1 Bill Lann Lee – CA State Bar No. 108452 Julia Campins – CA State Bar No. 238023
2 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800
3 Oakland, CA 94612 Telephone: (510) 839-6824
4 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com
5 Email: jcampins@lewisfeinberg.com

6 Timothy P. Fox – CA State Bar No. 157750 Fox & Robertson, P.C.
7 3801 East Florida Ave., Suite 400 Denver, CO 80210
8 Telephone: (303) 595-9700 Facsimile & TTY: (877) 595-9706
9 Email: tfox@foxrob.com

10 [Additional Counsel Listed Below]

11 Attorneys for Plaintiff

12 IN THE UNITED STATES DISTRICT COURT
13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14

15

MIGUEL CASTANEDA on behalf of himself ) Case No. ____________

16 and others similarly situated,

)

) COMPLAINT

17

Plaintiff,

)

)

18

vs.

) [CLASS ACTION]

)

19 BURGER KING CORPORATION and

)


BURGER KING HOLDINGS, INC.,

)


20

)


Defendants.

)


21

)


)


22

23

INTRODUCTION

24

1. Burger King is a national corporation with approximately 90 restaurants in the

25 State of California that it leases and/or subleases to franchises. Although Burger King

26 COMPLAINT [CASE NO.__________________]

1 promises to treat its customers as “Kings” and encourages its customers to “Have it your way,”

2 Burger King treats customers who use wheelchairs and scooters as commoners who must have

3 it Burger King’s way or not at all. This proposed class action alleges that Burger King has

4 violated federal and state laws by denying customers who use wheelchairs and scooters access

5 to restaurant services by imposing architectural or design barriers and discriminatory policies

6 or practices.

7

2. These unlawful barriers include inaccessible parking lots, entry and restroom

8 doors that are too heavy, queue lines (the lines that customers wait in to order) that are too

9 narrow for wheelchairs, inaccessible dining areas, and inaccessible restrooms. The

10 discriminatory policies and practices include failing to maintain the accessibility of restaurants,

11 and requiring franchisees to operate, build and remodel their restaurants in a manner that

12 violates accessibility laws and regulations.

13

3. This complaint seeks injunctive relief to remove these barriers, and correct the

14 discriminatory policies and practices, so that Plaintiff and the class he represents can have full

15 and equal enjoyment of Burger King restaurants. The complaint also seeks statutory minimum

16 damages to compensate customers for these barriers to access.

17

4. Burger King restaurants in California are inaccessible to customers who use

18 wheelchairs or scooters notwithstanding that persons with disabilities have been guaranteed

19 equal access to restaurants and other facilities for almost 20 years by federal law, and for

20 almost 40 years by California state law. Moreover, after being sued for access violations a

21 decade ago, Burger King promised to survey and fix accessibility barriers in its restaurants. It

22 did not do so.

23

JURISDICTION AND VENUE

24

5. Plaintiff’s claims arise under Title III of the Americans with Disabilities Act, 42

25 U.S.C. § 12181, et seq., (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code, § 51, et seq.

26 COMPLAINT [CASE NO.__________________] -2­

1 (“the Unruh Act”), and the California Disabled Persons Act, Cal. Civ. Code, § 54, et seq. (the


2 “CDPA”).

3

6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

4 §§ 1331, 1332 and 1343, and pursuant to its supplemental jurisdiction over Plaintiff’s claims

5 brought under the laws of the State of California. In addition, the matter in controversy here

6 exceeds $5,000,000 and there are members of the proposed class who are citizens of states

7 different from Defendants. Therefore, this Court has diversity jurisdiction over the claims of

8 the class pursuant to 28 U.S.C. § 1332(d)(2).

9

7. The Court may grant declaratory and other relief pursuant to 28 U.S.C. §§ 2201

10 and 2202. Money damages alone are inadequate, and Plaintiff and class members suffer and

11 will continue to suffer irreparable injury.

12

8. Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).

13

INTRADISTRICT ASSIGNMENT

14

9. This action arises in Contra Costa County and thus should be assigned to the

15 San Francisco or Oakland Division.

16

PARTIES

17

10. Plaintiff Miguel Castaneda is and has been at all times material hereto a resident

18 of the State of California. Plaintiff Castaneda is a person with incomplete quadriplegia who

19 uses a wheelchair for mobility. He has a disability within the meaning of the ADA, 42 U.S.C.

20 § 12102(2)(A), and a physical disability as that term is defined in applicable California law,

21 including California Government Code section 12926. Plaintiff Castaneda has patronized

22 Burger King restaurants in California in the past and intends to continue to patronize those

23 restaurants in the future.

24

11. Defendant Burger King Holdings, Inc. (BKH) is a corporation incorporated

25 under the laws of Delaware. BKH is registered with the Florida Secretary of State as having its

26 COMPLAINT [CASE NO.__________________] -3­

1 principal place of business at 5505 Blue Lagoon Drive, Miami, Florida 33126. BKH is the

2 parent corporation of Burger King Corporation (BKC), a corporation incorporated under the

3 laws of Florida, with its principal place of business at 5505 Blue Lagoon Drive, Miami, Florida

4 33126. BKC franchises, leases (or leases to), and operates fast food hamburger restaurants,

5 principally under the Burger King brand, in California.

6

12. BKH and BKC both operate out of the same office in Miami, Florida. They also

7 share many directors and officers. BKH and BKC (collectively “Burger King”) together

8 operate or control Burger King restaurants throughout the country. This action concerns the

9 approximately 90 Burger King restaurants in California that Burger King leases to or from

10 other entities (“California Restaurants”).

11

CLASS ACTION ALLEGATIONS

12

13. Plaintiff Castaneda seeks to maintain this action as a class action under Rule

13 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure. The class consists of all

14 individuals with manual and/or mobility disabilities who use wheelchairs or electric scooters

15 and who were denied during the liability period, or are currently being denied, on the basis of

16 disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

17 accommodations in any California Restaurant.

18

14. The class identified in paragraph 13 is believed to consist of at least several

19 thousand members who are dispersed across the State of California. Joinder of all of such class

20 members in this lawsuit is impracticable.

21

15. There are numerous questions of law and fact common to the class, including

22 without limitation, the following:

23

a. Whether Burger King’s California Restaurants are “public

24

accommodations” under the ADA;

25

b. Whether Burger King’s California Restaurants are “business

26 COMPLAINT [CASE NO.__________________] -4­

1

establishments” under the Unruh Act;


2

c. Whether Burger King’s California Restaurants are “places of public

3

accommodation” or “places to which the general public is invited” under

4

the CDPA;

5

d. Whether Defendants in their California Restaurants deny the full and

6

equal enjoyment of their goods, services, facilities, privileges,

7

advantages, or accommodations to people who use wheelchairs in

8

violation of the ADA;

9

e. Whether Defendants in their California Restaurants deny full and equal

10

accommodations, advantages, facilities, privileges, or services to people

11

who use wheelchairs, in violation of the Unruh Act;

12

f. Whether Defendants in their California Restaurants deny full and equal

13

access to accommodations, advantages and facilities to people who use

14

wheelchairs, in violation of the CDPA;

15

g. Whether alleged violations of the ADA create independent violations of

16

the Unruh Act and the CDPA;

17

h. What measures are legally required to bring Burger King’s California

18

Restaurants into compliance with the ADA, the Unruh Act and the

19

CDPA; and

20

i. Whether the design features at issue in this case -- which exist at many

21

Burger King restaurants -- violate state or federal law.

22

16. The Plaintiff’s claims are typical of the claims of the members of the class. He

23 -- like all other members of the class -- uses a wheelchair or scooter for mobility and claims

24 that Burger King has violated the ADA, the Unruh Act, and/or the CDPA by failing to make

25 the California Restaurants accessible to the class of people who use wheelchairs or scooters.

26 COMPLAINT [CASE NO.__________________] -5­

1

17. Plaintiff will fairly and adequately protect the interests of the class because he


2 has retained counsel with extensive experience in litigation, including class action litigation,

3 and because Plaintiff has no interests that conflict in any way with those of the class.

4

18. This action may be maintained as a class action pursuant to Rule 23(b)(2)

5 because Burger King’s violations of the ADA, the Unruh Act, and the CDPA are applicable to

6 all members of the class. Therefore, an injunction requiring compliance with the ADA, the

7 Unruh Act, and the CDPA is appropriate and the primary relief sought is injunctive relief.

8

19. This action may be maintained as a class action pursuant to Rule 23(b)(3)

9 because the many questions of law and fact that are common to class members clearly

10 predominate over individual questions affecting members of the class. The common issues of

11 law and fact relate to issues central to the case, such as whether Burger King’s California

12 Restaurants are public accommodations and business establishments, whether removing or

13 widening the narrow queue lines, lowering counters, and remedying other barriers, as well as

14 modifying Burger King’s policies and practices and other measures, are required to comply

15 with the ADA, Unruh Act, and/or the CDPA.

16

20. Judicial economy will be served by maintenance of this lawsuit as a class action

17 in that it is likely to avoid the burden that would be otherwise placed upon the judicial system

18 by the filing of numerous similar suits by people with disabilities in the State of California.

19

21. Maintaining this lawsuit as a class action will also avoid the risk of inconsistent

20 outcomes if class members were forced to bring individual actions in various forums.

21

22. There are no obstacles to effective and efficient management of this lawsuit as a

22 class action by this Court.

23

STATEMENT OF FACTS

24

23. Burger King leases or leases to approximately 90 restaurants in California. On

25 information and belief, and as described below, it also operates or controls those restaurants, in

26 COMPLAINT [CASE NO.__________________] -6­

1 whole or in part.


2

24. These 90 restaurants influence how the approximately 500 other Burger King

3 restaurants in California are operated.

4

25. Some or all of the California Restaurants, on information and belief, were built

5 according to one of a limited number of architectural design prototypes developed by Burger

6 King. As such, the discriminatory design features encountered by Plaintiffs, as described and

7 alleged below, recur in the California Restaurants.

8

26. In addition, on information and belief, Burger King exercises substantial control

9 over some or all of the California Restaurants, including control over the development, design,

10 alteration, remodel, maintenance, and operation of such restaurants.

11

27. For example, on information and belief, Burger King has entered into

12 development agreements requiring construction of some or all of the California Restaurants in

13 accordance with Burger King’s latest designs.

14

28. On information and belief, Burger King has provided building plans and

15 specifications used to construct some or all of the California Restaurants.

16

29. On information and belief, Burger King’s construction teams have aided in

17 designing and building some or all of the California Restaurants.

18

30. On information and belief, some or all of the California Restaurants were

19 contractually required to be, and were, remodeled in conformance with Burger King’s

20 construction and design plans and specifications.

21

31. On information and belief, some or all of the California Restaurants engaged in

22 “re-imaging” programs, performed in accordance with Burger King’s designs and

23 specifications.

24

32. On information and belief, some or all California Restaurants are required to

25 comply with Burger King’s Manual of Operating Data (“MOD”), which contains official

26 COMPLAINT [CASE NO.__________________] -7­

1 mandatory restaurant operating standards, specifications and procedures.


2

33. On information and belief, the MOD contains highly detailed requirements for

3 the operation, design, signage, interior decor, equipment systems, and various other items in

4 Burger King restaurants.

5

34. On information and belief, some or all Burger King’s California Restaurants are

6 required to be repaired and maintained in accordance with standards established and controlled

7 by Burger King.

8

35. On information and belief, by contract, the employee training programs in some

9 or all of Burger King’s California Restaurants must conform to training standards and

10 procedures prescribed by Burger King.

11

36. On information and belief, Burger King conducts scheduled and unscheduled

12 inspections of some or all of the California Restaurants to ensure that they are being operated

13 in compliance with the various operational and other requirements set forth herein.

14

37. Since January 26, 1992, the date when the ADA regulations governing

15 alterations went into effect, some or all of the California Restaurants have undergone

16 alterations, as that term is used in the ADA, that affected, or could have affected, the usability

17 of part or all of those restaurants.

18

38. Since July 1, 1970, the date when California state access regulations went into

19 effect, some or all of the California Restaurants have undergone alterations, structural repairs

20 and/or additions, as those terms are used in California law, including without limitation Cal.

21 Health & Safety Code § 19959.

22

39. In 1997, Burger King settled Day v. Republic Foods, Inc., No. 95-1317CV

23 (D.D.C.), a case in which the U.S. Department of Justice submitted an amicus brief in support

24 of the plaintiff. The Day case alleged violations of the ADA parallel to those alleged in this

25 complaint. The settlement required Burger King to survey and remedy ADA violations in its

26 COMPLAINT [CASE NO.__________________] -8­

1 corporate-owned restaurants throughout the country, to notify franchisees of their obligation to


2 comply with the ADA, to provide franchisees with a survey instrument to survey their

3 restaurants, and to give franchisees training materials and free technical assistance in bringing

4 their restaurants in compliance with the ADA. Burger King therefore knew or should have

5 known of the requirements of the ADA and its failure, to that date, to comply with those

6 requirements.

7

40. In addition, in the 1990s, the Department of Justice reached a highly publicized

8 settlement with the Wendy’s restaurant chain, which made clear that the Department of Justice

9 believed that inaccessible queue lines -- such as those found in many of Burger King’s

10 California Restaurants -- violate the ADA, and required Wendy’s to make its queue lines

11 accessible.

12

41. Plaintiff Castaneda has patronized several Burger King restaurants in California,

13 including Burger King restaurants located at 677 Contra Costa Boulevard, in Pleasant Hill, and

14 2162 Railroad Avenue, in Pittsburg within the last twelve months. The Pleasant Hill and

15 Pittsburg restaurants, on information and belief, are leased to and/or from Burger King.

16

42. At Burger King’s California Restaurants, Mr. Castaneda has encountered

17 numerous barriers to access, including for example entry and restroom doors that were very

18 difficult to open, parking lots with insufficient or inadequate accessible parking spots,

19 inaccessible restrooms, narrow or steep sidewalks/ramps, queue lines that were too narrow for

20 his wheelchair to navigate, and soda machines and condiments that were difficult for him to

21 reach.

22

43. These barriers to access have denied Mr. Castaneda full and equal access to, and

23 enjoyment of, the goods and services of Burger King, and have been frustrating and injurious to

24 Mr. Castaneda’s dignity.

25

44. On information and belief, Burger King has engaged in intentional

26 COMPLAINT [CASE NO.__________________] -9­

1 discrimination, including but is not limited to:


2

a. designing, constructing, implementing and maintaining policies,

3

practices, procedures and barriers that discriminate against members of

4

the putative class with knowledge of such discrimination and/or

5

b. designing, constructing, implementing and maintaining policies,

6

practices, procedures and barriers that are sufficiently intuitive and/or

7

obvious as to constitute intentional conduct; and/or

8

c. failing to act in the face of the substantial likelihood of harm to class

9

members’ rights protected under federal and state law.

10

FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

11

45. Plaintiff realleges and incorporates by reference the allegations set forth in the

12

remainder of this Complaint as if fully set forth herein.

13

46. Title III of the ADA provides that “No individual shall be discriminated against

14

on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

15

privileges, advantages, or accommodations of any place of public accommodation by any

16

person who owns, leases (or leases to), or operates a place of public accommodation.” 42

17

U.S.C. § 12182(a).

18

47. Burger King’s California Restaurants are leased to or from Burger King

19

48. Burger King’s California Restaurants are places of public accommodation. 42

20

U.S.C. § 12181(7)(B).

21

49. Burger King has discriminated against Plaintiff and members of the proposed

22

class on the basis of disability. Burger King’s discriminatory conduct includes but is not

23

limited to:

24

a. Discriminatory exclusion and/or denial of goods, services, facilities,

25

26 COMPLAINT [CASE NO.__________________] -10­

1

privileges, advantages, accommodations, and/or opportunities;

2

b. Provision of goods, services, facilities, privileges, advantages, and/or

3

accommodations that are not equal to those afforded non-disabled

4

individuals;

5

c. Failing to design and/or construct restaurants built for first occupancy

6

after January 26, 1993 so that they are readily accessible to and usable by

7

individuals with disabilities;

8

d. Failing to make alterations in such a manner that, to the maximum

9

extent feasible, the altered portions of the restaurants altered after

10

January 26, 1992, are readily accessible to and usable by individuals

11

with disabilities, including individuals who use wheelchairs and

12

scooters;

13

e. Failing to make alterations in such a manner that, to the maximum

14

extent feasible, the path of travel to the altered area and the bathrooms,

15

telephones, and drinking fountains serving the altered area, are readily

16

accessible to and usable by individuals with disabilities;

17

f. Failing to remove barriers to individuals with disabilities where it would

18

be readily achievable to do so;

19

g. Failing to make reasonable modifications in policies, practices, and/or

20

procedures as necessary to afford the goods, services, facilities,

21

privileges, advantages, and/or accommodations to individuals with

22

disabilities; and/or

23

h. Utilizing standards or criteria or methods of administration that have the

24

effect of discriminating on the basis of disability, or that perpetuate the

25

discrimination of franchisees who are subject to common administrative

26 COMPLAINT [CASE NO.__________________] -11­

1

control.


