Plaintiff initiated this action against Defendant Chipotle Mexican Grill, Inc. in 2005

3 alleging various violations of the Americans with Disabilities Act (ADA) and the California

4 Disabled Persons Act (CDPA). Plaintiff asserted that architectural barriers denied Plaintiff full

5 and equal access to two of Defendant’s restaurants and sought monetary damages, injunctive

6 relief, and declaratory relief. This Court held a bench trial in this action November 27-Decem-

7 ber 3, 2007. At trial, the Court made the following findings: (1) Defendant’s prior practice of

8 accommodating customers with disabilities, including customers in wheelchairs, did not

9 constitute equivalent facilitation under section 7.2.(2)(iii) of the ADA Accessibility Guidelines;

10 (2) Defendant’s current written Customers with Disabilities Policy constitutes equivalent

11 facilitation under Section 7.2(2)(iii); (3) Plaintiff is not entitled to an injunction requiring

12 Defendant to lower the wall in front of the restaurants’ food preparation counters; and (4)

13 Plaintiff is entitled to a total of $5,000.00 in damages for the occasions on which he encountered

14 barriers to his entrance into Defendant’s restaurants.

15

On May 5, 2008 Plaintiff filed a Motion for Attorney’s Fees and Costs pursuant to 42

16 U.S.C. § 12205 in which he sought $550,651.33 in fees and expenses. [Doc. No. 241.] The

17 Court granted Plaintiff’s Motion for Attorney’s Fees and Costs in part, finding that Plaintiff was

18 entitled to reasonable attorneys’ fees for time spent litigating the issues upon which Plaintiff

19 prevailed at trial–those related to equal facilitation under the unwritten customer policy and

20 damages for violations of California Civil Code Sections 54 and 54.3–as well as for time spent

21 litigating issues that were necessarily intertwined with those issues–namely, the issues regarding

22 Defendant’s parking lot violations and any related ADA claims. [Doc. No. 271.] The Court

23 further ordered Plaintiff to “submit a copy of his Bill of Costs so the Court may determine a

24 reasonable amount for attorneys’ fees.” (Id.)

25

Discussion

26 I. Plaintiff’s Motion for Reconsideration

27

Plaintiff has filed a Motion for Reconsideration of the Court’s ruling on Plaintiff’s

28 Motion for Attorney’s Fees. [Doc. No. 273.] Plaintiff argues that the Court committed clear

2

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1 error with respect to the timing of Defendant’s parking modifications, which the Court discussed

2 in the context of determining whether the public had sustained a benefit from Plaintiff’s

3 litigation. Plaintiff contends that the Court’s statements about the parking modifications are

4 factually erroneous and that the Court should reconsider and amend its ruling on Plaintiff’s

5 Motion for Attorney’s Fees because of the factual errors underlying the Court’s decision.

6 Plaintiff also requests that the Court include in its order that “Plaintiff’s lawsuit provided a

7 public benefit because the parking lots at the Chipotle restaurants were modified as a result of

8 Plaintiff’s lawsuit.”

9

A. Legal Standard for a Motion for Reconsideration

10

The Federal Rules of Civil Procedure do not expressly provide for motions for reconsid-

11 eration. However, a motion for reconsideration may be construed as a motion to alter or amend

12 the judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169,

13 174 (1989); In re Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994).

14 Motions for reconsideration are not vehicles permitting the unsuccessful party to reiterate

15 arguments previously presented. See Costello v. United States Government, 765 F. Supp. 1003,

16 1009 (C.D. Cal. 1991); see also United States v. Navarro, 972 F. Supp. 1296, 1299 (E.D. Cal.

17 1999), rev’d on other grounds, 160 F.3d 1254 (9th Cir. 1998) (Rule 59(e) motions “are not

18 vehicles permitting the unsuccessful party to ‘rehash’ arguments previously presented”).

19 Generally, “[r]econsideration is appropriate if: (1) the district court is presented with newly

20 discovered evidence, (2) the district court committed clear error or the initial decision was

21 manifestly unjust, or (3) if there is an intervening change in controlling law. There may also be

22 other, highly unusual, circumstances warranting reconsideration.” Sch. Dist. No. 1J v. ACandS,

23 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994).

24

B. Clear Error

25

Plaintiff contends that the Court committed clear error in its statements about the timing

26 of modifications Defendant made to its parking lots. In the Court’s Order, it wrote:

27

“Defendants had already rectified many of the ADA violations regarding parking

prior to the filing of the lawsuit. . . . The public has not sustained any significant

28

benefit from Plaintiff’s litigation. The issue regarding the parking barriers on

which Plaintiff prevailed under California Civil Code §§ 54 and 54.3 had been

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1

rectified in accordance to ADA standards prior to Plaintiff’s litigation. The Court

did not order Defendant to take measures to rectify its ADA parking violations as a

2

result of Plaintiff’s litigation.” [Doc. No. 271 at 5.]

3 These statements are factually incorrect. Plaintiff points to the deposition testimony of Scott

4 Shippey and Kim Blackseth, which indicates that the ADA parking violations existed after the

5 initiation of Plaintiff’s lawsuit and that modifications were made as a result of Plaintiff’s lawsuit.

6 [Doc. No. 273-2 at 3.] Defendant also concedes that “Plaintiff is correct that Chipotle corrected

7 the alleged parking lot violations at the Pacific Beach and Encinitas Restaurants after Plaintiff

8 filed his lawsuit.” [Doc. No. 284 at 2.] The Court did not order modifications to Defendant’s

9 parking areas at the conclusion of trial because no violations existed at that time, but Defendant

10 did modify the parking lots after the initiation of the litigation.

11

Although the Court made a factual misstatement in its Order, it is not evident that

12 this misstatement undermined the reasoning of the Order or affected the Court’s decision.

13 The Court concluded that Plaintiff’s litigation did not result in any significant public

14 benefit, in part based on its mistaken statement that the parking violations were remedied

15 before the litigation. Public benefit, however, is just one factor that a court may consider

16 in reducing or enhancing the lodestar figure for attorney’s fees. As the Court stated in its

17 Order, “‘The most critical factor’ in determining the reasonableness of a fee award ‘is the

18 degree of success obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley

19 v. Eckerhart, 461 U.S. 424, 436 (1983)). The Court’s Order relied most heavily on this

20 factor, and it ordered that Plaintiff should receive attorneys’ fees for the time spent on the

21 claims upon which he prevailed. Notably, although the Court found that the litigation did

22 not provide a public benefit, the Court did not rely on that factor to deny attorneys’ fees to

23 Plaintiff.

24

Furthermore, the Court’s Order did authorize an award of attorneys’ fees for the

25 work done in relation to the parking lot violations. The Court wrote, “[T]he issues

26 regarding Defendant’s parking lot violations and unwritten customer accommodations

27 policy and any related ADA claims are necessarily intertwined and Plaintiff should receive

28 reasonable fees for time spent on those issues.” [Doc. No. 271 at 7.] Therefore, the Court’s

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1 misstatement about the timing of the parking lot modifications did not affect Plaintiff’s

2 ability to recover attorneys’ fees related to those claims. As a result, a revision of the

3 Court’s Order with regard to the timing of the parking lot modifications would have no

4 effect on the fees to which Plaintiff is entitled.

5

Accordingly, the Court DENIES Plaintiff’s Motion for Reconsideration.

6

7 II. Plaintiff’s Amended Bill of Costs

8

A. Legal Standard for an Award of Attorneys’ Fees

9

The ADA provides that the court “in its discretion, may allow the prevailing party . .

10 . a reasonable attorneys’ fee, including litigation expenses, and costs.” See 42 U.S.C. §

11 12205. Under both the ADA and state anti-discrimination fee shifting statutes, courts are

12 required to employ the lodestar method in calculating attorneys’ fees, in which fees are

13 assessed by multiplying the hours reasonably expended on the litigation by a reasonable

14 hourly rate. Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003); Morales v. City of

15 San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). Additionally, courts consider other relevant

16 factors adopted by the Ninth Circuit in Kerr v. Screen Guild Extra, Inc., 526 F.2d 67, 70

17 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). These factors include:

18

(1) the time and labor required; (2) the novelty and difficulty of the

questions involved; (3) the skill requisite to perform the legal service

19

properly; (4) the preclusion of other employment by the attorney due to

the acceptance of the case; (5) the customary fee; (6) whether the fee is

20

fixed or contingent; (7) time limitations imposed by the client or the

circumstances; (8) the amount involved and results obtained; (9) the

21

experience, reputation and ability of the attorneys; (10) the

“undesirability” of the case; (11) the nature and length of the profes-

22

sional relationship; and (12) awards in similar cases.

23 Kerr, 526 F.2d at 70 (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,

24 717-19 (5th Cir. 1974)). In sum, “a district court has wide latitude in determining the

25 number of hours that were reasonably expended by the prevailing lawyers, but it must

26 provide enough explanation to allow meaningful review of the fee award.” Sorenson v.

27 Mink, 239 F.3d 1140, 1146 (9th Cir. 2001); see also Chalmers v. City of Los Angeles, 796

28 F.2d 1205, 1211 (9th Cir. 1986).

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1

Furthermore, the district court has discretion to reduce or enhance the lodestar

2 figure. See Fischer v. SHB-P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000). If the

3 plaintiff achieves limited success, then awarding attorneys’ fees based on the total number

4 of hours reasonably spent in preparation for litigation multiplied by a reasonable hourly rate

5 may be an extravagant sum. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). “‘The most

6 critical factor in determining the reasonableness of a fee award ‘is the degree of success

7 obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436).

8 If the relief obtained is limited compared to the scope of the entire litigation, then reducing

9 the amount of attorneys’ fees is appropriate. Hensley, 461 U.S. at 440.

10

B. Discussion

11

1. Background

12

In a motion dated May 5, 2008, Plaintiff requested $550,651.33 in fees and

13 expenses–$524,925.00 in attorney’s fees and $25,726.33 in expenses. [Doc. No. 241.] The

14 Court ruled on this motion on August 21, 2008. [Doc. No. 271.] In that Order, the Court

15 granted in part Plaintiff’s Motion, finding that Plaintiff was only entitled to attorneys’ fees

16 for work related to the claims upon which he prevailed at trial. The Court found that these

17 claims included equal facilitation under the unwritten customer policy and damages for

18 violations of California Civil Code Sections 54 and 54.3, as well as the parking lot

19 violations and related ADA claims that were necessarily intertwined. The Court found that

20 Plaintiff should not receive fees for time spent litigating the injunction to lower the 44-inch

21 wall or the claim that Chipotle’s written Customers with Disabilities Policy did not provide

22 equal facilitation. Further, the Court ordered Plaintiff to submit a copy of his Bill of Costs

23 so the Court could determine a reasonable amount for attorney’s fees.

24

On September 10, 2008, Plaintiff submitted an Amended Memorandum of Costs.

25 [Doc. No. 274.] In this Memorandum, Plaintiff requested $559,572.06 in fees and ex-

26 penses–$550,651.33 in attorneys’ fees and $8,920.73 in expenses. This is essentially the

27 same amount (slightly more, in fact) that Plaintiff requested in his previous Motion for

28

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1 Attorney’s Fees, to which the Court’s August 21 Order was addressed, and Plaintiff does

2 not identify which work was associated with which claims at trial.

3

Instead, Plaintiff asserts that “all of these costs were incurred in relation to the

4 claims upon which the Court ruled that Plaintiff prevailed.” [Doc. No. 274-3 at 2.] Plaintiff

5 argues that all of the claims he presented at trial–those he prevailed upon as well as those

6 he did not–required a common factual investigation in order to establish an underlying

7 violation of the ADA. In addition, Plaintiff claims that he incurred no fees or costs in

8 relation to his unsuccessful claim for injunctive relief, since he did not believe he had a

9 burden of proof on this issue at trial. [Id. at 3.] Plaintiff also asserts that it is impossible to

10 separate work on the written and unwritten policies, since his argument at trial was that

11 “policies, written or unwritten, cannot constitute ‘equivalent facilitation.’” [Id.]

12

However, Plaintiff later revised these statements in his Reply to Defendant’s

13 Opposition, identifying 12 hours of time spent by his attorneys on issues related to counter

14 height or the written policy and asks that his attorneys’ fees be reduced by not more than

15 these 12 hours ($4,500). [Doc. No. 285.] In his Reply, Plaintiff also revised several other

16 figures in his Bill of Costs, including costs for copies and expert fees. (Id.)

17

2. Plaintiff’s Requested Attorneys’ Fees

18

Plaintiff has requested over $500,000 in fees and costs in a case in which Plaintiff

19 recovered only $5,000 in damages, which represents only a fraction of the relief sought. As

20 the Court’s previous Order noted, Plaintiff initially sought $24,000 in damages, injunctive

21 relief, and declaratory relief. [Doc. No. 271 at 5.] The Court denied injunctive relief and

22 found that Defendant’s Customers with Disabilities Policy provides equivalent facilitation

23 under the ADA, but found that Defendant had failed to accommodate Plaintiff appropri-

24 ately during his previous visits to Chipotle restaurants and awarded $5,000 in damages.

25 Despite this limited success, Plaintiff claims that all of the fees and costs requested were

26 incurred while working on the claims upon which he prevailed. [Doc. No. 274.]

27

Plaintiff seeks $546,151.33 in attorneys’ fees (Plaintiff’s original request of

28 $550,651.33 less the $4,500 Plaintiff identified as related to litigating the unsuccessful

7

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1 injunctive relief claim). [Docs. No. 274, 285.] The Court FINDS that Plaintiff’s request is

2 unreasonable, as it is unlikely that Plaintiff’s attorneys spent only 12 hours over the course

3 of a three-year lawsuit litigating the unsuccessful claims, particularly the claim for

4 injunctive relief. As a result, Plaintiff has failed to meet his “burden of establishing

5 entitlement to an award and documenting the appropriate hours expended and hourly

6 rates[,]” including maintaining “billing time records in a manner that will enable a review-

7 ing court to identify distinct claims.” Hensley, 461 U.S. at 437.

8

Where a district court finds it appropriate to reduce an award of attorneys’ fees

9 because of limited success, the Supreme Court has said that the court “may attempt to

10 identify specific hours that should be eliminated, or it may simply reduce the award to

11 account for the limited success.” Id. at 436-37. In this case, Plaintiff’s billing records

12 make it impossible for the Court to identify specific hours associated with unsuccessful

13 claims. In addition to Plaintiff’s assertion that such categorization is impossible because of

14 the common factual investigation required, Plaintiff has also included many “block-

15 billed”entries in his billing statement (entries that list more than one task with an aggregate

16 amount of time spent on each), which preclude identification of how much time Plaintiff

17 spent on each individual task and whether that time was reasonable. See [Doc. No. 283 at

18 11-14]. Therefore, the Court FINDS it appropriate to simply reduce the award by a

19 designated amount.

20

In Evers v. Custer County, the Ninth Circuit affirmed a fee award of one-third of the

21 amount of fees requested where it was impossible to distinguish the time spent on the

22 successful claim. 745 F.2d 1196, 1204-05 (9th Cir. 1984). Instead, the district court

23 estimated that roughly two-thirds of the attorney’s time was spent on the unsuccessful

24 claim and therefore arrived at the one-third figure. The Ninth Circuit found this appropriate

25 because the district judge “was familiar with the case, and made a reasonable estimate.” Id.

26 at 1205.

27

In a recently-decided case, McCown v. City of Fontana, the Ninth Circuit empha-

28 sized that a party’s level of success is the most important factor to consider in determining

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1 a fee award, and particularly a comparison of the damages awarded to damages sought.

2 2008 WL 5377694 (C.A.9 (Cal.)). “A district court must consider the excellence of the

3 overall result . . . [but] in judging the plaintiff’s level of success and the reasonableness of

4 hours spent achieving that success, a district court should ‘give primary consideration to the

5 amount of damages awarded as compared to the amount sought.’” Id. at *5 (quoting City of

6 Riverside v. Rivera, 477 U.S. 561, 586 (1986) (Powell, J., concurring). Furthermore, in

7 McGinnis v. Kentucky Fried Chicken, the Ninth Circuit vacated an attorney fee award of

8 $148,000 after the damages awarded to the plaintiff were reduced to $34,000, reasoning

9 that “no reasonable person would pay lawyers $148,000 to win $34,000.” 51 F.3d 805, 810

10 (9th Cir. 1994).

11

In this case, Plaintiff was awarded only $5,000 in damages, which represented

12 slightly more than one-fifth of the damages he originally sought. If “no reasonable person

13 would pay lawyers $148,000 to win $34,000,” surely no reasonable person would pay over

14 $500,000 in attorneys’ fees to recover only $5,000. However, a party’s degree of success

15 may be measured by more than just damages awarded. See McCown, 2008 WL 5377694

16 at *6 (“[T]he district court should consider not only the monetary results but also the

17 significant nonmonetary results [the plaintiff] achieved for himself and other members of

18 society.”) (citation omitted). In this case, Defendant Chipotle made changes to its policies

19 and parking barriers after Plaintiff initiated this litigation. See discussion supra, section

20 I.B. However, the Court did not order Defendant to take measures to rectify its ADA

21 parking violations as a result of Plaintiff’s litigation, and Chipotle enacted its written

22 Customers With Disabilities Policy before the Court declared that Chiptole’s prior written

23 policy did not provide equal facilitation. See [Doc. No. 271 at 5]. Therefore, the

24 nonmonetary results that Plaintiff achieved for himself and others were somewhat limited.

25

As a result, the Court FINDS that Plaintiff is entitled to one-quarter of the attorneys’

26 fees that he has requested. The Court AWARDS Plaintiff attorneys’ fees in the amount of

27 $136,537.83.

28

3. Plaintiff’s Claimed Costs

9

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1

In his Amended Bill of Costs, Plaintiff requests reimbursement for $8,920.73 in

2 costs, including fees of the Clerk, fees for service of summons and subpoena, transcript

3 fees, printing fees, and witness fees (later reduced to $8,172.45 in his Reply). The Federal

4 Rules of Civil Procedure provides that “costs other than attorneys’ fees shall be allowed as

5 of course to the prevailing party unless the court otherwise directs.” Fed. R. Civ. P.

6 54(d)(1). The rule creates a presumption in favor of awarding costs to a prevailing party,

7 but vests in the district court discretion to refuse to award costs. Ass’n of Mexican-

8 American Educators v. State of California, 231 F.3d 572, 591 (9th Cir. 2000) (citing Nat’l

9 Info. Servs., Inc. V. TRW, Inc., 51 F.3d 1470, 1471 (9th Cir. 1995)). The Ninth Circuit has

10 held, “In the event of a mixed judgment, . . . it is within the discretion of a district court to

11 require each party to bear its own costs.” Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir.

12 1996). Because the judgment in this case was mixed and Plaintiff was only partially

13 successful, and because Plaintiff has claimed that he is unable to separate the work done on

14 the prevailing claims, the Court ORDERS each party to bear its own costs.

15

Conclusion

16

For the foregoing reasons, the Court:

17

(1) DENIES Plaintiff’s Motion for Reconsideration;

18

(2) AWARDS Plaintiff attorneys’ fees in the amount of $136,537.83; and

19

(3) ORDERS that each party bears its own costs.

20

21

IT IS SO ORDERED.

22

23 DATED: February 6, 2009

24

HON. NAPOLEON A. JONES, JR.

25

United States District Judge

26

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Table of Contents TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 III. ISSUES PRESENTED FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 IV. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Collateral Estoppel Effect of the District’s Ruling. . . . . . . . . . . . . . 12 V. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A. The Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 B. The “Chipotle Experience” for Standing Customers. . . . . . . . . . . . . 16 C. The Inaccessible Design - the Wall. . . . . . . . . . . . . . . . . . . . . . . . . . 19 D. The “Chipotle Experience” is not Accessible to People in
Wheelchairs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 E. Antoninetti’s “Chipotle Experience”. . . . . . . . . . . . . . . . . . . . . . . . . 20 F. Chipotle’s Written Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 G. Chipotle’s Failure to Present Material Evidence. . . . . . . . . . . . . . . . 24 H. Fees Allocated Solely to the Unwritten Policy. . . . . . . . . . . . . . . . . 25
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I. Antoninetti’s Billing Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
VI. SUMMARY OF ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
VII. STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
VIII. ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A. The District Committed Legal and Clear Factual Errors in the Underlying Judgment and Denial of Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1) The District Erred in Holding that Policies of Providing Methods of Accommodation Can Be “Equivalent Facilitation” in New Construction . . . . . . . . . . . . . . . . . . . . . 29
2) The Written Policy Does Not Say What the District Said it Says. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3) Antoninetti Was Entitled to Receive the Same Benefits, Privileges, Accommodations, Goods and Services as Other Standing Customers . . . . . . . . . . . . . . . . . . 36
4) The District Misapplied the Standards.. . . . . . . . . . . . . . . . . . 38
(a) ADAAG § 7.2 Does Not Apply to the “Chipotle Experience”. . . . . . . . . . . . . . . . . . . . . . . . . . 38
(b) ADAAG § 4.33.3 and Figure A3 Apply to the “Chipotle Experience”. . . . . . . . . . . . . . . . . . . . . . . 39
(c) The Regulatory Language Applies the General Anti-Discrimination Provisions in the Absence of an Applicable Standard... . . . . . . . . . . . . . . . . . . . . . 41
(d) The District Imposed Improper Burdens of Proof on Antoninetti.. . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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(e) The District Erred in Holding, Without Any Evidentiary Support, that Chipotle Met its Burden of Proving the Methods of Accommodation Provided Equivalent Facilitation. . . . . . . . . . . . . . . . . . 47
(f) The District Erred in Holding, Contrary to the Parties’ Stipulation, That Antoninetti Did Not Prove He Wanted to Return to the Restaurants . . . . . . 49
5) Antoninetti is Entitled to Damages for “Litigation-Related Visits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6) Antoninetti Was Entitled to Summary Judgment or Judgment After Trial Because the District Committed Legal Error and/or Because Chipotle Failed to Raise a Dispute of Material Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
B. Antoninetti’s Lawsuit Provided Substantial Benefits to the Disabled Community. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
C. The District Erred in Reducing Fees Based Upon “Written Policy” Claims Versus “Unwritten Policy” Claims.. . . . . . . . . . . . . . . . . . . . 53
D. The District Erred With Respect to Purported “Block Billing” Entries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
E. Antoninetti Was Entitled to Recover Costs. . . . . . . . . . . . . . . . . . . . 61
VIII. CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Table of Authorities
Cases
Agostini v. Felton, 521 U.S. 203, 238 (1997) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Anderson v. Liberty Lobby, Inc., (1986) 477 U.S. 242, 250. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed.2d 469 (1970). . . . . . . . . . . . 13
Brewster v. Shasta County, 275 F.3d 803, 806 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Caruso v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730, 740 (3rd Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 36
D’Lil v. Best Western, 538 F.3d 1031, 1040 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Enlow v. Salem-Keizer Yellow Cab Co., Inc. 389 F.3d 802, 819 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Ferland v. Conrad Credit Corp, 244 F.3d 1145, 1147-48 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Gunther v. Lin, (2006) 144 Cal.App.4th 223, 232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10
Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Husain v. Olympic Airways,
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316 F.3d 829, 835 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 35
Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698 (D. Or. 1997). . . . . . . . . . . . . . . . . . . . . . . 33-34, 47, 48, 52
Long v. Coast Resorts Inc., 267 F.3d 918 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Mc Cown v. City of Fontana, 550 F.3d 918, 923 (9th Cir. 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Moeller v. Taco Bell Corp., Case No. C 02-5849 MJJ, U.S. Dist. LEXIS 41256 (N.D. Cal. August 10, 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
Molski v. Foley Estates Vineyard, 531 F.3d 1043, 1046 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Molski v. M.J. Cable, Inc., 481 F. 3d 724 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 50-51
Munson v. Del Taco, 2009 Cal. LEXIS 5183 (June 11, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Passantino v. Johnson & Johnson, 212 F.3d 493, 518 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Shaw v. Hahn, 56 F.3d 1128, 1129 n.1, 1131 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . 13
Silver v. Exec. Car Leasing, 466 F.3d 727, 733 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Smith v. District of Columbia, 466 F.Supp.2d 151 (D.D.C. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 61
Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 60
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Tennessee Valley Authority. v. Hill, 437 U.S. 153, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978). . . . . . . . . . . . . 45, 46
Trailer Train Co. v. State Board. of Equalization, 697 F.2d 860, 869 (9th Cir. 1983), cert. denied, 464 U.S. 846, 78 L. Ed. 2d 139, 104 S. Ct. 149 (1983). . . . . . . . . . . . . 44-45
United States v. AMC Entertainment, Inc., 232 F.Supp.2d 1092, 1098-1099 (C.D. Cal. 2003)53.. . . . . . . . . . . . . . . . . 52
Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Watson v. County of Riverside, 300 F.3d 1092, 1095 (9th Cir.2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982). . . . . . . . . . . . 45
Welch v. Metro Life Ins. Co., Inc., 480 F.3d 942, 948 (9th Cir. 2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Wilcox v. City of Reno, 42 F.3d 550, 553 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Wilson v. Haria & Gogri Corp., 479 F.Supp.2d 1127 (E.D. Cal. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Wing v. Asarco Inc., 114 F.3d 986, 988 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Statutes- Federal
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1920. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 28 U.S.C. § 2201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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28 U.S.C. § 2202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 12182(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 50 42 U.S.C. § 12182(b)(1)(A) (iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12182(b)(1)(A) (iv). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 42 U.S.C. § 12182(b)(1)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12182(b)(1)(C).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12182(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12183(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 42 U.S.C. § 12186(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 U.S.C. § 12188. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Regulations
28 C.F.R. Part 36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 28 C.F.R. 36.201... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 28 C.F.R. 36.202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 28 C.F.R. 36.201-36.213. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 28 C.F.R. 36.301-36.310. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 28 C.F.R. 36.213... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 28 C.F.R. 36.304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44 28 C.F.R. 36.401... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,46 28 C.F.R. 36.501(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
56 Fed. Reg. at 2327. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 56 Fed. Reg. at 35,413.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ADAAG
Figure A3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 39, 43 Section 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30 Section 2.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8, 31, 32, 33, 38, 39, 55 Section 3.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 4.1 to 4.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 4.33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 4.33.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40, 43 Section 5.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 43 Section 5.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 7.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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Section 7.2(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 38, 39, 43, 55 Section 7.2(2)(i).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 38 Section 7.2(2)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 38 Section 7.2(2)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 36, 55
Appendix B, p. 604. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Appendix B, p. 616. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Appendix B, p. 621. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Technical Assistance Manual for Title III
TAM III-5.3000 (1994 Supplement). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-43 TAM III-4.4600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 TAM III-5.1000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
House Conference Reports
H. Rpt. No. 101-485(III) at p. 60.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 H. Rpt. No. 101-485(II) at p. 103... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 H. Rpt. No. 101-485(II) at p. 119... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Statutes- State California Civil Code Section 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 California Civil Code Section 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 California Civil Code Section 54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 51 California Civil Code Section 54.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 California Civil Code Section 54.1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 California Civil Code Section 54.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 California Civil Code Section 54.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 50, 51, 61 California Civil Code Section 1032. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 California Civil Code Section 1032(a)(4).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 California Civil Code Section 1032(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61-62
Jury Instructions
Ninth Circuit Manual of Model Jury Instructions Civil, Instruction No. 2.2 (20074)9.
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I. INTRODUCTION This appeal and the cross-appeal are consolidated with the parties’ crossappeals of the underlying judgment and orders by the District Court (“the district”) in Circuit Case Nos. 08-55867 and 08-55946. The factor most heavily relied upon by the district in reducing Appellant/Cross-Appellee Maurizio Antoninetti (“Antoninetti’) fees, and in denying him his costs, was Antoninetti’s “degree of success.” If Antoninetti should have prevailed on his claims for injunctive relief, the the district’s fee ruling must be reversed and remanded for an award of additional fees and expenses and for an award of costs.
II. STATEMENT OF JURISDICTION On August 22, 2005, Antoninetti filed his Complaint in the United States District Court, Southern District, California, asserting claims for violations of the Americans with Disabilities Act (“ADA”), California Civil Code1 § 51, et seq. and Cal. Civil Code § 54, et seq. and for injunctive and declaratory relief.2 The district
1
Hereinafter “Cal. Civil Code.”
2
Court Record Docket No. 1, Excerpts of Record, Volume II, Tab 7 (Hereafter, “CR 1 / ER II-7.”)
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court had jurisdiction over Antoninetti’s claims under 28 U.S.C. §§ 1331, 1367, 2201 and 2202. This Court has jurisdiction over this appeal under 28 U.S.C.§ 1291.
This appeal is taken from: 1) the Order Granting in Part Plaintiff’s Motion for Attorney’s Fees and Costs [Doc. 241]; Awarding Plaintiff Reasonable Fees and Costs Pending Submission of a Bill of Costs; and Ordering Plaintiff to Submit a Bill of Costs and Contact the Court to Set a Hearing Date; and 2) Order Denying Antoninetti’s Motion for Reconsideration [Doc 273]3; and Granting in Part and Denying in Part Plaintiff’s Amended Bill of Costs.4
III. ISSUES PRESENTED FOR REVIEW 1. Whether the district’s fee award was erroneous because it was based upon a
legally and factually erroneous judgment. 2. Whether the district erred in failing to consider the public benefit achieved by
Antoninetti’s litigation. 3. Whether the district erred in distinguishing claims based upon Chipotle’s
unwritten and the written policies. 4. Whether the district erred because it failed to consider evidence that addressed
the purported “block billing” entries by Antoninetti and it required excessive detail in billing statements. 5. Whether the district improperly denied Antoninetti costs.
3
CR 271 / ER I-3.
4
CR 288 / ER I-2. 2

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IV. STATEMENT OF THE CASE A. Nature of the Case.
Maurizio Antoninetti uses a wheelchair for mobility. He filed his Complaint for disability discrimination on August 22, 2005, contending that Chipotle violated the ADA because it did not provide him and other wheelchair users with full and equal access to, and enjoyment of, the “Chipotle experience” which involves the opportunity to see a generous display of food items available for selection, to see into the open kitchen and to see, select and direct the making of one’s entree.
Antoninetti contended that Chipotle wrongly designed its newly constructed restaurants to include a high wall (“the wall”) in front of the food viewing area that obstructed his view to the food preparation area and to the open kitchen, although these visual opportunities are provided to standing customers who can see over the wall and through the transparent sneeze guard provided for their benefit.
Chipotle only made some effort to engage Antoninetti in the “Chipotle experience” during two site inspections, when employees lifted small food samples above the wall. Antoninetti contended that these efforts were insufficient because they were very time-consuming and he still was not able to see his entree assembled or into the open kitchen The small samples were unappetizing, too far away to be of
3

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any visual value and they were not comparable to the twelve-foot long display of food provided to standing customers.5
On February 23, 2007, after the close of discovery in this case, Chipotle adopted a written “Customers with Disabilities” policy which Chipotle contended simply “sets forth in writing that which Chipotle has always done informally.”6 Antoninetti was unaware of the written policy until it was referenced in Chipotle’s MSJ on April 16, 2007.7
B. Proceedings Below. Chipotle answered the Complaint without raising the affirmative defenses of
structural impracticability or that removal of barriers was not “readily achievable.”8 The discovery cut-off date in this case was January 31, 2007.9 In April of 2007, the parties filed their cross-MSJs.10 On June 14, 2007, the district denied Antoninetti
5
CR 89 / ER II-11.
6
CR 96/ ER III-14, par. 3.
7
CR 299 / ER I-4, 6:20-23.
8
CR 3 / ER II-8.
9
CR 58 / ER II-9, 1:21-22.
10
CR 86 - CR 92, CR 161; CR 93 - CR 102; CR 88 / ER II-10; CR 89 / ER II4

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summary judgment, holding that Section 7.2(2) of the ADA Accessibility Guidelines (“ADAAG”) applied to Chipotle’s food viewing areas and the “Chipotle experience.” In denying summary judgment, the district defined the issue to be tried - whether the nature of Chipotle’s methods of accommodation provide “equivalent facilitation.” Nowhere in its Order did the district make a distinction between Chipotle’s unwritten and written policies.11
Antoninetti moved for reconsideration of the district’s ruling, arguing that Chipotle’s policy of handing sample cups to customers (defined in Antoninetti’s motion as “the Policy”) was not an “alternative design or technology” and could not constitute “equivalent facilitation.”12 The district denied the motion.
The parties filed their Amended Pretrial Order on September 18, 2007.13 On October 4, 2007, the district denied Antoninetti’s Motion to Amend the Amended Pretrial Order to include the legal issue that policies of providing methods of accommodation are not “designs and technologies,” as referenced at ADAAG § 2.2. The district noted that it had rejected this legal argument in its Order on the MSJs and
11; CR 90 / ER II-12; CR 92 / ER II-13.
11
CR 129 / ER I-6.
12
CR 135-2 / ER IV-21, 2:14-16; 4:12-8:17.
13
CR 157 / ER IV- 22. 5

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the Order on the Motions for Reconsideration.14 Antoninetti also filed a Motion in Limine to exclude any evidence of Chipotle’s policies of providing methods of accommodation, arguing that policies cannot constitute “equivalent facilitation” under ADAAG § 2.2.”15 The district denied this motion.
Consistent with the district’s direction in its Order on the parties’ MSJs, Antoninetti introduced evidence at trial that the methods of accommodation provided by Chipotle denied him full and equal access to the “Chipotle experience” because they provide different and separate benefits that are not comparable to the sensory and experiential benefits provided to standing customers.16
Following trial, the district entered its Findings of Fact and Conclusions of Law on January 10, 2008.17 For the first time, the district distinguished between the written and unwritten policies and ruled: 1) written policies of providing methods of accommodation can constitute “equivalent facilitation” pursuant to ADAAG § 2.2;
14
CR 173 / ER IV-23, 2:28-3:4.
15
CR 168-1 / ER IV-24, 2:5-7.
16
CR 268 / ER VII-28, 650:6-658:11.
17
CR 229 / ER I-5. 6

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2) Chipotle’s written policy provided “equivalent facilitation” because it imposed
“two new requirements” not found in the unwritten policy;18 3) Chipotle’s prior
unwritten policy did not constitute “equivalent facilitation” because it relied upon the
judgment and “common sense” of the crew and managers, rendering the subjective
interpretation of the unwritten policy incapable of uniform enforcement;19 4)
Antoninetti was denied injunctive relief because he had not presented any “credible”
evidence that the written policy did not provide “equivalent facilitation,” he had not
proven he intends to return to the restaurants, he failed to prove that the requested
18
The district held: “Unlike the prior unwritten policy, the written Customers With Disabilities Policy imposes two new requirements that render it equivalent facilitation where the prior unwritten policy is not. Under the written Customers with Disabilities Policy, the pre-existing accommodations that Chipotle provided as part of its mission for excellent customer service are set forth plainly with two new requirements: (1) it established that it is the responsibility of the manager on duty at the Restaurant, rather than his or her crew members, to carry out the policy (by requiring the manager on duty to greet a customer with disability and inquire as to whether he or she desires any accommodations as soon as he or she approaches the tortilla station in the food serving line) and (2) it established that the manager on duty must affirmatively inform the customer with a disability of the various methods of accommodations options without waiting for the customer to request them through oral communications or non-oral cues.” CR 229 / ER I-5, Conclusions of Law (hereafter “CL”) 16. (Emphasis added.)
19
The district held that under the unwritten practice “...(Chipotle’s) managers and crew were to use their own judgment and common sense to determine when and how to accommodate a customer in a wheelchair. This subjective interpretation and enforcement of (Chipotle’s) informal Policy rendered the unwritten policy incapable of uniform enforcement or a confidant (sic) conclusion that these actions were equivalent facilitation.” CR 229 / ER I-5, CL 12.
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injunction was in the public interest and he failed to satisfy his burden of proving that the requested injunction (lowering the obstructing wall) was “justified by the relief it will provide;” and 5) Antoninetti could not recover damages for visits that were “litigation-related.”
On May 15, 2008, Antoninetti timely filed his appeal of the district’s Findings of Fact and Conclusions of Law and earlier rulings (Circuit Case No. 08-55867) arguing, among other things, that the district erred as a matter of law because policies of providing methods of accommodation are not “alternative designs or technologies,” as “equivalent facilitation” is defined at ADAAG § 2.2 and as applied to new construction. Chipotle filed a cross-appeal (Circuit Case No. 08-55946) arguing that its adjacent cashier counter satisfied the requirements of ADAAG §§ 7.2(2)(i) or (ii).20
Antoninetti timely filed his Bill of Costs on January 29, 2008 in which he sought taxation of costs in the amount of $9,010.73.21 He also timely filed his Motion for Attorney’s Fees on May 5, 2008, in which he sought $524,925.00 in attorney’s fees and $25,726.33 in litigation expenses, totaling $550,651.33. The total
20
CR 229 / ER I-5, CL 25, CL 27, CL 31, CL 32.
21
CR 233 to 234-3 / ER VIII-31. 8

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amount initially requested for fees, litigation expenses and costs, then, was $559,662.06.22
Chipotle objected to Antoninetti’s Motion for Attorney’s Fees and his Bill of Costs, arguing that Antoninetti had not succeeded on all of his claims, that Antoninetti’s billing statements included 85 instances of alleged “block billing” (out of more than 800 billing entries), and that some claimed costs were objectionable. In opposing Antoninetti’s fee motion, Chipotle did not argue that any of the time invested by Antoninetti’s attorney was unnecessary or that the hourly rate claimed by Antoninetti’s attorney was unreasonable.23 Antoninetti addressed each of the alleged instances of “block billing” in his Reply filed on June 2, 2007.24
On August 21, 2008, the district granted in part Antoninetti’s Motion for Attorney’s Fees and Costs and held that Antoninetti’s success was limited because he had only recovered a portion of the damages originally sought,25 his litigation
22
CR 243 to 248 / ER VIII-32.
23
CR 256 / ER VIII-33.
24
CR 261-2 / ER VIII-34.
25
Antoninetti requested damages of $24, 000.00 under Cal. Civil Code § 52 in his MSJ, but elected to recover damages of only $1,000.00 per visit, under Cal. Civil Code § 54.3, at the time of trial. Antoninetti was required to elect between the two statutory remedies. Cal. Civil Code § 54.3(c); Gunther v. Lin, (2006) 144
9

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provided no public benefit and the issues relating to Chipotle’s unwritten policy were not intertwined with those relating to the written policy. The district ruled that Antoninetti could only recover fees for time spent litigating issues under the unwritten policy and damages.26 Even though Antoninetti had previously filed his Bill of Costs, the district ordered Antoninetti to “submit a copy of his Bill of Costs so that the Court may determine a reasonable amount for attorney’s fees.”27
On August 29, 2008, Antoninetti filed a Motion for Reconsideration of the Order on his fee motion. Antoninetti also filed his Amended Bill of Costs on September 10, 2008. He requested that the district take judicial notice of his earlier response to Chipotle’s objections to “block billing.”28
Given the ambiguity of the district’s August 21, 2008 Order, Antoninetti included his request for attorney’s fees and litigation expenses in the Amended Bill of Costs, again in the amount of $550,651.33. He withdrew a claim for some witness
Cal. App. 4th 223, 232; reversed at Munson v. Del Taco, 2009 Cal. LEXIS 5183 (June 11, 2009).
26
CR 271 / ER I-3, 7:13-16.
27
CR 271 / ER I-3.
28
CR 274-4 / ER IX-35; CR 261-2 / ER VIII-34. 10

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fees and reduced the amount of costs to be taxed to $8,920.73, for a total of $559,572.06.29
In his Reply to the Amended Bill of Costs, Antoninetti reduced his claim for attorney’s fees by 12 hours, which represented the amount of time invested in relation to non-counter issues or solely to the written policy. He also reduced his claim for expert fees to $18,879.70, reducing the fees by the amount of time his expert devoted to non-viewing counter issues and to parking at the Encinitas restaurant. Antoninetti also reduced the costs he claimed pursuant to 28 U.S.C. § 1920 to $8,172.45, deducting some copy costs objected to by Chipotle.30
The district heard oral argument on the fee motion and the Amended Bill of Costs on October 20, 2008.31 On February 6, 2009, the district denied Antoninetti’s Motion for Reconsideration and granted in part and denied in part Antoninetti’s Amended Bill of Costs.32 The district admitted that it committed factual error when it
29
CR 274 to 278-2 / ER IX-35.
30
CR 285 / ER IX-36, 10:20-24.
31
CR 299 / ER I-4.
32
CR 288 / ER I-2. 11

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earlier ruled that Antoninetti’s lawsuit had not provided any public benefit, but held that it did not rely on the “public benefit” factor to deny fees to Antoninetti.33
The district held that Antoninetti had achieved only limited success, that Antoninetti’s billing statements made it impossible for the district to identify specific hours associated with unsuccessful claims and the statements included “block billing.” The district reduced Antoninetti’s fees by 75 percent and denied him costs. The district “relied most heavily” on the “degree of success” obtained by Antoninetti in reducing his fee award.34 Antoninetti timely appealed the district’s rulings.
The district committed clear factual error in holding that Antoninetti reduced his fees by 12 hours in relation to “counter height or the written policy.” (See CR 288 / ER I-2, 7:12-16.) Antoninetti’s Reply states that he attributed the 12 hour reduction to non-counter issues or to time related solely to the written policy. (See CR 285 / ER IX-36, 10:20-24.) C. Collateral Estoppel Effect of the District’s Ruling.
The underlying district court case is related to two cases: 1) Antoninetti, et al. v. Chipotle, USDC No. 06 CV 2671 LAB (POR), consolidated by the district with the instant case for purposes of discovery, and 2) Perkins, et al. v. Chipotle, USDC No.
33
CR 288 / ER 1-2, 4:11-23.
34
CR 288 / ER I-2, 4:19-21. 12

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CV 08-03002 MMM (OPx) both of which involve the “Chipotle experience” at all Chipotle restaurants in California. The related cases were filed as class actions, but neither case has yet been certified.
The final determination of legal issues in the instant case will, at a minimum, have a collateral estoppel effect with respect to Antoninetti’s claims for damages and injunctive relief in the related class action case in which he is a named plaintiff. Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). Since Chipotle is a common party to all cases, the final determination of legal issues will have a collateral estoppel effect with respect to the claims of class members in the related cases.
Even if the district is affirmed, the ruling in this case will entitle class members to damages for all visits during the period of the unwritten policy, which the district determined violated the ADA. If the district is reversed, and this Court determines that Chipotle should have designed a food viewing area with visual access for people in wheelchairs, this ruling will entitle class members to damages for all visits during the effective periods of the unwritten policy and the written policy. A reversal will effect the class claims for injunctive relief, as well. Shaw v. Hahn, 56 F.3d 1128, 1129 n.1, 1131 (9th Cir. 1995).
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V. Statement of Facts.
The district adopted, virtually wholesale and verbatim, Chipotle’s proposed
Findings of Fact and Conclusions of Law, including Chipotle’s omission of material
undisputed facts and including findings that are contrary to the evidence.35
35
The reviewing Court is respectfully requested to review the district’s Findings closely. The district’s Findings (CR 229 / ER I-5), like Chipotle’s Proposed Findings (CR 227 / ER VIII-30), do not even reference Antoninetti’s undisputed inability to see over the wall. Nor do they reference the design of the kitchen being a “feast for the eyes” and “open” so that customers will “be brought more completely into the dining experience” which are undisputed intended visual benefits provided by Chipotle. (CR 265 / ER IV-25, 141:19-22; CR 266 / ER V-26, 311:8-11.)
The district also adopted Chipotle’s misleading and incorrect interpretations of actual testimony, including, for example, at CR 227 / ER VIII-30, Fact 144, adopted by the district at CR 229 / ER I-5, Fact 140:
“Plaintiff admitted that during the site inspections of the Restaurants he found the samples that he was shown by the employees who served him (all of which represented actual serving sizes) to be very helpful in determining what to order. TR, at p. 463, lns. 16-21 (November 30, 2007).”
This “Finding of Fact” is contrary to the evidence. Antoninetti actually said: “If I knew the quantity, the standard quantity, that would be an improvement.” He also testified that he “did not know” if the quantity in the souffle (sample) cups was the standard quantity per serving. (CR 267 / ER VI-27, 463:16-24.) He also testified that he could not see, nor was he told, how much of an ingredient was actually placed on his burrito. (CR 267 / ER VI-27, 399:15-400:3, 402:12-21, 403:9-11, 404:2-13, 410:22- 411:7.) Chipotle’s only witness to testify on the subject, Ms. Arriaga, admitted that she never told Antoninetti that the amount of an ingredient she was showing him was the amount she actually placed on his burrito. (CR 268 / ER VII-28, 612: 20-23.)
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A. The Parties.
Chipotle operates a chain of fast food restaurants, including locations in San
Diego/Pacific Beach and Encinitas, California, which are “new construction” as defined by the ADA.36 Ron Sedillo, Jim Adams, Matt Cieslak and Josefina Garcia were Chipotle managers or directors.37 Scott Shippey was the person most knowledgeable regarding the design and construction of Chipotle restaurants.38
Antoninetti is a paraplegic who uses a wheelchair for mobility.39 His eye level
is 45 inches from the finished floor. He could not see over the wall obstructing the view to the food viewing area.40 Antoninetti lives very close to the Pacific Beach Chipotle restaurant.41 Before and after filing his lawsuit, Antoninetti visited the
36
CR 129 / ER I-6, 2:4-9; CR 157 / ER IV-22, Facts 9, 10; CR 229 / ER I-5, Facts 1, 4-7.
37
CR 157 / ER IV-22, Facts 1-7; CR 229 / ER I-5, Facts 33, 34, 36.
38
CR 157 / ER IV-22, Fact 1; CR 265 / ER IV-25, 14:8-12, 16:2-4.
39
CR 129 / ER I-6, 2:4-5; CR 89 / ER II-11, p.1, par. 2; CR 229 / ER I-5, Fact 8.
40
CR 157 / ER IV-22, Fact 65; CR 89 / ER II-11, pars. 2, 8, 9, 12, 13; 7/ ER VI-26, 377:6-13; CR 268 / ER VII-28, 648:21-22, 649:7.
41
CR 267 / ER VI-27, 422:17-20. 15

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Pacific Beach Chipotle at least six times and the Encinitas Chipotle two times.42 He wants to return to Chipotle’s restaurants to have the “Chipotle experience” - to see all of the wonderful, tasty ingredients on display, to see his burrito assembled and rolled, to make his “perfect burrito,” quickly.43
Antoninetti would return to Chipotle’s restaurants “tomorrow” if the walls were lowered and he had the chance to see the display and presentation that Chipotle provides to standing customers.44 He has been deterred from returning to the restaurants since October 6, 2006 because the “accommodations” provided during the site inspections were not appetizing or appealing and the experience was awkward and humiliating. If he returned, he would face the same issues.45
B. The “Chipotle Experience” for Standing Customers. Chipotle distinguishes itself from other fast food joints, like Taco Bell, by
42
CR 89 / ER II-11, p.7, par. 24; CR 229 / ER I-5, Facts 128, 129, 130, 131, CL14.
43
CR 89 / ER II-11, p. 7, par. 24; CR 157 / ER IV-22, Fact 41.
44
CR 267 / ER VI-27, 426:13-15.
45
CR 89 / ER II-11, 4:9-7:28; CR 267 / ER VI-27, 407:10-21, 412:23-413:25, 426:21- 427:10.
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providing its customers with the “Chipotle experience”46 which allows customers to
watch their burritos being made.47 Customers get to “see, select and direct” what
goes into their burritos.48 They can customize their burritos so that they receive their
“perfect burrito”.49 Customers can see the portion sizes placed on their entrees and
can determine if they want more or less of an ingredient.50 Chipotle knows its
customers “love to interact” and “watch closely as we put their meal together.”51
46
CR 92 / ER II-13, p. 86 (59:23-60:12), 148:23-149:5; CR 157 / ER IV-22, Fact 45.
47
CR 92 / ER II-13, 106:5-12, 109:18-23, 130-134; CR 157 / ER IV-22 Facts 18, 19, 26, 27; CR 268 / ER VII-28, 647:11- 650:3; CR Trial Exhibits / ER VII-29, pgs. 3, 6, 10, 21, 22, 23.
48
CR 92 / ER II-13, 114:24-115:24; CR 157 / ER IV-22, Fact 19; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibits / ER VII-29, p.1.
49
CR 92 / ER II-13, p. 73 (137:12-22), p. 87 (114:17-23), 94, 95, 106:55-12, 110:13-111:3, 130, 145:11-14; CR 157 / ER IV-22, Facts 17 to 27; CR 268 / ER VII-28, 647:11-650:3; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 1, 2, 3, 6, 21, 22, 23.
50
CR 92 / ER II-13, p. 87 (114:17-23), 95; CR 157 / ER IV-22, Facts 26, 27; CR 265 / ER IV-25, 57:1-7, 58:-321, 91:5-23.
51
CR 92 / ER II-13, 115:20-24, 132; CR 265 / ER IV-25, 62:14-16, 309:24310:2; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 3.
17

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Chipotle wants its customers to “eat with their eyes”.52 Chipotle provides “the WOW
factor” which is, among other things, customers being able to see their burritos being
built “right before their eyes.”53
During the ordering process, customers can see 16 large bins of food and can
simultaneously compare different food options, such as the various meat selections.54
They can decide which of the ingredients is more visually appealing to them.55 They
can determine the freshness of the food, such as whether or not the barbacoa is dry, or
the beans have a crust on them.56 Appearance of the food is so important that
Chipotle provides specific details for the “look” of its food.57
52
CR 92 / ER II-13, 115:25-116:2, 132, 133; CR 229 / ER I-5, Fact 57.
53
CR 92 / ER II-13, 121:8-122:4; CR 157 / ER IV-22, Fact 25; CR 268 / ER VII-28, 647:11-650:3; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 6.
54
CR 265 / ER IV-25, 61:19-63:14, 64:3-8. 65:3-11, 67:20-23; CR 266 / ER V-26, 311:3-23; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibits / ER VII29, 18, 19, 20, 21, 22, 23.
55
CR 265 / ER IV-25, 68:14-18.
56
CR 92 / ER II-13, 146:22-147:15, 155:1-21; CR 265 / ER IV-25, 67:24-68:1, 68:23-25.
57
CR 92 / ER II-13, 132, 133; CR 229 / ER I-5, FF3; CR 265 / ER IV-25, 68:19-69:5; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 3,
18

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Chipotle designed its restaurants so that customers can see into the open
kitchen and can see freshly marinated meats being grilled.58 The open kitchens are
designed to be a “feast for the eyes” and are intended “to bring customers more
completely into the dining experience.”59 Chipotle prides itself on long lines that
“really don’t take that long to get through.”60 Chipotle provides customers with
“instant gratification.”61 Customers typically go through the line in a minute or less.62
C. The Inaccessible Design - the Wall.
Chipotle restaurants are similar in design with respect to the food lines.63 The
12-foot expanse of equipment on which the food is prepared and presented for view
5.
58
CR 92 / ER II-13, 131; CR 266 / ER V-26, 311:8-11; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 2.
59
CR 92 / ER II-13, 131; CR 157 / ER IV-22, Fact 23; CR 265 / ER IV-25, 141:19-22; CR 266 / ER V-26, 308:2-12; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 2.
60
CR 92 / ER II-13, 135; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 7.
61
CR 92 / ER II-13, 135; CR 265 / ER IV-25, 135:11-13; CR 268 / ER VII-28, 647:11-650:3; CR Trial Exhibit / ER VII-29, 7.
62
CR 92 / ER II-13, 153:14-15; CR 266 / ER V-26, 337:17-22; 345:18-346:3.
63
CR 88 / ER II-10, Fact 11; CR 157 / ER IV-22, Fact 11. 19

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is approximately 34 inches from the finished floor.64 Chipotle constructed a 44-inch high wall between the customers and the food viewing and preparation area.65 A transparent sneeze guard is located on top of the wall and is held in place by a metal strip about 2 inches high, thereby obstructing the view of the food preparation area to a height of 46 inches from the finished floor.66
D. The “Chipotle Experience” is not Accessible to People in Wheelchairs.
ADAAG Figure A3 provides a uniform reference for design not covered by the guidelines and identifies the average eye level of a person in a wheelchair as between 43 and 51 inches from the finished floor.67 Wheelchair users, with eye levels in this range, cannot see the food items available for selection or the preparation of their entrees.68
E. Antoninetti’s “Chipotle Experience.” For at least five visits prior to the site inspections of October 6, 2006,
64
CR 88 / ER II-10, Fact 43; CR 157 / ER IV-22, Fact 34.
65
CR 92 / ER II-13, 38:13-24; CR 157 / ER IV-22, Fact 29.
66
CR 88 / ER II-10, Facts 41, 42; CR 157 / ER IV-22, Facts 33, 36.
67
CR 88 / ER II-10, Fact 49; CR 157 / ER IV-22, Fact 35.
68
CR 90 / ER II-12, pars. 12 to 18; CR 157 / ER IV-22, Facts 37, 38. 20

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Antoninetti was not shown any food ingredients or the making of his entree.69 At the site inspections, with Chipotle’s counsel present, Antoninetti was only shown food items one at a time, after he asked to see them, and he was never shown the making of his entree.70 Antoninetti has never been able to see the freshness of the ingredients, to compare ingredients to one another, to see his burrito assembled or to fully customize his entree to make his “perfect burrito.” He was never told the portion size that was actually being placed on his burrito.71
The food samples shown to him only at the site inspections were too small, too far away and were obstructed by the plastic of the cups, the bottoms of the spoons or the crew members’ fingers.72 Seeing food in small plastic cups, or lifted by handfuls or tongfuls, is not appetizing.73 The accommodation of taking a tray of small cups of food to an adjacent table is unacceptable because it would separate Antoninetti from
69
CR 89 / ER II-11, par. 16; CR 266 / ER V-26, 375:14-20.
70
CR 89 / ER II-11, par. 17; CR 157 / ER IV-22, Fact 40.
71
CR 89 / ER II-11, pars. 13, 16, 17, 19, 21, 22, 23; CR 267 / ER VI-27, 410:22-411:1.
72
CR 89 / ER II-11, pars. 19, 21, 22; CR 267 / ER VI-27, 399:1-14.
73
CR 89 / ER II-11, par. 22; CR 267 / ER VI-27, 407:10-21. 21

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his companions, make him feel different and is unappetizing.74 It took at least three minutes, an uncomfortable amount of time,75 to show
Antoninetti samples of food during the inspections. This amount of time did not include seeing his burrito assembled.76 It is rare for a customer to take three minutes, a significant amount of time, to complete their order.77
F. Chipotle’s Written Policy.
Almost five years after construction of the restaurants, Chipotle adopted its written policy on February 23, 2007.78 The written policy was not made known to Antoninetti until Chipotle filed its MSJ on April 16, 2007.79 The written policy references some methods of accommodation for people with disabilities80 and assigns
74
CR 267 / ER VI-27, 415:14 - 416:25, 418:3-13, 418:20 - 419:9.
75
CR 89 / ER II-11, par. 20.
76
CR 267 / ER VI-27, 405:7-406:8.
77
CR 266 / ER V-26, 210:1-18.
78
CR 96 / ER III-14, par. 3; CR 229 / ER I-5, Fact 101.
79
CR 299 / ER I-4, 6:20-23.
80
“Examples of some of the ways we accommodate individuals include: (1) Samples of the food can be placed in soufflé cups and shown or handed to the customer. (2) Some customers may prefer an opportunity to see or even sample
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responsibilities to both Chipotle’s managers and to the crew with respect to
accommodating customers with disabilities.81 It allows Chipotle employees to utilize
methods of accommodation that are not specifically addressed in the written policy.82
No specific methods of accommodation are required for Pacific Beach or Encinitas
employees under the written policy.83 Instead, Chipotle employees may use their
common sense in devising alternate ways to accommodate customers in
the food at a table. (3) Customers may simply wish to have the food or food preparation process described to them. (4) Or combinations of the above accommodations with any other reasonable accommodation requested or appropriate for the individual. CR 96 / ER III-14, page 7; CR 229 / ER I-5, Fact 110.
81
“...In all such cases the restaurant staff will offer suitable accommodations based upon the individual circumstances, and will be responsive to the customer’s requests. Depending upon the circumstances, our crew member or manager may ask the customer if we can accommodate them during their visit.
...It is the manager and crew’s responsibility to ensure that the experience a customer with a disability has is excellent.
...Crew members are encouraged to inform their Restaurant Manager regarding the experiences of their disabled customers and such experiences will be considered during the performance review process, both for the crew member and the manager. CR 96 / ER III-14, 7; CR 229 / ER I-5, Fact 110.
82
CR 267 / ER VI-27, 548:25-550:15.
83
CR 267 / ER VI-27, 549:14-19. 23

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wheelchairs.84 Contrary to the district’s ruling, the written policy does not “set forth plainly”
the “two new requirements” integral to the district’s decision that the policy constituted “equivalent facilitation.”85 It does not state that the managers, rather than the crew members, are responsible for carrying out the policy or that the manager on duty must affirmatively inform customers with disabilities about the available accommodations. It makes no mention of utilizing the cashier counter to provide accommodations. Quite simply, it appears that the district did not actually read the written policy but simply adopted Chipotle’s representation of the policy in its Proposed Findings of Fact and Conclusions of Law.86
G. Chipotle’s Failure to Present Material Evidence. Chipotle offered no evidence in support of its MSJ or at trial on the following: 1) that the “methods of accommodation” (food lifted in spoonfuls, or by
tongfuls, or by handfuls, or in plastic cups) provide a comparable or better “Chipotle experience” for wheelchair users; 2) that the accommodations are similar in appearance to, or as appetizing
84
CR 266 / ER V-26, 318:21-319:2.
85
CR 229 / ER I-5, CL16, contradicted by actual language of Policy, found at CR 229 / ER I-5, Fact 110.
86
CR 227 / ER VIII-30. 24

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as, a 12-foot long display of 16 bins brimming with food or that they provide equivalent opportunities to determine the freshness or composition of the food items, or to compare the ingredients to one another;
3) the amount of time it would take to perform the accommodations for wheelchair users who also want to see their entree assembled, allowing them to make their perfect burrito by asking for more or less of an ingredient;
4) whether the accommodations provide wheelchair users with any opportunities to see into the open kitchen, to see freshly marinated meats being grilled or to be “brought more completely into the dining experience” or to receive their entrees “quickly;”
5) that it would be structurally impracticable to have designed and constructed the food preparation areas without the offending walls;
6) that modifying the wall was not readily achievable.87
H. Fees Allocated Solely to the Unwritten Policy.
Since the written policy was not adopted until February 23, 2007 and was not
even made known to Antoninetti until April 16, 2007, no fees, expenses or costs
could have been incurred in relation to the written policy prior to April 16, 2007.
Antoninetti incurred fees of $229,937.52 prior to April 16, 2007.88
I. Antoninetti’s Billing Statement.
Antoninetti’s billing statement was 90 pages long and included more than 800
87
CR 265-268 / ER IV-25 to VII-28.
88
CR 299 / ER I-4, 6:13-7:4. 25

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billing entries.89 Chipotle initially challenged 85 entries as consisting of “block billing.” Antoninetti addressed each of the challenged entries in his Reply to his Motion for Attorney’s Fees, separating tasks that could be separated and specifically explaining why other entries could not be separated.90 This further detail was incorporated in Antoninetti’s Amended Bill of Costs by Request for Judicial Notice.91 The first 29 challenged entries involved work performed before April 16, 2007.
VI. SUMMARY OF ARGUMENTS 1) The district’s fee award was based upon a judgment that was erroneous as a matter of law and that was premised upon clear factual errors. The district’s legally and factually erroneous judgment improperly denied Antoninetti his full fees, expenses and costs. 2) The district committed legal erred in refusing to consider that Antoninetti’s litigation provided a substantial benefit to the disabled community. 3) The district committed legal error in holding that issues relating to Chipotle’s written policy were not intertwined with issues relating to the unwritten
89
CR 276-278 / ER IX-35.
90
CR 261-2 / ER VIII-34.
91
CR 274-4 / ER IX-35. 26

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policy. 4) The district committed legal and factual error in holding that Antoninetti
engaged in “block billing.” Even if some entries could be considered “block billing,” the district committed legal error in refusing to consider Antoninetti’s separation and explanation of tasks in his Reply to his fee motion and his Amended Bill of Costs. The detail required by the district was excessive.
5) The district committed legal erred in denying Antoninetti costs because he was entitled to them under the ADA as a prevailing party and/or as a matter of right under state statutes.
VII. STANDARDS OF REVIEW Awards of attorney's fees are generally reviewed for an abuse of discretion. Watson v. County of Riverside, 300 F.3d 1092, 1095 (9th Cir. 2002). The reviewing Court only arrives at discretionary review if it is satisfied that the correct legal standard was applied and that none of the district court's findings of fact were clearly erroneous. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1147-48 (9th Cir. 2001). If the parties contend the district court made a legal error in determining the fee award, then de novo review is required. Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985) ("Any elements of legal analysis and statutory interpretation which figure in the district court's decision are reviewable de novo."). All factual findings are
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reviewed for clear error. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000).
A decision to deny summary judgment is reviewed de novo. Brewster v. Shasta County, 275 F.3d 803, 806 (9th Cir. 2002). The interpretation of the ADA is a question of law subject to de novo review. The allocation of the burden of proof is also reviewed de novo. The decision whether to grant equitable relief under the ADA is reviewed for an abuse of discretion. Molski v. Foley Estates Vineyard, 531 F.3d 1043, 1046 (9th Cir. 2008).
The district abuses its discretion when it makes an error of law. Agostini v. Felton, 521 U.S .203, 238 (1997). An abuse of discretion is also “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against logic and effect of the facts as are found.” Wing v. Asarco Inc., 114 F.3d 986, 988 (9th Cir. 1997). It is clear error if the reviewing court has a “definite and firm conviction that a mistake has been committed.” Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002). The wholesale and verbatim adoption of one party’s findings requires the Circuit Court to review the record and the district court’s opinion more thoroughly. Silver v. Exec. Car Leasing, 466 F.3d 727, 733 (9th Cir. 2006).
Clear error exists when the trial judge “misapprehended the effect of the
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evidence” and when “the testimony, considered as a whole, convinces the (appellate) court that the findings are so against the preponderance of credible testimony that they do not reflect or represent the truth and right of the case.” Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006).
VIII. ARGUMENTS
A. The District Committed Legal and Clear Factual Errors in the Underlying Judgment and Denial of Summary Judgment.
1) The District Erred in Holding that Policies of Providing Methods of Accommodation Can Be “Equivalent Facilitation” in New Construction.
Congress directed the U.S. Department of Justice (“DOJ”) to issue regulations that include standards applicable to facilities covered by the ADA. 42 U.S.C. § 12186(b). The implementing regulations were issued on July 26, 1991, and include architectural standards for newly constructed public accommodations and commercial facilities entitled “the Standards for Accessible Design,”92 found at 28 C.F.R. Part 36. The purpose of the Standards is made clear at ADAAG § 1, which states:
This document sets guidelines for accessibility to places of public accommodation and commercial facilities for individuals with disabilities. These guidelines are to be applied during the design, construction, and alteration of
92
Referred to herein as “the ADAAG” or “the Standards.” 29

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such buildings and facilities to the extent required by regulations issued by Federal agencies, including the Department of Justice, under the Americans with Disabilities Act of 1990. ADAAG § 1 (Emphasis added.) The only justification for the failure to provide an accessible design in the first instance is by showing structural impracticability.” Caruso v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730, 740 (3rd Cir. 1999). The purpose of the ADAAG, then, is to establish physical and scoping requirements for accessible facilities that are to be followed at the design and construction phases. Policies of providing methods of accommodation are not applied “during the design and construction” of a building or facility. Rather, they are typically adopted and implemented by operators of places of public accommodation, often long after construction of facilities are completed and often by businesses that had no part in the design and construction of the facilities. The ADAAG requires that new facilities are designed in the first instance to be accessible so that people with disabilities will not have to rely on human benevolence and the skill, attitude, inclination or judgment of others to provide them with accessibility. Policies of providing methods of accommodation to overcome physical barriers necessarily require reliance on the good will of others to actually provide the accommodations and the judgment of others to provide adequate accommodations.
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Congress intended the DOJ to provide specific design requirements and it also intended to allow for departures from those technical and scoping requirements. “Allowing these departures will provide public accommodations...with necessary flexibility to design for special circumstances and will facilitate the application of new technologies.” H.Rpt. No. 101-485(II) at 119.
These allowable departures were termed “equivalent facilitation” and were codified at ADAAG § 2.2:
Departures from particular technical and scoping requirements of this guideline by the use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility. “When initially proposed, §2.2 read, ‘Departures from particular technical and scoping requirements of this guideline by the use of other methods are permitted where the alternative methods used will provide substantially equivalent or greater access to and usability of the facility.’ 56 Fed. Reg. at 2327. (Emphasis added.) Following a notice and comment period, the phrase ‘design and technologies’ was substituted for the word ‘methods.’ The Access Board explained that ‘[t]he purpose of the provision is to allow for flexibility to design for unique and special circumstances and to facilitate the application of new technologies.’ 56 Fed. Reg. at 35,413.” Moeller v. Taco Bell Corp., Case No. C 02-5849 MJJ, U.S. Dist. LEXIS
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41256 (N.D. Cal. August 10, 2005) at *5. “It appears that the purpose of the exception is to give architects the flexibility
to design facilities that may not strictly comply with the Accessibility Standards but nonetheless provide equivalent facilitation ...Indeed, when ‘[p]roperly read, the Equivalent Facilitation provision does not allow facilities to deny access under certain circumstances, but instead allows facilities to bypass the technical requirements laid out in the [Accessibility] Standards when alternative designs will provide equivalent or greater access to and usability of the facility.' (Citation omitted)” Moeller, supra, at *8. (Emphasis added).
Given that ADAAG § 2.2 was modified by the Access Board to substitute the phrase “design and technologies” for the word “methods,” this intentional substitution would be nullified by interpreting “design” to include “policies of providing methods of accommodation.”
The district erred in holding that policies of providing methods of accommodation can constitute “equivalent facilitation” under ADAAG §§ 2.2 and 7.2(2)(iii). The purpose of the ADAAG would be undermined if builders and designers could rely on an interpretation of “equivalent facilitation” that would allow them to design and construct inaccessible facilities with the hope and prayer that public accommodations would later implement policies of providing methods of
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accommodation to overcome the inaccessible design.
The limited case law addressing “equivalent facilitation” under the ADAAG
uniformly rejects “policies” as “equivalent facilitation” in new construction. In
Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D.Or.
1997), the defendant Arena argued that it had provided “equivalent facilitation”
because, although its suites were not ordinarily configured for wheelchair
accessibility, it had adopted a written policy of providing accommodations by
removing in-fill seats upon request.
The Oregon Arena Court firmly rejected the argument that a policy could
constitute “equivalent facilitation” and explained:
Defendant contends that this policy is an "equivalent facilitation." Defendant could not be more mistaken. An "equivalent facilitation" is an alternative design or technology that will provide substantially equivalent or greater access to and usability of the facility. Standard 2.2. What defendant proposes is not an "alternative design or technology" that provides equivalent or greater access. Rather, defendant proposes a design that creates less access than is required, but --if given advance notice that a wheelchair user is in route-- defendant will remove some of the barriers and temporarily comply with the ADA. That is unacceptable...
It always has been "possible" to improvise access, given advance notice that someone with a wheelchair is coming. You simply had two strong persons standing by to carry the wheelchair user up the stairs that could not be traversed by a wheelchair. However, Congress has served notice through the ADA that such solutions
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no longer are acceptable. In new construction, the facility must be designed to be accessible from day one... Congress has mandated that newly constructed facilities must be fully accessible from the start. Oregon Arena, supra, at 764. (Emphasis added.) With respect to the instant case, the ADAAG identifies the average eye level of people in wheelchairs as between 43 and 51 inches from the finished floor. Even with this knowledge, Chipotle designed a facility that, from day one, provides less access because of the wall that prevents people in wheelchairs from seeing the open kitchen, the display of food and the assembly of entrees behind and below the wall. The district committed legal error in holding that the later-adopted written policy constitutes “equivalent facilitation” because there was no evidence that Chipotle could not have designed its food viewing area to be accessible from “day one” and Chipotle waived any such affirmative defense.93 2) The Written Policy Does Not Say What the District Said it Says. The written policy cannot constitute “equivalent facilitation” not only because policies are not “designs and technologies” but because it undeniably suffers the same failures as the unwritten policy and the district committed clear factual error in holding otherwise. Contrary to the district’s holding, the written policy does not
93
CR 3 / ER II-8. 34

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plainly set forth the “two new requirements” on which the district relied in distinguishing the written policy from the unwritten policy and in determining the written policy provided equivalent facilitation.
In fact, the written policy clearly states the opposite: crew members and managers are responsible for providing accommodations to customers. The written policy does not require the manager on duty to affirmatively inform customers with disabilities about the availability of accommodations. Rather, it states that crew members or managers may ask customers if they want to be accommodated.94 Because the district’s interpretation that the written policy imposes “two new requirements” is contradicted by the actual language of the policy, this reviewing Court can only be left with a “definite and firm conviction that a mistake has been committed.” Husain v. Olympic Airways, supra.
Further, Chipotle’s own witnesses confirmed that the written policy, like the unacceptable unwritten policy, allows employees to use their own judgment and common sense to devise accommodations and allows the use of methods not before the court for review and consideration.95 The written policy also fails to require that
94
CR 229 / ER I-5, Fact 110, CL 16, CL 17.
95
CR 266 / ER V-26, 318:21-319:2.
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people in wheelchairs be provided the opportunity to see the assembly of their entrees so that they can customize their entrees like other members of the general public. The policy and accommodations provide no visual access to the “open” kitchens so that customers can be brought “more completely into the dining experience.”
If policies can constitute “equivalent facilitation” in new construction, Antoninetti was entitled to injunctive relief compelling modification of the written policy so that its language reflects the “two new requirements,” so that it places limitations upon the methods of accommodation to be utilized by the managers and so that access to the open kitchen is provided. The district erred in failing to order Chipotle to modify the written policy if policies can constitute equivalent facilitation.
3) Antoninetti Was Entitled to Receive the Same Benefits, Privileges, Accommodations, Goods and Services as Other Standing Customers.
Even assuming arguendo that Chipotle is entitled to rely on the “equivalent facilitation” option under ADAAG Sec. 7.2(2)(iii), the district committed a clear error of fact because Chipotle failed to establish that its methods of accommodation satisfy the definition of “equivalent facilitation.”
The language of Title III itself precludes a reading of the “Equivalent Facilitation” provision that would allow public accommodations to provide separate or unintegrated benefits or different benefits. (See, Caruso, supra, at 739, 740, citing
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42 U.S.C. § 12182(b)(1)(A)(iii) - discriminatory to provide a separate benefit unless necessary to provide equal benefit); 42 U.S.C. § 12182(b)(1)(B) - benefits of a public accommodation must be provided in the most integrated setting appropriate to the needs of the individual; and 42 U.S.C. § 12182(b)(1)(C) - notwithstanding the existence of separate or different programs or activities . . . an individual with a disability shall not be denied the opportunity to participate in such programs or activities that are not separate or different.)
The undisputed facts prove that Chipotle’s methods of accommodation provide people in wheelchairs with access to completely different benefits and experiences than are available to the general public - small samples of food on a tray or lifted by spoonfuls versus a twelve-foot long expanse of food on display. The methods also provide separate benefits and experiences - small samples displayed in the dining area versus traveling along the same ordering line utilized by the general public.
Here, the district committed clear factual error and legal error because the benefits offered to people in wheelchairs are different (food shown or provided in small, plastic cups) and separate (displayed at adjacent tables), in violation of the general anti-discrimination provisions of the ADA. See, 42 U.S.C. § 12182(b).
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4) The District Misapplied the Standards. (a) ADAAG § 7.2 Does Not Apply to the “Chipotle Experience.”
The district correctly held that ADAAG § 7.2(2)(i) did not apply to this case because the lowered transaction counter was not a “lowered portion” of the food preparation area since the two areas serve different functions.96 The district also correctly held that the transaction counter does not qualify as an “auxiliary counter” under Sec. 7.2(2)(ii) because the counter, alone, does not provide customers in wheelchairs with full and equal access.97
The district erred, however, when it held that ADAAG § 7.2(2) applies to this case in the first instance. Section 7 of the ADAAG is entitled “Business and Mercantile” and addresses “areas used for business transactions with the public.” Section 7.2(2) refers to “counters that may not have a cash register but at which goods or services are sold or distributed.”
ADAAG § 7.2(2) cannot apply to Chipotle’s food preparation areas and open kitchens because the visual and sensory components integral to the Chipotle Experience are not “business transactions” as that term is commonly used and interpreted.
96
CR 129 / ER I-6, 14:20-22.
97
CR 129 / ER I-6, 16:8-13. 38

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Instead, the visual and experiential elements of the Chipotle Experience are the very sorts of “privileges, advantages, or accommodations” that are often provided by public accommodations in addition to the goods and services that are encompassed by the general anti-discrimination provisions of the ADA. It defies logic that § 7.2 can be interpreted to apply to situations where sensory benefits are intended to be provided to the general public if the application would create a denial of access to those additional important sensory benefits.
(b) ADAAG § 4.33.3 and Figure A3 Apply to the “Chipotle Experience.”
There is no ADAAG Standard which specifically addresses “we serve you at your direction while you watch buffet lines and while you look into the open kitchens.”98 ADAAG Figure A3, however, details the average eye levels for people in wheelchairs and ADAAG § 4.33.3 (the line of sight Standard) is specifically incorporated into the requirements relating to restaurants, which are found at Section 5 of the ADAAG, entitled “Restaurants and Cafeterias.”
ADAAG §5.1 states that “restaurants and cafeterias shall comply with the
98
ADAAG § 5.5 addresses “food service lines” but only addresses path of travel and tray slide requirements. While Figure 53 arguably illustrates the appropriate design for Chipotle’s ordering line, Antoninetti contends that § 4.33.3 more specifically addresses the line-of-sight requirements in restaurants, given that it is incorporated into Section 5, relating to Restaurants and Cafeterias.
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requirements of 4.1 to 4.35,” obviously including § 4.33 within the compliance
parameters. Section 4.33 is entitled “Assembly Areas” and was always intended to include more than just stadiums and theaters.99 “Assembly Area” was even given
specific meaning in the ADAAG and is broadly defined as “a room or space
accommodating a group of individuals for recreational, educational, political, social,
or amusement purposes, or for the consumption of food and drink.” ADAAG § 3.5.
Line of sight requirements, which are incorporated into the restaurant and cafeteria requirements, are set forth at ADAAG § 4.33.3.100
Restaurants, then, are assembly areas, are governed by the Standards
specifically applicable to assembly areas (ADAAG §4.33) and are subject to the line
of sight requirements of ADAAG § 4.33.3. Chipotle’s “we serve you at your
direction while you watch buffet line” and its “open kitchen” are exactly the sorts of
99
ADAAG § 4.33.3 was modeled after existing federal accessibility Standards that “have applied since 1984 to theaters, auditoriums and other places of assembly constructed with federal funds.” H. Rpt. No. 101-485(II)at 103.
100
Section 4.33.3 states in pertinent part:
Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. They shall adjoin an accessible route that also serves as a means of egress in case of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating area. ..
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situations that explain the “line of sight” requirement in restaurants and are logically the reason that “assembly areas” include “places where food is consumed.”
(c) The Regulatory Language Applies the General Anti-Discrimination Provisions in the Absence of an Applicable Standard.
If the ADAAG completely fails to address a particular situation, element, design or feature, the general anti-discrimination provisions of the ADA101 and the regulations102 still require that a public accommodation either provide an accessible design in the first instance, with reference to the general provisions of 28 C.F.R. § 36.401, or that a public accommodation remove architectural barriers where removal is readily achievable when the public accommodation is presented with an inaccessible element that it did not design or create.
The DOJ provided notice to designers and builders that they will be required to provide accessible and usable elements and facilities, even in the absence of a specific Standard:
“the rule requires, as does the statute, that covered newly constructed facilities be readily accessible to and usable by individuals with disabilities.... To the extent that a particular type or element of a facility is not specifically addressed by the standards, the language of this section (Sec. 36.401) is the safest guide.”
101 Codified at 42 USC § 12182(a). 102 Subpart B (General Requirements - 28 C.F.R. §§ 36.201-36.213) and Subpart C (Specific Requirements - 28 C.F.R. §§ 36.301-36.310).
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(ADAAG, Appendix B,103 page 621. (Emphasis added.))
The DOJ also explained that where the specific provisions do not apply, the
general anti-discrimination provisions govern:
“Resort to the general provisions of subpart B is only appropriate where there are no applicable specific rules of guidance in subparts C or D.”
ADAAG, Appendix B, p. 604, right column.
28 CFR § 36.213 also specifically addresses the interplay between the ADA’s
general anti-discrimination requirements (Subpart B) and its specific requirements
(Subpart C), including the Standards (Subpart D):
“Subpart B of this part sets forth the general principles of nondiscrimination applicable to all entities subject to this part. Subparts C and D of this part provide guidance on the application of the statute to specific situations. The specific provisions, including the limitations on those provisions, control over the general provisions in circumstances where both specific and general provisions apply.”
If an accessible design is not possible in the first instance (e.g., mobile health
screening vans that may be manufactured by others), the general anti-discrimination
provisions will require a public accommodation to remove architectural barriers if it
is readily achievable to do so. Illustration of this obligation is included in the 1994
Supplement to the TAM (TAM III-5.3000 (1994 Supplement)):
103 28 C.F.R. Part 36, Appendix B relied upon by the Ninth Circuit in Molski v. M.J. Cable, Inc. 481 F.3d 724, 730 (9th Cir. 2007).
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“Although mobile health care screening vans are “facilities” subject to the requirements of Title III, there are no specific ADAAG standards for newly constructed or altered vans. The vehicles are, however, subject to other Title III requirements including the obligation to provide equal opportunity and the duty to remove architectural ...barriers to the extent that it is readily achievable to do so, and if it is not readily achievable to do so...”
In its Commentary, the DOJ again explained the barrier removal requirements
in situations where the ADAAG does not specifically refer to certain elements or
features (such as arcade video machines):
“Purchase or modification of equipment is required in certain instances by the provisions of §§ 36.201 and 36.202. For example, an arcade may need to provide accessible video machines in order to ensure full and equal enjoyment of the facilities and to provide an opportunity to participate in the services and facilities it provides. The barrier removal requirements of Sec. 36.304 will apply as well....”
Appendix B, p. 616, left column.
If the reviewing Court determines that ADAAG §§ 4.33.3, 5.1, 7.2(2) and
Figure A3 are not applicable to the architectural nature of the “Chipotle experience,”
Chipotle was still required to provide an accessible design in the first instance by
reference to the general provisions that require a facility to be “accessible to and
usable by” people with disabilities. Certainly any designer with even modest
experience could determine that a 46-inch high wall would block the view of
wheelchair users with eye levels below that height, particularly if a view was required
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to an area behind and below the wall. Moreover, if Chipotle was unaware of this basic fact, once Chipotle was
advised by its customers, as early as 2002, that wheelchair users could not see the food preparation area,104 Chipotle was required to lower or modify the wall under 28 C.F.R. § 36.304, if it was readily achievable to do so. Chipotle waived any defense that barrier removal was not readily achievable.
“(D)efendant has failed to plead that barrier removal is not readily achievable in its answer. Accordingly, the defense is waived. Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 819 (9th Cir. 2004) (sic). While plaintiff has not come forward with any evidence regarding barrier removal, he need not do so where such evidence would be unnecessary, given defendant's waiver.” Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 (E.D. Cal. 2007).
(d) The District Imposed Improper Burdens of Proof on Antoninetti.
Antoninetti was entitled to injunctive relief because he sought a statutorily authorized injunction, rather than an equitable injunction. The standard requirements for equitable relief need not be satisfied when an injunction is sought to prevent the violation of a federal statute which specifically provides for injunctive relief. Trailer
104 ER II-15, p. 59 - 64. (Chipotle’s search for emails was inexplicably limited to the time period of 7/11/02 to 8/21/06 - see ER II-15, top of p.59)
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Train Co. v. State Bd. of Equalization, 697 F.2d 860, 869 (9th Cir. 1983), cert. denied,
464 U.S. 846, 78 L. Ed. 2d 139, 104 S. Ct. 149 (1983).
In Long v. Coast Resorts Inc., 267 F.3d 918 (9th Cir. 2001), the Ninth Circuit
raised, without deciding, the issue of whether a court has equitable discretion in
fashioning relief for violations of the ADA’s new construction requirements:
The magistrate judge's ruling was in error. In contrast to grandfathered facilities, the ADA requires that newly constructed facilities be "readily accessible and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(1). We need not decide whether the ADA forecloses the possibility that a court might exercise its equitable discretion in fashioning relief for violations of § 12183(a), see, e.g., Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978), because there is no room for discretion here even if it exists. This violation resulted in the very discrimination the statute seeks to prevent: it denied individuals with disabilities access to public accommodations. Moreover, the only statutory defense for noncompliance -- structural impracticability -- does not apply to the Orleans because the terrain on which it is constructed has no unique characteristics which would make accessibility unusually difficult to achieve. See 42 U.S.C. § 12183(a)(1). Thus, we reverse the magistrate's determination that, because the Orleans demonstrated obedience to the spirit of the ADA, plaintiffs were not entitled to injunctive relief.
Long v. Coast Resorts, Inc., supra, at 923 (emphasis added.)
If Congress wishes to do so, it can require the federal courts to automatically
enjoin actual or imminent violations of a statute without an individualized balancing
of the equities. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 72 L. Ed. 2d 91,
102 S. Ct. 1798 (1982); Tennessee Valley Authority v. Hill, 437 U.S. 153, 57 L. Ed.
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2d 117, 98 S. Ct. 2279 (1978). Tennessee Valley Authority is the leading case
sustaining such a congressional restriction of the courts' equitable discretion. In that
case, the district court was obliged by the statute to issue the injunction against the
completion of a dam, regardless of the costs or consequences of doing so, and
regardless of the result that it would have reached under the traditional equitable
balancing test.
With respect to the ADA, the courts are precluded from engaging in a
balancing test when ordering injunctive relief for violations of the new construction
standards. 42 U.S.C. § 12188 of the ADA states in pertinent part:
In the case of violations of ...section 12183(a) (new construction) of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter. (Emphasis added.)105
Cost is not a defense to complying with new construction standards in the first
instance and should not be a factor in fashioning a remedy for violations of the new
construction Standards. Requiring an aggrieved person with a disability to prove that
the benefit of removing a barrier is outweighed by the cost of removal would
105
28 C.F.R. § 36.501(b) also provides: “In the case of violations of ...§ 36.401 (new construction), injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.”
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effectively provide violating defendants with a “cost” defense.
In Oregon Arena, the court addressed the consideration of cost with respect to
new construction and to existing facilities:
This particular discussion (about Technical Assistance Manual (“TAM”) § III-4.4600) concerned the requirements for removing barriers in existing construction. The Rose Garden is subject to the rules for new construction. Consequently, the "readily achievable" qualification is inapplicable here, since new construction must meet the highest standards. See, H.R. Rep. No. 101-485(III) at 60 (explaining distinction between the two standards), (citation omitted). In contrast to existing construction, there is no cost defense to the requirements for new construction. TAM § III-5.1000. (emphasis added.)
Oregon Arena, supra, at fn. 38.
The district erred in holding that Antoninetti had the burden of proving that
modification of the walls was outweighed by the benefit provided by the modification
not only because the balancing of interests was inappropriate, but also because
Chipotle waived the affirmative defenses of structural impracticability and that
barrier removal was not readily achievable.
(e) The District Erred in Holding, Without Any Evidentiary Support, that Chipotle Met its Burden of Proving the Methods of Accommodation Provided Equivalent Facilitation.
Where a defendant deviates from the standards and attempts to provide
“equivalent facilitation,” the burden is on the defendant to show that equivalent
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facilitation is provided. Oregon Arena, supra, at 727. Here, the district reached the legal conclusion that Chipotle’s written policy
was “equivalent facilitation,”106 but it made no factual findings upon which such a conclusion could be reached. The record undeniably reflects that Chipotle failed to offer any evidence refuting Antoninetti’s declaration and testimony that he has been deterred from returning to the restaurants because Chipotle’s methods of accommodation, provided only during the site inspections, were awkward, humiliating, unappetizing, different in quality, location, time and experience and Antoninetti believed that, if he returned, he would face the same intolerable situation.107 Instead, Chipotle only offered evidence that it has adopted its written policy and that it has received no complaints since the adoption of the written policy.
Chipotle, however, was not required to simply prove that it provided methods of accommodation, it was required to prove those methods of accommodation were substantially equivalent or equal to the experience provided to the general public. An absence of complaints does not establish the methods of accommodation are equivalent. (See, Oregon Arena, supra, at 764 - “The wheelchair user may also be
106
CR 229 / ER I-5, 35:6-13.
107
CR 267 / ER VI-27, 407:10-21, 412:23- 413:25, 426:21- 427:10; 494:23495:13.
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hesitant to make a fuss, or to request special accommodations.”) As a matter of law, this Court should find that simply proving that no one
complained about accommodations is insufficient to prove the accommodations are “equivalent.”
(f) The District Erred in Holding, Contrary to the Parties’ Stipulation, That Antoninetti Did Not Prove He Wanted to Return to the Restaurants.
The district’s denial of injunctive relief was also based upon the clearly erroneous factual finding that Antoninetti failed to prove his intent to return to the restaurants108 because it is contrary to the Parties’ stipulation that Antoninetti wants to be able to have the “Chipotle experience” provided to the general public, which necessarily requires an intent to return to the restaurants.109 The district was required to accept these stipulated facts as proven.110
The district also improperly relied upon Antoninetti’s “litigation history” to determine his credibility. “(B)ecause the district court focused on D'Lil's history of ADA litigation as a basis for questioning the sincerity of her intent to return to the
108
CR 229 / ER I-5, 35:22-36:7.
109
CR 157 / ER IV-22, 5:28-6:6. 110 Ninth Circuit Manual of Model Jury Instructions Civil, Instruction No. 2.2 (2007).
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Best Western Encina, we reject its purported adverse credibility determination.”
D’Lil v. Best Western, 538 F.3d 1031, 1040 (9th Cir. 2008).
5) Antoninetti is Entitled to Damages for “Litigation-Related” Visits.
Cal. Civil Code § 54.3 imposes penalties against those who interfere with the
rights of “an individual with a disability” under Sections 54, 54.1 and 54.2. and Cal.
Civil Code § 54.1(d) provides:
A violation of the right of an individual under the Americans with Disabilities Act of 1990 ...
Cal.Civ. Code § 54.1(d).
Recovery under the ADA is not limited to just “customers and clients,” as this
Court noted in Molski v. M.J. Cable, Inc.:
Title III's broad general rule contains no express 'clients or customers' limitation ..." (Citation omitted)... the phrase 'clients or customers,' which only appears in 42 U.S.C. § 12182(b)(1)(A)(iv), is not a general circumscription of Title III and cannot serve to limit the broad rule announced in 42 U.S.C. § 12182(a)." Id. at 121. Rather, ..."[t]he operative rule announced in Title III speaks not in terms of 'guests,' 'patrons,' 'clients,' 'customers,' or 'members of the public,' but instead broadly uses the word 'individuals.'" Id. Accordingly, Molski did not need to have been a client or customer of Cable's to be an "individual" entitled to the protections of Title III. One need not be a client or customer of a public accommodation to feel the sting of its discrimination.
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Molski, supra, at 733. Antoninetti, then, was not even required to be a customer to prove his rights
under the ADA were violated, thus entitling him to damages. Even if Antoninetti were required to be a customer of Chipotle to avail himself of the protections of the ADA and, consequently, to receive damages under state law, “customer” is defined as “one that purchases a commodity or service.” “Bona fide” is defined as “made in good faith without fraud or deceit.” www.merriam-webster.com.
There is no dispute that Antoninetti was a customer of Chipotle during his visit on October 1, 2006 and during the two site inspections of October 6, 2006. Nor did Chipotle offer any evidence that Antoninetti’s purchases during these visits were made in bad faith or with fraud or deceit. The district’s rejection of these visits because they were “litigation-related” imposes a limitation on damages not found in Cal. Civil Code § 54.3 and Antoninetti was entitled to additional damages of at least $3,000.00, which would have resulted in recovery of all or most of the damages sought at trial.
6) Antoninetti Was Entitled to Summary Judgment or Judgment After Trial Because The District Committed Legal Error and/or Because Chipotle Failed to Raise a Dispute of Material Fact.
Even assuming policies can constitute “equivalent facilitation,” Antoninetti was still entitled to summary judgment in his favor because Chipotle offered no
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evidence to refute Antoninetti’s evidence that he had not been provided any accommodations during pre-site inspection visits, or that the accommodations provided at the site inspections provided Antoninetti a different, separate and unequal “Chipotle experience.”
To defeat a motion for summary judgment, Chipotle had to set forth specific facts showing there was a genuine issue for trial. Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 250. Chipotle had the “heavy” burden, in opposing Antoninetti’s MSJ, of proving that its “methods of accommodation” provided “equivalent facilitation.” Oregon Arena, supra, at 727. Antoninetti was entitled to summary judgment if he pointed to an absence of evidence as to an issue upon which Chipotle bore the burden at trial. US v. AMC Entertainment, Inc., 232 F.Supp.2d 1092, 1098-1099 (C.D. Cal. 2003).
In his MSJ and at trial, Antoninetti proved that he could not see over the wall, (which prevented him from seeing into the open kitchen), that he was offered no accommodations prior to the site inspections, that the methods of accommodation offered during the site inspections were different and separate than those provided to standing customers, that the accommodations were unappetizing and made him feel very uncomfortable because he was disrupting the flow of the ordering line, and that he wanted to have the “Chipotle experience,” which rationally requires a return to
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Chipotle’s restaurants. Chipotle offered no evidence at any time establishing the methods of
accommodation were appetizing, that small sample cups of food do allow wheelchair users to see the quality, composition and freshness of the food, that showing samples of food allows wheelchair users to “eat with their eyes” and to be “brought more completely into the dining experience.” Chipotle offered no evidence regarding the amount of time required to assemble a burrito in front of a wheelchair user, or that the methods of accommodation provide wheelchair users with “quick gourmet.”
Based upon this absence of evidence, Antoninetti was entitled to have summary judgment entered in his favor. The district erred in denying him summary judgment or injunctive relief following trial. Those erroneous rulings led to the district’s determination that Antoninetti had achieved only partial success and was entitled to only a fraction of his fees and expenses and was not entitled to costs. B. Antoninetti’s Lawsuit Provided Substantial Benefits to the Disabled
Community. The district committed legal error in refusing to consider the public benefit and other tangible results from Antoninetti’s litigation.111 Although the district ultimately acknowledged that Antoninetti’s lawsuit resulted in accessible modifications to
111
CR 271 / ER I-3, 5:21-22. 53

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Chipotle’s parking lots, it refused to consider these and other benefits in its award of fees.112 The district ignored the collateral estoppel effect of its ruling and the significant legal issues that were raised and decided in Antoninetti’s lawsuit. (See, Wilcox v. City of Reno, 42 F.3d 550, 553 (9th Cir. 1994).)
By its very nature, this case involved legal issues which are so important to the disabled community that seven disability advocacy organizations joined in an amicus brief in the consolidated cross-appeals. Antoninetti achieved not only a monetary benefit for himself, but he also achieved a major benefit for people with disabilities. The district’s ruling, even if affirmed, advanced the public interest by establishing that unwritten, informal policies of providing methods of accommodation violate the rights of people with disabilities under the ADA and are not “equivalent facilitation” with respect to new construction.113
That ruling established a finding of fact that will have collateral estoppel effect in the related class actions (one of which was consolidated with the instant case by the district), negating the need for extensive discovery in, and litigation of, the related lawsuits. That is, the class members’ right to recover damages based upon Chipotle’s failure to comply with the ADA has effectively been determined by Antoninetti’s
112
CR 288 / ER I-2, 4:3-10; 4:21-23.
113
CR 229 / ER I-5, CL 12. 54

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suit. While the scope of damages may well be increased by the ruling on the related appeal, at a minimum the class members are entitled to damages for visits when the unwritten policy was in effect.
Further, if the district had not committed error and Antoninetti had prevailed on the issues addressed in his related appeal, his lawsuit would have established important case law establishing that written and unwritten policies of providing methods of accommodation are not “equivalent facilitation” under the design and scoping requirements of the ADAAG and, more specifically, ADAAG §§ 2.2 and 7.2(2)(iii). His suit would also have established the standards and burdens of proof with respect to obtaining injunctive relief in new construction, the availability of damages for “litigation-related” visits, the application of the general and specific antidiscrimination provisions of the ADA to the determination of “equivalent facilitation” or in the absence of a Standard directly on point, and/or the right of class members to recover for damages for visits after the written policy went into effect.
The district erred in failing to consider the significant public benefits of Antoninetti’s suit in determining his “degree of success.” C. The District Erred in Reducing Fees Based Upon
“Written Policy” Claims Versus “Unwritten Policy” Claims. There is a two-step process for analyzing a reduction of an attorney fees award for “limited success.” The first step is to consider whether the plaintiff failed to
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prevail on claims that were unrelated to the claims on which he succeeded. Claims are “unrelated” if they are entirely distinct and separate from the claims on which the plaintiff prevailed.
The second step is to consider whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award. In answering that question, a district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. A plaintiff may obtain excellent results without receiving all the relief requested. Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001).
In a lawsuit where the plaintiff presents different claims for relief that “involve a common core of facts” or are based on “related legal theories,” the district court should not attempt to divide the request for attorney's fees on a claim-by-claim basis. (Citation omitted) Instead, the court must proceed to the second part of the analysis and “focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” (Citation omitted). McCown v. City of Fontana, 550 F.3d 918, 923 (9th Cir. 2008).
Where a plaintiff's successful and unsuccessful claims are “inextricably
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intertwined” and the plaintiff achieves a substantial portion of the benefit sought from the suit, a fee award should not be reduced on the ground of partial success. Passantino v. Johnson & Johnson, 212 F.3d 493, 518 (9th Cir. 2000) (affirming fee award entered by district court after finding that reduction was not warranted where the time spent on plaintiff's unsuccessful claims contributed to her success on the remaining claim).
The district erred when it made a false distinction between Antoninetti’s “unwritten” and “written” policy claims, denying Antoninetti fees on that basis.114 First of all, the district itself never distinguished between the written and unwritten policies in its ruling on the parties’ Motions for Summary Judgment. No distinction was appropriate because Chipotle contended that its written policy simply “set forth in writing that which we have always done informally...”115 In fact, Chipotle contended that the same methods of accommodation were offered under the informal, verbal policy as under the written policy, but that the written policy simply articulated these practices “better.”116
114
CR 271 / ER I-3, 6:24 -7:5.
115
CR 96 / ER III-14, par. 3.
116
CR 267 / ER VI-27, 554:7-13. 57

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In denying summary judgment, the district specifically identified the issue to
be tried: whether the nature of Chipotle’s accommodations met the standard for
“equivalent facilitation.” The district clearly stated:
“A reasonable jury might accept Defendant’s statements that handing sample cups to customers or displaying ingredients on an adjacent table provides equivalent access to Defendant’s restaurants.... On the other hand... (a) jury might find that the food samples do not enable customers in wheelchairs to judge the freshness of the food or receive fast service to the same degree as standing customers. The Court thus FINDS that this fact-intensive issue presents material questions of fact and renders summary judgment on the question of equivalent facilitation inappropriate.”117
The district did not deny summary judgment because a question of fact existed
regarding whether the written policy would provide equivalent facilitation where the
unwritten policy would not. Following the district’s direction, Antoninetti offered
evidence at trial on the paramount issue - the nature and quality of Chipotle’s
methods of accommodation and whether those accommodations provide wheelchair
users with an experience comparable to that provided to standing customers. The
determination of these issues requires the same analysis and consideration of the
same core facts, regardless of whether those accommodations are provided pursuant
to an informal verbal directive or because of words on a piece of paper.
117
CR 129 / ER I-6, 17:13-18:2. 58

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Antoninetti offered evidence that the “Chipotle experience” offered to the general public provides access to “the open kitchen” and the right to “see, select and direct” the making of the “perfect burrito.” He proved that the design of the food viewing area provides no visual access to these sensory and experiential benefits for people in wheelchairs. He also proved the nature of the experiences provided to him during his several visits - nothing for the first five visits and only a limited view of small samples held above his head during two site inspection visits.
These facts provided the basis for Antoninetti’s claim that his rights under the ADA had been violated during his visits, that he was deterred from returning to the restaurants, and they supported his argument that the walls must be modified to provide equal access to people in wheelchairs. The core facts, then, were the same in relation to the written and unwritten policies.
The district’s failure to find these claims inextricably intertwined was legally and clearly factually erroneous.
Further, at trial Antoninetti offered no evidence regarding the written policy and offered no distinction between the written or unwritten policies. His counsel specifically addressed the written policy only in cross-examination of Chipotle’s witnesses, which consumed less than 20 minutes of time.118 The district’s reduction
118
CR 265-268 / ER IV-25 to ER VII-28, and trial exhibits. 59

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of fees by 75 percent, when the district itself found that Antoninetti offered no evidence regarding the “cost versus benefit” factor of injunctive relief (disputed by Antoninetti) was improper and not rationally related to the time invested by Antoninetti’s counsel on the “unsuccessful injunctive relief claim.” D) The District Erred With Respect to Purported “Block Billing” Entries.
The use of block billing does not justify an across-the-board reduction of fees. Welch v. Metro. Life Ins. Co., Inc., 480 F3d 942, 948 (9th Cir. 2007). An order reducing fees must set out the degree of the challenged billing or explain the relationship between the number of hours improperly billed and the size of the reduction. Sorenson, supra, at 1146.
“Trial courts must recognize how lawyers work and how they notate their time. It must be remembered that the ultimate inquiry is whether the total time claimed is reasonable.” Smith v. District of Columbia, 466 F. Supp. 2d 151 (D.D.C. 2006). (Emphasis added)
Even if any of Antoninetti’s time entries qualify as “block billing,” Chipotle only identified 85 of more than 800 entries which it contended were “block billed.” The district erred in making a 75 percent across-the-board reduction of Antoninetti’s fees based, in some indeterminate part, on the alleged “block billing.” Welch, supra.
Further, the district required a level of detail that was unreasonable and ignored
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Antoninetti’s further allocation of “block billed” entries. Antoninetti explained that many of the “block billed” entries were for tasks that could not be “separated out” because they were performed concurrently. Research was conducted during the course of writing briefs or preparing outlines, for example. Many, if not most, attorneys research case law through on-line databases and cut and paste into documents directly from databases while drafting documents. The olden days are long gone when attorneys would travel to the law library and manually research cases for use back at the office and research and drafting tasks were distinctly and separately performed.
Requiring attorneys to account for each time they switch screens to conduct research, while concurrently writing a brief or creating an outline, would have two undesirable results: their fee petitions will be higher and the lawyers will simply waste precious time doing menial clerical tasks. Smith v. District of Columbia, supra, at 158. E) Antoninetti Was Entitled to Recover Costs.
The district awarded damages to Antoninetti pursuant to Cal. Civil Code § 54.3, but denied him costs pursuant to 28 U.S.C. § 1920. California Code of Civil Procedure § 1032 provides for the recovery of costs by the prevailing party as matter of right. The “prevailing party” is defined as “the party with a net monetary
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recovery.” See Sec. 1032(a)(4). Pursuant to Sec. 1032(b), Antoninetti, as the prevailing party, was “entitled as a matter of right to recover costs in any action or proceeding.” The district erred in denying Antoninetti his costs.
Further, if the district had not committed legal and factual error in the underlying judgment and rulings, Antoninetti would have been entirely successful. He should recover all of his claimed costs.

VIII. CONCLUSION

Antoninetti respectfully requests that this Court reverse the district’s Order

denying Antoninetti’s Motion for Attorney’s Fees, in part, and that it remand this

case to the district with an instruction to award Antoninetti all of his attorney’s fees,

litigation expenses and costs.

LAW OFFICES OF AMY B. VANDEVELD

Dated: June 16, 2009 By:

S/ AMY B. VANDEVELD Attorney for Appellant/Cross-Appellee Email: abvusdc@hotmail.com

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STATEMENT OF RELATED CASES FOR CASE NOS. 09-55327, 09-55425, 08-55867 AND 08-55946

Related cases: 1) Antoninetti, et al. v. Chipotle, USDC No. 06 CV 2671 LAB

(POR), consolidated by the district with the instant case for purposes of discovery,

and 2) Perkins, et al. v. Chipotle, USDC No. CV 08-03002 MMM (OPx). Both suits

are putative class actions and involve the “Chipotle experience” at all Chipotle

restaurants in California.

LAW OFFICES OF AMY B. VANDEVELD

Dated: June 16, 2009 By:

S/ AMY B. VANDEVELD Attorney for Appellant/Cross-Appellee Email: abvusdc@hotmail.com

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Case: 08-55946 06/16/2009 Page: 73 of 74 DktEntry: 6958841

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. 32(a)(7)(c) and Ninth Circuit Rule 32-1, I certify that

this brief is reproduced using a times new roman proportional typeface with a point

size of 14, and the text contains 13,991 words, not counting tables and certificates. It

therefore conforms to the requirements set out in Fed. R. App. p.32 (a)(7)(c) and

Ninth Circuit Rule 32-1. The excerpts of record have been compiled in compliance

with Circuit Rule 30-1.6.

LAW OFFICES OF AMY B. VANDEVELD

Dated: June 16, 2009 By:

S/ AMY B. VANDEVELD Attorney for Appellant/Cross-Appellee Email: abvusdc@hotmail.com

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Case: 08-55946 06/16/2009 Page: 74 of 74 DktEntry: 6958841

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on June 16, 2009, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I mailed the foregoing documents by First Class Mail, postage prepaid, to the following non-CM/ECF participants:

Amy F. Robertson, Esq. FOX & ROBERTSON, P.C. 3801 E. Florida Avenue, Suite 400 Denver, CO 80210
Attorney for Amici
(Non-CM/ECF participant)

Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive, Suite 1000 Irvine, CA 92612 Attorney for Appellee/CrossAppellant (CM/ECF participant)

I further certify that I caused to be filed five sets of the Appellant/CrossAppellee’s Excerpts of Record, Volumes I - IX, in paper format with the Clerk of the Court for the United States Court of Appeals and I mailed one set to the abovementioned counsel by two-day mail on June 15, 2009 for guaranteed delivery on June 17, 2009.

I declare under penalty of perjury, under the laws of the State of California and the United States of America, that the foregoing is true and correct.

Dated: June 16, 2009

LAW OFFICES OF AMY B. VANDEVELD S/ Amy B. Vandeveld Email: abvusdc@hotmail.com
Attorney for Appellant/Cross-Appellee

65

 
 Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
2007 WL 935623 Only the Westlaw citation is currently available.
United States District Court, S.D. California.
Maurizio ANTONINETTI, Plaintiff, v.
CHIPOTLE MEXICAN GRILL, INC., and Does 1 through 10, inclusive, Defendants. And Related Case.
Civil No. 05CV1660-J (WMc). | No. 06CV2671-J (WMc). | March 20, 2007.
Attorneys and Law Firms Amy B. Vandeveld, Law Office of Amy B. Vandeveld, San Diego, CA, for Plaintiff. Gregory Francis Hurley, Stacey L. Herter, Greenberg Traurig, Costa Mesa, CA, Jonathan J. Herzog, Weston Herzog, Glendale, CA, for Defendants. Opinion
ORDER:
(1) DENYING DEFENDANTS’ MOTION TO DISMISS CASE NO. 05CV1660-J (WMc);
(2) GRANTING DEFENDANTS’ MOTION TO CONSOLIDATE FOR PURPOSES OF DISCOVERY ONLY.
NAPOLEON A. JONES, JR., United States District Judge. *1 Before the Court is Defendants Chipotle Mexican Grill’s (“Defendants”) Motion to Dismiss Case No. 05cv1660, or in the Alternative, to Consolidate Case No. 05cv1660 with Case No. 06cv2671. [Doc. No. 67.] The Court determined that the issues presented were appropriate for decision without oral argument pursuant to Civil Local Rule 7.1.d.1. [Doc. No. 67.] For the reasons stated below, the Court DENIES Defendants’ Motion to Dismiss. The Court GRANTS Defendants’ Request for Consolidation for purposes of discovery only.
Background On August 22, 2005, Plaintiff filed an individual lawsuit against Defendants, and Defendants answered Plaintiff’s Complaint. [Case No. 05cv1660, Doc. Nos. 1, 3.] On November 17, 2005, the Court entered an Order Regulating Discovery and Other Pretrial Proceedings requiring that “[a]ny motion to join other parties to amend the pleadings, or to file additional pleadings shall be filed on or before December 12, 2005.” [Case No. 05cv1660, Doc. No. 10.] The parties subsequently entered into two stipulations to extend the time in which to join parties, amend pleadings, or file additional pleadings. [Case No. 05 cv1660, Doc. Nos. 11, 13.] On December 6, 2006, Plaintiff filed a second action against Defendants, this time as a putative class action. [Case No. 06cv2671, Doc. No. 1.] Defendants answered the second-filed action. [Case No. 06cv2671, Doc. No. 3.] The second-filed action was transferred to this Court pursuant to Local Civil Rule 40.1.d. [Doc. No. 10.] Defendants subsequently filed the
1

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
instant Motion requesting that the Court either “dismiss the first-filed action and allow the putative and all-encompassing class action ... to proceed,” or consolidate the two actions. (Mot. at 5.)
I. Complaint in Case No. 05cv1660 In his first-filed action, Plaintiff alleges that he was denied full and equal access to facilities owned and operated by Defendants because the facilities were inaccessible to individuals with disabilities who use wheelchairs for mobility. (Compl.¶ 9, 05cv1660.) Plaintiff alleges that Defendants’ food serving and viewing counters are inaccessible. (Id.) Plaintiff alleges the following causes of action against Defendants: (1) violation of the Americans with Disabilities Act; (2) violation of the California Civil Code; and (3) violation of California Health and Safety Code. (Id. ¶¶ 15-27.)
II. Complaint in Case No. 06cv2671 On December 6, 2006, Plaintiffs Maurizio Antoninetti, Jean Riker, James Perkins, Karen Friedman, and Michael Rifkin filed a Complaint alleging that Defendants “deny access to people in wheelchairs to the goods, services, advantages, privileges, accommodations and benefits afforded to non-disabled customers.” (Compl.¶ 13, 06cv2671.) Specifically, Plaintiffs allege that the high walls at Defendants’ restaurants preclude individuals in wheelchairs from seeing the food items available for selection in the same manner as is available to nondisabled individuals. (Id. ¶ 28.) Plaintiffs bring the action “on their own behalf and on behalf of all persons similarly situated.” (Id. ¶ 24.) The class Plaintiffs seek to represent consists of “all persons with mobility disabilities who use wheelchairs or motorized mobility aides, who have been or will be denied their rights under the ADA, and state law to access goods, services, benefits, advantages, privileges and accommodations provided by Chipotle at its approximately 83 restaurants within the state of California.” (Id.) Plaintiffs allege the following causes of action against Defendants: (1) violation of the Americans with Disabilities Act; (2) violation of the California Civil Code; (3) unfair business practice; (4) intentional infliction of emotional distress; and (5) negligence per se. (Id. ¶¶ 32-66.)
Discussion
I. Defendants’ Motion to Dismiss Plaintiff’s First-Filed Action *2 Defendants argue that the Court should dismiss Plaintiff’s first-filed action because Plaintiff’s filing of the putative class action amounts to an untimely and improper amendment to the first-filed complaint. (Mot. at 5.) Defendants also argue that Plaintiff’s filing of two identical actions is impermissible judge shopping for which Plaintiff may face sanctions, including dismissal. (Id.)
District courts retain broad discretion to control their dockets, and “[i]n the exercise of that power they may impose sanctions including, where appropriate, default or dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir.1986) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962)). The Supreme Court has stated that a “primary aspect” of every federal court’s inherent power is “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). As a result, a district court has discretion to dismiss a later-filed action, to stay that action pending resolution of the previously filed action, or to consolidate both actions. See Curtis v. Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir.2000); Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.1977) (en banc). The Ninth Circuit has made clear that “dismissal is a harsh penalty and, therefore, it should only be imposed in extreme circumstances.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir.1998).
The Court finds that Defendants have failed to establish that “extreme circumstances” warrant dismissal of Plaintiff’s first-filed action. See Hernandez, 138 F.3d at 399. The record does not indicate that Plaintiff engaged in judge shopping by filing the second action. In fact, Plaintiff filed a Notice of Related Case, requested that the class action be assigned to this Court, and did not seek any extension of dates in the first-filed action. [See Case No. 06cv2671, Doc. No. 8.] Further, Plaintiff’s second-filed action does not amount to an improper amendment of the first-filed action because the two lawsuits are not duplicative. The first-filed action names only Mr. Antoninetti as Plaintiff and alleges violations by two of Defendants’ restaurants. [See Case No. 05cv1660, Doc. No.1.] In contrast, the second-filed action names Mr. Antoninetti, Ms. Riker, Dr. Perkins, Ms. Friedman, and Mr. Rifkin as Plaintiffs, seeks to represent a class of persons with mobility disabilities, and alleges violations by all of Defendants’ California restaurants. [See Case No. 06cv2761, Doc. No. 1.] The second-filed action
2

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
also describes the alleged lack of accommodations that Mr. Antoninetti, Ms. Riker, Dr. Perkins, Ms. Friedman, and Mr. Rifkin each experienced while visiting different restaurants owned by Defendants. [Id.] Extensive discovery already has been conducted in the first-filed action, and much of that discovery would be applicable to the second-filed action. [See, e.g., Case No. 05cv1660, Doc. Nos. 35, 38, 40, 57.] Dismissal of Plaintiff’s first-filed action would therefore result in judicial inefficiency and unnecessary duplication of discovery. Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiff’s first-filed action.
II. Defendants’ Motion to Consolidate Plaintiff’s Two Actions *3 Defendants argue that if the Court allows Plaintiff’s first-filed action to proceed, Plaintiff’s two actions should be consolidated because they involve substantially the same facts and questions of law. (Mot. at 9.) Plaintiff “has no objection to the consolidation .” (Pl.’s Mem. at 2.)
Federal Rule of Civil Procedure 42(a) provides in pertinent part that “[w]hen actions involving a common question of law or fact are pending before the court ... it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Fed.R.Civ.P. 42(a) (emphasis added). When related cases fall within the parameters of Rule 42, it is within the district court’s sound discretion to consolidate them. See Investors Research Co. v. U.S. Dist. Ct., 877 F.2d 777 (9th Cir.1989). Rule 42 does not demand that the actions be identical before they may be consolidated. “Rather, in deciding whether to consolidate actions under Rule 42(a), a court must balance the savings of time and effort consolidation will produce against any inconvenience, delay, confusion, or prejudice that may result.” Takeda v. Turbodyne Technologies, Inc., 67 F.Supp.2d 1129, 1132 (C.D.Cal.1999).
After reviewing the complaints in the two related cases, the Court FINDS that they involve common questions of fact and law and common defendants. As Defendants point out, both actions are based on Plaintiffs’ allegations that the design of Defendants’ restaurants allegedly makes it difficult for an individual who uses a wheelchair to see his or her food preparation in violation of the ADA and California’s Unruh Civil Rights Act. (See Mot. at 9-10.) Because of the similarities between the two cases, consolidation will save time and effort on all sides of the litigation. Moreover, no parties in the case oppose consolidation, or assert that consolidation would produce inconvenience, delay, confusion, or prejudice. The Court notes that extensive discovery proceedings have already taken place in Case No. 05cv1660, and that the parties have informed the Court that they are prepared to file dispositive motions in Case No. 05cv1660. The Court also notes that although Case No. 05cv1660 was filed on August 22, 2005, the parties have yet to file dispositive motions in this case. To facilitate the filing of dispositive motions in the first-filed case, the Court ORDERS consolidation of Case No. 05cv1660 and Case No. 06cv2671 for the limited purpose of discovery only. Plaintiffs will not be required to file a consolidated complaint at this time. The question of consolidation for trial is reserved for future consideration.
Conclusion For the reasons stated above, Defendants’ Motion to Dismiss Case No. 05 cv1660 is DENIED. Defendants’ Motion to Consolidate Case No. 05cv1660 and Case No. 06cv2671 is GRANTED for purposes of discovery only at this time.
IT IS SO ORDERED.
3

 
 Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
2007 WL 2456223 United States District Court,
S.D. California. Maurizio ANTONINETTI, Plaintiff,
v. CHIPOTLE MEXICAN GRILL, INC., and Does 1 Through 10, inclusive, Defendants.
Civil No. 05CV1660-J (WMc). | Aug. 23, 2007.
Attorneys and Law Firms Amy B. Vandeveld, Law Office of Amy B. Vandeveld, San Diego, CA, for Plaintiff. Gregory Francis Hurley, Stacey L. Herter, Greenberg Traurig, Costa Mesa, CA, Jonathan J. Herzog, William S. Weston, Weston Herzog, Glendale, CA, for Defendants. Opinion
ORDER:
(1) DENYING DEFENDANT’S MOTION FOR PARTIAL RECONSIDERATION [DOC. NO. 132];
(2) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION [DOC. NO. 135]
NAPOLEON A. JONES, JR., United States District Judge. *1 Before the Court are two motions. Defendant Chipotle Mexican Grill (“Defendant”) has filed a Motion for Partial Reconsideration of the Court’s Order Granting in Part and Denying in Part the Parties’ Motions for Summary Judgment. [Doc. No. 132.] Plaintiff has also filed a Motion for Reconsideration. [Doc. No. 135.] The issues presented are decided without oral argument. See S.D. Cal. Civ. R. 7.1.d.1 (2006). For the reasons stated below, the Court DENIES the parties’ Motions for Reconsideration.
Background On June 14, 2007, the Court issued an Order Granting in Part and Denying in Part the Parties’ Motions for Summary Judgment. [Doc. No. 129.] The Court first addressed Plaintiff’s claim that the food-preparation counters at Defendant’s restaurants were too high and violated the Americans with Disabilities Act (“ADA”). (See Order on Mots. for Summ. J. at 7.) The Court found that the food-preparation counters were sales and service counters and were therefore governed by ADA Accessibility Guideline (“ADAAG”) § 7.2. (Id. at 13.) The Court found that Defendant had not provided a portion of the food-preparation counter that complied with the ADA, nor had Defendant provided an ADA-compliant auxiliary counter. (Id. at 15-16.) However, the Court found that there was a genuine issue of material fact as to whether Defendant had provided “equivalent facilitation” to customers in wheelchairs within the meaning of ADAAG § 7.2(2)(iii). (Id. at 17.) Under Defendant’s Customers with Disabilities Policy (“Policy”), employees were instructed to implement a variety of accommodations to assist customers with disabilities. (Id.) The Court found that there was a genuine issue of material fact as to whether the Policy provided substantially equivalent access to Defendant’s restaurants. (Id.) Accordingly, the Court denied Defendant’s Motion for Summary Judgment as to Plaintiff’s claims that the food-preparation counters violated the ADA.
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
The Court next addressed Plaintiff’s claims that the parking lots at Defendant’s restaurants violated the ADA. (Id. at 20.) The Court found that Plaintiff had set forth facts demonstrating that the parking lots at Defendant’s restaurants had previously violated the ADA, and that Defendant had remedied the ADA violations. (Id.) Because only injunctive relief is available under the ADA, and because the parking lots at Defendant’s restaurants are currently ADA compliant, the Court found that Plaintiff’s ADA claims were moot. (Id.) The Court therefore granted summary judgment for Defendant as to Plaintiff’s ADA claims regarding the parking lots. (Id.) However, the Court found that Plaintiff’s state law claims presented a live controversy, because a plaintiff can recover damages under California’s Unruh Civil Rights Act (“Unruh Act”) and Disabled Persons Act (“DPA”). (Id. at 21.) The Court noted that under California law, a violation of the ADA also constitutes a violation of the Unruh Act and the DPA. (Id. at 23.) Finding no material issue that the parking at Defendant’s restaurants previously violated the ADA, the Court granted summary judgment in favor of Plaintiff as to his state law claims regarding the parking at Defendant’s restaurants. (Id. at 24.)
Legal Standard
*2 A motion for reconsideration is “appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” See Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). “[A] motion for reconsideration should not be granted, absent highly unusual circumstances.” See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999). A motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. See id.; Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000).
Discussion
I. Defendant’s Motion for Reconsideration Defendant requests that the Court reconsider its ruling only as to Plaintiff’s state law claims regarding the parking at Defendant’s restaurants. (Mot. for Recons. at 1.) Defendant does not seek reconsideration of any other portion of the Order. (Id.) Defendant argues that the Court should have declined to exercise supplemental jurisdiction over Plaintiff’s state law claims regarding the parking at Defendant’s restaurants. (Mot. for Recons. at 3.) According to Defendant, Plaintiff’s state law claims raise a novel and complex issue of unresolved state law because this Court is faced with irreconcilable authorities based on the current status of state law. (Id. at 4.) In addition, Defendant asserts that convenience and fairness mandate dismissal of Plaintiff’s state law claims, and that Plaintiff’s state law claims substantially predominate over his federal law claims. (Id. at 11.)
A district court does not abuse its discretion in declining to consider arguments that are raised for the first time in a motion for reconsideration. See Kona Enters., 229 F.3d at 890 (“A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.”); Novato Fire Prot. Dist. v. United States, 181 F.3d 1135, 1142, n. 6 (9th Cir.1999) (“A district court has discretion to decline to consider an issue raised for the first time in a motion for reconsideration.”); Arnold, 179 F.3d at 665 (“Our abuse of discretion review precludes reversing the district court for declining to address an issue raised for the first time in a motion for reconsideration.”); Rosenfeld v. DOJ, 57 F.3d 803, 811 (9th Cir.1995) (“The district court did not abuse its discretion in declining to consider an argument raised for the first time on reconsideration without a good excuse.”); Spacey v. Burgar, 207 F.Supp.2d 1037, 1054 (C.D.Cal.2001) (“[T]his Court need not address an issue raised for the first time in a reconsideration motion.”).
A review of Defendant’s Motion for Summary Judgment reveals that the Motion failed to assert two of the arguments that Defendant now raises, for the first time, in its Motion for Reconsideration. Defendant did not argue in any of its moving papers that Plaintiff’s claims under the Unruh Act require that he prove intentional discrimination. Nor did Defendant argue that there is a novel and complex issue of state law as to whether Plaintiff would be entitled to daily damages. A motion for reconsideration is not the proper avenue for raising legal theories that could have been, but were not, raised before the Court issued the order for which reconsideration is sought. See Kona Enters., 229 F.3d at 890. Defendant did argue in its Motion for
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
Summary Judgment that if the Court dismissed all of Plaintiff’s federal claims, it should also dismiss Plaintiff’s state law claims. (See Def.’s Mot. for Summ. J. at 23.) However, this argument was inapplicable because the Court did not dismiss all of Plaintiff’s federal claims. (See June 14, 2007 Order at 16 (finding a genuine issue of material fact as to whether food-preparation counters at Defendant’s restaurants violated the ADA).)
*3 Defendant briefly asserted at the end of its Reply to Plaintiff’s Opposition to Motion for Summary Judgment (“Reply”) that Plaintiff’s state law claims predominated over his federal claims and presented novel and complex issues of state law. (See Def.’s Reply at 9-10.) However, “arguments not raised by a party in its opening brief are deemed waived.” United States v. Romm, 455 F.3d 990, 997 (9th Cir.2006) (citing Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999)); see also Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n. 5 (9th Cir.2003) (“[W]e decline to consider new issues raised for the first time in a reply brief.”); Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) ( “Issues raised for the first time in the reply brief are waived.”); State of Nev. v. Watkins, 914 F.2d 1545, 1560 (9th Cir.1990) (“[Parties] cannot raise a new issue for the first time in their reply briefs.” (citations omitted)); Ass’n of Irritated Residents v. C & R Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D.Cal.2006) (“It is inappropriate to consider arguments raised for the first time in a reply brief.”); United States ex rel. Giles v. Sardie, 191 F.Supp.2d 1117, 1127 (C.D.Cal.2000) (“It is improper for a moving party to introduce new facts or different legal arguments in the reply brief than those presented in the moving papers.”). Further, issues not considered because they were raised for the first time in a summary judgment movant’s reply brief cannot be raised in a motion for reconsideration of an order denying summary judgment. Fleener v. Trinity Broad. Network, 203 F.Supp.2d 1142, 1151 (C.D.Cal.2001). Defendant’s arguments that Plaintiff’s state law claims predominated over his federal claims and raised novel and complex issues of state law were raised for the first time in Defendant’s reply brief. As a result, they cannot be raised in the instant Motion for Reconsideration. Accordingly, the Court DENIES Defendant’s Motion for Reconsideration.
II. Plaintiff’s Motion for Reconsideration Plaintiff argues that in ruling on his Motion for Summary Judgment, the Court erred in the following ways: (1) the Court misapplied ADAAG § 7.2(2)(iii) by finding a genuine issue of material fact as to whether Defendant’s Customers with Disabilities Policy (“Policy”) constitutes equivalent facilitation; (2) even if Defendant’s Policy can constitute equivalent facilitation, the Policy was never used when Plaintiff was at Defendant’s restaurants, resulting in a violation of the ADA; (3) the Court, and not a jury, must determine whether the Policy constitutes equivalent facilitation; (4) Defendant has failed to submit any facts demonstrating that the Policy provides equivalent facilitation; and (5) the Court should have utilized the ADA’s general anti-discrimination provisions in ruling on the motions for summary judgment.
A. Plaintiff’s Argument that the Court Misapplied ADAAG § 7.2(2)(iii) *4 Plaintiff argues that the Court committed clear error in finding that there was a genuine issue of material fact as to whether Defendant’s Customers with Disabilities Policy provided equivalent facilitation under ADAAG § 7.2(2)(iii).1 (Pl.’s Mot. for Recons. at 4.) Specifically, Plaintiff argues that Defendant’s Policy cannot provide equivalent facilitation because it does not constitute a design or technology. (Id.)
As already stated, a district court does not abuse its discretion in declining to consider arguments that are raised for the first time in a motion for reconsideration. See Kona Enters., 229 F.3d at 890. A review of Plaintiff’s Motion for Summary Judgment and his Opposition to Defendant’s Motion for Summary Judgment reveals that he failed to raise the argument that Defendant’s Policy cannot provide equivalent facilitation under ADAAG § 7.2(2)(iii) because it is not a design or a form of technology. The parties extensively briefed the issue of what portions of the ADAAG, if any, should apply in this case. Each party specifically examined whether ADAAG § 7.2 is applicable to this matter. The Court duly considered those arguments and determined that there was a genuine issue of material fact under ADAAG § 7.2(2)(iii) as to whether Defendant’s Policy provided equivalent facilitation. (Id. at 17.) Plaintiff’s Motion for Reconsideration is not the proper avenue for raising the theory that Defendant’s Policy is not a design or form of technology, as this theory was not raised before the Court issued its Order on the parties’ motions for summary judgment. The Court therefore declines to consider Plaintiff’s argument that Defendant’s Policy does not constitute a design or a form of technology.
B. Plaintiff’s Argument that Defendant’s Restaurants Never Accommodated Him Plaintiff argues that even if Defendant’s Policy provides equivalent facilitation, the Policy was never implemented during his visits to Defendant’s restaurants. (Pl.’s Mot. for Recons. at 2.) Plaintiff asserts that because there is no dispute that
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
Defendant’s employees never accommodated Plaintiff during his visits to the restaurants, the Court should have ruled that Defendant violated Plaintiff’s rights to full and equal access under the ADA. (Id. at 3.) Contrary to Plaintiff’s assertions, however, his own declaration states that during his visits to Defendant’s restaurants, employees “communicated to me about what was on the other side of the wall”; “lifted up some of the ingredients one spoonful at a time”; and “showed me samples in small plastic cups.” (Antoninetti Decl. ¶¶ 7, 16.) Although Plaintiff may be dissatisfied with the types of accommodations he received during his visits to Defendant’s restaurants, whether those accommodations provided full and equal access to Defendant’s restaurants is a question of fact that cannot be resolved at the summary judgment stage. Given the evidence indicating that Plaintiff received some form of accommodation, there is a genuine issue of fact for trial as to whether the Policy and the accommodations included therein provided equivalent access to Defendant’s restaurants.
C. Plaintiff’s Argument that the Court, and Not a Jury, Must Determine the Issue of Equivalent Facilitation *5 Plaintiff argues that the Court erred in stating that a jury should determine whether Defendant’s Customers with Disabilities Policy provides equivalent facilitation under the ADAAG. (Pl.’s Mot. for Recons. at 10.) Plaintiff asserts that whether the facts support a finding of equivalent facilitation is a legal determination that must be made by the Court. (Id.) In opposition, Defendant argues that the question of equivalent facilitation is one of mixed law and fact that is properly left to a jury. (Opp’n to Pl.’s Mot. for Recons. at 12.) Because the parties did not have an opportunity to brief this issue at the summary judgment stage, the Court now examines this issue.
It is well established that questions of law are for the court to decide, and questions of fact are for the jury. See Cooley v. United States, 501 F.2d 1249, 1253 (9th Cir.1974). An inference to be drawn that requires “experience with the mainsprings of human conduct” and reference to “the data of practical human experience” is a determination for the jury. See Nunez v.Super. Oil Co., 572 F.2d 1119, 1126 (5th Cir.1978). The Court cannot locate any case law stating whether the question of equivalent facilitation is a question of law for the court or a question of fact for the jury. However, courts have consistently held in the ADA context that the determination of whether a particular accommodation is reasonable is a question of fact. See, e.g., EEOC v. Convergys Customer Mgmt. Group, Inc., --- F.3d ---- (8th Cir.2007); Turner v. Hershey Chocolate U.S., 440 F.3d 604, 614 (3d Cir.2006); Rodal v. Anesthesia Group, 369 F.3d 113, 121 (2d Cir.2004); Lujan v. Pac. Mar. Ass’n, 165 F.3d 738, 743 (9th Cir.1999).
The issue of whether Defendant’s Policy provides equivalent access to Defendant’s restaurants presents numerous factual issues that are inappropriate for disposition by the Court. Plaintiff alleges that the Policy cannot provide equivalent access because it does not allow customers in wheelchairs to direct the preparation of their entrees, receive fast service, or judge the freshness of food to the same extent as standing customers. Resolution of these issues will require credibility determinations, the weighing of evidence, and the drawing of inferences from the facts, all of which are jury functions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, a determination of whether the Policy’s accommodations make Defendant’s restaurants equally accessible to customers in wheelchairs and standing customers will require “reference to the data of practical human experience.” See Nunez, 572 F.2d at 1126. For example, the finder of fact may be asked to determine whether placing food in sample cups or displaying spoonfuls of food enables a customer to judge the freshness of the ingredients. Because resolution of the issue of equivalent facilitation will require a fact-based inquiry, Plaintiff has failed to demonstrate that the Court erred in finding that equivalent facilitation is a question for the jury.
D. Plaintiff’s Argument that Defendant Has Failed To Submit Any Facts Demonstrating Equivalent Facilitation *6 Plaintiff argues that the Court erred in finding that Defendant set forth sufficient facts to create a jury question as to whether its Policy provides equivalent facilitation. (Pl.’s Mot. for Recons. at 9.) In its Order on the parties’ motions for summary judgment, the Court determined that there was a genuine issue of material fact as to whether the Policy provides equivalent facilitation. The Court based its finding on the undisputed fact that Defendant has instituted a nationwide Policy to provide several forms of accommodations to customers with disabilities, such as placing samples of food in cups to be handed to customers, permitting customers to see food at a table, or describing the food to customers. (Sedillo Decl. ¶ 4.) In addition, there is evidence in the record that these accommodations were implemented during Plaintiff’s visits to the restaurants. (See Antoninetti Decl. ¶¶ 7, 16.) Further, Defendant’s expert, who uses a wheelchair for mobility, stated that it was not necessary to see the ingredients at Defendant’s restaurants in order to select an entree. (Blackseth Decl. ¶ 18.) Although Defendant submitted limited declaration testimony on the issue of equivalent facilitation, it is difficult to imagine what type of testimony Defendant could have submitted on this issue without appearing to be self-serving. For example, Defendant could have submitted declarations from customers with disabilities stating that the accommodations listed in the
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
Customers with Disabilities Policy provided them with an equivalent dining experience. However, regardless of the amount of declaration testimony submitted by Defendant, questions such as whether the cups permit a customer to judge the freshness of food, whether the accommodations enable customers with disabilities to receive their food in a timely fashion, and whether Defendant’s employees regularly implement the Policy are all questions of fact that are inappropriate for resolution at the summary judgment stage. Plaintiff thus has failed to demonstrate that the Court committed clear error in finding that there was a genuine issue of material fact as to equivalent facilitation.
E. Plaintiff’s Argument that the ADA’s General Anti-Discrimination Provisions Apply Plaintiff argues that the Court used the wrong legal standard in ruling on his motion for summary judgment, and that the ADA’s general anti-discrimination provisions apply to his claims. However, a court cannot grant a motion for reconsideration “where the grounds for amendment are restricted to ... repetitive contentions of matters which were before the court on its prior consideration.” Costello v. U.S. Gov’t, 765 F.Supp. 1003, 1009 (C.D.Cal.1991). The Court has already examined the issue of whether the ADA’s general anti-discrimination provisions should apply to this case, and the Court determined that the ADAAG’s more specific regulations governing sales and service counters govern this action. (See Order on Mots. for Summ. J. at 18.) Plaintiff cannot use his Motion for Reconsideration to relitigate the issue of whether the ADA’s general anti-discrimination provisions control.
*7 In sum, Plaintiff’s Motion for Reconsideration does not present newly discovered evidence or an intervening change in controlling law, nor has Plaintiff demonstrated that the Court committed clear error in ruling on his Motion for Summary Judgment. Accordingly, the Court DENIES Plaintiff’s Motion for Reconsideration.

