•
~ I,
f

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 1 of 23

1 Amy B. Vandeveld, SBN 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 Plaintiffs
5

F!LED
2005 DEC -6 PI"! 4: 0

6

7

8

, UNITED STATES DISTRICT COURT

"

9

FOR THE SOUTHERN DISTRtCT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI, JEAN RIKER,

'06CV 2671 LAB POR li

CASE NO." .

~

r 12 JAMES PERKINS, KAREN FRIEDMAN and , MICHAEL RIFKIN, on behalf of 13 themselves and all others similarlyt
situated,

CLASS ACTION - Related to USDC No. 05 CV 1660,:11
(WHo) )

14 15

Plaintiffs,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND

v.

DAMAGES FOR VIOLATIONS OF:

16 CHIPOTLE MEXICAN GRILL, INC., a
17 ~~~orado Corporation and DOES 1-10,
I-l-' ~l~ I V '--I
18 Defendants.

1. Title III of the
Americans with Disabilities Act (42 U.S.C. §§ 12181 et seq.); 2. Unruh Civil Rights Act

19

(Cal. Civil Code § 51 et seq. ) ;

20

3. Unfair Business Practices (Business

21

and Professions Code §17200 et seq.);

22

4. Intentional Infliction of Emotional Distress;

23

5. Negligence per se; and 6. Declaratory Relief.

24

DEMAND FOR JURy TRIAL

25 INTRODUCTION
26

27

1.

A visit to a Chipotle restaurant with family and

28 friends, or alone, should be an enjoyable experience, one in

1

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 2 of 23

1 which everyone has the opportunity to "build their perfect

2 burrito", to "add a little salsa, a little less guacamole", to

3 see the appetizing display of food choices and to watch the

4 actual construction of their burrito or bol - their own private

5 FoodTV show. It should be a "fast" experience, in a casual

6 setting, consistent with Chipotle's description of its

7 restaurants as providing "fast casual" fare. For Plaintiffs.

8 Maurizio Antoninetti, Jean Riker, and Michael Rifkin, James

9 Perkins and Karen Friedman and the class of people with mobility

10 disabilities they represent, it is, instead, an experience in

11 discrimination.

12

2. Mr. Antoninetti is a frequent visitor to Chipotle

13 restaurants' because his family loves the food. He reluctant::.y

14 accompanies them because to do otherwise would mean disappointing

15 his children and his wife or losing the opportunity to spend time

16 with his family. Ms. Riker, Mr. Rifkin, Dr. Perkins and Ms.

17 Friedman are infrequent visitors because they have found the

18 experience so unpleasant that they only wish to return if the

19 restaurants are made accessible to people with disabilities

20

3. Under a policy instituted by Chipotle Mexican Grill,

21 Inc. ("Chipotle"), all food service lines in its restaurants are

22 designed and constructed in the same manner - with an almost four

23 foot high wall separating the customers from the food crew, the

24 food items and the food preparation area where burritos are

25 rolled and boIs are made. Only standing people, or non-

26 wheelchair users, can see over the wall, which is much too high

27 for a person in a wheelchair to see beyond.

28 / / /

2

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 3 of 23

1

4. Those who can ~ee over the wall have the opportunity to

2 see large pans of eighteen or so appetizing ingredients,

3 tantalizingly displayed, to see and select the specific

4 ingredients they want in their burrito or bol, to direct the

5 amount of each of the chosen ingredients to be ,placed in the

6 burrito or bol, and to watch the actual construction of their

7 burritos or boIs. Just as Chipotle advertises, non-wheelchair

8 users get to "direct" the construction of their "perfect"

9 burrito. People in wheelchairs, however, have no such

10 opportunity. They get to see only the vertical wall and the

11 sneeze guard which protects the food items on display. Unless,

12 of course (at least according to Chipotle), the person in a

13 wheelchair fllakes a specific request to see the food or "looks'-

14 like they want to see the food. Then, and only then, do

15 wheelchair users receive an "accommodation".

16

5. Chipotle's "policy" of accommodating people in

17 wheelchairs is, unfortunately, an UNWRITTEN policy which allows

18 (but does not instruct) food crew members to "accommodate"

19 customers in wheelchairs. These "accommodations" are provided

20 only if: 1) the customer specifically asks for an accommodation,

21 or 2) the customer "looks" like he or she wants to see the food

22 by, for example, raising up in his or her wheelchair. The

23 "accommodations" consist of allowing, but not instructing,

24 Chipotle food crew to raise spoonfuls of food above the almost

25 four foot high wall to allow customers in wheelchairs to see the

26 food in the serving spoon. Another identified "accommodation"

27 pursuant to the general and vague policy is to allow (but not to

28 instruct) the crew to lift the pans of food above the wall so

3

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 4 of 23

1 customers in wheelchairs can see the food. The only other

2 alternative method of "accommodating people in wheelchairs", as

3 described by Chipotle, is to allow (though not to instruct) the

4 food crew to put samples of the sixteen or so food items into

5 "portion cups", to place the cups on a tray along with a heated

6 tortilla and to take the tray to the cashier counter or to an

7 adjacent dining table, so that a person in a wheelchair can see

8 the food items and the making of their burrito.

9

6. This experience is unfair, is humiliating and is

10 degrading for people with disabilities who use wheelchairs.

11 First, it is patently unfair to require people in wheelchairs to

12 specifically request (by word or conduct) the opportunity to

13 participate in the "Chipotle experience" when that experience js

14 routinely provided to non-wheelchair users without request. 15 S~cond, it is patently unfair that the average non-disabled

16 standing Chipotle customer, unlike a wheelchair user, is served

17 in about 30 seconds, from the time they enter the door until they

18 pay for their food. This speed is accomplished because non-

19 wheelchair users can see the ingredients as they walk along the

20 food service line, can point to their food, can easily interact

21 with the food crew and can direct the making of their burrito or

22 bol, efficiently and quickly.

23

7. Wheelchair users, however, are "accommodated" in ways

24 that take much, much longer than 30 seconds. They have to wait

25 for several minutes, certainly well longer than the efficient 26 half of a minute, before they complete the "Chipotle experience."

27 Under one scenario, they have to wait, holding up the line of

28 other customers, while each of the 16 ingredients is spooned up

4

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 5 of 23

1 and lifted above the wall. Or they have to endure the

2 interminable delay while each of the 16 pans of ingredients is

3 lifted out of place and hoisted above the four foot wall. Or

4 they have to agree to be subjected to the most time-consuming and

5 humiliating "accommodation" of all - waiting while the food crew

6 spoons the 16 ingredients into little plastic cups, places the 16

7 cups on a tray along with a tortilla, carries the tray to the

8 cashier counter or to a nearby table (if one is vacant) just so

9 that the wheelchair user is allowed to see all of the items at

10 one time and to watch the making of their burrito.

11

8. It is also humiliating and degrading to subject people

12 in wheelchairs to scorn and ridicule from non-wheelchair users

13 who simply wan:t to "get their burrito fast", in the 30 seconds {,f

14 service they are accustomed to. Subjecting people in wheelchairs

15 to. the humiliation of holding up what would otherwise be a swift-

16 moving line is unfair and discriminatory. Requiring people in

17 wheelchairs to block or delay other customers from paying for

18 their food just so they (the wheelchair users) can see the making

19 of their burrito at the cashier station is unfair and

20 discriminatory. Requiring people in wheelchairs to wait for the

21 assembly of ingredients on a tray and to follow a food crew

22 member around the dining area, while searching for a vacant table

23 (hopefully the accessible table) all while under the watch of

24 other customers, is unfair and discriminatory.

25

JURISDICTION AND VENUE

26

9. The claims alleged herein arise under the Americans with

27 Disabilities Act (42 u.s.c. §§ 12131 et seq.) ("ADA"), among

28 other state claims for relief, such that the jurisdiction of this

5

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 6 of 23

1 Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343. Through

2 the same actions and omissions that form the basis of Plaintiff's

3 federal claims, Defendants have also violated Plaintiffs' rights

4 under state law, over which this Court has supplemental

5 jurisdiction pursuant to 28 U.S.C. § 1367. This Court has

6 jurisdiction over Plaintiffs' claims for declaratory and

7 injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rule

8 65 of the Federal Rules of Civil Procedure.

9

10. Venue over Plaintiffs' claims is proper in the Southern

10 District of California because Defendant operates approximately

11 10 restaurants in the Southern District of California, Mr.

12 Antoninetti resides in the Southern District, and because the

13 events, acts, a',nd omissions giving rise to at least one of the

14 Plaintiffs' claims occurred in the Southern District of

15 California.

16

PARTIES

17

11. Plaintiffs Maurizio Antoninetti, Jean Riker, Michael

18 Rifkin, James Perkins and Karen Friedman are each individuals

19 with physical disabilities within the meaning of all applicable

20 statutes, including the ADA, 42 U.S.C. § 12101, et seq., . Section

21 504, 29 U.S.C. §794~ and California Civil Code § 51, et seq. All

22 of these plaintiffs utilize wheelchairs for mobility.

23

12. This action is brought on behalf of the named

24 Plaintiffs and on behalf of all persons similarly situated. The

25 class which the Plaintiffs seek to represent is composed of all

26 persons with mobility disabilities who use wheelchairs or

27 motorized mobility aides, such as scooters, who have been or will

28 be denied their rights under the ADA, and state law to access the

6

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 7 of 23

1 goods, services, benefits, privileges, advantages and

2 accommodations provided by Chipotle with respect to the food

3 service line, the viewing and selection of food items, and the

4 yiewing of the preparation of burritos and boIs.

5

13. Defendant Chipotle Mexican Grill, Inc., headquartered

6 in Denver, Colorado, is a corporation authorized to do business

7 and doing business within the State of California. Plaintiffs

8 are informed and, believe and thereon allege that Chipotle

9 operates approximately 83 restaurants within the State of

10 California, all of which are similarly designed and constructed

11 with respect to tne food service line. This case arises out of

12 Defendants' policy to deny access to people in wheelchairs to the

13 ' goods, services,' advantages, privileges, accommodations and

14 benefits afforded to non-disabled customers.

15

14. The Defendants whose identities are unknown are sued

16 herein under the names DOES 1 through 10 ("DOES"). Plaintiffs

17 are informed and believe and thereon allege that all of the

18 Defendants, including the DOES, are in some manner responsible

19 for the injuries and damages herein alleged.

20

FACTS APPLICABLE TO ALL CAUSES OF ACTION

21

15. Each and every allegation set forth in each and every

22 statement of the Complaint is hereby incorporated by reference in

23 each and every other averment and allegation of this Complaint.

24

16. Maurizio Antoninetti has paraplegia. He uses a

25 wheelchair for mobility. In November and December of 2006, Mr.

26 Antoninetti visited the Chipotle restaurants located on Rosecrans

27 Street and at San Diego State University in San Diego,

28 California. At one of the restaurants, Mr. Antoninetti

7

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 8 of 23

1 experienced the same discrimination he had been subjected to at

2 Chipotle restaurants in Encinitas and Pacific Beach, California.

3 That is, despite his protestations that he could not see the food

4 items, and despite his attempt to see over the wall which

5 separates customers from the food items, Mr. Antoninetti was

6 provided with absolutely no accommodations by Chipotle food crew.

7 No effort at all was made to show him the food items or to allow

8 him to see the preparation of his food. He, therefore, could not

9 order exactly what he wanted, nor could he direct the building of

10 his perfect burrito, nor did he have the opportunity to enjoy

11 viewing the construction of his burrito. At the other

12 restaurant, because of the same condition of the high wall, Mr.

13 Antoninetti was deterred from even purchasing any food items.

14

17. Jean Riker has hemiplegia. She uses a wheelchair for

15 mobility. Ms. Riker visited the Chipotle restaurant on Capitol

16 Avenue in Sacramento, California in November of 2006. Ms. Riker

17 could not see the food items available for selection or the

18 preparation of her burrito, despite her efforts to see over the

19 high wall which separated her from the food crew. Absolutely no

20 accommodations were provided to Ms. Riker. Ms. Riker has since

21 been deterred from returning to Chipotle because of the

22 discrimination she experienced on her visit.

23

18. Michael Rifkin has multiple sclerosis and uses a

24 motorized chair for mobility. Mr. Rifkin visited the Chipotle

25 restaurant on Victoria Avenue in Ventura, California in August of

26 2006. Mr. Rifkin advised the food crew members that he could not

27 see the food items or the preparation of his food. No

28 accommodations were provided to Mr. Rifkin. Mr. Rifkin has been

8

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 9 of 23

1 deterred from returning to any Chipotle because of the

2 discrimination he experienced during his visit.

3

19. Karen Friedman has multiple sclerosis, among other

4 disabling conditions. She uses a wheelchair or a motorized

5 scooter for mobility. She visited the Chipotle on State Street

6 in Santa Barbara, California. She attempted to view the food

7 items over the wall, but was unsuccessful because of the height

8 of the food. As a strict vegetarian, she ordered a vegetarian

9 burrito but was given a burrito with meat ingredients. She

10 believes that, if she had been provided the opportunity to view

11 her food while it was being prepared, she would have been able to

12 prevent the mistake from occurring. She has been deterred from

13 returning to a Chipotle restaurant because of the lack of

'"

14 accommodations provided to her.

15

20. Dr. Perkins uses a wheelchair for mobility. Dr.

16 Perkins visited the Chipotle restaurant located in Ventura,

17 California in 2006. Dr. Perkins attempted to view the food items

18 available for selection but was unable to see over the wall. He

19 advised the crew members that he could not see the food, but no

20 accommodation was provided until he insisted that he be able to

21 see the guacamole because of a concern for his food allergies.

22 Because he was unable to see the food items and because no

23 accommodations were provided to him, Dr. Perkins left the food

24 line without ordering and ultimately had to rely on his wife to

25 select and "build" his burrito.

26

21. As a result of the above, Defendants have failed to

27 comply with federal requirements not to discriminate against

28 people with disabilities. Such actions are required under Title

9

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 10 of 23

1 III of the ADA to ensure that patrons with mobility disabilities

2 have access to the goods, services, benefits, advantages,

3 privileges and accommodations that are provided to non-disabled

4 patrons of Chipotle.

5

22. Chipotle has failed to comply with California state

6 requirements relating to providing access to people with

7 disabilities. Chipotle was notified by other wheelchair users,

8 beginning at least several years ago and continuing to the

9 present, about the lack of access provided to people who use

10 wheelchairs for mobility. Chipotle, despite this notice, has

11 taken no action to modify the high walls at its restaurants or to

12 provide effective accommodations to people in wheelchairs so that

13 they can see the se1ection of food items and see the preparation

14 of their burritos or bols, in a manner equal to that available to

15 non-wheelchair users.

16

23. Accordingly, Plaintiffs bring this action seeking

17 injunctive and declaratory relief in order to compel Defendant to

18 comply with its obligations to provide access to its goods,

19 services, benefits, advantages, privileges and accommodations and

20 to otherwise not discriminate against people with disabilities

21 who use wheelchairs. The named Plaintiffs also seek damages in

22 addition to their attorneys' fees and costs.

23

CLASS ACTION ALLEGATIONS

24

24. Plaintiffs bring this action on their own behalf and on

25 behalf of all persons similarly situated. The class which

26 plaintiffs seek to represent is composed of "all persons with

27 mobility disabilities who use wheelchairs or motorized mobility

28 aides, who have been or will be denied their rights under the

10

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 11 of 23

1 ADA, and state law to access goods, services, benefits,

2 advantages, privileges and accommodations provided by Chipotle at

3 its approximately 83 restaurants within the State of California

4 (class definition).

5

25. This suit is properly maintainable as a class action

6 under Federal Rules of Civil Procedure, Rule 23 (b) (2), because

7 Defendant has acted or refused to act on grounds generally

8 applicable to the class, at each of its approximately 83

9 California restaurants, thereby making appropriate final

10 injunctive relief or declaratory relief with respect to the class

11 as a whole an appropriate remedy. Class claims are brought for

12 the purpose of obtaining declaratory and injunctive relief and

13 statutory minimum da:;tages only. Class claims do not include

14 claims for actual, general or special damages.

15

26. The persons in the class are so numerous that joinder

16 of all such persons is impracticable and the disposition of their

17 claims in a class action is a benefit to the parties and to the

18 Court.

19

27. There is a well-defined community of interest in the

20 questions of law and fact involved affecting the parties to be

21 represented in that they were all denied their civil right to

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

23 Defendant due to the policies and/or design requirements applied

24 to persons with mobility disabilities, despite the requirements

25 of federal law.

26

28. Legal and factual questions common to each of the class

27 members include, but are not limited to, the following:

28

III

11

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 12 of 23

1

A. Whether Defendant is violating Title III of the

2 ADA, 42 U.S.C. sections 12181, et seq., by designing and

3 constructing a food service line which precludes people in

4 wheelchairs from seeing the food items available for selection

5 and from seeing the construction of their burritos or bols in the

6 same manner as is available to non-disabled people.

7

B. Whether Defendant has violated California Civil

8 Code sections 51, et seq., in that patrons of Chipotle with

9 mobility disabilities who use mobility aides as described above,

10 have either not been provided services, goods, benefits,

11 advantages, privileges, accommodations and facilities that are

12 provided to other persons or have been provided services, goods,

13 benefits, advantages, privileges and accommodations and

14 facilities that are not equal to, and are inferior to, the

15 services, goods, benefits, advantages, privileges, accommodations

16 and facilities provided to persons who do not have mobility

17 disabilities;

18

C. Whether Defendants have violated Business &

19 Professions Code section 17200 by engaging in unfair, illegal or

20 fraudulent business practices; and

21

D. Whether the Defendant is liable to each and every

22 class member for damages for each offense, as provided by

23 applicable state statutes.

24

29. The claims of the named Plaintiffs are typical of those

25 of the class and Plaintiffs will fairly and adequately represent

26 the interests of the class.

27

30. The attorney representing the Plaintiffs is an

28 experienced civil rights attorney with specific experience in

12

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 13 of 23

1 cases involving persons with disabilities. The attorney

2 representing Plaintiffs is also considered an able practitioner

3 in statutory adjudication and federal court litigation.

4

31. References to Plaintiffs shall be deemed to include the

5 named Plaintiffs and each member of the class, unless otherwise

6 indicated.

7

FIRST CAUSE OF ACTION

8

Title III of the Americans with Disabilities Act

42 U.S.C. §§ 12181 et seq.

9

10

32. Plaintiffs incorporate by reference each and every

11 allegation contained in the foregoing paragraphs.

12

33. Congress enacted the ADA upon finding, among other

13 things, that "society Las tended to isolate and segregate

:':

14 individuals with disabilities" and that such forms for

15 discrimination continue to be a ~serious and pervasive social

16 problem." 42 U.S.C. § 12101(a) (2).

17

34. In response to these findings, Congress explicitly

18 stated that the purpose of the ADA is to provide "a clear and

19 comprehensive national mandate for the elimination of

20 discrimination against individuals with disabilities" and ~clear,

21 strong, consisteht, enforceable standards addressing

22 discrimination against individuals with disabilities." 42 U.S.C.

23 § 12101(b) (1)-(2).

24

35. The ADA provides, inter alia, that it is discriminatory

25 to subject an individual or class of individuals on the basis of

26 a disability "to a denial of the opportunity of the individual or

27 class to participate in or benefit from the goods, services,

28

13

• , - - - ---- -----
Case 3:06-cv-02671-BTM -WMC Document 1 Filed 12/06/06 Page 14 of 23

1 facilities, privileges, advantages, or accommodations of an

2 entity." 42 U.S.C. § 12182(a) (i).

3

36. The ADA further provides that it is discriminatory "to

4 afford an individual or class of individuals, on the basis of a

5 disability . . with the opportunity to participate in or

6 benefit from a good, service, facility, privilege, advantage, or

7 accommodation that is not equal to that afforded to other

8 individuals." 42 U.S.C. § 12182(a) (ii).

9

37. Defendants' acts and omissions alleged herein are in

10 violation of the ADA, 42 U.S.C. sections 12101, et seq., and the

11 regulations promulgated thereunder.

12

38. Chipotle is a public accommodation covered by Title III

13 of the ADA. 42 U.S.C. § 12181 (7) (I).

14

39. Plaintiffs are persons with mobility disabilities and

15 thus are specifically protected under the ADA. 42 U.S.C. §

16 12102(2); and 28 C.F.R. § 36.104.

17

40. Defendant's conduct constitutes multiple ongoing and

18 continuous violations of the ADA and, unless restrained from

19 doing so, Defendant will continue to violate said law. Said

20 conduct, unless enjoined, will continue to inflict injuries for

21 which Plaintiffs have no adequate remedy at law. Consequently,

22 Plaintiffs are entitled to injunctive relief pursuant to section

23 308 of the ADA. 42 U.S.C. § 12188.

24

41. Plaintiffs are also entitled to reasonable attorneys'

25 fees and costs pursuant to section 505 of the ADA. 42 U.S.C. §

26 12205.

27

III

28

III

14

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 15 of 23

1

SECOND CAUSE OF ACTION

2

Unruh Civil Rights Act

California Civil Code 55 51 et seg.

3

4

42. Plaintiffs incorporate by reference each and every

5 allegation contained in the foregoing paragraphs.

6

43. California's Unruh Civil Rights Act prohibits

7 discrimination against individuals with disabilities. Section 51

8 of the California Civil Code provides, in relevant part:

9

All persons within the jurisdiction of this

state are free and equal, and no matter what

10

their ... disability ... are entitled to the full

and equal accommodations, advantages,

11

facilities, privileges, or services in all

business establishments of every kind

12

whatsoever.

13

Cal. Civ. Code § 51(b).

14

44. The Unruh Act provides that "[a] violation of the right

15 of any individual under the Americans with Disabilities Act ...

16 shall also constitute a violation of this section." Cal. Civ.

17 Code § 51 (f) .

18

45. As set forth above, Defendant discriminated against

19 Plaintiffs based on their disability by instituting policies or

20 by designing and constructing facilities that discriminate

21 against people with mobility disabilities.

22

46. Defendant's actions or inactions constitute a violation

23 of, among other laws, the Americans with Disabilities Act.

24

47. Plaintiffs' mobility disabilities limit a major life

25 activity; thus they are protected under the Unruh Civil Rights

26 Act. Cal. Civ. Code § 51(e) (1); Cal. Gov't. Code §12926(k).

27

48. Chipotle is a business establishment regulated by the

28 Unruh Civil Rights Act. Cal. Civ. Code § 51(b).

15

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 16 of 23

1

49. As a direct and proximate result of Defendant's

2 conduct, Plaintiffs have suffered damages.

3

50. As such, the named Plaintiffs are entitled to damages,

4 including statutory damages in an amount up to three times the

5 amount of their actual damages, with a minimum amount of $4,000

6 per offense. Plaintiffs are also entitled to their attorneys'

7 fees. Cal. Civ. Code § 52(a), (e) and § 52.1(h).

8

51. Plaintiffs are also entitled to injunctive and

9 declaratory relief. Cal. Civ. Code § 52.1(b).

10

THIRD CAUSE OF ACTION

11

Unfair Business Practice

Business and Professions Code §17200

12

13

52.

Plaintiffs incor~orate by reference each and every

;\

14 allegation contained in the foregoing paragraphs.

15

53. Defendant's conduct, as alleged, is part of a general

16 business practice by Defendant. Defendant has made a considered

17 decision to promote patronage at the e~pense of Defendant's legal

18 obligations to patrons with mobility disabilities.

19

54. Defendant's policies, practices and procedures

20 constitute an unfair, fraudulent and deceitful business practice

21 within the meaning of California Business and Professions Code

22 sections 17200, et seq., in that, inter alia, Defendant appeals

23 to, advertises to, and purports to serve all people, including

24 persons with mobility disabilities, yet Defendant's policies,

25 practices and procedures are illegal, discriminatory and in

26 violation of public policy.

27

55. Plaintiffs have suffered injury as a result of

28 Defendant's unfair and illegal business policy, including, but

16

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 17 of 23

1 not limited to being discriminated against while attempting to

2 "build the perfect burrito" or to participate in the "Chipotle

3 experience" as advertised and offered by Defendant.

4

56. Plaintiffs are entitled to an injunction restraining

5 Defendant from engaging in any act or omission, or failing to

6 engage in any act or omission, the 'effect of which is to cause,

7 directly or indirectly, discriminat~on by Defendant against

8 persons with mobility disabilities. Plaintiffs are also entitled

9 to an injunction ordering Defendant to engage in an act or acts,

10 the effect of which is to prevent or remedy discrimination by

11 Defendant against persons with mobility disabilities. Plaintiffs

12 are also entitled to attorneys' fees and costs pursuant to

13 California Code of Civil Procedure section 1021.5.

14

WHEREFORE, plaintiffs request relief as set forth below.

15

' FOURTH CAUSE OF ACTION

16

Intentional Infliction of Emotional Distress

17

57. Plaintiffs incorporate by reference each and every

18 allegation contained in the foregoing paragraphs.

19

58. Through the acts and omissions described herein, and

20 other such acts, Defendants refused to provide Plaintiffs with

21 goods, services, facilities, privileges, advantages, or

22 accommodations in a manner comparable to the goods, services,

23 facilities, privileges, advantages, or accommodations provided to

24 people without disabilities solely because of their disabilities.

25

59. Defendant's treatment of Plaintiffs because of their

26 disabilities constitutes outrageous conduct.

27

60. Defendant's conduct was intentional and malicious and

28 done for the purpose of causing Plaintiffs to suffer humiliation,

17

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 18 of 23

1 mental anguish, loss of appetite, and emotional and physical

2 distress.

3

61. As the proximate result of the 'acts and omissions

4 described herein, and other such acts, Plaintiffs suffered

5 humiliation, mental anguish, and emotional distress.

6

62. Plaintiffs are informed and believe and based thereon

7 allege that Defendant's acts and omissions described herein, and

8 other such acts, were willful, reckless, oppressive, malicious

9 and done with a callous disregard of the consequences

10 substantially certain to occur and justify an award of exemplary

11 and punitive damages.

12

FIFTH CAUSE OF ACTION

13

Negligence Per Se

14

63. Plaintiffs incorporate by reference each and every

15 all.~gation ccmta.ined in. the foregoi.ng p~ragraphs.

16

64. As a place of public accommodation and as a business

17 establishment in the state of California, Chipotle has statutory

18 duties to each of its customers, including Plaintiffs, to provide

19 them with: (1) the full and equal enjoyment of its goods,

20 services, facilities, privileges, advantages, or accommodations

21 (42 U.S.C. § 12182(a)); (2) to not exclude from the participation

22 in, or be denied the benefits of the services (29 U.S.C. § 709);

23 (3) full and equal goods and services (Cal. Civ. Code § 51(b));

24 and (4) full and equal access (Cal. Civ. Code § 54.1 (a) (1)).

25

65. Through the acts and omissions described herein, and

26 other such acts, Defendant breached the statutory duties

27 described in paragraph 64 that it owed to Plaintiffs by its

28

18

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 19 of 23

1 policies, practices, procedures, design and construction of

2 facilities as described above.

66. By violating the statutes described in paragraph 64 and

4 causing the very injury those statutes were designed to prevent,

5 namely discrimination against people with disabilities, Defendant

6 committed negligence per see Defendant's breach of its duties to

7 Plaintiffs was a proximate cause of the injuries and loss

8 suffered by Plaintiffs, including but not limited to emotional

9 distress.

10

SIXTH CAUSE OF ACTION

11

Declaratory Relief

12

67. Plaintiffs incorporate by reference each and every

13 allegation contained in the f&regoing paragraphs.

14

68. Plaintiffs contend, and are informed and believe that

15 Det~ndants deny, that Defendant fails to comply with applicable

16 laws prohibiting discrimination against persons with mobility

17 disabilities and are in violation of various civil rights

18 statutes and the California Business and Professions Code.

19

69. In addition, Plaintiffs contend, and are informed and

20 believe, that Defendant denies that it has violated or breached

21 any of its obligations to persons who use wheelchairs for

22 rnobility.

23

70. A judicial declaration is necessary and appropriate at

24 this time in order that each of the parties may know their

25 respective rights and duties and act accordingly.

26

II I

27

III

28

III

19

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 20 of 23

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs pray for judgment as follows:

3

1) Declaring that Defendant violated Title III of the

4 ADA and its implementing regulations by failing to provide full

5 and equal enjoyment of their goods, services, facilities,

6 privileges, advantages, or accommodations to Plaintiffs;

7

2) Declaring that Defendants violated th~ Unruh Civil

8 Rights Act by failing to provide full and equal goods, services,

9 facilities, privileges, advantages, or accommodations to

10 Plaintiffs;

11

3) Declaring that Defendant violated Business and

12 Professions Code Section 17200 by engaging in unfair business

13 practices;

14

4) Granting a permanent injunction directing

.. 15

OE;!fendant to modify the design

and construction of the . .

food

16 service line walls at each of its California restaurants and/or

17 to alter its policies, practices and procedures, including

18 employee training, to ensure that it affords full and equal

19 enjoyment of its goods, services, facilities, privileges,

20 advantages, or accommodations for people with disabilities,

21 including Plaintiffs, as required by the ADA, the Unruh Civil

22 Rights Act, and Business and Professions Code Section 17200;

23

5) Awarding Plaintiffs compensatory damages 'in an

24 amount according to proof;

25

6) Awarding Plaintiffs such additional amounts as may

26 be determined at trial, up to a maximum of three times the amount

27 of actual damages, but in no case less than four thousand dollars

28 ($4,000) for each violation of California Civil Code section 51,

. 20

• Case 3:06-cv-02671-BTM -WMC Document 1

,Filed 12/06/06 Page 21 of 23

1 as provided by California Civil Code section 52;

2

7) Awarding Plaintiffs attorneys' fees and all costs

3 incurred by bringing this action; and

4

8) Granting such other relief as the Court deems just

5 and fair.

6 DATED:

(1, / to (

7

LAW OFFICES OF AMY B. VANDEVELD

8

B. VANDEVELD,

9

orney for Plain

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21

Case 3:06-cv-02671-BTM -WMC Document 1

•Filed 12/06/06 Page 22 of 23

J54-1

(Re\'.07IK\)}

CIVIL COVER SHEET

The JS·44 civil coversl,eet Hnd t'he infollnation contained heroinn~ither replace nor supplemonttho filing and service of pleadings or other papers as required by law. except liS provided by 10cIII

f II F mles OfcoUl1. This fOlln. approved by the Judicial Conference of the United States in September 1974, is required for the use of the Ckrk of Court for the purpose ofinitiatiny the civil d.ocket

sheet. (SEE INSTRUCTIONS ON THE SECOND PAGE OF THiS FORM.)

ij")

I (n) PLAINTIFFS MAURIZIO ANTONTIiIEI"fI, JEA1\1 DEFENDANTS

CHIPOI'LE .MEXICA1\1 GRILlJ, I1\1C ...~

RI1.'P.R: .TAMES PERKINS: ;'KAREN FRIEDMAN and a C'.olorado Corporation and I'X2UfJ6 Qt ~Et;hraugpf'11 0I

MICHM!l., RIFKIN, on behalf of themselves

and all other similarly situated,

CLERK US L~!:;, 1::1. t ;,,:UU!H

San Diego and (b) COliNTY OF RESID~;NCE OF FIRST LlSTEJ>

COUNTY

OF

RESIDENO~

OF

FIRST

LISTED

SOUTI
D1WENDANT

DIST'
VI,

- '<Z1)0

\t:"i\LIFOR~'I•I\

PJ.AINTIH·

(IN U.S. PLAINTIFF CASES ONLY)

-

(EXCEPT IN JJ.S. PLAINTIFF CASES)

NOTE: IV LAND CONDEMNATION CASES. USE TIl E LOCA'A~

.. INVOL\/fD

Amy vancteVe.lCl, (e) ATroRNEYS (F.IJW ~~ME,~D1)RESS~AND.J·ELEPIIONE NJJMBER)

.K.

l~Sq •

A'ITORNEYS (IF KNOWN)

T.JI\~'i1 OFFICES OF AMY R. VANDEVELD 1850 Fifth Avenue Suite 22 San Diego, CA 92101

'06CV2671 LAB POR

II, BASIS OF .JURISI)ICTION (I'LACE AN x IN ONE BOX ONt\,)

• IU.S. GClVemm~nt Illaintiff

)CC3Federal Question (U.S. Gov.nunenl Not a Party)

III. CITlZI(NSIIII' OF PRINCIPAl. PARTIES (PLACE AN X IN ONE BOX

(1' 01' DiV~'Sit). CIISCS Only)

FOR PLAINTIFF AND ONE BOX FOR IIEI1ENltlNT

,

PT DEI'

PI ~EF

Citizen 0 This State

• 1 • 1 Incorponncd or Principal Place of BUSiness • tl • 4 in This StOle

e 2U.S GClvemmcnt Defendant

• 4Divcrsity (Indicale Cillzenship of Parties in Ilem III

Citizen of Another State
Citizen or Subject of it Foreign Country

':';

':

Incorporated and Principal Place of Business in Another SLAte

• 5

• 5

Foreign Nation •3 •3

e (, 0 6

IV. CAIIS~; OF ACTION (CITE TilE US CIVIL STATUTE IJNl>lm WIIICIl YOU ARE FILING AND WRITE A IlRIIW STATEMENT OF CAUSE. 1>0 NOTCln; JIJRISDICTlON,\L STATUTES UNLESS J>IVERSITY).

42 u.s.c. Soe. 12101 12111
v. NAT1IRE m' SUIT (PLACE AN X IN ONE BOX ONLY)

CO NTitA CT

'('(JtITS

12181 12184 and 1J201+--€0~t:--S460,*q;n.,--------

t'O KYEtTU REiPENA t.TY

BANKRUPTCY

01'11 ER STATUTl(S

lllllJlsurnllce

Pl(RSONAL IN.IURY

PERSONAl. INJURY

(.10 Al:lriculilire

422 Appenl2K USC 15K

-'110 Slnt~ Renppoinllllcill

1111 Mrllinc • l;\O~illcr:\ct
LSI) RCC(l\cry urCherpaymcnt &Enfortcmcnt or Jud1!U1enl
151 Mcdlc.areAcl 152 RctCVCI) or Deraulted :i't,dtll,
I.onll~ IU\e!. VeICI1lI1.~J
l:iJRecuvc-ry III (help.I)lIll'lIt orVetelnn=- Benelilll
• 1(,0 Stodholdcli Suib

310Airpinnc
?l~ Airplane )lOduct Liability
320 ASSIIU!t, Libel &. Slnnder 330 Fedcl1Il Employers' Liability
3411 Marine 3-U Morine Produci Liahility
3~(1 MolM Vehiclc 3S~ Motor Vchicle Product Unllilit.l ·

3(.2 Pcu:ollal Injury· McdiclII Malprneticc
e J(I~ Pcrsunallnjlll'Y. Product l.iabiiity
3(18 Asbe5los Pcrsollallnjluy Product liability
PERSONAl. PROPERTY
• nn Olher Frnuct 371 Truth inl.cndinu
:um Other Personal
Pro/X!r1Y OnlllllYc

(,20 Other Food &. Onll:l (i2S Dmll Rellilcd Sel/.ure or Propcny 21 USCKH I
('30 Liquor Lnws (i·W RR &. Truck (i~O Airline Regs 6(,0 Occupnlionnl SnfctyIHeolth '1lOlher
"AnOR
710Fuir Lobor Standards Act 121) I.nbol/f..'lyml. Relntions

e. 1')0 Olhcr COlltrOCI

3()/I Other PcrsonallnjllfY

3K~ Propcl1)' Oamnge Product Linbillty

730 Lnbor/MYllu. Reponlny &. Di=-closurcAct

_ _ _R_E_A_L_P_K_O_p_ER_1_·_ Y _ _I -_ _ _C_tV_I_"_R_I_G_Il_T_S_ _~I--P-R-IS-O-N-E-,R-P-E-·l-T-I't-O-N-S--i~ 7.10 Rnihl ny Lnbor Act

4)' W;lhdm"nI2H USC 117
PROPERTY RIGII'('S
H:!IIC(lpyrighls H30 Putenl
K4l1Trndc"wk

410 Antitrufol "JO Llunkli and Banking 4~0 CommercI!I1CC Rmes/clc,
4110 !)eportnlioll .po Racl.eleer Inlluenccd 'Ind Corrupt Or~nni/nti(lns

H(il HIA (131)~K)

HIO Selectin: SClvice

K62 BlncL: Lung (1)23)
Hr.) DIWClOIWW (4115(8))

K51J Sccuritic~Conllnodilic~ Exchange

H(14 SSID Title XVI

H7~ Customer Chnllengc 12 USC

&6:i RSI140~(I!))

MI)l Agricultufill Acts

1-_;,;FE;:,:D;,;E;,;I.:,"';,:t;,;.T;,:A,;,;X,;.S;;,U;,;I;,:T,:,S_-f .Kn I:collom;c S'nb;ii,.,ion ACI

H70 TIDies (U,S. Pinillliff or Derendnntl

1i'l3 EnnfonmenUlIMnllcr.. tl94 EllerGY AIi(K>lluUI1 ACl

21n uwd Condemnation • 220 Foreclosure • 2JH Rcnl l.eali<: &. I!iccunmu

4-'1 Votiny -142 Employment :>eXHousjng/A;:~'ommodatinns

~ II) Motion. to Vocnte Sentcnce Hoben. Corpus
~3nGel1cml

790 Olher Labor Lili1!ution 791 Empl. Ret. Inc. 5cculilY Act

H7\ IRS. Third Pam'

l{,lISC 7(111")

•

K9~ Freedom of Infol1l1lltion Act
!)(IO Appeal of Fee {)ch.:rll1l11ll:l011 Under Equul Acccu to JU~I1CC

• 2-10 Ton to Land

444 Wclrure

~3~ Deulh Penally

9SI! Conslitutimmlity or Slnl"

24S TOil Ploducll.inbililY

440 Olhel ell'jJ Rj~hl!

~40 MUlldlltnllS &. Other

H900lhel Statutory Actions

290 All Other Rcal PfOpcn~

~50 Ci,·il Rights

VI. ORIGIN (PLACE AN X IN ONE IIOX ONLY)

X I Original I'roc"edlOg • 2 Removal from

.

Slate Co

VII. REQUESTEIlIN COMPLAINT:

• 3 Remanded from Appel8ll' Court

• ~ Reinstated or ' 5 Tr:1l1sferred from • (j fvluhidistrict litigation

Reopened

mlOther district (specif))

• 7 Appeal to District Judge fWr.l
~'I(\gtstrntc Jtltiglnellt

DATE

JUDGE

::ODMA\PCDOCS\WORDI'ERFECT\228 16\1 Jiimtary 24, 2000 (3: IOpln)

RETURN OF SERVICE

Service of the Summons and Complaint was made by me

DATE

NAME OF SERVER

TITLE

Check one box bdow to indicate appropriate method of service

1"'····...... ' ' ' ·

:

~:erved personally upon the defendant. Place where served:

r' Left copies thereof at ,r. ..... ,'.......... ,,' ,
discretion then residii

.......... 'o. .. ,.r·1 .,1. !.\., '.'Tsonofsuitableageand

, Name of persf .
, Itetum unexecuted:

~ US UW£ !:)J!I lV 13 ',lUlS N~:)I){~.]110,jn~3 .(, 1\1 13 Ill.3NHmlNI1 I1IZltJmm,
SNI1U, lIliI::J~uml.:i

r. ····....; Other (specify):

wm~(1Ji\S£

< -TC 12'':!l: to Jl

TRAVEL
I declare under penalty of perjury the Return of Service is true and corre Executed on:
~-------\l
NQ.I.U:E OFJUGHT TO IN ACCORDANCE WITH THE PRC MAGISTRATE OF THIS DISTRICT PROCEEDINm', INCLUDING A JU COUNSEL FOB THE PLAINTIFF HI

t-l:J ffiGomb!
"t!. mID ',(lien
,
HJ rum"fiW

l.UflOQIj

11$6

lil(ll~~tSflJ
m(w/i:ifMJ . ; 5N~ns - e6pof
n 9~ :--(~J-9.Q;"£ 0069smll:J

/t. ast:r '

~0J.·

I $0.00
Iinformation contained in

~'. 9J'®IDl: ,'" 9' .A .a>?::U~~o3>::::lIq'3ICJ '']J:0j1 ':",:, 6£S;C:£'t ti!l'
Uif~$~"'!Q ot."'~a ues:' e~u.JOf HC?:J f~ ~:;)~i~s~(] U~iI'r~flO$
...R..?BfBO:Jl ..ll..;JI::LILS]:t(1] , . S3JJl..~Jl.s ;QJ3..1.JINffll

I i
I
I
I
6
I
fHAT AU,S.
It .. FOINRAJtJL)Lub(jMI£~.iT, I'

YOU SHOULD BE AWARE THAT 1 '

fIRELY VOLUNTARY

AND SHOULD BE COMMUNICAT

'{RTlES CONSENT WILL

THE JUDGE Olt MAGISTRATE Tq

, JOF YOUR DECISION,

I ...... " ... .' ". ,......., .,' ....... ',". .. .

J

JUDGEMENTS OF THE U.S. MAGISTRATES ARE APPEALABLE TO THE U.S. COURT OF APPEALS IN

ACCORDANCI: WITH THIS STATUTE AND THE FEDERAL RULES OF APPELLATE PROCEDURE.

I) As to who Ina) serve a summons see Rule 4 of the Federal Rules of Civil Procedure

::ODMA\PCDCCS\WORDPERFECT\14443\1 May 5. 1999 (II :34am)

Page 2 of 2

Case 3:06-cv-02671-BTM -WMC Document 1 Filed 12/06/06 Page 23 of 23

-

 
 Case 3:06-cv-02671-BTM -WMC 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 RIFKIN, on behalf of themselves and

CLASS ACTION - Related to 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 -WMC 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
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 3 of 14

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
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 4 of 14

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
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 5 of 14

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 6 of 14

1

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 7 of 14

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 8 of 14

1

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 9 of 14

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 10 of 14

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 11 of 14

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.

10
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 12 of 14

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 13 of 14

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
ANSWER AND AFFIRMATIVE DEFENSES
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM -WMC Document 3 Filed 12/28/06 Page 14 of 14

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
PROOF OF SERVICE
OC 286116627v1 059908.010200

1 Case No. 06CV-2671-LAB (POR)

 
 Case 3:06-cv-02671-BTM -WMC Document 12 Filed 03/20/07 Page 1 of 6

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:

14 AND DOES 1 THROUGH 10, inclusive, )

) (1) DENYING DEFENDANTS’

15

Defendants. ) MOTION TO DISMISS CASE NO.

) 05CV1660-J (WMc);

16 AND RELATED CASE

)

) (2) GRANTING DEFENDANTS’

17

) MOTION TO CONSOLIDATE FOR

) PURPOSES OF DISCOVERY ONLY.

18

19

Before the Court is Defendants Chipotle Mexican Grill’s (“Defendants”) Motion to

20 Dismiss Case No. 05cv1660, or in the Alternative, to Consolidate Case No. 05cv1660 with Case

21 No. 06cv2671. [Doc. No. 67.] The Court determined that the issues presented were appropriate

22 for decision without oral argument pursuant to Civil Local Rule 7.1.d.1. [Doc. No. 67.] For the

23 reasons stated below, the Court DENIES Defendants’ Motion to Dismiss. The Court GRANTS

24 Defendants’ Request for Consolidation for purposes of discovery only.

25

Background

26

On August 22, 2005, Plaintiff filed an individual lawsuit against Defendants, and

27 Defendants answered Plaintiff’s Complaint. [Case No. 05cv1660, Doc. Nos. 1, 3.] On Novem-

28 ber 17, 2005, the Court entered an Order Regulating Discovery and Other Pretrial Proceedings

1

05CV1660 J (WMc) / 06CV2671 J (WMc)

Case 3:06-cv-02671-BTM -WMC Document 12 Filed 03/20/07 Page 2 of 6

1 requiring that “[a]ny motion to join other parties to amend the pleadings, or to file additional

2 pleadings shall be filed on or before December 12, 2005.” [Case No. 05cv1660, Doc. No. 10.]

3 The parties subsequently entered into two stipulations to extend the time in which to join parties,

4 amend pleadings, or file additional pleadings. [Case No. 05cv1660, Doc. Nos. 11, 13.]

5

On December 6, 2006, Plaintiff filed a second action against Defendants, this time as a

6 putative class action. [Case No. 06cv2671, Doc. No. 1.] Defendants answered the second-filed

7 action. [Case No. 06cv2671, Doc. No. 3.] The second-filed action was transferred to this Court

8 pursuant to Local Civil Rule 40.1.d. [Doc. No. 10.] Defendants subsequently filed the instant

9 Motion requesting that the Court either “dismiss the first-filed action and allow the putative and

10 all-encompassing class action . . . to proceed,” or consolidate the two actions. (Mot. at 5.)

11 I. Complaint in Case No. 05cv1660

12

In his first-filed action, Plaintiff alleges that he was denied full and equal access to

13 facilities owned and operated by Defendants because the facilities were inaccessible to individu-

14 als with disabilities who use wheelchairs for mobility. (Compl. ¶ 9, 05cv1660.) Plaintiff alleges

15 that Defendants’ food serving and viewing counters are inaccessible. (Id.) Plaintiff alleges the

16 following causes of action against Defendants: (1) violation of the Americans with Disabilities

17 Act; (2) violation of the California Civil Code; and (3) violation of California Health and Safety

18 Code. (Id. ¶¶ 15-27.)

19 II. Complaint in Case No. 06cv2671

20

On December 6, 2006, Plaintiffs Maurizio Antoninetti, Jean Riker, James Perkins, Karen

21 Friedman, and Michael Rifkin filed a Complaint alleging that Defendants “deny access to people

22 in wheelchairs to the goods, services, advantages, privileges, accommodations and benefits

23 afforded to non-disabled customers.” (Compl. ¶ 13, 06cv2671.) Specifically, Plaintiffs allege

24 that the high walls at Defendants’ restaurants preclude individuals in wheelchairs from seeing

25 the food items available for selection in the same manner as is available to nondisabled individu-

26 als. (Id. ¶ 28.) Plaintiffs bring the action “on their own behalf and on behalf of all persons

27 similarly situated.” (Id. ¶ 24.) The class Plaintiffs seek to represent consists of “all persons with

28 mobility disabilities who use wheelchairs or motorized mobility aides, who have been or will be

2

05CV1660 J (WMc) / 06CV2671 J (WMc)

Case 3:06-cv-02671-BTM -WMC Document 12 Filed 03/20/07 Page 3 of 6

1 denied their rights under the ADA, and state law to access goods, services, benefits, advantages,

2 privileges and accommodations provided by Chipotle at its approximately 83 restaurants within

3 the state of California.” (Id.) Plaintiffs allege the following causes of action against Defendants:

4 (1) violation of the Americans with Disabilities Act; (2) violation of the California Civil Code;

5 (3) unfair business practice; (4) intentional infliction of emotional distress; and (5) negligence

6 per se. (Id. ¶¶ 32-66.)

7

Discussion

8 I. Defendants’ Motion to Dismiss Plaintiff’s First-Filed Action

9

Defendants argue that the Court should dismiss Plaintiff’s first-filed action because

10 Plaintiff’s filing of the putative class action amounts to an untimely and improper amendment to

11 the first-filed complaint. (Mot. at 5.) Defendants also argue that Plaintiff’s filing of two

12 identical actions is impermissible judge shopping for which Plaintiff may face sanctions,

13 including dismissal. (Id.)

14

District courts retain broad discretion to control their dockets, and “[i]n the exercise of

15 that power they may impose sanctions including, where appropriate, default or dismissal.”

16 Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co.,

17 370 U.S. 626, 629-30 (1962)). The Supreme Court has stated that a “primary aspect” of every

18 federal court’s inherent power is “the ability to fashion an appropriate sanction for conduct

19 which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). As a

20 result, a district court has discretion to dismiss a later-filed action, to stay that action pending

21 resolution of the previously filed action, or to consolidate both actions. See Curtis v. Citibank,

22 N.A., 226 F.3d 133, 138-39 (2d Cir. 2000); Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.

23 1977) (en banc). The Ninth Circuit has made clear that “dismissal is a harsh penalty and,

24 therefore, it should only be imposed in extreme circumstances.” Hernandez v. City of El Monte,

25 138 F.3d 393, 399 (9th Cir. 1998).

26

The Court finds that Defendants have failed to establish that “extreme circumstances”

27 warrant dismissal of Plaintiff’s first-filed action. See Hernandez, 138 F.3d at 399. The record

28 does not indicate that Plaintiff engaged in judge shopping by filing the second action. In fact,

3

05CV1660 J (WMc) / 06CV2671 J (WMc)

Case 3:06-cv-02671-BTM -WMC Document 12 Filed 03/20/07 Page 4 of 6

1 Plaintiff filed a Notice of Related Case, requested that the class action be assigned to this Court,

2 and did not seek any extension of dates in the first-filed action. [See Case No. 06cv2671, Doc.

3 No. 8.] Further, Plaintiff’s second-filed action does not amount to an improper amendment of

4 the first-filed action because the two lawsuits are not duplicative. The first-filed action names

5 only Mr. Antoninetti as Plaintiff and alleges violations by two of Defendants’ restaurants.

6 [See Case No. 05cv1660, Doc. No.1.] In contrast, the second-filed action names Mr.

7 Antoninetti, Ms. Riker, Dr. Perkins, Ms. Friedman, and Mr. Rifkin as Plaintiffs, seeks to

8 represent a class of persons with mobility disabilities, and alleges violations by all of Defen-

9 dants’ California restaurants. [See Case No. 06cv2761, Doc. No. 1.] The second-filed action

10 also describes the alleged lack of accommodations that Mr. Antoninetti, Ms. Riker, Dr. Perkins,

11 Ms. Friedman, and Mr. Rifkin each experienced while visiting different restaurants owned by

12 Defendants. [Id.] Extensive discovery already has been conducted in the first-filed action, and

13 much of that discovery would be applicable to the second-filed action. [See, e.g., Case No.

14 05cv1660, Doc. Nos. 35, 38, 40, 57.] Dismissal of Plaintiff’s first-filed action would therefore

15 result in judicial inefficiency and unnecessary duplication of discovery. Accordingly, the Court

16 DENIES Defendants’ Motion to Dismiss Plaintiff’s first-filed action.

17 II. Defendants’ Motion to Consolidate Plaintiff’s Two Actions

18

Defendants argue that if the Court allows Plaintiff’s first-filed action to proceed, Plain-

19 tiff’s two actions should be consolidated because they involve substantially the same facts and

20 questions of law. (Mot. at 9.) Plaintiff “has no objection to the consolidation.” (Pl.’s Mem. at

21 2.)