2

50. As such, Burger King discriminates and, in the absence of the injunction

3 requested herein, will continue in the future to discriminate against Plaintiff and members of

4 the proposed class on the basis of disability in the full and equal enjoyment of the goods,

5 services, facilities, privileges, advantages, accommodations and/or opportunities of Burger

6 King’s California Restaurants in violation of Title III of the Americans with Disabilities Act,

7 42 U.S.C. § 12181 et seq. and/or its implementing regulations.

8

51. Burger King’s violations of the ADA have harmed and will continue to harm

9 Plaintiff and members of the proposed class in the future.

10

52. Pursuant to the remedies, procedures, and rights set forth in 42 U.S.C. § 12188,

11 Plaintiff prays for judgment as set forth below.

12

SECOND CLAIM FOR RELIEF


(Unruh Civil Rights Act and the Unruh Act’s Incorporation of the ADA)


13

53. Plaintiff realleges and incorporates by reference the allegations set forth in the

14

remainder of this Complaint as if fully set forth herein.

15

54. Burger King’s California Restaurants are business establishments and, as such,

16

must comply with the provisions of the Unruh Act, Cal. Civ. Code, § 51, et seq. (“the Unruh

17

Act”).

18

55. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled to

19

full and equal accommodations, advantages, facilities, privileges, or services in all business

20

establishments of every kind whatsoever within the jurisdiction of the State of California. Cal.

21

Civ. Code, § 51(b).

22

56. The Unruh Act also provides that a violation of the ADA, or of California state

23

accessibility regulations, is a violation of the Unruh Act. Cal. Civ. Code, § 51(f).

24

57. Burger King has violated the Unruh Act by, inter alia, denying, or aiding or

25

26 COMPLAINT [CASE NO.__________________] -12­

1 inciting the denial of, Plaintiff’s and class members’ rights to the full and equal

2 accommodations, advantages, facilities, privileges, or services offered at Burger King’s

3 California Restaurants.

4

58. Burger King has also violated the Unruh Act by denying, or aiding or inciting

5 the denial of, Plaintiff’s and class members’ rights to equal access arising from the provisions

6 of the California state accessibility regulations and the ADA.

7

59. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code § 52,

8 Plaintiff prays for judgment as set forth below.

9

THIRD CLAIM FOR RELIEF

(California Disabled Persons Act and the CDPA’s Incorporation of the ADA)

10

60. Plaintiff realleges and incorporates by reference the allegations set forth in the

11

remainder of this Complaint as if fully set forth herein.

12

61. Burger King’s California Restaurants are places of public accommodation

13

and/or places to which the general public is invited and, as such, are obligated to comply with

14

the provisions of the CDPA, Cal. Civ. Code, § 54, et seq.

15

62. The CDPA guarantees, inter alia, that persons with disabilities are entitled to

16

full and equal access, as other members of the general public, to accommodations, advantages,

17

facilities, and privileges of covered entities. Cal. Civ. Code § 54.1(a)(1).

18

63. The CDPA also provides that a violation of the ADA, or of California state

19

accessibility regulations, is a violation of the CDPA. Cal. Civ. Code § 54.1(d).

20

64. Burger King has violated the CDPA by, inter alia, denying and/or interfering

21

with Plaintiff’s and class members’ right to full and equal access as other members of the

22

general public to the accommodations, advantages, or facilities of Burger King’s California

23

Restaurants.

24

65. Burger King has also violated the CDPA by denying and/or interfering with the

25

26 COMPLAINT [CASE NO.__________________] -13­

1 Plaintiff’s and class members’ rights to equal access arising from the provisions of the

2 California state accessibility regulations and the ADA.

3

66. Pursuant to the remedies, procedures, and rights set forth in California law,

4 including Cal. Civ. Code §§ 54.3 and 55, Plaintiff prays for judgment as set forth below.

5

RELIEF

6

WHEREFORE, Plaintiff respectfully requests:

7

1. That this Court assume jurisdiction.

8

2. That this Court certify the class identified in paragraph 13.

9

3. That this Court certify Plaintiff Castaneda as a representative of this class.

10

4. That this Court declare Defendant to be in violation of Title III of the Americans

11 with Disabilities Act, 42 U.S.C. § 12181, et seq. the Unruh Civil Rights Act, Cal. Civ. Code

12 § 51, et seq. and the California Disabled Persons Act, Cal. Civ. Code, § 54, et seq.

13

5. That this Court issue an injunction ordering Defendant to comply with the

14 statutes set forth herein.

15

6. That this Court award minimum statutory damages, defined as $4,000 per

16 incident of discrimination under Unruh and $1,000 per incident of discrimination under the

17 CDPA, to Plaintiff and members of the proposed class for violations of their civil rights under

18 state law.

19

7. That this Court award Plaintiff’s reasonable attorneys’ fees and costs pursuant to

20 federal and California law.

21

8. That this Court award such additional or alternative relief as may be just, proper

22 and equitable.

23

DEMAND FOR JURY TRIAL

24

Plaintiff demands a jury on all issues which can be heard by a jury.

25

26 COMPLAINT [CASE NO.__________________] -14­

1 Dated: September 10, 2008
2 3 4 5 6 7 8 9 10 11 12

Respectfully submitted,
By: /s/ Bill Lann Lee Bill Lann Lee (State Bar No. 108452) Julia Campins (State Bar No. 238023) LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Tel: (510) 839-6824 Fax: (510) 839-7839 blee@lewisfeinberg.com jcampins@lewisfeinberg.com
Timothy P. Fox (State Bar No. 157750) FOX & ROBERTSON, P.C. 910 - 16th Street Suite 610 Denver, CO 80202 Tel: (303) 595-9700 Fax: (303) 595-9705 tfox@foxrob.com

13

Linda D. Kilb (State Bar No. 136101)

DISABILITY RIGHTS EDUCATION &

14

DEFENSE FUND

2212 Sixth Street

15

Berkeley, CA 94710

Tel: (510) 644-2555

16

Fax: (510) 841-8645

lkilb@dredf.org

17

Mari Mayeda (State Bar No. 110947)

18

P O Box 5138

Berkeley, CA 94705

19

Tel: (510) 848-3331

Fax: (510) 841-8115

20

marimayeda@earthlink.net

21

Antonio M. Lawson (State Bar No. 140823)

LAWSON LAW OFFICES

22

160 Franklin Street, Suite 204

Oakland, CA 94607

23

Tel: (510) 419-0940

Fax: (510) 419-0948

24

tony@lawsonlawoffices.com

25

Attorneys for Plaintiff

26 COMPLAINT [CASE NO.__________________] -15­

 
 Case3:08-cv-04262-WHA Document28 Filed11/26/08 Page1 of 2

1 GLYNN & FINLEY, LLP

CLEMENT L. GLYNN, Bar No. 57117

2 ADAM FRIEDENBERG, Bar No. 205778

One Walnut Creek Center

3 100 Pringle Avenue, Suite 500

Walnut Creek, CA 94596

4 Telephone: (925) 210-2800

Facsimile: (925) 945-1975

5 Email: cglynn@glynnfinley.com

afriedenberg@glynnfinley.com

6

GENOVESE JOBLOVE & BATTISTA P.A.

7 MICHAEL D. JOBLOVE (admitted pro hac vice)

JONATHAN E. PERLMAN (admitted pro hac vice)

8 Bank of America Tower 100 Southeast 2nd Street, 44th Floor

9 Miami, Florida 33131

Telephone: (305) 349-2300

10 Facsimile: (305) 349-2310

Email: mjoblove@gjb-law.com

11

jperlman@gjb-law.com

12 Attorneys for Defendant Burger King Corporation
13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

17 MIGUEL CASTANEDA on behalf of himself and others similarly situated
18 Plaintiff,
19 vs.
20 BURGER KING CORPORATION and
21 BURGER KING HOLDINGS, INC.,

22

Defendants.

23

) Case No. CV 08-4262 WHA ) ) DEFENDANT BURGER KING ) CORPORATION’S NOTICE OF ) MOTION AND MOTION TO DISMISS ) FOR LACK OF SUBJECT MATTER ) JURISDICTION AND FAILURE TO ) STATE ANY CLAIMS UPON WHICH ) RELIEF CAN BE GRANTED, AND ) ALTERNATIVELY, MOTION TO ) STRIKE AND FOR A MORE DEFINITE ) STATEMENT (FRCP 12(b)(1), 12(b)(6),
12(f), 12(e))

24

25

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

26

PLEASE TAKE NOTICE that on January 29, 2008, at 8:00 a.m., or as soon thereafter as

27 the matter may be heard in the above-entitled court, located at 450 Golden Gate Avenue, San

28

- 1 -
DEFENDANT BURGER KING CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS

Case3:08-cv-04262-WHA Document28 Filed11/26/08 Page2 of 2

1 Francisco, California, 94102, in Courtroom 9 on the 19th Floor, Defendant Burger King

2 Corporation will bring on for hearing this motion to dismiss the Complaint pursuant to:

3

1.) Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the

4 ground that plaintiff lacks standing to allege the purported claims for action set forth in the

5 Complaint;

6

2.) Federal Rule of Civil Procedure 12(b)(6) on the ground that the Complaint and each

7 purported claim for relief therein fails to state a claim upon which relief can be granted;

8

3.) Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the

9 ground that plaintiff has failed to establish diversity jurisdiction under the Class Action Fairness

10 Act, 28 U.S.C. § 1332(d), and that the Court should decline to exercise supplemental jurisdiction

11 over plaintiff’s state law claims.

12

Alternatively, Defendant Burger King Corporation moves to strike the class allegations

13 and purported claims set forth in the Complaint under Federal Rule of Civil Procedure 12(f), and

14 moves for an order requiring plaintiff to provide a more definite statement under Federal Rule of

15 Civil Procedure 12(e).

16

The motion is based on this Notice of Motion and Motion, the Memorandum of Points

17 and Authorities and exhibits filed herewith, all pleadings and papers filed herein, and upon such

18 other matters of which the Court may take judicial notice or which may be presented to the Court

19 in reply or at the time of hearing.

20

Dated: November 26, 2008

GENOVESE JOBLOVE & BATTISTA, P.A.

21

MICHAEL D. JOBLOVE

JONATHAN E. PERLMAN

22

100 SE Second Street, 44th Floor

Miami, FL 33131 23

GLYNN & FINLEY, LLP

24

CLEMENT L. GLYNN

ADAM FRIEDENBERG

25

One Walnut Creek Center

100 Pringle Avenue, Suite 500

26

Walnut Creek, CA 94596

27

By

/s/ Adam Friedenberg

28

Attorneys for Defendant Burger King

Corporation

- 2 -

DEFENDANT BURGER KING CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS

 
 Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page1 of 32

1 GLYNN & FINLEY, LLP CLEMENT L. GLYNN, Bar No. 57117
2 ADAM FRIEDENBERG, Bar No. 205778 3 One Walnut Creek Center
100 Pringle Avenue, Suite 500 4 Walnut Creek, CA 94596
Telephone: (925) 210-2800 5 Facsimile: (925) 945-1975 6 cglynn@glynnfinley.com
afriedenberg@glynnfinley.com 7

8

GENOVESE, JOBLOVE & BATTISTA, P.A. MICHAEL D. JOBLOVE (admitted pro hac vice)

9 JONATHAN E. PERLMAN (admitted pro hac vice) 100 S.E. Second Street, 44th Floor

10 Miami, FL 33131

11

Telephone: Facsimile:

(305) 349-2300 (305) 349-2310

12 mjoblove@gjb-law.com

jperlman@gjb-law.com 13

14 Attorneys for Defendant Burger King Corporation

15

UNITED STATES DISTRICT COURT 16

NORTHERN DISTRICT OF CALIFORNIA 17

MIGUEL CASTANEDA on behalf of

)

Case No. C 08-04262 WHA

18 himself and others similarly situated,

)

19 Plaintiff,

)

MEMORANDUM OF POINTS

)

AUTHORITIES IN SUPPORT OF

20

)

DEFENDANT BURGER KING

vs.

)

21 BURGER KING CORPORATION and )

CORPORATION’S MOTION TO DISMISS

22 BURGER KING HOLDINGS, INC.,

)

)

23

Defendants.

)

Date:

January 29, 2009

_ 24

______________________________)

Time: Before:

8:00 a.m. Hon. William H. Alsup

25

Courtroom: 9, 19th Floor

26

27

28

__________________________________________________________________________________ MEMORANDUM IN SUPPORT OF BURGER KING CORPORATION’S MOTION TO DISMISS

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page2 of 32

1 2 I. 3
II. 4 5 6 7 8 9 10 III. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS INTRODUCTION............................................................................................................. 1 FACTUAL BACKGROUND........................................................................................... 2 A. Burger King Corporation..................................................................................... 2
B. Plaintiff Castaneda’s Individual Allegations Are Limited to Experiences at the Pleasant Hill and Pittsburg Restaurants................................................. 2
C. Plaintiff Castaneda’s Conclusory Class Allegations.......................................... 3
ARGUMENT..................................................................................................................... 4
A. Plaintiff Castaneda’s Claims Against the Restaurants He Has Not Visited Should Be Dismissed for Lack of Standing ........................................................ 4
1. Plaintiff Admittedly Lacks Individual Standing Against Restaurants He Did NotVisit.................................................................... 5
2. Plaintiff Cannot Create Standing to Assert Claims Against Additional Restaurants Merely By Making Class Allegations ............. 8
B. Plaintiff’s Class Allegations Should Be Dismissed or Stricken....................... 11
1. Plaintiff’s Allegations Fail to Demonstrate Commonality .................. 11
2. Plaintiff’s Allegations Fail to Show Typicality or Adequacy of Representation......................................................................................... 13
C. Plaintiff’s Complaint Should Be Dismissed Pursuant to Fed. R. Civ. P. 8(a)(2) and 12(b)(6), or, Alternatively, Plaintiff Should Provide a More Definite Statement under Rule 12(e).................................................................................................. 14

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i

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page3 of 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IV. 18 19 20 21 22 23 24 25 26 27 28

D. The Court Should Decline to Hear, or, at Minimum, Stay Consideration of Plaintiff’s Unruh and CDPA Claims................................................................. 16
1. CAFA Diversity Jurisdiction Does Not Exist ....................................... 17
2. Even if the Court Does Not Dismiss Plaintiff’s Federal Claim, It Should Decline Supplemental Jurisdiction Over State Law Claims....................................................................................................... 19
3. Even if the Court Accepts Supplemental Jurisdiction, it Nonetheless Should Stay Consideration of Plaintiff’s State Law Claims ................................................................................... 21
E. Plaintiff’s State Law Claims Should Be Dismissed for Failure to State a Cause of Action Against Defendants ................................................................. 21
1. Plaintiff Cannot State a Cause of Action Against Burger King Corporation Pursuant to Unruh and CDPA Merely as a Result of its Status as a Sublessor or Franchisor ................................................. 21
2. Plaintiff Cannot Adequately Allege Discriminatory Intent as Required to State an Unruh Cause of Action against Burger King Corporation....................................................................... 23
CONCLUSION ............................................................................................................... 24

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ii

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page4 of 32

1

TABLE OF AUTHORITIES

2 Cases

3 Access Now, Inc. v. Macy’s East, Inc., No. 99-9088-CIV-Jordan (S.D. Fla. Feb. 15, 2001) ....... 12

4 Allen v. Wright, 468 U.S. 737 (1984) ............................................................................................. 4

5 Am. Council of the Blind v. Astrue, 2008 WL 4279674 (N.D. Cal. Sept. 11, 2008) .................... 14

6 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ................................................................ 13

7 Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) .......................................... 10

8 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .................................................... 21