Conclusion For the reasons stated above, the Court DENIES the parties’ Motions for Reconsideration. IT IS SO ORDERED.

Parallel Citations

35 NDLR P 162

Footnotes

1

ADAAG § 7.2(2)(iii) provides that “[i]n areas used for transactions that may not have a cash register but at which goods or

services are sold or distributed ... equivalent facilitation shall be provided.”

5

 
 Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...
2007 WL 2665931 (Wash.Super.) (Trial Motion, Memorandum and Affidavit) Superior Court of Washington. King County Eric POST, Plaintiff, v.
RYDER TRUCK RENTAL, INC., a Florida corporation, Defendant.
No. 05-2-24699-5 SEA. February 20, 2007.
Defendants Motion for Summary Judgment
McGaughey Bridges Dunlap, PLLC, Shellie McGaughey, WSBA #16809, Barbara L. Bollero, WSBA #28906, Attorneys for Defendant, Ryder Truck Rental, Inc.
The Honorable Judge Douglas McBroom.
Date and Time: March 30, 2007 @ 10:00 am
Nature of Motion: Defendant’s Motion for Summary Judgment
With Oral Argument
I. Relief Requested
Defendant Ryder Truck Rental, Inc. (“Ryder”) requests the court enter Summary Judgment dismissing this matter with prejudice because the liability limitation and warranty exclusion provisions in plaintiff’s truck Rental Agreement with Ryder are a complete bar to all his claims, and Post can not prove proximate cause. This motion is brought pursuant to CR 56(c) and KCLR 56(c) on the grounds that there are no triable material factual issues and as a matter of law defendant is entitled to summary judgment.
II. Statement of Facts
In the summer of 2002, plaintiff Eric Post was an independent contract mover for Atlas Van Lines.1 During the course of his 20 plus year career in the moving business Post rented “shuttles,” smaller trucks used to transport goods, as a “very common” part of his business.2 He rented shuttles over 200 times collectively from U-Haul, Penske, Budget, and Ryder prior to the subject incident, including 25 to 30 times from Ryder.3
The moving companies that contracted Post’s services arranged for the shuttles before Post’s arrival at the truck rental businesses.4 Post never paid attention to the contracts he signed to rent shuttles from any rental agency.5 He never read any part of a shuttle contract6 He never intends to read any such contract7
On July 30, 2002, Post rented a truck from Ryder Truck Rental, Inc. for a Seattle job transporting goods to his moving van.8 He inspected the vehicle before renting it.9 Post signed a Rental Agreement with Ryder for the truck and initiated it in five places.10 He did not read the Rental Agreement, nor any of the paragraphs that he initialed.11 Nevertheless, he felt he could have read it if he had chosen to do so.12
The first paragraph Post initialed specifically references personal accidents. It reads in its entirety, one-eighth inch above his initials, as follows:
PERSONAL ACCIDENT AND CARGO PROTECTION Customer declines Personal Accident and
1

Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...
Cargo Protection. (Read Para. 8) /s/13
By initialing this statement, Post indicated he had read and accepted the terms of Paragraph 8. It states:
PERSONAL ACCIDENT AND CARGO RESPONSIBILITY: Customer agrees that Ryder will have absolutely no liability whatsoever and agrees to release, indemnify, and hold Ryder harmless for any and all ... claims, damages, or losses arising from injuries of any nature whatsoever, or death of Customer, Customers agents, employees, guests, family, members of Customer’s family, or other occupants of the Vehicle EVEN WHEN SUCH DEATH OR INJURY WAS DUE TO RYDER’S FAULT OR NEGLIGENCE, and Customer assumes all such risk and liability.14
Post initialed two other identical paragraphs of the Rental Agreement, the text of both which appear one-eighth inch above his initials. Both state identically as follows:
I have read, understand and hereby agree to the terms and conditions on both sides of this Agreement .... /s/15
The first numbered paragraph on the reverse side of the Rental Agreement reads: 1. VEHICLE CONDITION: Customer acknowledges that it has inspected the Vehicle and ... Customer acknowledges and agrees that the Vehicle is in good and usable condition with no apparent defects, and fit for Customer’s rental purpose. RYDER MAKES NO EXPRESS OR IMPLIED WARRANTY OR GUARANTY AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE VEHICLE, OR THE VEHICLE’S MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. RYDER SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER.16
After entering the Rental Agreement on July 30, 2002, Post took possession of the Ryder truck and parked it facing downhill on a steep incline at his customer’s residence.17 Post is a very experienced commercial driver.18 He learned the proper procedure for hillside parking in driving school, including four methods to prevent a vehicle from rolling.19 He always uses all four methods whenever necessary. He utilized only three of those methods when he parked the Ryder truck. Post felt it advisable to use the fourth method, wheel chocks, on the Ryder shuttle when he parked it.20 Although Post owns his own chocks and always carries them, he did not use chocks on the Ryder shuttle.21 He criticized Ryder for not warning him about proper hillside parking methods and not supplying chocks with the shuttle.22 Nevertheless, in Posts experience of renting over 200 shuttles from at least four different rental agencies, none had ever come with chocks.23
After parking the Ryder truck, Post and a helper started loading it. Post alleges about two hours later, while he and his helper loaded furniture into the parked truck, its brakes failed to hold it in place, gave way and it careened down the street.24 Post claims he sustained personal injuries and other damages as a result.25
Post filed his Complaint against Ryder stating three causes of action for 1. Negligence and Breach of Duty of Care;
2. Failure to Warn; and
3. Breach of Contract.
All causes of action are premised on the allegations that Ryder provided an unsafe vehicle, without chocks, did not warn Post about parking on inclines, and the vehicle had latent defects.,
Ryder previously filed a summary judgment motion on the same general grounds as the present motion, but withdrew it after receiving Post’s reply brief and declaration. Ryder has now conducted Post’s deposition and brings the present motion because its contractual warranty disclaimer and liability limitation are valid, enforceable, and bar any liability of Ryder, and Post can not prove proximate cause; accordingly, Ryder must be awarded summary judgment against Post
2

Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...
III. Statement of Issues
1. Do the Rental Agreement’s liability limitation provisions bar Posts claims against Ryder?
2: Do the Rental Agreements warranty disclaimer provisions bar Posts claims against Ryder?
3. Is Post unable to prove Ryder proximately caused his injuries?
4. Is Ryder entitled to attorneys’ fees under RCW 4.84.330 and the Rental Agreement provisions?
IV. Evidence Relied Upon This motion is supported by the pleadings and papers on file; the Declaration of Barbara L. Bollero in Support of Defendant’s Motion for Summary Judgment, and the exhibits attached thereto.
V. Authority and Argument
A. Standard for Summary Judgment The purpose of summary judgment is to avoid a useless trial Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963). Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences are viewed in a light most favorable to the nonmoving party. Overton v. Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322 (2002). Resolution of disputed factual issues can be sustained when reasonable minds could reach but one conclusion from the evidence accompanying a summary judgment motion. Sundquist Homes, Inc. v. Snohomish County Pub. Util. Dist. No. 1, 140 Wn.2d 403, 406-07, 997 P.2d 915 (2000).
The moving party bears the initial burden of showing the absence of an issue of material fact. LaPlante v. State, 85 Wash. 2d 154, 158, 531 P.2d 299 (1975). A moving defendant can challenge the ability of the plaintiff to establish the existence of an essential element on which plaintiff bears the burden of proof at trial. The defendant then need only inform the court that this is the basis of its motion and identify the portions of the record that demonstrate the absence of a genuine issue for trial. Young v. Key Pharmaceuticals. Inc., 1 12 Wash. 2d 216, 225, 770 P.2d 182 (1989), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Once the defendant meets this initial showing, the inquiry shifts to the plaintiff. if, at this point, plaintiff “fails to make a showing sufficient to establish the existence of is an element essential to that party’s case, and on which that party will bear the burden of proof at trial”, then the trial court should grant the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct 2548 (1986). “In such a situation, there can be ‘no genuine issue as to any material fact’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 477 U.S. at 322-23.
B. Ryder’s Liability Limitation is Prima Facie Conscionable and Bars Post’s Recovery. A chattel lease, although not a contract for sale of goods, is governed by Article 2 of the UCC (RCW 62A.2-101, et seq.). Baker v. City of Seattle, 79 Wash. 2d 198, 201 (1971). Section 62A.2-719 specifically provides for contractual modification or limitations of UCC remedies. Subsection 3 provides, in part, that “Limitation of other consequential damages is valid unless it is established that the limitation is unconscionable.” The official comments to that subsection make clear that exclusion of all remedies is valid, so long as not unconscionable.
Exclusionary clauses in purely commercial transactions are prima facie conscionable under the UCC. Schroeder v. Fageol
3

Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...
Motors, Inc., 86 Wash. 2d 256, 63 (1975); M.A. Morentson Co., Inc. v. Timberline Software Corp., 140 Wash. 2d 568, 586-87 (2000). Further, the burden of establishing unconscionability is on the party attacking the contract clause. Schroeder. supr; American Nursery Products. Inc. v. Indian Wells Orchards, 115 Wash. 2d 217, 222 (1990). The Washington Supreme Court has noted that it is questionable whether clauses excluding consequential damages in a commercial contract can ever be substantively unconscionable. M.A. Morentson Co., supra, at 586. The factors which determine unconscionability are: 1. Whether each party had a reasonable opportunity to understand the terms of the contract;
2. Whether the important terms were hidden in a maze of fine print;
3. The prior course of dealing between the parties; and
4. The usage of trade.
Id.; United Van Lines v. Hertz Penske Truck Leasing. Inc., 710 F. Supp. 283, 288 (1989). No one factor is determinative and the court must look to the totality of the circumstances. Cox v. Lewiston Grain Growers. Inc., 86 Wash App. 357, 368-69 (1997).
Where a remedy limitation clause is standard in the industry and useful in making the product affordable it is not substantively unconscionable. M.A. Morentson Co., supra, at 586-87. Regardless of the surrounding circumstances, if there is a prior course of dealing between the parties or reasonable usage of trade as to the exclusionary clause, it is conscionable. American Nursery Products, supra, at 223; M.A. Morentson Co., supra, at 588.
Here, every element of the transaction proves the conscionability of the Rental Agreement. There can be no doubt that Post and Ryder were engaged in a purely commercial transaction. Post was conducting his business as an independent contract agent of a national moving company. He was not renting the truck for his personal use. In fact, the moving company arranged for the Ryder shuttle and paid the rental cost.26 Accordingly, the contract is prima facie conscionable, and it is Post’s burden to prove it is not.
Similarly, Post and Ryder had a regular prior course of dealing in which he always signed whatever contract terms were offered to him. That these terms were standard in the industry is established by Post’s testimony regarding his 200 shuttle rentals from at least four different entities, all conducted in the same fashion, and especially his 30 prior Ryder rentals. Further, usage of the trade is established by United Van Lines v. Hertz Penske Truck Leasing, Inc., 710 F. Supp. 283, 288 (1989). There, the court recognized that liability exclusions in a truck rental lease are “customary and usual” and “are an economic necessity for truck rental businesses because they have no control over the property conveyed in their vehicle, the way the vehicles are loaded or the way the vehicles are driven.” Id. at 287. Ryder has conclusively established both the parties’ prior course of dealing and usage of the truck rental trade; thus, under American Nursery Products, supra, the contract is conscionable regardless of surrounding circumstances.
It is anticipated Post will claim the terms were lost in “a maze of fine print and, because Ryder “hid” its liability exclusion from him, the terms are unconscionable. This argument is a red herring. First, whether the important terms are hidden is just one of four factors to consider in determining unconscionability, if the contract is not commercial. As discussed above, the subject contract is between commercial parties; in any event, all other factors are in Ryder’s favor.
More importantly, whether the terms were hidden or not is simply irrelevant in these circumstances. Post acknowledged he had not read the subject Rental Agreement, he never read such agreements in the past, he had no intention to do so in the future and always just signed whatever he was given.27 Accordingly the type style, font, size, placement and visibility of the terms had no bearing on his determination to execute the contract or not.
Even should the court consider Post’s “fine print” argument, the facts do not support it. A disclaimer clause in the middle of a long paragraph, in exactly the same font and size as the rest of the paragraph, approximately two inches above the renter’s signature, is too inconspicuous and not conscionable. Baker, supra, 199-200. A liability limitation contained on the reverse side of a rental agreement, including 16 numbered paragraphs, each with a title printed in all capital letters on a separate line, with a reference immediately above the signature line to terms on the reverse side, and a statement that “Customer represents that he/she has read and agrees to same:... See reverse side” is conscionable as a matter of law. United Van Lines. supra, at 285 and 287-88.
Here, Ryder’s Rental Agreement is virtually identical to that held conscionable ‘ in United Van Lines. supra, and nothing like 4

Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...
the unconscionable one in Baker, supra. Post initialed in not only one, but two, places acknowledging, “1 have read, understand and hereby agree to the terms and condition on both sides of this Agreement ....” His initials were within one-eighth inch, and even overlapped, both references to the reverse side of the agreement Further, precisely as in United Van Lines, supra, the reverse side has 15 numbered paragraphs, each with a separate title in all capital letters. Moreover, there are a limited number of paragraph sections printed in all capital letters. The liability exclusion is the first such section and is easily visible in the third paragraph of the agreement.
In view of the foregoing, the court must find as a matter of law that Ryder’s liability exclusion is conscionable and bars Posts claims in this case.
C. Ryder’s Warranty Exclusion Bars Post’s Recovery.
Washington’s UCC provides an implied warranty of merchantability and fitness for a particular purpose unless excluded. RCW 62A.2-314 and 315. Section 62A.2-316 establishes the manner in which warranties may be excluded, including that they must be: 1. in writing;
2. conspicuous; and
3. mention merchantability.
However, implied warranties may also be excluded by course of dealing or usage of trade. RCW 62A.2-316(3)(c). There is no requirement that a warranty exclusion be explicitly negotiated, Puget Sound Financial. L.L.C. v. Unisearch Inc., 146 Wash. 2d 428, 440-41 (2002), nor even discussed, Frickel v, Sunnyside Enterprises, 106 Wash. 2d 714, 721 (1986).
Even if a product defect could not be discovered by a reasonable inspection, a warranty waiver is operative. United Van Lines supra, at 287. This is especially true where the warranty exclusion is unqualified, and there is a prior course of dealing between the parties. Id. A disclaimer which reads as follows is valid to disclaim warranties for a latent defect in a rental truck:
LESSOR MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO-THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER REPRESENTS THAT HE/SHE HAS FULLY INSPECTED THE VEHICLE DESCRIBED HEREIN AND THAT SAME IS IN GOOD CONDITION AND REPAIR.
Id. at 284 (emphasis in original).
In the present case, the warranty disclaimer is virtually identical to that held to bar plaintiff’s recovery in United Van Lines, supra. It reads as follows:
1. VEHICLE CONDITION: Customer acknowledges that it has inspected the Vehicle and ... Customer acknowledges and agrees that the Vehicle is in good and usable condition with no apparent defects, and fit for Customer’s rental purpose. RYDER MAKES NO EXPRESS OR IMPLIED WARRANTY OR GUARANTY AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE VEHICLE, OR THE VEHICLE’S MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. RYDER SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER.28
This term satisfies all the prerequisites of RCW 62A.2-316,by being written, conspicuous (as discussed above) and mentioning merchantability and fitness for a particular purpose. The only distinction from the warranty disclaimer found valid in the United Van Lines case is that this one appears on the reverse side of the contract However, as discussed previously, this distinction is irrelevant since Post readily admits he did not read the contract and had no intention to do so. Further, the United Van Lines court explicitly found incorporation of terms on the reverse side of the contract, when coupled
5

Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...
with a reference to those terms in the immediate vicinity of the renter’s signature, binding on an unknowing signer as a matter of law. Id. at 288.
Ryder’s Rental Agreement effectively excludes all warranties pursuant to RCW A.2-316 such that Post’s claims against it, including for latent defects, are barred.
D. Ryder Did Not Proximately Cause Posts Injuries.
Generally, a breach of contract does not give rise to a tort action. American Nursery Products, Inc. v. Indian Wells Orchards, 115 Wash. 2d 217, 230 (1990). Negligent performance of a contract may create a tort claim if a duty exists independently of the contract performance. Id. Further, although negligence and strict liability claims are now subsumed under the Washington Products Liability Act (“WPLA”), RCW chapter 7.22, et seq., claims involving goods are covered by the UCC. Hofstee v. Dow, 109 Wash. App. 537, 542-43 (2001). Breach of warranty claims are either WPLA tort actions or UCC contract actions. Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wash. 2d 34, 343 (1992). Regardless, a party may contract to limit liability for damages resulting from its own negligence. Id.; Wagenblast v. Odessa Sch. Dist. 105-157-166J. 110 Wash 2. 845, 848 (1988).
Here, Ryder believes all of Post’s claims against it are governed by the parties’ written contract accordingly, the liability limitation and warranty disclaimer addressed is above bar all claims. In the event the court disagrees, however, then Post’s remaining claims are governed by the WPLA, and Ryder is still entitled to judgment as a matter of law.
Under the WPLA, a product manufacturer is liable if a claimant is harmed by a product that is not reasonably safe because adequate warnings were not provided. RCW 7.72.030(1); Hiner v. Bridgestone/Firestone. Inc., 91 Wash. App. 722, 731
or demand to Customer, .... immediately terminate this Agreement without prejudice to any of Ryder’s rights or other remedies available under this Agreement or any law. Ryder will be entitled to recover from Customer all reasonable costs, expenses, and attorneys fees incurred by Ryder to ... enforce the terms of this Agreement.
Ryder has incurred attorneys’ fees in defense of this action. Paragraph 10 of the Rental Agreement entitles it to recover those fees from Post when it prevails on summary judgment The court should award Ryder its fees in this matter pursuant to a cost bill to be filed forthwith.
VI. Conclusion
In consideration of the foregoing defendant, Ryder Truck Rental, Inc., respectfully requests summary judgment be entered in its favor against plaintiff, Eric Post, and this action dismissed with prejudice and with costs and attorneys’ fees awarded to Ryder Truck Rental, Inc., pursuant to a cost bill to be filed forthwith. A proposed form of order is attached.
Dated this 15th day of February, 2006.
MCGAUGHEY BRIDGES DUNLAP, PLLC
<<signature>>
SHELLIE MCGAUGHEY, WSBA #16809
BARBARA L. BOLLERO, WSBA #28906
Attorneys for Defendant, Ryder Truck Rental, Inc.
[PROPOSED] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...
The Motion for Summary Judgment filed by defendant herein, Ryder Truck Rental, Inc. (“Ryder), came on for hearing by the court on the date below. Plaintiff Eric Post appeared and was represented by counsel, Lawrence S. Glosser of Glosser Law Offices, PLLC. Defendant Ryder appeared and was represented by counsel, Barbara Bollero of McGaughey Bridges Dunlap, PLLC. In connection with hearing of the motion, the court reviewed and considered the following: 1. Defendants Motion for Summary Judgment; 2. Declaration of Barbara L. Bollero in Support of Defendant’s Motion for Summary Judgment and Exhibits thereto; 3. Proposed Order Granting Defendant’s Motion for Summary Judgment; 4. ________________________________________ 5 ________________________________________ 6. ________________________________________ 7. ________________________________________ and 8. ________________________________________ After reviewing the foregoing pleadings, hearing arguments of counsel, and considering the records and files in this action, the court finds as follows: 1. The liability limitation contained in the subject Rental Agreement is valid and enforceable; 2. The warranty disclaimer contained in the subject Rental Agreement is valid and enforceable; 3. Plaintiff can not prove that but for Ryder’s failure to warn him and provide him chock blocks, he would not have suffered injuries and damages; and 4. There is no issue of material fact in connection with Defendant’s Motion for Summary Judgment. Accordingly, it is hereby ORDERED, ADJUDGED and DECREED as follows: 1. Defendants Motion for Summary Judgment is granted; 2. Summary Judgment shall be entered forthwith in favor of Defendant, Ryder Truck Rental, Inc., and against Plaintiff, Eric Post; and 3 Defendant shall be awarded its costs and attorneys’ fees pursuant to a cost bill to be filed forthwith. DONE IN OPEN COURT THIS ____ day of March, 2007. ....................................................................................................................................................................................................................................................................................... The Honorable Douglas McBroom Presented By: McGAUGHEY BRIDGES DUNLAP, PLLC By: <<signature>> Shellie McGaughey, WSBA #16809 Barbara L. Bollero, WSBA #28906
7

Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931... Attorneys for Defendant Approved as to form; Notice of Presentation waived: GLOSSER LAW OFFICES, PLLC By: .............................................................................................................................................................................................................................................................................. Lawrence S. Glosser, WSBA #25098 Attorney for Plaintiff

Footnotes

1

Complaint at para. 3.1; Answer at para 3.1.

2

Declaration of Barbara L. Bollero in Support of Defendant’s Motion for Summary Judgment (“Bollero Declaration”), Ex. A, p.

33,II 6-12 and 11. 23-25.

3

Id. at Ex.A,p. 38, 1.22-p. 39, I. 20.

4

Id. at Ex.A,p. 35,II. 12-24.

5

Id. at Ex A,p. 39, L 21-p. 40, I. 4.

6

Id. at Ex. A, p. 42, IL 4-9.

7

Id. at Ex A, p. 42, IL 10-11.

8

Complaint at para 3.2; Answer at para. 3.1.

9

Bollero Declaration, Ex. A, p. 55,11.8-22.

10

Id. at Ex. A,p. 51,1. 19-p.52, 110 and p. 54, II. 5-9.

11

Id. at Ex. A, p. 57, L 12-p. 58, 1.11.

12

Id. at Ex. A, p. 58, IL. 4-6.

13

Id, Contract (emphasis in original).

14

Id. at p. 2, para. 8 (emphasis in original).

15

Id. at p. 1, second column.

16

Id. at p. 2, para I (emphasis in original).

17

Complaint, para 3.2 and 3.6.

18

Bollero Declaration, Ex. A, p. 17, L 17-p. 18, L 3 and p. 32, L 12-p. 33, 1.2

19

Id. at Ex.A,p:68,IL. 9-16.

20

Id. at Ex. A, p. 67, II. 16-25.

21

Id. at Ex. A, p. 68, II. 1-4.

8

Eric POST, Plaintiff, v. RYDER TRUCK RENTAL, INC., a..., 2007 WL 2665931...

22

Id. at Ex A, p. 67, IL 2-15.

23

Id. at Ex. A, p 68,11. 17-19.

24

Complaint, para 3.6.

25

Id. at para. 3.7.

26

Bollero Declaration at Ex. A, p. 35, 11 12-24.

27

Id. at Ex.A,p.39,1.21-p. 40, L 4.and p. 42, II. 4-11

28

Id., Contract at p. 2, para (emphasis in original).

9

 
 Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
2007 WL 2915048 Only the Westlaw citation is currently available.
United States District Court, S.D. California.
Maurizio ANTONINETTI, Plaintiff, v.
CHIPOTLE MEXICAN GRILL, INC., Defendant.
Civil No. 05cv1660 J(WMc). | Oct. 4, 2007.
Attorneys and Law Firms
Amy B. Vandeveld, Law Office of Amy B. Vandeveld, San Diego, CA, for Plaintiff.
Gregory Francis Hurley, Greenberg Traurig, Irvine, CA, Jonathan J. Herzog, William S. Weston, Weston Herzog, Glendale, CA, Ezra J. Reinstein, Greenberg Traurig, Costa Mesa, CA, for Defendant.
Opinion
ORDER DENYING PLAINTIFF’S MOTION TO AMEND THE AMENDED PRETRIAL ORDER
NAPOLEON A. JONES, JR., United States District Judge.
*1 Before the Court is Plaintiff Maurizio Antoninetti’s (“Plaintiff”) Motion to Amend the Amended Pretrial Order. [Doc. No. 158.] For the reasons stated below, the Court DENIES Plaintiff’s Motion.
Background
On June 14, 2007, the Court issued an Order Granting in Part and Denying in Part the Parties’ Motions for Summary Judgment. [Doc. No. 129.] The bulk of the Order addressed Plaintiff’s claim that the food-preparation counters at Defendant Chipotle Mexican Grill’s (“Defendant”) restaurants were too high and violated the Americans with Disabilities Act (“ADA”). (See Order on Mots. for Summ. J. at 7.) The Court found that the food-preparation counters were sales and service counters and were therefore governed by ADA Accessibility Guideline (“ADAAG”) § 7.2. (Id. at 13.) The Court found that Defendant had not provided a portion of the food-preparation counter that complied with the ADA, nor had Defendant provided an ADA-compliant auxiliary counter. (Id. at 15-16.) However, the Court found that there was a genuine issue of material fact as to whether Defendant had provided “equivalent facilitation” to customers in wheelchairs within the meaning of ADAAG § 7.2(2)(iii). (Id. at 17.) Under Defendant’s Customers with Disabilities Policy (“Policy”), employees were instructed to implement a variety of accommodations to assist customers with disabilities. (Id.) The Court found that there was a genuine issue of material fact as to whether the Policy provided substantially equivalent access to Defendant’s restaurants. (Id.) Accordingly, the Court denied Defendant’s Motion for Summary Judgment as to Plaintiff’s claims that the food-preparation counters violated the ADA.
On July 16, 2007, Plaintiff filed a Motion for Reconsideration of the Court’s summary judgment order. [Doc. No. 135.] Plaintiff sought reconsideration on several grounds, including: (1) Defendant’s Policy cannot provide equivalent facilitation because it does not constitute a design or technology; and (2) the Court should have utilized the ADA’s general anti-discrimination policies in ruling on the motions for summary judgment. (Pl.’s Mot. for Recons. at 5.) On August 23, 2007, the Court denied Plaintiff’s Motion for Reconsideration, finding that Plaintiff had failed to demonstrate that the Court committed clear legal error, Plaintiff could not raise arguments in the motion for reconsideration that had not been raised in his summary judgment papers, and Plaintiff could not relitigate issues that had already been resolved by the Court in its summary judgment order. [See Doc. No. 147.]
1

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
On September 4, 2007, the parties submitted a proposed pretrial order. [Doc. No. 149.] On September 10, 2007, the final pretrial conference was held. [Doc. No. 153.] At the pretrial conference, the Court struck several portions of the pretrial order because the Court had already addressed them in the order on the parties’ motions for summary judgment and the order on the parties’ motions for reconsideration. Specifically, the Court struck all issues of fact and law relating to the seating at Defendants’ restaurants because, as noted in the order on the motions for summary judgment, Plaintiff failed to raise any claims regarding seating in his Complaint or any amendment thereto. (Order on Mots. for Summ. J. at 24.) The Court struck all issues of law relating to whether Defendant’s policy could constitute an equivalent facilitation because this issue was addressed in the Court’s order on the motions for summary judgment and the order on the motions for reconsideration. (Order on Mots. for Summ. J. at 17; Order on Mots. for Recons. at 6.) The Court struck all issues of law relating to the general antidiscrimination provisions of the ADA because the Court found in its order on the motions for summary judgment that the specific provisions of the ADAAG control over the general provisions of the ADA. (Order on Mots. for Summ. J. at 18-19).
*2 On September 24, 2007, the parties filed an Amended Pretrial Order. [Doc. No. 157.] In compliance with the Court’s rulings at the pretrial conference, the amended pretrial order omitted all issues of fact and law that had been previously resolved by the Court in its orders on the motions for summary judgment and motions for reconsideration. On September 24, 2007, Plaintiff filed the instant Motion to Amend the Amended Pretrial Order. [Doc. No. 158.]
Legal Standard
Federal Rule of Civil Procedure 16(e) sets forth the standard for modification of a final pretrial order. Under the rule, a pretrial order may be modified “only to prevent manifest injustice.” Fed.R.Civ.P. 16(e). The purpose of the pretrial order is “to guide the course of the litigation,” and “once formulated, [it] should not be changed lightly.” Fed.R.Civ.P. 16(e), Advisory Committee Note (citing Clark v. Pa. R.R. Co., 328 F.2d 591 (2d Cir.1964)). It is the moving party’s burden to show that a manifest injustice would result if the pretrial order is not modified. Byrd v. Guess, 137 F.3d 1126, 1132 (9th Cir.1998)
Discussion
Plaintiff seeks to modify the Amended Pretrial Order by reinstating several provisions of Proposed Pretrial Order that the Court struck at the pretrial conference. Specifically, Plaintiff seeks to amend the Amended Pretrial Order to include the following legal issues:
Legal Issue No. 1. Whether “other designs and technologies”, as referenced in the definition of “equivalent facilitation” at ADAAG Sec. 2.2, includes policies, practices and procedures, such as Defendant’s Policy.
Legal Issue No. 2. Whether Plaintiff was required to specifically identify seating areas in his Complaint, in order to recover damages relating to inaccessible seating areas.
Legal Issue No. 3. Whether providing people in wheelchairs the opportunity to see food ingredients by placing food in sample cups, or by lifting tongfuls or handfuls of food, and/or the opportunity to watch the assembly of one’s entree in the dining area at an adjacent table, is full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations, contemplated by 42 U.S.C. Sec. 12182.
Legal Issue No. 4. Whether providing people in wheelchairs the opportunity to see food ingredients by placing food in sample cups, or by lifting tongfuls or handfuls of food, and/or the opportunity to watch the assembly of one s entree in the dining area at an adjacent table, violates 42 U.S.C. Sec. 12182 because the benefit provided is a “separate” benefit.
(Mot. to Amend at 1-2.)
The Court must examine whether any manifest injustice would result if the pretrial order is not modified. See Fed.R.Civ.P. 16(e). Plaintiff presents no new facts or law in support of his Motion. Rather, Plaintiff essentially rehashes the arguments presented in his Motion for Summary Judgment and Motion for Reconsideration. All four of the legal issues that Plaintiff seeks to add to the Amended Pretrial Order have already been addressed by the Court in the order on the motions for
2

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007) summary judgment, the order on the motions for reconsideration, and in the rulings at the final pretrial conference. Legal Issue No.1 was addressed in the orders on the motions for summary judgment and the motions for reconsideration. (Order on Mots. for Summ. J. at 16-17; Order on Mots. for Recons. at 6.) Legal Issue No. 2 was addressed in the order on the motions for summary judgment. (Order on Mots. for Summ. J. at 24.) Legal Issue No. 3 and Legal Issue No. 4 were also addressed in the orders on the motions for summary judgment. (Id. at 18-19.) Because Plaintiff has failed to demonstrate that circumstances have changed such that a manifest injustice would result if the Amended Pretrial Order is not modified, the Court DENIES Plaintiff’s Motion to Amend the Amended Pretrial Order. *3 IT IS SO ORDERED.
3

 
 Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
2007 WL 3333109 United States District Court,
S.D. California. Maurizio ANTONINETTI, Plaintiff,
v. CHIPOTLE MEXICAN GRILL, INC., and Does 1 Through 10, inclusive, Defendants.
Civil Nos. 05CV1660-J (WMc), 06cv2671 (WMc). | Nov. 8, 2007.
Attorneys and Law Firms Amy B. Vandeveld, Law Office of Amy B. Vandeveld, San Diego, CA, for Plaintiff. Gregory Francis Hurley, Jeanne Uyen Vu, Greenberg Traurig, Irvine, CA, Jonathan J. Herzog, Weston Herzog Glendale, CA, for Defendant. Opinion
ORDER:
(1) DENYING PLAINTIFF’S MOTION TO EXCLUDE EXHIBITS AND TESTIMONY RELATING TO DEFENDANT’S POLICY
(2) DENYING PLAINTIFF’S MOTION TO EXCLUDE EXHIBITS NO. 51 AND 92 (DEFENDANT’S TRIAL MANUAL) AND ANY TESTIMONY RELATING THE TO TRIAL MANUAL
(3) DENYING PLAINTIFF’S MOTION TO EXCLUDE CUMULATIVE WITNESSES
(4) GRANTING PLAINTIFF’S MOTION TO EXCLUDE JOE STUPP’S TESTIMONY REGARDING 3/15/07 EMAIL
(5) GRANTING PLAINTIFF’S MOTION TO EXCLUDE EXPERT WITNESS TESTIMONY REGARDING APPLICABLE LAW AND REGULATIONS
(6)DENYING DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE AND ARGUMENT REGARDING CHIPOTLE RESTAURANTS NOT AT ISSUE IN THE COMPLAINT
(7) DENYING DEFENDANT’S MOTION TO EXCLUDE EVIDENCE AND ARGUMENT REGARDING NON-WITNESS ALLEGATIONS OF DISABILITY DISCRIMINATION
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
(8) GRANTING DEFENDANT’S MOTION TO EXCLUDE MICHAEL RIFKIN, JAMES PERKINS, AND JEAN RIKER
(9) DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION TO EXCLUDE ANY EVIDENCE AND ARGUMENT REGARDING ALLEGATIONS THAT DEFENDANT’S EXPERT WITNESS KIM BLACKSETH HAD CONFLICTS OF INTEREST OR MISUSED HIS POSITION
(10) GRANTING DEFENDANT’S MOTION TO EXCLUDE EVIDENCE OF PRESS RELEASES AND NEWS ARTICLES BATES LABELED DEF RFP 24-0250 THROUGH DEF RFP 24-0281
NAPOLEON A. JONES, JR., United States District Judge.
*1 A Motion in Limine hearing was held for this action on Monday, November 5, 2007, at 9:00 a.m. Plaintiff Maurizio Antoninetti (“Plaintiff”) brings this action against Defendant Chipotle Mexican Grill, Inc. (“Defendant”). Plaintiff seeks injunctive relief under the Americans with Disabilities Act (“ADA”) and damages under California Civil Code Sections 51, 51.5, 52, 54, 54.1 and 54.3. Both parties filed motions for summary judgment. The Court granted in part and denied in part both parties’ motions. Trial is scheduled to begin on November 27, 2007 at 8:00 a.m. Currently before the Court are five (5) Motions in Limine filed by Plaintiff and five (5) Motions in Limine filed by Defendant. [Doc. Nos. 163, 164, 165, 166, 167, 168, 169, 170, 171, 172.] Both parties have filed Responses in Opposition to the Motions. [Doc. Nos. 179, 180, 181, 182, 183, 186, 187, 188, 189, 190.] Plaintiff filed his Reply to the Defendant’s Responses. [Doc. Nos. 191, 192, 193, 194, 195, 196, 197.]
Background
Plaintiff is a paraplegic who requires a wheelchair for mobility. (Prop. Pretrial Order at 1.) Defendant owns and operates restaurants in Encinitas and San Diego. (Id.) Defendant’s restaurants serve burritos, tacos, and other Mexican cuisine. (Id . at 3.) In ordering their entrees, customers move along a service line and select various ingredients. (Id.) Defendant’s employees then prepare the entrees in front of customers using the selected ingredients. (Id.) After customers order their entrees and the employees prepare them, they move down the service line to a cashier counter to pay for their entrees. (Id. at 3.) The cashier counter is compliant with disabilities regulations. (Id. at 7.)
Defendant’s employees prepare the entrees on counters that are approximately 35 inches high. (Id. at 5.) A wall separates restaurant customers from the food-preparation counters. (Id. at 4-5.) The wall is 44 inches from the floor. (Id.) A sneeze guard is attached to the top of the wall by a metal bracket that is approximately 2 inches high. (Id. at 5.) The view of the food-preparation counters is obstructed to a height of 46 inches from the floor. (Id.) If a person’s eyes are at a height of 51 inches and are 12 inches from the wall at the food service line, the person can see no portion of the food-preparation counter, the ingredients available for selection, or the preparation of their food. (Id.) If a person’s eyes are at a height of 43 inches and are 12 inches from the wall at the food service line, the person can see no portion of the food-preparation counter, the ingredients available for selection, or the preparation of their food. (Id.) The average eye level of persons in wheelchairs is between 43 and 51 inches. (Id.) Plaintiff’s eye level is 45 inches. (Id. at 8.) He could not see over the wall obstructing the food-preparation counter. (Id.)
On October 6, 2006, the parties conducted site inspections of Defendants restaurants as part of discovery. (Id. at 5.) Defendant’s employees did not show Plaintiff food items unless he asked to see them. (Id.) Plaintiff was shown each item he asked to see. (Id.) Defendant’s employees showed Plaintiff the items individually by tongfuls, handfuls, and in plastic cups. (Id. at 8.)
*2 On February 23, 2007, Defendant implemented a nationwide “Customers with Disabilities” policy (“Policy”). (Id. at 12 .) The Policy provides that “[a] customer with a disability (for example, a visual or mobility impairment) may benefit from some alternative means of presenting or describing our food.” (Id.) The policy sets forth several examples of the ways in which Defendant’s employees can accommodate individuals with disabilities, such as showing customers samples of foods in
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cups, giving customers an opportunity to see or sample the food at a table, or describing the food or food-preparation process to customers. (Id.) Plaintiff argues that this Policy does not constitute “equivalent facilitation” as provided by the ADA Accessibility Guidelines (“ADAAG”).
Discussion
I. Plaintiff’s Motions in Limine
A. Motion in Limine # 1 Plaintiff has filed a Motion in Limine to exclude exhibits and any testimony relating to Defendant’s Policy on the grounds that, as a matter of law, the Policy cannot constitute “equivalent facilitation” under the ADAAG. [Doc. No. 168.] Defendant has filed an opposition asserting that Plaintiff’s Motion in Limine consists solely of substantive legal arguments regarding the central issue that remains to be decided at trial-whether the Policy is “equivalent facilitation” under Section 7.2(2)(iii) of the ADAAG. [Doc. No. 179 at 2.] Defendant also argues that the arguments that Plaintiff raises in his motion have already been expressly rejected by the court on three occasions and that Plaintiff raises these issues for the sole purpose of harassing Defendant and unnecessarily increasing the costs of the litigation. (Id.) Defendant requests that the Court award Defendant the costs and fees incurred in opposing this motion. (Id.)
The Court has previously denied Plaintiff’s motion to find this issue in his favor at the motion for summary judgment phase and Plaintiff’s Motion for Reconsideration., the pretrial order phase and at the pretrial conference. [See Doc. Nos. 129, 147.] The Court has held that the question of whether Chipotle’s Policy provides “equivalent facilitation” under the ADAAG is the ultimate question and best reserved for trial. Accordingly, the Court DENIES Plaintiff’s Motion in Limine to exclude exhibits and any testimony relating to Defendant’s policy. Additionally, Plaintiff has filed a response to Defendant’s request for sanctions asserting that she has filed this motion to preserve the record for appeal. [Doc. No. 191 at 2.] As such, the Court DENIES Defendant’s request for the costs and fees associated with opposing this motion.
B. Motion in Limine # 2 Plaintiff has filed a Motion in Limine to exclude exhibits No. 51 and 92 (Defendant’s Training Manual) and any testimony relating to said manual on the grounds that such evidence constitutes inadmissible legal conclusions regarding the requirements set forth by the ADA because they are proffered by lay witnesses. [Doc. No. 169.] Defendant argues in opposition that these exhibits will not be offered as proof of the legal requirements of the ADA but rather as evidence of the steps that Defendant has taken to inform its employees of their obligations under the ADA. [Doc. No. 180 at 2.] Defendant’s instructions to its employees are particularly important to the central issue at trial; whether Defendant’s Policy is an effective method of accommodating customers with disabilities within the meaning of Sections 2.2 and 7.2(2)(iii) of the ADAAG. Accordingly, the Court DENIES Plaintiff’s Motion in Limine to exclude exhibits No. 51 and 92 (Defendant’s Training Manual) and any testimony relating to said manual.
C. Motion in Limine # 3 *3 Plaintiff has filed a Motion in Limine to exclude cumulative witnesses. [Doc. No. 170.] Plaintiff refers to Defendant’s witness list naming “Area Managers,” “Operations Directors,” “Service Managers,” and “Apprentices” as potential witnesses as evidence that Defendant may introduce witnesses whose testimony will all relate to the same issues. (Id. at 2.) Plaintiff requests that the Court limit Defendant to one witness per issue and strike the following defense witnesses: Phil Petrilli, Matt Scheiman, Tim Spong, Ben Williams, Martiza Arriaga, Jose Rivera, Santiago Gonzales, Erika Ramires, Kevin Kupper, Morgan Anderson, Maria Perez, Rene Saucedo, Claudio Lopez. (Id.) Defendant responds that Plaintiff’s objections to these witnesses are premature because Defendant has not yet determined what evidence it will introduce through each of its specific witnesses. (Def.’s Opp. to Pl.’s Mot. In Limine # 3 at 2.) Defendant also points out that more than one witness may be needed for a particular issue because one witness may not have the requisite personal knowledge for all of the evidence Defendant may seek to introduce about a particular issue. (Id.) For these reasons, the Court DENIES Plaintiff’s Motion in Limine to exclude cumulative witnesses. The Court does permit both parties to object to the use of cumulative witnesses at trial if the need arises.
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D. Motion in Limine # 4 Plaintiff has filed a Motion in Limine to exclude Joe Stupp’s testimony regarding the 3/15/07 email on the grounds that the email is inadmissible hearsay under Federal Rules of Evidence 801 and 802. [Doc. No. 171.] Defendant has filed a response to Plaintiff’s motion asserting that Defendant previously agreed to refrain from calling Mr. Stupp as a witness during a telephonic conference held on Friday, September 28, 2007. Defendant concludes that, as per this previous agreement, Plaintiff’s motion is unnecessary. [Doc. No. 182 at 1.] Since the parties have previously agreed to this matter, the Court GRANTS Plaintiff’s Motion in Limine to exclude Joe Stupp’s testimony regarding the 3/15/07 email.
E. Motion in Limine # 5 Plaintiff has filed a Motion in Limine to exclude expert witness testimony regarding applicable laws and regulations on the grounds that such testimony does not fall within the scope of expert testimony admissible under Federal Rule of Evidence 702. [Doc. No. 172.] Plaintiff further notes that the parties have already agreed that they will not offer such expert witness testimony. (Id. at 2.) Defendant has filed a response to Plaintiff’s motion stating that, as Plaintiff asserts in his motion, the parties have agreed to exclude such expert witness testimony and that Plaintiff’s motion is unnecessary. Since the parties have previously agreed to this matter, the Court GRANTS Plaintiff’s Motion in Limine to exclude expert witness testimony regarding applicable laws and regulations.
I. Defendant’s Motions in Limine
A. Motion in Limine # 1 *4 Defendant has filed a Motion in Limine to exclude evidence and argument regarding Chipotle restaurants not at issue in the Complaint on the grounds that such evidence is irrelevant and unfairly prejudicial under Rules 401, 402 and 403 of the Federal Rules of Evidence. [Doc. No. 163.] Defendant argues that the Complaint only identifies the Chipotle Restaurants at Pacific Beach and Encinitas as the establishments where he was subjected to discrimination or other alleged violations of his rights under state and federal law. (Id. at 1.) Defendant asserts that evidence regarding other Chipotle restaurants is not relevant to the issue in this case and “poses a substantial danger of unfair prejudice to Chipotle and confusion of the issues.” (Id.) Plaintiff counters that the paramount issue in the case is whether Chipotle’s policy constitutes equivalent facilitation as provided by ADAAG sec. 2.2 and ADAAG Sec. 7.2(2)(iii). [Doc. No. 186 at 2.] Plaintiff contends that the Court must consider what the “Chipotle experience” is like that of other restaurants in order to determine if the Policy is “equivalent facilitation.” (Id.) Plaintiff argues that Defendant does not differentiate between the Chipotle experience at various restaurants and considers the Chipotle Policy to be a “national policy” affecting all of its restaurants. (Id .) In other words, as a national corporation, the “Chipotle experience” is not unique to individual restaurants. (Id. at 3 .)
Rule 402 of the Federal Rules of Evidence provides that “all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules ... [e]vidence which is not relevant is not admissible.” Rule 402 Fed. R. Ev. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401 Fed. R. Ev. Rule 403 of the Federal Rules of Evidence allow a district court the discretion to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, ..., or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403 Fe. R. Ev.
As Plaintiff argues, evidence regarding the “Chipotle experience” is relevant to the issue of whether Chipotle’s Policy is “equivalent facilitation” under ADAAG. Because Defendant does not exclude its Encinitas and Pacific Beach restaurants from its national Policy or its national “Chipotle experience,” news clippings and media regarding the Chipotle experience are relevant in this action even if they were not released in reference to the two Chipotle restaurants listed in the Complaint. There is no evidence to suggest that the restaurants identified in the Complaint were not governed by the national corporation’s expectation of providing customers with the same “Chipotle experience” it governed for its other restaurants. Additionally, Defendant’s claim that evidence of the Chipotle experience at other restaurants will confuse the issue and require Defendant to defend the service offered at its other restaurants is without merit. Defendant will only have to present evidence about the Encinitas and Pacific Beach restaurants compliance with the Policy and the national “Chipotle experience” objective. For the above reasons, the Court DENIES Defendant’s Motion in Limine to exclude evidence and
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argument regarding Chipotle restaurants not at issue in the Complaint.
B. Motion in Limine # 2 *5 Defendant has filed a Motion in Limine to exclude evidence and argument regarding non-witness allegations of disability discrimination on the grounds that such evidence, whether oral or written is inadmissible hearsay. [Doc. No. 164.] Defendant claims that Plaintiff may introduce non-witness complaints such as those contained in Exhibits 1, 4, 6, 56 and 82 of the Proposed Trail Exhibits. (Id. at 2.) These complaints are from other wheelchair users and concern the accessibility of Chipotle’s restaurants. (Id. at 3.) Defendant further argues that none of the alleged customers who made these complaints were identified as witnesses to be called at trial and, as such, evidence of their complaints is inadmissible hearsay under Rules 801 and 802 of the Federal Rules of Evidence. (Id.) Defendant also refers to its Motion in Limine to exclude evidence and argument regarding Chipotle restaurants not at issue in the complaints as a basis for excluding any complaints regarding Chipotle restaurants other than Pacific Beach and Encinitas restaurants. (Id.) Plaintiff argues in opposition that the complaints that Defendant moves to exclude have already been removed from Proposed Exhibit 6 per agreement of the parties. [Doc. No. 187 at 2.] Plaintiff agrees to remove those documents from Proposed Trial Exhibits 1 and 82 because they are duplicative. (Id.) Plaintiff also agrees to remove Proposed Trial Exhibit 56 from the Amended Exhibit List. (Id.) This limits Defendant’s Motion in Limine to a request to exclude Proposed Trial Exhibit 4. Plaintiff further argues that the complaints are not hearsay because they are not offered for the truth of the matter asserted but rather as evidence of Chipotle’s failure to mention the Policy in response to email complaints. (Id.) An out of court statement is not hearsay if it is offered to show the effect on the hearer, reader or viewer rather than to prove the content of the statement, e.g., to show that a party had notice or knowledge; that a party was given a warning or to prove a party’s motive, good faith, fear, etc. where such matters are relevant to the case. (See Rutter Group Practice Guide, Federal Civil Trial and Evidence, [8:1865, et seq.] )
Plaintiff argues that the complaints go to Defendant’s credibility regarding the existence of the Policy. (Id.) Particularly, Defendant’s intent and motive with respect to the existence, implementation, effectiveness and enforcement of the Policy. (Id. at 3.) Plaintiff also argues that these complaints are evidence of Defendant’s ineffective conduct in response to earlier complaints and the likelihood that the Policy will be effectively enforced in the future. (Id. at 3.)
Although Plaintiff would be able to overcome the hearsay bar by offering these complaints as evidence of something other than the truth of the matter asserted, these complaints would remain irrelevant to the issue at hand. There is no evidence that any of these complaints were received by the Encinitas and Pacific Beach restaurants. As stated above, Rule 402 provides that “all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules ... [e]vidence which is not relevant is not admissible.” Rule 402 Fed. R. Ev. Here, Plaintiff seeks to introduce evidence that a Chipotle restaurant not identified in the Complaint failed to adequately accommodate its disabled customers as evidence that the restaurants listed in the Complaint is likely to do the same. This evidence is irrelevant and unfairly prejudicial. The response by one Chipotle restaurant to complaints about the restaurant’s accessibility could differ drastically from the response another Chipotle restaurant would have to the same complaint. For these reasons, the Court GRANTS defendant’s Motion in Limine to exclude evidence and argument regarding non-witness allegations of disability discrimination.
C. Motions in Limine # 3 *6 Defendant has filed a Motion in Limine to exclude Michael Rifkin, James Perkins, and Jean Riker, co-plaintiffs in a related class action against Chipotle pending in this court, as trial witnesses pursuant to Federal Rule 37(c)(1) of the Federal Rules of Civil Procedure and Rules 401, 402, 403 and 602 of the Federal Rules of Evidence. [Doc. No. 166.] Defendant argues that the aforementioned Plaintiffs were never identified as potential witnesses in the present action in Plaintiff’s Rule 26(a) disclosures or any other supplements. (Id. at 2.) Defendant argues that the failure to disclose these potential witnesses during discovery prevented Defendant from conducting any discovery regarding their potential testimony and allowing the testimony would result in substantial prejudice to defendant. (Id.) Defendant further argues that Plaintiff’s witnesses have no firsthand knowledge of either of the restaurants at issue in the case and that the testimony must be excluded under Rules 401, 402, 403 and 602 of the Federal Rules of Evidence. (Id.)
Federal Rule of Civil Procedure 37(c)(1) provides that “a party that without substantial justification fails to disclose information required by Rule 26(a) ... or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless failure is harmless, permitted to use as evidence at trial ... any witness or information not so disclosed” (emphasis added). Rule 37(c)(1) Fed.R.Civ.P. Rule 37(c)(1) was designed to be self-executing in order to produce a strong incentive for
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disclosure. Rule 37 Fed.R.Civ.P., Advisory Comm. Note (1993).
In his response, Plaintiff argues that Defendant was aware of these witnesses because they were disclosed in the related class action. [Doc. No. 188 at 2.] Further, the Court consolidated the instant case with the related class action case for discovery purposes on March 20, 2007. (Id.) Because the issues were similar and these cases were consolidated for discovery purposes there is no significant threat of prejudice to Defendant by allowing these witnesses to testify. Further, in his response, Plaintiff suggests that he intends to use these witnesses to impeach Defendant’s credibility regarding the implementation and effectiveness of its Policy. [Doc. No. 188 at 3.] Impeachment witnesses need not be disclosed in pretrial disclosures or, in responses to other discovery. See FRCP 26(a)(1)(A), 26(a)(3). Thus, these witnesses would be admissible even if the failure to list them in Rule 26(a) disclosures was prejudicial.
Defendant’s argument that the testimony of these witnesses is irrelevant because they lack personal knowledge of the restaurants identified in the Complaint has merit. As stated above, the response of a Chipotle restaurant not listed in the Complaint to allegations of non-compliance with ADAAG is not necessarily the same response that the Chipotle restaurants listed in the Complaint would have to the same allegations. Accordingly, the Court GRANTS Defendant’s motion to exclude Michael Rifkin, James Perkins, and Jean Riker on the grounds that their testimony is irrelevant and they have no personal knowledge of the restaurants identified in the Complaint. If the testimony of these witnesses can be limited to the experience at the Chipotle restaurants listed in the Complaint or Plaintiff can show that the restaurants listed in the Complaint were made aware of the allegations of non-compliance addressed to other Chipotle restaurants by these witnesses then the Court FINDS that Defendant had notice to obtain depositions of these witnesses and their testimony would not be unfairly harmful to Defendant.
D. Motion in Limine # 4 *7 Defendant has filed a Motion in Limine to exclude any evidence and argument regarding allegations that Defendant’s expert witness Kim Blackseth had conflicts of interest or misused his position with the California Building Standards Commission during his service with that agency. [Doc. No. 165.] Defendant argues that any evidence or argument regarding these allegations against Mr. Blackseth must be excluded under Rule 403 on the grounds that its probative value is substantially outweighed by the danger it poses of unfair prejudice, confusion of the issues, and concerns of delay and waste of time. (Id. at 2.) Defendant further argues that any extrinsic evidence is inadmissible under Rule 608 of the Federal Rules of Evidence. (Id. at 3.) Plaintiff filed an opposition to Defendant’s motion asserting that Mr. Blackseth’s reputation in the disabled community as a person whose opinions are biased and not credible are admissible pursuant FRE 608(a) and FRE 803(21). Plaintiff is permitted to introduce evidence of bias or improper motivation on the part of an expert witness. Rule 608 does, however, expressly state that specific instances of a witness’ conduct that are offered for the purpose of attacking or supporting the witness’ credibility may not be proven by extrinsic evidence. Rule 608 Fed. R. Ev. Accordingly, the Court DENIES Defendant’s Motion in Limine to exclude any evidence and argument regarding allegations that Defendant’s expert witness Kim Blackseth had conflicts of interest or misused his position with regards to the reputation evidence and GRANTS the motion with regards to specific instances of the alleged misconduct.
E. Motion in Limine # 5 Defendant has filed a Motion in Limine to exclude evidence of press releases and news articles bates labeled DEF RFP 24-0250 through DEF RFP 24-0281 in proposed trial exhibit 16. Plaintiff has filed a notice of non-opposition to this Motion in Limine. Accordingly, the Court GRANTS Defendant’s Motion in Limine to exclude evidence of press releases and news articles bates labeled DEF RFP 24-0250 through DEF 24-0821 in proposed trial exhibit 16.
Conclusion and Order
For the reasons stated above, the Court GRANTS in part and DENIES in part the parties’ Motions.
IT IS SO ORDERED.
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007) Parallel Citations 74 Fed. R. Evid. Serv. 1340
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 Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
2007 WL 4162804 Only the Westlaw citation is currently available.
United States District Court, S.D. California.
Maurizio ANTONINETTI, Plaintiff, v.
CHIPOTLE MEXICAN GRILL, INC., and Does 1 Through 10, inclusive, Defendants. and Related Case.
Civil No. 05CV1660-J (WMc). | No. 06CV2671-J (WMc). | Nov. 19, 2007.
Attorneys and Law Firms Amy B. Vandeveld, Law Office of Amy B. Vandeveld, San Diego, CA, for Plaintiff. Gregory Francis Hurley, Jeanne Uyen Vu, Greenberg Traurig, Irvine, CA, Jonathan J. Herzog, William S. Weston, Weston Herzog, Glendale, CA, John Francis Scalia, Matthew Sorensen, Greenberg Traurig, McLean, VA, for Defendants. Opinion
ORDER:
(1) ADOPTING JOINT PROPOSED LEGAL STANDARDS [DOC. NO. 175];
(2) SUMMARILY DISMISSING PLAINTIFF’S SUPPLEMENTAL LEGAL STANDARDS [DOC. NO. 176];
(3) ADOPTING IN PART AND DISMISSING IN PART DEFENDANT’S SUPPLEMENTAL LEGAL STANDARDS [DOC. NO. 174].
NAPOLEON A. JONES, JR., District Judge. *1 Before the Court are the Joint Proposed Legal Standards, Plaintiff Maurizio Antoninetti’s (“Plaintiff”) Supplemental Legal Standards, Defendant Chipotle Mexican Grill’s (“Defendant”) Supplemental Legal Standards, and the parties Responses in Opposition to the Supplemental Legal Standards. Having reviewed the joint legal standards, the supplemental legal standards, and the responses in opposition to the proposed supplemental legal standards; the Court ADOPTS the Joint Proposed Legal Standards, SUMMARILY DISMISSES Plaintiff’s Supplemental Legal Standards, and ADOPTS IN PART AND DISMISSES IN PART Defendant’s Supplemental Legal Standards.
Background Plaintiff filed a Complaint on August 22, 2005, alleging various causes of action, including violations of the ADA, the California Unruh Civil Rights Act (“Unruh Act”), and the California Disabled Persons Act (“DPA”). [Doc. No. 1.] On April 16, 2007, Defendant filed a motion for summary judgment, contending: (1) Plaintiff’s claims for injunctive relief under the ADA are moot because Defendant has remedied the alleged architectural barriers; (2) Defendant’s food-preparation area and transaction station fully comply with accessibility regulations; and (3) the Court should decline jurisdiction over Plaintiff’s
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state law claims. [See Doc. No. 94.] On April 12, 2007, Plaintiff filed a motion for summary judgment, arguing that (1) the design of Defendant’s restaurants violates the ADA Accessibility Guidelines; and (2) the benefits, advantages, and privileges of Defendant’s restaurants are not available to persons in wheelchairs. [See Doc. No. 87.] On June 14, 2007, the Court Granted in Part and Denied in Part both parties Motions for Summary Judgement. The matter is currently set for trial on November 26, 2007 at 9:00a.m.
In the trial order, the Court ordered both parties to jointly submit one set of agreed upon legal standards. [Doc. No. 156 at 2.] The Court provided that if the parties could not agree upon one complete set of legal standards, they were permitted to submit a supplemental set of standards and objections to the non-agreed upon standards proposed by the other party. (Id.) The Court ordered that all legal standards be short, concise, and neutral statements of law. (Id.) The Court further provided that argumentative standards would not be accepted and should not be submitted. (Id.) On October 15, 2007, both parties submitted the Joint Proposed Legal Standards and their supplemental legal standards. [Doc. Nos. 174, 175, 176.] On that same day, both parties submitted a Response in Opposition to the opposing party’s supplemental legal standards. [Doc. Nos. 177, 178.]
Discussion
Proposed Joint Legal Standards The parties have jointly submitted twenty-five (25) proposed legal standards. [Doc. No. 175.] These standards were submitted pursuant to the Court’s instruction in the trial order. [See Doc. No. 156 at 2.] Accordingly, the Court SHOULD ADOPT the parties’ Joint Proposed Legal Standards.
Plaintiff’s Supplemental Legal Standards *2 Plaintiff has provided the Court with thirty-five (35) supplemental legal standards. [Doc. No. 176.] Defendant has filed an objection to each of Plaintiff’s proposed standards. [Doc. No. 178.]
Defendant objects to Plaintiff’s Supplemental Legal Standards 2.7, 2.9, 3.2, 3.4, 3.6, 3.7, 6.6, 7.2, and 8.1 on the grounds that they are duplicative of the submitted joint proposed standards. [See Doc. No. 178 at 4, 6, 10, 12, 13, 22, 23, 24.] The Court FINDS that, whereas the joint proposed standards are the combined effort of both parties, any supplemental standards that address the same rule of law as the joint proposed standards should be dismissed. Accordingly, the Court SUMMARILY DISMISSES Plaintiff’s Supplemental Legal Standards 2.7, 2.9, 3.2, 3.4, 3.6, 3.7, 6.6, 7.2, and 8.1.
Defendant objects to Plaintiff’s Supplemental Legal Standards 3.14, 3.15, 5.3, 5.4, and 6.8 on the grounds that these standards are irrelevant. [See Doc. No. 178 at 18, 19, 21, 23.] Defendant argues that these proposed standards are only relevant for defenses that Defendant will not raise during trial. (Id.) Since Defendant will not assert the defenses that invoke these standards, the Court SUMMARILY DISMISSES Plaintiff’s Supplemental Legal Standards 3.14, 3.15, 5.3, 5.4, and 6.8.
Plaintiff’s Supplemental Legal Standards 2.5, 2.11, and 3.12 all cite as support, statements from the House Report on the passage of the ADA. [See Doc. No. 176 at 2, 4, 8.] Defendant argues in opposition that these standards are not statements of law but rather a policy statement derived from the legislative history of the ADA. [See Doc. No. 178 at 2, 7, 16.] In the Court’s trial order, the Parties were ordered to submit legal standards that were short and concise statements of law. [Doc. No. 156 at 2.] The Court FINDS that these statements from the legislative history of the ADA are not proper legal standards. As such, the Court SUMMARILY DISMISSES Plaintiff’s Supplemental Legal Standards 2.5, 2.11, and 3.12.
Defendant objects to Plaintiff’s Supplemental Legal Standards 3.8, 3.13, 6.7, and 8.2 on the grounds that these standards are incorrectly applied fact-based findings from specific cases. [Doc. No. 178 at 13, 18, 22, 24.] Following is a brief discussion of each standard.
Plaintiff’s Supplemental Legal Standard 3.8 provides that: for “equivalent facilitation” to be found, the benefits of a public accommodation must be provided in the most integrated setting appropriate to the needs of the individual. [Doc. No. 176 at 7.] Plaintiff cites Caruso v. Blockbuster, 193 F.3d 730, 739 (3rd Cir.1999), citing 42 U.S.C. §§ 12182(b)(1)(A)(iii) as
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support. (Id.) The court’s finding in Caruso was specific to the unique facts of that case. The defendant in Caruso was accused of failing to design a portion of its facility so as to allow wheelchair users to enter and exit that portion of its facility. Defendant’s accommodations with regards to the entrance and exit of wheelchair users are no longer issues in this matter. [See Order on Mot. for Summ. Judgment.] Accordingly, the Court DISMISSES Plaintiff’s Supplemental Legal Standard 3.8.
*3 Plaintiff Supplemental Legal Standard 3.13 provides that: persons with disabilities are not required to request an operational solution (“equivalent facilitation”) because they may not know that accommodations are available and they may be hesitant to request special accommodations or to “make a fuss.” [Doc. No. 176 at 9.] Standard 3.13 also provides that: an ADA plaintiff alleging inadequate access to a facility is not required to have “formally” requested to use the facility. (Id.) Plaintiff cites Independent Living Resources v. Oregon Arena, 982 F.Supp. 698, 764 (D.Or.1997), and Schonfeld v. City of Carlsbad, 978 F.Supp. 1329, 1332 (S.D.Cal.1997), as support. (Id.) Defendant argues that the purported standard misstates the law. [Doc. No. 178 at 18.] Independent Living Resources did not stand for the proposition that a person with disabilities can never be required to request an accommodation as “equivalent facilitation.” Independent Living Resources, 982 F.Supp. at 764. Instead it held that one particular policy that required that the defendant be notified 48 hours in advance of the arrival of a disabled person in order to allow the defendant time in which to accommodate that person did not meet the requirements of “equivalent facilitation.” (Id.) Additionally, Defendant argues that Schonfeld did not even address the issue of “equivalent facilitation.” [Doc. No. 178 at 18.] Schonfeld concerned whether a plaintiff had standing to sue under the ADA. Schonfeld, 978 F.Supp. at 1332. Thus, the Plaintiff has not cited any relevant support for its Supplemental Legal Standard 3.13. As such, the Court DISMISSES Plaintiff’s Supplemental Legal Standard 3.13.
Plaintiff’s Supplemental Legal Standard 6.7 provides that: visiting a fast food restaurant, as opposed to a hotel or professional office, is not the sort of event that requires advance planning or the need for a reservation. [Doc. No. 176 at 11.] The Standard also provides that fast food restaurants do not take reservations and, as a result, specification as to a date and time of returning to this public accommodation is impossible due to the nature of the event. (Id.) Plaintiff cites Parr v. L & L Drive-Inn, 96 F.Supp.2d (D.Haw.2000), as support. (Id.) Defendant objects on the grounds that this standard misstates the law with respect to the requirements for showing the likelihood of future harm. [Doc. No. 178 at 22.] Defendant asserts that Parr addresses whether a plaintiff had standing to sue under Article III of the United States Constitution. The Court FINDS that the portion cited by Plaintiff does refer to standing and does not establish the requirements for injunctive relief. As such, the Court DISMISSES Plaintiff’s Supplemental Legal Standard 6.7.
Plaintiff’s Supplemental Legal Standard 8.2 provides that: defendant will fail to meet its heavy burden of demonstrating mootness where it has maintained throughout years of litigation that it is not required to take the requested action. [Doc. No. 176 at 12.] Plaintiff cites Porter v. Bowen, 496 F.3d 1009 (9th Cir.), as support for this legal standard. Defendant argues that Porter actually stands for the proposition that mootness is a heavy burden and that the defendant in that action was unable to meet that burden through the evidence it had presented. [Doc. No. 178 at 24.] The Court FINDS that the facts of the instant case are not sufficiently similar to Porter to accept it’s finding as a legal standard. Accordingly, the Court DISMISSES Plaintiff’s Supplemental Legal Standard 8.2.
*4 Defendant objects to Plaintiff’s Supplemental Legal Standard 5.2 on the grounds that Plaintiff truncates the statute and that the standards for injunctive relief under California Civil Code § 54.1(a) are better set forth under Defendant’s Supplemental Legal Standard 5.1. [Doc. No. 178 at 20.] Plaintiff argues in response that the final two elements of Defendant’s supplemental standard, that (1) Plaintiff was harmed and (2) Defendant’s behavior was a substantial factor in causing Plaintiff’s harm, contain language that is not a part of the statute. [Doc. No. 177 at 6.] Plaintiff is correct in its assertion that the text of the Civil Code does not include this language.1 Additionally, Defendant does not cite case support for these elements and the Court has been unable to find any. Since both parties disagree about the appropriate way to abbreviate the statute, the Court ADOPTS the entire text of the statute as the legal standard for this issue. Accordingly, the Court DISMISSES Plaintiff’s Supplemental Legal Standard 5.2 and Defendant’s Supplemental Legal Standard 5.1.
Defendant’s Supplemental Legal Standards Plaintiff objects to Defendant’s Supplemental Legal Standards 2.4 and 3.2 on the grounds that the ADAAG 7.2(2) does not apply to the filed Complaint. [Doc. No. 177 at 1-6.] The Court has already held that the primary issue remaining for trial is whether a policy can constitute equivalent facilitation under ADAAG 7.2(2). [See Order on Mot. for Summ. Judgment.] Accordingly, the Court ADOPTS Defendant’s Supplemental Legal Standards 2.4 and 3.2. Additionally, Defendant has already requested sanctions against Plaintiff for continuing to file motions regarding the applicability ADAAG 7.2(2) and other issues that were dismissed during at the summary judgment phase. [See Doc. No. 194 at 2.] Plaintiff is advised that the Court has ruled on the applicability of the specific portions of the ADAAG as well as which issues are remaining for trial.
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
[See Order on Mot. for Summ. Judgment.] Plaintiff has adequately preserved the record for appeal with regards to the Court’s ruling. Plaintiff is advised that if he continues to file motions regarding issues that have already been dismissed from this action and the nonapplicability of ADAAG 7.2(2), he is subject to sanctions.
Plaintiff objects to Defendant’s Supplemental Legal Standard 6.3.1 on the grounds that Defendant’s cited support does not apply. [Doc. No. 177 at 7.] Defendant cites Molski v. Mandarin Touch Restaurant, 385 F.Supp.2d 1042, 1045(C.D.Cal.2005), in support of it’s supplemental legal standard provision regarding the factors for injunctive relief. [Doc. No. at 3.] Plaintiff argues that Molski refers to a sit down restaurant which operates differently from fast food restaurants. [Doc. No. 177 at 7.] Plaintiff requests that the Court adopt his supplemental legal standards 7.5 and 7.6. (Id.) Plaintiff has not included these supplemental legal standards in its document. [See Doc. No. 176 .] However, the Court FINDS that there are sufficient similarities between fast food restaurants and sit-down restaurants for Molski to provide the correct standards for injunctive relief. Accordingly, the Court ADOPTS Defendant’s Supplemental Legal Standard 6.3.1.
*5 Plaintiff has no objection to Defendant’s Supplemental Legal Standard 6.6. Accordingly, the Could ADOPTS Defendant’s Supplemental Legal Standard 6.6.
Plaintiff objects to Defendant’s Supplemental Legal Standards 8.1 and 8.2 on the grounds that these standards should be read in conjunction with Plaintiff’s Supplemental 8.1 and 8.2. [Doc. No. 177 at 9.] As discussed above Plaintiff’s Supplemental Standard 8.1 is duplicative of the parties’ joint proposed standard 1.1 which sets out the burden of proof for affirmative defenses such as mootness. Additionally, Plaintiff’s Supplemental Legal Standard 8.2 is argumentative and misstates the holding in the case cited as support. Accordingly, the Court DENIES Plaintiff’s request and ADOPTS Defendant’s Supplemental Legal Standards 8.1 and 8.2.

Conclusion
The Court ADOPTS the Joint Proposed Legal Standards, SUMMARILY DISMISSES Plaintiff’s Supplemental Legal Standards, and ADOPTS IN PART AND DISMISSES IN PART Defendant’s Supplemental Legal Standards.
IT IS SO ORDERED.

Footnotes

1

California Civil Code Section 54.1(a) reads in its entirety: Individuals with disabilities shall be entitled to full and equal access, as

other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and

physician’s offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats,

or any other public conveyances or modes of transportation (whether private, public, franchised, licenses, contracted, or otherwise

provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation,

amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations

established by law, or state or federal regulation, and applicable alike to all persons. Cal. Civ.Code § 54.1(a).

4

 
 Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)

Opinion

2008 WL 111052 Only the Westlaw citation is currently available.
United States District Court, S.D. California.
Maurizio ANTONINETTI, Plaintiff, v.
CHIPOTLE MEXICAN GRILL, INC., and Does 1 through 10, inclusive, Defendants.
Civil No. 05CV1660-J (WMc). | No. 06cv2671 (WMc). | Jan. 10, 2008.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT
NAPOLEON A. JONES, JR., District Judge.
*1 On August 22, 2005, Plaintiff Maurizio Antoninetti (“Plaintiff”) brought this action against Defendant Chipotle Mexican Grill, Inc. (“Defendant” or “Chipotle”) under Title III of the Americans with Disabilities Act (“ADA”) and under the California Disabled Persons Act (“CDPA”).1 Plaintiff asserted that Defendant denied him full and equal access to two of its restaurants, one located at 268 N. El Camino Real in Encinitas (the “Encinitas Restaurant”) and the other located at 1504 Garnet Avenue in San Diego (the “Pacific Beach Restaurant”) (collectively the “Restaurants”). Specifically, Plaintiff alleges that the 44 inch high wall in front of the Restaurants’ food preparation counters obstructs his view of the preparation counters and thereby denies him the right to see the food ingredients and customize his food order.
In its June 14, 2007 Order on the Parties’ Cross Motions for Summary Judgment, this Court held that Section 7.2(2) of the ADA Accessibility Guidelines (“ADAAG”) applies to the wall in front of the food preparation counters at the Restaurants. Under Section 7.2(2), a portion of the main counter that is a minimum of 36 inches in length must have a maximum height of 36 inches; alternatively, an auxiliary counter with a maximum height of 36 inches must be provided in close proximity to the main counter, or some other “equivalent facilitation” must be provided. This Court found that the 34 inch high transaction station attached to the food preparation counters, at which cash registers are located, was not “a portion of the main counter” or an “auxiliary counter” within the meaning of ADAAG Subsections 7.2(2)(i) and (ii). This Court further found that a genuine factual dispute existed as to whether Defendant’s practice and policy of accommodating customers with disabilities constituted an “equivalent facilitation” under ADAAG Subsection 7.2(2)(iii).2
This Court held a bench trial in this action on November 27, 29, 30 and December 3, 2007. The issues presented at trial were as follows: (1) whether Defendant’s prior practice of accommodating customers with disabilities constituted equivalent facilitation under Section 7.2(2)(iii); (2)whether Defendant’s written Customers with Disabilities Policy constitutes equivalent facilitation under Section 7.2(2)(iii); (3) whether Plaintiff is entitled to an injunction requiring Defendant to lower the wall in front of the Restaurants’ food preparation counters; and (4) the amount of damages, if any, that Plaintiff is entitled to under the CDPA based on his visits to the Restaurants.
After considering all of the evidence admitted at trial and the argument of counsel, the Court makes the following findings set forth in detail below: (1) Defendant’s prior practice of accommodating customers with disabilities, including customers in wheelchairs, did not constitute equivalent facilitation under Section 7.2(2)(iii) of the ADAAG; (2) Defendant’s current written Customers With Disabilities Policy constitutes equivalent facilitation under Section 7.2(2)(iii) of the ADAAG; (3) Plaintiff is not entitled to an injunction requiring Defendant to lower the wall in front of the Restaurants’ food preparation counters; and (4) Plaintiff is entitled to a total of $5000.00 in damages for the occasions on which he encountered barriers to his entrance into Defendant’s restaurants.

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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
Factual Findings
I. Chipotle Restaurants *2 1. Chipotle is a restaurant founded by Steve Ells, who is presently the company’s Chief Executive Officer. Mr. Ells is a classically trained chef and a graduate of the Culinary Institute of America. In 1993, Mr. Ells opened the first Chipotle restaurant. In creating Chipotle, Mr. Ells sought to apply his classical training and knowledge of high-quality food and service to a quick service Mexican food restaurant. Reporter’s Transcript of Court Trial in Maurizio Antoninetti v. Chipotle Mexican Grill, No. 05-CV-1660 (hereinafter “TR”), at p. 511, ln. 8-p. 514, ln. 6 (November 30.2007).
2. The Chipotle experience consists of the architecture, décor, and music of the restaurants, the aroma of the food, the appearance of a customer’s entrée, Chipotle’s friendly staff, its tradition of excellent customer service, the ability to customize one’s entrée, and above all, the taste of the food. The ability to see the freshness of the quality ingredients available at Chipotle’s restaurants is a significant part of the Chipotle experience but has always been of secondary importance to the appearance and taste of the food once it has been prepared and served to the customer. The most important aspect of the Chipotle experience is the experience of eating and enjoying one’s food. TR, at p. 203, lns. 13-18; p. 278, ln. 19-p.280, ln. 18 (November 29, 2007); TR, at p. 641, ln. 1-p. 642, ln. 5 (December 3, 2007); Ex. 58.
3. Defendant provides specific details for the appearance of its food. The chicken is required to be served with dark caramel grill lines on it. Customers can actually see if the rice is bright white or has freshly chopped cilantro in it. If the rice, for example, is not bright white, visually fresh, with vibrant green cilantro, Chipotle staff are instructed to remove the rice. [Trial Ex. 1, p. 10-1700; 68: 19-69:5; Trial Ex. 1, p. 10-1666]
4. Defendant opened the Pacific Beach Restaurant in April of 2002. Amended Pretrial Order, Section III, ¶ 9; TR, at p. 16, lns. 18-19; p. 17, ln. 24-p. 19, ln. 7 (November 27, 2007).
5. The City of San Diego issued the Certificate of Occupancy for the Pacific Beach Restaurant on April 1, 2001. Amended Pretrial Order, Section III, ¶ 31; TR, at p. 27, lns. 16-18; p. 27, ln. 25-p.19, ln. 7 (November 27, 2007).
6. Defendant opened the Encinitas Restaurant in May of 2002. Amended Pretrial Order, Section III, ¶ 10; TR, at p. 16, lns. 19-21; p. 17, ln. 24-p. 19, ln. 7 (November 27, 2007).
7. The City of Encinitas issued the Certificate of Occupancy for the Encinitas Restaurant on May 15, 2002. Amended Pretrial Order, Section III, ¶ 30; TR, at p. 27, lns. 13-15; p. 27, ln. 25-p. 28, ln. 3 (November 27, 2007).
II. Plaintiff 8. Plaintiff uses a wheelchair for mobility. Amended Pretrial Order, Section III, ¶ 39; TR, at p. 28, ln. 25-p. 29, ln. 1; p. 29, ln. 15-p. 30, ln. 14 (November 27, 2007).
9. Since immigrating from Italy to the United States in 1991, Plaintiff has been involved in over 100 accessibility lawsuits, as either a plaintiff or a paid plaintiff-side accessibility consultant/expert witness. TR, at p. 470, ln. 16-p. 471, ln. 23; p. 472, ln. 25-474, ln. 25; p. 475, ln. 1-p. 476, ln. 1; p. 477, ln. 9-p. 484, ln. 21 (November 30, 2007).
*3 10. Plaintiff has served as a paid plaintiff-side accessibility consultant/expert witness in over fifty accessibility cases for the law firm of Pinnock & Wakefield, a law-firm specializing in plaintiff-side accessibility litigation. TR, at p. 483, ln. 24-p. 484, ln. 4 (November 30, 2007).
11. Plaintiff has served as a paid accessibility consultant/expert witness for his counsel of record in this case in at least fifty plaintiff-side accessibility lawsuits. TR, at p. 484, lns. 5-10 (November 30, 2007).
12. Plaintiff has served as a paid accessiblity consultant/expert witness for the brother of his counsel of record in this case in other plaintiff-side accessibility lawsuits. TR, at p. 484, lns. 11-16 (November 30, 2007).
13. In addition to his involvement in the above suits, Plaintiff has also personally sued at least twenty-two establishments or business for alleged accessibility violations. TR, at p. 470, ln. 16-p.471, ln. 23; p. 472, ln. 25-474, ln. 25; p. 475, ln. 1-p. 476, ln. 1; p. 477, ln. 9-p. 483, ln. 18; p. 483, ln. 24-p. 484, ln. 21 (November 30, 2007).
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
14. On one occasion Plaintiff spent several hours visiting a mall in the Oceanside, California area (“Oceanside Mall”) for the sole purpose of looking for accessibility violations. TR, at p. 477, ln. 9-p. 483, ln. 18 (November 30, 2007).
15. Plaintiff did not visit Oceanside Mall as a customer. He visited the Mall because the aforementioned law firm of Pinnock & Wakefield suggested that he do so. Plaintiff brought along with him, for his visit to Oceanside Mall, a measuring tape and camera to use while looking for accessibility violations. Plaintiff visited Oceanside Mall in the hopes that the law firm would retain him as a paid accessibility consultant/expert witness in any lawsuits it would file against the Oceanside Mall for alleged accessibility violations. TR, at p. 477, ln. 9-p. 483, ln. 18; p. 505, ln. 20-p. 506, ln. 11 (November 30, 2007).
16. As a result of his visit to Oceanside Mall, Plaintiff agreed to be, and in fact became, a plaintiff in accessibility lawsuits that Pinnock & Wakefield filed on his behalf against at least eighteen separate business that had stores at Oceanside Mall. TR, at p. 477, ln. 9-p. 483, ln. 18; p. 505, ln. 20-p. 506, ln. 14 (November 30, 2007).
17. Even though he had gone to Oceanside Mall for the purpose of looking for accessibility violations with the hope of being retained by Pinnock & Wakefield as a paid consultant/expert witness, Plaintiff alleged in the aforementioned lawsuits that he had suffered physical injury as a result of his visits to the establishments. TR, at p. 567, ln. 11-p. 572, ln. 3 (November 30, 2007).
18. Neither Plaintiff nor Pinnock & Wakefield made any attempt to resolve his accessibility claims with Oceanside Mall establishments before filing the lawsuits. Plaintiff settled his suits against Oceanside Mall establishments for cash payments. He never returned to Oceanside Mall after receiving his cash settlements. TR, at p. 477, ln. 9-p. 483, ln. 18 (November 30, 2007).
*4 19. Plaintiff filed an accessibility lawsuit against San Diego Pier Café. He made no attempt to resolve his accessibility concerns with that restaurant before filing his lawsuit. He later settled that lawsuit for a cash payment from the defendant. He never returned to the restaurant after receiving his cash settlement. TR, at p. 470, ln. 16-471, ln. 23 (November 30, 2007).
20. Plaintiff filed two accessibility lawsuits against two Dixieline Lumber Company stores. He made no attempt to resolve his accessibility claims with Dixieline Lumber Company’s corporate office before filing suit, and he settled those lawsuits for cash payments from Dixieline. TR, at 472, ln. 25-474, ln. 25 (November 30, 2007).
21. In one of his lawsuits against Dixieline Lumber Company, Plaintiff claimed that the store’s customer service counter was too high for customers in wheelchairs. In his settlement of that case, Plaintiff agreed that it was not necessary that the store lower its counter and that it was acceptable that the store agree to provide increased customer service by way of providing additional employees to assist customers in wheelchairs. TR, at p. 463, ln. 25-465, ln. 5 (November 30, 2007)
22. Plaintiff filed an accessibility lawsuit against a Holiday Inn Hotel in downtown Los Angeles as a result of a single visit to the hotel. He made no attempt to resolve his accessibility claims with Holiday Inn’s corporate management before filing suit. He settled that lawsuit for a cash payment, and he never returned to the hotel after receiving his cash settlement. TR, at p. 475, ln. 1-p. 476, ln. 1 (November 30, 2007).
23. Plaintiff filed an accessibility lawsuit against a restaurant called “Mr. Bertrand” based on a single visit. He made no attempt to resolve his accessibility claims with that restaurant’s management before filing suit. He settled that lawsuit for a cash payment, and he never returned to the restaurant after receiving his cash settlement. TR., at p. 476, ln. 9-p. 477, ln. 8 (November 30, 2007).
24. In the instant case, Plaintiff testified at trial that he believes he should be able to see the food along the Restaurants’ food serving lines in exactly the same manner as those standing customers who are tall enough to see over the wall. TR, at p. 460, ln. 7-p. 461, ln. 9 (November 30, 2007).
25. Plaintiff testified that he visited the Encinitas Restaurant on two occasions-first in February of 2005 and again during the October 6, 2006 site inspections conducted during the discovery process in this litigation. Plaintiff testified that he visited the Pacific Beach Restaurant on six occasions-once in February of 2005, once with his son, twice with his family, once with his wife, and once during the October 6, 2006 site inspections. He testified that two of these six visits were for the purpose of gathering evidence for this litigation. TR, at p. 425, ln. 24-p. 426, ln. 11; p. 448, ln. 25-p. 449, ln. 14 (November 30.2007).
*5 26. Plaintiff filed this lawsuit after only one visit to the Encinitas Restaurant and one visit to the Pacific Beach Restaurant. 3

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
The remainder of Plaintiff’s visits to the Restaurant were made after he filed this lawsuit. TR, at p. 425, ln. 24-p. 426, ln. 11; p. 436, lns. 5-12; p. 444, lns. 11-25 (November 30, 2007).
27. Except for his visit to the Pacific Beach Restaurant made three days before his deposition in this case, and the October 6, 2006 site-inspection conducted as part of this litigation, Plaintiff could not recall, and made no effort to record, the dates or details of the visits that he made to the Pacific Beach Restaurant after he filed this lawsuit. TR, at p. 423, ln. 15-p.426, ln. 11; p. 441, ln. 21-p. 442, ln. 11; p. 447, ln. 21-p. 449, ln. 14 (November 30, 2007).
28. Plaintiff made the second of his two visits to the Encinitas Restaurant, and at least two of his visits to the Pacific Beach Restaurant, for the purpose of gathering evidence for this lawsuit. He conducted the October 6, 2006 site inspections of the Pacific Beach and Encinitas Restaurants during the discovery process of this litigation for the purpose of gathering evidence in support of his claims; and he visited the Pacific Beach Restaurant on October 1, 2006, three days before his deposition, with the intent of repeating what he claimed were his prior bad experiences in order to prepare for his deposition and gather evidence to support his claims in this lawsuit. TR, at p. 422, ln. 21-p. 423, ln. 14; p. 425, ln. 24-p. 426, ln. 11; p. 442, ln. 4-p. 443, ln. 1; p. 453, ln. 19-p. 454, ln. 3 (November 30, 2007).
29. Plaintiff admitted at trial that on each and every occasion he visited the Pacific Beach and Encinitas Restaurants, he received a good burrito and could not identify any mistakes that had been made in his orders. TR, at p. 435, ln. 24-p. 436, ln. 4; p. 451, ln. 24-p. 452, ln. 22 (November 30, 2007).3
30. Plaintiff admitted at trial that during each and every one of his visits to the Pacific Beach and Encinitas Restaurants, Chipotle’s employees were always polite and never rude to him. TR, at p. 451, lns. 12-23; p. 459, lns. 12-14 (November 30, 2007).
31. Plaintiff admitted at trial that, to his knowledge, during each and every one of his visits to the Pacific Beach and Encinitas Restaurants, his fellow customers were never rude to him or impatient with him. TR, at p. 453, lns. 4-10; p. 459, lns. 15-17 (November 30, 2007).
32. As with each of his previous accessibility lawsuits, Plaintiff made no attempt to resolve his accessibility claims with Defendant’s corporate management before filing this lawsuit. TR, at p. 437, ln. 6-p. 438, ln. 20 (November 20, 2007).
III. Defendant’s Employees 33. Ronald Sedillo is Defendant’s Direct of Training. TR, at p. 509, ln. 13-p. 511, ln. 7 (November 30, 2007).
34. Jim Adams is Defendant’s Director of Marketing. One of Mr. Adams’ functions as Director of Marketing is to supervise the tracking of customer e-mail complaints made on Defendant’s website. TR, at p. 252, lns. 9-20; p. 255, lns. 13-16 (November 29, 2007); TR, at p. 642, lns. 6-11 (December 3, 2007).
*6 35. Ben Williams is currently the Area Manager for Defendant’s North County stores, which includes the Encinitas Restaurant. Mr. Williams has held this position since May of 2007. Prior to this position, Mr. Williams was the General Manager of the Pacific Beach Restaurant from December of 2005 through August of 2005. TR, at p. 578, ln. 1-p. 579, ln. 17 (November 30, 2007).
36. Matthew Cieslak is the current General Manager of Chipotle’s La Jolla restaurant. Before that, he was the General Manager of the Pacific Beach Restaurant, from November of 2005 through January of 2007. Chipotle’s written Customers With Disabilities Policy had not been implemented during Mr. Cieslak’s tenure as the General Manger of the Pacific Beach Restaurant. As such, Mr. Cieslak did not testify about the written Customers With Disabilities Policy. Instead, Mr. Cieslak testified solely about Defendant’s prior unwritten practice of providing accommodations to customers with disabilities as part of its overarching commitment to excellent customer service. TR, at p. 35, ln. 20-p. 36, ln. 3 (November 27, 2007); TR, at p. 221, ln. 24-p. 222, ln. 4; p. 319, ln. 20-p. 321, lns. 17 (November 29, 2007).
37. Maritza Arriaga is the current General Manager of the Encinitas Restaurant. She has held that position since September of 2006. TR, at p. 597, ln. 22-p. 598, ln. 9 (December 3, 2007).
38. Kevin Kupper is the current General Manager of the Pacific Beach Restaurant. He has held that position since January of 2007. TR, at p. 622, ln. 13-p. 623, ln. 16 (December 3, 2007).
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
39. Defendant’s restaurant management team consists of one General Manager, an Apprentice Manager, and at least one Kitchen Manager and Service Manager. At least one of these managers is on duty at all times during business hours. TR, at p. 350, ln. 9-p. 351, ln. 1 (November 29, 2007).
IV. The Construction of the Restaurants’ Food Serving Lines 40. The Restaurants are constructed with a 44 inch high wall between the line of customers and the food preparation area (hereinafter “the Wall”). Amended Pretrial Order, Section III, ¶ 29; TR, at p. 27, lns. 10-12; p. 27, ln. 25-p. 28. ln. 3 (November 27, 2007).
41. Transparent sneeze guards are located at the tops of the Wall and held in place by metal strips about 2 inches high. Sneeze guards are required along the food service lines at the restaurants pursuant to CURFFL Sections 114080(b)(2)(A) and 114080(c) and Health & Safety Code Section 114080. Amended Pretrial Order, Section III, ¶ 32; TR, at p. 27, lns. 19-24; p. 27, ln. 25-p. 28, ln. 3 (November 27, 2007).
42. The top of the metal strip that holds the sneeze guard in place above the Wall is approximately 46 inches from the finished floor. Amended Pretrial Order, Section III, ¶ 33; TR, at p. 28, lns. 4-6; p. 29, ln. 15-p. 30, ln. 14 (November 27, 2007).
43. The food preparation counters, on the side of the Wall where the food crew works, are approximately 34-35 inches from the finished floor. Amended Pretrial Order, Section III, ¶ 34; TR, at p. 28, lns. 6-8; p. 29, ln. 15-p. 30, ln. 14 (November 27, 2007).
*7 44. A portion of the food preparation counter, approximately four feet in length, extends beyond the Wall and is completely unobstructed. That portion of the counter consists of the expo station4 and the cash register station, and meets the requirements of the ADAAG. Amended Pretrial Order, Section III, ¶ 51; TR, at p. 31, lns. 24-25; p. 32, lns. 1-4 (November 27, 2007); TR, at p. 219, lns. 7-15 (November 29, 2007).
V. The View for People in Wheelchairs 45. The average eye level of persons in wheelchairs is between 43 and 51 inches from the finished floor. [Stip. Fact No. 35.]
46. If a person’s eyes are at a height of 51 inches, and are 12 inches from the wall at the food service line, the person can see no portion of the food service counter, the food items available for selection, or the preparation of their food. [Stip. Fact No. 37.]
47. If a person’s eyes are at a height of 43 inches and are 12 inches from the wall at the food service line, the person can see no portion of the food service counter, the food items available for selection, or the preparation of their food. [Stip. Fact No. 38.]
VI. The Ordering Process at Defendant’s Restaurants 48. Customers who order their food in the Restaurants place their food orders in the Restaurants’ food service line. The food service line consists of several stations. The first station is the tortilla station, where the customer is asked which type of entrée he or she would like (a burrito, burrito bol, or tacos). Amended Pretrial Order, Section III, ¶ 13; TR, at p. 17, lns. 2-6; p. 17, ln. 24-p. 19, ln. 7 (November 27, 2007).
49. If a customer selects a burrito, the tortilla is warmed at the tortilla station and then sent to the hot well table where the selected ingredients are placed on the tortilla. Amended Pretrial Order. Section III. ¶ 14; TR, at p. 17, lns. 2-9; p. 17, ln. 24-p. 19, ln. 7 (November 27, 2007).
50. The tortilla is then sent to the salsa station where additional items are placed on it and the burrito is then folded and wrapped. The salsa station includes salsa, guacamole, cheese and lettuce. Amended Pretrial Order, Section III, ¶ 15; TR, at p. 17, lns. 11-13; p. 17, ln. 24-p. 19, ln. 7 (November 27, 2007).
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
51. The customer finally proceeds to the cash register, where he or she pays for his or her order. Amended Pretrial Order, Section III, ¶ 15; TR, at p. 17, lns. 11-13; p. 17, ln. 24-p. 19, ln. 7 (November 27, 2007).
52. Defendant’s employees provide customers, particularly first-time customers, with in-depth explanations of each of the items available on the menu. TR, at p. 204, In. 18-p. 205, In. 18 (November 29, 2007).
53. It is common for customers to look up at the menu boards in the course of selecting and customizing their entrées. TR, at p. 203, ln. 22-p. 204, ln. 2 (November 29, 2007).
54. Customers make their food selections by looking at the large menu boards hung above the food preparation counters at the Restaurants and communicating with the crew employees. The menu boards describe the entrées and ingredients available at the Restaurants. TR, at p. 92, ln. 20-p. 93, ln. 20 (November 27, 2007); TR, at p. 204, ln. 18-p. 205, ln. 18; p. 207, lns. 2-12; p. 247, ln. 21-p. 248, ln. 5 (November 29, 2007); Ex. 13, at pp. T-1-T-5.
*8 55. Printed menus containing descriptions of the entrées and food ingredients are also available for customers to use in selecting their entrées. TR, at p. 222, lns. 5-19 (November 29, 2007); TR, at p. 450, lns. 8-17 (November 30, 2007); TR, at p. 600, ln. 13-p. 601, ln. 15 (December 3, 2007).
56. Defendant’s employees are trained to take any steps necessary to ensure that each and every customer’s experience meets with the desires and needs he or she expresses to the crew members and that the experience is 100% enjoyable. TR, at p. 211, lns. 1-16 (November 29, 2007); TR, at p. 576, lns. 6-25 (November 30, 2007).
57. Defendant understands that people “eat with their eyes.” TR, at p. 117, lns 21-23, Ex. 1, p. 10-1666. (November 29, 2007).
58. Some people are visual eaters and if the food looks good, they will want to eat it. TR, at p. 112, lns. 6-11. (November 29, 2007).
59. In order to ascertain whether a customer may require special assistance with the ordering process, Chipotle employees are trained to look for and read customers’ oral communications and non-oral cues, the latter of which includes “body language” and customers who look confused, customers who intently study the menu board, or customers who are craning their neck to see behind the food serving counter. TR, at p. 217, lns. 9-16 (November 29.2007); TR, at 531, ln. 24-532, ln. 12; p. 533, ln. 9-p. 534, ln. 10 (November 30, 2007); TR, at p. 600, ln. 13-p. 601, ln. 15; p. 618, lns. 12-15; p. 636, ln. 22-p. 637, ln. 8 (December 3, 2007).
60. Some customers do not want to have food ingredients described to them or to interact with the Defendant’s employees behind the food service counter. In such cases, the Defendant’s employees act in accordance with the customer’s wishes. TR, at p. 538, ln. 19-p. 539, ln. 25 (November 30, 2007).
61. Defendant’s employees are trained to orally repeat each food ingredient requested by the customer as the customer proceeds down the food service line in order to ensure that the correct ingredients are placed on the customer’s order and that no mistakes are made. TR, at p. 207, lns. 2-12 (November 29, 2007).
62. If at any point a customer believes that a mistake has been made in the preparation of his or her entrée, Defendant will prepare a new entrée for the customer free of charge upon request. TR, at p. 206, ln. 16-p. 207, ln. 1 (November 29, 2007).
63. Not all standing customers at the Restaurants order their food in the same way. TR, at p. 204, lns. 3-5 (November 29, 2007).
64. Not all standing customers at the Restaurants are tall enough to see over the Wall. Those customers cannot see the food ingredients in the pans behind the Wall, unless some accommodation is provided. TR, at p. 204, lns. 6-17 (November 29, 2007).
65. Defendant has always made accommodations for all customers-including customers in wheelchairs and non-disabled standing customers who are not tall enough to see over the Wall-who indicate, either through oral or non-oral cues, a desire to see the food ingredients on the food preparation counters or to see their entrées being made. Those accommodations include describing the food ingredients to the customer, showing the customer samples of food ingredients in serving spoons
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or portion cups, or assembling the customer’s entrée at the expo station or at a table in the seating area. TR, at p. 216, lns. 5-22; p. 217, lns. 9-p. 218, ln. 19; p. 219, ln. 20-p. 220, ln. 6 (November 29, 2007); TR at p. 542, ln. 8-p. 543, ln. 3: p. 584, ln. 14-p. 585, ln. 7 (November 30, 2007); TR, at p. 599, ln. 19-p. 604, ln. 12; p. 618, lns. 12-15 (December 3, 2007).
*9 66. Defendant has determined that the temperature of the food, along with the appearance and color of the food, affects the flavor of the food. The food is required to be served “hot from the grill .” TR, at p. 117, lns. 2-5; Ex. 1, p. 10-1700.
67. The ingredients of a burrito do not lose their freshness or heat if they are brought to a customer at a table in the seating area. TR, at p. 540, lns 7-16 (November 30, 2007).
68. The Restaurants possess a stock of four ounce portion cups that can be used to display or sample food ingredients for customers. Those potion cups hold Chipotle’s standard serving size of four ounces for each ingredient. TR, at p. 36, lns. 11-18; p. 177, lns. 13-18 (November 27, 2007).5
69. Standing customers who can see over the Wall are only able to see the top layer of the food in the pan. TR, at p. 462, ln. 17-p. 463, ln. 4 (November 29, 2007).
70. Throughput is a measure of how quickly customers can proceed through the food serving lines at Chipotle’s restaurants. Throughput is measured differently at each Chipotle restaurant. While the starting point for tracking throughput may vary, the end point is always the moment at which a customer completes his or her transaction at the cash register. TR, at p. 208, lns. 12-15; p. 315, lns. 11-17; p. 329, ln. 11-p. 331, ln. 8 (November 29, 2007).
71. Considerations of throughput are secondary to ensuring that each customer receives outstanding personalized service. Any conflict between throughput and excellent customer service are resolved in favor of affording each customer personalized attention to his or her needs or desires. TR, at p. 211, ln. 1-p. 213, ln. 7; p. 330, ln. 13-p. 330, ln. 22 (November 29, 2007).
72. During Matthew Cieslak’s tenure as General Manager of the Pacific Beach Restaurant, the average time at that Restaurant for a customer to proceed from the tortilla station (at the start of the food service line) through the cash register station (at the end of the food service line) was approximately two minutes. TR, at p. 208, ln. 16-p. 209, ln. 2 (November 29, 2007).
73. Customers with multiple orders, children, or special requests, or first-time customers, frequently take longer than two minutes to proceed from the tortilla station to the cash register station. Serving a first-time customer can take up to ten minutes. TR, at p. 209, lns. 5-22; p. 345, ln. 15-p. 346, ln. 3 (November 29, 2007).
74. Defendant has always trained its restaurant employees to identify first-time customers, and to accommodate them by asking them if they would like to have Chipotle’s menu, food ingredients, and food preparation process described to them, if they would like to sample the food, or some combination of those options. TR, at p. 303, lns. 13-25 (November 29, 2007).
75. Accommodating first-time customers can require Chipotle employees to spend more time assisting those customers than is typically necessary to serve regular customers. TR, at p. 303, lns. 13-25 (November 29, 2007).
*10 76. A customer who requests to have his or her entrée assembled at the expo station will not impede other customers from ordering or paying for their food, because those other customers are allowed and physically able to proceed past the customer who is having his or her entrée assembled at the expo station directly to the cash registers. TR, at p. 218, ln. 20-p. 219, ln. 19 (November 29, 2007).
77. The cash station is one of the slowest parts of the food service line. Therefore, a customer who requires above-average time to proceed from the tortilla station through the salsa station on the food serving line will not necessarily adversely affect the time that it takes the customers behind him or her to proceed through the line. TR, at p. 341, ln. 22-p. 342, ln. 14 (November 29, 2007).
78. At Chipotle the appearance of the food in the serving pans behind the Wall has always been of secondary importance to the appearance of the food once it has been prepared and served to the customer. TR, at p. 203, lns. 13-18 (November 29.2007).
79. The most important aspect of the Chipotle experience is the experience of eating and enjoying one’s food. TR, at p. 641, lns. 14-21 (December 3, 2007).
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VII. Chipotle’s Culture and Philosophy of Customer Service 80. Historically, the culture and philosophy of Chipotle has been to pass on internal information regarding the company’s policies and practices orally and not in writing. TR, at p. 520, ln. 25-p. 522, ln. 5 (November 30, 2007).
81. The “WOW Factor” is a term that Chipotle has coined to describe its policy of going above and beyond its customers’ expectations with respect to customer service. Examples of applications of the “WOW Factor” include, but are not limited to, purchasing a customer’s food if he or she has lost or forgotten his or her wallet, offering to buy food for a regular customer’s colleagues, calling a tow truck if a customer is experiencing difficulties with his or her car, visiting a customer at a table to check on him or her after he or she has purchased an entrée, offering samples of the food ingredients, and helping a customer to his or her table. TR, at p. 213, ln. 24-p. 215, ln. 10 (November 29, 2007).
82. All of Defendant’s employees are trained on its policy of exceeding customers’ expectations with respect to customer service. That training consists of the materials in Chipotle’s management guide “The Know” and personal instruction from one Chipotle employee to another. TR, at p. 215, ln. 11-24; TR, at p. 333, ln. 2-p. 335, ln. 11 (November 29, 2007).
83. “The Know” is a reference guide for Chipotle’s restaurant managers. It contains all of the information that Chipotle’s managers are required to know, including information regarding the company’s policies and practices. TR, at p. 520, ln. 25-p. 522, ln. 5 (November 30, 2007).
84. One method by which Chipotle’s policies and practices are conveyed to its employees is through the restaurant General Manager’s pre- and post-shift meetings with his or her managers and crew members. TR, at p. 522, ln. 6-p. 523, ln. 8 (November 30, 2007).
*11 85. A significant aspect of Chipotle’s employee training consists of “shoulder-to-shoulder” training, in which restaurant employees teach and learn from one another about Chipotle’s practices and policies, both written and unwritten, by working in close proximity with one another and observing one another. TR, at p. 333, ln. 13-334, ln. 8 (November 29, 2007).
VIII. Chipotle’s Previous Practice of Accommodating All Customers 86. At all times prior to the implementation of the written Customers with Disabilities Policy in the spring of 2007. Defendant maintained a philosophy and practice of accommodating any customer-including, but not limited to, customers in wheelchairs-who wanted to see the available food ingredients or watch the preparation of their food. That practice included a requirement that employees of the Restaurants show customers in wheelchairs samples of the food ingredients in serving spoons or portion cups, or assemble the customer’s food at the expo station or at a table in the Restaurants’ seating areas. This practice of accommodating customers with disabilities has always been part of the Company’s overall commitment to providing excellent customer service, commonly referred to within Chipotle as “the WOW Factor.” TR, at p. 196, lns. 8-12; p. 215, ln. 25-p. 216, ln. 22; p. 327, ln. 7-p. 328, ln. 15; p. 335, ln. 12-16 (November 29, 2007; TR, at p. 530, lns. 22-24; p. 576, lns. 6-25 (November 30, 2007); TR, at p. 599, ln. 19-p. 603, ln. 22 (December 3, 2007).
87. Under this practice, Chipotle’s restaurant employees have always been trained to look for non-oral cues from a customer, such as confused looks or intense review of the menu boards or printed menus, as potential requests for assistance, and, based on such non-oral cues, to offer to accommodate that customer. TR, at p. 217, ln. 9-p. 217, ln. 9-p. 218, ln. 19 (November 29, 2007); TR, at 531, ln. 24-p. 532, ln. 12; p. 533, ln. 9-p. 534, ln. 10 (November 30, 2007); TR, at p. 600, ln. 13-p. 601, ln. 15; p. 618, ln. 12-15 (December 3, 2007).
88. Ron Sedillo was first instructed on Chipotle’s practice of accommodating customers with disabilities when he was being trained as a restaurant General Manager in 1998. TR, at p. 332, ln. 17-p. 333, ln. 12; p. 335, ln. 12-p. 336, ln. 4 (November 29, 2007); TR, at p. 509, ln. 20-p. 511, ln. 7 (November 30, 2007).
89. Ron Sedillo has served customers in wheelchairs by preparing a burrito at a table in the restaurant’s seating area, and has, on more than one occasion, witnessed other Chipotle employees preparing burritos for wheelchair users at tables in the restaurant’s seating area. TR, at p. 336, ln. 5-p. 337, ln. 16; p. 343, lns. 14-20 (November 29, 2007).
90. During the period in which Ben Williams was employed as the General Manager of the Pacific Beach Restaurant, he
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
understood that Chipotle’s philosophy and practice of going above and beyond its customers’ expectations with respect to customer service required him and his employees to accommodate customers with disabilities, including customers in wheelchairs, who required or who otherwise appeared to need assistance in placing their orders. He understood that customer service philosophy and practice to require that his employees raise samples of food ingredients, or assemble a customer’s entrée at the expo station or at a table in the restaurant’s seating area. TR, at p. 583, ln. 14-p. 585, ln. 7 (November 30, 2007).
*12 91. During the period in which Matthew Cieslak was employed as the General Manager of the Pacific Beach Restaurant, he understood that as part of the “Wow Factor” he and his employees were required to accommodate customers with disabilities, including customers in wheelchairs, who requested or otherwise appeared to need assistance in placing their orders. He understood Chipotle’s customer service philosophy and practice to require that he and his employees raise samples of food ingredients, tilt the pans containing the food ingredients to allow customers to see the contents of the pans, or assemble a customer’s entrée at the expo station or at a table in the restaurant’s seating area. TR, at p. 215, ln. 25-p. 216, ln. 22; p. 217, lns. 9-16 (November 29, 2007).
92. The aforementioned accommodations have always been available to all customers who are not tall enough to see over the Wall and who indicate, either orally or through non-oral cues, a desire to see the food ingredients on the foot preparation counters. TR, at p. 217, ln. 9-p. 218, ln. 19; p. 219, ln. 20-p. 220, ln. 6 (November 29, 2007).
93. Matthew Cieslak provided such accommodations, and witnessed other employees providing such accommodations, to customers at the Pacific Beach Restaurant during his tenure as the General Manager of that restaurant. TR, at p. 217, ln. 21-p. 218, ln. 19 (November 29, 2007).
94. Matthew Cieslak personally served a customer in a wheelchair on several occasions while he was the General Manager of the Pacific Beach Restaurant. He asked the customer if there was any assistance he could provide him, and the customer declined assistance because the customer knew exactly what he wanted. The customer was able to proceed through the food service line as quickly and easily as standing customers who could see over the Wall at the restaurant. TR, at p. 220, ln. 8-p. 221, ln. 2; p. 245, ln. 20-p.246, ln. 4; p. 247, ln. 12-20 (November 29, 2007).
95. During his tenure as the General Manager of the Pacific Beach Restaurant Matthew Cieslak never received any complaints from any customers in wheelchairs stating that they could not see the food ingredients or that they could not see their entrées being assembled. TR, at p. 221, lns. 9-23 (November 29, 2007).
96. During his tenure as General Manager of the Pacific Beach Restaurant, Matthew Cieslak was responsible for training the employees of that restaurant. TR, at p. 37, lns. 16-18 (November 27, 2007).
97. As General Manager of the Pacific Beach Restaurant, Matthew Cieslak trained the restaurant’s employees in Chipotle’s general policy of excellent customer service. TR, at p. 213, ln. 21-23 (November 27, 2007).
98. As General Manager of the Encinitas Restaurant, Maritza Arriaga has applied Chipotle’s general policy of providing excellent customer service to customers with disabilities. On one occasion, Ms. Arriaga served two elderly women who entered her store using walkers. Ms. Arriaga noticed that the women had sat down at a table without entering the food service line. Ms. Arriaga approached the women, introduced herself, provided them with written menus and described the food to them in detail. The women asked Ms. Arriaga to place their orders for them. She did so, and promptly brought the orders to their table. The women appeared to Ms. Arriaga to be pleased with the service they had received. TR, at p. 600, ln. 13-p. 601, ln. 15 (December 3, 2007).
*13 99. Even before the implementation of the written Customers With Disabilities Policy, Chipotle’s managers and employees were evaluated on their adherence to the company’s culture, philosophy and practice of providing excellent customer service, which, as set forth above, included a general requirement to accommodate customers with disabilities or customers with special needs. TR, at p. 528, lns. 15-25 (November 30, 2007).
100. Defendant has never received any complaint from any customer in a wheelchair at the Restaurants (other than Plaintiff’s lawsuit). TR, at p. 642, ln. 6-p. 643, ln. 7 (December 3, 2007).
IX. Chipotle’s Written Customers with Disabilities Policy 101. In February of 2007, Chipotle implemented a nationwide “Customers With Disabilities Policy” setting forth in writing,
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methods to continue providing excellent customer service to all its customers, including customers with disabilities. The written policy was intended to improve Defendant’s customer service to disabled customers by giving its managers and employees clearer directions with respect to the service of customers with disabilities in particular. TR, at p. 319, ln. 20-p. 321, ln. 17 (November 29, 2007); TR, at p. 524, ln. 9-p. 525, ln. 12; p. 534, lns. 11-20 (November 30, 2007).
102. Between February and May of 2007, Chipotle conducted a nationwide rollout of the Customers With Disabilities Policy, which included training at the restaurant level and at the two Restaurants that are the subject of this case. TR, at p. 525, ln. 25-p. 528, ln. 3; p. 575, ln. 16-p. 576, ln. 5; p. 581, ln. 20-p. 583, ln. 9; p. 592, ln. 3-25 (November 30, 2007); TR, at p. 599, lns. 7-18; p. 605, ln. 18-p. 606, ln. 22; p. 624, ln. 13-23; TR, at p. 626, lns. 10-19 (December 3, 2007).
103. In early February 2007, Chipotle disseminated the Customers With Disabilities Policy to its Human Resources Training Directors, who supervise the training of Chipotle’s employees in the field, and its Operations Directors, who oversee each of the markets in which the restaurant has presence. Each of Chipotle’s Human Resources Training Directors and Operations Directors was fully familiarized with the Customers With Disabilities Policy. On or about February 26, 2007, Chipotle provided a written copy of the Customers With Disabilities Policy to each of its Regional Directors, Operations Directors, and Human Resources Training Directors by electronic mail. Ronald Sedillo then began attending Regional Meetings and Operations Meetings around the country where he discussed with Chipotle’s Area Managers, Regional Staff, Operations Directors and Human Resources Training Directors; the Customers With Disabilities Policy, its importance, and the proper manner in which it was to be carried out. The Operations Directors, in turn, ensured that the Area Managers were thoroughly familiarized with the policy, and the Area Managers, in turn, ensured that Chipotle’s General Managers were fully trained in the policy. The General Managers then ensured that their management teams and crew members fully understood the policy. Finally, the Customers With Disabilities Policy was officially incorporated into the Know. TR, at p. 525, ln. 25-p. 527, ln. 20; p. 581, ln. 20-p. 583, ln. 9 (November 30, 2007); TR, p. 599, lns. 7-99 (December 3, 2007).
*14 104. As part of the training on the Customers With Disabilities Policy that was rolled out to the employees of the Encinitas Restaurant. Ben Williams held an Area patch meeting in May of 2007 at which Mr. Williams discussed the Customers With Disabilities Policy in detail with all of the General Managers and Apprentice Managers within his Area-including Maritza Arriaga. During the patch meeting, Mr. Williams had his managers act out role playing scenarios involving customers with disabilities to illustrate how the new policy regarding the accommodation of customers with disabilities should implemented. TR, at p. 578, lns. 1-25 (November 30, 2007); TR, p. 592, ln. 3-25 (December 3, 2007).
105. Ms. Arriaga, the current General Manager of the Encinitas Restaurant, was informed of the written Customers With Disabilities Policy by e-mail in April of 2007, and subsequently attended the May 2007 Area patch meeting that Ben Williams held. Ms. Arriaga subsequently trained the managers and crew members in the Encinitas Restaurant on the Customers With Disabilities Policy by orally reviewing the policy, and providing examples of the policy in practice. Some of this training took place in meetings Ms. Arriaga held with her staff in between their shifts. TR, at p. 578, lns. 1-25 (November 30, 2007); TR, p. 592, lns. 3-25; p. 599, lns. 9-18; p. 605, ln. 18-p. 606, ln. 22 (December 3, 2005).
106. Kevin Kupper, the current General Manager of the Pacific Beach Restaurant, was instructed on how to carry out the Customers With Disabilities Policy by his Area Manager in a patch meeting in May of 2007. TR, at p. 624, ln. 13-23 (December 3, 2007).
107. Kevin Kupper trained his employees in the Pacific Beach Restaurant on the Customers With Disabilities Policy by, among other things, discussing the policy with his managers and crew members before the start of their shifts. TR, at p. 527, ln. 21-p. 528, ln. 3 (November 30, 2007); TR, at p. 636, lns. 10-19 (December 3, 2007).
108. New managers that come up through the ranks of Chipotle’s employees are trained on the Customers With Disabilities Policy by their senior managers. Restaurant managers who join Chipotle from outside the company receive training on the Customers With Disabilities Policy during their orientation. TR, at p. 575, ln. 16-p. 576, ln. 5 (November 30, 2007).
109. Defendant ensures that its employees adhere to the Customers With Disabilities Policy through the company’s employee review process. Defendant’s restaurant crew members are evaluated twice a year. Defendant’s restaurant managers are reviewed quarterly (and are eligible for a raise one review period each year). During each review process, the Area Managers and Operations Directors responsible for supervising the restaurant managers and employees in the geographic areas under their supervision review all aspects of a restaurant’s performance including its employees’ adherence to Chipotle’s policies. TR, at p. 5234, ln. 9-p. 524, ln. 8; p. 528; lns. 4-14 (November 30, 2007); Ex. 10.
*15 110. Defendant’s Customers With Disabilities Policy provides as follows: 10

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
Excellent customer service is of paramount importance at every Chipotle restaurant at all times. A customer with a disability (for example, a visual or mobility impairment) may benefit from some alternative means of presenting or describing our food. In all such cases the restaurant staff will offer a suitable accommodation based on the individual circumstances, and will be responsive to the customer’s requests. Depending on the circumstances, our crew member or manager may ask the customer if we can accommodate them during their visit. Examples of some of the ways we accommodate individuals include:
1. Samples of the food can be placed in soufflé cups and shown or handed to the customer.
2. Some customers may prefer an opportunity to see or even sample the food at a table.
3. Customers may simply wish to have the food or food preparation process described to them.
4. Or combinations of the above accommodations with any other reasonable accommodation requested or appropriate for the individual.
The point of good customer service is that it has to be personalized. It is the manager and crew’s responsibility to ensure that the experience a customer with a disability has is excellent.
Consideration of throughput, productivity or efficiency are secondary to ensuring a positive experience for disabled customers. Crew members are encouraged to inform their Restaurant Manager regarding the experiences of their disabled customers and such experiences will be considered during the performance review process, both for the crew member and the manager.
The above example details a scenario involving only a visual or mobility impaired customer. Other disabilities may exist among our customers and it is our policy at Chipotle to make good faith, reasonable accommodations for all of our disabled customers. This practice is consistent with our goal of providing excellent customer service to all of our customers. TR, at p. 525, lns. 13-24; p. 529, ln. 1-p. 530, ln. 20 (November 30, 2007) Ex. 10.
111. Under the Customers With Disabilities Policy, the manager on duty at the Restaurants (who can be a General Manager, Apprentice Manager, or Service Manager) is responsible for greeting any customer with a disability, whom the manager does not recognize to be a regular customer, at the tortilla station and determining what, if any, accommodations is required. The manager on duty first inquires if the customer has been to a Chipotle restaurant before. If the customer responds that he or she has been to a Chipotle restaurant before, the manager on duty is required to inform the customer to “let me know if I can help you or if you need anything.” If the customer responds that he or she has not been to Chipotle restaurant before, the manager on duty is required to inform the customer of the accommodations available to him or her. Specifically, the manager on duty must affirmatively inform the customer that the manager can describe the menu in detail to the customer, show the food to the customer, have the customer sample the food, take the food ingredients to the expo station and assemble the customer’s entrée there, take the food ingredients to a table in the dining area and assemble the customer’s entrée there, or a combination of any of those accommodations. TR, at p. 319, ln. 20-p. 321, ln. 3; p. 349, lns. 4-18; p. 350, ln. 9-p. 351, ln. 1 (November 29, 2007); TR, at p. 580, ln. 16-p. 581, ln. 19 (November 30, 2007); TR, at p. 598, ln. 14-p. 599, ln. 8; TR, at p. 623, ln. 17-p. 624, ln. 12, p. 624, ln. 24-p. 625, ln. 19 (December 3, 2007).
*16 112. The written Customers With Disabilities Policy did not change the substantive accommodations available to Chipotle’s customers, all of which have always been available to both able-bodied and disabled customers alike. Rather, the written Customers With Disabilities Policy focused and clarified Chipotle’s prior accommodations practices to customers with disabilities in particular. It also imposed two new requirements with respect to the process of applying those preexisting accommodations to customers with disabilities in particular. First, it established that it is the responsibility of the manager on duty at the restaurant, rather than his or her crew members, to carry out the policy (by requiring the manager on duty to greet a customer with a disability and inquire as to whether he or she desires any accommodations as soon as he or she approaches the tortilla station in the food serving line). Second, it established that the manager on duty must affirmatively inform the customer with a disability of the various accommodations options without waiting for the customer to request them. TR, at p. 337, ln. 25-p. 338, ln. 11; p. 339, ln. 6-p. 340, ln. 9 (November 29, 2007); TR, at p. 585, lns. 16-24 (November 30, 2007); TR, at p. 603, ln. 23-p. 604, ln. 12 (December 3, 2007).
113. Where a manager identifies a customer with a disability as a regular customer of the restaurant and where that customer, through oral or non-oral cues, has previously indicated whether and how he or she wants to be accommodated, the manager will attend to that customer based on his or her previously indicated preferences. TR, at p. 340, ln. 10-p. 341, ln. 21
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(November 29, 2007); TR, at p. 621, lns. 9-19; TR, at p. 625, ln. 20-p. 626, ln. 9; p. 627, ln. 19-p. 628, ln. 4; p. 636, ln. 22-p. 637, ln. 12 (December 3, 2007).
114. For example, if on previous visits a regular customer with a disability has indicated that he or she wanted to have food shown to him or her, the manager on duty will offer to show him or her food ingredients on future visits. TR, at p. 304, lns. 14-25 (November 29, 2007).
115. However, even if a regular customer with a disability has declined accommodations on previous visits, if on a future visit he or she provides any non-oral cues that he or she may want to see the food ingredients, such as craning his or her neck while in the food service line, the manager on duty will observe those cues and offer to accommodate the customer at that time. TR, at p. 636, ln. 22-p. 637, ln. 12 (December 3, 2007).
116. Since the creation of the Customers With Disabilities Policy, Maritza Arriaga has witnessed her Apprentice Manager apply it on at least one occasion at the Encinitas Restaurant. Specifically, Ms. Arriaga witnessed a recent incident in which her Apprentice Manager immediately greeted a customer in a wheelchair who entered the Encinitas Restaurant and asked him if he had ever been to a Chipotle restaurant before. Based on Ms. Arriaga’s observation, the customer appeared to be familiar with Chipotle’s restaurants and appeared to decline her Apprentice’s offer of assistance. Based on Ms. Arriaga’s continued observation, the customer did not appear confused or frustrated at any point as he proceeded through the food serving line. TR, at p. 604, ln. 13-p. 605, ln. 10; p. 607, ln. 25-p. 609, ln. 3 (December 3, 2007).
*17 117. Kevin Kupper, as General Manager of the Pacific Beach Restaurant, has personally served at least one customer in a wheelchair at the Pacific Beach Restaurant since the implementation of the Customers With Disabilities Policy. Mr. Kupper first served that customer immediately before Chipotle disseminated the Customers With Disabilities Policy. Even under the prior practice of accommodating customers with special needs, Mr. Kupper took the initiative to greet that customer and ask him if there was any way he could be of assistance. That particular customer responded that he was not interested in any accommodations, and proceeded quickly through the food service line. In his subsequent visits to the Pacific Beach Restaurant, including his visits to the restaurant since the creation of the written Customers With Disabilities Policy, that customer has never indicated, either orally or through non-oral cues, that he desired to see samples of the food or desired any other accommodations. TR, at p. 626, ln. 20-p. 628, ln. 4; p. 635, ln. 23-p. 636, ln. 14 (December 3, 2007).
118. Since implementing the new written Customers With Disabilities Policy, Chipotle has not received any complaints from any customer in a wheelchair regarding the accessibility of the Pacific Beach or Encinitas Restaurants. TR, at p. 463, ln. 25-p. 465, ln. 5 (November 30, 2007); TR, at p. 593, ln. 1-20; p. 642, ln. 6-p. 643, ln. 10; TR, at p. 606, ln. 23-p. 607, ln. 24; p. 628, lns. 5-24 (December 3, 2007).
X. Plaintiff’s Visits to the Restaurants 119. Although the Pacific Beach Restaurant is within walking distance of his house, Plaintiff has not visited that restaurant since October 6, 2006. TR, at p. 422, lns. 17-20; p. 425, ln. 24-p. 426, ln. 11 (November 30, 2007).
120. Plaintiff has not visited either of the Restaurants since the written Customers With Disabilities Policy was implemented. TR, at p. 321, lns. 4-17; p. 376, lns. 19-21 (November 29, 2007); TR, at p. 422, ln. 21-423, ln. 7; p. 425, ln. 24-p. 426, ln. 11 (November 30, 2007).
121. Plaintiff admitted at trial that, with respect to each and every visit that he made to the Encinitas and Pacific Beach Restaurants, he enjoyed the entrée he received and found nothing wrong with his order. TR, at p. 435, ln. 24-p. 436, ln. 4; p. 451, ln. 24-p. 452, ln. 22 (November 30, 2007).
122. Plaintiff admitted at trial that during each and every one of his visits to the Pacific Beach and Encinitas Restaurants, Chipotle’s employees were polite and never rude to him. TR, at p. 451, lns. 12-23; p. 459, lns. 12-14 (November 30, 2007).
123. Plaintiff admitted at trial that, to his knowledge, during each and every one of his visits to the Pacific Beach and Encinitas Restaurants, his fellow customers were never rude to or impatient with him. TR, at p. 453, lns. 4-10; p. 459, lns. 15-17 (November 30, 2007).
124. Plaintiff testified that he visited the Encinitas Restaurant on two occasions, and that one of those two visits was the October 6, 2006 site inspection conducted in connection with this litigation. TR, at p. 425, ln. 24-p. 426, ln. 11 (November
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
30, 2007).
*18 125. Plaintiff testified that he first visited the Encinitas Restaurant in February of 2005. He testified that he was accompanied on this first visit by his son, who, although not disabled, could not see over the Wall without accommodation. Plaintiff admitted at trial that he understood how to use the menu board at the Encinitas Restaurant, and used it to place his and his son’s orders. TR, at p. 433, lns. 5-22 (November 30, 2007).
126. During his February 2005 visit to the Encinitas Restaurant, Plaintiff did not review any of the printed menus that were available to him in the restaurant. TR, at p. 450, lns. 4-19 (November 30, 2007).
127. During his first visit to the Encinitas Restaurant, Plaintiff did not ask any Chipotle employee to show him any samples of the food ingredients. TR, at p. 435, lns. 1-3 (November 30, 2007).
128. Plaintiff’s February 2005 visit to the Encinitas Restaurant was his only visit to that Restaurant either before or after filing this lawsuit (except for his site inspection). TR, at p. 425, ln. 24-p. 426, ln. 11 (November 30, 2007).
129. Plaintiff testified that he first visited the Pacific Beach Restaurant in February of 2005, approximately one week after his first visit to the Encinitas Restaurant. TR, at p. 436, lns. 5-8 (November 30, 2007).
130. Plaintiff admitted at trial that he returned to the Pacific Beach Restaurant three days before his deposition in order to repeat what he claims was a “bad experience.” Plaintiff admitted that the purpose of that visit was to prepare for his deposition and gather information for his claims against Chipotle. TR, at p. 442, ln. 4-p. 443, ln. 1; p. 453, ln. 19-p. 454, ln. 3 (November 30, 2007).
131. Plaintiff’s most recent visit to the Pacific Beach Restaurant was the October 6, 2006 site inspection of that Restaurant. TR, at p. 376, lns. 19-21 (November 29, 2007); TR, at p. 422, ln. 21-423, ln. 7; p. 425, ln. 24-p. 426, ln. 11 (November 30, 2007).
132. During the Pacific Beach Restaurant site inspection, Plaintiff was shown each of the food ingredients he requested to see as he moved down the food service line. TR, at p. 376, ln. 19-p. 377, ln. 5 (November 29, 2007); TR, at p. 455, ln. 23-456, ln. 3; p. 459, lns. 6-11 (November 30, 2007).
133. During the Pacific Beach Restaurant site inspection Plaintiff did not request to see the food in the pans behind the Wall or to have his entrée prepared at the expo station or at a dinning table. TR, at p. 457, ln. 21-p. 458, ln. 5 (November 30, 2007).
134. Plaintiff’s most recent visit to the Encinitas Restaurant was the October 6, 2006 site inspection of that restaurant conducted by Plaintiff during the discovery process in this litigation. TR, at p. 376, lns. 19-21 (November 29, 2007); TR, at p. 422, ln. 21-423, ln. 7 (November 30, 2007).
135. During the Encinitas Restaurant site inspection, Plaintiff was shown each of the food ingredients he requested to see as he moved down the food service line by the restaurant’s General Manager, Maritza Arriaga. TR, at p. 376, ln. 19-p. 377, ln. 5 (November 29, 2007); TR, at p. 455, ln. 23-456, ln. 3; p. 459, lns. 6-11 (November 30, 2007); TR, at p. 601, ln. 24-p. 603, ln. 22 (December 3, 2007).
*19 136. During the Encinitas Restaurant site inspection, as Ms. Arriaga held up samples of the food ingredients for Plaintiff to see, she described each ingredient and asked Plaintiff if the items she showed him were acceptable. Plaintiff indicated yes or no to each item, and indicated to Ms. Arriaga, through both oral communications and non-oral cues, that the accommodations she had provided to him were acceptable. Indeed, Plaintiff indicated to Ms. Arriaga that he was satisfied with the service he had received. TR, at p. 601, ln. 24-p. 603, ln. 22 (December 3, 2007); Ex. 6.
137. During the site inspection of the Encinitas Restaurant, Ms. Arriaga showed Plaintiff the exact portions of each ingredient that she was placing into his burrito before placing the ingredient in the burrito. Plaintiff did not indicate that he wanted more or less of any of the food ingredients he was shown. TR, at p. 601, ln. 24-p. 603, ln. 22; p. 611, ln. 25-p. 612, ln. 19 (December 3, 2007); Ex. 6.
138. During the site inspection of the Encinitas Restaurant Plaintiff did not provide Ms. Arriaga with any non-oral cues indicating that he was frustrated, dissatisfied or desired further accommodations than those that had been provided. To the
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
contrary, by affirmatively informing Ms. Arriaga that the samples of food that she showed him were acceptable, and by indicating through oral communications and non-oral cues that the service was acceptable, Plaintiff gave Chipotle every reason to believe that he was satisfied with its service and that he did not need or desire any further accommodations. TR, at p. 457, ln. 21-p. 458, ln. 5 (November 30, 2007); p. 601, ln. 24-p. 603, lns. 1-22; p. 615, lns. 16-20; p. 618, lns. 8-22 (December 3, 2007); Ex. 6.
139. Plaintiff was able to communicate effectively with the Chipotle employees who served him during the site inspections of the Encinitas and Pacific Beach Restaurants. TR, at p. 458, ln. 9-p. 459, ln. 11 (November 30, 2007).
140. Plaintiff admitted that, during the site inspections of the Restaurants, he found the samples that he was shown by the employees who served him (all of which represented actual serving sizes) to be very helpful in determining what to order. TR, at p. 463, lns. 16-21 (November 30, 2007).
141. During the site inspections, it took Plaintiff approximately three minutes to proceed through the food service line. TR, at p. 405, lns. 19-21 (November 30, 2007).
142. During the site inspections, it took Plaintiff only one minute longer to proceed through the food service lines of the Pacific Beach and Encinitas Restaurants than it takes an average customer to proceed through those lines, and significantly less time than it takes some first-time customers to proceed through the food service line. TR, at p. 208, ln. 16-p. 209, ln. 2; p. 345, ln. 15-p. 346, ln. 3 (November 29, 2007); TR, at p. 405, lns. 19-21 (November 30, 2007).
143. Chipotle has never received any complaints from any customers in wheelchairs regarding the accessibility of the Pacific Beach or Encinitas Restaurants. TR, at p. 463, ln. 25-p. 465, ln. 5 (November 30, 2007); TR, at p. 593, lns. 1-20; p. 642, ln. 6-p. 643, ln. 10; TR, at p. 606, ln. 23-p. 607, ln. 24; p. 628, lns. 5-24 (December 3, 2007).
*20 144. Neither Plaintiff nor his representatives made any effort to contact Chipotle’s management to complain about his experiences at the Restaurants before filing this lawsuit. TR, at p. 437, ln. 6-p. 438, ln. 20 (November 30, 2007).
XI. Parking at the Encinitas and Pacific Beach Restaurants 145. Plaintiff did not introduce any evidence at trial that he encountered any barriers to his ability to use the handicapped parking spaces at the Encinitas Restaurant.
146. Plaintiff testified that he encountered barriers in using the handicapped parking spaces on two occasions when he drove to the Pacific Beach Restaurant-namely, that a curb ramp protruded into the access aisle and the handicapped parking spaces. TR, at p. 420, ln. 6-p. 422, ln. 16 (November 30, 2007).
Conclusions of Law
I. Equivalent Facilitation CL1. The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., was enacted on July 26, 1990. The primary purpose of the ADA was to provide a “clear and comprehensive national mandate for the elimination of discrimination” with “clear, strong, consistent, enforceable standards” to address such discrimination. See 42 U.S.C. § 12101(b)(1), (2).
CL2. Plaintiff’s ADA claims in this action are based on Title III of the ADA. Section 302 of Title III prohibits discrimination against disabled individuals in any place of public accommodation. 42 U.S.C. § 12182. Restaurants, bars and other establishments serving food or drink are public accommodations within the meaning of the ADA. 42 U.S.C. § 12181(7).
CL3. Section 302 of Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ....“ 42 U.S.C. § 12182(a).
CL4. Title III gives the Department of Justice the authority to develop regulations implementing the requirements of the
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
anti-discrimination requirements of the statute. 42 U.S.C. §§ 12183(a)(1), 12186(b).
CL5. Pursuant to that authority the Department of Justice has adopted the ADAAG, which set forth general construction guidelines to ensure that new facilities are accessible to persons with disabilities. 28 C.F.R. §§ 36.401(a)(1), (c)(1), 36.402(a)(1), Appendix B-Preamble to Regulations on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 56 Fed.Reg. 35,546 (July 26, 1991), p. 593. Failure of newly constructed facilities (such as the Encinitas and Pacific Beach Restaurants) to abide by the construction guidelines in the ADAAG violates the ADA. Id.; 42 U.S.C. § 12183(a)(1).
CL6. A violation of Title III of the ADA also constitutes a violation of the CDPA. Cal. Civ.Code § 54(c), (d). Under the CDPA, a plaintiff may only recover damages for each visit to a noncompliant place of public accommodation or each specific instance in which a plaintiff is deterred from attempting to visit a non-compliant place of public accommodation; CDPA damages may not be awarded for each alleged architectural barrier a plaintiff encountered during a single visit to a noncompliant place of public accommodation. See Cal. Civ.Code § 54.3(a); Molski v. Rapazzini Winery, 400 F.Supp.2d 1208, 1211 (N.D.Cal.2005); Organization for the Advancement of Minorities with Disabilities v. Pacific Heights Inn, 2006 US. Dist. LEXIS 2049, *8-9 (N.D.Cal. Jan. 20, 2006); Martinez v. Longs Drugs Stores, 2005 U.S. Dist. LEXIS 39236, *6 (E.D.Cal. August 25, 2005).
*21 CL7. This Court held in its June 14, 2007 Order on the Parties’ Cross Motions for Summary Judgment that the food preparation counters in Chipotle’s restaurants must comply with the requirements of ADAAG Section 7.2(2), which governs sales and service counters that may not have a cash register but at which goods or services are sold or distributed. Section 7.2(2) of the ADAAG requires that either:
(1) a portion of the main counter which is a minimum of 36 in (915 mm) in length shall be provided with a maximum height of 36 in (915 mm); or
(2) an auxiliary counter with a maximum height of 36 in (915 mm) in close proximity to the main counter shall be provided; or
(3) equivalent facilitation shall be provided.
Antoninetti v. Chipotle Mexican Grill, Inc., Case No. 05CV1660-J, Order on the Parties’ Motions For Summary Judgment, at 10-13 (S.D. Cal., June 14, 2007) (Jones, J.); 28 C.F.R. § 36, Appendix A § 7.2(2).
CL8. This Court also found in its Order on the Parties’ Cross Motions for Summary Judgment that the portion of the food service counter where the cash registers are located (the transaction station), which is approximately 35 inches high, does not satisfy the requirements of subsections (i) and (ii) of Section 7.2(2). Antoninetti v. Chipotle Mexican Grill, Inc., Case No. 05CV1660-J, Order on the Parties’ Motions For Summary Judgment, at 10-13 (S.D. Cal., June 14, 2007) (Jones, J.). However, the Court found that Chipotle’s practice and policy of providing accommodations to customers with disabilities may constitute an equivalent facilitation under Section 7.2(2)(iii), depending on the resolution of factual disputes at trial. Id.
CL9. Under ADAAG Section 2.2, “departures from particular technical and scoping requirements of the ADAAG by the use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility.” 28 C.F.R. § 36, Appendix A §§ 2.2, 7.2(2)(iii).
CL10. Policies and practices that provide substantially equivalent or greater access to and usability of a facility constitute a form of equivalent facilitation. Antoninetti v. Chipotle Mexican Grill, Inc., Case No. 05CV 1660-J, 2007 WL 2456223, *4 (S.D.Cal., August 23, 2007); 28 C.F.R. § 36, Appendix A § 7.2(2)(iii); Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698, 727(D.Or.1997); Access 4 All, Inc. v. The Atlantic Hotel Condominium Association, LLC, Case No. 04-61740 CIV COHN, 2005 U.S. Dist. LEXIS 41601, *47 (S.D.Fla. November 22, 2005).
CL11. A defendant who chooses to utilize alternative methods that it believes will provide equal or greater access has the burden of demonstrating that the alternative design or technology qualifies as an equivalent facilitation. Ind. Living Center v. Oregon Arena, 982 F.Supp. 698, 727; and see TAM (1994 supp.) § III-7.2100.
A. Defendant’s Unwritten Practice of Accommodations is not Equivalent Facilitation.
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
*22 CL12. Defendant’s prior informal policy provided no directive to its employees about the methods that must be utilized to accommodate people in wheelchairs who want to see the food ingredients available for their entrées. Under the unwritten practice of providing all customers, including customers with disabilities, excellent customer service; Defendant attempted to provide customers in wheelchairs with an experience that was similar to the experience of standing customers. However, its managers and crew were to use their own judgment and common sense to determine when and how to accommodate a customer in a wheelchair. This subjective interpretation and enforcement of Defendant’s informal Policy rendered the unwritten policy incapable of uniform enforcement or a confidant conclusion that these actions were equivalent facilitation.
CL13. California Civil Code Section 54 provides that people with disabilities are entitled to the same rights as non-disabled to the full and free use of public buildings, public facilities and other public places. Civil Code Section 54 also provides that any violation of the Americans with Disabilities Act is a violation of Section 54(c). California Civil Code Section 54.3 also provides monetary damages to the plaintiff in the amount of $1000.00 for each and every offense of Civil Code Section 54.
CL14. Evidence at trial provided that Plaintiff was a bona fide customer, and thus entitled to damages for Defendant’s failure to provide equivalent facilitation, to the Restaurants on at least five occasions. The Court FINDS that Plaintiff is not entitled to recover any damages in connection with his visit to the Pacific Beach Restaurant three days before his deposition or in connection with site-inspection visits to the two Restaurants, because, in each instance, he was not a bona fide customer but rather was visiting those Restaurants as a litigant for the purpose of gathering evidence to support his claims in this litigation. Accordingly, Plaintiff is entitled to $1000.00 for each visit to Chipotle as a bona fide customer before the filing of the lawsuit.
B. Defendant’s Current Customers With Disabilities Policy is an Equivalent Facilitation. CL15. This Court also finds that Defendant has met its burden of establishing that its Customers With Disabilities Policy provides Plaintiff (and other customers in wheelchairs) with substantially equal or greater access to its facilities.
CL16. Unlike the prior unwritten policy, the written Customers With Disabilities Policy imposes two new requirements that render it equivalent facilitation where the prior unwritten policy is not. Under the written Customers With Disabilities Policy, the pre-existing accommodations that Chipotle provided as part of its mission for excellent customer service are set forth plainly with two new requirements: (1) it is established that it is the responsibility of the manager on duty at the Restaurant, rather than his or her crew members, to carry out the policy (by requiring the manager on duty to greet a customer with a disability and inquire as to whether he or she desires any accommodations as soon as he or she approaches the tortilla station in the food serving line) and (2) it established that the manager on duty must affirmatively inform the customer with a disability of the various accommodations options without waiting for the customer to request them through oral communications or non-oral cues.
*23 CL17. The written policy, unlike the informal policy, describes at least three accommodations for customers in wheelchairs which provide substantially equal access to Chipotle facilities. Under the written policy, the manager on duty is directed to greet customers in wheelchairs at the first station of the food service line and, if he or she does not recognize the individual as a regular customer, ask the individual if he or she has ever been to a Chipotle restaurant. If the customer responds that he or she has been to a Chipotle restaurant, the manager will advise the customer to alert the manager if he or she would like any assistance in placing his or her order. If the customer responds that he or she has never been to a Chipotle restaurant before, the manager on duty will affirmatively inform the customer of the different ways that Chipotle can accommodate him or her during the ordering process. Specifically, the manager will suggest that Chipotle employees can lift samples of the food ingredients using tongs or spoons, provide the customer with samples of each of the food items that the customer would like to see or taste in clear plastic portion cups, allow the customer to watch his or her entrée being assembled either at the expo station at the end of the food service line, or at a table in the dining area of the restaurant. If the manager recognizes a customer with a disability as a regular customer of the restaurant, the manager will then apply his or her knowledge of the customer and the customer’s past requests and preferences to determine whether the customer desires or needs any accommodations. Where a regular customer repeatedly requests a certain kind of accommodation, that accommodation will be provided automatically by the manager. Where the customer indicates that he or she does not desire any accommodation, on subsequent visits the manager will not continue to inquire as to whether that customer desires accommodation, unless the customer indicates either orally or through non-oral cues that he or she may want or need to be accommodated. Chipotle’s managers are taught to observe both oral and non-oral cures from its customers, and to offer additional services to customers based on those cues.
CL18. Defendant presented uncontroverted evidence that since the Customers with Disabilities Policy was created in
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
February of 2007, the company has trained all of the managerial and crew member employees in the Restaurant on the Policy. Furthermore, both General Managers of the Restaurants (Maritza Arriaga and Kevin Kupper) testified that they themselves have either personally applied the Customers With Disabilities Policy or witnessed it being applied by one of their managers. Chipotle also presented uncontroverted evidence that there have been no complaints made against Chipotle by customers in wheelchairs regarding the acessiblity of the Restaurants (either before or after the implementation of the Customers with Disabilities Policy).
*24 CL19. Plaintiff has presented no evidence to rebut the existence or effectiveness of the Customers With Disabilities Policy itself, or of the training of Chipotle’s employees at the Restaurants concerning the Policy. In fact, aside from his visit to the Pacific Beach Restaurant which he testified was for the purpose of preparing for his deposition, and the site inspections of the Restaurants conducted as part of the discovery process in this litigation, Plaintiff has not visited the Restaurants after the Customers With Disabilities Policy was implemented.
CL20. For these reasons, the Court FINDS that Defendant’s current Customers With Disabilities Policy provides Plaintiff (and other customers in wheelchairs) with equivalent facilitation under ADAAG Sections 2.2 and 7.2(2)(iii).
II. Injunctive Relief CL21. The remedies available under Title III of the ADA are limited to injunctive relief, including injunctive relief to require the defendant to alter facilities to make such facilities “readily accessible to and usable by persons with disabilities,” or, where appropriate, injunctive relief “requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods.” 42 U.S.C. § 12188(a)(2); 42 U.S.C. § 2000a-3(a). The same injunctive relief is available under the CDPA. Cal. Civ.Code § 54.3(a).
CL22. Injunctive relief is an equitable remedy, and is not available as a matter of course. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982). The specific elements that must be proven in order to obtain injunctive relief are: (1) an irreparable injury; (2) inadequacy of legal remedies; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest. Walters v. Reno, 145 F.3d 1032, 1048 (9th Cir.1998); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.1983). It is the plaintiff’s burden to establish these elements. West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 956 (11th Cir.1982). Injunctive relief should be denied unless it is the only means of ensuring compliance. Weinberger at 314.
CL23. A plaintiff seeking injunctive relief under the ADA “must demonstrate that an injunction ... is justified by the relief it will provide.” Access Now, Inc. v. South Florida Stadium Corporation, 161 F.Supp.2d 1357, 1369 (S.D.Fla.2001). “[W]hether a requested alteration would be effective is relative to the impediment presented by the barrier and the associated cost of removing it.” Id., at 1369-70.
CL24. Here, Plaintiff seeks an injunction requiring Chipotle to lower the Wall at the Restaurants to a maximum height of 36 inches. For the following reasons, this Court FINDS that Plaintiff has failed to satisfy his evidentiary burden for his requested injunctive relief.
CL25. This Court FINDS that Plaintiff has failed to satisfy his burden of establishing the existence of any irreparable injury.
CL26. First, the uncontroverted evidence is that Plaintiff never visited either of the Restaurants as a bono fide customer after the implementation of the written Customers With Disabilities Policy; for this reason alone, he has failed to present any credible evidence that Chipotle’s current accommodations policy and practices do not provide him with an equivalent facilitation. Chipotle, on the other hand, has presented uncontroverted evidence that its Customers With Disabilities Policy is effective, and that, since its implementation, there have been no complaints by any customers in wheelchairs regarding the accessibility of the Restaurants’ food serving lines.
*25 CL27. Second, in order to establish the existence of irreparable injury, Plaintiff must prove that he in fact plans to return to the Restaurants. Molski v. Kahn Winery, 405 F.Supp.2d 1160,1164 (C.D .Cal.2005). Where a plaintiff’s plans to return to an establishment are not “concrete,” the court must satisfy itself that a plaintiff’s professed intent to return is sincere and supported by the facts. Molski, 405 F.Supp.2d at 1164. In determining whether a plaintiff has a sincere intent to return, the Court may consider the plaintiff’s litigation history. Id. (citing plaintiff’s litigation history, as particularly telling with regards to his credibility as a witness and his professed intent to return to the defendant’s establishment).
CL28. Based on the evidence presented at trial, this Court FINDS that Plaintiff’s purported desire to return to the Restaurants 17

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
is neither concrete nor sincere or supported by the facts. Plaintiff only visited the Encinitas Restaurant once (disregarding his site inspection conducted during the discovery process in this litigation). That sole visit took place nearly three years ago, in February 2005. This uncontroverted evidence belies Plaintiff’s contention that he intends to return to the Encinitas Restaurant. Even with respect to the Pacific Beach Restaurant, which Plaintiff testified was located within walking distance of his home, Plaintiff has not returned to that Restaurant since October 2006-over a year ago. He testified that he first visited the Pacific Beach Restaurant in February 2005, and that, most recently, he visited the Restaurant twice in early October 2006 as a litigant (i.e., in order to prepare for his deposition and for the site inspections). Aside from these three visits, Plaintiff testified at trial that he was unable to recall the dates (or even the exact number) of his other visits to the Pacific Beach Restaurant-other than that they all occurred after he filed this lawsuit in August 2005. Based on this evidence alone, this Court FINDS that Plaintiff has failed to meet his burden that he intends to return to either of the Restaurants.
CL29. Plaintiff’s history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the Restaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment. In particular:
i. Plaintiff filed an accessibility lawsuit against San Diego Pier Café without making any pre-lawsuit attempt to resolve his concerns with the restaurant’s management. Plaintiff settled that lawsuit for a cash payment, and never returned to the restaurant.
ii. Plaintiff filed two accessibility lawsuits against Dixieline Lumber Company without making any pre-lawsuit attempt to resolve his concerns with that company’s corporate management. Plaintiff settled that lawsuit for a cash payment.
*26 iii. Plaintiff filed an accessibility lawsuit against a Holiday Inn hotel in downtown Los Angeles, after visiting that hotel only once and without making any pre-lawsuit attempt to resolve his concerns with the hotel’s corporate management. Plaintiff settled that lawsuit for a cash payment, and never returned to the hotel.
iv. Plaintiff filed an accessibility lawsuit against a restaurant called Mr. Bertrand without making any pre-lawsuit attempt to resolve his concerns with the restaurant. Plaintiff settled that lawsuit for a cash payment, and never returned to the restaurant.
v. Furthermore, on one occasion Plaintiff filed lawsuits against at least eighteen different businesses based on a one-day visit to a shopping mall in Oceanside. Plaintiff had never shopped at that mall before. He did not visit the mall as a customer. Rather, Plaintiff visited that mall at the suggestion of a plaintiffs’ side law firm specializing in the area of accessibility law for which Plaintiff had previously served as an paid accessibility/expert witness more than fifty times, and because he hoped that the law firm would retain him as a paid accessibility consultant/expert witness in any accessibility lawsuit(s) that it would file against the mall stores. Plaintiff brought with him to his visit a measuring tape and camera for the purpose of looking for accessibility violations. As a result of his visit to the mall, Plaintiff agreed to be, and in fact became, a named plaintiff in accessibility lawsuits against at least eighteen separate businesses that had stores at the mall. Even though he had gone to the mall for the purpose of looking for accessibility violations with the hope of being retained as a paid consultant/expert witness, Plaintiff alleged in the mall lawsuits that he had suffered bodily injury as a result of his visits to the stores. Plaintiff did not make any pre-litigation attempt to resolve his concerns with the management of the businesses that he sued. Plaintiff settled these lawsuits for cash payments, and never returned to the mall.
CL30. Based on these facts, this Court FINDS that Plaintiff has failed to satisfy the required showing of irreparable injury. For these reasons, Plaintiff’s demand for injunctive relief is DENIED.
CL31. This Court also FINDS that Plaintiff has failed to meet his burden of proof that the requested injunction is in the public interest, particularly in light of Chipotle’s uncontroverted evidence that it has served customers in wheelchairs at the Restaurants both before and after the written Customers With Disabilities Policy was implemented, and that it has never received any complaint from a customer in wheelchair regarding the accessibility of the food serving lines at the Restaurants.
CL32. Finally, this Court FINDS that Plaintiff has failed to satisfy his burden that the requested injunction “is justified by the relief it will provide.” Access Now, Inc., 161 F.Supp.2d at 1369. Plaintiff presented no evidence at trial either as to the reasons that Chipotle designed the Wall at the height that it did, or as to the cost or feasibility of enjoining Chipotle to lower the Wall to a maximum of 36 inches. While Plaintiff and his expert witness testified that other restaurants have lower walls, such testimony does not constitute evidence as to the cost or feasibility of enjoining Chipotle to lower its counters. Furthermore, the Court finds the photograph of the Subway store taken by Plaintiff’s expert witness (which, as the last page
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Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2008)
of Exhibit 71, was admitted into evidence) uninformative and unpersuasive because it does not fully and accurately depict the entire height of the wall from the floor to the bottom of the glass sneeze guard. In any event, the Subway photo seems to show that the wall at the Subway store also exceeded 36 inches in height.
*27 CL33. For these reasons, this Court DENIES Plaintiff’s demand for injunctive relief under the ADA and the CDPA.
III. Damages For The Parking Lots CL34. Plaintiff seeks the statutory minimum of $1000.00 in damages for each occasion on which he visited the Restaurants and encountered barriers to his ability to use the handicapped parking spaces at those Restaurants.
CL35. At trial Plaintiff identified two occasions when he encountered the alleged barriers to his ability to use the handicapped parking space at the Pacific Beach Restaurant.
CL36. Plaintiff failed to present any evidence at trial establishing any occasions where he encountered alleged barriers to his ability to use the handicapped parking space at the Encinitas Restaurant.
CL37. Accordingly, Plaintiff is entitled to $2000.00 for his claims relating to the Pacific Beach Restaurant parking lot, and is not entitled to recover any damages for any alleged accessibility violations relating to the Encinitas parking lot.
IV. Plaintiff’s Damages Award CL38. Having found that Defendant’s prior unwritten policy was not equivalent facilitation under 7.2(2)iii of the ADAAG, and that Plaintiff was a bona fide customer to the Restaurants on five total occasions (once to the Encinitas Restaurant and four times to the Pacific Beach Restaurant); Plaintiff is entitled to $1000.00 for each visit to the Restaurants. Accordingly, the Court awards Plaintiff a total of $5000.00 for Defendant’s violation of the ADA and CDPA.
CL39. Although Plaintiff suffered harm at the parking lot of the Pacific Beach Restaurant on two occasions, the CDPA provides does not provide damages for each and every architectural barrier that a Plaintiff encounters. Thus, although Defendant’s failure to comply with the ADA with regards to the parking barriers does entitle Plaintiff to relief, that relief is capped at the $1000.00 that Plaintiff is already awarded for Defendant’s failure to provide Plaintiff with equivalent facilitation within the Restaurants.
Conclusion
While the Court is sympathetic to Plaintiff’s, and other customers with disabilities, request to have the same Chipotle experience that standing customers have, the evidence suggests that Defendant’s new written policy will provide a substantially equivalent experience for customers with disabilities. Absent evidence to the contrary, and with the understanding that the ADA does not require that establishments provide exactly the same experience for disabled customers as they do for non-disabled customers, the Court finds that Defendant’s written Customers With Disabilities Policy does provide equivalent facilitation. For the above reasons, the Court FINDS that Defendant’s Customers With Disabilities Policy provides equivalent facilitation under the guidelines of ADAAG 7.2(2)iii. Additionally, the Court AWARDS Plaintiff $5000.00, and no more, for Defendant’s failure to accommodate under the rules of the ADA and CDPA during Plaintiff’s visits to Chipotle before the implementation of the Customers With Disabilities Policy.
*28 IT IS SO ORDERED.
Parallel Citations
36 NDLR P 83
Footnotes 19

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1

Plaintiff also had asserted a claim under the California Unruh Civil Rights Act (“Unruh Act”). Since a party seeking damages and

other relief under the CDPA may not also seek relief under the Unruh Act, see Cal. Civ.Code § 54.3(c), Plaintiff abandoned his

Unruh Act claim in favor of his CDPA claim.