22

Federal Rule of Civil Procedure 42(a) provides in pertinent part that “[w]hen actions

23 involving a common question of law or fact are pending before the court . . . it may order all the

24 actions consolidated; and it may make such orders concerning proceedings therein as may tend

25 to avoid unnecessary costs or delay.” Fed. R. Civ. P. 42(a) (emphasis added). When related

26 cases fall within the parameters of Rule 42, it is within the district court’s sound discretion to

27 consolidate them. See Investors Research Co. v. U.S. Dist. Ct., 877 F.2d 777 (9th Cir. 1989).

28 Rule 42 does not demand that the actions be identical before they may be consolidated. “Rather,

4

05CV1660 J (WMc) / 06CV2671 J (WMc)

Case 3:06-cv-02671-BTM -WMC Document 12 Filed 03/20/07 Page 5 of 6

1 in deciding whether to consolidate actions under Rule 42(a), a court must balance the savings of

2 time and effort consolidation will produce against any inconvenience, delay, confusion, or

3 prejudice that may result.” Takeda v. Turbodyne Technologies, Inc., 67 F. Supp. 2d 1129, 1132

4 (C.D. Cal. 1999).

5

After reviewing the complaints in the two related cases, the Court FINDS that they

6 involve common questions of fact and law and common defendants. As Defendants point out,

7 both actions are based on Plaintiffs’ allegations that the design of Defendants’ restaurants

8 allegedly makes it difficult for an individual who uses a wheelchair to see his or her food

9 preparation in violation of the ADA and California’s Unruh Civil Rights Act. (See Mot. at 9-

10 10.) Because of the similarities between the two cases, consolidation will save time and effort

11 on all sides of the litigation. Moreover, no parties in the case oppose consolidation, or assert that

12 consolidation would produce inconvenience, delay, confusion, or prejudice. The Court notes

13 that extensive discovery proceedings have already taken place in Case No. 05cv1660, and that

14 the parties have informed the Court that they are prepared to file dispositive motions in Case No.

15 05cv1660. The Court also notes that although Case No. 05cv1660 was filed on August 22, 2005,

16 the parties have yet to file dispositive motions in this case. To facilitate the filing of dispositive

17 motions in the first-filed case, the Court ORDERS consolidation of Case No. 05cv1660 and

18 Case No. 06cv2671 for the limited purpose of discovery only. Plaintiffs will not be required to

19 file a consolidated complaint at this time. The question of consolidation for trial is reserved for

20 future consideration.

21 //

22 //

23 //

24 //

25 //

26 //

27 //

28

5

05CV1660 J (WMc) / 06CV2671 J (WMc)

Case 3:06-cv-02671-BTM -WMC Document 12 Filed 03/20/07 Page 6 of 6

1

Conclusion

2

For the reasons stated above, Defendants’ Motion to Dismiss Case No. 05cv1660 is

3 DENIED. Defendants’ Motion to Consolidate Case No. 05cv1660 and Case No. 06cv2671 is

4 GRANTED for purposes of discovery only at this time.

5

IT IS SO ORDERED.

6 DATED: March 20, 2007

7

HON. NAPOLEON A. JONES, JR.

8

United States District Judge

9 cc: Magistrate Judge McCurine All Parties
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

05CV1660 J (WMc) / 06CV2671 J (WMc)

 
 Case 3:06-cv-02671-BTM -WMC Document 32 Filed 10/30/09 Page 1 of 1

1

2

3

4

5

6

7
UNITED STATES DISTRICT COURT
8
SOUTHERN DISTRICT OF CALIFORNIA
9

10

11 MAURIZIO ANTONINETTI,

12

Plaintiff,

13

v.

14 CHIPOTLE MEXICAN GRILL, INC.,

15

Defendant.

16

) Civil No. 06CV2671-J (WMc) ) ) Related to & Consolidated for Discovery ) with 05cv1660 (Wmc) ) ) ORDER GRANTING JOINT MOTION ) RE: STAY OF ACTION PENDING ) APPEAL IN RELATED CASE ) ) )

17

18

Having considered the Joint Motion Re: Stay of Action Pending Appeal in Related Case, IT IS

19 HEREBY ORDERED that the Motion is GRANTED, such that:

20

The above-captioned action is hereby stayed until final resolution of the related case, Antoninetti

21 v. Chipotle, Case No. 3:05CV1660-J-WMC.

22

23

IT IS SO ORDERED.

24

25 DATED: October 30, 2009

26

HON. NAPOLEON A. JONES, JR.

27

United States District Judge

28

1

06CV2671 J (WMc)

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI; JEAN

RIKER; JAMES PERKINS; KAREN

12 FRIEDMAN; MICHAEL RIFKIN; SUSAN

CHANDLER; and LAURA WILLIAMS, on

13 behalf of themselves and all others

similarly situated,

14

Plaintiffs,

15

v.

Case No. 06cv02671 BTM (WMc) ORDER DENYING PLAINTIFFS’ MOTION TO CERTIFY CLASS, APPOINTMENT OF CLASS REPRESENTATIVES AND APPOINTMENT OF CLASS COUNSEL

16 CHIPOTLE MEXICAN GRILL, INC., a
17 Colorado corporation; and DOES 1-10,

18

Defendants.

19

Pending before the Court is Plaintiffs’ “Motion to Certify Class, Appointment of Class

20 Representatives and Appointment of Class Couns el” (Doc. 88). For the reasons set forth

21 herein, the Court DENIES Plaintiffs’ motion.

22

23

BACKGROUND

24

25

The named plaintiffs (“Plaintiffs”) are indivdi uals who use wheelchairs or other devices

26 for mobility, and who are patronsof the well-known chain ofrestaurants owned by Defendant

27 Chipotle Mexican Grill, Inc. (“Chipotle”). Chipotle’s employees prepare its Mexican-inspired

28 fare at a food preparatoi n area located behind a service counte,rwithin the viewof customers

1

06cv02671 BTM (WMc)

1 standing in a food service line. Chipotle refers to the opportunity for customers standing in

2 line to see the food offered for sale, and to wint ess the preparation of their meals according

3 to their specifications, as the “Chipotle experi ence.” Plaintiffs allege that at certain times

4 between 2003 and the present, customers w ho use wheelchairs have been unable to

5 participate equally in the “Chipotle experience,” because service counter walls higher than

6 36 inches (“high counter walls”)at restaurants throughout California blocked their view of the

7 food preparation area.

8

Plaintiffs bring class action claims under the Americans with Disabilities Act (“ADA”),

9 42 U.S.C. § 12101et seq., and California’s Unruh Civil Rights Act (the “Unruh Act”), Cal. Civ.

10 Code § 51et seq. Plaintiffs seek injunctive relief requiring Chipotle to lower the counter walls

11 and/or maintain lower ed walls, minimum st atutory damages of $4,000 for each offense,

12 pursuant to California Civil Code § 52, and declaratory relief.

13

14

DISCUSSION

15

16

Plaintiffs move for class certification ofthe following class under Federal Rule of Civil

17 Procedure 23:

18

All persons with mobility disabilities w ho use wheelchairs or other mobility

aides, such as scooters, and who, because of their mobility impairments, have

19

been or will be denied their rgi hts under the ADA and staet law to full and equal

access to the goods, serv ices, benefits, advantages, privileges and

20

accommodations provided by Chipotle, at its restaurants wit hin the State of

California, because of approximately 45-inch high wallsat the food preparation

21

areas at any time from December 3, 2003 to the present.

22 (Pl. Br. at 9 (Doc. 88-1).) Plaintiffs requestthat the Court appoint named plaintiffs Maurizio

23 Antoninetti, James Perkins, Karen Friedman, Michael Rifkin, Susan Chandler, and Laura

24 Williams as class representatives, and Amy B. Vandeveld and Thomas J. Vandeveld III as

25 class counsel. (Id.)

26

Rule 23 requires the party seeking class ce rtification to establish eac h of the four

27 requirements of Rule 23(a), andto show that the proposed class falls within one of the three

28 provisions of Rule 23(b). The Court addre sses, as a preliminary matter, Defendant’s

2

06cv02671 BTM (WMc)

1 argument that Plaintiffs’ c laim for injunctive relief is moot, before proceeding to the class

2 certification analysis.

3

4 a. Defendant’s mootness challenge

5

6

Defendant argues that Plainti ffs’ putative class claim for injunctive relief is moot

7 because the high counter walls no longer remain in any Chipotle restaurants in California.

8 Based on the record, the Court agrees.

9

“A claim is moot if it has lost its char acter as a present, live controversy.” United

10 States v. Geophysical Corp. of Alaska, 732 F.2d 693, 698 (9th Cir. 1984) (citation omitted).

11 Accordingly,

12

[i]f an ADA “ plaintiff has already re ceived everything to which he would be

entitled, i.e., the c hallenged conditions have been remedied, then these

13

particular claims are mootabsent any basis for concluding that this plaintiff will

again be subjected to the same wrongful conduct by this defendant.”

14

15 Rush v. Denco Enterprises, Inc., --- F. Supp. 2d ---, 2012 WL 1423584,at *3 (C.D. Cal. Apr.

16 23, 2012) (citing Parr v. L & L Drive-Inn Restaurant, 96 F. Supp. 2d 1065, 1087 (D. Hawai’i

17 2000) (internal quotations and citation omitted)).

18

Defendant supports its claims that “none of Chipotle’s California restaurants have

19 walls higher than 36 inches” (Opp.Br. at 3) with the Declaration of Scott L. Shippey, Manager

20 of Sustainable Design for ChipotleMexican Grill, Inc. (Doc. 128-10.) Mr. Shippey states that,

21 beginning in 2007, Chipotle implemented a design plan for its restaurants pursuant to which

22 the height of the restaurants’ counter walls would be set at“a little less than 36 inches high,

23 so that the height of the new Wall would be in line with the adjacent point of sale counter

24 where customers pay at the register.” (Shippey Decl. ¶ 2.) Mr. Shippey also states that, as

25 of June 30, 2011, “[a]ll Chipotle restaurants in California have the new 36-inch high wall in

26 front of the food preparation counter” (id. ¶ 5), and that “Chipotle has no plans to return to

27 using the old Wall design and no plans ever to use a wall more than 36 inches high in front

28 of the food preparation counter” (id. ¶ 6).

3

06cv02671 BTM (WMc)

1

Defendant further cites to the depositions of several of Plaintiffs’ witnesses f or the

2 proposition that Plaintiffs c annot establish the presence of a high counter wall in any

3 California restaurant after 2009. (Opp. Br. at 5-7.) In reply, Plaintiffs fail to cite any part of

4 the record indicating that high count er walls have existed at any Chipotle restaurant in

5 California since 2009. Because it is undisputed that Defendant has remedied the

6 architectural barrier at issue in this litigation, Plaintiff’s claim for injunctive relief is moot.

7

The Court notes that Plaintiffs ’ failure to establish the present existence of high

8 counter walls at any Chipotle in California, or any likelihood that a putative class member

9 would encounter a high wall in the future, also renders Plaintiffs unable to establish

10 numerosity with regard to their putative class claim for injunctive relief.

11

Plaintiffs’ argue that the “v oluntary cessation” exception to the mootness doctri ne

12 applies here because, absent declaratory and injunctive relief, Defen dant is free to

13 reconstruct high counter walls after the resolut ion of this litigation. Under the voluntary

14 cessation exception, a defendant’s voluntary cessatoi n of a wrongful activity will moot a claim

15 for an injunction against that activity only if “(1) there is no reasonable expectation that the

16 wrong will be repeated, and (2) interim relief or eve nts have completely and irrevocably

17 eradicated the effects of the alleged violation.” Barnes v. Healy, 980 F.2d 572, 580 (9th Cir.

18 1992) (citations omitted).

19

Given the facts of this case, Plaintiff’s claim to the voluntary cessation exception lacks

20 merit. First, Defendant has already incurred significant litigation expenses as a result of its

21 high counter walls. SeeAntoninetti v. Chipotle Mexican Grill, Inc., No. 05cv01660, 2012 WL

22 2923310, at *7 (S.D. Cal. Jul. 17,2012) (entering final judgment against Chipotle in amount

23 of $550,079.05, constituting st atutory damages under Califor nia’s Disabled Persons Act,

24 costs, and fees, based on finding that high walls violated ADA). Second, the Ninth Circuit

25 has already specifically held, in a separate action between one ofthe named plaintiffs in this

26 case and Chipotle (the “individual case”), that the high counter walls are noncompliant with

27 the ADA Guidelines. See Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1172

28 (9th Cir. 2010) (citing 28C.F.R. § 36, App. A, § 7.2(2)) h( olding that high counter walls failed

4

06cv02671 BTM (WMc)

1 to comply with § 7.2 of the ADA Guideline s—requiring that service counters 36 inches or

2 more in length not exceed 36 inches in height). Third, the undisputed evidence in this case

3 shows that Defendant has remedied previously existing high counter walls and installed low

4 counter walls at all newly constructed restaurants. Under these circumstances, the notion

5 that Defendant would invest the time and money to reconstruct its high counter walls at some

6 future date—simply because, as Plaintif fs assert, it still thinks it can—is insufficient to

7 constitute a live controversy. SeeIndependent Living Resources v. Oregon Arena Cor,p982

8 F. Supp. 698, 774 (D. Or. 1997) (nfiding that injunctive relief claims were moot because “[t]he

9 likelihood that—after the conditions have been bor ught into compliance—plaintiffs will again

10 be subjected to these same (alel ged) violations appears to be rather low. That is particularly

11 true of structural modif ications, which are un likely to be altered in the future.”); see also

12 Grove v. De La Cruz, 407 F. Supp. 2d 1126, 1130-31 (C.D. Cal. 2005) (dismissing plaintiff’s

13 ADA claims predicated on alleged architectural barriers that had been physically corrected

14 as moot); Parr, 96 F. Supp. 2d at 1087 (same).

15

Plaintiffs argue that even if the putative class claim for an injunction is moot, the

16 “claims for declaratory relief are not moot because Chipotle continues to insist that its Walls

17 do not violate the ADA and it is not required by the ADA to maintain its Walls at the lower

18 level.” (Rep. Br. at 2 (emphasis in original).) This argument ignores, however, the fact that

19 Chipotle already litigated and lost its argument that the high counter walls comply with the

20 ADA Guidelines. See Antoninetti, 643 F.3d at 1172 Chipotle is collaterally estopped from

21 re-litigating this issue. See Appling v. State Farm Mut. Auto Ins. Co,. 340 F.3d 769, 775 (9th

22 Cir. 2003) (approving application of offensive nonmutual collateral estoppel “where (1) the

23 issue sought to be litigated is sufficiently si milar to the issue presented in an earlier

24 proceeding and sufficiently material in both actions to justify invoking the doctrine, (2) the

25 issue was actually litigated in the first case,and (3) the issue was necessarily decided in the

26 first case.”). Accordingly, Plaintiffs’ claim for a declaratory judgment on this ground is moot

27 as well.

28 //

5

06cv02671 BTM (WMc)

1

For all the reasons set forth above, the Courftinds that Plaintiffs’ putative class claims

2 for injunctive relief and corresponding declaratoryrelief (i.e., a declaratory judgment stating

3 that the high counter walls consttiute a per se violation of the ADA Guidelines) are moot, and

4 denies class certification of those claims.

5

Although Plaintiffs’ ADA claimsare the only causes of actoi n over which the Court has

6 original jurisdiction, the denial of class ce rtification on those claims does not present a

7 jurisdictional problem, for two reasons. First, the Court has not, at this time, dismissed the

8 ADA claims outright. Second, to the extent the Court’s mootness determination divests the

9 Court of jurisdiction over the ADA claims, t he Court retains supplemental jurisdiction over

10 Plaintiffs’ claims under the Unruh Act. Theer is no question that the Court had supplemental

11 jurisdiction over Plaintiffs’ state law damages clami s at the inception of this lawsuit, since the

12 damages claims “are so related to [Plaintiffs ’ ADA claims] that they form part of the same

13 case or controversy[.]” 28 U.S.C. § 1367(a). The Court’s decision “whether to ex ercise

14 [supplemental] jurisdiction after dismissing everyclaim over which it had original jurisdiction

15 is purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009);

16 28 U.S.C. § 1367(c). Inexercising this discretion, the Court “consider[s] and weigh[s] . . . the

17 values of judicial economy, convenience, fairness, and comity[.]” Carnegie-Mellon University

18 v. Cohill, 484 U.S. 343, 350 (1988). Since this casewas filed nearly six years ago and was

19 subject to a lengthy stay, and theCourt has substantial familiaritywith the facts, the dismissal

20 of the Unruh Act claims would not serve judi cial economy, and these claims shall remain

21 within the Court’s supplemental jurisdiction—regardless of the disposition of the ADA claims.

22 Having already found supplemental jurisdiction over the Unruh Act claims in this action, the

23 Court does not reach Plaintiffs’ claim for jurisdiction underthe Class Action Fairness Act, 28

24 U.S.C. § 1332(d).

25 //

26 //

27 //

28 //

6

06cv02671 BTM (WMc)

1 b. Rule 23 requirements

2

3

The Court declines to address the four requirements of Rule 23(a), because even if

4 Plaintiff can satisfy all four, Plaintiff cannot show that class certification is appropriate under

5 Rule 23(b). Plaintiffs seek ceritfication of the class under Rule23(b)(2), or, in the alternative,

6 under Rule 23(b)(3). Since Plaintiffs’ clai ms for inj unctive relief and corresponding

7 declaratory relief are moot, and Rule 23(b )(2) applies only where “the party opposing the

8 class has acted or refused to act on grounds that apply generally to the class, so that final

9 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

10 whole,” the Cour t cannot certif y the class under Rule 23(b)(2). Fed. R. Civ. P. 23(b)(2)

11 (emphasis added); seealso Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 2557

12 (2011) (Rule 23(b)(2) “does not authorize classcertification when each class member would

13 be entitled to an individualized award of monetary damages”).

14

Rule 23(b)(3) permits certification where “the court finds that the questions of law or

15 fact common to class members predominate over any questions affecting only individual

16 members, and that a class action is superior to other available methods for fairly and

17 efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) (emphasis added).

18

19

1. Predominance

20

21

The predominance inquiry “tests whether proposed classes are sufficiently cohesive

22 to warrant adjudication by r epresentation” and “focuses on the relationship between the

23 common and individual issues.” Hanlon , 150 F.3d at 1022 (int ernal quotation marks and

24 citation omitted). “When common questions represent a significant aspect of the case and

25 they can be resolved for all member s of the class in a single adjudication, there is a clear

26 justification for handling the dispute on a representative rather than on an individual basis.”

27 Wright, Miller & Kane, F EDERAL PRACTICE AND PROCEDURE: CIVIL 3D § 1778 (emphasis

28 added). The “main concern inthe predominance inquiry[ is] the balance between individual

7

06cv02671 BTM (WMc)

1 and common issues.” In re Wells FargoHome Mortg. Overtime Pay Litigation, 571 F.3d 953,

2 959 (9th Cir. 2009).

3

The common legal issue with respect to the damages claim is whether the high

4 counter walls violate the ADA as applied toa particular wheelchair-bound patron, where that

5 patron was seeking to have the“Chipotle experience” and the walls blocked the patron’s view

6 of the food preparation area. As with the issueof whether the high counter walls themselves

7 comply with the ADA Guidelines, Chipotle has already litigated and lost this issue in the

8 individual case, wherein the Ninth Circuit held in clear terms:

9

The violations of the [ ADA] we hav e found are that, because of the wall,

Antoninetti was unable to see the f ood arranged on the food counter or the

10

preparation of his order, as non-w heelchair-bound customers could do, and

thus was unable to enjoy the “Chipotle experience.”

11

12 Antoninetti, 643 F.3d at 1177. On remand, this Court entered judgment against Chipotle

13 based on Chipotle’s violation of the ADA. SeeAntoninetti v. Chipotle Mexican Grill, Inc,. No.

14 05cv01660, “Order re Ninth Cir cuit Mandate and Opinion” (S .D. Cal. Nov. 29, 2010).

15 Plaintiffs do not need t o litigate this common legal issue as a class, since Chipotle is

16 collaterally estopped from re-litigating this issue. See Appling, 340 F.3d at 775. Thus, the

17 legal question common to all putative class members no longer “represent[s] a significant

18 aspect of the case.”

19

In this vein, the Court notes that, to the extent Plaintiffs seek a declaration regarding

20 the standard for ADA liability under the circumst ances alleged, such declaratory relief is

21 unnecessary in light of the Ninth Circuit’s hol ding. Moreover, the Court must address the

22 liability standard in order to resolve Plainti ffs’ damages claims, and therefore declaratory

23 relief as to that standard is redundant. See Concorde Equity II, LLC v. Miller, 732 F. Supp.

24 2d 990, 1003 (N.D. Cal. 2010); Chan v. Chancelor, No. 09cv1839, 2011 WL 5914263, at *6

25 (N.D. Cal. Nov. 28, 2011) (“All of the issuesin the declaratory judgment claim will be resolved

26 by the substantive action, so the declaratory judgment serves no useful purpose.”).

27

Going forward, it is the individual issuesthat will predominate. Inthe individual case,

28 the Ninth Circuit held that the plaintiff was notentitled to statutory minimum damages under

8

06cv02671 BTM (WMc)

1 California’s disability statutes1 on account of the walls themselves; rather, the plaintiff was

2 entitled to damages only upon a showing that “heactually presented himself to the restaurant

3 on a particular occasion, as anyother customer would do, with the intent of being . . . served

4 and to purchase food . . . . [and] actually encountered access to the . . . restaurant that was

5 not full and equal.” Id.(citing Reycraft v. Lee, 177 Cal. App. 4th 1211, 1226 (4th Dist. 2009))

6 (alterations in original). Inother words, each putative classmember in the present case must

7 establish at least one “particular occasion” on which he or shewas “seeking to purchase food

8 or to have the ‘Chipotle ex perience[,]’” “sat in line in his [or her] wheelchair[,]” and was

9 “unable to see the food arranged onthe food counter or the preparation of his order, as non-

10 wheelchair-bound customers could do, and thus was unable to enjoy the ‘Chipotle

11 experience.’” Id. at 1177.

12

This is a fact-intensive inquiry. It requi res each class member to establis h which

13 Chipotle restaurant he visited, when he visited it, and whether he traveled the food service

14 line—all as to each particular occasion f or which that class member seeks damages.

15 Moreover, the mere fact that an individual in the food service line used a wheelchair for

16 mobility does not mean that the hgi h counter walls necessarily blocked that individual’s view

17 of the food preparation area. See Doc. 128-5, Barnett Decl., ¶5 (stating that declarant was

18 able to see Chipotle’s food preparation area while seated in wheelchair despite presence of

19 high counter walls at time ofvisit); Doc. 128-6, Carrion Decl.,¶ 5 (same); Doc. 128-9, Sylvia

20

1The Antoninetti decision addressed statutory minmi um damages under the Californai 21 Disabled Persons Act (“CDPA”), Cal. Civ. Code § 54 et seq. In the present case, Plaintiffs

22

seek statutory minimum damages under the Unruh Act. Regardless, the Californi a Civil Code and the cases applying it impose the same

23

“particular occasion” standard on statutory damages claims under both the CDPA and the Unruh Act. See Cal. Civ. Code § 55.56(a) (“Statutorydamages under either subdivision (a)

24

of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations

25

of one or more construction-related accessbi ility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.”); Antoninetti v.

26

Chipotle Mexican Grill, Inc. , 643 F.3d 1165, 1177 ( 9th Cir. 2010) (holding that in order to maintain an action for damages pursuant to theCDPA, “an individual must establish that he

27

or she was denied equal access on a particular occasion.” (citations, alteration s and quotation marks omitted)); Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000)

28

(“[I]n order to maintain an action for damagesunder the Unruh Civil Rights Act, an individual must take the additional step of establishinghtat he or she was denied access on a particular

occasion.” (citation and quotation marks omitted)).

9

06cv02671 BTM (WMc)

1 Decl., ¶ 5 (same). Accordingly, for each particular occasion, t he class member must

2 establish that he was actually unable to see his food prepared, which in turn will require at

3 least proof of how high the counter wall was at the time of the visit (Plaintiffs have alleged

4 only that the high counterwalls were “approximately” 46 inches high (FAC ¶2)), and how high

5 the class member sat in his wheelchair at the relevant time.

6

In sum, the common legal issue in this case has already been resolved, and each

7 putative class member’s entitlement to damages hinges on factual determinations requiring

8 individualized proof. Even if some of the factual issues could be resolved on a class-wide

9 basis (e.g., if Plaintiffs couldestablish that all high counter walls were the exact same height),

10 the issues requiring individualized proof would still predominate. See Moeller v. Taco Bell

11 Corp., No. C. 02-5849, 2012 WL 3070863, at *5 (N .D. Cal. July 26, 2012) (denying class

12 certification of Unruh Act claims against TacoBell because calculating class damages would

13 require many individualized determinations as to each statutory damages claim, and would

14 not “be a simple matter of addni g up the number of times eachclass member was aggrieved

15 by noncompliant barriers”).

16

17

ii. Superiority

18

19

“[T]he purpose of the superiority requirement is to assure that the class action is the

20 most efficient and effective means of resolvingthe controversy.” 7AACharles Wright, Arthur

21 Miller & Mary Kay Kane, Federal Practice andProcedure, § 1779 at 174 (3d ed.2005). Rule

22 23(b)(3)’s superiority test requires the cour t to determine whether maintenance of the

23 litigation as a class action is efficient and whetheirt is fair. Wolin v.Jaguar Land Rover North

24 America, LLC, 617 F.3d 1168, 1175-76 (9th Cir. 2010). The Ninth Circuit has also advised

25 that “the Rule 23(b)(3) superiority analysis mustbe consistent with the congressional intent

26 in enacting a particular statutory damages provision.” Bateman v. American Multi-Cinema,

27 Inc., 623 F.3d 708, 716 (9th Cir. 2010).

28 //

10

06cv02671 BTM (WMc)

1

Based on the discussion in the previous subesction, the Court sees no advantage with

2 respect to judicial economy in certifying the issue of whether putative class members are

3 entitled to statutory damages under the Unr uh Act. Nor does the Court find that the

4 availability of a class action is necessary to enof rce the Unruh Act in this context. The Unruh

5 Act allows minimum statutorydamages in the amount of $4,000for each particular occasion,

6 providing individuals wit h a s ignificant monetary incentive to file individual lawsuits.

7 Moreover, attorneys’ fees and costs are avail able for parties prevailing on their Unruh Act

8 claims. See Cal. Civ. Code § 52(a). That these incentives spur successful disability access

9 litigation in California is ex emplified in the individual case, in which the plaintiff, Mr.

10 Antoninetti, received $5,000 in statutory damages, and Ms. Vandeveld received $484,240.00

11 in attorneys’ fees. Accordingly, the Court finds that a class action would not be superior to

12 other available methods for fairly and efficiently adjudicating this controversy, and declines

13 to certify a damages class.

14

15

CONCLUSION

16

17

For the reasons set forth above, the Courht ereby DENIES without prejudice Plaintiffs’

18 motion for class certification. The Court grants Plaintiffs leave to re-file a motion for class

19 certification if, upon further discovery, Plaintiffs can establish that their claims for injunctive

20 relief and corresponding declaratory relief are not moot.

21

22 IT IS SO ORDERED.

23 Dated: August 28, 2012 24

HONORABLE BARRY TED MOSKOWITZ United States District Judge

25

26

27

28

11

06cv02671 BTM (WMc)

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI, JEAN RIKER, JAMES PERKINS, KAREN
12 FRIEDMAN and MICHAEL RIFKIN, on behalf of themselves and all others
13 similarly situated,

14 v.
15

Plaintiffs,

CHIPOTLE MEXICAN GRILL, INC., a 16 Colorado Corporation and DOES 1-10,

17

Defendants.

18

Case No. 06cv2671 BTM(WMc)
ORDER DENYING MOTION FOR RECONSIDERATION AND GRANTING IN PART MOTION FOR CLARIFICATION

19

Plaintiffs have filed a motion for reconsideration and/or clarification of the Court’s

20 Order Denying Plaintiff’s Motion to Certify Class, Appointment of Class Representatives and

21 Appointment of Class Counsel (“Order”) (Doc. No. 145). For the reasons discussed below,

22 the Court denies the motion for reconsideration but grants in part Plaintiffs’ motion for

23 clarification.

24

25

DISCUSSION

26 A. Class Certification

27

Previously, the Court denied class certification. The Court held that class certification

28 was not authorized under Rule 23(b)(2) because Plaintiffs’ claims for injunctive relief and

1

06cv2671 BTM(WMc)

1 corresponding declaratory relief were moot. The Court further held that certification was not

2 proper under Rule 23(b)(3) because individual issues regarding liability for damages would

3 predominate, and a class action would not be superior to other available methods for fairly

4 and efficiently adjudicating the controversy before the Court. In their motion for

5 reconsideration, Plaintiffs argue that certification with respect to the claims for declaratory

6 relief and damages is appropriate under Rule 23(b)(3), or, in the alternative, that the Court

7 should certify the class for declaratory relief only under Rule 23(c)(4).

8

In its Order, the Court reasoned that Plaintiffs’ claim for injunctive relief and

9 declaratory relief were moot based on the fact that Defendant has remedied the architectural

10 barrier at issue in this litigation (a high counter wall) and the Ninth Circuit has already

11 decided that the high counter walls violated the ADA Guidelines. See Antoninetti v. Chipotle

12 Mexican Grill, Inc., 643 F.3d 1165, 1172 (9th Cir. 2010). Plaintiffs argue that declaratory

13 relief is necessary because Chipotle allegedly denies the preclusive effect of the Ninth

14 Circuit decision, and district courts have discretion whether to apply offensive non-mutual

15 collateral estoppel. See Appling v. State Farm Mut. Auto Ins., 340 F.3d 769, 775 (9th Cir.

16 2003).

17

The discretionary nature of offensive non-mutual collateral estoppel would lend

18 support to Plaintiffs’ argument regarding the necessity of declaratory relief if the prior ruling

19 were by another district court. Here, however, the Ninth Circuit Court of Appeals issued a

20 published decision holding that Chipotle’s 45-inch high counter walls did not comply with

21 Guideline § 7.2, and therefore violated the ADA. A published decision by the Ninth Circuit

22 Court of Appeals constitutes “binding authority which ‘must be followed unless and until

23 overruled by a body competent to do so.” Gonzalez v. Arizona, 677 F.3d 383, 390 n. 4 (9th

24 Cir 2012) (en banc) (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)). “A

25 district judge may not respectfully (or disrespectfully) disagree with his learned colleagues

26 on his own court of appeals who have ruled on a controlling legal issue . . . .” Hart, 266 F.3d

27 at 1170.

28

District courts in California are not likely to deviate from the Ninth Circuit’s holding

2

06cv2671 BTM(WMc)

1 that Chipotle’s high counter walls violated the Guidelines. Therefore, declaratory relief is not

2 necessary.

3

In the Order, the Court held that certification under Rule 23(b)(3) was improper

4 because individual issues regarding liability for damages would predominate. The Court

5 explained:

6

It requires each class member to establish which Chipotle restaurant he

visited, when he visited it, and whether he traveled the food service line – all

7

as to each particular occasion for which that class member seeks damages.

Moreover, the mere fact that an individual in the food service line used a

8

wheelchair for mobility does not mean that the high counter walls necessarily

blocked that individual’s view of the food preparation area. . . . Accordingly,

9

for each particular occasion, the class member must establish that he was

actually unable to see his food prepared, which in turn will require at least

10

proof of how high the counter wall was at the time of the visit (Plaintiffs have

alleged only that the high counter walls were “approximately” 46 inches high

11

(FAC ¶ 2)), and how high the class member sat in his wheelchair at the

relevant time.

12

(Order Denying Class Certification at 10:1-5.)

13

Plaintiffs argue that the Ninth Circuit has already determined that the “average eye

14

level of persons in wheelchairs is 43 to 51 inches above the restaurant floor and that, at a

15

distance of 12 inches from the wall, a person at any height within that average range cannot

16

see the food preparation counter or the food on display there.” (Mem. of P. & A. in Support

17

of Motion for Reconsideration at 11:2-5.) Therefore, Plaintiffs argue, all that would be left

18

to prove on an individual basis is whether the class member uses a wheelchair or scooter,

19

whether he visited a non-compliant location during the relevant time period, and whether the

20

wall interfered with his view of the food on display or the making of his order while normally

21

seated. (Id. at 11:6-10.)

22

However, the Ninth Circuit did not “determine” that the average eye level of persons

23

in wheelchairs is 43 to 51 inches and that at a distance of 12 inches from the wall, a person

24

within that range of height would not be able to see the food preparation counter or the food

25

on display. The Ninth Circuit stated that the parties stipulated to these facts. Antoninetti,

26

643 F.3d at 1170. Generally, stipulated facts, which are not actually litigated in an action,

27

are not given preclusive effect unless the parties have manifested an intention that the

28

stipulation be binding in subsequent actions. Sekaquaptewa v. MacDonald, 575 F.2d 239,

3

06cv2671 BTM(WMc)

1 247 (9th Cir. 1978).1

2

Even setting aside the issue of the stipulated facts, individual issues predominate for

3 the reasons set forth in the Court’s Order Denying Class Certification. To establish liability

4 for damages, the individual would need to establish which Chipotle restaurant he visited, the

5 dates of the visits, that he visited to purchase food and/or have the “Chipotle experience,”

6 the counter wall was noncompliant at the time of the visit(s), that he entered the food line,

7 that he was unable to see the food arranged on the food counter or the preparation of his

8 order (whether proved by stipulated facts or otherwise), and that he would have been able

9 to see the food prepared or on display if the wall were 36 inches. Questions of law or fact

10 common to potential class members do not predominate over the factual questions affecting

11 only individual members.

12

Furthermore, as explained in the Court’s Order, a class action would not be superior

13 to individual actions. Because the Unruh Act allows minimum statutory damages in the

14 amount of $4,000 for each particular occasion in addition to attorney’s fees and costs to the

15 prevailing party, plaintiffs and their attorneys have plenty of incentive to pursue individual

16 lawsuits. See, e.g., Castano v. The American Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996)

17 (“The expense of litigation does not necessarily turn this case into a negative value suit, in

18 part because the prevailing party may recover attorneys’ fees under many consumer

19 protection statutes.”); Mayo v. Sears, Roebuck & Co., 148 F.R.D. 576, 583 (S.D. Ohio 1993)

20 (concluding that the grant of attorney’s fees for individual actions brought for rescission

21 under 15 U.S.C. § 1635 is somewhat inconsistent with Rule 23(b)(3)’s superiority

22 requirement).

23

The Court did not err in denying class certification with respect to Plaintiffs’

24 declaratory relief claim or Plaintiffs’ claim for damages. Therefore, Plaintiffs’ motion for

25 reconsideration is denied.

26
1 There was arguably a judicial admission to these facts as a result of Chipotle’s 27 admission of the facts in a pretrial order entered in the district court case. However, judicial
admissions are not conclusive and binding in separate and subsequent litigation. State 28 Farm Mutual Auto. Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968). The Court
does not decide whether the admission would be admissible in this case.

4

06cv2671 BTM(WMc)

1 B. Motion for Clarification

2

Plaintiffs claim that clarification is needed as to a variety of issues raised by the

3 Court’s Order. The Court will address each of Plaintiffs’ points in turn.

4

On page 10 of the Court’s Order, the Court states, “Accordingly, for each particular

5 occasion, the class member must establish that he was actually unable to see his food

6 prepared . . . .” Plaintiffs point out that the proper test, as set forth by the Ninth Circuit, is

7 whether the individual was denied the Chipotle experience because he was “unable to see

8 the food arranged on the food counter or the preparation of his order, as non-wheelchair-

9 bound customers could do.” Antoninetti, 643 F.3d at 1177 (emphasis added). Although the

10 Court quoted this language on page 9, the Court failed to repeat on page 10 that Chipotle

11 may be liable for damages if a high counter wall impedes the ability of an individual to see

12 the different foods arranged on the counter even if he can see his food being prepared. To

13 the extent this omission caused confusion, the Court clarifies that liability for damages may

14 be based on interference with an individual’s ability to see the preparation of his order or see

15 the different foods arranged on the counter.

16

Plaintiffs also argue that the language used by the Court on pages 9-10 of the Order

17 can be construed as requiring a complete inability to see the food on the counter and/or the

18 preparation of the order. In using the phrase “unable to see,” the Court was not and is not

19 suggesting a requirement that the plaintiff’s view be completely blocked or that there is no

20 liability if the plaintiff can see by straining to lift himself out of his wheelchair or scooter.

21 However, the Court does not decide at this time how much of the view must be blocked to

22 constitute sufficient interference to establish liability for damages.

23

Plaintiffs also take issue with the Court’s statement that individual plaintiffs will need

24 to prove the actual height of the counter walls and how high they sat in their wheelchairs.

25 According to Plaintiffs, if an individual could not fully and equally enjoy the ‘Chipotle

26 experience’ because of the presence of the wall, the wall interfered with equal access,

27 regardless of the height of the person’s eyes or exactly how much higher than 36 inches the

28 wall was. It seems that questions regarding the level of Plaintiffs’ eyes when seated in their

5

06cv2671 BTM(WMc)

1 wheelchairs or scooters and the height of the walls at issue will likely come into play when

2 litigating the issue of whether the Plaintiffs’ view of the food counter was actually impeded.

3 However, the Court did not mean to imply that establishing the height of Plaintiffs’ eyes and

4 the actual height of the walls is the only way Plaintiffs can prove their case.

5

With respect to the height of walls that have been destroyed during the course of this

6 litigation, Plaintiffs argue that Defendant should be subject to an adverse inference

7 instruction as to the height of the walls as an evidentiary sanction. The Court need not reach 8 this evidentiary issue at this time.2

9

Finally, Plaintiffs request that the Court modify its Order to recognize claims for

10 deterrence damages. The Court’s Order did not address the issue of deterrence damages

11 and did not rule that such damages were unavailable. Given that the issue before the Court

12 is class certification, the Court declines to delve into when deterrence damages are available

13 and what must be proved to obtain them.

14

15

CONCLUSION

16

For the reasons discussed above, Plaintiffs’ motion for reconsideration is DENIED

17 and Plaintiffs’ motion for clarification is GRANTED IN PART as set forth above. The Court

18 denies Defendant’s request that the Court issue an order to show cause why Plaintiffs

19 should not be sanctioned. The trial in this case shall commence on July 8, 2013 at 10:00

20 a.m. The parties shall contact Judge McCurine’s Chambers to set all remaining pretrial

21 dates.

22 IT IS SO ORDERED.

23 DATED: January 14, 2013

24

BARRY TED MOSKOWITZ, Chief Judge

25

United States District Court

26

27

2 According to Plaintiffs, Defendant does not dispute that the high walls were all built

in accordance with a common design and were approximately 46 inches high. If Plaintiffs 28 can prove that a particular wall was built in conformity with this common design, it may not

be necessary for Plaintiffs to prove precise height to the millimeter.

6

06cv2671 BTM(WMc)

 
 Case 3:06-cv-02671-BTM-WMC Document 61 Filed 01/10/11 Page 1 of 19

1 Amy B. Vandeveld, SBN 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 Plaintiffs 5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10

11

MAURIZIO ANTONINETTI, JEAN RIKER,

CASE NO. 06cv2671 BTM

12 JAMES PERKINS, KAREN FRIEDMAN,

(WMc)

MICHAEL RIFKIN, SUSAN CHANDLER, LAURA

13 WILLIAMS, on behalf of themselves and FIRST AMENDED COMPLAINT

all others similarly situated, 14
Plaintiffs, 15

CLASS ACTION - Related to USDC No. 05 CV 1660 BTM (WMc)

v. 16

DEMAND FOR JURY TRIAL

CHIPOTLE MEXICAN GRILL, INC., a 17 Delaware Corporation and DOES 1-10,

18 Defendants.

19

20

INTRODUCTION

21

1. Defendant Chipotle Mexican Grill, Inc. (“Chipotle”)

22 specifically intends to provide its customers with the “Chipotle

23 Experience” in which Chipotle customers have the opportunity to

24 “build their perfect burrito,” to ask for “a little more salsa, a

25 little less guacamole,” to see the appetizing display of food

26 choices, to see into the open kitchen and to see freshly

27

28

First Amended Complaint

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee24ooff1291

1 marinated meats being grilled, to experience a “feast for the

2 eyes,” and to be brought “more completely into the dining

3 experience.” All of these benefits and opportunities are part of

4 “the Chipotle Experience.” The Chipotle Experience is supposed

5 to be a “fast” experience, in a casual setting, consistent with

6 Chipotle’s description of its restaurants as providing “fast

7 casual” fare. Plaintiffs and the class of people with mobility

8 disabilities they represent were denied full and equal access to

9 the Chipotle Experience by Chipotle.

10

2. Chipotle originally designed and constructed its

11 restaurants in California with walls approximately 46 inches high

12 (“the walls”) located between the customers and the food ordering

13 and preparation areas, in violation of the Americans with

14 Disabilities Act (“the ADA”). The walls obstructed the view of

15 the kitchen and food preparation areas for people with mobility

16 impairments who require the use of wheelchairs or other mobility

17 devices (hereafter collectively referred to as “people in

18 wheelchairs”) and who, because of their mobility disabilities,

19 are denied full and equal access to the Chipotle Experience.

20 Those who can see over the walls have the opportunity to see into

21 the open kitchen, to see large pans of appetizing ingredients,

22 tantalizingly displayed, to see and select the specific

23 ingredients they want in their entrees, to direct the amount of

24 each of the chosen ingredients to be placed in the entrees, and

25 to watch the actual construction of their entrees. People who

26 can see over the walls can “direct” the construction of their

27

28

First Amended Complaint

2

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee35ooff1291

1 “perfect” burrito. Plaintiffs and the class of people they

2 represent, however, have no such opportunity because they cannot

3 see the food on display or the making of their entrees because of

4 the walls.

5

3. In an effort to provide the Chipotle Experience to

6 people with mobility impairments, like the Plaintiffs, Chipotle

7 adopted a policy of providing accommodations by various methods,

8 including by lifting samples of food for viewing or by having

9 entrees constructed at the cashier counter or at an adjacent

10 table. Chipotle’s policy of accommodation legally fails as

11 “equivalent facilitation,” pursuant to a ruling by the Ninth

12 Circuit Court of Appeals in Antoninetti v. Chipotle Mexican

13 Grill, Inc., 614 F.3d 971 (9th Cir. 2010).

14

4. The accommodations offered by Chipotle pursuant to its

15 policy “merely provide a substitute experience that lacks the

16 customer’s personal participation in the selection and

17 preparation of the food that the full ‘Chipotle experience’

18 furnishes.” Antoninetti, 614 F.3d 971, 979.

19

JURISDICTION AND VENUE

20

5.

The claims alleged herein arise under the Americans

21 with Disabilities Act (42 U.S.C. §§ 12131 et seq.) (“ADA”), and

22 under state claims for relief, such that the jurisdiction of this

23 Court is invoked pursuant to 28 U.S.C. §§ 1331, 1332 and 1343.

24 Through the same actions and omissions that form the basis of

25 Plaintiffs’ federal claims, Chipotle and the DOE Defendants

26 (hereinafter collectively referred to as “Defendants”) have also

27

28

First Amended Complaint

3

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee46ooff1291

1 violated Plaintiffs’ rights under state law, over which this

2 Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

3 This Court has jurisdiction over Plaintiffs’ claims for

4 declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201

5 and 2202 and Rule 65 of the Federal Rules of Civil Procedure.

6 All of the Plaintiffs are residents of the State of California.

7 Chipotle is incorporated in the State of Delaware, with its

8 principal place of business in Denver, Colorado.

9

6.

Venue over Plaintiffs’ claims is proper in the Southern

10 District of California because Defendant operates approximately

11 14 restaurants in the Southern District of California, Mr.

12 Antoninetti resides in the Southern District, Mr. Perkins wants

13 to visit Chipotle restaurants in the Southern District and

14 because the events, acts, and omissions giving rise to at least

15 two of the Plaintiffs’ claims occurred in the Southern District

16 of California.

17

PARTIES

18

7.

Plaintiffs Maurizio Antoninetti, Jean Riker, Michael

19 Rifkin, James Perkins, Karen Friedman, Laura Williams and Susan

20 Chandler are each individuals with physical disabilities within

21 the meaning of all applicable statutes, including the ADA, 42

22 U.S.C. § 12101, et seq., Section 504, 29 U.S.C. §794, and

23 California Civil Code § 51, et seq. All of these Plaintiffs

24 utilize wheelchairs or motorized scooters for mobility because

25 their abilities to walk and stand are substantially limited.

26

8.

This action is brought on behalf of the named

27

28

First Amended Complaint

4

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee57ooff1291

1 Plaintiffs and on behalf of all persons similarly situated. The

2 class which the Plaintiffs seek to represent is composed of all

3 persons with mobility disabilities who use wheelchairs or other

4 mobility aides, such as scooters, and who, because of their

5 mobility disabilities, have been or will be denied full and equal

6 access to the Chipotle Experience because of the walls

7 (hereinafter “the Class.”)

8

9.

Defendant Chipotle Mexican Grill, Inc., headquartered

9 in Denver, Colorado, is a corporation authorized to do business

10 and doing business within the State of California. Plaintiffs

11 are informed and believe and thereon allege that Chipotle

12 operates more than 83 restaurants within the State of California,

13 all of which are similarly designed and constructed with respect

14 to the food service lines and the walls. This case arises out of

15 Defendant’s denial of access to the Chipotle Experience to

16 customers who, because of mobility disabilities, are unable to

17 see over the walls.

18

10. The Defendants whose identities are unknown are sued

19 herein under the names DOES 1 through 10 ("DOES"). Plaintiffs

20 are informed and believe and thereon allege that all of the

21 Defendants, including the DOES, are in some manner responsible

22 for the injuries and damages herein alleged.

23

FACTS APPLICABLE TO ALL CAUSES OF ACTION

24

11. Each and every allegation set forth in each and every

25 statement of the Complaint is hereby incorporated by reference in

26 each and every other averment and allegation of this First

27

28

First Amended Complaint

5

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee68ooff1291

1 Amended Complaint.

2

12. Maurizio Antoninetti has paraplegia. He uses a

3 wheelchair for mobility. In November and December of 2006, Mr.

4 Antoninetti visited the Chipotle restaurants located on Rosecrans

5 Street and at San Diego State University in San Diego,

6 California. During his visits to Chipotle restaurants, the walls

7 at the food preparation areas prevented Mr. Antoninetti from

8 seeing food on display and/or the making of his entrees. He

9 would like to return to Chipotle’s restaurants, including other

10 restaurants in the San Diego area, and he would like to be

11 provided with full and equal access to the Chipotle Experience.

12 He was deterred from returning to Chipotle’s restaurants because

13 they were constructed with the same wall design, which denied him

14 full and equal access to the Chipotle Experience.

15

13. Jean Riker has hemiplegia. She uses a wheelchair for

16 mobility. Ms. Riker visited the Chipotle restaurant on Capitol

17 Avenue in Sacramento, California in November of 2006. During her

18 visit to the Chipotle restaurant, the wall at the food

19 preparation area prevented Ms. Riker from seeing food on display

20 and/or the making of her entree. Ms. Riker was deterred from

21 returning to Chipotle’s restaurants because of the discrimination

22 she experienced during her visit and because of the common wall

23 design of the restaurants. She would like to return to

24 Chipotle’s restaurants and to be provided full and equal access

25 to the Chipotle Experience.

26

14. Michael Rifkin had multiple sclerosis and used a

27

28

First Amended Complaint

6

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee79ooff1291

1 motorized chair for mobility. Mr. Rifkin visited the Chipotle

2 restaurant on Victoria Avenue in Ventura, California in August of

3 2006. During his visit to the Chipotle restaurant, the wall at

4 the food preparation area prevented Mr. Rifkin from seeing food

5 on display and/or the making of his entree. Mr. Rifkin was

6 deterred from returning to any Chipotle because of the

7 discrimination he experienced during his visit.

8

15. Karen Friedman has multiple sclerosis, among other

9 disabling conditions. She uses a wheelchair or a motorized

10 scooter for mobility. She visited the Chipotle restaurant on

11 State Street in Santa Barbara, California. During her visit to

12 the Chipotle restaurant, the wall at the food preparation area

13 prevented Ms. Friedman from seeing food on display and/or the

14 making of her entree. She was deterred from returning to any

15 Chipotle restaurant because all Chipotle restaurants were

16 constructed with the same wall design, which denied her full and

17 equal access to the Chipotle Experience. She would like to

18 return to Chipotle’s restaurants and to be provided full and

19 equal access to the Chipotle Experience.

20

16. Dr. Perkins uses a wheelchair for mobility. From about

21 2006 to 2008, Dr. Perkins visited Chipotle restaurants located in

22 Ventura, Norco, Riverside, and Valencia, California. During each

23 of his visits to the Chipotle restaurants, the walls at the food

24 preparation areas prevented Dr. Perkins from seeing food on

25 display and/or the making of his entrees. Dr. Perkins would have

26 visited other Chipotle restaurants in the Ventura, San Diego, Los

27

28

First Amended Complaint

7

06cv2671 BTM (WMc)

CCasaese3:30:60-6c-vc-v0-20627617-1B-BTTMM--WWMMCC DDooccuummeenntt5691 Filed 01/10/11 Page 810ofo1f 921

1 Angeles, Riverside and Santa Barbara County areas of California,

2 but he was deterred from doing so by the high walls that

3 prevented him from seeing the food on display at those

4 restaurants previously visited by him. At all times relevant

5 herein, Dr. Perkins wanted to, and still wants to, return to

6 Chipotle’s restaurants and to be provided full and equal access

7 to the Chipotle Experience.

8

17. Susan Chandler has paraplegia and she uses a wheelchair

9 for mobility. In about 2005, she visited a Chipotle restaurant

10 in Sacramento, California. During her visit to the Chipotle

11 restaurant, the wall at the food preparation area prevented Ms.

12 Chandler from seeing food on display and/or the making of her

13 entree. She was deterred from returning to any other Chipotle

14 restaurant because all Chipotle restaurants were constructed with

15 the same wall design, which denied her full and equal access to

16 the Chipotle Experience. She would like to return to Chipotle’s

17 restaurants and to be provided full and equal access to the

18 Chipotle Experience.

19

18. Laura Williams has multiple sclerosis and uses a

20 wheelchair or a motorized scooter for mobility. In about 2007 or

21 2008, she visited a Chipotle restaurant in Los Angeles,

22 California. During her visit to the Chipotle restaurant, the

23 wall at the food preparation area prevented her from seeing food

24 on display and/or the making of her entree. She was deterred

25 from returning to any Chipotle restaurant, including restaurants

26 in the Sacramento and Los Angeles areas, because all Chipotle

27

28

First Amended Complaint

8

06cv2671 BTM (WMc)

CCasaese3:30:60-6c-vc-v0-20627617-1B-BTTMM--WWMMCC DDooccuummeenntt5691 Filed 01/10/11 Page 911ofo1f 921

1 restaurants were constructed with the same wall design, which

2 denied her full and equal access to the Chipotle Experience. She

3 would like to return to Chipotle’s restaurants in the Los Angeles

4 and Sacramento areas and to be provided full and equal access to

5 the Chipotle Experience.