9 Ass’n for Disabled Ams., Inc. v. Motiva Enters., LLC, No. 99-0580-CIV-Ungaro Benages

10 (S.D. Fla. Oct. 18, 1999)........................................................................................................... 12

11 Ass’n of Am. Med. Colls. v. U.S., 217 F.3d 770 (9th Cir. 2000)..................................................... 2

12 Bates v. United Parcel Serv, Inc., 511 F.3d 974 (9th Cir. 2007) ................................................ 4, 8

13 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) .............................................. 9, 14, 15, 24

14 Bird v. Lewis & Clark Coll., 303 F.3d 1015 (9th Cir. 2002) .......................................................... 4

15 Blake v. Southcoast Health Sys., 145 F.Supp. 2d 126 (D.Mass. 2001) ........................................ 10

16 Blum v. Yaretsky, 457 U.S. 991 (1982)................................................................................. 8, 9, 10

17 Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000) ................................................... 19

18 Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994).............................................................................. 2

19 Brown v. Kelly Broadcasting Co., 49 Cal. 3d 711 (Cal. 1989)............................................... 22, 23

20 Capital Growth Investors XIV, 52 Cal. 3d 1142 (Cal. 1991)........................................................ 21

21 Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993)................................................................................... 5

22 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .......................................................................... 4

23 Clark v. Burger King Corp., 255 F. Supp. 2d 334 (D.N.J. 2003)............................... 5, 7, 8, 11, 13

24 Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003)......................................... 5, 6, 7, 8, 15

25 Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354 (D. Colo. 1999) ..................... 12

26 Colon v. League of United Latin Am. Citizens, 91 F.3d 140 (5th Cir. 1996) ......................... 13, 14

27 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .................................................... 21

28 Conley v. Gibson, 355 U.S. 41 (1957) .......................................................................................... 14

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iii

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page5 of 32
1 Cross v. Pacific Coast Plaza Investments, L.P., 2007 WL 951772 (S.D. Cal. 2007) .................. 20 2 Davis v. Astrue, 250 F.R.D. 476 (N.D. Cal. 2008) ....................................................................... 12 3 Davis v. HSBC Bank of Nevada, N.A., 2008 WL 4829880 (C.D. Cal. 2008) ............................... 17 4 Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008)..................................................... 4, 5, 6, 9 5 Edmundson & Gallagher v. Album Towers Tenants Ass’n, 48 F.3d 1260 (D.D.C. 1995) ........... 20 6 Executive Software N. Am., Inc. v. United States District Court, 24 F.3d 1545 (9th Cir. 7 1994) ......................................................................................................................................... 20 8 Ford Motor Co. v. County of Tulare, 145 Cal. App. 688 (Cal. Ct. App. 1983) ........................... 22 9 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)................... 4 10 Frotton v. Barkan, 219 F.R.D. 31 (D. Mass. 2003) ...................................................................... 19 11 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) ......................................................... 8, 10, 11 12 Gratz v. Bollinger, 539 U.S. 244 (2003)................................................................................... 8, 11 13 Gunther v. Lin, 144 Cal. App. 4th 223 (Cal. Ct. App. 2006)........................................................ 20 14 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (Cal. 1991) ........................................ 22 15 Harris v. Stonecrest Care Auto Ctr., LLC., 472 F. Supp. 2d 1208 (S.D. Cal. 2007).................. 4, 5 16 Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802 (9th Cir. 2001) .......................... 20 17 In re Christian S., 7 Cal. 4th 768 (Cal. 1994)............................................................................... 22 18 In Re Netflix Antitrust Litig., 506 F. Supp. 2d 308 (N.D. Cal 2007) ............................................ 15 19 Jackson v. Mills Corp., 2007 WL 2705215 (N.D. Cal. Sept. 14, 2007) ....................................... 24 20 Jurcoane v. Superior Ct., 93 Cal. App. 4th 886 (Cal. Ct. App. 2001).......................................... 22 21 Kakani v. Oracle Corp., 2007 WL 1793774 (N.D. Cal. June 19, 2007) ...................................... 14 22 Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir. 1975).................................................... 11, 13 23 Landis v. N. Am. Co., 299 U.S. 248 (1936) .................................................................................. 21 24 Lentini v. Cal. Ctr. For the Arts, 370 F.3d 837 (9th Cir. 2004).................................................... 20 25 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................... 4 26 Mattera v. Clear Channel Comm., Inc., 239 F.R.D. 70 (S.D.N.Y. 2006) .............................. 17, 18 27 Midpeninsula Citizens for Fair Housing v. Westwood Investors, 221 Cal. App. 3d 1377 28 (Cal. Ct. App. 1990).................................................................................................................. 10
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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page6 of 32
1 Moreno v. G & M Oil Co., 88 F. Supp. 2d 1116 (C.D. Cal. 2000)............................................. 5, 6 2 Moyer v. Walt Disney World Co., 146 F. Supp. 2d 1249 (M.D. Fla. 2000) ................................... 5 3 Munson v. Del Taco, Inc., 522 F.3d 997 (9th Cir. 2008)........................................................ 20, 21 4 Neff v. Am. Dairy Queen Corp. 58 F.3d 1063 (5th Cir. 1995)...................................................... 23 5 Nishi v. Ethicon, Inc., 2003 WL 917978 (N.D. Cal. Feb. 26, 2003)............................................. 10 6 O’Shea v. Littleton, 414 U.S. 488 (1973) ....................................................................................... 5 7 Oliver v. GMRI, Inc., 2007 WL 4144995 (S.D. Cal. 2007).......................................................... 20 8 Oliver v. KFC Corp., 2008 WL 2756605 (S.D. Cal. 2008) .......................................................... 21 9 Oliver v. Long Drug Stores Cal., Inc., 2008 WL 544399 (S.D. Cal. 2008) ................................. 20 10 Org. for the Advancement of minorities with Disabilities v. Brick Oven Restaurants, 406 11 F.Supp.2d 1132 (S.D. Cal. 2005).............................................................................................. 20 12 Papasan v. Allain, 478 U.S. 265 (1986) ....................................................................................... 15 13 Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002) ................................... 5, 15 14 Pinnock v. Java Depot, Inc., 2007 WL 2462106 (S.D. Cal. 2007)............................................... 20 15 Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000) ............................................................... 8 16 Roberts v. Royal Atlantic Corp., 542 F.3d 363 (2d Cir. 2008) ..................................................... 19 17 Scott Pasadena Unified School Dist., 306 F.3d 646 (9th Cir. 2002) ............................................ 19 18 Serrano v. 180 Connect, Inc., 478 F.R.D. 1018 (9th Cir. 2007)................................................... 17 19 Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007).................................. 5 20 Surrey v. Truebeginnings, 2008 WL 4916102 (Cal. Ct. App. 2008)............................................ 10 21 Thompson v. Jiffy Lube Internat’l, Inc., 505 F. Supp. 2d 907 (D. Kan. 2007) ............................. 19 22 Tyler v. Kansas Lottery, 14 F. Supp. 2d 1220 (D. Kan. 1998) ....................................................... 7 23 U.S. v. Days Inns of Am., Inc., 1998 WL 461203 (E.D. Cal. Jan. 12, 1998) ................................ 23 24 U.S. v. Ritchie, 342 F.3d 903 (9th Cir. 2003) ................................................................................. 2 25 United States v. Bowen, 172 F.2d 682 (9th Cir. 1999) ................................................................. 18 26 Voytek v. Univ. of Cal., 1994 WL 478805 (N.D. Cal. Aug. 25, 1994) ......................................... 13 27 Warth v. Seldin, 442 U.S. 490 (1975) ................................................................................. 4, 5, 6, 8 28 Wilson v. PFS LLC, 2006 WL 3841517 (S.D. Cal. Nov. 2, 2006) ......................................... 15, 20
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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page7 of 32

1 Statutes

2

California Civil Code § 51 (Unruh Civil Rights Act)........................................................passim 3

California Civil Code § 52........................................................................................................ 22 4

California Civil Code at § 55.51 et seq.(Construction-Related Accessibility Standards

5

Compliance Act). .................................................................................................................. 27

6 California Civil Code § 54 (California Disabled Persons Act).......................................... passim

7 28 United States Code

8

§ 1332(d) (Class Action Fairness Act).................................................................... 17, 19 § 1367................................................................................................................ 16, 19, 20

9 42 United States Code § 12181 (Title III of the Americas with Disabilities Act) ............passim

10 42 United States Code § 12182(a) . .......................................................................................... 21
11 42 United States Code § 12183(a)(1) ................................................................................... 9, 13
12 42 United States Code § 12188 (a)(1) ..................................................................................... 10
13

14 Rules

15 Federal Rules of Civil Procedure

16

P. 8(a)(2) ............................................................................................................................... 14 P. 12(b)(1) ............................................................................................................................... 2

17

P. 12(b)(6) ......................................................................................................................... 2, 16 P. 19(a).................................................................................................................................. 18

18

P. 19(b).................................................................................................................................. 18 P. 19(c).................................................................................................................................. 22

19

P. 23 .............................................................................................................................. 1, 8, 24 P. 23(d)(1)(D) ....................................................................................................................... 11

20

21

22

23

24

25

26

27

28

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page8 of 32

1 I. INTRODUCTION

2

Plaintiff Miguel Castaneda allegedly encountered unspecified access barriers at two

3 franchised Burger King® restaurants in Contra Costa County (the Pittsburg and Pleasant Hill

4 Restaurants). Defendant Burger King Corporation subleases these properties to franchisees that

5 operate and maintain the two restaurants.

6

Based only on his visits to those two restaurants, Plaintiff purports to bring a class

7 action under Title III of the ADA for injunctive relief (and for damages under the Unruh Civil

8 Rights Act (“Unruh”) and the California Disabled Persons Act (“CDPA”)) against every

9 franchised Burger King® restaurant in California that Burger King Corporation leases or

10 subleases. As a matter of law, however, Plaintiff’s standing is limited to these two named

11 restaurants. His attempt to cast his claims as class allegations does not expand his ability to

12 seek redress from additional restaurants at which he has suffered no injury. Accordingly,

13 Plaintiff’s Complaint must be dismissed for want of standing as to all restaurants except for

14 Pleasant Hill and Pittsburg.

15

Plaintiff’s lack of standing also compels a finding that the commonality, typicality, and

16 adequacy of representation necessary to maintain a class action under Fed. R. Civ. P. 23 as to

17 the additional restaurants is absent. Accordingly, these class allegations should be stricken.

18

Other deficiencies in Plaintiff’s Complaint require dismissal of various other aspects of

19 Plaintiff’s Complaint. For example, Plaintiff’s Unruh and CDPA claims fail to state a claim

20 because those statutes, unlike the ADA, do not impose liability based merely upon one’s status

21 as a lessor/sublessor. Likewise, Plaintiff has failed to allege facts that support his conclusory

22 allegation that sublessor Burger King Corporation intentionally denied Plaintiff access to the

23 Pittsburg and Pleasant Hill (or other) restaurants, as is necessary to state a claim for damages

24 under Unruh’s punitive damages provision. Moreover, because of the unsettled nature of the

25 state law issues, which the California Supreme Court has accepted for review, this Court

26 should decline to exercise supplemental jurisdiction over the state law claims.

27 / / /

28 / / /

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1 II. FACTUAL BACKGROUND

2

A. Burger King Corporation

3

Burger King Corporation is the franchisor of Burger King® hamburger quick service

4 restaurants. Burger King Corporation has never operated any restaurants in California.

5 (Declaration of Thomas G. Archer in Support of Defendant’s Motion to Dismiss (“Archer 6 Dec.”) ¶¶ 2, 3).1 All California Burger King® restaurants are operated and maintained by

7 independent franchisees pursuant to franchise agreements and, in some cases, leases. (Archer

8 Dec. ¶ 3). Most are also owned by franchisees. (Id.) Burger King Corporation leases or

9 subleases the premises for approximately 90 franchised California restaurants (the “BKLs”).

10 (DE 1 ¶¶ 11, 12; DE 15 at 2; Archer Dec. ¶ 3).

11

B. Plaintiff Castaneda’s Individual Allegations Are Limited to Experiences at

the Pleasant Hill and Pittsburg Restaurants 12

13

Plaintiff alleges that he “has patronized several Burger King restaurants” in California,

14 “including” two located in Contra Costa County: 677 Contra Costa Boulevard in Pleasant Hill

15 (“Pleasant Hill” or “BK #1864”) and 2162 Railroad Avenue in Pittsburg (“Pittsburg” or “BK

16 #2505”). (DE 1 ¶ 41). The Complaint does not allege when Mr. Castaneda patronized the

17 Pleasant Hill and Pittsburg restaurants, or whether he encountered barriers to access at both

18 restaurants, or, if so, what particular barriers he encountered at which restaurant. (See id. ¶ 42).

19

The Pleasant Hill and Pittsburg restaurants both were constructed for first occupancy in

20 the late 1970’s, long before the ADA’s 1993 effective date. (Archer Dec. ¶¶ 7, 10, Ex. B).

21 Burger King Corporation has never owned or operated either property. Rather, its interest is

22 merely that of a sublessor. (Archer Dec. ¶ 6). California residents Mr. and Mrs. William

23

24 1 Where, as here, a party moves to dismiss for lack of standing under Rule 12(b)(1), “the moving party may submit affidavits or any other evidence properly before the court.” Ass’n of Am. Med.

25 Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000). Where dismissal is sought under Rule

26

12(b)(6), the court may properly consider matters of public record and matters of which it may take judicial notice, as well as any documents referenced in the complaint or on which the

27 complaint relies, such as Burger King Corporation’s subleases with its franchisees. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
28 1994) (documents specifically referred to in complaint or whose contents are alleged in complaint

may be considered in ruling on a Rule 12(b)(6) motion).

__________________________________________________________________________________

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2

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page10 of 32

1 Scarbrough, through their California limited partnership Devil Mountain Foods – Pleasant

2 Hills, LP, sublease and operate the Pleasant Hill restaurant (Archer Dec. ¶ 8, Ex. C).

3 California resident Antony Sacca and his family sublease and operate the Pittsburg restaurant

4 through the Sacca Family Corp., a California corporation (Archer Dec. ¶ 11, Ex. F; see DE 1 ¶

5 41).

6

Pursuant to Burger King Corporation’s subleases with these two franchisees, the

7 franchisees are required to operate the restaurants, maintain the restaurants in good order at

8 their own cost and expense, and to obtain all necessary licenses and permits and otherwise

9 promptly observe and fully comply with all applicable laws and regulations, including

10 specifically the ADA. (Archer Dec. Ex. C (Extension Sublease for Pleasant Hill), §§ 5.1, 5.2,

11 5.7; Ex. F (Successor Sublease for Pittsburg), §§ 5.1, 5.2, 5.7).

12

C. Plaintiff Castaneda’s Conclusory Class Allegations

13

Based apparently on his alleged encounter(s) with barrier(s) at either the Pleasant Hill

14 and Pittsburgh restaurants, or both, Mr. Castaneda alleges a state-wide putative class action

15 against Burger King Corporation as to all California BKLs on behalf of “all individuals with

16 manual and/or mobility disabilities who use wheelchairs or electric scooters.” (DE 1 ¶ 13).

17 Plaintiff seeks injunctive relief under Title III of the Americans with Disabilities Act, 42

18 U.S.C. § 12181 et. seq (“ADA”), and statutory minimum damages pursuant to the Unruh Civil

19 Rights Act (“Unruh”), Cal. Civ. Code § 51 and the California Disabled Persons Act (“CDPA”),

20 Cal. Civil Code § 54 (DE l ¶¶ 5, 13, 42).

21

Mr. Castaneda does not allege that all, or even most, BKLs contain unlawful access

22 barriers. He also does not allege that he knows of any specific common access barrier at the

23 restaurants. Plaintiff does not allege that all BKLs contain a particular design flaw in violation

24 of the ADA or that Burger King Corporation maintains any specific statewide policy or

25 practice that violates the ADA.

26

Rather, Plaintiff merely sets forth “information and belief” allegations that Burger King

27 Corporation assists “some” of its franchisees by providing training, operating specifications or

28 “design prototypes.” (See DE 1 ¶¶ 25-35, 44, 49). However, Plaintiff does not make a factual

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page11 of 32

1 allegation showing how any of those “information or belief” activities to “some” caused or

2 created an accessibility violation. (Id.).