2

Plaintiff also claimed that the Restaurants’ men’s restrooms, seating areas and parking areas were inaccessible and that the

entrances to the Pacific Beach Restaurant were inaccessible. This Court adjudicated these claims in its June 17, 2007 summary

judgment order. In particular, this Court; granted Defendant’s Motion for Summary Judgment as to Plaintiff’s ADA and CDPA

claims regarding the restrooms and seating areas of the two Restaurants and the entrances to the Pacific Beach Restaurant; granted

Defendant’s Motion for Summary Judgment as to Plaintiff’s ADA claim regarding the Restaurants’ parking lots because Defendant

had made alterations to the parking lots after the filing of Plaintiff’s suit to ensure compliance with the ADA; and granted

Plaintiff’s Motion for Summary Judgment as to his CDPA damages claim related to the Restaurants’ parking lots because the

parking lots did not comply with the ADA prior to Defendant’s alterations.

3

Plaintiff’s only complaint about any of the burritos he received was that on one occasion the ingredients in his burrito were not

“mixed” as well as they had been on previous occasions. Defendant asserts that its employees do not “mix” the ingredients in a

burrito prior to rolling the burrito. Rather, the ingredients requested by a customer are stacked, one on top of the other, on the

burrito, and the burrito is simply rolled. TR, at p. 17, ln. 2-p. 19, ln. 7 (November 27, 2007); TR, at p. 451, ln. 24-p. 452, ln. 22

(November 30, 2007).

4

The expo station is a portion of empty space on the counter where the cash register is located between the salsa station and the cash

register. The expo station is approximately 2½ to 3 feet in width. TR, at p. 172, lns. 17-19 (November 27, 2007); TR, at p. 219, lns.

7-15 (November 29, 2007).

5

For a period of time the serving size for rice was 5 ounces. That serving size has been reduced to 4 ounces. TR, at p. 108, lns. 5-13;

p. 177, ln. 19-p. 178, ln. 8.

20

 
 Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2009)
2009 WL 1390811
This decision was reviewed by West editorial staff and not assigned editorial enhancements. United States District Court, S.D. California.
Maurizio ANTONINETTI, Plaintiff, v.
CHIPOTLE MEXICAN GRILL, INC., and Does 1 Through 10, inclusive, Defendants.
Civil No. 05CV1660–J (WMc) | Related to & Consolidated for Discovery with No. 06cv2671 (Wmc). | May 15, 2009.
Attorneys and Law Firms
Amy B. Vandeveld, Law Office of Amy B. Vandeveld, San Diego, CA, for Plaintiff.
Gregory Francis Hurley, Jeanne V. McKee, Greenberg Traurig LLP, Irvine, CA, John Francis Scalia, Matthew Sorensen, Greenberg Traurig, McLean, VA, Jonathan J. Herzog, William S. Weston, Weston Herzog, Glendale, CA, Michael W. Skorupka, Messner and Reeves, Denver, CO, for Defendants.
Opinion
ORDER GRANTING DEFENDANT’S AMENDED MOTION TO STAY [DOC. NO. 295]
NAPOLEON A. JONES, JR., District Judge.
*1 Before the Court is Defendant Chipotle Mexican Grill, Inc.’s amended motion to stay proceedings to enforce this Court’s order awarding attorney’s fees to Plaintiff Maurizio Antoninetti pending the outcome of Defendant’s cross-appeal. [Doc. No. 295.] For the reasons set forth below, the Court GRANTS Defendant’s Motion.
Background
Plaintiff Maurizio Antoninetti initiated this action against Defendant Chipotle Mexican Grill, Inc. in 2005 alleging various violations of the Americans with Disabilities Act (ADA) and the California Disabled Persons Act (CDPA). Plaintiff asserted that architectural barriers denied Plaintiff full and equal access to two of Defendant’s restaurants and sought monetary damages, injunctive relief, and declaratory relief. This Court held a bench trial in this action November 27–December 3, 2007. At trial, the Court made the following findings: (1) Defendant’s prior practice of accommodating customers with disabilities, including customers in wheelchairs, did not constitute equivalent facilitation under section 7.2.(2)(iii) of the ADA Accessibility Guidelines; (2) Defendant’s current written Customers with Disabilities Policy constitutes equivalent facilitation under Section 7.2(2)(iii); (3) Plaintiff is not entitled to an injunction requiring Defendant to lower the wall in front of the restaurants’ food preparation counters; and (4) Plaintiff is entitled to a total of $5,000.00 in damages for the occasions on which he encountered barriers to his entrance into Defendant’s restaurants.
On May 5, 2008 Plaintiff filed a Motion for Attorney’s Fees and Costs pursuant to 42 U.S.C. § 12205 in which he sought $550,651.33 in fees and expenses. [Doc. No. 241.] The Court granted Plaintiff’s Motion for Attorney’s Fees and Costs in part, finding that Plaintiff was entitled to reasonable attorneys’ fees for time spent litigating the issues upon which Plaintiff prevailed at trial—those related to equal facilitation under the unwritten customer policy and damages for violations of California Civil Code Sections 54 and 54.3—as well as for time spent litigating issues that were necessarily intertwined with those issues—namely, the issues regarding Defendant’s parking lot violations and any related ADA claims. [Doc. No. 271.] The Court further ordered Plaintiff to “submit a copy of his Bill of Costs so the Court may determine a reasonable amount for
1

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2009)
attorneys’ fees.” (Id.) On February 6, 2009, the Court awarded Plaintiff attorney’s fees in the amount of $136,537.83. [Doc. No. 288.]
On March 2, 2009, Plaintiff filed a Notice of Appeal. [Doc. No. 289.] On March 16, 2009, Defendant filed a Notice of Cross Appeal. [Doc. No. 294.] Defendant filed the present Amended Motion to Stay on March 17, 2009. [Doc. No. 295.] Plaintiff subsequently filed a Notice of Non–Opposition to Defendant’s Motion to Stay. [Doc. No. 298.]
Legal Standard
Federal Rule of Civil Procedure 62(d) (“Rule 62(d)”) allows for a stay of the execution of a final judgment pending appeal when the moving party posts a supersedeas bond. Rule 62(d) states, in relevant part: “If an appeal is taken, the appellant may obtain a stay by supersedeas bond .... The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond.” FED. R. CIV. P. 62(d).
*2 Pursuant to this Rule, “[d]istrict courts have inherent discretionary authority in setting supersedeas bonds.” Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1505 n. 1 (9th Cir.1987). This includes “discretion to allow other forms of judgment guarantee,” Int’l Telemeter, Corp. v. Hamlin Int’l Corp., 754 F.2d 1492, 1495 (9th Cir.1985), and “broad discretionary power to waive the bond requirement if it sees fit.” Townsend v. Holman Consulting Corp., 881 F.2d 788, 796–97 (9th Cir.1989). However, the standard practice of district courts is to require that “the supersedeas bond be a surety bond, and that it be for the full amount of the judgment plus interest, costs, and an estimate of any damages attributed to the delay.” 12 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 62.03 (Matthew Bender 3d ed.2004). The Ninth Circuit has also approved of imposing a bond that represents the full amount of the judgment: “The purpose of a supersedeas bond is to secure the appellees from a loss resulting from the stay of execution and a full supersedeas bond should therefore be required.” Rachel, 831 F.2d at 1505 n. 1.
Where a party wishes to post a bond in an amount less than the full judgment, the burden is on the moving party to show reasons for the departure from the normal practice. Poplar Grove Planting & Ref. Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.1979). Among the grounds that may justify waiver of the bond requirement are: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment; (4) whether the defendant’s ability to pay the judgment is so plain that the cost of a bond would be a waste of money; and (5) whether the defendant is in such a precarious financial situation that the requirement to post a bond would place other creditors of the defendant in an insecure position. See United States v. Simmons, 2002 WL 1477460 at *1 (E.D.Cal.) (citing Dillon v. City of Chicago, 866 F.2d 902, 904–05 (7th Cir.1988)).
Discussion
Defendant seeks a stay of proceedings to enforce this Court’s Order Denying Plaintiff’s Motion for Reconsideration and Granting in Part and Denying in Part Plaintiff’s Amended Bill of Costs, which was entered on February 6, 2009 (“February 6, 2009 Order”). Defendant argues that it is entitled to a stay of the proceedings upon posting “a bond with the Court in an amount to be determined by the Court.” (Mem of P. & A. at 5.)
The February 6, 2009 Order is a final appealable order that provided only monetary relief to Plaintiff—it awarded Plaintiff $136,537.83 in attorney’s fees. A party appealing a district court’s entry of a money judgment is entitled to a stay of the money judgment as a matter of right if he posts a bond in accordance with Rule 62(d). Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 87 S.Ct. 1, 3, 17 L.Ed.2d 37 (1966) (mem.). Therefore, Defendant is entitled to a stay upon posting a bond. Because the standard practice among district courts is to require a supersedeas bond in the full amount of the judgment, Rachel, 831 F.2d at 1505, and Defendant has not offered any reasons to depart from this practice, the Court ORDERS Defendant to post a bond in the amount of $136,537.83.
2

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2009) Conclusion
*3 For the foregoing reasons, the Court GRANTS Defendant Chipotle’s Amended Motion to Stay. [Doc. No. 295.] Any proceedings to enforce this Court’s February 6, 2009 Order will be stayed upon Defendant’s posting of a supersedeas bond for $136,537.83, representing the full amount of the judgment against Defendant. Such a bond must be posted in accordance with Civil Local Rule 65.1 .2. IT IS SO ORDERED. Parallel Citations 39 NDLR P 87
3

 
 Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 1 of 8

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 MAURIZIO ANTONINETTI, JEAN RIKER,

11

JAMES PERKINS, KAREN FRIEDMAN and MICHAEL RIFKIN, on behalf of themselves

12 and all others similarly situated,

Civil No. 06cv2671-LAB (POR)

Plaintiffs, 13

v. 14
CHIPOTLE MEXICAN GRILL, INC., a 15 Colorado Corporation and DOES 1-10,
Inclusive,

16

Defendants.

NOTICE AND ORDER REGARDING EARLY NEUTRAL EVALUATION

17 IT IS HEREBY ORDERED that an Early Neutral Evaluation of your case shall be held on
18 February 12, 2007 at 2:00 p.m. in the Chambers of the Honorable Louisa S. Porter, United States
19 Magistrate Judge, 940 Front Street, First Floor, San Diego, California 92101.
20 Pursuant to Local Rule 16.1(c) of the Local Rules of the United States District Court for the
21 Southern District of California, all counsel, all parties, and any other person(s) whose authority is
22 required to negotiate and enter into settlement shall appear in person at the conference, shall be
23 prepared to discuss the claims and defenses, and shall be legally and factually prepared to discuss
24 and resolve the case at the Early Neutral Evaluation Conference. The parties must be prepared to
25 present demands and offers of settlement. Corporate counsel and/or retained outside corporate
26 counsel shall not appear on behalf of a corporation as the party who has the authority to negotiate
27 and enter into a settlement. Counsel for any non-English speaking parties is responsible for
28 arranging for the appearance of an interpreter at the conference. Failure of required counsel and

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06cv2671

Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 2 of 8

1 parties to appear in person will be cause for the imposition of sanctions. All conference discussions

2 will be informal, off the record, privileged, and confidential.

3

Based upon the Court’s familiarity with these matters and in the interest of promoting the

4 just, efficient, and economical disposition of this action, IT IS HEREBY ORDERED:

5

1. All formal discovery shall be stayed in this case until the completion of the Early

6 Neutral Evaluation Conference scheduled herein.

7

2. Twenty-one days prior to the Early Neutral Evaluation Conference, Plaintiffs’

8 counsel shall lodge an Early Neutral Evaluation Statement in the chambers of the Honorable Louisa

9 S. Porter and serve a copy of the statement on counsel for all parties. The Statement shall not

10 exceed two pages and shall include:

11

a. An itemized list of specific issues on the subject premises which are the basis

12

of the claimed violations under the Americans with Disabilities Act;

13

b. A statement of the amount and category of damages claimed by Plaintiffs in

14

this action;

15

c. The amount claimed for attorney’s fees and costs; and,

16

d. Plaintiffs’ demand for settlement of the case in its entirety.

17

3. After service of Plaintiffs’ Statement and not later than 14 days prior to the Early

18 Neutral Evaluation Conference, lead counsel responsible for the case and any unrepresented

19 parties, along with property managers of commercial locations, shall meet and confer in person at

20 the subject premises regarding settlement of: 1) the alleged premise violations, and 2) damages,

21 costs, and attorney fee claims. All counsel appearing in the case shall be responsible to make the

22 arrangements for the on-site conference. The meet and confer obligation cannot be satisfied by

23 telephone or the exchange of letters. No later than seven days prior to Early Neutral Evaluation

24 Conference, counsel shall lodge a joint statement in the chambers of the Honorable Louisa S. Porter

25 certifying that the required in-person conference between counsel has taken place, advising the

26 Court of the status of settlement negotiations, setting forth all issues in dispute, including property

27 issues, Plaintiffs’ alleged damages, and the claim for attorney’s fees and costs, along with a

28 description of any settlement demands and/or offers exchanged.

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Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 3 of 8

1

4. Plaintiffs’ counsel shall be prepared to present documentation to the Court, at the

2 Early Neutral Evaluation Conference, to support the amount of attorney’s fees and costs claimed for

3 in camera review.

4

5. Plaintiffs’ counsel shall serve a copy of this order on all parties that appear in this

5 case after the date of this order.

6

6. In the event the case does not settle at the Early Neutral Evaluation Conference, the

7 parties shall also be prepared to discuss the following matters at the conclusion of the conference:

8

a. Any anticipated objections under Federal Rule of Civil Procedure 26(a)(1)(E)

9

to the initial disclosure provisions of Federal Rule of Civil Procedure

10

26(a)(1)(A-D);

11

b. The scheduling of the Federal Rule of Civil Procedure 26(f) conference;

12

c. The date of initial disclosure and the date for lodging the discovery plan

13

following the Rule 26(f) conference; and,

14

d. The scheduling of a Case Management Conference pursuant to Federal Rule

15

of Civil Procedure 16(b).

16

The Court will issue an order following the Early Neutral Evaluation Conference addressing

17 these issues and setting dates as appropriate.

18

7. The Court directs counsel to Federal Rule of Civil Procedure 26(d) which states,

19 “[e]xcept in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E), or

20 when authorized under these rules or by order; or agreement of the parties, a party may not seek

21 discovery from any source before the parties have conferred as required by Rule 26(f).” (emphasis

22 added).

23

Early Neutral Evaluation Conferences shall be rescheduled only upon a showing of good

24 cause and adequate notice to the Court. If counsel wish to reschedule this conference, they shall

25 contact the Court at least seven days prior to the conference. Absent exceptional circumstances, the

26 Court will not reschedule this conference with less than seven days notice. Only in extreme

27 circumstances will the Court reschedule this conference with less than 24 hours notice.

28 The Court reminds counsel and parties that conferences held beyond 45 days of the filing of an

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Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 4 of 8

1 answer are contrary to Rule 16.1(c) of the Civil Local Rules, and are seriously disfavored by the

2 Court.

3

Counsel are directed to the court’s website, www.casd.uscourts.gov, for review of the

4 chambers’ rules of the assigned District Judge.

5

Questions regarding this case may be directed to Judge Porter’s law clerk, Emily Patajo, at

6 (619) 557-5383.

7

8 DATED: January 5, 2007

9

10
11 cc:
12

The Honorable Larry Alan Burns All parties

LOUISA S PORTER United States Magistrate Judge

13

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Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 5 of 8
NOTICE OF RIGHT TO CONSENT TO TRIAL BEFORE A UNITED STATES MAGISTRATE JUDGE
In accordance with the provisions of 28 U.S.C. § 636(c), you are hereby notified that a U.S. Magistrate Judge of this district may, upon the consent of all parties on form1a (available in the clerk's office), conduct any or all proceedings, including a jury or non-jury trial, and order the entry of a final judgment. Counsel for the plaintiff shall be responsible for obtaining the consent of all parties, should they desire to consent.
You should be aware that your decision to consent or not to consent is entirely voluntary and should be communicated solely to the Clerk of Court. Only if all parties consent will the Judge or Magistrate Judge to whom the case has been assigned be informed of your decision.
Judgments of the U.S. Magistrate Judges are appealable only to the U.S. Court of Appeals in accordance with this statute and the Federal Rules of Appellate Procedure.

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Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 6 of 8
DISCOVERY CONFERENCES
In an effort to save time and expense for all litigants, this Court holds discovery dispute conferences in lieu of formal noticed motions.
Should a discovery dispute arise during the course of the litigation in this case, the following procedure is to be followed:
If a dispute arises during deposition, you are to call the Court for an immediate ruling. If the Court is unable to handle the matter at that moment, you are to proceed with the deposition and the Court will get back to you as soon as possible.
For all other discovery disputes, you are to meet and confer regarding all disputed issues before contacting the Court. If all attorneys are local, you are required to meet and confer in person. If one or all attorneys are out of town, you are to meet and confer by phone. Under no circumstances will the meet and confer requirement be satisfied by written correspondence.
After you have met and conferred, you may contact the Court for a discovery conference date. The court will not consider any discovery matter unless, and until, a declaration of compliance with the meet and confer requirement is received.
In addition to a date for a discovery conference, you will also receive a date by which you are to submit a joint discovery conference statement to the Court.
The joint statement is to include the following:
1. The exact wording of the document or things requested to be produced or the exact wording of the interrogatory or request for admission asked.
2. The exact response to the request by the responding party.
3. A statement by the propounding party as to why the documents should be produced or why the interrogatory or request for admission should be answered.
4. A precise statement by the responding party as to the basis for all objections and/or claims of privilege, including the legal basis for all privileges.

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Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 7 of 8
NOTICE TO ATTORNEYS:
Due to prior abuse of Chambers’ Policy allowing counsel to present discovery disputes to chambers without FULL briefing, counsel shall prepare and submit points and authorities on all discovery disputes. The points and authorities shall not exceed 10 pages per side and shall be submitted along with the joint discovery conference statement. Points and Authorities exceeding 10 pages without prior approval of the court will NOT be considered by the court.

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06cv2671

Case 3:06-cv-02671-BTM-JLB Document 7 Filed 01/05/07 Page 8 of 8
SAMPLE
REQUEST NUMBER 1:
Any and all documents referencing, describing or approving the Metropolitan Correctional Center as a treatment facility for inmate mental health treatment by the Nassau County local mental health director or other government official or agency.
RESPONSE TO REQUEST NUMBER 1:
Objection. This request is overly broad, irrelevant, burdensome, vague and ambiguous and not limited in scope as to time.
PLAINTIFF’S REASON WHY DOCUMENTS SHOULD BE PROVIDED:
This request is directly relevant to the denial of Equal Protection for male inmates. Two women’s jails have specifically qualified Psychiatric Units with certain license to give high quality care to specific inmates with mental deficiencies. Each women’s psychiatric Unit has specialized professional psychiatric treatment staff (i.e., 24 hour psychiatric nurses full time, psychiatric care, psychological care, etc.). Men do not have comparable services. This request will document the discrepancy.
DEFENDANT’S BASIS FOR OBJECTIONS:
This request is not relevant to the issues in the case. Plaintiff does not have a cause of action relating to the disparate psychiatric treatment of male and female inmates. Rather, the issue in this case is limited to the specific care that Plaintiff received.
Should the Court find that the request is relevant, defendant request that it be limited to a specific time frame.

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06cv2671

 
 Case 3:06-cv-02671-BTM-JLB Document 3 Filed 12/28/06 Page 1 of 14

1 GREENBERG TRAURIG, LLP

GREGORY F. HURLEY (SBN 126791) 2 STACEY L. HERTER (SBN 185366)

3 650 Town Center Drive, Suite 1700 Costa Mesa, CA 92626

4 Telephone: (714) 708-6500

Facsimile: (714) 708-6501 5 Email: hurleyg@gtlaw.com

6

herters@gtlaw.com

7 Attorneys for Defendant CHIPOTLE MEXICAN GRILL, INC.
8

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

MAURIZIO ANTONINETTI, JEAN CASE NO.: 06CV-2671-LAB (POR) 12 RIKER, JAMES PERKINS, KAREN

13

FRIEDMAN and MICHAEL

CLASS ACTION - Related to

RIFKIN, on behalf of themselves and USDC No. 05 CV1660 J (WMc)

14 all other similarly situated,

15

Plaintiffs,

16 vs.
17
CHIPOTLE MEXICAN GRILL, 18 INC., a Colorado Corporation and
DOES 1-10, Inclusive,
19

20

Defendants.

CHIPOTLE MEXICAN GRILL INC.'S ANSWER AND AFFIRMATIVE DEFENSES [DEMAND FOR JURY TRIAL]

21

22

23

24

25

26

27

28

ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM-JLB Document 3 Filed 12/28/06 Page 2 of 14

1

Defendant Chipotle Mexican Grill, Inc. answers the Complaint (“Complaint”) in

2 this action and admits, denies and alleges as follows:

3

1. Responding to Paragraph 1 of the Complaint, Chipotle asserts that the

4 allegations in this paragraph constitute argument and legal conclusions to which no

5 response is necessary, and on that basis Chipotle denies each and every allegation in this

6 paragraph.

7

2. Responding to Paragraph 2 of the Complaint, Chipotle lacks the information

8 and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on that basis

9 denies the allegations.

10

3. Responding to Paragraph 3 of the Complaint, Chipotle denies all allegations

11 therein.

12

4. Responding to Paragraph 4 of the Complaint, the Complaint speaks for

13 itself. To the extent Plaintiffs’ characterization of the Complaint is inconsistent with the

14 Complaint, Chipotle denies the characterization.

15

5. Responding to Paragraph 5 of the Complaint, Chipotle denies all allegations

16 therein.

17

6. Responding to Paragraph 6 of the Complaint, Chipotle denies all allegations

18 therein.

19

7. Responding to Paragraph 7 of the Complaint, Chipotle denies all allegations

20 therein.

21

8. Responding to Paragraph 8 of the Complaint, Chipotle denies all allegations

22 therein.

23

9. Responding to Paragraph 9 of the Complaint, Chipotle admits that original

24 jurisdiction in this Court appears to be appropriate pursuant to 28 U.S.C. §§ 1331 and

25 1334.

26

10. Responding to Paragraph 10 of the Complaint, Chipotle admits only that

27 venue appears to be appropriate in this Court pursuant to 28 U.S.C. §§ 1391(b) and (c).

28

1
ANSWER AND AFFIRMATIVE DEFENSES
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1

11. Responding to Paragraph 11 of the Complaint, Chipotle lacks the

2 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

3 that basis denies the allegations.

4

12. Responding to Paragraph 12 of the Complaint, Chipotle lacks the

5 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

6 that basis denies the allegations.

7

13. Responding to Paragraph 13 of the Complaint, Chipotle admits only that it is

8 a Colorado corporation authorized to do business in California, but denies all remaining

9 allegations.

10

14. Responding to Paragraph 14 of the Complaint, Chipotle lacks the

11 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

12 that basis denies the allegations.

13

15. Chipotle incorporates its responses to Paragraphs 1 through 14 of the

14 Complaint by reference as though fully set forth herein.

15

16. Responding to Paragraph 16 of the Complaint, Chipotle lacks the

16 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

17 that basis denies the allegations.

18

17. Responding to Paragraph 17 of the Complaint, Chipotle lacks the

19 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

20 that basis denies the allegations.

21

18. Responding to Paragraph 18 of the Complaint, Chipotle lacks the

22 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

23 that basis denies the allegations.

24

19. Responding to Paragraph 19 of the Complaint, Chipotle lacks the

25 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

26 that basis denies the allegations.

27

28

2
ANSWER AND AFFIRMATIVE DEFENSES
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1

20. Responding to Paragraph 20 of the Complaint, Chipotle lacks the

2 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

3 that basis denies the allegations.

4

21. Responding to Paragraph 21 of the Complaint, Chipotle denies all

5 allegations therein.

6

22. Responding to Paragraph 22 of the Complaint, Chipotle denies all

7 allegations therein.

8

23. Responding to Paragraph 23 of the Complaint, Chipotle admits that

9 Plaintiffs “seek” certain relief, but denies that they are entitled to any such relief and

10 denies the remaining allegations in this paragraph.

11

24. Responding to Paragraph 24 of the Complaint, Chipotle lacks the

12 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

13 that basis denies the allegations.

14

25. Responding to Paragraph 25 of the Complaint, Chipotle denies all

15 allegations therein.

16

26. Responding to Paragraph 26 of the Complaint, Chipotle denies all

17 allegations therein.

18

27. Responding to Paragraph 27 of the Complaint, Chipotle denies all

19 allegations therein.

20

28. Responding to Paragraph 28 of the Complaint, Chipotle denies all

21 allegations therein.

22

29. Responding to Paragraph 29 of the Complaint, Chipotle denies all

23 allegations therein.

24

30. Responding to Paragraph 30 of the Complaint, Chipotle denies all

25 allegations therein.

26

31. Responding to Paragraph 31 of the Complaint, Chipotle lacks the

27 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

28 that basis denies the allegations.

3
ANSWER AND AFFIRMATIVE DEFENSES
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1

32. Chipotle incorporates its responses to Paragraphs 1 through 31 of the

2 Complaint by reference as though fully set forth herein.

3

33. Responding to Paragraph 33 of the Complaint, the Americans With

4 Disabilities Act speaks for itself. Chipotle denies Plaintiffs’ characterization of the Act

5 to the extent such characterization is inconsistent with the provisions of the Act.

6

34. Responding to Paragraph 34 of the Complaint, the Americans With

7 Disabilities Act speaks for itself. Chipotle denies Plaintiffs’ characterization of the Act

8 to the extent such characterization is inconsistent with the provisions of the Act.

9

35. Responding to Paragraph 35 of the Complaint, the Americans With

10 Disabilities Act speaks for itself. Chipotle denies Plaintiffs’ characterization of the Act

11 to the extent such characterization is inconsistent with the provisions of the Act.

12

36. Responding to Paragraph 36 of the Complaint, the Americans With

13 Disabilities Act speaks for itself. Chipotle denies Plaintiffs’ characterization of the Act

14 to the extent such characterization is inconsistent with the provisions of the Act.

15

37. Responding to Paragraph 37 of the Complaint, Chipotle denies all

16 allegations therein.

17

38. Responding to Paragraph 38 of the Complaint, Chipotle admits only that it is

18 a public accommodation.

19

39. Responding to Paragraph 39 of the Complaint, Chipotle lacks the

20 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

21 that basis denies the allegations.

22

40. Responding to Paragraph 40 of the Complaint, Chipotle denies all

23 allegations therein.

24

41. Responding to Paragraph 41 of the Complaint, Chipotle denies all

25 allegations therein.

26

42. Chipotle incorporates its responses to Paragraphs 1 through 41 of the

27 Complaint by reference as though fully set forth herein.

28

4
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43. Responding to Paragraph 43 of the Complaint, the Unruh Civil Rights Act

2 speaks for itself. Chipotle denies Plaintiffs’ characterization of the Act to the extent such

3 characterization is inconsistent with the provisions of the Act.

4

44. Responding to Paragraph 44 of the Complaint, the Unruh Civil Rights Act

5 speaks for itself. Chipotle denies Plaintiffs’ characterization of the Act to the extent such

6 characterization is inconsistent with the provisions of the Act.

7

45. Responding to Paragraph 45 of the Complaint, Chipotle denies all

8 allegations therein.

9

46. Responding to Paragraph 46 of the Complaint, Chipotle denies all

10 allegations therein.

11

47. Responding to Paragraph 47 of the Complaint, Chipotle lacks the

12 information and knowledge necessary to form a belief as to Plaintiffs’ allegations, and on

13 that basis denies the allegations.

14

48. Responding to Paragraph 48 of the Complaint, Chipotle admits only that it is

15 a business establishment.

16

49. Responding to Paragraph 49 of the Complaint, Chipotle denies all

17 allegations therein.

18

50. Responding to Paragraph 50 of the Complaint, Chipotle denies all

19 allegations therein.

20

51. Responding to Paragraph 51 of the Complaint, Chipotle denies all

21 allegations therein.

22

52. Chipotle incorporates its responses to Paragraphs 1 through 51 of the

23 Complaint by reference as though fully set forth herein.

24

53. Responding to Paragraph 53 of the Complaint, Chipotle denies all

25 allegations therein.

26

54. Responding to Paragraph 54 of the Complaint, Chipotle denies all

27 allegations therein.

28

5
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1

55. Responding to Paragraph 55 of the Complaint, Chipotle denies all

2 allegations therein.

3

56. Responding to Paragraph 56 of the Complaint, Chipotle denies all

4 allegations therein.

5

57. Chipotle incorporates its responses to Paragraphs 1 through 56 of the

6 Complaint by reference as though fully set forth herein.

7

58. Responding to Paragraph 58 of the Complaint, Chipotle denies all

8 allegations therein.

9

59. Responding to Paragraph 59 of the Complaint, Chipotle denies all

10 allegations therein.

11

60. Responding to Paragraph 60 of the Complaint, Chipotle denies all

12 allegations therein.

13

61. Responding to Paragraph 61 of the Complaint, Chipotle denies all

14 allegations therein.

15

62. Responding to Paragraph 62 of the Complaint, Chipotle denies all

16 allegations therein.

17

63. Chipotle incorporates its responses to Paragraphs 1 through 62 of the

18 Complaint by reference as though fully set forth herein.

19

64. Responding to Paragraph 64 of the Complaint, Chipotle denies all

20 allegations therein.

21

65. Responding to Paragraph 65 of the Complaint, Chipotle denies all

22 allegations therein.

23

66. Responding to Paragraph 66 of the Complaint, Chipotle denies all

24 allegations therein.

25

67. Chipotle incorporates its responses to Paragraphs 1 through 66 of the

26 Complaint by reference as though fully set forth herein.

27

68. Responding to Paragraph 68 of the Complaint, Chipotle denies all

28 allegations therein.

6
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69. Responding to Paragraph 69 of the Complaint, Chipotle denies all

2 allegations therein.

3

70. Responding to Paragraph 70 of the Complaint, Chipotle denies all

4 allegations therein.

5

AFFIRMATIVE DEFENSES

6

For a further answer to Plaintiffs’ Complaint and by way of affirmative defenses,

7 Chipotle alleges as follows:

8

FIRST AFFIRMATIVE DEFENSE

9

As a First Affirmative Defense to the Complaint and each cause of action alleged

10 therein, it is alleged that the Complaint and said causes of action fail to state a claim upon

11 which relief may be granted.

12

SECOND AFFIRMATIVE DEFENSE

13

As a Second Affirmative Defense to the Complaint and each cause of action

14 alleged therein, it is alleged that Plaintiffs failed subsequent to the occurrence described

15 in the Complaint to properly mitigate their damages, if any, and thereby are precluded

16 from recovering those damages which could have reasonably been avoided by the

17 exercise of due care on their part.

18

THIRD AFFIRMATIVE DEFENSE

19

As a Third Affirmative Defense to the Complaint and each cause of action alleged

20 therein, it is alleged that Plaintiffs voluntarily and with full knowledge of the matters

21 referred to in the Complaint assumed any and all of the risk, hazards, and perils of the

22 circumstances referred to in the Complaint and, therefore, assumed the risk of any

23 injuries or damages sustained by said Plaintiffs, if any at all.

24

FOURTH AFFIRMATIVE DEFENSE

25

As a Fourth Affirmative Defense to the Complaint and each cause of action alleged

26 therein, it is alleged that this incident was caused by the negligence and/or fault of other

27 persons, corporations, and entities, whether named or not named in the Complaint, and

28 that Chipotle’s liability, if any, should be reduced accordingly.

7
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1

FIFTH AFFIRMATIVE DEFENSE

2

As a Fifth Affirmative Defense to the Complaint and each cause of action alleged

3 therein, it is alleged that said Complaint is barred by the Statute of Limitations; including

4 but not limited to, §§ 335.1, 337.1, 338, 339, 340, and 343 of the California Code of Civil

5 Procedure.

6

SIXTH AFFIRMATIVE DEFENSE

7

As a Sixth Affirmative Defense to the Complaint and each cause of action alleged

8 therein, it is alleged that if any injuries or damages were sustained by Plaintiffs, those

9 injuries and damages were proximately caused and contributed to by Plaintiffs

10 themselves. Any recovery to which Plaintiffs are entitled, if any, should be reduced by

11 the amount proportionate to the amount by which Plaintiffs’ fault contributed to the

12 damages Plaintiffs allege they sustained.

13

SEVENTH AFFIRMATIVE DEFENSE

14

As a Seventh Affirmative Defense to the Complaint and each cause of action

15 alleged therein, it is alleged that in the event Chipotle prevails in this action, Chipotle

16 shall be entitled to recover reasonable attorneys’ fees for the defense of this matter under

17 the provisions of the ADA and California Civil Code Sections 51, 52 and 54.

18

EIGHTH AFFIRMATIVE DEFENSE

19

As an Eighth Affirmative Defense to the Complaint and each cause of action

20 alleged therein, it is alleged that Chipotle’s conduct was privileged because it was

21 undertaken pursuant to the terms of the applicable laws, regulations, orders, and

22 approvals relating to building construction and/or fire safety and public safety.

23

NINTH AFFIRMATIVE DEFENSE

24

As a Ninth Affirmative Defense, it is alleged that Plaintiff’s Complaint and each

25 cause of action alleged therein, is barred by reason of the issuance by local building

26 authorities of appropriate building permits and Certificates of Occupancy for said

27 facilities.

28

8
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1

TENTH AFFIRMATIVE DEFENSE

2

As a Tenth Affirmative Defense, it is alleged that any and all injuries or damages,

3 if any, suffered by Plaintiffs were caused, in whole or in part, by other persons or entities

4 for whose acts or omissions Chipotle has no responsibility.

5

ELEVENTH AFFIRMATIVE DEFENSE

6

As an Eleventh Affirmative Defense, it is alleged that the Complaint and each

7 cause of action alleged therein, is barred by reason of Chipotle’s good faith reliance upon

8 the advice of governmental agencies with respect to said facilities.

9

TWELFTH AFFIRMATIVE DEFENSE

10

As a Twelfth Affirmative Defense, it is alleged that the Complaint and each cause

11 of action alleged therein is barred because the relief demanded in Plaintiffs’ Complaint

12 would, if granted result in a fundamental alteration of Chipotle’s services.

13

THIRTEENTH AFFIRMATIVE DEFENSE

14

As a Thirteenth Affirmative Defense to the Complaint and each cause of action

15 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, because

16 of their failure to name indispensable parties pursuant to Federal Rules of Civil

17 Procedure 19.

18

FOURTEENTH AFFIRMATIVE DEFENSE

19

As a Fourteenth Affirmative Defense to the Complaint and each cause of action

20 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, by the

21 equitable doctrine of waiver.

22

FIFTEENTH AFFIRMATIVE DEFENSE

23

As a Fifteenth Affirmative Defense to the Complaint and each cause of action

24 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, by the

25 doctrine of equitable estoppel.

26

27

28

9
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1

SIXTEENTH AFFIRMATIVE DEFENSE

2

As a Sixteenth Affirmative Defense to the Complaint and each cause of action

3 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, by the

4 doctrine of judicial estoppel.

5

SEVENTEENTH AFFIRMATIVE DEFENSE

6

As a Seventeenth Affirmative Defense to the Complaint and each cause of action

7 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, by the

8 doctrine of laches.

9

EIGHTEENTH AFFIRMATIVE DEFENSE

10

As an Eighteenth Affirmative Defense to the Complaint and each cause of action

11 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, because

12 Chipotle was justified in acting as it did, in that Chipotle acted in good faith and in the

13 lawful exercise of its legitimate rights in connection with all matters alleged in the

14 Complaint.

15

NINETEENTH AFFIRMATIVE DEFENSE

16

As a Nineteenth Affirmative Defense to the Complaint and each cause of action

17 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, because

18 the laws and regulations that Plaintiffs seek to enforce are unconstitutionally vague

19 and/or unconstitutionally overbroad.

20

TWENTIETH AFFIRMATIVE DEFENSE

21

As a Twentieth Affirmative Defense to the Complaint and each cause of action

22 alleged therein, it is alleged that Plaintiffs’ claims are barred, in whole or in part, because

23 Chipotle relied in good faith on the law as it existed at the time of the construction of the

24 facilities at issue.

25

TWENTY FIRST AFFIRMATIVE DEFENSE

26

As a Twenty First Affirmative Defense to the Complaint and each cause of action

27 alleged therein, it is alleged that Plaintiffs’ claims are barred in whole or in part by the

28 doctrine of unclean hands.

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1

TWENTY SECOND AFFIRMATIVE DEFENSE

2

As a Twenty Second Affirmative Defense to the Complaint and each cause of

3 action, it is alleged that Plaintiffs’ claims are barred as a matter of law because Plaintiffs

4 lack standing to seek the relief they request.

5

TWENTY THIRD AFFIRMATIVE DEFENSE

6

As a Twenty Third Affirmative Defense to the Complaint and each cause of action

7 alleged therein, it is alleged that Plaintiffs’ claims are barred as a matter of law because

8 Plaintiffs failed to provide any notice to Chipotle regarding the relief demanded prior to

9 filing this lawsuit.

10

TWENTY FOURTH AFFIRMATIVE DEFENSE

11

As a Twenty Fourth Affirmative Defense to the Complaint and each cause of

12 action alleged therein, Chipotle reserves the right to amend this Answer to assert

13 additional affirmative defenses as such additional defenses are discovered during the

14 course of this case.

15

16

WHEREFORE, Chipotle prays:

17

1. That the Complaint be dismissed with prejudice;

18

2. That Plaintiffs take nothing by way of their Complaint;

19

3. That Chipotle recovers its costs of suit, including attorneys’ fees; and,

20

4. For such other and further relief as the Court deems just and equitable.

21
22 DATED: December 28, 2006

GREENBERG TRAURIG, LLP

23

24

By s/Gregory F. Hurley

25

Gregory F. Hurley, Esq. Stacey L. Herter, Esq.

26

Attorneys for Defendant, CHIPOTLE MEXICAN

GRILL, INC.

27

E-Mail: hurleyg@gtlaw.com

28

11
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1

DEMAND FOR JURY TRIAL

2

Chipotle hereby demands a trial by jury.

3

4 DATED: December 28, 2006
5

GREENBERG TRAURIG, LLP

6

By: s/Gregory F. Hurley

7

Gregory F. Hurley

8

Stacey L. Herter Attorneys for CHIPOTLE MEXICAN GRILL,

9

INC.

E-Mail: hurleyg@gtlaw.com

10

11

12

13

14

15

16

17

18

19

20

21 22

23

24

25

26

27

28

12
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1

PROOF OF SERVICE

2
STATE OF CALIFORNIA, COUNTY OF ORANGE COUNTY
3
I am employed in the aforesaid county, State of California; I am over the age of 18 4 years and not a party to the within action; my business address is 650 Town Center 5 Drive, Suite 650, Costa Mesa, CA 92626.

6

On the below date, I electronically filed the CHIPOTLE MEXICAN GRILL

INC.'S ANSWER AND AFFIRMATIVE DEFENSES with the Clerk of the United

7 States District Court for the Southern District of California, using the CM/ECF System.

The Court’s CM/ECF System will send an email notification of the foregoing filing to 8 the following parties and counsel of record who are registered with the Court’s CM/ECF

9 System:

10
Amy B. Vandeveld

11 Law Offices of Amy B. Vandeveld

1850 Fifth Avenue, Suite 22 12 San Diego, CA 92101

13

T: F:

(619) 231-8883 (619) 231-8329

14
Attorneys for Plaintiffs

15

16

(BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM)

17

In accordance with the electronic filing procedures of this Court, service has been

18

effected on the aforesaid party(s) above, whose counsel of record is a registered participant of CM/ECF, via electronic service through the CM/ECF system.

19

20

(FEDERAL) I declare under penalty of perjury that the foregoing is true and correct, and that I

21

am employed at the office of a member of the bar of this Court and at whose

direction the service was made.

22

23

Executed on December 28, 2006, at Costa Mesa, California.

24

25

/s/ Susan L. Connor

26

27

28
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2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI, et al.,

CASE NO. 06cv2671-J (WMc)

12 vs.
13

Plaintiff,

14 CHIPTOLE MEXICAN GRILL, INC. ,

15

Defendant.

16

ORDER FOLLOWING EARLY NEUTRAL EVALUATION CONFERENCE, SETTING RULE 26 COMPLIANCE AND NOTICE OF CASE MANAGEMENT CONFERENCE

17

On April 16, 2007, the Court convened a telephonic Early Neutral Evaluation Conference in

18 the above entitled action. Appearing for Plaintifwf as Amy Vandeveld, Esq. Appearing for Defendant

19 was Stacey Herter, Esq .

20

Settlement could not be reached in the case at this time.

21

The Court discussed com pliance with Fed. R. Civ. P. 26 and based thereon, iss ues t he

22 following orders:

23

1. Discovery from related case 05cv1660-J m ay be used in the current case. Counsel

24

should not attempt to make over any discovery available from the related case.

25

2. The Rule 26(f) conference shall be completed before May 11, 2007 ;

26

3. A discovery plan shal l be lodged with Ma gistrate Judge McCurine, Jr. on or before

27

May 21, 2007 . Regarding each witness, the discovery plan will include the nam e,

28

most current address, most current phone number, and a brief description of the subject

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1

matter of his/her testimony. The discovery plan will also include the anticipated dates

2

for the completion of both non-expert discovery and expert discovery; and,

3

4. The date of initial disclosure pursuant to Rule 26(a)(1)(A-D) shall occur before May

4

29, 2007;

5

5. COUNSEL AND PARTIES with full settlement authority are ordered to appear on

6

June 7, 2007 at 2:00 p.m. in the chambers of United States Magistrate Judge William

7

McCurine, Jr., 940 Front Street, Courtroom C, San Diego, Calif ornia, 92101, for a

8

Case Management Conference pursuant toFederal Rule of Civil Procedure 16(b)F. ull

9

authority to settle means that the indivdi ual present at the settlement conference

10

has the unfettered discretion and authorityto: 1) fully explore settlement options

11

and to agree at that time to any settlement options; 2) agree at that time to any

12

settlement terms acceptable to the parties;3) change the settlement position of a

13

party; and 4) negotiate monetary aw ards without being restricted to a specific

14

sum certain.

15

Failure of any counsel or party to com ply with this Order will result in the im position of

16 sanctions.

17

IT IS SO ORDERED.

18 DATED: April 20, 2007

19

20

Hon. William McCurine, Jr.

U.S. Magistrate Judge

21

United States District Court

22 cc: Honorable Napoleon Jones U.S. District Court
23 All Counsel and Parties of Record
24

25

26

27

28

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1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9

10

MAURIZIO ANTONINETTI

) Civil No. 05CV1660-J (WMc)

11

)

Plaintiff,

) AND RELATED CASE NUMBER:

12

)

v.

) 06CV2671-J (WMc)

13

)

CHIPOTLE MEXICAN GRILL, INC., ) ORDER DENYING DEFENDANT’S

14 AND DOES 1 THROUGH 10, inclusive, ) EX PARTE MOTION TO

) CONSOLIDATE CASES FOR TRIAL

15

Defendants. )

)

16 AND RELATED CASE

)

)

17

)

)

18

19

Before the Court is Defendant Chipotle Mexican Grill’s (“Defendant”) Ex Parte Motion

20 to Consolidate Case No. 05cv1660 with Case No. 06cv2671. [Doc. No. 151.] The Court

21 addresses Defendant’s Ex Parte Motion without issuing a briefing schedule in order to avoid

22 delaying the Final Pretrial Conference in Case No. 05cv1660, which is currently scheduled for

23 September 10, 2007. [See Doc. No. 146.] For the reasons stated below, the Court DENIES

24 Defendant’s Ex Parte Motion to Consolidate.

25

Background

26

On August 22, 2005, Plaintiff Maurizio Antoninetti (“Plaintiff”) filed an individual

27 lawsuit against Defendant, and Defendant answered Plaintiff’s Complaint. [Case No. 05cv1660,

28 Doc. Nos. 1, 3.] In his first-filed action, Plaintiff alleges that he was denied full and equal access

1

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1 to facilities owned and operated by Defendant because the facilities are inaccessible to individu-

2 als who use wheelchairs for mobility. (Compl. ¶ 9, 05cv1660.) Plaintiff alleges that Defen-

3 dant’s food-preparation counters are inaccessible. (Id.) Plaintiff alleges causes of action under

4 the Americans with Disabilities Act and the California Civil Code. (Id. ¶¶ 15-27.)

5

On December 6, 2006, Plaintiff filed a second action against Defendant, this time as a

6 putative class action. [Case No. 06cv2671, Doc. No. 1.] Plaintiffs Maurizio Antoninetti, Jean

7 Riker, James Perkins, Karen Friedman, and Michael Rifkin filed a Complaint alleging that the

8 high walls at Defendant’s restaurants preclude individuals in wheelchairs from seeing the food

9 items available for selection in the same manner as nondisabled individuals. (Compl. ¶ 28,

10 06cv2671.) The class Plaintiffs seek to represent consists of “all persons with mobility disabili-

11 ties who use wheelchairs or motorized mobility aides, who have been or will be denied their

12 rights under the ADA and state law to access goods, services, benefits, advantages, privileges

13 and accommodations provided by Chipotle at its approximately 83 restaurants within the state of

14 California.” (Id.) Plaintiffs allege the following causes of action against Defendant: (1)

15 violation of the Americans with Disabilities Act; (2) violation of the California Civil Code; (3)

16 unfair business practice; (4) intentional infliction of emotional distress; and (5) negligence per

17 se. (Id. ¶¶ 32-66.)

18

Defendant answered the second-filed action. [Case No. 06cv2671, Doc. No. 3.] The

19 second-filed action was transferred to this Court pursuant to Local Civil Rule 40.1.d. [Doc. No.

20 10.] Defendant subsequently filed a Motion requesting that the Court consolidate the two

21 actions. (Mot. at 5.) On March 20, 2007, the Court granted Defendant’s Motion to Consolidate

22 for purposes of discovery only. [Doc. No. 78.] The Court reserved the question of consolida-

23 tion for trial for future consideration. On June 14, 2007, the Court granted in part and denied in

24 part the parties’ motions for summary judgment in Case No. 05cv1660. [Doc. No. 129.]

25

On September 6, 2007, Defendant filed the instant Ex Parte Motion to Consolidate.

26 [Doc. No. 151.] According to a declaration attached to the instant Motion, Defendant’s counsel

27 contacted Plaintiff to determine whether Plaintiff would stipulate to consolidating the cases. (Vu

28

2

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Case 3:05-cv-01660-BTM-WMC Document 152 Filed 09/07/07 Page 3 of 5

1 Decl. ¶ 7.) Plaintiff’s counsel indicated that Plaintiff would not stipulate to the consolidation if

2 it would delay the setting of trial in Case No. 05cv1660. (Id.)

3

Legal Standard

4

Consolidation of actions is governed by Federal Rule of Civil Procedure 42(a), which

5 provides as follows:

6

When actions involving a common question of law or fact are pending before the

court, it may order a joint hearing or trial of any or all the matters in issue in the

7

actions; it may order all the actions consolidated; and it may make such orders

concerning proceedings therein as may tend to avoid unnecessary costs or delay.

8

9 Fed. R. Civ. P. 42(a). The district court has broad discretion in making this determination.

10 Investors Research Co. v. U.S. Dist. Ct., 877 F.2d 777, 777 (9th Cir. 1989). The presence of a

11 common question of law or fact is a threshold requirement for consolidation. Yousefi v.

12 Lockheed Martin Corp., 70 F. Supp. 2d 1061, 1064-65 (C.D. Cal.1999). However, even if a

13 common question of law or fact exists, consolidation is inappropriate if it results in “ineffi-

14 ciency, inconvenience, or unfair prejudice to a party.” EEOC v. HBE Corp., 135 F.3d 543, 551

15 (8th Cir. 1998); see also Takeda v. Turbodyne Techs., Inc., 67 F. Supp. 2d 1129, 1132 (C.D. Cal.

16 1999) (“[I]n deciding whether to consolidate actions under Rule 42(a), a court must balance the

17 savings of time and effort consolidation will produce against any inconvenience, delay,

18 confusion, or prejudice that may result.”).

19

In addressing consolidation, a court should consider the risk of delaying trial. “Federal

20 courts have declined to consolidate cases involving common questions of law or fact where the

21 cases were at different stages of preparedness for trial and where consolidation would delay the

22 case ready of disposition.” Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 866 F. Supp.

23 1560, 1572 (D.N.M. 1994) (citing Mills v. Beech Aircraft Corp., 886 F.2d 758, 762 (5th Cir.

24 1989); Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1334 (10th Cir.

25 1988); St. Bernard Gen. Hosp. v. Hosp. Serv. Ass’n, 712 F.2d 978, 990 (5th Cir. 1983)). Where a

26 case that is ready for or close to trial would be held up pending completion of pretrial proceed-

27 ings in another case, courts have consistently denied consolidation. Transeastern Shipping

28 Corp. v. India Supply Mission, 53 F.R.D. 204, 206 (S.D.N.Y. 1971).

3

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1

Discussion

2

Defendant argues that Case No. 05cv1660 and Case No. 06cv2671 should be consolidated

3 because the cases involve many of the same questions of law and fact and have the same lead

4 plaintiff. (Mot. to Consol. at 1.) Defendant argues that consolidation will conserve judicial

5 resources. (Id.) Defendant also argues that if the Court does not consolidate the cases, there is a

6 risk of inconsistent judgments. (Id.) Plaintiff opposes Defendant’s Motion to Consolidate

7 insofar as it would delay the setting of trial in Case No. 05cv1660. (See Vu Decl. ¶ 7.)

8

The Court recognizes, as it did in its Order on Defendant’s first motion to consolidate,

9 that Case No. 05cv1660 and Case No. 06cv2671 involve common questions of fact. (See Order

10 on Mot. to Consol. at 5.) However, there is no overriding evidence showing that consolidation

11 would enhance court efficiency. There are significant procedural differences between Case No.

12 05cv1660 and Case No. 06cv2671. Case No. 05cv1660 is ready for trial and was filed more than

13 two years ago. Case No. 06cv2671 was filed nine months ago and is still in the formative stages.

14 No trial date or discovery cutoff date has been set in Case No. 06cv2671, nor has a motion for

15 class certification been filed. Consolidation of Case No. 06cv2671 realistically would delay trial

16 in Case No. 05cv1660 for several months because the second-filed case is a class action and

17 encompasses all of Defendant’s California restaurants. Thus, Case No. 06cv2671 involves

18 significantly more plaintiffs and public accommodations than Case No. 05cv1660. All of these

19 factors strongly weigh against consolidation of the two cases.

20

Defendant argues that if the Court does not consolidate the two cases, there is a risk of

21 inconsistent judgments. (Mot. to Consol. at 1.) However, this is not a situation in which

22 numerous actions have been filed against Defendant in multiple jurisdictions. Both cases were

23 filed in this District and were assigned to this Court. Under principles of stare decisis, the Court

24 will be obligated to follow its legal rulings in the first-filed case when it rules upon the second-

25 filed case, thereby eliminating the danger of inconsistent judgments.

26

Defendant also asserts that “there is a substantial likelihood that some or all of the legal

27 rulings and factual determinations in the First Action will bind the putative class members in the

28 Second Action,” and that this raises due process concerns. (Mot. to Consol. at 6.) Certainly, a

4

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1 ruling in Defendant’s favor will have stare decisis effect on the putative class members in the

2 second-filed case. However, Defendant does not explain why the putative class members would

3 be bound under principles of res judicata. Res judicata “bars litigation in a subsequent action of

4 any claims that were raised or could have been raised in the prior action. . . . The doctrine is

5 applicable whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3)

6 identity or privity between parties.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708,

7 713 (9th Cir. 2001) (emphasis added). Here, Mr. Antoninetti is a party to both the first-filed

8 action and the second-filed action, and the Court’s rulings in the first-filed action will therefore

9 have a res judicata effect as to him. However, Defendant does not explain why the Court’s

10 rulings in the first-filed action will have a res judicata effect as to members of the putative class.

11 A court’s order does not bind members of a putative class if no class action has been certified.

12 See Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1013 n.1 (9th Cir. 2000). Because

13 no class has been certified in the second-filed action, there is little risk that the Court’s ruling in

14 the first-filed action will raise due process concerns as to the members of the putative class.

15

On balance, the potential for delay and prejudice outweighs any savings of time or effort

16 that may result if the cases are consolidated for trial. Accordingly, the Court FINDS that

17 consolidation is not merited for purposes of trial.

18

Conclusion

19

For the reasons stated above, the Court DENIES Defendant’s Ex Parte Motion to

20 Consolidate Case No. 05cv1660 with Case No. 06cv2671 for purposes of trial. The cases shall

21 remain consolidated for purposes of discovery.

22

IT IS SO ORDERED.

23 DATED: September 7, 2007

24

HON. NAPOLEON A. JONES, JR.

25

United States District Judge

26 cc: Magistrate Judge McCurine All Parties
27

28

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI,

Case No. 05cv01660-J-WMC

12

Plaintiff,

v.

13 CHIPOTLE MEXICAN GRILL,

ORDER RE NINTH CIRCUIT MANDATE AND OPINION

14

Defendant.

15

On November 16, 2010, a hearing took place before the Court regarding the Ninth

16 Circuit’s Mandate and Opinion in the above-captioned case. Pursuant to that Opinion, the

17 Court hereby orders the Clerk to enter judgment against Defendant Chipotle for violation

18 of the Americans with Disabilities Act.

19

On remand, three issues are now before the Court: (1) the scope of injunctive relief

20 for this violation; (2) the amount of damages due to Plaintiff under the California Disabilities

21 Act; and (3) the amount of attorney’s fees due to Plaintiff’s counsel under the Americans with

22 Disabilities Act. Each issue will be addressed in turn.

23

24 I. Injunctive Relief

25

The Ninth Circuit held that Plaintiff’s inability to view food preparation counters

26 (counters containing the different foods that are available to Chipotle customers and on

27 which the customers’ individual orders are prepared) violated the Americans with Disabilities

28 Act and remanded to the Court to determine the scope of injunctive relief necessary to

1

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1 remedy this violation. Antoninetti v. Chipotle, 08-55867, slip op. at 16017. At the November

2 16, 2010 hearing, Chipotle’s counsel represented that Chipotle has lowered food preparation

3 counters to a height where wheelchair-bound customers can view the counter without

4 obstruction. This modification has been made at all Chipotle restaurants in California,

5 including the two restaurants at issue in this case. Defendant argues that these actions

6 render moot the need to issue an injunction.

7

Although Plaintiff does not dispute that lowering food preparation counters to a height

8 suitable for wheelchair-bound customers would remedy the Disabilities Act violation at issue

9 in this case, Plaintiff raises two concerns. First, Plaintiff has not yet received any evidence

10 documenting these modifications. Second, Plaintiff argues that an injunction is still

11 necessary to ensure that these modifications are made permanent.

12

The Court agrees that an order on this issue would be premature at this time. The

13 Court requires a documentary record of modifications made to bring the food preparation

14 counter into compliance with the Americans with Disabilities Act. Moreover, for the Court to

15 properly follow the Ninth Circuit opinion, an appropriate measure must be in place to ensure

16 that Chipotle’s food preparation counters remain permanently in compliance with this law.

17 Because an injunction is not necessarily the only means to accomplish this goal, limited

18 discovery and briefing on this issue are appropriate. Accordingly, the parties are to proceed

19 as follows:

20

1. Defendant is to produce all evidence showing mootness by January 7, 2011;

21

2. The parties then have ninety days from service of Defendant’s evidence of mootness

22

to conduct discovery on this issue;

23

3. Plaintiff is to file a motion for summary judgment by April 22, 2011;

24

4. Defendant’s response is due by May 6, 2011;

25

5. Plaintiff’s reply is due by May 13, 2011.

26 All disputes regarding discovery on this issue or this briefing schedule are to be addressed

27 to this Court.

28 \\

2

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1 II. Damages

2

At the hearing, Plaintiff’s counsel represented that Plaintiff is seeking $3,000 in

3 additional damages under the California Disabilities Act for litigation related visits and that

4 Plaintiff is not seeking additional damages for violations related to parking.

5

The Court hereby refers this issue to the Magistrate Judge for a settlement

6 conference. If the parties cannot reach settlement on this issue, a litigation schedule will

7 be entered by the Magistrate Judge. The Parties and their counsel shall appear before

8 Magistrate Judge McCurine on January 12, 2011 at 2pm for a settlement conference. Judge

9 McCurine may make any orders related this conference he deems appropriate.

10

11 III. Attorney’s Fees

12

Plaintiff’s counsel is entitled to attorney’s fees greater than the $136,357.83 awarded

13 for work performed in the original district court action. See slip op. at 16019. Because

14 additional attorneys fees beyond this increased amount may be appropriate for work done

15 after the Ninth Circuit issued its mandate, the Court, in the interest of judicial economy, will

16 address attorney’s fees after the other issues on remand are resolved.

17

18 IT IS SO ORDERED.

19

20 DATED: November 29, 2010
21

22

Honorable Barry Ted Moskowitz

23

United States District Judge

24

25

26

27

28

3

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI,

Case No. 05cv01660 BTM (WMc)

12

Plaintiff,

v.

13

CHIPOTLE MEXICAN GRILL, INC.,

14

Defendant.

15

ORDER RE PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT AND FOR ATTORNEYS’ FEES

16

Pending before the Court are Plaintiff Livia Antoninetti’s1 Motion for Summary

17 Judgment (Dkt. No. 335) and Motion for Attorneys’ Fees and Expenses in Relation to

18 Defendant’s Petition for a Writ of Certiorari (Dkt. No. 336). For the reasons set forth herein,

19 the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion for summary judgment,

20 and DENIES Plaintiff’s motion for attorneys’ fees and expenses without prejudice.

21

22

I. BACKGROUND

23

24

Plaintiff’s claims in this case arise out of violations of the Americans with Disabilities

25 Act (ADA) and California Disabled Persons Act (CDPA) resulting from Defendant Chipotle

26

27
1Following the death of Livia Antoninetti’s husband, Maurizio Antoninetti, on May 9, 28 2011, the Court granted Mrs. Antoninetti’s unopposed motion to be substituted as Plaintiff
in the above-captioned matter. (See Dkt. No. 349.)

1

05cv01660 BTM (WMc)

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1 Mexican Grill, Inc.’s construction of food counters that are too high, such that customers in

2 wheelchairs are unable to view the food as it is being prepared and thus are unable to

3 patronize the restaurant in a manner equal to the experience of other customers.2

4

Following a bench trial, the Court (Jones, J.) entered its “Findings of Fact, Conclusions

5 of Law, and Judgment” (Dkt. No. 229) on January 10, 2008, in which the Court held that

6 Defendant’s initial unwritten policy regarding accommodations within the restaurants for

7 customers in wheelchairs violated the ADA, but that its subsequent and then-current written

8 policy complied with the ADA. (Id. at 31-34.) The Court found that Mr. Antoninetti visited

9 Defendants’ restaurants on at least eight occasions while the initial unwritten policy was in

10 effect. (Id. at 38.) The Court denied Plaintiff’s claim for injunctive relief and awarded Plaintiff

11 $5,000 in statutory damages under the CDPA. (Id. at 34-39.) The $5,000 dollar damages

12 award consisted of $1,000 in statutory damages for each of five “bona fide” visits by Mr.

13 Antoninetti to Defendant’s restaurants (one visit to the Encinitas Restaurant and four visits

14 to the Pacific Beach Restaurant) occurring while the unwritten policy was in effect. (Id. at

15 38.) The Court found that Mr. Antoninetti made the three remaining visits “for the purpose

16 of gathering evidence for this litigation[,]” and therefore that he was not a “bona fide”

17 customer on those occasions. (Id. at 32.) On that basis, the Court declined to award any

18 statutory damages for those three visits. (Id.)

19

The trial court also found that architectural barriers encountered by Mr. Antoninetti in

20 the parking lot at the Pacific Beach Restaurant during two of the five “bona fide” visits also

21 violated the ADA, but that the CDPA “does not provide damages for each and every

22 architectural barrier that Plaintiff encounters” on a particular occasion and therefore “relief

23 is capped at the $1000.00 [per ‘bona fide’ visit] that Plaintiff is already awarded for

24 Defendant’s failure to provide Plaintiff with equivalent facilitation within the Restaurants.” (Id.

25 at 38-39.)

26

On May 5, 2008, Plaintiff moved for attorneys’ fees and costs, seeking a total of

27

28

2For a more detailed review of the facts giving rise to Plaintiff’s claims in this case, see

Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1169-71 (9th Cir. 2010).

2

05cv01660 BTM (WMc)

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1 $550,651.33 ($524,925.00 in attorneys’ fees and $25,726.33 in litigation expenses). (Dkt.

2 No. 241.) On August 21, 2008, the Court found that Plaintiff was the prevailing party in the

3 litigation, and granted in part Plaintiff’s motion for attorneys’ fees and costs. (Dkt. No. 271.)

4 On February 6, 2009, the Court awarded Plaintiff attorneys’ fees in the amount of

5 $136,537.83 and ordered each party to bear its own costs. (Dkt. No. 288.)

6

Plaintiff appealed the Court’s Findings of Fact, Conclusions of Law, and Judgment

7 (Dkt. No. 229) “with respect to the denial of [Plaintiff’s] claim for injunctive relief and with

8 respect to the denial of additional damages to Plaintiff based upon violations of the

9 Americans with Disabilities Act by Chipotle. Plaintiff does not appeal the amount of the

10 damages already awarded, but requests that the Ninth Circuit Court of Appeals affirm the

11 award of damages on a different legal basis.” (Dkt. No. 255, Plaintiff’s Notice of Appeal, at

12 1.) Plaintiff also appealed the award of attorneys’ fees and expenses (Dkt. Nos. 271 and

13 288). (Dkt. No. 289, Plaintiff’s Notice of Appeal, at 1.)

14

In its amended decision, filed September 22, 2010, the Ninth Circuit upheld the District

15 Court’s conclusion that Defendant’s initial unwritten policy for accommodating customers in

16 wheelchairs inside the restaurants violated the ADA, and reversed the conclusion that the

17 subsequent written policy complied with the ADA. See Antoninetti, 643 F.3d at 1177. The

18 Ninth Circuit remanded to the District Court with instructions to enter judgment that Chipotle’s

19 written policy violated the ADA and to issue appropriate injunctive relief. Id. The Ninth

20 Circuit also vacated the $5,000 damages award and remanded for further proceedings on

21 the issue of damages. Id. Lastly, the Ninth Circuit vacated the award of attorneys’ fees and

22 costs and remanded that issue for reconsideration in light of the court’s holding that

23 Defendant’s written policy violated the ADA. Id. at 1176.

24

On November 29, 2010, the Court (Moskowitz, J.) ordered the Clerk to enter judgment

25 against Defendant for violation of the ADA, and ordered briefing on the scope of injunctive

26 //

27 //

28 //

3

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1 relief and the amount of damages due to Plaintiff under the CDCA.3 (Dkt. No. 329.) The

2 Court addresses these issues in turn.

3

4

II. INJUNCTIVE RELIEF

5

6

Mr. Antoninetti’s death on May 9, 2011, renders moot any claim for injunctive relief

7 under Title III of the ADA.4 Injunctive relief obviously would be ineffectual as to Mr.

8 Antoninetti because he is now deceased. His estate lacks standing to pursue an injunction

9 because it cannot show a threat to its interests or that any redress would accompany a

10 favorable judgment. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-03 (1983) (holding

11 that claim for injunctive relief does not satisfy Article III case and controversy requirement

12 unless plaintiff can show that threat of future injury is “both ‘real and immediate,’ not

13 ‘conjectural’ and ‘hypothetical’” (citations omitted)); see also Wojewski v. Rapid City Regional

14 Hosp., Inc., 450 F.3d 338, 342 (8th Cir. 2006) (holding that plaintiff’s death during pendency

15 of appeal from judgment in favor of defendant mooted plaintiff’s claim for injunctive relief

16 under Title III of the ADA); Plumley v. Landmark Chevrolet Inc., 122 F.3d 303, 312 (5th Cir.

17 1997) (upholding district court’s conclusion that plaintiff’s death entitled defendant to

18 summary judgment on plaintiff’s claim for injunctive relief under Title III of the ADA, reasoning

19 that appellant “cannot show that there is a real or immediate threat that he will be wronged

20 again”).

21

Based on the forgoing, the Court finds that injunctive relief is no longer appropriate

22 in this case and DENIES Plaintiff’s request “that the Court issue an injunction requiring

23

24

3In its November 29, 2010 order, the Court referred the issue of damages to the

Magistrate Judge for a settlement conference, and stated that “[i]f the parties cannot reach 25 a settlement on this issue, a litigation schedule will be entered by the Magistrate Judge.”

(Dkt. No. 329 at 3.) The docket does not indicate that the Magistrate Judge entered a 26 specific scheduling order regarding damages. Regardless, both parties thoroughly briefed

the damages issue, and it is ripe for resolution. 27

4Plaintiff does not meaningfully contest this proposition. (See generally Dkt. No. 355, 28 Plaintiff’s Supplemental Brief in support of SJ Motion; Dkt. No. 357, Plaintiff’s Response to

Defendant’s Supplemental Brief re: SJ Motion.)

4

05cv01660 BTM (WMc)

Case 3:05-cv-01660-BTM-WMC Document 359 Filed 03/21/12 Page 5 of 13

1 Chipotle to maintain the current heights of the walls at the food preparation areas . . . .” (See

2 Dkt. No. 335-1, Plaintiff’s Brief in support of SJ Motion, at 4.)

3

4

III. DAMAGES

5

6

California Civil Code § 54.3 (“Violations; liability”) entitles a CDPA plaintiff to a

7 statutory minimum damages award of $1,000 for “each offense” established by the plaintiff.5

8 Upon its determinations that Defendant’s unwritten policy constituted a violation of the ADA

9 (and therefore the CDPA as well6), and that Mr. Antoninetti made five “bona fide” visits to

10 Defendant’s restaurants while that policy was in effect, the trial court awarded Plaintiff $5,000

11 in statutory damages. (Dkt. No. 229 at 38.)

12

On appeal, the Ninth Circuit vacated the damages award entered by the District Court

13 and remanded “for further proceedings on this issue.” On remand, Plaintiff seeks a total

14 damages award of $8,000, consisting of $5,000 in damages already awarded and $3,000 in

15 additional damages for the three “litigation-related” visits. (Dkt. No. 335-1, Plaintiff’s Brief in

16 support of SJ Motion, at 3.) Defendant contends that Plaintiff is not entitled to damages for

17 the litigation-related visits because during those visits, he was not acting as a “bona fide”

18 customer. (Dkt. No. 354, Defendant’s Supplemental Brief in response to SJ Motion, at 6.)

19 Additionally, Defendant contends that Plaintiff is not entitled to damages for three of the five

20 non-litigation-related (“bona fide”) visits, on the ground that Plaintiff cannot identify the dates

21 on which he made those three visits, and therefore cannot establish specific offenses for

22 which Plaintiff is entitled to statutory damages on those three occasions. (Id. at 3-4.) The

23
5See Cal. Civ. Code § 54.3(a) (“Any person or persons, firm or corporation who denies 24 or interferes with admittance to or enjoyment of the public facilities as specified in Sections
54 and 54.1 or otherwise interferes with the rights of an individual with a disability under 25 Sections 54, 54.1 and 54.2 is liable for each offense for the actual damages and any amount
as may be determined by a jury, or the court sitting without a jury, up to a maximum of three 26 times the amount of actual damages but in no case less than one thousand dollars ($1,000)
. . . .”). 27
6See Dkt. No. 229 at 38; Cal. Civ. Code § 54(c) (“A violation of the right of an 28 individual under the Americans with Disabilities Act of 1990 . . . also constitutes a violation
of this section.”).

5

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1 Court addresses separately the damages issues arising out of the three litigation-related

2 visits and the five “bona fide” visits.

3

As a threshold issue, the Court notes that Plaintiff’s claims for statutory damages

4 survive the death of Mr. Antoninetti.7

5

6

a. Litigation-related visits

7

8

The trial court found, and the record supports, that Mr. Antoninetti made three visits

9 to Defendant’s restaurants “for the purpose of gathering evidence for this litigation.” (Dkt. No.

10 229 at 6-7.) Two of these three visits were “site inspections” conducted at the Encinitas

11 Restaurant and the Pacific Beach Restaurant on October 6, 2006, during which Mr.

12 Antoninetti and his counsel made a video recording of each visit. Those video recordings

13 were introduced into evidence at trial and played before the trial court. The other “litigation-

14 related” visit occurred at the Pacific Beach Restaurant on October 1, 2006, shortly before Mr.

15 Antoninetti’s deposition. The trial court found, and the record supports, that Plaintiff made

16 this visit “with the intent of repeating what he claimed were his prior bad experiences in order

17 to prepare for his deposition and gather evidence to support his claims in this lawsuit.” (Id.

18 at 7 (citing Dkt. No. 267, Transcript of Nov. 30, 2007 Proceedings, at 442:12-443:1).)

19

With respect to these three “litigation-related” visits, the Court held that “Plaintiff is not

20 entitled to recover any damages . . . because, in each instance, he was not a bona fide

21 customer but rather was visiting those Restaurants as a litigant for the purpose of gathering

22 evidence to support his claims in this litigation.” (Id. at 32.)

23 //

24 //

25

26

7See Cal. Code. Civ. P. § 377.20 (“In an action or proceeding by a decedent's

personal representative or successor in interest on the decedent's cause of action, the 27 damages recoverable are limited to the loss or damage that the decedent sustained or

incurred before death, including any penalties or punitive or exemplary damages that the 28 decedent would have been entitled to recover had the decedent lived, and do not include

damages for pain, suffering, or disfigurement.”).

6

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1

On appeal, Plaintiff challenged the trial court’s conclusion that Plaintiff was not entitled

2 to statutory damages for the litigation-related visits. Antoninetti, 643 F.3d at 1177. The Ninth

3 Circuit held in broad terms that in order to recover statutory damages for a particular visit,

4 Plaintiff must

5

show that “[Mr. Antoninetti] actually presented himself to the restaurant on a

particular occasion, as any other customer would do, with the intent of being

6

. . . served and to purchase food . . . in the manner offered. . . . [and] actually

encountered access to . . . the restaurant that was not full and equal.”

7

8 Id. (citing Reynolds v. Lee, 177 Cal. App. 4th 1211, 1226 (4th Dist. 2009)) (alterations in

9 original). The Ninth Circuit also noted that “[o]n those visits when he was not seeking to

10 purchase food or to have the ‘Chipotle Experience,’ Antoninetti cannot recover money

11 damages under the California Act.”8

12

On remand, Defendant claims that Plaintiff’s statutory damages are limited to regular

13 visits, and do not include visits primarily motivated by Mr. Antoninetti’s participation in

14 litigation against the restaurant chain. (Dkt. No. 354, Defendant’s Supplemental Brief in

15 response to SJ Motion, at 8-9.) The Court agrees. The decision of the Court of Appeals

16 requires Plaintiff to show, at the very least, that Mr. Antoninetti sought to purchase food “as

17 any other customer” and “to have the ‘Chipotle Experience’” on each occasion for which he

18 seeks statutory damages. Id. at 1177. With respect to the three litigation-related visits,

19 Plaintiff is unable to meet that threshold.

20

As stated above, the Court found in its Findings of Fact, Conclusions of Law, and

21 Judgment that Mr. Antoninetti’s primary motivation in making his three litigation-related visits

22 was to advance his position in this litigation, not to be served and purchase food. Moreover,

23 “any other customer” would not “present himself” at Chipotle with an attorney and a video

24 camera and proceed to record a video for use in a civil trial, as Mr. Antoninetti did during the

25
8The “Chipotle Experience,” a term used frequently in this litigation, refers in relevant 26 part to the ability of Chipotle customers in the food service line to view the menu items, select
what they want, and watch the preparation of their meal. The Ninth Circuit found that the 27 placement of high walls between the food and the customers, such that Mr. Antoninetti could
not see the food while he was in line, “significantly reduced [his] ability to enjoy the ‘Chipotle 28 Experience.’” Antoninetti, 643 F.3d at 1174. On that basis, the Ninth Circuit found that the
high walls were in violation of the ADA. Id.

7

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1 two “site inspections.” In light of the uncontested facts regarding the litigation-related visits,

2 Mr. Antoninetti’s presently-asserted purpose of “paticipat[ing] in the ‘Chipotle Experience’”

3 during those visits is questionable at best. (See Dkt. No. 335-3, Declaration of Maurizio

4 Antoninetti in support of Plaintiff’s Motion for Summary Judgment, at ¶¶ 4-5.)

5

More likely, Plaintiff’s statements in his declaration that he intended during the

6 litigation-related visits to “participate in the ‘Chipotle Experience’” are disingenuous.

7 Plaintiff’s statutory damages claims in the present litigation hinge upon a showing that Mr.

8 Antoninetti was not offered the Chipotle Experience during his visits to Chipotle restaurants.

9 Plaintiff’s alleged goal of having a positive experience at Chipotle during his litigation-related

10 visits, if successful, would be antithetical to his litigation position. The Court finds it more

11 plausible that Mr. Antoninetti made the litigation-related visits with the goal of being denied

12 the Chipotle Experience, such that Mr. Antoninetti could establish a violation of the CDPA.

13 At trial, counsel for Defendant asked Mr. Antoninetti why, after initiating the lawsuit, he

14 revisited the Pacific Beach Restaurant shortly before his deposition:

15

Q: And the reason you went to the Pacific Beach Restaurant on Sunday, October

1st, [2006,] just a few days before your deposition, was in order to prepare for

16

your deposition, correct?

17

A: Well, in some ways, since I wanted to refresh my memory; and maybe it

sounds silly, but to see if I was doing the right thing.

18

Q: Are you done?

19

A: Yes. Sorry.

20

Q: And the reason you went was to gather evidence to support your lawsuit

21

against Chipotle, correct?

22

A: I didn’t gather any evidence besides my own experience.

23

Q: But you wanted to refresh your memory so that you could give good testimony

at your deposition that would support your case?

24

A: I wanted to repeat the experience, yes.

25

26 (Dkt. No. 267, Transcript of Nov. 30, 2007 Proceedings, at 442:12-443:1 (emphasis added).)

27 Clearly, the experience Mr. Antoninetti was referring to above was not the “Chipotle

28 Experience,” but rather the experience giving rise to Plaintiff’s CDPA claims. Mr. Antoninetti

8

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1 erased any doubt in this regard later during his cross-examination:

2

Q: You testified earlier, a few minutes ago, that you went back to Chipotle

because you wanted to repeat the experience, correct?

3

A: The couple days prior to my deposition, yes.

4

Q: And what you meant by that was that you wanted to repeat what you thought

5

was a bad experience, correct?

6

A: Yes, correct.

7

Q: To help you gather evidence for your lawsuit, correct?

8

A: Once again, to refresh my memory, if it is evidence or not.

9 (Id. at 453:19-454:3.) In light of Mr. Antoninetti’s live trial testimony, as well as the nature of

10 his position in this litigation, the Court finds, notwithstanding his subsequent declaration to

11 the contrary, that Mr. Antoninetti did not intend during the litigation-related visits “to have the

12 ‘Chipotle Experience.’” Antoninetti, 643 F.3d at 1177.

13

Lastly, the Court notes that allowing § 54.3 statutory damages for visits made with the

14 express intention of advancing a CDPA plaintiff’s position in litigation would enable CDPA

15 plaintiffs essentially to write their own damages check. For all these reasons, the Court

16 DENIES Plaintiff’s request for $3,000 in additional damages for the litigation-related visits.

17

18

b. Non-litigation-related visits

19

20

The Court address two issues in connection with Mr. Antoninetti’s five non-litigation-

21 related or “bona fide” visits: (1) whether Plaintiff should receive multiple statutory damages

22 awards for visits on which Plaintiff has established multiple violations; and (2) whether

23 Plaintiff is entitled to damages for visits the exact dates of which Mr. Antoninetti cannot recall.

24

25

(1) Multiple statutory damages awards

26

27

In the Findings of Fact, Conclusions of Law, and Judgment, the Court awarded $1,000

28 for each of the five “bona fide” visits, based on Defendant’s failure to provide equal access

9

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1 to the food service area for customers in wheelchairs. The Court specifically declined to

2 award additional damages for the two visits (out of those five) on which the Court found that

3 Mr. Antoninetti also encountered an additional violation of the ADA in the parking lot. (Dkt.

4 No. 229 at 38-39) (holding that the CDPA “does not provide damages for each and every

5 architectural barrier that Plaintiff encounters” on a particular occasion and therefore “relief

6 is capped at the $1000.00 [per ‘bona fide’ visit] that Plaintiff is already awarded for

7 Defendant’s failure to provide Plaintiff with equivalent facilitation within the Restaurants”

8 (citations omitted)).

9

Plaintiff does not contest this proposition, seeking a damages award of only $8,000.

10 (Dkt. No. 335-1 at 3.) Specifically, Plaintiff seeks to recover the $5,000 “which has already

11 been awarded to” Plaintiff, in addition to “$3,000 in damages for ‘litigation-related’ visits.”

12 (Id.) Accordingly, on remand the Court need not revisit the issue of whether Defendant is

13 liable for more than $5,000 in statutory damages in connection with Mr. Antoninetti’s five non-

14 litigation-related visits as a result of the additional parking lot violations.

15

16

(2) Damages for visits on uncertain dates

17

18

Defendant argues that Plaintiff is not entitled to damages for three out of the five non-

19 litigation-related visits because Mr. Antoninetti was unable to recall the exact dates of those

20 three visits. (Dkt. No. 354 (citing Dkt. No. 335-3, Declaration of Maurizio Antoninetti in

21 support of Plaintiff’s Motion for Summary Judgment, at ¶ 4).) Citing Reycraft v. Lee, 177 Cal.

22 App. 4th 1211, 1226 (4th Dist. 2009), Defendant argues that Mr. Antoninetti’s failure to recall

23 the exact dates of these three visits renders Plaintiff unable to establish that these visits were

24 “particular occasions” on which Mr. Antoninetti suffered discrimination.

25

The plaintiff in Reycraft was an adult woman with partial paralysis on her right side

26 who spent the month of February 2004 visiting her sister-in-law in a mobile home park. At

27 some point during that month, on a date the plaintiff could not recall, she “visited” the park’s

28 pool and discovered that she was unable to use the pool due to the absence of a lift or other

10

05cv01660 BTM (WMc)

Case 3:05-cv-01660-BTM-WMC Document 359 Filed 03/21/12 Page 11 of 13

1 device to help her get in or out. 177 Cal. App. 4th at 1215-16. Following a bench trial, the

2 trial court ruled against the plaintiff on her sole claim of money damages under California

3 Civil Code § 54.3. The appellate court affirmed, in part based on its conclusion that “the

4 stipulated facts [were] not specific enough to show an actual denial or interference with

5 access on a particular occasion . . . .” Id. at 1225 (emphasis added). The court noted:

6

Plaintiff does not recall the exact date of her visit. Nothing is revealed about

the circumstances of her visit to the Park or to the pool. Plaintiff simply states

7

she “visited” the pool without saying how she visited. Standing alone, the word

“visited” is ambiguous in this context. For example, did plaintiff “visit” the pool

8

by simply driving by and observing it from afar without actually seeking or

attempting admittance in some way?

9

10 Id. The Reycraft plaintiff’s inability to recall the exact date of the visit was one of many

11 problems with her attempt to establish that a violation had occurred.

12

In the present case, by comparison, Mr. Antoninetti has established facts that are

13 “specific enough to show an actual denial or interference,” despite his failure to recall the

14 exact dates of three visits. After listening to four days of testimony, the trial court found that

15 Mr. Antoninetti made at least eight visits to Defendant’s restaurants (Dkt. No. 229 at 38) and

16 that he ordered food on each visit (Id. at 25). In his declaration supporting the present

17 summary judgment motion, Mr. Antonetti stated, with respect to the three visits the dates of

18 which he could not recall:

19

I ordered and paid for my food. On all these visits, I was unable to see the

food preparation area, the bins of food on display or the making of my entree

20

because of a high wall that blocked my view.

21 (Dkt. No. 335-3 at ¶ 4.) The record before this Court, consisting of the trial testimony and the

22 trial court’s factual findings, establishes five particular occasions on which Mr. Antoninetti

23 made non-litigation-related visits to Defendant’s restaurants, traveled the food service line,

24 and ordered food. Defendant has not meaningfully contested the number of times Mr.

25 Antonetti visited a Chipotle restaurant, nor has it introduced any support for its argument that

26 Plaintiff needs to prove the date of each individual violation in order to recover statutory

27 damages. The Court declines to read this limitation into § 54.3.

28

Based on the reasons stated above, the Court GRANTS Plaintiff’s summary judgment

11

05cv01660 BTM (WMc)

Case 3:05-cv-01660-BTM-WMC Document 359 Filed 03/21/12 Page 12 of 13

1 motion to the extent Plaintiff seeks $5,000 in statutory damages for the five non-litigation-

2 related visits.

3

4

IV. ATTORNEYS’ FEES AND COSTS

5

6

In its November 29, 2010 order, the Court stated that “[b]ecause additional attorneys’

7 fees beyond this increased amount may be appropriate for work done after the Ninth Circuit

8 has issued its mandate, the Court, in the interest of judicial economy, will address attorneys’

9 fees after the other issues on remand are resolved.” (Dkt. No. 329 at 3.) Despite this clear

10 language, Plaintiff moved for attorneys’ fees and costs relating to Plaintiff’s opposition to

11 Defendant’s petition for certiorari on April 29, 2011. (See Dkt. No. 336.) Since Plaintiff

12 brought this motion prematurely, the Court DENIES Plaintiff’s motion for attorneys’ fees at

13 this time without prejudice.

14

15

V. CONCLUSION

16

17

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN

18 PART Plaintiff’s motion for summary judgment (Dkt. No. 335). The Court DENIES

19 Plaintiff’s request for injunctive relief and for $3,000 in statutory damages for the three

20 “litigation-related” visits, and GRANTS Plaintiff’s request for $5,000 in statutory damages

21 for the five “bona fide” visits. The Court DENIES as premature Plaintiff’s motion for

22 attorneys’ fees and costs (Dkt. No. 336), without prejudice.

23 //

24 //

25 //

26 //

27 //

28 //

12

05cv01660 BTM (WMc)

Case 3:05-cv-01660-BTM-WMC Document 359 Filed 03/21/12 Page 13 of 13

1

The Clerk shall enter judgment for Plaintiff and against Defendant in the amount of

2 $5,000 in damages. The parties shall appear before the Court on April 3, 2012, at 1:30

3 p.m., to discuss the issues on attorneys’ fees and the most efficient way of deciding those

4 issues.

5

6 IT IS SO ORDERED.

7 DATED: March 21, 2012

8

BARRY TED MOSKOWITZ, Chief Judge

9

United States District Court

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28

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05cv01660 BTM (WMc)

 
 1

2

3

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5

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI,

Case No. 05cv01660 BTM (WMc)

12 v.
13

Plaintiff,

CHIPOTLE MEXICAN GRILL, INC., 14

Defendant. 15

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES, COSTS AND OTHER EXPENSES

16

Pending before the Court is Plaintiff Livia Antoninetti’s1 “Motion for Attorneys’ Fees,

17 Costs and Other Expenses” (Doc. 364). For the reasons set forth herein, Plaintiff’s motion

18 is GRANTED IN PART and DENIED IN PART. The Court presumes the parties’ familiarity 19 with the facts.2

20 //

21 //

22 //

23 //

24
1Following the death of Livia Antoninetti’s husband, Maurizio Antoninetti, on May 9, 25 2011, Mrs. Antoninetti substituted in as Plaintiff in the above-captioned matter. (See Doc.
349.) 26
2For a more detailed review of the facts giving rise to Plaintiff’s claims in this case, see 27 Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1169-71 (9th Cir. 2010). For a
review of events occurring in this litigation following remand from the Ninth Circuit, see the 28 Court’s March 21, 2012 “Order re Plaintiff’s Motions for Summary Judgment and for
Attorneys’ Fees” (Doc. 359).

1

05cv01660 BTM (WMc)

1

LEGAL STANDARD

2

3

Under 42 U.S.C. §12205, the “prevailing party” in an Americans with Disabilities Act

4 (“ADA”) action can recover “reasonable attorney’s fees, including litigation expenses, and

5 costs.” Likewise, the prevailing plaintiff is entitled to fees and costs under California's

6 disability access laws. See Cal. Civ. Code §§ 52(a), 54.3(a), 55.

7

The amount of the prevailing party’s reasonable attorneys’ fees is calculated by

8 utilizing the lodestar method. Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th

9 Cir. 2008). To calculate the “lodestar,” the court multiplies the number of hours the prevailing

10 party reasonably expended on the litigation by a reasonable rate. Morales v. City of San

11 Rafael, 96 F.3d 359, 363 (9th Cir. 1996). There is a strong presumption that the lodestar

12 figure represents a reasonable fee. Harris v Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994).

13

Courts may adjust the lodestar figure upward or downward based upon the following

14 factors enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1)

15 the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the

16 skill requisite to perform the legal service properly, (4) the preclusion of other employment

17 by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is

18 fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the

19 amount involved and the results obtained, (9) the experience, reputation, and ability of the

20 attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional

21 relationship with the client, and (12) awards in similar cases.

22 //

23 //

24 //

25 //

26 //

27 //

28 //

2

05cv01660 BTM (WMc)

1

DISCUSSION

2

3

Plaintiff seeks a total costs and fees award of $1,123,942.29. This costs and fees

4 request consists of the following elements:

5 Item 6 Billed time for Amy Vandeveld 7 Billed time for David Ferleger

Hours 1,736.40 59.9

Rate $620.00 $550.00

Amount $1,054,441.50 $32,945.00

8 Copy costs associated with Plaintiff’s opposition to Defendant’s cert. petition

--

--

$1,908.75

9 “Litigation expenses”

--

--

$25,726.33

10 “Costs”

--

--

$8,920.73

11

12

The parties do not dispute that Plaintiff is entitled to reasonable attorneys’ fees and

13 costs. Defendant Chipotle Mexican Grill, Inc. challenges the requested award both as to the

14 number of recoverable hours and as to the reasonableness of Plaintiff’s proposed hourly

15 rate. Additionally, Defendant challenges Plaintiff’s right to recover for copying costs

16 associated with Plaintiff’s opposition to Defendant’s petition for certiorari. The Court

17 addresses these arguments in turn.

18 19 a.

Recoverable hours

20

21

To organize the analysis of Defendant’s many challenges to Plaintiff’s requested

22 recoverable hours, the Court reviews the requested hours in two sections: hours billed prior

23 to the Ninth Circuit’s remand to this Court (including hours billed in opposition to Defendant’s

24 petition for certiorari) (“pre-mandate hours”); and hours billed as a result of litigation occurring

25 in the district court after the remand (“post-mandate” hours).

26 //

27 //

28 //

3

05cv01660 BTM (WMc)

1

1. Pre-mandate hours

2

3

The bulk of Plaintiff’s attorneys’ fees request consists of pre-mandate hours. This

4 category includes all hours spent litigating this case through a bench trial before Judge Jones

5 in 2007, briefing and arguing the case on appeal to the Ninth Circuit, and preparing an

6 opposition to Defendant’s petition for certiorari to the United States Supreme Court.

7

First, Defendant challenges Plaintiff’s request for pre-mandate hours on the ground

8 that Plaintiff achieved only limited success in this action, and Plaintiff cannot be considered

9 the prevailing party with respect to every issue. Defendant essentially argues that Plaintiff

10 has made no progress since appealing Judge Jones’s initial order in 2008: Judge Jones

11 awarded no injunctive relief, $5,000 in statutory damages for five non-litigation-related (“bona

12 fide”) visits, and no statutory damages for three “litigation-related” visits; after remand, this

13 Court awarded the exact same in its March 21, 2012 order. Chipotle further argues that this

14 Court’s 2010 judgment does not constitute “relief” because it did not result in any action.

15

The following summarizes the events in this litigation relevant to this particular

16 argument: Throughout this litigation, Plaintiff has argued that high counter walls at Chipotle

17 constituted a violation of the ADA because they prevented customers in wheelchairs from

18 being able to view the food preparation counter. On that basis, Mr. Antoninetti, a frequent

19 visitor to Chipotle restaurants, sought injunctive relief and statutory damages. In 2008,

20 Judge Jones ruled that the walls did not violate the ADA, because Chipotle’s written policy

21 for accommodating customers in wheelchairs constituted equivalent facilitation. Accordingly,

22 he denied Chipotle’s request for an injunction requiring Chipotle to lower its walls and

23 awarded $5,000 in damages for five visits made by Mr. Antoninetti before the implementation

24 of the written policy. Judge Jones also awarded Plaintiff only a small fraction of the

25 attorneys’ fees requested at that time, on the ground that Plaintiff had achieved only limited

26 success. On appeal, the Ninth Circuit reversed Judge Jones and found that the high walls

27 constituted a violation of the ADA. The Ninth Circuit vacated the damages award and

28 remanded the case for a determination of the proper scope of injunctive relief and damages.

4

05cv01660 BTM (WMc)

1 The Ninth Circuit also vacated and remanded Judge Jones’s fees and costs award. In 2010,

2 this Court entered a partial judgment in favor of Plaintiff. On March 21, 2012, the Court ruled

3 that Mr. Antoninetti’s untimely death mooted the claim for injunctive relief, awarded $5,000

4 in statutory damages for the five pre-litigation visits to Chipotle, and ruled that Plaintiff was

5 entitled to no damages for the three litigation-related visits.

6

By receiving a decision from the Ninth Circuit reversing Judge Jones and affirming

7 Plaintiff’s basic position, Plaintiff won the core legal issue in this litigation: whether Chipotle’s

8 high counter walls violated the ADA. As a practical matter, this decision could assist Plaintiff,

9 despite the untimely death of Mr. Antoninetti, insofar as it establishes legal precedent that

10 may be useful in a separate class action in which Mr. Antoninetti’s estate is participating.

11 More importantly, as a legal matter, the 2010 partial judgment entered by this Court in favor

12 of Plaintiff on remand from the Ninth Circuit makes Plaintiff the “prevailing party” with respect

13 to this core issue, notwithstanding the fact that Plaintiff ultimately received no injunctive relief.

14 See San Diego Police Officers’ Ass’n v. San Diego City Employees Ret. Sys., 568 F.3d 725,

15 741 (9th Cir. 2009) (“Courts consistently confirm that ‘[a] party in whose favor judgment is

16 rendered is generally the prevailing party for purposes of awarding costs under Rule 54(d).’”

17 (quoting d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 896 (9th Cir.1977))).

18

The only issue on which Plaintiff did not prevail is her claim for $1,000 in statutory

19 damages for each of Mr. Antoninetti’s three litigation-related visits to Chipotle made after the

20 start of this lawsuit. Upon careful review of Ms. Vandeveld’s billing statement, the Court finds

21 it impossible to determine which entries relate specifically to the issue of litigation-related

22 visits.3 Since the Court is unable to eliminate only the hours spent litigating the litigation-

23 related visits issue, the Court reduces Ms. Vandeveld’s recoverable hours on the basis of

24 limited success as follows: (a) There is no reduction in the hours billed for opposition

25 Defendant’s petition for certiorari (as litigation-related visits were not at issue there); (b) The

26

27
3The only entry in Ms. Vandeveld’s entire 71-page billing statement referencing 28 “litigation-related” visits is a 0.2 hour entry on January 10, 2011, described as “Email to client
regarding evidence of ‘litigation related’ visits[.]” (Vandeveld Decl. Ex. D at 62, Doc. 366.)

5

05cv01660 BTM (WMc)

1 final amount of all other reasonable hours will be reduced by 25 percent.4

2

Second, Defendant broadly requests a “substantial reduction” of all block-billed hours.

3 The Court agrees that a full recovery for block-billed billing entries is inappropriate, and

4 accordingly reduces the number of block-billed hours by 20%. See Welch v. Metropolitan

5 Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (holding district court may reduce block-billed

6 hours by 20% in light of California State Bar report concluding that block-billing “may

7 increase time by 10% to 30%”). The Court has reviewed the billing statements for Ms.

8 Vandeveld (Vandeveld Decl. Ex. D, Doc. 366), and has determined that she block-billed

9 341.5 pre-mandate hours.5 Accordingly, the Court reduces Ms. Vandeveld’s recoverable

10 hours by 68.3 hours.

11

The Court has also reviewed Mr. Ferleger’s billing statement (Ferleger Decl. Ex. A,

12 Doc. 372-2). Mr. Ferleger was retained for the exclusive purpose of assisting in the

13 preparation of Plaintiff’s opposition to Defendant’s petition for certiorari. The Court

14 determines that 41.1 of Mr. Ferleger’s requested 59.9 hours were block-billed. These 41.1

15 hours were billed in four separate 7+ hour entries with the description “research and draft

16 brief.” (Id. at 2.) These descriptions are consistent with Mr. Ferleger’s representation to the

17 Court that “the time expended was for intense and prolonged research and writing,” and that

18 he did not bill at least an additional 18 hours spent communicating with Ms. Vandeveld and

19 reviewing and editing his work. (Ferleger Decl. ¶ 24, Doc. 372-2.) Based on this

20 representation, the Court declines to reduce Mr. Ferleger’s block-billed hours.

21
4The Court reaches the 25 percent figure as follows: The two main issues in this case 22 were whether Plaintiff was entitled to injunctive relief (i.e. whether the high walls violated the
ADA), and whether Plaintiff was entitled to damages. Plaintiff prevailed as to the first issue, 23 and the Court shall permit recovery of the full amount of the first 50% of the reasonable hours
on the basis that success. Plaintiff prevailed on the claim for statutory damages arising out 24 of Mr. Antoninetti’s bona fide visits, but lost her claim for damages arising out of the litigation-
related visits. Accordingly, the Court only awards half of the 50% of reasonable recoverable 25 hours attributable to the damages issue. Since half the reasonable recoverable hours are
awarded in full, and half were reduced by half, Plaintiff’s overall reasonable recoverable 26 hours are reduced by 25%.

27

5In reviewing Ms. Vandeveld’s billing entries, the Court regarded as “block-billed” any

entry for which Ms. Vandeveld attributed three or more hours to two or more independent 28 tasks. Attached as Appendix A to this Order is a chart listing the dates of all block-billed

entries and the number of hours block-billed on those dates.

6

05cv01660 BTM (WMc)

1

Third and finally, Defendant alleges that Plaintiff’s hours are “inflated,” and seeks a

2 general reduction on those grounds.6 Although the Court agrees that Plaintiff’s requested

3 pre-mandate hours represent a large amount, this case was litigated aggressively by both

4 parties--through a full bench trial, appeal to the Ninth Circuit, and a petition for certiorari to

5 the United States Supreme Court. The Court does not find any hours per se unreasonable

6 and declines to reduce Plaintiff’s requested hours based on Defendant’s general allegation

7 that they are excessive.

8

9

2. Post-mandate hours

10

11

The post-mandate hours include all hours billed for litigation occurring in this Court

12 after the publication of the Ninth Circuit’s amended decision on September 22, 2010.

13 Defendant contends that Plaintiff is not entitled to hours billed litigating this case in the district

14 court after Plaintiff rejected Defendant’s January 2011 settlement offer, arguing that such

15 litigation was unnecessary and could not result in any additional benefit to Plaintiff. The

16 Court agrees.

17

Shortly after the Court entered judgment in favor of Plaintiff on November 29, 2010,

18 Defendant proposed a stipulated injunction and offered to pay all $8,000 in Plaintiff’s

19 requested damages. Plaintiff rejected the settlement offer on the grounds that the offer

20 included neither an admission of liability nor an award of fees, and that acceptance of the

21 offer would therefore impair Plaintiff’s ability to recover attorneys’ fees and costs. Plaintiff

22 cites two cases in support of this proposition, but neither are on point.

23

24

6The only example provided by Defendant of Plaintiff’s counsel’s alleged inflated billing

is the preparation of the brief in opposition to the petition for certiorari, for which Ms.

25 Vandeveld and Mr. Ferleger billed a combined 143.7 hours. The Court has reviewed this

brief (Ferleger Decl. Ex. C, Doc. 372-2), and finds that it represents an obvious investment

26 of a substantial amount of time: It cites to 40 cases and nine statutes, as well as to

legislative history and academic articles; it is 35 pages long and contains 52 footnotes; and

27 it was successful. Upon careful review of the opposition brief itself and Plaintiff’s counsel’s

billing statements, the Court finds that 143.7 hours is not an unreasonable amount of time

28 to spend opposing certiorari--except insofar as certain of those hours are contained in block-

billed entries, for which the Court reduces Ms. Vandeveld’s billed time as explained above.

7

05cv01660 BTM (WMc)

1

First, Plaintiff argues that if she had agreed to the settlement, the settlement would

2 have mooted the case while Defendant’s petition for certiorari was pending before the

3 Supreme Court. Citing United States v. Munsingwear, Inc., 340 U.S. 36 (1950), Plaintiff

4 argues that Supreme Court protocol under those circumstances is to vacate the judgment

5 of the appellate court and remand to the district court with instructions to dismiss. See Reply

6 Br. at 8 (Doc. 375). If that happened, Plaintiff would lose the judgment in her favor--and her

7 ability to collect fees. The problem with this argument, however, is that the settlement

8 agreement would not have mooted the underlying case, because the issue of attorneys’ fees

9 would have remained.

10

Second, Plaintiff cites Doran v. North State Grocery, Inc., 137 Cal. App. 4th 484 (3d

11 Dist. 2006), for the proposition that if she had entered a settlement that did not award

12 attorneys’ fees and did not stipulate liability, she would be precluded from subsequently

13 seeking costs and fees under § 51 of the the California Disabled Persons Act (“CDPA”).

14 See Reply Br. at 8. However, Doran denied attorneys’ fees on ground that Plaintiff had not

15 established liability under the CDPA. In that case, there was no concession of liability in the

16 settlement agreement, and no court had entered judgment in favor of Plaintiff finding liability.

17 In the present case, however, the Ninth Circuit specifically found that the high walls

18 constituted a violation of the ADA, and this Court entered a judgment in favor of Plaintiff to

19 that effect. Since, as stated above, a settlement on the issues of injunctive relief and

20 damages would not have mooted the entire case, such that the Ninth Circuit’s judgment

21 would have been vacated, Plaintiff’s argument that the proposed settlement agreement

22 would have deprived Plaintiff of her ability to recover fees is incorrect.

23

Consequently, the Court agrees with Defendant that Plaintiff is not entitled to recover

24 fees for hours billed litigating the issues of injunctive relief and damages in this Court on

25 remand. Defendant requests, on this basis, that the Court reduce Ms. Vandeveld’s

26 recoverable hours by 106 hours--a figure Plaintiff does not directly contest. However,

27 included in this 106 hours is 24.1 hours billed on Plaintiff’s premature attorneys’ fees motion

28 (Doc. 336). See Opp. Br. at 11, 20 (Doc. 373). Upon review of the premature attorneys’ fees

8

05cv01660 BTM (WMc)

1 motion, the Court finds that the premature motion was obviously used to prepare the present

2 motion, such that there was no unreasonable duplication of effort, and finds that Plaintiff is

3 entitled to recover those 24.1 hours. Accordingly, the Court reduces Plaintiff’s recovery for

4 post-mandate litigation by 81.9 hours.

5

6

3. Total hours

7

8

The total number of hours the Court awards to Plaintiff for the work of Ms. Vandeveld

9 is 1210.6. The Court arrives at this figure through the following three steps: First, from

10 Plaintiff’s original request of 1736.4 hours for Ms. Vandeveld’s work, the Court subtracts 68.3

11 as a result of block-billing, and 81.9 as a result of unnecessary, post-settlement offer

12 litigation. This results in 1586.2 hours that are at least partly compensable.

13

Second, out of these 1586.2 hours, the hours spent opposing Defendant’s petition for

14 certiorari are fully compensable. The Court finds that Ms. Vandeveld spent 83.8 hours

15 litigating the opposition to the petition for certiorari: Plaintiff does not challenge Defendant’s

16 claim that Ms. Vandeveld and Mr. Ferleger spent a combined 143.7 hours litigating the

17 opposition to the petition, and Mr. Ferleger seeks 59.9 hours, leaving a difference of 83.8

18 hours. Thus, the Court divides the 1586.2 compensable hours into 83.8 fully compensable

19 hours, and 1502.4 partly compensable hours.

20

Third, the Court reduces the 1502.4 partly compensable hours by 25% on the basis

21 of Plaintiff’s limited success, resulting in the award of an additional 1126.8 hours for time

22 spent litigating all matters other than the opposition to the petition for certiorari. Thus, the

23 final award for Ms. Vandeveld’s work is thus 83.8 hours plus 1126.8 hours, which equals

24 1210.6 hours.

25

The total number of hours the Court awards for the work of Mr. Ferleger is 59.9.

26 //

27 //

28 //

9

05cv01660 BTM (WMc)

1 b. Hourly rate

2

3

The party seeking fees bears the burden “to produce satisfactory evidence--in addition

4 to the attorney’s own affidavits--that [his] requested [hourly] rates [were] in line with those

5 prevailing in the community for similar services by lawyers of reasonably comparable skill,

6 experience and reputation.” Grove v. Wells Fargo Financial California, Inc., 606 F.3d 577,

7 583 (9th Cir. 2010) (citation and quotation marks omitted) (alterations in original). Plaintiff

8 argues that Ms. Vandeveld’s reasonable hourly rate is $620, and that Mr. Ferleger’s

9 reasonable hourly rate is $550.

10

In support of her requested hourly rate, Ms. Vandeveld submits the declarations of

11 Dara Schur and Richard Pearl. Neither of these declarations, however, introduce evidence

12 supporting Plaintiff’s contention that the requested rates are the prevailing rates in San Diego

13 for ADA and CDPA lawsuits brought by lawyers of similar skill and experience. Moreover,

14 at oral argument, counsel for Plaintiff was unable to cite any case awarding a comparable

15 hourly rate in a similar case in San Diego, nor is the Court aware of such a case. The Court

16 finds more persuasive the declaration of Michael Hensley (Doc. 373-4), submitted in support

17 of Defendant’s opposition to Plaintiff’s fees motion. The Hensley declaration considers

18 similar awards in the Southern District of California specifically and in ADA cases throughout

19 California.

20

Based on a review of the evidence submitted by the parties, the Court concludes that

21 $375/hour is a reasonable rate for Ms. Vandeveld’s work in this case. See Vega v.

22 Tradesmen Int’l., Inc., 10cv00459, 2011 WL 1157683, at *3 (S.D. Cal. Mar. 29, 2011) (“In

23 more complex [ADA] cases [in the Southern District of California], fees of up to $375 per hour

24 may be considered reasonable.”) This rate is consistent with Judge Jones’s fee award to Ms.

25 Vandeveld in 2008, Ms. Vandeveld’s fee request in 2010, previous awards to Ms. Vandeveld

26 in other cases, and awards to attorneys of similar experience and in similar cases in the

27 Southern District of California. In consideration of the Kerr factors, the Court enhances Ms.

28 Vandeveld’s rate to $400/hour because of the contingency nature of the fee and the

10

05cv01660 BTM (WMc)

1 extended length of the litigation. Essentially, Ms. Vandeveld was required to “finance” the

2 costs of the litigation and is entitled to some increase to compensate for that. The Court

3 believes that other factors motivating in favor of a larger recovery (complex legal issues and

4 time required to litigate through trial and appeal) are compensated by the large number of

5 hours billed for Ms. Vandeveld’s work.

6

Mr. Ferleger supports his requested rate of $550/hour by submitting his own

7 declaration, in which he states that: (a) He is an attorney of 38 years, a specialist in disability

8 law, and a routine practitioner before the United States Supreme Court; (b) his work was

9 required on an extremely short time frame; and (c) the requested rate is “what client paying

10 market-rates would have been charged for litigation in the Supreme Court of the United

11 States.” (Ferleger Decl. ¶¶ 17, 26, Doc. 372-2.) Defendant does not meaningfully contest

12 Mr. Ferleger’s declaration; Defendant states only that the declaration “says nothing regarding

13 the market rate in the San Diego area for ADA work.” See Opp. Br. at 16. However, Mr.

14 Ferleger works out of Pennsylvania, not San Diego, and the court before which he practiced

15 in this litigation was the United States Supreme Court. The Court finds no reason to doubt

16 the veracity of Mr. Ferleger’s asserted market rate. Moreover, the Court notes that this rate

17 is consistent with rates awarded in other cases to experienced Supreme Court practitioners

18 for work performed in opposition to a petition for certiorari. See, e.g., Deal ex rel Deal v.

19 Hamilton Cty. Dept. of Educ., 1:01-cv-295, 2006 WL 2854463, at *15-16 (E.D. Tenn. Aug.

20 1, 2006) (finding $590/hour to be reasonable rate for work performed by “experienced and

21 well-respected Supreme Court practitioner” in opposition to petition for certiorari).

22

23 c. Total fees award

24

25

Based on the forgoing, the Court awards Plaintiff attorneys’ fees in the amount of

26 $484,240.00 for the work of Ms. Vandeveld, and $32,945.00 for the work of Mr. Ferleger.

27 The breakdown of this award is as follows:

28

11

05cv01660 BTM (WMc)

1 Timekeeper

Recoverable Hours

2 Ms. Vandeveld 1210.6

3 Mr. Ferleger

59.9

Reasonable Rate $400/hour $550/hour

Amount $484,240.00 $32,945.00

4

5 d. 6

Costs and expenses

7

Plaintiff seeks recovery of $1,908.75 in copy costs incurred opposing Defendant’s

8 petition for certiorari, $25,726.33 in “litigation expenses,” and $8,920.73 in “costs.”

9 Defendant specifically challenges only the $1,908.75 in copy costs, claiming that amount was

10 spent litigating the “unsuccessful injunctive relief claim.” See Opp. Br. at 11. The Court has

11 already held that Plaintiff is entitled to full recovery of reasonable costs and fees associated

12 with the opposition to the petition for certiorari. The Court finds that $1,908.75 is a

13 reasonable expenditure on copy costs for an opposition to a petition for certiorari.

14

The Court has reviewed the invoices associated with Plaintiff’s requests for “costs”

15 and “litigation expenses,” submitted with Ms. Vandeveld’s billing statement (see Doc. 366 at

16 69-71), and finds them also to be reasonable. However, aside from the copy costs

17 associated with the opposition to the petition for certiorari, the Court finds it impossible to

18 determine which costs and expenses were incurred litigating the unsuccessful claim for

19 statutory damages for litigation-related visits. Accordingly, the Court reduces Plaintiff’s

20 requested “costs” and “litigation expenses” by 25 percent, and awards Plaintiff $6,690.55 in

21 “costs” and $19,294.75 in “litigation expenses.”

22 //

23 //

24 //

25 //

26 //

27 //

28 //

12

05cv01660 BTM (WMc)

1

CONCLUSION

2

3

For the reasons set forth above, the Court GRANTS IN PART and DENIES in PART

4 Plaintiff’s motion for attorneys’ fees and costs, and awards Plaintiff $484,240.00 in fees for

5 work performed by Ms Vandeveld, $32,945.00 in fees for work performed by Mr. Ferleger,

6 $1908.75 in copy costs associated with Plaintiff’s opposition to the petition for certiorari,

7 $6,690.55 in “costs,” and $19,294.75 in “litigation expenses, for a total award of $545,079.05.

8

The Clerk shall enter a final “Amended Judgment” in favor of Plaintiff and against

9 Defendant in the amount of $550,079.05, consisting of $545,079.05 in fees and costs and

10 $5,000 in damages already entered pursuant to the Court’s judgment dated March 21, 2012

11 (Doc. 360)).

12

13 IT IS SO ORDERED.

14 DATED: July 17, 2012

15

BARRY TED MOSKOWITZ, Chief Judge

16

United States District Court

17

18

19

20

21

22

23

24

25

26

27

28

13

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1

APPENDIX A

2

Date

Block‐billed time

3

6/23/2006

3.1

7/27/2006

6.4

4

10/10/2006

6.8

10/25/2006

5.2

5

11/13/2006

3.8

1/11/2007

4.7

6

1/23/2007

4.8

1/24/2007

5.1

7

1/25/2007

10

2/7/2007

4.3

8

4/6/2007

3.8

4/10/2007

7.2

9

4/17/2007

7.1

4/23/2007

5.3

10

5/11/2007

6.2

5/15/2007

9.3

11

5/16/2007

9.8

5/17/2007

8.3

12

5/18/2007

8.6

5/21/2007

8.3

13

5/22/2007

7.2

5/23/2007

7.8

14

6/27/2007

6.5

7/10/2007

6.1

15

7/11/2007

6.3

7/12/2007

5.2

16

8/6/2007

5.3

8/9/2007

6.8

17

8/28/2007

3.2

9/18/2007

5.7

18

9/21/2007

8.6

9/24/2007

5.8

19

9/28/2007

5.3

10/1/2007

8.6

20

10/29/2007

5.3

10/30/2007

5.3

21

11/1/2007

7.8

11/2/2007

5.5

22

11/8/2007

7.2

11/15/2007

4.8

23

11/16/2007

5.8

11/22/2007

6.7

24

11/24/2007

8.3

11/28/2007

7.8

25

1/14/2008

8.7

1/15/2008

7.2

26

1/16/2008

7.2

2/29/2008

6.7

27

3/3/2008

7.6

9/9/2008

4.2

28

2/24/2011

6.2

2/25/2011

8.3

14

05cv01660 BTM (WMc)

1

3/7/2011

4.4

2

Total

341.5

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

05cv01660 BTM (WMc)

 
 Case 3:05-cv-01660-BTM-WMC Document 382 Filed 12/26/12 Page 1 of 31
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DEC 26 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MAURIZIO ANTONINETTI, by his successor-in-interest LIVIA ANTONINETTI,
Plaintiff - Appellant/ Cross - Appellee,
v.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant - Appellee/ Cross - Appellant.