6

19. As a result of the above, Defendants have failed to

7 comply with federal requirements not to discriminate against

8 people with disabilities, as set forth in Antoninetti v. Chipotle

9 Mexican Grill, Inc., 614 F.3d 971 (9th Cir. 2010). Chipotle was

10 and is required, under Title III of the ADA, to ensure that the

11 Class has full and equal access to the Chipotle Experience that

12 is provided to non-Class patrons of Chipotle.

13

20. Chipotle has also failed to comply with California

14 state requirements relating to providing full and access to

15 people with disabilities. See, Antoninetti v. Chipotle Mexican

16 Grill, Inc., 614 F.3d 971 (9th Cir. 2010). Chipotle was notified

17 by other wheelchair users, beginning at least as early as 2002,

18 about the lack of full and equal access to the Chipotle

19 Experience for people such as the Plaintiffs and the class of

20 people they represent. Chipotle, despite this notice, took no

21 action prior to the filing of the instant action to provide the

22 Plaintiffs and Class members with full and equal access to the

23 Chipotle Experience.

24

21. Accordingly, Plaintiffs bring this action seeking

25 injunctive and declaratory relief in order to compel Defendants

26 to comply with their obligations to provide Plaintiffs and Class

27

28

First Amended Complaint

9

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1102ooff1291

1 members with full and equal access to the Chipotle Experience.

2 The named Plaintiffs also seek statutory minimum damages, on

3 behalf of themselves and the Class, in addition to their

4 attorneys' fees and costs.

5

CLASS ACTION ALLEGATIONS

6

22. Plaintiffs bring this action on their own behalf and on

7 behalf of all persons similarly situated. The Class which

8 plaintiffs seek to represent is composed of “all persons with

9 mobility disabilities who use wheelchairs or other mobility

10 aides, such as scooters, and who, because of their mobility

11 impairments, have been or will be denied their rights under the

12 ADA and California state law to full and equal access to the

13 Chipotle Experience at Chipotle’s restaurants within the State of

14 California because of the walls.” (Class definition).

15

23. This suit is properly maintainable as a class action

16 under Federal Rules of Civil Procedure, Rule 23 (b)(2), because

17 Defendants have acted or refused to act on grounds generally

18 applicable to the Class, at each of the more than 83 California

19 Chipotle Mexican Grill restaurants, thereby making appropriate

20 final injunctive relief or declaratory relief with respect to the

21 Class as a whole an appropriate remedy. Class claims are brought

22 for the purpose of obtaining declaratory and injunctive relief

23 and for statutory minimum damages under California Civil Code §

24 52 only, which provides for a minimum of $4,000.00 for each and

25 every offense. Class damages claims are limited to the minimum

26 statutory damages recoverable under California Civil Code § 52.

27

28

First Amended Complaint

10

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1113ooff1291

1

24. This suit is further properly maintainable as a class

2 action under Federal Rules of Civil Procedure, Rule 23(b)(3)

3 because questions of law or fact common to Class members

4 predominate over any questions affecting only individual members,

5 and a class action is superior to other available methods for

6 fairly and efficiently adjudicating the claims alleged herein.

7

25. The persons in the Class are so numerous that joinder

8 of all such persons is impracticable and the disposition of their

9 claims in a class action is a benefit to the parties and to the

10 Court. The are at least two hundred Class members and the

11 combined claims of all Class members exceeds $5,000,000.00

12 exclusive of interest and costs. The Plaintiffs are citizens of

13 a different state than the Defendant.

14

26. There is a well-defined community of interest in the

15 questions of law and fact affecting the parties to be represented

16 in that Chipotle denied the Class full and equal access to the

17 Chipotle Experience at each of its restaurants, despite the

18 requirements of federal law. The design of the walls, and the

19 methods of accommodation adopted by Chipotle to compensate for

20 the obstruction created by the walls, violated the ADA. (See,

21 Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d 971 (9th

22 Cir. 2010).)

23

27. Legal and factual questions common to each of the Class

24 members include, but are not limited to, the following:

25

A. Whether Defendants violated Title III of the ADA, 42

26 U.S.C. §§ 12181, et seq., by designing and constructing food

27

28

First Amended Complaint

11

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1124ooff1291

1 service lines with walls which deny the Plaintiffs and the Class

2 full and equal access to the Chipotle Experience (seeing the food

3 items available for selection, being brought more fully into the

4 dining experience, watching freshly marinated meats being

5 continuously grilled and seeing the construction of their

6 entrees.) This legal issue was resolved against Chipotle in

7 Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d 971 (9th

8 Cir. 2010).

9

B. Whether Defendants violated California Civil Code §§

10 51, et seq. with respect to denial of full and equal access to

11 the Chipotle Experience. This legal issue was resolved against

12 Chipotle in Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d

13 971 (9th Cir. 2010).

14

C. Whether the Defendants are liable to each and every

15 Class member for minimum statutory damages for each and every

16 offense, as provided by California Civil Code § 52.

17

28. The claims of the named Plaintiffs are typical of those

18 of the Class and Plaintiffs will fairly and adequately represent

19 the interests of the Class.

20

29. The attorneys representing the Plaintiffs are

21 experienced civil rights attorneys with specific experience in

22 cases involving persons with disabilities. The attorneys

23 representing Plaintiffs are also considered able practitioners in

24 statutory adjudication and federal court litigation.

25

30. References to Plaintiffs shall be deemed to include the

26 named Plaintiffs and each member of the Class, unless otherwise

27

28

First Amended Complaint

12

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1135ooff1291

1 indicated.

2

FIRST CAUSE OF ACTION

3

Title III of the Americans with Disabilities Act

42 U.S.C. §§ 12181 et seq.

4

5

31. Plaintiffs incorporate by reference each and every

6 allegation contained in the foregoing paragraphs.

7

32. Congress enacted the ADA upon finding, among other

8 things, that "society has tended to isolate and segregate

9 individuals with disabilities" and that such forms for

10 discrimination continue to be a “serious and pervasive social

11 problem.” 42 U.S.C. § 12101(a)(2).

12

33. In response to these findings, Congress explicitly

13 stated that the purpose of the ADA is to provide “a clear and

14 comprehensive national mandate for the elimination of

15 discrimination against individuals with disabilities” and “clear,

16 strong, consistent, enforceable standards addressing

17 discrimination against individuals with disabilities.” 42 U.S.C.

18 § 12101(b)(1)-(2).

19

34. The ADA provides, inter alia, that it is discriminatory

20 to subject an individual or class of individuals on the basis of

21 a disability “to a denial of the opportunity of the individual or

22 class to participate in or benefit from the goods, services,

23 facilities, privileges, advantages, or accommodations of an

24 entity.” 42 U.S.C. § 12182(a)(i).

25

35. The ADA further provides that it is discriminatory “to

26 afford an individual or class of individuals, on the basis of a

27

28

First Amended Complaint

13

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1146ooff1291

1 disability ... with the opportunity to participate in or benefit

2 from a good, service, facility, privilege, advantage, or

3 accommodation that is not equal to that afforded to other

4 individuals.” 42 U.S.C. § 12182(a)(ii).

5

36. The ADA further provides that it is discriminatory to

6 fail “to design and construct facilities for first occupancy

7 later than 30 months after the date of enactment of this Act

8 [enacted July 26, 1990] that are readily accessible to and usable

9 by individuals with disabilities, except where an entity can

10 demonstrate that it is structurally impracticable to meet the

11 requirements of such subsection in accordance with standards set

12 forth or incorporated by reference in regulations issued under

13 this title [42 USCS § § 12181 et seq.].” 42 U.S.C. §

14 12183(a)(1).

15

37. Defendants’ acts and omissions alleged herein are in

16 violation of the ADA, 42 U.S.C. §§ 12101, et seq., and the

17 regulations promulgated thereunder.

18

38. Chipotle restaurants are places of public accommodation

19 covered by Title III of the ADA. 42 U.S.C. § 12181(7)(I).

20

39. Plaintiffs are persons with mobility disabilities and

21 thus are specifically protected under the ADA. 42 U.S.C. §

22 12102(2) and 28 C.F.R. § 36.104.

23

40. Plaintiffs and the Class were denied full and equal

24 access to the Chipotle Experience, in violation of the ADA,

25 because of the walls. Plaintiffs and the Class want to return to

26 Chipotle’s restaurants in California to enjoy the Chipotle

27

28

First Amended Complaint

14

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1157ooff1291

1 Experience. Plaintiffs and the Class were deterred from

2 returning to Chipotle’s restaurants in California because they

3 were denied full and equal access to the Chipotle Experience

4 because of the walls.

5

41. Defendants’ conduct constitutes multiple ongoing and

6 continuous violations of the ADA and, unless restrained from

7 doing so, Defendants will continue to violate said laws. Said

8 conduct, unless enjoined, will continue to inflict injuries for

9 which Plaintiffs and the Class have no adequate remedy at law.

10 Consequently, Plaintiffs and the Class are entitled to, and seek,

11 injunctive and declaratory relief pursuant to Section 308 of the

12 ADA. 42 U.S.C. § 12188.

13

42. Plaintiffs and the Class are also entitled to, and

14 seek, reasonable attorneys’ fees, litigation expenses and costs

15 pursuant to Section 505 of the ADA. 42 U.S.C. § 12205.

16

SECOND CAUSE OF ACTION

17

Unruh Civil Rights Act

California Civil Code §§ 51, et seq.

18

19

43. Plaintiffs incorporate by reference each and every

20 allegation contained in the foregoing paragraphs.

21

44. California’s Unruh Civil Rights Act (“the Unruh Act”)

22 prohibits discrimination against individuals with disabilities.

23 Section 51 of the California Civil Code provides, in relevant

24 part:

25

All persons within the jurisdiction of this

state are free and equal, and no matter what

26

their...disability...are entitled to the full

and equal accommodations, advantages,

27

28

First Amended Complaint

15

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1168ooff1291

1

facilities, privileges, or services in all

business establishments of every kind

2

whatsoever.

3 Cal. Civ. Code § 51(b).

4

45. The Unruh Act also provides that “[a] violation of the

5 right of any individual under the Americans with Disabilities

6 Act...shall also constitute a violation of this section.” Cal.

7 Civ. Code § 51(f).

8

46. As set forth above, Defendants discriminated against

9 the Plaintiffs by instituting policies and/or by designing and

10 constructing facilities that discriminate against people with

11 mobility disabilities, including Plaintiffs and members of the

12 Class.

13

47. Defendants’ actions or inactions constitute a violation

14 of, among other laws, the Americans with Disabilities Act.

15

48. Plaintiffs’ mobility disabilities limit major life

16 activities such as standing and walking; thus Plaintiffs are

17 protected under the Unruh Act. Cal. Civ. Code § 51(e)(1); Cal.

18 Gov’t. Code §12926(k).

19

49. Chipotle is a business establishment regulated by the

20 Unruh Act. Cal. Civ. Code § 51(b).

21

50. As a direct and proximate result of Defendants’

22 conduct, Plaintiffs and the Class have suffered damages.

23

51. As such, the named Plaintiffs and the Class are

24 entitled to the minimum amount of $4,000.00 in damages against

25 Chipotle for each and every offense. Plaintiffs and the Class

26 are also entitled to their attorneys’ fees. Cal. Civ. Code

27

28

First Amended Complaint

16

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1179ooff1291

1 § 52(a), (e) and § 52.1(h). The amount of all statutory damages

2 of Plaintiffs and the Class exceeds $5,000,000.00, exclusive of

3 interest and costs.

4

52. Plaintiffs and the Class are also entitled to, and

5 seek, injunctive and declaratory relief. Cal. Civ. Code

6 § 52.1(b).

7

THIRD CAUSE OF ACTION

8

Declaratory Relief

9

53. Plaintiffs incorporate by reference each and every

10 allegation contained in the foregoing paragraphs.

11

54. Defendants have denied, and continue to deny, that

12 Defendants failed to provide Plaintiffs and the Class with full

13 and equal access to the Chipotle Experience, in violation of the

14 ADA and various state civil rights statutes, including the Unruh

15 Act, all to the detriment of Plaintiffs and the Class.

16

55. In addition, Defendants deny, and continue to deny,

17 that they have violated or breached any of their legal

18 obligations to Plaintiffs and the Class.

19

56. A judicial declaration is necessary and appropriate at

20 this time in order that each of the parties may know their

21 respective rights and duties and act accordingly.

22

PRAYER FOR RELIEF

23

WHEREFORE, Plaintiffs and the Class pray for judgment as

24 follows:

25

1) Declaring that Defendants violated the ADA and its

26 implementing regulations by failing to provide full and equal

27

28

First Amended Complaint

17

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1280ooff1291

1 access to the Chipotle Experience to Plaintiffs and the Class;

2

2) Declaring that Defendants violated the Unruh Civil

3 Rights Act by failing to provide full and equal access to the

4 Chipotle Experience to Plaintiffs and the Class;

5

3) Granting a permanent injunction directing

6 Defendants: (a) to provide Plaintiffs and the Class with full and

7 equal access to the Chipotle Experience; (b) if Defendants have

8 modified the walls at the restaurants so that the Chipotle

9 Experience is now accessible to Plaintiffs and the Class, that

10 Defendants maintain those accessible walls at the restaurants;

11 and (c) that each restaurant constructed after the date of the

12 Court’s injunction be designed and constructed so that it

13 provides Plaintiffs and the Class with full and equal access to

14 the Chipotle Experience.

15

4) Granting a permanent injunction directing

16 Defendants: (a) to provide Plaintiffs and the Class with full and

17 equal access to the Chipotle Experience; (b) if Defendants have

18 modified the walls so that the Chipotle Experience is now

19 accessible to Plaintiffs and the Class, that Defendants maintain

20 the accessible walls at the restaurants; and (c) that each

21 restaurant constructed after the date of the Court’s injunction

22 be designed and constructed so that it provides Plaintiffs and

23 the Class with full and equal access to the Chipotle Experience.

24

5) Awarding Plaintiffs and the Class statutory

25 minimum damages of $4,000.00 for each and every offense, as

26 provided by California Civil Code § 52;

27

28

First Amended Complaint

18

06cv2671 BTM (WMc)

CCaassee33:0:066--ccvv--0022667711--BBTTMM-WMC Document 5691 FFilieledd0011/1/100/1/111 PPaaggee1291ooff1291

1

6) Awarding Plaintiffs and the Class attorneys’ fees,

2 litigation expenses, and all costs incurred by bringing this

3 action; and

4

7) Granting such other relief as the Court deems just

5 and fair.

6 DATED: January 10, 2011

LAW OFFICES OF AMY B. VANDEVELD

7

8

S/AMY B. VANDEVELD

Attorney for Plaintiffs

9

Email: abvusdc@hotmail.com

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

First Amended Complaint

19

06cv2671 BTM (WMc)

 
 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
1

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
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
2

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
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.
3

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

 
 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

- 1 -

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.

- 2 -

06cv2671

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

- 3 -

06cv2671

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

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 4 -

06cv2671

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.

- 5 -

06cv2671

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.

- 6 -

06cv2671

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.

- 7 -

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.

- 8 -

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
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM-JLB Document 3 Filed 12/28/06 Page 3 of 14

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
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM-JLB Document 3 Filed 12/28/06 Page 4 of 14

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
OC 286116627v1 059908.010200

Case No. 06CV-2671-LAB (POR)

Case 3:06-cv-02671-BTM-JLB Document 3 Filed 12/28/06 Page 5 of 14

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
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 6 of 14

1

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
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 7 of 14

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
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 8 of 14

1

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
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 9 of 14

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
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 10 of 14

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
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 11 of 14

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.

10
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 12 of 14

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
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 13 of 14

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
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 14 of 14

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
PROOF OF SERVICE
OC 286116627v1 059908.010200

1 Case No. 06CV-2671-LAB (POR)

 
 Case 3:06-cv-02671-BTM-JLB Document 13 Filed 04/20/07 Page 1 of 2

1

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

- 1 -

06cv2671-J (WMc)

Case 3:06-cv-02671-BTM-JLB Document 13 Filed 04/20/07 Page 2 of 2

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

- 2 -

06cv2671-J (WMc)

 
 Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 1 of 19

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.
10627

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 2 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10631

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 3 of 19

10632

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 4 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10633

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.

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 5 of 19

10634

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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.

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 6 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL
3. Customers may simply wish to have the food or food preparation process described to them.

10635

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 7 of 19

10636

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 8 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10637

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.

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 9 of 19

10638

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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.

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 10 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10639

[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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 11 of 19

10640

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 12 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10641

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.”

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 13 of 19

10642

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 14 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10643

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 15 of 19

10644

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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-

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 16 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10645

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 17 of 19

10646

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 18 of 19

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

10647

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

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-1, Page 19 of 19

10648

ANTONINETTI v. CHIPOTLE MEXICAN GRILL

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

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings (December 2009)

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not
addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 12/2009

1

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-2, Page 2 of 5
► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2009

2

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-2, Page 3 of 5
• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► West Publishing Company; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Kathy Blesener, Senior Editor); ► and electronically file a copy of the letter via the appellate ECF system by using “File Correspondence to Court,” or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 12/2009

3

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-2, Page 4 of 5 Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

Case: 08-55867, 07/26/2010, ID: 7416550, DktEntry: 62-2, Page 5 of 5 Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI, JEAN
12 RIKER, JAMES PERKINS, KAREN FRIEDMAN JAY RIFKIN, SUSAN
13 CHANDLER, LAURA WILLIAMS,
14 on behalf of themselves and all others
similarly situated,
15

16
v.
17

Plaintiff,

Case No. 06-CV-02671-BTM-JLB
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES & COSTS

18 CHIPOTLE MEXICAN GRILL, INC.,
19 a Delaware Corporation, and DOES 1 – 10, Inclusive,
20

21

Defendants.

22

23

On December 2, 2013, Plaintiffs filed a motion seeking attorneys’ fees and

24
costs of $1,671,197.27, plus fees incurred in litigating this motion. (Docs. 183, 207.)
25
26 For the reasons set forth below, Plaintiffs’ motion for attorneys’ fees and costs is

27 hereby GRANTED in part and DENIED in part.
28

1

06-CV-02671

1

I. BACKGROUND

2
The parties are familiar with the facts of the case.1 Due to the unique
3

4 procedural posture of this motion, however, it bears noting that:

5

1. Maurizio Antoninetti filed a lawsuit against Defendant in August 2005.

6
Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. In that case, Mr.
7

8 Antoninetti alleged injury arising from visits to two of Defendant’s restaurants whose

9 serving area layout violated the Americans With Disabilities Act (“ADA”) as well as

10
California’s disability access laws.
11

12

2. This case was filed on December 6, 2006, as a six-count class action

13 alleging the same facts. Antoninetti et. al. v. Chipotle Mexican Grill, Inc., No. 06-cv-

14
2671. Discovery in the two pending cases proceeded jointly.
15

16

3. On May 7, 2008, in the Central District of California, a second class action

17 was filed by plaintiffs residing outside of this district who were represented by the
18
same counsel as those litigating here: Perkins et. al. v. Chipotle Mexican Grill, Inc.,
19
20 No. 08-cv-3002. The Compliant and Second Amended Complaint similarly alleged

21 violations of the ADA as well as California’s Unruh Civil Rights Act, Cal. Civ. Code

22
§§ 51, et seq.
23

24

4. After granting partial summary judgment and holding a bench trial, Mr.

25

26

1 For a factual summary, see Antoninetti v. Chipotle Mexican Grill, 643 F.3d

1165, 1169-71 (9th Cir. 2010). See also “Order re Plaintiff’s Motions for Summary

27 Judgment and for Attorneys’ Fees,” No. 05-1660, March 21, 2012 (Doc. 359.); “Order

on Attorneys’ Fees,” No. 05-1660, July 17, 2012 (Doc. 377) (awarding $545,079.05

28 in fees and costs); “Order Denying Class Certification,” No. 06-2671, August 28, 2012

(Doc. 145).

2

06-CV-02671

1 Antoninetti prevailed in part in the individual action, but was not granted injunctive
2
relief because the Court found that Chipotle’s “Customers With Disabilities Policy,”
3
4 as amended in 2007, brought it into compliance with the ADA.

5

5. Mr. Antoninetti appealed that judgment. Both putative class actions were

6
stayed pending the appeal. On July 26, 2010, Mr. Antoninetti prevailed, and the
7

8 Ninth Circuit Court of Appeals remanded the case with instructions “to enter a

9 judgment that Chipotle violated the Disabilities Act and to issue appropriate
10
injunctive relief.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1177
11
12 (9th Cir. 2010).

13

6. The stay of the Antoninetti putative class action was lifted on August 28,

14
2010. The stay in the Perkins case remained in place until a settlement was reached.
15

16

7. Mr. Antoninetti died on May 9, 2011. The Court granted Mrs. Antoninetti’s

17 unopposed motion to substitute as the plaintiff in this case.
18
8. Class certification was denied. The parties thereafter negotiated a global
19
20 settlement of the individual claims in this class action, in the Perkins class action,

21 and in fifteen additional individual suits, all of which were consolidated before this
22
Court. More specifically, the individual plaintiffs in state court cases were added to
23
24 the Antoninetti class action, and the Perkins case was transferred and consolidated

25 with Antoninetti on December 3, 2013. (Order Consolidating Cases, No. 06-2671,

26
December 3, 2013 (Doc. 187).)
27

28

9. Under the global settlement agreement, Chipotle Mexican Grill, Inc.

3

06-CV-02671

1 (“Chipotle” or “Defendant”) agreed to pay Plaintiffs’ reasonable attorneys’ fees and

2
costs in all of these related cases. (Doc. 182, Ex. A ¶¶ 2.1.C.1, 2.1.C.6.)
3

4

10. As of July 2011, none of the Chipotle locations in California had the type

5 of wall that formed the basis for these suits.
6
11. The twenty-one named plaintiffs collectively recovered $225,000 in
7
8 damages for their individual claims.

9

12. On July 17, 2012, the Court amended a prior judgment in the invidivual

10
Antoninetti case, awarding $545,079.05 in attorneys fees and costs. (No. 05-cv-
11

12 1660, Doc. 377.) That amount accounted for time and expenses spent litigating the

13 individual Antoninetti case, including time spent opposing certiorari to the Supreme
14
Court, and time spent on remand through the date of the award. On December 26,
15
16 2012, the plaintiff was awarded an additional $353,469.95 for fees and costs related

17 to proceedings before the Ninth Circuit. (No. 05-cv-1660, Doc. 382.) Thus, counsel

18
has already been awarded $898,549 in fees and expenses related to these cases.
19

20

13. The pending motion addresses only heretofore uncompensated fees and

21 costs for work on the putative class actions pursuant to the settlement agreement.
22
//
23
24 //

25 //
26
//
27
28 //

4

06-CV-02671

1

II. LEGAL STANDARDS

2
Under 42 U.S.C. § 12205, the “prevailing party” in an Americans with
3

4 Disabilities Act (“ADA”) action may, in the Court’s discretion, recover “reasonable

5 attorney’s fees, including litigation expenses, and costs.” See also 28 C.F.R. §
6
36.505. The prevailing plaintiff is also entitled to fees and costs under California's
7
8 applicable disability access laws. See Cal. Civ. Code §§ 52(a). The amount of the

9 prevailing party’s reasonable attorneys’ fees is calculated using the lodestar method.
10
Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the
11
12 lodestar method, “[t]he most useful starting point for determining the amount of a

13 reasonable fee is the number of hours reasonably expended on the litigation
14
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
15
16 (1983). Hours that are excessive, redundant, or otherwise unnecessary should be

17 excluded from an award of fees. Id. at 434; Camacho v. Bridgeport Financial, Inc.,
18
523 F.3d 973, 978 (9th Cir. 2008). To calculate the “lodestar,” the court multiplies
19
20 the number of hours the prevailing party reasonably expended on the litigation by a

21 reasonable rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996).
22
The hourly rates to be employed in calculating reasonable fees are determined by the
23
24 “prevailing market rates in the relevant community, regardless of whether the

25 plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S.
26
886, 895 (1984); see also Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001).
27
28 "The burden is on the plaintiff to produce evidence that the requested rates are in line

5

06-CV-02671

1 with those prevailing in the community for similar services by lawyers of reasonably
2
comparable skill, experience, and reputation." Id. (internal quotations omitted).
3
4 "Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in

5 the community, and rate determinations in other cases, particularly those setting a
6
rate for the attorney, are satisfactory evidence of the prevailing market rate." United
7
8 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

9 Generally, the relevant community "is the forum in which the district court sits."
10
Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The relevant rates in that
11
12 community are those charged "for similar services by lawyers of reasonably

13 comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895
14
n.11 (1984). "The defendant may introduce rebuttal evidence in support of a lower
15
16 hourly rate." Sorenson, 239 F.3d at 1145. As to the number of hours reasonably

17 expended, a fee applicant “should make a good-faith effort to exclude . . . hours that
18
are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. The
19
20 movant bears the burden of submitting detailed time records justifying the hours

21 claimed to have been expended. Id. at 437; In re Washington Public Power Supply

22
Sys. Secs. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994).
23

24

There is a strong presumption that the lodestar figure represents a reasonable

25 fee award. Harris v Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994); United Steelworkers,
26
896 F.2d at 407 (holding that, absent competent rebuttal evidence or a finding that
27
28 counsels' rates are unwarranted by their level of performance, the requested rates are

6

06-CV-02671

1 presumed reasonable); Stonebrae L.P. v. Toll Bros., 521 Fed. Appx. 592, 595 (9th
2
Cir. 2013) (“Where, as here, a party achieves an excellent result, the court should
3
4 refuse to reduce the lodestar amount.”). Yet courts may adjust the lodestar figure
5 upward or downward based upon the factors enunciated in Kerr v. Screen Extras
6
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1) the time and labor required, (2) the
7
8 novelty and difficulty of the questions involved, (3) the skill requisite to perform the
9 legal service properly, (4) the preclusion of other employment by the attorney due to
10
acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or
11
12 contingent, (7) time limitations imposed by the client or the circumstances, (8) the
13 amount involved and the results obtained, (9) the experience, reputation, and ability
14
of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of
15
16 the professional relationship with the client, and (12) awards in similar cases. See
17 Camacho, 523 F.3d at 978; Cunningham v. Los Angeles, 879 F.2d 481, 484 (9th Cir.
18
1988) (same). See also Woods v. Sunn, 865 F.2d 982, 991 (9th Cir. 1988) (noting
19
20 that many factors previously identified by courts as probative on the issue of
21 reasonableness of a fee award are now subsumed within the initial calculation of the
22
lodestar amount); Morales, 96 F.3d at 363-64. Generally, the most important factor
23
24 is the degree of success obtained. Farrar v. Hobby, 506 U.S. 103, 115-16 (1992). Finally,
25 the Court may make across-the-board percentage cuts in the number of hours claimed
26
as “a practical means of trimming the fat from a fee application.” Gates v.
27
28 Deukmejian, 977 F.2d 1300, 1307 (9th Cir. 1992) (citation omitted).

7

06-CV-02671

1
2
A.
3
4

III. DISCUSSION Evidentiary Issues To call the record with respect to this motion voluminous would be an

5 understatement. Plaintiffs’ motion is accompanied by ten supporting declarations
6
and a request for judicial notice. Defendant’s opposition is supported by two
7
8 declarations and is accompanied by 75 objections to Plaintiffs’ evidence as well as

9 opposition to Plaintiffs’ requests for judicial notice. (Doc. 189.) Plaintiffs have filed
10
objections to each of Defendant’s declarations as well. (Docs. 192-4, 192-5.)
11
12 Defendant’s objections to Plaintiff’s supporting declarations (Docs. 189-9 to 189-15)

13 prompted over a dozen separate replies from Plaintiffs (Docs. 192-207). As a

14
preliminary matter, the Court addresses these requests and objections.
15

16

1. Requests for Judicial Notice & Objections to Expert Declarations

17

Plaintiffs ask the Court to take notice, pursuant to Rule 201(b) of the Federal

18
Rules of Evidence, of seven exhibits consisting of documents filed in the related
19

20 individual action, Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. (Doc.

21 183-6.) Rule 201 provides an avenue for the Court to take judicial notice of
22
reasonably indisputable adjudicative facts. It is not typically a mechanism for
23
24 acknowledging the content of filings in other proceedings, however. M/V American

25 Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (“As
26
a general rule, a court may not take judicial notice of proceedings or records in
27
28 another cause so as to supply, without formal introduction of evidence, facts essential

8

06-CV-02671

1 to support a contention in a cause then before it.”). The Court therefore takes notice
2
that the individual Antoninetti proceeding exists and that these documents are filed in
3
4 the docket of that case (No. 05-cv-1660-BTM-WVC). See generally U.S. ex rel

5 Robinson Rahcheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
6
1992) (“[W]e ‘may take notice of proceedings in other courts, both within and
7
8 without the federal judicial system, if those proceedings have direct relation to

9 matters at issue.’”); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank,
10
136 F.3d 1360, 1364 (9th Cir. 1998); Recent Past Pres. Network v. Latschar, 701 F.
11
12 Supp. 2d 49, 55 (D.D.C. 2010).

13

Plaintiffs’ request encompasses three “expert declarations” of Richard Pearl.

14
(Doc. 183, Exs. 4, 5, 6.) As Defendant points out, the Court cannot consider the
15

16 substance of the declarations as evidence by taking judicial notice of their filing in

17 another case. Baker v. Cal. Dep’t of Corrections, 484 F. App’x 130, 132 (9th Cir.
18
2012). Rule 702 provides the proper avenue for the admission of such declarations.2
19
20 For example, in Stonebrae, L.P. v. Toll Bros., No. 08-221, 2011 U.S. Dist. LEXIS

21 39832, 9-12 (N.D. Cal. Apr. 7, 2011), a case wherein Mr. Pearl provided an expert
22
declaration (and references here), his declaration was admitted as expert testimony
23

24

25

2 Under Rule 702, a witness qualified as an expert in "scientific" knowledge may testify thereto if: "(1) the testimony is based upon sufficient facts or data; (2) the

26

testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods to the facts of the case." Fed. R. Evid. 702. In

27

response to an objection, the Court conducts a preliminary assessment to ensure, in essence, that the expert’s analysis amounts to “good science.” Daubert v. Merrell Dow

28

Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) ("Daubert II") (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993)); Kennedy v. Collagen Corp.,

161 F.3d 1226, 1228 (9th Cir. 1998).

9

06-CV-02671

1 under Rule 702. Although Defendant objects to the relevancy of some data Mr. Pearl
2
relies upon, the Court finds, based in part upon Plaintiffs’ response (Doc. 193-1), that
3
4 Mr. Pearl’s declarations satisfy the threshold requirements. See generally Levi

5 Strauss v. Abercrombie & Fitch Trading Co., 2008 U.S. Dist. LEXIS 87625, *22
6
(N.D. Cal. Oct. 16, 2008) (noting that, so long as the data are reliable,
7
8 methodological deficiencies go to "the weight to be accorded the survey, rather than

9 its admissibility.") (citing Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir.
10
1997)). The Court likewise finds that the Declaration of William M. Hensley
11
12 (“Hensley Decl.”) satisfies Rule 702 and overrules Plaintiffs’ general objections

13 thereto (Doc. 192-5 at 1-3).

14
2. Objections to Timekeeper & Billing Records
15

16

Defendant objects, inter alia, to Exhibits 13, 14, 15, and 16 to the Declaration

17 of Amy B. Vandeveld (Doc. 185) (“Vandeveld Decl.”). Ms. Vandeveld asserts that
18
Exhibit 13 evidences costs and litigation expenses incurred in the individual actions
19
20 as well as the class actions, and that she advanced these costs. (Vandeveld Decl.

21 ¶45.) She states that Exhibit 14 is “[m]y billing statement for the Antoninetti class
22
action . . . . To the best of my knowledge, the billing statement accurately reflects
23
24 the time I invested, and the costs and expenses incurred, in that case.” (Id. ¶46.) So

25 too with Exhibit 15 (Perkins class action) and Exhibit 16 (Antoninetti individual
26
cases). (Id. ¶¶47, 48.) Finally, Plaintiffs’ attorneys state that their billing records are
27
28 based upon “contemporaneously kept timesheets.” (Amy Vandeveld Reply Decl.,

10

06-CV-02671

1 Doc. 192-2 at 33; Thomas Vandeveld Reply Decl. ¶3., Doc. 192-1.) The Court finds
2
that these statements, paired with the affirmation under penalty of perjury, are
3
4 sufficient to satisfy the personal knowledge and authentication requirements of Rules

5 602 and 901, and overrules the objections. The hearsay objections are also
6
overruled, as deficiencies in the movants’ filings were cured by their reply
7
8 declarations such that the billing records fall within the business records exception to

9 the hearsay rule. See Davis v. City of San Francisco, 976 F.2d 1536, 1542 (9th Cir.
10
1992); New Eng. Tech., Inc. v. Sigma Tech Sales, Inc., 2010 U.S. Dist. LEXIS
11
12 111102 (S.D. Fla. 2010).

13

3. Remaining Objections

14
The parties raise numerous other objections based on rules 402, 403, 602, 802,
15

16 901, and 1002 of the Federal Rules of Evidence. The parties identify no real

17 prejudice as to admissibility, nor do they cite any authority sustaining, e.g., a Rule
18
403 objection in the context of a motion for fees and costs. The Court overrules the
19
20 objections to Mr. Pearl’s declarations as well as Mr. Hensley’s declaration because

21 an expert witness may rely upon otherwise inadmissible evidence as a basis for an
22
expert opinion if it is reasonable for an expert in the field to do so. See Fed. R. Evid.
23
24 703; see also Fed. R. Evid. 1004. The Court need not expressly reach the remaining

25 objections because they pertain to materials it does not rely upon in reaching its
26
decision. Cf. SEC v. Pattison, No. 08-4238, 2011 U.S. Dist. LEXIS 22398 (N.D.
27
28 Cal. Feb. 22, 2011) (declining to exercise discretion to strike, “since the declaration

11

06-CV-02671

1 is not completely devoid of relevant factual statements, the undersigned is capable of
2
parsing through it, and the SEC has not identified any prejudice.”).
3
4 B. Reasonable Hourly Rate

5

Plaintiffs’ award request is based upon hourly rates of $525 and $620 for Mr.

6
and Ms. Vandeveld, respectively. The Court specifically addressed the proper hourly
7

8 rate for Ms. Vandeveld in its July 17, 2012 Order in the individual Antoninetti case,

9 finding $400 to be an appropriate rate. (No. 05-1660, Doc. 377 at 10-11.) The Court
10
factored in her expertise and success on appeal, and included an upward adjustment
11
12 for the contingency nature of the fee and the extended litigation period. Due to the

13 overlapping work and substantial similarity between the parties, the claims, and the
14
attorneys involved—each is virtually identical at all relevant times—the Court adopts
15
16 its prior analysis here.3 The Court finds the same hourly rate is reasonable for Mr.

17 Vandeveld.
18
The Court finds insufficient evidence that there was an intervening change in
19
20 the local prevailing rate for disability litigation services (aside from an increase

21 attributable to inflation) during the relevant period. The Court will, however, adjust
22
the recoverable rate to account for inflation. Mr. Pearl and Mr. Hensley agree that
23
24 there has been an increase, apparently attributable to inflation, in hourly rates. See

25

26

3 As Plaintiffs emphasize, the Ninth Circuit awarded the requested rate of $475-

27

$500/hr for the same attorneys involved in the appeal of the individual Antoninetti case. There, however, Defendant failed to introduce rebuttal evidence as to the requested

28

rates, depriving the panel of the benefit of Mr. Hensley’s affidavit. (No. 05-1660, Doc. 382 at 14.) With respect to the pending motion, by contrast, Mr. Hensley’s opinion is

properly before the Court.

12

06-CV-02671

1 Hensley Decl. ¶¶10, 13, 14B, 18 (opining that the prevailing local hourly rate for
2
ADA work is in the range of $375 to $425). The Court will increase the awarded
3
4 rate by five percent. This bump is based upon Mr. Pearl’s estimate of a 5.1%

5 increase in 2011. (Pearl Decl., Ex. B). The Court will accordingly calculate the
6
lodestar using hourly rates of $420 for Plaintiffs’ counsel. The Court finds that
7
8 Plaintiffs’ requested rated of $125 per hour for time spent on tasks typically

9 performed by a paralegal to be reasonable.

10
C. Time
11

12

During the time period at issue, the parties engaged in negotiations and motion

13 practice before this Court. Plaintiffs’ counsel also identified and reached out to the
14
named plaintiffs. Plaintiffs submit declarations of Amy Vandeveld (“A.V. Decl.”),
15
16 lead counsel, and Thomas Vandeveld (“T.V. Decl.”) as evidence of the time worked

17 on this case and costs incurred. (Doc. 184.) Defendants submit the declaration of
18
their lead counsel, David R. Sugden (“Sugden Decl.”), and the declaration of their
19
20 expert, William M. Hensley (“Hensley Decl.”), in opposition to Plaintiffs’ request.

21

Plaintiffs’ counsel seeks compensation for 2,033.2 hours of work—494.4

22
expended by Thomas Vandeveld, and 1,538.8 by Amy Vandeveld. (T.V. Decl., Ex.
23

24 8; A.V. Decl., Exs. 14-16; T.V. Supp. Decl., Ex. 1.) Defendant accuses Plaintiffs’

25 counsel of treating this case as a “cash cow,” “milking it” for fees. See generally
26
Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d 756, 759 (S.D.W.Va. 2009)
27
28 ("[W]hen the lodestar method is applied, class counsel has an incentive to

13

06-CV-02671

1 “over-litigate” or draw out cases in an effort to increase the number of hours used to
2
calculate their fees."). The Court may apply an across-the-board “haircut” to “trim
3
4 the fat” where, as here, the requested award is excessive. Moreno v. City of

5 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (a "district court can impose a
6
small reduction, no greater than 10 percent — a "haircut" — based on its exercise of
7
8 discretion and without a more specific explanation"). Defendant, however, asks the

9 Court to apply much deeper cuts. Specifically, Mr. Hensley contends that the Court
10
should strike 75% of that time (before applying a further 60% reduction) due to, e.g.,
11
12 needless litigation, duplicative billing, excessive research time, insufficient

13 supporting records, and inefficiency. (See, e.g., Hensley Decl. ¶30.) Mindful of
14
these arguments as well as the unusual procedural posture and parallel litigation
15
16 across three cases here, the Court turns to the record.

17

1. Unreasonable or Unnecessary Litigation

18
The parties vigorously dispute whether time was reasonably spent litigating
19

20 the terms of injunctive relief after the Ninth Circuit mandate in the individual

21 Antoninetti case. The parties argued this point before the Court on November 16,
22
2010, and the Court expressed skepticism as to Plaintiffs’ purported need to secure
23
24 an admission of liability and declaratory relief. (Sugden Decl., Ex. A 18:19-21, 21:8-

25 9, 23:21-24, 24:4-11.) On January 13, 2011, Defendant’s counsel confirmed that
26
Chipotle’s Encinitas and Pacific Beach locations had lowered their walls in January
27
28 2009. (Sugden Decl., Ex. R.) Mr. Sugden also proposed a stipulated injunction,

14

06-CV-02671

1 though it was not entirely clear what the scope of that proposal was at the time. On
2
July 3, 2012, the parties again argued the point before the Court at a hearing on fees
3
4 in the individual Antoninetii case. (Sugden Decl., Ex. B 50-55.)

5

Plaintiffs moved for class certification on April 18, 2011, arguing that a

6
statewide class was appropriate. (Doc. 88.) On August 28, 2012, the Court denied
7

8 that motion, finding that the claim for injunctive relief was moot (even after

9 considering the voluntary cessation exception) in light of the Ninth Circuit ruling, the
10
failure to establish the presence of a high counter wall in any California Chipotle
11
12 since 2009, and Defendant’s evidence that no Chipotle in the state had counter walls

13 over 36 inches. (Doc. 145.) The Court also rejected Plaintiffs’ argument that their
14
claims for declaratory relief were not moot, because Chipotle had been held in
15
16 violation of the ADA by the Ninth Circuit and was collaterally estopped from re-

17 litigating the issue. (Id. at 5.)
18
Defendant avers that Plaintiffs’ counsel knew that the offending condition at
19
20 the Pacific Beach and Encinitas restaurants had been remedied by July 2010, when

21 the Ninth Circuit remanded the individual Antoninetti case with instructions to enter
22
an injunction. (Opp’n at 6-7.) For this reason, Defendant argues that the Court
23
24 should disallow recovery for time spent after July 2010. It appears that Defendant’s

25 counsel informed Ms. Vandeveld of the remedial actions on August 9, 2010. (A.V.
26
Decl. ¶¶28, 38.) Defendant has also shown that, by January 2011, each
27
28 representative plaintiff in the class actions had seen for themselves that the walls at

15

06-CV-02671

1 been lowered at the restaurants they had visited. (Opp’n 7-8.)
2
Yet Plaintiffs’ counsel had more work to do on the putative class actions
3
4 following remand of the individual Antoninetti case. As Plaintiffs point out, the

5 scope of Defendant’s remedial actions was uncertain or unconfirmed through early
6
2011. And in addition to negotiating a settlement as to damages, Plaintiffs’ counsel
7
8 had to confirm that the offending condition was remedied at the relevant locations,

9 and was unlikely to recur, before accepting a stipulated settlement and dropping the
10
case. The Court will accordingly exclude hours for time wasted litigating these
11
12 issues, but not going all the way back to July 2010. Rather, it will credit reasonable

13 time spent pursuing class certification, declaratory relief, and injunctive relief
14
through January 18, 2011,4 when it should have been clear that further pursuit of
15
16 injunctive relief and class certification was fruitless because Defendant had

17 confirmed relief as to two locations at issue as of that time. Although Defendant did
18
not provide confirmation as to all of its California restaurants at that time, the Court
19
20 is skeptical of the time spent belaboring these points thereafter.

21

Upon review of the billing statements, the Court finds that, with the partial

22
exception of time spent on class certification issues, there is no clear way to reliably
23

24 parse out different claims or litigation activities, e.g., pursuit of injunctive or

25 declaratory relief as opposed to damages. The billing records indicate that Ms.
26

27

28

4 The email from Defendant’s counsel concerning the remedial measures was sent on January 13, 2011, and Ms. Vandeveld’s invoice reflects that she reviewed the attached

document on January 18, 2011.

16

06-CV-02671

1 Vandeveld spent over 242 hours on class certification issues (and a related motion
2
for reconsideration) separate and apart from other work for the individual plaintiffs
3
4 (this figure does not include time spent on discovery, depositions, or preparing

5 declarations). Some 194.8 of those hours were spent working on class certification
6
issues between January 18, 2011 and January 14, 2013. Mr. Vandeveld also spent at
7
8 least 91.4 hours just on class certification issues, 62.4 of which were between

9 January 18, 2011 and June 21, 2013.
10
Mr. Hensley suggests that the Court exclude 179.1 hours of Mr. Vandeveld’s
11
12 time and 228.1 hours of Ms. Vandeveld’s time for unnecessary work or excessive

13 time generally, and with respect to class certification in particular. (See Hensley
14
Decl. ¶¶28E, 30D.) Upon review of the billing records, the Court agrees in part with
15
16 Mr. Henley’s recommendation and finds it appropriate to exclude time on that basis.

17 More specifically, the Court finds that time spent on class certification after January
18
18, 2011 was excessive and unnecessary. The Court accordingly excludes the
19
20 following time spent on class certification from the lodestar: 194.8 of Ms.

21 Vandeveld’s hours and 62.4 of Mr. Vandeveld’s hours. The Court finds the
22
remaining time (approximately 77 hours) spent on class certification to be reasonable
23
24 and includes it in the lodestar.

25

2. Fees on Fees

26
Reasonable fees and costs associated with the pursuit of attorneys’ fees are
27

28 generally recoverable. McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir.

17

06-CV-02671

1 1995). Plaintiffs request compensation for over 265 hours spent on the pending
2
motion. Mr. Vandeveld’s billing report reflects some 59.6 hours spent on the
3
4 motion, including preparing the moving papers. In a supplemental declaration, Mr.

5 Vandeveld states that he spent an additional 75.5 hours responding to hundreds of
6
pages filed in opposition to the motion. (T.V. Supp. Decl. (Doc. 207) ¶2.) Ms.
7
8 Vandeveld billed 132 hours at a paralegal rate of $125 per hour for time spent

9 preparing papers, e.g., billing records, related to the pending motion. Relying on the
10
opinion of Mr. Hensley, Chipotle argues that this amount of time is unreasonable
11
12 because, e.g., previous fees motions could have been used as templates.

13

Even factoring in the need to respond to objections, this amount of time is

14
beyond the pale, especially at Mr. Vandeveld’s rate. See Doran v. Disability Rights
15

16 Enforcement Educ. Servs., 360 F. Supp. 2d 1057, 1062 (N.D. Cal. 2005) (reducing

17 award for time spent on fee application where “many of the[] same tasks could have
18
been achieved by referring to previous cases”). Ms. Vandeveld billed at least 125.8
19
20 paralegal hours preparing billing statements from September to November 2013.

21 This involved transferring information from timesheets into billing software and
22
“cross-checking files to ensure all time was captured.” (A.V. Reply Decl. at 33, Doc.
23
24 192-2.) The Court finds much of this work to be duplicative and inefficient, and

25 therefore deducts 35.1 hours from Mr. Vandeveld’s bills and 72 hours from Ms.
26
Vandeveld’s bill, limiting recovery for time related to the motion sub judice to 100
27
28 attorney hours and 60 paralegal hours. The Court believes this provides proper

18

06-CV-02671

1 compensation while minimizing the incentive to dwell on a fee motion. See
2
generally Cruz v. Starbucks Corp., 2013 U.S. Dist. LEXIS 79231, 2013 WL
3
4 2447862, *8 (N.D. Cal. June 5, 2013) (applying a 50% reduction to time spent on fee

5 motion); Hernandez v. Grullense, 2014 U.S. Dist. LEXIS 61020, 2014 WL 1724356,
6
*13-14 (N.D. Cal. Apr. 30, 2014) (applying a reduction of over 60% to time spent
7
8 preparing a fee motion); Rodriguez v. Barrita, Inc., 2014 U.S. Dist. LEXIS 90021,

9 *25 (N.D. Cal. July 1, 2014) (limiting recovery for fees on fees in disability access

10
case to 98.5 combined attorney and paralegal hours).
11

12

3. Duplicative and Excessive Billing

13

Counsel should exercise billing judgment in a good faith effort to exclude

14
unnecessary time from a fee application. Hensley, 431 U.S. at 437. See also
15

16 Rosenfeld v. United States DOJ, 903 F. Supp. 2d 859, 877 (N.D. Cal. 2012).

17 Defendant argues that much of the time billed by Plaintiffs’ counsel is duplicative or
18
excessive, and that Plaintiffs’ billing records do not indicate any reduction for
19
20 inefficiency, waste, or duplication of effort. (Some, but not all, of the billing entries

21 Defendant complains of have already been addressed by the Court’s striking of
22
unreasonable time spent on class certification, supra.) For example, Mr. Hensley
23
24 opines, and the Court agrees, that Ms. Vandeveld billed 24.9 hours in 2010 on work

25 related to jurisdiction over Perkins that was duplicative of work performed in the
26
Antoninetti class action. (A.V. Decl. Ex. 15, 9-11; Hensley Decl. 38-39, ¶30D.)
27
28 //

19

06-CV-02671

1

4. Excessive & Inadequately Documented Conferencing

2
Defendant contends that Plaintiffs’ billing records reflect an excessive amount
3

4 of conferencing between Plaintiffs’ counsel as well as with potential witnesses.

5 (Hensley Decl. ¶28C.) The Court agrees that the following entries in Mr.
6
Vandeveld’s bill are excessive or inadequately explained: (1) .7 hours on August 20,
7
8 2010, (2) .4 hours on August 26, 2010 for an uncorroborated call with Ms.

9 Vandeveld, (3) 2.2 hours spent traveling to meet and meeting with Ms. Vandeveld on
10
October 1, 2010, which are uncorroborated by her billing entries for that day, and (4)
11
12 1.2 hours on February 1, 2013 as excessive and uncorroborated. The Court strikes

13 (5) 1.8 hours from Mr. Vandeveld’s bill for October 1, 2010 for time spent traveling
14
to and attending what was recorded in Ms. Vandeveld’s invoice as a 24 minute
15
16 meeting.

17

5. Administrative/Clerical/Paralegal Tasks

18
Defendant argues that Plaintiffs’ counsel overbills for time spent providing
19

20 notice to putative class members. (See, e.g., Hensley Decl. ¶30H.) Some time spent

21 preparing and distributing notices does appear to be excessive, and there is no
22
indication that Plaintiffs’ counsel applied billing judgment to reduce their fees in any
23
24 way. The Court will accordingly adjust the rate for 98.9 hours Amy Vandeveld spent

25 contacting, corresponding with, or gathering basic information from potential
26
witnesses and class members by assigning that time a paralegal rate of $125 per hour.
27
28 See generally Davis v. City of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992),

20

06-CV-02671

1 vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993) (“It is simply not
2
reasonable for a lawyer to bill, at her regular hourly rate, for tasks that a non-attorney
3
4 employed by her could perform at a much lower cost.”). The Court will also adjust

5 17.3 hours spent communicating notice in July 2013 to the same paralegal rate. An
6
appendix correlating these adjustments to the billing records is appended hereto.
7
8 D. Discretionary Reduction

9

Each side accuses the other of dragging out settlement negotiations. Mr.