3 III. ARGUMENT

4

A. Plaintiff Castaneda’s Claims Against the Restaurants He Has Not Visited

Should Be Dismissed for Lack of Standing 5

6

Article III standing is “perhaps the most important” of the case-or-controversy

7 doctrines placing limits on federal judicial power. Allen v. Wright, 468 U.S. 737, 750 (1984).

8 To invoke this Court’s jurisdiction, a plaintiff first must meet well established constitutional

9 and prudential requirements on standing. Warth v. Seldin, 442 U.S. 490, 498 (1975); Lujan v.

10 Defenders of Wildlife, 504 U.S. 555, 561 (1992). Standing is determined as of the date the

11 original complaint is filed. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S.

12 167, 175 (2000); Lujan, 504 U.S. at 571 n.4.

13

The plaintiff bears the burden of establishing standing. Lujan 504 U.S. at 561; Bates v.

14 United Parcel Servs, Inc., 511 F.3d 974, 985 (9th Cir. 2007). A plaintiff must allege and

15 establish three elements: (1) “injury in fact,” which is a concrete and particularized invasion of

16 a legally protected interest that is “actual or imminent, not ‘conjectural’ or ‘hypothetical;’” (2)

17 a causal connection between the injury and the defendant’s conduct; and (3) redressability,

18 which means that it is likely, and not merely speculative, that the plaintiff’s injury will be

19 redressed by a favorable decision. Lujan, 504 U.S. at 560-61; Bates, 511 F.3d at 985; Doran v.

20 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir. 2008).

21

In addition to the elements of standing discussed above, in order to have Article III

22 standing to seek injunctive relief,2 Plaintiff must allege a real and immediate threat of future

23 injury. Lujan, 504 U.S. at 560; City of Los Angeles v. Lyons, 461 U.S. 95, 101-03 (1983); Bird

24 v. Lewis & Clark Coll., 303 F.3d 1015, 1019 (9th Cir. 2002). To establish this requisite real

25 and immediate threat of future injury in a Title III ADA action, the plaintiff must show, “at the

26 very least,” a concrete “likelihood” that he will “return to patronize the accommodation in

27 question.” Harris v. Stonecrest Care Auto Ctr., LLC., 472 F. Supp. 2d 1208, 1215-16 (S.D.

28
2 Plaintiff’s two Title III ADA claims are only for injunctive relief.
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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page12 of 32

1 Cal. 2007).

2

Class allegations do not diminish the named plaintiff’s burden to establish standing.

3 Rather, standing remains the threshold inquiry in a putative class action, and at least one named

4 plaintiff must have suffered the injury that gives rise to each claim asserted. Warth, 422 U.S. at

5 504; O’Shea v. Littleton, 414 U.S. 488, 494-95 (1973); Casey v. Lewis, 4 F.3d 1516, 1519,

6 1524 (9th Cir. 1993).

7

1. Plaintiff Admittedly Lacks Individual Standing Against Restaurants

He Did Not Visit 8

9

Although Plaintiff’s Complaint specifies only two restaurants he claims to have visited,

10 Castaneda also seeks injunctive relief, and damages under Unruh and the CDPA, as against

11 approximately 88 additional franchised Burger King® restaurants throughout California that he

12 has never visited, which he does not know to have any violations, and at which he thus has not

13 suffered legal injury. Courts repeatedly have held, however, that a disabled person’s standing

14 to sue under Title III of the ADA is limited to those stores or restaurants that a plaintiff has

15 actually visited or at least been deterred from visiting due to known violations at that specific

16 location. Moreno v. G & M Oil Co., 88 F. Supp. 2d 1116 (C.D. Cal. 2000); Clark v. Burger

17 King Corp., 255 F. Supp. 2d 334 (D.N.J. 2003); Clark v. McDonald’s Corp., 213 F.R.D. 198

18 (D.N.J. 2003); Moyer v. Walt Disney World Co., 146 F. Supp. 2d 1249 (M.D. Fla. 2000). See

19 Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1043-44 (9th Cir. 2008) (holding that the list of

20 barriers affecting plaintiff’s disability at the facility he/she visited constitute the “single legal

21 injury” plaintiff suffered); Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 n.3

22 (9th Cir. 2007) (“[i]f Skaff’s complaint had just asserted general categories of violations

23 without attesting to Skaff’s personal knowledge of or experience with these violations, then no

24 injury in fact would have been pled”); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133,

25 136 (9th Cir. 2002) (“under the ADA, once a plaintiff has actually become aware of

26 discriminatory conditions existing at a public accommodation, and is thereby deterred from

27 visiting or patronizing that accommodation, the plaintiff has suffered an injury”) (emphasis

28 added).

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1

In Moreno, for example, a disabled plaintiff had encountered access barriers at one of

2 defendant’s California gasoline station-convenience stores. 88 F. Supp. 2d at 1117. Plaintiff

3 sought to amend his complaint to obtain injunctive relief pursuant to Title III of the ADA

4 against 82 additional stations the defendant owned throughout California, even though the

5 plaintiff had never visited the other stations. Id. at 1117. The court held that the plaintiff

6 lacked standing as to the stations he had not visited, stating: “The Court holds the Americans

7 with Disabilities Act’s anti-barrier provisions are ‘site specific’ under both jurisdiction

8 principles and the terms of the statute.” Id.

9

The court explained that such a result was required by Supreme Court precedent and

10 the language of Title III of the ADA:

11

The Supreme Court has held that, “when the asserted harm is a ‘generalized

grievance’ shared in substantially equal measure by all or a large class of

12

citizens, that harm alone normally does not warrant exercise of jurisdiction.”

13

Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Plaintiff lacks standing to sue for any generalized injury caused by the existence

14

of inappropriate barriers at the 82 additional locations.

15

The terms of the statute corroborate this conclusion. Section 12188 requires

16

that a plaintiff actually be “subjected to discrimination” or be “about to be

subjected” to it. There is no showing this Plaintiff was subjected to or about to

17

be subjected to discrimination at the 82 additional gas stations. The statute does

18

not support any claim as to these stations.

19

* * *

20

The Court concludes that, under the federal ADA, Plaintiff here cannot assert

21

either an interest of his own or the interests of third parties as to the 82 additional sites.

22

23 Id. at 1117-1118. See 7-Eleven, 524 F.3d at 1044-45 (quoting Warth in support of holding that

24 prudential limits on standing also preclude courts from considering ADA violations at a facility

25 plaintiff visited, but which do not relate to his/her disabilities). Accordingly, the court denied

26 as futile plaintiff’s motion to amend the additional claims on behalf of himself and others

27 similarly situated. G & M Oil Co., 88 F. Supp. 2d at 1118.

28

Clark v. Burger King Corp., 255 F. Supp. 2d 334 (D.N.J. 2003), is also on point.

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1 There, the court dismissed for lack of standing the very same class action claims, against the

2 very same California Burger King® restaurants (among others) that are at issue here. Despite

3 having only visited a handful of restaurants, plaintiff Clark filed a putative class action against

4 defendant Burger King Corporation seeking injunctive relief under the ADA and damages

5 under state laws (including Unruh) for accessibility violations at all Burger King® restaurants

6 in the United States. The court, citing G & M Oil with approval, held that Clark’s standing to

7 assert ADA and state law accessibility violations against Burger King® restaurants was limited

8 to those he visited prior to filing the underlying action, and that he lacked standing with regard

9 to any restaurants he had not visited. Clark, 255 F. Supp. 2d at 343-44. Accordingly, the court

10 dismissed all “claims related to Burger King restaurants not visited by Clark.” Id.

11

Similarly, in Clark v. McDonald’s Corp., a New Jersey resident plaintiff asserted a

12 nationwide class action against McDonald’s Corp. as to its corporate owned and operated

13 McDonald’s® restaurants. With respect to claims against 38 restaurants in Wisconsin which

14 the complaint identified as having been visited by professional ADA inspectors, the court held

15 that plaintiff “lacks standing to assert claims as to those restaurants because he has not alleged

16 (and is not excused from alleging) that he would visit the Wisconsin restaurants but for the

17 violations of which he has actual notice.” Id., 213 F.R.D. 198, 230 (D.N.J. 2003).

18 Accordingly, the court dismissed these ADA and state law claims.

19

Likewise, in Tyler v. Kansas Lottery, 14 F. Supp. 2d 1220 (D. Kan. 1998), plaintiff, a

20 Kansas resident who later moved to Wisconsin, sought an injunction compelling the Kansas

21 lottery to bring all lottery retailers in the state into compliance with Title II of the ADA. The

22 court held that plaintiff never had standing to ask for statewide injunctive relief, and that

23 plaintiff’s intention to visit his family in Kansas and play the lottery at such times failed to

24 make out a claim of imminent future harm sufficient to establish standing for any purpose. Id.

25 at 1225.

26

As these decisions make plain, Plaintiff lacks standing to sue the unidentified BKLs.

27 Indeed, Plaintiff’s counsel previously admitted to the Court that Mr. Castaneda does not have

28 “individual . . . standing to challenge each of the 90 stores.” (DE 17 ¶ 7).

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1

2. Plaintiff Cannot Create Standing to Assert Claims Against

Additional Restaurants Merely By Making Class Allegations 2

3

Notwithstanding Plaintiff’s admitted lack of individual standing to assert claims against

4 restaurants other than Pleasant Hill and Pittsburg, Castaneda claims that his characterization of

5 the Complaint as a putative “class action” creates standing to assert claims allegedly possessed

6 by class members against other BKLs. Id. To the contrary, it is settled that class allegations

7 cannot create standing, and that a named plaintiff’s class representational standing is limited to 8 representing the class of people who suffered the same legal injury.3 Warth, 422 U.S. at 504;

9 see Blum v. Yaretsky, 457 U.S. 991, 999-1002 (1982) (dismissing for lack of Article III

10 standing all class claims except for those that the disabled named plaintiffs had individual

11 standing to assert); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 n.15 (1982) (“[t]he mere

12 fact that an aggrieved private plaintiff is a member of an identifiable class of persons . . . is

13 insufficient to establish his standing to litigate on their behalf all possible claims of

14 discrimination against a common employer”); Prado-Steiman v. Bush, 221 F.3d 1266, 1279-80

15 (11th Cir. 2000) (one named plaintiff must have individual standing for each proffered class

16 claim for standing to exist to assert all such ADA claims); Clark v. Burger King Corp., 255 F.

17 Supp. 2d at 343-44 (granting motion to dismiss for lack of standing all Title III ADA and state

18 law claims related to Burger King® restaurants that the named class plaintiff did not visit);

19 Clark v. McDonald’s Corp., 213 F.R.D. at 229-230, 235 (granting motion to dismiss all claims

20 concerning McDonald’s® restaurants for which nominal class plaintiffs either lacked actual

21 knowledge of ADA violation or did not intend to visit).

22

In other words, even as a class representative, Plaintiff may assert claims only on behalf

23 of the mobility-disabled persons subjected to discrimination at the Pittsburg and/or Pleasant

24 Hill restaurants.

25

26 3 The Supreme Court has noted that a nominal plaintiff’s lack of standing, when addressed under
27 Fed. R. Civ. P. 23’s rubric of adequacy of representation, typicality, and commonality, yields the same result. See Gratz v. Bollinger, 539 U.S. 244, 263 n.15 (2003); see also Bates, 511 F.3d at
28 986-87. Accordingly, as discussed, infra, Plaintiff’s lack of standing also requires that the class
allegations as to additional restaurants be stricken pursuant to Rule 23.
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1

The Supreme Court’s Blum v. Yaretsky decision is instructive. In Blum, the nominal

2 plaintiffs were two nursing home residents who had been transferred to a lower level of care as

3 a result of a state-mandated utilization review committee (“URC”) decision. They sued the

4 New York Department of Social Services on behalf of all Medicaid-eligible residents of New

5 York nursing homes claiming that the required URC decisional process was unlawful.

6 Although they had only been transferred to a lower level of care, the two named plaintiffs

7 purported to represent a class that also included URC-induced transfers to a higher, i.e., more

8 intensive, level of medical care. The Supreme Court held that the plaintiffs’ failure to suffer

9 that particular injury was fatal to their standing to assert such class claims:

10

Respondents suggest that members of the class they represent have been

transferred to higher levels of care as a result of URC’s decisions. Respondents,

11

however, “must allege and show that they personally have been injured, not that

12

injury has been suffered by other, unidentified members of the class to which

they belong and which they purport to represent.” Unless these individuals “can

13

thus demonstrate the requisite case or controversy between themselves

personally and petitioners, ‘none may seek relief on behalf of himself or any

14

other member of the class’”

15

16 Id. at 1001 n. 13 (quotations omitted).

17

Accordingly, the Supreme Court concluded that, “although respondents have standing

18 to challenge facility-initiated discharges and transfers to lower levels of care, the District Court

19 exceeded its authority in adjudicating the procedures governing transfers to higher levels of

20 care.” Id. at 1002.

21

Here, as in Blum, the claims Plaintiff seeks to assert as class representative against

22 additional restaurants allege a different legal injury than the injury he allegedly suffered at 23 Pleasant Hill and Pittsburg.4 Doran v. 7-Eleven, 524 F.3d at 1043-44, n.7. Unable to

24

25 4Plaintiff has not even suffered the same type of injury as he alleges against other restaurants.

26

Plaintiff vaguely alleges a design and construction case pursuant to 42 U.S.C. §12183(a)(1), premised upon the theory that the BKLs were constructed pursuant to prototypical plans that

27 Burger King Corporation created. (DE 1 ¶¶ 1, 2, 25, 44, 49). Putting aside that Plaintiff’s

conclusory “some or all,” on “information and belief” allegations should be ignored, Bell 28 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007), Plaintiff does not individually possess

any design/construction claim because the Pleasant Hill and Pittsburg restaurants were

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page17 of 32

1 demonstrate the requisite case or controversy between himself personally and the other

2 restaurants, Plaintiff cannot “seek relief on behalf of himself or any other member of the class”

3 with respect to the additional restaurants. Blum, 457 U.S. at 1001, n.13.

4

The restrictive language of Title III of the ADA requiring a private plaintiff to have

5 been or be about to be subjected to discrimination, 42 U.S.C. § 12188(a)(1),5 is also significant

6 to this Court’s standing analysis. This language, when contrasted with the broad powers the

7 Act grants to the Attorney General to investigate, enforce and even issue monetary punishment,

8 42 U.S.C. § 12188(b)(2)(C), confirms that Congress intended to limit individuals’ standing to

9 assert class claims for the facility[ies] where he/she personally has been subjected to

10 discrimination. See Falcon, 457 U.S. at 156 (because Title VII of the Civil Rights Act grants

11 the EEOC broad enforcement authority and contains no special authorization for class suits by

12 private parties, the court must “limit the class claims to those fairly encompassed by the named

13 plaintiff’s claims”); Blake v. Southcoast Health Sys., 145 F. Supp. 2d 126, 132, 134 n.12

14 (D.Mass. 2001) (statutory scheme providing for different forms of relief depending on whether

15 the Attorney General or a private litigant brings suit reinforces requirement that private litigant

16 must demonstrate personal standing as to each form of relief sought); Animal Legal Def. Fund,

17 Inc. v. Espy, 23 F.3d 496, 501 (D.C. Cir. 1994) (“Vindicating the public interest . . . is the

18 function of Congress and the Chief Executive,” especially where, as in Title III of the ADA,

19 the Attorney General is the only party vested with the statutory authority to “vindicate the

20 public interest”); see also Nishi v. Ethicon, Inc., 2003 WL 917978 (N.D. Cal. Feb. 26, 2003)

21 (dismissing case for lack of standing in part because “they do not have standing to request an

22 injunction on behalf of the general public”).

23

24 constructed in the 1970s, before the ADA was enacted. (Archer Dec. ¶¶ 7, 10, Ex. B). Because
25 Mr. Castaneda does not personally possess this type of claim, he lacks standing to bring such 26 claims on behalf of others.
27 5 Unruh likewise confers standing only upon persons who have actually been subjected to discrimination. Midpeninsula Citizens for Fair Housing v. Westwood Investors, 221 Cal. App.
28 3d 1377, 1385 (Cal. Ct. App. 1990) (standing to sue under Unruh is limited to actual victims of discrimination); Surrey v. Truebeginnings, 2008 WL 4916102, at *4 (Cal. Ct. App. 2008).
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1

As Blum, Clark v. Burger King Corp. and the other cases cited above make plain,

2 Plaintiff’s use of the class device does not enlarge his standing to assert claims with respect to

3 restaurants at which he has not suffered injury. Consequently, the Complaint should be

4 dismissed as to all BKLs other than Pleasant Hill and Pittsburg, which even Plaintiff concedes

5 are the only restaurants for which he has individual standing.