Nos. 08-55867, 08-55946, 09-55327, 09-55425
D.C. No. 05-CV-1660-BTM Southern District of California, San Diego
ORDER

Before: Peter L. Shaw, Appellate Commissioner I
Background Maurizio Antoninetti, a paraplegic, claimed that Chipotle Mexican Grill’s accommodations for wheelchair-using customers wishing to enjoy the Chipotle experience -- viewing food choices and watching food preparation -- violated the Americans with Disabilities Act (“ADA”) and the California Disabled Persons Act. The district court denied Antoninetti’s request for an injunction against walls at two Chipotle restaurants that prevented wheelchair users from observing food

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preparation counters. The district court determined that Chipotle’s unwritten prelitigation policy for accommodating wheelchair users violated the ADA, but that Chipotle had complied with the ADA in a written policy adopted after the litigation was filed that provided for showing samples or giving descriptions of the food to wheelchair users. After a bench trial, the district court awarded Antoninetti statutory damages under the California Disabled Persons Act in the amount of $5,000 for five “bona-fide” visits to Chipotle as a customer, but denied Antoninetti’s request for damages for three litigation-related visits for evidencegathering. Antoninetti appealed the judgment (No. 08-55867), and Chipotle crossappealed (No. 08-55946).
Based on Antoninetti’s limited success on the issues, the district court awarded Antoninetti one-quarter of the attorneys’ fees that he requested under the ADA, for a total of $136,537.38. Antoninetti appealed the fee award (No. 0955327), and Chipotle cross-appealed (No. 09-55425). Antoninetti filed a motion to consolidate the four appeals. Because briefing of the first set of cross-appeals, numbers 08-55867 and 08-55946, had been completed, the court consolidated the four appeals for disposition only. This court affirmed in part, reversed in part, vacated in part, and remanded to the district court for further proceedings, holding that Chipotle’s written post-litigation accommodations policy and the two walls

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also violated the ADA, and that the district court erred by denying Antoninetti’s requests for injunctive relief and additional attorneys’ fees. See Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1168-69 (9th Cir. 2010). Because the outcome had changed -- Antoninetti now had prevailed on the two major issues that he lost before the district court -- this court stated that the district court should reexamine and reconsider its attorney’s fees award, but expressed no view regarding what would be a reasonable fee for the district court proceedings in light of the changed circumstances. Id. at 1176.
On remand, the district court entered judgment against Chipotle for violation of the ADA. The district court granted in part and denied in part Antoninetti’s motion for summary judgment, granting Antoninetti’s request for $5,000 in statutory damages for five “bona-fide” Chipotle visits but denying Antoninetti’s request for $3,000 in damages for three litigation-related visits and denying as moot the request for injunctive relief because Antoninetti was now deceased.1 The district court also granted in part and denied in part Antoninetti’s motion for an award of attorneys’ fees, awarding fees in the amount of $545,079.05 for Antoninetti’s attorneys’ work in the district court and in opposition to Chipotle’s

1 Antoninetti died on May 9, 2011, and the district court granted his wife Livia Antoninetti’s unopposed motion to substitute as the plaintiff in this litigation. Antoninetti’s case also was transferred to District Judge Barry Ted Moskowitz.

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petition for a writ of certiorari to the United States Supreme Court. Chipotle did not appeal the district court’s judgment on remand.
Antoninetti filed a motion in this court for an award of attorneys’ fees for the court of appeals proceedings. See 9th Cir. R. 39-1. Chipotle filed an opposition, and Antoninetti filed a reply. Id. The court awarded attorneys’ fees to Antoninetti and referred to the Appellate Commissioner the determination of an appropriate amount of fees on appeal. Id. Antoninetti also filed a bill of costs in the amount of $2,393.45, and Chipotle filed an opposition. The Clerk taxed costs in the amount of $1,306.90 in favor of Antoninetti.
II Analysis A. Applicable Law Antoninetti requests an award of attorneys’ fees under the ADA, 42 U.S.C. § 12205, and the California Disabled Persons Act, Cal. Civ. Code § 54.3(a). The ADA provides that “the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee, including litigation expenses, and costs.” Antoninetti, 643 F.3d at 1176. “[U]nder federal fee-shifting statutes ‘the lodestar approach’ is ‘the guiding light’ in determining a ‘reasonable’ fee.” Id. (quoting Perdue v. Kenny A., 599 U.S. ___, ___, 130 S. Ct. 1662, 1671-73 (2010)). “Under

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that method, the court first determines the appropriate hourly rate for the work performed, and then multiplies that amount by the number of hours properly expended in doing the work.” Id. B. Attorneys’ Fees
Antoninetti requests attorneys’ fees in the amount of $414,875 for 846.8 hours of 2008-through-2010 court of appeals work by two San Diego attorneys who represented him on a contingency basis. Lead counsel Amy Vandeveld billed 776.6 hours of work at $500 per hour and 18.2 hours of timesheet entry at $125 per hour. Co-counsel Thomas Vandeveld billed 52 hours of work at $475 for assisting in the preparation of oral argument by Amy Vandeveld.
Chipotle objects that Antoninetti is overreaching and that he seeks an unreasonably high amount of fees. Chipotle argues that Antoninetti’s fee request must be sharply reduced in order to comply with basic legal principles governing fee motions, as well as to make the award reasonable as required under the ADA.
1. Reasonable Hourly Rates a. Antoninetti’s Request
Antoninetti requests a $500 hourly rate for 776.6 hours of work [and a $125 hourly rate for 18.2 hours of timesheet entry] in 2008 through 2010 by lead counsel Amy Vandeveld of San Diego, who graduated from the University of San

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Diego School of Law and was admitted to the California bar in 1988. Antoninetti also requests a $475 hourly rate for 52 hours of work in 2009 and 2010 by cocounsel Thomas Vandeveld of San Diego, who was admitted to the California bar in 1989. Both attorneys have significant experience representing people with disabilities, and state that their rates are the prevailing rates in the community for the work performed.
In support of the requested $500 hourly rate for Amy Vandeveld and $475 hourly rate for Thomas Vandeveld, Antoninetti submits declarations by Richard Pearl, Russell Handy, and Andrew Mudryk. Pearl graduated from the University of California, Berkeley School of Law in 1969, was admitted to the California bar in 1970, and has significant experience in attorneys’ fees litigation. Pearl states that “[t]he information I have gathered, some of which is summarized [in the declaration], shows that the hourly rates requested by counsel in this case are well in line with the non-contingent market rates charged by attorneys of reasonably similar qualifications for reasonably similar work in California and similar markets.”
Handy graduated from California Western School of Law and was admitted to the California bar in 1998. Handy is a partner at the Center for Disability Access in San Diego who has devoted his career to disability rights cases. Handy

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states that Amy Vandeveld and Thomas Vandeveld have demonstrated “extraordinary levels of knowledge, competency, and experience in the field of accessability law,” and that “it is my opinion that Amy Vandeveld’s services are reasonably valued at the rate of $500.00 per hour and that Thomas Vandeveld’s services are reasonably valued at the rate of $475.00 per hour.”
Andrew Mudryk graduated from George Washington University Law School and was admitted to the Michigan bar in 1989, the Arizona bar in 2003, and the California bar in 2007. Mudryk was Director of Litigation for Southern California at Protection & Advocacy, Inc. (“PAI”), a statewide non-profit law firm dedicated to advancing the rights of people with disabilities. Mudryk states that “attorneys affiliated with PAI with the level of experience of Ms. Vandeveld would seek $500.00 per hour in a fee claim in the San Diego area,” and that “in fact, if Ms. Vandeveld were an attorney affiliated with Protection & Advocacy, Inc., we would seek an award of $500.00 per hour for her services.” Yet Mudryk also states that “it is my opinion that her services are quite reasonably valued at the rate of $375.00 per hour.”
b. Chipotle’s Objections Chipotle objects that the $475 and $500 hourly rates requested by Antoninetti are excessive, unreasonable, and unprecedentedly high, and that

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Antoninetti has not satisfied his burden “to produce satisfactory evidence -- in addition to the attorney’s own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). Chipotle contends that Pearl’s, Handy’s, and Mudryk’s declarations do not show that the requested $475 and $500 hourly rates are appropriate for ADA cases in the San Diego area, and that hourly rates in the range of $250 to $325 are more appropriate for ADA actions such as this one.
Chipotle notes that, based in part on Mudryk’s declaration, Antoninetti requested $375 per hour for Amy Vandeveld in the first, pre-appeal district court fee application. In the two pre-appeal decisions regarding fees for the district court proceedings, the district court did not explicitly state or explain the hourly rate it applied. See Antoninetti, 643 F.3d at 1176. But the district court apparently applied the requested $375 hourly rate, which Chipotle did not challenge. Id. Nevertheless, this court vacated the district court’s decision, and on remand the district court awarded a $400 hourly rate for Amy Vandeveld.
c. District Court Decision After Antoninetti and Chipotle briefed the issues here regarding fees for the court of appeals proceedings, the district court decided Antoninetti’s post-remand

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motion for attorneys’ fees for the district court proceedings and opposing a petition for a writ of certiorari. With respect to Antoninetti’s request for $620 per hour for Amy Vandeveld -- Thomas Vandeveld did not appear before the district court -the district court determined that neither Pearl’s declaration, nor a declaration by Dara Schur that is not presented here, introduced evidence that the requested rate was the prevailing rate for San Diego ADA and California Disabled Persons Act lawsuits brought by lawyers of similar skill and experience. The district court stated that counsel for Antoninetti was unable to cite at oral argument a case awarding a rate comparable to $620 per hour, and that the court was not aware of such a case.
The district court concluded that $375 per hour was reasonable for Amy Vandeveld’s district court work, relying on a declaration by Michael Hensley that is not presented here and Vega v. Tradesmen Int’l, Inc., No. 10-CV-459, 2011 WL 1157683, at *3 (S.D. Cal. Mar. 29, 2011) (“In more complex [ADA] cases [in the Southern District of California], fee of up to $375 per hour may be considered reasonable.”). The district court found the rate was consistent with the previously requested rate and award for Amy Vandeveld, previous awards in other cases for Amy Vandeveld, and awards to attorneys of similar experience and in similar cases in the Southern District of California. Nevertheless, the district court awarded

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$400 per hour for Amy Vandeveld because she was required to finance the costs of the lengthy contingency fee representation. The district court also found, however, that the complexity of the legal issues and the time required to litigate through trial and appeal were compensated by the large number of hours billed and awarded.2
d. Court Of Appeals Hourly Rates The district court applied the $400 hourly rate to all of Amy Vandeveld’s district court work from 2005 through 2012. Although the district court did not explain this aspect of its $400 hourly rate calculation, it appears to reflect in part that the majority of Amy Vandeveld’s district court work was performed before the 2008 appeal. The district court relied on Vega, which in turn relied on Walker v. San Diego, 2009 WL 1010891, at *5, (S.D. Cal. 2009), where $375 per hour was awarded for Amy Vandeveld’s work from 2001 through 2009. A review of the Walker docket and fee motion shows that most of Amy Vandeveld’s work in Walker was performed during the earlier part of the 2001-through-2009 time period. Because Thomas Vandeveld’s and Amy Vandeveld’s 2008-through-2010 court of appeals work was performed later than most of Amy Vandeveld’s district

2 The district court also awarded Antoninetti’s requested $550 hourly billing rate for the work of David Ferleger, a Pennsylvania attorney with 38 years of experience, on the opposition to Chipotle’s petition for a writ of certiorari in the United States Supreme Court. Ferleger did not appear before the court of appeals.

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court work in this case and in the Walker case, the higher $475 and $500 hourly rates requested by Antoninetti here reasonably apply to the court of appeals work by Thomas Vandeveld and Amy Vandeveld. In addition, district court work differs in complexity from court of appeals work.
Although the district court rejected Pearl’s declaration in support of Antoninetti’s requested rates on the ground that it did not introduce evidence of prevailing rates for San Diego ADA and California Disabled Persons Act lawsuits, unlike in the district court, Pearl’s declaration is accompanied here by the declarations of Handy and Mudryk, who specialize in San Diego ADA litigation. Handy bases his opinion that the Vandevelds’ services are reasonably valued at the requested rates on his experience and knowledge of the fees charged by similarly qualified disability rights attorneys in the San Diego area. Similarly, Mudryk states, based on research conducted by his San Diego disability rights organization PAI, that attorneys affiliated with PAI with the level of experience of Ms. Vandeveld would request $500 per hour. Taken together, Pearl’s, Handy’s, and Mudryk’s declarations are relevant and satisfactory evidence “that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum, 465 U.S. at 896 n.11.

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In any event, in support of Antoninetti’s $475 and $500 requested rates for Thomas Vandeveld and Amy Vandeveld, who had 19 to 21 years of experience when the court of appeals work was performed, Pearl’s declaration does show with respect to the San Diego market that San Diego Gas & Electric Company hired outside counsel at 2003 hourly rates of $477 to $625 for partners with 13 or more years of experience.
In addition, Pearl sets forth hourly rates for San Francisco and Los Angeles law firms that handle complex federal litigation including appeals, as well as awards of hourly rates in complex San Francisco and Los Angeles federal and state court actions, all of which are comparable and relevant to the ADA action here. In Nadarajah v. Holder, 569 F.3d 906, 916-17 (9th Cir. 2009), the court approved reliance on fee awards in federal civil rights and First Amendment actions to determine reasonable hourly rates in an immigration appeal, and awarded hourly rates for Los Angeles-based attorneys in an appeal arising from the Southern District of California based on evidence of prevailing market rates in Los Angeles and San Francisco. See also Christensen v. Stevedoring Servs. of Amer., 557 F.3d 1049, 1054 (9th Cir. 2009) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008) (court may not define prevailing market rate only in terms of what has been awarded under a specific federal fee shifting statute, and “a de facto

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policy of ‘holding the line’ at a flat rate [for certain types of cases] does not constitute an appropriate determination of a ‘market rate.’”)).
Pearl also shows 2007 to 2010 hourly billing rates at 31 San Francisco and Los Angeles law firms that include the following hourly billing rates for attorneys with years of experience similar to the Vandevelds’ years of experience: 19 years $580 to $610; 20 years - $535 to $750; 21 years - $575 to $820. Pearl cites the awards of $500 and $550 per hour for attorneys with 20 and 22 years of experience in a federal Individuals with Disabilities Education Act action, H.B. v. Las Virgenes Unified School Dist., No. 04-CV-8572-CAS (C.D. Cal. Sept. 29, 2010); $625 per hour for an attorney with 21 years of experience in a state wage and hour class action, Savaglio v. Wal-Mart, No. C-835687-7 (Alameda Cnty. Super. Ct. Sept. 10, 2010); $675 per hour for an attorney with 20 years of experience in a federal breach of contract action, Santa Fe Pointe, L.P. v. Greystone Servicing Corp., Inc., 07-CV-5454-MMC (N.D. Cal. Oct. 16, 2009); $575 for an attorney with 20 years of experience in a federal civil rights action, Fitzgerald v. City of Los Angeles, No. 03-CV-1876-DDP (C.D. Cal. April 7, 2009); and $690 for an attorney with 22 years of experience in a state breach of contract class action, Kashmiri v. Regents of Univ. of Cal., No. CGC-03-422747 (San Francisco Super. Ct. Sept. 30, 2008).

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In addition, in Nadarajah, this court approved an award of a $500 hourly rate for 2005-2008 work by attorney with 20-23 years of experience. See Nadarajah, 569 F.3d at 917-18. The district court’s award in this case of $550 per hour for the 2011 United States Supreme Court work by Ferleger, a Pennsylvania attorney with 38 years of experience, also supports the award of Antoninetti’s requested rates.
Chipotle has failed to rebut the evidence that the requested $475 and $500 hourly rates for Thomas Vandeveld and Amy Vandeveld are in line with prevailing market rates. See Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992) (citing Blum, 465 U.S. at 892 n.5) (“The party opposing the fee application has a burden of rebuttal that requires submission of evidence . . . challenging the accuracy and reasonableness of the . . . facts asserted by the prevailing party in its submitted affidavits.”) Chipotle has not introduced here the Hensley affidavit that the district court relied on, or submitted any evidence in support of its opposition to Antoninetti’s court of appeals fee request.
Based on the foregoing, along with the Appellate Commissioner’s experience reviewing many fee requests in similar appeals, Antoninetti’s requested hourly rates are reasonable and they are awarded.

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2. Hours Reasonably Expended a. Antoninetti’s Request
On Ninth Circuit Form 9, Antoninetti claims the attorneys’ hours were spent as follows:

Description of Services Interviews & Conferences Obtaining & Reviewing Records Legal Research Preparing Briefs Preparing for & Attending Oral Argument Other Reply Totals

Amy Vandeveld 11.1 81.7
179.8 405.3
60.4 26.6 29.9 794.8

Thomas Vandeveld 1.2
18.2 12.1
0 13.5
7.0 0 52.0

Totals 12.3 99.9
191.9 405.3
73.9 33.6 29.9 846.8

In cross-appeals numbers 08-55867 and 08-55946, Antoninetti participated in two pre-briefing telephone conferences with the Circuit Mediator and filed a notice of appeal, a civil appeals docketing statement, a representation statement, a 57-page opening brief, a motion for an extension of time to file the reply/answering brief, a 62-page reply/answering brief, 7 volumes of excerpts of record, and an opposition to Chipotle’s motion to strike the reply/answering brief.

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In cross-appeals numbers 09-55327 and 09-55425, Antoninetti filed a 62page opening brief, a 46-page reply/answering brief, and 10 volumes of excerpts of record.
With respect to the four consolidated appeals, Antoninetti appeared at oral argument in Pasadena, where seven minutes of Antoninetti’s time was allotted to amici curiae disability rights organizations that had been permitted to file a brief. Antoninetti also filed a motion to consolidate, a bill of costs, a motion for attorneys’ fees, and a reply to Chipotle’s opposition to the fee motion. Antoninetti participated in two fee-related telephone conferences with the Circuit Meditor.
b. Chipotle’s Objections i. Block Billing
Chipotle objects that at least two-thirds of Amy Vandeveld’s time entries include block billing, and that she often created only one time entry for an entire day’s work. Chipotle argues that two-thirds of Amy Vandeveld’s 764.9 hours requested in the fee motion should be reduced by 20 percent, resulting in a $50,083.35 reduction in the requested fees, to account for block billing.3 Chipotle’s contention lacks merit.

3 Amy Vandeveld’s 29.9 hours requested for the fee reply were excluded from Chipotle’s calculation of the requested reduction and a review shows that the hours were not block billed.

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Block billing may inflate time by 10 percent to 30 percent, and hours should be reduced when block billing makes it difficult to determine how much time was spent on particular activities. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007) (citing Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004)). The district court determined that Amy Vandeveld block billed 341.5 hours of her requested 1,736.4 hours for the district court proceedings, and reduced those hours by 20 percent or 68.3 hours to account for block billing.
Antoninetti responds, however, that Chipotle specifies only six time entries for the court of appeals proceedings that purportedly include block billing, and that Chipotle is incorrect that two-thirds of the time entries include block billing of disparate tasks. In addition, the Appellate Commissioner’s review of Amy Vandeveld’s invoice reveals that she did not block bill disparate tasks in two-thirds or even in the majority of her time entries. Although Amy Vandeveld block billed multiple tasks in some entries, in addition to those specified by Chipotle or discussed below regarding clerical work, in those instances the tasks were similar and related to brief preparation. A limited amount of block billing of similar, related tasks does not necessarily inflate the hours requested or make it difficult for the court to determine how much time was spent on particular activities. See, e.g., Secalt S.A. v. Wuxi Shenxi Constr. Machinery Co., 668 F.3d 677, 690 & n.5 (9th

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Cir. 2012) (counsel is not required to record in great detail how each minute of time was expended).
The Appellate Commissioner’s review of Amy Vandeveld’s court of appeals time entries shows that she did not block bill disparate tasks to a degree that would impair the court’s reasonableness evaluation or result in an inflated number of hours. Chipotle’s request for an across-the-board reduction for block billing is denied.
ii. Clerical Work Chipotle objects that Antoninetti’s fee request should be reduced by $24,275 because Antoninetti requests the award of clerical work at attorney and paralegal hourly rates. Specifically, Chipotle objects to Amy Vandeveld’s billing at the $500 attorney hourly rate a total of 44 hours to courier material to and from the copy service, to play DVDs to confirm they were viewable, to prepare items for shipping, and to prepare brief tables and excerpt of record indices. Chipotle also objects to Amy Vandeveld’s billing at the $125 paralegal hourly rate a total of 18.2 hours and $2,275 in fees for entering time records into a billing program. Chipotle’s objection has partial merit. “[P]urely clerical or secretarial tasks should not be billed at a paralegal [or lawyer’s] rate, regardless of who performs them . . . ‘[The] dollar value [of such non-legal work] is not enhanced just because

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a lawyer does it.’” Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992) (quoting Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989)).
Antoninetti responds that Amy Vandeveld could not reasonably rely on secretarial staff to coordinate the unusual formatting of the excerpts of record, which included three critical DVDs depicting the Chipotle experience, and that three trips to the copy service for these activities should be allowed. Antoninetti withdraws, however, a request for 0.8 hours and $400 fees for Amy Vandeveld’s fourth trip to the copy service. Antoninetti argues that only Amy Vandeveld could ensure that the DVDs were viewable, and that the references in the briefs were properly correlated to the DVDs. Antoninetti also argues that preparing tables for the briefs and indices for the excerpts of record were part of brief preparation, and therefore were properly performed by Amy Vandeveld to ensure accuracy.
Antoninetti’s response that only Amy Vandeveld could perform this work is not persuasive. “It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available.” Missouri, 491 U.S. at 288 n.10. In Action on Smoking & Health v. CAB, 724 F.2d 211, 222-23 (D.C. Cir. 1984), the D.C. Circuit declined to compensate at attorney hourly rates an attorney’s preparation of

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an appendix and trips to the courthouse for filing, noting that even where “[a] public interest, non-profit organization, performs its work without the abundant clerical or paralegal support often possessed by private sector law firms; [the court] cannot compensate work not properly performed by attorneys at attorneys’ rates.”
In the alternative, Antoninetti argues that the hours for preparing tables and indices should be compensated at an appropriate clerical rate rather than disallowed entirely. Antoninetti concedes that approximately 0.4 hours for coordinating the mailing of boxes to the court containing the DVDs and excerpts of record was clerical in nature, but argues that this task should be compensated at an appropriate clerical rate. Antoninetti also argues that it was more efficient for her to enter the time records into the billing program than to train an employee to decipher her records and use the program, as well as to review that employee’s work, and therefore these hours should be compensated at the requested paralegal hourly rate.
If an attorney’s hourly rate already incorporate the cost of clerical work, the court should not compensate the cost of clerical work in addition to the reasonable attorneys’ fee award calculated by multiplying the attorney’s reasonable hourly rate by the hours reasonably expended. See Trs. of the Constr. Indus. & Laborer’s Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1256-57 (9th Cir.

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2006). But “even purely clerical or secretarial work is compensable if it is customary to bill such work separately . . . though such tasks ‘should not be billed at the [attorney’s] rate.” Id. at 1257 (quoting Jenkins, 491 U.S. at 288).
Antoninetti appears to contend that the hourly rates requested and awarded do not incorporate the cost of clerical work, and that Amy Vandeveld customarily bills separately for clerical work. Yet Antoninetti provides no evidence that separate billing of clerical work is the custom or prevailing practice in the relevant community or the San Diego market. See id. (citing Jenkins, 491 U.S. at 287-88). In the Appellate Commissioner’s experience, separate billing of clerical work is not the prevailing practice in San Diego or in most of the Ninth Circuit.
Antoninetti suggests that the court may award a lower hourly rate for Amy Vandeveld’s separately billed clerical work, but does not suggest an alternate rate or provide evidence of a prevailing market rate for separately billed clerical work. Antoninetti’s time record entry was clerical work, and therefore may not be compensated at the requested paralegal rate. In the circumstances, and in light of the award in full of the requested $475 and $500 hourly rates for the Vandevelds, which include overhead costs, Antoninetti’s requested hours should be reduced to eliminate hours claimed for clerical work at Amy Vandeveld’s hourly rate and the

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paralegal rate. See Davis, 976 F.2d at 1543 & n.3; Action on Smoking & Health, 724 F.2d at 222-23.
Antoninetti responds, however, that Chipotle’s calculation is incorrect that 44 hours were billed for clerical work. Antoninetti submits Amy Vandeveld’s declaration that, of the time entries specified by Chipotle, only 12.1 hours and $6,050 in fees billed by Amy Vandeveld at the $500 attorney rate involved purported clerical work. Chipotle did not request leave to file a sur-reply or otherwise challenge Antoninetti’s recalculation of the number of purported clerical hours and, according to a review of the specified time entries, Antoninetti’s recalculation is in large part accurate. Because Amy Vandeveld block billed many of the specified entries, Chipotle included in the calculation of the clerical hours some time that actually was spent on brief preparation. But Antoninetti should have included in the recalculation an additional 6.2 hours billed on June 4, 2009 for preparing the excerpts of record that were specified by Chipotle. Antoninetti’s recalculation also should have included 18.2 hours and $2,275 in fees billed by Amy Vandeveld at the $125 paralegal rate for entering time records into a billing program data entry.
The clerical hours also should include 17.7 hours and $8,850 in fees for filing and for preparing the excerpts of record that have been identified by the

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Appellate Commissioner and were not previously specified by Chipotle, for a total
reduction for clerical work of 54.2 hours and $20,275 in fees. Again, some of
these hours were block billed and include brief preparation hours and, where that
occurred, the Appellate Commissioner includes only a portion of the billed hours,
using as a guideline Amy Vandeveld’s declaration discussed above. Specifically,
Amy Vandeveld billed, and the Appellate Commissioner includes in the clerical
hours, the following hours:
June 16, 2008 -- 2.1 hours for “Obtain/Review records - review lengthy docket sheet and review filed documents to identify records to be copied for excerpts of record;”
August 12, 2008 -- 9.1 hours for “Preparing brief - prepare EOR, continued revision of total brief, check cites for accuracy” [1.5 hours included in clerical hours];
August 25, 2008 -- 6.1 hours for “Preparing brief - review all files, documents and coordinate voluminous documents for excerpts of record;”
September 4, 2008 -- 3.1 hour for “Obtain/Review records and coordinate for finalization of Excerpts of Record;”
December 18, 2008 -- 0.2 hour “Review 3 orders - to file 10 copies of brief; order striking brief; order to file brief;”
February 10, 2009 -- 7.4 hours for “Preparing brief - regarding waiver of defenses, burdens of proof; review, revise, edit all portions of brief; finalize supplemental EOR with 4 additional documents” [1.5 hours included in clerical hours];

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February 18, 2009 -- 0.1 hour for “Review order regarding filing of brief;” 0.1 hour for “Review order rejecting brief;” 0.1 hour for “Telephone call to/with Court regarding clarification of order;” 0.2 hour for “Preparing brief - revise brief regarding word count, refile brief” [0.3 hour included in clerical hours];
February 23, 2009 -- 0.1 hour for “Review docket activity Supplemental EOR filed;” 0.1 hour for “Telcon with Court regarding status of . . . submission of brief;” 0.1 hour for “Review order regarding filing of brief;”
May 26, 2009 -- 6.9 hour for “Preparing brief - begin drafting First Brief on Fee Appeal regarding statement of jurisdiction, issues for review, statement of case, coordinate documents for EOR” [1.5 hour included in clerical hours];
August 13, 2009 -- 3.8 hours for “Preparing brief - finalization of brief, EOR” [1 hour included in clerical hours];
August 17, 2009 -- 0.1 hour for “Preparing brief - prepare efiling certificate.”
iii. Amici Curiae Communication
Chipotle objects to 7.9 hours billed by Amy Vandeveld and 7.3 hours billed
by Thomas Vandeveld for communicating with amici curiae, particularly with
regard to brief and oral argument preparation. Antoninetti responds that, due to
block billing, only 4.5 hours billed by Amy Vandeveld and a portion of the hours
billed by Thomas Vandeveld relate to amici curiae. In any event, Chipotle’s
argument lacks merit. Chipotle cites Miller-Wohl Co. v. Comm’r of Labor &

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Indus., 694 F.2d 203, 204-05 (9th Cir. 1982), which holds that amici curiae are not parties to litigation and therefore they are not entitled to attorneys’ fees awards. But Antoninetti seeks fees for communicating with amici curiae, not for compensating the amici curiae themselves.
Chipotle also cites Glassroth v. Moore, 347 F.3d 916, 919 (11th Cir. 2003), where the Eleventh Circuit held that fees under the Civil Rights Act, 42 U.S.C. § 1988, should not be awarded for an attorney’s time spent enlisting various organizations to appear as amici; suggesting potential signatories for the amici curiae briefs; working on, supervising, and reviewing the amicus briefs; and seeing that the briefs were mailed on time. The Eleventh Circuit reasoned that amicus briefs often are used to evade brief-length limitations. Id.
Yet the Ninth Circuit has awarded attorneys’ fees under § 1988 and under the Equal Access to Justice Act, 20 U.S.C. § 2412, for communications with amicus curiae. See Nadarajah, 569 F.3d at 921-22; Suzuki v. Yuen, 678 F.2d 761, 764 (9th Cir. 1982). The Third Circuit also has determined that consultations and discussions with amicus curiae are compensable under § 1988, noting that amici curiae briefs can assist the court. See Tenafly Eruv Ass’n v. Borough of Tenafly, 195 F. App’x 93, 99 & n.8 (3d Cir. 2006). Antoninetti’s attorneys’ time for

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communicating with amici curiae, particularly with regard to brief and oral argument preparation, may be awarded.
iv. Duplication Of Effort Chipotle argues that Thomas Vandeveld’s hours often duplicate Amy Vandeveld’s hours, and objects specifically to 10.9 hours billed by Thomas Vandeveld for attending the oral argument presented by Amy Vandeveld. Chipotle’s objection lacks merit. Antoninetti responds that Thomas Vandeveld helped Amy Vandeveld prepare for oral argument and that his presence at oral argument was necessary to assist in accessing the voluminous record during the argument, citing Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1286-87 (9th Cir. 2004) (“if [lawyers] are [at oral argument] because their assistance is or may be needed by the lawyer arguing the case, as when a judge asks ‘where is that in the record,’ and one lawyer must frantically flip through pages and find the reference to hand to the lawyer arguing, then the assistance is most definitely necessary.”) “[T]he . . . court may not set the fee based on speculation as to how other firms would have staffed the case.” Moreno, 534 F.3d at 1115. “The . . . court’s inquiry must be limited to determining whether the fees requested by this particular

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legal team are justified for the particular work performed and the results achieved in this particular case.” Id. at 1115.
A review of Thomas Vandeveld’s invoice shows that his oral argumentrelated hours, and his hours in general, did not involve unnecessary duplication of effort. In addition, the two attorneys did not engage in an unnecessary amount of conferencing. Thomas Vandeveld’s expenditure of hours was justified, in light of Antoninetti’s success at oral argument and on appeal, and the hours are awarded.
v. Excessive & Unreasonable Hours Chipotle objects that Antoninetti’s attorneys billed an excessive and unreasonably high number of hours given the case at issue and the tasks performed, but discusses in particular only Amy Vandeveld’s hours. Chipotle argues that the appeals were in Amy Vandeveld’s area of expertise and that she was familiar with the issues and procedural history of the case after representing Antoninetti in the district court bench trial. Therefore, Chipotle contends, Amy Vandeveld should not have required the requested hours for the appeals. Chipotle’s objections have merit. Antoninetti responds that Chipotle has not offered evidence of its own attorneys’ hours for the appeals, or the affidavits of other appellate attorneys that support its objection to the requested hours, citing Democratic Party of Wash.

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State v. Reed, 388 F.3d at 1287 (one particularly good indicator or useful guide regarding how much time is necessary and appropriate is how much time the other side’s lawyers spent), and Chalmers v. City of Los Angeles, 796 F.2d 1205, 1214 (9th Cir. 1986) (counter-affidavits indicating the amount of time opposing counsel expended would have been helpful to the court). Antoninetti argues that the requested hours are reasonable for two sets of appeals involving novel issues, a voluminous record, and an amici curiae brief and oral argument, particularly in comparison with the 306 total hours and 40 oral argument hours awarded for a single appeal in Nadarajah, 569 F.3d at 924-25.
Despite Amy Vandeveld’s familiarity with the case, based on the district court proceedings, she reasonably spent additional, significant amounts of time winning on appeal the issues that were lost below. “[District court and court of appeals] proceedings are not commensurate tasks, although they have some elements in common.” See Moreno, 534 F.3d at 1113. “What matters is whether spending more time winning on appeal than losing [in the district court] was an imprudent use of hours.” Id. Moreover, “[w]hen a case goes on for many years, a lot of legal work product will grow stale; a competent lawyer won’t rely entirely on last year’s, or even last month’s, research. . . . A lawyer also needs to get up to speed with the research previously performed. All this is duplication, of course,

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but it’s necessary duplication; it is inherent in the process of litigating over time.” Id. at 1112.
Nevertheless, a review of the briefs and time records, in light of the Appellate Commissioner’s review of numerous fee requests in many similar appeals, including the Nadarajah case, shows that Amy Vandeveld should have been able to complete the legal research and brief preparation for both sets of appeals in no more than 500 hours. See Chalmers v. City of Los Angeles, 796 F.2d at 1214 (court may use its own experience in considering and reducing the number of hours reasonably expended).
Among other things, although the briefing could not be consolidated, given the timing of the two sets of appeals, Amy Vandeveld should have been able to prepare the second set of briefs more efficiently after completing the first set of briefs. The statement of jurisdiction, lengthy statement of the case, lengthy statement of the facts, and statement of related cases in the two sets of briefs were similar. The court notified Amy Vandeveld that the appeals would be assigned to the same merits panel. Although she researched the question on April 13 and 17, 2009, Amy Vandeveld did not avoid repetitive presentations of common facts in the second set of briefs or adopt by reference any parts of the previously filed briefs. See, e.g., Fed. R. App. P. 28(i); 9th Cir. Adv. Comm. N. to R. 28-4.

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Accordingly, Antoninetti’s request is reduced by 85.1 hours and $42,550 in fees to reflect a reasonable expenditure of hours by Amy Vandeveld for legal research and brief preparation.
3. Attorneys’ Fees Summary Antoninetti’s requested hourly rates of $500 for Amy Vandeveld and $475 for Thomas Vandeveld are awarded. Antoninetti’s fee request is reduced by a total of 139.3 hours and $62,825 in fees, for a total award of 707.5 hours and $352,050 in fees. C. Expenses Antoninetti requests the award of expenses in the amount of $2,458.83 for shipping the briefs by FedEx and UPS; for oral argument-related hotel lodging and meals for Amy Vandeveld, Thomas Vandeveld, and Amy Robertson, the attorney for amici curiae; and for Robertson’s rental car and airline ticket adjustment fees in connection with oral argument. Antoninetti does not include Amy Vandeveld’s or Thomas Vandeveld’s oral argument-related transportation expenses. Chipotle objects to the requested expenses, arguing that Antoninetti has not provided invoices for the expenses and may not recover the expenses of Amy Robertson, the attorney for amici curiae. Antoninetti may not recover the expenses of amici curiae, in the amount of $1,038.88, even if Antoninetti’s attorney

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advanced them. See Miller-Wohl Co., 694 F.2d at 204-05. But Antoninetti’s attorney’s declaration is sufficient evidence of the remaining expenses. See 9th Cir. R. 39-1.6. Antoninetti is awarded expenses in the amount of $1,419.95.
III Conclusion Attorneys’ fees and expenses in the amount of $353,469.95 are awarded in favor of Maurizio Antoninetti, by his successor-in-interest Livia Antoninetti, and against Chipotle Mexican Grill, Inc. This order amends the court’s mandate. See Fed. R. App. P. 41.

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAURIZIO ANTONINETTI,



Plaintiff-Appellant, Cross-

Appellee,

v.



CHIPOTLE MEXICAN GRILL, INC.,

Defendant-Appellee, Cross-

Appellant.



Nos. 08-55867, 08-55946, 09-55327, 09-55425
D.C. No. 3:05-cv-01660-J-
WMC
OPINION

Appeal from the United States District Court for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted April 7, 2010—Pasadena, California
Filed July 26, 2010
Before: Daniel M. Friedman,* Dorothy W. Nelson, and Stephen Reinhardt, Circuit Judges.
Opinion by Judge Friedman

*Daniel M. Friedman, United States Circuit Judge for the Federal Circuit, sitting by designation.
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ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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COUNSEL
Amy B. Vandeveld, San Diego, California, for the plaintiff, appellant and cross-appellee.
John F. Scalia (argued), Matthew H. Sorensen, Virginia E. Robinson, Greenberg Traurig L.L.P., McLean, Virginia, Gregory F. Hurley, Greenberg, Traurig, L.L.P., Irvine, California, for the defendant, appellee, and cross-appellant.
OPINION
FRIEDMAN, Circuit Judge:
This case presents several issues involving the application of the Americans with Disabilities Act (“Disabilities Act” or “Act”) to a wheelchair-bound customer of the well-known Mexican fast-food restaurants operated by Chipotle Mexican Grill, Inc. (“Chipotle”). The question on the merits is whether the actions Chipotle took to accommodate the customer’s disability satisfied the requirements of the Act and its implementing guidelines. We hold that they did not and accordingly that Chipotle violated the Act. Another question is whether the district court erred in denying the customer injunctive relief. We hold that, under the circumstances, the district court should grant injunctive relief. We also vacate the district court’s award of attorney’s fees, which was substantially less than the customer had sought, and direct reconsideration of the amount of the fee in light of our ruling on the merits. We

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affirm-in-part, reverse-in-part, vacate-in-part, and remand to the district court for further proceedings.

I

A. The case arises out of visits by the appellant, Maurizio Antoninetti, to two Chipotle restaurants in California, one in San Diego and one in Encinitas. Antoninetti is a paraplegic who uses a wheelchair for mobility. He visited the San Diego restaurant six times, four times as a customer and twice to gather evidence for this litigation. He visited the Encinitas restaurant twice, once as a customer and once in connection with discovery proceedings in this case.

The physical arrangements of the two restaurants were, insofar as the issues in this case are involved, substantially the same. Customers walk along a line that is next to a long counter containing the different foods that are available and on which the customers’ individual orders are prepared. The customers’ walking line is separated from this “food preparation counter” by a separator wall. This wall rises 45 inches above the floor; the food preparation counter is 34-35 inches high.

As customers proceed through the line, they see the different foods available by looking over the wall, and they tell the food service employees behind the food preparation counter what they want. There are many kinds of foods available— such as salsa, guacamole, cheese, and lettuce—and each ingredient is described on written menus in the restaurant as well as on large menu boards above the food preparation counter. The employees then assemble the customer’s order— customizing the burrito, taco, or other Mexican food selected —while the customer watches.

At the end of the food preparation counter is a 4 foot-long counter containing the cash register and a 2-3 foot-long empty space. This counter, called the “transaction station,” is 34

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inches high, and is where the customer pays for and receives the order. The wall ends where this counter begins. Beyond the transaction station is a dining room with fixed seating, which customers may use after receiving their order.

The serving area of the restaurant is shown in the first photograph below. The second photograph shows the displayed food, as seen from above.

The parties stipulated that the average eye level of persons in wheelchairs is 43 to 51 inches above the restaurant floor; and that, at a distance of 12 inches from the wall, a person at any height within that average range cannot see the food preparation counter or the food on display there.

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According to Chipotle, it “strives to offer a unique experience consisting of the architecture, décor, and music of its restaurants, the aroma of the food, the appearance of a customer’s entrée, friendly staff, a tradition of excellent customer service, [the] ability to customize one’s entrée, and . . . the taste of the food.” It describes this as the “Chipotle experience.”

Prior to this litigation, Chipotle had an unwritten policy of accommodating customers in wheelchairs who wanted to see the available food ingredients or watch the preparation of their food. When customers in wheelchairs so indicated, employees were required to show them samples of the available foods in serving spoons, held in tongs or in plastic portion cups, or to assemble the food either at the “transaction station” or at a table in the restaurant’s seating area.

In February 2007, because of this litigation, Chipotle adopted its written “Customers With Disabilities Policy” (the “written policy”). This policy provides that “the restaurant staff will offer . . . [a] customer with a disability (for example, a visual or mobility impairment)”

a suitable accommodation based on the individual circumstances, and will be responsive to the customer’s requests. Depending on the circumstances, our crew member or manager may ask the customer if we can accommodate them during their visit. Examples of some of the ways we accommodate individuals include:

1. Samples of the food can be placed in soufflé cups and shown or handed to the customer.

2. Some customers may prefer an opportunity to see or even sample the food at a table.

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ANTONINETTI v. CHIPOTLE MEXICAN GRILL
3. Customers may simply wish to have the food or food preparation process described to them.

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4. Or combinations of the above accommodations with any other reasonable accommodation requested or appropriate for the individual.

Antoninetti has not visited either restaurant since this written policy was implemented. The parties have stipulated, however, that Antoninetti still wishes to enjoy the “Chipotle experience”—seeing all the ingredients on display and watching his burrito assembled and rolled—quickly and without inconveniencing employees or other customers.

B. Following his experiences as a customer in the two restaurants, Antoninetti filed the present suit against Chipotle in the United States District Court for the Southern District of California. He alleged that Chipotle’s treatment of wheelchair-bound customers violates the Disabilities Act. He sought injunctive relief and damages under a California statute that authorizes damages for violations of the federal Disabilities Act.

After granting partial summary judgment and holding a bench trial, the district court:

1. Held that Chipotle’s earlier unwritten policy for accommodating customers in wheelchairs violated the Disabilities Act, but that its current “written policy” complied with the Act;

2. Denied injunctive relief;

3. Held that Antoninetti was a prevailing party in the litigation, and awarded him attorney’s fees of $136,537.83—considerably less than he had sought; and

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4. Awarded him $5,000 under the California damages statute (discussed in part V below).

II

[1] Title III of the Disabilities Act requires that “public accommodations” built for first occupancy after January 26, 1993, be “readily accessible to and usable by individuals with disabilities.” See 42 U.S.C. § 12183(a)(1). To satisfy this standard, “[n]ew construction and alterations . . . [must] comply with the standards for accessible design” promulgated by the Attorney General of the United States. See 28 C.F.R. 36.406(a). The Attorney General has issued detailed, primarily architectural, standards—known as the Guidelines—that govern the applicability of the Act to a variety of public accommodations. Failure to comply with the Guidelines constitutes prohibited “discrimination for the purposes of” the Disabilities Act. See 42 U.S.C. § 12183(a). The parties do not dispute that the two Chipotle restaurants are places of public accommodation, built after January 26, 1993, and therefore must comply with the Guidelines. Not surprisingly, the parties disagree about which Guideline governs this case.

[2] A. Antoninetti argues that Guideline § 4.33.3 applies to Chipotle’s food preparation counters. That Guideline provides, in pertinent part:

Placement of Wheelchair Locations. Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. They shall adjoin an accessible route that also serves as a means of egress in case of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than

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one location. Readily removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair users.

28 C.F.R. § 36, App. A, § 4.33.3. Antoninetti argues that because Guideline § 4.33.3 guarantees “lines of sight comparable to those for members of the general public,” the wall violates that Guideline because it prevents customers in wheelchairs from seeing the food preparation counter. The district court granted summary judgment to Chipotle on this contention, holding that the plain language of this Guideline does not cover Chipotle’s food preparation counter. We agree.

[3] The basic flaw in Antoninetti’s contention is that Guideline § 4.33.3 deals with the “[p]lacement of [w]heelchair [l]ocations” as “an integral part of any fixed seating plan.” Id. The food service area of the two restaurants is not “part of any fixed seating plan,” because there are no seats there, fixed or mobile, nor any “wheelchair locations” that have been “place[d].” The customers move through the service line, past the food preparation station, and on to the cash register. Only after doing so do they proceed to the seating area in the restaurant.

Furthermore, Guideline § 4.33.3 does not govern here because it addresses a different situation, namely the accessibility for the handicapped of fixed-seating structures in which people view performances or events, such as theatres, concert halls, athletic stadia, and the like. See, e.g., Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 583 (D.C. Cir. 1997). Guideline § 4.33.3 requires “admission prices and lines of sight comparable to those for members of the general public.” 28 C.F.R. § 36, App. A, § 4.33.3. It also requires that “[a]t least one companion fixed seat shall be provided next to each wheelchair seating area” and that “[w]hen the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location.” Id.

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B. Chipotle argues, and the district court held, that Guideline § 7.2 provides the governing standard here. That Guideline, titled “Sales and Service Counters, Teller Windows, Information Counters,” (in § 7.2(2)) provides:

At ticketing counters, teller stations in a bank, registration counters in hotels and motels, box office ticket counters, and other counters that may not have a cash register but at which goods or services are sold or distributed, either:

(i) a portion of the main counter which is a minimum of 36 [inches] . . . in length shall be provided with a maximum height of 36 [inches] . . . or

(ii) an auxiliary counter with a maximum height of 36 [inches] . . . in close proximity to the main counter shall be provided; or

(iii) equivalent facilitation shall be provided (e.g., at a hotel registration counter, equivalent facilitation might consist of: (1) provision of a folding shelf attached to the main counter on which an individual with disabilities can write, and (2) use of the space on the side of the counter or at the concierge desk, for handing materials back and forth).

28 C.F.R. § 36, App. A, § 7.2(2).

We agree with the district court that this provision applies. The food service areas of the two restaurants are “counters” and the preparation of the customers’ food orders is the sale and distribution of “goods or services.” The “goods” are the food itself, and the “services” are the preparation of the meal the customer orders.

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[4] C. The next question is whether the two restaurants comply with that Guideline, which includes the requirement that “a portion of the main counter” have “a maximum height” of 36 inches. Chipotle contends that this requirement is satisfied because the food preparation counter adjoins the transaction station, which is 34 inches high, and therefore that either a “portion of the main counter” or an “auxiliary counter” is below the 36 inch maximum height. The district court properly rejected this argument.

[5] Under the Guidelines, the food preparation counter and the transaction station are different entities, even though they are next to each other and adjoined. As the district court stated, these counters “serve different functions.” The food preparation counter is where the different food products are located, the customers view, select, and customize the burrito, taco, or other Mexican food they select, and the food service employees prepare the order. The transaction station, which includes the cash register, is where customers pay for and collect the food they have ordered. Because the portion of the counter that Chipotle relies on as being less than 36 inches high is neither a “portion of the main” food preparation counter nor an “auxiliary” food preparation counter, the requirements of either Guideline §§ 7.2(2)(i) or 7.2(2)(ii) are not met. In these circumstances, the wall conceals the food preparation counter from wheelchair-bound customers and thus prevents those customers from having the experience of non-disabled customers of fully participating in the selection and preparation of their order at the food preparation counter. The wall subjects them to a disadvantage that non-disabled customers do not suffer.

[6] D. Guideline 7.2(2) provides that, if a counter does not meet the height requirements set forth in § 7.2(2)(i) or § 7.2(2)(ii):

[E]quivalent facilitation shall be provided: (e.g., at a hotel registration counter, equivalent facilitation

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might consist of: (1) provision of a folding shelf attached to the main counter on which an individual with disabilities can write, and (2) use of the space on the side of the counter or at the concierge desk, for handing materials back and forth).

28 C.F.R. § 36, App. A, § 7.2(2)(iii). The Guidelines define “[e]quivalent facilitation” as:

Departures from particular technical and scoping requirements . . . by the use of other designs and technologies . . . where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility.

Id. § 36, App. A, § 2.2.

The district court held that Chipotle’s written policy constituted “equivalent facilitation,” but that its prior unwritten policy did not, because the written policy “imposes two new requirements,” namely:

(1) . . . [I]t is the responsibility of the manager on duty at the [r]estaurant, rather than his or her crew members, to carry out the policy . . . and (2) . . . [T]he manager on duty must affirmatively inform the customer with a disability of the various accommodations options without waiting for the customer to request them through oral communications or nonoral cues.

[7] Initially, the parties dispute whether any “policy” may constitute “equivalent facilitation.” The issue, however, is not the form in which a policy is adopted and applied, but whether the substance of the policy satisfies the Guideline requirements of “equivalent facilitation.” The two “new requirements” of the written policy that the district court relied on to show “equivalent facilitation” are unavailing

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because they relate only to the manner of applying that policy, not its substance.

[8] As noted, the presence of the wall in the two restaurants significantly reduced Antoninetti’s ability to enjoy the “Chipotle experience.” From his wheelchair, he could not see and evaluate the various available foods and decide which or how much of each he wanted. He also could not watch the food service employee combine those ingredients to form his order. The substitutes that Chipotle provided—showing him samples of the individual foods in serving spoons, held in tongs or in plastic cups, or assembling the food at the “transaction station” or at a table in the seating area—do not constitute “equivalent facilitation” because they do not involve “use of other designs and technologies” or “provide [him with] substantially equivalent or greater access to and usability of the facility.” They merely provide a substitute experience that lacks the customer’s personal participation in the selection and preparation of the food that the full “Chipotle experience” furnishes.

In light of this conclusion, we need not decide whether, as Antoninetti and the amici argue, “equivalent facilitation” requires that the facilitating “alternative designs and techniques” be architectural or physical, and cannot be a particular kind of service or policy.

[9] In sum, Chipotle’s treatment of Antoninetti during his visits as a customer of the two restaurants violated the Disabilities Act, because it did not comply with the Guidelines.

III

[10] The enforcement provisions of the Disabilities Act, 42 U.S.C. § 12188, provide that the “remedy and procedures” of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(a), are available “to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter.”

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42 U.S.C. § 12188(a)(1). The referenced provision of the Civil Rights Act states that a “person aggrieved” by a violation of that Act may file “a civil action for preventive relief, including an application for a permanent or temporary injunction.” 42 U.S.C. § 2000a-3(a). The Disabilities Act provides that, in cases of discrimination in places of public accommodation,

injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this subchapter.

42 U.S.C. § 12188(a)(2).

Injunctive relief is the sole remedy available to private parties under the Disabilities Act; it does not authorize a claim for money damages. See, e.g., Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002).

Antoninetti sought an injunction requiring Chipotle to lower the wall that prevented wheelchair-bound customers from observing the food preparation counters in the two restaurants.

The district court denied an injunction. It applied the traditional equity test: injunctive relief is appropriate when a party demonstrates “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” See

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eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

The court found that Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the [r]estaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the [r]estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”

Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him. As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].” D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008) (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007) (citing Samuel R. Bagnestos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1, 5 (2006))). We must therefore be “particularly cautious” regarding “credibility determinations that rely on a plaintiff’s past [Disabilities Act] litigation.” Id.

[11] In any event, in its present posture, this is a quite different case from the one the district court decided. We have held that the wall in the two restaurants violates the Disabilities Act, and that neither Chipotle’s new or old policies ameliorated the violation. Considering all the circumstances, including particularly the statutory violations we have found

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and the fact that an injunction is the only relief available to a private party under the Act, it would be an abuse of discretion for the district court now to deny injunctive relief.

[12] Accordingly, we shall reverse the district court’s denial of such relief and remand the case with instructions to that court to enter an appropriate injunction. The precise contours of such an injunction are for the district court to determine in the first instance.

In view of that conclusion and disposition, we need not address the question, which the parties vigorously dispute but which the district court did not decide, whether the Disabilities Act authorizes a district court to deny injunctive relief after finding a violation of the Act. This court has refrained from deciding “whether the [Disabilities Act] forecloses the possibility that a court might exercise its equitable discretion in fashioning relief for violations” of the Act. See Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001). It has stated, however, that “[t]he standard requirements for equitable relief need not be satisfied when an injunction is sought to prevent the violation of a federal statute which specifically provides for injunctive relief.” Silver Stage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001) (quoting Burlington N. R.R. Co. v. Dep’t of Revenue, 934 F.2d 1064, 1074 (9th Cir. 1991); see also Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009) (noting that injunctive relief under the “stay put” provision of the Individuals with Disabilities Education Act “requires no specific showing on the part of the moving party, and no balancing of equities by the court”).

IV

[13] Under the Disabilities Act, “the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. As the Supreme Court recently reiterated, under fed-

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eral fee-shifting statutes “the lodestar approach” is “the guiding light” in determining a “reasonable” fee. See Perdue v. Kenny A., 599 U.S. ___, ___, 130 S. Ct. 1662, 1671-73 (2010) (internal quotation marks omitted). Under that method, the court first determines the appropriate hourly rate for the work performed, and then multiplies that amount by the number of hours properly expended in doing the work. Id. Although “in extraordinary circumstances” the amount produced by the lodestar calculation may be increased, “there is a strong presumption that the lodestar is sufficient.” Id. at 1669.

In its two opinions determining a reasonable attorney’s fee in this case, the district court apparently applied the lodestar method. Neither order explicitly stated or explained the hourly rate that the court used. Antoninetti’s lawyer stated at the hearing on attorney’s fees that she was “requesting” an hourly rate of $375, which Chipotle did not challenge; the district court apparently used this figure in its calculations.

The district court held that the fee awarded should reflect the “limited success” Antoninetti achieved. The court pointed out that he had prevailed on only two of his claims: that Chipotle’s earlier policy violated the Act, and that he was entitled to damages under the California statute. The district court ruled that Antoninetti’s “billing records make it impossible for the Court to identify specific hours associated with unsuccessful claims” and that it was “appropriate to simply reduce the award by a designated amount.”

Antoninetti sought attorney’s fees of $546,151.33. Because of his limited success, the court “F[OU]ND[ ] that plaintiff is entitled to one-quarter of the attorneys’ fees that he has requested,” and awarded him $136,537.83.

The results of this litigation are now quite different than they were when the district court made that award. Under our decision today, Antoninetti has prevailed on the two major issues that he lost before the district court. We have held that

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Chipotle’s treatment of him in the two restaurants violated the Disabilities Act, and that the district court must provide injunctive relief.

[14] In light of this changed outcome, the district court should reexamine and reconsider its attorney’s fee award. We express no view on what would be a reasonable fee in light of the changed circumstances. That determination is one that initially is for the informed discretion of the district court.

V

The California Disabled Persons Act (“California Act”) provides that violation of an individual’s rights under the Disabilities Act also constitutes a violation of the California Act. Cal. Civ. Code § 54(c). One who commits such violation is “liable for each offense for the actual damages and any amount as may be determined by a jury, or the court sitting without a jury, up to a maximum of three times the amount of actual damages but in no case less than one thousand dollars ($1,000), and attorney’s fees as may be determined by the court in addition thereto.” Cal. Civ. Code § 54.3.

[15] In order “to maintain an action for damages pursuant to [the California Act] an individual must . . . establish[ ] that he or she was denied equal access on a particular occasion.” Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 183 (Cal. Ct. App. 1990) (emphasis omitted). Antoninetti therefore must show that “he actually presented himself to the restaurant on a particular occasion, as any other customer would do, with the intent of being . . . served and to purchase food . . . in the manner offered . . . . [and] actually encountered access to . . . the restaurant that was not full and equal.” Reycraft v. Lee, 177 Cal. App. 4th 1211, 1226 (Cal. Ct. App. 2009).

Antoninetti made eight visits to the two restaurants, five as a customer and three in connection with his lawsuit. The district court awarded him $1,000 damages under the California

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Act for each of his five visits as a customer, but did not make any award for his three litigation-related visits. The record indicates that these damages awards were based on Chipotle’s violations of the Guidelines in the restaurants’ parking lots (an issue not here disputed), not on the violations of the Act in the food service areas that we have found. Chipotle has since rectified the parking lot violations. In his notice of appeal, Antoninetti challenges the district court’s judgment “with respect to the denial of additional damages . . . based upon violations of the Americans with Disabilities Act by Chipotle . . . . [but] does not appeal the amount of damages already awarded.”

[16] The violations of the Disabilities Act we have found are that, because of the wall, Antoninetti was unable to see the food arranged on the food counter or the preparation of his order, as non-wheelchair-bound customers could do, and thus was unable to enjoy the “Chipotle experience.” Those violations necessarily occurred only when he visited the restaurants to purchase food and sat in line in his wheelchair. On those visits when he was not seeking to purchase food or to have the “Chipotle experience,” Antoninetti cannot recover money damages under the California Act.

It is unclear whether Antoninetti is challenging the district court’s failure to award damages for the five food service area violations we have found (in addition to the parking lot violations), or, if so, whether he has properly preserved that issue. In his notice of appeal, he challenged the district court’s judgment “with respect to the denial of additional damages”—an ambiguous phrase that could cover only the litigation-related visits, or also could cover the food service area violations. The record does not show whether Antoninetti purchased food on any of his three litigation-related visits, although he stated in his opening brief: “Nor was any evidence offered at any time that Antoninetti’s purchases during these [litigationrelated] visits were made in bad faith or with fraud or deceit.” Moreover, the district court has not considered the amount of

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additional damages, if any, that should be awarded for the violations not related to parking.

[17] We vacate the damages award and remand for further proceedings on this issue.

CONCLUSION

The judgment of the district court is affirmed insofar as it ruled that Chipotle’s unwritten earlier policy violated the Disabilities Act. The portions of the judgment determining that Chipotle’s written policy did not violate the Act and that Antoninetti was not entitled to an injunction are reversed, and the case is remanded to the district court to enter a judgment that Chipotle violated the Disabilities Act and to issue appropriate injunctive relief. The portions of the judgment that awarded an attorney’s fee of $136,537.83 and awarded damages of $5,000 under the California Act are vacated and the case is remanded for the district court to reconsider those issues.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART AND REMANDED.

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-2, Page 1 of 5

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Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

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 Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 1 of 33
CLOSED,TRIAL
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:05−cv−01660−BTM−WMC

Antoninetti v. Chipotle Mexican, et al Assigned to: Judge Barry Ted Moskowitz Referred to: Magistrate Judge William McCurine, Jr Demand: $0 Case in other court: USCA, 08−55867
USCA, 09−55327
USCA, 09−55425
USCA, 08−55946 Cause: 42:12101 The Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 08/22/2005 Date Terminated: 03/21/2012 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Maurizio Antoninetti TERMINATED: 07/25/2011

represented by Amy B. Vandeveld Law Office of Amy B Vandeveld 1850 5th Avenue Suite 22 San Diego, CA 92101 (619) 231−8883 Fax: (858)836−2467 Email: abvusdc@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Livia Antoninetti

represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Chipotle Mexican Grill, Inc.

represented by Catherine M Corfee Corfee Stone and Associates 5441 Fair Oaks Boulevard Suite B−1 Carmichael, CA 95608 (916)487−5441 Fax: (916)487−5440 Email: catherine@corfeestone.com TERMINATED: 08/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David R Sugden Call & Jensen 610 Newport Center Drive Suite 700 Newport Beach, CA 92660 (949)717−3000 Fax: (949)717−3100 Email: dsugden@calljensen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward J. Hafer

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 2 of 33
Messner & Reeves, LLC 1430 Wynkoop Street Suite 300 Denver, CO 80202 (303)623−1800 Fax: (303)623−0552 Email: ehafer@messner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra J Reinstein Greenberg Traurig 650 Town Center Drive Suite 1700 Costa Mesa, CA 92626 (714)708−6500 Fax: (714)708−6501 TERMINATED: 11/21/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory Francis Hurley Sheppard Mullin Richter & Hampton 650 Town Center Drive, 4th Floor Costa Mesa, CA 92626−1993 714−513−5100 Fax: 714−513−5130 Email: GHurley@sheppardmullin.com TERMINATED: 08/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeanne V. McKee Greenberg Traurig LLP 3161 Michelson Drive Suite 1000 Irvine, CA 92612 (949)732−6683 Fax: (949)732−6501 Email: mckeej@gtlaw.com TERMINATED: 08/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Francis Scalia Greenberg Traurig 1750 Tysons Boulevard Suite 1200 McLean, VA 22102 (703)749−1380 Fax: (703)714−8380 Email: scaliaj@gtlaw.com TERMINATED: 08/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan J Herzog Weston Herzog 500 North Central Avenue Suite 650 Glendale, CA 91203 (818)755−8555 Fax: (818)755−8542 Email: jherzog@westzog.com

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 3 of 33
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kent Roger Christensen Call & Jensen 610 Newport Center Drive Suite 700 Newport Beach, CA 92660 (949)717−3000 Fax: (949)717−3100 Email: kchristensen@calljensen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew R. Groves Messner & Reeves, LLC 1430 Wynkoop Street Suite 300 Denver, CO 80202 (303) 623−1800 Fax: (303) 623−0552 Email: mgroves@messner.com TERMINATED: 02/17/2011 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Sorensen Greenberg Traurig 1750 Tysons Bouelvard Suite 1200 McLean, VA 22102 (703)749−1348 TERMINATED: 08/19/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melinda Evans Call & Jensen 610 Newport Center Drive Suite 700 Newport Beach, CA 92660 (949)717−3000 Fax: (949)717−3100 Email: mevans@calljensen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Skorupka Messner and Reeves 1430 Wynkoop Street Suite 300 Denver, CO 80202 (303)623−1800 Fax: (303)623−0552 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan A Williams Messner and Reeves 1430 Wynkoop Street Suite 400 Denver, CO 80202 (303)623−1800 Fax: (303)623−0552

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 4 of 33

TERMINATED: 01/12/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacey L Herter Bryan Cave LLP 3161 Michelson Drive Suite 1500 Irvine, CA 92612 (949)223−7000 Fax: (949)223−7100 Email: ginny.hamel@bryancave.com TERMINATED: 08/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William S Weston Weston Herzog 500 North Central Avenue Suite 650 Glendale, CA 91203 (818)755−8555 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles C Cavanagh Messner & Reeves LLC 1430 Wynkoop Street Suite 300 Denver, CO 80202 (303)623−1800 Fax: (303)623−0552 Email: ccavanagh@messner.com ATTORNEY TO BE NOTICED

Defendant
DOES 1 through 10, Inclusive

ThirdParty Plaintiff Chipotle Mexican Grill, Inc.

represented by Catherine M Corfee (See above for address) TERMINATED: 08/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David R Sugden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward J. Hafer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kent Roger Christensen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew R. Groves (See above for address)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 5 of 33
TERMINATED: 02/17/2011 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melinda Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Skorupka (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William S Weston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles C Cavanagh (See above for address) ATTORNEY TO BE NOTICED

V. ThirdParty Defendant Carl Karcher Enterprises, Inc. TERMINATED: 10/13/2006
ThirdParty Defendant El Camino Plaza Associates a California Joint Venture ThirdParty Defendant DOES 1 through 10, inclusive

represented by Julie Rae Trotter Call Jensen and Ferrell 610 Newport Center Drive Suite 700 Newport Beach, CA 92660 (949)717−3000 Fax: (949)717−3100 Email: jtrotter@calljensen.com TERMINATED: 10/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/22/2005
08/23/2005 09/30/2005
10/03/2005
10/06/2005

# Docket Text
1 Complaint Filed; (referred to Magistrate Judge William McCurine Jr.); Receipt No/Amt of Fee: #116509/$250; jury demand (dkt clerk) (Entered: 08/23/2005)
2 Summons issued (dkt clerk) (Entered: 08/23/2005)
4 Return of Service of summons and complaint executed upon defendant Chipotle Mexican on 9/8/05 (kaj) (Entered: 10/04/2005)
3 Answer to complaint by defendant Chipotle Mexican (atty maintenance) (kaj) (Entered: 10/03/2005)
5 Order by Magistrate Judge William McCurine Jr.; E.N.E. Conference set for 9:00 11/14/05 before Mag Judge William McCurine Jr. (kaj) (Entered: 10/06/2005)

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10/07/2005 10/07/2005 10/12/2005
11/14/2005 11/17/2005
12/12/2005 01/12/2006 01/12/2006 01/30/2006 02/03/2006 02/09/2006
03/01/2006
03/08/2006 03/10/2006 03/10/2006 03/30/2006 03/30/2006 04/03/2006 04/10/2006

7 Request for entry of clerk's default against dft Chipotle Mexican Grill, Inc by plaintiff Maurizio Antoninetti (default not entered, dft answered complaint 10/03/05) (kaj) (Entered: 10/14/2005)
8 Declaration of Amy B. Vandeveld in support of request for enty of clerk's default judgment 7 by plaintiff Maurizio Antoninetti (kaj) (Entered: 10/14/2005)
6 DISCREPANCY ORDER by Judge Napoleon A. Jones Jr. rejecting document: First Amended Complaintfrom plaintiff Maurizio Antoninetti , non−compliance with local rule Other: Plaintiff needs to file leave to file amended complaint because defendant has already filed answer. (dkt clerk) (Entered: 10/13/2005)
9 Minutes: Enter Order by Magistrate Judge William McCurine Jr.; E.N.E. Conference held 9:00 11/14/05 ; noo settlement was reached; the court will issue a written order regulating discovery; Court Reporter: N/A (kaj) (Entered: 11/15/2005)
10 Scheduling Order by Magistrate Judge William McCurine Jr.; an E.N.E. Conf was held 11/14/05; Mand settlement conf set for 9:00 6/30/06 before Mag Judge Jan Adler ; Pretrial conf set for 10:30 8/14/06 before Judge Napoleon A. Jones Jr. ; Proposed final p/t conf ord by 8/7/06 (kaj) (Entered: 11/18/2005)
11 Stipulation and Order granting extension of time to join parties, amend pleadings or file additional pleadings, to be filed on or before 01/09/06 by Judge Napoleon A. Jones Jr. (kaj) (Entered: 12/12/2005)
12 Notice and Attorney Substitution signed by Judge Napoleon A. Jones Jr. terminating attorney Ryan A. Williams for Chipotle Mexican and substituting attorney Catherine M. Corfee (kaj) (Entered: 01/13/2006)
13 Stipulation and Order extending time to 1/30/06 to join parties, amend pleadings or file additional pleadings as to dft Chipotle Mexican Grill by Judge Napoleon A. Jones Jr. (kaj) (Entered: 01/13/2006)
14 Third−Party Complaint by defendant Chipotle Mexican against Carl Karcher Enterprises Inc and El Camino Plaza Associates (filed as a cross claim) (kaj) Modified on 01/31/2006 (Entered: 01/31/2006)
15 Order by Magistrate Judge William McCurine Jr.; status conf set for 8:45 3/1/06 before Mag Judge William McCurine Jr. (kaj) Modified on 02/09/2006 (Entered: 02/07/2006)
16 Amended Minutes: Enter Order by Magistrate Judge William McCurine Jr.; in the court's previous order of 2/3/06, the Order should be amended to read that the telephonic status conf is scheduled for 3/1/06 at 8:45am not 3/1/05 at 8:45am; Court Reporter: N/A (kaj) (Entered: 02/10/2006)
17 Order by Magistrate Judge William McCurine Jr.; telephnic status held on 3/1/06; no continuance of the scheduling order will be granted at this time; telephonic status conf set for 9:00 4/10/06 before Mag Judge William McCurine Jr. (kaj) (Entered: 03/03/2006)
18 Third Party Summons issued (kaj) (Entered: 03/09/2006)
19 Praecipe for Alias Third Party Summons by third−party plaintiff Chipotle Mexican (kaj) (Entered: 03/14/2006)
20 Alias Third Party Summons issued (kaj) (Entered: 03/14/2006)
21 Answer by third−party defendant Carl Karcher to Third Party Complaint; jury demand (cross−claim filed 1/30/06 was actually a third−party complaint) (kaj) (Entered: 04/03/2006)
22 Notice of Party with Financial Interest by Carl Karcher (kaj) (Entered: 04/03/2006)
23 Return of Service of alias third party summons, cross claim of Chipotle Mexican Grill Inc executed upon third−party defendant Carl Karcher on 3/15/06 (kaj) (Entered: 04/04/2006)
24 Minutes: Enter Order by Magistrate Judge William McCurine Jr.; telephonic status conf held 9:00 4/10/06 ; Court Reporter: N/A (rcv'd in docketing 4/13/06) (kaj)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 7 of 33

05/11/2006
07/31/2006
08/09/2006 08/11/2006 08/11/2006 08/11/2006 08/11/2006 08/21/2006 08/29/2006 09/07/2006
09/19/2006
09/20/2006
09/21/2006 09/22/2006

Modified on 04/13/2006 (Entered: 04/13/2006)
25 AMENDED Scheduling Order by Magistrate Judge William McCurine Jr. Mand settlement conf set for 9:00 9/22/06 before Mag Judge William McCurine Jr. , Final Pretrial conf set for 10:30 11/13/06 before Judge Napoleon A. Jones Jr. No Memo of cont of facts/law are to be filed unless so ordered by the court ; Proposed final p/t conf ord by 11/06/06 (axr) (Entered: 05/11/2006)
26 Order by Magistrate Judge William McCurine Jr.; On 7/19/06, the court received via fax a letter re the discovery issues that had been discussed during the telephonic status re: discovery held 7/19/06 at 1:45pm; further telephonic status re additional written submissions of counsel set for 9:00 8/14/06 before Mag Judge William McCurine Jr. (axr) (Entered: 08/01/2006)
27 Pro Hac Vice approved by Judge M. J. Lorenz on behalf of defendant Chipotle Mexican, third−party plaintiff Chipotle Mexican for Michael W Skorupka (joeh) (Entered: 08/10/2006)
28 Notice of Motion and Motion by cross−party defendant Carl Karcher for summary judgment , [ motion(s) referred to Judge Napoleon A. Jones Jr. ] motion hrg set for 10/10/06 at 10:30 (bar) (Entered: 08/15/2006)
29 Statement of facts by cross−party defendant Carl Karcher in support of motion for summary judgment [28−1] (bar) (Entered: 08/15/2006)
30 Proof of service by cross−party defendant Carl Karcher of: declaration, statement of facts, and motion for summary judgment (bar) (Entered: 08/15/2006)
31 Declaration of Ree R. Ryan in support of cross defendant Carl Karcher re motion for summary judgment [28−1] (bar) (Entered: 08/15/2006)
32 Minutes: Enter Order by Magistrate Judge William McCurine Jr.; a telephonic status conf re: discovery was held on the record 8/17/06; court will issue a further written order re regarding its oral rulings; Court Reporter: n/a (axr) (Entered: 08/22/2006)
33 Attorney Substitution: signed by Judge Napoleon A. Jones Jr. terminating attorney Catherine M Corfee for Chipotle Mexican, and substituting attorney William S Weston (axr) (Entered: 08/31/2006)
34 Order signed by Judge William McCurine Jr. on 9/6/06. On 8/17/06 and 8/24/06, the court held hrgs re the status of discovery and dfts request to cont the dates set in the court's scheduling order of 5/11/06. Mandatory settlement conf set for 12/6/06 at 2:00pm in courtroom C before Mag Judge William McCurine Jr. Proposed final pretrial conf order on or before 2/5/07. Final Pretrial Conference set for 2/12/2007 10:30 AM in Courtroom 12 before Judge Napoleon A. Jones Jr. No further cont of the dates and times set forth shall be granted without exceptional good cause.(axr, ) Additional attachment(s) added on 9/11/2006 (axr, ). (Entered: 09/11/2006)
36 Minute Entry for proceedings held before Magistrate Judge William McCurine Jr.: A Telephonic status conference re Discovery was held on the record on 9/19/2006. Counsel participated telephonically. Court to issue written order based upon oral rulings. (Tape #WMC06−1:11−2423).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Jonathan Herzog). (ibf) (Entered: 09/21/2006)
35 ORDER signed by Judge William McCurine Jr. on 09/19/06. A status conf re: discovery was held on the record on 9/19/06. On or before 9/29/06, if dft discovers extra documents relevant to pla's RFP no. 1, documents must be disclosed to pla. On or before 9/21/06, dft shall produce to the court for in camera review a copy of the training manual requested by pla. On or before 9/25/06, pla shall inform the court what portions of the training manual he requests for review.(axr, ) (Entered: 09/21/2006)
Minute Entry for Judge William McCurine Jr.: Status Conference set for 9/22/2006 02:00 PM in Courtroom C before Magistrate Judge William McCurine Jr.. (Tape #n/a).(Plaintiff Attorney n/a).(Defendant Attorney n/a). (rab) (Entered: 09/21/2006)
37 Minute Entry for proceedings held before Judge William McCurine Jr.: Telephonic Status Conference re Pending Discovery Issues held on 9/22/2006; After hearing from counsel and based upon the Court's oral ruling the Court will issue a written order.

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 8 of 33

09/25/2006
09/26/2006 09/29/2006 09/29/2006
10/03/2006
10/06/2006 10/12/2006 10/13/2006 10/17/2006
10/20/2006 11/09/2006 11/14/2006 11/16/2006 11/20/2006 11/21/2006 11/21/2006 12/05/2006

(Tape #n/a).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Jonathan Herzog). (rab) (Entered: 09/25/2006)
38 ORDER following discovery hrg signed by Judge William McCurine Jr. on 09/22/06. Case came before the court on the record on 9/22/06 re pending discovery issues. On or before 9/28/06, dft must turn over to pla, the material contained on the CD−Rom. On or before 9/28/06, dft must produce the section of the training manual entitled "The Know" which was in effect on the date pla's claims arose.(axr, ) (Entered: 09/26/2006)
39 ORDER setting Status Conference re discovery set for 9/29/2006 09:00 AM in Courtroom C before Magistrate Judge William McCurine Jr.. Signed by Judge William McCurine Jr. on 9/25/06. (bar, ) (Entered: 09/27/2006)
40 ORDER signed by Judge William McCurine Jr. on 09/29/06. On 9/29/06, the court held a hrg, on the recod re pla's pending discovery requests and pla's request to cont to previously scheduled depositions. (axr, ) (Entered: 10/03/2006)
43 Minute Entry for proceedings held before Judge William McCurine Jr.: Status Conference held on 9/29/2006; Court issued a written order (Tape #N/A).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Jonathan Herzog). (rab) (Entered: 10/13/2006)
41 ORDER re: oral argument signed by Judge Napoleon A. Jones Jr. on 10/3/06. The court finds the motion 28 suitable for determination on the papers submitted and without oral argument. No appearances are required on 10/10/06. (axr, ) (Entered: 10/05/2006)
44 NOTICE by Carl Karcher Enterprises, Inc. to withdraw 28 Motion for Summary Judgment (cag) (Entered: 10/16/2006)
42 NOTICE of Voluntary Dismissal by Chipotle Mexican Grill, Inc. (Herzog, Jonathan) (Entered: 10/12/2006)
45 Stipulation and ORDER of dismissal, Carl Karcher Enterprises, Inc. third party defendant dismissed with prejudice.(filed as cross−claim). Signed by Judge Napoleon A. Jones Jr. on 10/12/06. OK PER COURT.(bar, ) (Entered: 10/18/2006)
47 Order signed by Mag Judge William McCurine Jr on 10/17/06. A telephonic status conf was held on 10/13/06. A further telephonic Status Conference set for 10/27/2006 04:00 PM in Courtroom C before Magistrate Judge William McCurine Jr..(axr, ) (Entered: 10/25/2006)
46 NOTICE of Appearance by Jonathan J Herzog on behalf of Chipotle Mexican Grill, Inc. (Herzog, Jonathan) (Entered: 10/20/2006)
48 MOTION to Continue Briefing Schedule on Defendant's Motion for Protective Order by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 9/5/2007 to term motion per Order #57. (nsp). (Entered: 11/09/2006)
49 NOTICE by Chipotle Mexican Grill, Inc. Stipulation re: Plaintiff's Disability;[Proposed] Order (Herzog, Jonathan) (Entered: 11/14/2006)
50 ORDER a telephonic Status Conference set for 11/21/2006 at 04:00 AM in Courtroom C before Magistrate Judge William McCurine Jr.. Signed by Judge William McCurine Jr. on 11/16/06. (agp) (Entered: 11/16/2006)
51 Joint MOTION Stipulation re: Plaintiff's Disability; [Proposed] Order by Chipotle Mexican Grill, Inc.. (Herzog, Jonathan) (Entered: 11/20/2006)
52 ORDER granting 51 Motion re: Plaintiff's Disability . Signed by Judge William McCurine Jr. on 11/06/06. (agp) (Entered: 11/22/2006)
53 ORDER that a telephonic Status Conference set for 11/28/2006 at 04:30 PM in Courtroom C before Magistrate Judge William McCurine Jr.. Signed by Judge William McCurine Jr. on 11/21/06. (agp) (Entered: 11/22/2006)
54 ORDER, all dates except for the 12/12/06, settlement conference contained in the Court's order of 9/7/06 are vacated. The court will issue an amended scheduling order. Signed by Judge William McCurine Jr. on 12/5/06. (bar, ) (Entered: 12/06/2006)

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12/06/2006 12/08/2006 12/12/2006 12/12/2006 12/14/2006 01/03/2007 01/04/2007 01/04/2007 01/08/2007 01/09/2007 01/11/2007 01/12/2007 01/12/2007
01/12/2007
01/12/2007
01/12/2007

55 NOTICE of Hearing: Discovery Hearing set for 12/7/2006 04:30 PM in Courtroom C before Magistrate Judge William McCurine Jr.. (rab) (Entered: 12/06/2006)
56 NOTICE of Hearing: Telephonic Status Conference set for 12/11/2006 01:30 PM in Courtroom C before Magistrate Judge William McCurine Jr.. (rab) (Entered: 12/08/2006)
57 ORDER re discovery. Status Conf held 12/11/06. Signed by Judge William McCurine Jr. on 12/11/06. (bar, ) (Entered: 12/12/2006)
59 Minute Entry for proceedings held before Judge William McCurine Jr.: Settlement Conference held on 12/12/2006. Court to issue new scheduling order (Tape #n/a).(Plaintiff Attorney Amy B. Vandeveld).(Defendant Attorney Jonathan J. Herzog, Michael W. Skorupka). (rab) (Entered: 12/15/2006)
58 Amended Scheduling ORDER. Discovery due by 1/31/2007. Proposed Pretrial Order due by 6/4/2007. Final Pretrial Conference set for 6/11/2007 10:30 AM in Courtroom 12 before Judge Napoleon A. Jones Jr.. Signed by Judge William McCurine Jr. on 12/14/06. (bar, ) (Entered: 12/14/2006)
60 NOTICE by Chipotle Mexican Grill, Inc. Substitution of Attorneys (Herter, Stacey) (Entered: 01/03/2007)
61 MOTION to Substitute Attorney by Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 01/04/2007)
62 NOTICE by Chipotle Mexican Grill, Inc. Notice of Appearance of Gregory F. Hurley (Herter, Stacey) (Entered: 01/04/2007)
63 ORDER Attorney Gregory Francis Hurley for Chipotle Mexican Grill, Inc., Stacey L Herter for Chipotle Mexican Grill, Inc. added. Attorney Michael W Skorupka terminated. Signed by Judge Napoleon A. Jones Jr. on 1/8/07. (mam) (Entered: 01/08/2007)
64 ORDER, Status Conference set for 1/12/2007 at 04:30 PM in Courtroom C before Magistrate Judge William McCurine Jr.. Signed by Judge William McCurine Jr. on 1/9/07. (bar, ) (Entered: 01/09/2007)
65 NOTICE by Maurizio Antoninetti of related case(s) 06cv2671 (Attachments: # 1 # 2)(Vandeveld, Amy) Modified on 1/16/2007 (bar, ). (low number order prepared) (Entered: 01/11/2007)
66 NOTICE by Chipotle Mexican Grill, Inc. Notice of Motion to Dismiss Case No. 05CV−1660 For Violation of Court Rules and Court Orders, Or in the Alternative to Consolidate with Case No. 06CV−2671 Pending in This Court (Herter, Stacey) Modified on 1/18/2007 (bar, ). (motion docketed as notice) (Entered: 01/12/2007)
67 MOTION to Dismiss Supporting Memorandum of Points and Authorities to Dismiss Case No. 05CV−1660 For Violation of Court Rules and Courts Orders, Or in the Alternative to Consolidate With Case No. 06CV−2671 by Chipotle Mexican Grill, Inc.. (Herter, Stacey) Modified on 1/18/2007 (bar, ). (supporting document docketed as motion) (Entered: 01/12/2007)
68 DECLARATION re 67 MOTION to Dismiss Supporting Memorandum of Points and Authorities to Dismiss Case No. 05CV−1660 For Violation of Court Rules and Courts Orders, Or in the Alternative to Consolidate With Case No. 06CV−2671 Declaration of Stacey L. Herter by Defendant Chipotle Mexican Grill, Inc.. (Herter, Stacey) Modified on 1/18/2007 (bar, ). (supporting document to motion) (Entered: 01/12/2007)
69 NOTICE by Chipotle Mexican Grill, Inc. re 67 MOTION to Dismiss Supporting Memorandum of Points and Authorities to Dismiss Case No. 05CV−1660 For Violation of Court Rules and Courts Orders, Or in the Alternative to Consolidate With Case No. 06CV−2671 Request for Judicial Notice in Support of Motion to Dismiss (Herter, Stacey) Modified on 1/18/2007 (bar, ).(supporting document to motion) (Entered: 01/12/2007)
MOTION to Consolidate Case with case No. 06cv2671 pending in court by Chipotle Mexican Grill, Inc.. 66 (bar, ) (two part motion, docketed as one). (Entered: 01/18/2007)

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01/24/2007
02/02/2007 02/15/2007 02/15/2007 02/16/2007 02/16/2007 02/16/2007 03/14/2007 03/20/2007 03/20/2007 03/29/2007 04/06/2007 04/06/2007 04/09/2007

70 RESPONSE to Motion re MOTION to Consolidate Cases, 67 MOTION to Dismiss Supporting Memorandum of Points and Authorities to Dismiss Case No. 05CV−1660 For Violation of Court Rules and Courts Orders, Or in the Alternative to Consolidate With Case No. 06CV−2671 Memorandum of Points and Authorities filed by Maurizio Antoninetti. (Attachments: # 1 Request for Judicial Notice In Support of Opposition# 2 Declaration of Amy B. Vandeveld# 3 Exhibit to Declaration of Amy B. Vandeveld# 4 Proof of Service)(Vandeveld, Amy) (Entered: 01/24/2007)
71 ORDER finding 67 Motion to Dismiss or Consolidate suitable for submission on the papers and without oral argument. No appearances required 2/12/07. Signed by Judge Napoleon A. Jones Jr. on 2/2/07. (cag) (Entered: 02/02/2007)
72 MOTION for Hearing CHIPOTLE'S REQUEST FOR TELEPHONIC STATUS CONFERENCE by Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 02/15/2007)
73 RESPONSE to Motion re 72 MOTION for Hearing CHIPOTLE'S REQUEST FOR TELEPHONIC STATUS CONFERENCE filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (Entered: 02/15/2007)
74 ORDER REFERRING 72 REQUEST FOR TELEPHONIC STATUS CONFERENCE filed by Chipotle Mexican Grill, Inc. to Magistrate Judge William McCurine, Jr. for disposition . Signed by Judge Napoleon A. Jones Jr. on 2/16/07. (cag) (Entered: 02/16/2007)
75 Ex Parte MOTION for Leave to File MSJ Under Seal by Maurizio Antoninetti. (Attachments: # 1)(Vandeveld, Amy) (Entered: 02/16/2007)
76 ORDER. Telephonic Status Conference held 1/12/07. All pending dates contained in 12/14/06 scheduling order are vacated. Telephonic Status Conference set for 3/14/2007 09:00 AM in Courtroom C before Magistrate Judge William McCurine Jr. Signed by Judge William McCurine Jr. on 2/16/07. (cag) (Entered: 02/16/2007)
77 Minute Entry for proceedings held before Magistrate Judge William McCurine Jr.: Status Conference held on 3/14/2007, Court to issue Order (Plaintiff Attorney Amy B Vandeveld).(Defendant Attorney Gregory Francis Hurley and Stacy Herter). (jmj) (Entered: 03/20/2007)
78 ORDER denying dfts' 67 Motion to Dismiss Case 05cv1660, granting dfts' 66 Motion to Consolidate Cases 05cv1660 and 06cv2671 for purposes of discovery only at this time . Signed by Judge Napoleon A. Jones Jr. on 3/20/07. (kaj) (Entered: 03/21/2007)
79 ORDER granting pla's ex parte application for leave to file motion for summary judgment and related documents under seal and in hard copy 75 . Signed by Judge Napoleon A. Jones Jr. on 3/20/07. (kaj) (Entered: 03/21/2007)
80 ORDER. The court held a telephonic status conference on 3/14/07. Telephonic Status Conference set for 4/16/2007 at 04:30 PM in Courtroom C before Magistrate Judge William McCurine Jr... Signed by Judge William McCurine Jr. on 3/29/07. (bar, ) (Entered: 03/29/2007)
81 Ex Parte MOTION for Leave to File Application for Order Vacating 4/16/07 Date for Filing Pre−Trial Motions and Requiring Plaintiff to Seek Class Certification in 06CV2671 Prior to the Filing any Dispositive Motions by Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/06/2007)
82 DECLARATION re 81 Ex Parte MOTION for Leave to File Application for Order Vacating 4/16/07 Date for Filing Pre−Trial Motions and Requiring Plaintiff to Seek Class Certification in 06CV2671 Prior to the Filing any Dispositive Motions by Defendant Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/06/2007)
83 AFFIDAVIT in Opposition re 81 Ex Parte MOTION for Leave to File Application for Order Vacating 4/16/07 Date for Filing Pre−Trial Motions and Requiring Plaintiff to Seek Class Certification in 06CV2671 Prior to the Filing any Dispositive Motions filed by Maurizio Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld and Exhibit Thereto# 2 Proof of Service to Opposition to Ex Parte Application)(Vandeveld, Amy) (Entered: 04/09/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 11 of 33

04/10/2007
04/11/2007 04/12/2007 04/12/2007 04/12/2007 04/12/2007 04/12/2007 04/12/2007 04/12/2007 04/12/2007 04/13/2007
04/16/2007 04/16/2007 04/16/2007 04/16/2007 04/16/2007

84 ORDER REFERRING defendant's ex parte application to Magistrate Judge: 81 Ex Parte MOTION for Leave to File Application for Order Vacating 4/16/07 Date for Filing Pre−Trial Motions and Requiring Plaintiff to Seek Class Certification in 06CV2671 Prior to the Filing any Dispositive Motions filed by Chipotle Mexican Grill, Inc.. Signed by Judge Napoleon A. Jones Jr. on 4/10/07. (bar, ) (Entered: 04/10/2007)
85 ORDER; on the court's own motion, a telephonic Status Conference is set for 4/13/2007 03:00 PM in Courtroom C before Magistrate Judge William McCurine Jr.; Signed by Magistrate Judge William McCurine Jr. on 4/10/07. (kaj) (Entered: 04/11/2007)
86 Notice of Plaintiffs' Motion for Summary Judgment (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 04/16/2007)
87 Memorandum of Points and Authorities in Support of Plaintiff's 86 Motion for Summary Judgment (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 04/16/2007)
88 Plaintiff's Separate Statement of Uncontroverted Facts in Support of 86 Motion for Summary Judgment (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 04/16/2007)
89 Declaration of Maurizio Antoninetti in Support of Plaintiff's 86 Motion for Summary Judgment (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 04/16/2007)
90 Declaration of Steven Schraibman in Support of Plaintiff's 86 Motion for Summary Judgment(kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 04/16/2007)
91 Declaration of Nancy J. Bonica in Support of Plaintiff's 86 Motion for Summary Judgment (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 04/16/2007)
92 Notice of Lodgment in Support of Plaintiff's 86 Motion for Summary Judgment (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Attachments: # 1 Exhibit 2 # 2 Exhibit 3 # 3 Exhibit 4 # 4 Exhibit 5 # 5 Exhibit 6 # 6 Exhibit 7 # 7 Exhibit 8 # 8 Exhibit 9 # 9 Exhibit 10) (Entered: 04/16/2007)
161 DECLARATION of Amy B. Vandeveld in Support of 86 Plaintiff's Motion for Summary Judgment by Plaintiff Maurizio Antoninetti. (aje) (Entered: 09/25/2007)
104 Minute Entry for proceedings held before Judge William McCurine Jr.: Telephonic Status Conference re Defendant's Ex Parte Request held on 4/13/2007; Court denied Defendant's Ex Parte Request and will issue an order. (Tape #WMC07−3:05−3:27).(Plaintiff Attorney Amy B. Vandeveld).(Defendant Attorney Gregory Francis Hurley, Stacie Herter). (rab) (Entered: 04/20/2007)
93 NOTICE by Chipotle Mexican Grill, Inc. of Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication (Herter, Stacey) (Entered: 04/16/2007)
94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof by Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/16/2007)
95 Separate Statement of Undisputed Facts in Support of motion 94 by Chipotle Mexican Grill, Inc.. (Herter, Stacey) Modified on 4/17/2007 to correct text (kaj). (Entered: 04/16/2007)
96 DECLARATION OF RON SEDILLO IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT by Defendant Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/16/2007)
97 DECLARATION OF JOE STUPP IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT by Defendant Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/16/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 12 of 33

04/16/2007 04/16/2007 04/16/2007 04/16/2007 04/16/2007 04/17/2007 04/30/2007 05/01/2007
05/10/2007 05/11/2007 05/18/2007
05/18/2007 05/18/2007

98 DECLARATION OF STACEY HERTER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT by Defendant Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/16/2007)
99 DECLARATION re 94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof −Declaration of Kim Blackseth by Defendant Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/16/2007)
100 NOTICE by Chipotle Mexican Grill, Inc. Request for Judicial Notice in Support of Motion for Summary Judgment (Herter, Stacey) (Entered: 04/16/2007)
101 NOTICE by Chipotle Mexican Grill, Inc. re 94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof Appendix of Non−Published Authorities (Herter, Stacey) (Entered: 04/16/2007)
102 DECLARATION re 94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof Declaration of Scott Shippey by Defendant Chipotle Mexican Grill, Inc.. (Attachments: # 1 Exhibit to Shippey Dec# 2 Exhibit to Shippey Dec)(Herter, Stacey) (Entered: 04/16/2007)
103 ORDER; court held a telephonic hrg on dft's ex parte application to vacate the 4/6/07 motion filing cut−off date 81 ; court finds an insufficient showing of good cause, and dft's ex parte request is denied; Signed by Magistrate Judge William McCurine Jr. on 4/16/07. (kaj) (Entered: 04/17/2007)
105 Joint MOTION for Extension of Time to File Response/Reply on Parties' Motion for Summary Judgment and Briefing Schedule by Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 04/30/2007)
106 ORDER granting 105 joint motion to continue the hearing date and briefing schedule on the parties' motions for summary judgment re 94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof; the hrg date for both parties' motions for summary judgment is extended to 6/4/07; Opposition briefs due 5/18/2007, Reply briefs due 5/25/2007; no appearances are required on 5/21/07; Signed by Judge Napoleon A. Jones Jr. on 5/1/07. (kaj) (Entered: 05/02/2007)
107 Ex Parte MOTION for Leave to File Opposition to Defendant's MSJ Under Seal by Maurizio Antoninetti. (Attachments: # 1 Proof of Service Ex Parte Application for Leave to File Opposition to MSJ Under Seal)(Vandeveld, Amy) (Entered: 05/10/2007)
108 ORDER granting plaintiff's 107 ex parte application for leave to file opposition to motion for summary judgment and related documents in hard copy and under seal; Signed by Judge Napoleon A. Jones Jr. on 5/11/07. (kaj) (Entered: 05/11/2007)
109 Opposition to Plaintiff's Motion for Summary Judgment by Chipotle Mexican Grill, Inc. (Attachments: # 1 Declaration of Stacey L. Herter in Opposition to Plaintiff's MSJ# 2 Declaration of Kim R. Blackseth in Opposition to Plaintiff's Motion for Summary Judgment# 3 Supplement Evidentiary Objections to Declaration of Maurizio Antoninetti# 4 Supplement Evidentiary Objections to Declaration of Nancy J. Bonica# 5 Statement of Facts Response and Objections to Plaintiff's Separate Statement# 6 Request for Judicial Notice in Opposition to Plaintiff's Motion for Summary Judgment)(Herter, Stacey) Modified on 5/21/2007 to change text to reflect correct event (kaj). (Entered: 05/18/2007)
110 Memorandum of Points and Authorities in Opposition to 93 Defendant's Motion for Summary Judgment or in the Alternative, Motion for Summary Adjudication (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 05/21/2007)
111 Plaintiff's Objection to Evidence Filed in Support of Defendant's Motion for Summary Judgment, or in the Alternative, Summary Adjudication (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 05/21/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 13 of 33

05/18/2007 05/18/2007 05/18/2007 05/18/2007 05/23/2007 05/23/2007 05/24/2007 05/24/2007 05/24/2007 05/24/2007 05/25/2007 05/25/2007 05/25/2007 05/25/2007
05/25/2007

112 Declaration of Amy B. Vandeveld in Support of Plaintiff's Opposition 110 to Chipotle's 93 Motion for Summary Judgment or in the Alternative, Motion for Summary Adjudication (kaj) Modified on 9/24/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 05/21/2007)
113 Plaintiff's Notice of Lodgment in Support of 110 Plaintiff's Opposition to Chipotle's Motion 93 for Summary Judgment, or in the Alternative Summary Adjudication (kaj) Modified on 9/25/2007 to modify docket text per Order dated 9/21/07 (aje). (Entered: 05/21/2007)
114 Plaintiff's Response to 95 Defendant's Separate Statement of Uncontroverted Facts in Support of Motion for Summary Judgment (kaj) Modified on 9/25/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 05/21/2007)
115 Plaintiff's Supplemental Separate Statement of Uncontroverted Facts in Support of 110 Plaintiff's Opposition to Chipotles Motion for Summary Judgment, or in the Alternative, Summary Adjudication (kaj) Modified on 9/25/2007 to update docket entry per Order dated 9/21/07 (aje). (Entered: 05/21/2007)
116 Ex Parte MOTION to be Relieved from Confidentiality Agreement by Maurizio Antoninetti. (Attachments: # 1 Proof of Service for Ex Parte Application to be Relieved from Confidentiality Agreement)(Vandeveld, Amy) (Entered: 05/23/2007)
117 RESPONSE in Opposition re 116 Ex Parte MOTION to be Relieved from Confidentiality Agreement filed by Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 05/23/2007)
118 ORDER denying plaintiff's 116 ex parte application to be relieved of confidentiality agreement for purposes of filing reply; Signed by Judge Napoleon A. Jones Jr. on 5/24/07. (kaj) (Entered: 05/24/2007)
119 Joint MOTION Limited Nullification of Confidentiality Agreement by Defendant and by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (Entered: 05/24/2007)
120 ORDER; on the court's own motion, telephonic Status Conference is set for 5/25/2007 09:00 AM in Courtroom C before Magistrate Judge William McCurine Jr.; Signed by Magistrate Judge William McCurine Jr. on 5/24/07. (kaj) (Entered: 05/25/2007)
121 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: the parties are directed to contact the Chambers of Magistrate Judge William McCurine Jr. in order to modify the confidentiality agreement entered into in this case (Court Reporter N/A).(Plaintiff Attorney N/A).(Defendant Attorney N/A). (kaj) (Entered: 05/25/2007)
122 REPLY re 94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof filed by Chipotle Mexican Grill, Inc.. (Herter, Stacey) (Entered: 05/25/2007)
123 NOTICE by Chipotle Mexican Grill, Inc. re 122 Reply for Request for Judical Notice (Herter, Stacey) (Entered: 05/25/2007)
124 NOTICE by Chipotle Mexican Grill, Inc. re 122 Reply and Objections to Plaintiff's Supplemental Separate Statement (Herter, Stacey) (Entered: 05/25/2007)
125 REPLY to Response to Motion re 94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof and Related Documents filed by Maurizio Antoninetti. (Attachments: # 1 Plaintiff's Reply to Chipotles Response to SSUF# 2 Statement of Facts Plaintiff's Supplemental SSUF# 3 Plaintiff's Objection to Evidence in Support of Chipotle's Opposition# 4 Plaintiff's Response to Chipotle's Objection to Evidence)(Vandeveld, Amy) (Entered: 05/25/2007)
126 Declaration of Amy B. Vandeveld in Support of REPLY to Response to Motion re 94 MOTION for Summary Judgment , or in the Alternative, Motion for Summary Adjudication, Memo of Points and Authorities in Support Thereof filed by Maurizio Antoninetti. (Attachments: # 1 Notice of Lodgment in Support of Plaintiff's Reply# 2 Proof of Service of Plaintiff's Reply and Related Documents)(Vandeveld, Amy) Modified on 5/30/2007 to correct caption of document (kaj). (Entered: 05/25/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 14 of 33

05/29/2007 05/31/2007 06/14/2007
06/19/2007 06/20/2007
06/29/2007 07/13/2007 07/13/2007
07/16/2007 08/03/2007
08/06/2007 08/06/2007 08/06/2007 08/06/2007

127 ORDER re Oral Argument: the Court finds pla's motion for summary judgment 87 and dft's motion for summary judgment 94 suitable for determination on the papers submitted and without oral argument; no appearances are required on 6/4/07. Signed by Judge Napoleon A. Jones Jr. on 5/29/07. (kaj) (Entered: 05/30/2007)
128 OBJECTION by Chipotle Mexican Grill, Inc. and Request to Strike Footnote One of Plaintiff's Opposition (Herter, Stacey) (Entered: 05/31/2007)
129 ORDER 1)granting in part and denying in part 94 Defendant's Motion for Summary Judgment; 2) granting in part and denying in part 87 Plaintiff's Motion for Summary Judgment; and 3) denying 128 Defendant's Motion to Strike. The Court reserves judgment on the award of damages. Since Plaintiff's claims regarding the food−preparation counters have yet to be resolved, it appears premature for the Court to award damages. Once all claims are resolved, Plaintiff may move for an award (aje)(mam). (Entered: 06/15/2007)
130 ORDER − A telephonic status conference was held on 5/25/07. The Court shall allow for the modification of the confidentiality agreement as stipulated by the parties on 5/24/07 119 . Signed by Judge William McCurine Jr. on 6/18/07. (aje) (bar, ). (Entered: 06/19/2007)
131 SCHEDULING ORDER: The parties must comply with pretrial disclosure requirements no later than 8/6/07; No Memorandu of Contentions of Fact and law are to be filed unless so ordered by the Court; Counsel shall confer on or before 8/13/07; Proposed Pretrial Order due by 8/20/2007; Final Pretrial Conference set for 8/27/2007 at 9:00 AM in Courtroom 12 before Judge Napoleon A. Jones Jr. Signed by Magistrate Judge William McCurine Jr. on 6/20/07. (aje)(bar ). (Entered: 06/21/2007)
132 MOTION for Reconsideration re 129 Order on Motion for Summary Judgment,, by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities # 2 Request for Judicial Notice)(Herter, Stacey) Modified on 7/2/2007 to correct text(aje). (Entered: 06/29/2007)
133 STRICKEN DOCUMENT per Minute Order 134 . Modified on 7/16/2007 (aje). (Entered: 07/13/2007)
134 Minute ORDER striking document 133 from the docket for failure to comply with the Electronic Case Filing Administrative Policies and Procedures. The name of the CM/ECF registered user under whose log−in and password the document is submitted must be preceded by a "s/" and typed in the space where the signature would otherwise appear. Signed by Judge Napoleon A. Jones Jr. on 7/13/07. (aje)(bar ). (Entered: 07/16/2007)
135 MOTION for Reconsideration of Ruling on Plaintiff's Motion for Summary Judgment by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities # 2 Proof of Service)(Vandeveld, Amy) (Entered: 07/16/2007)
136 RESPONSE in Opposition re 132 MOTION for Reconsideration re 129 Order on Motion for Summary Judgment,, MOTION for Reconsideration re 129 Order on Motion for Summary Judgment,, filed by Maurizio Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld# 2 Proof of Service)(Vandeveld, Amy) (Entered: 08/03/2007)
137 PRETRIAL MEMORANDUM by Maurizio Antoninetti. (Attachments: # 1 Proof of Service of Plaintiff's Pretrial Disclosures)(Vandeveld, Amy) (Entered: 08/06/2007)
138 RESPONSE in Opposition re 135 MOTION for Reconsideration of Ruling on Plaintiff's Motion for Summary Judgment filed by Chipotle Mexican Grill, Inc.. (Reinstein, Ezra) (Entered: 08/06/2007)
139 RESPONSE in Opposition re 135 MOTION for Reconsideration of Ruling on Plaintiff's Motion for Summary Judgment Appendix of Non−Published Authorities in Opposition filed by Chipotle Mexican Grill, Inc.. (Reinstein, Ezra) (Entered: 08/06/2007)
140 PRETRIAL MEMORANDUM by Chipotle Mexican Grill, Inc.. (Reinstein, Ezra) (Entered: 08/06/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 15 of 33

08/10/2007 08/13/2007
08/13/2007 08/13/2007 08/20/2007 08/22/2007 08/23/2007 08/28/2007 09/04/2007 09/05/2007 09/06/2007 09/07/2007
09/10/2007
09/10/2007 09/20/2007 09/21/2007

141 RESPONSE in Opposition re 135 MOTION for Reconsideration of Ruling on Plaintiff's Motion for Summary Judgment filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (Entered: 08/10/2007)
142 ORDER Re: Oral Argument. Currently scheduled for oral argument on this Court's calendar for 8/20/07 are Plaintiff Maurizio Antoninetti's Motion for Reconsideration 132 and Defendant Chipotle Mexican Grill's Motion for Reconsideration 135 . The Court finds the Motions suitable for determination on the papers submitted and without oral argument. Accordingly, no appearances are required on 8/20/07. Signed by Judge Napoleon A. Jones Jr. on 8/13/07. (aje) (Entered: 08/13/2007)
143 REPLY to Response to Motion re 132 MOTION for Reconsideration re 129 Order on Motion for Summary Judgment filed by Chipotle Mexican Grill, Inc.. (Reinstein, Ezra) Modified on 8/15/2007 to correct text(aje). (Entered: 08/13/2007)
144 Appendix of Non−Published Authorities in Support of REPLY to Response to Motion re 132 MOTION for Reconsideration re 129 Order on Motion for Summary Judgment filed by Chipotle Mexican Grill, Inc.. (Reinstein, Ezra) Modified on 8/15/2007 to correct text (aje). (Entered: 08/13/2007)
145 Joint MOTION to Continue Pretrial Conference and Related Dates by Chipotle Mexican Grill, Inc.. (Reinstein, Ezra) (Entered: 08/20/2007)
146 MINUTE ORDER granting 145 Joint Motion to Continue. The date for the parties' pretrial conference is extended to 9/10/07, with the parties' proposed pretrial conference order due on 9/4/07. Accordingly, no appearances are required on 8/27/07. Signed by Judge Napoleon A. Jones Jr. on 8/22/07. (aje) (Entered: 08/22/2007)
147 ORDER denying 132 Defendant's Motion for Partial Reconsideration and denying 135 Plaintiff's Motion for Reconsideration. Signed by Judge Napoleon A. Jones Jr. on 8/23/07. (aje) (Entered: 08/23/2007)
148 NOTICE of Change of Address by Gregory Francis Hurley (Hurley, Gregory) (Entered: 08/28/2007)
149 PRETRIAL MEMORANDUM by Maurizio Antoninetti. (Vandeveld, Amy) (Entered: 09/04/2007)
150 Exhibit List to Pretrial Memorandum by Maurizio Antoninetti.. (Vandeveld, Amy) (Entered: 09/05/2007)
151 Ex Parte MOTION to Consolidate Cases by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities in Support of Ex Parte Application for an Order to Consolidate# 2 Declaration of Jeanne Vu in Support of Ex Parte Application for an Order to Consolidate)(Hurley, Gregory) (Entered: 09/06/2007)
152 ORDER denying 151 Motion to Consolidate Cases for Trial. The Court denies Defendant's Ex Parte Motion to Consolidate Case No. 05cv16660 with Case No. 06cv2671 for purposes of trial. The cases shall remain consolidated for purposes of discovery. Signed by Judge Napoleon A. Jones Jr. on 9/7/07. (aje) (Entered: 09/07/2007)
153 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: Pretrial Conference held on 9/10/2007. Parties to submit trial order consistent with order from Court by close of business 9/24/07. Motions In Limine Hearing set for 10/29/07 at 9am. 4−day Bench Trial set for 11/27/2007 08:00 AM in Courtroom 12 before Judge Napoleon A. Jones Jr.(Court Reporter Joan King).(Plaintiff Attorney Amy B Vandeveld).(Defendant Attorney John Scalia, Jeanne Vu). (bjb) (Entered: 09/11/2007)
154 NOTICE of Hearing of Motions In Limine:Motions In Limine Hearing set for 10/29/2007 09:00 AM in Courtroom 12 before Judge Napoleon A. Jones Jr.(bjb) (Entered: 09/11/2007)
155 Joint MOTION to Unseal Document by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 09/20/2007)
156 ORDER Re: Trial. The Court hereby orderes the parties to take notice of and comply with the following: A bench trial is scheduled to begin on Tuesday, November 27, 2007, at 8:00 AM; the parties shall appear on Monday, October 29, 2007, at 9:00 AM

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 16 of 33

09/21/2007 09/24/2007 09/24/2007 09/24/2007 10/01/2007
10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/03/2007 10/03/2007

for a hearing on any motions in limine. On or before November 20, 2007, at noon, the parties shall submit a final list of witnesses and exhibits; on or before October 15, 2007, at noon, the parties must submit proposed legal standards to the Court; The parties must notify the Court in writing of any electronic equipment they seek to use during trial and contact the Courtroom Deputy no later than November 20, 2007; On or before November 20, 2007, at noon, the parties shall file and serve on each other a trial brief. Signed by Judge Napoleon A. Jones Jr. on 9/21/07. (aje) (Entered: 09/21/2007)
160 ORDER granting 155 Joint Motion to Unseal Documents. It is hereby ordered that the documents filed under seal by Plaintiff in the instant case shall be unsealed by the Clerk and the documents be entered into the Pacer system. Signed by Judge Napoleon A. Jones Jr. on 9/21/07. (aje) (Entered: 09/24/2007)
157 PRETRIAL MEMORANDUM by Maurizio Antoninetti. (Attachments: # 1 Proof of Service Amended Pretrial Order)(Vandeveld, Amy) (aje). (Entered: 09/24/2007)
158 MOTION to Amend/Correct 157 Pretrial Memorandum by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities # 2 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 09/24/2007)
159 ORDER Re: Pro Hac Vice Application. The Court declines to grant the pro hac vice application. Mr. Sorensen will be permitted to refile his pro hac vice application in order to comply with the requirements of Civil Local Rule 83.3(c)(6). Signed by Judge Napoleon A. Jones Jr. on 9/24/07. (aje) (Entered: 09/24/2007)
162 MOTION in Limine s #1 through #5 filed by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities in support of Motion in Limine #1# 2 Notice of Motion in Limine #2# 3 Memo of Points and Authorities in support of Motion in Limine #2# 4 Notice of Motion in Limine #3# 5 Memo of Points and Authorities in support of Motion in Limine #3# 6 Notice of Motion in Limine #4# 7 Memo of Points and Authorities in support of Motion in Limine #4# 8 Notice of Motion in Limine #5# 9 Memo of Points and Authorities in support of Motion in Limine #5# 10 Proof of Service of Motions in Limine #1 through #5)(Vandeveld, Amy) Modified on 10/3/2007, motions filed incorrectly and need to be refiled by attorney (aje). (Entered: 10/01/2007)
163 MOTION in Limine to Exclude Evidence and Argument Regarding Chipotle Restaurants Not at Issue in the Complaint by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities # 2 Declaration # 3 Exhibit)(Scalia, John) Modified on 10/3/2007 to edit text (aje). (Entered: 10/01/2007)
164 MOTION in Limine to Exclude Evidence and Argument Regarding Non−Witness Allegations of Disability Discrimination by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities)(Scalia, John) Modified on 10/3/2007 to edit text (aje). (Entered: 10/01/2007)
165 MOTION in Limine to Exclude Evidence and Argument Regarding Allegations that Kim Blackseth Had Conflicts of Interest or Misused His Public Office by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities)(Scalia, John) Modified on 10/3/2007 to edit text(aje). (Entered: 10/01/2007)
166 MOTION in Limine to Exclude Michael Rifkin, James Perkins, and Jean Riker as Trial Witnesses by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities # 2 Declaration of John F. Scalia# 3 Exhibit)(Scalia, John) Modified on 10/3/2007 to edit text(aje). (Entered: 10/01/2007)
167 MOTION in Limine to Exclude Press Releases and News Articles by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities)(Scalia, John) Modified on 10/3/2007 to edit text(aje). (Entered: 10/01/2007)
168 MOTION in Limine to Exclude Exhibits and Any Testimony Relating to Chipotle's Policy by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities)(Vandeveld, Amy) Modified on 10/9/2007 to edit text (aje). (Entered: 10/03/2007)
169 MOTION in Limine to Exclude Exhibits No. 51 and 92 and Any Testimony Relating to Sait Manual by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities)(Vandeveld, Amy) Modified on 10/9/2007 to edit text (aje). (Entered:

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 17 of 33

10/03/2007 10/03/2007 10/03/2007
10/04/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/15/2007
10/15/2007
10/15/2007

10/03/2007)
170 MOTION in Limine to Exclude Cumulative Witnesses by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities)(Vandeveld, Amy) Modified on 10/9/2007 to edit text(aje).). (Entered: 10/03/2007)
171 MOTION in Limine to Exclude Joe Stupp's Testimony Re: 3/15/07 Email by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities)(Vandeveld, Amy) Modified on 10/9/2007 to edit text(aje). (Entered: 10/03/2007)
172 MOTION in Limine to Exclude Expert Witness Testimony Re: Applicable Laws and Regulations by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities # 2 Proof of Service )(Vandeveld, Amy) Modified on 10/9/2007 to edit text(aje). (Entered: 10/03/2007)
173 ORDER denying 158 Motion to Amend the Amended Pretrial Order. Signed by Judge Napoleon A. Jones Jr. on 10/4/07. (aje) (Entered: 10/04/2007)
174 SUPPLEMENTAL DOCUMENT by Chipotle Mexican Grill, Inc. Legal Standards. (Scalia, John) (aje). (Entered: 10/15/2007)
175 SUPPLEMENTAL DOCUMENT by Chipotle Mexican Grill, Inc. Proposed Joint Legal Standards. (Scalia, John) (aje). (Entered: 10/15/2007)
176 PRETRIAL MEMORANDUM by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 10/15/2007)
177 RESPONSE in Opposition to Chipotle's Supplemental Legal Standards 174 by Maurizio Antoninetti. (Attachments: # 1 Proof of Service )(Vandeveld, Amy) Modified on 10/16/2007 to edit text (aje). (Entered: 10/15/2007)
178 RESPONSE in Opposition to Plaintiff's Supplemental Legal Standards 176 by Chipotle Mexican Grill, Inc. (Scalia, John) Modified on 10/16/2007 to edit text (aje). (Entered: 10/15/2007)
179 RESPONSE in Opposition re 168 MOTION in Limine to Exclude Exhibits and Any Testimony Relating to Chipotle's Policy filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/15/2007)
180 RESPONSE in Opposition re 169 MOTION in Limine to Exclude Exhibits No. 51 and 92 and Any Testimony Relating to Sait Manual filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/15/2007)
181 RESPONSE in Opposition re 170 MOTION in Limine to Exclude Cumulative Witnesses filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/15/2007)
182 RESPONSE in Opposition re 171 MOTION in Limine to Exclude Joe Stupp's Testimony Re: 3/15/07 Email filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/15/2007)
183 RESPONSE in Opposition re 172 MOTION in Limine to Exclude Expert Witness Testimony Re: Applicable Laws and Regulations filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/15/2007)
184 AFFIDAVIT Support of 179 in Opposition re 168 MOTION in Limine to Exclude Exhibits and Any Testimony Relating to Chipotle's Policy filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Exhibits)(Scalia, John) Modified on 10/16/2007 to edit text (aje). (Entered: 10/15/2007)
185 AFFIDAVIT in Support of 179 in Opposition re 168 MOTION in Limine to Exclude Exhibits and Any Testimony Relating to Chipotle's Policy filed by Chipotle Mexican Grill, Inc.. (Scalia, John) Modified on 10/16/2007 to edit text(aje). (Entered: 10/15/2007)
186 RESPONSE In Opposition to 163 MOTION in Limine to Exclude Evidence and Argument Regarding Chipotle Restaurants Not at Issue in the Complaint filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service )(Vandeveld, Amy) Modified on 10/16/2007 to edit text(aje). (Entered: 10/15/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 18 of 33

10/15/2007 10/15/2007 10/15/2007 10/15/2007 10/22/2007 10/22/2007 10/22/2007 10/22/2007 10/22/2007
10/22/2007 10/22/2007 10/29/2007 10/29/2007 10/30/2007 11/05/2007

187 RESPONSE to Motion re 164 MOTION in Limine to Exclude Evidence and Argument Regarding Non−Witness Allegations of Disability Discrimination filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service )(Vandeveld, Amy) (aje). (Entered: 10/15/2007)
188 RESPONSE to Motion re 166 MOTION in Limine to Exclude Michael Rifkin, James Perkins, and Jean Riker as Trial Witnesses filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service) (Vandeveld, Amy) Modified on 10/16/2007 to edit text (aje). (Entered: 10/15/2007)
189 RESPONSE to Motion re 165 MOTION in Limine to Exclude Evidence and Argument Regarding Allegations that Kim Blackseth Had Conflicts of Interest or Misused His Public Office filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 10/15/2007)
190 NON Opposition re 167 MOTION in Limine to Exclude Press Releases and News Articles filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 10/15/2007)
191 REPLY to Response to Motion re 168 MOTION in Limine to Exclude Exhibits and Any Testimony Relating to Chipotle's Policy MIL #1 filed by Maurizio Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld)(Vandeveld, Amy) (aje). (Entered: 10/22/2007)
192 REPLY to Response to Motion re 169 MOTION in Limine to Exclude Exhibits No. 51 and 92 and Any Testimony Relating to Sait Manual MIL #2 filed by Maurizio Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld)(Vandeveld, Amy) (aje). (Entered: 10/22/2007)
193 REPLY to Response to Motion re 170 MOTION in Limine to Exclude Cumulative Witnesses MIL #3 filed by Maurizio Antoninetti. (Vandeveld, Amy) (aje). (Entered: 10/22/2007)
194 REPLY to Response to Motion re 171 MOTION in Limine to Exclude Joe Stupp's Testimony Re: 3/15/07 Email and Proof of Service filed by Maurizio Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld# 2 Proof of Service of Replies to MILs #1 to #4)(Vandeveld, Amy) (aje). (Entered: 10/22/2007)
195 REPLY to Response to Motion re 164 MOTION in Limine to Exclude Evidence and Argument Regarding Non−Witness Allegations of Disability Discrimination, 163 MOTION in Limine to Exclude Evidence and Argument Regarding Chipotle Restaurants Not at Issue in the Complaint filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/22/2007)
196 REPLY to Response to Motion re 166 MOTION in Limine to Exclude Michael Rifkin, James Perkins, and Jean Riker as Trial Witnesses filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/22/2007)
197 REPLY to Response to Motion re 165 MOTION in Limine to Exclude Evidence and Argument Regarding Allegations that Kim Blackseth Had Conflicts of Interest or Misused His Public Office filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/22/2007)
198 PRO HAC VICE APPOINTED: Matthew Sorensen appearing for Defendant Chipotle Mexican Grill, Inc. Local counsel Jeanne U. Vu (aje) (Entered: 10/29/2007)
199 Joint MOTION to Continue of Hearing on Motions In Limine by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 10/29/2007)
200 ORDER granting 199 Joint Motion to Continue Hearing on the Motions in Limine. It is hereby ordered the the Motion is granted, such that: The hearing on the parties' Motions in Limine be continued from 10/30/07 to 11/5/07 at 9:00 AM. Signed by Judge Napoleon A. Jones Jr. on 10/30/07. (aje) (Entered: 10/30/2007)
201 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: Motion Hearing held on 11/5/2007. Court to issue Order 11/07/07.(Court Reporter Melissa Pierson).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Matthew Sorensen). (bjb) (Entered: 11/07/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 19 of 33

11/08/2007
11/09/2007 11/14/2007 11/19/2007 11/19/2007 11/19/2007 11/20/2007 11/20/2007 11/20/2007 11/21/2007 11/21/2007 11/21/2007 11/21/2007

202 ORDER. A Motion in Limine Hearing was held on 11/5/07 at 9:00 a.m. The Court denies 163 Defendant's Motion in Limine to Exclude Evidence and Argument Regarding Chipotle Restaurants Not at Issue in the Complaint; The Court denies 164 Defendant's Motion in Limine to Exclude Evidence and Argument Regarding Non−Witness Allegations of Disability Discrimination; The Court denies 165 Defendant's Motion in Limine to Exclude Any Evidence and Argument Regarding Allegations that Defendant's Expert Witness Kim Blackseth had Conflicts of Interest or Misused His Position with regards to the reputation evidence and grants the motion with regards to specific instances of the alleged misconduct; The Court grants 166 Defendant's Motion in Limine to Exclude Michael Rifkin, James Perkins, and Jean Riker as Trial Witnesses on the grounds their testimony is irrelevant and they have no personal knowledge of the restaurants identified in the Complaint; The Court grants 167 Motion in Limine to Exclude Evidence of Press Releases and News Articles Bates Labeled DEF RFP 24−0250 through DEF RFP 24−0281 in Proposed Trial Exhibit 16; The Court denies 168 Plaintiff's Motion in Limine to Exclude Exhibits and Any Testimony Relating to Defendant's Policy. The Court denies Defendant's request for the costs and fees associated with opposing this motion; The Court denies 169 Plaintiff's Motion in Limine to Exclude Exhibits No. 51 and 92 (Defendant's Training Manual) and any testimony relating to said manual; The Court denies 170 Plaintiff's Motion in Limine to Exclude Cumulative Witnesses; The Court grants 171 Plaintiff's Motion in Limine to Exclude Joe Stupp's Testimony Regarding the 3/15/07 Email; The Court grants 172 Plaintiff's Motion in Limine to Exclude Expert Witness Testimony Regarding Applicable Laws and Regulations. Signed by Judge Napoleon A. Jones Jr. on 11/7/07. (aje) (Entered: 11/08/2007)
203 AMENDED ORDER. Signed by Judge Napoleon A. Jones Jr. on 11/09/07. (jpp) (Entered: 11/13/2007)
204 MOTION for Reconsideration of Ruling on Plaintiff's Motion in Limine 203 or, in the Alternative, for Clarification and/or Correction of Said Ruling by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities # 2 Declaration of Amy B. Vandeveld in Support of Motion# 3 Proof of Service)(Vandeveld, Amy) Modified on 11/15/2007 to edit text (aje). (Entered: 11/14/2007)
205 ORDER adopting 175 Joint Proposed Legal Standards; Summarily Dismissing 176 Plaintiff's Supplemental Legal Standards; and adopting in part and dismissing in part 174 Defendant's Supplemental Legal Standards. Signed by Judge Napoleon A. Jones Jr. on 11/19/07. (aje) (Entered: 11/19/2007)
206 NOTICE by Maurizio Antoninetti of Use of Electronic Equipment and Proof of Service (Attachments: # 1 Proof of Service)(Vandeveld, Amy) Modified on 11/20/2007 to edit attachment description (aje). (Entered: 11/19/2007)
207 Ex Parte MOTION to Shorten Time for Service of and Hearing on Motion to Quash by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Notice of Motion to Quash# 2 Memo of Points and Authorities in Support of Motion to Quash)(Scalia, John) (aje). (Entered: 11/19/2007)
208 NOTICE by Chipotle Mexican Grill, Inc. of Intent To Use Electronic Equipment at Trial (Scalia, John) (Entered: 11/20/2007)
209 TRIAL BRIEF by Chipotle Mexican Grill, Inc.. (Scalia, John) (Entered: 11/20/2007)
210 TRIAL BRIEF by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (Entered: 11/20/2007)
211 RESPONSE in Opposition re 207 Ex Parte MOTION to Shorten Time for Service of and Hearing on Motion to Quash filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (agp). (Entered: 11/21/2007)
212 Exhibit List by Maurizio Antoninetti.. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (joeh, ). (Entered: 11/21/2007)
213 Exhibit List "Joint" filed by Chipotle Mexican Grill, Inc... (Scalia, John) (jpp, ). (Entered: 11/21/2007)
214 Witness List by Chipotle Mexican Grill, Inc.. (Scalia, John)(leh) (Entered: 11/21/2007)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 20 of 33

11/21/2007 11/23/2007 11/23/2007 11/26/2007 11/26/2007 11/26/2007 11/26/2007 11/27/2007
11/27/2007 11/29/2007
11/30/2007
12/03/2007
12/17/2007 12/17/2007 01/10/2008
01/22/2008

215 NOTICE by Chipotle Mexican Grill, Inc. of Disassociation of Counsel (Scalia, John)(mkz). (Entered: 11/21/2007)
216 NOTICE by Chipotle Mexican Grill, Inc. re 209 Trial Brief of Errata (Scalia, John) (kmm). (Entered: 11/23/2007)
217 NOTICE by Chipotle Mexican Grill, Inc. re 216 Notice (Other) of Foreign Authority (Scalia, John) (mdc) (Entered: 11/23/2007)
218 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: Motion Hearing held on 11/26/2007 Motion to Quash. Motion to Quash deemed premature and denied. (Court Reporter Joan King).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Matthew Sorenson). (bjb) (Entered: 11/26/2007)
219 NOTICE by Maurizio Antoninetti Lodgment of Deposition Transcripts (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (vet, ). (Entered: 11/26/2007)
220 NOTICE by Chipotle Mexican Grill, Inc. of Lodgment of Deposition Transcripts (Scalia, John) (vet, ). (Entered: 11/26/2007)
221 REPLY re 209 Trial Brief of Defendant filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (Entered: 11/26/2007)
222 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: Bench Trial held on 11/27/2007. Day of Trial 1. Swore witnesses. Exhibits marked/received. Bench Trial Day 2 set for 11/29/2007 08:00 AM in Courtroom 12 before Judge Napoleon A. Jones Jr.(Court Reporter Joan King).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney John Scalia; Matthew Sorenson). (bjb) (Entered: 11/27/2007)
223 ORDER granting 207 Defendant's Ex Parte Motion to Shorten Time for Service of and Hearing on Motion to Quash. Signed by Judge Napoleon A. Jones Jr. on 11/27/2007. (kmm)(bar ). (Entered: 11/27/2007)
224 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: Bench Trial held on 11/29/2007. Day of Trial 2. Swore witnesses. Exhibits marked/received. Bench Trial continued to 11/30/07 at 8:00am(Court Reporter Joan King).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Matthew Sorenson; John Scalia). (bjb) (Entered: 11/29/2007)
225 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: Bench Trial held on 11/30/2007. Day of Trial 3. Swore witnesses. Exhibits marked/received. Bench Trial continued to 12/3/07 at 9:00am(Court Reporter Joan King).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Matthew Sorenson; John Scalia). (bjb) (Entered: 12/05/2007)
228 Minute Entry for proceedings held before Judge Napoleon A. Jones Jr.: Bench Trial completed on 12/3/2007. Day of Trial 4. Swore witnesses. Case taken under submission.(Court Reporter Joan King).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Matthew Sorenson, John Scalia). (bjb) (Entered: 01/07/2008)
226 Proposed Findings of Fact by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy)(aje). (Entered: 12/17/2007)
227 MEMORANDUM OF CONTENTION OF FACTS AND LAW by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 12/17/2007)
229 FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT. The Court finds that Defendant's Customers With Disabilities Policy provides equivalent facilitation under the guidelines of ADAAG 7.2(2)iii. Aditionally, the Court awards Plaintiff $5,000.00, and no more, for Defendant's failure to accomodate under the rules of the ADA and CDPA during Plaintiff's visits to Chipotle before the implementation of the Customers With Disabilities Policy. Signed by Judge Napoleon A. Jones Jr. on 1/10/08. (aje) (Entered: 01/10/2008)
230 MOTION to Amend/Correct 229 Findings of Fact & Conclusions of Law,, by Maurizio Antoninetti. (Attachments: # 1 Notice of Motion Pursuant to FRCP 52(a)# 2 Proof of Service of Motion Pursuant to FRCP 52(a))(Vandeveld, Amy) (aje). (Entered: 01/22/2008)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 21 of 33

01/24/2008 01/28/2008
01/29/2008 01/29/2008 01/29/2008 02/05/2008
02/25/2008 03/03/2008 03/04/2008 04/21/2008 05/02/2008
05/05/2008 05/05/2008

231 BILL OF COSTS by Chipotle Mexican Grill, Inc. in the amount of $5,084.83 (Attachments: # 1 Bill of Costs# 2 Declaration of John F. Scalia)(Hurley, Gregory). Modified on 1/28/2008 to edit text, document filed using incorrect event(aje). (Entered: 01/24/2008)
NOTICE: A Bill of Costs was E−filed in this case; refer document # 231 on January 24, 2008 by defendant Chipotle Mexican Grill, Inc., scheduling a hearing for Tuesday, February 12, 2008 at 10:00 a.m. Pacific Time. Any oppositions to the Bill of Costs are to be E−filed by 12:00 p.m. Noon Pacific Time on Monday, February 11, 2008. All parties requesting to appear telephonically for this hearing are directed to join on a conference call (dial in number and passcode appear on the front page of document #231) first and then contact Joseph Diaz at 619.557.5601 for this hearing. (jrd) Copies of the NEF sent via U.S. Mail to non−registered attorneys on this date (jrd). (Entered: 01/28/2008)
232 BILL OF COSTS submitted by Plaintiff Maurizio Antoninetti in the amount of $ 9,010.73. (Attachments: # 1 Bill of Costs# 2 Declaration of Amy B. Vandeveld# 3 Exhibit "A", part 1)(Vandeveld, Amy) (aje). (Entered: 01/29/2008)
233 BILL OF COSTS submitted by Plaintiff Maurizio Antoninetti in the amount of $ 9,010.73. (Attachments: # 1 Bill of Costs# 2 Declaration of Amy B. Vandeveld)(Vandeveld, Amy) (aje). (Entered: 01/29/2008)
234 BILL OF COSTS submitted , Exhibit A part 2, Exhibit B, and Proof of Service by Plaintiff Maurizio Antoninetti in the amount of $ 9,010.73. (Attachments: # 1 Exhibit A part 2# 2 Exhibit B # 3 Proof of Service)(Vandeveld, Amy) Modified on 1/30/2008 to edit text(aje). (Entered: 01/29/2008)
235 NOTICE − On 1/22/2008 the plaintiff E−filed a Motion to Amend/Correct 229 Findings of Fact & Conclusions of Law. The Bill of Cost Hearing scheduled for Tuesday, February 12, 2008 at 10:00 a.m. Pacific Time is VACATED and will be rescheduled after the ruling on the Motion to Amend/Correct is made by the court. Once the ruling is made, counsel is instructed to contact the Clerks Office at 619.557.5601 to set up the Bill of Cost Hearing. (jrd) Copies of the NEF sent via U.S. Mail to non−registered attorneys on this date (jrd). (Entered: 02/05/2008)
236 RESPONSE in Opposition re 230 MOTION to Amend/Correct 229 Findings of Fact & Conclusions of Law,, filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 02/25/2008)
237 REPLY to Response to Motion re 230 MOTION to Amend/Correct 229 Findings of Fact & Conclusions of Law,, filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 03/03/2008)
238 ORDER Re Oral Argument. The Court finds 230 MOTION to Amend/Correct 229 Findings of Fact & Conclusions of Law suitable for determination on the papers submitted and without oral argument pursuant to Local Civil Rule 7.1.d.1; Accordingly, no appearances are required on 3/10/08. Signed by Judge Napoleon A. Jones Jr. on 3/4/08. (aje) (Entered: 03/04/2008)
239 ORDER denying Pla's 230 Motion to Amend Findings of Fact and for Additional Findings of Fact. Signed by Judge Napoleon A. Jones, Jr on 4/21/2008. (jah) (Entered: 04/21/2008)
240 NOTICE: The Bill of Cost Hearing is rescheduled for Monday, 5/12/2008 at 2:00 p.m. Pacific Time. Any oppositions to the Bill of Costs are to be E−filed by 12:00 p.m. Noon Pacific Time on Friday, 5/9/2008. All parties will appear telephonically for this hearing and are directed to join on a conference call first and then contact Joseph Diaz at 619.557.5601 for this hearing. Copies of the Notice of Electronic Filing sent via U.S. Mail to non−registered attorneys on this date. (jrd) (Entered: 05/02/2008)
241 MOTION for Attorney Fees by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Request for Judicial Notice, # 3 Declaration Andrew Mudryk, Russell Handy, Theodore A. Pinnock)(Vandeveld, Amy) Modified on 5/6/2008, no certificate of service (aje). (Entered: 05/05/2008)
242 Declaration of Amy Vandeveld in Support of 241 MOTION for Attorney Fees by Maurizio Antoninetti. (Attachments: # 1 Exhibit 2/4 to 3/17)(Vandeveld, Amy)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 22 of 33

05/05/2008
05/05/2008 05/05/2008 05/05/2008 05/05/2008 05/05/2008 05/05/2008 05/05/2008 05/05/2008 05/09/2008 05/09/2008 05/12/2008
05/15/2008 05/16/2008 05/23/2008
05/27/2008