10
Hensley also suggests that virtually all of the time Ms. Vandeveld spent on the case
11

12 from September 6, 2012 to November 1, 2013 was unnecessary. (See Doc. 189-3 at

13 164-171.) The Court declines to exclude settlement activities from the lodestar
14
beyond the adjustments made to time spent drafting materials or providing notice.
15
16 The Court credits most of Plaintiffs’ time spent negotiating a settlement and

17 satisfying notice requirements.
18
After applying these exclusions, the lodestar amounts to 1,461.5 attorney hours
19
20 and 176.2 paralegal hours. A discretionary reduction to the lodestar is one way to

21 address remaining shortcomings in the billing records, e.g., vague timekeeper entries
22
that make it difficult to discern how much time was spent needlessly. See In re
23
24 Smith, 586 F.3d 1169, 1174 (9th Cir. 2009) ("[T]he district court has the authority to

25 make across-the-board percentage cuts . . . in the number of hours claimed . . . as a
26
practical means of trimming the fat from a fee application.") (citation omitted);
27
28 Rosenfeld v. United States DOJ, 903 F. Supp. 2d 859, 877 (N.D. Cal. 2012). To the

21

06-CV-02671

1 extent Defendant requests that the Court apply a further reduction on that basis, the
2
Court declines to do so.
3
4 E. Lodestar Calculation

5

TABLE 1: HOURLY RATES

6

7

Timekeeper

Hourly Rate Billed Hourly Rate Awarded

8

Amy Vandeveld $620

9

Thomas Vandeveld $525

10
Paralegal
11

$125

$420 $420 $125

12

TABLE 2: TIME

13

14

Timekeeper

Time Billed

Reasonable Time

15

Amy Vandeveld 1,406.8 hours

1,070.9 hours

16

(attorney rate)

17

Thomas Vandeveld 494.4 hours

390.6 hours

18

Paralegal

132 hours

176.2 hours

19
TABLE 3: LODESTAR
20

21

Reasonable Reasonable Lodestar

22

Hours

Hourly Rate

23

Amy Vandeveld

1,070.9

$420

$449,778

24

Thomas Vandeveld 390.6

$420

25

Paralegal

176.2

$125

26

$164,052 $22,025

LODESTAR
27

$ 635,855

28

22

06-CV-02671

1 F. Adjustment to Lodestar
2
The Court next considers the Kerr factors to determine whether an adjustment
3
4 to the lodestar is appropriate.5 Several factors have already been considered in

5 calculating the lodestar, including the requisite skill for this type of legal service, the
6
contingent nature of the fee, the customary fee charged in this region for this type of
7
8 service, the experience and skill of Plaintiffs’ counsel, and awards in similar cases.

9 These factors are not reconsidered in adjusting the lodestar. Hensley, 461 U.S. at
10
436-37. The parties have not suggested that there was a relevant time constraint
11
12 imposed by the clients or the circumstances of the case. The Court accordingly

13 focuses herein on the remaining factors: the amounts involved and the results

14
obtained.
15

16

1. Plaintiffs’ Request for an Upward Multiplier

17

California’s Unruh Civil Rights Act provides for a lodestar “multiplier” where

18
the litigation involved a contingent risk or required extraordinary legal skill
19

20 justifying augmentation of the lodestar to approximate the fair market rate for the

21 services provided. See Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). Although
22
the Plaintiff undertook the risk and expense of litigating on a contingent basis over
23
24 an extended period, the Court has already accounted for that factor in its calculation

25 of the attorneys’ reasonable rate. (See No. 05-1660, Doc. 377 at 10-11, Order

26

27

5 Defendant does not argue that class certification, injunctive relief, or

declaratory judgment constitute unrelated claims here, and the Court does not treat

28 those failed pursuits as unrelated, unsuccessful claims. See Supler v. Fkaacs, Inc., No.

11-cv-229, 2013 U.S. Dist. LEXIS 178101, *15-16 (W.D.N.C. Dec. 19, 2013).

23

06-CV-02671

1 enhancing hourly rate from $375 to $400 “because of the contingency nature of the
2
fee and the extended length of the litigation.”) The Court finds no basis for finding
3
4 that the representation of the individuals in the Perkins action presented “rare and

5 exceptional” factors warranting a further enhancement under California law since it
6
resulted in a relatively modest settlement in relation to the time expended and
7
8 because the success of the individual claims was not legally or procedurally

9 complicated in light of the Ninth Circuit ruling in Antoninetti. See Fisher v. SJB-

10
P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000).
11

12

Plaintiffs urge the Court to multiply the loadstar by a factor of 1.5, “which

13 reflects the time involved, the risk involved, and the outstanding success obtained.”
14
(Mot. at 9.) According to Plaintiffs, the additional cases formed a catalyst or
15
16 motivating factor that substantially contributed to Chipotle’s policy change and

17 adjustment of wall heights statewide. Due to the timing of the Ninth Circuit ruling as
18
well as Chipotle’s policy change and elimination of the offending counter walls, the
19
20 Court disagrees. To qualify under a “catalyst” theory, Plaintiffs must establish that

21 their lawsuits (1) motivated the defendant to provide the primary relief sought, and
22
(2) had merit and “achieved its catalytic effect by threat of victory, not by dint of
23
24 nuisance and threat of expense.” Tipton-Whittingham v. City of Los Angeles, 34

25 Cal. 4th 604, 608 (2004).
26
The Court acknowledges that Plaintiffs successfully obtained $10,000 in
27
28 damages for each individual defendant. Beyond that, the Court rejects Plaintiffs’

24

06-CV-02671

1 argument. Plaintiffs have not demonstrated that the class litigation had a synergystic
2
effect that yielded better results for the plaintiffs, or any additional nonmonetary
3
4 relief at all. By their own admission, Plaintiffs’ counsel made a tactical decision that

5 enabled them to test the waters with the individual case while the putative class
6
actions were stayed. (See, e.g., Sugden Decl., Ex. B 36:24-37:2 (July 3, 2012 Hr’g
7
8 Tr.) (“And the other thing . . . that was really important in [the individual Antoninetti]

9 case was the declaratory relief that the plaintiff obtained because that will have an
10
impact in the class action case . . . .”) Plaintiffs’ counsel was so successful that they
11
12 not only reduced the risks associated with class litigation, they effectively eliminated

13 the need for it. Mr. Antoninetti’s win effectively secured the relief sought by the
14
putative class members. If Plaintiffs’ counsel had not already been compensated for
15
16 that feat, the situation would be different. But they have been, and the Court

17 accordingly finds that an enhancement is unwarranted. On this record, any other

18
ruling would countenance double-dipping.
19

20

2. Defendant’s Request for a Downward Multiplier

21

The court should reduce the award if "the relief, however significant, is

22
limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at
23

24 439-40. In considering the extent of the relief obtained, the court "compare[s] the

25 amount of damages sought to the amount awarded." Mercer v. Duke Univ., 401 F.3d
26
199, 204 (4th Cir. 2005). Chipotle asks the Court to reduce the lodestar by 60%
27
28 based on limited success. With respect to the degree of success, the Court considers

25

06-CV-02671

1 “the significance of the overall relief obtained by the plaintiff in relation to the hours
2
reasonably expended . . . .” McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th
3
4 Cir. 2009). In evaluating the degree of success, the Court may consider, but is not

5 limited to, the following factors: the amount and nature of claims the Plaintiff
6
prevailed on compared to those that were dismissed, the amount of damages awarded
7
8 compared to the amount sought, the amount of damages awarded relative to the

9 amount of attorney’s fees sought, and whether the suit conferred a benefit on the
10
public. See id. at 1104-05; McGinnis v. Kentucky Fried Chicken of California, 51
11
12 F.3d 805, 810 (9th Cir. 1994). Determining an appropriate reduction of the fee

13 request is not a scientific matter. Skaff v. Le Meridien, 2008 U.S. Dist. LEXIS
14
123537, *31-32 (C.D. Cal. Aug. 29, 2008). “Rather, it is a calculation based on
15
16 experience and good sense in light of the factual record.” Id. See also Schwarz v.

17 Sec'y of Health & Human Servs., 73 F.3d 895, 904-05 (9th Cir. Or. 1995) (affirming
18
75% reduction of time based on the success of only one of four claims); Harris v.
19
20 Marhoefer, 24 F3d 16, 17 (9th Cir. 1994) (affirming 50% reduction based on the

21 number of successful versus unsuccessful claims). For the reasons outlined below,

22
the Court finds that Plaintiffs’ success was limited in relation to the time expended.
23

24

Plaintiffs’ initial complaint alleged six counts, including a consumer protection

25 claim and tort claims that were dropped in 2011. Consequently, the settlement, as
26
relevant here, is based on the remaining two counts: the ADA and Unruh Act claims.
27
28 Plaintiffs sought monetary relief for the named plaintiffs as well as a class of persons

26

06-CV-02671

1 similarly situated that was estimated to be some 393,000 Californians (allowing for
2
repeat customers). (Pls.’ Mot. for Class Cert. at 11, Doc. 88-1.) As mentioned
3
4 supra, the Court denied class certification on those claims. Although Plaintiffs’

5 counsel secured an excellent monetary award with respect to each individual
6
plaintiff, the plaintiffs here enjoy no nonmonetary benefit that they did not have
7
8 following the Ninth Circuit ruling in the individual Antoninetti case. See Betancourt

9 v. Giuliani, 325 F. Supp. 2d 330, 330-31, 335 (S.D.N.Y. 2004) (reducing plaintiff's
10
attorney fee award where his civil rights class action failed to obtain much relief
11
12 sought, including the certification of a class).

13

While the Antoninetti litigation conferred a benefit on the public, that benefit

14
arose principally from the work leading to the Ninth Circuit ruling, not from this
15

16 case. There has been no such nonmonetary success in the cases relevant here. The

17 Court accordingly finds that the putative class actions were only partly successful.
18
Plaintiffs’ request for fees amounting to over seven times the amount of relief
19
20 obtained is thus unwarranted.

21

In Antoninetti, this Court entered a 25% reduction based upon the failure of

22
plaintiff’s claim for damages arising from litigation-related visits. (No. 05-1660,
23

24 Doc. 377 at 6 n.4.) Here, the results are also mixed—the damages claims

25 successfully resulted in $10,000 payouts totaling $225,000, but Plaintiffs dropped
26
their tort claims in 2011, and their the pursuit of declaratory relief, class certification,
27
28 and an injunction failed. Thus, the work performed by Plaintiffs’ counsel in the

27

06-CV-02671

1 putative class actions failed to obtain relief for any putative class members beyond
2
those individually named. Because Plaintiffs could have achieved the same result
3
4 without their post-remand pursuit of class certification, injunctive relief, and a

5 declaratory judgment, a large amount of time spent on the case at issue here was not
6
“reasonably necessary to obtain the relief that was ultimately obtained.” Rodriguez,
7
8 2014 U.S. Dist. LEXIS 90021, *40 (quoting Velez v. Wynne, 220 F. App’x 512, 513

9 (9th Cir. 2007)). For these reasons, the lodestar is excessive relative to the success
10
achieved by these plaintiffs, even after striking the excessive time spent on class
11
12 certification. The Court therefore applies a fifty percent reduction to the lodestar and

13 will enter a total fee award of $317,927.50.6 See Supler, 2013 U.S. Dist. LEXIS
14
178101, *15-16 (reducing award by 50% where “the individual plaintiff enjoyed a
15
16 good deal of success [but] the proposed class did not”); Dodson v. Dollar Tree

17 Stores, Inc., 2006 U.S. Dist. LEXIS 90416, 12-14 (E.D. Cal. Dec. 13, 2006)
18
(reducing fee award "by 3/7, or forty three percent, to account for [the plaintiff's]
19
20 limited success" where he prevailed on four of seven claims "[b]ecause it is

21 impossible to apportion attorneys' fees between the unsuccessful claims from the
22

23

24

6 In calculating this reduction, the Court is mindful to avoid double-cutting. See

Cabrales v. Cnty. of Los Angeles, 864 F.2d 1454, 1465 (9th Cir. 1988)

25 (“Mathematically, it is inconsequential whether the lodestar figure itself is adjusted for

lack of success or whether the reasonable hours component of the lodestar is adjusted

26 for lack of success. What matters is that the district court did not ‘count’ for lack of

success twice.”). An adjustment is appropriate at both stages of the analysis here

27 because the billing records present reasonably clear criteria for striking unreasonable

time with respect to class certification (257.2 of over 333 hours) from the lodestar, but

28 not as to the unsuccessful pursuit of other claims, injunctive relief, or declaratory relief.

28

06-CV-02671

1 successful claims with any degree of certainty"). See also Coyne v. Reliance Std.
2
Life Ins. Co., 2003 U.S. Dist. LEXIS 26696 (C.D. Cal. Dec. 16, 2003) (applying a
3
4 50% reduction for limited success); Zook v. Brown, 865 F.2d 887, 896 (7th Cir.

5 1989) (reducing number of hours by 75% for “limited results”). This amounts to
6
over 140% of the $225,000 obtained for Plaintiffs. This adjustment thus reflects that,
7
8 while counsel achieved excellent results for each individual client, a great deal of

9 time spent litigating the case was out of proportion to the ultimate result and not
10
reasonably necessary to obtain that result. See Velez, 220 F. App’x at 512;
11
12 Rodriguez, 2014 U.S. Dist. LEXIS 90021, *44.

13

G. Bill of Costs

14
Plaintiffs’ request an award of litigation expenses and costs in the amount of
15

16 $19,824.77. That request is supported by expense reports accompanying the

17 declarations of Plaintiffs’ counsel. Defendant does not oppose this request. The
18
Court accordingly finds the requested amount to be adequately documented and
19
20 reasonable under the circumstances.

21

IV. CONCLUSION

22
The Court has carefully considered Plaintiffs’ motion for attorneys’ fees and
23

24 costs in light of the Kerr factors, including the time required, the novelty and

25 difficulty of the questions involved, and the results obtained. Having done so, the
26
motion is hereby GRANTED in part and DENIED in part. It is accordingly
27
28 ORDERED that Plaintiffs are awarded attorneys’ fees and costs totaling

29

06-CV-02671

1 $337,752.27. This award includes $317,927.50 in attorneys’ fees and $19,824.77 in
2
costs. The Clerk of Court shall enter judgment (as to fees, costs, and expenses) for
3
4 Plaintiffs in the amount of $337,752.27. As no issues remain, the Clerk shall close

5 the docket of this case.
6
IT IS SO ORDERED.
7

8

9
Dated: September 29, 2014
10
11

BARRY TED MOSKOWITZ Chief United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

06-CV-02671

APPENDIX

Amy Vandeveld Invoice: Paralegal Tasks

Paralegal Work

Hours

Page 49

0.1

Page 49

0.5

Page 49

0.1

Page 53

4.2

Page 53

3.2

Page 54

0.2

Page 54

2.1

Page 54

0.5

Page 54

3.2

Page 54

6.8

Page 54

5.2

Page 54

5.3

Page 54

1.8

Page 54

1.5

Page 54

1.6

Page 55

2.4

Page 55

0.8

Page 55

4.5

Page 56

0.5

Page 56

3.8

Page 56

1

Page 57

2.7

Page 57

4.3

Page 58

2.1

Page 58

0.5

Page 58

2.1

Page 58

1.4

Page 59

1.2

Page 59

1

Page 59

1.2

Page 63

0.7

Page 63

0.8

Page 65

0.5

Page 65

0.3

Page 65

0.7

Page 65

0.4

Page 65

0.5

Page 65

0.4

Page 65

0.5

Page 65

0.5

Page 65

0.2

Page 65

0.1

Page 65

0.4

Page 80

2.5

Page 93

0.5

Page 93

0.3

Page 93

7.4

Page 93

1.8

Page 94

0.2

Page 94

0.6

Page 94

0.1

Page 138

6.5

Page 139

10.8

Page 167

9.1

Page 156

0.3

Page 170

1

Page 171

3.3

Total

116.2

 
 Case 3:06-cv-02671-BTM-JLB Document 211 Filed 09/30/14 Page 1 of 1

United States District Court
SOUTHERN DISTRICT OF CALIFORNIA

Maurizio Antoninetti; Jean Riker; James Perkins; Karen Friedman; Michael Rifkin; Jay Rifkin; Livia Antoninetti; Leslie Robinson; Ruthee Goldkorn; Robert Vahoviak; Chris Ige, on behalf of themselves and all other similarly situated,
Plaintiffs. v. Chipotle Mexican Grill, Inc., a Delaware Corporation; DOES 1-10, Inclusive,
Defendants.

Civil Action No. 06-cv-02671-BTM-JLB
JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED:
The Court has carefully considered Plaintiffs' motion for attorneys' fees and costs in light of the Kerr factors, including the time required, the novelty and difficulty of the questions involved, and the results obtained. Having done so, the motion is hereby Granted in part and Denied in part. It is accordingly Ordered that Plaintiffs are awarded attorneys' fees and costs totaling $337,752.27. This award include $317,927.50 in attorneys' fees and $19,824.77 in costs. The Clerk of Court shall enter judgment (as to fees, costs, and expenses) for Plaintiffs in the amount of $337,752.27. As no issues remain, the Clerk shall close the docket of this case.

Date:

9/30/14

CLERK OF COURT JOHN MORRILL, Clerk of Court By: s/ R. Uran
R. Uran, Deputy

 
 Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 1 of 19
EXHIBIT A

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 2 of 19

1 Amy B. Vandeveld, SBN 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 Plaintiffs 5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI, et al,
12 Plaintiffs,
13 v.
14
CHIPOTLE MEXICAN GRILL, INC., a 15 Delaware Corporation and DOES 1-10,

CASE NO. 06cv2671 BTM (WMc)
SECOND AMENDED COMPLAINT
DEMAND FOR JURY TRIAL

16 Defendants.

17

18

19

20

INTRODUCTION

21

1. Defendant Chipotle Mexican Grill, Inc. (“Chipotle”)

22 specifically intends to provide its customers with the “Chipotle

23 Experience” in which Chipotle customers have the opportunity to

24 “build their perfect burrito,” to ask for “a little more salsa, a

25 little less guacamole,” to see the appetizing display of food

26 choices, to see into the open kitchen and to see freshly

27 marinated meats being grilled, to experience a “feast for the

28 eyes,” and to be brought “more completely into the dining
Second Amended Complaint 06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 3 of 19

1 experience.” All of these benefits and opportunities are part of

2 “the Chipotle Experience.” The Chipotle Experience is supposed

3 to be a “fast” experience, in a casual setting, consistent with

4 Chipotle’s description of its restaurants as providing “fast

5 casual” fare. Plaintiffs and the class of people with mobility

6 disabilities they represent were denied full and equal access to

7 the Chipotle Experience by Chipotle.

8

2. Chipotle originally designed and constructed its

9 restaurants in California with walls approximately 46 inches high

10 (“the walls”) located between the customers and the food ordering

11 and preparation areas, in violation of the Americans with

12 Disabilities Act (“the ADA”). The walls obstructed the view of

13 the kitchen and food preparation areas for people with mobility

14 impairments who require the use of wheelchairs or other mobility

15 devices (hereafter collectively referred to as “people in

16 wheelchairs”) and who, because of their mobility disabilities,

17 are denied full and equal access to the Chipotle Experience.

18 Those who can see over the walls have the opportunity to see into

19 the open kitchen, to see large pans of appetizing ingredients,

20 tantalizingly displayed, to see and select the specific

21 ingredients they want in their entrees, to direct the amount of

22 each of the chosen ingredients to be placed in the entrees, and

23 to watch the actual construction of their entrees. People who

24 can see over the walls can “direct” the construction of their

25 “perfect” burrito. Plaintiffs and the class of people they

26 represent, however, have no such opportunity because they cannot

27 see the food on display or the making of their entrees because of

28 the walls.

Second Amended Complaint

2

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 4 of 19

1

3. In an effort to provide the Chipotle Experience to

2 people with mobility impairments, like the Plaintiffs, Chipotle

3 adopted a policy of providing accommodations by various methods,

4 including by lifting samples of food for viewing or by having

5 entrees constructed at the cashier counter or at an adjacent

6 table. Chipotle’s policy of accommodation legally fails as

7 “equivalent facilitation,” pursuant to a ruling by the Ninth

8 Circuit Court of Appeals in Antoninetti v. Chipotle Mexican

9 Grill, Inc., 614 F.3d 971 (9th Cir. 2010).

10

4. The accommodations offered by Chipotle pursuant to its

11 policy “merely provide a substitute experience that lacks the

12 customer’s personal participation in the selection and

13 preparation of the food that the full ‘Chipotle experience’

14 furnishes.” Antoninetti, 614 F.3d 971, 979.

15

JURISDICTION AND VENUE

16

5.

The claims alleged herein arise under the Americans

17 with Disabilities Act (42 U.S.C. §§ 12131 et seq.) (“ADA”), and

18 under state claims for relief, such that the jurisdiction of this

19 Court is invoked pursuant to 28 U.S.C. §§ 1331, 1332 and 1343.

20 Through the same actions and omissions that form the basis of

21 Plaintiffs’ federal claims, Chipotle and the DOE Defendants

22 (hereinafter collectively referred to as “Defendants”) have also

23 violated Plaintiffs’ rights under state law, over which this

24 Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

25 This Court has jurisdiction over Plaintiffs’ claims for

26 declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201

27 and 2202 and Rule 65 of the Federal Rules of Civil Procedure.

28 All of the Plaintiffs are residents of the State of California.

Second Amended Complaint

3

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 5 of 19

1 Chipotle is incorporated in the State of Delaware, with its

2 principal place of business in Denver, Colorado.

3

6.

Venue over Plaintiffs’ claims is proper in the Southern

4 District of California because Defendant operates approximately

5 14 restaurants in the Southern District of California, Mr.

6 Antoninetti resided in the Southern District, Mr. Perkins wants

7 to visit Chipotle restaurants in the Southern District and

8 because the events, acts, and omissions giving rise to at least

9 two of the Plaintiffs’ claims occurred in the Southern District

10 of California.

11

PARTIES

12

7.

Plaintiffs Livia Antoninetti, as successor in interest

13 to Maurizio Antoninetti, Jean Riker, Jay Rifkin as successor in

14 interest to Michael Rifkin, James Perkins, Karen Friedman, Susan

15 Chandler, Kory Barnett, Raymond Berry, Pedro Garcia, Mimi

16 Greenberg, Michael Hanby, Rufus Martin, Jeremy McGhee, Kyle

17 Minnis, Michael Neth, Tamela Ridley, Jack Robertson, and Albert

18 G. Sayles (hereinabove and hereafter collectively referred to as

19 “the Plaintiffs”) are each individuals with physical disabilities

20 within the meaning of all applicable statutes, including the ADA,

21 42 U.S.C. § 12101, et seq., Section 504, 29 U.S.C. §794, and

22 California Civil Code § 51, et seq. All of these Plaintiffs

23 utilize wheelchairs or motorized scooters for mobility because

24 their abilities to walk and stand are substantially limited.

25

8.

This action is brought on behalf of the named

26 Plaintiffs and on behalf of all persons similarly situated. The

27 class which the Plaintiffs seek to represent is composed of all

28 persons with mobility disabilities who use wheelchairs or other

Second Amended Complaint

4

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 6 of 19

1 mobility aides, such as scooters, and who, because of their

2 mobility disabilities, have been or will be denied full and equal

3 access to the Chipotle Experience because of the walls

4 (hereinafter “the Class.”)

5

9.

Defendant Chipotle Mexican Grill, Inc., headquartered

6 in Denver, Colorado, is a corporation authorized to do business

7 and doing business within the State of California. Plaintiffs

8 are informed and believe and thereon allege that Chipotle

9 operates more than 83 restaurants within the State of California,

10 all of which are similarly designed and constructed with respect

11 to the food service lines and the walls. This case arises out of

12 Defendant’s denial of access to the Chipotle Experience to

13 customers who, because of mobility disabilities, are unable to

14 see over the walls.

15

10. The Defendants whose identities are unknown are sued

16 herein under the names DOES 1 through 10 ("DOES"). Plaintiffs

17 are informed and believe and thereon allege that all of the

18 Defendants, including the DOES, are in some manner responsible

19 for the injuries and damages herein alleged.

20

FACTS APPLICABLE TO ALL CAUSES OF ACTION

21

11. Each and every allegation set forth in each and every

22 statement of the Complaint is hereby incorporated by reference in

23 each and every other averment and allegation of this First

24 Amended Complaint.

25

12. Maurizio Antoninetti had paraplegia. He used a

26 wheelchair for mobility. In November and December of 2006, Mr.

27 Antoninetti visited the Chipotle restaurants located on Rosecrans

28 Street and at San Diego State University in San Diego,

Second Amended Complaint

5

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 7 of 19

1 California. During his visits to Chipotle restaurants, the walls

2 at the food preparation areas prevented Mr. Antoninetti from

3 seeing food on display and/or the making of his entrees. He

4 wanted to return to Chipotle’s restaurants, including other

5 restaurants in the San Diego area, and he wanted to be provided

6 with full and equal access to the Chipotle Experience. He was

7 deterred from returning to Chipotle’s restaurants because they

8 were constructed with the same wall design, which denied him full

9 and equal access to the Chipotle Experience.

10

13. Jean Riker has hemiplegia. She uses a wheelchair for

11 mobility. Ms. Riker visited the Chipotle restaurant on Capitol

12 Avenue in Sacramento, California in November of 2006. During her

13 visit to the Chipotle restaurant, the wall at the food

14 preparation area prevented Ms. Riker from seeing food on display

15 and/or the making of her entree. Ms. Riker was deterred from

16 returning to Chipotle’s restaurants because of the discrimination

17 she experienced during her visit and because of the common wall

18 design of the restaurants. She would like to return to

19 Chipotle’s restaurants and to be provided full and equal access

20 to the Chipotle Experience.

21

14. Michael Rifkin had multiple sclerosis and used a

22 motorized chair for mobility. Mr. Rifkin visited the Chipotle

23 restaurant on Victoria Avenue in Ventura, California in August of

24 2006. During his visit to the Chipotle restaurant, the wall at

25 the food preparation area prevented Mr. Rifkin from seeing food

26 on display and/or the making of his entree. Mr. Rifkin was

27 deterred from returning to any Chipotle because of the

28 discrimination he experienced during his visit.

Second Amended Complaint

6

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 8 of 19

1

15. Karen Friedman has multiple sclerosis, among other

2 disabling conditions. She uses a wheelchair or a motorized

3 scooter for mobility. She visited the Chipotle restaurant on

4 State Street in Santa Barbara, California. During her visit to

5 the Chipotle restaurant, the wall at the food preparation area

6 prevented Ms. Friedman from seeing food on display and/or the

7 making of her entree. She was deterred from returning to any

8 Chipotle restaurant because all Chipotle restaurants were

9 constructed with the same wall design, which denied her full and

10 equal access to the Chipotle Experience. She would like to

11 return to Chipotle’s restaurants and to be provided full and

12 equal access to the Chipotle Experience.

13

16. Dr. Perkins uses a wheelchair for mobility. From about

14 2006 to 2008, Dr. Perkins visited Chipotle restaurants located in

15 Ventura, Norco, Riverside, and Valencia, California. During each

16 of his visits to the Chipotle restaurants, the walls at the food

17 preparation areas prevented Dr. Perkins from seeing food on

18 display and/or the making of his entrees. Dr. Perkins would have

19 visited other Chipotle restaurants in the Ventura, San Diego, Los

20 Angeles, Riverside and Santa Barbara County areas of California,

21 but he was deterred from doing so by the high walls that

22 prevented him from seeing the food on display at those

23 restaurants previously visited by him. At all times relevant

24 herein, Dr. Perkins wanted to, and still wants to, return to

25 Chipotle’s restaurants and to be provided full and equal access

26 to the Chipotle Experience.

27

17. Susan Chandler has paraplegia and she uses a wheelchair

28 for mobility. In about 2005, she visited a Chipotle restaurant

Second Amended Complaint

7

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 9 of 19

1 in Sacramento, California. During her visit to the Chipotle

2 restaurant, the wall at the food preparation area prevented Ms.

3 Chandler from seeing food on display and/or the making of her

4 entree. She was deterred from returning to any other Chipotle

5 restaurant because all Chipotle restaurants were constructed with

6 the same wall design, which denied her full and equal access to

7 the Chipotle Experience. She would like to return to Chipotle’s

8 restaurants and to be provided full and equal access to the

9 Chipotle Experience.

10

18. Plaintiffs Kory Barnett, Raymond Berry, Pedro Garcia,

11 Mimi Greenberg, Michael Hanby, Rufus Martin, Jeremy McGhee, Kyle

12 Minnis, Michael Neth, Tamela Ridley, Jack Robertson, and Albert

13 G. Sayles are each individuals with physical disabilities within

14 the meaning of the ADA. Each of these Plaintiffs were denied full

15 and equal access to the Chipotle Experience at a restaurant

16 operated by Defendant in California because of the design of the

17 walls at the restaurants’ ordering lines.

18

19. As a result of the above, Defendants have failed to

19 comply with federal requirements not to discriminate against

20 people with disabilities, as set forth in Antoninetti v. Chipotle

21 Mexican Grill, Inc., 614 F.3d 971 (9th Cir. 2010). Chipotle was

22 and is required, under Title III of the ADA, to ensure that the

23 Class has full and equal access to the Chipotle Experience that

24 is provided to non-Class patrons of Chipotle.

25

20. Chipotle has also failed to comply with California

26 state requirements relating to providing full and access to

27 people with disabilities. See, Antoninetti v. Chipotle Mexican

28 Grill, Inc., 614 F.3d 971 (9th Cir. 2010). Chipotle was notified

Second Amended Complaint

8

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 10 of 19

1 by other wheelchair users, beginning at least as early as 2002,

2 about the lack of full and equal access to the Chipotle

3 Experience for people such as the Plaintiffs and the class of

4 people they represent. Chipotle, despite this notice, took no

5 action prior to the filing of the instant action to provide the

6 Plaintiffs and Class members with full and equal access to the

7 Chipotle Experience.

8

21. Accordingly, Plaintiffs bring this action seeking

9 injunctive and declaratory relief in order to compel Defendants

10 to comply with their obligations to provide Plaintiffs and Class

11 members with full and equal access to the Chipotle Experience.

12 The named Plaintiffs also seek statutory minimum damages, on

13 behalf of themselves and the Class, in addition to their

14 attorneys' fees and costs.

15

CLASS ACTION ALLEGATIONS

16

22. Plaintiffs bring this action on their own behalf and on

17 behalf of all persons similarly situated. The Class which

18 plaintiffs seek to represent is composed of “all persons with

19 mobility disabilities who use wheelchairs or other mobility

20 aides, such as scooters, and who, because of their mobility

21 impairments, have been or will be denied their rights under the

22 ADA and California state law to full and equal access to the

23 Chipotle Experience at Chipotle’s restaurants within the State of

24 California because of the walls.” (Class definition).

25

23. This suit is properly maintainable as a class action

26 under Federal Rules of Civil Procedure, Rule 23 (b)(2), because

27 Defendants have acted or refused to act on grounds generally

28 applicable to the Class, at each of the more than 83 California

Second Amended Complaint

9

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 11 of 19

1 Chipotle Mexican Grill restaurants, thereby making appropriate

2 final injunctive relief or declaratory relief with respect to the

3 Class as a whole an appropriate remedy. Class claims are brought

4 for the purpose of obtaining declaratory and injunctive relief

5 and for statutory minimum damages under California Civil Code §

6 52 only, which provides for a minimum of $4,000.00 for each and

7 every offense. Class damages claims are limited to the minimum

8 statutory damages recoverable under California Civil Code § 52.

9

24. This suit is further properly maintainable as a class

10 action under Federal Rules of Civil Procedure, Rule 23(b)(3)

11 because questions of law or fact common to Class members

12 predominate over any questions affecting only individual members,

13 and a class action is superior to other available methods for

14 fairly and efficiently adjudicating the claims alleged herein.

15

25. The persons in the Class are so numerous that joinder

16 of all such persons is impracticable and the disposition of their

17 claims in a class action is a benefit to the parties and to the

18 Court. The are at least two hundred Class members and the

19 combined claims of all Class members exceeds $5,000,000.00

20 exclusive of interest and costs. The Plaintiffs are citizens of

21 a different state than the Defendant.

22

26. There is a well-defined community of interest in the

23 questions of law and fact affecting the parties to be represented

24 in that Chipotle denied the Class full and equal access to the

25 Chipotle Experience at each of its restaurants, despite the

26 requirements of federal law. The design of the walls, and the

27 methods of accommodation adopted by Chipotle to compensate for

28 the obstruction created by the walls, violated the ADA. (See,

Second Amended Complaint

10

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 12 of 19

1 Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d 971 (9th

2 Cir. 2010).)

3

27. Legal and factual questions common to each of the Class

4 members include, but are not limited to, the following:

5

A. Whether Defendants violated Title III of the ADA, 42

6 U.S.C. §§ 12181, et seq., by designing and constructing food

7 service lines with walls which deny the Plaintiffs and the Class

8 full and equal access to the Chipotle Experience (seeing the food

9 items available for selection, being brought more fully into the

10 dining experience, watching freshly marinated meats being

11 continuously grilled and seeing the construction of their

12 entrees.) This legal issue was resolved against Chipotle in

13 Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d 971 (9th

14 Cir. 2010).

15

B. Whether Defendants violated California Civil Code §§

16 51, et seq. with respect to denial of full and equal access to

17 the Chipotle Experience. This legal issue was resolved against

18 Chipotle in Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d

19 971 (9th Cir. 2010).

20

C. Whether the Defendants are liable to each and every

21 Class member for minimum statutory damages for each and every

22 offense, as provided by California Civil Code § 52.

23

28. The claims of the named Plaintiffs are typical of those

24 of the Class and Plaintiffs will fairly and adequately represent

25 the interests of the Class.

26

29. The attorneys representing the Plaintiffs are

27 experienced civil rights attorneys with specific experience in

28 cases involving persons with disabilities. The attorneys

Second Amended Complaint

11

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 13 of 19

1 representing Plaintiffs are also considered able practitioners in

2 statutory adjudication and federal court litigation.

3

30. References to Plaintiffs shall be deemed to include the

4 named Plaintiffs and each member of the Class, unless otherwise

5 indicated.

6

FIRST CAUSE OF ACTION

7

Title III of the Americans with Disabilities Act

42 U.S.C. §§ 12181 et seq.

8

9

31. Plaintiffs incorporate by reference each and every

10 allegation contained in the foregoing paragraphs.

11

32. Congress enacted the ADA upon finding, among other

12 things, that "society has tended to isolate and segregate

13 individuals with disabilities" and that such forms for

14 discrimination continue to be a “serious and pervasive social

15 problem.” 42 U.S.C. § 12101(a)(2).

16

33. In response to these findings, Congress explicitly

17 stated that the purpose of the ADA is to provide “a clear and

18 comprehensive national mandate for the elimination of

19 discrimination against individuals with disabilities” and “clear,

20 strong, consistent, enforceable standards addressing

21 discrimination against individuals with disabilities.” 42 U.S.C.

22 § 12101(b)(1)-(2).

23

34. The ADA provides, inter alia, that it is discriminatory

24 to subject an individual or class of individuals on the basis of

25 a disability “to a denial of the opportunity of the individual or

26 class to participate in or benefit from the goods, services,

27 facilities, privileges, advantages, or accommodations of an

28 entity.” 42 U.S.C. § 12182(a)(i). 12

Second Amended Complaint 06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 14 of 19

1

35. The ADA further provides that it is discriminatory “to

2 afford an individual or class of individuals, on the basis of a

3 disability ... with the opportunity to participate in or benefit

4 from a good, service, facility, privilege, advantage, or

5 accommodation that is not equal to that afforded to other

6 individuals.” 42 U.S.C. § 12182(a)(ii).

7

36. The ADA further provides that it is discriminatory to

8 fail “to design and construct facilities for first occupancy

9 later than 30 months after the date of enactment of this Act

10 [enacted July 26, 1990] that are readily accessible to and usable

11 by individuals with disabilities, except where an entity can

12 demonstrate that it is structurally impracticable to meet the

13 requirements of such subsection in accordance with standards set

14 forth or incorporated by reference in regulations issued under

15 this title [42 USCS § § 12181 et seq.].” 42 U.S.C. §

16 12183(a)(1).

17

37. Defendants’ acts and omissions alleged herein are in

18 violation of the ADA, 42 U.S.C. §§ 12101, et seq., and the

19 regulations promulgated thereunder.

20

38. Chipotle restaurants are places of public accommodation

21 covered by Title III of the ADA. 42 U.S.C. § 12181(7)(I).

22

39. Plaintiffs are persons with mobility disabilities and

23 thus are specifically protected under the ADA. 42 U.S.C. §

24 12102(2) and 28 C.F.R. § 36.104.

25

40. Plaintiffs and the Class were denied full and equal

26 access to the Chipotle Experience, in violation of the ADA,

27 because of the walls. Plaintiffs and the Class want to return to

28 Chipotle’s restaurants in California to enjoy the Chipotle

Second Amended Complaint

13

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 15 of 19

1 Experience. Plaintiffs and the Class were deterred from

2 returning to Chipotle’s restaurants in California because they

3 were denied full and equal access to the Chipotle Experience

4 because of the walls.

5

41. Defendants’ conduct constitutes multiple ongoing and

6 continuous violations of the ADA and, unless restrained from

7 doing so, Defendants will continue to violate said laws. Said

8 conduct, unless enjoined, will continue to inflict injuries for

9 which Plaintiffs and the Class have no adequate remedy at law.

10 Consequently, Plaintiffs and the Class are entitled to, and seek,

11 injunctive and declaratory relief pursuant to Section 308 of the

12 ADA. 42 U.S.C. § 12188.

13

42. Plaintiffs and the Class are also entitled to, and

14 seek, reasonable attorneys’ fees, litigation expenses and costs

15 pursuant to Section 505 of the ADA. 42 U.S.C. § 12205.

16

SECOND CAUSE OF ACTION

17

Unruh Civil Rights Act

California Civil Code §§ 51, et seq.

18

19

43. Plaintiffs incorporate by reference each and every

20 allegation contained in the foregoing paragraphs.

21

44. California’s Unruh Civil Rights Act (“the Unruh Act”)

22 prohibits discrimination against individuals with disabilities.

23 Section 51 of the California Civil Code provides, in relevant

24 part:

25

All persons within the jurisdiction of this

state are free and equal, and no matter what

26

their...disability...are entitled to the full

and equal accommodations, advantages,

27

facilities, privileges, or services in all

28

Second Amended Complaint

14

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 16 of 19

1

business establishments of every kind

whatsoever.

2

Cal. Civ. Code § 51(b).

3

45. The Unruh Act also provides that “[a] violation of the

4

right of any individual under the Americans with Disabilities

5

Act...shall also constitute a violation of this section.” Cal.

6

Civ. Code § 51(f).

7

46. As set forth above, Defendants discriminated against

8

the Plaintiffs by instituting policies and/or by designing and

9

constructing facilities that discriminate against people with

10

mobility disabilities, including Plaintiffs and members of the

11

Class.

12

47. Defendants’ actions or inactions constitute a violation

13

of, among other laws, the Americans with Disabilities Act.

14

48. Plaintiffs’ mobility disabilities limit major life

15

activities such as standing and walking; thus Plaintiffs are

16

protected under the Unruh Act. Cal. Civ. Code § 51(e)(1); Cal.

17

Gov’t. Code §12926(k).

18

49. Chipotle is a business establishment regulated by the

19

Unruh Act. Cal. Civ. Code § 51(b).

20

50. As a direct and proximate result of Defendants’

21

conduct, Plaintiffs and the Class have suffered damages.

22

51. As such, the named Plaintiffs and the Class are

23

entitled to the minimum amount of $4,000.00 in damages against

24

Chipotle for each and every offense. Plaintiffs and the Class

25

are also entitled to their attorneys’ fees. Cal. Civ. Code

26

§ 52(a), (e) and § 52.1(h). The amount of all statutory damages

27

28

Second Amended Complaint

15

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 17 of 19

1 of Plaintiffs and the Class exceeds $5,000,000.00, exclusive of

2 interest and costs.

3

52. Plaintiffs and the Class are also entitled to, and

4 seek, injunctive and declaratory relief. Cal. Civ. Code

5 § 52.1(b).

6

THIRD CAUSE OF ACTION

7

Declaratory Relief

8

53. Plaintiffs incorporate by reference each and every

9 allegation contained in the foregoing paragraphs.

10

54. Defendants have denied, and continue to deny, that

11 Defendants failed to provide Plaintiffs and the Class with full

12 and equal access to the Chipotle Experience, in violation of the

13 ADA and various state civil rights statutes, including the Unruh

14 Act, all to the detriment of Plaintiffs and the Class.

15

55. In addition, Defendants deny, and continue to deny,

16 that they have violated or breached any of their legal

17 obligations to Plaintiffs and the Class.

18

56. A judicial declaration is necessary and appropriate at

19 this time in order that each of the parties may know their

20 respective rights and duties and act accordingly.

21

PRAYER FOR RELIEF

22

WHEREFORE, Plaintiffs and the Class pray for judgment as

23 follows:

24

1) Declaring that Defendants violated the ADA and its

25 implementing regulations by failing to provide full and equal

26 access to the Chipotle Experience to Plaintiffs and the Class;

27

2) Declaring that Defendants violated the Unruh Civil

28

Second Amended Complaint

16

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 18 of 19

1 Rights Act by failing to provide full and equal access to the

2 Chipotle Experience to Plaintiffs and the Class;

3

3) Granting a permanent injunction directing

4 Defendants: (a) to provide Plaintiffs and the Class with full and

5 equal access to the Chipotle Experience; (b) if Defendants have

6 modified the walls at the restaurants so that the Chipotle

7 Experience is now accessible to Plaintiffs and the Class, that

8 Defendants maintain those accessible walls at the restaurants;

9 and (c) that each restaurant constructed after the date of the

10 Court’s injunction be designed and constructed so that it

11 provides Plaintiffs and the Class with full and equal access to

12 the Chipotle Experience.

13

4) Granting a permanent injunction directing

14 Defendants: (a) to provide Plaintiffs and the Class with full and

15 equal access to the Chipotle Experience; (b) if Defendants have

16 modified the walls so that the Chipotle Experience is now

17 accessible to Plaintiffs and the Class, that Defendants maintain

18 the accessible walls at the restaurants; and (c) that each

19 restaurant constructed after the date of the Court’s injunction

20 be designed and constructed so that it provides Plaintiffs and

21 the Class with full and equal access to the Chipotle Experience.

22

5) Awarding Plaintiffs and the Class statutory

23 minimum damages of $4,000.00 for each and every offense, as

24 provided by California Civil Code § 52;

25

6) Awarding Plaintiffs and the Class attorneys’ fees,

26 litigation expenses, and all costs incurred by bringing this

27 action; and 28

Second Amended Complaint

17

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 171-1 Filed 07/19/13 Page 19 of 19

1

7) Granting such other relief as the Court deems just

2 and fair.

3

NOTE: Plaintiffs have not asserted, and do not now assert,

4 any claims or rights under Cal. Civ. Code § 55.

5 DATED: July 18, 2013

LAW OFFICES OF AMY B. VANDEVELD

6

S/AMY B. VANDEVELD

Attorney for Plaintiffs

7

Email: abvusdc@hotmail.com

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Second Amended Complaint

18

06cv2671 BTM (WMc)

 
 Case 3:06-cv-02671-BTM-JLB Document 174 Filed 08/20/13 Page 1 of 4

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI, JEAN

Case No. 06-CV-02671-BTM (WMc)

12 RIKER, JAMES PERKINS, KAREN FRIEDMAN JAY RIFKIN, SUSAN

ORDER APPROVING NOTICE TO

13 CHANDLER, LAURA WILLIAMS, on PUTATIVE CLASS REGARDING

14 behalf of themselves and all others similarly SETTLEMENT OF PLAINTIFFS’

situated,

INDIVIDUAL CLAIMS

15

16

Plaintiffs,

17

vs.

18
CHIPOTLE MEXICAN GRILL, INC., a 19 Delaware Corporation, and DOES 1 – 10,
20 Inclusive,

21

Defendants.

22

23

24

Complaint Filed: December 6, 2006

Trial Date:

November 18, 2013

25

26

27

28

CHI06-01:[Proposed] Order Approving Notice to Putative Class.docx:8-20-13

- 1 -

ORDER APPROVING NOTICE TO PUTATIVE CLASS REGARDING SETTLEMENT OF PLAINTIFFS’

INDIVIDUAL CLAIMS

Case 3:06-cv-02671-BTM-JLB Document 174 Filed 08/20/13 Page 2 of 4

1

Upon the stipulation of the Parties, and good cause having been demonstrated to

2 the satisfaction of the Court, the Court hereby orders as follows:

3

The following language shall be posted via a link on the Chipotle website for at

4 least six continuous weeks prior to the Parties’ filing of the Joint Motion for Dismissal

5 of USDC Case No. 06cv2671 BTM (WMc):

6

“On December 6, 2006, a class action lawsuit entitled

7

Antoninetti v. Chipotle, was filed in the Southern District of

California, alleging that people who use wheelchairs, scooters

8

or other mobility devices were unable to see their food options

9

or watch their food prepared at Chipotle restaurants in

California because of the height of the walls in front of the food

10

preparation counters. On May 7, 2008, identical, similar and/or

11

related claims were made in another class action lawsuit

entitled Perkins v. Chipotle, which was filed in the Central

12

District of California. The Perkins case was stayed while the

13

Antoninetti case was litigated. Both cases sought damages for

people with disabilities under the Unruh Act and/or the

14

California Disabled Persons Act. On August 28, 2012, the

15

Antoninetti court determined that the Antoninetti case should

not proceed as a class action, and denied class certification. The

16

individual plaintiffs in the Antoninetti case have decided to

17

settle their individual claims rather than appeal the denial of

class certification. In addition, the individual plaintiffs in the

18

Perkins case have decided to settle their individual claims

19

rather than seek class certification. The Antoninetti class action

claims and the Perkins class action claims will, therefore, not

20

continue to be litigated once the cases are dismissed unless

21

someone else intervenes in the cases and wishes to pursue the

class action claims.

22

23

Any persons wanting to pursue their own claims or the

class action claims against Chipotle must file a new lawsuit or

24

they may seek to intervene in the Antoninetti case or the

25

Perkins case. If you want to intervene in the Antoninetti case,

you must do so before (insert date which is 6 weeks from the

26

date of first publication of the Notice) when the Antoninetti

27

case will be dismissed. If you wish to intervene in the Perkins

case, you should act promptly to ensure that you intervene

28

before the Perkins case is dismissed. The date for dismissal of

CHI06-01:[Proposed] Order Approving Notice to Putative Class.docx:8-20-13

- 2 -

ORDER APPROVING NOTICE TO PUTATIVE CLASS REGARDING SETTLEMENT OF PLAINTIFFS’

INDIVIDUAL CLAIMS

Case 3:06-cv-02671-BTM-JLB Document 174 Filed 08/20/13 Page 3 of 4

the Perkins case has not yet been determined and may be later

1

than the date for dismissal of the Antoninetti case, but you

2

should nevertheless act promptly to protect your rights. Rather

than intervening in the Antoninetti case or the Perkins case, you

3

may also file your own separate lawsuit against Chipotle

4

before, and even after, the Antoninetti case and the Perkins

case are dismissed.
5

6

If you want to pursue your own claims against Chipotle

in a separate lawsuit you should be mindful that, in the

7

Antoninetti case, the statute of limitations (the time limit for

8

filing a lawsuit) was tolled from December 6, 2006, until

August 28, 2012, at which time the statute of limitations began

9

to run again. The statute of limitations in the Perkins case is

10

tolled from May 7, 2008 until the date that the Court dismisses

the Perkins case, which date has not yet been determined.
11

12

Courts are divided as to whether the one-year statute of

limitations period for statutory penalties (Code Civ. Proc.§

13

340), the two-year statute of limitations period for personal

14

injuries (Code Civ. Proc., § 335.1) or the three-year statute of

limitations period for a liability created by statute (Code Civ.

15

Proc., § 338, subd. (a)) governs a claim under the Unruh Act

16

and/or the Disabled Persons Act. Therefore, if you choose to

intervene in the Antoninetti case or the Perkins case or you

17

choose to file your own lawsuit, you should act promptly so

18

that you do not permanently lose any rights you may have.”

19

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

CHI06-01:[Proposed] Order Approving Notice to Putative Class.docx:8-20-13

- 3 -

ORDER APPROVING NOTICE TO PUTATIVE CLASS REGARDING SETTLEMENT OF PLAINTIFFS’

INDIVIDUAL CLAIMS

Case 3:06-cv-02671-BTM-JLB Document 174 Filed 08/20/13 Page 4 of 4

1

The Court further finds that the Notice previously provided by Plaintiffs’ counsel

2 to disability rights organizations and individuals, which is substantially similar to the

3 Notice that shall be posted on Chipotle’s website, fulfills the Plaintiffs’ obligations

4 under the Court’s Minute Order of June 19, 2013 and no further notice by Plaintiffs or

5 Plaintiffs’ counsel is necessary with respect to USDC Case No. 06cv2671 BTM.

6

IT IS SO ORDERED.

7
8 Dated: August 20, 2013
9 10

_________________________________ THE HONORABLE BARRY TED MOSKOWITZ UNITED STATES DISTRICT COURT

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CHI06-01:[Proposed] Order Approving Notice to Putative Class.docx:8-20-13

- 4 -

ORDER APPROVING NOTICE TO PUTATIVE CLASS REGARDING SETTLEMENT OF PLAINTIFFS’

INDIVIDUAL CLAIMS

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 MAURIZIO ANTONINETTI, JEAN
12 RIKER, JAMES PERKINS, KAREN FRIEDMAN JAY RIFKIN, SUSAN
13 CHANDLER, LAURA WILLIAMS,
14 on behalf of themselves and all others
similarly situated,
15

16
v.
17

Plaintiff,

Case No. 06-CV-02671-BTM-JLB
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES & COSTS

18 CHIPOTLE MEXICAN GRILL, INC.,
19 a Delaware Corporation, and DOES 1 – 10, Inclusive,
20

21

Defendants.

22

23

On December 2, 2013, Plaintiffs filed a motion seeking attorneys’ fees and

24
costs of $1,671,197.27, plus fees incurred in litigating this motion. (Docs. 183, 207.)
25
26 For the reasons set forth below, Plaintiffs’ motion for attorneys’ fees and costs is

27 hereby GRANTED in part and DENIED in part.
28

1

06-CV-02671

1

I. BACKGROUND

2
The parties are familiar with the facts of the case.1 Due to the unique
3

4 procedural posture of this motion, however, it bears noting that:

5

1. Maurizio Antoninetti filed a lawsuit against Defendant in August 2005.

6
Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. In that case, Mr.
7

8 Antoninetti alleged injury arising from visits to two of Defendant’s restaurants whose

9 serving area layout violated the Americans With Disabilities Act (“ADA”) as well as

10
California’s disability access laws.
11

12

2. This case was filed on December 6, 2006, as a six-count class action

13 alleging the same facts. Antoninetti et. al. v. Chipotle Mexican Grill, Inc., No. 06-cv-

14
2671. Discovery in the two pending cases proceeded jointly.
15

16

3. On May 7, 2008, in the Central District of California, a second class action

17 was filed by plaintiffs residing outside of this district who were represented by the
18
same counsel as those litigating here: Perkins et. al. v. Chipotle Mexican Grill, Inc.,
19
20 No. 08-cv-3002. The Compliant and Second Amended Complaint similarly alleged

21 violations of the ADA as well as California’s Unruh Civil Rights Act, Cal. Civ. Code

22
§§ 51, et seq.
23

24

4. After granting partial summary judgment and holding a bench trial, Mr.

25

26

1 For a factual summary, see Antoninetti v. Chipotle Mexican Grill, 643 F.3d

1165, 1169-71 (9th Cir. 2010). See also “Order re Plaintiff’s Motions for Summary

27 Judgment and for Attorneys’ Fees,” No. 05-1660, March 21, 2012 (Doc. 359.); “Order

on Attorneys’ Fees,” No. 05-1660, July 17, 2012 (Doc. 377) (awarding $545,079.05

28 in fees and costs); “Order Denying Class Certification,” No. 06-2671, August 28, 2012

(Doc. 145).