6

B. Plaintiff’s Class Allegations Should Be Dismissed or Stricken

7

Plaintiff’s also fails to satisfy the commonality, typicality, and adequacy of

8 representation prerequisites to a class action imposed by Rule 23. See Gratz v. Bollinger, 539

9 U.S. 244, 263 n.15 (2003) (conclusion that named plaintiff lacks individual standing to assert

10 class claims also demonstrates lack of commonality, typicality, and adequacy of representation

11 under Fed. R. Civ. P. 23); Bates, 511 F.3d at 986-87 (same). Dismissal of the class claims is

12 therefore required. See Fed. R. Civ. P. 23(d)(1)(D) (granting court authority to order “that the

13 pleadings be amended to eliminate [class] allegations”); Kamm v. Cal. City Dev. Co., 509 F.2d

14 205 (9th Cir. 1975) (upholding dismissal of class allegations under Rule 23(c) and (d) where

15 allegations of complaint and matters of public record made clear that class action was

16 inappropriate); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (approving

17 dismissal of Rule 23 allegations where issues “are plain enough from the pleadings”).

18

1. Plaintiff’s Allegations Fail to Demonstrate Commonality

19

Plaintiff alleges a class complaint regarding 90 different restaurants, built at different

20 times, of markedly different configuration, maintained and operated by different franchisees.

21 Plaintiff has pled no facts showing common barriers at the locations, no facts showing the

22 existence of a discriminatory company policy or practice, and no facts showing a common

23 design flaw. Instead, the Complaint makes a series of factually-void, conclusory allegations

24 that say nothing more than that Plaintiff hopes to find through discovery that “some or all” of

25 the Restaurants contain accessibility barriers. Plaintiff’s description of the “common” barriers

26 is nothing more than a laundry list of every type of barrier that could conceivably exist. (DE 1

27 ¶¶ 2, 3, 41, 42, 49).

28

Conclusory allegations such as Plaintiff’s are insufficient to establish commonality

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page19 of 32

1 under Rule 23. See Davis v. Astrue, 250 F.R.D. 476, 484 (N.D. Cal. 2008).

2

Access Now Inc. v. Walt Disney World Co., 211 F.R.D. 452, 454-55 (M.D. Fla. 2001),

3 is a case in point. There, the plaintiff claimed to have been subjected to access barriers at one

4 of the defendant’s facilities and, sought to assert a class action against the defendants’ 15

5 associated hotels, two theme parks and monorail system on the basis of an allegation that the

6 defendants had a corporate policy of violating the ADA. The court found that “Plaintiffs’

7 conclusory allegations [of corporate policy] are insufficient to establish the element of

8 commonality.” Id. at 454-455. The court also found that because “the facilities each were

9 constructed at different times, some predating the ADA, some built after the ADA and some

10 having been remodeled since the ADA,” and plaintiff had alleged no facts showing a common 11 discriminatory practice, plaintiff could not establish commonality.6 Id. at 455. Accordingly,

12 the court denied class certification. Id.; see Falcon, 457 U.S. at 157 (the representative

13 plaintiff has a heavy burden to allege facts, as opposed to mere conclusory allegations, of a

14 company-wide policy-practice of discrimination, in order to bridge the wide gulf between an 15 individual claim and class claims and show commonality and typicality). 7

16

For the same reasons, here too, any similarities at the BKLs in California are vastly

17

18 6 In so holding, the court distinguished Colo. Cross-Disability Coal. v. Taco Bell Corp., 184
F.R.D. 354 (D. Colo. 1999), where the court certified a class complaint that specifically was 19 based upon a single, common flaw in the defendant’s queue line design in corporate-owned

20

restaurants throughout the state. Taco Bell thus demonstrates the converse of this patently uncertifiable class complaint against multiple restaurants.

21 7 See also Access Now, Inc. v. Macy’s East, Inc., No. 99-9088-CIV-Jordan (S.D. Fla. Feb. 15,

22 2001) (denying class certification for lack of commonality at Macy’s department stores) (attached

23

as Exhibit A);.Access Now, Inc. v. The May Dept. Stores Co., No. 00-0148-CIV-Moreno (S.D. Fla. Oct. 6, 2000) (denying class certification for lack of commonality in ADA case where

24 plaintiff’s bare allegation of a corporate policy was unsubstantiated, the complaint alleged only specific violations rather than a uniform policy and stores were constructed at different times)
25 (attached as Exhibit B); Ass’n for Disabled Ams., Inc. v. Motiva Enters., LLC, No. 99-0580-CIV-

26

Ungaro Benages (S.D. Fla. Oct. 18, 1999) (denying class certification and granting motion to dismiss class action in ADA case where plaintiff’s only “evidence” of a corporate policy was an

27 unsubstantiated allegation that the defendant’s conduct constituted a policy, and the only way to
show the defendant’s alleged non-compliance with the ADA was to examine each gas station) 28 (copy attached as Exhibit C).

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page20 of 32

1 outweighed by the myriad of differences among them.8 See Clark v. Burger King Corp., 255

2 F. Supp. 2d at 343 (“not[ing] that many Burger King restaurants were built at various times and

3 markedly differ from one-another in their construction and configuration.”). Because

4 individualized issues will predominate in the series of mini-trials that will be necessary to

5 adjudicate the individualized inquiries into potential ADA violations in the various and varied

6 stores, Rule 23(a) cannot be satisfied.

7

2. Plaintiff’s Allegations Fail to Show Typicality or Adequacy of

Representation 8

9

“A class representative must be a part of the class and possess the same interest and

10 suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

11 625-26 (1997) (internal quotations omitted). As discussed previously, plaintiff has suffered a

12 different legal injury than putative class members who allegedly encountered access barriers at

13 the 88 BKLs Plaintiff has not visited. Thus Plaintiff has not alleged, and cannot allege,

14 typicality and adequacy of representation under Rule 23.

15

Notably, the Pleasant Hill and Pittsburg restaurants were constructed and first opened

16 for business in the 1970s. (Archer Dec., ¶¶ 7, 10, Ex. B).9 Because these restaurants were

17 constructed before the January 26, 1993 effective date of the ADA’s new construction

18 standards, (see 42 U.S.C. § 12183(a)(1)), the ADA’s design and construction requirements are

19 inapplicable. See Voytek v. Univ. of Cal., 1994 WL 478805 (N.D. Cal. Aug. 25, 1994) (ADA

20 claim barred because it predated effective date of ADA), aff’d on other grounds, 77 F.3d 491

21

22 8 With regard to accessibility issues under the ADA for existing facilities, barrier removal is

23

only required to the extent that removal is “readily achievable.” 42 U.S.C. § 12181(9); 28 C.F.R. § 36.104. By necessity, the determination of what is readily achievable will need to be

24 revisited for each restaurant that pre-dates the ADA. The standards applicable to new construction are similarly varied. See 42 U.S.C. § 12183(a); 28 C.F.R. 36.401(a)(1). Spaces
25 altered after January 26, 1992 will be governed by another set of regulations. See 42 U.S.C. §

26

12183(a)(2); 28 C.F.R. § 36.402(a)(1). Thus, issues of individualized proof predominate over issues of generalized proof.

27 9 The Court may consider facts that are matters of public record on a motion to dismiss class
28 allegations. Kamm v. Cal. City Dev. Corp., 509 F.2d 205, 210 (9th Cir. 1975).

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1 (9th Cir. 1996); see also Colon v. League of United Latin Am. Citizens, 91 F.3d 140 (5th Cir.

2 1996) (courts lack jurisdiction when events predate ADA’s effective date).

3

For this reason too, Plaintiff’s claims -- that he encountered miscellaneous barriers that

4 two franchisees did not satisfactorily remediate under the existing facilities’ barrier removal

5 standard -- are atypical of the putative class claims for violation of new construction standards.

6 See Am. Council of the Blind v. Astrue, 2008 WL 4279674 (N.D. Cal. Sept. 11, 2008) (Alsup,

7 J.) (named plaintiffs could not represent a class including Social Security programs in which no

8 representative plaintiff participated, due to lack of typicality); Kakani v. Oracle Corp., 2007

9 WL 1793774 (N.D. Cal. June 19, 2007) (Alsup, J.) (representative plaintiffs who alleged

10 claims under California law were not adequate representatives of absent class members with

11 claims under other states’ laws).

12

In sum, Plaintiff has failed to allege three of the four Rule 23 prerequisites:

13 commonality, typicality, and adequacy of representation. The Court should dismiss or strike

14 Plaintiff’s class allegations.

15

C. Plaintiff’s Complaint Should Be Dismissed Pursuant to Fed. R. Civ. P.

12(b)(6), or, Alternatively, Plaintiff Should Provide a More Definite

16

Statement under Rule 12(e))

17

18

Fed. R. Cir. P. 8(a)(2) requires “a short and plain statement of the claim showing that

19 the pleader is entitled to relief.” Id. This rule, in tandem with Rule 12(b)(6), imposes on

20 Plaintiff an obligation to plead “enough facts to state a claim to relief that is plausible on its

21 face.” Bell Atlantic, 127 S. Ct. at 1974. If “the plaintiffs [ ] have not [with sufficient facts]

22 nudged their claims across the line from conceivable to plausible, their complaint must be 23 dismissed.” Id. at 1974.10

24

“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires

25 more than labels and conclusions, and a formulaic recitation of the elements of a cause of

26

27 10 In so holding, the Court stated that the “no set of facts” language in Conley v. Gibson, 355 U.S.
28 41 (1957), that many courts had interpreted as imposing a lesser burden has “earned its
retirement” and is “best forgotten.” Id. at 1968.
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1 action will not do.” Id. at 1964-1965 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)) (on

2 motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a

3 factual allegation”). “Factual allegations must be enough to raise a right to relief above the

4 speculative level.” Id. at 1965 (citations omitted). A complaint should state the “specific time,

5 place and person” involved in the claim, as well as the specific activities in which the person

6 allegedly was involved. Id. at 1971 n.10; see also In Re Netflix Antitrust Litig., 506 F. Supp.

7 2d 308, 313-14 (N.D. Cal 2007).

8

Thus, Plaintiff was required to allege: the restaurants at which he had been subjected to

9 unlawful discrimination (or was deterred from visiting due to known barriers), the unlawful

10 architectural barriers he encountered at each restaurant prior to filing suit, an intent to return to

11 that restaurant, and the injury that occurred. Cf. Wilson v. PFS LLC, 2006 WL 3841517 (S.D.

12 Cal. Nov. 2, 2006) (denying motion to dismiss or for more definite statement where complaint

13 listed 37 areas of non-compliance, attached photographs and an “Accessibility Survey,” and

14 alleged details of plaintiff’s visit to restaurant). Although Plaintiff alleges he visited Pleasant

15 Hill and Pittsburg, he fails to state when he visited each restaurant. Without this information,

16 Defendant cannot even discern whether Plaintiff’s claims as to these two restaurants are barred

17 by statutes of limitation, a matter which Defendant must plead in its answer and affirmative

18 defenses to avoid waiver. See Pickern v. Holiday Quality Foods, 293 F. 3d at 1137 (“a

19 plaintiff has no cause of action under the ADA for an injury that occurred outside of the

20 limitations period.”).

21

Likewise, although Plaintiff vaguely identifies alleged barriers, he does not identify

22 which barriers he confronted at which restaurant. (See DE 1 ¶ 42). These are essential

23 elements of Plaintiff’s claim, which Bell Atlantic required Plaintiff to plead.

24

Plaintiff obviously cannot make the required factual allegations with respect to

25 restaurants that he has never visited. And “information or belief” allegations that “some or all”

26 of these BKLs may contain accessibility barriers cannot breathe life into his facially invalid

27 claims.

28

In Clark v. McDonald’s Corp., 213 F.R.D. 198 (D.N.J. 2003), the court dismissed a

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1 similar complaint against unidentified McDonald’s® restaurants. There the plaintiff also

2 “[did] not discriminate between the restaurants known to be in violation of the ADA from

3 those which are not, and which, among the restaurants known to be in violation, [did] not

4 discriminate between architectural barriers known to exist from those which [did] not,” thereby

5 leaving the defendant to guess which of its restaurants were alleged to violate the and how. Id.

6 at 234-35. The court explained that the upshot of this “pleading style” is that:

7

McDonald’s is simply left to guess as to which of its remaining. . . . restaurants

are alleged to violate the ADA and how so. Without information as to which of

8

its restaurants are at issue, McDonald’s can neither admit, nor in good faith

9

deny, the allegations of ADA violations.

Id. at 234.

10

11 The court accordingly ordered the plaintiffs to file an amended complaint identifying each

12 restaurant of which plaintiffs had actual notice of ADA violations, and the dates on which the

13 plaintiff visited each specific restaurant, so that McDonald’s could discern the availability of

14 applicable statute of limitations defenses.

15

Plaintiff here has failed to make the same basic factual allegations. For the same

16 reasons, Plaintiff’s Complaint should be dismissed for failure to state a claim under Rule

17 12(b)(6). Alternatively, Plaintiff should be ordered to provide a more definite statement.

18

D. The Court Should Decline to Hear, or, at Minimum, Stay Consideration of

Plaintiff’s Unruh and CDPA Claims 19

20

Plaintiff claims two bases for federal jurisdiction over his state law claims. First, he

21 asks the Court to exercise supplemental jurisdiction over his state law claims based upon the

22 federal question jurisdiction created by his Title III ADA claims. Second, he asserts diversity

23 jurisdiction.

24

As set forth below, diversity jurisdiction does not exist under the CAFA’s “local

25 controversy exception.” Consequently, the Court can exercise jurisdiction over Plaintiff’s state

26 law claims only through supplemental jurisdiction under 28 U.S.C. § 1367. A compelling

27 basis exists, however, for the Court to decline supplemental jurisdiction, because the state law

28 rule of decision is so unsettled that the Ninth Circuit has certified the question to the California

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1 Supreme Court. Even if the Court accepts supplemental jurisdiction over Plaintiff’s state law

2 claims, it should stay consideration of those claims pending a decision from the California

3 Supreme Court.

4

1. CAFA Diversity Jurisdiction Does Not Exist

5

Plaintiff alleges diversity jurisdiction under the Class Action Fairness Act (“CAFA”),

6 28 U.S.C. § 1332(d). CAFA generally creates diversity jurisdiction over multi-state class

7 actions involving state law claims, subject to a number of exceptions.

8

Section 1332(d)(4) of CAFA, commonly known as the “local controversy exception,”

9 applies to this case. This Section provides that a district court shall decline to exercise

10 jurisdiction over any class action in which: (1) more than two-thirds of the members of the

11 proposed plaintiff class are citizens of the State in which the action was filed; (2) the principal

12 injuries were incurred in the State in which the action was filed; (3) at least one defendant is a

13 defendant (i) from whom significant relief is sought, (ii) whose conduct forms a significant

14 basis for the claims asserted by the plaintiff class, and (iii) who is a citizen of the State in

15 which the action was filed; and (4) no other class action has been filed against the defendants

16 in the preceding three years asserting the same or similar claims. 28 U.S.C. § 1332(d)(4)(A); 17 Serrano v. 180 Connect, Inc., 478 F.R.D. 1018 (9th Cir. 2007); see Davis v. HSBC Bank of

18 Nevada, N.A., 2008 WL 4829880 (C.D. Cal. 2008) (declining jurisdiction based on local

19 controversy exception).

20

The Court should conclude, that most, if not all, of the class plaintiffs are California

21 residents based on Plaintiff’s allegation that the class consists of several thousand members

22 who are dispersed across the State of California. (DE 1 ¶ 14). See Mattera v. Clear Channel

23 Comm., Inc., 239 F.R.D. 70, 80 (S.D.N.Y. 2006) (concluding that most, if not all, of the

24 members of a class of employees of businesses located in New York City were New York

25 residents).

26

The second and fourth prerequisites under the exception are also satisfied. The injuries

27 of the putative class, which by definition occurred at California restaurants (DE 1 ¶ 13),

28 necessarily were “incurred” in California. And no disqualifying class actions have been filed

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17

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page25 of 32

1 against Burger King Corporation in the past three years. (Archer Dec. ¶ 12).