Modified on 5/6/2008 to edit text, document was filed as a motion (aje). (Entered: 05/05/2008)
243 Declaration of Amy Vandeveld in Support of 241 MOTION for Attorney Fees Exhibit List, Exhibits 1/1 to 1/3 by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008 to edit text, document was filed as a motion in error (aje). (Entered: 05/05/2008)
244 Exhibits 3/18 to 5/34 in Support of 241 MOTION for Attorney Fees by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008 to edit text, document filed as a motion in error (aje). (Entered: 05/05/2008)
245 Exhibits 6/35 to 6/55 in Support of 241 MOTION for Attorneys Fees by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008 to edit text, document filed as a motion in error (aje). (Entered: 05/05/2008)
246 Exhibits 6/56 to 6/76 In Support of 241 MOTION for Attorney Fees by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008, document was filed as a motion in error (aje). (Entered: 05/05/2008)
247 Exhibits 6/77 to 6/97 in Support of 241 MOTION for Attorney Fees by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008 document was filed as a motion in error (aje). (Entered: 05/05/2008)
248 Exhibits 6/98 to 6/123 in Support of 241 MOTION for Attorney Fees by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008 document was filed as a motion in error(aje). (Entered: 05/05/2008)
249 Amended MOTION for Attorney's Fees and Costs(Vandeveld, Amy) Modified on 5/6/2008 document was filed as a notice (aje). (Entered: 05/05/2008)
250 Declaration of Andrew Mudryk in Support of 249 MOTION for Attorneys Fees and Costs by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008 document was filed as a motion in error (aje). (Entered: 05/05/2008)
251 Proof of Service by Maurizio Antoninetti. (Vandeveld, Amy) Modified on 5/6/2008, document was filed as a motion in error (aje). (Entered: 05/05/2008)
252 Objection to Bill of Costs re 232 Bill of Costs filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (aje). (Entered: 05/09/2008)
253 Objection to Bill of Costs re 231 Notice (Other), Notice (Other) filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 05/09/2008)
254 NOTICE − The Bill of Cost Hearing re documents 231 and 232 will be rescheduled to a date and time after the ruling on plaintiffs Motion for Attorneys Fees 249 is made by the court. Once the ruling is made, counsel is instructed to contact the Clerks Office at 619.557.5601 (J. Diaz) to set up the Bill of Cost Hearing. Appearing telephonically on Monday, 5/12/2008 at 2:00 p.m. for plaintiff Maurizio Antoninetti: Amy B Vandeveld; and appearing for defendant Chipotle Mexican Grill, Inc.: Jeanne Uyen Vu. Copies of the Notice of Electronic Filing sent via U.S. Mail to non−registered attorneys in the case on this date. (jrd) (Entered: 05/12/2008)
255 NOTICE OF APPEAL as to 239 Order Denying Motion to Amend, 229 Findings of Fact & Conclusions of Law by Maurizio Antoninetti. (Filing Fee: Paid, Receipt #150982). (leh) (Entered: 05/16/2008)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 255 Notice of Appeal. (leh) (Entered: 05/16/2008)
256 RESPONSE in Opposition re 249 MOTION for Attorney Fees filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit Exhibit 1 # 3 Exhibit 2 (part 1), # 4 Exhibit 2 Part 2 # 5 Exhibit 2 Part 3 # 6 Exhibit 3)(Scalia, John) Modified on 5/27/2008 to edit attachment description (aje). (Entered: 05/23/2008)
257 TRANSCRIPT REQUEST by Maurizio Antoninetti for proceedings held on 9/10/2007, 11/5/2007, 11/27/2007, 11/29/2007, 11/30/2007, 12/3/2007 re 255 Notice of Appeal. (leh) (Entered: 05/28/2008)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 23 of 33

05/28/2008 05/29/2008 05/30/2008 05/30/2008 06/02/2008 06/04/2008 07/15/2008
07/28/2008
07/28/2008
07/28/2008
07/28/2008

258 USCA Time Scheduling Order as to 255 Notice of Appeal filed by Maurizio Antoninetti. (cc: Court Reporter) (leh) (Entered: 05/28/2008)
259 NOTICE OF APPEAL as to 229 Findings of Fact & Conclusions of Law and Judgment, 129 Order by Chipotle Mexican Grill, Inc. (Filing Fee: Paid, Receipt #151358). (leh) Modified on 5/30/2008 to link to order(leh). (Entered: 05/30/2008)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 259 Notice of Appeal. (leh) (Entered: 05/30/2008)
260 NOTICE by Chipotle Mexican Grill, Inc. of Change of Attorney Information (Vu, Jeanne) (aje). (Entered: 05/30/2008)
261 REPLY to Response to Motion re 241 MOTION for Attorney Fees filed by Maurizio Antoninetti. (Attachments: # 1 Declaration in Support of Reply, # 2 Proof of Service)(Vandeveld, Amy) (aje). (Entered: 06/02/2008)
262 ORDER Re: Oral Argument. Currently scheduled for oral argument on this Court's calendar for June 9, 2008, is Plaintiff Maurizio Antoninetti's Motion for Attorney Fees 241 . The Court finds the Motion suitable for determination on the papers submitted and without oral arguments. Accordingly, no appearances are required on June 9, 2008. Signed by Judge Napoleon A. Jones, Jr on 6/4/08. (aje) (Entered: 06/04/2008)
263 TRANSCRIPT of Motion Hearing filed for date of 11/5/07 before Judge Napoleon A. Jones, Jr., re 255 Notice of Appeal. Court Reporter/Transcriber: Melissa A. Pierson. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. Redaction Request Statement due to Court Reporter/Transcriber 8/4/2008. Redacted Transcript Deadline set for 8/12/2008. Release of Transcript Restriction set for 10/10/2008. (akr) Modified text on 7/28/2008 (akr). (Entered: 07/17/2008)
264 TRANSCRIPT of Pretrial Conference filed for date of 09/10/07 before Judge Napoleon A. Jones, Jr., re 255 Notice of Appeal. Court Reporter/Transcriber: D. Joan King. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. Redaction Request Statement due to Court Reporter/Transcriber 8/15/2008. Redacted Transcript Deadline set for 8/25/2008. Release of Transcript Restriction set for 10/23/2008. (akr) (Entered: 07/28/2008)
265 TRANSCRIPT of Court Trial filed for date of 11/27/07 before Judge Napoleon A. Jones, Jr., re 255 Notice of Appeal. Court Reporter/Transcriber: D. Joan King. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. Redaction Request Statement due to Court Reporter/Transcriber 8/15/2008. Redacted Transcript Deadline set for 8/25/2008. Release of Transcript Restriction set for 10/23/2008. (akr) (Entered: 07/28/2008)
266 TRANSCRIPT of Court Trial filed for date of 11/29/07 before Judge Napoleon A. Jones, Jr., re 255 Notice of Appeal. Court Reporter/Transcriber: D. Joan King. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. Redaction Request Statement due to Court Reporter/Transcriber 8/15/2008. Redacted Transcript Deadline set for 8/25/2008. Release of Transcript Restriction set for 10/23/2008. (akr) (Entered: 07/28/2008)
267 TRANSCRIPT of Court Trial filed for date of 11/30/07 before Judge Napoleon A. Jones, Jr., re 255 Notice of Appeal. Court Reporter/Transcriber: D. Joan King. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. Redaction Request Statement due to Court Reporter/Transcriber 8/15/2008. Redacted Transcript Deadline set for 8/25/2008. Release of Transcript Restriction set for 10/23/2008. (akr) (Entered: 07/28/2008)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 24 of 33

07/28/2008
07/28/2008 08/11/2008 08/21/2008
08/28/2008
08/29/2008 09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/10/2008

268 TRANSCRIPT of Court Trial filed for date of 12/03/07 before Judge Napoleon A. Jones, Jr., re 255 Notice of Appeal. Court Reporter/Transcriber: D. Joan King. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. Redaction Request Statement due to Court Reporter/Transcriber 8/15/2008. Redacted Transcript Deadline set for 8/25/2008. Release of Transcript Restriction set for 10/23/2008. (akr) (Entered: 07/28/2008)
269 Certificate of Record transmitted to USCA re 255 Notice of Appeal by Maurizio Antoninetti. (akr) (Entered: 07/28/2008)
270 NOTICE of USCA Receipt of Certificate of Record re 255 Notice of Appeal filed by Maurizio Antoninetti. USCA Case Number 08−55867. (akr) (Entered: 08/11/2008)
271 ORDER granting in Part Plaintiff's Motion for Attorney Fees and Costs 241 ; Awarding Plaintiff Reasonable Fees and Costs Pending Submission of a Bill of Costs; and Ordering Plaintiff to Submit a Bill of Costs and Contact the Court to Set a Hearing Date. The court finds that the Plaintiff is the prevailing party. The Court awards reasonable attorneys' fees to Plaintiff based on reasonable time spent litigating issues regarding the CDPA claims on which the Court awarded Plaintiff for damages, and any related ADA claims, as well as reasonable time spent working on litigation concerning the unequal facilitation of Defendant's unwritten customer accommodation policy. Signed by Judge Napoleon A. Jones, Jr on 8/21/08. (All non−registered users served via U.S. Mail Service).(asw) (av1). (Entered: 08/22/2008)
272 NOTICE: The Clerks Office was contacted by plaintiff on 8/27/08 to reschedule the Bill of Cost hearing. As directed in Order 271 plaintiffs are directed to file an Amended Bill of Cost by close of business on September 10, 2008. Any opposition to this Bill of Cost is to be filed by close of business on September 24, 2008. A Bill of Cost hearing will be held on October 6, 2008 at 8:30 am before Judge Napoleon A. Jones, Jr. in Courtroom #12 (nsp) Modified on 8/28/2008 to indicate nonregistered counsel served through US Mail(nsp). (Entered: 08/28/2008)
273 MOTION to Amend/Correct 271 Order on Motion for Attorney Fees,,, by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Proof of Service)(Vandeveld, Amy) (mdc) (Entered: 08/29/2008)
274 AMENDED BILL OF COSTS submitted by Plaintiff Maurizio Antoninetti in the amount of $ 559572.06. (Attachments: # 1 Bill of Costs, # 2 Declaration of Amy B. Vandeveld, # 3 Request for Judicial Notice, # 4 Amended Memorandum of Costs)(Vandeveld, Amy) Modified on 9/15/2008 − Added "Amended" to document title in text; certificate of service included with Doc. 278 . (mdc) (Entered: 09/10/2008)
275 AMENDED BILL OF COSTS (RE DOC. 274 ) submitted Exhibit A, Parts 1 and 2 by Plaintiff Maurizio Antoninetti in the amount of $ 559572.06. (Attachments: # 1 Exhibit A Part 2 to Amended Bill of Costs)(Vandeveld, Amy) Modified on 9/15/2008 − Added "Amended" and Doc. # 274 link to document title in text; certificate of service included with Doc. 278 . (mdc) (Entered: 09/10/2008)
276 AMENDED BILL OF COSTS (RE DOC. 274 ) submitted by Plaintiff Maurizio Antoninetti in the amount of $ 559572.06. (Attachments: # 1 Exhibit A Parts 3 and 4)(Vandeveld, Amy) Modified on 9/15/2008 − Added "Amended" and Doc. # 274 link to document title in text; certificate of service included with Doc. 278 . (mdc) (Entered: 09/10/2008)
277 AMENDED BILL OF COSTS (RE DOC. 274 ) submitted Exhibit A Part 5 by Plaintiff Maurizio Antoninetti in the amount of $ 559572.06. (Vandeveld, Amy) Modified on 9/15/2008 − Added "Amended" and Doc. # 274 link to document title in text; certificate of service included with Doc. 278 . (mdc) (Entered: 09/10/2008)
278 AMENDED BILL OF COSTS (RE DOC. 274 ) submitted Exhibit A Parts 6 and 7 by Plaintiff Maurizio Antoninetti in the amount of $ 559572.06. (Attachments: # 1 Exhibit A Parts 6 and 7, # 2 Proof of Service)(Vandeveld, Amy) Modified on 9/15/2008 to add "Amended" and Doc. # 274 link to document title in text. (mdc) (Entered: 09/10/2008)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 25 of 33

09/17/2008 09/18/2008 09/19/2008 09/22/2008 10/06/2008 10/06/2008 10/14/2008 10/20/2008 10/29/2008
02/06/2009 03/02/2009

279 Ex Parte MOTION to Continue Hearing on Motion for Reconsideration of Court's Ruling on Plaintiff's Motion for Attorneys' Fees and Plaintiff's Amended Bill of Costs by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Declaration of John F. Scalia, # 2 Declaration of Jeanne V. McKee, # 3 Declaration of Matthew H. Sorensen)(Scalia, John) (mdc) (Entered: 09/17/2008)
280 RESPONSE in Opposition re 279 Ex Parte MOTION to Continue Hearing on Motion for Reconsideration of Court's Ruling on Plaintiff's Motion for Attorneys' Fees and Plaintiff's Amended Bill of Costs filed by Maurizio Antoninetti. (Attachments: # 1 Declaration, # 2 Proof of Service)(Vandeveld, Amy) (mdc) (Entered: 09/18/2008)
281 ORDER Granting Defendant's 279 Ex Parte Motion to Continue the Hearing on Plaintiff's Motion for Reconsideration and Plaintiff's Amended Bill of Costs. The motion hearing set for 10/6/08 is continued to 10/20/08 at 8:30 AM. Signed by Judge Napoleon A. Jones, Jr on 9/19/08. (All non−registered users served via U.S. Mail Service). (asw) (av1). (Entered: 09/19/2008)
282 Amended ORDER Granting Defendant's 279 Ex Parte Motion Continue the Hearing on Plaintiff's Motion for Reconsideration and Plaintiff's Amended Bill of Costs. The Hearing on Plaintiff's Motion for Reconsideration is continued to 10/20/08 at 8:30 a.m. Signed by Judge Napoleon A. Jones, Jr on 9/22/08. (All non−registered users served via U.S. Mail Service).(asw) (av1). (Entered: 09/22/2008)
283 RESPONSE in Opposition re 273 MOTION to Amend/Correct 271 Order on Motion for Attorney Fees,,, Amended Bill of Costs filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Scalia, John) (mdc) (Entered: 10/06/2008)
284 RESPONSE in Opposition re 273 MOTION to Amend/Correct 271 Order on Motion for Attorney Fees,,, to Motion for Reconsideration filed by Chipotle Mexican Grill, Inc.. (Scalia, John) (mdc) (Entered: 10/06/2008)
285 REPLY to Chipotle's OPPOSITION to Plaintiff's Amended Bill of Costs filed as BILL OF COSTS submitted Reply to Opposition to Amended Bill of Costs by Plaintiff Maurizio Antoninetti in the amount of $ 550651.33. (Attachments: # 1 Declaration in Reply to Opposition to Amended Bill of Costs, # 2 Proof of Service of Reply in Opposition to Amended Bill of Costs)(Vandeveld, Amy) Modified text on 10/16/2008 to reflect document title (lao). (Entered: 10/14/2008)
286 Minute Entry for proceedings held before Judge Napoleon A. Jones, Jr:Motion Hearing held on 10/20/2008 re 273 MOTION to Amend/Correct 271 Order on Motion for Attorney Fees filed by Maurizio Antoninetti taken under submission. Court to prepare order.(Court Reporter Melinda Setterman).(Plaintiff Attorney Amy Vendeveld).(Defense Attorney John Scalia).(bjb) (Entered: 10/20/2008)
287 ORDER of USCA as to 259 Notice of Appeal filed by Chipotle Mexican Grill, Inc., 255 Notice of Appeal filed by Maurizio Antoninetti. The USCA is in receipt of the motion of Disability Rights Education and Defense Fund, Disability Rights Advocates, Disability Rights California, Disability Rights Legal Center, Colorado Cross Disability Coalition, National Disability Rights Network, and the American Association of People with Disabilities to file an amicus curiae brief in support of reversal. The motion, any response thereto and any further such request shall be referred to the merits panel for such treatment the panel deems appropriate. A copy of the brief shall be provided to the panel to aid resolution of the motion. Any future requests to file friend of the court briefs shall be treated in the same fashion. (akr) (Entered: 10/29/2008)
288 ORDER: Denying Plaintiff's 273 Motion for Reconsideration; Granting in Part and Denying in Part Plaintiff's Amended Bill of Costs. The Court: AWARDS Plaintiff attorneys fees in the amount of $136,537.83; and ORDERS that each party bears its own costs. Signed by Judge Napoleon A. Jones, Jr on 2/6/09. (All non−registered users served via U.S. Mail Service).(asw) (av1). (Entered: 02/06/2009)
289 NOTICE OF APPEAL as to 271 Order granting in Part Plaintiff's Motion for Attorney Fees and Costs; Awarding Plaintiff Reasonable Fees and Costs Pending Submission of a Bill of Costs, 288 Order Denying Plaintiff's Motion for Reconsideration; Granting in Part and Denying in Part Plaintiff's Amended Bill of Costs, by Maurizio Antoninetti. (Filing Fee: Paid, Receipt No. 160584). (akr). Modified on 3/17/2009 to edit text. (akr). (Entered: 03/02/2009)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 26 of 33

03/02/2009 03/05/2009 03/05/2009 03/11/2009 03/16/2009 03/16/2009
03/17/2009 03/17/2009 03/20/2009 03/20/2009 04/03/2009 04/06/2009
04/06/2009 04/10/2009
04/13/2009
04/15/2009

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 289 Notice of Appeal. (akr) (Entered: 03/02/2009)
290 USCA Case Number 09−55327 for 289 Notice of Appeal, filed by Maurizio Antoninetti. (akr) (Entered: 03/05/2009)
291 USCA Time Scheduling Order as to 289 Notice of Appeal, filed by Maurizio Antoninetti. (cc: Court Reporters). (akr) (Entered: 03/05/2009)
292 TRANSCRIPT REQUEST by Maurizio Antoninetti for proceedings held on 10/20/2008 re 289 Notice of Appeal. (akr) (Entered: 03/11/2009)
293 MOTION to Stay by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities)(Scalia, John) (tkl). (Entered: 03/16/2009)
294 NOTICE OF CROSS APPEAL as to 271 Order granting in Part Plaintiff's Motion for Attorney Fees and Costs; Awarding Plaintiff Reasonable Fees and Costs Pending Submission of a Bill of Costs, 288 Order Denying Plaintiff's Motion for Reconsideration; Granting in Part and Denying in Part Plaintiff's Amended Bill of Costs, by Chipotle Mexican Grill, Inc. (Filing Fee: Paid, Receipt No. 161064). (akr) (Entered: 03/17/2009)
Transmission of Notice of Cross Appeal and Docket Sheet to US Court of Appeals re 294 Notice of Cross Appeal. (akr) (Entered: 03/17/2009)
295 Amended MOTION to Stay by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities)(Scalia, John) (tkl). (Entered: 03/17/2009)
296 USCA Case Number 09−55425 for 294 Notice of Cross Appeal, filed by Chipotle Mexican Grill, Inc. (akr) (Entered: 03/20/2009)
297 USCA Time Scheduling Order as to 294 Notice of Cross Appeal, filed by Chipotle Mexican Grill, Inc., 289 Notice of Appeal, filed by Maurizio Antoninetti. (akr) (Entered: 03/20/2009)
298 NON Opposition re 295 Amended MOTION to Stay filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (Entered: 04/03/2009)
299 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motions Hearing) for date of 10/20/2008 before Judge Napoleon A. Jones, Jr., re 289 Notice of Appeal. Court Reporter/Transcriber: Melinda S. Setterman. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 4/27/2009. Redacted Transcript Deadline set for 5/7/2009. Release of Transcript Restriction set for 7/6/2009. (All non−registered users served via U.S. Mail Service. Notice of electronic filing only.) (akr) (Entered: 04/06/2009)
300 Certificate of Record transmitted to USCA re 289 Notice of Appeal filed by by Maurizio Antoninetti. (akr) (Entered: 04/06/2009)
301 ORDER of USCA as to 259 Notice of Appeal filed by Chipotle Mexican Grill, Inc., 255 Notice of Appeal filed by Maurizio Antoninetti in USCA Case Numbers 08−55867 and 08−55946. Defendant's motion to strike portions of the third cross−appeal brief, the opposition thereto, and all future filings shall be referred for disposition to the panel that considers the merits of the case. (akr) (Entered: 04/10/2009)
302 ORDER signed by Judge Napoleon A. Jones, Jr on 4/13/09. The Court finds the Motion suitable for determination on the papers submitted and without oral argument 295 . Accordingly, no appearances are required on April 20, 2009.(All non−registered users served via U.S. Mail Service).Modified on 4/13/2009 to include document 295 in text (tkl). (jrl). (Entered: 04/13/2009)
303 NOTICE of USCA Receipt of Certificate of Record re 289 Notice of Appeal, filed by Maurizio Antoninetti. USCA Case Number 09−55327. (akr) (Entered: 04/15/2009)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 27 of 33

05/15/2009 09/01/2009 04/02/2010
08/03/2010 08/04/2010 08/05/2010 08/06/2010 08/09/2010 08/09/2010
08/12/2010 08/17/2010 08/19/2010
08/25/2010 08/26/2010 08/30/2010

304 ORDER granting 295 Motion to Stay. Signed by Judge Napoleon A. Jones, Jr on 05/15/09. (bjb) (jrl). (Entered: 05/15/2009)
305 Civil BOND in the amount of $ 136,537.83.00 posted by Defendant Chipotle Mexican Grill, Inc. (All non−registered users served via U.S. Mail Service).(bjb) Modified on 9/8/2009 correct amount(bjb). (Entered: 09/03/2009)
306 ORDER of USCA as to 259 Notice of Appeal filed by Chipotle Mexican Grill, Inc., 255 Notice of Appeal filed by Maurizio Antoninetti. The motion of the Disability Rights Education and Defense Fund, Disability Rights Advocates, Disability Rights California, Disability Rights Legal Center, Colorado Cross Disability Coalition, the National Disability Rights Network, and the American Association of People with Disabilities to file a brief as amici curiae is granted. Amici's motion to participate in oral argument is granted as follows: Each side shall have twenty minutes for oral argument. Amici shall have seven minutes of the time allotted to Appellant−Cross−Appellee Maurizio Antoninetti. (akr) (Entered: 04/02/2010)
307 ORDER of USCA as to 255 Notice of Appeal filed by Maurizio Antoninetti, 259 Notice of Appeal filed by Chipotle Mexican Grill, Inc., 289 Notice of Appeal filed by Maurizio Antoninetti, 294 Notice of Cross Appeal filed by Chipotle Mexican Grill, Inc. Costs are awarded to the plaintiff. (akr) (Entered: 08/03/2010)
308 NOTICE of Appearance by Charles C Cavanagh on behalf of Chipotle Mexican Grill, Inc. (Attachments: # 1 Proof of Service)(Cavanagh, Charles)(jer). (Entered: 08/04/2010)
309 MOTION to Withdraw as Attorney by Chipotle Mexican Grill, Inc. (Attachments: # 1 Memo of Points and Authorities)(Scalia, John) (jer). (Entered: 08/05/2010)
Minute Order: Judge Napoleon A. Jones, Jr is no longer assigned to case and Judge Barry Ted Moskowitz is now assigned to the case. The new case number is 05cv1660−BTM(WMC). (All non−registered users served via U.S. Mail Service)(jer) (Entered: 08/06/2010)
310 BILL OF COSTS submitted by Plaintiff Maurizio Antoninetti in the amount of $ 1179.8. Hearing set for 8/30/2010 at 10:00AM. (Attachments: # 1 Affidavit, # 2 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 08/09/2010)
311 NOTICE: A Bill of Costs 310 was filed by plaintiff Maurizio Antoninetti on August 9, 2010 scheduling a hearing for August 30, 2010. Any opposition or responsive pleadings to this Bill of Costs is to be filed by close of business on August 25, 2010. All parties requesting to appear telephonically are directed to join on a conference call then contact N. Prewitt (619−557−6415) at the time of the hearing. (All non−registered users served via U.S. Mail Service)(nsp) (Entered: 08/09/2010)
312 Mail Returned as Undeliverable re Minute Entry on 8/6/10. Mail sent to Michael W. Skorupka. Re−Mailed to forwarding address. (jer) (Entered: 08/12/2010)
313 Mail Returned as Undeliverable on 8/16/10 re 311 Notice of Bill of Costs filed. Re−Mailed to forwarding address. (jer) (Entered: 08/17/2010)
314 ORDER Granting Defendant Chipotle Mexican Grill, Inc's 309 Motion to Withdraw. The law firm of Greenberg Traurig, LLP, and Gregory F. Hurley, John F. Scalia, Jeanne V. McKee, and Matthew H. Sorensen thereof, are withdrawn as counsel of record for Defendant Chipotle Mexican Grill, Inc. Signed by Judge Barry Ted Moskowitz on 8/19/2010. (All non−registered users served via U.S. Mail Service)(jer) (Entered: 08/20/2010)
315 RESPONSE re 310 Bill of Costs filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Proof of Service)(Cavanagh, Charles) wrong judge in caption; emailed atty (jer). (Entered: 08/25/2010)
316 PRO HAC VICE APPOINTED: Matthew R. Groves appearing for Defendant Chipotle Mexican Grill, Inc. (All non−registered users served via U.S. Mail Service)(jer) (Entered: 08/26/2010)
317 NOTICE: The Bill of Costs hearing set for August 30, 2010 at 10:00 am is vacated. A Petition for Rehearing has been filed with the Ninth Circuit by defendants. The mandate of the Ninth Circuit has not yet been filed in the District Court. When the

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 28 of 33

09/08/2010 10/18/2010 10/21/2010 10/26/2010
10/28/2010 11/05/2010 11/05/2010 11/05/2010 11/16/2010
11/18/2010
11/23/2010 11/29/2010

filing of the Mandate of the Ninth Circuit is filed in the District Court, plaintiff's counsel is to notify N. Prewitt (619) 557−6415. Defendant's counsel has indicated they have no opposition to the costs as requested. Upon notification of the mandate filing, the Order Taxing Costs will be issued. (nsp) (Entered: 08/30/2010)
318 PRO HAC VICE APPOINTED: Edward J. Hafer appearing for ThirdParty Plaintiff Chipotle Mexican Grill, Inc. and Defendant Chipotle Mexican Grill, Inc. (All non−registered users served via U.S. Mail Service)(ag) (Entered: 09/09/2010)
319 ORDER of USCA as to 294 Notice of Cross Appeal, 289 Notice of Appeal, 259 Notice of Appeal, 255 Notice of Appeal. Appellee's unopposed motion for an extension of time in which to file its response to appellant's motion for attorney fees is granted. (akr) (Entered: 10/18/2010)
320 ORDER of USCA as to 294 Notice of Cross Appeal, 289 Notice of Appeal, 259 Notice of Appeal, 255 Notice of Appeal. Plaintiff's opposed motion for an award of costs is granted in part. Costs in the amount of $1306.90 are awarded to plaintiff. (akr) (Entered: 10/21/2010)
321 ORDER Re Status Conference. In light of the Ninth Circuit's Mandate and Opinion regarding the above−captioned case, the Court hereby orders the Parties to appear on Tuesday, November 9, 2010 at 3:00pm in Courtroom 15 before Judge Barry Ted Moskowitz for a status conference. Signed by Judge Barry Ted Moskowitz on 10/26/10.(All non−registered users served via U.S. Mail Service)(jer) (jrl). (Entered: 10/26/2010)
322 AMENDED ORDER Re Status Conference: In light of the Ninth Circuit's Mandate and Opinion regarding the above−captioned case, the Court hereby orders the Parties to appear on Tuesday, November 16, 2010 at 11:30am in Courtroom 15 before Judge Barry Ted Moskowitz for a status conference. Signed by Judge Barry Ted Moskowitz on 10/28/2010.(jer) (jrl). (Entered: 10/28/2010)
323 NOTICE of Appearance by David R Sugden on behalf of Chipotle Mexican Grill, Inc. (Sugden, David) (jer). (Entered: 11/05/2010)
324 NOTICE of Appearance by Melinda Evans on behalf of Chipotle Mexican Grill, Inc. (Evans, Melinda) (jer). (Entered: 11/05/2010)
325 NOTICE of Appearance by Kent Roger Christensen on behalf of Chipotle Mexican Grill, Inc. (Christensen, Kent) (jer). (Entered: 11/05/2010)
326 Minute Entry for proceedings held before Judge Barry Ted Moskowitz: Status Conference held on 11/16/2010. Plaintiff to file Summary Judgment Motion by 04/22/2011; Any response to be filed by 05/06/2011; Any reply to be filed by 05/13/2011. The Motion hearing is set for 05/27/2011 11:00 AM before Judge Barry Ted Moskowitz in Courtroom 15, this motion will be heard on the papers and no appearance is required.(Court Reporter Melinda Sutterman).(Plaintiff Attorney Amy Vandeveld; Thom Vandeveld). (Defendant Attorney David Sugden). (rfm) (Entered: 11/17/2010)
327 ORDER of USCA as to 294 Notice of Cross Appeal, 289 Notice of Appeal, 259 Notice of Appeal, 255 Notice of Appeal. Plaintiff is awarded attorney's fees on appeal. The determination of an appropriate amount of fees on appeal is referred to the USCA's special master, Appellate Commissioner Peter L. Shaw, who shall issue an order awarding fees. The order is subject to reconsideration by the panel. (akr) (Entered: 11/18/2010)
328 MANDATE of USCA affirming in part, reversing in part, vacating in part, and remanding to the USDC as to 294 Notice of Cross Appeal, 289 Notice of Appeal, 259 Notice of Appeal, 255 Notice of Appeal. (akr) (Entered: 11/23/2010)
329 ORDER Re Ninth Circuit Mandate and Opinion. On November 16, 2010, a hearing took place before the Court regarding the Ninth Circuit's Mandate and Opinion in the above−captioned case. Pursuant to that Opinion, the Court hereby orders the Clerk to enter judgment against Defendant Chipotle for violation of the Americans with Disabilities Act. The Parties and their counsel shall appear before Magistrate Judge McCurine on January 12, 2011 at 2pm for a settlement conference. Signed by Judge Barry Ted Moskowitz on 11/29/2010.(All non−registered users served via U.S. Mail

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 29 of 33

11/29/2010 01/04/2011
01/12/2011 02/14/2011 02/17/2011 04/22/2011 04/29/2011 05/06/2011
05/20/2011 05/25/2011 05/25/2011
06/01/2011

Service)(jer) (Entered: 11/29/2010)
330 CLERK'S JUDGMENT IT IS SO ORDERED AND ADJUDGED that judgment is entered against Defendant Chipotle Mexican Grill, Inc.(All non−registered users served via U.S. Mail Service)(jer) (Entered: 11/29/2010)
331 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Status Conference) held on 11/16/2010, before Judge Barry Ted Moskowitz. Court Reporter/Transcriber: Melinda S. Setterman. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 1/25/2011. Redacted Transcript Deadline set for 2/4/2011. Release of Transcript Restriction set for 4/4/2011. (All non−registered users served via U.S. Mail Service. Notice of electronic filing only.) (akr) (Entered: 01/05/2011)
332 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Settlement Conference held on 1/12/2011. Order to issue.(CD# 1/12/2011 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney David Sugden). (Defendant Rep. Matthew Cieslak). (axk) (Entered: 01/20/2011)
333 MOTION to Withdraw as Attorney by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities)(Groves, Matthew) wrong judge in caption (jer). (Entered: 02/14/2011)
334 ORDER Granting 333 Motion to Withdraw as Attorney. Attorney Matthew R. Groves is withdrawn as counsel for Defendant Chipotle Mexican Grill, Inc. Signed by Judge Barry Ted Moskowitz on 2/17/11. (All non−registered users served via U.S. Mail Service)(jer) (jcj). (Entered: 02/17/2011)
335 MOTION for Summary Judgment by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit, # 3 Declaration, # 4 Declaration, # 5 Proof of Service)(Vandeveld, Amy)(jer). (Entered: 04/22/2011)
336 MOTION for Attorney Fees by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Amy B. Vandeveld, # 3 Declaration of David Ferleger, # 4 Declaration of Richard Pearl, # 5 Declaration of Andrew Mudryk, # 6 Declaration of Russell Handy, # 7 Request for Judicial Notice, # 8 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 04/29/2011)
337 RESPONSE in Opposition re 335 MOTION for Summary Judgment filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Declaration of Scott Shippey In Support Of Chipotle's Opposition to Plaintiff's Motion for Summary Judgment, # 2 Declaration of David R. Sugden In Support Of Chipotle's Opposition to Plaintiff's Motion for Summary Judgment, # 3 Exhibits A−F to Sugden Declaration)(Sugden, David) (jer). (Entered: 05/06/2011)
338 MOTION to Substitute Party by Livia Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Suggestion of Death, # 4 Proof of Service)(Vandeveld, Amy)(jer). (Entered: 05/20/2011)
339 Ex Parte MOTION to Stay MSJ Hearing and Leave to File Reply by Livia Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld, # 2 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 05/25/2011)
340 ORDER Setting Briefing Schedule re 339 Ex Parte MOTION to Stay MSJ Hearing and Leave to File Reply. Defendants' response is due on or before June 1, 2011. The hearing date on this application is June 3, 2011 at 11 a.m. There will be no oral argument or personal appearances. The motion for summary judgment [doc. #335] is continued until June 10, 2011 to accommodate this briefing schedule. Signed by Judge Barry Ted Moskowitz on 5/25/2011.(All non−registered users served via U.S. Mail Service)(jer) (jcj). (Entered: 05/25/2011)
341 RESPONSE in Opposition re 339 Ex Parte MOTION to Stay MSJ Hearing and Leave to File Reply filed by Chipotle Mexican Grill, Inc. (Evans, Melinda) (jer). (Entered:

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 30 of 33

06/02/2011 06/03/2011
06/10/2011 06/14/2011 06/16/2011
06/17/2011 07/01/2011 07/25/2011
07/26/2011 07/28/2011 08/08/2011 08/08/2011
08/19/2011 08/19/2011 09/23/2011

06/01/2011)
342 REPLY to Response to Motion re 339 Ex Parte MOTION to Stay MSJ Hearing and Leave to File Reply filed by Livia Antoninetti. (Attachments: # 1 Declaration, # 2 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 06/02/2011)
343 ORDER Granting Plaintiff's 339 Ex Parte Application. The reply brief attached to the instant application may be filed after the Court decides Plaintiff's motion to substitute. Plaintiff's motion for summary judgment is stayed. Signed by Judge Barry Ted Moskowitz on 6/3/11. (All non−registered users served via U.S. Mail Service)(jer) (jcj). (Entered: 06/06/2011)
344 RESPONSE in Opposition re 336 MOTION for Attorney Fees filed by Chipotle Mexican Grill, Inc. (Evans, Melinda) (jer). (Entered: 06/10/2011)
345 Ex Parte MOTION to Stay Attorneys' Fee Motion by Livia Antoninetti. (Attachments: # 1 Declaration, # 2 Proof of Service)(Vandeveld, Amy)(jer). (Entered: 06/14/2011)
346 ORDER Granting 345 Ex Parte Application to Stay Motion for Attorneys' Fees. Plaintiff's unopposed ex parte application for stay of motion for attorneys' fees and leave to file reply is granted. Signed by Judge Barry Ted Moskowitz on 6/16/2011. (All non−registered users served via U.S. Mail Service)(jer) (jcj). (Entered: 06/17/2011)
347 NON Opposition re 338 MOTION to Substitute Party filed by Chipotle Mexican Grill, Inc. (Evans, Melinda) (jer). (Entered: 06/17/2011)
348 MINUTE ORDER submitting 338 Motion to Substitute Party. (rfm) (Entered: 07/08/2011)
349 ORDER re 338 Motion to Substitute. Livia Antoninetti's motion to be substituted as Plaintiff in place of her deceased husband, Maurizio Antoninetti, is Granted. The parties may file supplemental briefing on how Mr. Antoninetti's death impacts the issues raised in Plaintiff's motion for summary judgment on or before August 19, 2011. Responses to this supplemental briefing shall be filed on or before September 9, 2011. The summary judgment motion will be heard on September 16, 2011 at 11 am. There shall be no oral argument unless directed by the Court. Signed by Judge Barry Ted Moskowitz on 7/25/11. (ecs) (jcj). (Entered: 07/25/2011)
350 REPLY to Response to Motion re 335 MOTION for Summary Judgment filed by Livia Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld and Exhibits, # 2 Notice of Errata, # 3 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 07/26/2011)
351 REPLY to Response to Motion re 336 MOTION for Attorney Fees Solely in Relation to Petition for Certiorari filed by Livia Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld, # 2 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 07/28/2011)
352 Joint MOTION to Continue Supplemental Briefing Dates and Hearing on MSJ by Livia Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 08/08/2011)
353 ORDER granting 352 Motion to Continue. Responses due by 9/23/2011 Motion Hearing set for 9/30/2011 at 11:00 AM before Judge Barry Ted Moskowitz. There shall be no oral argument unless directed by the Court. Signed by Judge Barry Ted Moskowitz on 8/8/2011. (All non−registered users served via U.S. Mail Service)(mtb) (jcj). (Entered: 08/08/2011)
354 SUR−REPLY − re 335 MOTION for Summary Judgment filed by Chipotle Mexican Grill, Inc.. (Sugden, David) (ecs). (Entered: 08/19/2011)
355 SUR−REPLY − re 335 MOTION for Summary Judgment filed by Livia Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 08/19/2011)
356 RESPONSE re 355 Sur−Reply Defendant Chipotle Mexican Grill, Inc.s Opposition To Plaintiffs Supplemental Brief In Support Of Plaintiffs Motion For Summary Judgment filed by Chipotle Mexican Grill, Inc.. (Sugden, David) (ecs). (Entered: 09/23/2011)

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 31 of 33

09/23/2011 09/30/2011 03/21/2012
03/21/2012 04/03/2012
04/03/2012
04/12/2012 05/02/2012 05/02/2012 05/02/2012 05/02/2012 05/02/2012 05/03/2012 05/03/2012 05/03/2012 05/14/2012

357 RESPONSE in Support re 335 MOTION for Summary Judgment filed by Livia Antoninetti. (Attachments: # 1 Notice of Lodgment, # 2 Request for Judicial Notice, # 3 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 09/23/2011)
358 MINUTE ORDER, Motions Submitted 335 MOTION for Summary Judgment (rfm) (Entered: 09/30/2011)
359 ORDER re Plaintiff's Motions for 335 Summary Judgment and 336 Attorneys' Fees. The Court Grants in Part and Denies in Part Plaintiffs motion for summary judgment. The Court Denies Plaintiffs request for injunctive relief and for $3,000 in statutory damages for the three "litigation−related" visits, and Grants Plaintiffs request for $5,000 in statutory damages for the five "bona fide" visits. The Court Denies as premature Plaintiffs motion for attorneys fees and costs, without prejudice. Signed by Judge Barry Ted Moskowitz on 3/21/12.(All non−registered users served via U.S. Mail Service) (ecs) (cap). (Entered: 03/21/2012)
360 CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED that Judgment is in favor of Plaintiff and against the Defendant in the amount of $5,000 in damages. (All non−registered users served via U.S. Mail Service) (ecs) (cap). (Entered: 03/21/2012)
361 Minute Entry for proceedings held before Judge Barry Ted Moskowitz: Status Conference re Attorneys' Fees held on 4/3/2012. Court to issue written Order.(Court Reporter Barbara Harris).(Plaintiff Attorney Amy B. Vandeveld). (Defendant Attorney Melinda Evans). (All non−registered users served via U.S. Mail Service)(gxr) (Entered: 04/03/2012)
362 ORDER re: issue of attorneys' fees, costs and expenses. The Court hereby Orders that Plaintiff shall submit a comprehensive motion for any attorneys' fees, costs and expenses sought by Plaintiff on or before May 2, 2012. Any supporting brief shall be limited to 25 pages. Defendant's opposition to Plaintiff's motion shall be submitted on or before May 30, 2012, and shall be limited to 25 pages. Plaintiff's reply shall be submitted on or before June 13, 2012, and shall be limited to ten pages. Signed by Judge Barry Ted Moskowitz on 4/3/12.(All non−registered users served via U.S. Mail Service)(ecs) (Entered: 04/04/2012)
363 Mail Returned as Undeliverable re 361 Minute Entry. Mail sent to William Weston (ecs) (Entered: 04/12/2012)
364 MOTION for Attorney Fees by Livia Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Request for Judicial Notice, # 3 Declaration of Amy B. Vandeveld)(Vandeveld, Amy)Notified atty re s/ on pos and wrong events used for exhibits (ecs). (Entered: 05/02/2012)
365 DECLARATION by Livia Antoninetti. (Attachments: # 1 Declaration of Dara Schur, # 2 Notice of Lodgment and Exhibit A)(Vandeveld, Amy) (ecs). (Entered: 05/02/2012)
366 Exhibit D by Livia Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 05/02/2012)
367 Exhibit B/3 to B/13 by Livia Antoninetti. (Vandeveld, Amy) (ecs). (Entered: 05/02/2012)
368 Exhibit B/14 to B/25 by Livia Antoninetti. (Vandeveld, Amy) (ecs). (Entered: 05/02/2012)
369 NOTICE (including EXHIBIT C/26 TO C/35) by Livia Antoninetti re 364 MOTION for Attorney Fees and Errata Re: Motion (Attachments: # 1 Declaration of Amy B. Vandeveld Re: Errata, # 2 Proof of Service Amended, # 3 Exhibit "C" Part 1)(Vandeveld, Amy) (ecs). (Entered: 05/03/2012)
370 NOTICE Regarding Exhibit Attachment by Livia Antoninetti re 364 MOTION for Attorney Fees Exhibit C Part 2 (Vandeveld, Amy) (ecs). (Entered: 05/03/2012)
371 NOTICE Regarding Exhibit Attachment by Livia Antoninetti re 364 MOTION for Attorney Fees Exhibit "C", Part 3 (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 05/03/2012)
372 NOTICE by Livia Antoninetti re 364 MOTION for Attorney Fees − Second Errata Re: Ferleger Declaration (Attachments: # 1 Declaration Declaration of Amy B.

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05/30/2012 05/30/2012 06/13/2012
07/03/2012
07/17/2012
07/18/2012 11/08/2012 11/15/2012 11/27/2012 12/26/2012
12/22/2014

Vandeveld, # 2 Declaration of David Ferleger, # 3 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 05/14/2012)
373 RESPONSE in Opposition re 364 MOTION for Attorney Fees filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Declaration of David R. Sugden, # 2 Exhibit A to G of David R. Sugden Decl, # 3 Exhibit H to L of David R. Sugden Decl, # 4 Declaration of William M. Hensley, # 5 Declaration of David W. Peters)(Sugden, David) (ecs). (Entered: 05/30/2012)
374 OBJECTION by Chipotle Mexican Grill, Inc. Evidentiary Objections to Declaration of Richard Pearl. (Sugden, David) (ecs). (Entered: 05/30/2012)
375 REPLY to Response to Motion re 364 MOTION for Attorney Fees filed by Livia Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld, # 2 Declaration of Richard Pearl, # 3 Request for Judicial Notice, # 4 Response to Objections to Pearl Declaration, # 5 Objections to Hensley Declaration, # 6 Objections to Peters Declaration, # 7 Objections to Sugden Declaration, # 8 Proof of Service)(Vandeveld, Amy) (rlu). (Entered: 06/13/2012)
376 Minute Order. for proceedings held before Judge Barry Ted Moskowitz:Motion Hearing held on 7/3/2012 re 364 MOTION for Attorney Fees filed by Livia Antoninetti ; Motions Submitted 364 MOTION for Attorney Fees . Submitting 364 Motion for Attorney Fees. (Court Reporter Barbara Harris).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney David Sugden). (no document attached) (rfm) (Entered: 07/05/2012)
377 ORDER granting in part and denying in part Plaintiff's 364 Motion for Attorneys' Fees, Costs and Other Expenses: Plaintiff is awarded $484,240.00 in fees for work performed by Ms Vandeveld, $32,945.00 in fees for work performed by Mr. Ferleger, $1908.75 in copy costs associated with Plaintiffs opposition to the petition for certiorari, $6,690.55 in "costs," and $19,294.75 in "litigation expenses", for a total award of $545,079.05. Signed by Judge Barry Ted Moskowitz on 7/17/2012. (All non−registered users served via U.S. Mail Service) (rlu) (Entered: 07/18/2012)
378 Amended CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED that Judgment is in favor of Plaintiff and against the Defendant in the amount of $550,079.05, consisting of $545,079.05 in fees and costs and $5,000 in damages already entered pursuant to the Court's judgment dated March 21, 2012 (Doc. 360 ).(All non−registered users served via U.S. Mail Service)(rlu) (Entered: 07/18/2012)
379 Joint MOTION for Release of Bond Obligation by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (rlu). (Entered: 11/08/2012)
380 ORDER re Stipulation for Release of Supersedeas Bond. Signed by Judge Barry Ted Moskowitz on 11/15/2012. (All non−registered users served via U.S. Mail Service)(cc: financial)(rlu)(jcj). (Entered: 11/15/2012)
381 Mail Returned as Undeliverable re 380 Order on Motion for Release of Bond Obligation. Mail sent to William Weston. (rlu) (Entered: 11/29/2012)
382 ORDER of USCA as to 294 Notice of Cross Appeal, 259 Notice of Appeal, 255 Notice of Appeal, 289 Notice of Appeal. Attorneys' fees and expenses in the amount of $353,469.95 are awarded in favor of Maurizio Antoninetti, by his successor−in−interest Livia Antoninetti, and against Chipotle Mexican Grill, Inc. This order amends the USCA's mandate. (See Order for full text.) (akr) (Entered: 12/26/2012)
383 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Motion Hearing) held on 7/3/2012, before Judge Barry Ted Moskowitz. Court Reporter/Transcriber: Barbara Harris. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 1/12/2015. Redacted Transcript Deadline set for 1/22/2015. Release of Transcript Restriction set for 3/23/2015. (All

Case: 3:05-cv-1660 As of: 09/02/2016 04:49 AM PDT 33 of 33
non−registered users served via U.S. Mail Service. Notice of electronic filing only.) (akr) (Entered: 12/22/2014)

 
 Nos. 08-55867 & 08-55946
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MAURIZIO ANTONINETTI,
Plaintiff, Appellant, and Cross-Appellee,
vs.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant, Appellee, and Cross-Appellant.
Appeal from the United States District Court for the Southern District of California
The Honorable Napoleon A. Jones, United States District Judge Case No. 05 CV 1660J (WMc)
BRIEF OF AMICI CURIAE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, DISABILITY RIGHTS ADVOCATES, DISABILITY
RIGHTS CALIFORNIA, DISABILITY RIGHTS LEGAL CENTER, COLORADO CROSS DISABILITY COALITION, NATIONAL DISABILITY RIGHTS NETWORK, AND AMERICAN ASSOCIATION OF PEOPLE WITH
DISABILITIES IN SUPPORT OF REVERSAL.
Amy F. Robertson Fox & Robertson, P.C. 3801 E. Florida Ave., Suite 400 Denver, CO 80210 303.595.9700 Attorney for Amici Curiae

TABLE OF CONTENTS Statements of Interest of Amici. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Corporate Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Issue Presented in Brief of Amici Curiae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. Title III Requires Independent, Integrated, Hassle-Free
Access In New Construction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 II. Title III is Structured to Ensure That Physical
Access Increases Over Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. New Construction is Required to be Fully
and Conveniently Accessible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 B. Alternative Customer Service Methods Are
Only Permitted in Older Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 C. Equivalent Facilitation Requires an Alternative Design
or Technology that Provides Substantially Equivalent Access and Usability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 D. Title III Requires Access in All New Commercial Facilities Regardless of the Policies of Their Eventual Occupants. . . . . . . . . . 21 III. Courts Interpret the Equivalent Facilitation Provision to Require Alternative Physical Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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IV. The District Court’s Decision Could Have Very Pernicious Consequences.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Certificate Regarding Length of Brief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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TABLE OF AUTHORITIES
Cases
Access 4 All, Inc. v. The Atlantic Hotel Condominium Association, LLC, Case No. 04-61740 CIV, 2005 WL 5643878 (S.D. Fla. Nov. 23, 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
American Council of the Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
American Council of the Blind v. Paulson, 463 F. Supp. 2d 51 (D.D.C. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Antoninetti v. Chipotle Mexican Grill, Inc., 05CV1660-J (WMc), 2008 WL 111052 (S.D. Cal. Jan. 10, 2008). . . . . . . 26
Boemio v. Love’s Restaurant, 954 F. Supp. 204 (S.D. Cal. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Caruso v. Blockbuster-Sony Music Entertainment Centre, 193 F.3d 730 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24
Clavo v. Zarrabian, No. SACV03864CJCRCX, 2004 WL 3709049 (C.D. Cal. May 17, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D. Or. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Miller v. California Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Moeller v. Taco Bell Corp., No. C 02-5849 MJJ, 2005 WL 1910925 (N.D. Cal. Aug. 10, 2005). . . . . . 25
United States v. AMC Entertainment, Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 25-26
Statutes
The Americans with Disabilities Act 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 28-29 42 U.S.C. § 12181(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. § 12182(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21 42 U.S.C. § 12182(b)(1)(A)(i) - (iii).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 12182(b)(2)(A)(iv). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15 42 U.S.C. § 12182(b)(2)(A)(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18, 20 42 U.S.C. § 12182(b)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 12183(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 12183(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21
The Assistive Technology Act, 29 U.S.C. § 3007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Children's Health Act of 2000, 42 U.S.C. § 300d-53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Help America Vote Act of 2002, 42 U.S.C. § 15461-62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. § 10801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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The Rehabilitation Act, 29 U.S.C. § 701(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 29 U.S.C. § 794e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Ticket to Work and Work Incentives Improvement Act, 42 U.S.C. § 1320b-20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Federal Rules of Appellate Procedure
Rule 26.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Rule 29(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Rule 32(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Regulations and Commentary
Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities,
56 Fed. Reg. 35,408, 35,413 (July 26, 1991). . . . . . . . . . . . . . . . . . . . . 19-20
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,
28 C.F.R. § 36.103(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 28 C.F.R. § 36.305(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 28 C.F.R. § 36.401(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 28 C.F.R. § 36.406(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19
Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app. A,
§ 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 § 2.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim § 4.1.2(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 § 4.1.3(12)(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 § 4.1.6(3)(c)(iii).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 § 4.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 28 § 4.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-vi-

§ 4.13.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 § 4.17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 4.22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 4.31.9(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 § 4.33.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11-12, 27 § 5.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 27 § 7.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 23, 27 § 7.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 § 9.1.4(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 § 9.2.2(6)(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 § 9.3.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 fig. 53.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 U.S. Architectural and Transportation Barriers Compliance Board, ADAAG Manual: a Guide to the Americans with Disabilities Act Accessibility Guidelines (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Legislative History H. R. Rep. No. 101-485, pt. 2, reprinted in 1990 U.S.C.C.A.N. 303.. . . . . . passim H. R. Rep. No. 101-485, pt. 3, reprinted in 1990 U.S.C.C.A.N. 445.. . . . . . passim
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STATEMENTS OF INTEREST OF AMICI American Association of People with Disabilities (AAPD) is a national nonprofit membership organization of people with all types of disabilities, their family members and supporters. Founded on the fifth anniversary of the Americans with Disabilities Act, AAPD has a strong interest in the full enforcement and implementation of this landmark law. Colorado Cross Disability Coalition (CCDC), is a Colorado nonprofit corporation whose members are persons with disabilities and their nondisabled allies. CCDC’s mission is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. CCDC’s membership consists of over 3,000 individuals with disabilities, their friends, family members and colleagues who support CCDC’s mission and purpose. As part of that mission and purpose, CCDC seeks to ensure that persons with disabilities have access to -- and do not encounter discrimination in -- places of public accommodation, like quick-serve restaurants. Disability Rights Advocates (DRA) is a non-profit legal center whose mission is to ensure dignity, equality and opportunity for people with all types of disabilities throughout the United States and worldwide. Making facilities
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throughout the country accessible to individuals with disabilities through negotiation and litigation is one of DRA’s primary objectives.
Disability Rights California (formerly known as Protection and Advocacy, Inc.), is a private non-profit agency established under federal law to protect, advocate for and advance the human, legal and service rights of Californians with disabilities.1 Disability Rights California works in partnership with people with disabilities, striving towards a society that values all people and supports their rights to dignity, freedom, choice and quality of life. Since 1978, Disability Rights California has provided essential legal services to people with disabilities. In the last year, Disability Rights California directly assisted more than 24,000 individuals with disabilities, many of whom were requesting assistance because they were experiencing accessibility barriers at places of public accommodation and public services within their communities, despite longstanding federal and state accessibility requirements.
1 Disability Rights California provides services pursuant to the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15001, the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. § 10801, the Rehabilitation Act, 29 U.S.C. § 794e, the Assistive Technology Act, 29 U.S.C. § 3007, the Ticket to Work and Work Incentives Improvement Act, 42 U.S.C. § 1320b-20, the Children's Health Act of 2000, 42 U.S.C. § 300d-53, and the Help America Vote Act of 2002, 42 U.S.C. § 15461-62.
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Disability Rights Education and Defense Fund (DREDF) is a national disability civil rights law and policy organization dedicated to securing equal citizenship for Americans with disabilities. Since its founding in 1979, DREDF has pursued its mission through education, advocacy and law reform efforts, and is nationally recognized for its expertise in the interpretation of federal and California disability civil rights laws.
The Disability Rights Legal Center (DRLC) is a non-profit organization that promotes the rights of people with disabilities and the public interest in, and awareness of, those rights by providing legal and related services. DRLC accomplishes this mission through several programs, including the Cancer Legal Resource Center (a joint program with Loyola Law School), Education Advocacy Project, Options Counseling, Lawyer Referral Service, and the Civil Rights Litigation Project. Since 1975, DRLC has handled disability rights cases, including numerous employment, housing, and access cases, under California and federal civil rights laws. DRLC has been class counsel in numerous cases on behalf of individuals with disabilities, and works to ensure the advancement of the rights of persons with disabilities on both a state and national level.
The National Disability Rights Network (NDRN) is the membership association of protection and advocacy (“P&A”) agencies that are located in all 50
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states, the District of Columbia, Native American community, Puerto Rico, and the territories (the Virgin Islands, Guam, American Samoa and the Northern Marianas Islands). P&As are authorized under various federal statutes to provide legal representation and related advocacy services on behalf of persons with all types of disabilities in a variety of settings. In fiscal year 2005, P&As served over 73,000 persons with disabilities through individual case representation and systemic advocacy. The P&A system comprises the nation’s largest provider of legally based advocacy services for persons with disabilities. The P&As routinely advocate and litigate on behalf of individuals with disabilities to enforce the Americans with Disabilities Act’s accessibility requirements for state and local governments as well as in public accommodations.
* * * This case is of particular importance to Amici because their members and constituents are individuals with disabilities who seek to ensure that Title III of the Americans with Disabilities Act (“ADA”) is implemented to ensure full and equal enjoyment of places of public accommodation, including equal treatment and full integration of individuals with disabilities. Amici are very concerned that the novel approach adopted by the district court -- that customer service policies can
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substitute for required physical access -- will foster precisely the dependence, segregation, and unequal treatment that the ADA was enacted to eliminate.
CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici state that they are private 501(c)(3) non-profit organizations, that they are not publicly held corporations or other publicly held entities, and that they have no parent corporations. No publicly held corporation or other publicly held entity owns ten percent (10%) or more of any Amicus organization.
INTRODUCTION This case implicates the central principles of Title III of the ADA: the evolution of the built environment toward full accessibility; and the concomitant increase in the integration, independence, and self-sufficiency of people with disabilities. The purposes of the ADA include “equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities. 42 U.S.C. § 12101(a)(8). To achieve these purposes in the built environment, Congress designed a tiered system: facilities in existence when the statute was enacted are required to remove barriers only where doing so is “readily achievable,” id. § 12182(b)(2)(A)(iv), while new construction is required to be
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fully “readily accessible to and usable by individuals with disabilities,” id. § 12183(a)(1). By ensuring that all new construction is readily accessible, “[t]he ADA is geared to the future -- the goal being that, over time, access will be the rule rather than the exception.” H. R. Rep. No. 101-485, pt. 3, at 63, reprinted in 1990 U.S.C.C.A.N. 445, 486.
The restaurants at issue here are subject to the ADA’s new construction requirements. Nevertheless the district court held, based on the customer service policies of Defendant-Appellant-Cross-Appellee Chipotle Mexican Grill, Inc. (“Chipotle”), that the restaurants need not comply with these requirements. This holding permits companies to frustrate the ADA’s goal that access become the rule rather than the exception -- and its goals of independence and integration -- by allowing them to substitute customer service polices for required physical access, that is, it permits them to refuse to make new construction “readily accessible to and usable by individuals with disabilities,”and instead force customers with disabilities to rely on the assistance of employees to use and enjoy their facilities.
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ISSUE PRESENTED IN BRIEF OF AMICI CURIAE Amici write to address a single issue:2 Whether customer service methods that do not constitute “alternative designs and technologies,” as required by section 2.2 of the Department of Justice Standards for Accessible Design (“DOJ Standards”), 28 C.F.R. pt. 36, app. A, may be considered “equivalent facilitation” under that section and thereby excuse full architectural compliance with DOJ Standards in facilities built after January 26, 1993. Amici believe that any one of sections 4.33.3, 5.5, and 7.2 and figure 53 of the DOJ Standards would require Chipotle to lower its counters to provide an equal food-ordering and -viewing experience for its customers who use wheelchairs. This brief addresses only the question whether, given the requirement of lowered counters and equal viewing, Chipotle may construct higher, non-compliant counters, and force its customers with disabilities to rely on ad hoc staff assistance, and justify the move as an “equivalent facilitation” under section 2.2 of the DOJ Standards.
2 This issue corresponds to the second issue presented for review in the Appellant’s Opening Brief. (See id. at 4.)
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FACTS Amici incorporate by reference the recitation of facts in the Appellant’s Opening Brief. (See id. at 9-20.) By way of summary, Chipotle owns and operates several quick-serve Mexican restaurants all of which were built for first occupancy after January 26, 1993. Customers at Chipotle restaurants place their orders at one end of a food service line, and then proceed along the line observing the assembly of their order, adjusting the order as they go (a bit more chicken; a bit less cheese; on second thought, no beans (they don’t look too fresh today)), and pick up and pay for the order at the end of the food service line. Chipotle promotes this ability to see and participate in one’s order as the “Chipotle Experience.” The entire Chipotle Experience takes place behind a 44-inch-high counter, which renders the process essentially invisible to Plaintiff/Appellant Maurizio Antoninetti and other Chipotle customers who use wheelchairs for mobility. In lieu of constructing Standards-compliant counters that would permit those customers to observe and adjust their order as all other customers do -- and thus proceed through the line with everyone else -- Chipotle instituted a customer service policy that involved three potential alternative methods: employees could lift small portions of each ingredient in tongs or plastic cups to show customers
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who use wheelchairs; employees could bring all of the ingredients to the cash register area and assemble them there; or employees could bring all of the ingredients to a table and assemble them there.
Each of these alternative methods requires assistance from one or more employees, and thus depends on a number of contingent factors from the effectiveness of Chipotle’s training program to the employee’s attitude when asked to assist. More important, all of the alternatives provide experiences far different from that of nondisabled customers. In no case do wheelchair-using customers see the ingredients in their bins, so they are unable to judge how fresh they are. In the first option, such customers do not get to observe the assembly of their order, so they have no idea if they are getting quantities or even necessarily the ingredients they want. The second two options both require far more time and disruption than the process followed by nondisabled customers. Both have the tendency to hold up the line, making disabled customers potential targets for others’ frustration, and both segregate disabled customers from others, including potentially the rest of their party.
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ARGUMENT I. Title III Requires Independent, Integrated, Hassle-Free Access In New
Construction. People with disabilities have always had the ability to depend on others for assistance. Fast food customers did not need a federal law to permit them to ask the guy behind the counter to show them bits of food in tongs or to assemble their order at a table away from the main service line. Long before the ADA was enacted, people with disabilities could ask for help opening a restroom door that was too heavy, ask someone to hold their place in the check-out line while they circled around to avoid an inaccessible lane, or ask a friend for a ride instead of using accessible transit or parking. People with disabilities did not need the ADA to permit separate, unequal, and disruptive service-based work-arounds at inaccessible facilities. Before there were federal accessibility guidelines, people who used wheelchairs could use the inferior access that just happened to exist, often separating them from friends and family or requiring them to make a big attention-grabbing fuss just to patronize a store or restaurant. They could go through the back-alley kitchen entrance when the front door to the restaurant had steps. They could sit in the far back of the theater or ballpark while friends sat in the risers. They could wait off to the side
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when a service counter was too high or otherwise inaccessible or wait by the maitre d’ station while tables were rearranged and other diners made to move.
One of the principal goals of the ADA was that people with disabilities should no longer have to rely on ad hoc assistance, no longer have to be served separately from friends and family, and no longer require a big disruption to create access after the fact, but instead could increasingly rely on the built environment to be accessible to them -- from the minute they arrived -- in an integrated and independent fashion. Congress made clear that, “[p]roviding services in the most integrated setting is a fundamental principle of the ADA. Historically, persons with disabilities have been relegated to separate and often inferior services,” H. R. Rep. No. 101-485, pt. 2 (“House Report, pt. 2”) at 102, reprinted in 1990 U.S.C.C.A.N. 303, 385, and that “[f]or new construction . . . the purpose is to ensure that the service offered to persons with disabilities is equal to the service offered to others,” H. R. Rep. No. 101-485, pt. 3 (“House Report, pt. 3”) at 60, reprinted in 1990 U.S.C.C.A.N. 445, 483.
Now, 15 years after the ADA’s effective date for new construction, people with disabilities should increasingly be able to count on driving to a place of public accommodation and finding accessible parking, see DOJ Standards §§ 4.1.2(5), 4.6 (requiring accessible parking), attending movies or sporting events
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and being able to sit with their friends, see id. § 4.33.3 (requiring integrated, accessible seating), patronizing stores and restaurants and being able to use the restroom, see, e.g., id. §§ 4.17, 4.22 (requiring accessible restrooms), and shopping at a grocery store and using the check-out line, see, e.g., id. § 7.3 (requiring accessible check-out aisles). And fast-food customers with disabilities should be able to count on going to their favorite restaurant and being able to approach the counter, see and order the food, and pay for their meal in the same way as everyone else. See, e.g., id. §§ 4.3 (requiring accessible routes), 4.33.3 (requiring equivalent lines of sight), 5.5 (requiring accessible food service lines), 7.2 (requiring accessible counters).
A number of courts have stressed the importance of independent, hassle-free access for individuals with disabilities. For example, the court in Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698, 764 (D. Or. 1997), overruled on other grounds Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1024 (9th Cir. 2008), noted that:
[i]t always has been “possible” to improvise access, given advance notice that someone with a wheelchair is coming. You simply had two strong persons standing by to carry the wheelchair user up the stairs that could not be traversed by a wheelchair. However, Congress has served notice through the ADA that such solutions no longer are acceptable. In new construction, the facility must be designed to be accessible from day one.
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That court went on to hold that it should not be necessary for wheelchair-users to “make a fuss, or to request special accommodations” where “Congress has mandated that newly constructed facilities must be fully accessible from the start.” Id.
Similarly, the defendant in Boemio v. Love’s Restaurant, 954 F. Supp. 204 (S.D. Cal. 1997) argued that “with additional time, patience, and jockeying of the wheelchair, access could have been achieved” to its noncompliant restroom. Id. at 208. The court rejected that argument, holding that “[t]he standard cannot be ‘is access achievable in some manner.’ We must focus on the equality of access. If a finding that ultimate access could have been achieved provided a defense, the spirit of the law would be defeated.” Id.; see also Clavo v. Zarrabian, No. SACV03864CJCRCX, 2004 WL 3709049, at *3 (C.D. Cal. May 17, 2004) (holding that defendant could not require plaintiff to ask employee to unlock gate in front of grocery store or request that accessible check-out lane be opened. “Although Plaintiff was ultimately able to purchase merchandise at the [store], the manner in which he was able to make his purchases was neither ‘full’ nor ‘equal’ in comparison to non-disabled patrons.”).
The District of Columbia Circuit recently addressed the question whether our paper currency is accessible to blind people. The Treasury argued that blind
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people had developed “coping mechanisms” that made accessible currency unnecessary. The court rejected that argument, holding that “the Rehabilitation Act’s emphasis on independent living and self-sufficiency ensures that, for the disabled, the enjoyment of a public benefit is not contingent upon the cooperation of third persons.” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1269 (D.C. Cir. 2008) (citations omitted).3 The district court -- in the decision affirmed by the D.C. Circuit -- expressed the point more colorfully, relying on statutory purposes that mirror those of the ADA:
There was a time when disabled people had no choice but to ask for help -- to rely on the “kindness of strangers.” It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, by enacting the Rehabilitation Act, whose stated purpose is “to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society.” Am. Council of the Blind v. Paulson, 463 F. Supp. 2d 51, 59 (D.D.C. 2006) (citing 29 U.S.C. § 701(b) (emphasis in original)).
3 Title III is not to be construed to apply a lesser standard than the Rehabilitation Act. 28 C.F.R. § 36.103(a).
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II. Title III is Structured to Ensure That Physical Access Increases Over Time. A. New Construction is Required to be Fully and Conveniently Accessible. The mechanism for ensuring that, in new construction, “the service offered
to persons with disabilities is equal to the service offered to others,” House Report, pt. 3 at 60, is the stringent accessibility standards imposed on those facilities. While buildings built before January 26, 1993 are subject to a more modest requirement of accessibility to the extent it is “readily achievable,” 42 U.S.C. § 12182(b)(2)(A)(iv), Title III of the ADA requires that buildings built for first occupancy after January 26, 1993 -- such as the Chipotle restaurants at issue in this case -- be “readily accessible to and usable by individuals with disabilities,” id § 12183(a)(1).4 Alterations in existing facilities are required to meet the new construction standard to the maximum extent feasible. Id. § 12183(a)(2). To satisfy the “readily accessible to and usable by” standard, both new construction and alterations are required to comply with the DOJ Standards. 28 C.F.R. § 36.406(a).
4 See also Long v. Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001) (“In enacting the ADA, Congress adopted two distinct systems for regulating building accessibility: one to apply to existing facilities (those designed and constructed for occupancy before January 26, 1993) and another to apply to later-constructed facilities.”)
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Through this three-tiered system, “[t]he ADA is geared to the future -- the goal being that, over time, access will be the rule rather than the exception.” House Report, pt. 3 at 63. As old buildings are altered to be accessible or torn down and replaced with new accessible buildings, access will -- over time -become far more prevalent.
Congress also made clear that “readily accessible to and usable by individuals with disabilities” was a high standard:
the term contemplates a high degree of convenient accessibility, entailing . . . access to the goods, services, programs, facilities, accommodations and work areas available at the facility. . . . Accessibility elements for each particular type of facility should assure both ready access to the facility and usability of its features and equipment and of the goods, services, and programs available therein. House Report, pt. 2 at 117-18. This requirement of a “high degree of convenient accessibility” must be read in harmony with the other non-discrimination requirements of Title III: that individuals with disabilities have “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a); that such individual may not be denied the opportunity to “participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations” of a covered entity, be afforded an opportunity that is not equal to that of others, or
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be afforded goods, services or privileges that are different or separate from those provided others, id. § 12182(b)(1)(A)(i) - (iii); and that the entity’s goods and services must be provided “in the most integrated setting appropriate to the needs of the individual,” id. § 12182(b)(1)(B).
B. Alternative Customer Service Methods Are Only Permitted in Older Facilities.
Title III permits places of public accommodation to use “alternative methods” to provide access, but only under two narrow conditions: if the building is a pre-1993 “existing facility;” and even then, only where physical access is not readily achievable. 42 U.S.C. § 12182(b)(2)(A)(v). The regulations make clear that “alternative methods” means primarily customer service policies. 28 C.F.R. § 36.305(b) (“alternative methods” include “curb service,” “retrieving merchandise,” and “relocating activities to accessible locations.”). This provision recognizes that not every older facility will meet the standards for readily achievable barrier removal, so that alternative -- often service-based -- measures will be necessary to provide as much access as possible.
The use of alternative methods in place of required physical access is never acceptable in new construction, and would only be permitted in older facilities once all possible readily achievable barrier removal had been exhausted. In this
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case, all parties agree that the restaurants at issue are new construction, and are thus not eligible to substitute “alternative methods” under § 12182(b)(2)(A)(v).
C. Equivalent Facilitation Requires an Alternative Design or Technology that Provides Substantially Equivalent Access and Usability.
In contrast to the “alternative methods” permitted in older facilities, new construction may only deviate from the DOJ Standards where “equivalent facilitation” is provided,5 that is, “alternative designs and technologies [that] will provide substantially equivalent or greater access to and usability of the facility.” DOJ Standards § 2.2. The purpose of this exception is very much in keeping with the goal of increasing the accessibility of the built environment: Covered entities may apply creative designs or technological advances to provide equivalent or greater physical access and usability than the DOJ Standards required. This goal is clear from the legislative and regulatory history of section 2.2.
Congress, in passing the ADA, stated that allowing departures from the standards for equivalent facilitation “will provide public accommodations and commercial facilities with necessary flexibility to design for special circumstances
5 New facilities are also not required to comply where the defendant can show that access is “structurally impracticable.” 42 U.S.C. § 12183(a)(1). Chipotle has not asserted this defense and because it applies “only in those rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features,” 28 C.F.R. § 36.401(c)(1), it is unlikely to apply here.
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and will facilitate the application of new technologies.” House Report, pt. 2 at 119. As one court explained, “[t]he equivalent facilitation exception is an acknowledgment that the federal government does not enjoy a monopoly on good ideas, and that there may be more than one means to accomplish a particular objective.” Indep. Living, 982 F.Supp. at 727. The provision permits architects and designers to find creative ways to provide required physical access.
It is also clear from the history of the regulatory language that the “alternative designs and technologies” that may constitute equivalent facilitation in new construction are very different from the “alternative methods” that are permitted where barrier removal in older facilities is not readily achievable. In the first draft of the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) -- which were eventually adopted by the Department of Justice as the DOJ Standards, 28 C.F.R. § 36.406(a) -- the equivalent facilitation provision in fact used the phrase “alternative methods.” Following notice and comment, the Architectural and Transportation Barriers Compliance Board (“Access Board”) substituted the current phrase “alternative designs and technologies” for the phrase “alternative methods.” The Access Board explained that,
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[t]he equivalent facilitation provision has been clarified by substituting the words “designs and technologies” for “methods.” The purpose of the provision is to allow for flexibility to design for unique and special circumstances and to facilitate the application of new technologies. “Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities,” 56 Fed. Reg. 35,408, 35,413 (July 26, 1991) (emphasis added). This change in wording took place against the backdrop of a statute that already used the phrase “alternative methods” for alternatives to barrier removal in pre1993 facilities, 42 U.S.C. § 12182(b)(2)(A)(v), lending further support to the proposition that the Access Board was drawing a sharp distinction between alternative customer service policies permissible in older facilities and alternative physical designs or technologies permissible in new construction. See also U.S. Architectural and Transportation Barriers Compliance Board, ADAAG Manual: a Guide to the Americans with Disabilities Act Accessibility Guidelines 7 (1998) (The provision “provides flexibility for new technologies and innovative designs [sic] solutions that may not have been taken into account when ADAAG was developed.”). In sum, it is clear that the drafters -- Congress, the Department of Justice, and the Access Board -- intended the equivalent facilitation provision to apply
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only to alternative physical designs and technologies, and not to customer service work-arounds.
D. Title III Requires Access in All New Commercial Facilities Regardless of the Policies of Their Eventual Occupants.
The built environment will only evolve toward the day when “access will be the rule rather than the exception” if all buildings are designed and constructed to provide the full physical access required by the DOJ Standards or alternative designs or technologies that provide equivalent or greater physical access. Access will not increase over time if new buildings can be built in violation of DOJ Standards in the hope that future occupants will draft and implement the right combination of customer service policies.
In this respect, it is important to note that while the general language of Title III prohibits disability discrimination by any one who “who owns, leases (or leases to), or operates a place of public accommodation,” 42 U.S.C. § 12182(a), the new construction and alterations provisions apply to both public accommodations and “commercial facilities,” id. §§ 12183(a)(1), (2). The term “commercial facilities” is defined as nonresidential facilities whose operations will affect commerce. Id. § 12181(2).
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Congress explained that while most new construction will be covered as public accommodations, the ADA “also includes . . . the phrase ‘commercial facilities,’ to ensure that all newly constructed commercial facilities will be constructed in an accessible manner.” House Report, pt. 2, at 117. Furthermore, Congress declined to limit such facilities to those with 15 or more employees “because of the desire to establish a uniform requirement of accessibility in new construction, because of the ease with which such a requirement can be accomplished in the design and construction stages, and because future expansion of a business or sale or lease of the property to a larger employer or to a business that is open to the public is always a possibility.” Id. at 119. That is, because the use of commercial facilities can change over time, the ADA requires them all to be accessible, regardless of the identity -- or policies -- of the public accommodations that may eventually occupy them.
In a similar vein, the DOJ Standards -- the source of the equivalent facilitation provision -- make clear that they are “to be applied during the design, construction, and alteration of [covered] buildings . . ..” Id. § 1. Again, during this design and construction phase, it is often not known what use the building will be put to when it becomes a public accommodation serving customers. Only by requiring that all public accommodations and commercial facilities be designed
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and constructed to be accessible -- regardless of use or policies -- will the built
environment become, over time, increasingly accessible.
III. Courts Interpret the Equivalent Facilitation Provision to Require Alternative Physical Access.
Courts that have applied the “equivalent facilitation” provision have done so
only to permit physical designs or technologies that provide equivalent or greater
access, and not customer service as a substitute for noncompliant facilities.6
The Third Circuit has made clear that “equivalent facilitation” cannot be
used to excuse what is ultimately an unequal experience for patrons with
disabilities. The defendant outdoor concert venue in Caruso v. Blockbuster-Sony
Music Entertainment Centre, 193 F.3d 730 (3d Cir. 1999), attempted to excuse the
6 The DOJ Standards themselves provide a number of examples of equivalent facilitation. In alterations, “an elevator car of different dimensions” may be used “when usability can be demonstrated.” Id. § 4.1.6(3)(c)(iii). A hotel may provide a portable text telephone in lieu of a public text telephone if it meets certain usability standards. Id. § 4.31.9(3). A folding shelf or nearby counter maybe used in lieu of a transaction counter where necessary to hand materials back and forth. Id. § 7.2(2)(iii). A hotel may construct the required number of accessible rooms, but elect to make them all multiple-occupancy provided it makes them available to people with disabilities at the single-occupancy price. Id. § 9.1.4(2). Where a threshold must be higher than required to prevent water damage, equivalent facilitation in the form of a raised deck or ramp must be provided. Id. § 9.2.2(6)(d). A hotel can provide portable visual alarms and communication devices in lieu of permanent ones. Id. § 9.3.2. Crucially, in none of these examples is physical access permitted to fall below the level required in the DOJ Standards themselves; rather, each of these examples constitutes an alternative way to achieve the same or higher level of physical access.
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lack of accessible lawn seating by the fact that it had provided additional accessible interior seating. The Third Circuit rejected this, noting that “equal access is an explicit requirement of both the statute itself and the general provisions of the DOJ’s regulations,” and holding that “[p]roperly read, the ‘Equivalent Facilitation’ provision does not allow facilities to deny access under certain circumstances, but instead allows facilities to bypass the technical requirements laid out in the Standards when alternative designs will provide ‘equivalent or greater access to and usability of the facility.’” Id. at 739.
In Independent Living, discussed above, the court addressed equivalent facilitation in two contexts. It permitted the owner of an arena to use high-quality folding chairs in place of fixed seating, noting that both types of seating permitted a wheelchair-user to sit with his companion, and that “[a] quality folding chair has some advantages over a companion seat bolted to the floor because it provides greater flexibility.” Id., 982 F. Supp. at 725-26. The court also addressed the defendant’s argument that it did not need to provide compliant suites because its policy of making suites accessible with advance notice was “an equivalent facilitation” under section 2.2 of the DOJ Standards.
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Defendant could not be more mistaken. An “equivalent facilitation” is an alternative design or technology that will provide substantially equivalent or greater access to and usability of the facility. Standard 2.2. What defendant proposes is not an “alternative design or technology” that provides equivalent or greater access. Rather, defendant proposes a design that creates less access than is required, but -- if given advance notice that a wheelchair user is in route -defendant will remove some of the barriers and temporarily comply with the ADA. That is unacceptable.
Id. at 764 (emphasis added).
The defendant in Moeller v. Taco Bell Corp., No. C 02-5849 MJJ, 2005 WL
1910925 (N.D. Cal. Aug. 10, 2005), argued that elements that were out of
compliance with the DOJ Standards could be excused as “equivalent facilitation”
if it could introduce anthropometric evidence that a significant number of
individuals with disabilities could still use the element. Id. at *2. The court
rejected that argument. Noting that “the purpose of the exception is to give
architects the flexibility to design facilities that may not strictly comply with the
Accessibility Standards but nonetheless provide equivalent facilitation,” the court
held that there were two requirements for compliance with section 2.2: an
alternative design or technology; and equal or greater access to subject facilities.
Id. at *2-3. See also United States v. AMC Entm’t, Inc., 245 F. Supp. 2d 1094,
1101 (C.D. Cal. 2003) (holding that the defendant could not avail itself of section
2.2 because “[t]here [was] no evidence that the documented violations were the
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result of designs and technologies that were implemented in order to provide substantially equivalent or greater access to and usability of the facility.”)
Even the two cases on which the district court relied for the proposition that policies and practices could constitute equivalent facilitation in fact involved equivalent or greater physical access. See Antoninetti v. Chipotle Mexican Grill, Inc., 05CV1660-J (WMc), 2008 WL 111052, at *21 (S.D. Cal. Jan. 10, 2008). One of the two was the Independent Living case, which was discussed above in detail and which held that the argument that policies can be equivalent facilitation “could not be more mistaken.” Id., 982 F. Supp. at 764. The other case on which the district court relied was Access 4 All, Inc. v. The Atlantic Hotel Condominium Association, LLC, Case No. 04-61740 CIV, 2005 WL 5643878 (S.D. Fla. Nov. 23, 2005). In that case, the court held that providing two accessible rooms at a resort was equivalent to providing a two-bedroom suite. Id. at *14 n.21. Although the court did not explain its decision, it is clear that the solution provides equivalent physical access. IV. The District Court’s Decision Could Have Very Pernicious
Consequences. The district court has endorsed a novel theory that customer service policies and practices may excuse a failure to comply with the DOJ Standards in new
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construction. This holding has the potential to significantly undermine the accessibility and independence goals of Title III of the ADA.
The policy at issue in this case is a good illustration: instead of complying with the DOJ Standards for new construction, Chipotle elected to ignore sections 4.33.3, 5.5 and 7.2 and construct a counter that renders its food preparation process -- a central part of the Chipotle Experience -- invisible to customers who use wheelchairs. Then instead of offering an alternative design or technology that permitted such customers to observe and adjust their order and proceed through the line like nondisabled customers, Chipotle offered only the assistance of its employees in showing bits and pieces of ingredients, or taking the time -- and incurring the disruption -- to gather up the various ingredients and move them to the cash register area or a table in the dining area.
Above all, this transforms the experience from an equal and integrated experience to one in which customers with disabilities receive inferior and separate services, requiring just the sort of after-the-fact hassle that the new construction provision was designed to prevent. And that’s on a good day. It also makes customers with disabilities depend on the level of training and attitude of the employees behind the counter when they roll in the door hoping to order a burrito. Full compliance with the DOJ Standards -- as required by the new
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construction provision -- eliminates this element of dependence and chance. When physical compliance is required, customers who use wheelchairs can roll in the door hoping to order the personally-designed burrito that Chipotle promises to all of its customers, confident that they will be served in an equal and integrated way.
Furthermore, were this Court to adopt the district court’s approach to equivalent facilitation, it would permit businesses to ignore any of the physical requirements of the DOJ Standards and substitute the contingencies and dependence of customer service policies. Stores could refuse to provide access to fixed displays, in violation of section 4.1.3(12)(b), and force customers with disabilities to locate staff to retrieve merchandise. They could install inaccessible coin-operated locks on restroom doors, in violation of section 4.13.9, and force customers with disabilities track down employees to help them get to the bathroom. They could construct a narrow route to a counter, in violation of section 4.3.3, and force customers with disabilities to wait off to the side and hope for service.
These examples demonstrate that the district court’s holding would frustrate the ADA’s purposes of “equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities, 42 U.S.C.
-28-

§ 12101(a)(8), as well as its “goal . . . that, over time, access will be the rule rather than the exception.” House Report, pt. 3, at 63. Buildings constructed without required accessible features -- in the hope that individuals with disabilities can prevail on employees for help -- will delay rather than advance the day when access will be the rule.
CONCLUSION For the reasons set forth above, Amici respectfully request that this Court hold that customer service policies cannot constitute “equivalent facilitation” in the absence of alternative physical designs or technologies that provide substantially equivalent or greater access to and usability of the facility in question.
CERTIFICATE REGARDING LENGTH OF BRIEF As required by Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, undersigned counsel certifies that this brief complies with the type-volume limitations of Rules 29(d) and 32(a)(7)(B)(i) of the Federal Rules of Appellate Procedure, and that this brief contains 6,148 words. Counsel relied on the word count of WordPerfect X3, which was used to prepare this brief.
-29-

Respectfully submitted, /s/ Amy F. Robertson Amy F. Robertson Fox & Robertson, P.C. 3801 E. Florida Avenue Suite 400 Denver, CO 80210 303.595.9700 arob@foxrob.com Attorney for Amici Curiae Dated: October 10, 2008
-30-

CERTIFICATE OF SERVICE I, Ashley Boothby, certify that on October 10, 2008, two true and correct copies of the foregoing Brief of Amici Curiae were served on the following counsel by FedEx “2Day” delivery: Amy B. Vandeveld 1850 5th Avenue Suite 22 San Diego, CA 92101 Gregory Francis Hurley Greenberg Traurig, LLP 3161 Michelson Drive Suite 1000 Irvine, CA 92612 John F. Scalia Greenberg Traurig, LLP 1750 Tysons Blvd. Ste. 1200 McLean, VA 22102 I declare under penalty of perjury under the laws of the State of Colorado and of the United States of America that the foregoing is true and correct.
/s/ Ashley K. Boothby Ashley K. Boothby
-31-

 
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NINTH CmCmT CAsz Nos. 08-55867, 0855946

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UNITED STATES COURT OF APPEALS

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FOR THE NINTH CIRCUIT

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MAURIZIO

ANTONINETTI,

Plaintiff, Appellant and Cross-Appellee,

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CHIPOTLE

MEXICAN

GRILL, INC.

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Chipotle , Appellee and Cross-Appellant.

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UNITEDSTATESDISI_ICT COURTOFTHESOUTHERNDISTRICTOF CALIFORNIA, CASe NO. 05CV 1660J(WMc)

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NAPOLEON A.JONES, JUDOE

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APPELLANT'S OPENING BRIEF

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AMY B. VANDEVELD

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LAW OFFICES OF AMY B. VANDEVELD

1850 FIFTH AVENUE, SUITE 22

SAN DIEGO, CA 92101

Phone (619) 231-8883

Fax (619) 231-8329

Attorney for Appellant
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ID

NINTH CIRCUIT CASE NOS. 08-55867, 0855946

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IN TIlE

UNITED STATES COURT OF APPEALS

II

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FOR THE NINTH CIRCUIT

t'

MAURIZIO

ANTONINETTI,

Plaintiff, Appellant and Cross-Appellee,

VS.

CHIPOTLE

MEXICAN

GRILL, INC.

Chipotle , Appellee and Cross-Appellant.

UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF CALIFORNIA,
[CCTASCEOUNRTO. O05F TCHVE 1S6O6U0THJER(WN McD)I'

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NAPOLEON A. JONES, JUDGE

APPELLANT'S OPENING BRIEF

AMY B. VANDEVELD LAW OFFICES OF AMY B. VANDEVELD 1850 FIFTH AVENUE, SUITE 22 SAN DIEGO, CA 92101 Phone (619) 231-8883 Fax (619) 231-8329
Attorney for Appellant

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O

Table of Contents

TABLE OF CONTENTS ...........................................................................................

i

TABLE OF AUTHORITIES ...................................................................................

iii

I. INTRODUCTION ..............................................................................................

1

II. STATEMENT OF JURISDICTION ..................................................................

3

III. ISSUES PRESENTED FOR REVIEW ............................................................

4

IV. STATEMENT OF THE CASE .........................................................................

5

A. Nature of the Case and Proceedings Below ..............................................

5

B. Statement of the Facts ...............................................................................

9

1. The Parties .......................................................................................

10

2. The Chipotle Experience for Standing Customers .......................... 12

3. The Inaccessible Design - the Wall ..................................................

15

4. The "Chipotle Experience" is not Accessible to People in

Wheelchairs ...................................................................................

16

5. Antoninetti's Chipotle Experience ...................................................

16

6. Chipotle's Policy ..............................................................................

18

7. Chipotle's Failure to Present Material Evidence .............................

19

V. SUMMARY OF THE ARGUMENTS ............................................................

20

VI. STANDARDS OF REVIEW ...........................................................................

22

VII. ARGUMENTS ...............................................................................................

24

1) The District Applied the Wrong ADAAG Standard

to the Chipotle Experience .......................................................................

24

a. The General Anti-discrimination Provisions of the ADA

Inform the Application of the Design Standards ...................... 24 b. ADAAG § 4.33.3 Applies to the Chipotle Experience ................. 31

c. ADAAG §7.2 Does Not Apply to the Chipotle Experience ......... 34

-i-

G)

0

d. If Neither Section 7.2 Nor Section 4.33.3 Apply, the New Construction Regulations and Standards Still Required

0

a View of the Food Preparation Area and Kitchen ................... 36

0

0

2) Policies of Providing Methods of Accommodation

0

are Not "Equivalent Facilitation.". ...........................................................

37

Of

3) "Equivalent Facilitation" Must Be Determined by Reference

0

to the ADA's General Anti-Discrimination Statutes .............................

41

91,

4) Even if Policies Can Constitute "Equivalent Facilitation,"

Chipotle's Policy Fails .............................................................................

44

5) The District Erred in Denying Antoninetti Injunctive Relief .................... 45

6) Antoninetti is Entitled to Damages for

"Litigation-Related"

Visits .......................................................................

52

7) Antoninetti Was Entitled to Summary Judgment or Judgment

Because The District Committed Legal Error and/or Because

Chipotle Failed to Raise a Dispute of Material Fact ................................

54

VIII. CONCLUSION ............................................................................................

55

Statement of Related Cases .....................................................................................

58

Certificate of Compliance .................................................5.9..............

-ii-
k_

Table of Authorities

Cases

Access Now, Inc. v. South Florida Stadium Corporation,

161 F.Supp.2d 1357, 1369 (S.D. Fla. 2001) .........................................................

50

Agostini v. Felton,

521 U.S .203, 238 (1997) ......................................................................................

23

Anderson v. Liberty Lobby, Inc.,

(1986) 477 U.S. 242, 250 .....................................................................................

54

Boemio v. Love's Rest.,

954 F. Supp. 204 (S.D. Cal. 1997) .......................................................................

27

Brewster v. Shasta County,

275 F.3d 803, 806 (9 _ Cir. 2002) ..........................................................................

22

Byrd v. Guess,

137 F.3d 1126, 1131 (9 'h Cir. 1998) ......................................................................

23

Caruso v. Blockbuster-Sony

Music Entertainment

Centre,

193 F.3d 730 (3 _ Cir. 1999) ..............................................................

Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 440 (2001) ......................................................................................

D 'Lilv. Best Western, 538 F.3d 1031 (9 _ Cir. 2008) ................................................................................

31, 39, 42,43 23 52

Fortyune v. American Multi-Cinema,

364 F.3d 1075, 1081 (9 _ Cir. 2004) ......................................................................

27

Foster v. Skinner,

70 F.3d 1084, 1087 (9 _ Cir. 1995) ........................................................................

23

-iii-

0
0 0

Husain v. Olympic Airways,

0

316 F.3d 829, 835 (9 'h Cir. 2002) ....................................................................

0

0

Independent

Living Resources v. Oregon Arena Corp.,

982 F.Supp. 698 (D. Or. 1997) .......................................................................

23, 45 39, 40

Long v. Coast Resorts, Inc., 267 F.3d 918 (9 _ Cir. 2001) ............................................................

1, 27, 47, 48, 50

Menkowitz v. Pottstown Mem'l Med. Ctr.,

154 F.3d 113, 122 (3d Cir. 1998) ........................................................................

53

Miller v. California Speedway Corp.,

536 F.3d 1020 (9 t_ Cir. 2008) ................................................................................

31

Moeller v. Taco Bell Corp.,

Case No. C 02-5849 MJJ, U.S. Dist. LEXIS 41256

(N.D. Cal. August 10, 2005) .................................................................................

39

Molski v. Foley Estates Vineyard, 531 F.3d 1043, 1046 (9 'h Cir. 2008) ................................................................

22, 51

Molski 1,. M.J. Cable, Inc.,

481 F.3d 724 (9 th Cir. 2007) ..................................................................................

53

Oregon Paralyzed Veterans of America v. Regal Cinemas, 339 F.3d 1126 (9 th Cir. 2003), cert. denied, 124 S. Ct. 2903 (2004) ...........................................................

Inc., 25, 29, 30, 49, 50, 55

School District No. 1J v. AeandS, Inc.,

5 F.3d 1255, 1263 (9 tb Cir. 1993) ..........................................................................

23

Silver v. Exec. Car Leasing,

466 F.3d 727, 733 (9 _ Cir. 2006) ..........................................................................

23

Tennessee Valley Authority v. Hill,

437 U.S. 153, 174, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978) ...............................

48

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IV

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IV

Trailer Train Co. v. State Bd. of Equalization,

697 F.2d 860, 869 (9 ea Cir. 1983), cert. denied,

464 U.S. 846, 78 L. Ed. 2d 139, 104 S. Ct. 149 (1983) ........................................

47

United States v. AMC Entertainment,

Inc.,

232 F.Supp.2d 1092, 1098-1099 (C.D. Cal. 2003) ..............................................

55

United States v. Hoyts Cinemas Corp.,

256 F. Supp. 2d 73, 88 (13. Mass. 2003) ...............................................................

27

Water Craft Mgmt. LLC v. Mercury Marine,

457 F.3d 484, 488 (5 _ Cir. 2006) ..........................................................................

24

Weinberger v. Romero-Barcelo,

456 U.S. 305, 313, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982) ................................

48

Wing v. Asarco Inc.,

4 F.3d 986, 988 (9th Cir. 1997) ............................................................................

23

Statutes- Federal

28 U.S.C.
28 U.S.C. 28 U.S.C. 28 U.S.C. 42 U.S.C. 4422 UU..SS..CC.. 4422 UU..SS..CC..

§ 1291 .......................................................................................................

3

§ 1331 .......................................................................................................

3

§ 1367 .......................................................................................................

3

§ 2201 .......................................................................................................

3

§ 2202 .......................................................................................................

3

§ 12182 ...................................................................................................

26

§ 12182(a) ..................................................................................

24,30,53

§ 12182(b) ................................................................

24,30,31,43,44,53

§ 12183 .......................................................................................

36,48,49

§ 12186(b) ..............................................................................................

27

42 W,S.C.

§ 12188

...................................................................................................

49

Regulations

28 C.F.R. 36.104 .....................................................................................................

50

28 C.F.R. 36.304 .....................................................................................................

24

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o

o

o

28 C.F.R. 36.304 .....................................................................................................

Ip

28 C.F.R. 36.401 ...............................................................................................

50 36, 49

0

28 C.F.R. 36.401(c) ............................................................................................

50-51

0

28 C.F.R. 36.405 .....................................................................................................

51

28 C.F.R. 36.501(b) ................................................................................................

49

56 Fed. Reg. at 2327 .............................................................................................. 56 Fed. Reg. at 35,413 .......................................................................................

38 38-39

Appendix B to Part 36 - Preamble to Regulations on

Nondiscrimination

on the Basis of Disability by

Public Accommodations and in Commercial

Facilities, 56 Fed.Reg. 35,546 (July 26, 1991), page 593 ...................................

26

Appendix B, page 621 .............................................................................................

36

Appendix B, page 622 .............................................................................................

31

ADAAG

Section

___._*_u_*.**___*______***.*______*_*_.___.*_____.**.*____*.___*____._______*________u__.*_________*_*_________.

37

Section 2.2 ...................................................................................

2, 31, 38,40, 41, 42

Section 3.5 ...............................................................................................................

33

Section 4.1 ...............................................................................................................

32

Section 4.1.1(5) ...................................................................................................5..1..

Section 4.1.7 ............................................................................................................

51

Section 4.1.7(2)(b) ..................................................................................................

51

Section A4.2.4, Figure A3 .......................................................................... Section 4.32 .............................................................................................................

28, 32, 37 29

Section 4.33 .............................................................................................................

32

Section 4.33.3 ..................................................................................

30, 32, 33, 34, 36

Section 4.35 .............................................................................................................

32

Section 5.1 .........................................................................................................

29, 32

Section 5.5 ..........................................................................................................2..8...

Section 7.2 ..................................................................................................... Section 7.2(2) ....................................................................................................

2, 35, 36 34, 35

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O
@ 0 @ 0 @ @ II,
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Technical Assistance Manual for Title llI

TAM III-4.4600 TAM III-5.1000 TAM III-7.2100 TAM III-7.2100

...................................................................................................... ...................................................................................................... ...................................................................................................... (1994 Supplement) .......................................................................

House Conference Reports

H. Rpt. No. 101-485([I) H. Rpt. No. 101-485(II) H. Rpt. No. 101-485([I) H. Rpt. No. 101-485([I) H. Rpt. No. 101-485(III) H. Rpt. No. 101-485([II) H. Rpt. No. I01-485([II)

atp. I02 ........................................................................... atp. 103 ........................................................................... atp. 117-118 .................................................................... atp. 119 ...........................................................................
atp. 57 ........................................................................... at p. 60 ............................................................................ at p. 61 ............................................................................

Statutes- State

California California California California California California

Civil Code Section Civil Code Section Civil Code Section Civil Code Section Civil Code Section Civil Code Section

51 .............................................................................. 54 ........................................................................ 54.1 ......................................................................... 54.1(d) ............................................................... 54.2 ......................................................................... 54.3 .........................................................................

49 50 41 50
26 33 36 38 27 49 29
3 3, 52
52 52-53
52 54

0

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0

0

I. INTRODUCTION

IP

Q

This appeal raises legal issues of first impression regarding the interpretation

of the Americans with Disabilities Act ("the ADA") and its regulations, including the

interpretation of "equivalent facilitation". It raises an issue regarding the

0

applicability of equitable considerations in ordering injunctive relief, which was

Q_

mentioned, but not decided, by this Court in Long v. Coast Resorts, Inc., 267 F.3d

918, 921 (9 'h Cir. 2001).

Plaintiff Maurizio Antoninetti ("Antoninetti") uses a wheelchair for mobility.

He sued Chipotle Mexican Grill, Inc. ("Chipotle") under Title III of the ADA.

Chipotle restaurants are unlike other typical fast food joints, where customers simply

walk up to a counter and order a "burrito supreme". At Chipotle, customers _ move

along a 12-foot long line of food on display. Rather than serve themselves,

customers direct the food crew as to the types of ingredients, and the amount of each

ingredient, they want on their entrees. The crew make the entrees while the

customers watch. Customers can see into the open kitchen and are "brought more
completely into the dining experience."
0

1

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"Customers"

shall mean customers who can see the food preparation area

and the open kitchen, unless otherwise noted.

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Chipotle built a wall higher than Antoninetti's eye level in front of the food

preparation area, preventing Antoninetti from seeing the making of his burrito, any of

the 16 food items available for selection, or "the open kitchen," all of which are

intended visual elements of the "Chipotle Experience".

The District Court (hereinafter "the districf') applied to Chipotle's food

ordering line a Standard from the ADA Accessibility

Guidelines C'ADAAG") which

relates to counters at which "goods and services are sold or distributed" (ADAAG §

7.2), but which makes no reference to the visual opportunities and advantages that are

integral to the Chipotle Experience.

This ruling raises a central issue in this case -

does a Standard apply to a novel situation not specifically addressed in the ADAAG

("we serve you at your direction and while you watch food fines"), if the application

allows architectural designs which exclude people in wheelchairs from the visual

components of the food lines?

The district also ruled that ADAAG § 2.2, which defines "equivalent

facilitation" as "alternative designs and technologies,"

should be interpreted to include

"policies" of providing methods of accommodation

to overcome architectural barriers.

According to the district, a new facility can be designed to be inaccessible in the first

instance, as long as a public accommodation

adopts a written policy of providing

methods of Accommodation

to overcome the inaccessible design.

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II,
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Other important and novel issues are raised in this Appeal, as noted below. II. STATEMENT OF JURISDICTION
On August 22, 2005, Antoninetti filed his case in the United States District
Court, Southern District, California, asserting claims for violations of the ADA, California Civil Code 2 § 51, et seq. and Cal. Cir. Code § 54, et seq. and for
declaratory relief. 3 The district court had jurisdiction over Antoninetti's claims under
28 U.S.C. §§ 1331, 1367, 2201 and 2202. This Court has jurisdiction over this appeal under 28 U.S.C.§ 1291.
This appeal is taken from: 1) the Findings of Fact, Conclusions of Law and
Judgment ("Findings')4; 2) the Order Denying Antoninetti's Motion for Summary
Judgment ("MSJ')s; and 3) all interlocutory and other Orders prior to and following the trial of this matter. 6
2
Hereafter "Cal.Civ."
3
Court Record Docket No. 1, Excerpts of Record, Volume II, Tab 10 (Hereafter, "CR 1 / ER II- 10").
4
CR 229 / ER I-3. 5 CR 129 / ER I-9.
6
CR 239 / ER I-2 (Order denying Antoninetti's Motion to Amend Findings of Fact, Conclusions of Law); CR 205 / ER I-4 (Order Dismissing Antoninetti's
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0 0 0 0 I'

III. ISSUES PRESENTED

FOR REVIEW

,

Whether the district applied the correct ADAAG Standard to the "Chipotle

Experience" and whether the application of ADAAG Standards is informed by

the general anti-discrimination

provisions of the ADA.

,

Whether "equivalent facilitation," as defined at ADAAG § 2.2, includes the

adoption of policies to provide "methods architectural barriers.

of accommodation"

to overcome

,

Whether the determination of "equivalent facilitation" requires consideration of

the general anti-discrimination

provisions of the ADA that require full and

equal enjoyment of all of the privileges, accommodations

and advantages

provided to the general public, in addition to the goods and services provided.

4.

Whether, even if policies can constitute "equivalent facilitation," Chipotle's

Policy fails because it does not include the "two new requirements" on which

the district relied and because the Policy suffers the same failures that rendered

the earlier unwritten policy invalid.

5.

Whether the district improperly denied Antoninetti injunctive relief because it

placed improper burdens of proof on Antoninetti and because it's factual

findings were contrary to the Parties' factual stipulations.

,

Whether Antoninetti may recover damages under Cal. Civ. Code § 54.3 for

litigation-related

visits to the restaurants.

,

Whether Antoninetti was entitled to summary judgment or judgment.

Supplemental Legal Standards); CR 203 / ER I-5 (Order Denying Antoninetti's

Motions in Limine); CR 173 / ER I-6 (Order Denying Antoninetti's Motion to Amend

Amended Pretrial Order); CR 157 / ER I-7 (Amended Pretrial Order); CR 147 / ER I-8

(Order Denying Antoninetti's Motion for Reconsideration

of Denial of Summary

Judgment).

4-

IV. STATEMENT OF THE CASE

A. Nature of the Case and Proceedings Below. Antoninetti filed his Complaint on August 22, 2005. Chipotle answered the
Complaint, without raising the affirmative defense of structural impracticability. 7 In

April of 2007, the Parties filed their MSJs. s On June 14, 2007, the district denied

Antoninetti summary judgment, holding that ADAAG § 7.2(2), relating to sales and

service counters, applied to Chipotle's food preparation areas and the "Chipotle Experience." 9

The district further ruled that, pursuant to ADAAG §§ 2.2 and 7.2(2)(iii),

Chipotle's written accommodations policy l° could potentially constitute "equivalent

facilitation," but that a question of fact existed as to whethe_ the Policy of showing

customers food in spoons or at tables was "equivalent facilitation" or whether it was

enough that Antoninetti simply received a burrito. I1 Antoninetti filed a Motion for
0

7

0

CR 3 / ER II-11.

0

8

CR 86 - CR 92, CR 161; CR 93 - CR 102.
9

CR 129 / ER I-9. 1o

Hereinafter "the Policy". 11

CR 129 / Ell. I-9, page 17, linel3 - pagelS, line 2 (hereafter 17:13 - 18:2).

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gP
0

0 Reconsideration on July 16, 2007 on the basis that the district's ruling was clear legal

0

error because "policies" are not "alternative designs and technologies," as provided by

0

0

ADAAG § 2.2, and because, among other things, Chipotle failed to raise a dispute of

0

O,

fact because it offered no evidence that its "methods of accommodation" provided

"equivalent facilitation". 12 Antoninetti's Motion was denied on August 23, 2007.13

The district struck portions of the Pretrial Order filed on September 4, 2007 and

ordered the Parties to file an Amended Pretrial Order which omitted, among other

things, legal issues and facts relating to Chipotle's written and unwritten policies, the

application ofADAAG § 7.2 and the application of 42 USC § 12182 to the Chipotle

Experience. x4 Antoninetti filed a Motion to Amend the Amended Pretrial Order. Is

The Motion was denied on October 4, 2007.16

On October 3, 2007, Antoninetti filed Motions in Limine to exclude, among other things, evidence of Chipotle's "policies of accommodation" on the basis that

12
CR 134.
13
CR 147 / ER I-8.
14
CR 157 / ER I-7.
15
CR 158.
16
CR 173 / ER I-6.
*6-

0

0

0

0

0

Chipotle's policy, written or unwritten, was not "equivalent facifitation" under

0

ADAAG § 2.2.17 Antoninetti's Motions in Limine Nos. 1 and 2 were denied on

0

0

November 8, 2007. Is The district summarily rejected Antoninetti's proposed legal

0

0

standards, including standards relating to burdens of proof and the application of the

I,

ADA's general anti-discrimination provisions.19

O,

O

A bench trial was held on November 27, 29, 30, 2007 and December 3, 2007.

The district entered its Findings on January 10, 2008. 20 Antoninetti filed his Motion

to Amend the Findings on January 22, 2008 because the district's Findings failed to

include material undisputed facts relating to the full scope of the visual elements of

the "Chipotle Experience" and relating to the insufficiently specific directives of the

17
CR 169.
18
CR 203 / ER I-5.
19
CR 205 / ER I-4.
2O
CR 229 / ER I-3.
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v

II) 0 II) II) ,II) 0 0 0 0 I) 0 0 II,

Policy. 2_ The Motion was denied on April 21, 2008. '_ Antoninetti filed his appeal on May 15, 2008. 23

In its Findings, the district ruled: 1) written policies of providing methods of

accommodation

can constitute "equivalent facilitation" pursuant to ADAAG § 2.2; 2)

Chipotle's Policy provided "equivalent facilitation" because it imposed "two new

requirements'U;

3) Chipotle's prior unwritten policy did not constitute "equivalent

facilitation" because it relied upon the judgment and "common sense" of the crew and managers, rendering the subjective interpretation incapable of uniform enforcement; 25

21

CR 230.

22

CR 239 / ER I-2.

23
CR 255 / ER I-l.

24

The district held: "Under the written Customers with Disabilities Policy, the

pre-existing accommodations

that Chipotle provided as part of its mission for

excellent customer service are set forth plainly with two new requirements:

(1) it

established that it is the responsibility

of the manager on duty at the Restaurant,

rather than his or her crew members, to carry out the policy (by requiring the manager

on duty to greet a customer with disability and inquire as to whether he or she desires

any accommodations

as soon as he or she approaches the tortilla station in the food

serving line) and (2) it established that the manager on duty must affirmatively

inform

the customer with a diaability of the various methods of accommodations

options

without waiting for the customer to request them through oral communications

or

non-oral cues." CR 229 /ER I-3, Conclusions of Law (hereafter "CL") 16. (Emphasis

added.)

25

The district held that under the unwritten practice "...(Chipotle's)

managers and

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4) Antoninetti was denied injunctive relief because he had not presented any
"credible" evidence that the written policy did not provide "equivalent facifitation," he

had not proven he intends to return to the restaurants, he failed to prove that the

requested injunction was in the public interest and he failed to satisfy his burden of

proving that the requested injunction (lowering the obstructing wall) was "justified by

the relief it will provide"; 5) Antoninetti could not recover damages for visits that

were "litigation-related".

26

B.

Statement of Facts.

The district adopted, virtually wholesale and verbatim, Chipotle's proposed

Findings of Fact and Conclusions of Law, including Chipotle's omission of material

undisputed facts and including findings that are contrary to the evidence. 27

0

crew were to use their own judgment and common sense to determine when and how

0

to accommodate

a customer in a wheelchair.

This subjective interpretation and

enforcement

of (Chipotle's) informal Policy rendered the unwritten policy incapable

of uniform enforcement

or a confidant (sic) conclusion that these actions were

equivalent facilitation". CR 229 / ER I-3, CL 12.

26

CR 229 / ER I-3, CL 25, CL 27, CL 31, CL 32.

27

The reviewing Court is respectfully requested to review the district's Findings

closely. The district's Findings, like Chipotle's Proposed Findings, do not even

reference Antoninetti's undisputed inability to see over the wall. Nor do they

reference the design of the kitchen being a "feast for the eyes" and "open" so that

customers will "be brought more completely into the dining experience"

which are

undisputed intended visual benefits provided by Chipotle. CR 265 / ER IV-25,

141:19-22; CR 266 / ER V-26, 311:8-11.
A

W

A

-9-

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A

v

||

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0

O

1.

The Parties.

ql

0

Chipotle operates a chain of fast food restaurants, including locations in San

II

0

Diego/Pacific

Beach and Encinitas, California, which are "new construction" as

0

0

defined by the ADA. 28 Ron Sedillo, Jim Adams, Matt Cieslak and Josefina Garcia

0

were Chipotle managers or directors. 29 Scott Shippey was the person most

0

O

O

The district also adopted Chipotle's misleading and incorrect interpretations of

actual testimony, including, for example, at CR 227 / ER IV-24, Fact 144, adopted by

the district at CR 229 / ER I-3, Fact 140:

"Plaintiff admitted that during the site inspections of the Restaurants he found the samples that he was shown by the employees who served him (all of which represented actual serving sizes) to be very helpful in determining what to order. TR, at p. 463, Ins. 16-21 (November 30, 2007)."

This 'Tinding of Fact" is contrary to the evidence. Antoninetti actually said:

"IfI knew the quantity, the standard quantity, that would be an improvement."

He

also testified that he "did not know" if the quantity in the souffle (sample) cups was

the standard quantity per serving. CR 267 / ER VI-27, 463:16-24.

He also testified

that he could not see how much of an ingredient was actually placed on his burrito and

was never told the portion size of any ingredients that were actually being placed on

his burrito. CR 267 / ER VI-27, 399:15-400:3,

402:12-21,403:9-11,404:2-13,

410:22- 411:7. Chipotle's only witness to testify on the subject, Ms. Arriaga,

admitted that she never told Antoninetti that the amount of an ingredient she was

O

showing him was the amount she actually placed on his burrito. CR 268 / ER VII-28,

612: 20-23.

28

CR 109 / ER III-21, Facts 9-11; CR 157 / ER I-7, Facts 9, 10; CR 229 / ER I-3, Findings of Fact (hereafter "FF") 1,4-7.
29

CR 109 / ER III-21, Facts I-7; CR 157 / ER I-7, Facts 1-7; CR 229 / ER I-3, FF 33, 34, 36.

-10-

0

0

knowledgeable

regarding the design and construction of Chipotle restaurants. 3°

0

0

Antoninetti is a paraplegic who uses a wheelchair for mobility. 31 His eye level is

0

0

45 inches from the finished floor. He could not see over the wall obstructing the view

0

0

to the food preparation area. 32 Antoninetti lives very close to the Pacific Beach

0

Chipotle restaurant) 3 Before and after filing his lawsuit, Antoninetti visited the

0

0

Pacific Beach Chipotle at least 6 times and the Encinitas Chipotle 2 times. 34 He wants

to return to Chipotle's

restaurants to have the "Chipotle Experience" - to see all of the

wonderful, tasty ingredients on display, to see his burrito assembled and rolled, to

make his "perfect burrito," quickly. 35

3O

CR 109 / ER III-21, 14:8-12, 16:2-4.
31

Fact 1; CR 157 / ER I-7, Fact 1; CR 265 / ER IV-25,

CR 89 / ER II-13, p.1, par. 2; CR 229 / ER I-3, FF 8.
32

CR 157 / ER I-7, Fact 65; CR 89/ER II-13, pars. 2, 8, 9, 12, 13; CR 92/ER

II-15, DVDs at 205, 206; CR 109 / ER III-21, Fact 48; CR 267 / ER V-26, 377:6-

13; CR 268 / ER VII-28,648:21-22,

649:7 (referencing Trial Exhibit 6, site

inspection DVD).

33

CR 267 / ER VI-27, 422:17-20.
34

eL14.

CR 89 / ER II-13, p.7, par. 24; CR 229 / ER I-3, FF 128, 129, 130, 131,
35

CR 89 / ER 11-13, p. 7, par. 24; CR 157 / ER I-7, Fact 41.

-11-

0

D

O

0

O

0

Antoninetti would return to Chipofle's restaurants "tomorrow"

if the walls were

0

lowered and he had the chance to see the display and presentation that Chipotle

I)

provides to standing customers. 3s He has been deterred from returning to the

restaurants since October 6, 2006 because the "accommodations"

provided during the

al

0

site inspections were not appetizing or appealing and the experience was awkward and

0

0

humiliating.

If he returned, he would face the same issues. 37

O

2.

The Chipotle Experience for Standing Customers.

Chipotle distinguishes itself from other fast food chains, like Taco Bell, by

providing its customers with "the Chipotle Experience, "38 which allows customers to

watch their burritos being made and to direct what they want in their burritos. 39

Customers get to "see, select and direct" what goes into their burritos. 4° They can

36

CR 267 / ER VI-27, 426:13-15.
37

CR 89 / ER-13, 4:9-7:28; 426:21- 427:10.

CR 267 / ER VI-27,407:10-21,

412:23-413:25,

3s

CR 92 / ER II-15, p. 86 (59:23-60:12), 45.

148:23-149:5;

CR 157 / ER I-7, Fact

39

CR 92 / ER II-15, 106:5-12, 109:18-23, 19, 26, 27; CR 268 / ER VII-28, 647:11-650:3; 3, 6, 10, 21, 22, 23.
40

130-134; CR 157 / ER I-7, Facts 18, CR Trial Exhibits / ER VII-29, pgs.

CR 92 /ER II-15, 114:24-115:24;

CR 157 / ER I-7, Fact 19; CR 268 / ER

VII-28,647:11-650:3;

CR Trial Exhibits / ER VII-29, p.1.

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qD 0 0 0 0 0 0 0 I) e e 0 0 I, O
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customize their burritos so that they receive their "perfect burrito". 4n Customers can

see the portion sizes placed on their entrees and can determine if they want more or

less of an ingredient. 42 Chipotle knows its customers "love to interact" and "watch

closely as we put their meal together. ''43 Chipotle wants its customers to "eat with

their eyes". 44 Chipotle provides "the WOW factor" which is, among other things,

customers being able to see their burritos being built "right before their eyes. "45

During the ordering process, customers get to see 16 large bins of food and can

simultaneously

compare different food options, such as the various meat selections. 4e

41

CR 92 / ER II-15, p. 73 (137:12-22),

p. 87 (114:17-23), 94, 95, 106:55-12,

110:13-111:3,

130, 145:11-14; CR 157 / ER I-7, Facts 17 to 27; CR 268 / ER VII-

28, 647:11-650:3;

CR 268 / ER VII-28, 647:11-650:3;

CR Trial Exhibit / ER VII-

29, 1, 2, 3, 6, 21, 22, 23.

42

CR 92 / ER II-15, p. 87 (I 14:17-23), 267 / ER IV-25, 57:1-7, 58:-321, 91:5-23.

95; CR 157 /ER I-7, Facts 26, 27; CR

43

CR 92 / ER H-15, 115:20-24, 132; CR 265 / ER IV-25, 62:14-16, 309:24-

310:2; CR 268 / ER VI1-28, 647:11-650:3;

CR Trial Exhibit / ER VII-29, 3.

44

CR 92 / ER II-15, 115:25-116:2,
45

132, 133; CR 229 / ER I-3, Fact 57.

CR 92/ER II-15, 121:8-122:4;

CR 157 / ER I-7, Fact No. 25; CR 268 / ER

VII-28, 647:11-650:3;

CR 268 / ER VII-28, 647:11-650:3;

CR Trial Exhibit / ER

VII-29, 6.

46

CR 92 / ER II-15, DVDs at 205,206, 207; CR 265 / ER IV-25, 61:19-63:14,

64:3-8.65:3-11,

67:20-23; CR 266 / ER V-26, 311:3-23; CR 268 / ER VII-28,

-13-

41 41
0
ID 0
0 0 0 0 0
0

They can decide which of the ingredients is more visually appealing to them. 47 They can determine the freshness of the food, such as whether or not the barbacoa is dry, or the beans have a crust on them. 4s Appearance of the food is so important that Chipotle provides specific details for the "look" of its food. 49
Chipotle specifically designed its restaurants so that customers can see into the open kitchen and can see freshly marinated meats being grilled. 5° The open kitchens are designed to be a "feast for the eyes" and are intended "to bring customers more completely into the dining experience. "51
Chipotle prides itself on long lines that "really don't take that long to get

647:11-650:3;

CR Trial Exhibits / ER VII-29, 18, 19, 20, 21, 22, 23.

47

CR 92 / ER II-15, DVDs at 205, 206, 207; CR 265 / ER IV-25, 68:14-18.
48

CR 92 / ER II-15, 68:23-25.
49

146:22-147:15,

155:1-21; CR 265 / ER IV-25, 67:24-68:1,

CR 92 / ER II-15, 132, 133; CR 229 / ER I-l, FF3; CR 265 / ER IV-25,

68:19-69:5; 5.

CR 268 / ER VII-28,647:11-650:3;

CR Trial Exhibit / ER VII-29, 3,

50

CR 92 / ER II- 15, 131; CR 266 / ER V-26,

647:11-650:3;

CR Trial Exhibit/ER

VII-29, 2.

51

311:8-11;

CR 268 / ER VII-28,

CR 92 / ER II-15, 131; CR 157 / ER I-7, Fact 23; CR 265 / ER IV-25,

141:19-22; CR 266 / ER V-26, 308:2-12; CR 268 / ER Vli-28, 647:11-650:3;

CR

Trial Exhibit / ER VII-29, 2.

-14-

9|

0

0

0 through. ''52 Chipotle provides customers with "instant gratification. "53 Customers
0

0

typically go through the line in a minute or less. _

0

ID

3.

The Inaccessible

Design - the Wall.

0

ID

Chipotle restaurants are similar in design with respect to the food lines. 55 The

0

12-foot expanse of equipment on which the food is prepared and presented for view is

0

0

approximately

34 inches from the f'mished floor 5_. Chipotle constructed a 44-inch

6, high wall between the customers and the food preparation area (hereinafter "the

wall".) 57 A transparent sneeze guard is located on top of the wall and is held in place

by a metal strip about 2 inches high, thereby obstructing the view of the food

preparation area to a height of 46 inches from the finished floor. 5s

52

CR 92 / ER II-15, / ER VII-29, 7.
53

135; CR 268 / ER VII-28,647:11-650:3;

CR Trial Exhibit

CR 92 / ER II-15, 135; CR 265 / ER IV-25,

647:11-650:3;

CR Trial Exhibit / ER VII-29, 7.

54

135:11-13;

CR 268 / ER VII-28,

CR 92 / ER II-15, 153:14-15;
55

CR 266 / ER V-26, 337:17-22;

345:18-346:3.

CR 109 / ER III-21, Fact 11; CR 157 / ER I-7, Fact 11.
56

CR 109 / ER III-21, Fact 43; CR 157 / ER I-7, Fact 34.
57

CR 92 / ER II-15, 38:13-24; 5s

CR 157 / ER I-7, Fact 29.

CR 109 / ER III-21, Facts 41, 42; CR 157 / ER I-7, Facts 33, 36.

-15-

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W A V

QI
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0

4.

The "Chipotle Experience" is not Accessible to

People in Wheelchairs.

ADAAG Fi.gure A3 provides a uniform reference for design not covered by the guidelines and identifies the average eye level of a person in a wheelchair as between 43 and 5 ! inches from the finished floor. 59 Wheelchair users, with eye levels in this

range, can see no portion of Chipotle's food preparation area, the food items available

for selection, or the preparation of their food. 6°

5.

Antoninetti's Chipotle Experience.

At no time, prior to the site inspections of October 6, 2006, was Antoninetti shown any food ingredients. 61 At the site inspections, he was only shown food items one at a time, after he asked to see them. 62 Antoninetti has never been able to see the

freshness of the ingredients, to compare ingredients to one another, to see his burrito

assembled or to fully customize his entree to make his "perfect burrito". He was never told the portion size that was actually being placed on his burTito. 63

59
CR 109 / ER III-21, Facts 49; CR 157 / ER I-7, Fact 35.
60
CR 90 / ER II-14, pars. 12 to 18; CR 157 / ER I-7, Facts 37, 38.
61
CR 89 / ER II-13, par. 16; CR 266 / ER V-26, 375:14-20.
62
CR 89 / ER II-13, par. 17; CR 157 / ET I-7, Fact 40.
63
CR 89 / ER II-13, pars. 13, 16, 17, 19, 21, 22, 23; CR 267 / ER VI-27,
-16-

9D
0

0

0

The food samples shown to him were too small, too far away and were

0

0

obstructed by the plastic of the cups, the bottoms of the spoons or the crew members'

0

f'mgers.64 Seeing food in small plastic cups, or lifted by handfuls or tongfuls, is not

0

0

appetizing. 6s The accommodation

of taking a tray of cups of food to an adjacent table

0

0

is unacceptable because it would separate Antoninetti from his companions, make him

0

feel different and is unappetizing. _

0

0'

It took at least three minutes, an uncomfortable amount of time 67, to show

Antoninetti samples of food during the inspections, which did not include seeing his

burrito assembled. 6g It is rare for a customer to take three minutes, a significant

amount of time, to complete their order. 69
0

410:22-411:1.
64

CR 89 / ER II-13, pars. 19, 21, 22; CR 92 / ER II-15, DVDs at 205,206; CR 267 / ER VI-27, 399:1-14.
65

CR 89 / ER II-13, par. 22; CR 267 / ER VI-27, 407:10-21.
66

CR 267 / ER VI-27, 415:14-416:25, 67

418:3-13, 418:20-419:9.

0

CR 89 / ER II-13, par. 20.

68

CR 92 / ER II-15, DVD at 205; CR 267 / ER VI-27, 405:7-406:8.
69

CR 266 / ER V-26, 210:1-18.

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ID ID II ||
0
0 0 0 0 0 II, II,
0

6.

Chipotle's Policy.

Almost five years after construction of the restaurants, Chipotle adopted its

Policy on February 23, 2007. 70 The Policy references some methods of

accommodation for people with disabilities 71and assigns responsibilities to Chipotle's

managers and crew 72. It allows Chipotle employees to utilize methods of

70

CR 109 / ER III-16, par. 3; CR 229 / ER I-3, FF 101.
71

"Examples of some of the ways we accommodate individuals include: (1)

Samples of the food can be placed in souffl6 cups and shown or handed to the

customer. (2) Some customers may prefer an opportunity to see or even sample

the food at a table. (3) Customers may simply wish to have the food or food

preparation process described to them. (4) Or combinations of the above

accommodations with any other reasonable accommodation requested or

appropriate for the individual. 110.

CR 96 / ER III-16, page 7; CR 229 / ER I-3, FF

72
"...In all such cases the restaurant staff will offer suitable accommodations based upon the individual circumstances, and will be responsive to the customer's requests. Depending upon the circumstances, our crew member or manager may ask the customer if we can accommodate them during their visit.

...It is the manager and crew's responsibility to ensure that the experience a customer with a disability has is excellent.

...Crew members are encouraged to inform their Restaurant Manager regarding the experiences of their disabled customers and such experiences will be considered during the performance review process, both for the crew member and the manager. CR 96 / ER III-16, 7; CR 229 / ER I-3, FF 110.
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O I) O @ O
I)
0 0 0 0 Ii,
0
0 0 0 0
0

accommodation

not addressed in the Policy. 73 No specific methods of accommodation

are required for Pacific Beach or Encinitas employees under the Policy. 74 Instead, Chipotle employees may use their common sense in devising alternate ways to accommodate customers in wheelchairs. 75

The Policy does not "set forth plainly" the "two new requirements" integral to

the district's decision that the Policy constituted "equivalent facilitation. ''76

7.

Chipotle's Failure to Present Material Evidence.

Chipotle offered no evidence that the Policy's "methods of accommodation"

provide a comparable or better Chipotle Experience for wheelchair users. No

evidence that the methods of accommodation

(food lifted in spoonfuls, or by tongfuls,

or by handfuls, or in plastic cups) are similar in appearance to, or as appetizing as, a

12-foot long display of 16 full bins of food or that they provide equivalent

opportunities to determine the freshness or composition of the food items, or to

compare the ingredients to one another.

73
CR 267 / ER VI-27,
74

548:25-550:15.

CR 267 / ER VI-27, 549:14-19.

CR 266 / ER V-26, 318:21-319:2. 76
CR 229 / ER I-3, CL16, contradicted CR 229 / ER I-3, FF 110.

by actual language of Policy, found at

-19-

0

O O
No evidence of the amount of time it would take to perform the methods of
O

accommodation

for wheelchair users who want to see their en_ee assembled, allowing

O

O

them to make their perfect burtito by asking for more or less of an ingredient. No

O evidence that these methods provide wheelchair users the opportunities to see into the

open kitchen, to see freshly marinated meats being grilled or to be "brought more

completely into the dining experience."

Chipotle offered no evidence that it would be structurally impracticable to have

designed and constructed its food preparation area without the offending wall.

V. SUMMARY

OF ARGUMENTS

I)

An ADAAG Standard should only be applied to unique situations (i.e.,

"we serve you at your direction and while you watch buffet lines") if the application
0

would provide access to all that is offered by a public accommodation,

including the

privileges and advantages, as well as the goods and services of the public accommodation.

ADAAG § 7.2 refers only to counters where goods and services are sold or

distributed and does not account for the visual elements that are integral to the

0

Chipotle Experience.

ADAAG § 4.33.3 applies to the food viewing areas, requires a

comparable line of sight for wheelchair users, and provides access to all aspects of the

Chipotle Experience, including the visual benefits.

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III III 0
0 0 0 O+ O
0 0 0 0 0
O 0
O

IfADAAG

§ 4.33.3 is not applicable to the Chipotle Experience, then 42 USC

§ 12183, along with ADAAG Figure A3, required a design that would provide

wheelchair users with access to all elements of the Chipotle Experience, including the

intended visual elements.

2)

"Equivalent facilitation," as defined at ADAAG § 2.2, allows only the

use of alternative designs and technologies, not the later adoption of policies of

providing "methods of accommodation" construction.

to overcome inaccessible design and

3)

Even if policies can constitute "equivalent facilitation," the general anti-

discrimination

provisions of the ADA require that Chipotle's "methods of

accommodation"

provide a Chipotle Experience for wheelchair users that is not

separate or different and that provides all the advantages and privileges offered to the

general public.

4)

Even if policies can constitute "equivalent facilitation," Chipotle's Policy

fails because it does not include the "two new requirements" on which the district

relied and it is too vague to be enforceable.

In the alternative, Antoninetti is entitled

to injunctive and declaratory relief compelling modification of the Policy.

5)

The district's denial of injunctive relief was legally erroneous because it

relied upon a misinterpretation

of ADAAG § 2.2, it placed improper burdens of proof

-21-

0 II II I| 0 0 0 0 0 0 0 0
I
O 0
0 0
0
I 0 0
0

on Antoninetti, it was clearly erroneous with respect to Antoninetti's intent to return to the restaurants and it ignored undisputed facts regarding the full scope of the visual

elements of the Chipotle Experience.

Chipotle has the burden of proving "equivalent

facilitation" by something more than a mere absence of complaints. Antoninetti does

not have to prove that "equivalent facilitation" was not provided. To obtain injunctive

relief, Antoninetti does not have the burden of proving that the cost of lowering the

offending walls, in new construction, is outweighed by the benefits achieved.

6)

The district committed legal error in holding that Antoninetti was not

entitled to damages for three visits to Chipotle restaurants because they were

"litigatio n-related."

7)

Antoninetti was entitled to summary judgment because the only dispute

of fact found by the district was relative to the Policy and the district applied the

wrong legal standards to this case.

VI. STANDARDS

OF REVIEW

A decision to deny summary judgment is reviewed de novo. Brewster v. Shasta County, 275 F.3d 803, 806 (9 '_ Cir. 2002). The interpretation of the ADA is a question of law subject to de novo review. The allocation of the burden of proof is also reviewed de novo. The decision whether to grant equitable relief under the ADA

is reviewed for an abuse of discretion. Molski v. Foley Estates Vineyard, 531 F.3d

-22-

1043, 1046 (9 th Cir. 2008). Denial of a motion for reconsideration

is reviewed for an abuse of discretion.

School District No. 1Jr. AcandS, Inc., 5 F.3d 1255, 1263 (9 th Cir. 1993). Denial of a

motion to amend the pretrial order is also reviewed for an abuse of discretion. Byrd v. IP

0

Guess, 137 F.3d 1126, 1131 (9 th Cir. 1998). The district abuses its discretion when it

0

0

makes an error of law. Agostiniv. Felton, 521 U.S .203,238 (1997). An abuse of

0 discretion is also "a plain error, discretion exercised to an end not justified by the

O,

evidence, a judgment that is clearly against logic and effect of the facts as are found."

Wing v. Asarco Inc., 114 F.3d 986, 988 (9 * Cir. 1997). A decision may be reversible

0

for abuse of discretion if premised on an incorrect legal conclusion or a clearly

erroneous factual finding. Foster v. Skinner, 70 F.3d 1084, 1087 (9 t_ Cir. 1995).

Findings of fact are reviewed for clear error. Cooper Industries, Inc. v.

0

0

Leatherman Tool Group, Inc., 532 U.S. 424, 440 (2001). The wholesale and

verbatim adoption of one party's findings requires the Circuit Court to review the

record and the district court's opinion more thoroughly.

Silver v. Exec. Car Leasing,

466 F.3d 727, 733 (9 _hCir. 2006). It is clear error if the reviewing court has a

"def'mite and firm conviction that a mistake has been committed." Husain v. Olympic Airways, 316 F.3d 829, 835 (9 e_Cir. 2002).

Clear error exists when the trial judge "misapprehended

the effect of the

-23-

0 0

evidence" and when "the testimony, considered as a whole, convinces the (appellate)

court that the f'mdings are so against the preponderance of credible testimony that they

do not reflect or represent the truth and right of the case." Water CraflMgmt. LLC v.

0

@

Mercury Marine, 457 F.3d 484, 488 (5 _ Cir. 2006).

@

VII. ARGUMENTS

@

@

1)

The District Applied the Wrong ADAAG Standard

I,

to the Chipotle Experience.

e

a.

The General Anti-discrimination

Provisions of the ADA

0

Inform the Application

of the Design Standards.

Historically, the application and interpretation of the ADA and the ADAAG

Standards have not been considered by Courts in a vacuum but have been informed by

0

the general anti-discrimination

principles of the ADA, including 42 U.S.C. §

0

12182(a) 7v which states:

No individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or

accommodations

of any place of public accommodation

by

any person who owns, leases (or leases to), or operates a

place of public accommodation.

42 U.S.C. § 12182(b) provides descriptions of discrimination and states in

pertinent part:

e

77

The related regulation is 28 CFR § 36.201.

-24-

(1)(A)(i) Denial of participation

It shall be discriminatory to subject an individual ...on the basis of a

disability ...of such individual ... to a denial of the opportunity of the

individual ... to participate in or benefit f_om the goods, services,

fac_Tities, privileges, advantages, or accommodations

of an entity.

I|
(ii) Participation in unequal benefit
0

0

It shall be discriminatory to afford an individual ...on the basis of a

0

disability.., of such individual ...with the opportunity to participate in or

I,

benefit from a good, service, facility, privilege, advantage, or

t,

accommodation

that is not equal to that afforded to other individuals.

0

(iii) Separate benefit

Q

It shall be discriminatory to provide an individual.., on the basis of a

disability.., of such individual ... with a good, service, facility, privilege,

Q

advantage, or accommodation

that is different or separate from that

provided to other individuals, unless such action is necessary to provide

the individual ... with a good, service, facility, privilege, advantage, or

accommodation, to others.

or other opportunity that is as effective as that provided

42 U.S.C. § 12182Co) (Emphasis added.)

"The central goal of Title III of the ADA is to ensure that people with

disabilities have full and equal enjoyment of the goods, services, facilities, privileges,

advantages,

or accommodations

of any place of public accommodation."

Oregon

Paralyzed Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126, 1133 (9 _ Cir.

2003), cert. denied, 124 S. Ct. 2903 (2004) (Emphasis added). "Full and equal

enjoyment" means the right to participate in and to have an equal opportunity to

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Iv A
IV

0 0 0 It 0
0
0
Il
I,
0 0 O

obtain the same results as others. 78 Affording people with disabilities the same

opportunities,

the same benefits and the same privileges, was central to Congress'

discussion of Section 30279 of the ADA:

... (t)he Committee wishes to reaffirm that individuals with disabilities cannot be denied the opportunity to participate in programs that are not separate or different. This is an important and over-arching principle of the Committee "s bill... For example, a blind person may wish to decline to participate in a special museum tour that allows persons to touch sculptures in an exhibit and instead tour the exhibit at his or her own pace with the museum's guided tour...

Providing services in the most integrated fundamental principle of the ADA...

setting is a

H. Rpt. No. 101-485(II), page 102. (Emphasis added.)

In later discussions, Congress again affn'med this important principle:

"It is critical that the existence of separate specialized

services never be used as justification for exclusion from

programs that are not separate or different. For example,

the existence of a special art program for persons who are

developmentally

disabled must not be used as a reason to

reject an individual who is retarded from the regular art class

if that person prefers to participate in the regular art class.

78

See Appendix B to 28 C.F.R. Part 36 - Preamble to Regulations on

Nondiscrimination

on the Basis of Disability by Public Accommodations

and in

Commercial added.)

Facilities,

56 Fed.Reg. 35,546 (July 26, 1991), page 593. (Emphasis

79

Codified at 42 U.S.C. § 12182.