2

06-CV-02671

1 Antoninetti prevailed in part in the individual action, but was not granted injunctive
2
relief because the Court found that Chipotle’s “Customers With Disabilities Policy,”
3
4 as amended in 2007, brought it into compliance with the ADA.

5

5. Mr. Antoninetti appealed that judgment. Both putative class actions were

6
stayed pending the appeal. On July 26, 2010, Mr. Antoninetti prevailed, and the
7

8 Ninth Circuit Court of Appeals remanded the case with instructions “to enter a

9 judgment that Chipotle violated the Disabilities Act and to issue appropriate
10
injunctive relief.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1177
11
12 (9th Cir. 2010).

13

6. The stay of the Antoninetti putative class action was lifted on August 28,

14
2010. The stay in the Perkins case remained in place until a settlement was reached.
15

16

7. Mr. Antoninetti died on May 9, 2011. The Court granted Mrs. Antoninetti’s

17 unopposed motion to substitute as the plaintiff in this case.
18
8. Class certification was denied. The parties thereafter negotiated a global
19
20 settlement of the individual claims in this class action, in the Perkins class action,

21 and in fifteen additional individual suits, all of which were consolidated before this
22
Court. More specifically, the individual plaintiffs in state court cases were added to
23
24 the Antoninetti class action, and the Perkins case was transferred and consolidated

25 with Antoninetti on December 3, 2013. (Order Consolidating Cases, No. 06-2671,

26
December 3, 2013 (Doc. 187).)
27

28

9. Under the global settlement agreement, Chipotle Mexican Grill, Inc.

3

06-CV-02671

1 (“Chipotle” or “Defendant”) agreed to pay Plaintiffs’ reasonable attorneys’ fees and

2
costs in all of these related cases. (Doc. 182, Ex. A ¶¶ 2.1.C.1, 2.1.C.6.)
3

4

10. As of July 2011, none of the Chipotle locations in California had the type

5 of wall that formed the basis for these suits.
6
11. The twenty-one named plaintiffs collectively recovered $225,000 in
7
8 damages for their individual claims.

9

12. On July 17, 2012, the Court amended a prior judgment in the invidivual

10
Antoninetti case, awarding $545,079.05 in attorneys fees and costs. (No. 05-cv-
11

12 1660, Doc. 377.) That amount accounted for time and expenses spent litigating the

13 individual Antoninetti case, including time spent opposing certiorari to the Supreme
14
Court, and time spent on remand through the date of the award. On December 26,
15
16 2012, the plaintiff was awarded an additional $353,469.95 for fees and costs related

17 to proceedings before the Ninth Circuit. (No. 05-cv-1660, Doc. 382.) Thus, counsel

18
has already been awarded $898,549 in fees and expenses related to these cases.
19

20

13. The pending motion addresses only heretofore uncompensated fees and

21 costs for work on the putative class actions pursuant to the settlement agreement.
22
//
23
24 //

25 //
26
//
27
28 //

4

06-CV-02671

1

II. LEGAL STANDARDS

2
Under 42 U.S.C. § 12205, the “prevailing party” in an Americans with
3

4 Disabilities Act (“ADA”) action may, in the Court’s discretion, recover “reasonable

5 attorney’s fees, including litigation expenses, and costs.” See also 28 C.F.R. §
6
36.505. The prevailing plaintiff is also entitled to fees and costs under California's
7
8 applicable disability access laws. See Cal. Civ. Code §§ 52(a). The amount of the

9 prevailing party’s reasonable attorneys’ fees is calculated using the lodestar method.
10
Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the
11
12 lodestar method, “[t]he most useful starting point for determining the amount of a

13 reasonable fee is the number of hours reasonably expended on the litigation
14
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
15
16 (1983). Hours that are excessive, redundant, or otherwise unnecessary should be

17 excluded from an award of fees. Id. at 434; Camacho v. Bridgeport Financial, Inc.,
18
523 F.3d 973, 978 (9th Cir. 2008). To calculate the “lodestar,” the court multiplies
19
20 the number of hours the prevailing party reasonably expended on the litigation by a

21 reasonable rate. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996).
22
The hourly rates to be employed in calculating reasonable fees are determined by the
23
24 “prevailing market rates in the relevant community, regardless of whether the

25 plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S.
26
886, 895 (1984); see also Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001).
27
28 "The burden is on the plaintiff to produce evidence that the requested rates are in line

5

06-CV-02671

1 with those prevailing in the community for similar services by lawyers of reasonably
2
comparable skill, experience, and reputation." Id. (internal quotations omitted).
3
4 "Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in

5 the community, and rate determinations in other cases, particularly those setting a
6
rate for the attorney, are satisfactory evidence of the prevailing market rate." United
7
8 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

9 Generally, the relevant community "is the forum in which the district court sits."
10
Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The relevant rates in that
11
12 community are those charged "for similar services by lawyers of reasonably

13 comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895
14
n.11 (1984). "The defendant may introduce rebuttal evidence in support of a lower
15
16 hourly rate." Sorenson, 239 F.3d at 1145. As to the number of hours reasonably

17 expended, a fee applicant “should make a good-faith effort to exclude . . . hours that
18
are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. The
19
20 movant bears the burden of submitting detailed time records justifying the hours

21 claimed to have been expended. Id. at 437; In re Washington Public Power Supply

22
Sys. Secs. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994).
23

24

There is a strong presumption that the lodestar figure represents a reasonable

25 fee award. Harris v Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994); United Steelworkers,
26
896 F.2d at 407 (holding that, absent competent rebuttal evidence or a finding that
27
28 counsels' rates are unwarranted by their level of performance, the requested rates are

6

06-CV-02671

1 presumed reasonable); Stonebrae L.P. v. Toll Bros., 521 Fed. Appx. 592, 595 (9th
2
Cir. 2013) (“Where, as here, a party achieves an excellent result, the court should
3
4 refuse to reduce the lodestar amount.”). Yet courts may adjust the lodestar figure
5 upward or downward based upon the factors enunciated in Kerr v. Screen Extras
6
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975): (1) the time and labor required, (2) the
7
8 novelty and difficulty of the questions involved, (3) the skill requisite to perform the
9 legal service properly, (4) the preclusion of other employment by the attorney due to
10
acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or
11
12 contingent, (7) time limitations imposed by the client or the circumstances, (8) the
13 amount involved and the results obtained, (9) the experience, reputation, and ability
14
of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of
15
16 the professional relationship with the client, and (12) awards in similar cases. See
17 Camacho, 523 F.3d at 978; Cunningham v. Los Angeles, 879 F.2d 481, 484 (9th Cir.
18
1988) (same). See also Woods v. Sunn, 865 F.2d 982, 991 (9th Cir. 1988) (noting
19
20 that many factors previously identified by courts as probative on the issue of
21 reasonableness of a fee award are now subsumed within the initial calculation of the
22
lodestar amount); Morales, 96 F.3d at 363-64. Generally, the most important factor
23
24 is the degree of success obtained. Farrar v. Hobby, 506 U.S. 103, 115-16 (1992). Finally,
25 the Court may make across-the-board percentage cuts in the number of hours claimed
26
as “a practical means of trimming the fat from a fee application.” Gates v.
27
28 Deukmejian, 977 F.2d 1300, 1307 (9th Cir. 1992) (citation omitted).

7

06-CV-02671

1
2
A.
3
4

III. DISCUSSION Evidentiary Issues To call the record with respect to this motion voluminous would be an

5 understatement. Plaintiffs’ motion is accompanied by ten supporting declarations
6
and a request for judicial notice. Defendant’s opposition is supported by two
7
8 declarations and is accompanied by 75 objections to Plaintiffs’ evidence as well as

9 opposition to Plaintiffs’ requests for judicial notice. (Doc. 189.) Plaintiffs have filed
10
objections to each of Defendant’s declarations as well. (Docs. 192-4, 192-5.)
11
12 Defendant’s objections to Plaintiff’s supporting declarations (Docs. 189-9 to 189-15)

13 prompted over a dozen separate replies from Plaintiffs (Docs. 192-207). As a

14
preliminary matter, the Court addresses these requests and objections.
15

16

1. Requests for Judicial Notice & Objections to Expert Declarations

17

Plaintiffs ask the Court to take notice, pursuant to Rule 201(b) of the Federal

18
Rules of Evidence, of seven exhibits consisting of documents filed in the related
19

20 individual action, Antoninetti v. Chipotle Mexican Grill, Inc., No. 05-cv-1660. (Doc.

21 183-6.) Rule 201 provides an avenue for the Court to take judicial notice of
22
reasonably indisputable adjudicative facts. It is not typically a mechanism for
23
24 acknowledging the content of filings in other proceedings, however. M/V American

25 Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (“As
26
a general rule, a court may not take judicial notice of proceedings or records in
27
28 another cause so as to supply, without formal introduction of evidence, facts essential

8

06-CV-02671

1 to support a contention in a cause then before it.”). The Court therefore takes notice
2
that the individual Antoninetti proceeding exists and that these documents are filed in
3
4 the docket of that case (No. 05-cv-1660-BTM-WVC). See generally U.S. ex rel

5 Robinson Rahcheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
6
1992) (“[W]e ‘may take notice of proceedings in other courts, both within and
7
8 without the federal judicial system, if those proceedings have direct relation to

9 matters at issue.’”); Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank,
10
136 F.3d 1360, 1364 (9th Cir. 1998); Recent Past Pres. Network v. Latschar, 701 F.
11
12 Supp. 2d 49, 55 (D.D.C. 2010).

13

Plaintiffs’ request encompasses three “expert declarations” of Richard Pearl.

14
(Doc. 183, Exs. 4, 5, 6.) As Defendant points out, the Court cannot consider the
15

16 substance of the declarations as evidence by taking judicial notice of their filing in

17 another case. Baker v. Cal. Dep’t of Corrections, 484 F. App’x 130, 132 (9th Cir.
18
2012). Rule 702 provides the proper avenue for the admission of such declarations.2
19
20 For example, in Stonebrae, L.P. v. Toll Bros., No. 08-221, 2011 U.S. Dist. LEXIS

21 39832, 9-12 (N.D. Cal. Apr. 7, 2011), a case wherein Mr. Pearl provided an expert
22
declaration (and references here), his declaration was admitted as expert testimony
23

24

25

2 Under Rule 702, a witness qualified as an expert in "scientific" knowledge may testify thereto if: "(1) the testimony is based upon sufficient facts or data; (2) the

26

testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods to the facts of the case." Fed. R. Evid. 702. In

27

response to an objection, the Court conducts a preliminary assessment to ensure, in essence, that the expert’s analysis amounts to “good science.” Daubert v. Merrell Dow

28

Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) ("Daubert II") (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993)); Kennedy v. Collagen Corp.,

161 F.3d 1226, 1228 (9th Cir. 1998).

9

06-CV-02671

1 under Rule 702. Although Defendant objects to the relevancy of some data Mr. Pearl
2
relies upon, the Court finds, based in part upon Plaintiffs’ response (Doc. 193-1), that
3
4 Mr. Pearl’s declarations satisfy the threshold requirements. See generally Levi

5 Strauss v. Abercrombie & Fitch Trading Co., 2008 U.S. Dist. LEXIS 87625, *22
6
(N.D. Cal. Oct. 16, 2008) (noting that, so long as the data are reliable,
7
8 methodological deficiencies go to "the weight to be accorded the survey, rather than

9 its admissibility.") (citing Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir.
10
1997)). The Court likewise finds that the Declaration of William M. Hensley
11
12 (“Hensley Decl.”) satisfies Rule 702 and overrules Plaintiffs’ general objections

13 thereto (Doc. 192-5 at 1-3).

14
2. Objections to Timekeeper & Billing Records
15

16

Defendant objects, inter alia, to Exhibits 13, 14, 15, and 16 to the Declaration

17 of Amy B. Vandeveld (Doc. 185) (“Vandeveld Decl.”). Ms. Vandeveld asserts that
18
Exhibit 13 evidences costs and litigation expenses incurred in the individual actions
19
20 as well as the class actions, and that she advanced these costs. (Vandeveld Decl.

21 ¶45.) She states that Exhibit 14 is “[m]y billing statement for the Antoninetti class
22
action . . . . To the best of my knowledge, the billing statement accurately reflects
23
24 the time I invested, and the costs and expenses incurred, in that case.” (Id. ¶46.) So

25 too with Exhibit 15 (Perkins class action) and Exhibit 16 (Antoninetti individual
26
cases). (Id. ¶¶47, 48.) Finally, Plaintiffs’ attorneys state that their billing records are
27
28 based upon “contemporaneously kept timesheets.” (Amy Vandeveld Reply Decl.,

10

06-CV-02671

1 Doc. 192-2 at 33; Thomas Vandeveld Reply Decl. ¶3., Doc. 192-1.) The Court finds
2
that these statements, paired with the affirmation under penalty of perjury, are
3
4 sufficient to satisfy the personal knowledge and authentication requirements of Rules

5 602 and 901, and overrules the objections. The hearsay objections are also
6
overruled, as deficiencies in the movants’ filings were cured by their reply
7
8 declarations such that the billing records fall within the business records exception to

9 the hearsay rule. See Davis v. City of San Francisco, 976 F.2d 1536, 1542 (9th Cir.
10
1992); New Eng. Tech., Inc. v. Sigma Tech Sales, Inc., 2010 U.S. Dist. LEXIS
11
12 111102 (S.D. Fla. 2010).

13

3. Remaining Objections

14
The parties raise numerous other objections based on rules 402, 403, 602, 802,
15

16 901, and 1002 of the Federal Rules of Evidence. The parties identify no real

17 prejudice as to admissibility, nor do they cite any authority sustaining, e.g., a Rule
18
403 objection in the context of a motion for fees and costs. The Court overrules the
19
20 objections to Mr. Pearl’s declarations as well as Mr. Hensley’s declaration because

21 an expert witness may rely upon otherwise inadmissible evidence as a basis for an
22
expert opinion if it is reasonable for an expert in the field to do so. See Fed. R. Evid.
23
24 703; see also Fed. R. Evid. 1004. The Court need not expressly reach the remaining

25 objections because they pertain to materials it does not rely upon in reaching its
26
decision. Cf. SEC v. Pattison, No. 08-4238, 2011 U.S. Dist. LEXIS 22398 (N.D.
27
28 Cal. Feb. 22, 2011) (declining to exercise discretion to strike, “since the declaration

11

06-CV-02671

1 is not completely devoid of relevant factual statements, the undersigned is capable of
2
parsing through it, and the SEC has not identified any prejudice.”).
3
4 B. Reasonable Hourly Rate

5

Plaintiffs’ award request is based upon hourly rates of $525 and $620 for Mr.

6
and Ms. Vandeveld, respectively. The Court specifically addressed the proper hourly
7

8 rate for Ms. Vandeveld in its July 17, 2012 Order in the individual Antoninetti case,

9 finding $400 to be an appropriate rate. (No. 05-1660, Doc. 377 at 10-11.) The Court
10
factored in her expertise and success on appeal, and included an upward adjustment
11
12 for the contingency nature of the fee and the extended litigation period. Due to the

13 overlapping work and substantial similarity between the parties, the claims, and the
14
attorneys involved—each is virtually identical at all relevant times—the Court adopts
15
16 its prior analysis here.3 The Court finds the same hourly rate is reasonable for Mr.

17 Vandeveld.
18
The Court finds insufficient evidence that there was an intervening change in
19
20 the local prevailing rate for disability litigation services (aside from an increase

21 attributable to inflation) during the relevant period. The Court will, however, adjust
22
the recoverable rate to account for inflation. Mr. Pearl and Mr. Hensley agree that
23
24 there has been an increase, apparently attributable to inflation, in hourly rates. See

25

26

3 As Plaintiffs emphasize, the Ninth Circuit awarded the requested rate of $475-

27

$500/hr for the same attorneys involved in the appeal of the individual Antoninetti case. There, however, Defendant failed to introduce rebuttal evidence as to the requested

28

rates, depriving the panel of the benefit of Mr. Hensley’s affidavit. (No. 05-1660, Doc. 382 at 14.) With respect to the pending motion, by contrast, Mr. Hensley’s opinion is

properly before the Court.

12

06-CV-02671

1 Hensley Decl. ¶¶10, 13, 14B, 18 (opining that the prevailing local hourly rate for
2
ADA work is in the range of $375 to $425). The Court will increase the awarded
3
4 rate by five percent. This bump is based upon Mr. Pearl’s estimate of a 5.1%

5 increase in 2011. (Pearl Decl., Ex. B). The Court will accordingly calculate the
6
lodestar using hourly rates of $420 for Plaintiffs’ counsel. The Court finds that
7
8 Plaintiffs’ requested rated of $125 per hour for time spent on tasks typically

9 performed by a paralegal to be reasonable.

10
C. Time
11

12

During the time period at issue, the parties engaged in negotiations and motion

13 practice before this Court. Plaintiffs’ counsel also identified and reached out to the
14
named plaintiffs. Plaintiffs submit declarations of Amy Vandeveld (“A.V. Decl.”),
15
16 lead counsel, and Thomas Vandeveld (“T.V. Decl.”) as evidence of the time worked

17 on this case and costs incurred. (Doc. 184.) Defendants submit the declaration of
18
their lead counsel, David R. Sugden (“Sugden Decl.”), and the declaration of their
19
20 expert, William M. Hensley (“Hensley Decl.”), in opposition to Plaintiffs’ request.

21

Plaintiffs’ counsel seeks compensation for 2,033.2 hours of work—494.4

22
expended by Thomas Vandeveld, and 1,538.8 by Amy Vandeveld. (T.V. Decl., Ex.
23

24 8; A.V. Decl., Exs. 14-16; T.V. Supp. Decl., Ex. 1.) Defendant accuses Plaintiffs’

25 counsel of treating this case as a “cash cow,” “milking it” for fees. See generally
26
Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d 756, 759 (S.D.W.Va. 2009)
27
28 ("[W]hen the lodestar method is applied, class counsel has an incentive to

13

06-CV-02671

1 “over-litigate” or draw out cases in an effort to increase the number of hours used to
2
calculate their fees."). The Court may apply an across-the-board “haircut” to “trim
3
4 the fat” where, as here, the requested award is excessive. Moreno v. City of

5 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (a "district court can impose a
6
small reduction, no greater than 10 percent — a "haircut" — based on its exercise of
7
8 discretion and without a more specific explanation"). Defendant, however, asks the

9 Court to apply much deeper cuts. Specifically, Mr. Hensley contends that the Court
10
should strike 75% of that time (before applying a further 60% reduction) due to, e.g.,
11
12 needless litigation, duplicative billing, excessive research time, insufficient

13 supporting records, and inefficiency. (See, e.g., Hensley Decl. ¶30.) Mindful of
14
these arguments as well as the unusual procedural posture and parallel litigation
15
16 across three cases here, the Court turns to the record.

17

1. Unreasonable or Unnecessary Litigation

18
The parties vigorously dispute whether time was reasonably spent litigating
19

20 the terms of injunctive relief after the Ninth Circuit mandate in the individual

21 Antoninetti case. The parties argued this point before the Court on November 16,
22
2010, and the Court expressed skepticism as to Plaintiffs’ purported need to secure
23
24 an admission of liability and declaratory relief. (Sugden Decl., Ex. A 18:19-21, 21:8-

25 9, 23:21-24, 24:4-11.) On January 13, 2011, Defendant’s counsel confirmed that
26
Chipotle’s Encinitas and Pacific Beach locations had lowered their walls in January
27
28 2009. (Sugden Decl., Ex. R.) Mr. Sugden also proposed a stipulated injunction,

14

06-CV-02671

1 though it was not entirely clear what the scope of that proposal was at the time. On
2
July 3, 2012, the parties again argued the point before the Court at a hearing on fees
3
4 in the individual Antoninetii case. (Sugden Decl., Ex. B 50-55.)

5

Plaintiffs moved for class certification on April 18, 2011, arguing that a

6
statewide class was appropriate. (Doc. 88.) On August 28, 2012, the Court denied
7

8 that motion, finding that the claim for injunctive relief was moot (even after

9 considering the voluntary cessation exception) in light of the Ninth Circuit ruling, the
10
failure to establish the presence of a high counter wall in any California Chipotle
11
12 since 2009, and Defendant’s evidence that no Chipotle in the state had counter walls

13 over 36 inches. (Doc. 145.) The Court also rejected Plaintiffs’ argument that their
14
claims for declaratory relief were not moot, because Chipotle had been held in
15
16 violation of the ADA by the Ninth Circuit and was collaterally estopped from re-

17 litigating the issue. (Id. at 5.)
18
Defendant avers that Plaintiffs’ counsel knew that the offending condition at
19
20 the Pacific Beach and Encinitas restaurants had been remedied by July 2010, when

21 the Ninth Circuit remanded the individual Antoninetti case with instructions to enter
22
an injunction. (Opp’n at 6-7.) For this reason, Defendant argues that the Court
23
24 should disallow recovery for time spent after July 2010. It appears that Defendant’s

25 counsel informed Ms. Vandeveld of the remedial actions on August 9, 2010. (A.V.
26
Decl. ¶¶28, 38.) Defendant has also shown that, by January 2011, each
27
28 representative plaintiff in the class actions had seen for themselves that the walls at

15

06-CV-02671

1 been lowered at the restaurants they had visited. (Opp’n 7-8.)
2
Yet Plaintiffs’ counsel had more work to do on the putative class actions
3
4 following remand of the individual Antoninetti case. As Plaintiffs point out, the

5 scope of Defendant’s remedial actions was uncertain or unconfirmed through early
6
2011. And in addition to negotiating a settlement as to damages, Plaintiffs’ counsel
7
8 had to confirm that the offending condition was remedied at the relevant locations,

9 and was unlikely to recur, before accepting a stipulated settlement and dropping the
10
case. The Court will accordingly exclude hours for time wasted litigating these
11
12 issues, but not going all the way back to July 2010. Rather, it will credit reasonable

13 time spent pursuing class certification, declaratory relief, and injunctive relief
14
through January 18, 2011,4 when it should have been clear that further pursuit of
15
16 injunctive relief and class certification was fruitless because Defendant had

17 confirmed relief as to two locations at issue as of that time. Although Defendant did
18
not provide confirmation as to all of its California restaurants at that time, the Court
19
20 is skeptical of the time spent belaboring these points thereafter.

21

Upon review of the billing statements, the Court finds that, with the partial

22
exception of time spent on class certification issues, there is no clear way to reliably
23

24 parse out different claims or litigation activities, e.g., pursuit of injunctive or

25 declaratory relief as opposed to damages. The billing records indicate that Ms.
26

27

28

4 The email from Defendant’s counsel concerning the remedial measures was sent on January 13, 2011, and Ms. Vandeveld’s invoice reflects that she reviewed the attached

document on January 18, 2011.

16

06-CV-02671

1 Vandeveld spent over 242 hours on class certification issues (and a related motion
2
for reconsideration) separate and apart from other work for the individual plaintiffs
3
4 (this figure does not include time spent on discovery, depositions, or preparing

5 declarations). Some 194.8 of those hours were spent working on class certification
6
issues between January 18, 2011 and January 14, 2013. Mr. Vandeveld also spent at
7
8 least 91.4 hours just on class certification issues, 62.4 of which were between

9 January 18, 2011 and June 21, 2013.
10
Mr. Hensley suggests that the Court exclude 179.1 hours of Mr. Vandeveld’s
11
12 time and 228.1 hours of Ms. Vandeveld’s time for unnecessary work or excessive

13 time generally, and with respect to class certification in particular. (See Hensley
14
Decl. ¶¶28E, 30D.) Upon review of the billing records, the Court agrees in part with
15
16 Mr. Henley’s recommendation and finds it appropriate to exclude time on that basis.

17 More specifically, the Court finds that time spent on class certification after January
18
18, 2011 was excessive and unnecessary. The Court accordingly excludes the
19
20 following time spent on class certification from the lodestar: 194.8 of Ms.

21 Vandeveld’s hours and 62.4 of Mr. Vandeveld’s hours. The Court finds the
22
remaining time (approximately 77 hours) spent on class certification to be reasonable
23
24 and includes it in the lodestar.

25

2. Fees on Fees

26
Reasonable fees and costs associated with the pursuit of attorneys’ fees are
27

28 generally recoverable. McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir.

17

06-CV-02671

1 1995). Plaintiffs request compensation for over 265 hours spent on the pending
2
motion. Mr. Vandeveld’s billing report reflects some 59.6 hours spent on the
3
4 motion, including preparing the moving papers. In a supplemental declaration, Mr.

5 Vandeveld states that he spent an additional 75.5 hours responding to hundreds of
6
pages filed in opposition to the motion. (T.V. Supp. Decl. (Doc. 207) ¶2.) Ms.
7
8 Vandeveld billed 132 hours at a paralegal rate of $125 per hour for time spent

9 preparing papers, e.g., billing records, related to the pending motion. Relying on the
10
opinion of Mr. Hensley, Chipotle argues that this amount of time is unreasonable
11
12 because, e.g., previous fees motions could have been used as templates.

13

Even factoring in the need to respond to objections, this amount of time is

14
beyond the pale, especially at Mr. Vandeveld’s rate. See Doran v. Disability Rights
15

16 Enforcement Educ. Servs., 360 F. Supp. 2d 1057, 1062 (N.D. Cal. 2005) (reducing

17 award for time spent on fee application where “many of the[] same tasks could have
18
been achieved by referring to previous cases”). Ms. Vandeveld billed at least 125.8
19
20 paralegal hours preparing billing statements from September to November 2013.

21 This involved transferring information from timesheets into billing software and
22
“cross-checking files to ensure all time was captured.” (A.V. Reply Decl. at 33, Doc.
23
24 192-2.) The Court finds much of this work to be duplicative and inefficient, and

25 therefore deducts 35.1 hours from Mr. Vandeveld’s bills and 72 hours from Ms.
26
Vandeveld’s bill, limiting recovery for time related to the motion sub judice to 100
27
28 attorney hours and 60 paralegal hours. The Court believes this provides proper

18

06-CV-02671

1 compensation while minimizing the incentive to dwell on a fee motion. See
2
generally Cruz v. Starbucks Corp., 2013 U.S. Dist. LEXIS 79231, 2013 WL
3
4 2447862, *8 (N.D. Cal. June 5, 2013) (applying a 50% reduction to time spent on fee

5 motion); Hernandez v. Grullense, 2014 U.S. Dist. LEXIS 61020, 2014 WL 1724356,
6
*13-14 (N.D. Cal. Apr. 30, 2014) (applying a reduction of over 60% to time spent
7
8 preparing a fee motion); Rodriguez v. Barrita, Inc., 2014 U.S. Dist. LEXIS 90021,

9 *25 (N.D. Cal. July 1, 2014) (limiting recovery for fees on fees in disability access

10
case to 98.5 combined attorney and paralegal hours).
11

12

3. Duplicative and Excessive Billing

13

Counsel should exercise billing judgment in a good faith effort to exclude

14
unnecessary time from a fee application. Hensley, 431 U.S. at 437. See also
15

16 Rosenfeld v. United States DOJ, 903 F. Supp. 2d 859, 877 (N.D. Cal. 2012).

17 Defendant argues that much of the time billed by Plaintiffs’ counsel is duplicative or
18
excessive, and that Plaintiffs’ billing records do not indicate any reduction for
19
20 inefficiency, waste, or duplication of effort. (Some, but not all, of the billing entries

21 Defendant complains of have already been addressed by the Court’s striking of
22
unreasonable time spent on class certification, supra.) For example, Mr. Hensley
23
24 opines, and the Court agrees, that Ms. Vandeveld billed 24.9 hours in 2010 on work

25 related to jurisdiction over Perkins that was duplicative of work performed in the
26
Antoninetti class action. (A.V. Decl. Ex. 15, 9-11; Hensley Decl. 38-39, ¶30D.)
27
28 //

19

06-CV-02671

1

4. Excessive & Inadequately Documented Conferencing

2
Defendant contends that Plaintiffs’ billing records reflect an excessive amount
3

4 of conferencing between Plaintiffs’ counsel as well as with potential witnesses.

5 (Hensley Decl. ¶28C.) The Court agrees that the following entries in Mr.
6
Vandeveld’s bill are excessive or inadequately explained: (1) .7 hours on August 20,
7
8 2010, (2) .4 hours on August 26, 2010 for an uncorroborated call with Ms.

9 Vandeveld, (3) 2.2 hours spent traveling to meet and meeting with Ms. Vandeveld on
10
October 1, 2010, which are uncorroborated by her billing entries for that day, and (4)
11
12 1.2 hours on February 1, 2013 as excessive and uncorroborated. The Court strikes

13 (5) 1.8 hours from Mr. Vandeveld’s bill for October 1, 2010 for time spent traveling
14
to and attending what was recorded in Ms. Vandeveld’s invoice as a 24 minute
15
16 meeting.

17

5. Administrative/Clerical/Paralegal Tasks

18
Defendant argues that Plaintiffs’ counsel overbills for time spent providing
19

20 notice to putative class members. (See, e.g., Hensley Decl. ¶30H.) Some time spent

21 preparing and distributing notices does appear to be excessive, and there is no
22
indication that Plaintiffs’ counsel applied billing judgment to reduce their fees in any
23
24 way. The Court will accordingly adjust the rate for 98.9 hours Amy Vandeveld spent

25 contacting, corresponding with, or gathering basic information from potential
26
witnesses and class members by assigning that time a paralegal rate of $125 per hour.
27
28 See generally Davis v. City of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992),

20

06-CV-02671

1 vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993) (“It is simply not
2
reasonable for a lawyer to bill, at her regular hourly rate, for tasks that a non-attorney
3
4 employed by her could perform at a much lower cost.”). The Court will also adjust

5 17.3 hours spent communicating notice in July 2013 to the same paralegal rate. An
6
appendix correlating these adjustments to the billing records is appended hereto.
7
8 D. Discretionary Reduction

9

Each side accuses the other of dragging out settlement negotiations. Mr.

10
Hensley also suggests that virtually all of the time Ms. Vandeveld spent on the case
11

12 from September 6, 2012 to November 1, 2013 was unnecessary. (See Doc. 189-3 at

13 164-171.) The Court declines to exclude settlement activities from the lodestar
14
beyond the adjustments made to time spent drafting materials or providing notice.
15
16 The Court credits most of Plaintiffs’ time spent negotiating a settlement and

17 satisfying notice requirements.
18
After applying these exclusions, the lodestar amounts to 1,461.5 attorney hours
19
20 and 176.2 paralegal hours. A discretionary reduction to the lodestar is one way to

21 address remaining shortcomings in the billing records, e.g., vague timekeeper entries
22
that make it difficult to discern how much time was spent needlessly. See In re
23
24 Smith, 586 F.3d 1169, 1174 (9th Cir. 2009) ("[T]he district court has the authority to

25 make across-the-board percentage cuts . . . in the number of hours claimed . . . as a
26
practical means of trimming the fat from a fee application.") (citation omitted);
27
28 Rosenfeld v. United States DOJ, 903 F. Supp. 2d 859, 877 (N.D. Cal. 2012). To the

21

06-CV-02671

1 extent Defendant requests that the Court apply a further reduction on that basis, the
2
Court declines to do so.
3
4 E. Lodestar Calculation

5

TABLE 1: HOURLY RATES

6

7

Timekeeper

Hourly Rate Billed Hourly Rate Awarded

8

Amy Vandeveld $620

9

Thomas Vandeveld $525

10
Paralegal
11

$125

$420 $420 $125

12

TABLE 2: TIME

13

14

Timekeeper

Time Billed

Reasonable Time

15

Amy Vandeveld 1,406.8 hours

1,070.9 hours

16

(attorney rate)

17

Thomas Vandeveld 494.4 hours

390.6 hours

18

Paralegal

132 hours

176.2 hours

19
TABLE 3: LODESTAR
20

21

Reasonable Reasonable Lodestar

22

Hours

Hourly Rate

23

Amy Vandeveld

1,070.9

$420

$449,778

24

Thomas Vandeveld 390.6

$420

25

Paralegal

176.2

$125

26

$164,052 $22,025

LODESTAR
27

$ 635,855

28

22

06-CV-02671

1 F. Adjustment to Lodestar
2
The Court next considers the Kerr factors to determine whether an adjustment
3
4 to the lodestar is appropriate.5 Several factors have already been considered in

5 calculating the lodestar, including the requisite skill for this type of legal service, the
6
contingent nature of the fee, the customary fee charged in this region for this type of
7
8 service, the experience and skill of Plaintiffs’ counsel, and awards in similar cases.

9 These factors are not reconsidered in adjusting the lodestar. Hensley, 461 U.S. at
10
436-37. The parties have not suggested that there was a relevant time constraint
11
12 imposed by the clients or the circumstances of the case. The Court accordingly

13 focuses herein on the remaining factors: the amounts involved and the results

14
obtained.
15

16

1. Plaintiffs’ Request for an Upward Multiplier

17

California’s Unruh Civil Rights Act provides for a lodestar “multiplier” where

18
the litigation involved a contingent risk or required extraordinary legal skill
19

20 justifying augmentation of the lodestar to approximate the fair market rate for the

21 services provided. See Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). Although
22
the Plaintiff undertook the risk and expense of litigating on a contingent basis over
23
24 an extended period, the Court has already accounted for that factor in its calculation

25 of the attorneys’ reasonable rate. (See No. 05-1660, Doc. 377 at 10-11, Order

26

27

5 Defendant does not argue that class certification, injunctive relief, or

declaratory judgment constitute unrelated claims here, and the Court does not treat

28 those failed pursuits as unrelated, unsuccessful claims. See Supler v. Fkaacs, Inc., No.

11-cv-229, 2013 U.S. Dist. LEXIS 178101, *15-16 (W.D.N.C. Dec. 19, 2013).

23

06-CV-02671

1 enhancing hourly rate from $375 to $400 “because of the contingency nature of the
2
fee and the extended length of the litigation.”) The Court finds no basis for finding
3
4 that the representation of the individuals in the Perkins action presented “rare and

5 exceptional” factors warranting a further enhancement under California law since it
6
resulted in a relatively modest settlement in relation to the time expended and
7
8 because the success of the individual claims was not legally or procedurally

9 complicated in light of the Ninth Circuit ruling in Antoninetti. See Fisher v. SJB-

10
P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000).
11

12

Plaintiffs urge the Court to multiply the loadstar by a factor of 1.5, “which

13 reflects the time involved, the risk involved, and the outstanding success obtained.”
14
(Mot. at 9.) According to Plaintiffs, the additional cases formed a catalyst or
15
16 motivating factor that substantially contributed to Chipotle’s policy change and

17 adjustment of wall heights statewide. Due to the timing of the Ninth Circuit ruling as
18
well as Chipotle’s policy change and elimination of the offending counter walls, the
19
20 Court disagrees. To qualify under a “catalyst” theory, Plaintiffs must establish that

21 their lawsuits (1) motivated the defendant to provide the primary relief sought, and
22
(2) had merit and “achieved its catalytic effect by threat of victory, not by dint of
23
24 nuisance and threat of expense.” Tipton-Whittingham v. City of Los Angeles, 34

25 Cal. 4th 604, 608 (2004).
26
The Court acknowledges that Plaintiffs successfully obtained $10,000 in
27
28 damages for each individual defendant. Beyond that, the Court rejects Plaintiffs’

24

06-CV-02671

1 argument. Plaintiffs have not demonstrated that the class litigation had a synergystic
2
effect that yielded better results for the plaintiffs, or any additional nonmonetary
3
4 relief at all. By their own admission, Plaintiffs’ counsel made a tactical decision that

5 enabled them to test the waters with the individual case while the putative class
6
actions were stayed. (See, e.g., Sugden Decl., Ex. B 36:24-37:2 (July 3, 2012 Hr’g
7
8 Tr.) (“And the other thing . . . that was really important in [the individual Antoninetti]

9 case was the declaratory relief that the plaintiff obtained because that will have an
10
impact in the class action case . . . .”) Plaintiffs’ counsel was so successful that they
11
12 not only reduced the risks associated with class litigation, they effectively eliminated

13 the need for it. Mr. Antoninetti’s win effectively secured the relief sought by the
14
putative class members. If Plaintiffs’ counsel had not already been compensated for
15
16 that feat, the situation would be different. But they have been, and the Court

17 accordingly finds that an enhancement is unwarranted. On this record, any other

18
ruling would countenance double-dipping.
19

20

2. Defendant’s Request for a Downward Multiplier

21

The court should reduce the award if "the relief, however significant, is

22
limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at
23

24 439-40. In considering the extent of the relief obtained, the court "compare[s] the

25 amount of damages sought to the amount awarded." Mercer v. Duke Univ., 401 F.3d
26
199, 204 (4th Cir. 2005). Chipotle asks the Court to reduce the lodestar by 60%
27
28 based on limited success. With respect to the degree of success, the Court considers

25

06-CV-02671

1 “the significance of the overall relief obtained by the plaintiff in relation to the hours
2
reasonably expended . . . .” McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th
3
4 Cir. 2009). In evaluating the degree of success, the Court may consider, but is not

5 limited to, the following factors: the amount and nature of claims the Plaintiff
6
prevailed on compared to those that were dismissed, the amount of damages awarded
7
8 compared to the amount sought, the amount of damages awarded relative to the

9 amount of attorney’s fees sought, and whether the suit conferred a benefit on the
10
public. See id. at 1104-05; McGinnis v. Kentucky Fried Chicken of California, 51
11
12 F.3d 805, 810 (9th Cir. 1994). Determining an appropriate reduction of the fee

13 request is not a scientific matter. Skaff v. Le Meridien, 2008 U.S. Dist. LEXIS
14
123537, *31-32 (C.D. Cal. Aug. 29, 2008). “Rather, it is a calculation based on
15
16 experience and good sense in light of the factual record.” Id. See also Schwarz v.

17 Sec'y of Health & Human Servs., 73 F.3d 895, 904-05 (9th Cir. Or. 1995) (affirming
18
75% reduction of time based on the success of only one of four claims); Harris v.
19
20 Marhoefer, 24 F3d 16, 17 (9th Cir. 1994) (affirming 50% reduction based on the

21 number of successful versus unsuccessful claims). For the reasons outlined below,

22
the Court finds that Plaintiffs’ success was limited in relation to the time expended.
23

24

Plaintiffs’ initial complaint alleged six counts, including a consumer protection

25 claim and tort claims that were dropped in 2011. Consequently, the settlement, as
26
relevant here, is based on the remaining two counts: the ADA and Unruh Act claims.
27
28 Plaintiffs sought monetary relief for the named plaintiffs as well as a class of persons

26

06-CV-02671

1 similarly situated that was estimated to be some 393,000 Californians (allowing for
2
repeat customers). (Pls.’ Mot. for Class Cert. at 11, Doc. 88-1.) As mentioned
3
4 supra, the Court denied class certification on those claims. Although Plaintiffs’

5 counsel secured an excellent monetary award with respect to each individual
6
plaintiff, the plaintiffs here enjoy no nonmonetary benefit that they did not have
7
8 following the Ninth Circuit ruling in the individual Antoninetti case. See Betancourt

9 v. Giuliani, 325 F. Supp. 2d 330, 330-31, 335 (S.D.N.Y. 2004) (reducing plaintiff's
10
attorney fee award where his civil rights class action failed to obtain much relief
11
12 sought, including the certification of a class).

13

While the Antoninetti litigation conferred a benefit on the public, that benefit

14
arose principally from the work leading to the Ninth Circuit ruling, not from this
15

16 case. There has been no such nonmonetary success in the cases relevant here. The

17 Court accordingly finds that the putative class actions were only partly successful.
18
Plaintiffs’ request for fees amounting to over seven times the amount of relief
19
20 obtained is thus unwarranted.

21

In Antoninetti, this Court entered a 25% reduction based upon the failure of

22
plaintiff’s claim for damages arising from litigation-related visits. (No. 05-1660,
23

24 Doc. 377 at 6 n.4.) Here, the results are also mixed—the damages claims

25 successfully resulted in $10,000 payouts totaling $225,000, but Plaintiffs dropped
26
their tort claims in 2011, and their the pursuit of declaratory relief, class certification,
27
28 and an injunction failed. Thus, the work performed by Plaintiffs’ counsel in the

27

06-CV-02671

1 putative class actions failed to obtain relief for any putative class members beyond
2
those individually named. Because Plaintiffs could have achieved the same result
3
4 without their post-remand pursuit of class certification, injunctive relief, and a

5 declaratory judgment, a large amount of time spent on the case at issue here was not
6
“reasonably necessary to obtain the relief that was ultimately obtained.” Rodriguez,
7
8 2014 U.S. Dist. LEXIS 90021, *40 (quoting Velez v. Wynne, 220 F. App’x 512, 513

9 (9th Cir. 2007)). For these reasons, the lodestar is excessive relative to the success
10
achieved by these plaintiffs, even after striking the excessive time spent on class
11
12 certification. The Court therefore applies a fifty percent reduction to the lodestar and

13 will enter a total fee award of $317,927.50.6 See Supler, 2013 U.S. Dist. LEXIS
14
178101, *15-16 (reducing award by 50% where “the individual plaintiff enjoyed a
15
16 good deal of success [but] the proposed class did not”); Dodson v. Dollar Tree

17 Stores, Inc., 2006 U.S. Dist. LEXIS 90416, 12-14 (E.D. Cal. Dec. 13, 2006)
18
(reducing fee award "by 3/7, or forty three percent, to account for [the plaintiff's]
19
20 limited success" where he prevailed on four of seven claims "[b]ecause it is

21 impossible to apportion attorneys' fees between the unsuccessful claims from the
22

23

24

6 In calculating this reduction, the Court is mindful to avoid double-cutting. See

Cabrales v. Cnty. of Los Angeles, 864 F.2d 1454, 1465 (9th Cir. 1988)

25 (“Mathematically, it is inconsequential whether the lodestar figure itself is adjusted for

lack of success or whether the reasonable hours component of the lodestar is adjusted

26 for lack of success. What matters is that the district court did not ‘count’ for lack of

success twice.”). An adjustment is appropriate at both stages of the analysis here

27 because the billing records present reasonably clear criteria for striking unreasonable

time with respect to class certification (257.2 of over 333 hours) from the lodestar, but

28 not as to the unsuccessful pursuit of other claims, injunctive relief, or declaratory relief.

28

06-CV-02671

1 successful claims with any degree of certainty"). See also Coyne v. Reliance Std.
2
Life Ins. Co., 2003 U.S. Dist. LEXIS 26696 (C.D. Cal. Dec. 16, 2003) (applying a
3
4 50% reduction for limited success); Zook v. Brown, 865 F.2d 887, 896 (7th Cir.

5 1989) (reducing number of hours by 75% for “limited results”). This amounts to
6
over 140% of the $225,000 obtained for Plaintiffs. This adjustment thus reflects that,
7
8 while counsel achieved excellent results for each individual client, a great deal of

9 time spent litigating the case was out of proportion to the ultimate result and not
10
reasonably necessary to obtain that result. See Velez, 220 F. App’x at 512;
11
12 Rodriguez, 2014 U.S. Dist. LEXIS 90021, *44.

13

G. Bill of Costs

14
Plaintiffs’ request an award of litigation expenses and costs in the amount of
15

16 $19,824.77. That request is supported by expense reports accompanying the

17 declarations of Plaintiffs’ counsel. Defendant does not oppose this request. The
18
Court accordingly finds the requested amount to be adequately documented and
19
20 reasonable under the circumstances.

21

IV. CONCLUSION

22
The Court has carefully considered Plaintiffs’ motion for attorneys’ fees and
23

24 costs in light of the Kerr factors, including the time required, the novelty and

25 difficulty of the questions involved, and the results obtained. Having done so, the
26
motion is hereby GRANTED in part and DENIED in part. It is accordingly
27
28 ORDERED that Plaintiffs are awarded attorneys’ fees and costs totaling

29

06-CV-02671

1 $337,752.27. This award includes $317,927.50 in attorneys’ fees and $19,824.77 in
2
costs. The Clerk of Court shall enter judgment (as to fees, costs, and expenses) for
3
4 Plaintiffs in the amount of $337,752.27. As no issues remain, the Clerk shall close

5 the docket of this case.
6
IT IS SO ORDERED.
7

8

9
Dated: September 29, 2014
10
11

BARRY TED MOSKOWITZ Chief United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

06-CV-02671

APPENDIX

Amy Vandeveld Invoice: Paralegal Tasks

Paralegal Work

Hours

Page 49

0.1

Page 49

0.5

Page 49

0.1

Page 53

4.2

Page 53

3.2

Page 54

0.2

Page 54

2.1

Page 54

0.5

Page 54

3.2

Page 54

6.8

Page 54

5.2

Page 54

5.3

Page 54

1.8

Page 54

1.5

Page 54

1.6

Page 55

2.4

Page 55

0.8

Page 55

4.5

Page 56

0.5

Page 56

3.8

Page 56

1

Page 57

2.7

Page 57

4.3

Page 58

2.1

Page 58

0.5

Page 58

2.1

Page 58

1.4

Page 59

1.2

Page 59

1

Page 59

1.2

Page 63

0.7

Page 63

0.8

Page 65

0.5

Page 65

0.3

Page 65

0.7

Page 65

0.4

Page 65

0.5

Page 65

0.4

Page 65

0.5

Page 65

0.5

Page 65

0.2

Page 65

0.1

Page 65

0.4

Page 80

2.5

Page 93

0.5

Page 93

0.3

Page 93

7.4

Page 93

1.8

Page 94

0.2

Page 94

0.6

Page 94

0.1

Page 138

6.5

Page 139

10.8

Page 167

9.1

Page 156

0.3

Page 170

1

Page 171

3.3

Total

116.2

 
 1

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-BTM (WMc)

12

Plaintiffs,

vs.

13 CHIPOTLE MEXICAN GRILL, INC. ,

14

Defendant.

15

ORDER RE: PROTECTIVE ORDER

16

In this case, Plaintiffs seek transaction information pertaining to all Defendant's stores in

17 California. Specifically, Plaintiffs want from each of Defendant's California stores the aggregate

18 number of the transactions customers conducted by the internet, facsimile or "in store" for the

19 years 2005 to the present. Plaintiffs claim such information is not trade secret and should not the

20 be the subject of protection under Federal Rule of Civil Procedure 26(c). Plaintiff also claims

21 Defendant has waived the right to a protective order and that Plaintiffs have presented an

22 alternative procedure for identifying and using such information rendering a protective order

23 unnecessary. Defendant contends the protective order is necessary to protect its commercial

24 information and to prevent it from being placed at a competitive disadvantage to its competitors.

25 According to Defendant, a protective order is essential to achieve that goal.

26

STANDARD

27

Under Federal Rule of Civil Procedure 26(c)(1) a party "may move for a protective order in

28 the court where the action is pending... [upon a showing of]...good cause." The Rule specifically

- 1 -

06cv2671-BTM (WMc)

1 acknowledges the right of the requesting party, upon a showing of good cause, to obtain a

2 protective order "requiring that a trade secret, or other confidential research, development or

3 commercial information not be revealed or be revealed only in specified ways...." The burden is on

4 the party seeking a protective order to show good cause therefor. See Blankenship vs. Hearst

5 Corp., 519 F. 2d 418, 429 (9th Cir. 1975). The Ninth Circuit Requires a balancing test to

6 determine whether the risk of an inadvertent disclosure to the competitors of the producing party

7 outweighs any impairment to the requesting party's ability to prosecute its case. Brown Bag

8 Software vs. Symantec Corp., 960 F. 2d 1465, 1470 (9th Cir. 1991). However, the Ninth Circuit

9 has also recognized trial court has “‘broad discretion... to decide when a protective order is

10 appropriate and what degree of protection is required.’” Phillips vs. Estate of Byrd, 307 F.3d

11 1206, 1211 (9th Cir. 2002) (Citation omitted.) In Phillips the Ninth Circuit also says the

12 “law...gives district courts broad latitude to grant protective orders to prevent this closure of

13 materials for many types of information, including, but not limited to, trade secrets or other

14 confidential research, development or commercial information.” At 1211 (Emphasis in original.)

15 (Citing Federal Rule of Civil Procedure 26(c)(7).).

16

ANALYSIS

17 Good Cause Exists For A Protective Order

18

Applying the Brown Bag balancing test, and without yet considering the issue of waiver,

19 Defendant has shown good cause for a protective order. It is appropriate to grant a protective

20 order where commercially sensitive information is involved. Compaq Computer Corp. Vs.

21 Packard Bell Electronics, Inc. 163 F.R.D. 329, 338 (N.D. Cal. 1995). The court can understand

22 that Defendant competitors might well be interested in knowing the number of its customer

23 transactions for its California locations broken down by internet, facsimile or “in store,”

24 especially if that information covers multiple years from which patterns could be determined.

25 There is no evidence chipotle has not taken pains to keep this information confidential. It would

26 be very difficult, if not impossible, for competitors to compile that information through legitimate

27 means. It seems fairly obvious this information would be useful to Chipotle’s competitors and that

28 those competitors could use the information that our and chipotle works to Chipotle’s competitive

- 2 -

06cv2671-BTM (WMc)

1 disadvantage. The commercial harm to Defendant could be significant.

2

On the other hand, because Plaintiffs are consumers and not competitors of Chipotle and

3 with a protective order in place, “there is virtually no risk that [Chipotle] ‘secret’ will be

4 disclosed.” See Trevino vs. ACB American, Inc., 232 F.R.D. 612, 617 (N. D. Cal. 2006). The

5 information Plaintiffs seek can be provided under a protective order in such a way as to protect

6 Chipotle’s commercially sensitive information without impairing plaintiffs’ ability to prosecute

7 their case. See Brown Bag, at 1470. Moreover, since plaintiffs are not competitors they have no

8 need for this information except for purposes of the instant litigation. Therefore, an appropriate

9 protective order would not wrongfully interfere with plaintiffs’ ability to prosecute their case.