2

Thus, the only remaining question is whether any of the defendants are “significant”

3 defendants under the local controversy exception.11 In making this determination, the court

4 must include any absent party that is a necessary or indispensable party under Fed. R. Civ. P.

5 19. See Mattera v. Clear Channel Comm., Inc., 239 F.R.D. 70 (S.D.N.Y. 2006) (dismissing

6 putative class action against out-of-state corporation under local controversy exception to

7 CAFA where plaintiff failed to join New York corporation that operated affiliated radio

8 stations that would necessarily provide relief if plaintiffs were successful). If such a party is a

9 “significant” defendant and a resident of the state in which the action was filed, the local

10 controversy exception to CAFA applies and diversity jurisdiction is destroyed. Mattera, 239 11 F.R.D. at 81.12

12

An absent party is necessary or indispensable under Rule 19 if the court cannot accord

13 complete relief without that party, if the party’s rights will be prejudiced unless joined, or if the

14 existing parties risk exposure to multiple or inconsistent obligations. Fed. R. Civ. P. 19(a); 15 United States v. Bowen, 172 F.2d 682, 688 (9th Cir. 1999). If any of those factors applies, the

16 absent party must be joined. Id. If the absent party cannot be joined without destroying

17 diversity, the court must then determine whether the absent party is an indispensible party

18 without whom the action cannot proceed. Fed. R. Civ. P. 19(b).

19

In the context of Title III of the ADA, the crucial question with respect to whether an

20 absent party is indispensable is which party exercises sufficient control over the premises to

21 accord meaningful relief to the plaintiff. Here, the franchisees that operate the individual

22 restaurants are the parties with the right (and obligation) to remove the access barriers of which

23 / / /

24

25

26

11 The omitted defendant operators of the Pittsburgh and Pleasant Hill Restaurants are California residents as required by the local controversy exception. Mattera, 239 F.R.D. at 80.

27 12 The usual result of a failure to join an indispensable party whose presence destroys diversity
28 jurisdiction is dismissal of the case. Because Plaintiff also asserts federal question jurisdiction,

the Court need only strike Plaintiff’s diversity allegation.

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18

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page26 of 32

1 Plaintiff complains.13 Likewise, because they are ultimately responsible for making all

2 modifications and for paying all damages and fees that Plaintiff seeks, their rights clearly will

3 be prejudiced. See, e.g., Frotton v. Barkan, 219 F.R.D. 31, 32 (D. Mass. 2003) (requiring

4 tenant businesses to be joined as parties in ADA suit against shopping center landlord because

5 they “surely have an interest in the question of whether the barriers violate the ADA, and if so,

6 whether remedial measures are readily achievable”); Roberts v. Royal Atlantic Corp., 542 F.3d

7 363, 378-79 (2d Cir. 2008) (remanding case to district court to determine if tenants were

8 indispensable parties based on Department of Justice Americans with Disabilities Act

9 Handbook, § 6.02 Questions and Answers statement that, as between landlords and tenants, the

10 duty to remove barriers depends on who has legal authority to make alterations, “which is

11 generally determined by the contractual agreement”); Thompson v. Jiffy Lube Internat’l, Inc.,

12 505 F. Supp. 2d 907, 918-22 (D. Kan. 2007) (granting in part motion to dismiss CAFA class

13 action against nationwide franchisor where franchisee not subject to long-arm jurisdiction was 14 indispensable party under Rule 19); Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir.

15 2000) (concluding that landlord was necessary party to lawsuit against tenant where landlord

16 had authority over common areas). Thus, the tenant operators of the restaurants are

17 “significant defendants.” Consequently, this case falls under the “local controversy 18 exception.” CAFA diversity jurisdiction therefore does not exist.14

19

2. Even if the Court Does Not Dismiss Plaintiff’s Federal Claim, It

Should Decline Supplemental Jurisdiction Over State Law Claims 20

21

Absent diversity jurisdiction, this Court’s only potential authority over Plaintiff’s state

22 law claims is discretionary supplemental jurisdiction pursuant to 28 U.S.C. § 1367. The Court

23

24 13 See Archer Dec. ¶¶ 7, 11, Ex. C, F, stating that franchisees are responsible, at their own cost, to maintain and operate the property and to comply with all applicable laws, including

25 specifically the ADA. Moreover, Burger King Corporation is a mere sublessor who does not

26

even own the property on which the Pleasant Hill and Pittsburg restaurants stand. (Archer Dec. ¶ 6).

27 14Plaintiff’s failure to join the franchisees also constitutes a violation of Rule 19’s requirement
28 that a plaintiff identify any person who is a necessary party but has not been joined. Fed. R.
Civ. P. 19(c).
__________________________________________________________________________________
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19

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page27 of 32

1 may decline to exercise jurisdiction over such claims if it dismisses the federal claims for non2 jurisdictional reasons,15 if the state law claims raise “a novel or complex issue of State law,” or

3 if “there are other compelling reasons to decline jurisdiction.” 28 U.S.C. § 1367(c)(1), (3), (4);

4 Executive Software N. Am., Inc. v. United States District Court, 24 F.3d 1545, 1556 (9th Cir.

5 1994).

6

This Court should decline to exercise supplemental jurisdiction over Plaintiff’s Unruh

7 and CDPA claims because they raise complex, unsettled questions of state law currently being

8 considered by the California Supreme Court, which, as a matter of comity, should be permitted

9 to decide those questions in the first instance.

10

In Munson v. Del Taco, Inc., 522 F.3d 997 (9th Cir. 2008), the Ninth Circuit Court of

11 Appeals certified to the California Supreme Court a clear, long-standing, and heatedly

12 contested, split among the courts as to whether intentional discrimination is necessary to state a

13 claim for damages under Unruh, especially (but not solely) where the claim is based on an 14 ADA violation.16 The California Supreme Court has accepted the certified question for

15 resolution. (Exhibit D).

16

A federal court should dismiss state law claims when a split in authority exists in the

17 state courts. Oliver v. GMRI, Inc., 2007 WL 4144995, at *3 (S.D. Cal. 2007); Edmundson &

18 Gallagher v. Album Towers Tenants Ass’n, 48 F.3d 1260 (D.D.C. 1995). The federal courts in

19 this circuit repeatedly have declined to exercise supplemental jurisdiction over such claims.

20 See Wilson v. PFS, LLC, 493 F.Supp.2d 1122 (S.D. Cal. 2007); Oliver v. Long Drug Stores

21 Cal., Inc., 2008 WL 544399 (S.D. Cal. 2008); Cross v. Pacific Coast Plaza Investments, L.P.,

22 2007 WL 951772 (S.D. Cal. 2007); Pinnock v. Java Depot, Inc., 2007 WL 2462106 (S.D. Cal.

23 2007); Org. for the Advancement of minorities with Disabilities v. Brick Oven Restaurants, 406

24 F.Supp.2d 1132 (S.D. Cal. 2005). The only reported decision to have considered the issue

25

26

15 If the Court dismisses the federal claims for lack of standing, an issue of subject matter jurisdiction, it must dismiss corresponding supplemental claims. Herman Family Revocable Trust

27 v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001).

28 16 For details, compare Lentini v. Cal. Ctr. For the Arts, 370 F.3d 837, 846-47 (9th Cir. 2004) with Gunther v. Lin, 144 Cal. App. 4th 223, 252-57, 50 Cal. Rptr. 3d 317 (Ca. App. 2006).
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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page28 of 32

1 following the California Supreme Court’s acceptance of the certified question in Munson

2 concluded that dismissal of the state claims was the only proper course of action. Oliver v.

3 KFC Corp., 2008 WL 2756605 (S.D. Cal. 2008). This Court too should decline supplemental

4 jurisdiction, as a matter of comity between state and federal courts.

5

3. Even if the Court Accepts Supplemental Jurisdiction, it Nonetheless

Should Stay Consideration of Plaintiff’s State Law Claims 6

7

“The power to stay proceedings is incidental to the power inherent in every court to

8 control the disposition of the causes on its docket.” Landis v. N. Am. Co., 299 U.S. 248, 254

9 (1936). Even if the Court elects to exercise supplemental jurisdiction over Plaintiff’s state law

10 claims, the Court should stay further proceedings on those claims pending the California

11 Supreme Court’s ruling in Munson, just as the Ninth Circuit did in Munson after certifying the

12 state law questions to the state Supreme Court. 522 F.3d at 1003. See Arizonans for Official

13 English v. Arizona, 520 U.S. 43, 75-80 (1997) (federal courts should stay or certify

14 consideration of novel, unsettled questions of state law).

15

E. Plaintiff’s State Law Claims Should Be Dismissed for Failure to State a

Cause of Action Against Defendants

16

1. Plaintiff Cannot State a Cause of Action Against Burger King

17

Corporation Pursuant to Unruh and CDPA Merely as a Result of its

18

Status as a Sublessor or Franchisor

19

Plaintiff improperly attempts to impose liability on Burger King Corporation merely as

20 a result of its status as a franchisor, lessor or sublessor. Unlike the ADA, which imposes strict

21 liability in certain circumstances, the California Legislature did not create status based liability

22 categories when it enacted Unruh and the CDPA. The interplay of the ADA and Unruh and the

23 CDPA demonstrates that the California Legislature never intended to impose strict liability.

24 Instead, California’s statutory disability scheme looks solely at the defendant’s actions.

25

The ADA provides that “[n]o individual shall be discriminated against on the basis of

26 disability . . . by any person who owns, leases (or leases to), or operates a place of public

27 accommodation.” 42 U.S.C. § 12182(a)(emphasis added). The ADA thus creates strict

28 liability for injunctive relief against owners, operators, lessors, and lessees and leaves it to

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page29 of 32

1 those parties to decide among themselves who caused the violation. Unruh and the CDPA, on

2 the other hand, specifically limit liability based on the actions of a party. For example, Unruh

3 limits liability to “[w]hoever denies, aids or incites a denial, or makes any discrimination . . . .”

4 Further, “to establish a case under the Unruh Act, [a plaintiff] must plead and prove intentional

5 discrimination in public accommodations in violations of the terms of the Act.” Harris v.

6 Capital Growth Investors XIV, 52 Cal. 3d 1142, 1175 (Cal. 1991)(emphasis added). Cal. Civ.

7 Code § 52(a). The CDPA also limits liability based on a party’s actions: “Any person or

8 persons, firm or corporation who denies or interferes . . . .” Cal. Civ. Code § 54.3(a).

9

After the ADA was passed by Congress, the California Legislature amended Section 51

10 of the California Civil Code to make a violation of the ADA a violation of Section 51. Cal.

11 Civ. Code § 51(f). The California Legislature’s incorporation of the ADA into California’s

12 statutory disability scheme is important in two respects as it relates to this matter. Notably, the

13 Legislature did not amend the language of either Sections 52(a) or 54(a) to include the “status”

14 based liability categories of owners, lessors, lessees, or operators found in the ADA. Instead,

15 the Legislature retained the language of Unruh and the CDPA that limit liability based on the

16 actions of a party -- namely that the defendant intentionally commit discrimination in the case

17 of Unruh and that it at least “den[y]” or “interfere[ ]” with access in the case of CDPA.

18

“‘It is a well recognized principle of statutory construction that when the Legislature

19 has carefully employed a term in one place and has excluded it in another, it should not be

20 implied where excluded.’” Brown v. Kelly Broadcasting Co., 49 Cal. 3d 711, 725 (Cal. 1989)

21 (quoting Ford Motor Co. v. County of Tulare, 145 Cal. App. 688, 691 (Cal. Ct. App. 1983));

22 see also Gunther v. Lin, 144 Cal. App. 4th 223, 239 (Cal. Ct. App. 2006) (court should

23 consider how a statute fits within a general statutory scheme to divine its meaning); Jurcoane

24 v. Superior Ct., 93 Cal. App. 4th 886, 894 (Cal. Ct. App. 2001) (courts must “presume the

25 Legislature intended everything in a statutory scheme, and . . . should not read statutes to omit

26 expressed language or include omitted language.”). As the California Supreme Court has held:

27 “we are aware of no authority that supports the notion of legislation by accident.” In re

28 Christian S., 7 Cal. 4th 768, 776 (Cal. 1994).

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22

Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page30 of 32

1

“If the California Legislature had intended [owners, lessors, lessees, and operators to be

2 liable under Unruh or the CDPA based on their status], the Legislature could have used the

3 same clear language as” the ADA. Brown, 49 Cal. 3d at 725. It did not. Clearly, the

4 California Legislature did not intend to make Defendant Burger King Corporation liable under

5 either Unruh or the CDPA merely because of its status as a franchisor,17 or as a lessor/sublessor

6 where the lessee/sublessee operates the facility and has contractually accepted full

7 responsibility for the facility’s condition, including the obligation to comply with accessibility

8 laws. Accordingly, the Unruh and claims should be dismissed.

9

2. Plaintiff Cannot Adequately Allege Discriminatory Intent as

Required to State an Unruh Cause of Action against Burger King

10

Corporation

11 The California Legislature’s incorporation of the ADA into its statutory disability
12 scheme also is important as it relates to this matter for a second reason. In amending Section
13 51, the California Legislature did not change the language of Section 52, which the California
14 Supreme Court has interpreted to require discriminatory intent. Harris, 52 Cal. 3d at 1175;
15 Gunther, 144 Cal. App. 4th at 227. Also, more recently, Governor Schwartzenegger signed
16 Senate Bill 1608, which creates the “Construction-Related Accessibility Standards Compliance
17 Act (the “Compliance Act”) and which will be found in the California Civil Code at § 55.51 et
18 seq. The Compliance Act is effective January 1, 2009 and includes numerous provisions
19 applicable to disability access claims under Unruh and the CDPA. Significantly, Section
20 55.53(f) of the Compliance Act unambiguously presumes that a party still must “plead and
21 prove” discriminatory intent to state an Unruh cause of action: “A property owner’s or tenant’s
22 election not to hire a [certified access specialist] shall not be admissible to prove that person’s
23

24 17 Significantly, courts have repeatedly held that a franchisor (who does not own or lease the
25 subject accommodation) does not “operate” such facility and therefore is not even liable under 26 the broader “strict liability” language of the ADA. See Neff v. Am. Dairy Queen Corp. 58 F.3d
1063, 1067 (5th Cir. 1995); U.S. v. Days Inns of Am., Inc., 1998 WL 461203 (E.D. Cal. Jan. 12, 27 1998); U.S. v. Days Inns of Am., Inc., 22 F. Supp. 2d 612 (E.D. Ky. 1998). This, too militates in
favor of a finding that Plaintiff has not stated a valid claim against Burger King Corporation 28 under Unruh or the CDPA.

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page31 of 32

1 lack of intent to comply with the law.” Cal. Civ. Code § 55.53(f)(emphasis added).

2

The Complaint, however, fails to adequately allege that Burger King Corporation

3 intended to discriminate against Plaintiff. The reason is simple. Plaintiff is unable to do so.

4 Paragraph 44 of the complaint conclusorily alleges: “On information and belief, Burger King

5 has engaged in intentional discrimination, including but is [sic] not limited to: designing,

6 constructing, implementing and maintaining policies, practices, procedures and barriers that

7 discriminate . . . .” (DE 1 ¶ 44) (emphasis added). By contrast, the documents incorporated

8 into Plaintiff’s Complaint by reference demonstrate that Burger King Corporation requires its

9 franchisees to “promptly observe and comply with all present and future laws” and requires

10 that all “[a]lterations and/or additions to the Premises if required [must comply with] the

11 American Disabilities Act of 1990.” (Archer Dec. Ex. C, F). This Court should not accept as

12 true the conclusory, factually unwarranted allegations of Plaintiff’s Complaint. Bell Atlantic,

13 127 S. Ct. at 1964; Jackson v. Mills Corp., 2007 WL 2705215, at *1 (N.D. Cal. Sept. 14,

14 2007).

15

“[A] cause of action in which a plaintiff seeks damages for disability discrimination

16 under Section 51 based on a structural or architectural barrier requires a showing that the

17 barrier existed due to an intentional violation of an applicable law relating to disability access

18 standards.” Coronado v. Cobblestowne Vill. Cmty. Rentals, 163 Cal. App. 4th 831, 841 (Cal.

19 Ct. App. 2008). Plaintiff, however, fails to allege any facts that Burger King Corporation even

20 had knowledge of the unidentified barriers at the unidentified restaurants, much less that it

21 intentionally caused the unspecified barriers.