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0 0 Q 4D 0 0
0 Q 0 0 0
Q 0
0

H. Rpt. No. 101-485(III), page 57. (Emphasis added.) Congress entrusted the Attorney General with the responsibility of
promulgating Title Hrs implementing regulations "to carry out the provisions of Title IH". Fortyune v. American Multi-Cinema, 364 F.3d 1075, 1081 (9 _ Cir. 2004). Regulations must be interpreted broadly and in line with the underlying statutes. United States v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73, 88 (D. Mass. 2003).
Congress directed the U.S. Department of Justice ("DOJ") to issue regulations that include standards applicable to facilities covered by the ADA. 42 U.S.C. § 12186(b). The implementing regulations were issued on July 26, 1991, and include architectural standards for newly constructed public accommodations and commercial facilities entitled the Standards for Accessible Design 8°, found at 28 C.F.R. Part 36. "The Guidelines are specific design standards listed in Appendix A of the Standards for Accessible Design." Long, supra, at 921 (9 t_ Cir. 2001).
As noted in Boemio v. Love's Rest., 954 F. Supp. 204 (S.D. Cal. 1997), The standard cannot be 'is access achievable in some manner'. We must focus on the equality of access. If a finding that ultimate access could have been achieved provided a defense, the spirit of the law would be defeated.
Boemio, supra, at 208.
8O
Referred to herein as "the ADAAG" and 'the Standards". -27-

In light of the ADA's clear mandate to eliminate discrimination against persons

with disabilities, each ADAAG Standard should be applied so that it provides

wheelchair users and others with disabilities with the same opportunities to experience

O

0

the same privileges, advantages and accommodations

in addition to the goods and

0

services that are provided to the general public. Limiting "full and equal enjoyment"

0

0

only to whether a person with a disability "ultimately" received goods or services

0 would allow untenable scenarios.

Examples: 1) ADAAG § 5.5 addresses the clear width of food service lines and
0
refers to Figure 53, which illustrates the dimensional requirements of tray slides for

0

self-service counters. Following the district's ruling, a restaurant offering a self-serve

buffet brunch could deny people in wheelchairs access to the food serving areas by

0

designing lines with clear widths of less than 28 inches (impassable for most

wheelchairs).

As long as small cups of food items were shown to a patron at the

0 check-out counter, the restaurant need not meet § 5.5's clear width requirement of 36

inches. The benefit of seeing large, appetizing quantities of food on display, the

0

opportunity to "eat with your eyes" could legally be denied a wheelchair user, under

the district's ruling.

2) Benihana restaurants are "theater restaurants" where diners sit around a

central cook surface and watch a chef perform skilled knife maneuvers while he
0
-28-

@ 4D @
0
0 0 0
0 @ 0 0

prepares their entrees "right before their eyes." (Please see www.benihana.com) Consistent with the district's ruling, ifBenihana satisfied the dimensional requirements of ADAAG §§ 5.1 s] and 4.32 s2, Benihana could erect walls in front of the wheelchair users, denying them visual access to the "cooking theater". No discrimination would have occurred, per the district, as long as the customers in wheelchairs were shown cups of uncooked shrimp, rice and steak and ultimately ended up with food on their plate.
This was not the intent of Congress, which repeatedly directed that ultimate access is not sufficient, s3
Historically, this Court has referenced the general provisions of the ADA in its interpretation and application of the ADAAG. In Oregon PF'A v. Regal Cinemas,

81

4.32.

Sec. 5.1: Five percent, but at least one, of the fixed tables shall comply with § 82

Sec. 4.32: Provides requirements for clear floor space, knee clearance and table heights for wheelchair locations.
83

"For new construction...the purpose is to ensure that the service offered to persons with disabilities is equal to the service offered to others. It would be a violation of this title to build a new bank with ATMs that were not readily accessible to and usable by persons with disabilities. It is not sufficient that the person with a disability can conduct business inside the bank. The ATMs provide an additional service which must be available to persons with disabilities." H.Rep.No. 101-485(HI) at 61.

-29-

supra, this Court cited 42 U.S.C.,§ 12182(a) in holding that ADAAG § 4.33.3

included a viewing angle element for wheelchair locations. This Court ruled that the

QP

spaces had to be located so that the experience of wheelchair users was the same as

0

0

that provided to non-disabled.

In rejecting locations requiring wheelchair users to

0

twist their bodies to see the movie screen, this Court held:

0

0

We find it simply inconceivable that this arrangement could

0

constitute "full and equal enjoyment" of movie theater

0

services by disabled patrons."

Oregon PVA, 339 F.3d at 1133.

In Fortyune, supra, this Court also referenced 42 U.S.C. § 12182(a), as well as

§ 12182(b), in finding that, although the defendant cinema's wheelchair locations

complied with dimensional requirements, the cinema was still in violation of the ADA

because the cinema failed to ensure the availability of companion seating for

wheelchair users. "Stated differently, the presence of his wife is a condition precedent

to Fortyune's 'enjoyment of the goods, services, facilities, privileges, advantages,

[and] accommodations

of [the AMC theater].'42

U.S.C. § 12182(a)." Fortyune,

supra, at 1082.
0 It was not enough that wheelchair users could see the movie. Rather, the

companion seats had to be kept available so that people in wheelchairs were provided

the same experience as non-disabled - the right to be accompanied by companions.

-30-

0 0 O
More recently, in Miller v. California Speedway Corp., 536 F.3d 1020 (9 *hCir.

2008), this Court noted the general provisions of§ 12182 when it interpreted and

applied ADAAG § 4.33.3 to require lines of sight over standing spectators.

The Third Circuit, in Caruso v. Blockbuster-Sony

Music Entertainment

Centre,

IP

0

193 F.3d 730 (3 _d Cir. 1999), addressed the interplay of the general principles of the

0

O'

ADA and ADAAG § 2.2's definition of "equivalent facilitation":

(T)he language of Title IH itself precludes a reading of the

"Equivalent Facifitation" provision that would allow venues to restrict wheelchair access to certain areas based on a belief that wheelchair users will be better off elsewhere. See

42 U.S.C. § 12182(b)(1)(A)(iii)

(discriminatory

to provide a

separate benefit unless necessary to provide equal benefit);

0

id. at (b)(1)(B) (benefits of a pubfic accommodation

must be

provided in the most integrated setting appropriate to the

needs of the individual).

Caruso, supra, at 739, citing 28 C.F.R. § 36, App. B., at 622.

b.

ADAAG § 4.33.3 Applies to the Chipotle Experience.

Chipotle's adoption of the Policy underscores Chipotle's own assessment of the

visual import of the Chipotle Experience. The design of its kitchens to be "open" so

that customers can be brought "more completely into the dining experience" illustrates

the visual benefits intended by Chipotle. Incorporation of a transparent sneeze guard

into the ordering lines emphasizes the important visual aspects of the Chipotle

Experience.
0

0

-31-

A V
A
V
A V A
v A
V A
v

O O

There is no ADAAG Standard which specifically addresses "we serve you at your direction while you watch buffet lines", s4 ADAAG Figure A3, however, details the average eye levels for people in wheelchairs s5 and ADAAG §4.33.3 (the line of

sight Standard) is specifically incorporated into the requirements relating to

restaurants.

"Restaurants

and Cafeterias" are addressed at Sect/on 5 of the ADAAG.

ADAAG §5.1 states that"restaurants

and cafeterias shall comply with the

requirements of 4.1 to 4.35." Section 4.33 sets forth line of sight requirements at

ADAAG § 4.33.3. s_ Section 4.33 is entitled "Assembly Areas" and was always

84

ADAAG § 5.5 addresses "food service lines" but only addresses path of

travel and tray slide requirements.

While Figure 53 arguably illustrates the

appropriate design for Chipotle's ordering line, Antoninetti contends that § 4.33.3

more specifically it is incorporated

addresses the line-of-sight requirements in restaurants, in Section 5, relating to Restaurants and Cafeterias.

given that

s5

Between 43 and 51 inches.

86

Section 4.33.3 states in pertinent part:

Wheelchair areas shall be an integral part of any fixed seating

plan and shall be provided so as to provide people with physical

disabilities a choice of admission prices and lines of sight

comparable to those for members of the general public. They

shall adjoin an accessible route that also serves as a means of

egress in case of emergency.

At least one companion fixed seat

shall be provided next to each wheelchair seating area...

-32-

intended to include more than just stadiums and theaters. 87

"Assembly Area" was given specific meaning in the ADAAG and is defined as

|t

Q

"a room or space accommodating a group of individuals for recreational, educational,

Q

0

political, social, or amusement purposes, or for the consumption of food and drink."

0

ADAAG § 3.5. Restaurants, then, are assembly areas, are governed by the Standards

0

O'

specifically applicable to assembly areas (ADAAG §4.33) and are subject to the line

O of sight requirements of ADAAG §4.33.3. Chipotle's "we serve you at your direction

while you watch buffet line" and its "open kitchen" are exactly the sorts of situations

that explain the "line of sight" requirement in restaurants and the reason that

"assembly areas" include "places where food is consumed."

This line of sight requirement is applicable to Benihana theater restaurants, to

Chipotle's food viewing areas and open kitchen, to sports bars where sporting events

are displayed on myriad televisions, as well as to other "assembly areas" such as

museums and galleries, convention centers and auditoria. If views to televisions,

stages, artwork and artifacts are integral to the benefits or privileges offered by a bar,

a convention center, galleries and museums, then those screens, stages, artwork and

artifacts, pursuant to ADAAG §4.33.3, must be located so that people in wheelchairs

87
ADAAG § 4.33.3 was modeled after existing federal accessibility Standards that "have applied since 1984 to theaters, auditoriums and other places of assembly constructed with federal funds." H. Rpt. No. 101-485(II)at 103.
-33-

A V A
w
A V

0 0 0 G) 0 Q 0 Q 0 0 I,
0

have a comparable line of sight to them.

More precisely, if not ADAAG § 4.33.3, then what Standard does require lines

of sight to gallery and museum displays, convention center stages, fairground stages

or the myriad other facilities that fall within the definition of "assembly area," that

have no fixed seating, but that have visual elements integral to their purpose?

It makes no sense that the ADA and the ADAAG would require access to

assembly areas with no corresponding

obligation to make the intrinsic purpose of the

facility accessible - the opportunity to view artwork or to watch sporting events.

e.

ADAAG §7.2 Does Not Apply to the Chipotle Experience.

The district correctly held that ADAAG § 7.2(2)(i) did not apply to this case

because the lowered transaction counter was not a "lowered portion" of the food

preparation area since the two areas serve different functions, ss The district correctly

held that the transaction counter does not qualify as an "auxiliary counter" under Sec.

7.2(2)(ii) because the counter, alone, does not provide customers in wheelchairs with

full and equal access. 89

The district erred, however, when it held that ADAAG § 7.2(2) applies to this

case in the first instance. Section 7 of the ADAAG is entitled "Business and

88
CR 129 / ER I-9, 14:20-22.
89
CR 129 / ER I-9, 16:8-13.
-34-

Mercantile" and addresses "areas used for business transactions with the public."

Section 7.2(2) refers to "counters that may not have a cash register but at which goods or services are sold or distributed."

ADAAG § 7.2 does not apply to Chipotle's food preparation areas and open

kitchens because the visual components integral to the Chipotle Experience are not

_P

"business transactions".

Seeing food on display, watching and directing the assembly

of an entree, looking into the kitchen and watching freshly marinated meats

II

continuously being grilled and being brought more completely into the dining

experience are not "business transactions"

any more than the opportunity to view

artwork at the local museum is a "business transaction".

The visual elements of the Chipotle Experience are the very sorts of "privileges,

advantages, or accommodations"

intended to be encompassed by the general anti-

discrimination provisions of the ADA. If the application of a Standard (such as § 7.2)

would eliminate access to these important and integral visual benefits, then the

Standard is inapplicable.

It defies logic that § 7.2 can be interpreted to apply to

situations where more than just goods or services are sold or distributed if the

application would create a denial of access to important benefits, privileges,

accommodations

and advantages offered to the general public.

-35-

0

0

0

0

d.

If Neither Section 7.2 Nor Section 4.33.3 Apply, the

0

New Construction

Regulations

and Standards Still Required

a View of the Food Preparation

Area and Kitchen,

The ADA provides, at 42 U.S.C. § 12183, 9° that:

• ..(D)iscrimination

for purposes of this part includes a failure

to design and construct facilities.., that are readily accessible

to and usable by individuals with disabilities.

Q_

The phrase "readily accessible to and usable by" is a term of art which is

intended to enable people with disabilities to get into, enter and use a facility. '_rhe

term contemplates

a high degree of convenient accessibility to the goods, services,

0

0

programs, facilities and accommodations

available at the facility." H.Rpt. No. 101-

485(II) at 117-118.

"(T)he rule requires, as does the statute,that covered newly constructed

facilitiebse readily accessible to and usable by individuals with disabilities..T.o the

extent that a particular type or element of a facility is not specifically addressed by the

standards, the language of this section (§ 36.401) is the safest guide." 28 C.F.R. Part 36, App. B, page 621. (Emphasis added.)

0

IfADAAG

§§ 4.33.3 and 7.2 are inapplicable to Chipotle's ordering lines, the

restaurants could and should have been designed to be fully and equally accessible to

people in wheelchairs by simply referring to the average eye levels depicted in

90
The parallel regulation is found at Subpart D, 28 C.F.R. § 36.401.
0 -36-

ADAAG Figure A3, which provides a "uniform reference for design not covered by
I)

4|

this guideline." See ADAAG § A4.2.4.

,}

2) Pohcies of Providing Methods of Aecommodatnon"

•

are Not "Equivalent Facilitation."

Q)

ADAAG Standards were adopted by the DOJ at the direction of Congress. The

O)

purpose of the Standards is made clear at ADAAG § 1, which states:

)

•

This document sets guidelines for accessibility to places of

public accommodation and commercial facilities for

•

individuals with disabilities. These guidelines are to be

•

applied during the design, construction, and alteration of

rseugcuhlatbiounilsdingisssueadnd bfyacFileitdieersal toagtehnecieexs,tent incrleuqduiinrged thbey Department of Justice, under the Americans with Disabilities Act of 1990.

ADAAG § I (Emphasis added.) Policies are not applied "during the design and construction" of a building or

facility. Rather, they are typically adopted and implemented by operators of a place of public accommodation, often long after construction of the building or facility is completed and often by businesses that had no part in the design and construction of the facility. The purpose of the ADAAG, then, would not be furthered if builders

could design inaccessible facilities with the hope and prayer that later public accommodations would implement policies of accommodation to overcome the inaccessible design.

-37-

Although Congress directed the adoption of specific design and scoping

requirements, it also intended that the regulations issued by the executive branch

allow for departures from particular technical and scoping requirements. "Allowing

these departures will provide public accommodations...with

necessary flexibility to

design for special circumstances

and will facilitate the application of new

technologies."

H.Rpt. No. 101-485(II) at 119.

These allowable departures were termed "equivalent facilitation" and were

codified at ADAAG § 2.2:

Departures from particular technical and scoping

requirements of this guideline by the use of other designs

and technologies

are permitted where the alternative designs

and technologies

used will provide substantially equivalent

or greater access to and usability of the facility.

"When initially proposed, §2.2 read, 'Departures from particular technical and

scoping requirements of this guideline by the use of other methods are permitted

where the alternative methods used will provide substantially equivalent or greater

access to and usability of the facility." 56 Fed. Reg. at 2327. (Emphasis added.)

Following a notice and comment period, the phrase "design and technologies'

was

substituted for the word 'methods.' The Access Board explained that '[t]he purpose

of the provision is to allow for flexibility to design for unique and special

circumstances and to facilitate the application of new technologies.'

56 Fed. Reg. at

-38-

35,413." Moeller v. Taco Bell Corp., Case No. C 02-5849 MJJ, U.S. Dist. LEXIS

41256 (N.D. Cal. August 10, 2005) at "5.

"It appears that the purpose of the exception is to give architects the flexibility

GI

0

to design facilities that may not strictly comply with the Accessibility

Standards but

0

nonetheless provide equivalent facilitation ... Indeed, when '[p]roperly read, the

Q

0

Equivalent Facilitation provision does not allow facilities to deny access under certain

0

e

circumstances,

but instead allows facilities to bypass the technical requirements laid

out in the [Accessibility]

Standards when alternative designs will provide equivalent

0

e

or greater access to and usability of the facility.' (Citing Caruso v. Blockbuster-Sony

Music Entre 't Ctr., at 739 (3 _ Cir. 1999).)" Moeller, supra, at *8. (Emphasis added).

Given that § 2.2 was modified by the Access Board to substitute the phrase

"design and technologies"

for the word "methods," this intentional substitution would

be nullified by interpreting "design" to include "policies of providing methods of accommodation."

"Policies" were roundly rejected as "equivalent facilitation" in Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D.Or. 1997). There, the

defendant Arena argued that it had provided "equivalent facilitation" because,

although its suites were not ordinarily configured for wheelchair accessibility, it had

adopted a written policy of providing accommodations

by removing in-fill seats upon

-39-

request.

The Oregon Arena Court firmly rejected the argument that a policy could

0

0

constitute "equivalent facilitation" and explained:

0

ID

Defendant contends that this policy is an "equivalent facilitation." Defendant could not be more mistaken. An

0

"equivalent facilitation" is an alternative design or

0

technology that will provide substantially equivalent or

0

greater access to and usability of the facility. Standard 2.2.

What defendant proposes is not an "alternative design or

technology" that provides equivalent or greater access.

Rather, defendant proposes a design that creates less access

than is required, but --if given advance notice that a wheelchair user is in route-- defendant will remove some of

the barriers and temporarily comply with the ADA. That is

unacceptable...

0

It always has been "possible" to improvise access, given advance notice that someone with a wheelchair is coming. You simply had

two strong persons standing by to carry the wheelchair user up the

stairs that could not be traversed by a wheelchair. However,

Congress has served notice through the ADA that such solutions

no longer are acceptable. In new construction, the facility must be

designed to be accessible from day one...

0

Congress has mandated that newly constructed facilities must be

fully accessible from the start.

Oregon Arena, supra, at 764. (Emphasis added.)
0 This holding is particularly applicable to the instant case. The ADAAG

identifies the average eye level of people in wheelchairs as between 43 and 51 inches
0
from the finished floor. Even with this knowledge, Chipotle designed a food viewing

40-

O O O O aD ID O Q 0 0 0, 0 D
0 0 0

area with a 46-inch high obslruction that prevents people in wheelchairs from seeing the open kitchen, the display of food on the counter below and the assembly of entrees. It designed a facility that, from day one, provides less access.

There is no reason that Chipotle could not have designed its food viewing area to be accessible from "day one." Chipotle offered no evidence that it was structurally impracticable to provide an accessible viewing counter.

The district's interpretation of"equivalent

facilitation" would allow a designer

to design a path of/ravel without a required curb ramp as long as the future business

operator later adopted a written policy of having its managers ask wheelchair users if

they need assistance and, if the answer is "yes," to have the managers lift the

wheelchair users up a curb barrier. Even portable ramps, however, have specifically

been rejected in new construction. 91 It is inconceivable

that the drafters of the ADA

and ADAAG would have allowed policies of lifting wheelchair users to meet the

standard of "equivalent

facilitation" when portable ramps fail.

3)

"Equivalent

Facilitation"

Must Be Determined

by Reference

to the ADA's General Anti-Discrimination

Statutes.

ADAAG § 2.2 must be applied and interpreted with full consideration of whether the intent and purpose of the ADA, including full and equal access to aU

9_ (See Technical Assistance Manual ("TAM"), not considered equivalent facilitation.")
-41-

III-7.2100:

"portable

ramps are

privileges, advantages and accommodations

(as well as goods and services), will be

achieved by the proposed "equivalent facilitation." Where the facts are undisputed, it

is a question of law as to whether or not "equivalent facilitation" is provided. (See,

Caruso, supra.)

In Caruso, the facts were undisputed that the defendant E-Centre provided no

access to its lawn area for wheelchair users. The E-Centre argued it was not required

to provide lawn area access because it had provided "equivalent facilitation" by

placing additional wheelchair locations in a closer, interior pavilion. The Circuit
0

0

Court reversed summary judgment in favor of the E-Centre, holding the E-Centre

0

could not rely upon the "equivalent facilitation" provision ofADAAG

Sec. 2.2:

0 The principal problem with the E-Centre's "equivalent

facilitation" argument is that it treats the AD,4 's requirement

of equal access for people with disabilities as a "particular

technical and scoping requirement."

This is simply not the

case. Rather, equal access is an explicit requirement of both

the statute itself and the general provisions of the DOJ's

regulations. See 42 U.S.C. § 12183; 28 C.F.R. § 36.401.

Properly read, the "Equivalent Facilitation" provision does not allow facilities to deny access under certain

circumstances, but instead allows facilities to bypass the

technical requirements laid out in the Standards when

alternative designs will provide "equivalent or greater access

to and usability of the facility." Therefore, we conclude that

the E-Centre cannot rely on the "Equivalent Facilitation"

provision to excuse its failure to provide any wheelchair

access to an assembly area that accommodates

18,000

people.

-42-

v
W A w A w

E) E) O 0
II
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0 O 0
O

Caruso, supra, at 739. (Emphasis added.)

The Caruso Court did not hold that allowing a person in a wheelchair to

ultimately see the event constituted "equivalent facilitation". Instead, even if the

interior seats were deemed "better" by a trier of fact, they failed to satisfy the

requirement for "equivalent facilitation" because :

Title III itself precludes a reading of the "Equivalent Facilitation" provision that would allow venues to restrict wheelchair access to certain areas based on a belief that wheelchair users will be better off elsewhere. See 42 U.S.C.

§ 12182(b)(l)(A)(iii)

(discrimin atory to provide a separate

benefit unless necessary to provide equal benefit); id. at

(b)(1)(]3) (benefits of a public accommodation must be

provided in the most integrated setting appropriate to the

needs of the individual).

Caruso, supra, at 739. (Emphasis added.)

The Caruso Court held that "the only way the E-Centre could justify its failure

to provide access to the lawn area is by showing structural impracticability." Caruso,

supra, at 740.

Here, Chipotle designed an otherwise accessible food viewing area with a wall

making the viewing area and open kitchen inaccessible to wheelchair users. Nothing can be more plain. Customers are intended to be enticed by the display of food. The

appearance of the food is paramount to Chipotle's business model. The ability of

customers to see the appetizing food and to direct the making of their entrees, fast, is

-43-

O
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0
0 0 0 0 Ob 0
0
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0 0 0

integral to the Chipotle Experience.

Chipotle's methods of accommodation

are not "equivalent facilitation" because

the benefits offered to people in wheelchairs are different (food shown or provided in

small, plastic cups) and separate (displayed at adjacent tables), contrary to 42 U.S.C.

§ 12182(b).

4)

Even if Policies Can Constitute "Equivalent

Chipotle's Policy Fails.

Facilitation,"

Even if policies can constitute "equivalent facilitation," Chipotle's Policy fails

because it does not plainly set forth the "two new requirements" on which the district

relied for its ruling. It does not require the managers, rather than the crew members,

to carry out the Policy. Rather, the language of the Policy states that crew members

and managers are responsible for providing accommodations

to customers.

The

Policy does not require the manager on duty to affirmatively inform customers with

disabilities about the availability of accommodations.

Rather, it states that crew

members or managers may ask customers if they want to be accommodated. 92

Because the district's interpretation that the Policy imposes "two new

requirements" is contradicted by the actual language of the Policy, this reviewing

Court can only be left with a "definite and firm conviction that a mistake has been

92
CR 229 / ER I-3, FF 110, CL 16, CL 17. -44-

committed." Husain v. Olympic Airways, supra.

The Policy also fails because it allows crew members and managers to use their

own judgment and common sense as to how to accommodate a customer. 93 It allows

subjective interpretation and, therefore, suffers the same failure as the unwritten

policy. Further, the Policy allows the use of other methods of accommodation not

mentioned in the Policy 94and not before the Court for scrutiny. The Policy, then, is

too vague to be enforceable. In the alternative, Antoninetti was entitled to injunctive

and declaratory relief compelling modification of the Policy so that its language

reflected the "two new requirements" and placed limitations upon the methods of

accommodation to be utilized by the managers.
g 5) The District Erred in Denying Antoninetti Injunctive Relief.

0

The district's denial of injunctive relief was premised, in part, upon its initial

legal determination that policies can constitute "equivalent facilitation". The methods

93 CR 266 / ER V-26, 318:21-319:2.

0 94

0

O

Manager Cieslak thought acceptable methods of accommodation included: l) bringing the hot bins of food out to the wheelchair user in line, with no apparent

0

protection for the food in the bins, 2) lifting and tilting the pans of food above the

0

eye level of wheelchair users. Ifa customer in a wheelchair, who was taken to a

0

dining table to see the assembly of their entree, wanted more of an ingredient,

0

Cieslak would leave the customer, go back to the kitchen and "grab more". Repeat

as necessary. CR 265 / ER IV-25, 163:23-164:25, 167:16-168:13, 168:20-170:17,

171:20-172:8, 181:11-182:1.

0

-45-

0 qD qD 0 0 0 qp q_ Q 0
0 0
O O 0
0 O 0 0
Q 0
O 0 0 O

of accommodation remain the same, however, whether provided under the written or the unwritten policy. If the methods of accommodation fail as "equivalent facilitation," Antoninetti was not required to present any evidence regarding the Policy, despite the district's ruling otherwise. 95
The district concluded that Chipotle presented evidence that its Policy was effective 96, but the record clearly reflects that Chipotle failed to offer any evidence refuting Antoninetti's testimony that he has been deterred from returning to the restaurants because Chipotle's methods of accommodation, provided during the site inspections, were awkward, humiliating, unappetizing, different in quality, location, time and experience and Antoninetti believed that if he returned, he would face the same intolerable situationY Instead, Chipotle simply offered testimony that it has adopted its written Policy and that it has received no complaints since the adoption of the written Policy.
The district also erred by requiring Antoninetti to prove that the requested injunction was "in the public interest" and that the cost of the requested injunction

95
CR 229 / ER 1-3, 35:6-10. 96 CR 229 / ER I-3, 35:6-13.
97
CR 267 / ER VI-27, 494:23-495:13; 412:23- 413:25, 426:21- 427:10.

CR 267 / ER VI-25, 407:10-21,

-46-

ID

ID

1)

I)

O

(removal of the obstructing wall) was "justified by the relief it will provide. "gs

ID

Injunctive relief was also denied based upon the clearly erroneous factual finding with

e

0

respect to Antoninetti's intent to return to the restaurants 99because it is contrary to

Q

0

the Parties' stipulation 1°°that Antoninetti wants to be able to have the Chipotle

Q

Experience provided to the general public, which necessarily requires an intent to

0

0

return to the restaurants.

Antoninetti is entitled to injunctive relief because he seeks a statutorily
O, authorized injunction, rather than an equitable injunction. The standard requirements

for equitable refief need not be satisfied when an injunction is sought to prevent the

violation of a federal statute which specifically provides for injunctive relief. Trailer

Train Co. v. State Bd. of Equalization, 697 F.2d 860, 869 (9 t_ Cir. 1983), cert. denied,

e

464 U.S. 846, 78 L. Ed. 2d 139, 104 S. Ct. 149 (1983).

In Long v. Coast Resorts Inc., supra, the Ninth Circuit raised, without deciding,

o

the issue of whether a court has equitable discretion in fashioning relief for violations

of the ADA's new construction requirements:
e o

0

98

CR 229 / ER I-3, CL 25, CL 27, CL 31, CL 32.
99

CR 229 / ER I-3, 35:22-36:7.

0

_oo

CR 157 / ER I-7, 5:28-6:6.

-47-

e

The magistrate judge's ruling was in error. In contrast to grandfathered

facilities, the ADA requires that newly constructed facilities be "readily

accessible and usable by individuals with disabilities." 42 U.S.C. §

12183(a)(I).

We need not decide whether the ADA foredoses

the

possibility that a court might exercise its equitable discretion in

@

fashioning relief for violations of § 12183(a), see, e.g., Tenn. Valley

@

Auth. I,. Hill, 437 U.S. 153, 174, 57 L. Ed. 2d 117, 98 S. Ct. 2279

(1978), because there is no room for discretion here even if it exists.

@

This violation resulted in the very discrimination the statute seeks to

@

prevent: it denied individuals with disabilities access to public

0

accommodations.

Moreover, the only statutory defense for

@

noncompliance

-- structural impracticability

-- does not apply to the

0'

Orleans because the terrain on which it is constructed has no unique

O,

characteristics which would make accessibility unusually difficult to achieve. See 42 U.S.C. § 12183(a)(I). Thus, we reverse the magistrate's

determination that, because the Orleans demonstrated obedience to the

spirit of the ADA, plaintiffs were not entitled to injunctive relief.

0

0

Long v. Coast Resorts, Inc., supra, at 923 (emphasis added.)

0 If Congress wishes to do so, it can require the federal courts to automatically

enjoin actual or imminent violations of a statute without an individualized

balancing

of the equities. Weinbergerv.

Romero-Barcelo,

456 U.S. 305, 313, 72 L. Ed. 2d 91,

102 S. Ct. 1798 (1982); Tennessee Valley Authority v. Hill, 437 U.S. 153, 57 L. Ed. 2d

117, 98 S. Ct. 2279 (1978). Tennessee Valley Authority is the leading case sustaining

such a congressional restriction of the courts' equitable discretion. In that case, the

district court was obliged by the statute to issue the injunction against the completion

of a dam, regardless of the costs or consequences

of doing so, and regardless of the

result that it would have reached under the traditional equitable balancing test.

-48-

A W
A W

With respect to the ADA, the courts are precluded from engaging in a balancing

test when ordering injunctive relief for violations of the new construction standards.

42 U.S.C. § 12188 of the ADA states in pertinent part:

In the case of violations of ...section 12183(a) (new

construction) of this title, injunctive relief shall include an

O

order to alter facilities to make such facilities readily

accessible to and usable by individuals with disabilities to

0

the extent required by this subchapter. (Emphasis added.) 1°1

0

O

Cost should not be a factor in fashioning a remedy for violations of the new

O

construction standards when it is not considered as a defense to complying with new

O

0

construction standards in the first instance. In Oregon Arena, the court addressed the

0

O

consideration of cost with respect to new construction and to existing facilities:

0 This particular discussion (about Technical Assistance

Manual ("TAM") § III-4.4600) concerned the requirements

for removing barriers in existing construction. The Rose

0

Garden is subject to the rules for new construction.

Consequently, the "readily achievable" qualification is

inapplicable here, since new construction must meet the

highest standards. See, H.R. Rep. No. 101-485(III) at 60

(explaining distinction between the two standards), (citation

omitted). In contrast to existing construction, there is no

cost defense to the requirements for new ©onstruetion.

TAM § III-5.1000. (emphasis added.)

101
28 C.F.R. § 36.501(b) also provides: "In the case of violations of ...§ 36.401 (new construction), injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities."
-49-

Oregon Arena, supra, at fn. 38.

The Oregon Arena court also cited TAM III-7.2100 (1994 Supp.) in holding

that where a designer deviates from the standards and attempts to provide "equivalent

facilitation," the burden is on the designer to show that equivalent facilitation is

provided:

i

The penalties for guessing wrong can be quite severe, especially

for new construction;

in extreme cases the court may order a non-

compliant structure to be torn down and rebuilt in compliance with

ADA standards. That prospect should serve to discourage abuse of
the equivalent facilitation exception.
0

Oregon Arena, supra, at 727.

The district improperly relied upon Access Now, Inc. v. South Florida Stadium

Corporation,

161 F.Supp.2d 1357, 1369 (S.D. Fla. 2001) _°2, which involved an

existing facility, in requiring that Antoninetti prove the injunction is justified by the

relief provided. In Access Now, the "readily achievable" standard applied, which

involves a consideration of the cost and effort required to remove the barrier. (See 28 C.F.R. §§ 36.104 and 36.304 (definition of"readily achievable").)

In contrast, in new conslruction, the only defense to compliance with the ADA

is structural impracticability.

Long v. Coast Resorts, supra, at 923; 28 C.F.R.

§36.401(c) and ADAAG §4.1.1(5). The burden of proof on this defense is properly

102
CR 229 / ER I-3, 34:17-29. -50-

0

II
III

II

0 borne by the defendant. In an "existing facility" case, Molski v. Foley Estates
0

0

Vineyard, supra, at 1046, this Court cited 28 C.F.R. § 36.405 and ADAAG § 4.1.7 in

0

allocating the burden of production on the issue of an "historical exemption" to the

defendant, noting that under ADAAG § 4.1.7(2)(b), "if the entity undertaking

alterations believes that compliance with the requirements would threaten or destroy

the historic significance of the building.., the entity should consult with the State

Historic Preservation Officer." As this Court noted, "(T)he language of §

4.1.7(2)(b) counsels in favor of placing the burden of production upon the defendant."

Molski v. Foley, supra, at 1049.

0

0

A similar analysis applies to the structural impracticability defense. 28 C.F.R. §

36.401(c) provides: "Full compliance...is not required where an entity can
0

0

demonstrate that it is structurally impracticable to meet the requirements." (Emphasis

0 added.) lm

0 Thus, the district had no discretion to "balance the equities" for violations of the

0

ADA's new construction standards. Even if a balancing was available, it was

0

Chipotle's burden to prove that the cost of the requested injunction was outweighed

by the benefits provided (structurally impracticable), rather than Antoninetti's burden.

103
0 ADAAG §4.1.1 (5) also provides "In new construction, a person or entity is not required to meet the full requirements of these guidelines where that person or entity can demonstrate that it is structurally impracticable to do so."
-51-

0 0

Finally, the district's refusal to grant injunctive relief because of the district's

determination that Antoninetti lacked a "credible" intent to return is contrary to the

specific stipulated facts of this case. Chipotle stipulated that Antoninetti "wants to be

able to have the Chipotle Experience", which logically necessitates a return to the

restaurants. The district ignored these stipulated facts and, instead, cited Antoninetti's

"litigation history" and the fact that Antoninetti had not returned to the restaurants
0 since the disastrous site inspections as the bases for its finding that Antoninetti's

0

professed intent to return was not credible. I°4

This Court, however, has explicitly not required ADA plaintiffs to engage in the

"futile gesture" of visiting or returning to an inaccessible place of public

accommodation

in order to satisfy the standing requirement. D'Lil v. Best Western,

0

0

538 F.3d 1031, "12 (9 'h Cir. 2008). AlthoughD'Lil

involves the legal analysis

0
regarding an "injury in fact" for standing purposes the same analysis applies to

"irreparable

injury" required for injunctive relief.

0

0

6)

Antoninetti

is Entitled to Damages for "Litigation-Related"

Visits.

0

Cal. Civ. Code § 54.3 imposes penalties against those who interfere with the

rights of"an individual with a disability" under Sections 54, 54.1 and 54.2. Cal. Civ.

Code § 54.1(d) provides:
0
104
CR 229 / ER I-7, 35:22-36:7.
-52-

0 0

A violation of the right of an individual under the Americans with Disabilities Act of 1990 ...

Cal.Civ. Code § 54.1(d).

Recovery under the ADA is not limited to just "customers and clients," as this

Court noted inMolski v. M.J. Cable, Inc., 481 F.3d 724 (9 th Cir. 2007):

Title IIrs broad general rule contains no express 'clients or customers' limitation ..." (Citation omitted)... This interpretation is in accord with at least one other circuit.

In Menkowitz v. Pottstown Mem'I Med. Ctr., 154 F.3d 113,

0

122 (3d Cir. 1998) ... (t)he court concluded that "both the

language of Title HI and its legislative history clearly

demonstrate [that] the phrase 'clients or customers,' which

only appears in 42 U.S.C. § 12182(b)(1)(A)(iv),

is not a

general circumscription of Title HI and cannot serve to limit

0

the broad rule announced in 42 U.S.C. § 12182(a)." Id. at

121. Rather, the court noted, "[t]he operative rule announced

0

in Title IH speaks not in terms of'guests,' 'patrons; 'clients,'

'customers,' or 'members of the public,' but instead broadly

uses the word 'individuals.'" Id.

0 Accordingly, Molski did not need to have been a client or

customer of Cable's to be an "individual" entitled to the

protections of Title III. One need not be a client or customer

of a public accommodation to feel the sting of its discrimination.

Molski, supra, at 733.
0
"Customer" is defined as "one that purchases a commodity or service." "Bona

fide" is defined as "made in good faith without fraud or deceit." www.merriam-
0 webster.com. There is no dispute that Antoninetti was a customer of Chipotle during

-53-

his visit to Chipotle on October 1, 2006 and during the two site inspections of October

6, 2006.1°5 Nor was any evidence offered at any time that Antoninetti's purchases

during these visits were made in bad faith or with fraud or deceit. The district's

rejection of these visits because they were "litigation-related"

imposes a limitation on

damages not found in the ADA or § 54.3.

7) Antoninetti Was Entitled to Summary Judgment or Judgment Because The District Committed Legal Error and/or Because Chipotle Failed to Raise a Dispute of Material Fact.

The dis_ict committed legal error in rufing that policies constitute "equivalent

facilitation." It was undisputed that the design of Chipotle's food ordering lines

0

excluded people in wheelchairs from the Chipotle Experience offered at the food

preparation area and the open kitchen. Thus, Antoninetti was entitled to summary

judgment or judgment following trial. In the alternative, assuming policies can

constitute "equivalent facilitation," Antoninetti was still entitled to judgment in his

favor because Chipotle offered no evidence to refute Antoninetti's evidence wh/ch

established the inadequacies of the proffered methods of accommodation.

To defeat a motion for summary judgment, the noumoving party must set forth

specific facts showing there is a genuine issue for trial. Anderson I,. Liberty Lobby,

Inc. (1986) 477 U.S. 242, 250. Chipotle had the burden, in opposing Antoninetti's

I05
CR 92 / ER II-15, DVDs at pgs. 205,206. -54-

MS J, of proving that its "methods of accommodation" provided "equivalent facilitation." This is a "heavy burden." Oregon Arena, supra, at 727. A moving party is entitled to summary judgment if he points to an absence of evidence as to an issue upon which the nonmoving party bears the burden at trial. US 1,.AMC Entertainment, Inc., 232 F.Supp.2d 1092, 1098-1099 (C.D. Cal. 2003).
In his MSJ and at trial, Antoninetti submitted evidence that the viewing of food samples in small cups, by handfuls or by tongfuis, was not appetizing or pleasing, did not allow him to judge the freshness of the ingredients, did not allow him to compare the ingredients to one another, did not allow him to see the quality or composition of the food ingredients. He proved that he could not see over the wall, (which prevented him from seeing into the open kitchen) and that the offered "methods of accommodation" made him feel very uncomfortable because he was disrupting the flow of the ordering line and that he wanted to have the '_hipotle Experience," which rationally requires a return to Chipotle's restaurants, i°6
Chipotle offered no evidence establishing the methods of accommodation were appetizing, that small sample cups of food do allow wheelchair users to see the quality, composition and freshness of the food, that showing samples of food allows wheelchair users to "eat with their eyes" and to be "brought more completely into the
106
See Statement of Facts, at Section IV, B. -55-

a|

0

0

0

dining experience".

Chipotle offered no evidence regarding the amount of time

0

0

required to assemble a burrito in front of a wheelchair user, or that the methods of

II,

II,

accommodation

provide wheelchair users with "quick gourmet."

Based upon this absence of evidence supporting Chipotle's burden of proving

that the "methods of accommodation"

provide an equivalent experience to wheelchair

users, Antoninetti was entitled to have judgment entered in his favor. VIII. CONCLUSION

Antoninetti respectfully requests that this Court reverse the district's Order

denying Antoninetti's MSJ and/or that it reverse judgment against Antoninetti on the

issues of injunctive relief and damages following trial. He requests that the Court

declare that policies are not "equivalent facilitation" under ADAAG § 2.2. and further

requests that the Court instruct the district to issue an order requiring Chipotle to

lower the offending wall so that wheelchair users can see the food preparation area

and the open kitchen.

In the alternative, Antoninetti requests remand to the dislrict with the

instruction that the district order Chipotle to modify its written policy to include the

"two new requirements" relied upon by the district in finding the policy constituted

equivalent facilitation and to state that the methods of accommodations

to be offered

by Chipotle to wheelchair users are limited to those set forth in the written policy.

-56-
0

QI

0

0

0

LAW OFFICES OF AMY B. VANDEVELD

Dated: October 1, 2008 By:

AMY#. VANDEVELD

I

Attorney for Appellant

0 0
-57-

II

I'

I'

I'

STATEMENT OF RELATED CASES

FOR CASE NOS. 08-55867 AND 08-55946

Related cases: 1) Antoninetti, et al. v. Chipotle, USDC No. 06 CV 2671 LAB

(POR), consolidated with the instant case for purposes of discovery, and 2) Perkins,

et al. v. Chipotle, USDC No. CV 08-03002 MMM (OPx). Both suits involve the

Chipotle Experience at all Chipotle restaurants in California. Neither case has been

Dated: October 1, 2008

A/m_'/l_,Vandeve_, _Esq/

0

-58-

CERTIFICATE OF COMPLIANCE FOR CASE NUMBER 06-56468

Pursuant to Fed. R. App. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that this brief is reproduced using a times new roman proportional typeface with a point size of 14, and the text contains less than 13,000 words, not counting tables and certificates. It therefore conforms to the requirements set out in Fed. R. App. p.32 (a)(7)(C) and Ninth Circuit Rule 32-1. The excerpts of record have been compiled in

compliance with Circuit Rule 30-I .6. /_ _-_ [//_i

ff _

Dated: October 1, 2008

Idr(-)vW/

_my/_. Vandeveld, Esq.

0
-59-

tl

,t

PROOF OF SERVICE

O I, the undersigned, declare that: I am authorized to serve the following

date as follows: document(s) in the within action and that the documents were served on today's

1. Case N.am¢./USDC.Number:..

.

AUnStDoCnm. etNtio.: 0v5. Cevhlp1o6t6le0 JM(WemMca¢n) Grill, Inc.

Clrcmt Case Nos. 08-55867, 08-55946

2.

Document(s) served:

AVpolpuemHeasnt's I toOVpIeInin(gone Bcroiepfy), (2 Icnodpeiexs), to EExxcceerrpptsts ooff RReeccoorrdd - (one copy)

,

Person(s) served/Place of service:

John F. Scalia, Esq.

Gregory F. Hurley, Esq. GREENBERG TRAURIG, LLP

3161 Michelson Drive, Suite 1000

Irvine, CA 92612

Defendant CHIPOTLE MEXICAN GRILL, INC.

4.

Manner of Service:

(a) Personal Service: By handing copies of the document(s) to the person served [F.R.Civ_P. 5(b)(2)(A)].

XX Co) Service by Mail: I am "readily familiar" with the firm's

practice of collection and processing correspondence for mailing. Under that

practice, it would be deposited with the U.S. Postal Service on the same day with

postage thereon fully prepaid, at San Diego, California, in the ordinary course of

0

business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day

after date of deposit for mailing in the affidavit. [F.R.Civ.P. 5(b)(2)(B); Cal.Code

of Civil Procedure, Sections 1013a, 2015]

I declare under penalty of perjury, under the laws of the State of California

0

and the United States of America, that the foregoing is Irue and correct.

Executoe.d: Io/3/o

0

!

 
 Case: 08-55946 02/18/2009 Page: 2 of 75 DktEntry: 6811942
TABLE OF CONTENTS
Page TABLE OF CONTENTS .......................................................................................... i. TABLE OF AUTHORITIES .................................................................................. vi. I. STATEMENT OF ISSUES ........................................................................... 1 II. STATEMENT OF THE CASE ...................................................................... 2 III. STATEMENT OF FACTS ............................................................................. 3
A. Chipotle Waived the “Readily Achievable” Defense. .......................... 5 B. Figure A3 is Commonly Used in the Design of Architectural
Elements. .............................................................................................. 6 C. The DVDs Reveal the Visual Nature of the Chipotle Experience. ...... 6 D. Antoninetti Wants to Return to the Restaurants and is Not a “Serial
Litigant”.. ............................................................................................. 8 E. Complaints by Other Customers. ........................................................ 9 F. Chipotle Never Used the Adjacent Cashier Counter or Dining
Tables for the Assembly of Entrees at the Restaurants. ...................... 9 G. Chipotle Never told Antoninetti of the Available Methods
of Accommodation Nor Is the Public Provided any Written Notification of the Available Methods of Accommodation. .............. 10 H. The District Made No Factual Findings Regarding the Comparison Between the Experience of Wheelchair Users Subjected to Chipotle’s “Methods of Accommodation” and the Experience Provided to Standing Customers. .................................... 12
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Case: 08-55946 02/18/2009 Page: 3 of 75 DktEntry: 6811942
I. Antoninetti Never Said He Was Satisfied With the Accommodations Provided to Him at the Site Inspections ................ 14
J. Chipotle Admits That The Menu Boards Do Not Provide the Chipotle Experience. ....................................................... 15
K. Chipotle’s Methods of Accommodation Provide a Different and Separate Experience for Wheelchair Users. .............. 17
L. The Height of the Wall Serves No Practical Function. ..................... 18
M. The District’s Findings Adopted Absurd Notions Proposed by Chipotle ......................................................................... 18
N. Chipotle’s Own Evidence Establishes the Visual Nature Of the Chipotle Experience. ............................................................... 20
O. Antoninetti Did Not Require Dixieline to Lower Its Service Because Only Verbal Information Was Provided There ........................................................................... 21
IV. SUMMARY OF ARGUMENTS ................................................................. 22
A. Chipotle Was Required to Provide a Comparable Line of Sight to its Food Preparation/Performance Areas and Open Kitchens. ................................................................................... 22
B. The District Erred in Applying ADAAG § 7.2(2) to the Chipotle Experience. .......................................................................... 22
C. Policies of Providing Methods of Accommodation Are Not Equivalent Facilitation. ........................................................ 23
D. If No Standard Can Be Applied to the Food Viewing Areas, the General Anti-Discrimination Provisions Required that Chipotle Provide Access for Wheelchair Users. ............................................... 24
E. Chipotle Was Provided Due Process. ................................................. 24
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Case: 08-55946 02/18/2009 Page: 4 of 75 DktEntry: 6811942
F. Antoninetti Was Entitled to Damages for All Visits. ......................... 26
G. Antoninetti Was Entitled to Injunctive Relief. ................................... 26
H. The District Committed Clear Factual Errors. ................................... 27
I. This Appeal Cannot be Rendered Moot. ............................................ 27
V. STANDARDS OF REVIEW ....................................................................... 28
VI. ARGUMENTS ............................................................................................. 28
A. Chipotle Was Required to Provide a Comparable Line of Sight to its Food Preparation/Performance Areas and Open Kitchens. ................................................................................... 28
(i) The Standards Must be Broadly Applied to Effectuate the Goals of the ADA. ............................................................. 28
(ii) ADAAG § 4.33.3 Requires a Line of Sight to Intended Visual Elements in Restaurants and Cafeterias. ....................... 32
B. The District Erred in Applying ADAAG § 7.2(2) to the Chipotle Experience ........................................................................... 37
(i) The District Correctly Held that the Designs Required by ADAAG § 7.2(2)(i) and (ii) Do Not Provide Access to the Chipotle Experience. ............................ 37
(ii) The Chipotle Experience Provided at Lowered or Adjacent Counters is Separate and Different From That Provided at the Food Viewing and Preparation Areas. .................................................................... 38
(iii) The“Goods” and “Services” Provided at Chipotle’s Lowered or Adjacent Counters are Separate and Different From Those Provided at the Food Viewing and Preparation Areas. .................................................................... 40
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C. ADAAG § 7.2(2) Does Not Allow Chipotle to Avoid Designing an Accessible Food Preparation Area by Adopting “Policies of Providing Methods of Accommodation” ................................................................................ 41 (i) “Methods” Were Intentionally Omitted from the Definition of “Equivalent Facilitation.” ......................................................... 41 (ii) Chipotle’s Policy Fails, Even if Policies Can Constitute Equivalent Facilitation ............................................................. 43 (iii) Requiring a Policy of “Use” or “Availability” Does Not Broaden the Phrase “Designs and Technologies” to Include “Policies of Methods of Accommodation.” ............ 45 (iv) ADAAG § 7.2(2) Required an Accessible Design. ................. 46
D. The General Anti-Discrimination Provisions Govern If There Is No Applicable ADAAG Standard. ....................................... 49 (i) The Regulatory Language Applies the General Anti-Discrimination Provisions in the Absence of an Applicable Standard. ........................................ 49 (ii) The Cases Cited by Chipotle Are Inapplicable. ....................... 53 (iii) Other Cases Cited by Chipotle Are Contrary to Ninth Circuit Law. ............................................................... 54
E. Chipotle’s “Due Process” Argument Fails ......................................... 55 F. Antoninetti Was Entitled to Damages for All Visits. ......................... 57 G. Antoninetti Was Entitled to Injunctive Relief. ................................... 57
-iv-

Case: 08-55946 02/18/2009 Page: 6 of 75 DktEntry: 6811942 H. The District Committed Clear Factual Errors. ................................... 59
(i) The District Improperly Omitted Undisputed Facts Relating to the Nature of the Chipotle Experience. ................. 59
(ii) The District Ignored the Undisputed Fact that Chipotle’s Written Policy Allows Methods of Accommodation Not Before the Court For Review ............................................ 60
I. This Appeal Cannot be Rendered Moot. ............................................ 61 VII. CONCLUSION ............................................................................................. 61 Statement of Related Cases ..................................................................................... 63 Certificate of Compliance ....................................................................................... 64 Certificate of Service .............................................................................................. 65
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TABLE OF AUTHORITIES

Cases

Page

Access 4 All, Inc. V. Atlantic Hotel Condominium, LLC, Case No. 04-61740, 2005 U.S. District LEXIS 41601 (S.D. Fla., Nov. 22, 2005) ............................................................................... 45-46

Chickasaw Nation v. United States, (2001) 534 U.S. 84 ................................................................................................ 41

D’Lil v. Best Western, 538 F.3d 1031 (9th Cir. 2008) .......................................................................... 28, 58

Doe v. National Board of Medical Examiners, 199 F.3d 146, 155 (3rd Cir. 1999) ........................................................................ 53

Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 819 (9th Cir. 2004) .......................................................................... 53

Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000). ..................................................................... 55

Forest Guardians v. Johanns, 450 F.3d 455, 462-463 (9th Cir. 2006) .................................................................. 61

Fortyune v. American Multi-Cinema, 364 F.3d 1075, 1081 (9th Cir. 2004) .............................................. 29, 30, 31, 46, 54

Independent Living Resources v. Oregon Arena Corp., 982 F.Supp. 698 (D. Or. 1997) ....................................................................... 45, 48

Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir. 2001). ................................................................................. 56

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Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir. 2007) .................................................................................. 49
Navarro v. Pfizer, 261 F.3d 90, 102 (1st Cir. 2001) ............................................................................ 29
Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126 (9th Cir. 2003), cert. denied, 124 S. Ct. 2903 (2004) ............................................................................. 29, 30, 55
Pennsylvania Dep't of Corr. v. Yeskey, (1998) 524 U.S. 206, 212 ..................................................................................... 30
Russello v. United States, (1983) 464 U.S. 16 ................................................................................................ 41
Security Pac. Nat'l Bank. v. Resolution Trust Corp., 63 F.3d 900 (9th Cir. 1995) .............................................................................. 29, 53
Silver v. Exec. Car Leasing, 466 F.3d 727, 733 (9th Cir. 2006) ............................................................................ 4
Sosa v. Alvarez-Machain, (2004) 542 U.S. 711 .............................................................................................. 41
S.P.R.L. v. Imrex Co., (1985) 473 U.S. 479 .............................................................................................. 30
Tennessee Valley Authority v. Hill, (1978) 437 U.S. 153 ............................................................................................. 58
United States v. AMC Entertainment, Inc., 232 F.Supp.2d 1092, 1098-1099 (C.D. Cal. 2003) ............................................... 55
United States v. Gonzales, (1997) 520 U.S. 1 .................................................................................................. 41
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United States v. Hoyts Cinemas Corp., 380 F.3d 558, 566 (1st Cir. 2004) .......................................................................... 29
United States v. National Amusements, Inc., 180 F.Supp.2d 251 (D. Mass. 2001) .................................................................... 54
Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006). .......................................................................... 4
Weinberger v. Romero-Barcelo, (1982) 456 U.S. 305 .............................................................................................. 58
Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 (E.D. Cal. 2007) ...................................................... 53
Z Channel Ltd. Partnership v. Home Box Office, 931 F.2d 1338, 1341 (9th Cir. 1991) ...................................................................... 61
Statutes- Federal
42 U.S.C. § 12182(a) .................................................................................. 30, 49, 55 42 U.S.C. § 12182(b) .................................................................................. 30, 31, 42
Regulations
28 C.F.R. 36.201-213 .............................................................................................. 49 28 C.F.R. 36.201.. ................................................................................................... 51 28 C.F.R. 36.202.. ................................................................................................... 51 28 C.F.R. 36.213. .............................................................................................. 50, 51 28 C.F.R. 36.301-310 .............................................................................................. 49 28 C.F.R. 36.304. .............................................................................................. 51, 52 28 C.F.R. 36.305.. ................................................................................................... 42 28 C.F.R. 36.401 ................................................................................... 32, 49, 50, 56 28 C.F.R. 36.406. .................................................................................................... 50 28 C.F.R. 36.406(a) ................................................................................................. 42
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28 C.F.R. Part 36, Appendix A - ADA Accessibility Guidelines ............................ 1
28 C.F.R. Part 36, Appendix B - Preamble to Regulations on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities .............................................................................................................. 49 Appendix B, page 604 ............................................................................ 50, 51 Appendix B, page 616 .................................................................................. 52 Appendix B, page 621 .................................................................................. 50
ADAAG
Section 2.2 ....................................................................................... 23, 41, 42, 46, 62 Section 3.4 ............................................................................................................... 34 Section 4.1.1(2) ....................................................................................................... 33 Section 4.1.6(3)(c) .................................................................................................. 47 Section 4.31.9(1) ..................................................................................................... 47 Section 4.31.9(3) ..................................................................................................... 47 Section A4.2.4, Figure A3 ...................................................... 2, 6, 22, 25, 32, 52, 58 Section A4.31.9 ....................................................................................................... 47 Section 4.33.3 ................................... 2, 22, 224, 25, 32, 33, 34, 35-36, 52, 54, 56, 58 Section 4.35 ............................................................................................................. 33 Section 5 ............................................................................................................ 25, 33 Section 5.1 ......................................................................................... 2, 22, 32, 52, 58 Section 7.2(2) .......................................... 1, 22, 23, 26, 31, 38, 40, 45, 46, 47, 48, 52 Section 9.1.4 ............................................................................................................ 48 Section 9.2.2(6)(d) .................................................................................................. 48
Technical Assistance Manual for Title III
TAM III-5.3000 ................................................................................................ 32, 57 TAM III-5.3000 (1994 Supplement) ....................................................................... 51
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I. STATEMENT OF ISSUES Antoninetti’s issues on appeal are set forth in his Opening Brief and are incorporated herein by reference. In his response and reply, Antoninetti asserts the following sub-issues are also relevant to this appeal: 1) Whether, if ADAAG1 § 7.2(2) applies to Chipotle’s food preparation areas, Antoninetti was entitled to judgment in his favor requiring Chipotle to comply with § 7.2(2)(i) by adopting a design that provided access to all of its visual benefits, goods and services. 2) Whether, if ADAAG § 7.2(2) applies to Chipotle’s food preparation areas, Antoninetti was entitled to judgment in his favor requiring Chipotle to comply with § 7.2(2)(iii) by adopting a design that provided “equivalent facilitation.” 3) If no ADAAG Standard can be applied to Chipotle’s food preparation areas, whether Antoninetti was entitled to judgment because the general antidiscrimination provisions of the ADA required Chipotle to modify its Walls to make them accessible and Chipotle waived a “readily achievable” defense in this case.
1 The ADAAG or “the Standards” are codified at 28 C.F.R. Part 36, Appendix A.
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II. STATEMENT OF THE CASE Antoninetti asserts that when Chipotle designed its restaurants with transparent sneeze guards so that its standing customers could look at the food preparation area and into the open kitchen, giving them the “Wow Factor” and the visual and quick Chipotle Experience, it was required by the Americans with Disabilities Act (“ADA”) to implement a design that allowed people in wheelchairs the same opportunity to participate in and benefit from that intended visual and quick Chipotle Experience. The obligation to design a food viewing area without an obstructing wall is based upon the application of ADAAG §§ 4.33.3, 5.1 and Figure A32, as well as the general anti-discrimination provisions of the ADA which inform the application of the Standards to specific situations. The Standards relating to Restaurants and Cafeterias, which incorporated a requirement to provide a line of sight for wheelchair users, required that all elements within the restaurant, that involved intended lines of sight, must be designed to provide comparable lines of sight for wheelchair users.
2 ER II-15, p. 202; codified at ADAAG § A.4.2.4. -2-

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If no Standard is applicable to the specific situation at issue, Antoninetti was entitled to judgment in his favor because the ADA’s general anti-discrimination provisions imposed barrier removal obligations on Chipotle, and Chipotle did not raise the affirmative defense that barrier removal was not “readily achievable.” The district ruled on the parties’ cross-motions for summary judgment that the general anti-discrimination provisions did not apply3 and further ruled that this argument could not be raised at trial.4
If the Standards are applicable to Chipotle’s new construction, Antoninetti was not required to prove the cost of modifying the Wall was outweighed by the benefit provided to the public.
III. STATEMENT OF FACTS This reviewing Court is again respectfully requested to independently review the transcripts and evidence in this case, particularly Chipotle’s training “Zen” DVD and the site inspection DVDs5, which depict the intended visual elements of the Chipotle Experience.
3 ER I-9, 18:4-19:2. 4 ER I-6, 4:9-22. 5 ER II-15, DVDs at pgs. 205, 206, 207.
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Chipotle’s Statement of Facts in its Second Brief is in essence a recitation of the Findings of Fact6 issued by the district, which are a virtual wholesale and verbatim adoption of Chipotle’s proposed Findings of Fact and Conclusions of Law7, including Chipotle’s omission of material facts and Chipotle’s misconstruction of the evidence.
The virtual wholesale and verbatim adoption of one party’s findings require the Circuit Court to review the record and the district court’s opinion more thoroughly. Silver v. Exec. Car Leasing, 466 F.3d 727, 733 (9th Cir. 2006). Clear error exists when the trial judge “misapprehended the effect of the evidence” and when “the testimony, considered as a whole, convinces the (appellate) court that the findings are so against the preponderance of credible testimony that they do not reflect or represent the truth and right of the case.” Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006).
The “truth and right” of this case are not simply based on conjecture by Antoninetti but are based on the deposition and trial testimony of Chipotle’s own witnesses, its training manual, its training DVD, its website and other marketing materials, the conduct of its employees during the site inspections, and its own

6

ER I-3.

7

ER IV-24.

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photographs. Antoninetti incorporates herein the Statement of Facts set forth in his Opening Brief and adds the following facts in response and reply to those asserted by Chipotle in its Second Brief: A. Chipotle Waived the “Readily Achievable” Defense.
Chipotle waived the affirmative defense that removal of access barriers was not “readily achievable.” This defense was not asserted in Chipotle’s answer to the Complaint and it was specifically waived in Chipotle’s responses to discovery.8 Antoninetti was not required to offer any proof on the issue of whether barrier removal was “readily achievable,” if that standard applies, and he was entitled to judgment in his favor.
Antoninetti raised this argument before the district, in his Opposition to Chipotle’s Motion for Summary Judgment (“his Opposition”) and in his Reply to his own Motion for Summary Judgment, which incorporated the arguments and evidence filed with his Opposition.9
8 ER II-11; ER II-15, p. 172, Response to Interrogatories 16 and 17. 9 CR 110 / Antoninetti’s Supplemental Excerpts of Record (“SER”) VIII-31, 12:25-13:2, 18:8-12; 23:28-24:3; CR 115 / SER VIII-32; CR 125 / SER VIII-33, 1:19-24.
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B. Figure A3 is Commonly Used in the Design of Architectural Elements. When designing architectural elements that are affected by eye levels,
architects and designers commonly refer to Figure A3, which describes the typical eye level ranges of wheelchair users.10 C. The DVDs Reveal the Visual Nature of the Chipotle Experience.
The “Zen DVD”11 (10:00 to 15:00 of the DVD is particularly illustrative) shows Chipotle customers almost uniformly gazing at the display of bins of food and selecting from the food items on display. Customers watch closely as the assembly line of tasty entrees are made “right in front of them.” Customers can see fresh batches of ingredients placed on the line. The DVD shows the speed with which customers, who can see all of the bins of food simultaneously, are able to place their orders and watch the assembly of their entrees.
The DVD illustrates the crowded and uncomfortable confines to which a wheelchair user would be subjected if he had his entree assembled at the cashier counter, as proposed by Chipotle. An overhead view of the display of bins is provided at 1:15 to 1:20. The Pacific Beach DVD12 depicts the stark contrast
10 ER II-14, par. 8. 11 ER II-15, DVD at pg. 207. 12 ER II-15, DVD at pg. 205.
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between the visual experience provided to standing customers and the experience provided to people in wheelchairs, which can be seen by first viewing the DVD from about 3:15 to 9:45, followed by Antoninetti’s experience at 16:57 to 19:30.
Antoninetti’s asked to see each of the ingredients during his second pass through the line (at approximately 23:46 to 27:15). The line cleared in front of him and he appeared to hold up the line behind him.13 Antoninetti’s consultant attempted to capture the body language of customers behind Antoninetti who appeared to the consultant to be perturbed at the length of time it took to serve Antoninetti.14
Contrary to Chipotle’s assertion that “the food preparation counter serves one purpose: allowing customers to order and pay for their food,”15 the DVDs and Chipotle’s documents undisputedly establish that the food preparation area is intended to, and does, provide standing customers with important and intended visual culinary benefits.
13 ER II-13, par. 17; ER II-14, p. 8, par. 25; ER II-15, DVD at pg. 205. 14 ER II-14, pars. 23-25. 15 Second Brief, p. 38-39.
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D. Antoninetti Wants to Return to the Restaurants and is Not a “Serial Litigant.” Chipotle stipulated that Antoninetti wants to have the Chipotle Experience
provided to standing customers, which would necessitate a return to the restaurants.16 Facts that have been stipulated to by the parties should be treated as having been proved.17 The district committed clear error in rejecting this stipulated evidence.
It is undisputed that, since 1990, Antoninetti has filed suit against only six different sites: two Dixieline stores, a Holiday Inn, the newly-remodeled Bertrand at Mr. A’s restaurant, San Diego Pier Café restaurant and the newly- constructed Oceanside Mall. Antoninetti asked to be a plaintiff in the Oceanside Mall cases because he was quite upset that a brand-new mall was constructed with so many blatant violations of the ADA. He hoped to deter other developers from constructing brand-new inaccessible facilities.18
It is undisputed that Antoninetti required defendants to remove architectural barriers as part of his settlements with them.19 Chipotle offered no evidence that the
16 ER I-7, pgs. 5-6, Fact 41; ER IV-25, 29:5-30:13. 17 Ninth Circuit Manual of Model Jury Instructions Civil, Instruction No. 2.2 (2007). 18 ER VI-27, 505:3-14; 501:3-22. 19 ER VI-27, 476:20-24.
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businesses sued by Antoninetti have since removed barriers, as required by the settlement agreements. E. Complaints by Other Customers.
The district committed clear error when it failed to consider the undisputed fact that Chipotle has received numerous complaints from customers in wheelchairs about the inaccessibility of the food viewing areas. All complained that the height of the Walls obstructed the view of the food viewing area for people in wheelchairs, who could not enjoy the same experience as standing customers.20 F. Chipotle Never Used the Adjacent Cashier Counter or Dining
Tables for the Assembly of Entrees at the Restaurants. Chipotle, without evidentiary support, asserts that the “expo station” can be, and has been, used to allow customers to “watch their entrees being prepared.”21 This assertion is not supported by the cited evidence, including Chipotle’s nonevidentiary closing argument at ER VII-28, 660-661. Even when Antoninetti repeatedly asked to see food ingredients during the site inspections, he was never shown any ingredients at the adjacent counter or dining tables and he was never given the opportunity to see his burrito assembled so
20 ER II-15, p. 59 - 64. 21 See Second Brief, p. 44, fn. 213 and p. 47, penultimate sentence of Section II, fn. 220.
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he that could customize his burrito. Nor was he ever told that this was an option available to him.22
Chipotle produced no evidence that any people, in wheelchairs or not, at either the Pacific Beach or the Encinitas restaurants, have ever had their burritos assembled in front of them anywhere in the restaurants other than at the 12-foot long food viewing area. Chipotle’s Pacific Beach and Encinitas restaurant witnesses testified that they have never personally assembled entrees in front of customers in wheelchairs, and they have never seen other Chipotle employees do so.23 The district committed clear error in ignoring these undisputed and material facts. G. Chipotle Never told Antoninetti of the Available Methods
of Accommodation Nor Is the Public Provided any Written Notification of the Available Methods of Accommodation. Although the district adopted virtually verbatim Chipotle’s proposed factual findings on Antoninetti’s asserted “refusal of accommodations24,” the evidence
22 ER II-13, pars. 13, 16, 17, 19, 21, 23; Site inspection DVDs at ER II15, pgs. 205, 206; ER V-26, 375:14-20; ER VI-27, 404:2-13, 410:22-411:7, 492:6-9; ER VII-28, 615:13-24.
23 ER IV-25, 174:14-175:17; ER VI-27, 396:1-397:1; ER VII-28, 617: 13-16, 630:1-10.
24 Compare ER I-3, at 25-26 (cited at Second Brief, fn. 188) and ER IV24, pgs. 26-27.
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does not support the interpretation that Antoninetti refused accommodations.25 Antoninetti could not refuse something about which he was unaware.
It was undisputed that Antoninetti never asked to have his entree assembled at the dining area or at the cashier counter because he never had any reason to believe these were options available to him. No employee ever told him about the available options. Antoninetti even had to affirmatively ask to see ingredients before they were simply shown to him by spoonfuls, handfuls and tongfuls.26
It was undisputed that Antoninetti did not ask to be shown food items at his pre-site inspection visits because he only learned of the limited opportunity to have ingredients “shown to him” when this was mentioned by Chipotle’s lawyer at Antoninetti’s deposition just two days prior to the site inspections.27
It was undisputed that there are no signs posted at the restaurants advising people with disabilities of the available methods of accommodation. None of Chipotle’s marketing materials, including its website, provide information for people with disabilities about the accommodations that are purportedly available for
25 Second Brief, p. 35, fn. 188. 26 ER VI-27, 396:19-23; ER VII-28, 615:21-24; Site inspection DVDs at ER II-15, pgs. 205, 206. 27 ER V-26, 377: 6-13; ER VI-27, 456:4-10; 457:18-20.
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disabled customers.28 The district committed clear error in failing to make findings based upon these undisputed, material facts. H. The District Made No Factual Findings Regarding the
Comparison Between the Experience of Wheelchair Users Subjected to Chipotle’s “Methods of Accommodation” and the Experience Provided to Standing Customers. While the district adopted almost wholesale and verbatim Chipotle’s proposed legal conclusions, including that “Defendant has met its burden of establishing that its Customers With Disabilities Policy provides Plaintiff (and other customers in wheelchairs) with substantially equal or greater access to its facilities29,” the district made no findings of fact that would support that conclusion. Nor could it. Even if policies of providing customer service to overcome architectural barriers can constitute “equivalent facilitation” in new construction where a specific Standard applies, the district failed to find that Chipotle’s methods of accommodation (seeing food in small plastic cups, by tongfuls or handfuls) provide substantially the same opportunity to see the freshness of the ingredients, that the methods are as appetizing as seeing sixteen bins of food on display, or that the methods allow customers in wheelchairs to be “brought more fully into the dining
28 ER V-26, 275:1-18. 29 Compare ER I-3, p. 32, CL15 and ER IV-24, p.37, CL24.
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experience.” The district made no finding that the amount of time it takes to assemble a wheelchair user’s entree in the dining room or at the cashier counter or the quality of this accommodation is substantially the same as assembling an entree in the food viewing area. The district had no evidence on this issue because this method had never actually been employed at the restaurants.
Chipotle offered no evidence that anyone thinks that being pulled from the ordering line, separated from one’s companions, and directed to the dining area to see the assembly of an entree from small plastic cups is a “Wow” or pleasant experience. Chipotle offered no evidence of the amount of time it would actually take to prepare and assemble an entree in the dining area or at the cashier counter for customers in wheelchairs.
While the district found that methods of accommodation were available it never made any factual findings that those methods provide the same visual, appetizing, “Wow” experience as is provided to standing customers.
On the other hand, Antoninetti provided undisputed evidence that the food samples shown to him were too small, too far away and that his view of the small samples was obstructed by the plastic of the cups, the bottoms of the spoons or the
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crew members’ fingers.30 It was undisputed that seeing food in small plastic cups, or lifted by handfuls or tongfuls, is not appetizing31 and that the accommodation of taking a tray of cups of food to an adjacent table is unacceptable because it would separate Antoninetti from his companions, make him feel different and is unappetizing.32 I. Antoninetti Never Said He Was Satisfied With the
Accommodations Provided to Him at the Site Inspections. The district committed clear error because there was no credible or admissible evidence that Antoninetti believed the accommodations provided him were acceptable.33 The district simply adopted Chipotle’s misrepresentation of the evidence on this point. Antoninetti’s cited testimony does not state in any remote fashion that Antoninetti was satisfied with the methods of accommodation provided to him or that he was satisfied with the service he received. In addition, Arriaga’s cited testimony simply supports her speculative opinion that Antoninetti was satisfied
30 ER II-13, pars. 19, 21, 22; ER II-15, DVDs at 205, 206; CR 267 / ER VI-27, 399:1-14.
31 ER II-13, par. 22; ER VI-27, 407:10-21. 32 ER VI-27, 415:14-416:25, 418:3-13, 418:20-419:9. 33 Second Brief, p. 27, fn.143.
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with the service he received - an opinion to which Antoninetti objected, but was wrongly overruled by the district.34
In fact, Arriaga admitted that she simply guessed what Antoninetti meant when he nodded his head or said “okay” while she served him. She did not know, nor did she ask, if he meant that he could simply see the sample of food shown to him as opposed to being satisfied with the method of accommodation.35
Antoninetti, on the other hand, testified that when he nodded his head when shown food samples, he simply meant that he would take the ingredient shown to him.36 J. Chipotle Admits That The Menu Boards Do Not
Provide the Chipotle Experience. First, the district committed clear error in adopting any of Chipotle’s “factual” findings regarding the menu boards, written menus, on-line ordering and fax ordering because those findings are clearly irrelevant to any issue in this case. Chipotle has consistently argued that its cashier counter/dining tables, along with its policy of providing methods of accommodation, provide “equivalent facilitation.”
34 ER VII-28, 602:20-24. 35 ER VII-28, 613:18-614:16. 36 ER VI-27, 397:1-19.
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Chipotle has never argued, nor did the district find, that the menu board or other options satisfy Chipotle’s obligation to provide “equivalent facilitation.” Once again, the evidence cited by Chipotle does not support the “factual finding” (which the district adopted) that the written menus “provide descriptions of the entrees and food ingredients.”37
Further, the district committed clear error because, if evidence of other methods of ordering was relevant, it failed to make related material findings based upon undisputed evidence. It was undisputed that the menu board provides no information about the appearance of any of the food items. It does not provide the opportunity to see whether the chicken has grill marks or whether the rice is bright white and visually fresh, nor does it allow a customer to determine the freshness of any of the ingredients.38
The menu board does not describe the portions of ingredients that are actually placed on a customer’s burrito. A customer cannot tell, from looking at the menu board, whether he or she wants more or less of an ingredient. The menu board does not describe or approximate the opportunity to see freshly marinated meats being grilled or the opportunity to look into the open kitchen and to be brought
37 Second Brief, p. 13, fn. 59. 38 ER IV-25, 143:5-152:19; Trial Ex. 13.
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more completely into the dining experience.39 The website does not allow customers to tell the freshness of the ingredients.40 The district clearly erred in failing to make these related material findings, if the other methods of ordering are relevant to the issues in this case. K. Chipotle’s Methods of Accommodation Provide a Different
and Separate Experience for Wheelchair Users. The district clearly erred when it failed to find that the undisputed facts established that Chipotle’s “method of accommodation” of taking wheelchair users to dining tables, where entrees may be assembled and food may be shown, provides a different and separate experience for wheelchair users. This accommodation, undisputedly, requires that a disabled patron leave his companion in line, travel to the dining area, search for an available table, wait for ingredients to be brought on a tray, then travel back to the cashier counter to pay for his food.41 This is a separate and different experience. It was undisputed that, if a person in a wheelchair is taken to a table in the dining area so that he can have his burrito assembled in front of him and see the amount of an ingredient actually being placed on his burrito, and if he wants extra

39

Id.

40 ER V-26, 272:16-22.

41 ER VI-27, 415:14-416:25.

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ingredients, he will have to wait, food exposed, while the food crew goes back into the kitchen, fills another plastic cup with food and returns to the dining table.42 This is a different experience. L. The Height of the Wall Serves No Practical Function.
The district committed clear error in failing to find, based upon the undisputed facts, that the Wall constructed by Chipotle could and should have been designed to allow people in wheelchairs to see the food preparation area since the electrical outlets “protected” by the Wall are at a height of 18 to 24 inches from the finished floor and would be hidden by an opaque wall only 24 inches high. It was also undisputed that the Wall does not actually hide the utensils or serving equipment, since standing customers can see these items when they look over the Wall.43
Antoninetti presented undisputed evidence that the design of the Wall could have been similar to those at other restaurants, including Subway and Pita Pit, which would allow him to see the food items available for selection and the assembly of his entree.44
42 ER IV-25, 171:4-173:17; 177:13-178:12; 180:17-24; 181:11-182:1. 43 CR 126 / SER VIII-34, 55:11-19, 61:9-19. 44 ER II-14, par. 21; ER VI-27, 493:6-15; ER V-26, 356:8-359:10.
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M. The District’s Findings Adopted Absurd Notions Proposed by Chipotle. The district committed clear error when it adopted Chipotle’s proposed
nonsensical finding that seeing the freshness of the food ingredients during the ordering process is of “secondary importance” to the appearance of the food “once it has been prepared and served to the customer.”45
Chipotle burritos are always wrapped in foil.46 When customers receive their entrees, they see foil. If they unwrap the foil, they see a tortilla. The district’s Finding about the appearance of the food “once it has been served to the customer” relies upon the notion that customers care less about the fresh appearance of the ingredients during the actual ordering process than they care about the appearance of the foil wrapper or the tortilla when their entree is served. This offends common sense.
Chipotle’s own witnesses testified that the “appearance of the food” that is “very important” is the appearance with respect to what the customer sees and what the employee sees.47 Since there was no evidence that Chipotle employees unwrapped customers’ burritos to check the appearance of the ingredients once the
45 ER I-3, Fact 2. 46 ER I-3, Fact 50; ER II-15, DVDs at pgs. 205, 206, 207. 47 ER V-26, 308:13-22.
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entree was “served to the customer”, it is undisputed that the appearance of the food as it sits in the sixteen bins is “very important.”
The district’s error in adopting these absurd notions establishes that the district “misapprehended the effect of the evidence” and that the district’s findings are so against the preponderance of credible testimony and common sense that they do not reflect or represent the truth and right of the case. N. Chipotle’s Own Evidence Establishes the Visual Nature
of the Chipotle Experience. The Chipotle Experience was described in Chipotle’s training manual, marketing materials and was depicted on Chipotle’s website.48 Chipotle intended to, and does, provide standing customers with the wonderful opportunities to see large expanses of bins of plentiful food, to “eat with their eyes,” to be “brought more completely into the dining experience,” to customize and make their “perfect burritos,” to have their entrees made “while they watch” and to get their food “fast.”49 Chipotle specifically intends to distinguish its restaurants from “Del Taco and Taco Bell” by serving “food fresh,” rather than “serving fresh food” and by giving
48 ER II-15, pgs. 50, 52, 76, 78, 89, 94, 95, 130 - 135. 49 ER V-26, 265:9-14; 269:12-274:20.
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its customers the opportunity to see, select and direct the making of their customized entrees and to see “piles of food put on warm tortillas.”50
Chipotle includes a “representative photo” in its marketing materials, including its public website, which depicts a woman looking over the Wall into the food preparation area because Chipotle intends to provide this experience to its customers.51
The district erred in failing to make factual findings based upon these undisputed facts which are material to a full understanding of the intended visual Chipotle Experience. O. Antoninetti Did Not Require Dixieline to Lower Its
Service Counter Because Only Verbal Information Was Provided There. The Dixieline stores sued by Antoninetti were existing facilities. Antoninetti agreed to allow Dixieline to adopt a policy of coming from behind the counter to provide assistance, rather than lowering the counter, because the Dixieline store was an existing facility and the counter was simply a place where verbal information was provided.52
50 ER II-15, 148:23-149:5; ER V-26, 261:9-263:22; 264:2-265:25. 51 ER V-26, 270:17-271:7. 52 ER VI-27, 493:25-494:22.
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IV. SUMMARY OF ARGUMENTS Antoninetti incorporates herein the summary of arguments set forth in his Opening Brief and provides the following additional summary in response and reply to Chipotle’s Second Brief: A. Chipotle Was Required to Provide a Comparable Line of Sight to its Food Preparation/Performance Areas and Open Kitchens. The district erred in holding that ADAAG §§ 4.33.3, 5.1 and Figure A3 did not require Chipotle to provide a line of sight to its food viewing areas. Comparable lines of sight are specifically required in the design of “Assembly Areas,” which are explicitly defined to include restaurants and cafeterias. The special requirements for “Restaurants and Cafeterias” specifically incorporate the comparable line of sight requirement of § 4.33.3. Further, Figure A3 is commonly referenced by designers in the design of accessible elements. B. The District Erred in Applying ADAAG § 7.2(2) to the Chipotle Experience. The district erred in holding that ADAAG § 7.2(2) applies to the Chipotle Experience because the visual aspects of the Chipotle Experience are not goods or services and because the “goods” and “services” that are offered at the cashier
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counters and dining tables are separate and different from those provided to standing customers.
If § 7.2(2) does, however, apply to the food preparation areas, Chipotle could not simply select between the options provided at § 7.2(2) at its discretion, but was required to implement the option that provided wheelchair users with the same visual benefits and the same goods and services.
That meant, perhaps, complying with § 7.2(2)(i) by providing a lowered 3foot long portion in the middle of the ordering line if that design would allow access to all of the visual benefits that are provided standing customers. Or, perhaps, complying with § 7.2(2)(iii) by designing the Wall with a transparent material rather than an opaque material, thereby providing “equivalent facilitation.”
If neither of these design options, standing alone, would provide access to the same benefits, goods and services, then § 7.2(2) is inapplicable. C. Policies of Providing Methods of Accommodation
are Not Equivalent Facilitation. Policies, whether written or unwritten, of providing methods of accommodation to overcome inaccessible design do not constitute “equivalent facilitation” as defined at ADAAG § 2.2. Further, Chipotle’s policies of providing methods of accommodation are not equivalent facilitation because Chipotle’s
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employees are entitled to use their own judgment in determining the methods that will be made available, including methods not before the Court for review.
The written Policy also fails to set forth the “two new” requirements relied upon by the district in distinguishing the written Policy from the inadequate unwritten policy. D. If No Standard Can Be Applied to the Food Viewing Areas,
the General Anti-Discrimination Provisions Required that Chipotle Provide Access for Wheelchair Users. The regulations make clear that, if no Standard can be applied to a particular situation, then the general anti-discrimination provisions of the ADA and its regulations still required that Chipotle provide a food viewing area without an opaque obstruction in front of it. Chipotle was required to design its Walls in the first instance with transparent material to accommodate wheelchair users or it was required to remove the architectural barrier of the Wall if removal was “readily achievable.” Antoninetti was not required to offer any evidence on the issue of whether modifications were “readily achievable” because Chipotle waived this affirmative defense. E. Chipotle Was Provided Due Process. The ADAAG has always contained a “comparable line of sight” requirement at § 4.33.3. This requirement applies to all assembly areas, including restaurants.
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Section 5 of the ADAAG, which specifically addresses “Cafeterias and Restaurants,” has always incorporated § 4.33.3. ADAAG Figure A3, which identifies the average eye level ranges for wheelchair users, has always been included in the ADAAG and is commonly referenced by architects in designing architectural features that are affected by eye levels.
These regulations put designers and public accommodations on notice that comparable lines of sight are required in restaurants and Figure A3 identifies accessible viewing heights. Together, these regulations and the Figure provided ample notice to Chipotle regarding how it could design its facilities to provide accessible lines of sight for wheelchair users.
The regulations have always stated that if there is no applicable Standard, designers should look to the “accessible to and usable by” requirements of the general regulations and that the general provisions will require barrier removal if it is readily achievable.
The U.S. Department of Justice’s Technical Assistance Manual (“TAM”) for Title III has always said that the Standards should be applied “to the extent possible” and that “where appropriate technical standards exist”, they should be applied. Since 1994, the Supplement to the TAM has specifically advised that where elements are not addressed in the Standards, the obligations to provide “equal
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opportunity” are still applicable, as is the obligation to make readily achievable modifications, even in new construction. F. Antoninetti Was Entitled to Damages for All Visits.
Even if ADAAG § 7.2(2) does apply to the Chipotle Experience, and the cashier counter or dining tables satisfy the requirements of § 7.2(2)(i) or (ii), Chipotle never used the cashier counter or dining table to serve Antoninetti. He never saw his entree assembled. Chipotle is liable for damages for each visit during which Antoninetti did not have his entree assembled in front of him, including visits during site inspections.
The district erred in failing to award damages for each instance of discrimination. Discrimination is discrimination. If a person were directed to leave a restaurant because of the color of his skin or because she is a woman, that denial would still be discriminatory, even if it occurred during the context of litigation. G. Antoninetti Was Entitled to Injunctive Relief.
Antoninetti was entitled to an order enjoining Chipotle to modify the Walls so that customers with eye levels as low as 43 inches can see the food preparation area and the open kitchen. If the Standards were violated, Antoninetti was not required to prove that the cost of removing barriers in new construction was outweighed by the benefit provided by the removal.
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If the Standards cannot be applied, Chipotle was still required to provide access by modifying the Wall, since it waived the “readily achievable” defense. The evidence was undisputed that Antoninetti wanted to return to the restaurants. Thus, he satisfied the “irreparable harm” element of injunctive relief. The district erroneously relied upon Antoninetti’s “litigation history” in determining Antoninetti’s credibility. H. The District Committed Clear Factual Errors.
The district committed clear errors of fact, including omitting material, undisputed facts and adopting misrepresentations or misconstructions of the evidence that were proposed by Chipotle. These errors show that the district misapprehended the effects of the evidence and its findings do not represent the truth and right of the case. I. This Appeal Cannot be Rendered Moot.
Antoninetti is a plaintiff in a related class action that involves all of Chipotle’s California restaurants.53 Even if Chipotle were to take some action to attempt to moot Antoninetti’s claims for injunctive relief, this appeal is not moot in light of the outstanding claims for damages and declaratory relief, and in light of the potential
53 Please see Antoninetti’s Notice of Related Cases. -27-

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res judicata effect that the underlying judgment will have on Antoninetti’s pending class action suit.
V. STANDARDS OF REVIEW Antoninetti adopts and incorporates herein the standards of review set forth in his Opening Brief and further states that “(t)he attempted use of past litigation to prevent a litigant from pursuing a valid claim in federal court warrants (the reviewing Court’s) most careful scrutiny (citation omitted). This is particularly true in the ADA context...” D’Lil v. Best Western Encina, 538 F.3d 1031, 1040 (9th Cir. 2008).
VI. ARGUMENTS Antoninetti incorporates herein the Arguments set forth in his Opening Brief and makes the following additional arguments: A. Chipotle Was Required to Provide a Comparable Line of Sight to its Food Preparation/Performance Areas and Open Kitchens. (i) The Standards Must Be Broadly Applied to Effectuate the Goals of the ADA. Congress entrusted the Attorney General with the responsibility of promulgating Title III's implementing regulations “to carry out the provisions of
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Title III.” Fortyune v. American Multi-Cinema, 364 F.3d 1075, 1080 (9th Cir. 2004). “The central goal of Title III of the ADA is to ensure that people with disabilities have full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 339 F.3d 1126, 1133 (9th Cir. 2003), cert. denied, 124 S. Ct. 2903 (2004) (Emphasis added).
A regulation must harmonize with the purpose of the statute it implements. Navarro v. Pfizer, 261 F.3d 90, 102 (1st Cir. 2001) The ADA “as a whole remains highly relevant. It provides the purpose and general objectives that cast light on the meaning of the regulation at issue. (citation omitted.)” U.S. v. Hoyts Cinemas, 380 F.3d 558, 566 (1st Cir. 2004).
Security Pac. Nat'l Bank. v. Resolution Trust Corp., 63 F.3d 900 (9th Cir. 1995) also instructs that courts must avoid a construction of a statute that fails to give effect to all of its parts. A “regulation is not just an arbitrary set of words, in which we plug and unplug dictionary definitions and identically worded subsections. It is a law designed to accomplish a purpose. We must examine the meaning of an enactment to see whether one construction makes more sense than another as a means of attributing a rational purpose to the enacting authority. (citation omitted.)” Security Pac. Nat'l Bank, at 905-906.
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Further, a broadly-drafted regulation, with a broad purpose, may be applied to a particular factual scenario not expressly anticipated at the time the regulation was promulgated. This “is a question that the Supreme Court has answered in the affirmative. See Pennsylvania Dep't of Corr. v. Yeskey, (1998) 524 U.S. 206, 212 (holding that, where statutory text is unambiguous, ‘the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.’ (internal quotation marks omitted) (citing S.P.R.L. v. Imrex Co., 473 U.S. 479, 499, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985)). We see no reason to treat regulations differently.” Regal Cinemas, supra, at 1133.
As noted in Antoninetti’s Opening Brief, this Court has historically referenced the general provisions of the ADA in its interpretation and application of the ADAAG. In Regal Cinemas, supra, this Court cited the general anti-discrimination rule of 42 U.S.C. § 12182(a) in interpreting ADAAG § 4.33.3 to include a viewing angle element for wheelchair locations.
In Fortyune, this Court referenced both the general rule (42 U.S.C. § 12182(a)) and the general and specific prohibitions of the ADA (§ 12182(b)) in finding that even if there were no ADAAG violation, the defendant cinema was in violation of the ADA’s general provisions because the cinema failed to ensure the availability of companion seating for wheelchair users. Fortyune, supra, at 1082.
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42 U.S.C. § 12182(b) provides descriptions of discrimination and states in pertinent part:
It shall be discriminatory to provide an individual... on the basis of a disability... of such individual ... with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual ... with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others. 42 U.S.C. § 12182(b) (Emphasis added.) Thus, the interpretation and application of the ADAAG must be broad and must further the goal of the ADA, which is to provide access for people with disabilities to all that is offered to the general public, including the facilities, privileges, advantages, and accommodations of a public accommodation as well as the goods and services. Visual elements are commonly provided and intended at eating establishments. The breathtaking views at the Top of the Mark restaurant in San Francisco. The “wine angel” and wine tower at Aureole Restaurant in Las Vegas. The food selections along the cafeteria line. The performance cooktops at Benihana restaurants. The menu boards at Kentucky Fried Chicken restaurants. It would be contrary to the purpose of the ADA to interpret and apply a Standard, such as § 7.2(2), to a situation if the application would deny people with
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disabilities access to all of the benefits provided by a business to the general public, particularly if other Standards (§§ 4.33.3, 5.1 and Figure A3) could be applied to provide full and equal access.
(ii) ADAAG § 4.33.3 Requires a Line of Sight to Intended Visual Elements in Restaurants and Cafeterias.
There is no Standard that specifically refers to “Food Preparation Areas” or “Open Kitchens” or “Architectural Elements Where Visual Benefits are Intended.” Given the absence of a Standard directly on point, the Standards should be applied “to the extent possible” and “where appropriate technical standards exist, they should be applied.” TAM, III-5.3000.
ADAAG § 4.33.3 is the appropriate Standard that is most applicable to the Chipotle Experience because it requires a line of sight for wheelchair users, it provides wheelchair users access to the same benefits as are provided to standing customers and it satisfies the general requirement54 that new construction be designed so that it is “accessible to and usable by” wheelchair users. Application of §4.33.3 harmonizes, rather than conflicts, with the general anti-discrimination provisions of the ADA and its regulations.
Figure A3 also denotes the typical dimensions relative to a person in a wheelchair, including the average eye level range of wheelchair users. Application
54 28 C.F.R. § 36.401. -32-

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of the dimensional guidelines in this Figure harmonizes, rather than conflicts, with the general anti-discrimination provisions.
As applied to restaurants and cafeterias, § 4.33.3 simply requires that if a restaurant or cafeteria is designed with an intended visual element, the restaurant or cafeteria must be designed so that wheelchair users are provided a comparable line of sight to that element.
Section 5 of the ADAAG imposes special requirements specifically for Restaurants and Cafeterias. “Special application sections 5 through 10 provide additional requirements for restaurants and cafeterias...” ADAAG § 4.1.1(2) (Emphasis added.)
Section 5.1 explicitly states that “restaurants and cafeterias shall comply with the requirements of 4.1 to 4.35” and incorporates § 4.33, which sets forth the requirements for “Assembly Areas.” Section § 4.33.3 imposes a “comparable line of sight” requirement for assembly areas. Thus, the “special application” section for restaurants and cafeterias specifically incorporates a comparable line of sight requirement in the design and construction of restaurants and cafeterias.
As further support that the ADAAG required Chipotle to design and construct its ordering line and food preparation area to provide a comparable line of sight for wheelchair users is the fact that the definition of “Assembly Areas” includes “a room
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or space accommodating a group of individuals...for the consumption of food and drink.”55 Restaurants and cafeterias, clearly, are places where food and drink are consumed.
Thus, not only does § 4.33, by its own terms, apply a line of sight requirement to all “assembly areas,” including restaurants, but “special application” Section 5 explicitly incorporates a special comparable line of sight requirement applicable to restaurants and cafeterias.
Limiting § 4.33.3 to only “fixed seating areas” is not only inconsistent with the actual language of § 4.33.3 (which refers to “fixed seating plans,” not “fixed seating areas”), but such a limitation nullifies the inclusion of restaurants in the definition of “Assembly Areas” and it nullifies the incorporation of § 4.33.3 into the requirements of the “special application” section applicable to restaurants and cafeterias.
Section 4.33.3 applies to “Assembly Areas” and sets forth requirements relating to “wheelchair areas.” There is no special or parochial definition for “wheelchair area” in 28 C.F.R. Part 36. The term “area” is used more than a hundred times in Part 36 to just mean a “place.”
55 ADAAG § 3.4, “Assembly Area”. -34-

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In fact, as noted above, “Assembly Area” is defined as a “room” or “space.” Cafeteria lines, view windows and television viewing rooms at sports bars are real, identifiable spaces. These are areas that wheelchair users would be expected to go to in restaurants or cafeterias and where a line of sight would likely be important.
On the other hand, there is no such physical location as a “fixed seating plan” and a regulation that limits “lines of sight” to “fixed seating plans” is nonsensical, Further, “fixed seating areas,” to which the district referred, is not a term actually used in the regulation. Moreover, there is nothing in § 4.33.3 which specifically limits its application to “fixed seating areas.” Instead, this Section sets forth requirements for “wheelchair areas” and, if fixed seating is involved, it sets forth additional requirements (a fixed companion seat and integration of wheelchair areas into the fixed seating plan).
Adding some numbers to § 4.33.3 clarifies that “wheelchair areas,” not “fixed seating plans,” is the object of the sentence to which the requirements apply:
Wheelchair areas (1) shall be an integral part of any fixed seating plan and (2) shall be provided so as to provide people with physical disabilities a choice of admission prices and (3) lines of sight comparable to those for members of the general public. (4) They shall adjoin an accessible route that also serves as a means of egress in case of emergency. (5) At least one companion fixed seat shall be provided next to each wheelchair seating area. (6) When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location. (7) Readily
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removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair users. Section 4.33.3, numbers added. The drafters of the ADAAG surely anticipated that lines of sight would be important in the design of some restaurants and cafeterias, unrelated to fixed seating, and they incorporated the “line of sight” requirement of § 4.33.3 into the special regulations relating to restaurants and cafeterias to ensure that these types of facilities would be designed and constructed to provide comparable lines of sight for wheelchair users. This interpretation and application of §§ 4.33.3, 5.1 and Figure A3 makes sense and gives effect to the broader non-discrimination requirements of the ADA and to the various provisions of the ADAAG that relate to restaurants and cafeterias. For the “comparable line of sight” requirement to have any effect as applied to restaurants and cafeterias, it must be broadly applied to all design elements within these facilities which would involve intended visual benefits, including food preparation areas like those at Chipotle’s restaurants.
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B. The District Erred in Applying ADAAG §§ 7.2(2) to the Chipotle Experience. (i) The District Correctly Held that the Designs Required by ADAAG § 7.2(2)(i) and (ii) Do Not Provide Access to the Chipotle Experience. The district correctly determined that ADAAG § 7.2(2)(i) and (ii) are
inapplicable to Chipotle’s food preparation areas and the Chipotle Experience. Section 7.2(2)(i) is inapplicable because customers in wheelchairs “cannot receive full and equal access to Defendant’s restaurants by utilizing the transaction counter alone.”56 Simply having the lowered counter, without more, would not provide full and equal access to wheelchair users.
Even Chipotle admits that “a plain reading of Subsection 7.2(2)(i) shows that the clear intent of the regulation is that the establishment be capable of delivering the same goods or services at the lowered portion of the counter...”57
The district also correctly ruled that the cashier counter failed to satisfy § 7.2(2)(ii) because “the transaction counters alone do not provide customers in wheelchairs with full and equal access.”58
56 ER I-9, 15:1-20. 57 Second Brief, p. 43, par. 2. 58 ER I-9, 16:9-10.
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Having correctly determined that having the lowered counters described in §§ 7.2(2)(i) and (ii), alone, would not provide full and equal access to the Chipotle Experience, the district’s efforts to apply § 7.2(2) should have stopped. If the counters, without more, would not provide full and equal access to all of the benefits provided by Chipotle, then the Standard is inapplicable.
(ii) The Chipotle Experience Provided at Lowered or Adjacent Counters is Separate and Different From That Provided at the Food Viewing and Preparation Areas.
ADAAG §§ 7.2(2)(i) and (ii) do not apply in this case because the lowered cashier counter and the dining tables do not provide wheelchair users with views of the sixteen bins of food, the assembly line of burrito-making and the open kitchen. The visual aspects of the Chipotle Experience provided to the general public are not capable of physically being provided at the existing lowered cashier counter or at the auxiliary counters (dining tables) referenced in Section 7.2(2)(i) and (ii).
Looking into the “open kitchen” and “being brought more completely into the dining experience,” seeing sixteen bins filled with food and a veritable bonanza of burrito-making and “eating with your eyes” are not simply incidental, tangential aspects of the Chipotle Experience, but are specifically intended privileges, advantages and/or accommodations, rather than goods or services. These cannot be provided at the cashier counter or at a table in the dining area.
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Chipotle provides a different and separate experience for wheelchair users. Leaving the ordering line and your lunch date, searching for an open dining table (hopefully the accessible one) even when you simply want a take-out order, and waiting for a crew member to fill sixteen small plastic cups of food and waiting for him to carry them out to the dining area on a tray, and watching the crew member plop the cups’ contents onto a tortilla, and then waiting with your tortilla’s contents open and exposed while the crew member retrieves more barbacoa (because the initial portion was too small for your liking), and then watching your tortilla finally rolled, and then having to go back to the cashier counter, against traffic, to pay for your lunch, is not the same as the experience for standing customers. It is different and separate. Looking at one small sample of an ingredient, one at a time, is not the same as simultaneously comparing bins of ingredients to determine which is more appetizing.
Standing customers get to move quickly down a line while they watch a crew member serve spoonfuls of goodness from brimming pans onto their burritos, and onto the bounty of burritos along the assembly line, and the crew immediately adjusts the quantity of each of the standing customers’ ingredients while they watch them being placed on their tortillas, all while in the company of their lunch
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companions, easily reaching the cashier counter where they pay for their food and go on their way.
Antoninetti does not argue that §§ 7.2(2)(i) and (ii) are inapplicable in every instance where “some customers can see certain things behind a sales and service counter.”59 Rather, §§ 7.2(2)(i) and (ii) are inapplicable in those novel situations where visual elements are integral to the benefits provided to the public, rather than incidental to the exchange of goods and services and the same visual elements cannot be provided at a lowered or auxiliary sales counter.
(iii) The“Goods” and “Services” Provided at Chipotle’s Lowered or Adjacent Counters are Separate and Different From Those Provided at the Food Viewing and Preparation Areas.
Like the “experience” provided to wheelchair users, the “goods” and “services” purportedly provided to wheelchair users as part of Chipotle’s “methods of accommodation” are different in nature, size, quality and quantity and are separate from those provided to standing customers. A tray with sixteen small, plastic cups of food is not a “feast for the eyes.” It is not the same as a 12-foot long expanse of bins filled with food. A plastic cupful of barbacoa, followed by a handful of lettuce is not the same as large bins of ingredients right next to each other.
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C. ADAAG § 7.2(2) Does Not Allow Chipotle to Avoid Designing an Accessible Food Preparation Area by Adopting “Policies of Providing Methods of Accommodation” (i) “Methods” Were Intentionally Omitted from the Definition of “Equivalent Facilitation.” “Courts ordinarily will not assume that Congress intended ‘to enact statutory
language that it has earlier discarded in favor of other language.’ (Internal citations omitted)” Chickasaw Nation v. United States, (2001) 534 U.S. 84. “When the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Sosa v. AlvarezMachain, (2004) 542 U.S. 711, n. 9.
“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” United States v. Gonzales, (1997) 520 U.S. 1, 5. “We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.” Russello v. United States, (1983) 464 U.S. 16, 23.
As noted by the disability rights organizations (“Amici”) which filed a Brief of Amici Curiae in this matter, the wording of § 2.2 changed against the backdrop of a statute that already used the phrase “alternative methods” to refer to alternatives to
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barrier removal in pre-1993 facilities, 42 U.S.C. § 12182(b)(2)(A)(v), lending further support to the proposition that the Access Board was drawing a sharp distinction between alternative customer service policies permissible in older facilities and alternative physical designs or technologies permissible in new construction.
The terms “alternative methods” and “alternative designs and technologies” were clearly intended to have different and distinct meanings. “Alternative methods” was specifically included in a regulation relating to existing facilities (28 C.F.R. § 36.305). “Alternative designs and technologies” was included in relation to new construction (ADAAG § 2.2, incorporated by reference at 28 C.F.R. § 36.406(a)). Adoption of Chipotle’s interpretation of ADAAG § 2.2 would read back into § 2.2 language that had been specifically replaced during the regulatory process.
The regulations make clear that “alternative methods” means customer service policies. 28 C.F.R. § 36.305 (“alternative methods” include “curb service,” “retrieving merchandise,” and “relocating activities to accessible locations.”). This provision recognizes that not every older facility will meet the high standards for readily achievable barrier removal, so that alternative -- often service-based -measures will be necessary to provide as much access as possible.
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Antoninetti agrees with Amici that “methods of accommodation” can never be utilized in new construction where the construction is or can be addressed by the Standards. Contrary to Chipotle’s assertion, this very case makes real the fear of Amici and Antoninetti that “establishments will implement policies as forms of equivalent facilitation with the intent to deny access to disabled persons.”60
Antoninetti asserts, in addition, that where the Standards cannot be applied to a particular situation or element, the general provisions of the ADA apply and impose an obligation to remove barriers in new construction where removal is readily achievable. Only where barrier removal is not readily achievable can alternative methods be used to provide accessibility in new construction. See Section VI, D., infra.
(ii) Chipotle’s Policy Fails, Even if Policies Can Constitute Equivalent Facilitation.
Even if policies can constitute “equivalent facilitation,” Chipotle’s Policy fails because it does not plainly set forth the “two new requirements” on which the district relied for its ruling. It does not require that managers, rather than the crew members, carry out the Policy. Placing responsibility on managers, rather than crew members, was critical to the district’s conclusion that the written Policy was
60 Second Brief, p. 53. -43-

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effective when the unwritten policy failed.61 The Policy also does not, as written, place an obligation on the manager on duty to affirmatively inform customers with disabilities about the availability of accommodations. Rather, it states that crew members or managers may ask customers if they want to be accommodated.62
Chipotle attempts to explain the discrepancies between the district’s conclusions and the actual language of the Policy by asserting that the district found “the manager on duty has primary responsibility.”63 The district made no such finding. Chipotle also now explains that its “practices” (rather than the Policy) are consistent with the district’s findings and conclusions.
The problem with the district’s findings and conclusions of law are that they were drafted by Chipotle with reference to the trial testimony of Chipotle’s witnesses. Unfortunately, Chipotle’s witnesses testified that the written Policy imposed obligations that were not actually in the Policy. Further, the “practices” testified to by Chipotle’s witnesses are no different that the unwritten practices under the unwritten policy, which the district found defective. In addition, the Policy
61 ER I-3, CL 16, contradicted by actual language of Policy, found at ER I-3, Fact 110.
62 ER I-3, FF 110, CL 16, CL 17. 63 Second Brief, p.56, par. 1.
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allows the use of other methods of accommodation not mentioned in the Policy64 and not before the Court for scrutiny. The Policy, then, is too vague to be enforceable.
(iii) Requiring a Policy of “Use” or “Availability” Does Not Broaden the Phrase “Designs and Technologies” to Include “Policies of Methods of Accommodation.”
Chipotle argues that, since courts have referred to policies of actually using or making available for use alternative designs or technologies, that “policies” are then forms of equivalent facilitation.65 Policies of “use,” however, are different than policies of “implementing methods of accommodation to overcome inaccessible design.”
For each “policy of equivalent facilitation” cited by Chipotle, there is an attendant alternative design or technology that must be used to provide equivalent facilitation. (E.g., Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D.Or. 1997) - high quality folding chairs versus fixed chairs. Section 7.2(2)(iii) - the side of a counter or a concierge desk versus a lowered portion of the main counter or an auxiliary counter. Access 4 All, Inc. V. Atlantic Hotel
64 Manager Cieslak thought acceptable methods of accommodation included: 1) bringing the hot bins of food out to the wheelchair user in line, with no apparent protection for the food in the bins, 2) lifting and tilting the pans of food above the eye level of wheelchair users. ER IV-25, 163:23-164:25, 167:16-168:13, 168:20-170:17, 171:20-172:8, 181:11-182:1.
65 Second Brief, pgs. 48-50 (e.g. “providing folding chairs”, “using the side of a counter”).
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Condominium, LLC, Case No. 04-61740, 2005 U.S. District LEXIS 41601 (S.D. Fla., Nov. 22, 2005 - couch seating area versus front desk.)
This Court addressed the attendant “available for use” policy in Fortyune v. AMC where this Court found that it was not enough that the cinema provided an accessible design, it was required to adopt a policy that the accessible design actually be available for use by wheelchair users.
Indeed, ADAAG § 2.2 defines “equivalent facilitation” as “the use of other designs and technologies...where the alternative designs or technologies used will provide substantially equivalent or greater access...” Thus, ADAAG § 2.2 requires that, in order for alternative designs and technologies to constitute equivalent facilitation, the alternatives must actually be used. The thing used, however, must be another design or another technology.
(iv) ADAAG § 7.2(2) Required an Accessible Design. ADAAG § 7.2(2) would only apply, if at all, if Chipotle could implement a design, standing alone, that would give wheelchair users the same access to the Chipotle Experience and the open kitchen as is provided to standing customers. For example, if the lowered three-foot long counter were located in the middle of the 12-foot long ordering line and the sixteen bins of ingredients were situated so that wheelchair users had direct and similarly close views of all of the same bins of food
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and the open kitchen from that counter, this might arguably have satisfied the requirements of § 7.2(2)(i). (It seems that Section 7.2(2)(ii), which allows the use of an adjacent counter, could never be applicable because it does not allow the provision of the same goods, services and benefits.)
Constructing a Wall with a transparent material rather than an opaque material might also satisfy the “equivalent facilitation” provision of ADAAG § 7.2(2)(iii), which required an accessible design, not a policy of providing methods of accommodation.
In every instance where the ADAAG describes equivalent facilitation, it references an alternative design or an alternative technology. For example, equivalent facilitation may be provided with an elevator car of different dimensions (other design). ADAAG § 4.1.6(3)(c). A portable text telephone may be made available rather than permanently affixing a text telephone within or adjacent to a telephone enclosure (other technology). ADAAG §4.31.9 (1) and (3). ADAAG § A.4.31.9 further clarifies that “movable or portable text telephones may be used” and goes on to state that “currently designed pocket type text telephones” would not be considered substantially equivalent, but that “in the future as technology develops this could change.”
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Equivalent facilitation is described as “folding shelves” (other design) or “the side of a counter or a concierge desk” (other design). ADAAG § 7.2(iii). All accessible sleeping rooms may be constructed for multiple occupancy, rather than constructing some with single occupancy (other design). ADAAG § 9.1.4. Equivalent facilitation at a hotel balcony or patio may consist of raised decking (other design) or a ramp to provide accessibility (other design or other technology.) ADAAG § 9.2.2(6)(d).
The Court in Independent Living Resources, supra, held that the folding companion seat constituted equivalent facilitation not, as Chipotle argues, that the policy of using the folding companion seat was equivalent facilitation.
The “equivalent facilitation” provision of the ADAAG, then, required that Chipotle design a food viewing counter that provided a comparable line of sight for wheelchair users. This could easily be achieved by lowering the Wall and/or replacing it with a transparent material.
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D. The General Anti-Discrimination Provisions Govern If There Is No Applicable ADAAG Standard. (i) The Regulatory Language Applies the General Anti-Discrimination Provisions in the Absence of an Applicable Standard. If the ADAAG fails to address a particular situation, element, design or
feature, the general anti-discrimination provisions of the ADA66 and its regulations67 will still require accessibility. If no specific Standard applies, accessibility will require an accessible design in the first instance, by reference to the general provisions of 28 C.F.R. § 36.401, or accessibility will require removal of architectural barriers where removal is readily achievable.
The Department of Justice (“the Department”), in its Commentary68, provided notice to designers and builders that they will be required to provide accessible and usable elements and facilities, even in the absence of a specific Standard:
66 Codified at 42 USC 12182(a). 67 Subpart B (28 C.F.R. §§ 36.201-36.213) and Subpart C (28 C.F.R. §§ 36.301-36.310). 68 28 C.F.R. Part 36, Appendix B. (Appendix B relied upon by the Ninth Circuit in Molski v. M.J. Cable, Inc. 481 F.3d 724, 730.)
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“the rule requires, as does the statute, that covered newly constructed facilities be readily accessible to and usable by individuals with disabilities.... To the extent that a particular type or element of a facility is not specifically addressed by the standards, the language of this section (Sec. 36.401) is the safest guide.”
(28 C.F.R. Part 36, App. B, page 621. (Emphasis added.))
The Department also explained that where the specific provisions do not
apply, the general anti-discrimination provisions govern:
“Resort to the general provisions of subpart B is only appropriate where there are no applicable specific rules of guidance in subparts C or D.”
Appendix B, p. 604, right column.
28 CFR § 36.213 also specifically addresses the interplay between the ADA’s
general anti-discrimination requirements (Subpart B) and its specific requirements (Subpart C), including the Standards (Subpart D)69:
“Subpart B of this part sets forth the general principles of nondiscrimination applicable to all entities subject to this part. Subparts C and D of this part provide guidance on the application of the statute to specific situations. The specific provisions, including the limitations on those provisions, control over the general provisions in circumstances where both specific and general provisions apply.”
Subpart B “sets forth the general principles of non-discrimination applicable
to all entities...while subparts C and D provide guidance on the application of this
69 The Standards are incorporated into Subpart D at 28 C.F.R. § 36.406. -50-

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part to specific situations.” Appendix B, p. 604, referencing Section 36.213. The
Department made clear that it intended the general provisions to apply “where there
are no applicable specific rules of guidance.” Id.
If an accessible design is not possible in the first instance (e.g., mobile health
screening vans that may be manufactured by others), under the general anti-
discrimination provisions, a public accommodation will still be required to remove
architectural barriers if it is readily achievable to do so. Notice of this requirement
is included in the 1994 Supplement to the TAM, (TAM III-5.3000 (1994
Supplement) ):
“Although mobile health care screening vans are “facilities” subject to the requirements of Title III, there are no specific ADAAG standards for newly constructed or altered vans. The vehicles are, however, subject to other Title III requirements including the obligation to provide equal opportunity and the duty to remove architectural ...barriers to the extent that it is readily achievable to do so, and if it is not readily achievable to do so...”
In its Commentary, the Department affirmed the application of barrier
removal requirements in situations where the ADAAG does not specifically refer to
certain elements or features (such as arcade video machines):
“Purchase or modification of equipment is required in certain instances by the provisions of §§ 36.201 and 36.202. For example, an arcade may need to provide accessible video machines in order to ensure full and equal enjoyment of the facilities and to provide an opportunity to
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participate in the services and facilities it provides. The barrier rem oval requirem ents of Sec. 36.304 will apply as well....” App. B, p. 616, left column. There is no Standard that specifically refers to “Food Preparation Areas” or “Open Kitchens” or “Architectural Elements Where Visual Benefits are Intended.” If the Court determines that ADAAG §§ 4.33.3, 5.1, 7.2(2) and Figure A3 are not applicable to the unique design of Chipotle’s food viewing areas, then Chipotle was still required to provide an accessible design in the first instance by reference to the general provisions that require a facility to be accessible to and usable by people with disabilities. Certainly any designer of reasonable intelligence could determine that a 46-inch high wall would block the view of wheelchair users with eye levels below that height. Moreover, if Chipotle was unaware of this basic fact, once Chipotle was advised by its customers that wheelchair users could not see the food preparation area70, Chipotle was required to lower or modify the Wall under 28 C.F.R. § 36.304, if it was readily achievable to do so.
70 ER II-15, p. 59 - 64. (Search for emails was limited to the time period of 7/11/02 to 8/21/06 - see ER II-15, top of p.59)
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Chipotle failed to raise the affirmative defense that barrier removal was not readily achievable.71 Antoninetti, therefore, was not required to offer any evidence on this issue and was entitled to judgment in his favor.
“(D)efendant has failed to plead that barrier removal is not readily achievable in its answer. Accordingly, the defense is waived. Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 819 (9th Cir. 2004). While plaintiff has not come forward with any evidence regarding barrier removal, he need not do so where such evidence would be unnecessary, given defendant's waiver.” Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 (E.D. Cal. 2007).
(ii) The Cases Cited by Chipotle Are Inapplicable. Doe v. National Board of Medical Examiners, 199 F.3d 146, 155 (3rd Cir. 1999) addressed the issue of which of two ADA Sections should apply in that case. Similarly, Security Pacific, supra, involved the choice between two parts of a regulation. Neither case held that a general anti-discrimination provision does not govern if there is no specific provision on point or if no Standard applies to a given situation.
71 ER II-15, p. 172, Response to Interrogatories 16 and 17; ER II-11. -53-

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(iii) Other Cases Cited by Chipotle Are Contrary to Ninth Circuit Law.
Chipotle ignores this Court’s decisions that directly contradict the cases cited by Chipotle. For example, in Fortyune, supra, AMC urged “that ADA plaintiffs must prove the defendant contravened a ‘specific requirement of the ADAAG,’ to establish a violation of the ADA.” Fortyune, supra, at 1085. This Court rejected that argument and held that compliance with the ADAAG does not insulate a public accommodation from liability for failing to provide full and equal access to people with disabilities.
Chipotle also cites United States v. National Amusements, Inc., 180 F.Supp.2d 251 (D. Mass. 2001) which involved the issue of whether § 4.33.3 required stadiumstyle theaters to provide “full and equal enjoyment” of the movie theaters to people in wheelchairs. In that case, the Government argued that § 4.33.3 required comparable viewing angles for wheelchair users. In the alternative, the Government urged that the general anti-discrimination provisions of the ADA required comparable viewing angles, since this particular element of the design was not specifically addressed in § 4.33.3. The National Amusements Court rejected the Government’s arguments and held that § 4.33.3 was the exclusively applicable standard, that viewing angles were not addressed in § 4.33.3 and, therefore, comparable viewing angles were not required.
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That holding is directly contrary to this Circuit’s opinion in Regal Cinemas, supra, which addressed the very same issue regarding viewing angles in movie theaters. This Court rejected the notion that because § 4.33.3 was silent as to viewing angles, no such requirement existed. Instead, the Court relied upon the Department’s interpretation of § 4.33.3 and concluded that, when read in conjunction with 42 U.S.C. § 12182(a) (the general anti-discrimination statute), § 4.33.3 required comparable viewing angles for people in wheelchairs. Regal, supra, at 1133. E. Chipotle’s “Due Process” Argument Fails.
Due process requires that the government provide citizens and other actors with sufficient notice as to what behavior complies with the law. “(B)ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. (Citations omitted.)” U.S. v. AMC Entertainment, 549 F.3d 760, 768 (9th Cir. 2008). Only constructive, rather than actual, notice is required. Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000).
Chipotle claims that requiring removal or modification of the Wall constitutes a “design requirement” that has not passed through the notice and comment period
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under the Administrative Procedures Act, thereby violating its right to “due process.” Chipotle basically seems to argue that no one ever told it it could not build a wall that obstructs the views for wheelchair users.
Chipotle’s argument fails for several reasons. First, the regulations specifically state that newly constructed elements and facilities must be designed to be accessible to and useable by people with disabilities. 28 C.F.R. § 36.401. Chipotle had notice of the design criteria commonly relied upon by architects, Figure A3, which identifies the typical range of eye levels for wheelchair users. Anyone of ordinary intelligence could determine that a wheelchair user with an eye level of 43 inches would not be able to see through or over an opaque wall 46 inches high.
Second, Chipotle had notice of the line of sight requirement of § 4.33.3 and that this line of sight requirement was incorporated into the provisions relating to restaurants and cafeterias at § 5.1.
Third, Chipotle had notice that, when no Standard is on point, the general antidiscrimination provisions require that the element or feature be designed to be accessible and usable in the first instance or that barriers be removed, if removal is readily achievable. (See, TAM III-5.3000 (1994 Supplement)).
Fourth, even before Chipotle constructed the two restaurants at issue in this case, this Court, in Long v. Coast Resorts, Inc., 267 F.3d 918 (9th Cir. 2001) had
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already held that accessibility is required even when a particular element or feature is not specifically addressed in the Standards. The Technical Assistance Manual issued by the Department made clear that, if an element, feature or design were not specifically addressed in the Standards, accessibility was required under other provisions. (TAM 5-3000 (1994 Supp.)) F. Antoninetti Was Entitled to Damages for All Visits.
The district denied Antoninetti damages for three visits because it determined that Antoninetti was not a “bona fide customer” during the “litigation-related” visits. But discrimination is discrimination, even when it occurs in front of a defendant’s own attorneys. Antoninetti is entitled to additional damages for three additional visits. Antoninetti incorporates his arguments in his Opening Brief on this issue. G. Antoninetti Was Entitled to Injunctive Relief.
The district committed clear error in making a finding of fact that was contrary to the Parties’ stipulation72 that Antoninetti wants to be able to have the Chipotle Experience provided to the general public, which necessarily requires an intent to return to the restaurants. The district was required to accept these stipulated facts as proven.73
72 ER I-7, 5:28-6:6. 73 Ninth Circuit Manual of Model Jury Instructions Civil, Instruction No. 2.2 (2007).
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Further, the district improperly relied upon Antoninetti’s “litigation history” to determine his credibility. “Although we afford great deference to a district court's credibility assessments, on this record we cannot agree that D'Lil's past ADA litigation was properly used to impugn her credibility. Accordingly, because the district court focused on D'Lil's history of ADA litigation as a basis for questioning the sincerity of her intent to return to the Best Western Encina, we reject its purported adverse credibility determination.” D’Lil, supra, at 1040.
In addition, Antoninetti was not required to provide evidence that the cost of removal of the barrier was outweighed by the benefit provided to the public. If ADAAG §§ 4.33.3, 5.1 and/or Figure A3 required Chipotle to provide a comparable line of sight to the food preparation area and open kitchen, Chipotle’s violation of those Standards entitled him to a statutory injunction, regardless of the cost of the later removal. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982); Tennessee Valley Authority v. Hill, 437 U.S. 153, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978).
Finally, if there is no applicable Standard, Chipotle was required to remove the architectural barrier (the Wall) and Antoninetti was not required to introduce any
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evidence relating to the cost of removal because Chipotle waived the defense that removal was not “readily achievable.”74 H. The District Committed Clear Factual Errors.
(i) The District Improperly Omitted Undisputed Facts Relating to the Nature of the Chipotle Experience.
The district not only misapprehended the effect of the evidence, it completely ignored material, relevant and undisputed evidence. The district’s findings are so contrary to the undisputed evidence, that this reviewing Court can only be left with the firm conviction that clear error was committed by the district.
For example, the district committed clear error in adopting Chipotle’s findings which blatantly omitted the undisputed facts that Chipotle’s kitchens were designed to be a “feast for the eyes” and “open” so that customers will “be brought more completely into the dining experience” and so that they can see into the open kitchen and watch freshly marinated meats being grilled75 - material and undisputed facts that are fundamental to the totality of the Chipotle Experience.
74 ER II-11; ER II-15, p. 172, Response to Interrogatories 16 and 17; SER VIII-32.
75
ER IV-25, 140:10-141:22; ER V-26, 311:8-11. -59-

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(ii) The District Ignored the Undisputed Fact that Chipotle’s Written Policy Allows Methods of Accommodation Not Before the Court For Review.
The district correctly held that Chipotle’s prior unwritten policy did not constitute “equivalent facilitation” because the “subjective interpretation and enforcement of (Chipotle’s) informal Policy rendered the unwritten policy incapable of uniform enforcement or a confidant (sic) conclusion that these actions were equivalent facilitation.”76
The district committed clear error, however, when it ignored the undisputed evidence that the written Policy suffers the same failures as the unwritten policy. The district disregarded testimony from Chipotle employees that no specific methods of accommodation are required for Pacific Beach or Encinitas employees.77 Instead, under the written Policy, Chipotle employees may still use their common sense in devising alternate ways to accommodate customers in wheelchairs.78
The district also committed clear error in holding that the written Policy constitutes equivalent facilitation because the Policy “sets forth plainly” the “two
76
ER I-3, CL 12.
77
CR 267 / ER VI-27, 549:14-19.
78
CR 266 / ER V-26, 318:21-319:2. -60-

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new requirements” integral to the district’s decision that the Policy constituted “equivalent facilitation.”79 In fact, the Policy contains no such “two new requirements.” The reviewing Court need only read the written Policy to see that it does not include the language assigned it by the District. I. This Appeal Cannot be Rendered Moot.
Antoninetti sought declaratory relief and damages, in addition to injunctive relief.80 He is a plaintiff in a related class action lawsuit. The resolution of legal issues in this case may have a res judicata effect in the related class action. Antoninetti’s damages and declaratory relief claims will survive through this appeal. Z Channel Ltd. Partnership v. Home Box Office, 931 F.2d 1338, 1341 (9th Cir. 1991); Forest Guardians v. Johanns, 450 F.3d 455, 462-463 (9th Cir. 2006).
VII. CONCLUSION Antoninetti respectfully requests that this Court reverse the district’s Order denying Antoninetti’s Motion for Summary Judgment and/or that it reverse judgment against Antoninetti on the issues of injunctive relief, declaratory relief and damages following trial. He requests that the Court declare that policies are not
79 ER I-3, CL16, contradicted by actual language of Policy, found at ER I-3, FF 110.
80 ER II-10, p. 9. -61-

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“equivalent facilitation” under ADAAG § 2.2. and further requests that the Court

instruct the district to issue an order requiring Chipotle to lower and/or modify the

offending Wall so that wheelchair users can see the food preparation area and the

open kitchen. Antoninetti requests that this Court order the district to award him

damages for three additional visits to the restaurants.

In the alternative, Antoninetti requests remand to the district with the

instruction that the district order Chipotle to modify its written policy to include the

“two new requirements” relied upon by the district in finding the policy constituted

equivalent facilitation and to state that the methods of accommodations to be offered

by Chipotle to wheelchair users are limited to those set forth in the written policy.

He further requests that the remand include an order that the district award

Antoninetti additional damages.

Dated: February 18, 2009

LAW OFFICES OF AMY B. VANDEVELD
By: S/ Amy B. Vandeveld 1850 Fifth Avenue, Suite 22 San Diego, CA 92101 Tel: (619) 231-8883 Fax: (619) 231-8329 Email: abvusdc@hotmail.com Attorney for Appellant/Cross-Appellee

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STATEMENT OF RELATED CASES FOR CASE NOS. 08-55867 AND 08-55946

Related cases: 1) Antoninetti, et al. v. Chipotle, USDC No. 06 CV 2671 LAB

(POR), consolidated with the instant case for purposes of discovery, and 2) Perkins,

et al. v. Chipotle, USDC No. CV 08-03002 MMM (OPx). Both suits involve the

Chipotle Experience at all Chipotle restaurants in California. Neither case has been

certified as a class action.

Pursuant to Circuit Rule 28-2.6, I hereby certify that there are no known

related cases pending before the United States Court of Appeals for the Ninth

Circuit.

LAW OFFICES OF AMY B. VANDEVELD

Dated: February 18, 2009

S/ Amy B. Vandeveld 1850 Fifth Avenue, Suite 22 San Diego, CA 92101 Tel: (619) 231-8883 Fax: (619) 231-8329 Email: abvusdc@hotmail.com Attorney for Appellant/Cross-Appellee

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CERTIFICATE OF COMPLIANCE FOR CASE NOS. 08-55867 AND 08-55946

Pursuant to Rules 28.1(e)(3) and 32(a)(7)(C) of the Federal Rules of Appellate

Procedure and Ninth Circuit Rule 32-1, I certify that this brief is produced using a

times new roman proportional typeface with a point size of 14, and the text contains

12,980 words, exclusive of the tables and certificates. It therefore conforms to the

requirements set out in Fed. R. App. p.32 (a)(7)(C) and Ninth Circuit Rule 28.1(e)

(2)(A) (i). The excerpts of record have been compiled in compliance with Circuit

Rule 30-1.6.

LAW OFFICES OF AMY B. VANDEVELD

Dated: February 18, 2009

S/ Amy B. Vandeveld 1850 Fifth Avenue, Suite 22 San Diego, CA 92101 Tel: (619) 231-8883 Fax: (619) 231-8329 Email: abvusdc@hotmail.com Attorney for Appellant/Cross-Appellee

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CERTIFICATE OF SERVICE FOR CASE NOS. 08-55867 AND 08-55946

I, the undersigned, hereby certify that on February 18, 2009, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system, as ordered by the Court on February 17, 2009.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing documents by First Class Mail, postage prepaid to the following non-CM/ECF participants:

Amy F. Robertson, Esq. FOX & ROBERTSON, P.C. 3801 E. Florida Avenue, Suite 400 Denver, CO 80210 Attorney for Amici

I further certify that I caused to be filed five sets of the Appellant/CrossAppellee’s Supplemental Excerpts of Record, Vol. VIII, in paper format by overnight mail with the Clerk of the Court for the United States Court of Appeals and mailed one set to the above-mentioned counsel by First Class Mail, postage prepaid, on February 12, 2009.

I declare under penalty of perjury, under the laws of the State of California and the United States of America, that the foregoing is true and correct.