10

Plaintiffs have made two suggestions which the court adopts in reference to the proposed

11 protective order. First, when Defendant produces the information Plaintiffs must randomly

12 provide a number for each store and not disclose the name or address or general location of any of

13 the stores identified in the information provided by Defendant. In other words, Plaintiffs will

14 anonymously designate each of Defendant’s restaurants so that the “per-store” number cannot be

15 attributed to a specific restaurant location. Alternatively, Defendant may provide the “per-store”

16 information in the aggregate. For example, “Chipotle had 1000 transactions at its modified stores

17 in California in 2005, etc.”1

18 Chipotle Has Not Waived the Right to Obtain a Protective Order

19

Plaintiffs argue Defendant has waived the right to have a protective order “because

20 Chipotle has already disclosed transaction data for at least 2 of its restaurants in San Diego”

21 through the deposition of Defendant employee Matthew Cieslak (Cieslak).2 Plaintiffs do not cite

22 any case setting forth a legal basis for their claim of waiver. However, plaintiffs did attach as an

23 exhibit to their letter brief a copy of the deposition of Cieslak taken October 26, 2006.

24

A review of the Cieslak deposition establishes Plaintiffs’ argument is ill-founded for

25 numerous reasons. First, Cieslak worked at only five Defendant stores. At the time of his

26 deposition, Cieslak had been working at the Pacific Beach location for only fourteen months and

27 1. Plaintiffss’ letter brief., pg. 2, January 27, 2011.
28 2 Id., pg. 3

- 3 -

06cv2671-BTM (WMc)

1 had not worked at any of the other locations more than 2 consecutive years. Before that he worked

2 at the Hillcrest location from October 2003 through January 2004 and again from May through

3 August 2004. He worked at the La Jolla location for less than one year. He worked at the La

4 Mesa location for five months in 2004. He worked at the Valencia location for ten days in 2006.3

5 Given the vastly greater number of Chipotle stores in California, Cieslak’s experience in five

6 stores cannot logically constitute a waiver of commercially sensitive information in all the

7 Chipotle stores throughout California. Second, it is clear Cieslak only gave estimates, not precise

8 figures, for the 2 or 3 stores on which he provided testimonial information. Third, he clearly

9 testified he could not “speak for other stores specifically.” Fourth, he testified the transaction

10 information varies from store to store.4 Fifth, Cieslak only testified as to “in-store” transactions.

11 He did not testify about internet or fax transactions. Finally, the limited estimates Cieslak

12 provided were not for the entire time period Plaintiffs desire. Indeed, he did not provide his

13 estimates for more than a two year time period – the longest time he had worked at any of the five

14 Chipotle locations identified in his deposition. Therefore, there is factually no adequate basis to

15 establish a waiver regarding the disclosure of all transactions for all Chipotle stores in California

16 based on the Cieslak deposition.

17 Sealing

18

Chipotle has requested the court issue an order requiring a sealing order for all documents

19 submitted pursuant to the protective order filed in conjunction with any later motions. However,

20 any such application must be made on a case-by-case basis to the District Judge hearing the

21 motion.

22

IT IS SO ORDERED.

23 DATED: March 16, 2011

24

25

Hon. William McCurine, Jr.

U.S. Magistrate Judge

26

United States District Court

27 3 Cieslak deposition, pgs. 8-13
28 4 Id.

- 4 -

06cv2671-BTM (WMc)

1 2 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

- 5 -

06cv2671-BTM (WMc)

 
 Case_. _ 3_ :0'6>...I-VcVv"-02671-BTM-JLB Document 83 Filed 04/05/11 Page 1 of 12rA')

1 IIAmy B. Vandeveld, SBN 137904 LA W OFFICES OF AMY B. VANDEVELD
2 111850 Fifth Avenue, Suite 22 3 IISan Diego, California 92] 01
Telephone: (619) 231-8883 
 4 Facsimile: (619) 231-8329 

5 Attorney for Plaintiffs

[- - g 
 FILED
 APR 5 2011

CLERk', I-J.S~. - l)4" ST-RICT COURT

SOUTHERN Dt:ft.CT OFCAUFORNIA

BY

DEPUTY

6

7

8

UNITED STATES DISTRICT COURT 


9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

10

11

1211MAURIZIO ANTONINETTI, JEAN RIKER,

JAMES PERKINS, KAREN FRIEDMAN and

13 nMICHAJEL RIFKIN, on behalf of themselves and

all others' similarly situated, 14

Plaintiffs, 15

16

v.

17 CHIPOTLE MEXICAN GRILL, INC., a Colorado Corporation and DOES 1-10,

CASE NO. 06 CV 2671 BTM (WMc)
~
[1I1l~P~RB] PROTECTIVE ORDER RE: EVIDENCE OF TRANSACTIONS

18 Defendants.

19

20
21 lit.
22

PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action may potentially involve production

23 of confidential, proprietary, or private information for which special protection from

24 public disclosure and from use for any purpose other than prosecuting this litigation would

25 be warranted. This Order, and the protection that it affords, extends only to the limited

26 information or items that are specifically defined herein as Transaction Disclosures or 27

28

JRROP08~DJ PROTECTIVE ORDER

1

06cv2671 BTM (WMc)

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 2 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 3 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 4 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 5 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 6 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 7 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 8 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 9 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 10 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 11 of 12

Case 3:06-cv-02671-BTM-JLB Document 83 Filed 04/05/11 Page 12 of 12

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9

10 MAURIZO ANTONINETTI, on behalf of

himself and others similarly situated,

11

Plaintiff,

12

vs.

13 CHIPOTLE, INC,, et al., 14
15

Defendant.

CASE NO. 06cv2671-BTM (WMc)
ORDER GRANTING IN PART AND DENYING IN PART CHIPOTLE’S MOTION TO COMPEL FURTHER ANSWERS TO REQUEST FOR PRODUCTION NO. 12

16

The general issue before this Court is whether Mr. Antoninetti, the class plaintiff, is an

17 appropriate class representative given his past and present business relationship with class counsel,

18 Ms. Amy Vandeveld, and the brother of class counsel, Mr. Tom Vandeveld, also an attorney. The

19 issue has been presented to the Court in the form of a motion to compel a supplemental answer to

20 Defendant Chipotle’s request for production number 12. That request for production seeks "all

21 Documents that evidence, discuss, mention, refer to, reflect or Relate to the amount of income You

22 receive annually as a result of Your participation in lawsuits involving state or federal disability laws

23 as an expert." Chipotle contends this information is discoverable because it bears on the adequacy of

24 Mr. Antoninetti as the class plaintiff. Mr. Antoninetti contends this request offends his privacy rights

25 and is also overbroad and burdensome.

26

Plaintiff’s claims arise under the Americans with Disabilities Act (42 U.S.C. §12131, et seq.),

27 along with certain other state law claims for relief. Jurisdiction is properly in this Court pursuant to

28 28 U.S.C. Sections 1331 and 1343.

- 1 -

06cv2671-BTM (WMc)

1

LEGAL STANDARD

2

Federal Rule of Civil Procedure 23(a)(4) requires “the representative parties will fairly and

3 adequately protect the interests of the class.” Further, Federal Rule of Civil Procedure 26(b)

4 allows “discovery regarding any nonprivileged matter that is relevant to any party’s claim or

5 defense – including the existence, description, nature, custody, condition, and location of any

6 documents or other tangible things and the identity and location of persons who know of any

7 discoverable matter.” Today, this Court is not tasked with determining whether Mr. Antoninetti is

8 an adequate class representative; District Judge Barry Ted Moskowitz will ultimately make that

9 determination. Rather, this Court will only decide whether Chipotle is entitled to a supplemental

10 response to its request for production number 12 in an attempt to determine the adequacy of Mr.

11 Antoninetti as a class representative.

12

ANALYSIS

13

One of the key cases dealing with determining the adequacy of a class plaintiff is the

14 Sipper case. Sipper v. Capital One Bank, 2002 WL 398769 (C.D. Cal. 2002). In Sipper, there

15 were two motions before the court. Id. at 1. The plaintiff, the class representative, brought a

16 motion to certify the class. Id. Defendant Capital One opposed the motion for class certification,

17 bringing its own motion to deny the class on the primary ground of allegedly inadequate

18 representation by the class representative and class counsel. Id. at 2. Central to Capital One’s

19 theory was the business relationship between class representative Ed Sipper and class counsel

20 Barry Kramer. Id. at 2.

21

Sipper has come to stand for the following principle: “The existence of a business

22 relationship does not automatically preclude class representation.” Id. at 3 (citing Macarz vs.

23 Transworld Systems, Inc., 193 F.R.D. 46, 52 (D. Conn. 2000)(where the court refused to deny

24 class certification based solely on relationship without indication of collaboration to generate

25 fees)(emphasis in original)). Four factors influenced the court in Sipper in determining the class

26 plaintiff was not an adequate representative of class because of his business relationship with class

27 counsel. Sipper, at 3. First, Sipper and Kramer “are business partners in a series of real estate

28 deals.” Id. Second, “according to Sipper, he depends on Kramer for his involvement in these

- 2 -

06cv2671-BTM (WMc)

1 deals because Kramer supplies the money.” Id. Third, “not only are Kramer and Sipper business

2 partners, they have been joint defendants in a California lawsuit.” Id. Fourth, “neither Kramer nor

3 Sipper felt the need to disclose this relationship to the court, his other clients in these matters, or

4 Kramer’s co-counsel . . . In previous deposition testimony and interrogatories Sipper danced

5 around questions that would have required revealing his relationship with Kramer. Nor has

6 Kramer come forward with this information on his own. Why?” Id.

7

The Sipper court went on to say:

8

In sum, the court emphatically disagrees with counsel’s relevance argument and is

surprised by class counsel’s attitude toward a matter of such importance. A central concern

9

of the Rules of Civil Procedure governing class actions is ensuring that the class action

format is not hijacked by parties or attorneys to their own ends at the expense of the other

10

class members. Of particular concern, “courts fear that a class representative who is

closely associated with the class attorney would allow settlement on terms less favorable to

11

the interest of absent class members.”

12 Id. at 4 (citing Susman vs. Lincoln American Corp., 561 F.2d 86, 91 (7th Cir. 1977).

13

Back to the instant case, Mr. Antoninetti has earned income from an extensive, long-term

14 business relationship with class counsel. Mr. Antoninetti has testified in this case to having

15 worked as an expert or consultant with class counsel in ADA matters approximately 50 times.1 In

16 that capacity, he charged $120 per hour.2 He has a similar, though less extensive, relationship with

17 the second class counsel.3 Mr. Antoninetti worked as an expert with class counsel before the

18 instant lawsuit was filed. He does not currently have any cases with class counsel in which he is

19 serving as a consultant or expert witness. In addition, he may or may not undertake such work

20 with class counsel when the current case has concluded.4

21

Contrary to Sipper, Mr. Antoninetti is not an attorney and has not served as co-counsel

22 with either class counsel. However, the inquiry into the business relationship between the class

23 representative and class counsel is not limited to those situations where the class representative is

24

25

1. Deposition of Mr. Antoninetti taken October 4, 2006, pg. 125 [Exhibit 2 to Chipotle’s

moving papers.] 26

2 Id. at 281. 27

3 Id. at 124. 28

4 Id. at 132.

- 3 -

06cv2671-BTM (WMc)

1 also an attorney. The relevant inquiry is whether the business relationship between the class

2 representative and class counsel compromises the ability or willingness of the class representative

3 to faithfully advocate for the interests of the class. Under Sipper, Chipotle has established

4 sufficient basis under Federal Rule of Civil Procedure 26(b)(1) to conduct additional discovery

5 into the past and present business relationship between Mr. Antoninetti and class counsel in

6 support of its claim that Mr. Antoninetti is not an appropriate class representative.

7

Notwithstanding the above, Chipotle’s request for production number 12 is overbroad, as it

8 is unlimited as to time and seeks information not relevant to the business or other relationship

9 between Mr. Antoninetti and class counsel. However, despite its overbreadth, the request does

10 seek documents relevant to a determination of Mr. Antoninetti’s adequacy as a class

11 representative. Therefore, some discovery on this subject is warranted. Mr. Antoninetti must

12 produce documents showing any and all income he has received from his work as an expert

13 or consultant for both class counsel for the period January 1, 1998 through December 6,

14 2006, the date the subject complaint was filed.

15

With respect to Defendant’s request for copies of Mr. Antoninetti’s tax returns, there is no

16 special privilege related to tax returns in federal court. Rather, Rule 26 governs the issue of

17 discoverability and relevance is the appropriate standard. See Heathman vs. United States District

18 Court for the Central District of California, 503 F.2d 1032,1035 (9th Cir. 1974). Here, because

19 Chipotle has not shown Mr. Antoninetti’s tax returns are relevant or likely to lead to the discovery

20 of admissible evidence, his tax returns are not discoverable. Chipotle’s request is overbroad

21 because Mr. Antoninetti’s tax returns will undoubtedly show income received from a variety of

22 other sources not at all relevant to this litigation, as well as deductions, property owned, etc.

23

Finally, Counsel should not interpret, or read into this ruling, any suggestion that this court

24 believes class counsel and the class representative have colluded or failed to vigorously assert and

25 protect the interests of the class. Indeed, class counsel and the class representative have

26 vigorously represented the interests of the class.

27

IT IS SO ORDERED.

DATED: April 21, 2011

28

Hon. William McCurine, Jr.

- 4 -

06cv2671-BTM (WMc)

1

U.S. Magistrate Judge

United States District Court

2

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

- 5 -

06cv2671-BTM (WMc)

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9

10 MAURIZO ANTONINETTI, on behalf of

himself and others similarly situated,

11

Plaintiff,

12

vs.

13 CHIPOTLE, INC,, et al.,

CASE NO. 06cv2671-BTM (WMc)
ORDER GRANTING CHIPOTLE’S MOTION TO COMPEL 20 DEPOSITIONS OF PUTATIVE CLASS MEMBERS

14

Defendant.

15

16 I. INTRODUCTION

17

On April 18, 2011, Plaintiff filed a motion for class certification [Doc. No. 88]. Defendant,

18 Chipotle Mexican Grill, Inc., (Chipotle) has not yet filed an opposition. Chipotle comes before the

19 Court now to seek a discovery order to conduct depositions of individuals identified by Plaintiffs

20 as witnesses who signed declarations as putative class members in support of Plaintiff's class

21 certification motion.

22

Plaintiff’s claims arise under the Americans with Disabilities Act (42 U.S.C. §12131, et

23 seq.), along with certain other state law claims for relief. Jurisdiction is properly in this Court

24 pursuant to 28 U.S.C. Sections 1331 and 1343.

25 II. DISCUSSION

26

A. Chipotle's Desired Discovery

27

Chipotle desires to conduct "short, one-hour depositions of 20 of the 41 individuals whom

28 Plaintiffs identified as witnesses in their supplemental disclosures, and who then signed

- 1 -

06cv2671-BTM (WMc)

1 declarations as putative class members in support of Plaintiffs' class certification motion."

2 (Chipotle's Letter Brief). The proposed deponents share two characteristics: (1) they were

3 identified as witnesses in Plaintiff’s supplemental disclosures and (2) they signed declarations as

4 putative class members in support of Plaintiff’s motion for class certification. At the Court’s

5 request, Chipotle submitted sample depositions questions to the Court and Plaintiff. Plaintiff has

6 submitted specific objections to Chipotle's proposed questions.

7

B. Plaintiff’s Opposition to the Proposed Discovery

8

Plaintiff contends this Court should not grant Chipotle leave to depose unnamed class

9 members because: (1) Chipotle has failed to show the necessity of such discovery, (2) Chipotle has

10 failed to show the relevance of such discovery, and (3) Chipotle's proposed deposition questions

11 are designed to confuse, mislead and discourage class participation.

12

C. Is Discovery of Non-Class Plaintiffs Allowable?

13

Courts do not ordinarily permit discovery from absent class members. McPhail v. First

14 Command Fin. Planning, Inc., 251 F.R.D. 514, 517 (S.D.Cal. 2008); see also Fischer v.

15 Wolfinbarger, 55 F.R.D. 129, 132 (W.D.Ky.1971) (“It is not intended that members of the class

16 should be treated as if they were parties plaintiff, subject to the normal discovery procedures,

17 because if that were permitted, then the reason [behind Rule 23(a)(1) of the Federal Rules of Civil

18 Procedure] would fail.").

19

Although Courts do not usually allow discovery from absent class members, the rules

20 pertaining to such discovery are flexible, especially where the proposed deponents have been

21 identified as potential witnesses or have otherwise "injected" themselves into the litigation. See

22 Mas v. Cumulus Media Inc., 2010 WL 4916402, *3 (N.D.Cal. Nov. 22, 2010) and Moreno v.

23 Autozone 2007 WL 2288165, *1 (N.D.Cal. August 3, 2007) (citations omitted). Therefore, such

24 discovery may be taken even prior to certification where "the proponent of the deposition

25 demonstrates discovery is not sought to take undue advantage of class members or to harass class

26 members, and is necessary to the trial preparation (or in this instance for preparation of the

27 opposition to class certification).” Moreno, 2007 WL 2288165 at *1.

28 /////

- 2 -

06cv2671-BTM (WMc)

1 C. Analysis

2

Chipotle seeks to depose absent class members that have submitted declarations in support

3 of Plaintiff's motion for class certification and whom Plaintiff has identified as witnesses in

4 Plaintiff's supplemental disclosures. Thus, the proposed deponents have injected themselves into

5 the litigation on two fronts and cannot claim noninvolvement as a means of avoiding discovery. In

6 addition, the court is satisfied Chipotle is not taking the proposed depositions in order “to take

7 undue advantage of class members or to harass class members.” Moreno, surpa, at *1.

8 Furthermore, the proposed discovery is clearly relevant to the claims and defenses in the instant

9 case and calculated to lead to the discovery of admissible evidence. Fed. R. Civ . Proc. 26(b)(1).

10

The Court notes that under certain circumstances depositions of absent class members

11 could have a chilling effect on their willingness to be part of the class. Tierno vs. Rite Aid, 2008

12 WL 2705089, *3, fn. 2 (N.D.Cal. July 8, 2008) (Italics added). However, that concern has little

13 impact in this case for several reasons. First, the proposed deponents are not employees of

14 Chipotle; rather, they are customers. Therefore, they are not under the pressure employees would

15 face being deposed by their employer. Chipotle cannot directly or impliedly threaten the putative

16 class members with loss or reduction of employment or some other adverse action affecting the

17 work environment. Indeed, a case can be made that Chipotle is more dependent on the putative

18 class members than they are dependent on Chipotle. In fact, part of Chipotle’s motivation is to

19 maintain or restore its corporate image with the demographic represented by the putative class

20 members. Second, an employer would have had ample opportunity to question the prospective

21 class member employees. However, in this case, the most effective way for Chipotle to question

22 these particular putative class members is by deposition. Third, because the non-employee

23 putative class members have submitted declarations in support of Plaintiff’s motion for class

24 certification, their expectation of noninvolvement in the litigation is significantly less than the

25 expectation of putative class members who have not affirmatively injected themselves into the

26 litigation. Fourth, each deposition is limited to one hour and is appropriately focused.

27 Furthermore, Chipotle has submitted its proposed questions in advance to the Court, thereby

28 substantially reducing the likelihood of abuse. Please See Addendum A.

- 3 -

06cv2671-BTM (WMc)

1

The court finds the Mas and Moreno cases persuasive. Chipotle is allowed to take the

2 depositions of 20 of the potential class members who have submitted declarations in support of

3 plaintiffs motion for class certification with the following limitations:

4

a. Each deposition is limited to one hour actual running time. Colloquy between

5

counsel does not count toward the one hour limitation.

6

b. Each deposition must be videotaped, unless the deposition proceeds by telephone,

7

in which case videotaping will not be necessary. Depositions by telephone must be

8

audiotaped.

9

c. Chipotle will bear the full cost of taking and videotaping and audiotaping the

10

depositions.

11

d. The depositions must be reasonably noticed. Notices of deposition must be

12

personally served on plaintiff’s counsel at least 10 days before any proposed

13

deposition, unless there is written agreement to shorten the time.

14

e. If one party believes the other party is acting inappropriately at the deposition, the

15

Court will review the videotapes and/or audiotapes of the contested depositions

16

after all the depositions have been completed. The Court will consider an award of

17

sanctions after the Court’s review of the depositions.

18

f. Chipotle can only depose those potential class members who have submitted

19

declarations in support of plaintiffs motion for class certification and who have

20

also been identified by Plaintiff as witnesses in his initial disclosures.

21 Should Chipotle be allowed to ask the deponents whether Ms. Vandeveld has instructed them not

22 to speak with Chipotle’s representatives?

23

There is no need for Chipotle to ask questions designed to, or which have the effect of,

24 invading the attorney-client or work product privileges that may obtain in order to discover the

25 /////

26 /////

27 /////

28 /////

- 4 -

06cv2671-BTM (WMc)

1 information Chipotle represented to the Court it needs to oppose Plaintiff’s representations

2 regarding numerosity in Plaintiff’s motion for class certification. Chipotle can accomplish his

3 goals without invading the privileges. Therefore, Chipotle needs to phrase its questions so as to

4 avoid invading these privileges.

5

Addendum A provides the Court’s rulings on the specific deposition questions Chipotle

6 seeks to ask.

7

IT IS SO ORDERED.

8 DATED: May 23, 2011

9

Hon. William McCurine, Jr.

U.S. Magistrate Judge

10

United States District Court

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 5 -

06cv2671-BTM (WMc)

1

Addendum A

2

Chipotle Objections Table

3 QUESTION

OBJECTION

4

VERACITY OF STATEMENTS
5 RE VISITS TO CHIPOTLE

RULING

6 Before learning that Plaintiffs in this None

case were looking for people to sign
7 declarations, had you ever visited a

Chipotle restaurant?
8
When did you first visit Chipotle?

None

9
Where?

None

Does not apply
Does not apply Does not apply

10 Were you able to see your food

None

Does not apply

being prepared on that initial visit?
11

Do you have a favorite order at
12 Chipotle that you usually get, or

This question is misleading since it Overruled. The question is relevant implies that there are "usual" orders. and appears reasonably calculated to

does your order change from visit to Orders are customized. It is also

13 visit?

irrelevant.

lead to the discovery of admissible evidence.

14
Have you ever placed a Chipotle
15 order by fax or online?
16
17
Which Chipotle restaurants have
18 you visited?

This question is misleading since it implies that access could have been satisfied by fax or online orders. It is also irrelevant because the issue in this case is in-store ordering.
none

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.
Does not apply

19

20

21

22

Were you able to see your food prepared at any of those

None

23 locations?

When was the last time you ordered None
24 food at a Chipotle restaurant?

Does not apply Does not apply

25 Were you able to see your food
prepared on that most recent visit?
26

None

Does not apply

27

28

- 6 -

06cv2671-BTM (WMc)

1 What is your understanding of what ABUSIVE, MISLEADING,

Overruled. The question is relevant

2

you meant when you said in your declaration, “I would like the same

CONFUSING, TAKES UNDUE ADVANTAGE OF ABSENT

and appears reasonably calculated to lead to the discovery of admissible

3

opportunity to see the food on display and the preparation of my

CLASS MEMBER. This is a perfect example of how a question

evidence.

4

order as is given to other Chipotle can seem innocuous to attorneys, customers who are able to stand and but is misleading to lay witnesses.

5 who can see over the high walls”?

The declarants, in signing their declarations, simply attest to the

6

truth of the statements in the declarations. The witnesses did not

7

draft the declarations but, no matter how this question is answered, it is

8

likely that Mr. Sugden will use the response against the witness, just as

9

he did with one deponent, Mr. Ott, who Mr. Sugden accused of "lying

10

under oath" in Mr. Sugden's May 6, 2011 letter to Plaintiffs' counsel.

11

When Mr. Ott was asked if he had written language in the declaration,

12

Mr. Ott, an unsophisticated lay person, said yes, meaning that he

13

had provided the information contained in the declaration. Mr.

14

Ott has is now being portrayed by Mr. Sugden as claiming to have

15

drafted the actual pleading, when Mr. Ott only meant to convey that

16

he written the information contained in the declaration, not the

17

declaration itself.

18 19 20
HOW WITNESS CAME TO
21 SIGN THE DECLARATION

This question also suggests that there is some other answer than the obvious, which is confusing and misleading.

22 What is your understanding of what ABUSIVE, MISLEADING,

Overruled. The question is relevant

you meant when you said in your

CONFUSING, TAKES UNDUE

and appears reasonably calculated to

23 declaration, “I could not see the

ADVANTAGE OF ABSENT

lead to the discovery of admissible

food on display or the preparation of CLASS MEMBER, CALLS FOR A evidence.

24 my entrees”?

LEGAL OPINION FROM LAY

WITNESS. See objections to

25

previous question

26

27

28

- 7 -

06cv2671-BTM (WMc)

1 Other than any private conversations VIOLATES RIGHT OF

Overruled. The question is relevant

2

between you and Ms. Vandeveld’s office, were there any other ways

FREEDOM OF ASSOCIATION; RIGHT OF PRIVACY. Seeks

and appears reasonably calculated to lead to the discovery of admissible

3

that you learned that this lawsuit existed?

information from unnamed class evidence. members about private

4

conversations they may have had with other class members,

5

which discourages participation in the lawsuit. The answer to

6

this question is also IRRELEVANT to any issue in the

7

case and can only have a chilling affect on the unnamed class

8

members. What difference does it make how the declarant

9

learned of the lawsuit, other than to give Chipotle leads to other

10

class members that it can investigate and interrogate?

11 Other than any private conversations VIOLATES RIGHT OF

Overruled. The question is relevant

between you and Ms. Vandeveld’s FREEDOM OF ASSOCIATION; and appears reasonably calculated to

12 office, were there any other ways

RIGHT OF PRIVACY. Seeks

lead to the discovery of admissible

that you learned that the Plaintiffs in information from unnamed class evidence.
13 this case were looking for people to members about private

sign declarations for them?
14

conversations they may have had with other class members,

which discourages participation

15

in the lawsuit. The answer to

this question is also

16

IRRELEVANT to any issue in the

case and can only have a chilling

17

affect on the unnamed class

members. What difference does

18

it make how the declarant

learned of the lawsuit or the

19

request for declarations, other

than to give Chipotle leads to

20

other class members that it can

investigate and interrogate?
21

22

23

24

25

26

27

28

- 8 -

06cv2671-BTM (WMc)

1 Reasonable follow-up, such as:

VIOLATES RIGHT OF

Overruled. The question is relevant

2

[If they learned through an Internet posting] What do you remember

FREEDOM OF ASSOCIATION; RIGHT OF PRIVACY. Seeks

and appears reasonably calculated to lead to the discovery of admissible

3

reading on the Internet about the need for declarations in this case?

information from unnamed class evidence. members about private

4

conversations they may have had with other class members,

5

which discourages participation in the lawsuit. The answer to

6

this question is irrelevant to any issue in the case and can only

7

have a chilling affect on the unnamed class members. What

8

difference does it make how the declarant learned of the lawsuit

9

and/or the need for declarations, other than to give Chipotle leads

10

to other class members that it can investigate and interrogate?

11 [If they learned through a discussion Same objections as to previous Overruled. The question is relevant

with a friend] What do you
12 remember about the discussion?

question.

and appears reasonably calculated to lead to the discovery of admissible

evidence.
13

QUESTIONS RE SUBJECT
14 MATTER OF ONLINE

POSTINGS:
15
(privilege, if affected by the

There is no waiver of a right to

Sustained. There is no evidence of

16 witness’ answer, was waived as to
these subject matters)

privacy by someone anonymously waiver of any privilege. posting a communication online.

17

18

19 Did anyone ever tell you that people IRRELEVANT, ATTORNEY-

Overruled. The question is relevant

in wheelchairs cannot see their food CLIENT PRIVILEGE/ATTORNEY and appears reasonably calculated to

20 prepared at Chipotle restaurants?

WORK PRODUCT PRIVILEGE lead to the discovery of admissible VIOLATION. VIOLATES RIGHT evidence.

21

OF FREEDOM OF ASSOCIATION; RIGHT OF

22

PRIVACY. Seeks information from unnamed class members

23

about private conversations they may have had with other class

24

members, which discourages participation in the lawsuit. The

25

answer to this question is irrelevant to any issue in the

26

case and can only have a chilling affect on the unnamed class

27

members.

28

- 9 -

06cv2671-BTM (WMc)

1 Reasonable follow-up, such as, who, Same objections as to previous

2

when, whether they referred to a particular Chipotle location or

question.

3

implied that persons in wheelchairs cannot see the food preparation at

4 any Chipotle location.

Did anyone ever tell you that
5 Chipotle customers in wheelchairs

Same objections as to previous question.

see only the wall built in front of the
6 food preparation counters?

7

Reasonable follow-up, such as, who, Same objections as to previous

8 when, whether they referred to a

question.

particular Chipotle location or
9 implied that persons in wheelchairs

cannot see the food preparation at
10 any Chipotle location.

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.
Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.
Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.

11

12

13 Did anyone ever tell you that

Same objections as to previous

“Chipotle has a similar design in all question.

Overruled. The question is relevant and appears reasonably calculated to

14 its restaurants”?

lead to the discovery of admissible evidence.

15
Reasonable follow-up, such as who, Same objections as to previous

Overruled. The question is relevant

16 when, any basis for thinking all
locations would be the same.

question. The answer to this

and appears reasonably calculated to

question is irrelevant to any issue in lead to the discovery of admissible

17

this case.

evidence.

18

19

20

21 Did anyone ever tell you that
Chipotle cares more about décor
22 than about people in wheelchairs?

Same objections as to previous question.

23
Reasonable follow-up, such as who, Same objections as to previous
24 when, what witness believed that to question.
mean.
25

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.
Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.

26

27

28

- 10 -

06cv2671-BTM (WMc)

1 Did anyone ever tell you that the

IRRELEVANT, ATTORNEY-

Overruled. The question is relevant

2

lawsuit needs to be “certified” in order to make Chipotle fix its

CLIENT PRIVILEGE/ATTORNEY and appears reasonably calculated to WORK PRODUCT PRIVILEGE lead to the discovery of admissible

3

restaurants? (i.e., lower the wall at its restaurants)

VIOLATION, RIGHT TO FREEDOM OF ASSOCIATION,

evidence.

4

RIGHT TO PRIVACY, ABUSIVE, MISLEADING,CONFUSING,

5

TAKES UNDUE ADVANTAGE OF ABSENT CLASS MEMBER

6

LAY WITNESS.

Reasonable follow-up, such as who, Same objections as to previous

Overruled. The question is relevant

7 when, what witness believed that to question. This is another witch hunt and appears reasonably calculated to

mean.
8

into the identity of other class members with whom the witness

lead to the discovery of admissible evidence.

may have privately discussed the

9

case. There is no purpose to this

questioning, other than to chill the

10

participation of class members,

since any answer to the question

11

will have no bearing on any issue in

this case.
12

Did anyone ever tell you that Amy Same objections as to previous

Overruled. The question is relevant

13 Vandeveld needs 50 declarations

question. This is another witch hunt and appears reasonably calculated to

from individuals in wheelchairs who into the identity of other class

14 had visited Chipotle and were

members with whom the witness

lead to the discovery of admissible evidence.

unable to see their food being

may have privately discussed the

15 prepared due to a high wall in front case. There is no purpose to this

of the food preparation counter?
16

questioning, other than to chill the participation of class members,

since any answer to the question

17

will have no bearing on any issue in

this case.
18
Reasonable follow-up, such as who, Same objections as to previous

Overruled. The question is relevant

19 when, what witness believed that to question. This is another witch hunt and appears reasonably calculated to

mean.

into the identity of other class

lead to the discovery of admissible

20

members with whom the witness

evidence.

may have privately discussed the

21

case. There is no purpose to this

questioning, other than to chill the

22

participation of class members,

since any answer to the question

23

will have no bearing on any issue in

this case.

24

25

26

27

28

- 11 -

06cv2671-BTM (WMc)

1 Did anyone ever tell you addresses Same objections as to previous

Overruled. The question is relevant

2

for specific Chipotle stores to visit?

question. This is another witch hunt and appears reasonably calculated to

into the identity of other class

lead to the discovery of admissible

3

members with whom the witness may have privately discussed the

evidence.

4

case. There is no purpose to this questioning, other than to chill the

5

participation of class members, since any answer to the question

6

will have no bearing on any issue in this case.

7 Reasonable follow-up, such as who, Same objections as to previous

Overruled. The question is relevant

when, which stores, and if witness question. This is another witch hunt and appears reasonably calculated to

8 knows whether any other witnesses into the identity of other class

lead to the discovery of admissible

were told to go to certain restaurant members with whom the witness

9 locations.

may have privately discussed the

evidence.

case. There is no purpose to this

10

questioning, other than to chill the

participation of class members,

11

since any answer to the question

will have no bearing on any issue in

12

this case.

13 Did you ever fill out a claim form
about your visits to Chipotle?
14
15
16
17
18

Same objections as to previous question. This is another witch hunt into the identity of other class members with whom the witness may have privately discussed the case. There is no purpose to this questioning, other than to chill the participation of class members, since any answer to the question will have no bearing on any issue in this case.

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.

19
Reasonable follow-up, such as

ATTORNEY-CLIENT

Sustained in part to the extent the

20 when, why. Did you fill out a

PRIVILEGE/ATTORNEY WORK qeustioning seeks any information

claim form because it is important to PRODUCT PRIVILEGE

class counsel may have given the

21 you to collect money damages?

VIOLATION, ABUSIVE, MISLEADING,CONFUSING,

witness as a potential client or in attorney client consultation.

22

TAKES UNDUE ADVANTAGE

OF ABSENT CLASS MEMBER

23

LAY WITNESS, IRRELEVANT.

24 WITNESS’ UNDERSTANDING
OF THE PURPOSE OF THE
25 LAWSUIT

26

27

28

- 12 -

06cv2671-BTM (WMc)

1 What is your understanding of the 2 purpose of this lawsuit? 3 4 5 6 7 8 9

MISLEADING, CONFUSING, TAKES UNDUE ADVANTAGE OF ABSENT CLASS MEMBER, CALLS FOR A LEGAL OPINION FROM LAY WITNESS, IRRELEVANT. The witness' understanding of the lawsuit has no bearing on any issue in this case. If the witness believed the purpose of the lawsuit was to elect Mr. Sugden president, that would not change the number of people in wheelchairs in California and the fact that high walls at Chipotle's restaurants denied those people equal access to the Chipotle experience.

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.

At the time that you signed the
10 declaration, what was your

See previous objections.

understanding of the purpose of this
11 lawsuit?

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.

12 If you knew that Chipotle had

MISLEADING, CONFUSING,

Overruled. The question is relevant

already torn out all the higher walls TAKES UNDUE ADVANTAGE and appears reasonably calculated to

13 and built new, lower walls at all its OF ABSENT CLASS MEMBER, lead to the discovery of admissible

restaurants in California, would you CALLS FOR A LEGAL OPINION evidence.

14 think that a class action lawsuit is FROM LAY WITNESS. What

still necessary?

difference does this make? It calls

15

for information irrelevant to any

issue in this case and implies that

16

the witness may be participating in a

"frivolous" lawsuit, even though

17

Chipotle still contends its walls do

not violate the ADA. It is intended

18

to chill participation the suit and to

reduce claims.

19
If Chipotle made a signed statement MISLEADING, CONFUSING,

Sustained on the ground the

20 to the court that it had removed all TAKES UNDUE ADVANTAGE OF question is an inappropriate

the higher walls and that it would ABSENT CLASS MEMBER,

hypothetical.

21 keep the walls low, would you still CALLS FOR A LEGAL OPINION
think that a class action lawsuit is FROM LAY WITNESS. See prior

22 necessary?

objections, as well.

23 Do you have any reason to think

MISLEADING, CONFUSING,

Overruled. The question is relevant

that Chipotle plans to again rip out TAKES UNDUE ADVANTAGE OF and appears reasonably calculated to

24 the walls and replace them with
higher walls?

ABSENT CLASS MEMBER,

lead to the discovery of admissible

CALLS FOR A LEGAL OPINION evidence.

25

FROM LAY WITNESS. See prior

objections, as well. What a lay

26

witness thinks is irrelevant to

whether an injunction is necessary,

27

since Chipotle still contends the

walls do not violate the ADA.

28

- 13 -

06cv2671-BTM (WMc)

1

2

WITNESS’ UNDERSTANDING OF THE PURPOSE OF THE

3 DECLARATION

When you signed the declaration,
4 did you think that the declaration

MISLEADING, CONFUSING,

Overruled. The question is relevant

TAKES UNDUE ADVANTAGE OF and appears reasonably calculated to

was necessary to help make

ABSENT CLASS MEMBER,

lead to the discovery of admissible

5 Chipotle lower the walls in front of CALLS FOR A LEGAL OPINION evidence.

its food preparation counters?
6

FROM LAY WITNESS. See prior objections, as well.

7

Did you sign the declaration
8 because you thought it was

ABUSIVE, MISLEADING, CONFUSING, TAKES UNDUE

Overruled. The question is relevant and appears reasonably calculated to

important to be able to collect
9 money damages for yourself?

ADVANTAGE OF ABSENT

lead to the discovery of admissible

CLASS MEMBER, CALLS FOR A evidence.

LEGAL OPINION FROM LAY

10

WITNESS because it implies that the

declaration had to be signed in order

11

for the class member to recover

12
When you signed the declaration,

damages. MISLEADING, CONFUSING,

Sustained; assumes facts not in

13 were you aware that the walls had TAKES UNDUE ADVANTAGE OF evidence.

already been lowered at all

ABSENT CLASS MEMBER,

14 California Chipotle restaurants?

ASSUMES FACTS NOT IN EVIDENCE. Irrelevant and

15

misleads the witness into thinking

that, even if the walls had been

16

lowered, there was no other basis for

the instant lawsuit.

17

18 If you had known, at the time you MISLEADING, CONFUSING,

Overruled. The question is relevant

signed the declaration, that

TAKES UNDUE ADVANTAGE OF and appears reasonably calculated to

19 Chipotle had already lowered the
walls at all California Chipotle

ABSENT CLASS MEMBER, ASSUMES FACTS NOT IN

lead to the discovery of admissible evidence.

20 restaurants, would you still have
signed the declaration?

EVIDENCE. Irrelevant and misleads the witness into thinking

21

that, even if the walls had been

lowered, there was no other basis for

22

the instant lawsuit.

23 Did you sign the declaration in
order to collect money?
24
25
26

VAGUE AND AMBIGUOUS, ABUSIVE, MISLEADING, CONFUSING, TAKES UNDUE ADVANTAGE OF ABSENT CLASS MEMBER, CALLS FOR A LEGAL OPINION FROM LAY WITNESS.

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.

27

28

- 14 -

06cv2671-BTM (WMc)

1 Were you given or promised

2

anything in return for signing the declaration?

3

4 Did you expect anything in return
for signing the declaration?
5

6

7

VAGUE AND AMBIGUOUS, ABUSIVE, MISLEADING, CONFUSING, TAKES UNDUE ADVANTAGE OF ABSENT CLASS MEMBER
VAGUE AND AMBIGUOUS, ABUSIVE, MISLEADING, CONFUSING, TAKES UNDUE ADVANTAGE OF ABSENT CLASS MEMBER, CALLS FOR A LEGAL OPINION FROM LAY WITNESS

Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.
Overruled. The question is relevant and appears reasonably calculated to lead to the discovery of admissible evidence.

8 When you signed the declaration, MISLEADING, CONFUSING,

Sustained; calls for a legal

was it your understanding that
9 Plaintiffs’ counsel was your

TAKES UNDUE ADVANTAGE OF conclusion by the witness and

ABSENT CLASS MEMBER,

invades the attorney-client

attorney?
10

CALLS FOR A LEGAL OPINION relationship. In addition, the

FROM LAY WITNESS. The

question is not relevant and does not

attorney-client privilege can apply to appear reasonably calculated to lead

11

communications even if a person has to the discovery of admissible

12
Do you currently believe that

not formally retained an attorney. MISLEADING, CONFUSING,

evidence. Sustained; calls for a legal

13 Plaintiffs’ counsel is your attorney? TAKES UNDUE ADVANTAGE OF conclusion by the witness and

ABSENT CLASS MEMBER,

invades the attorney-client

14

CALLS FOR A LEGAL OPINION relationship. In addition, the

FROM LAY WITNESS. The

question is not relevant and does not

15

attorney-client privilege can apply appear reasonably calculated to lead

to communications even if a

to the discovery of admissible

16

person has not formally retained evidence.

an attorney.

17

18

19

20

21

22

23

24

25

26

27

28

- 15 -

06cv2671-BTM (WMc)

 
 Case 3:06-cv-02671-BTM-JLB Document 181 Filed 11/12/13 Page 1 of 1

1

2

IN THE UNITED STATES DISTRICT COURT

3

SOUTHERN DISTRICT OF CALIFORNIA

4 PERKINS, et al.,

Case No.: 13-CV-01831 BTM (WMc)

5

Plaintiffs,

CLASS ACTION – Related to

6

v. CHIPOTLE MEXICAN GRILL, INC., &

USDC No. 06-CV-2671 BTM (WMc)

7 DOES 1 THROUGH 10, Inclusive,

8

Defendants.

ORDER

9

10

11

12
Having read and considered the Plaintiffs’ Motion and Defendant’s Notice of

13
Non-Opposition, and for good cause appearing, the Court hereby finds that the

14
Notice of Settlement approved by the Court (and disseminated to disability rights

15
organizations and posted on the www.Chipotle.com website) in the related case of

16
Antoninetti, et al. v. Chipotle Mexican Grill, Inc., USDC Case No. 06 CV 2671

17
BTM (WMc) (Doc. No. 174), adequately protected the claims of the putative class

18
members in this case such that its dismissal without prejudice will not infringe

19
upon the rights of putative class members. Accordingly, it is hereby

20
ORDERED that any joint motion for consolidation of the Perkins and

21
Antoninetti cases and for dismissal shall be filed within seven calendar days. A

22
copy of the global settlement agreement shall be provided to the Court along with

23
any such motion.

24
DATED: November 12, 2013

25
BARRY TED MOSKOWITZ

26

Chief Judge

United States District Court
27

28

ORDER

1

13-CV-01831 BTM (WMc)

 
 Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 1 of 50

1 David R. Sugden, Bar No. 218465
2 dsugden@calljensen.com Melinda Evans, Bar No. 216594
3 mevans@calljensen.com
4 Kent R. Christensen, Bar No. 253815 kchristensen@calljensen.com
5 CALL & JENSEN
6 A Professional Corporation 610 Newport Center Drive, Suite 700
7 Newport Beach, CA 92660
8 Tel: (949) 717-3000 Fax: (949) 717-3100
9
10 Attorneys for Defendant Chipotle Mexican Grill, Inc.

11

UNITED STATES DISTRICT COURT

12

SOUTHERN DISTRICT OF CALIFORNIA

13

14 MAURIZIO ANTONINETTI, JEAN

Case No. 06-CV-02671-BTM (WMc)

RIKER, JAMES PERKINS, KAREN 15 FRIEDMAN JAY RIFKIN, SUSAN

CLASS ACTION – Related to

16 CHANDLER, LAURA WILLIAMS, on USDC No. 13-CV-1831 BTM

behalf of themselves and all others similarly WMC 17 situated,

18

JOINT MOTION FOR

Plaintiffs,
19

CONSOLIDATION OF RELATED CASES, RETENTION OF

20

vs.

JURISDICTION BY COURT, AND

21 CHIPOTLE MEXICAN GRILL, INC., a

DISMISSAL OF CONSOLIDATED ACTION

22 Delaware Corporation, and DOES 1 – 10,

23 Inclusive,

24

Defendants.

25

26

Complaint Filed: December 6, 2006

27

Trial Date:

November 18, 2013

28

CHI06-01:Document8:11-18-13

- 1 -

06-CV-02671-BTM-WMC

JOINT MOTION FOR CONSOLIDATION OF RELATED CASES, RETENTION OF JURISDICTION BY COURT,

AND DISMISSAL OF CONSOLIDATED ACTION

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 2 of 50

1

Plaintiffs Jean Riker, Livia Antoninetti (as representative for Maurizio

2 Antoninetti), James Perkins, Karen Friedman, Leslie Robinson, Jay Rifkin (as

3 representative for Michael Rifkin), Susan Chandler, Ruthee Goldkorn, Robert

4 Vahoviak, Jack Robertson, Rufus Martin, Kory Barnett, Raymond Berry, Michael Neth,

5 Albert Sayles, Tamela Ridley, Michael Hanby, Pedro Garcia, Mimi Greenberg, Jeremy

6 McGhee, Kyle Minnis (“the collective Plaintiffs”), and Chipotle Mexican Grill, Inc.

7 (hereafter “Chipotle”) are hereafter collectively referred to as “the Parties.”

8

I. Consolidation of Related Cases.

9

The Parties hereby file this Joint Motion requesting that the Court consolidate

10 Perkins, et al. v. Chipotle Mexican Grill, Inc., USDC Case No. 13cv01831 BTM

11 (WMc) (“the Perkins action”), with the instant case, Antoninetti, et al. v. Chipotle

12 Mexican Grill, Inc., USDC Case No. 06cv2671 BTM (WMc) (hereafter “the

13 Antoninetti action”). The Perkins action and the Antoninetti action are hereinafter

14 collectively and jointly referred to as “the consolidated cases.”

15

Consolidation is proper pursuant to Rule 42(a) when actions involve common

16 questions of law and fact:

17

(a) Consolidation. If actions before the court involve a

18

common question of law or fact, the court may:

19

(1) join for hearing or trial any or all matters at issue in

20

the actions;

21

(2) consolidate the actions; or

22

(3) issue any other orders to avoid unnecessary cost or

23

delay.

24 F.R.C.P., Rule 42(a). This Court has broad discretion under Rule 42 to consolidate

25 cases pending within this District. Investors Research Co. v. United States Dist. Court

26 for Cent. Dist., 877 F.2d 777 (9th Cir. 1989); Perez-Funez v. District Director,

27 Immigration & Naturalization Service, 611 F. Supp. 990, 994 (C.D. Cal. 1984) ("A

28

CHI06-01:Document8:11-18-13

- 2 -

06-CV-02671-BTM-WMC

JOINT MOTION FOR CONSOLIDATION OF RELATED CASES, RETENTION OF JURISDICTION BY COURT,

AND DISMISSAL OF CONSOLIDATED ACTION

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 3 of 50

1 court has broad discretion in deciding whether or not to grant a motion for

2 consolidation, although, typically, consolidation is favored").

3

Here, the facts and claims asserted in the Antoninetti action and in the Perkins

4 action are related. Both actions involve only one defendant, Chipotle Mexican Grill,

5 Inc. Both actions allege that persons in wheelchairs were denied equal access to

6 Defendant’s restaurants due to high walls in front of the food preparation counters,

7 although the Perkins case also asserted that Chipotle’s later-adopted written policy of

8 accommodation (adopted after the filing of the Antoninetti action) was also

9 discriminatory and failed to provide equivalent facilitation.

10

II. Retention of Jurisdiction Over Consolidated Actions.

11

The Parties also hereby file this Joint Motion requesting that the Court retain

12 jurisdiction over the consolidated cases, even after dismissal of the consolidated cases,

13 for the purposes of interpreting and enforcing the settlement agreement that was

14 reached by the Parties, including, but not limited to, determining the collective

15 Plaintiffs’ attorneys’ fees, costs and litigation expenses against Chipotle. The Parties’

16 global settlement agreement is attached hereto as Exhibit A and the terms of the Parties’

17 settlement agreement are incorporated herein by reference as though fully set forth

18 herein.

19

This Court is authorized to retain jurisdiction over the consolidated cases and the

20 settlement agreement, including the agreement to have attorneys’ fees, expenses and

21 costs determined by the Court, if the parties specifically agree and the Court so orders.

22 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381–82, 114 S.Ct. 1673, 128

23 L.Ed.2d 391 (1994); Chevron U.S.A. Inc. v. Sheikhpour, 469 Fed. Appx. 593, 595 (9th

24 Cir. 2012).

25

Accordingly, the Parties jointly request that the Court expressly confirm that it

26 will retain jurisdiction over the consolidated cases, after dismissal, to determine a

27 reasonable fees, expenses and cost award pursuant to the Parties’ settlement agreement,

28 and to otherwise interpret and enforce the Parties’ settlement agreement.

CHI06-01:1236859_1:11-19-13

- 3 -

06-CV-02671-BTM-WMC

JOINT MOTION FOR CONSOLIDATION OF RELATED CASES, RETENTION OF JURISDICTION BY COURT,

AND DISMISSAL OF CONSOLIDATED ACTION

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 4 of 50

1

III. Dismissal of Consolidated Actions.

2

Expressly contingent upon the Court first granting consolidation of the Perkins

3 action and the Antoninetti action, and retaining jurisdiction of the consolidated cases,

4 the Parties also jointly request that the Court then dismiss the claims in the consolidated

5 action as set forth below.

6

The Parties have already reached and executed a global settlement of the disabled

7 access claims by the Antoninetti Plaintiffs and the Perkins Plaintiffs and, while no class

8 was ever certified in either action, this Court approved language to be posted on

9 Chipotle’s website, and to be disseminated to disability rights organizations, to give

10 notice to putative class members of the settlement and imminent dismissal of the

11 putative class members’ claims (“Notice of Settlement”). (USDC Case No. 06cv2671,

12 Documents 174, 181.) The Notice of Settlement was posted on Chipotle’s website for

13 six weeks and was disseminated to disability rights organizations. The Court also

14 recently held that the Notice of Settlement approved by the Court in the Antoninetti

15 action also adequately protected the claims of the putative class members in the Perkins

16 action such that dismissal of the Perkins putative claims without prejudice will not

17 infringe upon the rights of the putative class members. (USDC Case No. 13cv01831,

18 Document 42.)

19

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

CHI06-01:1236859_1:11-19-13

- 4 -

06-CV-02671-BTM-WMC

JOINT MOTION FOR CONSOLIDATION OF RELATED CASES, RETENTION OF JURISDICTION BY COURT,

AND DISMISSAL OF CONSOLIDATED ACTION

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 5 of 50

1

The Parties therefore request that the claims of the collective Plaintiffs be

2 dismissed with prejudice, and that the claims of all putative class members in the

3 consolidated cases be dismissed without prejudice.

4 5
6 Dated: November 19, 2013
7 8 9

Respectfully submitted, CALL & JENSEN A Professional Corporation David R. Sugden Melinda Evans Kent R. Christensen

10 11 12 13
14 Dated: November 19, 2013

By: /s/ David R. Sugden David R. Sugden Attorneys for Defendant Chipotle Mexican Grill, Inc.
LAW OFFICES OF AMY B. VANDEVELD

15

16

By: /s/ Amy B. Vandeveld___________ Amy B. Vandeveld

17

Attorneys for Plaintiffs

18

19

20

SIGNATURE CERTIFICATION

21

Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies

22 and Procedures Manual, I hereby certify that the content of this document is acceptable

23 to Amy B. Vandeveld, counsel for Plaintiffs, and that I have obtained Ms. Vandeveld’s

24 authorization to affix her electronic signature to this document.