22

Clearly, Plaintiff’s Unruh claim must be dismissed given that he is unable to “plead and

23 prove intentional discrimination in public accommodations in violations of the terms of the

24 Act.” Harris, 52 Cal. 3d at 1175.

25 IV. CONCLUSION

26

For all of the foregoing reasons, this Court should: (i) dismiss the Complaint for lack of

27 standing as to all unidentified restaurants; (ii) dismiss or strike Plaintiff’s class allegations

28 under Rule 23; (iii) dismiss Plaintiff’s claims for failure to state a claim or order a more

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Case3:08-cv-04262-WHA Document29 Filed11/26/08 Page32 of 32

1 definite statement, including identification of each restaurant Plaintiff visited, when he visited

2 such restaurant(s), and the barriers encountered and/or known to exist at such restaurant(s); (iv)

3 decline to accept supplemental jurisdiction over Plaintiff’s state law claims, or stay such valid

4 claims; and/or (v) dismiss Plaintiff’s state law claims under for failure to state a claim.

5

Dated: November 26, 2008

6

7

8

9

10

11

12

GENOVESE JOBLOVE & BATTISTA, P.A. Michael D. Joblove (pro hac vice) Jonathan E. Perlman (pro hac vice) 100 SE Second Street, 44th Floor Miami, FL 33131
GLYNN & FINLEY, LLP CLEMENT L. GLYNN Adam D. Friedenberg One Walnut Creek Center 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596

13

By

/s/ Adam Friedenberg

14

Adam Friedenberg

Attorneys for Defendants Burger King

15

Corporation and Burger King Holdings, Inc.

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case3:08-cv-04262-WHA Document42 Filed01/08/09 Page1 of 44

1 Bill Lann Lee – CA State Bar No. 108452 Julia Campins – CA State Bar No. 238023
2 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800
3 Oakland, CA 94612 Telephone: (510) 839-6824
4 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com
5 Timothy P. Fox - CA State Bar No. 157750
6 Amy Robertson (pro hac vice) FOX & ROBERTSON, P.C.
7 3801 E. Florida Ave., Suite 400 Denver, CO 80210
8 Telephone: (303) 595-9700 Facsimile: (303) 595-9705
9 Email: tfox@foxrob.com

10 Attorneys for Plaintiff

11 Additional counsel on signature page

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14 MIGUEL CASTANEDA on behalf of himself ) Case No. C 08-4262 WHA

and others similarly situated,

)

15

) PLAINTIFF’S BRIEF IN OPPOSITION

Plaintiff,

) TO DEFENDANT BURGER KING

16

) CORPORATION’S MOTION TO

vs.

) DISMISS

17

)

BURGER KING CORPORATION,

) Hearing Date: February 12, 2009

18

) Time:

8:00 a.m.

Defendant.

) Location:

19th Floor, Courtroom 9

19

)

)

20

21

22

23

24

25

26

27

28

Case3:08-cv-04262-WHA Document42 Filed01/08/09 Page2 of 44

1

TABLE OF CONTENTS

2 ISSUES TO BE DECIDED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5

A. Facts Alleged in the Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

6

B. Public Documents and the Limited Discovery To Date

Support The Allegations In the Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

7

PROCEDURAL STATUS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

9

I. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

10

II. It Would Be Improper to Dismiss Claims Relating to Restaurants

11

Mr. Castaneda Has Not Visited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

12

A. Rule 23 – Not Article III – Will Dictate the Scope of Class Claims. . . . . . . . . . . 9

13
14 III.
15
16
17
18

B. None of Defendant’s Cases Support Its Effort to Restrict the Standing of Any Eventual Class. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Plaintiff’s Class Allegations Should Not Be Stricken. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. It Is Premature to Assess Class Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Plaintiff’s Class Allegations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. The Class That Plaintiff Alleges is Very Similar to Many Certified Classes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

19

D. Defendant’s Cases Do Not Support Its Request to Strike Class Allegations.. . . . 15

20

1. Defendant Ignores All Recent Precedent Certifying Classes

of Individuals with Disabilities Challenging Common Barriers. . . . . . . . 15

21

2. Defendant Construes the Concept of “Same

22

Legal Injury” Too Narrowly.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

23 IV. Plaintiff’s Complaint Satisfies Rule 8; No More Definite Statement is Required. . . . . . 19

24 V. Jurisdiction is Appropriate Over Plaintiff’s State Law Claims. . . . . . . . . . . . . . . . . . . . . 20

25

A. This Court Has Jurisdiction Under CAFA over Plaintiff’s State Law Claims. . . 20

26

1. Another Class Action Has Been Filed within the Past Three Years. . . . . 21

27

2. No Significant Defendant is a Citizen of California. . . . . . . . . . . . . . . . . 22

28

Case No. C 08-4262 WHA

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Case3:08-cv-04262-WHA Document42 Filed01/08/09 Page3 of 44

1

B. This Court Should Exercise Supplemental Jurisdiction over

Plaintiff’s State Law Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2

1. Declining Supplemental Jurisdiction Would Lead to Substantial

3

Duplication of Judicial Effort and Waste of Resources.. . . . . . . . . . . . . . 25

4
5 VI.
6
7
8

2. The Question of State Law on Which Defendant Relies Will Soon Be Resolved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Plaintiff Has Properly Alleged Claims Under Unruh and the CDPA. . . . . . . . . . . . . . . . 28
A. Plaintiff’s State Law Allegations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
B. Plaintiff Has Alleged Both Independent and ADA-Based Violations of Unruh and the CDPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

9

C. Plaintiff Has Properly Pleaded Discriminatory Intent. . . . . . . . . . . . . . . . . . . . . . 32

10 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 08-4262 WHA

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1

TABLE OF AUTHORITIES

2 CASES

3 Access 4 All, Inc. v. Atlantic Hotel Condominium Ass’n, Inc.,

No. 04-61740, 2005 WL 5643878, (S.D. Fla. Nov. 23, 2005). . . . . . . . . . . . . . . . . . . . . 23

4

Access Now, Inc. v. AHM CGH, Inc.,

5

No. 983004-CIV-GOLD-SIMONTO, 2000 WL 1809979 (S.D. Fla. 2000) .. . . . . . . 14, 16

6 Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd.,

197 F.R.D. 522 (S.D. Fla. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

7

Access Now, Inc. v. Claire’s Stores, Inc.,

8

No. 00-14017-CIV, 2002 WL 1162422 (S.D. Fla. May 7, 2002) . . . . . . . . . . . . . 14-15, 16

9 Access Now, Inc. v. Macy’s East, Inc.,

No. 99-9088-CIV-JORDAN (S.D. Fla. Feb 15, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 16

10

Access Now, Inc. v. May Department Stores Co.,

11

No. 00-148-CIV-MORENO (S.D. Fla. Oct. 6, 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

12 Access Now, Inc. v. Walt Disney World Co.,

211 F.R.D. 452 (M.D. Fla. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

13

Amchem Products, Inc. v. Windsor,

14

521 U.S. 591 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

15 American Council of the Blind v. Astrue,

No. 05-04696 WHA, 2008 WL 4279674 (N.D. Cal. Sept. 11, 2008). . . . . . . . . . . . . 18, 19

16

Armstrong v. Davis,

17

275 F.3d 849 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

18 Arnold v. United Artists Theatre Circuit, Inc.,

158 F.R.D. 439 (N.D. Cal 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14, 16, 17, 19

19

Association for Disabled Americans, Inc. v. Amoco Oil Co.,

20

211 F.R.D. 457 (S.D. Fla. 2002) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

21 Association for Disabled Americans, Inc. v. Motiva Enterprises, LLC.,

No. 99-0580-CV-UNGARO BENAGES (S.D. Fla. Oct. 18, 1999). . . . . . . . . . . . . . . . . 16

22

Baas v. Dollar Tree Stores, Inc.,

23

No. C 07-03108 JSW, 2007 WL 2462150 (N.D.Cal. Aug. 29, 2007) . . . . . . . . . . . . . . . 12

24 Bank of America National Trust & Savings Ass’n v. Hotel Rittenhouse Associates,

844 F.2d 1050 (3d Cir. 1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

25

Beauperthuy v. 24 Hour Fitness USA, Inc.,

26

No. 06-0715 S C, 2006 WL 3422198 (N.D.Cal. Nov. 28, 2006). . . . . . . . . . . . . . . . . . . 12

27 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 19
28

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1 Borough of West Mifflin v. Lancaster,

45 F.3d 780 (3rd Cir.1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2

Brook v. UnitedHealth Group Inc.,

3

No. 06-CV-12954 (GBD), 2007 WL 2827808 (S.D.N.Y. Sept. 27, 2007).. . . . . . . . . . . 22

4 Brown v. Kelly Broadcasting Co.,

771 P.2d 406 (Cal. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

5

Carnegie-Mellon University v. Cohill,

6

484 U.S. 343 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25-26

7 Caruso v. Allstate Insurance Co.,

469 F. Supp. 2d 364 (E.D. La. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

8

Celano v. Marriott International Inc.,

9

No. 05-4004-PJH, 2008 WL 239306 (N.D. Cal. Jan. 28, 2008). . . . . . . . . . . . . . . . . . . . 23

10 Clark v. Burger King Corp.,

255 F. Supp. 2d 334 (D.N.J. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

11

Clark v. McDonald’s Corp.,

12

213 F.R.D. 198, 226 (D.N.J. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

13 Colon v. League of United Latin American Citizens,

91 F.3d 140 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

14

Colorado Cross Disability Coalition v. Taco Bell Corp.,

15

184 F.R.D. 354 (D. Colo. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

16 Corrie v. Caterpillar Inc.,

503 F.3d 974 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

17

Disability Rights Action Committee v. Las Vegas Events, Inc.,

18

375 F.3d 861 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

19 Donald v. Café Royale, Inc.,

266 Cal.Rptr. 804 (Cal. App. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32

20

Doran v. 7-Eleven, Inc.,

21

524 F.3d 1034 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

22 Dukes v. Wal-Mart, Inc.,

509 F.3d 1168 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

23

Equal Employment Opportunity Commission v. Lilja Industrial Construction Corp.,

24

No. C-92-1492 MHP, 1992 WL 532168 (N.D. Cal. Dec. 16, 1992). . . . . . . . . . . . . . . . . 24

25 Executive Software North America, Inc. v. United States District Court,

24 F.3d 1545 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

26

Greenburg v. Life Insurance Co. of North America,

27

No. 08-03240-JW, 2008 WL 5396387 (N.D. Cal. Dec. 18, 2008). . . . . . . . . . . . . . . . . . . 8

28

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1 Gunther v. Lin,

50 Cal.Rptr.3d 317 (Cal. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32-33

2

Hannah v. West Gateway Regional Recreation Park & District,

3

No. CIV S-06-571 LKK/DAD, 2007 WL 2795769 (E.D. Cal. Sept. 25, 2007). . . . . 26-27

4 Haworth v. Haddock,

NO. 1:06-CV-1713-OWW-DLB, 2007 WL 3239564 (E.D. Cal. Nov. 2, 2007).. . . . . . . 32

5

Holley v. Crank,

6

400 F.3d 667 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7 Hubbard v. Rite Aid Corp.,

433 F. Supp. 2d 1150 (S.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

8

Imagineering, Inc. v. Kiewit Pacific Co.,

9

976 F.2d 1303 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

10 In re County of Orange,

262 F.3d 1014 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

11

Isbister v. Boys’ Club of Santa Cruz, Inc.,

12

707 P.2d 212 (Cal. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

13 Johnson v. Barlow,

No. Civ S-06-01150 WBS GGH, 2007 WL 1723617 (E.D. Cal. June 11, 2007). . . . . . . 26

14

Kakani v. Oracle Corp.,

15

No. 06-06493 WHA, 2007 WL 1793774 (N.D. Cal. June 19, 2007). . . . . . . . . . . . . . . . 18

16 Kakani v. Oracle Corp., Order Granting Preliminary Approval of Settlement

No. 06-06493 WHA (N.D. Cal. Aug. 2, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

17

Lewis v. Casey,

18

518 U.S. 343, 357 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

19 LiveOps, Inc. v. Teleo, Inc.,

No. C05-03773 MJJ, 2006 WL 83058 (N.D. Cal. Jan. 9, 2006) . . . . . . . . . . . . . . . . . . . 26

20

Lucas v. Kmart Corp.,

21

No. 99-cv-01923-JLK, 2005 WL 1648182 (D. Colo. July 13, 2005). . . . . . . . . . . . passim

22 Lucas v. Kmart Corp.,

No. 99-cv-01923-JLK, 2006 WL 722163 (D. Colo. March 22, 2006) . . . . . . . . . . . . . . . 14

23

Moeller v. Taco Bell Corp.,

24

220 F.R.D. 604 (N.D. Cal. 2004) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

25 Molski v. M.J. Cable, Inc.,

481 F.3d 724 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

26

Moreno v. G & M Oil Co.,

27

88 F. Supp. 2d 1116 (C.D. Cal. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

28

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1 Morgan v. American Stores Co. LLC,

No. 06 CV 2437 JM (RBB), 2007 WL 1971945 (S.D. Cal. June 29, 2007). . . . . . . . . . 31

2

Moyer v. Walt Disney World Co.,

3

146 F. Supp. 2d 1249 (M.D. Fla. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4 Munson v. Del Taco, Inc.,

522 F.3d 997 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 32

5

National Federation of the Blind v. Target Corp.,

6

452 F. Supp. 2d 946 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

7 Parra v. Bashas’, Inc.,

536 F.3d 975 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

8

Pickern v. Holiday Quality Foods, Inc.,

9

293 F.3d 1133 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19

10 Pinnock v. Solana Beach Do It Yourself Dog Wash, Inc.,

No. 06cv1816 BTM (JMA), 2007 WL 1989635 (S.D. Cal. July 3, 2007) . . . . . . . . . . . . 27

11

Procurador de Personas con Impedimentos v. Municipality of San Juan,

12

541 F. Supp. 2d 468 (D. Puerto Rico 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

13 Satey v. JPMorgan Chase & Co.,

521 F.3d 1087 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

14

Serrano v. 180 Connect, Inc.,

15

478 F.3d 1018 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

16 Skaff v. Meridien North American Beverly Hills, LLC,

506 F.3d 832 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19-20

17

Staton v. Boeing Co.,

18

327 F.3d 938 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

19 Summerhill v. Terminix, Inc.,

No. 08-CV-00659 GTE, 2008 WL 4809448 (E.D. Ark., Oct. 30, 2008).. . . . . . . . . . . . . 22

20

Tyler v. Kansas Lottery,

21

14 F. Supp. 2d 1220 (D. Kan. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

22 United States v. Bowen,

172 F.3d 682 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

23

Voytek v. University of California,

24

No. 92-3465, 1994 WL 478805 (N.D. Cal. Aug. 25, 1994). . . . . . . . . . . . . . . . . . . . . . . 18

25 Williams v. Gerber Prods. Co.,

--- F.3d ---, 2008 WL 5273731 (9th Cir. Dec. 22, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 9

26

Wilson v. Haria and Gogri Corp.,

27

479 F. Supp. 2d 1127 (E.D. Cal. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

28

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1 Yates v. Belli Deli, No. C07-01405 WHA, 2007 WL 2318923 (N.D. Cal. Aug. 13, 2007) . . . . . . . . . . . . . . 27
2 CONSTITUTION AND STATUTES
3 Article III of the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 17, 25
4 Title III of the Americans with Disabilities Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
5 42 U.S.C. § 12181. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6 42 U.S.C. § 12181(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7 42 U.S.C. § 12182(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4, 23, 30
8 42 U.S.C. § 12182(b)(2)(A)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9 42 U.S.C. § 12183(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10 42 U.S.C. § 12188(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
11 Class Action Fairness Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
12 28 U.S.C. § 1332(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13 28 U.S.C. § 1332(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14 28 U.S.C. § 1332(d)(4)(A)(i)(II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
15 28 U.S.C. § 1332(d)(4)(A)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
16 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
17 28 U.S.C. § 1367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24
18 28 U.S.C. § 1367(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 27
19 Unruh Civil Rights Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
20 Cal. Civ. Code § 51 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
21 Cal. Civ. Code § 51(f) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29, 30
22 Cal. Civ. Code § 52(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
23 California Disabled Persons Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
24 Cal. Civ. Code § 54, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
25 Cal. Civ. Code § 54.1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29, 30
26
27
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1 Construction-Related Accessibility Standards Compliance Act