Dated: February 18, 2009

LAW OFFICES OF AMY B. VANDEVELD S/ Amy B. Vandeveld 1850 Fifth Avenue, Suite 22 San Diego, CA 92101 Tel: (619) 231-8883 Fax: (619) 231-8329 Email: abvusdc@hotmail.com Attorney for Appellant/Cross-Appellee

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TABLE OF CONTENTS
Page
INTRODUCTION ............................................................................................ 1 ARGUMENT .................................................................................................... 5 I. The District Court Properly Held that Section 7.2(2) Applies
to Chipotle’s Food Preparation Counters but Erred in Holding that the Transaction Counter Does Not Satisfy the Requirements of Section 7.2(2)(i) and (ii)…………………………………………….. 5 A. Antoninetti’s Assertion that the District Court Erred in Holding
that Section 7.2(2) Applies to the Food Preparation Counters Rests on an Unreasonable Interpretation of Section 4.33.3 and Is Contrary to Established Precedent Applying Section 7.2(2) to Similar Food Service Counters… .........................................................……….. ..... 6 B. Because Section 7.2(2) Applies to Chipotle’s Food Preparation Counters, Antoninetti Cannot Rely on the ADA’s General AntiDiscrimination Provisions To Argue that the Counters Are Inaccessible ..................................................................... ................... 11 C. Antoninetti Has Failed To Present Any Evidence or Legal Authority To Rebut Chipotle’s Arguments that the Restaurants’ Counters Satisfy Subsections 7.2(2)(i) and/or (ii).......................... ................... 14
1. The evidence does not support Antoninetti’s assertion that the transactions that occur at the portion of the food preparation counter are separate and distinct from those that occur at the transaction station ................................................... ................... 15
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2. Antoninetti’s argument that there is no evidence that the transaction station was ever actually used to allow customers to see food ingredients or the making of their food orders is irrelevant to the question of whether the food preparation counters comply with Section 7.2(2)(i) and (ii) ..... ................... 19
II. Antoninetti Has Failed To Refute the Evidence and Authority Cited by Chipotle Establishing that Its Prior Unwritten Practice of Accommodating Customers with Disabilities Constituted Equivalent Facilitation............ 21
A. Antoninetti’s Assertion that Policies Can Never Constitute Equivalent Facilitation Under Section 2.2 and Subsection 7.2(2)(iii) Is Unsupported by the ADAAG or Relevant Case Law ................... 21
B. Chipotle’s Policy and Prior Unwritten Practice of Accommodation Provide Customers with Disabilities with Substantially Equal or Greater Access to the Food Ordering Process and Do Not Require that Customers with Disabilities Be Separated from Other Patrons............................................................................ ................... 25
C. To the Extent that Antoninetti Did Not Receive Any Accommodations that He Wanted on Any of His Visits to the Restaurants, that Is Because He Did Not Indicate His Desire for Accommodation to Chipotle’s Employees or Did Not Indicate that the Accommodations that He Received Were Not Satisfactory........ 29
CONCLUSION ................................................................................................. 31 CERTIFICATE OF COMPLIANCE................................................................ 33
CERTIFICATE OF SERVICE ......................................................................... 34
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TABLE OF AUTHORITIES
Federal Cases Access 4 All, Inc. v. Atlantic Hotel Condominium Ass’n, LLC, Case No. 04-61740,
2005 U.S. Dist. LEXIS 41601 (S.D. Fla. Nov. 22, 2005) ................................... 23 Doe v. National Board of Medical Examiners, 199 F.3d 146 (3d Cir. 1999) ........ 12 Entertainment Research Group v. Genesis Creative Group, 122 F.3d 1211 (9th Cir.
1997) .......................................................................................................................5 Commonwealth v. E*Trade Access, Inc., No. 03-CV-11206-MEL, 2005 WL
2511059 (D. Mass. Feb. 22, 2005) ................................................................ 11, 18 Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994).......................................................5 Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150 (S.D. Cal. 2006) ...................... 10 Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1124 (D. Or.
1998) .................................................................................................................... 10 Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 746 (D. Or.
1997) ........................................................................................................ 11, 22, 23 Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 399 F.3d 1126 (9th
Cir. 2003)....................................................................................................... 12, 13 Parr v. Waianae L&L, Inc., No. Civ. 97-01177 FIY, 2000 WL 687655 (D. Haw.
May 16, 2000)...................................................................................................... 10 Security Pacific National Bank v. Resolution Trust Corp., 63 F.3d 900 (9th Cir.
1995) .................................................................................................................... 12 United States v. National Amusements, 180 F. Supp. 2d 251 (D. Mass. 2001) .........
....................................................................................................................... 11, 12 Federal Regulations 28 C.F.R. pt. 36 ................................................................................................ passim Miscellaneous H. Rep. No. 101-485(II), reprinted in 1990 U.S.C.C.A.N. 387 ............................. 11
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INTRODUCTION The only issues that Appellee/Cross-Appellant Chipotle Mexican Grill, Inc. has appealed to this Court with respect to Appellant/Cross-Appellee Maurizio Antoninetti’s Americans with Disabilities Act (“ADA”) and California Disabled Persons Act (“CDPA”) claims are whether the District Court erred in holding that: (1) the transaction stations in Chipotle’s Pacific Beach and Encinitas Restaurants (collectively “the Restaurants”) do not satisfy the requirements of Subsection 7.2(2)(i) or (ii) of the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”); (2) Chipotle’s long-standing practice of accommodating customers with disabilities did not constitute an equivalent facilitation; and (3) that Antoninetti was therefore entitled to damages for his CDPA claims regarding Chipotle’s food preparation counters. Chipotle’s position with respect to these issues is that its food preparation counters comply with the requirements of ADAAG § 7.2(2) and are therefore accessible under the ADA and the CDPA. Chipotle presented undisputed evidence on summary judgment and at trial that the transaction stations are attached to the food preparation counters and are less than 36 inches high and over 36 inches long, as required by Section 7.2(2)(i) and (ii). Chipotle also presented undisputed evidence that the transaction station can be used to provide the same goods and
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services exchanged at the 44 inch high wall between the line of customers and the portion of the food preparation counters where the customers’ entrées are prepared (“the Wall”). Additionally, Chipotle presented undisputed evidence that its unwritten practice of accommodating customers with disabilities provided substantially equal access to the food ordering process at the Restaurants consistent with the requirements of Section 7.2(2)(iii) and that Antoninetti unreasonably failed or refused to avail himself of the accommodations available to him.
Antoninetti fails to refute any of these arguments in his Third Brief on Cross-Appeal. Antoninetti’s primary argument against Chipotle’s position that its food preparation counters are compliant with Section 7.2(2)(i) and (ii) is that ADAAG Section 4.33.3 rather than Section 7.2(2) governs the food preparation counters. This argument, however, construes Section 4.33.3 in a manner that is inconsistent with the regulation’s plain language. It also ignores well established precedent applying Section 7.2(2) to restaurant and concession stand counters similar to the Restaurants’ food preparation counters. Antoninetti also argues that because Section 7.2(2) does not impose any sight-line requirements on the food preparation counters, the Court should create such requirements based on the ADA’s general anti-discrimination provisions. This argument is contrary to the well settled principle that courts cannot use the ADA’s general anti-discrimination
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provisions to create new technical and design requirements that are not contained in a more specific applicable section of the ADAAG. Although Antoninetti asserts that, in Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., this Court rejected this principle and applied the ADA’s general anti-discrimination provisions to a situation directly addressed by a more specific ADAAG provision, his argument grossly misstates this Court’s ruling in that case. Finally, Antoninetti contends that the District Court properly held that the goods and services exchanged at the portion of the food preparation counter behind the Wall cannot be provided to customers at the transaction station, as required by Section 7.2(2)(i) and (ii). However, Antoninetti offers no evidence to support this assertion and instead relies on his own speculation.
Antoninetti also argues that Chipotle’s unwritten practice of accommodating customers with disabilities cannot satisfy the requirements of ADAAG Sections 2.2 and 7.2(2)(iii) because policies and practices cannot qualify as equivalent facilitation. However, Antoninetti fails to distinguish the regulatory provisions and cases that make clear that policies and practices like Chipotle’s can indeed constitute equivalent facilitation. Antoninetti further asserts that even if a policy can constitute an equivalent facilitation, Chipotle’s unwritten practice of accommodation does not meet the requirements of Sections 2.2 and 7.2(2)(iii) because it provides separate and
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different benefits to wheelchair users and because it never was applied to Antoninetti.
These arguments, however, are flatly contradicted by the evidence presented below.
Accordingly, Antoninetti has failed to rebut Chipotle’s position that its unwritten
practice of accommodating customers with disabilities constitutes an equivalent
facilitation.
Finally, in his Third Brief on Cross-Appeal, Antoninetti attempts to present the
following issues for appeal that were not raised in his Opening Brief:
1. Whether Chipotle waived a “readily achievable” defense;
2. Whether the District Court engaged in the “wholesale and verbatim adoption” Chipotle’s proposed findings, and whether the District Court’s findings of fact and conclusions of law therefore require greater scrutiny on appeal;
3. Whether the District Court erred in failing to consider other customer complaints of customers of other Chipotle restaurants;
4. Whether the District Court erred in failing to make factual findings regarding the comparison between the experience of wheelchair users under Chipotle’s written accommodation policy and the experience of standing customers;
5. Whether the District Court erred in failing to make additional factual findings regarding the menu boards in Chipotle’s restaurants;
6. Whether the District Court committed clear error by improperly relying on Antoninetti’s past litigation history in determining his credibility;
7. Whether the District Court’s factual finding that Antoninetti had no credible interest in returning to the restaurants was contrary to the
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parties’ stipulation that he wants to have the “Chipotle experience”; and 8. Whether this appeal can be “rendered moot.” It is well settled that an appellant in a cross-appeal may not assert new issues or assignments of error in the response and reply brief that were not raised and argued in his initial brief. See Entm’t Research Group v. Genesis Creative Group, 122 F.3d 1211, 1217 (9th Cir. 1997) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)). Accordingly, Antoninetti has waived these arguments.1
ARGUMENT I. The District Court Properly Held that Section 7.2(2) Applies to
Chipotle’s Food Preparation Counters but Erred in Holding that the Transaction Counter Does Not Satisfy the Requirements of Section 7.2(2)(i) and (ii). Antoninetti’s Third Brief on Cross-Appeal fails to refute Chipotle’s factual and legal arguments that the District Court erred in holding that the transaction stations attached to the food preparation counters fulfill the requirements of Section 7.2(2)(i) and (ii). Antoninetti raises a number of different arguments in opposition to Chipotle’s position regarding the application of Section 7.2(2)(i) and (ii), many of which simply repeat the arguments already set forth in his Opening Brief. First, Antoninetti asserts that Section 7.2(2) is inapplicable to the food
1 Chipotle has filed a Motion To Strike contemporaneously with this brief, affirmatively moving this Court to strike these arguments.
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preparation counters because Section 4.33.3 governs those counters. Second, Antoninetti asserts that because Section 7.2(2) does not impose any sight-line requirements on the food preparation counters, the Court should interpret the ADA’s general anti-discrimination provisions to require that the food preparation counters provide equivalent lines of sight to wheelchair users. Finally, Antoninetti contends that the District Court properly held that the goods and services exchanged at the portion of the food preparation counter behind the Wall cannot be provided to customers at the transaction station and that the food preparation counters therefore fail to comply with Section 7.2(2)(i) and (ii). These arguments are without support in fact or law, and therefore fail to refute Chipotle’s arguments that the food preparation counters comply with Section 7.2(2)(i) and (ii).
A. Antoninetti’s Assertion that the District Court Erred in Holding that Section 7.2(2) Applies to the Food Preparation Counters Rests on an Unreasonable Interpretation of Section 4.33.3 and Is Contrary to Established Precedent Applying Section 7.2(2) to Similar Food Service Counters.
Antoninetti’s primary argument in response to Chipotle’s position that its food preparation counters are compliant with Section 7.2(2)(i) and (ii) is that Section 4.33.3 rather than Section 7.2(2) governs the food preparation counters, and therefore compliance with Section 7.2(2)(i) and (ii) does not render the food preparation counters accessible. This argument rests, however, on an unsupported
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and unreasonable reading of Section 4.33.3–one that extends the regulation’s sightline requirements to situations to which they were not intended to apply. Antoninetti’s argument also ignores established case law applying Section 7.2(2) to counters similar to the Restaurants’ food preparation counters.
Antoninetti appears to argue that Section 4.33.3 must be broadly interpreted to apply to the food preparation lines because the regulation is broadly drafted and has a broad purpose. Third Brief on Cross-Appeal at 28-32. However, Antoninetti does not simply propose a broad reading of Section 4.33.3; rather, he proposes a reading that is inconsistent with the regulation’s plain language. Specifically, he proposes a reading of Section 4.33.3 that effectively reads out of the regulation language that limits the regulation’s application to fixed seating plans in assembly areas.
Section 4.33.3 states in its entirety: Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public. They shall adjoin an accessible route that also serves as a means of egress in case of emergency. At least one companion fixed seat shall be provided next to each wheelchair seating area. When the seating capacity exceeds 300, wheelchair spaces shall be provided in more than one location. Readily removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair areas.
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EXCEPTION: Accessible viewing positions may be clustered for bleachers, balconies, and other areas having sight lines that require slopes of greater than 5 percent. Equivalent accessible viewing positions may be located on levels having accessible egress. 28 C.F.R. § 36, App. A, § 4.33.3. Contrary to Antoninetti’s assertions, when this provision is read as a whole, it establishes that its sight-line requirements are limited to fixed seating areas such as those found in theatres, playhouses, and concert and sports arenas. The statement that “wheelchair areas shall be an integral part of any fixed seating plan” establishes that Section 4.33.3, including its line of sight requirements, is limited to wheelchair seating areas in a fixed seating plan. This plain reading of the regulation is further compelled by the language in the regulation stating that the wheelchair areas shall (1) “adjoin an accessible route that also serves as a means of egress in case of emergency,” (2) be located next to at least one companion fixed seat, and (3) be provided in more than one location when the seating capacity exceeds 300, and that “readily removable seats may be installed in wheelchair spaces when the spaces are not required to accommodate wheelchair users.” Id. Furthermore, Section 4.33.2 and Figure 46 establish conclusively that the “wheelchair areas” addressed in Section 4.33 and its various subsections, including
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Section 4.33.3, are defined locations within fixed seating areas. Specifically, Section 4.33.2 states that “each wheelchair location shall provide minimum clear ground or floor spaces as shown in Fig. 46.” 28 C.F.R. § 36, App. A, § 4.33.2. In turn, Figure 46, which depicts the spacing requirements for wheelchair areas, is entitled, “Space Requirements for Wheelchair Seating Spaces in Series.” (Emphasis added.) The reference to seating spaces clearly establishes that the “wheelchair areas” addressed in Sections 4.33.2 and 4.33.3 are limited solely to the seating areas of assembly areas.
Indeed, had the Department of Justice intended Section 4.33.3 to apply to parts of a facility other than fixed seating areas, it would have stated that wheelchair areas shall be an integral part “of any facility, or assembly area,” or used other similar language to clarify that the regulation’s sight-line requirements are not limited to fixed seating areas. The fact that the DOJ did not use such broad language, and instead adopted the much more narrow language, conclusively refutes Antoninetti’s position that Section 4.33.3 must be read to apply to areas other than fixed seating plans.
Furthermore, although Antoninetti is correct that ADAAG Section 5.1 requires restaurants and cafeterias to comply with the ADAAG Sections 4.1 to 4.35, Section 5.1 does not expand any of the specific requirements of Sections 4.1
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to 4.35. Section 5.1 states only that “except as specified or modified in this section, restaurants and cafeterias shall comply with the requirements of 4.1 to 4.35.” 28 C.F.R. § 36, App. A, § 5.1. By merely extending Section 4.33.3’s fixed seating area requirements to restaurants and cafeterias, Section 5.1 does not thereby expand Section 4.33.3’s sight-line requirements to all of the other areas within a restaurant or cafeteria.
The food preparation counters are not part of a fixed seating plan. There is no seating at all at the food preparation counters. Accordingly, that area of the Restaurants is not subject to Section 4.33.3’s sight-line requirements. Antoninetti’s argument that Section 4.33.3 rather than Section 7.2(2) governs the food preparation counters is therefore without merit.
Antoninetti’s arguments against the application of Section 7.2(2) to the food preparation counters are also contrary to relevant case law applying this regulation to similar food service counters at other establishments. Federal courts have held that Section 7.2 is applicable to food service counters at stores, fast food restaurants, and food concession stands. See Chipotle’s Opening and Response Brief at 39 (citing Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1166 (S.D. Cal. 2006); Parr v. Waianae L&L, Inc., No. Civ. 97-01177 FIY, 2000 WL 687655, at *21 (D. Haw. May 16, 2000); Indep. Living Res. v. Or. Arena Corp., 1 F. Supp.
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2d 1124, 1137 (D. Or. 1998)). Antoninetti fails to distinguish these cases or to cite any contrary authority. Nor does he refute Chipotle’s arguments and the District Court’s finding that the acts performed by Chipotle’s employees at the food preparation counters readily fall within the definition of “services” for purposes of Section 7.2(2). Accordingly, his arguments against the application of 7.2(2) to the food preparation counters are without merit.
B. Because Section 7.2(2) Applies to Chipotle’s Food Preparation Counters, Antoninetti Cannot Rely on the ADA’s General AntiDiscrimination Provisions To Argue that the Counters Are Inaccessible.
Antoninetti appears to argue that because Section 7.2(2) does not impose any sight-line requirements on the food preparation counters, the Court should find that it is inapplicable and instead rely on the ADA’s general anti-discrimination provisions to impose sight-line requirements on the food preparation counters. This argument ignores the ADA’s legislative history, as well as established case law holding that the specific provisions of the ADA and its regulations control over the statute’s more general provisions. H. Rep. No. 101-485(II), at 104, reprinted in 1990 U.S.C.C.A.N. 387; C’wealth v. E*Trade Access, Inc., No. 03-CV-11206MEL, 2005 WL 2511059, at *4 (D. Mass. Feb. 22, 2005); United States v. Nat’l Amusements, 180 F. Supp. 2d 251, 260 (D. Mass. 2001); Indep. Living Res. v.
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Oregon Arena Corp., 982 F. Supp. 746 (D. Or. 1997); see also Doe v. Nat’l Bd. of Med. Examiners, 199 F.3d 146, 155 (3d Cir. 1999); Sec. Pac. Nat’l Bank v. Resolution Trust Corp., 63 F.3d 900, 904 (9th Cir. 1995). Antoninetti fails to distinguish or even address the holdings of the Independent Living Resources or E*Trade Access, Inc. cases with respect to this issue. Furthermore, although Antoninetti contends that the holding of National Amusements is contrary to Ninth Circuit jurisprudence, that contention rests on a misreading of this Court’s decision in Oregon Paralyzed Veterans of America v. Regal Cinemas, Inc., 399 F.3d 1126 (9th Cir. 2003).
The court in National Amusements held that movie theatres are not required to provide wheelchairs users with comparable viewing angles, because Section 4.33.3 imposes no such requirement. 180 F. Supp. 2d at 260. In reaching this conclusion, the court held that the government could not rely on the ADA’s general anti-discrimination provisions to impose a comparable viewing angle requirement on movie theatres where no such requirement existed in the applicable section of the ADAAG–namely Section 4.33.3. Id. Although Antoninetti is correct that Regal Cinemas held that movie theatres are required to provide wheelchair users with comparable viewing angles, he grossly misstates the Court’s holding in contending that it was based on the application of the ADA’s general
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anti-discrimination. In Regal Cinemas, this Court simply held that the DOJ’s interpretation of Section 4.33.3 to impose a comparable viewing angle requirement on movie theatres was reasonable and therefore entitled to judicial deference. 399 F.3d at 1132-33. Although this Court quoted the ADA’s general antidiscrimination provisions, its finding that movie theatres were required to provide comparable viewing angles to wheelchair users was clearly based on Section 4.33.3–or, more specifically, on the DOJ’s interpretation of that regulation. The Court did not, as Antoninetti appears to contend, use the ADA’s general antidiscrimination provisions to create a new technical requirement not found in the ADAAG.
While the Regal Cinemas and National Amusements courts reached different results on the issue of whether theatres must provide comparable viewing angles to wheelchair users, they did so because they adopted different readings of Section 4.33.3 and not because one court applied the ADA’s general anti-discrimination provisions to create a new technical requirement. Accordingly, Antoninetti’s assertion that this Court’s decision in Regal Cinemas directly conflicts with the National Amusements holding is without merit.
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C. Antoninetti Has Failed To Present Any Evidence or Legal Authority To Rebut Chipotle’s Arguments that the Restaurants’ Counters Satisfy Subsections 7.2(2)(i) and/or (ii).
In its Opening and Response Brief, Chipotle presented evidence that the transaction station is 34 inches tall and approximately 4 feet long, and is attached to, and therefore a part of, the main food preparation counters. See Chipotle’s Opening and Response Brief at 43 (citing ER I-3, at 10 n.4; ER I-7, at 5; ER I-9, at 10; ER III-19, at 40; ER IV-25, at 28; ER V-26, at 219; Supp. ER I-2, Ex. 25). Chipotle also presented evidence that the same services that are exchanged at the portion of the food preparation counters behind the Wall can be and are offered to customers at the transaction station. See id. at 44–45 (citing ER I-3, at 12–13; ER IV-25, at 177; ER V-26, at 219; ER VI-27, at 580–81, 584–85; ER VII-28, at 592, 602, 623–24, 625, 630–31, 660–61). This evidence establishes that the food preparation counters comply with the technical requirements of both Section 7.2(2)(i) and (ii), and that the District Court therefore erred in holding otherwise.
Antoninetti offers no evidence or legal authority to rebut the evidence and argument set forth in Chipotle’s Opening and Response Brief establishing that the food preparation counters comply with the requirements of Section 7.2(2)(i) and (ii). Instead, he argues that the transaction station does not meet the requirements of Section 7.2(2)(i) or (ii) because the services offered at the transaction station are
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separate and distinct from those offered at the portion of the food preparation counter located behind the Wall. He further argues that because there is no evidence that a wheelchair user has actually used the transaction station to place his or her order or watch his or her order being made, the transaction station cannot satisfy the requirements of Section 7.2(2)(i) and (ii). The first of these arguments is flatly contradicted by the evidence. The second is irrelevant to the question before the Court with respect to whether the food preparation counters comply with the technical and structural requirements set forth in Section 7.2(2)(i) and (ii).
1. The evidence does not support Antoninetti’s assertion that the transactions that occur at the portion of the food preparation counter are separate and distinct from those that occur at the transaction station.
Antoninetti appears to argue that the food preparation counters do not serve a single function, and in particular that the portion of the food preparation counters behind the Wall provides customers with “important and intended visual culinary benefits” that are not provided elsewhere on the food preparation counters.
Antoninetti’s arguments are flatly contradicted by the “Zen and the Art of Throughput” DVD (the “Zen DVD”). See ER II-15, DVD at p. 207. This Zen DVD conclusively shows that the food preparation counters serve a single unitary purpose: allowing customers to order and pay for their food. Id. Although a
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substantial portion of the ordering process at the food preparation counters normally takes place before the customer reaches the transaction station, the Zen DVD shows that parts of each customer’s order, including tortilla chips, guacamole, and drinks, are not made until the customer reaches the transaction station. Id. As such, the ordering process is not confined to the portion of the food preparation counters that is located behind the Wall; rather, the process spans the entirety of the food preparation counters, from the tortilla station to the transaction station. Although there are some visual elements to this ordering process, it simply is not possible to parse those visual elements and categorize them as separate transactions from the rest of the ordering process.
Furthermore, the Zen DVD conclusively shows that the transaction station is sufficiently large to allow a customer to see serving-size samples of all of the available ingredients and watch as his or her food is prepared. See ER II-15, DVD at p. 207. Additionally, Chipotle’s managers presented undisputed testimony that Chipotle offers both standing customers who are not tall enough to see over the Wall and wheelchair users the opportunity to see serving-size samples of the available ingredients and to watch as their food is prepared at the expo station–the portion of the transaction station between the cash register and the salsa station.
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ER IV-25, at 177; V-26, at 219–20; ER VI-27, at 580–81, 584–85; ER VII-28, at 592, 598–99, 623–25. This evidence is undisputed.
Although Antoninetti asserts that standing customers at the portion of the food preparation counters behind by the Wall, unlike customers at the transaction station, can see into the kitchen and watch “a veritable bonanza of burritomaking,” this assertion is unsupported by the evidence. From the 2:30 minute mark to the 2:50 minute mark, the Zen DVD establishes that persons with eye levels slightly above the height of the transaction station (which is only 34 inches tall) can see into the kitchen and view the assembly line. ER II-15, DVD at p. 207, at 2:30-2:50 min. As Antoninetti’s own expert pointed out in his declaration, the average eye level of a wheelchair user is 43 to 51 inches, which is significantly higher than the transaction station. ER II-14, at 3, ¶ 8. The Zen DVD therefore establishes that a wheelchair user with an average eye level would be able to see into the kitchen and watch the assembly line from the transaction station. As such, Antoninetti has failed to rebut Chipotle’s evidence that the benefits he claims are provided at the portion of the food preparation counters located behind the Wall can be made available to customers at the transaction station.
Perhaps recognizing the lack of evidentiary support for his arguments, Antoninetti also asserts that selecting ingredients and watching as an entrée is
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prepared at the transaction station is not the same as doing so along the Wall because those benefits are enjoyed in separate areas. This argument is without merit. Although wheelchair users who place their food orders and watch as their orders are made at the transaction station may engage in these aspects of the food ordering process in a different part of the food preparation counter than standing customers who can see over the Wall, this process does not run afoul of the ADAAG. Section 7.2(2)(i) and (ii) expressly permits restaurants with service counters like Chipotle’s food preparation counters to offer the services available at those counters at either a specific portion of the main counter or a nearby auxiliary counter that is at least 36 inches long and no more than 36 inches tall. 28 C.F.R. § 36, App. A, § 7.2(2)(i), (ii). As set forth above, the transaction station meets these length and height requirements. Antoninetti cannot establish that the food preparation counters violate the ADA, where, as here, they fully comply with the applicable design and technical requirements of Section 7.2(2)(i) and (ii). See E*Trade Access, 2005 WL 2511059, at *4 (holding that “[t]he statutory language and structure of the ADA indicate that Congress intended that the DOJ’s regulations and the ADAAG, when passed, would set forth standards sufficient to satisfy ADA obligations”).
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2. Antoninetti’s argument that there is no evidence that the transaction station was ever actually used to allow customers to see food ingredients or the making of their food orders is irrelevant to the question of whether the food preparation counters comply with Section 7.2(2)(i) and (ii).
Antoninetti also argues that Chipotle’s food preparation counters do not comply with Section 7.2(2)(i) and (ii) because Chipotle has not shown that the transaction counters were actually used by a wheelchair user to see the food ingredients or watch the making of his or her food order. This argument is a red herring. The ADAAG set out specific requirements for accessible design. They do not, however, mandate that persons with disabilities use the accessible designs set forth in the ADAAG; nor do they require facilities to require persons with disabilities to use those accessible designs. As such, a design that complies with the ADAAG is accessible, regardless of whether a disabled person actually uses it. For example, if a restaurant table complies with the clear floor space, knee clearance, and height requirements of Sections 4.32.2 through 4.32.4, it does not cease to be accessible just because disabled patrons choose not to use it. Similarly, because the food preparation counters comply with Section 7.2(2), they are accessible regardless of whether wheelchair users choose to use them. Accordingly, Antoninetti’s argument that there is no evidence that disabled persons
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have made use of the transaction stations for purposes of looking at ingredients or watching the making of their entrées is irrelevant.
As set forth above, the food preparation counters comply with Section 7.2(2)(i) and (ii) because the transaction stations are lower than 36 inches in height and over 36 inches long and can be used to view the food ingredients, order food, and watch one’s order being prepared. Furthermore, Chipotle began implementing a nationwide written “Customers with Disabilities Policy” on or about February 23, 2007, as part of its ongoing efforts to improve customer service. Chipotle’s Opening and Response Brief at 23 (citing ER I-3, at 19; ER V-26, at 319–21; ER VI-27, at 524–25, 534). Under that written policy, as it has been implemented, the manager on duty is responsible for greeting any customer with a disability at the tortilla station (unless the manager recognizes him or her to be a regular customer) and determining what, if any, accommodation is required. ER I-3, at 22; ER V-26, at 319–21, 349; ER VI-27, at 580–81; ER VII-28, at 598–99, 623–25. Among other things, the manager must inform new customers with disabilities or other customers desiring accommodations that the customer has the option of seeing the available ingredients and watching the making of his or her entrée at the transaction station. Id.
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Thus, Chipotle has gone a step beyond simply designing food preparation
counters that comply with the technical requirements of the ADAAG; it has
created a formal written policy to ensure that its employees take affirmative steps
to inform customers of their ability to use the transaction stations on the food
preparation counters to see the available ingredients and watch their orders being
prepared. As the District Court noted in its Findings of Fact, Conclusions of Law
and Judgment, Antoninetti has failed to present any evidence to raise a dispute as
to Chipotle’s evidence that it has successfully implemented this policy at the Restaurants.2
II. Antoninetti Has Failed To Refute the Evidence and Authority Cited by Chipotle Establishing that Its Prior Unwritten Practice of Accommodating Customers with Disabilities Constituted Equivalent Facilitation.
A. Antoninetti’s Assertion that Policies Can Never Constitute Equivalent Facilitation Under Section 2.2 and Subsection 7.2(2)(iii) Is Unsupported by the ADAAG or Relevant Case Law.
In his Third Brief on Cross-Appeal, Antoninetti largely repeats the
2 Although Antoninetti appears to argue that Chipotle’s written Customers with Disabilities Policy was never carried out on any of his visits to the Restaurants, he admitted at trial that he did not ever visit the Restaurants after the Customers with Disabilities Policy was implemented. See ER VI-27, at 423, 425–26, 448–49. As such, Antoninetti’s prior experiences at the Restaurants are wholly irrelevant. Nor can Antoninetti rely on the customer complaints cited in his Third Brief on Cross Appeal, because those complaints also pre-date the implementation of the Customers With Disabilities policy and involve restaurants other than the two at issue in this case. ER II-15, 59–64.
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arguments previously raised in his Opening Brief and the Brief of the Amicus Curiae that policies and practices of accommodation can never qualify as equivalent facilitation under Section 2.2 and Subsection 7.2(2)(iii). Having previously addressed these arguments in its Opening and Response Brief, Chipotle will not do so again here. However, Antoninetti raises one new argument that warrants a reply. In its Opening and Response Brief, Chipotle cited case law and portions of the ADAAG supporting its position that policies and practices of accommodating customers with disabilities can constitute equivalent facilitation. In his Third Brief on Cross Appeal, Antoninetti argues that those cases and ADAAG provisions all involved situations where public accommodations adopted acceptable alternative designs or technologies and instituted policies requiring the use of those designs and technologies. Antoninetti argues that the cited cases merely illustrate policies requiring the use of designs or technologies that constitute equivalent facilitation. However, this argument fails to meaningfully distinguish the cases and regulatory examples cited by Chipotle from the facts of this case; like the examples in those cases and regulations, Chipotle’s policy and practice of accommodation requires the use of alternative designs and technologies.
In Independent Living, the court held that a policy of providing high quality
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folding chairs as opposed to fixed seats for companion seats in wheelchair areas was a form of equivalent facilitation. 982 F. Supp. at 726-28. In Access 4 All, Inc. v. Atlantic Hotel Condominium Ass’n, LLC, Case No. 04-61740, 2005 U.S. Dist. LEXIS 41601 (S.D. Fla. Nov. 22, 2005), the court held that a hotel’s standard operating procedure of personally accommodating a disabled person through the registration process at a couch seating area near the hotel’s front desk constituted equivalent facilitation. Id. at *47-*48. Section 7.2(2)(iii) expressly directs that a hotel may provide equivalent facilitation for a registration counter that does not meet the specific requirements of Subsections 7.2(2)(i) or (ii) by establishing a policy of using the space on the side of the counter or at the concierge desk for handing materials back and forth to guests with disabilities. 28 C.F.R. § 36, App. A, § 7.2(2)(iii).
While it is true that each of these examples involves an alternative design that is used as part of the equivalent facilitation (the folding seats in Independent Living, the couch seating area in Access 4 All, and the side counter or the concierge desk in Section 7.2(2)(iii)), it is equally true that each of the accommodations offered as part of Chipotle’s policy and practice of accommodation involves alternative designs or technologies. For example, the accommodations of offering wheelchair users the opportunity to see serving-size samples of the available food
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ingredients and watch the making of their entrées at the transaction station or at a nearby table in the dining area involve several alternative designs and technologies–namely, the lowered portion of the food preparation counter at the transaction station, the table in the dining area, and/or the soufflé cup in which samples of the food ingredients are shown. ER I-3, at 16, 22; ER V-26, at 215–20, 319–21, 327–28, 335–40, 349; ER VI-27, at 576–77, 580–81; ER VII-28, at 598– 99, 603–04, 623–25. Indeed, Chipotle’s policy of using the transaction station and dining area tables to show wheelchair users the available ingredients and allow them to watch the making of their entrée is no different from the hotel policies expressly approved in Access 4 All and Section 7.2(2)(iii), which require the use of other counters or seating areas in close proximity to the hotel registration desk to provide service to wheelchair users. As such, this Court should reject Antoninetti’s attempt to distinguish the policy and practice at issue in this case from the policies and practices at issue in Independent Living and Access 4 All and from the example set forth in Section 7.2(2)(iii).
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B. Chipotle’s Policy and Prior Unwritten Practice of Accommodation Provide Customers with Disabilities with Substantially Equal or Greater Access to the Food Ordering Process and Do Not Require that Customers with Disabilities Be Separated from Other Patrons.
Antoninetti raises two arguments in support of his assertion that the particular accommodations offered by Chipotle pursuant to its written Customers with Disabilities Policy and its prior unwritten practice of accommodation do not qualify as equivalent facilitation. First, he contends that the accommodations require that wheelchair users be separated from standing customers in order to have the opportunity to view samples of the food ingredients or watch as their entrées are made. Second, he argues that the experience of seeing serving-size samples of food ingredients and watching the preparation of an entrée at the transaction station or a table in the dining area is not identical to the experience of a standing customer who can see over the Wall. Antoninetti’s first argument rests on the false and factually unsupported assumption that Chipotle will always pull wheelchair users out of the food serving lines that run along the food preparation counters in order to accommodate them. His second argument rests on a fundamental mischaracterization of what is required to establish equivalent facilitation.
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Antoninetti appears to base his assertion that the benefits provided to wheelchair users by Chipotle’s Customers with Disabilities Policy and its prior unwritten practice of accommodation are separate from the benefits offered at the food preparation counters on incorrect and factually unsupported assumptions about the procedures used to accommodate wheelchair users. Specifically, Antoninetti assumes that the only way that Chipotle will accommodate wheelchair users is by pulling them out of the food serving lines that run along the food preparation counters and allowing them to see the available food ingredients or the making of their entrées at nearby tables in the dining area. Antoninetti’s Third Brief on Cross-Appeal, at 13. This assumption is unsupported by the evidence. Although wheelchair users have the option of viewing samples of food ingredients or the making of their entrées in the dining area, this is only one of many available accommodations under the Customers with Disabilities Policy or the prior unwritten practice. ER I-3, at 16, 22; ER V-26, at 215–20, 319–21, 327–28, 335– 40, 349; ER VI-27, at 576–77, 580–81; ER VII-28, at 598–99, 603–04, 623–25. Under Chipotle’s prior unwritten practice of accommodation, wheelchair users who wanted to see the available food ingredients but who did not want to exit the food serving line had the choice of viewing samples of the food ingredients either at the portion of the food preparation counter covered by the Wall or at the
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transaction station (or in the dining area). Id. In either case, the wheelchair users would use the same line as standing customers.
Furthermore, the mere fact that some of the available accommodations are provided at areas other than the portion of the food preparation counter behind the Wall (including other portions of the food preparation counter) does not make those accommodations separate and unequal benefits. As set forth above, Chipotle’s practice of offering to provide a wheelchair user with accommodations at a nearby table in the dining area is no different from the hotel accommodation policies expressly approved by Section 7.2(2)(iii) and the Access 4 All case.
Antoninetti’s assertion that Chipotle’s Customers with Disabilities Policy and its unwritten practice of accommodation are not forms of equivalent facilitation because the benefits available to wheelchair users are not identical to those available to standing customers who can see over the Wall is also without merit. An equivalent facilitation must simply ensure that customers with disabilities have substantially equal access to the benefits of the public accommodation. 28 C.F.R. § 36, App. A, § 2.2. Based on its plain language, this regulation does not require that an equivalent facilitation ensure an identical experience to persons with disabilities. It is undisputed that, pursuant to its written Customers with Disabilities Policy and its unwritten practice of accommodating
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customers with disabilities, Chipotle offered wheelchair users a number of accommodations that provided substantially equal access to the food ordering process. Chipotle’s Opening and Response Brief at 57-60. In particular, it is undisputed that Chipotle always has offered customers who cannot see over the Wall the option of seeing serving-size samples of all of the food ingredients or watching the making of their entrées at the transaction station or at nearby tables in the dining area. ER I-3, at 16, 22; ER V-26, at 215–20, 319–21, 327–28, 335–40, 349; ER VI-27, at 576–77, 580–81; ER VII-28, at 598–99, 603–04, 623–25.
Although Antoninetti speculates, without evidentiary support, that these methods of accommodation are not as “appetizing” as the experiences offered to those standing customers who can see over the Wall, such unsupported speculation is insufficient to overcome Chipotle’s undisputed evidence as to the effectiveness of its accommodations. Specifically, because the samples shown to customers at the transaction counter or at the tables in the dining area are the size of Chipotle’s standard servings (ER I-3, at 13; ER IV-25, at 36, 177), customers who take advantage of the above-mentioned accommodations see exactly how much of each ingredient will go into their entrées. Furthermore, if a customer desires more of a particular ingredient than is contained in the sample cup, employees can easily get more of the ingredient for the customer (ER V-26, at 229). While this experience
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may not be identical to that of standing customers who can see over the Wall, it does provide a substantially equal opportunity to see the available ingredients and direct the making of one’s entrée.
C. To the Extent that Antoninetti Did Not Receive Any Accommodations that He Wanted on Any of His Visits to the Restaurants, that Is Because He Did Not Indicate His Desire for Accommodation to Chipotle’s Employees or Did Not Indicate that the Accommodations that He Received Were Not Satisfactory.
Antoninetti also argues that Chipotle could not establish that its written Customers with Disabilities Policy and its unwritten practice of accommodation provide equivalent facilitation because he was not adequately accommodated on any of his visits to the Restaurants. This argument has no bearing on Chipotle’s written Customers with Disabilities Policy, because Antoninetti himself admitted that he never visited the Restaurants after that policy was implemented. ER VI-27, at 423, 425–26, 448–49. Furthermore, with respect to Chipotle’s prior unwritten practice of accommodation, the evidence presented at trial establishes that Antoninetti never informed any of the employees at the Restaurants either that he desired accommodations or that accommodations that were provided to him were inadequate.
With respect to his visits to the Restaurants prior to the October 2006 site inspections, Antoninetti testified that he did not ask to see the available ingredients
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or the making of his food because he did not know that he could make such requests. ER VI-27, at 434–35, 440, 449. However, he also testified that he generally makes similar requests when he needs assistance getting items off shelves at the grocery store. ER VI-27, at 469–70. Given that admission, it strains credulity to accept that he did not know he could make similar requests at a restaurant like Chipotle. Thus, to the extent that he was not provided with accommodations during any of his pre-site inspection visits to the Restaurants, that was because he did not indicate that he wanted to be accommodated.3
With respect to his October 2006 site inspection visits to the Restaurants, it is undisputed that Antoninetti asked for certain accommodations and that he received all of those accommodations. ER V-26, at 367–77; ER VI-27, at 455–59 and 463, ER VII-28, at 611-12. Although he now contends in his Third Brief on Cross-Appeal that he did not find those accommodations to be acceptable, the evidence shows that during the site inspections he never indicated that the accommodations he received were unacceptable and, in certain instances, he in fact
3 Antoninetti’s lack of interest in accommodations appears to be based on a desire to create a bad experience that he can later use in litigation against Chipotle. Indeed, he testified that at on at least one of his visits to the Pacific Beach Restaurant shortly before his deposition, he was hoping to have a bad experience. ER VI-27, at 453. Perhaps most telling, he testified that he had no interest in obtaining any accommodations because he wanted Chipotle to be forced to lower the Wall. ER VI-27, at 460–61.
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indicated that they were acceptable. Id.; see also ER II-15, DVD at p. 206. Thus, to the extent that he was not provided with adequate accommodations during his site inspection visits, that was because he did not indicate that those accommodations were inadequate.
For these reasons, Antoninetti’s assertion that Chipotle failed to implement its unwritten practice of accommodation in his case is without support. Alternatively, if this Court were to hold that the District Court erred in its ruling on whether Antoninetti was provided equivalent facilitation, Chipotle submits that this Court should remand the issue a determination by the District Court as to whether Antoninetti was denied access and therefore had standing.
CONCLUSION For the reasons set forth in its Opening and Response Brief and those set forth herein, Chipotle respectfully requests that this Court: (1) hold that the transaction station on the Restaurants’ food preparation counters satisfies the requirements of ADAAG Subsections 7.2(2)(i) and/or (ii); (2) reverse the portion of the District Court’s Findings of Fact, Conclusions of Law, and Judgment holding that Chipotle’s unwritten practice of accommodating customers with disabilities does not constitute an equivalent facilitation under ADAAG Section 2.2 and Subsection 7.2(2)(iii); (3) affirm the portion of the District Court’s Findings of
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Fact, Conclusions of Law, and Judgment holding that Chipotle’s written

Customers with Disabilities Policy constitutes an equivalent facilitation under

ADAAG Section 2.2 and Subsection 7.2(2)(iii); and (4) reverse the portion of the

District Court’s Findings of Fact, Conclusions of Law, and Judgment holding that

Antoninetti is entitled to damages for his CDPA claims regarding Chipotle’s food

preparation counters.

Date : March 2, 2009

Respectfully submitted,

CHIPOTLE MEXICAN GRILL, INC.
By: Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 hurleyg@gtlaw.com

s/ Virginia E. Robinson___________ John F. Scalia Matthew H. Sorensen Virginia E. Robinson GREENBERG TRAURIG, LLP 1750 Tysons Boulevard, Suite 1200 McLean, Virginia 22102 Telephone: (703) 749-1300 Facsimile: (703) 749-1301 scaliaj@gtlaw.com sorensenm@gtlaw.com robinsonv@gtlaw.com Counsel for Appellee/Cross-Appellant
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CERTIFICATE OF COMPLIANCE FOR CASE NOS. 08-55867 AND 08-55964 Pursuant to Rules 28.1(e)(3) and 32(a)(7)(C) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 32-1, I hereby certify that the attached Fourth Brief on Cross-Appeal filed by Appellee/Cross Appellant is proportionately spaced, has a typeface of 14 points or more, and contains 6,958 words, exclusive of the Table of Contents and Table of Authorities, which is no more than 7,000 words and thus complies with the type-volume limitations of Federal Rule of Appellate Procedure 28.1(e)(2)(C).
s/ Virginia E. Robinson____________ Virginia E. Robinson GREENBERG TRAURIG, LLP 1750 Tysons Boulevard, Suite 1200 McLean, Virginia 22102 Telephone: (703) 749-1300 Facsimile: (703) 749-1301 robinsonv@gtlaw.com Counsel for Appellee/Cross-Appellant
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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on March 2, 2009, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First Class Mail, postage prepaid, to the following non-CM/ECF participants:

Amy B. Vandeveld, Esq. Law Offices of Amy B. Vandeveld 1850 Fifth Avenue, Suite 22 San Diego, CA 92101 Attorney for Appellant/Cross-Appellee

Amy F. Robertson, Esq. Fox & Robertson, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Attorney for Amici Curiae

I declare under penalty of perjury, under the laws of the State of California and the United States of America, that the foregoing is true and correct.

s/ Virginia E. Robinson___________ Virginia E. Robinson GREENBERG TRAURIG, LLP 1750 Tysons Boulevard, Suite 1200 McLean, Virginia 22102 Telephone: (703) 749-1300 Facsimile: (703) 749-1301 robinsonv@gtlaw.com Counsel for Appellee/Cross-Appellant

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 Case: 08-55867 08/14/2009 Page: 1 of 57 DktEntry: 7027995
NINTH CIRCUIT CASE NOS. 09-55327, 09-55425, 08-55867, 08-55946 IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURIZIO ANTONINETTI,
Plaintiff, Appellant and Cross-Appellee, vs.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant, Appellee and Cross-Appellant.
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF CALIFORNIA, CASE NO. 05 CV 1660 J (WMC) NAPOLEON A. JONES, JUDGE
THIRD BRIEF ON CROSS-APPEAL
Amy B. Vandeveld LAW OFFICES OF AMY B. VANDEVELD 1850 Fifth Avenue, Suite 22 San Diego, CA 92101 Telephone (619) 231-8883 Facsimile (619) 231-8329 Attorney for Appellant/Cross-Appellee

Case: 08-55867 08/14/2009 Page: 2 of 57 DktEntry: 7027995
Table of Contents
TABLE OF CONTENTS............................................................................................ i TABLE OF AUTHORITIES . ................................................................................... v INTRODUCTION. .................................................................................................... 1 STATEMENT OF ISSUES . ..................................................................................... 2 STATEMENT OF THE CASE.................................................................................. 3
I. Antoninetti’s Complaint. ....................................................................... 3 II. Antoninetti’s Motion for Summary Judgment. ..................................... 3 III. Chipotle’s Motion for Summary Judgment........................................... 5 IV. The District Denied Antoninetti Summary Judgment
on Some Claims Because Chipotle Modified the Facilities After Antoninetti Filed His Lawsuit and Antoninetti Did Not Seek Damages for All Barriers. ..................................................................... 6 V. The District Specifically Identified Those Fees For Which It Was Denying Antoninetti Recovery. ............................... 7 STATEMENT OF FACTS. ....................................................................................... 9 I. Chipotle Has Never Admitted That it Violated the ADA During Antoninetti’s Visits to the Restaurants...................................... 9 II. The Amended Pretrial Order and the District’s Ruling on the MSJs Framed the Issues for Trial and Did Not Include the Issue of Whether the Written Policy Could Provide Equivalent Facilitation Even if the Unwritten Policy Was Defective. ...................................................................................... 9
i

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III. Throughout This Case The Parties Referred to The “Policy of Providing Methods of Accommodation” as “The Policy” and Did Not Distinguish Between the Documented Policy and the Informal Policy.................................................................................... 11
IV. The District Distinguished Between the Unwritten and the Written Policies Only After the Trial...................................... 13
V. Antoninetti’s Attorney’s Fees Were Incurred in Relation to His Chipotle Experience Claim Which Did Not Distinguish Between Written and Unwritten Policies. ........................................... 15
VI. Antoninetti Proved the Reasonableness of the Total Hours Incurred By, and the Hourly Rate of, His Counsel and the District Did Not Reduce Fees on Either of These Bases..................... 17
VII. Antoninetti Provided Additional Evidence Relating to the Purported “Block-Billed” Time Entries. ....................................... 19
VIII. Litigating this Case Prevented Antoninetti’s Counsel From Taking Other Cases, All to Her Financial Detriment. ......................... 20
SUMMARY OF ARGUMENT. .............................................................................. 21
ARGUMENT........................................................................................................... 23
I. Standards of Review............................................................................ 23
II. Standards for Determining Reasonable Attorney’s Fees..................... 24
III. The District’s Conclusions Were Correct Relative to the Unwritten Policy and the Inapplicability of ADAAG Sections 7.2(2)(i) and (ii). ................................................................... 24
A. The District Correctly Ruled that ADAAG Sections 7.2(2)(i) and (ii) Do Not Apply to the Food Viewing Areas. ......................................................................... 24
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B. The District Correctly Ruled that the Unwritten Policy Did Not Provide Equivalent Facilitation................................... 27
IV. Even If The District is Affirmed on the Merits of The Case, The District’s Award of Fees Should Not Be Reduced....................... 29
A. The District Abused Its Discretion in Failing to Award Antoninetti More Fees Because Antoninetti’s Damages were Not “Nominal” or “De Minimus” and the District Failed to Consider the Other Tangible Benefits of Antoninetti’s Suit. ..................................................................... 29
i. Antoninetti’s Damages Were Not Nominal or “De Minimus. ................................................................. 29
ii. Antoninetti’s Lawsuit Achieved Other Tangible Benefits Even if The District’s Ruling is Affirmed........ 32
iii. If the District is Reversed, Antoninetti’s Lawsuit Will Have Achieved Even Greater Benefits For The Disabled Community. ....................................... 35
B. The District Did Not Abuse its Discretion in Awarding Fees That Were Not Proportional to Antoninetti’s Monetary Recovery................................................................... 37
V. The District Abused Its Discretion in Failing to Award Antoninetti More Fees......................................................................... 39
A. The District Erred in Its Judgment on the Merits of the Case and Abused Its Discretion in Not Awarding Antoninetti All of His Fees, Litigation Expenses and Costs..... 39
B. The District Abused Its Discretion by Refusing to Consider the Public Benefit or Other Tangible Results Obtained in Antoninetti’s Lawsuit. .............................. 42
iii

Case: 08-55867 08/14/2009 Page: 5 of 57 DktEntry: 7027995 C. The District Erred in Requiring Allocation of Fees Between “Written Policy Claims” and “Unwritten Policy Claims. ........................................................................... 42 D. The District’s Holding Regarding “Block Billed” Time Entries and Constitutes Reversible Error......................... 45
VI. The District Abused Its Discretion in Denying Antoninetti His Costs. ............................................................................................ 46
CONCLUSION........................................................................................................ 46 STATEMENT OF RELATED CASES................................................................... 47 CERTIFICATE OF COMPLIANCE....................................................................... 48 CERTIFICATE OF SERVICE. ............................................................................... 49
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Table of Authorities
Cases
Barrios v. California Interscholastic Federation, 277 F.3d 1128 (9th Cir. 2002). .................................................................... 23, 24
City of Riverside v. Rivera, 477 U.S. 561, 91 L. Ed. 2d 466, 106 S. Ct. 2686 (1986). ................................ 37
Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980)). ....................................................................... 37
Cortes v. Metro. Life Ins. Co., 380 F. Supp. 2d 1125 (C.D. Cal. 2005). ........................................................... 39
Cummings v. Connell, 402 F.3d 936 (9th Cir. 2005). ............................................................................ 30
Dang v. Cross, 422 F.3d 800 (9th Cir. 2005). ............................................................................ 43
Donald v. Café Royale, Inc., 218 Cal. App.3d 168, 266 Cal. Rptr. 804 (1990). ........................................... 24
Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 556 (1992). ................................................................ 31
Fischer v. SJB-P.D. Inc., 214 F.3d 1115 (9th Cir. 2000). .......................................................................... 32
Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992). ................................................................... 39, 43
Gracie v. Gracie, 217 F.3d 1060 (9th Cir. 2000). ......................................................................... 44
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Hensley v. Eckerhart, 461 U.S. 424 (1983). ............................................................................ 41, 43, 44
Hydranautics v. FilmTec Corp., 204 F.3d 880 (9th Cir. 2000). .......................................................................... 33
Johnson v. Makinen, 2009 U.S. Dist. LEXIS 60850. ......................................................................... 43
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004). ............................................................................ 23
Lentini v. California Center for the Arts, 370 F.3d 837 (9th Cir. 2004). ........................................................................... 28
McCown v. City of Fontana, 565 F.3d 1097 (9th Cir. 2009). .......................................................................... 33
Molski, v. M.J. Cable, 481 F.3d 724(9th Cir. 2007). ............................................................................. 29
Munson v. Del Taco, 46 Cal. 4th 661 (2009). ..................................................................................... 30
National Federation of the Blind v. Target Corp., 2009 U.S. Dist. LEXIS 67139. ......................................................................... 32
People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307 (7th Cir. 1996). ............................................................................ 44
Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998). ........................................................................ 45
Webb v. Sloan, 330 F.3d 1158 (9th Cir. 2003). ................................................................... 42, 43
Wilcox v. City of Reno, 42 F.3d 550 (9th Cir. 1994). .............................................................................. 32
vi

Case: 08-55867 08/14/2009 Page: 8 of 57 DktEntry: 7027995 ADAAG Sec. 2.2.............................................................................................................. 5, 28, 35 Sec.4.33.3.................................................................................................................... 36 Sec. 7.2(2)(i). .................................................................................................... 5, 24, 26 Sec.7.2(2)(ii). .............................................................................................. 5, 24, 25, 26 Sec.7.2(2)(iii). ............................................................................................................... 5 Statutes- State California Civil Code Section 52. ......................................................................... 29, 31 California Civil Code Section 54.3. ...................................................................... 29, 31
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INTRODUCTION This appeal and Antoninetti’s consolidated appeal in Ninth Circuit Case No. 08-55867 were filed to address the adverse legal rulings of the District which affect not just the underlying case, but which have the potential of gravely affecting all disability access claims involving new construction. The issues are of such significance that numerous disability rights advocacy organizations joined in an amicus brief in the consolidated appeal. If left to stand, the District’s decisions will decimate one of the ADA’s primary purposes - to provide people with disabilities with physical access to benefits and advantages of public accommodations. Relying on the District’s rulings, public accommodations will feel free to construct inaccessible facilities because they can simply argue that they have provided “equivalent facilitation” by adopting policies to overcome the built barriers. People with disabilities would also be forced to prove that the cost of removing the barriers is outweighed by the benefit provided by removal in order to obtain injunctive relief. Antoninetti contends that Chipotle violated his rights during his visits to the restaurants because Chipotle designed and built restaurants that have physical barriers separating customers in wheelchairs from the visual and sensory benefits of the Chipotle Experience. Antoninetti contends that the District erred when it ruled that
1

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Chipotle could escape liability under the ADA by adopting policies of providing methods of accommodation to overcome the design barriers. Antoninetti also contends, among other things, that the District improperly interpreted and applied the “equivalent facilitation” provision of the ADAAG, placed improper burdens of proof on him and rejected undisputed evidence that Antoninetti wished to return to the restaurants.
In addition, Antoninetti’s Opening Brief in this appeal is not a “mere recitation of the Opening Brief” filed in Case No. 08-55867, as contended by Chipotle. Antoninetti respectfully requests that both Briefs be read and considered by the reviewing Court.
STATEMENT OF ISSUES Antoninetti’s issues on appeal are set forth in his Opening Brief and are incorporated herein by reference. In his response and reply to Chipotle’s Second Brief on Appeal1, Antoninetti asserts the following issues are also relevant to the issues raised by Chipotle in its cross-appeal: 1) Whether Antoninetti is entitled to recover all of his fees, even if they are disproportionate to the monetary value of his recovery, because Chipotle cannot

1

Hereinafter referred to as “SBA.”

2

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litigate tenaciously and then be heard to complain about the time necessarily spent by Antoninetti in response.
STATEMENT OF THE CASE Antoninetti incorporates herein the Statement of the Case set forth in his Opening Brief. In addition, Antoninetti states as follows: I. Antoninetti’s Complaint. Antoninetti filed his Complaint because Chipotle violated the Americans with Disabilities Act (“ADA”) when it denied people in wheelchairs, like him, the opportunity to participate in the “Chipotle Experience” that was marketed by Chipotle and offered to customers who could stand and look through the transparent sneeze guards installed for their benefit. Antoninetti also contended that the restrooms, parking and entrances at the facilities were not accessible.2 II. Antoninetti’s Motion for Summary Judgment. After extensive discovery, Antoninetti filed his Motion for Summary Judgment (“MSJ”) which was supported by site inspection DVDS, Chipotle’s own documents and by testimony from Chipotle’s own witnesses. Antoninetti offered evidence regarding the nature of the Chipotle Experience offered to the general public, the nature of his personal experiences at Chipotle’s restaurants and the inadequacy of the

2

ER II-7, 4:7-20.

3

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“methods of accommodation” that were offered to him during only two site inspection visits.
Antoninetti offered evidence that not only were Chipotle’s methods of accommodation (lifting samples of food by handfuls, tongfuls and cupfuls) inferior to seeing large expanses of bins filled with food and that requiring him to leave his lunch companions to go to the cashier counter or an adjacent table provided him a “separate and different” experience than is provided to others, he also offered evidence that these methods of accommodation were never offered to him during his pre-site inspection visits.3
Contrary to Chipotle’s representations, Antoninetti did not limit his requested remedy with respect to the Chipotle Experience to “lowering the wall.”4 Antoninetti also suggested raising the floor in front of the food viewing area as a potential alternative measure. Antoninetti simply sought a Chipotle Experience that was equal to that provided to non-disabled customers.5

3 Chipotle’s Supp. ER I-7; Chipotle’s Supp. ER I-8.

4

SBA, at 5, 9.

5

Chipotle’s Supp. ER I-8, 17:12-16.

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III. Chipotle’s Motion for Summary Judgment. Chipotle filed a cross-motion for summary judgment in which it revealed for
the first time that it had adopted a written policy, more than five years after the restaurants were constructed, which Chipotle said simply memorialized the policies, practices and procedures in place during Antoninetti’s visits.6
Neither party addressed the issue of “equivalent facilitation” or the application of ADAAG Sec. 7.2(2)(iii) or ADAAG Sec. 2.2 to the Chipotle Experience in their cross-motions for summary judgment.7 Chipotle never relied upon ADAAG Sec. 7.2(2)(iii) because it contended, and continues to argue in its appeals, that it complied with ADAAG Secs. 7.2(2)(i) or (ii) simply by providing a lowered cashier counter.8 It was not until the ruling on the MSJs that the District sua sponte raised the issue of “equivalent facilitation.”9
In its MSJ, Chipotle also offered evidence that it had modified the restrooms, parking and entrances at the facilities following the filing of Antoninetti’s Complaint.

6

ER III-14, par. 3.

7

ER I-4, 15:14-25; Chipotle’s Supp. ER I-6, I-7, I-8; Antoninetti’s

Supplemental Excerpts of Record (hereinafter “SER”), X-38 / Clerk’s Record

(hereinafter “CR”) No. 94.

8

SBA, at 10.

9

ER I-4, 15:17-25.

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The modifications at the Encinitas restaurant were significant and included removing and replacing the concrete walkway next to the building, removing and replacing the curb, creating a new approach to the asphalt parking lot, re-striping the lot, adjusting the restroom door pressure, adding ADA-compliant handles on restroom stall doors and moving the toilet to 18 inches on center in the men’s restroom.10
The modifications made to the Pacific Beach restaurant after Antoninetti filed his Complaint were also significant and included removing and replacing the concrete walkway next to the building, re-striping the lot, re-setting the wheel stop, adjusting the restroom door pressure, installing new hinges on the stall doors, and adding ADA-compliant handles on the stall doors.11
Chipotle explicitly admitted that it made the modifications to the restrooms, parking and seating/dining tables as a result of Antoninetti’s lawsuit.12 IV. The District Denied Antoninetti Summary Judgment
on Some Claims Because Chipotle Modified the Facilities After Antoninetti Filed His Lawsuit and Antoninetti Did Not Seek Damages for All Barriers. In ruling on the parties’ MSJs, the District granted Antoninetti damages in relation to the parking at the facilities, although it found the ADA claims were moot
10 ER II-13, at 33, lines 6-25; ER III-18, at 2 through 7. 11 ER II-13, at 33, lines 6-25; ER III-18, at 8 and 9. 12 ER II-13, at 34, line 17 to 35, line 2.
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because of the modifications made by Chipotle.13 The District also determined that Antoninetti’s claims relating to the restrooms were moot, given the later modifications, and it denied him summary judgment because Antoninetti sought only injunctive relief in relation to the restrooms.14 The District refused to consider Antoninetti’s claims relating to seating/dining tables at the restaurants because it held that Antoninetti had not specifically asserted those claims in his Complaint.15 V. The District Specifically Identified Those Fees
For Which It Was Denying Antoninetti Recovery. In its initial ruling on Antoninetti’s fee motion, the District incorrectly determined that Antoninetti’s lawsuit had conferred no benefit on the public. The District later admitted its error, but ruled that it had not relied on the “public benefit” factor to deny fees to Antoninetti.16 Rather, the District “relied most heavily” on the “degree of success” obtained by Antoninetti in reducing his fee award.17 The District found that Antoninetti was entitled to recover fees for time spent litigating the issues of equivalent facilitation under the unwritten customer policy,
13 ER I-6, at 23-24. 14 ER I-6, at 22-23. 15 ER I-6, 24:24-28. 16 ER I-2, 4:11-23. 17 ER I-2, 4:19-21.
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parking lot violations, “related ADA claims that were necessarily intertwined” and damages. With respect to the fees for which it was denying Antoninetti recovery, the District identified only “fees for time spent litigating the injunction to lower the 44inch wall or the claim that the written policy did not provide equivalent facilitation.”18
In reaching the value of the final award, the District determined the lodestar figure of $546,151.32 and then reduced Antoninetti’s fees by 75 percent because of Antoninetti’s “limited success” and because of purported “block billing.”19
Importantly, the District did not reduce Antoninetti’s fee award because of a finding that his attorney’s requested hourly rate was unreasonable or that any of the fees were not necessarily and reasonably incurred. Nor did the District hold that any of the requested fees were duplicative or redundant.20 In addition, Chipotle never contested the reasonableness of Antoninetti’s attorney’s hourly rate nor did it contest that the fees were necessarily and reasonably incurred.21
18 ER I-2, 6:19-22; ER I-3, 7:12-22. 19 ER II-2, 7:27-8:19. 20 ER I-2; ER I-3; ER I-4. 21 ER VIII-33.
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STATEMENT OF FACTS Antoninetti incorporates herein the Statement of Facts set forth in his Opening Brief. In addition, Antoninetti states as follows: I. Chipotle Has Never Admitted That it Violated the ADA During Antoninetti’s Visits to the Restaurants. In its MSJ, at trial and in its appeals, Chipotle contended that it had not violated Antoninetti’s rights under the ADA during any of his visits. It asserted and continues to assert that it had satisfied the ADA simply by providing a lowered cashier counter.22 II. The Amended Pretrial Order and the District’s Ruling on the MSJs Framed the Issues for Trial and Did Not Include the Issue of Whether the Written Policy Could Provide Equivalent Facilitation Even if the Unwritten Policy Was Defective. The issues of fact and law that were to be tried in the underlying case were set forth in the Amended Pretrial Order at Sections VI and IX.23 The paramount issues in dispute, as identified in the Amended Pretrial Order, were the nature of the Chipotle Experience, whether the nature and quality of Chipotle’s “methods of accommodation” provided disabled customers with “equivalent facilitation” and
22 SER X–38; ER IV-25; ER V-26; ER VI-27; ER VII-28; Chipotle’s Second Brief on Appeal in Ninth Circuit Case Nos. 08-55867, 08-55946.
23 ER IV-22. 9

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whether simply receiving a burrito was enough, even if a disabled customer could not
see the ingredients or the making of his burrito.
The Amended Pretrial Order was premised on the District’s ruling on the
parties’ Motions for Summary Judgment in which the District identified only two
triable issues that precluded summary judgment for Antoninetti on his Chipotle
Experience claims - (1) whether the nature and quality of the methods of
accommodation offered by Chipotle provided equivalent facilitation, and (2) whether
it might be enough that customers in wheelchairs could still place orders and receive
entrees despite their inability to see the food viewing area:
“A reasonable jury might accept Defendant’s statements that handing sample cups to customers or displaying ingredients on an adjacent table provides equivalent access to Defendant’s restaurants. A jury might find, for example, that because customers in wheelchairs are still able to place orders and purchase entrees regardless of the wall in front of the food-preparation counter, Defendant’s Policy provides equivalent facilitation. On the other hand, a reasonable jury might accept Plaintiff’s statements that placing samples in food cups or displaying them on an adjacent table does not provide equivalent access. A jury might find that the food samples do not enable customers in wheelchairs to judge the freshness of the food or receive fast service to the same degree as standing customers. The Court thus FINDS that this fact-intensive issue presents material questions of fact and renders summary judgment on the question of equivalent facilitation inappropriate.”24
24 ER I-6, 17:13-18:2. 10

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Neither the District’s MSJ ruling nor the Amended Pretrial Order raised an issue as to whether the written policy could constitute equivalent facilitation even if the unwritten policy was defective because, prior to trial, Chipotle contended that the policies were one and the same. One simply formalized and memorialized the other. III. Throughout This Case The Parties Referred to The “Policy of
Providing Methods of Accommodation” as “The Policy” and Did Not Distinguish Between the Documented Policy and the Informal Policy. Not only did the District fail to make any distinction between the written and the unwritten policies in its ruling on the MSJs, the Parties made no such distinction in the Amended Pretrial Order. The Parties used the term “the Policy” to refer simply to the “policy of providing methods of accommodation.” (“On February 23, 2007, Chipotle implemented a nationwide ‘Customers with Disabilities’ policy that sets forth in writing that which Chipotle has always done informally - provide excellent customer service to all its customers, including customers with disabilities (the “Policy”).)25 In fact, the Parties used the term “the Policy” to refer to events which predated the written policy. (“The Policy was carried out in Plaintiff’s case. For example, when Plaintiff...visited the Encinitas location in February 2005, a Chipotle
25 ER IV-22, 11:3-6 . 11

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worker asked him what ingredients he wanted in his burrito.”)26 Nowhere in the Amended Pretrial Order or in their MSJs did the Parties distinguish between the effectiveness of the written policy versus the unwritten policy.
Throughout the underlying case, Antoninetti never distinguished between written and unwritten policies in either his legal or his factual arguments because, initially, he had been provided no accommodations at all and was unaware of any “policy.” A year after filing his lawsuit, during the site inspections, he was provided minimal accommodations which were purportedly offered pursuant to Chipotle’s customer service “policy” of providing methods of accommodations. Antoninetti contended these accommodations failed to provide an equivalent Chipotle Experience to people in wheelchairs.27
After learning of the written policy from Chipotle’s MSJ, Antoninetti argued that Chipotle’s policies, “whether formal or informal, written or unwritten, fail to provide the full and equal enjoyment of benefits” to people with disabilities.28
In his Motion for Reconsideration of the MSJ rulings, Antoninetti defined Chipotle’s “policy of handing sample cup to customers or displaying ingredients on
26 ER IV-22, 12:16-19. 27 Chipotle’s Supp. ER I-8, 15:9-20. 28 Chipotle’s Supp. ER I-7, 22:11-23:11.
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an adjacent table” as the “Policy” and argued that it did not constitute equivalent facilitation under ADAAG Sec. 2.2.29
In his Trial Brief, Antoninetti again defined Chipotle’s policy of “accommodating people with disabilities” as “the Policy.”30 He contended that he was entitled to damages because the Policy “was not fully implemented with respect to his visits,” which pre-dated the written policy. He also contended that during his visits he was denied the opportunity to see food ingredients and the making of his entree “despite the existence of the Policy.”31 He argued that the “ongoing Policy coupled with Plaintiff’s past injury” established the potential for future injury.32 IV. The District Distinguished Between the Unwritten
and the Written Policies Only After the Trial. Contrary to its earlier declaration in support of its MSJ that the written policy was simply a memorialization of the unwritten, informal policy,33 Chipotle’s witnesses claimed for the first time at trial that the written policy was different than the informal policy because it imposed “two new requirements” that were “written
29 SER X-39 / CR 135-2, 2:14-16, 4:12-8:17. 30 SER X-40 / CR 210, 2:26-3:5. 31 SER X-40 / CR 210, 8:14-20. 32 SER X-40 / CR 210, 8:23-24. 33 ER III-14, par. 3 of Sedillo Declaration.
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down.”34 Following trial, the District adopted Chipotle’s Proposed Findings of Fact and Conclusions of Law virtually wholesale, including the reference to the “two new requirements”35 and Chipotle’s representation that the new requirements were “written down” or “set forth plainly” in the written policy.36 For the first time, the District distinguished between the forms of the policies and found that the unwritten policy did not provide equivalent facilitation because it was “incapable of uniform enforcement.”37
The District made this novel distinction between the policies despite the fact that neither party, either in their MSJs or in the Amended Pretrial Order, had raised the issue of whether the written policy might constitute equivalent facilitation even if the unwritten policy was defective.38
34 ER VI-27, 585:16-24. 35 Compare District’s Findings at ER I-5, CL 16 with Chipotle’s Proposed Findings at ER VIII-30, CL 27. 36 ER I-5, CL 16, contradicted by actual language of written policy, found at ER I-5, Fact 110. 37 ER I-5, 31:19-21. 38 ER I-4, 15:17-25; ER IV-22.
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V. Antoninetti’s Attorney’s Fees Were Incurred in Relation to His Chipotle Experience Claim Which Did Not Distinguish Between Written and Unwritten Policies. The factual investigation in this case was concluded by the close of discovery
on January 31, 2007. Antoninetti was not made aware of the written policy until April 16, 2007. As of that date, Antoninetti had incurred $229,937.52 in attorney’s fees.39 These fees, then, could only have been incurred in relation to Antoninetti’s visits to the restaurants when the unwritten policy was in effect.
Despite the fact that, prior to trial, neither the District nor the Parties distinguished between the written and unwritten policies, the District made such a distinction in its order on Antoninetti’s fee motion. The District then denied fees to Antoninetti, in part, on the finding that Antoninetti claimed “that he incurred no fees or costs in relation to his unsuccessful claim for injunctive relief, since he did not believe he had a burden of proof on this issue at trial.”40 (Emphasis added.)
In fact, Antoninetti never claimed that he incurred no fees or costs in relation to “injunctive relief.” To the contrary, he acknowledged that he had incurred fees in relation to the remedy of injunctive relief, but he argued that those fees were based
39 See, Antoninetti’s Opening Brief at 4 and 25; ER I-4, 6:24-7:4. 40 ER I-2, 7:7-9.
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upon the same factual investigation necessary to support the remedy of damages.41 Antoninetti merely asserted that the fees incurred in relation to both remedies were inseparable since they involved the same legal and factual investigation.
He then argued that he did not have the burden of proving the additional facts that were erroneously required by the District to support the remedy of injunctive relief (e.g., the reason for construction of the wall and the cost of removing the wall) and he stated that he incurred no fees in relation to these limited factual issues because he did not believe he had to prove these facts to obtain injunctive relief.42
Antoninetti identified, in his Reply to the Amended Bill of Costs, 12 hours of attorney’s fees that were related to non-counter issues or solely to the written policy (e.g. cross-examination at trial) and he deducted these from his fee claim.43
At trial, Antoninetti offered evidence on the triable issues as they were identified by the District and defined in the Amended Pretrial Order - the nature of the Chipotle Experience, the nature and quality of Chipotle’s methods of accommodation and whether those methods of accommodation provided wheelchair users with an experience comparable to that provided to standing customers.
41 ER IX-35 at 8 (Doc. 274-3, 3:4-9). 42 ER IX-35 at 8 (Doc. 274-3, 3:10-14). 43 ER IX-36, 10:20-24.
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Antoninetti offered no evidence in relation to the written policy because he consistently argued that Chipotle’s methods of accommodation failed to provide full and equal access. His counsel did engage in limited cross-examination of defense witnesses who raised the issue of the written policy. These hours were deducted from the fee request.44
All of Antoninetti attorney’s fees, litigation expenses and costs were incurred in support of his claim that he was denied access to the Chipotle Experience during his numerous visits to the restaurants. The same core facts supported his requested remedy of injunctive relief under the ADA and his requested remedy of damages under the CDPA, which was premised on a violation of the ADA. VI. Antoninetti Proved the Reasonableness of the Total Hours
Incurred By, and the Hourly Rate of, His Counsel and the District Did Not Reduce Fees on Either of These Bases. In his fee motion, Antoninetti proved the reasonableness of his attorney’s hourly rate. He offered declarations from several other attorneys establishing that $375.00 per hour was a very reasonable fee based upon his attorney’s significant experience and expertise.45 Antoninetti offered proof, for example, that his attorney has not only significant practical experience, but she devotes significant amounts of
44 ER IV-25; ER V-26; ER VI-27; ER VII-28; ER IX-36. 45 SER X-41 / CR 241-4.
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her time educating others about disability rights laws and her skill and experience has been recognized by local bar associations and the California State Bar.
He proved that she has conducted disability law seminars since 1996. She was primarily responsible for the preparation, coordination and presentation of seminars at each of the Annual Meetings for the State Bar of California from 1996 to 2001, as well as at the Semi-Annual State Bar Meeting in San Francisco on April 1, 2000. In the past, she has made ADA-related presentations to members of the Regional Center of San Diego, the Equal Employment Opportunity Commission and other disabilityrelated organizations.
Antoninetti offered proof that his attorney was a member of the State Bar of California’s Standing Committee on Legal Professionals with Disabilities (“CLPD”) from 1996 to 2001. She served as Vice Chair of that Committee from 1997 to 2000 and was appointed Chair of the Committee for the 2000-2001 term. She also served as the liaison for CLPD to the California State Judicial Committee for the 1997 term. Antoninetti’s attorney coordinated and conducted disability rights seminars in conjunction with the San Diego County Bar Association and the Ventura County Bar Association, for which attendees received MCLE credit. She was asked to participate
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in a disability rights seminar for members of the San Diego Chamber of Commerce which was postponed for lack of interest by Chamber members.46
Antoninetti also proved and argued in his fee motion that all of the fees, expenses and costs incurred were necessary and reasonable.47 Chipotle never argued in opposition to the fee motion, and the District never ruled, that Antoninetti’s total claimed fees were unreasonable or that his counsel’s requested hourly rate was unreasonable.48 VII. Antoninetti Provided Additional Evidence Relating to
the Purported “Block-Billed” Time Entries. In response to Chipotle’s objections to 85 purported “block billed” entries, Antoninetti addressed each of the alleged instances of “block billing” in his Reply filed on June 2, 2007. Antoninetti either allocated time for each task or explained why the “separate tasks” were not separable.49
46 ER VIII-32. 47 SER X-41 / CR 241-2. 48 ER I-2; ER 1-3; ER VIII-33. 49 ER VIII-34; ER IX-35 at 10.
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VIII. Litigating this Case Prevented Antoninetti’s Counsel From Taking Other Cases, All to Her Financial Detriment. Antoninetti’s counsel invested 1,425.80 hours of time in this case. In her
opinion, Chipotle attempted to force Antoninetti to settle this case by requiring his counsel to devote the vast majority of her time to this lawsuit, to her financial detriment. In fact, prosecuting this case had been significantly detrimental to Antoninetti’s counsel financially. She was unable to accept other cases for which she could have received fees, causing a significant reduction in her income. She was fortunate to have sufficient funds from the sale of her home so that she could maintain her practice, including the prosecution of the related class actions against Chipotle.50
Chipotle hired three different firms and more than 11 attorneys to defend this action.51 Much of the time invested by Antoninetti’s counsel in this case was devoted to: a) motions to compel Chipotle to produce documents which it failed to produce in response to Antoninetti’s discovery requests; b) responding to motions to dismiss and motions to consolidate, which were denied, and for protective orders filed by Chipotle which were later violated by Chipotle; c) responding to and negotiating a confidentiality agreement requested by Chipotle, which was later violated by
50 ER VIII-32, par. 13. 51 ER IX-37.
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Chipotle and then revoked; d) responding to numerous letters and communications from Chipotle’s numerous counsel, as much as 10 or more per day; e) preparing for and attending depositions of Chipotle’s witnesses who insisted on being deposed in Denver, Colorado.52
SUMMARY OF ARGUMENT Antoninetti incurred fees in this case in excess of $500,000.00, which represents a significant amount of time invested by his attorney. Chipotle never argued that any of the fees were unnecessary, duplicative or unreasonably incurred. Antoninetti seeks recovery of all of his attorney’s fees, litigation expenses and costs because they were incurred in relation to his claim that Chipotle violated the ADA during his visits, giving rise to his claim for damages. Fees, expenses and costs were incurred in litigating the triable issues of fact related to the nature of the Chipotle Experience, the nature and quality of Chipotle’s methods of accommodation and whether those methods of accommodation provided wheelchair users with an experience comparable to that provided to standing customers. The District, in denying Antoninetti fees, litigation expenses and costs, wrongfully split Antoninetti’s claim involving the Chipotle Experience into two “separate” claims: 1) the written policy claim and 2) the unwritten policy claim.
52 ER VIII-32, par. 14; ER IX-35, at 43 to 132. 21

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Antoninetti succeeded in proving that Chipotle violated the ADA because he was denied the Chipotle Experience during each of his visits to the restaurants. Antoninetti’s lawsuit was necessary because Chipotle contended, and continues to assert, that it complied with the ADA simply by providing a lowered cashier counter adjacent to the food viewing areas at its restaurants.
The District correctly held that ADAAG Secs. 7.2(2)(i) and (ii) do not apply to the Chipotle Experience, but it erred in applying ADAAG Sec. 7.2(2)(iii) and holding that public accommodations, like Chipotle, can build an inaccessible element or facility, as long as they adopt policies of providing methods of accommodation to overcome the built barriers. The District likewise erred in imposing improper burdens of proof on Antoninetti and in denying him damages for “litigation-related visits” despite the denial of access during those visits and in denying him injunctive and declaratory relief. The District further erred in failing to make important findings of fact where the facts were undisputed and were necessary to fully understand the Chipotle Experience. It also erred in rejecting the Parties’ Stipulation that Antoninetti wanted to return to the facility.
Antoninetti is entitled to all of his fees, costs and expenses, even if the District’s ruling on the merits is not reversed, because his lawsuit established that Chipotle violated the ADA during his visits and the lawsuit achieved a significant
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benefit for class members in the related actions. The legal rulings in Antoninetti’s lawsuit, as they currently stand, support the class members’ claims for damages for all visits made while the unwritten policy was in effect.
If the District’s rulings are reversed, Antoninetti will have received all of the damages sought, declaratory and injunctive relief, and he will have achieved even greater benefits for the disabled public because of the clarification of novel legal issues and the expansion of the class members’ claims for damages.
ARGUMENT I. Standards of Review.
Antoninetti incorporates the standards of review set forth in his Opening Brief and identifies the following additional standards:
Whether damages are “de minimus” or “nominal” is a question of law, which is reviewed de novo. Barrios v. California Interscholastic Federation, 277 F.3d 1128, 1135 (9th Cir. 2002). Failure to consider evidence is an abuse of discretion. Jones v. Blanas, 393 F.3d 918, 936-937 (9th Cir. 2004); cert. denied by U.S. Supreme Court at County of Sacramento v. Jones, 546 U.S. 820, 126 S. Ct. 351, 163 L. Ed. 2d 61, 2005 U.S. LEXIS 5624 (2005).
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II. Standards for Determining Reasonable Attorney’s Fees. Antoninetti accepts Chipotle’s standards and adds: In a motion for attorney’s
fees, where the underlying action was based on violations of the Unruh Act or the CDPA, “a plaintiff will be considered a prevailing party where the lawsuit was the catalyst motivating the defendants to modify their behavior or the plaintiff achieved the primary relief sought.” Barrios, 277 F.3d at 1137 (9th Cir. 2002), citing Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 266 Cal. Rptr. 804, 814 (Ct. App. 1990). III. The District’s Conclusions Were Correct Relative to the Unwritten
Policy and the Inapplicability of ADAAG Sections 7.2(2)(i) and (ii). While Antoninetti disputes that ADAAG Section 7.2 is applicable to the Chipotle Experience and that policies of providing methods of accommodation can constitute “equivalent facilitation, in new construction, the conclusions reached by the District - that ADAAG Secs. 7.2(2)(i) and (ii) do not apply to the case and that Chipotle violated the ADA during Antoninetti’s visits to the restaurants - were correct. A. The District Correctly Ruled that ADAAG Sections 7.2(2)(i)
and (ii) Do Not Apply to the Food Viewing Areas. As noted in Antoninetti’s Opening Brief, the District correctly held that ADAAG § 7.2(2)(i) did not apply to this case because the lowered transaction counter was not a “lowered portion” of the food preparation area since the two areas
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serve different functions. The District correctly held that customers in wheelchairs “cannot receive full and equal access to Defendant’s restaurants by utilizing the transaction counter alone.”53 The District also correctly held that the transaction counter does not qualify as an “auxiliary counter” under Sec. 7.2(2)(ii) because the counter, alone, does not provide customers in wheelchairs with full and equal access to Chipotle’s restaurants.54
The District’s ruling is correct because Chipotle offered no evidence in support of its MSJ or at trial that a person in a wheelchair who is simply sitting at the cashier counter or at an adjacent dining table can see any of the food on display or the making of his or her burrito.55
Moreover, the District’s ruling is based on common sense. Obviously, a person in a wheelchair located at the cashier counter is physically unable to see behind the offending wall to any of the food ingredients along the 12-foot long display. If a wheelchair user is positioned so that he is facing the cashier counter, his eyes would be at least as far away from the plane of the wall as the space taken up by

53 54 55
VII-29.

ER I-6, 14:22-15:2. ER I-6, 16:5-13. ER III-14 to ER III-20; ER IV-25; ER V-26; E VI-27; ER VII-28; ER
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his footrest and wheelchair seat. Seated in his wheelchair, his eyes would be in the ordering lane and he would be physically unable to see behind the wall.
If a wheelchair user is positioned at the cashier counter so that his armrest is next to the counter, his eyes would still be in the ordering lane, separated from the plane of the wall by at least half the width of his wheelchair and the space necessary to be able to grab and roll his wheel. Chipotle offered no evidence, at any time, of the line of sight of a wheelchair user from this vantage point.
Since lowered cashier counters or adjacent tables, by themselves, offer no access to the visual and sensory aspects of the Chipotle Experience, the District correctly ruled that Sections 7.2(2)(i) and (ii) do not apply to the food viewing areas.
The District did not err in this ruling and did not err in finding that Antoninetti was the prevailing party and entitled to fees.
Further, even if the District is reversed on the issue of the food viewing area in favor of Chipotle, Antoninetti is entitled to fees in relation to his parking lot claims. The District acknowledged that Antoninetti conferred a benefit on the public with respect to the substantial parking modifications that were made as a result of Antoninetti’s lawsuit, but wrongly failed to rely on the “public benefit” factor in Antoninetti’s fee award.56 The District erred in refusing to consider this public
56 ER I-2, 4:11-23. 26

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benefit in its award of fees. The modifications to the parking lots were substantial and, as a matter of law, conferred a significant benefit on the public.57
B. The District Correctly Ruled that the Unwritten Policy Did Not Provide Equivalent Facilitation.
The District correctly ruled that Chipotle violated the ADA during Antoninetti’s visits because the unwritten policy allowed for subjective interpretation and was not capable of uniform enforcement.58 The unrefuted evidence before the District proved that Chipotle employees never affirmatively offered accommodations to Antoninetti and that, on at least five occasions, Antoninetti had no opportunity to see any food ingredients at all. The undisputed evidence also proved that Antoninetti was never offered the opportunity to see his burrito assembled in front of him, denying him the ability to customize his burrito like other standing customers.59 This unrefuted evidence supported the District’s determination that the unwritten policy was defective.
The appeals court, in addition, may affirm a district court’s judgment on any ground supported by the record, whether or not the decision of the district court relied
57 ER II-13, at 33, lines 6-25; ER III-18, at 2 through 9. 58 ER I-5, CL 12. 59 ER II-11, pars. 13, 16, 17 19, 21, 22, 23.
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on the same grounds or reasoning the appeals court adopts. Lentini v. California Center for the Arts, 370 F.3d 837, 850 (9th Cir. 2004).
Here, although the District reached the correct conclusion that Chipotle was in violation of the ADA during Antoninetti’s visits, the District erred in holding, in the first instance, that policies of providing methods of accommodation to overcome built barriers in new construction are “alternative designs and technologies” as defined by ADAAG Sec. 2.2.60
In addition, (assuming arguendo that the adoption of policies to overcome built barriers can constitute equivalent facilitation), the District erred when it declined to rule that the unwritten policy (and the written policy) failed to provide equivalent facilitation because the methods of accommodation offered by Chipotle provided different and separate benefits to wheelchair users that were not substantially equivalent to or better than those provided to non-disabled customers and, thus, as a matter of law, were not equivalent.
Accordingly, despite these legal errors by the District, it did not err in holding that Chipotle violated the ADA during Antoninetti’s visits to the restaurants.
60 See Antoninetti’s Opening Brief in Ninth Circuit Case Nos. 09-55327, 09-55425, filed on June 17, 2009, at 29-34.
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IV. Even If The District is Affirmed on the Merits of The Case, The District’s Award of Fees Should Not Be Reduced. Even if the District’s ruling on the merits of the case is affirmed, Antoninetti’s
fee award should not be reduced, but should be increased, because his lawsuit achieved other tangible results that significantly benefitted the disabled community, including obtaining a ruling which has a favorable collateral effect for other disabled persons and his lawsuit achieved significant physical modifications to the restaurants that resulted in increased access for people with disabilities.
A. The District Abused Its Discretion in Failing to Award Antoninetti More Fees Because Antoninetti’s Damages were Not “Nominal” or “De Minimus” and the District Failed to Consider the Other Tangible Benefits of Antoninetti’s Suit. i. Antoninetti’s Damages Were Not Nominal or “De Minimus.”
Chipotle argues that Antoninetti received only “nominal damages” under Cal. Civ. Code Sec. 54.3, the California Disabled Persons Act (“CDPA”), and the District should have awarded Antoninetti fewer or no fees.61 While the ADA does not allow the recovery of damages, California Civil Code62 Sections 52 and 54.3 provide damages for violations of the ADA even in the absence of actual damages. Molski, v. M.J. Cable, 481 F.3d 724, 7331(9th Cir. 2007).
61 SBA, at pgs. 26-35. 62 Hereafter “Cal. Civ. Code.”
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Chipotle’s depiction of Antoninetti’s damages as “nominal damages” is incorrect. The penalty nature of Antoninetti’s damages, as a matter of law, disqualify the damages as being characterized as “de minimus.” As distinguished from punitive and compensatory damages, nominal damages are awarded to vindicate rights, the infringement of which has not caused actual, provable injury.” Cummings v. Connell, 402 F.3d 936, 942 (9th Cir. 2005). “Nominal damages, as the term implies, are in name only and customarily are defined as a mere token or ‘trifling.’ (Citations omitted.).” Cummings, 402 F.3d at 943.
The statutory minimum damages provided by the CDPA are “penalties for violation of the specific disabled person access statutes...” Munson v. Del Taco, 46 Cal. 4th 661, 675 (2009). The statutory minimum damages awarded to Antoninetti were intended to redress the violation of Antoninetti’s rights under the ADA, despite the likelihood that such a violation would not give rise to actual damages.
The California Legislature provided minimum statutory damages for denials of access, even in the absence of actual damages, and increased the statutory minimum amount several times specifically to “increase deterrence against civil rights violations which are profitable to businesses but which cause relatively little individual damages.” Munson, 46 Cal. 4th at 674, fn. 9. Because statutory minimum damages are, by their nature, penalties, they cannot be “de minimus.”
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In addition, in Farrar v. Hobby, 506 U.S. 103, 115-116, 113 S.Ct. 556, 575 (1992), the seminal case addressing the issue of “nominal damages,” the Court held that “when a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all. Farrar, 506 U.S. at 115.
In the instant case, the District correctly ruled that Antoninetti proved that Chipotle violated the ADA during all of Antoninetti’s visits to the restaurants. These ADA violations gave rise to Antoninetti’s claims for damages under the CDPA. The instant case is distinguishable from Farrar and its progeny, then, because Antoninetti satisfied all elements of his claim for damages.
With respect to the amount of Antoninetti’s recovery, Antoninetti was required to elect between Cal. Civ. Code Secs. 54.3 and 52.63 At trial, Antoninetti sought the minimum statutory damages allowed under Cal. Civ. Code Sec. 54.3 for all visits he had made to the restaurants and for the visit he would have made “tomorrow” if the facilities were accessible. He sought $1,000.00 for each visit, and was awarded $5,000.00. If the District had not committed legal error by denying Antoninetti damages for three “litigation-related” visits, and if it had not committed clear factual error and legal error by finding that Antoninetti did not intend to return to the
63 ER I-5, fn. 1. 31

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restaurants, Antoninetti would and should have recovered all of his requested damages.
ii. Antoninetti’s Lawsuit Achieved Other Tangible Benefits Even if The District’s Ruling is Affirmed.
In addition to imposing penalties against Chipotle, Antoninetti’s lawsuit has already achieved other tangible benefits for the public. The District’s conclusion otherwise was clearly erroneous.
“Benefit to the public” is not limited to affecting a change in policy or deterring widespread civil rights violations, as urged by Chipotle.64 Rather, lawsuits proving violations of the ADA can provide important benefits that “are difficult to quantify, such as clarifying a certain area of law, forcing changes in corporate policies affecting thousands of individuals, or educating the public that the law requires them to accommodate persons with disabilities. (Citation omitted.) These are more than merely “technical” victories...” National Federation of the Blind v. Target Corp., 2009 U.S. Dist. LEXIS 67139 (August 3, 2009). It is well-settled precedent within this Circuit that proving a violation of the ADA is not merely a “technical victory.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115 (9th Cir. 2000).
Tangible benefits will also include establishing a finding of fact with potential collateral estoppel effects. Wilcox v. City of Reno, 42 F.3d 550, 553 (9th Cir. 1994).
64 SAB, at 33. 32

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A federal court decision has preclusive effect where (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding. Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000).
In cases where the plaintiff has achieved other tangible benefits, an award of attorney's fees that is disproportionate to the actual damages may be appropriate. McCown v. City of Fontana, 565 F.3d 1097, 1105 (9th Cir. 2009).
In the instant case, Antoninetti contended that Chipotle violated his rights under the ADA during his many visits to the restaurants. Chipotle, on the other hand, contended that it met its obligations under the ADA simply by providing a lowered cashier counter. Antoninetti’s lawsuit, at a minimum, clarified the law as it applied to the Chipotle Experience and confirmed that, for at least five years, Chipotle denied customers with disabilities access to the Chipotle Experience.
In establishing a finding of fact that Chipotle violated the ADA during his visits, Antoninetti obtained a judgment that benefitted not only him, but all named plaintiffs and class members in the related actions since the ruling, even if it stands, has a collateral estoppel effect against Chipotle in the related class actions. That is,
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the issue of whether Chipotle violated the ADA for five years, until the adoption of its written policy, is settled and entitles class members to recover damages for visits occurring for at least two years before the filing of the related class actions.
Further, even though the District wrongly rejected Antoninetti’s contention that policies of providing methods of accommodation, whether written or unwritten, are not “equivalent facilitation” in new construction, Antoninetti’s lawsuit also achieved success by requiring that Chipotle modify its written policy to include the “two new requirements” that the District wrongly determined were “plainly set forth” and that Chipotle’s witnesses incorrectly stated were “written down.” 65
While Chipotle contends that the District “simply made factual findings and conclusions about what Chipotle was already doing under the policy,”66 the record is abundantly clear that the District distinguished the written policy from the unwritten policy because it believed the written policy “set forth plainly” the “two new requirements.”67 The District apparently failed to read the written policy and, instead, accepted Chipotle’s representation that it included language imposing affirmative obligations on managers “rather than crew members.”
65 ER VI-27, 585:16-24. 66 SAB, at 32. 67 ER I-5, CL 16.
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Since the District found the unwritten policy was “incapable of uniform enforcement,” it surely determined the “two new requirements” would likewise be incapable of uniform enforcement, unless they were actually written down. Since they are not included in the written policy, the only conclusion that can be reached is that the District either mistakenly believed they were in the written policy or that it was ordering that they be included in the policy.
The written policy does not include the “two new requirements.” Thus, Antoninetti’s lawsuit, if the District is affirmed, achieved other tangible benefits by requiring that the written policy be modified to include the “two new requirements.”
Finally, Antoninetti’s lawsuit achieved significant success and benefits for the disabled public because Chipotle modified its parking, restrooms and seating as a result of Antoninetti’s lawsuit.
iii. If the District is Reversed, Antoninetti’s Lawsuit Will Have Achieved Even Greater Benefits For The Disabled Community.
If Antoninetti’s appeal on the merits is successful, Antoninetti will have achieved even greater success by clarifying numerous legal issues of first impression in this Circuit including: (1) whether equivalent facilitation, as defined by ADAAG Sec. 2.2, does not include the adoption of policies to overcome physical barriers in new construction; (2) whether, in new construction cases, plaintiffs seeking injunctive
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relief are not required to prove that the cost of removing a barrier is outweighed by the benefit of the removal; (3) whether damages must be awarded for all denials of access, even those occurring during litigation-related site inspections or other events; (4) whether ADAAG Sec. 4.33.3 applies to visual elements of “assembly areas” regardless of whether the assembly areas have fixed seating; (5) whether, in determining if a design or technology constitutes “equivalent facilitation,” reference must be made to the general anti-discrimination provisions of the ADA which provide for full and equal access to privileges, advantages, accommodations, as well as to goods and services; (6) whether a public accommodation fails to satisfy its “heavy” burden of proving that it provides equivalent facilitation simply by showing that it has received no complaints; and (7) whether, in the absence of a directly applicable ADAAG Standard, the general anti-discrimination provisions of the ADA are applied.
The resolution of each of these issues will have a far-reaching impact on other disability access cases, including the related class action cases. The District erred in failing to recognize the other tangible benefits produced by its initial ruling. It also erred in reaching legal conclusions, the reversal of which will substantially benefit the disabled public.
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B. The District Did Not Abuse its Discretion in Awarding Fees That Were Not Proportional to Antoninetti’s Monetary Recovery.
The District correctly held that the amount of fees awarded do not have to be proportional to the amount the court awarded to the plaintiff at trial. City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686 (1986). Moreover, the Supreme Court has recognized that part of an attorney’s calculus of the amount of time reasonably necessary for a case is the vigor which the opponents bring to the dispute. City of Riverside, 477 U.S. at 580, n.11 (1986) (plurality opinion) (“‘The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.’”) (quoting Copeland v. Marshall, 641 F.2d 880, 904 (D.C. Cir. 1980)).
In the instant case, much of Antoninetti’s attorney’s fees were incurred because of the vigor and tenacity with which Chipotle litigated this case. Chipotle hired three different firms and more than 11 attorneys to defend this action.68 Much of the time invested by Antoninetti’s counsel in this case was devoted to: a) motions to compel Chipotle to produce documents which it failed to produce in response to Antoninetti’s discovery requests; b) responding to Chipotle’s motions to dismiss and motions to consolidate, which were denied, and for protective orders filed by Chipotle; c) responding to and negotiating a confidentiality agreement requested by Chipotle,
68 ER IX-37. 37

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which was later violated by Chipotle and then revoked; d) responding to numerous letters and communications from Chipotle’s numerous counsel, as much as 10 or more per day; e) preparing for and attending depositions of Chipotle’s witnesses who insisted on being deposed in Denver, Colorado.69
Antoninetti should not be entitled to a windfall in attorney’s fees, but Chipotle should not be allowed to vigorously litigate this action without bearing the consequence of its vigor and tenacity. Antoninetti was forced to take this case to trial because Chipotle never admitted that it had violated the ADA during Antoninetti’s visits. It continues to believe that a lowered cashier counter is all it is required to provide Antoninetti and other wheelchair users.
Antoninetti had no choice but to continue to litigate this case because the issue of whether Chipotle violated the ADA was central not just to this case, but to Antoninetti’s claims in the related class action and to the claims of other class representatives and class members. Absent a finding on the issue of liability for damages during Antoninetti’s visits, the same issue would necessarily have to be litigated in the related cases.
69 ER VIII-32, par. 14; ER IX-35, at 43 to 132. 38

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V. The District Abused Its Discretion in Failing to Award Antoninetti More Fees. A. The District Erred in Its Judgment on the Merits of the Case and Abused Its Discretion in Not Awarding Antoninetti All of His Fees, Litigation Expenses and Costs. Antoninetti’s Opening Brief in this appeal and his related appeal, Ninth Circuit
Case No. 08-55867, establish that the District committed clear factual errors and legal errors in denying Antoninetti injunctive relief, declaratory relief and additional damages in the underlying action. Those errors were the basis for the District’s improper denial of 75% of Antoninetti’s fees and denial of his costs.
Further, contrary to Chipotle’s assertion, if this Court rules in Antoninetti’s favor on appeal, no remand for determination of the amount of fees reasonably incurred by Antoninetti is required.
Once an applicant submits evidence of the appropriate hours spent on litigation, “the party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). In the absence of opposing evidence, the proposed hourly rate is deemed reasonable. Cortes v. Metro. Life Ins. Co., 380 F. Supp. 2d 1125, 1129 (C.D. Cal. 2005).
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Chipotle did not challenge the reasonableness of Antoninetti’s counsel’s hourly rate in its Opposition to Antoninetti’s fee motion, nor did the District make a finding that the hourly rate was unreasonable. Likewise, Chipotle did not challenge the reasonableness of Antoninetti’s overall fees or that any of the fees were unreasonably incurred, unnecessary, duplicative or inefficient, nor did the District make any such findings.70
Instead, Chipotle challenged Antoninetti’s fee recovery based upon his “limited success” and it provided a “list of the specific billing entries to which Chipotle objects” because of purported “block-billing.” The District reduced Antoninetti’s fees and denied him costs solely on these two bases.71 If the District is reversed in Antoninetti’s favor, he should be awarded all of his fees related to the “unsuccessful” claims ,which were the basis for the reduction in fees and expenses and the denial of costs, and all fees related to the “block billed” entries, which Antoninetti sufficiently addressed.
Chipotle also argues that, if Antoninetti’s appeal is successful, this Court should remand the case to the District with instructions to deny Antoninetti fees for work performed on issues relating to ADAAG Sec. 4.33.3 and the general anti-
70 ER VIII-33; ER I-2; I-3. 71 ER I-3, 8:8-19.
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discrimination provisions of the ADA, if these legal arguments are not the basis for the reversal.72
Remand for a reduction of fees on that basis is inappropriate. “Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not sufficient reason for reducing a fee. The result is what matters.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
If this Court reverses the District and remands the case with instructions to the District to order an injunction, award additional damages and/or to award Antoninetti declaratory relief, Antoninetti will have been entirely successful, regardless of the legal reasoning relied upon by the District.
In addition, Antoninetti clearly identified the fees, expenses and costs for which he was seeking recovery in his appeal - the 75% of fees and litigation expenses and the costs denied him by the District.73 Antoninetti argued in his Opening Brief that he was entitled to recoup these fees because they were incurred in relation to his “successful” claims and, further, but for the District’s legal and factual errors, Antoninetti would have been granted injunctive relief, declaratory relief and
72 SBA, at 42, fn. 78. 73 Antoninetti’s Opening Brief, at 26, 27, 53, 59-60, 62.
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additional damages, obviating any perceived need to allocate fees between “successful” and “unsuccessful” claims.
Antoninetti also argued that the District erred in finding that Antoninetti’s claims could be separated between “unwritten policy” claims and “written policy” claims, since the discovery, investigation and analysis was the same with respect to these purportedly “distinct” claims.74
B. The District Abused Its Discretion by Refusing to Consider the Significant Public Benefit or Other Tangible Results Obtained in Antoninetti’s Lawsuit.
As set forth in Section IV. A., above, Antoninetti established that the District abused its discretion in holding that his lawsuit did not confer any significant benefit on the public. The record in this case shows the District’s holding is clearly erroneous and against the evidence.
C. The District Erred in Requiring Allocation of Fees Between “Written Policy Claims” and “Unwritten Policy Claims.”
The District correctly held that Antoninetti was the prevailing party, but it erred in its analysis of Antoninetti’s “limited success,” as that analysis is set forth in Hensley. To determine whether a plaintiff has had limited success under Hensley, the court must first decide whether the plaintiff failed to prevail on claims that were unrelated to the claims on which he succeeded. Webb v. Sloan, 330 F.3d 1158, 1168

74

Id.

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(9th Cir. 2003). Where a plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Hensley, 461 U.S. at 440; Webb, 330 F.3d at 1158 (claims are “unrelated” if they are “entirely distinct and separate” from the claims on which the plaintiff prevailed).
If the unsuccessful and successful claims are related, then the court must undertake the second part of the Hensley analysis, in which the court evaluates the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005). Claims are related if they involve a common core of facts or are based on related legal theories. Id. The burdens of proof and standards of liability under the ADA and the California Civil Codes are the same. The remedy is merely different. See, Johnson v. Makinen, 2009 U.S. Dist. LEXIS 60850, at fn. 5.
A plaintiff does not need to receive all the relief requested in order to show excellent results warranting the full compensatory fee. Hensley, 461 U.S. at 435 n. 11; Dang, 422 F.3d at 813. It is also well-settled in this Circuit that a district court should not reduce the lodestar merely because the prevailing party did not receive the type of relief that it requested. This is especially true in civil rights cases. Gates, 987 F.2d at 1404. “A plaintiff who fails to recover damages but obtains injunctive relief,
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or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time.” Hensley, 461 U.S. at 436.
Even where the claims can be distinguished, apportionment is not required when the work performed on successful and unsuccessful claims are so inextricably intertwined that it would be impractical or impossible to differentiate the work. Gracie v. Gracie, 217 F.3d 1060, 1069 (9th Cir. 2000). Further, a court abuses its discretion when it cuts fees by an arbitrary percentage. People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1314 (7th Cir. 1996).
Here, the District erroneously divided one claim based upon the Chipotle Experience into two “separate” claims, which it distinguished by the different remedies of injunctive relief and damages and by the one additional fact that one policy was written and the other was not. The District then committed further error by finding that these two “distinct” claims were not inextricably intertwined. In finding that Antoninetti had not provided billing statements that apportioned between these “distinct” claims, the District settled on an arbitrary figure of 75% as an appropriate reduction of fees and expenses and denial of costs.75
The District committed clear error in ignoring the common core facts that support both remedies: the nature of the Chipotle Experience, the nature of the
75 ER I-2, at 8, 9. 44

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experience provided to Antoninetti and the nature of the methods of accommodation provided to wheelchair users. The District also committed clear error in rejecting the obvious - that all of the factual investigation in relation to these issues could only have been incurred in relation to the “successful claim,” since Antoninetti did not learn of the written policy until after close of discovery. The District’s reduction of fees and expenses by 75% and its denial of costs is also erroneous because it was arbitrary and, but for the District’s legal and factual errors in the underlying judgment, Antoninetti would have succeeded on the “unsuccessful” claims.
D. The District’s Holding Regarding “Block Billed” Time Entries Constitutes Reversible Error.
Not only did the District commit clear factual error and legal error in holding that Antoninetti should have provided separate billing for his purported “written policy” claim and his purported “unwritten policy” claim, the District abused its discretion in refusing to consider evidence submitted by Antoninetti in relation to the alleged “block billed” entries. See, Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998) Antoninetti addressed every one of the 85 entries challenged by Chipotle.76 Despite the fact that Antoninetti provided separate time entries for many tasks included in the challenged “block billed” entries, or explained why the time could not be separated into distinct tasks, the District made no reference to this additional
76 ER VIII-34; ER IX-35 at 10. 45

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evidence and did not account for Antoninetti’s additional allocation in its final ruling on Antoninetti’s fee motion. The District committed reversible error in failing to consider this additional evidence.

VI. The District Abused Its Discretion in Denying Antoninetti His Costs.
The District’s legal and factual errors in the underlying judgment served as the basis for its denial of costs to Antoninetti. If the District is reversed, in favor of Antoninetti, all of Antoninetti’s costs should be awarded to him. Further, the District abused its discretion in ignoring the clear tangible benefits to the disabled public achieved by Antoninetti’s lawsuit, even assuming the District’s rulings stand. These tangible benefits should have been considered by the District in determining Antoninetti’s “degree of success” and, thus, his recovery of costs.

CONCLUSION

Antoninetti respectfully requests that this Court remand this matter with

instructions to the District to issue an order awarding Antoninetti injunctive relief,

declaratory relief and all of his claimed attorney’s fees, litigation expenses and costs.

Respectfully submitted,

LAW OFFICES OF AMY B. VANDEVELD

Dated: August 14, 2009 By:

S/ AMY B. VANDEVELD Attorney for Appellant/Cross-Appellee Email: abvusdc@hotmail.com

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STATEMENT OF RELATED CASES FOR NINTH CIRCUIT CASE NOS. 09-55327,
09-55425, 08-55867 AND 08-55946

Related cases: 1) Antoninetti, et al. v. Chipotle, USDC No. 06 CV 2671 LAB

(POR), consolidated by the District with the instant case for purposes of discovery,

and 2) Perkins, et al. v. Chipotle, USDC No. CV 08-03002 MMM (OPx). Both suits

are putative class actions and involve the “Chipotle experience” at all Chipotle

restaurants in California.

LAW OFFICES OF AMY B. VANDEVELD

Dated: August 14, 2009 By:

S/ AMY B. VANDEVELD Attorney for Appellant/Cross-Appellee Email: abvusdc@hotmail.com

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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. 32(a)(7)(c) and Ninth Circuit Rule 32-1, I certify that

this brief is reproduced using a times new roman proportional typeface with a point

size of 14, and the text contains 9,908 words, not counting tables and certificates. It

therefore conforms to the requirements set out in Fed. R. App. p.32 (a)(7)(c) and

Ninth Circuit Rule 32-1. The excerpts of record have been compiled in compliance

with Circuit Rule 30-1.6.

LAW OFFICES OF AMY B. VANDEVELD

Dated: August 14, 2009 By:

S/ AMY B. VANDEVELD Attorney for Appellant/Cross-Appellee Email: abvusdc@hotmail.com

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on August 17, 2009, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I mailed the foregoing documents by First Class Mail, postage prepaid, to the following non-CM/ECF participants:

Amy F. Robertson, Esq. FOX & ROBERTSON, P.C. 3801 E. Florida Avenue, Suite 400 Denver, CO 80210
Attorney for Amici
(Non-CM/ECF participant)

Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive, Suite 1000 Irvine, CA 92612 Attorney for Appellee/CrossAppellant (CM/ECF participant)

I further certify that I caused to be filed five sets of the Appellant/CrossAppellee’s Supplemental Excerpts of Record, Volume X, in paper format with the Clerk of the Court for the United States Court of Appeals and I mailed one set to the above-mentioned counsel by three-day mail on August 12, 2009 for guaranteed delivery on August 17, 2009.

I declare under penalty of perjury, under the laws of the State of California and the United States of America, that the foregoing is true and correct.

LAW OFFICES OF AMY B. VANDEVELD

Dated: August 14, 2009

S/ Amy B. Vandeveld Email: abvusdc@hotmail.com Attorney for Appellant/Cross-Appellee

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 Case: 08-55867 07/17/2009 Page: 1 of 62 DktEntry: 6996474

NINTH CIRCUIT CASE NOS. 08-55867, 08-55946, 09-55327, 09-55425
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MAURIZIO ANTONINETTI,
Plaintiff, Appellant, and Cross-Appellee,
v.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant, Appellee, and Cross-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF CALIFORNIA Case No. 05 CV 1660 J (WMc) NAPOLEON A. JONES, Judge

SECOND BRIEF ON CROSS-APPEAL

Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 hurleyg@gtlaw.com

John F. Scalia Matthew H. Sorensen Virginia E. Robinson GREENBERG TRAURIG, LLP 1750 Tysons Boulevard, Suite 1200 McLean, Virginia 22102 Telephone: (703) 749-1300 Facsimile: (703) 749-1301 scaliaj@gtlaw.com sorensenm@gtlaw.com robinsonv@gtlaw.com

Counsel for Appellee/Cross-Appellant Chipotle Mexican Grill, Inc.

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CORPORATE DISCLOSURE STATEMENT OF CHIPOTLE MEXICAN GRILL, INC.

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and to

enable the Judges of this Court to evaluate possible disqualification or recusal,

Chipotle Mexican Grill, Inc. hereby certifies that: (1) it is a publicly traded

company; and (2) it has no parent corporation and no other publicly held

corporation owns 10% or more of its stock.

Date: July 17, 2009

Respectfully submitted,

s/ Gregory F. Hurley Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive, Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 hurleyg@gtlaw.com Counsel for Appellee/Cross-Appellant

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TABLE OF CONTENTS
Page
JURISDICTIONAL STATEMENT ................................................................... 1
STATEMENT OF ISSUES ON CROSS-APPEAL............................................ 4
STATEMENT OF THE CASE ........................................................................... 4
STATEMENT OF FACTS .................................................................................. 8
SUMMARY OF ARGUMENT ......................................................................... 17
ARGUMENT ..................................................................................................... 21
I. Standard Of Review ............................................................................ 21
II. Standards For Determining Reasonable Attorneys’ Fees................ 22
III. If The Court Finds That Chipotle’s Food Preparation Counters Comply With The Requirements Of ADAAG 7.2(2)(i) Or (ii) Or That Chipotle’s Unwritten Practice Of Accommodating Customers With Disabilities Constituted Equivalent Facilitation, It Must Reverse The District Court’s Order Awarding Antoninetti Attorneys’ Fees.................................................................................. 25
IV. Even If The Court Upholds The District Court’s Decision On The Merits Of The Case, The District Court’s Attorneys’ Fee Award Must Be Reversed Because The District Court Abused Its Discretion In Awarding Antoninetti $136,537.83 Based On His Limited Success ................................................................................. 27
A. Antoninetti Should Not Have Been Awarded Any Attorneys’ Fees Because He Prevailed Only On Two Minor Issues In The Case That Resulted In No Benefit To The Public And For Which He Obtained Only The Statutory Minimum Amount Of Damages.......................................... 28
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B. The District Court Abused Its Discretion By Awarding Antoninetti Attorneys’ Fees That Grossly Exceeded His Limited Recovery................................................................. 36
V. The District Court Did Not Abuse Its Discretion By Failing To Award Antoninetti More Attorneys’ Fees ....................................... 39
A. Antoninetti Has Failed To Establish That The District Court Erred In Its Judgment On The Merits Of The Case And That It Abused Its Discretion By Not Awarding Him All Of His Requested Attorneys’ Fees ................................ 40
B. Antoninetti Has Failed To Establish That The District Court Abused Its Discretion By Finding That His Lawsuit Did Not Result In Any Significant Benefit To The Public . 42
C. Antoninetti Has Failed To Establish That The District Court’s Holding Regarding Antoninetti’s Failure To Distinguish Between Fees Related To The Claims On Which He Prevailed And Fees Related To Claims On Which He Lost Constitutes An Abuse Of Discretion........................... 43
D. Antoninetti Has Failed To Establish That The District Court’s Holding Regarding Antoninetti’s “Block Billed” Time Entries Constitutes Reversible Error........................ 48
VI. The District Court Did Not Abuse Its Discretion By Declining To Award Antonineti His Requested Costs........................................... 49
CONCLUSION .................................................................................................. 51
REQUEST FOR ORAL ARGUMENT ............................................................ 52
STATEMENT OF RELATED CASES ............................................................ 53
CERTIFICATE OF COMPLIANCE ............................................................... 54
ii

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TABLE OF AUTHORITIES

Federal Cases

Page

Berkla v. Corel Corp., 302 F.3d 909 (9th Cir. 2002) ............................................................................ 21

Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) .........................22, 23, 33

Carbonell v. I.N.S., 429 F.3d 894 (9th Cir. 2005) ............................................................................ 23

Carson v. Billings Police Dept., 470 F.3d 889 (9th Cir. 2006) ............................................................................ 41

Chalmers v. City of Los Angeles, 796 F.2d 1205 (9th Cir. 1986) ......................................................................... 23

Corder v. Brown, 25 F.3d 833 (9th Cir. 1994) .............................................................................. 36

Dannenberg v. Valadez, 338 F.3d 1070 (9th Cir. 2003) .......................................................................... 37

Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 556, 121 L.Ed.2d 494 (1992)................................passim

Galen v. County of L.A., 477 F.3d 652 (9th Cir. 2007) ............................................................................ 21

Gumbhir v. Curators of University of Missouri, 157 F.3d 1141 (8th Cir. 1998) .......................................................................... 37

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)................. 23, 24, 28, 41, 44