25

26

By: /s/ David R. Sugden David R. Sugden

27

28

CHI06-01:1236859_1:11-19-13

- 5 -

06-CV-02671-BTM-WMC

JOINT MOTION FOR CONSOLIDATION OF RELATED CASES, RETENTION OF JURISDICTION BY COURT,

AND DISMISSAL OF CONSOLIDATED ACTION

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 6 of 50
EXHIBIT A

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 7 of 50

RELEASE AND SETTLEMENT AGREEMENT

SECTION 1.1 THE PARTIES TO BE BOUND

This Settlement Agreement is made effective March 25, 2013, ("the Effective Date")

by and between Jean Riker, Livia Antoninetti, as representative for Maurizio Antoninetti

(“Antoninetti”), James Perkins, Karen Friedman, Leslie Robinson, Jay Rifkin, as

representative for Michael Rifkin (“Rifkin”), Susan Chandler, Ruthee Goldkorn, Robert

Vahoviak, Jack Robertson, Rufus Martin, Kory Barnett, Raymond Berry, Michael Neth,

Albert Sayles, Tamela Ridley, Michael Hanby, Pedro Garcia, Mimi Greenberg, Jeremy

McGhee and Kyle Minnis (hereinafter collectively referred to as “the Plaintiffs”), on the one

hand and Chipotle Mexican Grill, Inc. (“Chipotle” or “Defendant”) on the other. The

Defendant and the Plaintiffs are hereinafter collectively referred to as “the Parties” unless

otherwise specifically identified or defined hereinbelow.

SECTION 1.2

RECITALS

A. WHEREAS, on December 6, 2006, Plaintiffs Antoninetti, Riker, Perkins,

Friedman and Rifkin caused to be filed a Civil Complaint in the United States District Court

for the Southern District of California ("the Southern District Court"), which was entitled

Antoninetti, et al. v. Chipotle Mexican Grill, Inc., USDC Case No. 06cv2671 BTM (WMc).

A First Amended Complaint was filed on January 10, 2011 adding Susan Chandler as a

Plaintiff (hereinafter referred to as "the Southern District Action"); and

///

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

1

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 8 of 50

B. WHEREAS the Southern District Action was filed as a putative class action

on behalf of members of a particular class of people with disabilities (hereafter collectively

referred to as “the Southern District Putative Class Members”); and

C. WHEREAS, on May 7, 2008, Plaintiffs Perkins, Robinson and Goldkorn

caused to be filed a Civil Complaint in the United States District Court for the Central

District of California ("the Central District Court"), which was entitled Perkins, et al. v.

Chipotle Mexican Grill, Inc., USDC Case No. CV 08-03002-MMM-OP. A First Amended

Complaint was filed on July 23, 2008 adding Robert Vahoviak as a Plaintiff (hereinafter

referred to as "the Central District Action"); and

D. WHEREAS the Central District Action was filed as a putative class action on

behalf of members of a particular class of people with disabilities (hereafter collectively

referred to as “the Central District Putative Class Members”); and

E. WHEREAS, on December 24, 2012, Kory Barnett caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Barnett v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00059313-CU-

CR-NC; and

F. WHEREAS, on December 27, 2012, Raymond Berry caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Berry v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088595-CU-

CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

2

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 9 of 50

G. WHEREAS, on December 27, 2012, Pedro Garcia caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Garcia v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088596-CU-

CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

H. WHEREAS, on December 17, 2012, Mimi Greenberg caused to be filed a

Civil Complaint in the Superior Court of the State of California for the County of Los

Angeles, which was entitled Greenberg v. Chipotle Mexican Grill, Inc., Case No. SC119475;

and

I. WHEREAS, on December 27, 2012, Michael Hanby caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Hanby v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088597-CU-

CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

J. WHEREAS, on December 24, 2012, Rufus Martin caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Martin v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00059311-CU-

CR-NC; and

K. WHEREAS, on December 27, 2012, Jeremy McGhee caused to be filed a

Civil Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled McGhee v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088592-

CU-CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

3

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 10 of 50

L. WHEREAS, on December 27, 2012, Kyle Minnis caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Minnis v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088593-CU-

CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

M. WHEREAS, on December 21, 2012, Kyle Minnis caused to filed a Civil

Complaint in the Superior Court of the State of California for the County of Orange, which

was entitled Minnis v. Chipotle Mexican Grill, Inc., Case No. 30-2012-00620718; and

N. WHEREAS, on December 27, 2012, Michael Neth caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Neth v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088598-CU-

CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

O. WHEREAS, on December 27, 2012, Tamela Ridley caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego ("the

Court"), which was entitled Ridley v. Chipotle Mexican Grill, Inc., Case No. 37-2012-

00088594-CU-CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

P. WHEREAS, on December 27, 2012, Jack Robertson caused to be filed a Civil

Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Robertson v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088591-

CU-CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

Q. WHEREAS, on December 24, 2012, Albert G. Sayles caused to be filed a

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

4

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 11 of 50

Civil Complaint in the Superior Court of the State of California for the County of San Diego,

which was entitled Sayles v. Chipotle Mexican Grill, Inc., Case No. 37-2012-00088546-CU-

CR-CTL. A First Amended Complaint was filed on December 31, 2012; and

R. WHEREAS the lawsuits described in Section 1.2 E through Section 1.2 Q,

above, shall collectively be referred to herein as “the Thirteen Individual Actions”; and

S. WHEREAS the Southern District Action, the Central District Action, and the

Thirteen Individual Actions shall collectively be referred to herein as “the Fifteen Actions”;

and

T. WHEREAS the Plaintiffs in each of the Fifteen Actions and Chipotle wish to

resolve their claims and causes of action set forth in each of the Fifteen Actions; and

U. NOW THEREFORE, based on the covenants and promises contained

hereinabove and below, the Parties have agreed to enter into this Settlement Agreement on

the terms set forth hereinabove and below.

SECTION 2.1

SPECIFIC TERMS

A. Recitals:

The Recitals set forth in Section 1.2 hereinabove are an integral part of this Settlement

Agreement and shall be used in any interpretation of this Settlement Agreement.

B. Performance by Chipotle:

1. Damages:

Within fifteen days of receipt of the Plaintiffs’ signatures to this Settlement

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

5

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 12 of 50

Agreement, Chipotle shall pay to the Plaintiffs the sum of Two Hundred Twenty-Five Thousand Dollars ($225,000.00). This shall resolve all of the Plaintiffs’ claims for damages, including damages relating to emotional and/or physical injuries, if any, that were asserted in the Fifteen Actions. Said monies shall be paid by check made payable to "the Amy B. Vandeveld Client Trust Account.” This money shall be held in trust and shall not be distributed to the Plaintiffs until the Fifteen Actions are dismissed.
2. Notice: Chipotle shall conspicuously post notice on its website, in the form attached hereto as Attachment “A” (“the Notice”), saying that class certification was denied in the Southern District Action, and that Plaintiffs intend to settle the case rather than appeal the denial of certification. The Notice shall be posted on consecutive days for a period of not less than six (6) weeks and shall provide that other persons who want to proceed against Chipotle on these claims have to proceed on their own, and that they can make a motion to intervene and become part of this case. The Notice shall mention the applicable statutes of limitations and the tolling of the limitations period during the pendency of the class action. The Parties shall submit a stipulation as to the form of the Notice once settlement is finalized. Plaintiffs’ counsel shall provide the Notice to the same disability rights organizations that they contacted when seeking declarations in support of their motion for class certification. C. Attorneys’ Fees, Litigation Expenses and Costs: 1. Chipotle shall bear its own attorneys' fees, litigation expenses and costs

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

6

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 13 of 50

incurred in relation to the Fifteen Actions. Chipotle shall pay reasonable attorneys’ fees, litigation expenses and costs ("Fees and Costs") to the Plaintiffs in the Fifteen Actions. The Parties will meet and confer in good faith in an effort to agree upon an amount to be paid by Chipotle for Plaintiffs’ Fees and Costs.
2. In the event that the Parties are unable to agree upon an amount to be paid to Plaintiffs for Fees and Costs, the Parties agree that Judge Barry Ted Moskowitz in the Southern District Action (hereafter "Judge Moskowitz"), or any Magistrate Judge or other District Court Judge as may be appointed and/or assigned the Fees and Costs Motion by Judge Moskowitz, shall determine the amount of reasonable Fees and Costs that shall be paid by Chipotle to the Plaintiffs in the Fifteen Actions. Plaintiffs' counsel shall file a noticed motion in the Southern District Court for the Fees and Costs sought to be recovered by the Plaintiffs in all of the Fifteen Actions ("the Fees and Costs Motion"), and shall file the Fees and Costs Motion within 60 (sixty) days of either (1) the execution of the Settlement Agreement by all Parties or (2) the Southern District Court’s retention of jurisdiction over the Settlement Agreement and the Fees and Costs Motion, whichever date is later.
3. In the event Judge Moskowitz, or any Magistrate Judge or other Southern District Court Judge as may be appointed and/or assigned the Fees and Costs Motion by Judge Moskowitz, declines to exercise jurisdiction over any portion of the Fees and Costs Motion, or it is later determined the Southern District Court lacked jurisdiction to award any of the Fees and Costs claimed by Plaintiffs, any issue relating to Plaintiffs' recovery of Fees

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

7

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 14 of 50

and Costs that is not resolved by Judge Moskowitz, or any Magistrate Judge or other District Court Judge as may be appointed and/or assigned the Fees and Costs Motion by Judge Moskowitz, shall be resolved through binding arbitration before a neutral arbitrator mutually selected by the Parties. The Plaintiffs shall be entitled to seek recovery of the Fees and Costs related to the fee determination. If the Parties cannot agree on a neutral arbitrator within 30 days after demand for arbitration is made an arbitrator shall be randomly selected pursuant to American Arbitration Association Commercial Arbitration Rules and Mediation Procedures (“AAA Rules”) relating to expedited arbitration. Arbitration shall proceed within the County of San Diego pursuant to the AAA Rules. The Parties agree that they have read or have had the opportunity to read and familiarize themselves with the AAA Rules and agree that these rules are incorporated herein by reference. The Parties further agree that the Expedited Procedures of the AAA Rules shall apply notwithstanding the size of the claim.
4. There shall be no discovery. The matter shall be submitted on documents unless any Party requests a hearing. The Parties agree that their respective counsel approving this Agreement as to Form shall accept any and all notices under the AAA Rules. The Parties agree that the arbitrator’s determination of the amount of Fees and Costs to be paid to the Plaintiffs will be based on submission of documents in a manner as similar as possible to a motion for attorney’s fees and costs in federal court.
5. The Parties further agree to a “high-low agreement” regarding the amount of Fees and Costs to be recovered by the Plaintiffs. The specific terms of the “high-low

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

8

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 15 of 50

agreement” are set forth in Attachment “B” hereto. The fact that the Parties have entered into a “high-low agreement” shall be disclosed to the Court or arbitrator, although the range of this “high-low agreement” shall be confidential and shall not be disclosed to any Court or arbitrator unless it becomes necessary to enforce the “high-low agreement” or unless the Southern District Court or the Central District Court determines that the specific terms must be disclosed to Putative Class Members to comply with any statutory or legal requirements and/or ethical obligations of Plaintiffs’ counsel. In the event any of the provisions of this section relating to the method of determining the reasonable amounts of Fees and Costs are unenforceable, Plaintiffs shall be entitled to seek recovery of the amounts of Fees and Costs incurred in the Fifteen Actions in any court having jurisdiction. The Parties further agree that an arbitration award may be entered as a judgment in any court having jurisdiction.
6. For purposes of the Fees and Costs Motion, Chipotle waives any requirement, if any, regarding a finding of Chipotle’s liability under the Unruh Act (California Civil Code Sections 51 and/or 52 ("Cal. Civ. Code")) before the Plaintiffs are entitled to Fees and Costs from Chipotle (as set forth in Doran v. North State Grocery, Inc.,137 Cal. App. 4th 484 (2006)), and Chipotle waives any requirement, if any, of a finding of Chipotle’s liability under the Americans with Disabilities Act (42 U.S.C. Sections 12101, et seq.) (the “ADA”“) before the Plaintiffs are entitled to recover Fees and Costs from Chipotle, and Chipotle agrees that the Southern District Court and/or a neutral arbitrator shall award Fees and Costs to the Plaintiffs in each of the Fifteen Actions as though there were a judicial finding that

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

9

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 16 of 50

Chipotle violated, and is liable under, the Unruh Act (Cal. Civ. Code Secs. 51 and/or 52) and

the ADA with respect to each of the Plaintiffs in each of the Fifteen Actions.

D. Consolidation of Actions, Retention of Jurisdiction and Dismissals Of the Fifteen Actions:

1. After this Settlement Agreement has been fully executed by all Parties, the

Parties shall forthwith file Joint Motions in the Southern District of California and/or the

Central District of California, as may be necessary, requesting that the Central District Action

be transferred to the Southern District of California and consolidated with the Southern

District Action. The Parties shall also concurrently file a Joint Motion and Order in the

Southern District Action requesting that the Court grant leave to allow the Plaintiffs in the

Thirteen Individual Actions to intervene in the Southern District Action. The Parties shall

also concurrently file a Joint Motion and Order requesting that the Southern District Court

retain jurisdiction over: (1) any and all issues relating to this Settlement Agreement

including, but not limited to, the interpretation and enforcement of this Settlement

Agreement, and (2) the Plaintiffs’ Motion for Fees and Costs.

2. The Parties shall forthwith file a joint stipulation for voluntary dismissal of the

Southern District Action (“the Stipulation”) after the Parties have complied with the Notice

requirements set forth in the Court’s Minute Order, Document No. 170 but said Stipulation

shall not be filed earlier than six (6) weeks from the date that the Notice is first published.

The Stipulation will request dismissal of the named Plaintiffs’ claims with prejudice and will

request dismissal of the Putative Class Members’ claims without prejudice.

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

10

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 17 of 50

3. The Parties agree that the Plaintiffs in the Central District Action shall file a Motion for Dismissal under Fed. R. Civ. Proc. 41 (a)(2) requesting dismissal of the Central District named Plaintiffs’ claims with prejudice and dismissal of the Central District Putative Class Members’ claims without prejudice, subject to any notice to Putative Class Members as may be required under Fed. R. Civ. P. 23(e), if any, and/or pursuant to any other terms, and subject to any other conditions, that the Court having jurisdiction over the Central District Putative Class Members’ claims determines are fair and just to the Central District Putative Class Members.
E. Mutual Releases: 1. For valuable consideration, the receipt and adequacy of which are hereby acknowledged by (a) the Plaintiffs in the Fifteen Actions and (b) the Defendant on the other hand, on behalf of themselves and their respective heirs, executors, administrators, assigns, successors, predecessors, employees, agents, attorneys, past, present and future officers, directors, partners and shareholders (collectively the “Representative Parties”), hereby release and forever discharge each other, and their respective Representative Parties (collectively the "Releasees") from the suits, claims, or demands of any nature whatsoever, including claims for physical and/or emotional injuries, only with respect to which each has with respect to the Fifteen Actions ("the released claims"). 2. The Parties hereto acknowledge that they are aware they may hereafter discover claims or facts in addition to or different from those which they now know or believe to exist

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

11

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 18 of 50

with respect to the released claims and the underlying facts, and that it is their intent to fully,

finally, and forever settle and release all their known disputes and differences which now

exist or have ever existed with one another, arising out of or in connection only with respect

to the released claims. Also, the Parties hereto agree that this Settlement Agreement shall

remain in effect as a full and complete settlement agreement and mutual release of the

released claims included in this Settlement Agreement.

3. The Parties warrant that they have not assigned or transferred any interest in

any claim they may have against the other parties, or any of them.

F. No Admission of Liability:

Each Party acknowledges and agrees that this Settlement Agreement is a compromise

of disputed claims and neither this Settlement Agreement, nor any consideration provided

pursuant to this Settlement Agreement, shall be taken or construed to be an admission or

concession by either Party of any kind with respect to any fact, liability, or fault except as set

forth in Section 2.1.C.6 above with respect to the Fees and Costs Motion and/or arbitration

of the Plaintiffs’ Fees and Costs.

G. Release of Unknown Claims:

The Parties acknowledge that they have been advised by legal counsel with respect

to, and are familiar with, the provisions of California Civil Code Section 1542 which

provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH CREDITOR DOES NOT KNOW OR

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

12

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 19 of 50

SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

All Parties to this Settlement Agreement being aware of said Code Section, hereby

expressly waive any rights they may have thereunder, as well as under any other Statute or

common law principal of similar effect only with respect to any of the released claims.

Nothing in this paragraph shall reduce or waive the executory portions of this Settlement

Agreement.

SECTION 2.2

GENERAL TERMS

A. Continuing Jurisdiction of Court

The Parties agree that Judge Moskowitz or any other Magistrate Judge or District

Court Judge as may be appointed by the Southern District Court, shall retain jurisdiction over

the Plaintiffs’ Fees and Costs Motion and over all disputes between the Parties including, but

not limited to, interpretation and enforcement of the terms of the Settlement Agreement and

the Plaintiffs’ Fees and Costs Motion. To the extent the Southern District Court declines or

is not able to retain jurisdiction over this Settlement Agreement it may be enforced in the

Superior Court for the County of San Diego or any court of competent jurisdiction.

B. Interpretation:

Whenever the context requires, any gender includes all others, and the singular

number includes the plural number and vice-versa. In addition, the singular reference to

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

13

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 20 of 50

Putative Class Member includes all Putative Class Members and vice-versa. Captions in this Settlement Agreement are inserted for convenience of reference and do not define, describe, or limit the scope or intent of this Settlement Agreement or any of its terms. The terms "Person" shall include a corporation, partnership, trust, or any other legal entity. "Including" shall mean inclusive without limitation to the included item specified.
C. Entire Agreement: This Settlement Agreement contains the entire agreement between the Parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. No modification, waiver, amendment or discharge of this Settlement Agreement shall be valid unless it is in writing and signed by the party against which its enforcement is or may be sought. D. Time is of the Essence: Time is of the essence for each obligation hereunder. E. Applicable Laws: This Settlement Agreement shall be construed and enforced in accordance with the laws of the State of California. This Settlement Agreement is made and is to be enforced within the jurisdiction of the Southern District Court and/or in any other court of competent jurisdiction. F. Successors: Subject to any provision of this Settlement Agreement that may prohibit or curtail

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

14

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 21 of 50

assignment of any rights hereunder, this Settlement Agreement shall bind and inure to the benefit of the respective heirs, assigns, personal representatives, and successors of the parties hereto; and the Parties intend that only they or their heirs, assigns, personal representatives, and successors are entitled to enforce this Settlement Agreement.
G. Cooperation: Each Party agrees that it, he or she shall, upon the other's request, take any and all steps, and execute, acknowledge, and deliver to the other any and all further instruments necessary or expedient to effectuate the purposes of this Settlement Agreement. H. Counterparts: This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original. Photocopies of signatures, signatures by facsimile and/or by electronic transmission shall be effective and binding as originals. I. Equal Participation in Drafting: No inference, assumption, or presumption shall be drawn from the fact that a Party or his, her or its attorney prepared and/or drafted this Settlement Agreement. It shall be conclusively presumed that all Parties participated equally in the preparation and/or drafting of this Settlement Agreement. J. Voluntary Execution: The Parties acknowledge that their execution hereof is voluntary, that they have been advised by their respective counsel of all of the provisions hereof, and that, in executing this

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

15

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 22 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 23 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 24 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 25 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 26 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 27 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 28 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 29 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 30 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 31 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 32 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 33 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 34 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 35 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 36 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 37 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 38 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 39 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 40 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 41 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 42 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 43 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 44 of 50

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 45 of 50

ATTACHMENT A: Form of Notice

“On December 6, 2006, a class action lawsuit entitled Antoninetti v. Chipotle, was filed

in the Southern District of California, alleging that people who use wheelchairs, scooters or other

mobility devices were unable to see their food options or watch their food prepared at Chipotle

restaurants in California because of the height of the walls in front of the food preparation

counters. On May 7, 2008, identical, similar and/or related claims were made in another class

action lawsuit entitled Perkins v. Chipotle, which was filed in the Central District of California.

The Perkins case was stayed while the Antoninetti case was litigated. Both cases sought damages

for people with disabilities under the Unruh Act and/or the California Disabled Persons Act. On

August 28, 2012, the Antoninetti court determined that the Antoninetti case should not proceed

as a class action, and denied class certification. The individual plaintiffs in the Antoninetti case

have decided to settle their individual claims rather than appeal the denial of class certification.

In addition, the individual plaintiffs in the Perkins case have decided to settle their individual

claims rather than seek class certification. The Antoninetti class action claims and the Perkins

class action claims will, therefore, not continue to be litigated once the cases are dismissed unless

someone else intervenes in the cases and wishes to pursue the class action claims.

Any persons wanting to pursue their own claims or the class action claims against

Chipotle must file a new lawsuit or they may seek to intervene in the Antoninetti case or the

Perkins case. If you want to intervene in the Antoninetti case, you must do so before (insert date

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

20

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 46 of 50

which is 6 weeks from the date of first publication of the Notice) when the Antoninetti case will be dismissed. If you wish to intervene in the Perkins case, you should act promptly to ensure that you intervene before the Perkins case is dismissed. The date for dismissal of the Perkins case has not yet been determined and may be later than the date for dismissal of the Antoninetti case, but you should nevertheless act promptly to protect your rights. Rather than intervening in the Antoninetti case or the Perkins case, you may also file your own separate lawsuit against Chipotle before, and even after, the Antoninetti case and the Perkins case are dismissed.
If you want to pursue your own claims against Chipotle in a separate lawsuit you should be mindful that, in the Antoninetti case, the statute of limitations (the time limit for filing a lawsuit) was tolled from December 6, 2006, until August 28, 2012, at which time the statute of limitations began to run again. The statute of limitations in the Perkins case is tolled from May 7, 2008 until the date that the Court dismisses the Perkins case, which date has not yet been determined.
Courts are divided as to whether the one-year statute of limitations period for statutory penalties (Code Civ. Proc.§ 340), the two-year statute of limitations period for personal injuries (Code Civ. Proc., § 335.1) or the three-year statute of limitations period for a liability created by statute (Code Civ. Proc., § 338, subd. (a)) governs a claim under the Unruh Act and/or the Disabled Persons Act. Therefore, if you choose to intervene in the Antoninetti case or the Perkins case or you choose to file your own lawsuit, you should act promptly so that you do not permanently lose any rights you may have.

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

21

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 47 of 50
ATTACHMENT B: “High/Low” Agreement Because of the uncertainty of the Fees and Costs that may be awarded to Plaintiffs by
the Southern District Court and/or an arbitrator, the Parties agree that, regardless of the amount of Fees and Costs actually awarded by the Southern District Court and/or by an arbitrator, the amount of the Fees and Costs paid by Chipotle Mexican Grill, Inc. to Plaintiffs shall be the amount of Fees and Costs actually awarded, but not more than Seven Hundred Thousand Dollars ($700,000.00) nor less than Two Hundred Thousand Dollars ($200,000.00). Said award shall be paid by Chipotle Mexican Grill, Inc. by check made payable to the Amy B. Vandeveld Client Trust Account within thirty (30) days of the Court’s award and/or the arbitrator’s decision.

Settlement Agreement with

Chipotle Mexican Grill, Inc.

July 2, 2013 Version

22

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 48 of 50

1

CERTIFICATE OF SERVICE

(United States District Court)
2

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

6

On November 19, 2013, I have served the foregoing document described as JOINT MOTION FOR CONSOLIDATION OF RELATED CASES,

7 RETENTION OF JURISDICTION BY COURT, AND DISMISSAL OF CONSOLIDATED ACTION on the following person(s) in the manner(s) indicated

8 below:

9
SEE ATTACHED SERVICE LIST
10

11 [ X ] (BY ELECTRONIC SERVICE) I am causing the document(s) to be served on 12 the Filing User(s) through the Court’s Electronic Filing System.

13 [ ] (BY MAIL) I am familiar with the practice of Call & Jensen for collection and

processing of correspondence for mailing with the United States Postal Service. 14 Correspondence so collected and processed is deposited with the United States Postal

15

Service that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope, with postage fully prepaid, addressed as set

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

17

[ ] (BY OVERNIGHT SERVICE) I am familiar with the practice of Call & Jensen 18 for collection and processing of correspondence for delivery by overnight courier.

19

Correspondence so collected and processed is deposited in a box or other facility regularly maintained by the overnight service provider the same day in the ordinary

20 course of business. On this date, a copy of said document was placed in a sealed

envelope designated by the overnight service provider with delivery fees paid or 21 provided for, addressed as set forth herein, and such envelope was placed for delivery

22

by the overnight service provider at Call & Jensen, Newport Beach, California, following ordinary business practices.

23
[ ] (BY FACSIMILE TRANSMISSION) On this date, at the time indicated on the

24 transmittal sheet, I transmitted from a facsimile transmission machine, which telephone

number is (949) 717-3100, the document described above and a copy of this declaration 25 to the person, and at the facsimile transmission telephone numbers, set forth herein.

26

The above-described transmission was reported as complete and without error by a properly issued transmission report issued by the facsimile transmission machine upon

27 which the said transmission was made immediately following the transmission.

28

06-CV-02671-BTM-WMC

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 49 of 50

1 [ X ] (BY E-MAIL) I transmitted the foregoing document(s) by e-mail to the addressee(s) at the e-mail address(s) indicated.
2
3 [ ] (FEDERAL) I declare that I am a member of the Bar and a registered Filing User for this District of the United States District Court.
4
[ X ] (FEDERAL) I declare that I am employed in the offices of a member of this 5 Court at whose direction the service was made.

6

I declare under penalty of perjury under the laws of the United States of America

7 that the foregoing is true and correct, and that this Certificate is executed on November 19, 2013, at Newport Beach, California.

8

9

10

Shelly Bravo

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

06-CV-02671-BTM-WMC

Case 3:06-cv-02671-BTM-JLB Document 182 Filed 11/19/13 Page 50 of 50

1

SERVICE LIST

2 Amy B. Vandeveld, Esq.

3 LAW OFFICES OF AMY B. VANDEVELD 1850 Fifth Avenue

4 San Diego, CA 92101

Tel: (619) 231-8883

5 Fax: (619) 231-8329

6

abvusdc@hotmail.com abvusdclm@yahoo.com

7 abvandeveldesq@hotmail.com

Attorneys for Plaintiffs

8 Thomas J. Vandeveld III, Esq. P.O. Box 1764
9 Bonita, CA 91908 10 Tel: 619-232-5299
Fax: 619-475-6908 11 tomvlawyer@cox.net

12 Bruce A. Montoya, Esq.

13

Charles C. Cavanagh, Esq. MESSNER & REEVES, LLC

14 1430 Wynkoop St., Suite 300 Denver, CO 80202

15 Office: 303-623-1800

Direct: 303-605-1571 16 Fax: 303-623-0552

17 bmontoya@messner.com ccavanagh@messner.com

18

Attorneys for Defendant Chipotle Mexican Grill, Inc.

19

20

21

22

23

24

25

26

27

28

06-CV-02671-BTM-WMC

 
 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
1

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
2

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
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.
3

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
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
4

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
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
5

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007)
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.
6

Antoninetti v. Chipotle Mexican Grill, Inc., Not Reported in F.Supp.2d (2007) Parallel Citations 74 Fed. R. Evid. Serv. 1340
7

 
 Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 1 of 21
CLOSED,LEAD,PROTO
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:06−cv−02671−BTM−JLB

Antoninetti et al v. Chipotle Mexican Grill, Inc. et al Assigned to: Judge Barry Ted Moskowitz Referred to: Magistrate Judge Jill L. Burkhardt Case in other court: USCA, 14−56730 Cause: 42:12101 The Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 12/06/2006 Date Terminated: 09/30/2014 Jury Demand: Both Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

Maurizio Antoninetti on behalf of themselves and all other similarly situated 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

Thomas Joseph Vandeveld , III Vandeveld Law Offices PO Box 1764 Bonita, CA 91908 (619)232−5299 Fax: (619)475−6908 Email: tomvlawyer@cox.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jean Riker on behalf of themselves and all other similarly situated

represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Joseph Vandeveld , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
James Perkins on behalf of themselves and all other similarly situated

represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Joseph Vandeveld , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Karen Friedman on behalf of themselves and all other similarly situated

represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 2 of 21

Plaintiff Michael Rifkin on behalf of themselves and all other similarly situated TERMINATED: 05/26/2011
Plaintiff Jay Rifkin
Plaintiff Livia Antoninetti
Plaintiff Leslie Robinson on behalf of herself and all others similarly situated
Plaintiff Ruthee Goldkorn on behalf of herself and all others similarly situated
Plaintiff Robert Vahoviak on behalf of himself and all others similarly situated
Plaintiff Chris Ige on behalf of himself and all others similarly situated

Thomas Joseph Vandeveld , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Joseph Vandeveld , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Joseph Vandeveld , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Joseph Vandeveld , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy B. Vandeveld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 3 of 21

Defendant
Chipotle Mexican Grill, Inc. a Delaware Corporation

represented by 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 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 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

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

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

Kent Roger Christensen Call & Jensen 610 Newport Center Drive Suite 700 Newport Beach, CA 92660 (949)717−3000

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 4 of 21
Fax: (949)717−3100 Email: kchristensen@calljensen.com 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
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
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 PRO HAC VICE ATTORNEY TO BE NOTICED
Defendant
DOES 1−10 Inclusive

Date Filed 12/06/2006
12/06/2006 12/28/2006 12/28/2006 12/28/2006 12/28/2006

# Docket Text
1 COMPLAINT against Chipotle Mexican Grill, Inc., DOES 1−10 (Filing fee $350.) , filed by Michael Rifkin, Maurizio Antoninetti, Jean Riker, James Perkins, Karen Friedman; Demand for Jury Trial(kaj) (Entered: 12/12/2006)
2 Summons Issued as to Chipotle Mexican Grill, Inc., DOES 1−10. (kaj) (Entered: 12/12/2006)
3 ANSWER to Complaint with Jury Demand by Chipotle Mexican Grill, Inc..(Hurley, Gregory) (Entered: 12/28/2006)
4 NOTICE of Party With Financial Interest by Chipotle Mexican Grill, Inc. (Hurley, Gregory) (Entered: 12/28/2006)
5 CERTIFICATE of Counsel Re Interested Parties by Gregory Francis Hurley on behalf of Chipotle Mexican Grill, Inc. (Hurley, Gregory) (Entered: 12/28/2006)
6 Corporate Disclosure Statement by Chipotle Mexican Grill, Inc.. (Hurley, Gregory) (Entered: 12/28/2006)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 5 of 21

01/05/2007 01/11/2007 01/18/2007 01/24/2007 02/12/2007 03/20/2007
04/20/2007 05/14/2007 05/21/2007 06/08/2007
06/08/2007 08/28/2007 08/15/2008 08/22/2008 09/04/2008 09/04/2008
09/05/2008

7 Notice and ORDER; Early Neutral Evaluation set for 2/12/2007 02:00 PM in Courtroom H before Magistrate Judge Louisa S Porter. Signed by Magistrate Judge Louisa S Porter on 1/5/07. (kaj) (Entered: 01/08/2007)
8 NOTICE by Maurizio Antoninetti of related case(s) 05cv1660 (Attachments: # 1 # 2)(Vandeveld, Amy) Modified on 1/12/2007 (kaj. (Low number order prepared and sent to Judge Napoleon A. Jones Jr.) (Entered: 01/11/2007)
9 NOTICE of Appearance by Stacey L Herter on behalf of Chipotle Mexican Grill, Inc. (Herter, Stacey) (Entered: 01/18/2007)
10 ORDER of transfer pursuant to low number rule. Signed by Judge Larry Alan Burns on 1/22/07. (cag) (Entered: 01/24/2007)
11 Minute Entry for proceedings held before Judge Louisa S Porter : Based on the fact this case is no longer assigned to Judge Porter, the Early Neutral Evaluation scheduled for February 12, 2007 at 2:00 p.m. is vacated. (ep, ) (Entered: 02/12/2007)
12 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. (Motions filed in case 05cv1660) (kaj) Modified on 3/21/2007 to add text (kaj). (Entered: 03/21/2007)
13 ORDER following ENE Conf held on 4/16/07. Case Management Conference set for 6/7/2007 at 02:00 PM in Courtroom C before Magistrate Judge William McCurine Jr.. Signed by Judge William McCurine Jr. on 4/20/07. (bar, ) (Entered: 04/20/2007)
14 ORDER; on the court's own motion the case management/settlement conf currently set for 6/7/07 at 2:00pm will be telephonic; Signed by Magistrate Judge William McCurine Jr. on 5/14/07. (kaj) (Entered: 05/15/2007)
15 Joint MOTION for Discovery Plan by Karen Friedman. (Vandeveld, Amy) (Entered: 05/21/2007)
16 ORDER; on 6/7/07 the court held a telephonic case management/settlement conf; discovery shal lbe stayed until further order of the court; pla shall contact the court within three business days after Judge Jones issues his ruling on the cross motions for summary judgment in the related case of Antoninetti v. Chipotle, 05cv1660−J(WMc); Signed by Magistrate Judge William McCurine Jr. on 6/8/07. (kaj) (Entered: 06/08/2007)
17 Minute Entry for proceedings held before Judge William McCurine Jr.: Case Management Conference held on 6/8/2007 (Tape #n/a).(Plaintiff Attorney Amy Vandeveld).(Defendant Attorney Stacie Herter). (rab) (Entered: 06/12/2007)
18 NOTICE of Change of Address by Gregory Francis Hurley (Hurley, Gregory) (Entered: 08/28/2007)
19 NOTICE OF RELATED CASE(S) by Maurizio Antoninetti of case(s) cv 08−03002 (Attachments: # 1 Proof of Service)(Vandeveld, Amy) Modified on 8/21/2008 (no low number order prepared, Central District case #)(joeh). (Entered: 08/15/2008)
20 ORDER, On the Courts own motion a telephonic status conference will be held in on Thursday, September 4, 2008, at 4:30 p.m. Signed by Magistrate Judge William McCurine, Jr. on 8/21/08. (asw)(av1). (Entered: 08/22/2008)
21 NOTICE of Appearance by John Francis Scalia on behalf of Chipotle Mexican Grill, Inc. (Scalia, John) Modified on 9/5/2008 − Sent e−mail to atty re improper signatures. (mdc) (Entered: 09/04/2008)
23 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr:Telephonic Status Conference held on 9/4/2008(Tape #n/a).(Plaintiff Attorney Amy B. Vandeveld).(Defendant Attorney Gregory Fancis Hurley, John Scalia).(rab) (Entered: 09/26/2008)
22 ORDER Following Telephonic Status Conference: On 9/4/08, the Court convened a telephonic Early Neutral Evaluation Conference. The Court will reschedule a further telephonic status conference for 12/16/08, at 9:00 a.m. Signed by Magistrate Judge William McCurine, Jr on 9/5/08. (asw) (kaj). (Entered: 09/05/2008)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 6 of 21

12/16/2008 04/09/2009 04/17/2009
04/24/2009 04/27/2009 10/23/2009 10/26/2009
10/28/2009 10/30/2009 11/13/2009 12/07/2009 08/04/2010 08/10/2010 08/11/2010 08/19/2010

24 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr:Telephonic Status Conference held on 12/16/2008(Tape #n/a).(Plaintiff Attorney Amy B. Vandeveld).(Defendant Attorney Gregory F. Hurley).(rab) (Entered: 12/17/2008)
25 Order Following Status Conference set for 4/24/2009 03:00 PM in Courtroom C before Magistrate Judge William McCurine Jr.. Signed by Magistrate Judge William McCurine, Jr on 04−09−09. (bjb) (Entered: 04/10/2009)
26 Amended ORDER Setting Telephonic Status Conference. On or before April 21,2009, counsel for the parties shall lodge a meaningful written statement discussing why the Court should continue to stay discovery in this case. Counsel for defendant is instructed to initiate the call.( Telephonice Status Conference set for 4/24/2009 03:00 PM in Courtroom C before Magistrate Judge William McCurine Jr.). Signed by Magistrate Judge William McCurine, Jr on 04/17/09. (bjb) (Entered: 04/17/2009)
27 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr:Telephonic Status Conference held on 4/24/2009(Tape #n/a).(Plaintiff Attorney Amy B. Vandeveld).(Defendant Attorney Gregory F. Hurley).(rab) (Entered: 04/27/2009)
28 ORDER following telephonic status conference. Counsel for defendants is instructed to initiate the call.( Telephonic Status Conference set for 10/23/2009 09:00 AM in Courtroom C before Magistrate Judge William McCurine Jr.) Signed by Magistrate Judge William McCurine, Jr on 04/26/09. (bjb) (jrl). (Entered: 04/27/2009)
29 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference held on 10/23/2009(Tape #n/a). (Plaintiff Attorney Amy B. Vandeveld). (Defendant Attorney Gregory F. Hurley). (rab) (Entered: 10/27/2009)
30 ORDER following telephonic ENE conference held 10/23/09. If the parties desire to continue to stay discovery in this case an application to Judge Jones must be made on or before October 28, 2009. ( Telephonic Status Hearing set for 11/13/2009 04:45 PM in Courtroom C before Magistrate Judge William McCurine Jr.) Defense counsel is instructed to initiate the call. Signed by Magistrate Judge William McCurine, Jr on 10/26/09. (bjb) (jrl). (Entered: 10/27/2009)
31 Joint MOTION to Stay Pending Appeal in Related Case by Maurizio Antoninetti, Chipotle Mexican Grill, Inc.. (Vandeveld, Amy) (Entered: 10/28/2009)
32 ORDER granting 31 Motion to Stay; Case is stayed until final resolution of the related case, Antoninetti v. Chipotle, Case No. 3:05CV1660−J−WMC. Signed by Judge Napoleon A. Jones, Jr on 10/30/09. (ksr) (jrl). (Entered: 10/30/2009)
33 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Hearing set for 11/13/2009 before Magistrate Judge William McCurine Jr. − Off Calendar. Case Stayed per 32 . (mjm) (Entered: 11/17/2009)
34 Minute Order: Judge Napoleon A. Jones, Jr. is no longer assigned to case and Judge Barry Ted Moskowitz is now randomly assigned to the case. The new case number is 06−cv−2671−BTM−WMC. (jrd) (Entered: 12/07/2009)
35 NOTICE of Appearance by Charles C Cavanagh on behalf of Chipotle Mexican Grill, Inc. (Attachments: # 1 Proof of Service)(Cavanagh, Charles) Notified atty incorrect judge in caption (jer). (Entered: 08/04/2010)
36 ORDER SETTING TELEPHONIC STATUS CONFERENCE. On the Court's own motion, a telephonic status conference will be held on September 3, 2010 at 9:45 am before Magistrate Judge William McCurine Jr. Signed by Magistrate Judge William McCurine, Jr on 8/10/2010.(jer) (Entered: 08/10/2010)
37 MOTION to Withdraw as Attorney by Chipotle Mexican Grill, Inc. (Attachments: # 1 Memo of Points and Authorities)(Scalia, John) (jer). (Entered: 08/11/2010)
38 ORDER LIFTING STAY. The Court had stayed this case pending the resolution of a related case, filed by Plaintiff individually, involving similar issues. That case has now largely concluded. The Court therefore lifts the stay in its entirety. The magistrate judge has scheduled a telephonic status conference for September 3, 2010 at 9:45 a.m. The parties may discuss their discovery plans with the magistrate judge at that time.

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 7 of 21

08/19/2010 08/26/2010 09/01/2010 09/03/2010
09/03/2010 09/08/2010 10/04/2010 10/04/2010 10/06/2010
10/15/2010 10/19/2010 10/19/2010 10/19/2010 10/19/2010

Signed by Judge Barry Ted Moskowitz on 8/19/2010.(jer) (Entered: 08/20/2010)
39 ORDER Granting Defendant Chipotle Mexican Grill, Inc's 37 Motion to Withdraw. The law firm of Greenberg Traurig, LLP, and Gregory F. Hurley and John F. Scalia thereof, are withdrawn as counsel of record for Defendant Chipotle Mexican Grill, Inc. Signed by Judge Barry Ted Moskowitz on 8/19/2010. (jer) (Entered: 08/20/2010)
40 PRO HAC VICE APPOINTED: Matthew R. Groves appearing for Defendant Chipotle Mexican Grill, Inc. (All non−registered users served via U.S. Mail Service)(leh) (Entered: 08/30/2010)
41 MOTION to Reimpose Stay by Chipotle Mexican Grill, Inc. re 38 Order Lifting Stay, (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service, # 3 Proposed Order)(Groves, Matthew) changed event type to motion; emailed atty re proposed orders on the docket(jer). (Entered: 09/01/2010)
42 ORDER Setting Telephonic Status Conference. A telephonic status conference was held in the above captioned case on September 3, 2010. Participating were Amy Vandeveld for Plaintiff and Matt Groves for Defendant. After discussion of the status of the case, the Court will schedule a further telephonic status conference for October 4, 2010, at 4:30 p.m. Counsel for Defendant is instructed to initiate the joint call to the Court at 619−557−6624. Signed by Magistrate Judge William McCurine, Jr on 9/3/2010.(jer) (Entered: 09/03/2010)
44 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Status Conference re discovery held on 9/3/2010. Order issued.(CD# 9/3/2010 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Matt Groves). (axk) (Entered: 09/12/2010)
43 PRO HAC VICE APPOINTED: Edward J. Hafer appearing for Defendant Chipotle Mexican Grill, Inc. (All non−registered users served via U.S. Mail Service)(ag) (Entered: 09/09/2010)
45 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Status Conference re Discovery held on 10/4/2010. Order to issue.(CD# 10/4/2010 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Matt Groves). (axk) (Entered: 10/06/2010)
52 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Discovery Conference held on 10/4/2010. Order issued.(CD# 10/4/2010 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Matt Groves). (axk) (Entered: 10/19/2010)
46 ORDER: On October 4, 2010, a telephonic status conference was held. Participating were Amy Vandeveld (counsel for Plaintiff) and Matt Groves (counsel for Defendant). Based upon the statements of counsel and the status of the case the Court will schedule a further telephonic status conference on October 21, 2010, at 4:30 p.m. A joint discovery plan is due on or before October 20, 2010. The parties are reminded the Court does not bifurcate discovery in class action cases. Signed by Magistrate Judge William McCurine, Jr on 10/6/10.(jer) (Entered: 10/07/2010)
47 NON Opposition re 41 MOTION to Stay filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy)(jer). (Entered: 10/15/2010)
48 NOTICE of Appearance by David R Sugden on behalf of Chipotle Mexican Grill, Inc. (Sugden, David) (jer). (Entered: 10/19/2010)
49 NOTICE of Appearance by Melinda Evans on behalf of Chipotle Mexican Grill, Inc. (Evans, Melinda) (jer). (Entered: 10/19/2010)
50 NOTICE of Appearance by Kent Roger Christensen on behalf of Chipotle Mexican Grill, Inc. (Christensen, Kent) (jer). (Entered: 10/19/2010)
51 Supplemental Document Memorandum in Further Support of Motion to Reimpose Stay of Action re 41 MOTION to Stay, 47 Non Opposition to Motionby Chipotle Mexican Grill, Inc. (Attachments: # 1 Proposed Order)(Sugden, David) Modified text to correct event type; termed motion. Emailed atty re proposed orders on the docket. (jer). (Entered: 10/19/2010)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 8 of 21

10/21/2010 10/22/2010 10/27/2010
11/03/2010 11/10/2010 11/24/2010
01/10/2011 01/10/2011 01/13/2011
01/18/2011 01/19/2011 01/20/2011 01/28/2011 01/31/2011

55 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Status Conference re Discovery was not held on 10/21/2010 due to a conflict in the Court's calendar. Order to issue.(CD# 10/21/2010 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Matt Groves). (axk) (Entered: 11/03/2010)
53 MINUTE ORDER submitting 41 Motion to Stay (rfm) (Entered: 10/25/2010)
54 ORDER Denying 41 Motion to Reimpose Stay. The stay shall remain lifted and discovery shall be conducted such that there is no duplication of effort on issues to be determined on remand in the related single−plaintiff case. The Magistrate Judge shall schedule a telephonic status conference. The Parties may discuss their discovery plans at that time. Signed by Judge Barry Ted Moskowitz on 10/27/2010. (jer)(jrl). (Entered: 10/27/2010)
56 ORDER Scheduling Telephonic Status Conference. A telephonic status regarding discovery will be held on November 10, 2010, at 4:00 p.m. Counsel for Defendant is instructed to initiate the joint call to the Court at 619−557−6624. Signed by Magistrate Judge William McCurine, Jr on 11/3/10.(jer) (jrl). (Entered: 11/03/2010)
57 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference re Discovery held on 11/10/2010. Order to issue.(CD# 11/10/2010 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Matt Groves, David Sugden). (axk) (Entered: 11/15/2010)
58 ORDER Regulating Discovery and Other Pretrial Dates. A full day Mandatory Settlement Conference shall be conducted on April 18, 2011 at 9:30 a.m. in the chambers of Magistrate Judge William McCurine, Jr. The final Pretrial Conference is scheduled on the calendar of Judge Moskowitz on November 9, 2011 at 3:00 p.m. Signed by Magistrate Judge William McCurine, Jr on 11/24/2010.(jer) (jrl). (Entered: 11/29/2010)
59 Joint MOTION to Amend/Correct 1 Complaint by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 01/10/2011)
61 AMENDED COMPLAINT with Jury Demand against All Defendants, filed by James Perkins, Karen Friedman, Jean Riker, and Michael Rifkin. (jer) (Entered: 01/13/2011)
60 ORDER Granting 59 Joint Motion to Allow Plaintiffs to File First Amended Complaint. Plaintiffs First Amended Complaint shall be deemed filed on January 10, 2011. Defendant shall file a responsive pleading to the First Amended Complaint or motion on or before January 28, 2011. Signed by Judge Barry Ted Moskowitz on 1/13/11. (jer) (av1). (Entered: 01/13/2011)
62 ORDER Scheduling Telephonic Status Conference. A telephonic status regarding discovery will be held January 19, 2011, at 3:30 p.m. Counsel for Defendant is instructed to initiate the joint call to the Court at 619−557−6624. Signed by Magistrate Judge William McCurine, Jr on 1/18/2011.(jer) (av1). (Entered: 01/18/2011)
63 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference re Discovery held on 1/19/2011. Order to issue.(CD# 1/19/2011 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Melinda Evans). (axk) (Entered: 01/20/2011)
64 ORDER Re Status Conference. On January 28, 2011, a telephonic status conference regarding discovery was held. Based upon the statements of counsel and the status of the case the Court issues this Order regarding protective orders. Signed by Magistrate Judge William McCurine, Jr on 1/20/2011.(jer)(mam). (Entered: 01/20/2011)
65 MOTION to Strike 61 Amended Complaint , Motion to Strike Portions of First Amended Complaint by Chipotle Mexican Grill, Inc. (Attachments: # 1 Memo of Points and Authorities, # 2 Proof of Service)(Evans, Melinda) (jer). (Entered: 01/28/2011)
67 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference not held on 1/31/2011. (CD# 1/31/2011 n/a). (axk) (Entered: 02/07/2011)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 9 of 21

02/04/2011 02/08/2011 02/09/2011 02/11/2011
02/14/2011 02/15/2011 02/15/2011 02/17/2011 02/25/2011 03/10/2011 03/17/2011 03/17/2011 03/18/2011 03/18/2011 03/24/2011
03/28/2011

66 NOTICE of Appearance by Amy B. Vandeveld on behalf of Maurizio Antoninetti (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 02/04/2011)
68 Ex Parte MOTION to Continue Case Management Dates by Maurizio Antoninetti. (Attachments: # 1 Declaration in Support of Ex Parte Application, # 2 Proof of Service)(Vandeveld, Amy)(jer). (Entered: 02/08/2011)
69 RESPONSE to Motion re 68 Ex Parte MOTION to Continue Case Management Dates : NON−OPPOSITION filed by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (jer). (Entered: 02/09/2011)
70 ORDER Regulating Discovery and Other Pretrial Dates. A full day Mandatory Settlement Conference shall be conducted on June 20, 2011 at 9:30 a.m. in the chambers of Magistrate Judge William McCurine, Jr. Counsel shall submit confidential settlement briefs directly to chambers on or before June 13, 2011. The Proposed Final Pretrial Conference Order as described above shall be prepared, served, and lodged on or before January 3, 2012. The final Pretrial Conference is scheduled on the calendar of Judge Moskowitz on January 10, 2012 at 3:00 p.m. Signed by Magistrate Judge William McCurine, Jr on 2/11/2011. (jer) Modified text on 2/15/2011 (jcj). (Entered: 02/14/2011)
71 MOTION to Withdraw as Attorney by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Memo of Points and Authorities)(Groves, Matthew) (jer). (Entered: 02/14/2011)
72 NOTICE by Jay Rifkin Successor in Interest to Claims of Plaintiff Michael Rifkin, deceased (Vandeveld, Thomas) (jer). (Entered: 02/15/2011)
73 Third Party MOTION to Substitute Party Plaintiff, Michael Rifkin by Jay Rifkin. (Attachments: # 1 Memo of Points and Authorities In Support of Motion to Substitute Plaintiff Michael Rifkin, # 2 Declaration of Successor−In−Interest Jay Rifkin, # 3 Proof of Service)(Vandeveld, Thomas)(jer). (Entered: 02/15/2011)
74 ORDER Granting 71 Motion to Withdraw as Attorney. Attorney Matthew R. Groves terminated as counsel for Defendant Chipotle Mexican Grill, Inc. Signed by Judge Barry Ted Moskowitz on 2/17/11. (jer) (jrl). (Entered: 02/17/2011)
75 RESPONSE in Opposition re 65 MOTION to Strike 61 Amended Complaint , Motion to Strike Portions of First Amended Complaint filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Thomas) (jer). (Entered: 02/25/2011)
76 REPLY to Response to Motion re 65 MOTION to Strike 61 Amended Complaint , Motion to Strike Portions of First Amended Complaint filed by Chipotle Mexican Grill, Inc. (Evans, Melinda) (jer). (Entered: 03/10/2011)
77 ORDER RE: PROTECTIVE ORDER. Signed by Magistrate Judge William McCurine, Jr on 3/17/2011.(jer) (jrl). (Entered: 03/18/2011)
78 MINUTE ORDER submitting 65 Motion to Strike (rfm) (Entered: 03/18/2011)
81 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Discovery Conference held on 3/18/2011. Order to issue.(CD# 3/18/2011 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Melinda Evans). (axk) (Entered: 03/29/2011)
85 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Discovery Conference held on 3/18/2011. Order to issue.(CD# 3/18/2011 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Melinda Evans). (axk) (Entered: 04/05/2011)
79 ORDER Rescheduling Settlement Conference. Due to a conflict in the Court's calendar the settlement conference currently scheduled for June 20, 2011 is continued to June 22, 2011, at 9:30 a.m. On or before April 1, 2011, the parties shall submit confidential letters to the Court regarding their position on whether the parties desire a full day settlement conference. Signed by Magistrate Judge William McCurine, Jr on 3/23/2011.(jer) (jcj). (Entered: 03/24/2011)
80 Joint MOTION for Protective Order and Proposed Order by Maurizio Antoninetti. (Attachments: # 1 Exhibit Proposed Joint Protective Order, # 2 Proof of Service)(Vandeveld, Thomas) (jer). (Entered: 03/28/2011)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 10 of 21

03/29/2011
04/05/2011 04/05/2011
04/08/2011 04/15/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011 04/18/2011

82 ORDER re Discovery. On or before March 29, 2011, Defendant shall submit a letter brief regarding the issue regarding disclosure Plaintiff's expert fee income. Plaintiff shall file a reply a brief on or before April 8, 2011. The discovery hearing currently scheduled for April 4, 2011 is continued to April 6, 2011 at 3:00 p.m. Signed by Magistrate Judge William McCurine, Jr on 3/29/2011.(jer) (jcj). (Entered: 03/30/2011)
83 PROTECTIVE ORDER Re: Evidence of Transactions. Signed by Magistrate Judge William McCurine, Jr on 4/5/11. (jer) (jcj). (Entered: 04/05/2011)
84 ORDER Rescheduling Status Conference. For good cause shown, the Court will reschedule the telephonic status for April 20, 2011 at 2:00 p.m. Ms. Vandeveld (counsel for Plaintiff) is instructed to initiate the call by first telephoning Ms. Evans (counsel for Defendant) and then telephoning the Court at 619−557−6624. Signed by Magistrate Judge William McCurine, Jr on 4/5/11.(jer) (Entered: 04/05/2011)
86 RESPONSE in Opposition re 73 Third Party MOTION to Substitute Party Plaintiff, Michael Rifkin filed by Chipotle Mexican Grill, Inc.. (Evans, Melinda)(jer). (Entered: 04/08/2011)
87 REPLY to Response to Motion re 73 Third Party MOTION to Substitute Party Plaintiff, Michael Rifkin filed by Jay Rifkin. (Attachments: # 1 Declaration Supplemental Declaration with copy of death certificate, # 2 Proof of Service)(Vandeveld, Thomas) (jer). (Entered: 04/15/2011)
88 MOTION to Certify Class by Maurizio Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Amy B. Vandeveld, # 3 Declaration of Thomas J. Vandeveld, # 4 Declaration Steven Day)(Vandeveld, Amy) (jer). (Entered: 04/18/2011)
89 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Declaration Alsanjak, # 2 Declaration Antoninetti, # 3 Declaration Baker, # 4 Declaration Barnett)(Vandeveld, Amy) (jer). (Entered: 04/18/2011)
90 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Declaration Burghardt, # 2 Declaration Chandler, # 3 Declaration Chenier, # 4 Declaration Clady)(Vandeveld, Amy) (jer). (Entered: 04/18/2011)
91 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Declaration Eichenlaub, # 2 Declaration Fernandez, # 3 Declaration Fogarty, # 4 Declaration Frias, # 5 Declaration Friedman)(Vandeveld, Amy) (jer). (Entered: 04/18/2011)
92 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Goldkorn, # 2 Greenberg, # 3 Hanby, # 4 Jacobson)(Vandeveld, Amy) (jer). (Entered: 04/18/2011)
93 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Declaration Kalafalitch, # 2 Declaration Landon, # 3 Declaration Langjahr, # 4 Declaration Lennon)(Vandeveld, Amy)(jer). (Entered: 04/18/2011)
94 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Minnis, # 2 Needles, # 3 Nelson, # 4 Notar, # 5 Ott)(Vandeveld, Amy) (jer). (Entered: 04/18/2011)
95 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Reed, # 2 Ridley, # 3 Riker, # 4 Robertson)(Vandeveld, Amy)(jer). (Entered: 04/18/2011)
96 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Declaration Sayles, # 2 Declaration Shuman, # 3 Declaration Sinnegar, # 4 Declaration Stewart)(Vandeveld, Amy)(jer). (Entered: 04/18/2011)
97 DECLARATION re 88 MOTION to Certify Class by Plaintiff Maurizio Antoninetti. (Attachments: # 1 Warren, # 2 Wheeler, # 3 Williams)(Vandeveld, Amy) (jer). (Entered: 04/18/2011)
98 NOTICE Regarding Exhibit Attachment by Maurizio Antoninetti re 88 MOTION to Certify Class (Attachments: # 1 Proof of Service)(Vandeveld, Amy)(jer). (Entered: 04/18/2011)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 11 of 21

04/20/2011 04/21/2011 04/21/2011 04/22/2011 04/22/2011 04/22/2011 04/27/2011
04/29/2011 04/29/2011 04/29/2011 05/05/2011
05/06/2011
05/06/2011 05/06/2011 05/09/2011

104 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Discovery Hearing held on 4/20/2011. Court to issue order.(CD# 4/20/2011 n/a). (Plaintiff Attorney Amy B. Vandeveld). (Defendant Attorney Melinda Evans). (rab) (Entered: 04/25/2011)
99 ORDER Granting in Part and Denying in Part Chipotle's Motion to Compel Further Answers to Request for Production No. 12. Signed by Magistrate Judge William McCurine, Jr on 4/21/11.(jer) (jcj). (Entered: 04/21/2011)
100 Ex Parte MOTION to Continue The Hearing On Plaintiffs Motion For Class Certification And Defendants Deadline To Oppose That Motion by Chipotle Mexican Grill, Inc. (Attachments: # 1 Declaration, # 2 Exhibit A−E)(Evans, Melinda) (jer). (Entered: 04/21/2011)
101 Briefing Schedule re 100 Ex Parte Application. Any opposition to this application shall be filed on or before April 29, 2011. The hearing date for this application shall be May 6, 2011 at 11am. There will be no oral argument unless requested by the Court. Signed by Judge Barry Ted Moskowitz on 4/22/11.(jer)(jrd) (Entered: 04/22/2011)
102 RESPONSE in Opposition re 100 Ex Parte MOTION to Continue The Hearing On Plaintiffs Motion For Class Certification And Defendants Deadline To Oppose That Motion filed by Maurizio Antoninetti. (Vandeveld, Amy) (jer). (Entered: 04/22/2011)
103 MINUTE ORDER submitting 73 Motion to Substitute Party. (rfm) (Entered: 04/25/2011)
105 Amended RESPONSE in Opposition re 100 Ex Parte MOTION to Continue The Hearing On Plaintiffs Motion For Class Certification And Defendants Deadline To Oppose That Motion (Amended) filed by Maurizio Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld, # 2 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 04/27/2011)
106 Ex Parte MOTION to Shorten Time for Deposition, Telephonic Deposition by Maurizio Antoninetti. (Attachments: # 1 Declaration of Amy B. Vandeveld, # 2 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 04/29/2011)
107 ORDER Re 106 Plaintiff's Ex Parte Motion. The deposition shall be held at Mr. Antoninetti's residence on Monday, May 2, 2011 at 3:00 p.m. either by phone or by telephone, whichever is mutually agreeable for both counsel. Signed by Magistrate Judge William McCurine, Jr on 4/29/11. (jer)(jcj). (Entered: 04/29/2011)
108 AMENDED ORDER Re Plaintiff's 106 Ex Parte Motion to Shorten Time. Signed by Magistrate Judge William McCurine, Jr on 4/29/11.(jer) (jcj). (Entered: 04/29/2011)
109 REPLY − Other re 102 Response in Opposition to Motion, 100 Ex Parte MOTION to Continue The Hearing On Plaintiffs Motion For Class Certification And Defendants Deadline To Oppose That Motion filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Supplemental Declaration of Melinda Evans In Support Of Ex Parte Application For An Order To Continue The Hearing On Plaintiffs' Motion For Class Certification, # 2 Exhibits to Evans Declaration)(Evans, Melinda) (jer). (Entered: 05/05/2011)
110 REPLY − Other re 100 Ex Parte MOTION to Continue The Hearing On Plaintiffs Motion For Class Certification And Defendants Deadline To Oppose That Motion Objections to Reply filed by Maurizio Antoninetti. (Attachments: # 1 Declaration of Thomas J. Vandeveld III, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Proof of Service)(Vandeveld, Thomas) (jer). (Entered: 05/06/2011)
111 AMENDED REPLY − Other re 100 Ex Parte MOTION to Continue The Hearing On Plaintiffs Motion For Class Certification And Defendants Deadline To Oppose That Motion − Amended Objections to Chipotle's Reply filed by Maurizio Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) (jer). (Entered: 05/06/2011)
112 MINUTE ORDER submitting 100 Motion to Continue The Hearing On Plaintiffs Motion For Class Certification And Defendants Deadline To Oppose That Motion. (rfm) (Entered: 05/09/2011)
113 ORDER Scheduling Telephonic Discovery Conference. A telephonic conference regarding discovery will be held May 13, 2011, at 11:30 a.m. On or before May l1, 2011, counsel for the parties shall email/lodge a discovery conference statement no

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 12 of 21

05/11/2011
05/13/2011
05/16/2011
05/20/2011 05/23/2011 05/26/2011 05/31/2011 06/08/2011 06/14/2011 06/17/2011 06/22/2011 06/29/2011 06/29/2011 06/30/2011

more than three pages in length setting forth the issue to be addressed at the teleconference. Attorney Melinda Evans is instructed to initiate a joint call to the Court at 619−557−6624. Signed by Magistrate Judge William McCurine, Jr on 5/9/2011. (jer) (jcj). (Entered: 05/09/2011)
114 ORDER Granting 100 Ex Parte Application for Continuance. The new hearing date for the 88 Motion for Class Certification is July 15, 2011 at 11:00 a.m. There will be no oral argument unless requested by the Court. Plaintiff's counsel raises several discovery disputes and complains of harassing tactics by the Defendant's counsel. All discovery disputes must be raised before the assigned magistrate judge. Signed by Judge Barry Ted Moskowitz on 5/10/2011. (jer) (jcj). (Entered: 05/11/2011)
116 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Discovery Hearing held on 5/13/2011. Order to issue.(CD# 5/13/2011 WMC11−11:33−12:00 and 12:05−12:22). (Plaintiff Attorney Amy B. Vandeveld, Thomas J. Vandeveld). (Defendant Attorney Melinda Evans, David R. Sugden). (rab) (Entered: 05/17/2011)
115 ORDER Re 65 Motion to Strike. Defendant's motion to strike portions of the First Amended Complaint that reference a Ninth Circuit opinion in a related case, Antoninetti v. Chipotle Mexican Grill, Inc., 614 F.3d 971 (9th Cir. 2010), is denied. The Court finds that language referencing the Ninth Circuit opinion in Antoninetti is not "immaterial" or otherwise improper. The parties may address the issue of preclusion in a motion for summary judgment after the motion for class certification is decided. Signed by Judge Barry Ted Moskowitz on 5/16/2011. (jer) (jrl). (Entered: 05/16/2011)
117 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)
118 ORDER Granting Chipotle's Motion to Compel 20 Depositions of Putative Class Members. Signed by Magistrate Judge William McCurine, Jr on 5/23/2011.(jer) (jcj). (Entered: 05/23/2011)
119 ORDER Granting 117 Motion to Substitute Party. Jay Rifkin's motion to be substituted as Plaintiff in this matter in place of his deceased father, Michael Rifkind, is granted. Signed by Judge Barry Ted Moskowitz on 5/26/2011. (jer) (jcj). (Entered: 05/26/2011)
120 ANSWER to 61 Amended Complaint by Chipotle Mexican Grill, Inc..(Evans, Melinda)(jer). (Entered: 05/31/2011)
121 Joint MOTION to Continue Mandatory Settlement Hearing Date by Chipotle Mexican Grill, Inc. (Evans, Melinda) (jer). (Entered: 06/08/2011)
122 ORDER Granting 121 Joint Motion to Continue Mandatory Settlement Conference. The Mandatory Settlement Conference is continued to 7/22/2011 at 09:15 AM before Magistrate Judge William McCurine Jr. Signed by Magistrate Judge William McCurine, Jr on 6/14/2011. (jer) (jcj). (Entered: 06/14/2011)
123 NON Opposition re 117 MOTION to Substitute Party filed by Chipotle Mexican Grill, Inc.(Evans, Melinda) (jer). (Entered: 06/17/2011)
124 Ex Parte MOTION for Leave to File Excess Pages by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Declaration, # 2 Exhibit A)(Evans, Melinda) (ecs). (Entered: 06/22/2011)
125 Ex Parte MOTION for Extension of Time to File Response/Reply as to 88 MOTION to Certify Class by Karen Friedman. (Attachments: # 1 Declaration of Thomas J. Vandeveld III, # 2 Proof of Service)(Vandeveld, Thomas) (jer). (Entered: 06/29/2011)
127 ORDER Granting 124 Ex Parte Motion for Leave to File Excess Pages. Defendant's response may exceed the page limit by up to 5 pages. Similarly, Plaintiff's reply may exceed the page limit by up to 5 pages. Signed by Judge Barry Ted Moskowitz on 6/29/2011. (jer) (jcj). (Entered: 06/30/2011)
126 RESPONSE in Opposition re 125 Ex Parte MOTION for Extension of Time to File Response/Reply as to 88 MOTION to Certify Class filed by Chipotle Mexican Grill,

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 13 of 21

06/30/2011
06/30/2011 06/30/2011 06/30/2011 06/30/2011 07/01/2011 07/05/2011 07/12/2011 07/12/2011
07/14/2011
07/15/2011 07/15/2011 07/25/2011 08/04/2011

Inc. (Evans, Melinda) (jer). (Entered: 06/30/2011)
128 RESPONSE in Opposition re 88 MOTION to Certify Class filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Request for Judicial Notice, # 2 Exhibit Exhibits to Request for Judicial Notice, # 3 Declaration Declaration of David R. Sugden, # 4 Exhibit Exhibits to Declaration of David R. Sugden, # 5 Declaration Declaration of Maureen Barnett, # 6 Declaration Declaration of Marcel Carrion, # 7 Declaration Declaration of Wayne Neal, # 8 Declaration Declaration of Steven Scott, # 9 Declaration Declaration of Jerry Sylvia, # 10 Declaration Declaration of Scott Shippey)(Evans, Melinda)(jer). (Entered: 06/30/2011)
129 OBJECTION by Chipotle Mexican Grill, Inc. re 88 MOTION to Certify Class − Defendant's Written Objection to Declaration of Steven Day in Support of Motion to Certify Class, Appointment of Class Representatives and Appointment of Class Counsel (Evans, Melinda) (jer). (Entered: 06/30/2011)
130 OBJECTION by Chipotle Mexican Grill, Inc. re 128 Response in Opposition to Motion,, Defendant's Written Objections to Deposition Errata Sheets by Putative Class Members (Attachments: # 1 Exhibit Exhibit A)(Evans, Melinda) (jer). (Entered: 06/30/2011)
131 NOTICE by Chipotle Mexican Grill, Inc. re 128 Response in Opposition to Motion,, Defendant Chipotle Mexican Grill, Inc.'s Notice of Lodging Deposition Transcripts (Evans, Melinda) (jer). (Entered: 06/30/2011)
132 CERTIFICATE OF SERVICE by Chipotle Mexican Grill, Inc. re 130 Objection, 128 Response in Opposition to Motion,, 129 Objection, 131 Notice (Other) of Lodging Deposition Transcripts (Evans, Melinda) (jer). (Entered: 06/30/2011)
133 ORDER Granting 125 Ex Parte Application to Allow Plaintiffs Until July 14, 2011 to File and Serve a Reply to Defendant's Opposition to Motion for Class Certification. Signed by Judge Barry Ted Moskowitz on 7/1/2011. (jer) (jcj). (Entered: 07/05/2011)
134 NOTICE by Chipotle Mexican Grill, Inc. re 130 Objection Notice Of Errata Re Defendants Written Objections To Deposition Errata Sheets By Putative Class Members (Attachments: # 1 Exhibit B)(Evans, Melinda) (jer). (Entered: 07/05/2011)
135 Joint MOTION to Vacate Mandatory Settlement Conference until after a Ruling on Plaintiffs' Class Certification by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (ecs). (Entered: 07/12/2011)
136 ORDER on 135 Joint Motion of parties to vacate Mandatory Settlement Conference until after a ruling on plaintiffs' class certification motion. The Mandatory Settlement Conference currently scheduled for July 22, 2011, at 9:15 a.m., with Magistrate Judge William McCurine is hereby VACATED. Signed by Magistrate Judge William McCurine, Jr on 7/12/11. (ecs) (jcj). (Entered: 07/13/2011)
137 REPLY to Response to Motion re 88 MOTION to Certify Class filed by James Perkins. (Attachments: # 1 Declaration of Amy B. Vandeveld, # 2 Notice of Lodgment, # 3 Objection to Declarations, # 4 Objection to Sugden Declaration, # 5 Objection to Shippey Declaration, # 6 Response to Objections to Errata, # 7 Response to Objections to Day Declaration, # 8 Proof of Service)(Vandeveld, Amy) (ecs). (Entered: 07/14/2011)
138 NOTICE by Chipotle Mexican Grill, Inc. re 128 Response in Opposition to Motion,, Notice of Errata (Attachments: # 1 Exhibit A − Declaration of Regan Linton)(Evans, Melinda) (ecs). (Entered: 07/15/2011)
139 MINUTE ORDER submitting 88 Motion to Certify Class. (rfm) (Entered: 07/18/2011)
140 ORDER re 117 MOTION to Substitute. Livia Antoninetti 's motion to be substituted as Plaintiff in place of her deceased husband, Maurizio Antoninetti, is Granted. Signed by Judge Barry Ted Moskowitz on 7/25/11.(ecs) (ecs)(jcj). (Entered: 07/25/2011)
141 Ex Parte MOTION to Vacate Pre−Trial Dates and for an Order to Set a Status/Scheduling Conference After Ruling on Motion to Certify Class by Livia Antoninetti. (Attachments: # 1 Declaration of Thomas J. Vandeveld III In Support of Ex Parte Application, # 2 Exhibit, # 3 Proof of Service)(Vandeveld, Thomas) (ecs).

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 14 of 21

08/05/2011 08/09/2011 08/10/2012 08/28/2012
09/11/2012 09/12/2012 11/01/2012 11/09/2012 11/16/2012 01/14/2013 01/30/2013 02/06/2013
02/06/2013

(Entered: 08/04/2011)
142 RESPONSE re 141 Ex Parte MOTION to Vacate Pre−Trial Dates and for an Order to Set a Status/Scheduling Conference After Ruling on Motion to Certify Class filed by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (ecs). (Entered: 08/05/2011)
143 ORDER on Plaintiff's 141 Ex Parte Application. The Court Orders all pre−trial dates Vacated. Signed by Magistrate Judge William McCurine, Jr on 8/9/11. (ecs) (jcj). (Entered: 08/09/2011)
144 SUPPLEMENTAL BRIEFING by Defendant Chipotle Mexican Grill, Inc. re 130 Objection, 128 Response in Opposition to Motion,, 129 Objection, 138 Notice (Other), 132 Certificate of Service, 131 Notice (Other) Notice of Supplemental Authority in Support of Opposition to Plaintiffs' Motion for Class Certification. (Sugden, David)(kaj). (Entered: 08/10/2012)
145 ORDER Denying without prejudice Plaintiffs' 88 Motion to Certify Class, Appointment of Class Representatives and Appointment of Class Counsel. The Court grants Plaintiffs leave to re−file a motion for class certification if, upon further discovery, Plaintiffs can establish that their claims for injunctive relief and corresponding declaratory relief are not moot. Signed by Judge Barry Ted Moskowitz on 8/28/2012. (rlu) (Entered: 08/29/2012)
146 MOTION for Reconsideration by Livia Antoninetti, Karen Friedman, James Perkins, Jay Rifkin, Jean Riker. (Attachments: # 1 Memo of Points and Authorities, # 2 Request for Judicial Notice, # 3 Exhibit Exhibit "A" to Request for Judicial Notice)(Vandeveld, Thomas) qc email re pos on 9/12/2012 (rlu). (Entered: 09/11/2012)
147 CERTIFICATE OF SERVICE by Livia Antoninetti, Karen Friedman, James Perkins, Jay Rifkin, Jean Riker re 146 MOTION for Reconsideration (Vandeveld, Thomas) (rlu). (Entered: 09/12/2012)
148 RESPONSE in Opposition re 146 MOTION for Reconsideration filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Proof of Service Certificate of Service)(Sugden, David) (rlu). (Entered: 11/01/2012)
149 REPLY to Response to Motion re 146 MOTION for Reconsideration and/or Clarification filed by Livia Antoninetti. (Attachments: # 1 Proof of Service)(Vandeveld, Thomas) (kaj). (Entered: 11/09/2012)
150 MINUTE ORDER, Motions Submitted 146 MOTION for Reconsideration (no document attached) (rfm) (Entered: 11/16/2012)
151 ORDER Denying 146 Motion for Reconsideration and Granting in Part Motion for Clarification. The Court Denies Defendant's request that the Court issue an order to show cause why Plaintiffs should not be sanctioned. The trial in this case shall commence on July 8, 2013 at 10:00 AM. Signed by Judge Barry Ted Moskowitz on 1/14/2013. (rlu) (Entered: 01/14/2013)
152 ORDER Setting Telephonic Status Conference on 2/6/2013 at 2:00 PM before Magistrate Judge William McCurine Jr. In addition, counsel shall submit a short, joint statement regarding the status for the case and a recommended pretrial schedule. Signed by Magistrate Judge William McCurine, Jr on 1/30/2013.(rlu) (jcj). (Entered: 01/30/2013)
153 ORDER Regulating Discovery and Other Pretrial Dates: Mandatory Settlement Conference set for 3/6/2013 at 9:30 AM in the chambers of Magistrate Judge William McCurine Jr. If necessary, the Court will conduct a second MSC on 3/15/2013 at 9:30 AM. Memorandum of Contentions of Fact and Law on or before 5/21/2013. Proposed Pretrial Order due on or before 6/11/2013. Final Pretrial Conference set for 6/18/2013 at 3:00 PM before Judge Barry Ted Moskowitz. Signed by Magistrate Judge William McCurine, Jr on 2/6/2013.(rlu) (Entered: 02/07/2013)
154 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference held on 2/6/2013. Order issued. (CD# 2/6/2013 n/a). (Plaintiff Attorney Amy B. Vandeveld). (Defendant Attorney Melinda Evans). (no document attached) (rab) (Entered: 02/11/2013)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 15 of 21

02/28/2013 03/01/2013
03/04/2013 03/05/2013
03/06/2013 03/11/2013 03/13/2013 03/14/2013
03/14/2013 03/22/2013 03/25/2013 05/10/2013 05/20/2013
06/13/2013

155 Joint MOTION to Excuse Appearance of All Parties at Mandatory Settlement Conference March 6, 2013, And Allow Parties to be Available by Telephone Standby by Livia Antoninetti. (Vandeveld, Thomas) (rlu). (Entered: 02/28/2013)
156 ORDER Setting Telephonic Status Conference for 3/4/2013 at 4:00 PM before Magistrate Judge William McCurine Jr. The purpose of the telephonic conference is to discuss any developments and the parties' 155 joint motion to appear telephonically (counsel to appear in person) at the Mandatory Settlement Conference set for 3/6/2013 at 9:30 AM. Signed by Magistrate Judge William McCurine, Jr on 3/1/2013.(rlu) (Entered: 03/01/2013)
159 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference held on 3/4/2013. Order issued.(CD# 3/4/2013 n/a). (Plaintiff Attorney Thomas Vadeveld). (Defendant Attorney Dave Sugden). (no document attached) (rab) (Entered: 03/07/2013)
157 ORDER Following Telephonic Status Conference held on 3/4/2013 and Denying as Moot the 155 Joint Motion to be Excused from Personally Appearing at the Mandatory Settlement Conference. The Mandatory Settlement Conference set for 3/6/2013 is vacated. Signed by Magistrate Judge William McCurine, Jr on 3/5/2013. (rlu) (jrl). (Entered: 03/05/2013)
158 NOTICE by Livia Antoninetti of Death of Plaintiff, Laura Williams (Attachments: # 1 Proof of Service)(Vandeveld, Thomas) (rlu). (Entered: 03/06/2013)
160 ORDER Setting Telephonic Status Conference for 3/14/2013 at 3:30 PM before Magistrate Judge William McCurine Jr. Signed by Magistrate Judge William McCurine, Jr on 3/11/2013.(rlu) (jcj). (Entered: 03/11/2013)
161 Joint MOTION to Continue Trial Date and Pretrial Deadlines by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Proposed Order)(Evans, Melinda) qc email re proposed order on 3/14/2013 (rlu). (Entered: 03/13/2013)
162 ORDER Granting 161 Stipulation to Continue Trial Date and Pretrial Deadlines: Memorandum of Contentions of Fact and Law on or before 7/22/2013. Proposed Pretrial Order on or before 8/12/2013. Pretrial Conference set for 8/20/2013 at 3:00 PM before Judge Barry Ted Moskowitz. Jury Trial set for 9/9/2013 at 10:00 AM before Judge Barry Ted Moskowitz. Signed by Judge Barry Ted Moskowitz on 3/14/2013. (rlu) (jrl). (Entered: 03/14/2013)
163 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference held on 3/14/2013. Order to issue.(CD# 3/14/2013 n/a). (Plaintiff Attorney Amy B. Valdeveld). (Defendant Attorney David R. Sugden). (no document attached) (rab) (Entered: 03/21/2013)
164 ORDER: Telephonic Status Conference set for 3/25/2013 at 2:30 PM before Magistrate Judge William McCurine Jr. Signed by Magistrate Judge William McCurine, Jr on 3/22/2013.(rlu) (jcj). (Entered: 03/25/2013)
165 Minute Entry for proceedings held before Magistrate Judge William McCurine, Jr: Telephonic Status Conference held on 3/25/2013.(CD# 3/25/2013 n/a). (Plaintiff Attorney Amy Vandeveld). (Defendant Attorney Dave Sugden). (no document attached) (rab) (Entered: 04/04/2013)
166 Joint MOTION to Continue Trial Date and Pretrial Deadlines by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (rlu). (Entered: 05/10/2013)
167 ORDER Granting 166 Stipulation to Continue Trial Date and Pretrial Deadlines. Memorandum of Contentions of Fact and Law due by 9/23/2013. Proposed Pretrial Order due by 10/14/2013. Jury Trial set for 11/18/2013 at 10:00 AM before Judge Barry Ted Moskowitz. Pretrial Conference set for 10/21/2013 at 3:30 PM before Judge Barry Ted Moskowitz. Signed by Judge Barry Ted Moskowitz on 5/20/2013. (rlu) (jcj). (Entered: 05/20/2013)
168 Joint MOTION To Set Status Conference by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (rlu). (Entered: 06/13/2013)

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 16 of 21

06/17/2013 06/19/2013
07/19/2013 07/23/2013
08/14/2013 08/20/2013 09/27/2013 10/03/2013 10/11/2013 10/15/2013 11/01/2013 11/08/2013 11/12/2013

169 ORDER granting 168 Joint Motion for Status Conference. Upon the stipulation of the parties, and good cause having been demonstrated to the satisfaction of the Court, the Court hereby orders as follows: A status conference is set for June 19, 2013, at 3:00 p.m. Counsel for the parties are to appear in person. Signed by Judge Barry Ted Moskowitz on 6/17/2013. (sjt) (Entered: 06/17/2013)
170 Minute Entry for proceedings held before Judge Barry Ted Moskowitz: Status Conference held on 6/19/2013. The Court ordered the parties to give notice to potential class members by e−mailing to disabled rights organizations, and posting on the Chipotle website. The notice should say that the class certification was denied, that the plaintiffs intend to settle the case and not appeal the denial. The notice should provide that other persons who want to proceed against Chipotle on these claims have to proceed on their own, and that they can make a motion to intervene and become part of this case. The notice should also address the applicable statute of limitations and tolling of the limitations period. The parties shall submit a stipulation to the form of the notice once settlement is finalized. (Court Reporter/ECR Barbara Harris). (Plaintiff Attorney Thomas J Vandeveld). (Defendant Attorney David R Sugden). (no document attached) (jak) (Entered: 06/19/2013)
171 Joint MOTION to Amend/Correct Complaint to Add Plaintiffs by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Exhibit A − Second Amended Complaint, # 2 Proof of Service)(Evans, Melinda) (leh). (Entered: 07/19/2013)
172 ORDER Granting 171 Joint Motion to Amend the Complaint to Add Plaintiffs: The Court hereby orders as follows: The Second Amended Complaint proposed by the parties is accepted and deemed filed. Defendant need not file an answer to the Second Amended Complaint. The Answer previously filed by Defendant is deemed effective as to the Second Amended Complaint and all plaintiffs added in the Second Amended Complaint. Signed by Judge Barry Ted Moskowitz on 7/23/2013. (rlu) (Entered: 07/24/2013)
173 Joint MOTION Approval of Notice to Putative Class Regarding Settlement of Plaintiffs' Individual Claims re 170 Status Conference,,, by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (rlu). (Entered: 08/14/2013)
174 ORDER Approving Notice to Putative Class Regarding Settlement of Plaintiffs' Individual Claims (ECF No 173 ). Signed by Judge Barry Ted Moskowitz on 8/20/2013. (rlu) (Entered: 08/20/2013)
175 Joint MOTION to Retain Jurisdiction to Determine Attorneys' Fees, Costs and Expenses and Enforce the Parties' Settlement Agreement by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (rlu). (Entered: 09/27/2013)
176 ORDER Granting 175 Joint Motion to Retain Jurisdiction. Signed by Judge Barry Ted Moskowitz on 10/3/2013. (rlu) (Entered: 10/03/2013)
177 Joint MOTION to Continue Pretrial Conference and Related Dates and to Vacate The Trial Date by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (rlu). (Entered: 10/11/2013)
178 ORDER Granting 177 Continuance of Pretrial Conference and All Related Dates and Vacating Trial Date. The Pretrial Conference currently set for 10/21/2013 is continued to 11/25/2013 at 3:30 PM. A Pretrial Conference Order shall be filed on or before 11/15/2013. The trial date of 11/18/2013 is Vacated. Signed by Judge Barry Ted Moskowitz on 10/15/2013. (rlu) (Entered: 10/16/2013)
179 Joint MOTION to Vacate Pretrial Conference and Related Dates by Chipotle Mexican Grill, Inc.. (Evans, Melinda) (rlu). (Entered: 11/01/2013)
180 ORDER granting 179 Motion to Vacate Pretrial Conference Date and Associated Deadlines. Pretrial Conference reset for January 7, 2014 at 3:30 p.m. Pretrial Conference papers to be filed no later than December 19, 2013. Signed by Judge Barry Ted Moskowitz on 11−8−2013. (cjb) (rlu). (Entered: 11/08/2013)
181 ORDER: It is Ordered that any joint motion for consolidation of the Perkins (13cv1831−BTM−WMC) and Antoninetti cases and for dismissal shall be filed within seven calendar days. A copy of the global settlement agreement shall be provided to the Court along with any such motion. Signed by Judge Barry Ted Moskowitz on

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 17 of 21

11/19/2013 12/02/2013 12/02/2013 12/02/2013 12/03/2013 12/03/2013
01/31/2014
02/28/2014
03/03/2014

11/12/2013.(rlu) (Entered: 11/12/2013)
182 Joint MOTION to Consolidate Cases , for Retention of Jurisdiction by Court, and for Dismissal of Consolidated Action by Chipotle Mexican Grill, Inc.. (Sugden, David) (rlu). (Entered: 11/19/2013)
183 MOTION for Attorney Fees by Livia Antoninetti. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Richard Prager, # 3 Declaration of Dara Schur, # 4 Declaration of Russell Handy, # 5 Declaration of Scottlynn J. Hubbard IV, # 6 Request for Judicial Notice, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7)(Vandeveld, Thomas) qc email re declaration of Richard Prager is unsigned, requested document be refiled on 12/3/2013 (rlu). (Entered: 12/02/2013)
184 DECLARATION re 183 MOTION for Attorney Fees by Plaintiff Livia Antoninetti. (Attachments: # 1 Exhibit 8)(Vandeveld, Thomas) (rlu). (Entered: 12/02/2013)
185 DECLARATION of Amy Vandeveld by Plaintiff Livia Antoninetti. (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13−1, # 6 Exhibit 13−2, # 7 Exhibit 14, # 8 Exhibit 15, # 9 Exhibit 16, # 10 Proof of Service)(Vandeveld, Thomas) (rlu). (Entered: 12/02/2013)
186 DECLARATION of Richard D. Prager re 183 −2 Motion for Attorney Fees by Plaintiff Livia Antoninetti. (Attachments: # 1 Declaration of Richard D. Prager, # 2 Proof of Service)(Vandeveld, Thomas) Modified text on 12/4/2013 (rlu). (Entered: 12/03/2013)
187 ORDER Consolidating Related Cases and Dismissing the Consolidated Action (ECF # 182 ). Cases Consolidated. All future docketing will be done in this case, 06cv2671−BTM−WMC. The Court will retain jurisdiction over the consolidated action. The Parties' settlement agreement, annexed as Exhibit A to the Parties' Consolidation Motion (ECF # 182 ) is incorporated herein by reference as though fully set forth in this Order. The claims of Plaintiffs Jean Riker, Livia Antoninetti (as representative for Maurizio Antoninetti), James Perkins, Karen Friedman, Leslie Robinson, Jay Rifkin (as representative for Michael Rifkin), Susan Chandler, Ruthee Goldkorn, Robert Vahoviak, Jack Robertson, Rufus Martin, Kory Barnett, Raymond Berry, Michael Neth, Albert Sayles, Tamela Ridley, Michael Hanby, Pedro Garcia, Mimi Greenberg, Jeremy McGhee, and Kyle Minnis are hereby Dismissed without prejudice. The claims of putative class members in the consolidated action are Dismissed without prejudice. Signed by Judge Barry Ted Moskowitz on 12/3/2013. (rlu) (Entered: 12/03/2013)
188 Transfer Order. It is hereby ordered that the following listed cases are transferred from the calendar of the Honorable William McCurine, Jr. to the calendar of the Honorable David H. Bartick for all further proceedings. The new case number is 06cv2671−BTM(DHB). All future conference or hearing dates set before Magistrate Judge McCurine, if any, are vacated and will be rescheduled before Magistrate Judge Bartick. Counsel will contact the Chambers of Judge Bartick to reschedule any conferences or hearings within five days of the entry of this Order. Any dates set before the District Judge remain unchanged. Signed by Magistrate Judge William McCurine, Jr on 1/31/2014.(jao) (Entered: 02/03/2014)
189 RESPONSE in Opposition re 183 MOTION for Attorney Fees filed by Chipotle Mexican Grill, Inc.. (Attachments: # 1 Declaration of William M. Hensley, # 2 Exhibit 1 (Part 1) to Hensley Decl., # 3 Exhibit 1 (Part 2) to Hensley Decl., # 4 Proof of Service (Hensley Decl.), # 5 Declaration of David R. Sugden, # 6 Exhibit (Exhibits A−S to Sugden Decl.), # 7 Proof of Service (Sugden Decl.), # 8 Opposition to Request for Judicial Notice, # 9 Evid. Obj. to Declarations of Richard M. Pearl, # 10 Evid. Obj. to Declaration of Thomas J. Vandeveld III, # 11 Evid. Obj. to Declaration of Amy B. Vandeveld, # 12 Evid. Obj. to Declaration of Dara Schur, # 13 Evid. Obj. to Declaration of Scottlynn J. Hubbard IV, # 14 Evid. Obj. to Declaration of Russell Handy, # 15 Evid. Obj. to Declaration of Richard D. Prager)(Sugden, David) (rlu). (Entered: 02/28/2014)
190 Ex Parte MOTION for Extension of Time to File Response/Reply Brief In Support of Motion for Attorney's Fees and Costs by Livia Antoninetti. (Attachments: # 1 Affidavit In Support of Ex Parte Request for Extension of Time to File Reply, # 2

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 18 of 21

03/06/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014

Proof of Service)(Vandeveld, Thomas) (rlu). (Entered: 03/03/2014)
191 ORDER Granting 190 Motion for Extension of Time to File Reply re 183 MOTION for Attorney Fees . The reply brief shall be filed no later than March 14, 2014. The hearing on this matter is continued to March 21, 2014 at 11:00 a.m. There shall be no oral argument or appearances unless otherwise ordered by the Court. Signed by Judge Barry Ted Moskowitz on 3/4/2014. (rlu) (Entered: 03/06/2014)
192 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Objection, # 5 Objection)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
193 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Objection, # 2 Objection, # 3 Objection, # 4 Objection, # 5 Objection, # 6 Objection)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
194 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Table of Contents, # 2 Exhibit 17)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
195 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Exhibit 19)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
196 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
197 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu).atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
198 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 19 of 21

03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014 03/14/2014

Vahoviak. (Vandeveld, Amy)qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
199 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Exhibit 22)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
200 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Exhibit 24, # 2 Exhibit 25)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
201 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Exhibit 27, # 2 Exhibit 28)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
202 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Vandeveld, Amy)qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu).atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
203 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Exhibit 31, # 2 Exhibit 32)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
204 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
205 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Vandeveld, Amy)qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu). atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 20 of 21

03/14/2014
03/14/2014 03/21/2014 03/28/2014
09/29/2014 09/30/2014
10/27/2014 10/29/2014 10/29/2014 11/21/2014 06/09/2015

process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
206 REPLY to Response to Motion re 183 MOTION for Attorney Fees filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Proof of Service)(Vandeveld, Amy) qc email re for future filings, each entry should have more attachments on 3/17/2014 (rlu).atty called on 3/19/2014, confirmed every effort was made to file these documents as efficiently as possible. During the docketing process, error messages received due to size, so many entries had to be made (rlu). (Entered: 03/14/2014)
207 REPLY to Response to Motion re 183 MOTION for Attorney Fees Supplemental Declaration of Thomas J. Vandeveld III in Support of Reply filed by Livia Antoninetti, Maurizio Antoninetti, Karen Friedman, Ruthee Goldkorn, Chris Ige, James Perkins, Jay Rifkin, Michael Rifkin, Jean Riker, Leslie Robinson, Robert Vahoviak. (Attachments: # 1 Proof of Service)(Vandeveld, Thomas) (rlu). (Entered: 03/14/2014)
208 MINUTE ORDER, Motions Submitted 183 MOTION for Attorney Fees (no document attached) (rfm) (Entered: 03/24/2014)
209 TRANSFER ORDER. It is hereby ordered that this case be transferred from the calendar of the Honorable David H. Bartick, to the calendar of the Honorable Jill L. Burkhardt for all further proceedings. All conference or hearing dates set before Magistrate Judge Bartick, if any, are VACATED and will be rescheduled before Magistrate Judge Burkhardt. Any dates set before any district judge remain unchanged. The new case number is 06cv2671 BTM (JLB). Signed by Magistrate Judge David H. Bartick on 03/28/14.(jcj) (Entered: 03/28/2014)
210 ORDER granting in part and denying in part 183 Plaintiffs' Motion for Attorneys' Fees. The Clerk of Court shall enter judgment as to fees, costs, and expenses totaling $337,752.27. (This award includes $317,927.50 in attorneys' fees and $19,824.77 in costs.) As no issues remain, the Clerk of Court shall close the docket of this case. Signed by Judge Barry Ted Moskowitz on 9−29−2014. (cjb) (rlu). (Entered: 09/29/2014)
211 CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED that the Court has carefully considered Plaintiffs' motion for attorneys' fees and costs in light of the Kerr factors, including the time required, the novelty and difficulty of the questions involved, and the results obtained. Having done so, the motion is hereby Granted in part and Denied in part. It is accordingly Ordered that Plaintiffs are awarded attorneys' fees and costs totaling $337,752.27. This award include$317,927.50 in attorneys' fees and $19,824.77 in costs. The Clerk of Court shall enter judgment (as to fees, costs, and expenses) for Plaintiffs in the amount of $337,752.27. As no issues remain, the Clerk shall close the docket of this case.(rlu) (Entered: 09/30/2014)
212 NOTICE OF APPEAL to the 9th Circuit as to 210 Order granting in part and denying in part Plaintiffs' Motion for Attorneys' Fees, 211 Clerk's Judgment, by Ruthee Goldkorn. (Filing fee $ 505 receipt number 0974−7504847.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Attachments: # 1 Representation Statement and Service List, # 2 Proof of Service)(Vandeveld, Amy). (Modified on 10/27/2014 to edit docket text re linked Order.) (akr). (Entered: 10/27/2014)
213 USCA Case Number 14−56730 for 212 Notice of Appeal to 9th Circuit, filed by Ruthee Goldkorn. (akr) (Entered: 10/29/2014)
214 USCA Time Schedule Order as to 212 Notice of Appeal to 9th Circuit, filed by Ruthee Goldkorn. (akr) (Entered: 10/29/2014)
215 TRANSCRIPT DESIGNATION AND ORDERING FORM by Ruthee Goldkorn for proceedings held on 7/3/2012 re 212 Notice of Appeal to 9th Circuit. (Attachments: # 1 Proof of Service)(Vandeveld, Amy). (Modified on 11/21/2014 to note that the designated proceedings were held in 05−cv−01660−BTM−WMC.) (akr). (Entered: 11/21/2014)
216 ORDER of USCA as to 212 Notice of Appeal to 9th Circuit, filed by Ruthee Goldkorn. Appellant's motion to strike appellee's reply and motion for sanctions is

Case: 3:06-cv-2671 As of: 11/02/2017 08:49 PM PDT 21 of 21

09/29/2016 01/04/2017

denied. Appellee's motion to dismiss this appeal is denied without prejudice to renewing the arguments in the answering brief. Briefing schedule issued. (akr) (Entered: 06/09/2015)
217 ORDER of USCA as to 212 Notice of Appeal to 9th Circuit, filed by Ruthee Goldkorn. The panel unanimously finds this case suitable for decision without oral argument. This case shall be submitted on the briefs and record, without oral argument, on October 20, 2016, at Pasadena, California. (akr) (Entered: 09/29/2016)
218 MANDATE of USCA affirming the decision of the USDC as to 212 Notice of Appeal to the 9th Circuit, filed by Ruthee Goldkorn. (akr) (Entered: 01/04/2017)

 
 2007 WL 2669531 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 Nos. 05CV1660-J (WMc), 06CV2671-J (WMc). Sept. 7, 2007.
ORDER DENYING DEFENDANT'S EX PARTE MOTION TO CONSOLIDATE CASES FOR TRIAL NAPOLEON A. JONES, JR., United States District Judge.
*1 Before the Court is Defendant Chipotle Mexican Grill's (“Defendant”) Ex Parte Motion to Consolidate Case No. 05cv1660 with Case No. 06cv2671. [Doc. No. 151.] The Court addresses Defendant's Ex Parte Motion without issuing a briefing schedule in order to avoid delaying the Final Pretrial Conference in Case No. 05cv1660, which is currently scheduled for September 10, 2007. [See Doc. No. 146.] For the reasons stated below, the Court DENIES Defendant's Ex Parte Motion to Consolidate.
Background On August 22, 2005, Plaintiff Maurizio Antoninetti (“Plaintiff”) filed an individual lawsuit against Defendant, and Defendant answered Plaintiff's Complaint. [Case No. 05cv1660, Doc. Nos. 1, 3.] In his first-filed action, Plaintiff alleges that he was denied full and equal access to facilities owned and operated by Defendant because the facilities are inaccessible to individuals who use wheelchairs for mobility. (Compl.¶ 9, 05cv1660.) Plaintiff alleges that Defendant's food-preparation counters are inaccessible. (Id.) Plaintiff alleges causes of action under the Americans with Disabilities Act and the California Civil Code. (Id. ¶¶ 15-27.) On December 6, 2006, Plaintiff filed a second action against Defendant, this time as a putative class action. [Case No. 06cv2671, Doc. No. 1.] Plaintiffs Maurizio Antoninetti, Jean Riker, James Perkins, Karen Friedman, and Michael Rifkin filed a Complaint alleging that the high walls at Defendant's restaurants preclude individuals in wheelchairs from seeing the food items available for selection in the same manner as nondisabled individuals. (Compl.¶ 28, 06cv2671.) 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 Defendant: (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.)

Defendant 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.] Defendant subsequently filed a Motion requesting that the Court consolidate the two actions. (Mot. at 5.) On March 20, 2007, the Court granted Defendant's Motion to Consolidate for purposes of discovery only. [Doc. No. 78.] The Court reserved the question of consolidation for trial for future consideration. On June 14, 2007, the Court granted in part and denied in part the parties' motions for summary judgment in Case No. 05 cv1660. [Doc. No. 129.] *2 On September 6, 2007, Defendant filed the instant Ex Parte Motion to Consolidate. [Doc. No. 151.] According to a declaration attached to the instant Motion, Defendant's counsel contacted Plaintiff to determine whether Plaintiff would stipulate to consolidating the cases. (Vu Decl. ¶ 7.) Plaintiff's counsel indicated that Plaintiff would not stipulate to the consolidation if it would delay the setting of trial in Case No. 05cv1660. (Id.)
Legal Standard Consolidation of actions is governed by Federal Rule of Civil Procedure 42(a), which provides as follows: 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 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.
Fed.R.Civ.P. 42(a). The district court has broad discretion in making this determination. Investors Research Co. v. U.S. Dist. Ct., 877 F.2d 777, 777 (9th Cir.1989). The presence of a common question of law or fact is a threshold requirement for consolidation. Yousefi v. Lockheed Martin Corp., 70 F.Supp.2d 1061, 1064-65 (C.D.Cal.1999). However, even if a common question of law or fact exists, consolidation is inappropriate if it results in “inefficiency, inconvenience, or unfair prejudice to a party.” EEOC v. HBE Corp., 135 F.3d 543, 551 (8th Cir.1998); see also Takeda v. Turbodyne Techs., Inc., 67 F.Supp.2d 1129, 1132 (C.D.Cal.1999) (“[I]n 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.”). In addressing consolidation, a court should consider the risk of delaying trial. “Federal courts have declined to consolidate cases involving common questions of law or fact where the cases were at different stages of preparedness for trial and where consolidation would delay the case ready of disposition.” Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 866 F.Supp. 1560, 1572 (D.N.M.1994)(citing Mills v. Beech Aircraft Corp., 886 F.2d 758, 762 (5th Cir.1989); Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1334 (10th Cir.1988); St. Bernard Gen. Hosp. v. Hosp. Serv. Ass'n, 712 F.2d 978, 990 (5th Cir.1983)). Where a case that is ready for or close to trial would be held up pending completion of pretrial proceedings in another case, courts have consistently denied consolidation. Transeastern Shipping Corp. v. India Supply Mission, 53 F.R.D. 204, 206 (S.D.N.Y.1971).
Discussion

Defendant argues that Case No. 05cv1660 and Case No. 06cv2671 should be consolidated because the cases involve many of the same questions of law and fact and have the same lead plaintiff. (Mot. to Consol. at 1.) Defendant argues that consolidation will conserve judicial resources. (Id.) Defendant also argues that if the Court does not consolidate the cases, there is a risk of inconsistent judgments. (Id.) Plaintiff opposes Defendant's Motion to Consolidate insofar as it would delay the setting of trial in Case No. 05 cv1660. (See Vu Decl. ¶ 7.) *3 The Court recognizes, as it did in its Order on Defendant's first motion to consolidate, that Case No. 05cv1660 and Case No. 06cv2671 involve common questions of fact. (See Order on Mot. to Consol. at 5.) However, there is no overriding evidence showing that consolidation would enhance court efficiency. There are significant procedural differences between Case No. 05 cv1660 and Case No. 06cv2671. Case No. 05cv1660 is ready for trial and was filed more than two years ago. Case No. 06cv2671 was filed nine months ago and is still in the formative stages. No trial date or discovery cutoff date has been set in Case No. 06cv2671, nor has a motion for class certification been filed. Consolidation of Case No. 06cv2671 realistically would delay trial in Case No. 05cv1660 for several months because the second-filed case is a class action and encompasses all of Defendant's California restaurants. Thus, Case No. 06cv2671 involves significantly more plaintiffs and public accommodations than Case No. 05cv1660. All of these factors strongly weigh against consolidation of the two cases. Defendant argues that if the Court does not consolidate the two cases, there is a risk of inconsistent judgments. (Mot. to Consol. at 1.) However, this is not a situation in which numerous actions have been filed against Defendant in multiple jurisdictions. Both cases were filed in this District and were assigned to this Court. Under principles of stare decisis, the Court will be obligated to follow its legal rulings in the first-filed case when it rules upon the second-filed case, thereby eliminating the danger of inconsistent judgments. Defendant also asserts that “there is a substantial likelihood that some or all of the legal rulings and factual determinations in the First Action will bind the putative class members in the Second Action,” and that this raises due process concerns. (Mot. to Consol. at 6.) Certainly, a ruling in Defendant's favor will have stare decisis effect on the putative class members in the second-filed case. However, Defendant does not explain why the putative class members would be bound under principles of res judicata. Res judicata “bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action.... The doctrine is applicable whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001) (emphasis added). Here, Mr. Antoninetti is a party to both the first-filed action and the second-filed action, and the Court's rulings in the first-filed action will therefore have a res judicata effect as to him. However, Defendant does not explain why the Court's rulings in the first-filed action will have a res judicata effect as to members of the putative class. A court's order does not bind members of a putative class if no class action has been certified. See Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1013 n. 1 (9th Cir.2000). Because no class has been certified in the second-filed action, there is little risk that the Court's ruling in the first-filed action will raise due process concerns as to the members of the putative class.

*4 On balance, the potential for delay and prejudice outweighs any savings of time or effort that may result if the cases are consolidated for trial. Accordingly, the Court FINDS that consolidation is not merited for purposes of trial.
Conclusion For the reasons stated above, the Court DENIES Defendant's Ex Parte Motion to Consolidate Case No. 05cv1660 with Case No. 06cv2671 for purposes of trial. The cases shall remain consolidated for purposes of discovery. IT IS SO ORDERED.