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In re Olson, 884 F.2d 1415 (D.C. Cir. 1989) ........................................................................ 49
Jordan v. Multnomah County, 815 F.2d 1258 (9th Cir.1987) ........................................................................... 23
Keith v. Volpe, 644 F. Supp. 1317 (C.D. Cal. 1986).................................................................. 49
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991) .....................................................................41, 42
Maurice A. Garbell, Inc. v. Boeing Co., 546 F.2d 297 (9th Cir. 1976) ............................................................................ 50
McCown v. City of Fontana, 565 F.3d 1097 (9th Cir. 2009) .....................................................................33, 42
McGinnis v. Kentucky Fried Chicken, 51 F.3d 805 (9th Cir. 1994) ........................................................................passim
Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998) .......................................................................... 36
Morales v. City of San Rafael, 96 F.3d 359 (9th Cir. 1996) .............................................................................. 29
Saman v. Robbins, 173 F.3d 1150 (9th Cir. 1999) .......................................................................... 21
Tahara v. Matson Terminals, Inc., 511 F.3d 950 (9th Cir. 2007) ............................................................................ 21
Traditional Cat Ass'n, Inc. v. Gilbreath, 340 F.3d 829 (9th Cir. 2003) ............................................................................ 21
United States v. Asagba, 77 F.3d 324 (9th Cir. 1996) .............................................................................. 22
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Vacation Village, Inc. v. Clark County, Nev., 497 F.3d 902 (9th Cir. 2007) ............................................................................ 50
Wilcox v. City of Reno, 42 F.3d 550 (9th Cir. 1994) .............................................................................. 35
Federal Statutes 28 U.S.C. § 1291.................................................................................................... 3 42 U.S.C. § 12205................................................................................................ 22
State Statutes California Civil Code section 54 .................................................................6, 49, 50 California Civil Code section 54.3 ....................................................................6, 31 California Civil Code secion 55 ........................................................................... 22
Federal Rules Federal Rules of Appellate Procedure 34(a)......................................................... 51
State Rules California Code of Civil Procedure Section 1032 ...........................................49, 50 California Code of Civil Procedure Section 1033 ................................................ 49
Federal Regulations 28 C.F.R. § 36, App. A § 2.2 .........................................................................passim 28 C.F.R. § 36, App. A § 4.6.3............................................................................... 4
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28 C.F.R. § 36, App. A § 4.33.3.....................................................................passim 28 C.F.R. § 36, App. A § 7.2 .........................................................................passim
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JURISDICTIONAL STATEMENT Appellee/Cross-Appellant Chipotle Mexican Grill, Inc. (“Chipotle”) agrees with and hereby incorporates by reference the jurisdictional statement of Appellant/Cross-Appellee Maurizio Antoninetti (“Antoninetti”). In addition, Chipotle states as follows: On January 10, 2008, the District Court entered its Findings of Fact, Conclusions of Law, and Judgment, holding that (1) Chipotle’s prior unwritten practice of accommodating customers with disabilities did not constitute an equivalent facilitation, but (2) Chipotle’s new written Customers with Disabilities Policy does constitute an equivalent facilitation.1 Based on these findings, the District Court (1) awarded Antoninetti $5,000 in statutory damages under his California Disabled Persons Act claim based on his five visits to Chipotle before Chipotle had implemented the written Customers with Disabilities Policy and (2) denied Antoninetti’s claims for injunctive relief.2 On January 22, 2008, Antoninetti filed a Motion to Amend Findings of Fact and for Additional Findings of Fact. The District Court denied that motion by order dated April 21, 2008. As of that date, the Findings of Fact, Conclusions of Law, and Judgment became a final, appealable order.
1 ER I-5. 2 Id.
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Antoninetti filed his notice of appeal of the District Court’s April 21, 2008 judgment on May 15, 2008, and Chipotle filed its notice of cross-appeal on May 29, 2008. That cross-appeal (Ninth Circuit Case Nos. 08-55867, 08-55946) has been fully briefed by the parties and is presently pending before this Court.
Antoninetti filed a Motion for Attorneys’ Fees And Costs in the District Court on May 5, 2008. On August 21, 2008, the District Court entered an order: (1) granting in part Antoninetti’s Motion for Attorneys’ Fees and Costs, in which it found that Antoninetti was a prevailing party because he had prevailed on two minor issues in the case and that he was therefore entitled to reasonable attorneys’ fees for those issues. Specifically, the District Court found that Antoninetti had prevailed and should receive reasonable attorneys’ fees for his claims under the California Disabled Persons Act (“CDPA”) and the Americans With Disabilities Act (“ADA”), that he was not provided equivalent facilitation under Chipotle’s prior unwritten practice of accommodating customers, and that the parking lots of Chipotle’s Pacific Beach and Encinitas Restaurants did not meet the technical requirements of the Americans With Disabilities Act Accessibility Guidelines3 (“ADAAG”).4 In the same decision, the District Court ordered Antoninetti to
3 28 C.F.R. § 36, App. A. 4 ER I-3.
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submit a Bill of Costs so that the District Court could determine a reasonable amount of attorneys’ fees.5
On August 29, 2008, Antoninetti filed a Motion for Reconsideration of the District Court’s ruling on his motion for attorneys’ fees and, on September 10, 2008, submitted an Amended Bill of Costs for $546,151.33.6 By order dated February 6, 2009, the District Court denied Antoninetti’s Motion for Reconsideration and awarded Antoninetti attorneys’ fees in the amount of $136,537.83.7
Antoninetti filed his notice of appeal on March 2, 2009,8 and Chipotle filed its notice of cross-appeal on March 16, 2009.9 This Court has appellate jurisdiction over this action pursuant to 28 U.S.C. § 1291.
On April 28, 2009, Antoninetti filed a motion to consolidate this cross-appeal (Ninth Circuit Case Nos. 09-55327, 09-55425) with the earlier cross-appeal of the District Court’s April 21, 2008 judgment on the merits of the case (Ninth Circuit Case Nos. 08-55867, 08-55946).
5 Id. 6 ER IX-35. 7 ER I-2, at 10. 8 ER I-1. 9 Chipotle’s Supplemental Excerpts of Record, Vol. I, Tab 1 (Hereafter “Supp. ER ___-___”).
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STATEMENT OF ISSUES ON CROSS-APPEAL 1. Whether the District Court committed reversible error in awarding Antoninetti any attorneys’ fees. 2. Whether the District Court committed reversible error in awarding Antoninetti attorneys’ fees disproportionate to the limited success obtained by Antoninetti.
STATEMENT OF THE CASE Chipotle incorporates herein by reference the Statement of the Case set forth in its Opening and Response Brief in the related cross-appeal of the District Court’s April 21, 2008 judgment on the merits of the case (Ninth Circuit Case Nos. 08-55867, 08-55946). In addition, Chipotle states as follows: This case involves allegations of various barriers to Anoninetti’s access to Chipotle’s Encinitas and Pacific Beach restaurants (collectively, the “Restaurants” and individually, the “Encinitas Restaurant” and the “Pacific Beach Restaurant”). Specifically, Antoninetti claimed that: (1) the parking lots at the Restaurants did not comply with ADAAG § 4.6.3 during his visits; (2) the entrances at the Pacific Beach Restaurant were not accessible; (3) the Men’s Restrooms at the Restaurants were not accessible; (4) the tables at the Restaurants were not accessible; (5) Chipotle’s food preparation counters are not accessible under ADAAG § 4.33.3 because they did not provide wheelchair users with comparable lines of sight; (6)
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Chipotle’s prior unwritten practice of accommodation did not provide equivalent facilitation under ADAAG §§ 2.2 and 7.2(2)(iii); and Chipotle’s current written Customers With Disabilities Policy does not provide equivalent facilitation under ADAAG §§ 2.2 and 7.2(2)(iii). Antoninetti asserted claims for injunctive relief and monetary damages based on these alleged barriers to access under the ADA and the CDPA. From the outset of this case, however, Antoninetti’s primary goal was to obtain an injunction requiring Chipotle to lower the wall in front of its food preparation counters.
On summary judgment, the District Court dismissed Antoninetti’s ADA and CDPA claims regarding the entrances at the Pacific Beach Restaurant, the men’s restrooms at the Restaurants, and the tables at the Restaurants, dismissed Antoninetti’s ADA claims regarding the parking lots at the Restaurants, and expressly rejected Antoninetti’s claim that ADAAG § 4.33.3 applied to Chipotle’s food preparation counters. 10
Following a four day bench trial, the District Court found Chipotle’s current written Customers With Disabilities Policy constituted equivalent facilitation under ADAAG §§ 2.2 and 7.2(2)(iii) and therefore rejected Antoninetti’s claims
10 ER I-6, at 8-10 and 21-25.
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regarding that policy and denied his request for an injunction requiring Chipotle to lower the wall in front of its food preparation counters.11
Ultimately, Antoninetti prevailed on only two minor issues in this case. Specifically, on summary judgment the District Court held that Antoninetti was entitled to damages under the CDPA for any visits that he had made to the Restaurants as a bona fide customer in which he had encountered the alleged access barriers to the Restaurants’ parking areas; and, in its post-trial Findings of Fact, Conclusions of Law and Judgment, the District Court held that Chipotle’s prior unwritten practice of accommodation did not constitute an equivalent facilitation.12 Based on these findings the District Court awarded Antoninetti a total of $5,000 in damages under the CDPA.
On May 5, 2008, Antoninetti filed a Motion for Attorneys’ Fees and Costs, seeking $550,651.33 in fees and expenses.13 The District Court granted the Motion in part, finding that Antoninetti was entitled to reasonable attorneys’ fees for the issues on which Antoninetti prevailed, namely the equal facilitation issue regarding the unwritten customer policy, damages for violations of California Civil Code sections 54 and 54.3, and any issues necessarily intertwined with those two
11 ER I-5, at 32, 35, 38. 12 ER I-5, at 31–32. 13 ER 1-3, at 1.
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issues.14 The District Court also ordered Antoninetti to “submit a copy of his Bill of Costs so that the Court may determine a reasonable amount for attorneys’ fees.”15
On August 29, 2008, Antoninetti moved the District Court to reconsider its ruling on his motion for attorneys’ fees, and, on September 10, 2008, submitted an Amended Bill of Costs for $546,151.33.16 The District Court denied Antoninetti’s motion by order dated February 6, 2009, and awarded Antoninetti attorneys’ fees in the amount of $136,537.83. 17 The District Court found that Antoninetti did not meet his burden of establishing an entitlement to the award requested and that his attorney had failed to adequately document the time expended on the claims as to which Antoninetti had prevailed.18 The District Court also found it appropriate to reduce the attorneys’ fee award because of the limited success Antoninetti had achieved19 and in part because Antoninetti’s billing records made it impossible for the District Court to connect the specific hours with the unsuccessful claims.20 The
14 ER I-3. 15 Id. 16 ER IX-35. 17 ER I-2, at 10. 18 ER I-2, at 8. 19 Id. 20 Id., at 8-9.
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District Court exercised its discretion to refuse to award costs, and ordered that each party would bear its own costs.21
STATEMENT OF FACTS Chipotle incorporates herein by reference the Statement of Facts set forth in its Opening and Response Brief in the related cross-appeal of the District Court’s April 21, 2008 judgment on the merits of the case (Ninth Circuit Case Nos. 0855867, 08-55946). In addition, Chipotle states as follows: Antoninetti brought this action against Chipotle, alleging that the Restaurants violated the ADA, the CDPA, the Unruh Civil Rights Act, and the California Health and Safety Code. 22 Antoninetti alleged that he encountered barriers to access to the Restaurants as a result of the configuration of the tables, parking lots, restrooms and the wall in front of the food preparation counters. 23 Antoninetti also claimed that the entrances to the Pacific Beach Restaurant were inaccessible. Based on these claims, Antoninetti sought injunctive relief, declaratory relief, and up to three times the amount of actual, special, and/or statutory damages. 24 Although Antoninetti did not set out the exact amount of damages he was seeking in his Complaint, he later stated in his motion for summary judgment that he was seeking a minimum of $24,000 in statutory 21 Id., at 10. 22 ER II-7. 23 ER I-6. 24 ER II-7.
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damages.25 From the very outset of this case, however, the central issue has been whether the ADA, CDPA, Unruh Act and California Building Code require Chipotle to lower the wall in front of the food preparation counters. Antoninetti’s primary objective in bringing this lawsuit has been to obtain an injunction forcing Chipotle to lower the wall.
Antoninetti’s principle argument in this case is that the sight-line requirements of ADAAG Section 4.33.3 are applicable to Chipotle’s food preparation counters, and that the wall in front of the food preparation counters denies Antoninetti lines of sight into the Restaurants’ kitchen areas that are comparable to those of standing customers. Antoninetti retained an expert witness, Steven Schraibman, to opine on the applicability of ADAAG Section 4.33.3’s sight-line requirements to the wall in front of Chipotle’s food preparation counters and the lines of sight of persons in wheelchairs, including Antoninetti. The majority of Mr. Schraibman’s work performed in this case, as evidenced by the documents produced by Antoninetti as part of his Rule 26(a)(2) disclosures, was devoted to this argument.26
On April 12, 2007, Antoninetti filed a motion for summary judgment. Antoninetti’s opening and reply briefs in support of his motion for summary judgment were almost entirely devoted to his argument for the application of 25 ER I-2, at 7. 26 Supp. ER I-2; Supp. ER I-3.
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ADAAG Section 4.33.3’s sight-line requirements to the wall in front of Chipotle’s food preparation counters.27 Specifically, Antoninetti argued that ADAAG Section 4.33.3 required Chipotle to provide disabled customers and non-disabled customers with comparable lines of sight to its food preparation counters, or alternatively, that the ADA’s general anti-discrimination provisions require Chipotle to modify the food preparation counters.28
On April 16, 2007, Chipotle filed its own motion for summary judgment, in which it argued that ADAAG Section 7.2(2) applied to the food preparation counters and that its food preparation counters, including the wall in front of them, were compliant with ADAAG Section 7.2(2) because a portion of the counters, i.e. the transaction counter, meets the requirements of ADAAG Section 7.2(i) and (ii), and that Chipotle’s written Customers with Disabilities Policy provides disabled customers substantially equivalent opportunities to view the food and preparation of the food.29 Antoninetti devoted a substantial portion of his opposition to Chipotle’s motion for summary judgment to arguing that ADAAG Section 7.2 did not apply to the food preparation counters and that the District Court should instead apply ADAAG Section 4.33.3.30
27 Supp. ER I-6; Supp. ER I-8. 28 Supp. ER I-8, at 5-10. 29 ER I-6, at 10-18. 30 Supp. ER I-7.
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On June 17, 2007, the District Court granted partial summary judgment to both parties. The District Court granted summary judgment in favor of Chipotle as to Antoninetti’s ADA, CDPA and Unruh Act claims regarding the restrooms and seating areas at the Restaurants, and the entrances of the Pacific Beach Restaurant.31 The District Court also granted summary judgment in favor of Chipotle on Antoninetti’s ADA claims regarding the Restaurants’ parking lots (because Chipotle had corrected the issues with its parking lots as to which Antoninetti had complained). 32 The District Court granted summary judgment in favor of Antoninetti as to his CDPA damages claim related to the Restaurants’ parking lots because it found the parking lots did not comply with the ADAAG on the few occasions that Antoninetti had visited the Restaurants as a bona fide customer prior to Chipotle’s alterations.33
The District Court denied the parties’ cross-motions for summary judgment on the issue of whether the ADA, the CDPA or the Unruh Act required that the wall in front of the food preparation counters at the Restaurants be lowered.34 In its summary judgment order, the District Court expressly rejected Antoninetti’s argument that ADAAG Section 4.33.3 applied to the wall in front of the food preparation counters at the Restaurants, and instead found that ADAAG Section 31 ER I-6, at 22-25. 32 Id., at 20-21. 33 ER I-6, at 23-24. 34 ER I-6, at 7-19.
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7.2(2) applies.35 Although the District Court held that the food preparation counters did not meet the requirements of ADAAG Section 7.2(2)(i) or (ii), it found that a genuine factual dispute existed as to whether Chipotle’s practice and policy of accommodating customers with disabilities constituted an “equivalent facilitation” under ADAAG Section 7.2(2)(iii).36
The case proceeded to trial on the following issues: (1) whether Chipotle’s prior unwritten practice of accommodating customers with disabilities constituted equivalent facilitation; (2) whether Chipotle’s current written Customers With Disabilities Policy constituted equivalent facilitation; (3) whether Antoninetti was entitled to an injunction requiring Chipotle to lower the wall in front of the food preparation counters at the Restaurants; and (4) the amount of damages, if any, to which Antoninetti was entitled under the CDPA.37 Shortly before trial, Antoninetti dismissed his claims under the Unruh Act and elected to seek only the statutory minimum amount of damages available under the CDPA for the alleged violations at the Restaurants.38
The District Court held a four-day bench trial beginning on November 27, 2007. The central issue at trial was whether Chipolte’s current written Customers With Disabilities Policy constituted an equivalent facilitation, and, consequently, 35 Id., at 7-14. 36 ER I-6, at 14-19. 37 ER I-3, at 2. 38 Id., at 2, fn.1.
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whether Chipotle would be forced to lower the walls. (Indeed, resolution of this issue was the reason the case even went to trial.) The District Court entered its Findings of Fact, Conclusions of Law, and Judgment (the “Judgment”) on January 10, 2008.39 In the Judgment, the District Court found that Chipotle’s prior practice of accommodating customers with disabilities did not constitute equivalent facilitation and that Plaintiff was entitled to a total of $5,000 in damages for the occasions when he visited the Restaurants prior to the institution of the Customers With Disabilities Policy.40 However, the District Court agreed with Chipotle that its “current Customers With Disabilities Policy provides [Antoninetti] (and other customers in wheelchairs) with equivalent facilitation under ADAAG Sections 2.2 and 7.2(2)(iii).”41 Based on this holding, the District Court also ruled in Chipotle’s favor with respect to the central issue in this case—whether Chipotle was required by law to lower the wall in front of its food preparation counters—and found that Antoninetti was not entitled to any injunctive relief. 42 Thus, Chipotle not only prevailed on the majority of the issues in this case, it prevailed on the most significant issues as well.
39 ER I-5. 40 Id., at 2-3, 39. 41 Id., at 32-34. 42 Id., at 32-38.
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On January 22, 2008, Antoninetti filed a motion to amend the District Court’s findings of fact and conclusions of law.43 Antoninetti argued that the Judgment was in error because Chipotle’s written Customers’ With Disabilities Policy was not an equivalent facilitation and was otherwise defective.44 The District Court denied Antoninetti’s motion because he failed to establish that the District Court committed any manifest error of fact or law, present any new evidence not available at trial or point to any changes in the applicable law.45 The District Court also denied Antoninetti’s motion because Antoninetti’s proposed additional factual findings would have had no effect on the outcome of the District Court’s Judgment.46
On January 24, 2009, Chipotle filed its Bill of Costs, in which it sought an award of $5,084.83 based on its success on the merits of the case. On January 29, 2008, Antoninetti filed a Bill of Costs seeking a total of $9,010.73, nearly twice the amount of damages he was awarded in the Judgment for the two minor claims on which he prevailed. On May 5, 2008, Antoninetti filed a Motion for Attorneys’ Fees and Costs (“Motion”) seeking a total of $550,651.33—all of the alleged attorneys’ fees he claims to have incurred in this case.
43 Supp. ER I-5. 44 Id. 45 Supp. ER I-4. 46 Id.
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On August 21, 2008, the District Court granted Antoninetti’s motion for attorneys’ fees in part and denied it in part. 47 The District Court held that Antoninetti qualified as a prevailing party because the District Court had awarded Antoninetti a judgment of $5,000 for his CDPA claims regarding the parking areas of the Restaurants and Chipotle’s prior unwritten practice of accommodating customers with disabilities, and Antoninetti was entitled to enforce that judgment against Chipotle. 48 However, the District Court properly held that Antoninetti obtained only a small fraction of the monetary relief he had sought and had failed to obtain the primary relief sought in this case—an injunction requiring Chipotle to lower the wall in front of its food preparation counters. 49 The District Court also properly held that no public benefit resulted from Antoninetti’s litigation because the Court had not ordered Chipotle to take any action to correct any alleged barriers to accessibility to its Restaurants.50 Moreover, the District Court held that the claims as to which Antoninetti had prevailed were factually distinct from those as to which he had lost. 51 Based on these findings, the District Court ruled that Antoninetti was only entitled to attorneys’ fees for his CDPA (and related ADA) claims regarding the parking areas of the Restaurants and Chipotle’s prior
47 ER I-3. 48 ER I-3, at 4. 49 Id., at 5. 50 Id. 51 Id., at 6-7.
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unwritten practice of accommodating customers with disabilities. 52 Because Antoninetti’s motion for attorneys’ fees failed to identify the specific fees that were attributable to the issues as to which he had prevailed, the District Court ordered Antoninetti to submit an amended bill of costs so that it could determine an appropriate amount of attorneys’ fees. 53
On August 29, 2008, Antoninetti filed a motion for reconsideration of the District Court’s ruling on Antoninetti’s motion for attorneys’ fees. On September 10, 2008, Antoninetti submitted his amended cost bill in which he again insisted that the District Court award him all $559,572.06 of his alleged attorneys’ fees and costs. 54 In support of this assertion, Antoninetti argued that all of those fees had been incurred in connection with the CDPA claims on which he prevailed.
The District Court denied Antoninetti’s motion for reconsideration by order dated February 6, 2009, holding that Antoninetti had failed to establish that the District Court committed clear error in its decision. 55 In the same order, the District Court awarded Antoninetti attorneys’ fees in the amount of $136,537.83— approximately one quarter of the total amount of attorneys’ fees that he had requested. 56 In so holding the District Court noted that:
52 Id., at 7. 53 Id. 54 ER IX-35, at 2. 55 ER I-2, at 2-5. 56 Id., at 9.
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[A] party’s level of success is the most important factor to consider in determining a fee award, and particularly a comparison of the damages awarded to damages sought. A district court must consider the excellence of the overall result … but in judging the plaintiff’s level of success and the reasonableness of the hours spent achieving that success, a district court should give primary consideration to the amount of damages awarded as compared to the amount sought. Furthermore, in McGinnis v. Kentucky Fried Chicken, the Ninth Circuit vacated an attorney fee award of $148,000 after the damages awarded to the plaintiff were reduced to $34,000, reasoning that no reasonable person would pay lawyers $148,000 to win $34,000.
In this case, Plaintiff was awarded only $5,000, which represented slightly more than one-fifth of the damages he originally sought. If no reasonable person would pay lawyers $148,000 to win $34,000, surely no reasonable person would pay over $500,000 in attorneys’ fees to recover only $5,000. 57
Antoninetti appealed that decision on March 2, 2009. 58 Chipotle filed its Notice of
Cross-Appeal on the decision on March 16, 2009.59
SUMMARY OF ARGUMENT
After failing to obtain any relief whatsoever with respect to the
overwhelming majority of his claims in this lawsuit, including the central issue in
this case—whether Chipotle was required by law to lower the wall in front of the
food preparation counters at its Restaurants—and obtaining only a nominal award
of damages at trial, Antoninetti filed a motion for attorneys’ fees in which he
sought over $550,000 in fees—110 times what he recovered at trial. Although the
57 Id., at 8-9 (internal quotations and citations omitted). 58 ER I-1. 59 Supp. ER I-1.
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District Court refused to award Antoninetti the bulk of his requested fees, it nevertheless found that he was entitled to $136,537.83. By awarding Antoninetti attorneys’ fees, particularly the amount of attorneys’ fees that it did, the District Court abused its discretion in two respects. First, because the District Court erred in holding that Chipotle’s food preparation counters did not comply with ADAAG Section 7.2(2)(i) and (ii), and that Chipotle’s unwritten practice of accommodating customers with disabilities was not an equivalent facilitation, it also erred in finding that Antoninetti was entitled to any attorneys’ fees. Second, even if this Court upholds the Judgment of the District Court on the merits of Antoninetti’s claims, the District Court nevertheless erred in awarding Antoninetti an amount of attorneys’ fees that was totally disproportionate to the minimal “success” that he achieved.
In holding that Antoninetti was a “prevailing party,” and therefore entitled to an award of attorneys’ fees, the District Court relied on its judgment awarding Antoninetti $5,000 in statutory damages under the CDPA. That judgment was based on the District Court’s erroneous summary judgment ruling that Chipotle’s food preparation counters did not comply with ADAAG Section 7.2(2)(i) or (ii) and its subsequent erroneous post-trial ruling that Chipotle’s unwritten practice of accommodating customers with disabilities did not constitute an equivalent facilitation under ADAAG Section 2.2 and 7.2(2)(iii). Chipotle has appealed both
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of these rulings in the consolidated cross-appeal on the merits of Antoninetti’s claims (Ninth Circuit Case Nos. 08-55867, 08-55946). To the extent that this Court agrees with either of Chipotle’s arguments in the consolidated cross-appeal on the merits—that its food preparation counters comply with ADAAG Section 7.2(2)(i) and (ii) or that the Customers With Disabilities Policy constitutes an equivalent facilitation—it must therefore reverse the District Court’s award of attorneys’ fees and instruct the District Court to enter an order denying Antoninetti any attorneys’ fees.
In the alternative, if the Court upholds the District Court’s January 10, 2008 Judgment, it nevertheless must reverse the District Court’s award of attorneys’ fees because the amount of fees awarded ($136,537.83) is grossly disproportionate to Antoninetti’s minimal success in this case. The Supreme Court has held that where a plaintiff receives only nominal damages or achieves only technical success, as is the case here, but does not succeed in obtaining the primary relief sought in the lawsuit, a court may dispense with the calculation of a lodestar and simply establish a nominal amount of attorneys’ fees or no fees at all. Farrar v. Hobby, 506 U.S. 103, 115-116, 113 S.Ct. 556, 575, 121 L.Ed.2d 494 (1992). This Court reached a similar conclusion in McGinnis v. Kentucky Fried Chicken, where it held that a district court abused its discretion in awarding $148,000 in attorneys’ fees to a plaintiff who recovered only $34,000 in damages, because “no reasonable
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person would pay lawyers $148,000 to win $34,000.” Id. Although the District Court cited the McGinnis case in its February 6, 2009 Order on Antoninetti’s attorneys’ fees and costs, it proceeded to do exactly what the Court in McGinnis found to be an abuse of discretion by awarding Antoninetti attorneys’ fees of nearly $140,000 for having obtained a judgment of $5,000 and nothing more. Antoninetti’s lawsuit did not result in any public benefit, or even in the injunctive relief that had been Antoninetti’s primary objective in this case. And the $5,000 damage award that Antoninetti obtained was the minimum allowed under the applicable statute—the CDPA—because Antoninetti could not even prove that he suffered any actual damages. Under Farrar and McGinnis, the District Court should have either denied Antoninetti any attorneys’ fees or awarded him a nominal fee award that was commensurate with his minimal success in the case.
Antoninetti argues in his opening brief that the District Court abused its discretion by not awarding him more attorneys’ fees than it did. (Antoninetti’s argument in his Opening Brief on this cross-appeal is in large part a verbatim repetition of his arguments from the consolidated cross-appeal on the District Court’s January 10, 2008 Judgment.) Essentially Antoninetti argues that he should have prevailed on all of his claims before the District Court and is therefore entitled to all of the fees he requested in his fee petition. This argument fails for all the reasons set forth in Chipotle’s Opening and Response Brief and its Fourth Brief
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on the consolidated cross-appeal. Furthermore, Antoninetti’s remaining arguments that he should have been granted a larger fee award all fail to account for his minimal success in this case, and are therefore flatly refuted by the Supreme Court’s ruling in Farrar and this Court’s ruling in McGinnis.
ARGUMENT I. Standard Of Review.
A district court’s decision to award or deny attorneys’ fees and/or costs is reviewed under the abuse of discretion standard. Galen v. County of L.A., 477 F.3d 652, 658 (9th Cir. 2007); Berkla v. Corel Corp., 302 F.3d 909, 917 (9th Cir. 2002); Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir. 1999). A district court abuses its discretion when its decision is based on an inaccurate view of the law or a clearly erroneous finding of fact. Traditional Cat Ass’n, Inc. v. Gilbreath, 340 F.3d 829, 833 (9th Cir. 2003). Any elements of legal analysis that figure into the fee determination are subject to de novo review, and the underlying factual determinations are reviewed for clear error. Tahara v. Matson Terminals, Inc., 511 F.3d 950, 952 (9th Cir. 2007). “Review under the clearly erroneous standard is significantly deferential, requiring for reversal a definite and firm conviction that a mistake has been made.” United States v. Asagba, 77 F.3d 324, 326 (9th Cir. 1996).
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II. Standards For Determining Reasonable Attorneys’ Fees. Section 505 of the ADA provides that “in any action or administrative
proceeding commenced pursuant to [the ADA], the court or agency, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. The CDPA contains a similar provision, stating that any person who is aggrieved by any violation of his rights under that statute (which, as Antoninetti notes, states that any violation of the ADA also constitutes a violation of the CDPA) may bring an action for injunctive relief and that “the prevailing party in the action shall be entitled to recover reasonable attorneys’ fees.” Cal. Civ. Code, § 55. Both statutes establish a two part test for determining an award of attorneys’ fees.
In the first step of the inquiry, the Court must determine whether Antoninetti is eligible for an award of attorneys’ fees under the statutes, that is, whether he is a “prevailing party.” 42 U.S.C. § 12205; Cal. Civ. Code § 55. The Supreme Court clarified the meaning of the term “prevailing party” in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res. In that case, the Supreme Court flatly rejected the “catalyst theory” as a basis for awarding attorneys’ fees and held that:
A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents
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thus counsel against holding that the term “prevailing party” authorizes an award of attorney's fees without a corresponding alteration in the legal relationship of the parties. Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 1840, 149 L.Ed.2d 855 (2001). Rather, to qualify as a “prevailing party” a litigant must achieve: (1) a material alteration of the legal relationship of the parties, (2) which alteration is “judicially sanctioned.” Carbonell v. I.N.S., 429 F.3d 894, 898 (9th Cir. 2005) (citing Buckhannon, 532 U.S. at 604-05, 121 S.Ct. 1835, 149 L.Ed.2d 855).
The second step is to apply the “lodestar” measure of fees in order to determine what fees are “reasonable.” See Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.1987) (citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The “loadstar” measure is obtained by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. Id. In evaluating what is a reasonable number of hours, the Court must review detailed time records to determine whether the hours claimed by the applicant were unnecessary, duplicative or excessive. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 (9th Cir. 1987).
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However, it is also well established that where a plaintiff prevails as to only some of the issues in the case, a reduction in the loadstar calculation is appropriate. In Hensley v. Eckhart, the Supreme Court held that where a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d 40. Thus, “where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.” Id., 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d 40. Indeed, in cases where a plaintiff receives only nominal damages or achieves only technical success, but does not succeed in obtaining the primary relief sought in the lawsuit, a court may dispense with the calculation of a lodestar and simply establish a low fee or no fee at all. Farrar v. Hobby, 506 U.S. 103, 115-116, 113 S.Ct. 556, 575, 121 L.Ed.2d 494 (1992).
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III. If The Court Finds That Chipotle’s Food Preparation Counters Comply With The Requirements Of ADAAG 7.2(2)(i) Or (ii) Or That Chipotle’s Unwritten Practice Of Accommodating Customers With Disabilities Constituted Equivalent Facilitation, It Must Reverse The District Court’s Order Awarding Antoninetti Attorneys’ Fees. The District Court’s award of attorneys’ fees was based on its conclusion
that Antoninetti was entitled to a total of $5,000 in damages for the five occasions that he visited the Restaurants as a bona fide customer before the implementation of the Customers With Disabilities Policy.60 That holding, in turn, was based on the District Court’s finding on summary judgment that Chipotle’s food preparation counters did not comply with the technical requirements of ADAAG Section 7.2(2)(i), (ii) and its finding in its post-trial Judgment that Chipotle’s unwritten practice of accommodating customers with disabilities did not constitute an equivalent facilitation under ADAAG Sections 2.2 and 7.2(2)(iii). Thus, if this Court were to reverse either of those findings in the related cross-appeal on the merits of this case, Antoninetti would not be entitled to any attorneys’ fees related to any alleged denial of access to Chipotle’s food preparation counters.
As set forth in detail in Chipotle’s Opening/Response Brief and its Reply Brief in the related cross-appeal on the merits of this case, the food preparation counters at the Restaurants are fully compliant with ADAAG Section 7.2(2)(i) and
60 ER I-3, at 4.
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(ii)61 and Chipotle’s unwritten practice of accommodating customers with
disabilities constitutes an equivalent facilitation.62 Accordingly, the District Court
erred in holding that Antoninetti was entitled to attorneys’ fees for his claim that he
did not receive equal facilitation on those occasions when he visited the
Restaurants as a bona fide customer before Chipotle’s adoption of the written
Customers With Disabilities Policy.
Although Antoninetti may still claim that he nevertheless is entitled to
attorneys’ fees for the work related to his claim for $2,000 in damages under the
CDPA based on the visits he made to the Restaurants as a bona fide customer in
which he encountered barriers to the accessibility of the parking lots,63 such de
minimis success does not merit an award of attorneys’ fees (or at most merits a
61 See Appellee/Cross-Appellant’s Opening/Response Brief in Ninth Circuit Case Nos. 08-55867, 08-55946, at 41-47. A counter complies with ADAAG Section 7.2(2)(i) if “a portion of the main counter” is no more than 36 inches high and is at least 36 inches long. 28 C.F.R. § 36, App. A, § 7.2(2)(i). Chipotle’s food preparation counters meet this requirement because they all include “transaction stations” at the end of the counters that are 34 inches high and approximately four feet long. The transaction stations are attached to the food preparation counters, unobstructed, and capable of being used to allow Chipotle’s customers to see and sample the different ingredients available to them. Similarly, a counter complies with ADAAG Section 7.2(2)(ii) if it is an auxiliary counter with a maximum height of 36 in (915 mm) that is in close proximity to the main counter. 28 C.F.R. § 36, App. A, § 7.2(2)(ii). Again, Chipotle’s transaction stations meet the height requirements of this regulation and, because they are attached to the rest of the food preparation counters, are in close proximity to the main counter. 62 See Appellee/Cross-Appellant’s Opening/Response Brief in Ninth Circuit Case Nos. 08-55867, 08-55946, at 57-61. 63 Chipotle has not appealed the District Court’s ruling that Antoninetti is entitled to the statutory minimum amount of damages based on those visits.
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nominal fee award). Farrar, 506 U.S. at 115-116, 113 S.Ct. at 575, 121 L.Ed.2d 494. That issue was of little consequence to this case, and was voluntarily corrected by Chipotle before the parties filed their cross motions for summary judgment in the District Court.64 In Farrar, a case involving a similarly nominal “victory” by the plaintiff, the Supreme Court upheld the Fifth Circuit’s decision that the plaintiff was not entitled to any attorneys’ fees. Farrar, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494. The Supreme Court noted that “when a plaintiff recovers only nominal damages … the only reasonable fee is usually no fee at all.” Farrar, 506 U.S. at 115, 113 S.Ct. at 575, , 121 L.Ed.2d 494. Thus, if this Court agrees with Chipotle that its food preparation counters comply with the requirements of ADAAG Section 7.2(2)(i), (ii) and/or that Chipotle’s unwritten practice of accommodating customers with disabilities constituted an equivalent facilitation, it must reverse the District Court’s award of attorneys’ fees to Antoninetti and order that Antoninetti is not a prevailing party and thus not entitled to any attorneys’ fees. IV. Even If The Court Upholds The District Court’s Decision On The
Merits Of The Case, The District Court’s Attorneys’ Fee Award Must Be Reversed Because The District Court Abused Its Discretion In Awarding Antoninetti $136,537.83 Based On His Limited Success. If the Court upholds the District Court’s judgment in this case, it nevertheless must reverse the District Court’s award of attorneys’ fees, because the 64 ER I-6, at 20-21.
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award is so disproportionate to the degree of Antoninetti’s success in this case that it constitutes an abuse of discretion. Indeed, under controlling precedent the District Court should have refused to award any attorneys’ fees or, at most, awarded a nominal amount of fees commensurate with Antoninetti’s minimal recovery in this case. Farrar, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494; McGinnis v. Kentucky Fried Chicken, 51 F.3d 805, 810 (9th Cir. 1994).
A. Antoninetti Should Not Have Been Awarded Any Attorneys’ Fees Because He Prevailed Only On Two Minor Issues In The Case That Resulted In No Benefit To The Public And For Which He Obtained Only The Statutory Minimum Amount Of Damages.
In determining the appropriateness of a fee award, the “most critical factor is the degree of success obtained.” Hensley, 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d 40. Indeed, this Court has found that the amount of attorneys’ fees must be commensurate with the amount of the plaintiff’s recovery where, as is the case here, the relief obtained by the plaintiff is limited to money damages. See McGinnis, 51 F.3d at 810.
As set forth above, the Supreme Court has held that where a plaintiff receives only nominal damages or achieves only technical success, but does not succeed in obtaining the primary relief sought in the lawsuit, a court may dispense with the calculation of attorneys’ fees using the loadstar method and simply establish a low fee or no fee at all. Farrar, 506 U.S. at 115-116, 113 S.Ct. at 575,
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121 L.Ed.2d 494. In addition to considering the amount of money damages awarded to a plaintiff, a court must also consider “the significance of the legal issues on which the plaintiff claims to have prevailed” and whether the plaintiff’s litigation has served any “public purpose.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (quoting Farrar, 506 U.S. at 121-122, 113 S.Ct. at 578, 121 L.Ed.2d 494). Where litigation accomplishes little beyond giving a plaintiff the moral satisfaction of knowing that a federal court concluded that his rights had been violated, a court may refuse to award any fees to the plaintiff. Farrar, 506 U.S. at 114-116, 113 S.Ct. at 574-575, 121 L.Ed.2d 494.
Antoninetti’s purported “success” in this matter is exactly the kind of limited, technical victory that the Supreme Court found to be undeserving of an attorneys’ fee award in Farrar. Chipotle prevailed as to the overwhelming majority of Antoninetti’s claims in this case.65 Specifically, Antoninetti raised claims for injunctive relief and damages under the ADA, the Unruh Act, the California Health and Safety Code and the CDPA regarding alleged barriers to the accessibility of Chipotle’s restrooms, dining areas, and entrances - all of which were dismissed by the District Court on summary judgment.66 Chipotle also successfully moved for summary judgment on Antoninetti’s ADA claims regarding
65 ER I-5; ER I-6. 66 ER I-6, at 22-24.
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the parking lots at the Restaurants.67 And, at trial, Chipotle prevailed on the most significant issues in the case. It obtained an order holding that its current Customers With Disabilities Policy constitutes equivalent facilitation and denying Antoninetti’s request for an injunction requiring Chipotle to lower the wall in front of its food preparation counters.68 Ultimately Antoninetti succeeded only in obtaining the statutory minimum damages for his CDPA claims regarding the parking lots of the Restaurants and his visits to the Restaurants before the adoption of the written Customers With Disabilities Policy.69 Antoninetti’s “victory” below can only be described as pyrrhic.
The nature and substance of the relief that Antoninetti actually obtained further undermines his claim for attorneys’ fees. The District Court awarded Antoninetti “$5,000.00, and no more, for [Chipotle’s] failure to accommodate under the rules of the ADA and CDPA during [Antoninetti’s] visits to Chipotle before the implementation of the Customers With Disabilities Policy.”70 The damage award is comprised of 5 awards of $1,000 (the statutory minimum amount of damages under the CDPA)—one for each of the 5 occasions that Antoninetti visited the Restaurants as a bona fide customer and encountered the alleged barriers to his access to the parking lots or was not accommodated. Not only did 67 ER I-6, at 20-21. 68 ER I-5, at 32-38. 69 ER I-5, at 38-39. 70 ER I-5, at 39.
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the Court award Antoninetti the bare minimum for the CDPA claims as to which he prevailed, Antoninetti did not even try to prove at trial that he suffered any actual damages so that he could claim a larger award. That award of money damages is only a small fraction of the $24,00071 in statutory minimum damages that Antoninetti initially sought.
In any event, money damages were never the primary form of relief Antoninetti sought to obtain through this lawsuit. From the outset of this case, Antoninetti made it clear that his primary goal was to obtain an injunction requiring Chipotle to correct the alleged barriers to Antoninetti’s access to the Restaurants. Most importantly, Antoninetti sought an injunction requiring Chipotle to lower the 44-inch wall in front of the food preparation counters at the Restaurants.72 As set forth above, that particular claim for injunctive relief was Antoninetti’s primary goal in this litigation and has also been the central point of contention throughout this litigation.
Antoninetti attempts to “puff up” his achievements by arguing that he obtained a declaration from the District Court requiring that Chipotle add two new elements to its Customers With Disabilities Policy: (1) a requirement that managers, rather than crew members, carry out the policy, and (2) a requirement 71 Pursuant to Section 54.3 of the California Civil Code, the District Court had the discretion to award up to $15,000 for these five visits, yet awarded only the statutory minimum. 72 ER IV-21.
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that the manager on duty at Chipotle’s restaurants affirmatively inform customers with disabilities of the various accommodation options available to them without waiting for the customer to request accommodation. This argument is a disingenuous attempt to present the District Court’s factual findings regarding the actions that Chipotle already was taking under its Written Customers With Disabilities Policy as a form of declaratory relief. Antoninetti is fabricating a legal victory where none exists, in an attempt to justify some portion of the attorneys’ fees he has claimed.
Nowhere in its Judgment did the District Court impose a requirement that Chipotle’s managers administer the Customers With Disabilities Policy or that the managers offer accommodations to restaurant patrons without being asked by the patron. Indeed, the District Court did not impose any specific requirements as to exactly what must be done under the Customers With Disabilities Policy for that policy to qualify as an equivalent facilitation. Rather, the District Court simply stated that Chipotle presented uncontroverted evidence at trial as to what actions it actually takes in administering its Customers With Disabilities Policy.73 In other words, the District Court simply made factual findings and conclusions about what Chipotle was already doing under the policy.
73 ER I-5, at 32.
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Furthermore, the District Court correctly held that Antoninetti’s lawsuit had not resulted in any significant benefit to the public. This Court has held that to determine whether a lawsuit has resulted in any benefit to the public, the district court should consider whether the plaintiff has affected a change in policy or a deterrent to widespread civil rights violations. McCown v. City of Fontana, 565 F.3d 1097, 1105 (9th Cir. 2009). Antoninetti accomplished neither in this case. Antoninetti failed to obtain any injunctive relief that would have required Chipotle to alter any of the aspects of the Restaurants that he claimed were inaccessible. Although Chipotle established its written Customers With Disabilities Policy during the course of this litigation, it did so voluntarily as part of its continuing efforts to improve its customer service.74 The policy was not adopted by Chipotle pursuant to any court order, consent decree or settlement agreement with Antoninetti. Indeed, Antoninetti argued both in the District Court and on appeal that the policy is insufficient and violates the ADA. Similarly, while Chipotle also altered its parking lots during the course of this litigation, those alterations were made voluntarily, and were not required by any court order, consent decree or settlement. Accordingly, Antoninetti cannot rely on Chipotle’s voluntary creation of its Customers With Disabilities Policy or its modifications of its parking lots to
74 ER I-5, at 19.
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support his claim for attorneys’ fees. Buckhannon, 532 U.S. at 605, 121 S.Ct. at 1840, 149 L.Ed.2d 855.
Antoninetti asserts in his Opening Brief on this cross-appeal that his lawsuit did result in a benefit to the public because it established that unwritten, informal policies of accommodation are not equivalent facilitation. However, the District Court’s holding was not nearly as broad as Antoninetti claims. The District Court did not hold that all “unwritten” or “informal” policies do not and cannot constitute equivalent facilitation. Rather, the District Court simply determined that Chipotle’s prior unwritten practice of accommodation that was in place at the Restaurants on the occasions when Antoninetti visited them as a bona fide customer did not qualify as an equivalent facilitation.75 Furthermore, that practice had been supplemented by the written Customers With Disabilities Policy, which the District Court found to be an equivalent facilitation, long before the District Court entered its Judgment. As such, the public did not gain any new benefits as a result of the judgment in Antoninetti’s favor regarding Chipotle’s unwritten practice of accommodation. All that Antoninetti accomplished by obtaining the judgment that Chipotle’s unwritten practice of accommodation did not qualify as an equivalent facilitation was an award of $5,000 in statutory damages under the CDPA.
75 ER I-5, at 19.
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Additionally, while Antoninetti asserts that the District Court’s ruling will have a collateral estoppel effect on similar claims raised by Antoninetti and other plaintiffs in two related class actions, he fails to cite any case law holding that the fact that a judgment may have a collateral estoppel effect is sufficient to establish that the judgment resulted in a tangible benefit to the public. The one case that he cites, Wilcox v. City of Reno, simply held that a district court may consider the collateral estoppel effect of a judgment in determining whether an attorneys’ fee award is appropriate. Wilcox v. City of Reno, 42 F.3d 550, 555 (9th Cir. 1994). The court did not even mention the subject of “public benefit” in its decision. In any event, in this case the District Court’s decision had a largely negative collateral estoppel effect on Antoninetti and the other plaintiffs in the related class actions. The District Court held that the Customers With Disabilities Policy constitutes an equivalent facilitation and that therefore Chipotle is not required by law to lower the wall in front of its food preparation counters. As with this case, the primary issue in the related class actions is whether Chipotle is required by law to lower the wall in front of its food preparation counters.76 Accordingly, to the extent that the District Court’s decision has a collateral estoppel effect on the related class actions, that effect will be largely unfavorable to Antoninetti and the other plaintiffs in those suits. Antoninetti therefore cannot plausibly argue that he obtained any
76 See Appellee/Appellant’s Request for Judicial Notice, Exs. A and B.
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benefits for the general public as a result of the collateral estoppel effect of the District Court’s judgment.
In short, Antoninetti lost on the majority of the issues in this case, failed to obtain any of the injunctive relief that he requested (the primary form of relief that he sought in this lawsuit), failed to benefit the public through his lawsuit, and succeeded only in obtaining the bare minimum of damages required by the CDPA for the five visits that he made to the Restaurants as a bona fide customer before the adoption of the Customers With Disabilities Policy. Accordingly, under Farrar, the District Court should have denied Antoninetti’s request for attorneys’ fees in its entirety based on such minimal success. In failing to do so, the District Court abused its discretion.
B. The District Court Abused Its Discretion By Awarding Antoninetti Attorneys’ Fees That Grossly Exceeded His Limited Recovery.
At the very least, the District Court abused its discretion in awarding Antoninetti $136,537.83 in attorneys’ fees when he recovered only $5,000 in damages. That holding is plainly contrary to well established precedent in this Circuit and other federal courts of appeals reversing or reducing awards of attorneys’ fees that are grossly disproportionate to the amount of the plaintiff’s success. See, e.g., Corder v. Brown, 25 F.3d 833, 841 (9th Cir. 1994) (court remanded attorneys’ fee award of $240,695 as to damages of $24,006 “to consider
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the limited success issue in light of Farrar”); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048 (5th Cir. 1998) (court found that attorney fee award of $81,000 was “over six and one-half times the amount of damages awarded,” and such a ratio was “simply too large to allow the fee award to stand”); Gumbhir v. Curators of University of Missouri, 157 F.3d 1141, 1147 (8th Cir. 1998) (where plaintiff sought “sweeping injunctive relief” but recovered only $8,846.40 in lost wages and benefits, court reduced attorneys’ fee award from $110,000 to $46,750, finding that plaintiff “did not succeed on his claims for institutional equitable relief. He prevailed on only one of his personal damage claims”); Dannenberg v. Valadez, 338 F.3d 1070, 1071 (9th Cir. 2003) (where plaintiff recovered only $9,000 in damages and part of the desired injunctive relief, court vacated attorneys’ fee award of $57,566, holding that “the district court did not properly consider [plaintiff’s] degree of success in arriving at a reasonable fee award”).
Indeed, in McGinnis v. Kentucky Fried Chicken, this Court expressly held that a district court abused its discretion in awarding $148,000 in attorneys’ fees to a plaintiff who recovered only $34,000 in damages. McGinnis, 51 F.3d at 810. In so holding, this Court noted that “[l]awyers might reasonably spend $148,000 worth of time to win $234,000[, b]ut no reasonable person would pay lawyers $148,000 to win $34,000.” Id. Accordingly, this Court remanded that case to the
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district court with instructions to “reduce the attorneys fee award so that it is commensurate with the extent of plaintiff’s success.” Id.
Although the District Court cited McGinnis in its order awarding Antoninetti his attorneys’ fees, by awarding Antoninetti $136,537.83 in attorneys’ fees it did exactly what this Court found to be an abuse of discretion in McGinnis. Indeed, if it is an abuse of discretion for a district court to award $140,000 in attorneys’ fees to a plaintiff who recovers only $34,000 in damages, the same may be said with even greater force of the District Court’s award of nearly $140,000 in a case where the plaintiff recovered only $5,000 in damages. Furthermore, whereas the damages recovered by the plaintiff in McGinnis were more significant in the overall scheme of that case because the primary relief sought by the plaintiff was money damages, the damages recovered by Antoninetti in this case were all but insignificant because the principle form of relief that he sought was an injunction requiring Chipotle to lower the wall in front of its food preparation counters. As such, the District Court’s award of attorneys’ fees in this case was even more excessive than the one at issue in McGinnis.
Therefore, if the Court upholds the District Court’s judgment, it nevertheless must remand the issue of attorneys’ fees to the District Court with instructions to enter an order refusing to award any attorneys’ fees based on Antoninetti’s lack of
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success, or awarding only a nominal amount of attorneys’ fees commensurate with Antoninetti’s extremely limited success in this case. V. The District Court Did Not Abuse Its Discretion By Failing To Award
Antoninetti More Attorneys’ Fees. In his Opening Brief in this cross-appeal, Antoninetti raises four arguments in support of his assertion that the District Court abused its discretion by not awarding him more than $136,537.83 in attorneys’ fees. First, Antoninetti asserts that the District Court erred as to its underlying decision on the merits of the case and that therefore Antoninetti should be entitled to recover all of his claimed attorneys’ fees. Second, Antoninetti claims that the District Court abused its discretion by finding that Antoninetti’s lawsuit did not result any significant public benefit. Third, Antoninetti claims that the District Court abused its discretion by refusing to award Antoninetti attorneys’ fees for all of his claims based on his limited success with respect to his CDPA claims for damages based on the parking lots at the Restaurants and Chipotle’s unwritten practice of accommodation. Fourth, Antoninetti claims that the District Court abused its discretion by holding that Antoninetti’s attorney’s “block-billed” time entries in her billing statements (single time entries that list more than one task with an aggregate amount of time spent for all of the tasks included in the entries) precluded the Court from identifying how much time Antoninetti’s attorney spent on each individual task
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and whether that amount was reasonable. These arguments lack support in law or fact.
A. Antoninetti Has Failed To Establish That The District Court Erred In Its Judgment On The Merits Of The Case And That It Abused Its Discretion By Not Awarding Him All Of His Requested Attorneys’ Fees.
Antoninetti’s argument that he is entitled to an award of all of his attorneys’ fees because the District Court should have ruled in his favor on the merits of the case simply repeats the arguments that Antoninetti has previously asserted in his Opening and Third Brief in the consolidated cross-appeal (Ninth Circuit Case Nos. 08-55867, 08-55946). Indeed, the contents of Antoninetti’s Statement of the Case, Statement of Facts, and Section A of the Argument Section of his Opening Brief in this cross-appeal (which comprise the majority of Antoninetti’s Brief) are taken almost verbatim from Antoninetti’s Opening and Third Briefs in the consolidated cross-appeal. Rather than simply repeat its responses to those arguments regarding the merits of the District Court’s decision, Chipotle submits that those arguments must fail for the same reasons set forth in Chipotle’s Opening and Response Brief and Fourth Brief on the related cross-appeal (Ninth Circuit Case Nos. 08-55867, 08-55946), which Chipotle incorporates herein by reference.
Furthermore, even if the Court were to rule in Antoninetti’s favor on appeal, it must remand the issue of attorneys’ fees to the District Court, to allow the
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District Court to determine the amount of attorneys’ fees reasonably incurred by Antoninetti. As the District Court noted in its February 6, 2009 Order awarding Antoninetti $136,537.83 in attorneys’ fees, Antoninetti has the burden of “establishing his entitlement to an award [of attorneys’ fees] and of documenting the appropriate hours expended and hourly rates, including maintaining billing time records in a manner that will enable a reviewing court to identify distinct claims.”77 Antoninetti has failed to meet that burden both in the proceedings below and on this appeal. Indeed, although Antoninetti spends approximately 50 pages repeating the contents of his briefs from the related cross-appeal, he does not offer any evidence or argument on appeal regarding the amount of time his attorney spent working on the issues as to which he claims he should have prevailed, the specific tasks performed in litigating those claims, the complexity of the issues involved, the skill required to perform the legal work properly, or any other information that would support his assertion on appeal that his total claimed fees are “reasonable.” Having failed to raise these arguments in his opening brief, Antoninetti has waived his right to do so. Martinez v. Ylst, 951 F.2d 1153, 1156-
77 ER I-2, at 8 (quoting Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, 76 L.Ed.2d 40); see also Carson v. Billings Police Dept., 470 F.3d 889, 891 (9th Cir. 2006).
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57 (9th Cir. 1991) (failure to raise an issue in an initial appeal brief constitutes waiver of that issue on appeal).78
B. Antoninetti Has Failed To Establish That The District Court Abused Its Discretion By Finding That His Lawsuit Did Not Result In Any Significant Benefit To The Public.
As set forth above in Section IV.A., Antoninetti has failed to establish that the District Court abused its discretion in holding that his lawsuit did not result in any significant benefit to the public. Antoninetti’s lawsuit did not result in any judicially sanctioned relief requiring Chipotle to change its policies. Indeed, the District Court held that Chipotle’s written Customers With Disabilities Policy, as it already had been implemented by Chipotle, meets the requirements of ADAAG Sections 2.2 and 7.2(2)(iii). Antoninetti has also failed to offer any evidence that his lawsuit has served as a deterrent to widespread violations of civil rights. Accordingly, Antoninetti has failed to demonstrate that the District Court abused its discretion in holding that his lawsuit did not result in any significant public benefit. See McCown, 565 F.3d at 1105.
78 Additionally, to the extent that the Court finds in Antoninetti’s favor on the merits of the case, but agrees with the District Court’s summary judgment rulings that neither ADAAG Section 4.33.3 nor the general anti-discrimination provisions of the ADA require Chipotle to provide comparable lines of sight at its food preparation counters, it must remand the case to the District Court with instructions that Antoninetti may not recover attorneys’ fees for work performed on those issues.
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C. Antoninetti Has Failed To Establish That The District Court’s Holding Regarding Antoninetti’s Failure To Distinguish Between Fees Related To The Claims On Which He Prevailed And Fees Related To Claims On Which He Lost Constitutes An Abuse Of Discretion.
In his Opening Brief on this cross-appeal, Antoninetti appears to argue that the District Court abused its discretion by not awarding him all of the attorneys’ fees requested in his fee petition because it is not possible to distinguish between the work that Antoninetti performed on his claims regarding the unwritten practice of accommodation and the Customers With Disabilities Policy. This argument fails for two reasons. First, Antoninetti has failed to establish that the District Court committed any error, let alone abused its discretion, in holding that Antoninetti’s claims regarding the unwritten practice were distinct from his claims regarding the Customers With Disabilities Policy. Second, and more importantly, Antoninetti cannot establish that it would have been reasonable for the District Court to award him over $500,000 in attorneys fees when he lost on all of the most significant issues in the case and obtained a damage award of only $5,000 (the minimum amount allowed under the CDPA).
Although Antoninetti asserts that the claims on which he prevailed were inextricably intertwined with the claims on which he lost and that he must therefore be permitted to recover all of his attorneys’ fees, his assertion is unsupported by applicable case law or the facts of this case. Where a plaintiff
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presents “in one lawsuit distinctly different claims for relief that are based on different facts and legal theories[,] . . . work on an unsuccessful claim cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’” Hensley, 461 U.S. at 434-435. Here, the work that Antoninetti’s attorney performed on the issue of whether Chipotle’s unwritten practice of accommodating individuals with disabilities was completely separate and distinct from the issues of whether Chipotle’s written Customers With Disabilities Policy constituted an equivalent facilitation and whether ADAAG Section 4.33.3 or the general antidiscrimination provisions of the ADA imposed sight-line requirements on Chipotle’s food preparation counters.
The unsuccessful arguments advanced by Antoninetti that the food preparation counters violated ADAAG Section 4.33.3 and the ADA’s general antidiscrimination provisions because they did not offer equivalent sight-lines to wheelchair users were entirely separate and distinct from the issue of whether Chipotle’s old unwritten practice of accommodation constituted equivalent facilitation under ADAAG Section 7.2(2)(iii). Whether ADAAG Section 4.33.3 applied to the food preparation counters or the ADA’s general anti-discrimination provisions required that wheelchair users be afforded comparable sight lines at the food preparation counters were legal questions, which the District Court resolved against Antoninetti at the summary judgment stage. Those legal questions did not
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require the same factual analysis as the issue of whether the old unwritten practice of accommodation constituted equivalent facilitation for persons in wheelchairs; in fact, it did not require consideration of that practice at all. Moreover, Antoninetti’s arguments regarding Chipotle’s unwritten practice of accommodation were based on separate provisions of the ADAAG and the ADA. Antoninetti’s claims regarding the applicability of sight-line requirements to the wall in front of Chipotle’s food preparation tables were based on ADAAG § 4.33.3. Antoninetti’s claims regarding the unwritten practice of accommodation were analyzed under ADAAG §§ 2.2 and 7.2(2). Accordingly, the attorney and expert witness fees Antoninetti incurred in developing and litigating his unsuccessful arguments that Chipotle’s food preparation counters violated ADAAG Section 4.33.3 and the ADA’s general anti-discrimination provisions because they did not offer comparable sight-lines to wheelchair users were not at all intertwined with the issues on which Antoninetti prevailed.
Similarly, Antoninetti’s claims regarding the prior unwritten practice are distinct from his claims regarding the Customers With Disabilities Policy. For instance, Antoninetti’s claims regarding the prior unwritten practice concern the period from the date of Antoninetti’s first visit to one of the Restaurants, through February 2007, when the Written Customers With Disabilities Policy was
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adopted.79 The facts pertaining to Antoninetti’s claims regarding the Customers With Disabilities Policy were, in turn, limited to the events occurring from the date of the policy’s release in February of 2007 through present.80 Not only were the time periods relevant to those claims different, the specific requirements of the Customers With Disabilities Policy and the unwritten practice were markedly different, as the Court found in its January 10, 2008 order.81 Similarly, the relief that Antoninetti sought and that was potentially available with respect to both claims was very different. On the one hand, Antoninetti could recover only money damages for his claims regarding the old practice because Chipotle was no longer operating under it. On the other hand, Antoninetti would have only been able to obtain injunctive and declaratory relief as to his claims regarding the Customers With Disabilities Policy because he had never visited either Restaurant when the Customers With Disabilities Policy was in effect. Accordingly, the District Court did not abuse its discretion in holding that the work Antoninetti performed in order to prevail on his CDPA claim for damages was not inextricably intertwined with the work he performed on his unsuccessful claims regarding Chipotle’s written Customers With Disabilities Policy and his unsuccessful arguments regarding the
79 ER I-5, at 19-20. 80 Id. 81 Id., at 32-34.
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application of ADAAG Section 4.33.3 and the general anti-discrimination provisions of the ADA.
More importantly, however, Antoninetti cannot establish that it would have been reasonable for the District Court to have awarded him the entire $550,651.33 in attorneys’ fees that he sought in his fee petition. As the District Court noted in its decision, if it was an abuse of discretion for a district court to award $140,000 in attorneys’ fees to a plaintiff who had recovered only $34,000 in damages, it would have also been an abuse of discretion for the District Court to award over $500,000 in attorneys’ fees to Antoninetti where he only obtained an award of $5,000 in damages. Furthermore, under both Farrar and McGinnis, the District Court was required to ensure that Antoninetti’s attorneys’ fee award was commensurate with his limited success and, if necessary, reduce any award calculated using the loadstar method accordingly. Farrar, 506 U.S. at 115-116, 113 S.Ct. at 575, 121 L.Ed.2d 494; McGinnis, 51 F.3d at 810. Indeed, under Farrar, the District Court had the discretion to dispense with the loadstar method altogether and simply award a nominal amount of attorneys’ fees or no attorneys’ fees at all. 506 U.S. at 115-116, 113 S.Ct. at 575, 121 L.Ed.2d 494. Antoninetti simply cannot establish that the District Court abused its discretion by not awarding him more attorneys’ fees when he lost on all of the most significant issues in this case, obtained only the statutory minimum amount of damages for the
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two minor claims on which he prevailed, and failed to produce any significant benefit to the public through his litigation.
D. Antoninetti Has Failed To Establish That The District Court’s Holding Regarding Antoninetti’s “Block Billed” Time Entries Constitutes Reversible Error.
In his Opening Brief on this cross-appeal, Antoninetti argues that the District Court abused its discretion by allegedly reducing Anoninetti’s fee award by 75% based on the fact that a substantial number of the time entries in the billing records submitted by Antoninetti contained “block billed” time entries. This argument is a red herring. The District Court did not reduce the fees awarded to Antoninetti by 75% simply because Antoninetti’s attorney bock-billed her time. Rather, the District Court made the 75% across-the-board reduction in Antoninetti’s requested fees based on the limited success that Antoninetti had achieved on the merits of his claims, the lack of any public benefit from his litigation and Antoninetti’s failure to provide adequate documentation to allow the District Court to determine if the fees that he had requested were “reasonable.”82
Although the District Court did rely, in part, on the substantial number of block-billed time entries in Antoninetti’s attorney’s billing records to support its conclusion that Antoninetti had failed to meet his burden of “documenting the appropriate hours expended” on the claims on which he prevailed, it did not abuse
82 ER I-2, at 7-9.
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its discretion in doing so. Federal courts frequently refuse to award fees for blockbilled time entries or reduce the fees awarded to prevailing plaintiffs whose attorneys’ time records contain block-billed time entries precisely because such entries leave the court with no way of knowing how much time was actually spent on each of these individual items in the block entries. See, e.g., In re Olson, 884 F.2d 1415, 1428 (D.C. Cir. 1989); Keith v. Volpe, 644 F. Supp. 1317, 1322 (C.D. Cal. 1986).
In any event, Antoninetti cannot establish that the 75% across-the-board reduction in his requested attorneys’ fees constitutes an abuse of discretion because such a reduction was required under controlling precedent. See Farrar, 506 U.S. at 115-116, 113 S.Ct. at 575, 121 L.Ed.2d 494; McGinnis, 51 F.3d at 810. Indeed, as set forth above in Section IV of this Brief, the Disctict Court abused its discretion under Farrar and McGinnis in awarding Antoninetti as much as it did. VI. The District Court Did Not Abuse Its Discretion By Declining To Award
Antonineti His Requested Costs. Antoninetti asserts for the first time in his Opening Brief on this crossappeal that he is entitled to all of the costs claimed in this case under California Code of Civil Procedure Section 1032. This argument is frivolous. Antoninetti sought his costs under Rule 54 of the Federal Rules of Civil Procedure, not
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California Code of Civil Procedure Section 1032.83 Under Rule 54 of the Federal Rules of Civil Procedure, the decision to award costs lies in the discretion of the trial court. Maurice A. Garbell, Inc. v. Boeing Co., 546 F.2d 297, 301 (9th Cir. 1976). Antoninetti cannot rely on California procedural law to establish his entitlement to costs.84 This case has been litigated in federal court. Accordingly, federal procedural law applies. Vacation Village, Inc. v. Clark County, Nev., 497 F.3d 902, 913 (9th Cir. 2007). Because Antoninetti had prevailed on only two very minor issues and Chipotle had prevailed on the majority and most significant of the issues in the case, including the central issue of whether Chipotle was required to lower the wall in front of its food preparation counters, the District Court properly exercised its discretion in refusing to award Antoninetti costs.
Furthermore, to the extent that the Court rules in favor of Chipotle on the merits of the consolidated cross-appeal (Ninth Circuit Case Nos. 08-55867, 0855946), it should remand the case to the District Court with instructions to grant Chipotle’s bill of costs.
83 See ER VIII-31. 84 Even under California procedural law, Antoninetti’s argument that he should have been awarded costs must fail. Under California Code of Civil Procedure, section 1033, subdivision (b), where a plaintiff recovers a judgment of $5,000 or less in a “limited” civil case, where the maximum damages are $25,000 or less, the award of costs is discretionary. Because Antoninetti recovered only $5,000, the District Court had the discretion not to award costs under California procedural law as well.
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CONCLUSION For the foregoing reasons, Chipotle respectfully requests that this Court reverse and remand the District Court’s August 21, 2008 and February 6, 2009 Orders on Antoninetti’s motion for attorneys’ fees, with instructions that the District Court issue an order holding that Antoninetti is not entitled to any attorneys’ fees (or, alternatively, awarding Antoninetti a nominal amount of attorneys’ fees commensurate with his extremely limited success) and granting Chipotle’s motion for costs.
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REQUEST FOR ORAL ARGUMENT Pursuant to Rule 34(a) of the Federal Rules of Appellate Procedure, Appellee/Cross Appellant Chipotle Mexican Grill, Inc. requests the opportunity to present oral argument before this Court.

Date: July 17, 2009

Respectfully submitted,
CHIPOTLE MEXICAN GRILL, INC.
By: s/ Gregory F. Hurley Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 hurleyg@gtlaw.com
Counsel for Appellee/Cross-Appellant

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STATEMENT OF RELATED CASES On May 13, 2009, this Court granted Appellant/Cross-Appellee’s motion for consolidation of Case Nos. 09-55327 and 09-55425 with Case Nos. 08-55867 and 08-55946 to extent that the aforementioned appeals shall be assigned to the same merits panel. Pursuant to Circuit Rule 28-2.6, I hereby certify that there are no known related cases pending before the United States Court of Appeals for the Ninth Circuit.
s/ Gregory F. Hurley Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 hurleyg@gtlaw.com Counsel for Appellee/Cross-Appellant
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CERTIFICATE OF COMPLIANCE FOR CASE NOS. 09-55327 AND 09-55425 Pursuant to Rules 28.1(e)(3) and 32(a)(7)(C) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 32-1, I hereby certify that the attached Second Brief on Cross-Appeal of Appellee/Cross Appellant is proportionately spaced, has a typeface of 14 points or more, and contains 11,462 words, exclusive of the Table of Contents and Table of Authorities, which is no more than 16,500 words and thus complies with the type-volume limitations of Federal Rule of Appellate Procedure 28.1(e)(2)(B)(i).
s/ Gregory F. Hurley Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 hurleyg@gtlaw.com Counsel for Appellee/Cross-Appellant
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NINTH CIRCUIT CASE NOS. 08-55867, 08-55946, 09-55327, 09-55425
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MAURIZIO ANTONINETTI,
Plaintiff, Appellant, and Cross-Appellee,
v.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant, Appellee, and Cross-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF CALIFORNIA Case No. 05 CV 1660 J (WMc) NAPOLEON A. JONES, Judge

FOURTH BRIEF ON CROSS-APPEAL

Gregory F. Hurley GREENBERG TRAURIG, LLP 3161 Michelson Drive Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 hurleyg@gtlaw.com

John F. Scalia Matthew H. Sorensen Virginia E. Robinson GREENBERG TRAURIG, LLP 1750 Tysons Boulevard, Suite 1200 McLean, Virginia 22102 Telephone: (703) 749-1300 Facsimile: (703) 749-1301 scaliaj@gtlaw.com sorensenm@gtlaw.com robinonv@gtlaw.com

Counsel for Appellee/Cross-Appellant Chipotle Mexican Grill, Inc.

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TABLE OF CONTENTS Page
INTRODUCTION....................................................................................................1 ARGUMENT ............................................................................................................3
I. The District Court Erred in Awarding Antoninetti Attorneys’ Fees Because Chipotle Ought To Have Prevailed Under ADAAG Section 7.2 ................................................................................3
II. The Attorneys’ Fees Awarded by the District Court Were Not Reasonable ...............................................................................................5
CONCLUSION.........................................................................................................9 CERTIFICATE OF COMPLIANCE ................................................................. 11
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TABLE OF AUTHORITIES

Federal Cases

Page

Connecticut General Life Insurance Co. v. New Images, 321 F.3d 878 (9th Cir. 2003) ........................................................................................................9

Cummings v. Connell, 402 F.3d 936 (9th Cir. 2005)............................................ 6, 7

Dang v. Cross, 422 F.3d 800 (9th Cir. 2005) ............................................................5

Entertainment Research Group v. Genesis Creative Group, 122 F.3d 1211 (9th Cir. 1997) ........................................................................................................9

Fischer v. SJB-PD, Inc., 214 F.3d 1115 (9th Cir. 2000) ...................................... 8, 9

Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994).......................................................9

Hensley v. Eckhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983) ............5

McGinnis v. Kentucky Fried Chicken, 51 F.3d 805 (9th Cir. 1994)..................... 5, 6

National Federation of the Blind v. Target Corp., 2009 WL 2390261 (N.D. Cal. Aug. 3, 2009) ........................................................................................9

Singleton v. Wulff, 428 U.S. 106, 120 S. Ct. 2868, 49 L. Ed. 2d 829 (1976)............9

State Cases
Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 21 Cal. Rptr. 3d 331, 101 P.3d 140 (2004) ...............................................................................................9

Federal Statutes 42 U.S.C. § 12205......................................................................................................5

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State Statutes California Civil Code Section 55...............................................................................5
iii
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INTRODUCTION Antoninetti’s Third Brief on Cross-Appeal consists in large part of a recitation of the same arguments that he has previously made in this cross-appeal and in the consolidated cross-appeal (Case Nos. 08-55867 and 08-55946). Having responded to those arguments in its Second Brief on Cross-Appeal and in its two briefs in the consolidated appeal, Chipotle will not repeat those arguments here. However, it is clear from all of the papers submitted by both sides that Antoninetti is not entitled to attorneys’ fees, and absolutely is not entitled to the vastly disproportionate fees he was awarded by the District Court. Chipotle presented undisputed evidence on summary judgment and at trial that the transaction stations satisfied the requirements of either ADAAG Section 7.2(2)(i) or (ii). Chipotle also presented undisputed evidence that the transaction station can be used to provide the same goods and services exchanged at the portion of the food preparation counters where the customers’ entrées are prepared. Additionally, Chipotle presented undisputed evidence that its unwritten practice of accommodating customers with disabilities provided substantially equal access to the food ordering process at the Restaurants consistent with the requirements of ADAAG Section 7.2(2)(iii) and that Antoninetti unreasonably failed or refused to avail himself of the accommodations available to him.
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Antoninetti fails to refute any of these arguments in his Third Brief on Cross-Appeal. Antoninetti’s primary argument against Chipotle’s position that its food preparation counters are compliant with ADAAG Section 7.2(2)(i) and (ii) is that ADAAG Section 4.33.3 rather than ADAAG Section 7.2(2) governs the food preparation counters. This argument, however, construes Section 4.33.3 in a manner that is inconsistent with the regulation’s plain language. Antoninetti also contends that the District Court properly held that the goods and services exchanged at the portion of the food preparation counter behind the Wall cannot be provided to customers at the transaction station, as required by ADAAG Section 7.2(2)(i) and (ii). However, Antoninetti offers no factual support for this assertion, and instead relies on his own speculation. It is clear, then, that the District Court erred in denying Chipotle’s motion for summary judgment and in granting judgment in favor of Antoninetti.
Even if Antoninetti properly prevailed at trial, he is nevertheless not entitled to recover as great an award of attorneys’ fees as that granted by the District Court. The award below was disproportionate to the amount recovered, the relative success of Antoninetti’s claims, and the negligible impact the District Court’s ruling will have on the general public.
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ARGUMENT I. The District Court Erred in Awarding Antoninetti Attorneys’ Fees
Because Chipotle Ought To Have Prevailed Under ADAAG Section 7.2(2). In his Third Brief on Cross-Appeal, Antoninetti argues that the District Court properly held that the transaction station cannot comply with Section 7.2(2)(i) or (ii) because wheelchair users who are served there are not provided the same lines of sight as standing customers. Third Brief on Cross-Appeal at 25-26. This is simply an attempt to raise his ADAAG Section 4.33.3 sight-line arguments under ADAAG Section 7.2(2)(i) and (ii). However, nothing in ADAAG Section 7.2(2)(i) or (ii) imposes any sight-line requirements; they simply impose maximum height and length requirements for sales and service counters. Antoninetti also appears to argue that wheelchair users cannot see the available food ingredients or the making of their food at the transaction station and that therefore ADAAG Section 7.2(2)(i) and (ii) are inapplicable. However, Antoninetti cites no facts to support this assertion. Instead, he relies solely on his speculation as to what a wheelchair user can and cannot see from the transaction station. However, Antoninetti’s arguments are flatly contradicted by the evidence presented at trial, which proved that disabled customers can have their food prepared at the transaction station (or at a table in the dining area) in a way that
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permitted them to see all of the ingredients from which they could choose.1 Furthermore, the District Court expressly found that Chipotle employees can and do use the transaction station to show customers food ingredients and the making of their food.2
Accordingly, the District Court erred in finding that Section 7.2(2)(i) or (ii) of the ADAAG did not apply to the transaction station on the food preparation counters because Chipotle did not provide the same benefits and services at the transaction station as it did at the portion of the food preparation counter located behind the wall.3 Should this Court agree that Section 7.2(2)(i) or (ii) of the ADAAG applies to the transaction station on Chipotle’s food preparation counters, Antoninetti’s claims for damages must be reversed as to any damages awarded to him for his claims regarding Chipotle’s food preparation counter. This would further limit Antoninetti’s already limited recovery, and therefore support a further
1 ER I-3, at 16-17; ER V-26, at 215-17, 229, 336-37, 343-44; ER VII-28, at 62325. 2 ER I-5, at 17. 3 Antoninetti does not raise any new arguments in response to Chipotle’s argument that the District Court erred in holding that Chipotle’s unwritten practice of accommodation was not an equivalent facilitation under Section 7.2(2)(iii). Because Chipotle has previously addressed those arguments in its briefs, it will not do so again here, except to say that Antoninetti’s arguments fail for the same reasons set forth in Chipotle’s prior briefs on this cross-appeal and the consolidated cross-appeal.
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significant reduction of Antoninetti’s attorney fees, if not complete denial of those fees. Hensley v. Eckhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). II. The Attorneys’ Fees Awarded by the District Court Were Not
Reasonable. Even assuming that the District Court did not err in awarding Antoninetti statutory damages under ADAAG Section 7.2(2)(iii) for each visit to the Restaurants prior to the implementation of the written accommodation policy, Antoninetti was not entitled to the disproportionate award of attorneys’ fees as he was granted. Under both the ADA and the CDPA, a prevailing party is entitled to an award of his reasonable attorneys’ fees. 42 U.S.C. § 12205; Cal. Civ. Code § 55. This Court has spoken plainly as to what fees are and are not reasonable where a party’s recovery is limited. McGinnis v. Kentucky Fried Chicken, 51 F.3d 805 (9th Cir. 1994). In such cases, a party’s attorneys’ fees must be measured by what a reasonable person would pay for the results achieved. Antoninetti asserts that his award should not be reduced because all of his claims were intertwined with the limited issues on which he prevailed, citing Dang v. Cross, 422 F.3d 800 (9th Cir. 2005). However, this Court’s holding in Dang was that, when setting the amount of attorneys’ fees to which a prevailing party is entitled, courts must evaluate “the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 813.
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This is precisely what the District Court did in the instant case. However, as set forth below, the District Court did not go far enough in applying this rule.
In McGinnis, this Court overturned a district court’s award of $148,000 in attorneys’ fees to a plaintiff who recovered only $34,000 in damages, holding that the award was excessive because no reasonable client would pay such a high fee for such small recovery. Just as an award of $148,000 in attorneys’ fees to a plaintiff who recovered only $34,000 in damages was held to be an abuse of discretion in McGinnis, so, too, must the award to Antoninetti by the District Court of $136,537.83 in attorneys’ fees for recovery of a mere $5,000 in statutory damages be a clear abuse of discretion.
Antoninetti prevailed only on two minor issues in the case, for which he obtained only the statutory minimum in damages. He did not prevail on his main objective: the request for an injunction requiring Chipotle to lower its food preparation counters. The McGinnis analysis is particularly applicable here given Antoninetti’s minimal damages and success. Antoninetti asserts that even though he declined to prove injury at trial and was awarded only the minimum statutory damages, those damages cannot be de minimus because they were intended to deter civil rights violations. To support this assertion, Antoninetti cites Cummings v. Connell, 402 F.3d 936 (9th Cir. 2005). However, that case held that nominal damages are awarded to vindicate rights, the infringement of which has not caused
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actual, provable injury. Id. at 942. While it is true that the CDPA’s minimum statutory damages provision is intended to punish current violations and deter future violations of the law, it allows a plaintiff to prove greater damages to the extent he can demonstrate that he has actually been injured. Antoninetti did not attempt to prove injury at trial. The damages that Antoninetti ultimately recovered are therefore no different from those described in Cummings.
Antoninetti’s assertion that his lawsuit resulted in benefit to the public is similarly without merit. Antoninetti raises two arguments in support of this assertion. First, he asserts that the District Court’s decision will have an estoppel effect on Chipotle’s arguments regarding claims of disability discrimination at its other restaurants, including the claims of the other plaintiffs in the related class action lawsuits that Antoninetti and his attorney have filed against Chipotle. Second, he claims that the District Court imposed new requirements on how Chipotle must implement its written Customers With Disabilities Policy in its decision. Both of these arguments are without merit.
The District Court’s Findings of Fact, Conclusions of Law, and Judgment clearly indicate that the Court’s ruling concerns itself solely with the application of the unwritten policy to Antoninetti’s visits to the Pacific Beach and Encinitas restaurants.4 Furthermore, none of the other named plaintiffs in either of the
4 ER I-5, at 2.
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related putative class actions visited either of the restaurants at issue in this case.5 Antoninetti’s assertion that the ruling below will have an estoppel effect in related cases is therefore without merit.
Similarly, Antoninetti’s claim that the District Court’s Findings of Fact, Conclusions of Law, and Judgment contained a ruling requiring Chipotle to modify its written policy to include two new requirements (Third Brief on Cross-Appeal, at 34-35) is unsupported by the plain language of the District Court’s ruling. The District Court did not issue any order to Chipotle directing that it modify its policy6; it simply made factual findings about what that policy entailed7. In fact, the express statement by the District Court that its ruling was limited to Antoninetti’s experiences at two restaurants belies Antoninetti’s argument that the court below issued any general ruling governing Chipotle’s actions going forward.
Antoninetti also argues that his lawsuit provided tangible benefits to the public that “are difficult to quantify,” and asserts that the limited success he obtained was more than a technical victory. The two cases upon which he relies, however, make clear that he has not provided a public benefit. In Fischer v. SJBPD, Inc., 214 F.3d 1115 (9th Cir. 2000), this Court noted that the plaintiff achieved the main goal of his ADA claim: to obtain an injunction forcing the defendant to 5 See Chipotle’s Request for Judicial Notice, Ex. A, at 8-9, and Ex. B, at 8, 12-13, filed concurrently with the Second Brief on Cross-Appeal. 6 ER I-5, at 38-39; ER I-3, at 5. 7 ER 1-5, at 19-24.
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change its alleged policy and practice of denying access to people who use service
dogs. Id. at 1120. In National Federation of the Blind v. Target Corp., 2009 WL
2390261 (N.D. Cal. Aug. 3, 2009), the class plaintiffs obtained a settlement
wherein the defendant agreed to modify its website to meet accessibility guidelines
and establish a six million dollar settlement fund. Id. at *2. In both of these cases,
the plaintiffs achieved their primary litigation objective—injunctive relief.
Antoninetti, on the other hand, was unsuccessful in obtaining the injunctive relief
that had been his primary objective.8 Accordingly, his lawsuit did not result in any
public benefit.
CONCLUSION
For the reasons set forth in its Second Brief and those set forth herein,
Chipotle respectfully requests that this Court reverse and remand the District
8 Nor can Antoninetti prevail on his implication that he is entitled to fees because his lawsuit was a catalyst for certain changes enacted by Chipotle. First, it is wellsettled that an appellant in a cross-appeal may not assert new issues or assignments of error in his response and reply brief that were not raised and argued in his initial brief. See Entm’t Research Group v. Genesis Creative Group, 122 F.3d 1211, 1217 (9th Cir. 1997) (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)). Second, an appellate court generally will not consider an issue that is raised for the first time on appeal. Singleton v. Wulff, 428 U.S. 106, 120 S. Ct. 2868, 49 L. Ed. 2d 826 (1976); Conn. Gen. Life Ins. Co. v. New Images, 321 F.3d 878, 883 (9th Cir. 2003). Third, even if Antoninetti were permitted to raise this argument now, California law makes clear that, in order for a plaintiff to recover fees under the catalyst theory, a plaintiff must “reasonably attempt[] to settle the litigation before filing the lawsuit,” Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 560-61, 21 Cal. Rptr. 3d 331, 336, 101 P.3d 140, 144 (2004)—something the District Court found Antoninetti made “no attempt” to do. ER I-5, at 8, 28.
9
OC 286,451,751v2 8-29-09

Case: 08-55867 08/28/2009 Page: 14 of 15 DktEntry: 7045225
Court’s August 21, 2008 and February 6, 2009 Orders on Antoninetti’s motion for attorneys’ fees, with instructions that the District Court issue an order holding that Antoninetti is not entitled to any attorneys’ fees (or, alternatively, awarding Antoninetti a nominal amount of attorneys’ fees commensurate with his extremely limited success) and granting Chipotle’s motion for costs.9
9 As Chipotle has addressed in previous briefs, in the event this Court overrules the Findings of Fact, Conclusions of Law, and Judgment in favor of Antoninetti, the issue of attorneys’ fees should be remanded so that the District Court may exclude fees relating to Antoninetti’s meritless arguments, such as Antoninetti’s claim that ADAAG Section 4.33.3 applies to Chipotle’s food preparation counters, and his various unfounded motions for reconsideration and motions to amend.
10
OC 286,451,751v2 8-29-09

Case: 08-55867 08/28/2009 Page: 15 of 15 DktEntry: 7045225
CERTIFICATE OF COMPLIANCE FOR CASE NOS. 09-55327 AND 09-55425 Pursuant to Rules 28.1(e)(3) and 32(a)(7)(C) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 32-1, I hereby certify that the attached Second Brief on Cross-Appeal of Appellee/Cross Appellant is proportionately spaced, has a typeface of 14 points or more, and contains 2,039 words, exclusive of the Table of Contents and Table of Authorities, which is no more than 7,000 words and thus complies with the type-volume limitations of Federal Rule of Appellate Procedure 28.1(e)(2)(C).
s/ Virginia E. Robinson Virginia E. Robinson GREENBERG TRAURIG, LLP 1750 Tysons Boulevard Suite 1200 McLean, Virginia 22102 Telephone: (703) 749-1300 Facsimile: (703) 749-1301 robinsonv@gtlaw.com Counsel for Appellee/Cross-Appellant
11
OC 286,451,751v2 8-29-09

 
 Court: Case Title: Appeal From: Date Filed:
Case Number: Case Type: Case Subtype:

US COURT OF APPEALS FOR THE NINTH CIRCUIT
MAURIZIO ANTONINETTI v. CHIPOTLE MEXICAN GRILL, INC. US DISTRICT COURT FOR SOUTHERN CALIFORNIA, SAN DIEGO 05/28/2008 CASE INFORMATION 08-55867
APPEALS
CIVIL
PRIVATE

Nature of Suit:

3440 OTHER CIVIL RIGHTS

Key Nature of Suit:

APPEALS (030)

District:

LOWER COURT INFORMATION 0974-3

Lower Court Docket Number:

3:05-CV-01660-J-WMC

Trial Judge(s):

NAPOLEON A. JONES, U.S. DISTRICT JUDGE

Court Reporter(s):

JOAN KING

Date Filed:

08/22/2005

Date Order/Judgment:

04/21/2008

Date NOA Filed: Date COA Received:

05/15/2008 05/22/2008

Current Case(s): Relationship: CROSS-APPEAL CROSS-APPEAL RELATED RELATED RELATED RELATED
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone:

OTHER CASES

Lead Docket: 08-55867 09-55327 08-55867 08-55867 08-55946 08-55946

Member Docket: ------NAMES

Start Date: 06/11/2008 03/20/2009 03/05/2009 03/20/2009 03/05/2009 03/20/2009

MAURIZIO ANTONINETTI PLAINTIFF - APPELLANT AMY BETH VANDEVELD 619-231-8883 VANDEVELD LAW OFFICES SUITE 22 1850 FIFTH AVENUE SAN DIEGO, CA 92101

End Date: -------

CHIPOTLE MEXICAN GRILL, INC. DEFENDANT - APPELLEE GREGORY FRANCIS HURLEY, ESQUIRE, SENIOR LITIGATION 949-732-6500 LAW OFFICES OF GREENBERG TRAURIG, LLP SUITE 1000 3161 MICHELSON DRIVE IRVINE, CA 92612 949-732-6500

Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone:
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type: Attorney: Attorney Phone:
Name: Type:
Name: Type:
Name: Type:

JOHN F. SCALIA, ESQUIRE 703-749-1380 GREENBERG TRAURIG, LLP STE. 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380 VIRGINIA E. ROBINSON 703-749-1385 GREENBERG TRAURIG, LLP SUITE 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND AMICUS CURIAE AMY FARR ROBERTSON 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203
DISABILITY RIGHTS ADVOCATES AMICUS CURIAE AMY FARR ROBERTSON 303-595-9700
DISABILITY RIGHTS CALIFORNIA AMICUS CURIAE
DISABILITY RIGHTS LEGAL CENTER AMICUS CURIAE
COLORADO CROSS DISABILITY COALITION AMICUS CURIAE

Name: Type: Name: Type: ENTRY #: 39
37
38
--
35

NATIONAL DISABILITY RIGHTS NETWORK AMICUS CURIAE

THE AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITITES
AMICUS CURIAE

DOCKET PROCEEDINGS

DATE: 03/23/2009

DESCRIPTION:
FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN 08-55867, APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN 08-55946 REPLY TO RESPONSE (RESPONSE TO MOTION (ECF FILING) ). DATE OF SERVICE: 03/23/2009. [6856132] [08-55867, 08-55946] (VER)

03/12/2009

FILED (ECF) APPELLANT MAURIZIO ANTONINETTI IN 0855867, APPELLEE MAURIZIO ANTONINETTI IN 08-55946 RESPONSE OPPOSING MOTION (MOTION (ECF FILING) , MOTION TO STRIKE PORTION OR WHOLE OF DOCUMENT). DATE OF SERVICE: 03/12/2009. [6844118] [08-55867, 08-55946] (ABV)

03/10/2009

RECEIVED 10 PAPER COPIES OF CROSS-APPEAL REPLY BRIEF BRIEF [6829038-2] FILED BY CHIPOTLE MEXICAN GRILL, INC. IN 08-55867, 08-55946. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [08-55867, 0855946] (LA)

03/05/2009

FILED CLERK ORDER: CROSS-APPEAL REPLY BRIEF BRIEF [6829038-2] FILED BY CHIPOTLE MEXICAN GRILL, INC. IN 08-55946,08-55867. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A GREY COVER, ACCOMPANIED BY CERTIFICATION THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [08-55946, 08-55867] (FT)

03/02/2009

FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN 08-55867 MOTION TO STRIKE PORTION OF APPEL-

LANT/CROSS-APPELLEE'S THIRD BRIEF ON CROSSAPPEAL. DATE OF SERVICE: 03/02/2009. [6829043] [0855867, 08-55946] (VER)

34

03/02/2009

SUBMITTED (ECF) CROSS-APPEAL REPLY BRIEF BRIEF

FOR REVIEW. SUBMITTED BY APPELLEE CHIPOTLE

MEXICAN GRILL, INC. IN 08-55867. DATE OF SERVICE:

03/02/2009. [6829038] [08-55867, 08-55946] (VER)

36

02/27/2009

RECEIVED 10 PAPER COPIES OF THIRD BRIEF ON CROSS-

APPEAL BRIEF [6811942-2] FILED BY MAURIZIO AN-

TONINETTI IN 08-55867,08-55946. ONE COPY TO CASE

FILES, THE REMAINDER TO RECORDS. [08-55867, 08-

55946] (SJ)

--

02/23/2009

FILED THIRD BRIEF ON CROSS-APPEAL BRIEF [6811942-

2] FILED BY MAURIZIO ANTONINETTI IN 08-55867, 08-

55946. WITHIN 5 WORKING DAYS OF THE FILING OF

THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF

THE BRIEF IN PAPER FORMAT, WITH A YELLOW COVER,

ACCOMPANIED BY CERTIFICATION THAT THE BRIEF IS

IDENTICAL TO THE VERSION SUBMITTED ELECTRONI-

CALLY. [08-55867, 08-55946] (LA)

32

02/18/2009

SUBMITTED (ECF) THIRD BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLANT MAU-

RIZIO ANTONINETTI IN 08-55867. DATE OF SERVICE:

02/18/2009. [6811942] [08-55867, 08-55946] (ABV)

31

02/17/2009

THIRD BRIEF ON CROSS-APPEAL BRIEF [6807503-2] WILL

NOT BE FILED BECAUSE OF DEFICIENCIES (CERTIFI-

CATE OF COMPLIANCE DOES NOT INCLUDE A WORD

COUNT). WITHIN 5 WORKING DAYS OF THE FILING OF

THIS ORDER, FILER SHALL SUBMIT A NEW BRIEF VIA

ECF CURING THE DEFICIENCIES. [6810667] [08-55867, 08-

55946] (LA)

--

02/17/2009

DELETED INCORRECT DOCKET ENTRY (FT)

33

02/13/2009

FILED APPELLANT/CROSS-APPELLEE MAURIZIO AN-

TONINETTI'S SUPPLEMENTAL EXCERPTS OF RECORD

ON APPEAL IN 1 VOLUME (ENTITLED "VOL. 8"). [08-

55867, 08-55946] (LA)

30

02/12/2009

SUBMITTED (ECF) THIRD BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLANT MAU-

RIZIO ANTONINETTI IN 08-55867. DATE OF SERVICE:

02/12/2009. [6807503] [08-55867, 08-55946] (ABV)

28

12/23/2008

RECEIVED 10 PAPER COPIES OF SECOND BRIEF ON

CROSS-APPEAL BRIEF [6742588-2] FILED BY CHIPOTLE

MEXICAN GRILL, INC. IN 08-55867,08-55946. ONE COPY

TO CASE FILES, THE REMAINDER TO RECORDS. [08-

55867, 08-55946] (FT)

27

12/23/2008

FILED CLERK ORDER (DEPUTY CLERK:GSS ): APPEL-

LANT ANTONINETTI'S MOTION FOR AN EXTENSION OF

TIME TO FILE THE THIRD CROSS-APPEAL BRIEF IS

GRANTED. THE THIRD CROSS-APPEAL BRIEF FOR AP-

PELLANT ANTONINETTI IS DUE FEBRUARY 17, 2009. THE

FOURTH CROSS-APPEAL BRIEF FOR APPELLEE CHI-

POTLE IS DUE 14 DAYS AFTER SERVICE OF THE THIRD

CROSS-APPEAL BRIEF. [08-55867, 08-55946] (BJB)

26

12/19/2008

FILED (ECF) APPELLANT MAURIZIO ANTONINETTI IN 08-

55867 MOTION TO EXTEND TIME TO FILE THIRD BRIEF

ON CROSS-APPEAL BRIEF UNTIL 02/17/2009 AT 11:59 PM.

DATE OF SERVICE: 12/19/2008. [6745443] [08-55867, 08-

55946] (ABV)

25

12/18/2008

FILED SECOND BRIEF ON CROSS-APPEAL BRIEF

[6742588-2] FILED BY CHIPOTLE MEXICAN GRILL, INC. IN

08-55867, 08-55946. WITHIN 5 WORKING DAYS OF THE

FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10

COPIES OF THE BRIEF IN PAPER FORMAT, WITH A RED

COVER, ACCOMPANIED BY CERTIFICATION THAT THE

BRIEF IS IDENTICAL TO THE VERSION SUBMITTED

ELECTRONICALLY. [08-55867, 08-55946] (LA)

24

12/18/2008

ELECTRONICALLY-FILED DOCUMENT [6742537-2] BRIEF

SUBMITTED FOR REVIEW (ECF FILING) IS STRICKEN

BECAUSE THERE IS AN ERROR IN THE DOCUMENT

(SUBMITTED INCORRECTLY AS OPENING BRIEF). [08-

55867, 08-55946] (LA)

29

12/17/2008

FILED APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN 08-

55867 SUPPLEMENTAL EXCERPTS OF RECORD ON AP-

PEAL IN 1 VOLUMES. [08-55867, 08-55946] (FT)

23

12/17/2008

SUBMITTED (ECF) SECOND BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLEE CHI-

POTLE MEXICAN GRILL, INC. IN 08-55867, APPELLANT

CHIPOTLE MEXICAN GRILL, INC. IN 08-55946. DATE OF

SERVICE: 12/17/2008. [6742588] [08-55867, 08-55946] (VER)

22

12/17/2008

SUBMITTED (ECF) OPENING BRIEF FOR REVIEW. SUB-

MITTED BY APPELLEE CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867, APPELLANT CHIPOTLE MEXICAN GRILL,

INC. IN 08-55946. DATE OF SERVICE: 12/17/2008. [6742537]

[08-55867, 08-55946] (VER)

21

12/17/2008

ELECTRONICALLY-FILED DOCUMENT [6742402-2] BRIEF

SUBMITTED FOR REVIEW (ECF FILING) IS STRICKEN

BECAUSE THERE IS AN ERROR IN THE DOCUMENT

(SUBMITTED INCORRECTLY AS FIRST BRIEF ON CROSS-

APPEAL). [08-55867, 08-55946] (LA)

20

12/17/2008

SUBMITTED (ECF) FIRST BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLEE CHI-

POTLE MEXICAN GRILL, INC. IN 08-55867, APPELLANT

CHIPOTLE MEXICAN GRILL, INC. IN 08-55946. DATE OF

SERVICE: 12/17/2008. [6742402] [08-55867, 08-55946] (VER)

19

12/15/2008

ADDED ATTORNEY VIRGINIA E. ROBINSON FOR CHI-

POTLE MEXICAN GRILL, INC., IN CASE 08-55946 VIR-

GINIA E. ROBINSON FOR CHIPOTLE MEXICAN GRILL,

INC., IN CASE 08-55867. [08-55867, 08-55946] (JFF)

18

12/15/2008

FILED (ECF) NOTICE OF APPEARANCE OF VIRGINIA

ELLEN ROBINSON FOR APPELLEE CHIPOTLE MEXICAN

GRILL, INC. IN 08-55867, APPELLANT CHIPOTLE MEXI-

CAN GRILL, INC. IN 08-55946. DATE OF SERVICE:

12/15/2008. [6739354] [08-55867, 08-55946] (VER)

17

11/13/2008

FILED CLERK ORDER (DEPUTY CLERK:LBS ): DEFEN-

DANT CHIPOTLE MEXICAN GRILL, INC.'S MOTION AND

CORRECTED MOTION FOR AN EXTENSION OF TIME TO

FILE THE SECOND CROSS-APPEAL BRIEF ARE GRANTED.

THE SECOND CROSS-APPEAL BRIEF IS DUE DECEMBER

17, 2008. THE THIRD CROSS-APPEAL BRIEF IS DUE

JANUARY 16, 2009. THE OPTIONAL CROSS-APPEAL RE-

PLY BRIEF IS DUE 14 DAYS AFTER SERVICE OF THE

THIRD CROSS-APPEAL BRIEF. [08-55867, 08-55946] (SC)

16

10/30/2008

FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867 CORRECTED MOTION TO EXTEND TIME TO

FILE OPENING BRIEF UNTIL 12/17/2008. DATE OF SER-

VICE: 10/30/2008. [6691675] [08-55867, 08-55946] (GFH)

15

10/30/2008

FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867 MOTION TO EXTEND TIME TO FILE OPENING

BRIEF UNTIL 12/17/2008. DATE OF SERVICE: 10/30/2008.

[6691000] [08-55867, 08-55946] (GFH)

14

10/29/2008

FILED CLERK ORDER (DEPUTY CLERK:LBS ): THE

COURT IS IN RECEIPT OF THE MOTION OF DISABILITY

RIGHTS EDUCATION AND DEFENSE FUND, DISABILITY

RIGHTS ADVOCATES, DISABILITY RIGHTS CALIFORNIA,

DISABILITY RIGHTS LEGAL CENTER, COLORADO CROSS

DISABILITY COALITION, NATIONAL DISABILITY RIGHTS

NETWORK, AND THE AMERICAN ASSOCIATION OF PEO-

PLE WITH DISABILITIES TO FILE AN AMICUS CURIAE

BRIEF IN SUPPORT OF REVERSAL. THE MOTION, ANY

RESPONSE THERETO AND ANY FURTHER SUCH RE-

QUEST SHALL BE REFERRED TO THE MERITS PANEL

FOR SUCH TREATMENT THE PANEL DEEMS APPROPRI-

ATE. A COPY OF THE BRIEF SHALL BE PROVIDED TO

THE PANEL TO AID RESOLUTION OF THE MOTION. ANY

FUTURE REQUESTS TO FILE FRIEND OF THE COURT

BRIEFS SHALL BE TREATED IN THE SAME FASHION. [08-

55867, 08-55946] (SC)

13

10/14/2008

RECEIVED ORIGINAL AND 15 COPIES OF AMICI CURIAE

COLORADO CROSS DISABILITY COALITION, DISABILITY

RIGHTS ADVOCATES, DISABILITY RIGHTS CALIFORNIA,

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND,

DISABILITY RIGHTS LEGAL CENTER, NATIONAL DIS-

ABILITY RIGHTS NETWORK AND THE AMERICAN AS-

SOCIATION OF PEOPLE WITH DISABILITITES IN 08-55867,

08-55946 BRIEF IN 30 PAGES. DEFICIENCY: MOTION

PENDING SERVED ON. 10/10/2008 [08-55867, 08-55946] (FT)

12

10/14/2008

FILED DISABILITY RIGHTS EDUCATION AND DEFENSE

FUND, DISABILITY RIGHTS ADVOCATES, DISABILITY

RIGHTS CALIFORNIA, DISABILITY RIGHTS LEGAL CEN-

TER, COLORADO CROSS DISABILITY COALITION, NA-

TIONAL DISABILITY RIGHTS NETWORK AND THE

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILIT-

ITES IN 08-55867 AND DISABILITY RIGHTS EDUCATION

AND DEFENSE FUND, DISABILITY RIGHTS ADVOCATES,

DISABILITY RIGHTS CALIFORNIA, DISABILITY RIGHTS

LEGAL CENTER, COLORADO CROSS DISABILITY COALI-

TION, NATIONAL DISABILITY RIGHTS NETWORK AND

THE AMERICAN ASSOCIATION OF PEOPLE WITH DIS-

ABILITITES IN 08-55946 MOTION TO TO BECOME

AMICUS CURIAE, SERVED ON 10/10/2008 [08-55867, 08-

55946] (FT)

11

10/10/2008

SUBMITTED (ECF) AMICUS BRIEF FOR REVIEW AND

FILED MOTION TO BECOME AMICUS CURIAE. SUBMIT-

TED BY DISABILITY RIGHTS EDUCATION AND DEFENSE

FUND, DISABILITY RIGHTS ADVOCATES, DISABILITY

RIGHTS CALIFORNIA, DISABILITY RIGHTS LEGAL CTR,

COLORADO CROSS DISABILITY COALITION, NATIONAL

DISABILITY RIGHTS NETWORK, AND AMERICAN ASS'N

OF PEOPLE WITH DISABILITIES. DATE OF SERVICE:

10/10/2008. [6672513] [08-55867, 08-55946] (AFR)

10

10/06/2008

FILED ORIGINAL AND 15 COPIES OF MAURIZIO AN-

TONINETTI IN 08-55867 FIRST BRIEF ON CROSS-APPEAL.

(INFORMAL: NO). 57 PAGES. FIVE COPIES EXCERPTS OF

RECORD IN 7 VOLUMES. SERVED ON: 10/03/2008. [08-

55867, 08-55946] (FT)

9

08/13/2008

FILED ORDER MEDIATION (PWS): THE COURT HAS DE-

TERMINED THAT THESE APPEALS WILL NOT BE SE-

LECTED FOR INCLUSION IN THE MEDIATION PROGRAM.

THE BRIEFING SCHEDULE SET FORTH IN THE COURT'S

ORDER FILED JULY 30, 2008, SHALL REMAIN IN EFFECT.

[08-55867, 08-55946] (SC)

8

08/06/2008

FILED CERTIFICATE OF RECORD ON APPEAL. RT FILED

IN DC 9/10/07, 11/5/07, 11/27/08, 11/29/07, 11/30/07, 12/3/07.

(BG)

7

07/30/2008

FILED ORDER MEDIATION (PWS):THE COURT WILL INI-

TIATE A FURTHER ASSESSMENT CONFERENCE BY

TELEPHONE ON AUGUST 12, 2008, AT 1:00 P.M. PACIFIC

(SAN FRANCISCO) TIME. THE BRIEFING SCHEDULE

PREVIOUSLY SET BY THE COURT IS AMENDED AS FOL-

LOWS: APPELLANT MAURIZIO ANTONINETTI SHALL

FILE THE FIRST CROSS-APPEAL BRIEF ON OR BEFORE

OCTOBER 6, 2008; APPELLEE CHIPOTLE MEXICAN

GRILL, INC. SHALL FILE THE SECOND CROSS-APPEAL

BRIEF ON OR BEFORE NOVEMBER 17, 2008; APPELLANT

MAURIZIO ANTONINETTI SHALL FILE THE THIRD

CROSS-APPEAL BRIEF ON OR BEFORE DECEMBER 17,

2008; APPELLEE CHIPOTLE MEXICAN GRILL, INC. MAY

FILE AN OPTIONAL FOURTH CROSS-APPEAL BRIEF

WITHIN FOURTEEN (14) DAYS FROM THE SERVICE DATE

OF THE THIRD CROSS-APPEAL BRIEF. (KKW)

6

06/16/2008

FILED CLERK ORDER (DEPUTY CLERK:EPM): THESE

CASES ARE UNDER CONSIDERATION FOR INCLUSION IN

THE MEDIATION PROGRAM. A SETTLEMENT ASSESS-

MENT CONFERENCE WILL BE HELD BY TELEPHONE ON

JULY 22, 2008, AT 10:00 A.M. PACIFIC (SAN FRANCISCO)

TIME. THE BRIEFING SCHEDULE PREVIOUSLY SET BY

THE COURT REMAINS IN EFFECT. [08-55867, 08-55946]

(SC)

5

06/11/2008

FILED APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN

08-55946 CIVIL APPEALS DOCKETING STATEMENT.

SERVED ON 05/29/2008. [08-55946, 08-55867] (CONFATT)

(JN)

4

06/11/2008

DOCKETED CAUSE AND ENTERED APPEARANCES OF

COUNSEL. SEND CADS: NO. SETTING CROSS-APPEAL

BRIEFING SCHEDULE AS FOLLOWS: DESIGNATION OF

RT FOR APPELLANT CHIPOTLE MEXICAN GRILL, INC.

DUE 06/09/2008. DESIGNATION OF RT FOR APPELLEE

MAURIZIO ANTONINETTI DUE 06/18/2008. TRANSCRIPT

ORDER FOR APPELLANT CHIPOTLE MEXICAN GRILL,

INC. DUE 06/30/2008. TRANSCRIPT DUE FOR COURT RE-

PORTER JOAN KING, COURT REPORTER ON 07/28/2008.

CERTIFICATE OF RECORD DUE 07/07/2008. FIRST CROSS

APPEAL BRIEF DUE 09/02/2008 FOR MAURIZIO AN-

TONINETTI. SECOND BRIEF ON CROSS APPEAL DUE

10/02/2008 FOR CHIPOTLE MEXICAN GRILL, INC.. THIRD

BRIEF ON CROSS APPEAL DUE 11/03/2008 FOR MAURIZIO

ANTONINETTI. OPTIONAL CROSS APPEAL REPLY BRIEF

DUE 11/17/2008 FOR CHIPOTLE MEXICAN GRILL, INC. [08-

55946, 08-55867] (JN)

3

05/28/2008

FILED APPELLANT'S REPRESENTATION STATEMENT BY

AMY B. VANDEVELD, COUNSEL FOR APPELLANT.

ORIGINAL ATTACHED AND SERVED WITH CADS ON

05/15/2008. (CASE FILES) (JN)

2

05/28/2008

FILED APPELLANT MAURIZIO ANTONINETTI CIVIL AP-

PEALS DOCKETING STATEMENT. SERVED ON 05/15/2008.

(CONFATT) (JN)

1

05/28/2008

DOCKETED CAUSE AND ENTERED APPEARANCES OF

COUNSEL. SEND CADS: NO. THE SCHEDULE IS SET AS

FOLLOWS: DESIGNATION OF RT FOR APPELLEE CHI-

POTLE MEXICAN GRILL, INC. DUE 06/04/2008. TRAN-

SCRIPT ORDER FOR APPELLANT MAURIZIO AN-

TONINETTI DUE 06/16/2008. TRANSCRIPT DUE FOR

COURT REPORTER JOAN KING, COURT REPORTER ON

07/14/2008. CERTIFICATE OF RECORD DUE 06/23/2008.

APPELLANT MAURIZIO ANTONINETTI OPENING BRIEF

DUE 09/02/2008. APPELLEE CHIPOTLE MEXICAN GRILL,

INC. ANSWERING BRIEF DUE 09/29/2008. APPELLANT'S

OPTIONAL REPLY BRIEF IS DUE 14 DAYS AFTER SER-

VICE OF THE ANSWERING BRIEF. (JN)

 
 Court: Case Title:
Appeal From:
Date Filed: CASE INFORMATION
Case Number: Case Type: Case Subtype:

US COURT OF APPEALS FOR THE NINTH CIRCUIT MAURIZIO ANTONINETTI v. CHIPOTLE MEXICAN GRILL, INC. US DISTRICT COURT FOR SOUTHERN CALIFORNIA, SAN DIEGO 06/11/2008
08-55946 APPEALS CIVIL PRIVATE

Nature of Suit: Key Nature of Suit:

3440 OTHER CIVIL RIGHTS APPEALS (030) LOWER COURT INFORMATION

District: Lower Court Docket Number: Trial Judge(s): Court Reporter(s): Date Filed: Date Order/Judgment: Date NOA Filed: Date COA Received:

0974-3 3:05-CV-01660-J-WMC NAPOLEON A. JONES, U.S. DISTRICT JUDGE JOAN KING 08/22/2005 01/10/2008 05/29/2008 06/06/2008

OTHER CASES

Current Case(s): Relationship:

Lead Docket:

Member Docket: Start Date:

End Date:

CROSS-APPEAL CROSS-APPEAL RELATED RELATED RELATED RELATED
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type: Attorney:
Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone:
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:

08-55867 09-55327 08-55867 08-55867 08-55946 08-55946

--

06/11/2008

--

--

03/20/2009

--

--

03/05/2009

--

--

03/20/2009

--

--

03/05/2009

--

--

03/20/2009

--

NAMES

MAURIZIO ANTONINETTI PLAINTIFF - APPELLEE AMY BETH VANDEVELD 619-231-8883 VANDEVELD LAW OFFICES SUITE 22 1850 FIFTH AVENUE SAN DIEGO, CA 92101

CHIPOTLE MEXICAN GRILL, INC. DEFENDANT - APPELLANT GREGORY FRANCIS HURLEY, ESQUIRE, SENIOR LITIGATION 949-732-6500 LAW OFFICES OF GREENBERG TRAURIG, LLP SUITE 1000 3161 MICHELSON DRIVE IRVINE, CA 92612 949-732-6500 JOHN F. SCALIA, ESQUIRE 703-749-1380 GREENBERG TRAURIG, LLP STE. 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380 VIRGINIA E. ROBINSON 703-749-1385 GREENBERG TRAURIG, LLP SUITE 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND AMICUS CURIAE AMY FARR ROBERTSON 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203

Name: Type: Attorney: Attorney Phone:
Name: Type:
Name: Type:
Name: Type:
Name: Type:
Name: Type:
ENTRY #: 40

DISABILITY RIGHTS ADVOCATES AMICUS CURIAE AMY FARR ROBERTSON 303-595-9700

DISABILITY RIGHTS CALIFORNIA AMICUS CURIAE

DISABILITY RIGHTS LEGAL CENTER AMICUS CURIAE

COLORADO CROSS DISABILITY COALITION AMICUS CURIAE

NATIONAL DISABILITY RIGHTS NETWORK AMICUS CURIAE

THE AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITITES AMICUS CURIAE

DOCKET PROCEEDINGS

DATE: 05/13/2009

DESCRIPTION: FILED CLERK ORDER (DEPUTY CLERK:LBS ): PLAINTIFF'S MOTION FOR CONSOLIDATION OF 09-55327 AND 09-55425 WITH 08-55867 AND 08-55946 IS GRANTED TO THE EXTENT THAT THE ABOVE-CAPTIONED APPEALS SHALL BE ASSIGNED TO THE SAME MERITS PANEL. THESE APPEALS SHALL BE BRIEFED SEPARATELY. BRIEFING HAS BEEN COMPLETED IN 08-55867 AND 08-55946. THE BRIEFING SCHEDULE ESTABLISHED ON MARCH 20, 2009 IN 09-55327 AND 09-55425 IS UNCHANGED. [08-55867, 08-55946, 09-55327, 09-55425] (SC)

39

04/28/2009

FILED (ECF) APPELLANT MAURIZIO ANTONINETTI IN

09-55327 MOTION TO CONSOLIDATE CASES 09-55327,

09-55425, 08-55867, 08-55946. DATE OF SERVICE:

04/28/2009. [6899891] [09-55327, 08-55867, 09-55425,

08-55946] (ABV)

38

04/10/2009

FILED CLERK ORDER (DEPUTY CLERK:LBS ):

DEFENDANT'S MOTION TO STRIKE PORTIONS OF THE

THIRD CROSS-APPEAL BRIEF, THE OPPOSITION

THERETO, AND ALL FUTURE FILINGS SHALL BE

REFERRED FOR DISPOSITION TO THE PANEL THAT

CONSIDERS THE MERITS OF THE CASE. [08-55867,

08-55946] (SC)

37

03/23/2009

FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867, APPELLANT CHIPOTLE MEXICAN GRILL,

INC. IN 08-55946 REPLY TO RESPONSE (RESPONSE TO

MOTION (ECF FILING) ). DATE OF SERVICE: 03/23/2009.

[6856132] [08-55867, 08-55946] (VER)

35

03/12/2009

FILED (ECF) APPELLANT MAURIZIO ANTONINETTI IN

08-55867, APPELLEE MAURIZIO ANTONINETTI IN

08-55946 RESPONSE OPPOSING MOTION (MOTION (ECF

FILING) , MOTION TO STRIKE PORTION OR WHOLE OF

DOCUMENT). DATE OF SERVICE: 03/12/2009. [6844118]

[08-55867, 08-55946] (ABV)

36

03/10/2009

RECEIVED 10 PAPER COPIES OF CROSS-APPEAL REPLY

BRIEF BRIEF [6829038-2] FILED BY CHIPOTLE MEXICAN

GRILL, INC. IN 08-55867, 08-55946. ONE COPY TO CASE

FILES, THE REMAINDER TO RECORDS. [08-55867,

08-55946] (LA)

--

03/05/2009

FILED CLERK ORDER: CROSS-APPEAL REPLY BRIEF

BRIEF [6829038-2] FILED BY CHIPOTLE MEXICAN GRILL,

INC. IN 08-55946,08-55867. WITHIN 5 WORKING DAYS OF

THE FILING OF THIS ORDER, FILER IS ORDERED TO

FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH

A GREY COVER, ACCOMPANIED BY CERTIFICATION

THAT THE BRIEF IS IDENTICAL TO THE VERSION

SUBMITTED ELECTRONICALLY. [08-55946, 08-55867] (FT)

33

03/02/2009

FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867 MOTION TO STRIKE PORTION OF

APPELLANT/CROSS-APPELLEE'S THIRD BRIEF ON

CROSS-APPEAL. DATE OF SERVICE: 03/02/2009. [6829043]

[08-55867, 08-55946] (VER)

32

03/02/2009

SUBMITTED (ECF) CROSS-APPEAL REPLY BRIEF BRIEF

FOR REVIEW. SUBMITTED BY APPELLEE CHIPOTLE

MEXICAN GRILL, INC. IN 08-55867. DATE OF SERVICE:

03/02/2009. [6829038] [08-55867, 08-55946] (VER)

34

02/27/2009

RECEIVED 10 PAPER COPIES OF THIRD BRIEF ON

CROSS-APPEAL BRIEF [6811942-2] FILED BY MAURIZIO

ANTONINETTI IN 08-55867,08-55946. ONE COPY TO CASE

FILES, THE REMAINDER TO RECORDS. [08-55867,

08-55946] (SJ)

--

02/23/2009

FILED THIRD BRIEF ON CROSS-APPEAL BRIEF

[6811942-2] FILED BY MAURIZIO ANTONINETTI IN

08-55867, 08-55946. WITHIN 5 WORKING DAYS OF THE

FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10

COPIES OF THE BRIEF IN PAPER FORMAT, WITH A

YELLOW COVER, ACCOMPANIED BY CERTIFICATION

THAT THE BRIEF IS IDENTICAL TO THE VERSION

SUBMITTED ELECTRONICALLY. [08-55867, 08-55946]

(LA)

30

02/18/2009

SUBMITTED (ECF) THIRD BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLANT

MAURIZIO ANTONINETTI IN 08-55867. DATE OF

SERVICE: 02/18/2009. [6811942] [08-55867, 08-55946] (ABV)

29

02/17/2009

THIRD BRIEF ON CROSS-APPEAL BRIEF [6807503-2]

WILL NOT BE FILED BECAUSE OF DEFICIENCIES

(CERTIFICATE OF COMPLIANCE DOES NOT INCLUDE A

WORD COUNT). WITHIN 5 WORKING DAYS OF THE

FILING OF THIS ORDER, FILER SHALL SUBMIT A NEW

BRIEF VIA ECF CURING THE DEFICIENCIES. [6810667]

[08-55867, 08-55946] (LA)

--

02/17/2009

DELETED INCORRECT DOCKET ENTRY (FT)

31

02/13/2009

FILED APPELLANT/CROSS-APPELLEE MAURIZIO

ANTONINETTI'S SUPPLEMENTAL EXCERPTS OF

RECORD ON APPEAL IN 1 VOLUME (ENTITLED "VOL.

8"). [08-55867, 08-55946] (LA)

28

02/12/2009

SUBMITTED (ECF) THIRD BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLANT

MAURIZIO ANTONINETTI IN 08-55867. DATE OF

SERVICE: 02/12/2009. [6807503] [08-55867, 08-55946] (ABV)

26

12/23/2008

RECEIVED 10 PAPER COPIES OF SECOND BRIEF ON

CROSS-APPEAL BRIEF [6742588-2] FILED BY CHIPOTLE

MEXICAN GRILL, INC. IN 08-55867,08-55946. ONE COPY

TO CASE FILES, THE REMAINDER TO RECORDS.

[08-55867, 08-55946] (FT)

25

12/23/2008

FILED CLERK ORDER (DEPUTY CLERK:GSS ):

APPELLANT ANTONINETTI'S MOTION FOR AN

EXTENSION OF TIME TO FILE THE THIRD

CROSS-APPEAL BRIEF IS GRANTED. THE THIRD

CROSS-APPEAL BRIEF FOR APPELLANT ANTONINETTI

IS DUE FEBRUARY 17, 2009. THE FOURTH

CROSS-APPEAL BRIEF FOR APPELLEE CHIPOTLE IS DUE

14 DAYS AFTER SERVICE OF THE THIRD CROSS-APPEAL

BRIEF. [08-55867, 08-55946] (BJB)

24

12/19/2008

FILED (ECF) APPELLANT MAURIZIO ANTONINETTI IN

08-55867 MOTION TO EXTEND TIME TO FILE THIRD

BRIEF ON CROSS-APPEAL BRIEF UNTIL 02/17/2009 AT

11:59 PM. DATE OF SERVICE: 12/19/2008. [6745443]

[08-55867, 08-55946] (ABV)

23

12/18/2008

FILED SECOND BRIEF ON CROSS-APPEAL BRIEF

[6742588-2] FILED BY CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867, 08-55946. WITHIN 5 WORKING DAYS OF THE

FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10

COPIES OF THE BRIEF IN PAPER FORMAT, WITH A RED

COVER, ACCOMPANIED BY CERTIFICATION THAT THE

BRIEF IS IDENTICAL TO THE VERSION SUBMITTED

ELECTRONICALLY. [08-55867, 08-55946] (LA)

22

12/18/2008

ELECTRONICALLY-FILED DOCUMENT [6742537-2] BRIEF

SUBMITTED FOR REVIEW (ECF FILING) IS STRICKEN

BECAUSE THERE IS AN ERROR IN THE DOCUMENT

(SUBMITTED INCORRECTLY AS OPENING BRIEF).

[08-55867, 08-55946] (LA)

27

12/17/2008

FILED APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN

08-55867 SUPPLEMENTAL EXCERPTS OF RECORD ON

APPEAL IN 1 VOLUMES. [08-55867, 08-55946] (FT)

21

12/17/2008

SUBMITTED (ECF) SECOND BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLEE

CHIPOTLE MEXICAN GRILL, INC. IN 08-55867,

APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN

08-55946. DATE OF SERVICE: 12/17/2008. [6742588]

[08-55867, 08-55946] (VER)

20

12/17/2008

SUBMITTED (ECF) OPENING BRIEF FOR REVIEW.

SUBMITTED BY APPELLEE CHIPOTLE MEXICAN GRILL,

INC. IN 08-55867, APPELLANT CHIPOTLE MEXICAN

GRILL, INC. IN 08-55946. DATE OF SERVICE: 12/17/2008.

[6742537] [08-55867, 08-55946] (VER)

19

12/17/2008

ELECTRONICALLY-FILED DOCUMENT [6742402-2] BRIEF

SUBMITTED FOR REVIEW (ECF FILING) IS STRICKEN

BECAUSE THERE IS AN ERROR IN THE DOCUMENT

(SUBMITTED INCORRECTLY AS FIRST BRIEF ON

CROSS-APPEAL). [08-55867, 08-55946] (LA)

18

12/17/2008

SUBMITTED (ECF) FIRST BRIEF ON CROSS-APPEAL

BRIEF FOR REVIEW. SUBMITTED BY APPELLEE

CHIPOTLE MEXICAN GRILL, INC. IN 08-55867,

APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN

08-55946. DATE OF SERVICE: 12/17/2008. [6742402]

[08-55867, 08-55946] (VER)

17

12/15/2008

ADDED ATTORNEY VIRGINIA E. ROBINSON FOR

CHIPOTLE MEXICAN GRILL, INC., IN CASE 08-55946

VIRGINIA E. ROBINSON FOR CHIPOTLE MEXICAN

GRILL, INC., IN CASE 08-55867. [08-55867, 08-55946] (JFF)

16

12/15/2008

FILED (ECF) NOTICE OF APPEARANCE OF VIRGINIA

ELLEN ROBINSON FOR APPELLEE CHIPOTLE MEXICAN

GRILL, INC. IN 08-55867, APPELLANT CHIPOTLE

MEXICAN GRILL, INC. IN 08-55946. DATE OF SERVICE:

12/15/2008. [6739354] [08-55867, 08-55946] (VER)

15

11/13/2008

FILED CLERK ORDER (DEPUTY CLERK:LBS ):

DEFENDANT CHIPOTLE MEXICAN GRILL, INC.'S

MOTION AND CORRECTED MOTION FOR AN

EXTENSION OF TIME TO FILE THE SECOND

CROSS-APPEAL BRIEF ARE GRANTED. THE SECOND

CROSS-APPEAL BRIEF IS DUE DECEMBER 17, 2008. THE

THIRD CROSS-APPEAL BRIEF IS DUE JANUARY 16, 2009.

THE OPTIONAL CROSS-APPEAL REPLY BRIEF IS DUE 14

DAYS AFTER SERVICE OF THE THIRD CROSS-APPEAL

BRIEF. [08-55867, 08-55946] (SC)

14

10/30/2008

FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867 CORRECTED MOTION TO EXTEND TIME TO

FILE OPENING BRIEF UNTIL 12/17/2008. DATE OF

SERVICE: 10/30/2008. [6691675] [08-55867, 08-55946] (GFH)

13

10/30/2008

ELECTRONICALLY-FILED DOCUMENT [6691000-3]

MOTION (ECF FILING) , [6691000-2] MOTION TO EXTEND

TIME TO FILE BRIEF IS STRICKEN BECAUSE THERE IS

AN ERROR IN THE DOCUMENT. SEE ORDER. (JFF)

12

10/30/2008

FILED (ECF) APPELLEE CHIPOTLE MEXICAN GRILL, INC.

IN 08-55867 MOTION TO EXTEND TIME TO FILE

OPENING BRIEF UNTIL 12/17/2008. DATE OF SERVICE:

10/30/2008. [6691000] [08-55867, 08-55946] (GFH)

11

10/29/2008

FILED CLERK ORDER (DEPUTY CLERK:LBS ): THE

COURT IS IN RECEIPT OF THE MOTION OF DISABILITY

RIGHTS EDUCATION AND DEFENSE FUND, DISABILITY

RIGHTS ADVOCATES, DISABILITY RIGHTS CALIFORNIA,

DISABILITY RIGHTS LEGAL CENTER, COLORADO

CROSS DISABILITY COALITION, NATIONAL DISABILITY

RIGHTS NETWORK, AND THE AMERICAN ASSOCIATION

OF PEOPLE WITH DISABILITIES TO FILE AN AMICUS

CURIAE BRIEF IN SUPPORT OF REVERSAL. THE

MOTION, ANY RESPONSE THERETO AND ANY FURTHER

SUCH REQUEST SHALL BE REFERRED TO THE MERITS

PANEL FOR SUCH TREATMENT THE PANEL DEEMS

APPROPRIATE. A COPY OF THE BRIEF SHALL BE

PROVIDED TO THE PANEL TO AID RESOLUTION OF THE

MOTION. ANY FUTURE REQUESTS TO FILE FRIEND OF

THE COURT BRIEFS SHALL BE TREATED IN THE SAME

FASHION. [08-55867, 08-55946] (SC)

10

10/14/2008

RECEIVED ORIGINAL AND 15 COPIES OF AMICI CURIAE

COLORADO CROSS DISABILITY COALITION,

DISABILITY RIGHTS ADVOCATES, DISABILITY RIGHTS

CALIFORNIA, DISABILITY RIGHTS EDUCATION AND

DEFENSE FUND, DISABILITY RIGHTS LEGAL CENTER,

NATIONAL DISABILITY RIGHTS NETWORK AND THE

AMERICAN ASSOCIATION OF PEOPLE WITH

DISABILITITES IN 08-55867, 08-55946 BRIEF IN 30 PAGES.

DEFICIENCY: MOTION PENDING SERVED ON. 10/10/2008

[08-55867, 08-55946] (FT)

9

10/14/2008

FILED DISABILITY RIGHTS EDUCATION AND DEFENSE

FUND, DISABILITY RIGHTS ADVOCATES, DISABILITY

RIGHTS CALIFORNIA, DISABILITY RIGHTS LEGAL

CENTER, COLORADO CROSS DISABILITY COALITION,

NATIONAL DISABILITY RIGHTS NETWORK AND THE

AMERICAN ASSOCIATION OF PEOPLE WITH

DISABILITITES IN 08-55867 AND DISABILITY RIGHTS

EDUCATION AND DEFENSE FUND, DISABILITY RIGHTS

ADVOCATES, DISABILITY RIGHTS CALIFORNIA,

DISABILITY RIGHTS LEGAL CENTER, COLORADO

CROSS DISABILITY COALITION, NATIONAL DISABILITY

RIGHTS NETWORK AND THE AMERICAN ASSOCIATION

OF PEOPLE WITH DISABILITITES IN 08-55946 MOTION

TO TO BECOME AMICUS CURIAE, SERVED ON 10/10/2008

[08-55867, 08-55946] (FT)

8

10/10/2008

SUBMITTED (ECF) AMICUS BRIEF FOR REVIEW AND

FILED MOTION TO BECOME AMICUS CURIAE.

SUBMITTED BY DISABILITY RIGHTS EDUCATION AND

DEFENSE FUND, DISABILITY RIGHTS ADVOCATES,

DISABILITY RIGHTS CALIFORNIA, DISABILITY RIGHTS

LEGAL CTR, COLORADO CROSS DISABILITY

COALITION, NATIONAL DISABILITY RIGHTS NETWORK,

AND AMERICAN ASS'N OF PEOPLE WITH DISABILITIES.

DATE OF SERVICE: 10/10/2008. [6672513] [08-55867,

08-55946] (AFR)

7

10/06/2008

FILED ORIGINAL AND 15 COPIES OF MAURIZIO

ANTONINETTI IN 08-55867 FIRST BRIEF ON

CROSS-APPEAL. (INFORMAL: NO). 57 PAGES. FIVE

COPIES EXCERPTS OF RECORD IN 7 VOLUMES. SERVED

ON: 10/03/2008. [08-55867, 08-55946] (FT)

6

08/13/2008

FILED ORDER MEDIATION (PWS): THE COURT HAS

DETERMINED THAT THESE APPEALS WILL NOT BE

SELECTED FOR INCLUSION IN THE MEDIATION

PROGRAM. THE BRIEFING SCHEDULE SET FORTH IN

THE COURT'S ORDER FILED JULY 30, 2008, SHALL

REMAIN IN EFFECT. [08-55867, 08-55946] (SC)

5

07/30/2008

FILED ORDER MEDIATION (PWS):THE COURT WILL

INITIATE A FURTHER ASSESSMENT CONFERENCE BY

TELEPHONE ON AUGUST 12, 2008, AT 1:00 P.M. PACIFIC

(SAN FRANCISCO) TIME. THE BRIEFING SCHEDULE

PREVIOUSLY SET BY THE COURT IS AMENDED AS

FOLLOWS: APPELLANT MAURIZIO ANTONINETTI

SHALL FILE THE FIRST CROSS-APPEAL BRIEF ON OR

BEFORE OCTOBER 6, 2008; APPELLEE CHIPOTLE

MEXICAN GRILL, INC. SHALL FILE THE SECOND

CROSS-APPEAL BRIEF ON OR BEFORE NOVEMBER 17,

2008; APPELLANT MAURIZIO ANTONINETTI SHALL FILE

THE THIRD CROSS-APPEAL BRIEF ON OR BEFORE

DECEMBER 17, 2008; APPELLEE CHIPOTLE MEXICAN

GRILL, INC. MAY FILE AN OPTIONAL FOURTH

CROSS-APPEAL BRIEF WITHIN FOURTEEN (14) DAYS

FROM THE SERVICE DATE OF THE THIRD

CROSS-APPEAL BRIEF. (KKW)

4

06/16/2008

FILED CLERK ORDER (DEPUTY CLERK:EPM): THESE

CASES ARE UNDER CONSIDERATION FOR INCLUSION

IN THE MEDIATION PROGRAM. A SETTLEMENT

ASSESSMENT CONFERENCE WILL BE HELD BY

TELEPHONE ON JULY 22, 2008, AT 10:00 A.M. PACIFIC

(SAN FRANCISCO) TIME. THE BRIEFING SCHEDULE

PREVIOUSLY SET BY THE COURT REMAINS IN EFFECT.

[08-55867, 08-55946] (SC)

3

06/11/2008

FILED REPRESENTATION NOTICE OF GREGORY F.

HURLEY FOR CHIPOTLE MEXICAN GRILL INC.,

DEFENDANT - APPELLEE - CROSS-APPELLANT. SERVED

ON 05/29/2008. (JN)

2

06/11/2008

FILED APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN

08-55946 CIVIL APPEALS DOCKETING STATEMENT.

SERVED ON 05/29/2008. [08-55946, 08-55867] (CONFATT)

(JN)

1

06/11/2008

DOCKETED CAUSE AND ENTERED APPEARANCES OF

COUNSEL. SEND CADS: NO. SETTING CROSS-APPEAL

BRIEFING SCHEDULE AS FOLLOWS: DESIGNATION OF

RT FOR APPELLANT CHIPOTLE MEXICAN GRILL, INC.

DUE 06/09/2008. DESIGNATION OF RT FOR APPELLEE

MAURIZIO ANTONINETTI DUE 06/18/2008. TRANSCRIPT

ORDER FOR APPELLANT CHIPOTLE MEXICAN GRILL,

INC. DUE 06/30/2008. TRANSCRIPT DUE FOR COURT

REPORTER JOAN KING, COURT REPORTER ON

07/28/2008. CERTIFICATE OF RECORD DUE 07/07/2008.

FIRST CROSS APPEAL BRIEF DUE 09/02/2008 FOR

MAURIZIO ANTONINETTI. SECOND BRIEF ON CROSS

APPEAL DUE 10/02/2008 FOR CHIPOTLE MEXICAN

GRILL, INC.. THIRD BRIEF ON CROSS APPEAL DUE

11/03/2008 FOR MAURIZIO ANTONINETTI. OPTIONAL

CROSS APPEAL REPLY BRIEF DUE 11/17/2008 FOR

CHIPOTLE MEXICAN GRILL, INC. [08-55946, 08-55867]

(JN)

END OF DOCUMENT

 
 09-55327

Page 1

Court: Case Title: Appeal From: Date Filed:
Case Number: Fee Status: Case Type: Case Subtype:

US COURT OF APPEALS FOR THE NINTH CIRCUIT
MAURIZIO ANTONINETTI v. CHIPOTLE MEXICAN GRILL, INC., ET AL U.S. DISTRICT COURT FOR SOUTHERN CALIFORNIA, SAN DIEGO 03/05/2009 CASE INFORMATION 09-55327
PAID
APPEALS
CIVIL
PRIVATE

Nature of Suit:

3440 OTHER CIVIL RIGHTS

Key Nature of Suit:

APPEALS (030)

District:

LOWER COURT INFORMATION 0974-3

Lower Court Docket Number:

3:05-CV-01660-J-WMC

Trial Judge(s):

NAPOLEON A. JONES, U.S. DISTRICT JUDGE

Court Reporter(s):

JOAN KING

Date Filed:

08/22/2005

09-55327

Page 2

Date Order/Judgment: Date NOA Filed: Date COA Received:

02/06/2009 03/02/2009 03/05/2009

OTHER CASES

Current Case(s): Relationship: CONSOLIDATED POST-BR CROSS-APPEAL CROSS-APPEAL RELATED RELATED RELATED
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:

Lead Docket: 08-55867

Member Docket: Start Date:

--

05/13/2009

08-55867 09-55327 08-55867 08-55946 08-55946

-----NAMES

06/11/2008 03/20/2009 03/20/2009 03/05/2009 03/20/2009

MAURIZIO ANTONINETTI PLAINTIFF - APPELLANT AMY BETH VANDEVELD 619-231-8883 VANDEVELD LAW OFFICES SUITE 22 1850 FIFTH AVENUE SAN DIEGO, CA 92101

End Date: --
------

CHIPOTLE MEXICAN GRILL, INC. DEFENDANT - APPELLEE GREGORY FRANCIS HURLEY, ESQUIRE, SENIOR LITIGATION 949-732-6500 LAW OFFICES OF GREENBERG TRAURIG, LLP SUITE 1000 3161 MICHELSON DRIVE

09-55327

Page 3

Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Name: Type: Attorney: Firm Name:
ENTRY #: 23
22

IRVINE, CA 92612 949-732-6500 VIRGINIA E. ROBINSON 703-749-1300 GREENBERG TRAURIG, LLP SUITE 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380 JOHN FRANCIS SCALIA, ESQUIRE 703-749-1380 GREENBERG TRAURIG, LLP STE. 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380

JOHN DOES, 1 THROUGH 10, INCLUSIVE DEFENDANT - APPELLEE NO APPEARANCE NO ADDRESS NO, CITY

DOCKET PROCEEDINGS

DATE: 02/26/2010

DESCRIPTION:
NOTICE OF ORAL ARGUMENT ON APRIL CALENDAR. PLEASE RETURN ACKNOWLEDGMENT OF HEARING NOTICE FORM TO: PASADENA OFFICE. ATTENTION: THE NOTICE OF DOCKET ACTIVITY MAY NOT LIST YOUR CASE NUMBER. PLEASE OPEN ATTACHED DOCUMENTS TO VIEW DETAILS ABOUT YOUR CASE. [7245816] [0855867, 08-55946, 09-55327, 09-55425] (LN)

10/15/2009

CASE REJECTED FROM CIRCUIT MEDIATION PROGRAM. [7102854] [09-16444, 09-16532, 09-16535, 09-16626, 09-16676, 09-16753, 09-16775, 09-16822, 09-16874, 09-16924, 09-16956, 09-16967, 09-16972, 09-16996, 09-17001, 09-17002, 09-17050, 09-17076, 09-17098, 09-35606, 09-35685, 09-35711, 09-35756,

09-55327
21 20
19 18 17 16

Page 4

09-35773, 09-55327, 09-55425, 09-55829, 09-55907, 09-55913, 09-55937, 09-56035, 09-56047, 09-56050, 09-56283, 09-56337, 09-56447, 09-56461, 09-60031, 09-72713] (SB)

09/09/2009

RECEIVED 10 PAPER COPIES OF CROSS-APPEAL REPLY BRIEF [19] FILED BY CHIPOTLE MEXICAN GRILL, INC. IN 09-55327, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [7056271] [08-55867, 09-55327, 0955425, 08-55946] (SD)

09/02/2009

FILED CLERK ORDER: CROSS-APPEAL REPLY BRIEF BRIEF [19] FILED BY CHIPOTLE MEXICAN GRILL, INC. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A GREY COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [7049545] [09-55327, 08-55867, 09-55425, 08-55946] (PK)

08/28/2009

SUBMITTED (ECF) CROSS-APPEAL REPLY BRIEF BRIEF FOR REVIEW. SUBMITTED BY APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN 09-55425, APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN 09-55327. DATE OF SERVICE: 08/28/2009. [7045225] [09-55425, 09-55327]--[COURT SPREAD FILING TO CASE NOS. 08-55867 AND 08-55946. 09/02/2009 BY MA] (VER)

08/20/2009

RECEIVED 10 PAPER COPIES OF THIRD BRIEF ON CROSSAPPEAL [15] FILED BY MAURIZIO ANTONINETTI IN 0955327, 08-55867, 08-55946, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [7034934] [0955327, 08-55867, 09-55425, 08-55946] (SD)

08/14/2009

FILED APPELLANT MAURIZIO ANTONINETTI EXCERPTS OF RECORD VOLUME 10. SERVED ON 08/14/2009. [7028621] [09-55327, 08-55867, 09-55425, 08-55946] (PK)

08/14/2009

FILED CLERK ORDER: THIRD BRIEF ON CROSS-APPEAL

09-55327
15 13 12 14 11

Page 5

[15] FILED BY MAURIZIO ANTONINETTI IN 09-55327, 0955425. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A YELLOW COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [7028139] [08-55867, 09-55327, 09-55425, 08-55946] (LA)

08/14/2009

SUBMITTED (ECF) THIRD BRIEF ON CROSS-APPEAL BRIEF FOR REVIEW. SUBMITTED BY APPELLANT MAURIZIO ANTONINETTI IN 09-55327. DATE OF SERVICE: 08/14/2009. [7027995] [09-55327, 08-55867, 09-55425, 0855946] (ABV)

07/24/2009

RECEIVED 10 PAPER COPIES OF SECOND BRIEF ON CROSS-APPEAL [11] FILED BY CHIPOTLE MEXICAN GRILL, INC. IN 09-55327, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [7003340] [0855867, 09-55327, 09-55425, 08-55946] (SD)

07/22/2009

FILED CLERK ORDER: SECOND BRIEF ON CROSSAPPEAL BRIEF [11] FILED BY CHIPOTLE MEXICAN GRILL, INC. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A RED COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [7000924] [09-55327, 08-55867, 09-55425, 08-55946] (PK)

07/20/2009

FILED APPELLEE/CROSS-APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN 09-55327 & 09-55425 SUPPLEMENTAL EXCERPTS OF RECORD ON APPEAL IN 1 VOLUME. [7004094] [08-55867, 09-55327, 09-55425, 08-55946] (LA)

07/17/2009

SUBMITTED (ECF) SECOND BRIEF ON CROSS-APPEAL BRIEF FOR REVIEW. SUBMITTED BY APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN 09-55327. DATE OF SERVICE: 07/17/2009. [6996474] [09-55327, 09-55425]--[COURT

09-55327 10 9 --
8 7

Page 6

SPREAD FILING TO 08-55867, 08-55946 --07/22/2009 BY MA] (GFH)

06/23/2009

RECEIVED 10 PAPER COPIES OF OPENING BRIEF [8] FILED BY MAURIZIO ANTONINETTI IN 08-55867, 08-55946, 09-55327, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [6966469] [08-55867, 09-55327, 0955425, 08-55946] (SD)

06/17/2009

FILED APPELLANT MAURIZIO ANTONINETTI IN 09-55327, 09-55425 EXCERPTS OF RECORD IN 9 VOLUMES, WITH ADDITIONAL, SEPARATELY-BOUND FULL INDEX. SERVED ON 06/15/2009. [6959480] [08-55867, 09-55327, 0955425, 08-55946] (LA)

06/17/2009

FILED CLERK ORDER: FIRST BRIEF ON CROSS-APPEAL [8] FILED BY MAURIZIO ANTONINETTI IN 09-55327 & 0955425. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A BLUE COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [6959186] [08-55867, 08-55946, 09-55327, 09-55425] (LA)

06/16/2009

SUBMITTED (ECF) FIRST BRIEF ON CROSS-APPEAL BRIEF FOR REVIEW. SUBMITTED BY APPELLEE MAURIZIO ANTONINETTI IN 09-55425. DATE OF SERVICE: 06/16/2009. [6958841] [09-55425, 08-55867, 08-55946, 0955327] (ABV)

05/13/2009

FILED CLERK ORDER (DEPUTY CLERK:LBS ): PLAINTIFF'S MOTION FOR CONSOLIDATION OF 09-55327 AND 09-55425 WITH 08-55867 AND 08-55946 IS GRANTED TO THE EXTENT THAT THE ABOVE-CAPTIONED APPEALS SHALL BE ASSIGNED TO THE SAME MERITS PANEL. THESE APPEALS SHALL BE BRIEFED SEPARATELY. BRIEFING HAS BEEN COMPLETED IN 08-55867 AND 0855946. THE BRIEFING SCHEDULE ESTABLISHED ON MARCH 20, 2009 IN 09-55327 AND 09-55425 IS UNCHANGED. [08-55867, 08-55946, 09-55327, 09-55425] (SC)

09-55327

Page 7

6

04/28/2009

FILED (ECF) APPELLANT MAURIZIO ANTONINETTI IN 09-

55327 MOTION TO CONSOLIDATE CASES 09-55327, 09-

55425, 08-55867, 08-55946. DATE OF SERVICE: 04/28/2009.

[6899891] [09-55327, 08-55867, 09-55425, 08-55946] (ABV)

5

04/10/2009

FILED CERTIFICATE OF RECORD ON APPEAL. RT FILED

IN DC 10/20/08 (CW)

4

03/20/2009

FILED APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN

09-55425 CIVIL APPEALS DOCKETING STATEMENT.

SERVED ON 03/16/2009. [09-55425, 09-55327] (RT)

3

03/20/2009

DOCKETED CAUSE AND ENTERED APPEARANCES OF

COUNSEL. SEND CADS: NO. SETTING CROSS-APPEAL

BRIEFING SCHEDULE AS FOLLOWS: FIRST CROSS AP-

PEAL BRIEF DUE 06/17/2009 FOR MAURIZIO AN-

TONINETTI. SECOND BRIEF ON CROSS APPEAL DUE

07/17/2009 FOR CHIPOTLE MEXICAN GRILL, INC.. THIRD

BRIEF ON CROSS APPEAL DUE 08/17/2009 FOR MAURIZIO

ANTONINETTI. OPTIONAL CROSS APPEAL REPLY BRIEF

FOR CHIPOLTE MEXICAN GRILL, INC. IS DUE 14 DAYS

AFTER SERVICE OF THE THIRD BRIEF ON CROSS AP-

PEAL. [09-55425, 09-55327] (RT)

2

03/05/2009

FILED APPELLANT MAURIZIO ANTONINETTI CIVIL AP-

PEALS DOCKETING STATEMENT. SERVED ON 02/27/2009.

(RT)

1

03/05/2009

DOCKETED CAUSE AND ENTERED APPEARANCES OF

COUNSEL. SEND CADS: NO. THE SCHEDULE IS SET AS

FOLLOWS: DESIGNATION OF RT FOR APPELLANT MAU-

RIZIO ANTONINETTI DUE 03/12/2009. DESIGNATION OF

RT FOR APPELLEE CHIPOTLE MEXICAN GRILL, INC. AND

DOES DUE 03/23/2009. TRANSCRIPT ORDER FOR APPEL-

LANT MAURIZIO ANTONINETTI DUE 04/01/2009. TRAN-

SCRIPT DUE FOR COURT REPORTER JOAN KING, COURT

REPORTER ON 05/01/2009. CERTIFICATE OF RECORD DUE

04/08/2009. APPELLANT MAURIZIO ANTONINETTI OPEN-

ING BRIEF DUE 06/17/2009. APPELLEE CHIPOTLE MEXI-

09-55327

Page 8
CAN GRILL, INC. AND APPELLEE DOES ANSWERING BRIEF DUE 07/17/2009. APPELLANT'S OPTIONAL REPLY BRIEF IS DUE 14 DAYS AFTER SERVICE OF THE ANSWERING BRIEF. (RT)

 
 09-55425

Page 1

Court: Case Title: Appeal From: Date Filed:
Case Number: Fee Status: Case Type: Case Subtype:

US COURT OF APPEALS FOR THE NINTH CIRCUIT
MAURIZIO ANTONINETTI v. CHIPOTLE MEXICAN GRILL, INC. U.S. DISTRICT COURT FOR SOUTHERN CALIFORNIA, SAN DIEGO 03/20/2009 CASE INFORMATION 09-55425
PAID
APPEALS
CIVIL
PRIVATE

Nature of Suit:

3440 OTHER CIVIL RIGHTS

Key Nature of Suit:

APPEALS (030)

District:

LOWER COURT INFORMATION 0974-3

Lower Court Docket Number:

3:05-CV-01660-J-WMC

Trial Judge(s):

NAPOLEON A. JONES, JUNIOR, U.S. DISTRICT JUDGE

Court Reporter(s):

JOAN KING

Date Filed:

08/22/2005

09-55425

Page 2

Date Order/Judgment: Date NOA Filed: Date COA Received:

02/06/2009 03/16/2009 03/20/2009

OTHER CASES

Current Case(s): Relationship: CONSOLIDATED POST-BR CROSS-APPEAL CROSS-APPEAL RELATED RELATED RELATED
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type: Attorney: Firm Name: Firm Address:
Attorney:

Lead Docket: 08-55867

Member Docket: Start Date:

--

05/13/2009

08-55867 09-55327 08-55867 08-55946 08-55946

-----NAMES

06/11/2008 03/20/2009 03/20/2009 03/05/2009 03/20/2009

MAURIZIO ANTONINETTI PLAINTIFF - APPELLEE AMY BETH VANDEVELD 619-231-8883 VANDEVELD LAW OFFICES SUITE 22 1850 FIFTH AVENUE SAN DIEGO, CA 92101

End Date: --
------

CHIPOTLE MEXICAN GRILL, INC. DEFENDANT - APPELLANT GREGORY FRANCIS HURLEY, ESQUIRE, SENIOR LITIGATION GREENBERG TRAURIG, LLP 3161 MICHELSON DRIVE IRVINE, CA 92612 VIRGINIA E. ROBINSON

09-55425

Page 3

Attorney Phone: Firm Name: Firm Address: Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address: Firm Phone:
ENTRY #: 20
19
18

703-749-1300 GREENBERG TRAURIG, LLP SUITE 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380 JOHN FRANCIS SCALIA, ESQUIRE 703-749-1380 GREENBERG TRAURIG, LLP STE. 1200 1750 TYSONS BLVD. MCLEAN, VA 22102 703-749-1380

DOCKET PROCEEDINGS

DATE: 02/26/2010

DESCRIPTION:
NOTICE OF ORAL ARGUMENT ON APRIL CALENDAR. PLEASE RETURN ACKNOWLEDGMENT OF HEARING NOTICE FORM TO: PASADENA OFFICE. ATTENTION: THE NOTICE OF DOCKET ACTIVITY MAY NOT LIST YOUR CASE NUMBER. PLEASE OPEN ATTACHED DOCUMENTS TO VIEW DETAILS ABOUT YOUR CASE. [7245816] [0855867, 08-55946, 09-55327, 09-55425] (LN)

10/15/2009

CASE REJECTED FROM CIRCUIT MEDIATION PROGRAM. [7102854] [09-16444, 09-16532, 09-16535, 09-16626, 09-16676, 09-16753, 09-16775, 09-16822, 09-16874, 09-16924, 09-16956, 09-16967, 09-16972, 09-16996, 09-17001, 09-17002, 09-17050, 09-17076, 09-17098, 09-35606, 09-35685, 09-35711, 09-35756, 09-35773, 09-55327, 09-55425, 09-55829, 09-55907, 09-55913, 09-55937, 09-56035, 09-56047, 09-56050, 09-56283, 09-56337, 09-56447, 09-56461, 09-60031, 09-72713] (SB)

09/09/2009

RECEIVED 10 PAPER COPIES OF CROSS-APPEAL REPLY BRIEF [16] FILED BY CHIPOTLE MEXICAN GRILL, INC. IN 09-55327, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [7056271] [08-55867, 09-55327, 0955425, 08-55946] (SD)

09-55425 17
16 15 14 13
12

Page 4

09/02/2009

FILED CLERK ORDER: CROSS-APPEAL REPLY BRIEF BRIEF [16] FILED BY CHIPOTLE MEXICAN GRILL, INC. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A GREY COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [7049545] [09-55327, 08-55867, 09-55425, 08-55946] (PK)

08/28/2009

SUBMITTED (ECF) CROSS-APPEAL REPLY BRIEF BRIEF FOR REVIEW. SUBMITTED BY APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN 09-55425, APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN 09-55327. DATE OF SERVICE: 08/28/2009. [7045225] [09-55425, 09-55327]--[COURT SPREAD FILING TO CASE NOS. 08-55867 AND 08-55946. 09/02/2009 BY MA] (VER)

08/20/2009

RECEIVED 10 PAPER COPIES OF THIRD BRIEF ON CROSSAPPEAL [12] FILED BY MAURIZIO ANTONINETTI IN 0955327, 08-55867, 08-55946, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [7034934] [0955327, 08-55867, 09-55425, 08-55946] (SD)

08/14/2009

FILED APPELLANT MAURIZIO ANTONINETTI EXCERPTS OF RECORD VOLUME 10. SERVED ON 08/14/2009. [7028621] [09-55327, 08-55867, 09-55425, 08-55946] (PK)

08/14/2009

FILED CLERK ORDER: THIRD BRIEF ON CROSS-APPEAL [12] FILED BY MAURIZIO ANTONINETTI IN 09-55327, 0955425. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A YELLOW COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [7028139] [08-55867, 09-55327, 09-55425, 08-55946] (LA)

08/14/2009

SUBMITTED (ECF) THIRD BRIEF ON CROSS-APPEAL BRIEF FOR REVIEW. SUBMITTED BY APPELLANT MAU-

09-55425
10 9
11 8 7 6

Page 5

RIZIO ANTONINETTI IN 09-55327. DATE OF SERVICE: 08/14/2009. [7027995] [09-55327, 08-55867, 09-55425, 0855946] (ABV)

07/24/2009

RECEIVED 10 PAPER COPIES OF SECOND BRIEF ON CROSS-APPEAL [8] FILED BY CHIPOTLE MEXICAN GRILL, INC. IN 09-55327, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [7003340] [0855867, 09-55327, 09-55425, 08-55946] (SD)

07/22/2009

FILED CLERK ORDER: SECOND BRIEF ON CROSSAPPEAL BRIEF [8] FILED BY CHIPOTLE MEXICAN GRILL, INC. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A RED COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [7000924] [09-55327, 08-55867, 09-55425, 08-55946] (PK)

07/20/2009

FILED APPELLEE/CROSS-APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN 09-55327 & 09-55425 SUPPLEMENTAL EXCERPTS OF RECORD ON APPEAL IN 1 VOLUME. [7004094] [08-55867, 09-55327, 09-55425, 08-55946] (LA)

07/17/2009

SUBMITTED (ECF) SECOND BRIEF ON CROSS-APPEAL BRIEF FOR REVIEW. SUBMITTED BY APPELLEE CHIPOTLE MEXICAN GRILL, INC. IN 09-55327. DATE OF SERVICE: 07/17/2009. [6996474] [09-55327, 09-55425]--[COURT SPREAD FILING TO 08-55867, 08-55946 --07/22/2009 BY MA] (GFH)

06/23/2009

RECEIVED 10 PAPER COPIES OF OPENING BRIEF [5] FILED BY MAURIZIO ANTONINETTI IN 08-55867, 08-55946, 09-55327, 09-55425. ONE COPY TO CASE FILES, THE REMAINDER TO RECORDS. [6966469] [08-55867, 09-55327, 0955425, 08-55946] (SD)

06/17/2009

FILED APPELLANT MAURIZIO ANTONINETTI IN 09-55327, 09-55425 EXCERPTS OF RECORD IN 9 VOLUMES, WITH

09-55425 --
5 4
3 2

Page 6

ADDITIONAL, SEPARATELY-BOUND FULL INDEX. SERVED ON 06/15/2009. [6959480] [08-55867, 09-55327, 0955425, 08-55946] (LA)

06/17/2009

FILED CLERK ORDER: FIRST BRIEF ON CROSS-APPEAL [5] FILED BY MAURIZIO ANTONINETTI IN 09-55327 & 0955425. WITHIN 5 WORKING DAYS OF THE FILING OF THIS ORDER, FILER IS ORDERED TO FILE 10 COPIES OF THE BRIEF IN PAPER FORMAT, WITH A BLUE COVER, ACCOMPANIED BY CERTIFICATION, ATTACHED TO THE END OF EACH COPY OF THE BRIEF, THAT THE BRIEF IS IDENTICAL TO THE VERSION SUBMITTED ELECTRONICALLY. [6959186] [08-55867, 08-55946, 09-55327, 09-55425] (LA)

06/16/2009

SUBMITTED (ECF) FIRST BRIEF ON CROSS-APPEAL BRIEF FOR REVIEW. SUBMITTED BY APPELLEE MAURIZIO ANTONINETTI IN 09-55425. DATE OF SERVICE: 06/16/2009. [6958841] [09-55425, 08-55867, 08-55946, 0955327] (ABV)

05/13/2009

FILED CLERK ORDER (DEPUTY CLERK:LBS ): PLAINTIFF'S MOTION FOR CONSOLIDATION OF 09-55327 AND 09-55425 WITH 08-55867 AND 08-55946 IS GRANTED TO THE EXTENT THAT THE ABOVE-CAPTIONED APPEALS SHALL BE ASSIGNED TO THE SAME MERITS PANEL. THESE APPEALS SHALL BE BRIEFED SEPARATELY. BRIEFING HAS BEEN COMPLETED IN 08-55867 AND 0855946. THE BRIEFING SCHEDULE ESTABLISHED ON MARCH 20, 2009 IN 09-55327 AND 09-55425 IS UNCHANGED. [08-55867, 08-55946, 09-55327, 09-55425] (SC)

04/28/2009

FILED (ECF) APPELLANT MAURIZIO ANTONINETTI IN 0955327 MOTION TO CONSOLIDATE CASES 09-55327, 0955425, 08-55867, 08-55946. DATE OF SERVICE: 04/28/2009. [6899891] [09-55327, 08-55867, 09-55425, 08-55946] (ABV)

03/20/2009

FILED APPELLANT CHIPOTLE MEXICAN GRILL, INC. IN 09-55425 CIVIL APPEALS DOCKETING STATEMENT. SERVED ON 03/16/2009. [09-55425, 09-55327] (RT)

09-55425 1

Page 7

03/20/2009

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: NO. SETTING CROSS-APPEAL BRIEFING SCHEDULE AS FOLLOWS: FIRST CROSS APPEAL BRIEF DUE 06/17/2009 FOR MAURIZIO ANTONINETTI. SECOND BRIEF ON CROSS APPEAL DUE 07/17/2009 FOR CHIPOTLE MEXICAN GRILL, INC.. THIRD BRIEF ON CROSS APPEAL DUE 08/17/2009 FOR MAURIZIO ANTONINETTI. OPTIONAL CROSS APPEAL REPLY BRIEF FOR CHIPOLTE MEXICAN GRILL, INC. IS DUE 14 DAYS AFTER SERVICE OF THE THIRD BRIEF ON CROSS APPEAL. [09-55425, 09-55327] (RT)