2

Cal. Civ. Code § 55.53(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

3

Cal. Civ. Code § 55.54(o). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

4 RULES

5 Fed. R. Civ. P. 8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 20

6 Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

8 Fed. R. Civ. P. 12(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

9 Fed. R. Civ. P. 12(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

10 Fed. R. Civ. P. 19.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

11 Fed. R. Civ. P. 19(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

12 Fed. R. Civ. P. 19(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

13 Fed. R. Civ. P. 19(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

14 Fed. R. Civ. P. 23.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

15 Fed. R. Civ. P. 23(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 17

16 Fed. R. Civ. P. 23(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 17

17 Fed. R. Civ. P. 23(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 Fed. R. Civ. P. 23(d)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

19 LEGISLATIVE HISTORY

20 California Assembly Committee on Judiciary report on AB 1077 (Jan. 22, 1992). . . . . . . . . . . . 30

21 California Senate Committee on Judiciary report on AB 1077 (June 9, 1992). . . . . . . . . . . . . . 30

22 PLEADINGS

23 Burger King Corp. v. Bru Corp., Complaint for Injunctive Relief and Damages,

No. 07-21316 (S.D.Fla. May 22, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

24

Burger King Corp. v. Rudzewicz, Brief for Appellant,

25

No. 83-2097, 1984 WL 565536 (Nov. 15, 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

26 Burger King Corp. v. Shams, Amended Complaint for Specific Performance and Damages No. 06-20870 (S.D. Fla. Apr. 25, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
27

28

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1 Day v. Republic Foods, Inc., Agreement Between Patricia Day, The Disability Rights

Council of Greater Washington, and Burger King Corporation,

2

No. 95-1317CV (D.D.C.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3 Disability Advocates and Counseling Group, Inc. v. Burger King Corp., Complaint - Class Action, 06-20716 (S.D. Fla. filed March 22, 2006).. . . . . . . . . . . 21-22
4 OTHER AUTHORITIES
5 1 Alba Conte and Herbert Newberg, Newberg on Class Actions § 2:7 (4th Ed., updated 2008). . 9
6 Docket, Munson v. Del Taco, Inc., No. S162828 (Cal.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

ISSUES TO BE DECIDED

2

1. Whether it is appropriate, before class discovery or a motion for class

3 certification, to strike or dismiss Plaintiff’s class allegations, including allegations that Plaintiff

4 shares common issues of law and fact with individuals who have encountered similar barriers in

5 restaurants in Defendant’s chain that Plaintiff has not patronized.

6

2. Whether Plaintiff’s Complaint satisfies the requirements of Rule 8 of the Federal

7 Rules of Civil Procedure.

8

3. Whether this Court has jurisdiction over Plaintiff’s state law claims under the

9 Class Action Fairness Act (“CAFA”).

10

4. Whether it is appropriate for this Court to exercise supplemental jurisdiction over

11 Plaintiff’s state law claims.

12

5. Whether Plaintiff has properly alleged claims under California’s Unruh Civil

13 Rights Act and Disabled Persons Act.

14

INTRODUCTION

15

Plaintiff Miguel Castaneda -- a Burger King customer who uses a wheelchair -- brings

16 this putative class action to challenge barriers to wheelchair access at 92 Burger King restaurants

17 in California that are leased by Defendant Burger King Corporation (“BKC”). Plaintiff’s

18 Complaint describes the barriers he has encountered at two of these restaurants and alleges --

19 with great specificity -- that through its contracts with franchisees and other means, Defendant

20 exercises considerable control over the design and operation of these and other BKC-leased

21 (“BKL”) restaurants. Plaintiff brings this case as a class action under Title III of the Americans

22 with Disabilities Act (“Title III” or “ADA”) and California state civil rights law, with the goal of

23 remedying the common barriers in all 92 BKL restaurants.

24

The class Plaintiff will seek to certify will be very similar to a number of certified classes

25 challenging wheelchair access barriers in chains of related public accommodations under Title III

26 and California law. Such classes provide enormous efficiencies both in litigation and

27 remediation, permitting the barriers to be solved at the headquarters level with policy changes

28 that help ensure they will not recur.

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1

Before class discovery has gotten underway and in the absence of a motion for class

2 certification, Defendant has filed a kitchen-sink motion to dismiss, arguing that Plaintiff lacks

3 standing to address the restaurants he has not visited, that his class action allegations should be

4 stricken, that he should be ordered to file a more detailed complaint, that the Court lacks

5 jurisdiction over Plaintiff’s state law claims, and that Plaintiff has failed to state a claim under

6 two state statutes.

7

Defendant provides no grounds, however, to distinguish this case from the many others in

8 which a handful of plaintiffs have represented a class of wheelchair-users addressing common

9 barriers at related facilities, including some that the named plaintiffs have not patronized.

10 Defendant cannot point to a single case that does what it is asking the Court to do here: dismiss

11 those facilities the named plaintiff has not visited before he has the chance to demonstrate that

12 the class -- defined to include customers of those facilities -- meets the requirements of Rule 23

13 of the Federal Rules of Civil Procedure.

14

Defendant’s fundamental error is its contention that the scope of this case is determined

15 by the standing of the named plaintiff, rather than the standing of the class as a whole. To the

16 contrary, it is settled class action law that once a class is certified, the scope of the case is based

17 on the standing of the class as a whole. Whether the class in this case will be certified depends

18 on whether it meets the requirements of Rule 23, a question that is not yet properly before this

19 Court.

20

Defendant’s other arguments also fail. Defendant relies on an exception to the Class

21 Action Fairness Act (“CAFA”) to argue that the Court lacks jurisdiction over Plaintiff’s state law

22 claims. This exception does not apply, however, where a similar class action has been filed

23 against a defendant within the previous three years. Defendant incorrectly stated that no such

24 case had been filed. In fact, less than three years ago, BKC was named as a defendant in a class

25 action asserting claims virtually identical to those at issue here, thereby vitiating its reliance on

26 the CAFA exception. In any event, supplemental jurisdiction of Plaintiff’s state law claims is

27 appropriate both to avoid mammoth duplication of effort and because the question of state law on

28

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1 which Defendant relies to contest such jurisdiction will soon be resolved by the California

2 Supreme Court.

3

Finally, Plaintiff has properly alleged state law claims both because Defendant concedes

4 that lessors are liable under Title III, which is a predicate for liability under state law, and

5 because Plaintiff has independently alleged violations of state law. And although Defendant

6 argues that Plaintiff has not pleaded his claims in sufficient detail, it failed to cite to the

7 governing Ninth Circuit case on the pleading standard for wheelchair-access claims, a standard

8 that Plaintiff’s Complaint easily meets.

9

FACTS

10 A. Facts Alleged in the Complaint

11

Plaintiff Miguel Castaneda is a Burger King customer who uses a wheelchair. Complaint

12 ¶ 10. He has encountered common barriers at a number of Burger King restaurants in California,

13 including ones in Pittsburg and Pleasant Hill. Id. ¶¶ 41-42. These barriers include entry and

14 restroom doors that were very difficult to open, parking lots with insufficient or inadequate

15 accessible parking spots, inaccessible restrooms, narrow or steep sidewalks and ramps, queue

16 lines that were too narrow for his wheelchair to navigate, and soda machines and condiments that

17 were difficult for him to reach. Id. ¶ 42.

18

Plaintiff seeks to represent a class of Burger King customers who use wheelchairs or

19 scooters and who have encountered similar barriers in any of the 92 Burger King stores in

20 California that are leased by BKC. Id. ¶¶ 13-22. Plaintiff asserts claims challenging these

21 common barriers under Title III of the ADA, 42 U.S.C. § 12181 et seq., the Unruh Civil Rights

22 Act, Cal. Civ. Code § 51 et seq. (“Unruh”), and the California Disabled Persons Act, Cal. Civ.

23 Code, § 54, et seq. (“CDPA”). Complaint ¶¶ 2-3. Broadly speaking, these laws prohibit

24 disability discrimination in places of public accommodation such as the Burger King restaurants

25 at issue here.

26

There are over 600 Burger King restaurants in California. With respect to approximately

27 92 of these (so-called “BKLs”), BKC leases the building from the landlord and then sub-leases it

28 to a Burger King franchisee. Complaint ¶ 23. As BKC agrees, this makes it liable for any

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1 violations of Title III at those restaurants. See 42 U.S.C. § 12182(a) (prohibiting discrimination

2 by those who lease or lease to places of public accommodation); Mem. of P. & A. in Supp. of

3 Def. Burger King Corp.’s Mot. to Dismiss (Docket No. 29, “Def.’s Mem.”) at 21-22 (agreeing

4 that the ADA “creates strict liability for injunctive relief against . . . lessors, and lessees”).

5

The Complaint contains extensive allegations supporting class certification. For

6 example, it identifies a number of legal questions common to the class, Complaint ¶ 15, and

7 describes the basis for Plaintiff’s contention that his claims are typical and that he and his

8 counsel will adequately represent the class, id. ¶¶ 16-17. The Complaint also provides detailed

9 allegations concerning the standardizing role that BKC plays in the design and operation of its

10 restaurants. Through its lease and franchise agreements and associated manuals and guidelines,

11 BKC controls the development, design, alteration, remodel, maintenance, and operation of such

12 restaurants. Id. ¶ 26. BKC requires BKLs to be constructed, remodeled, repaired, and

13 maintained in conformity with BKC designs and standards, and has provided plans and

14 specifications for such construction and remodeling. BKLs are required to comply with BKC’s

15 “Manual of Operating Data,” (“MOD”) which contains mandatory restaurant operating standards,

16 specifications, and procedures. Id. ¶¶ 27-35.

17

Plaintiff alleges that BKC’s violations are intentional, both because many of the barriers

18 are so intuitively obvious that they could not but be so, id. ¶ 42, and because in 1997, BKC

19 settled Day v. Republic Foods, Inc., No. 95-1317CV (D.D.C.), a case in which the plaintiff

20 alleged violations of the ADA similar to some of those alleged in Plaintiff’s Complaint here.

21 The settlement required BKC to survey and remedy ADA violations in its corporate-owned

22 restaurants throughout the country, to notify franchisees of their obligation to comply with the

23 ADA, to provide franchisees with a survey instrument to survey their restaurants, and to give

24 franchisees training materials and technical assistance in bringing their restaurants into

25 compliance with the ADA. BKC therefore knew or should have known of the requirements of

26 the ADA and of its failure to comply with those requirements. Id. ¶ 39. (Exhibit 1 to the

27 Declaration of Amy F. Robertson in Support of Plaintiff's Opposition to Defendant's Motion to

28 Dismiss (“Robertson Decl.”).)

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1 B. Public Documents and the Limited Discovery To Date Support The Allegations In the Complaint.
2 BKC complains in its motion that many of Plaintiff’s assertions concerning BKC’s
3 designs and policies are “on information and belief.” Def.’s Mem. at 3. This is for the simple
4 reason that, prior to filing the Complaint, Plaintiff did not have access to many of these highly
5 confidential documents. See Robertson Decl. ¶ 6. Rather, Plaintiff based his assertions on
6 publicly-available documents, including annual reports and court pleadings in which BKC has
7 touted the high degree of control that it exercises over its franchisees.
8 For example, in its Annual Report for the fiscal year ending June 30, 2008, BKC’s parent
9 company, Burger King Holdings, asserted that all of its restaurants “must adhere to strict
10 standardized operating procedures and requirements” and are “required to follow the Manual of
11 Operating Data, an extensive operations manual containing . . . standard design, equipment
12 system, color scheme and signage, operating procedures, hours of operation and standards of
13 quality for products and services.” Id. at 6 (Robertson Decl. Ex. 2). In its brief to the Supreme
14 Court in Burger King Corp. v. Rudzewicz, No. 83-2097, 1984 WL 565536 (Nov. 15, 1984)
15 (Robertson Decl. Ex. 3), attempting to ensure that a Michigan franchisee was subject to Florida
16 long-arm jurisdiction, BKC explained that it made available “[s]tandard plans and specifications
17 for a freestanding building,” and required approval of all building plans and alterations by BKC.
18 Id. at *5 & n.3. “Burger King’s active support extended into day-to-day operations. It offered a
19 confidential MOD Manual containing the standards, specifications, procedures and methods for
20 operating a Burger King Restaurant.” Id. at *6.
21 The limited discovery that has occurred so far in this case provides additional support for
22 Plaintiff’s allegations. For example, the lease for the Pleasant Hill restaurant requires the lessee
23 to operate a Burger King restaurant on the premises in accordance with the franchise agreement.
24 Robertson Decl. Ex. 4 at 13. It also requires the lessee to alter the building to conform to BKC’s
25 “current image,” and empowers BKC to enter the premises to make repairs or fulfill other
26 obligations under the franchise agreement. Id. at 14.
27
28

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1

The franchise agreement for that restaurant requires the franchisee to adopt “standardized

2 design . . . uniform standards . . . and procedures of operation.” Robertson Decl. Ex. 5 at 3. It

3 requires the restaurant to be “constructed and improved” as authorized by BKC and requires

4 repair and maintenance in accordance with “BKC’s then current repair and maintenance

5 standards.” Id. The franchisee is required to “improve, alter and remodel the Franchised

6 Restaurant to bring it into conformance with the national and local plans, specifications and/or

7 other standards for new or remodeled Burger King Restaurants.” Id. Failure to comply with

8 these requirements is a material default of the franchise agreement. Id. at 19.

9

BKC enforces these requirements, often in federal court, and BKC’s pleadings in those

10 cases confirm both the level of detail on which BKC controls its franchisees and the lengths to

11 which it will go to enforce that control. For example, through the Amended Complaint for

12 Specific Performance and Damages in Burger King Corp. v. Shams, No. 06-20870 (S.D. Fla.

13 Apr. 25, 2006) (Robertson Decl. Ex. 6), BKC requests specific performance of a franchise

14 agreement, based on the franchisee’s “failure to operate his BURGER KING(R) Restaurants in

15 accordance with the standards and specifications required by BKC.” Id. ¶ 1. The complaint

16 details the shortcomings BKC is asking the court to compel the franchisee to remedy. Id. ¶ 35.

17 While many of the items relate to food preparation and sanitary standards, they also include items

18 relevant to ensuring wheelchair access, for example, “[h]andicap parking not easily identifiable”

19 and “[r]estrooms not clean and maintained.” Id.; see also, e.g., Complaint for Injunctive Relief

20 and Damages, Burger King Corp. v. Bru Corp., No. 07-21316, ¶ 59 (S.D. Fla. May 22, 2007)

21 (alleging that the franchisee’s “failure to operate the Restaurant in accordance with BKC’s

22 standards relating to service, cleanliness, health, sanitation, repair and maintenance, as well as

23 operational requirements, is a breach of the Franchise Agreement.”) (Robertson Decl. Ex. 7). It

24 is thus clear that Burger King imposes strict uniform standards on its franchisees and enforces

25 them -- in federal court where necessary.

26

PROCEDURAL STATUS

27

Plaintiff filed this case on September 10, 2008. Although no case management

28 conference has yet occurred, in response to Plaintiff’s Motion to Compel Compliance with

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1 General Order 56 (Docket No. 8), this Court ordered discovery to commence. See Order Re

2 Disc. (Docket No. 18, dated Nov. 11, 2008). Shortly after receiving the Court’s Order Re

3 Discovery, Plaintiff served his first set of interrogatories and document requests on Defendant,

4 responses to which would have been due on December 16, 2008. Defendant requested an

5 extension of this deadline to January 12, 2008; Plaintiff agreed to that extension but requested

6 production of a handful of basic documents, which BKC limited to the list of BKLs, BKC-

7 selected excerpts from the MOD, and lease and franchise documents only for the two restaurants

8 specifically identified in the Complaint. Robertson Decl. ¶¶ 2-4. Thus, class discovery has 9 essentially not yet begun.1

10

Undersigned counsel has heard from over one thousand individuals complaining of

11 similar barriers at Burger King restaurants around California and has conducted interviews with

12 approximately 200 of those individuals. Robertson Decl. ¶ 7. BKC initially refused to identify

13 for Plaintiff which of the over 600 Burger King restaurants in this state were BKLs, so it was

14 impossible for Plaintiff to ascertain whether he or other potential class members had been to

15 other such leased restaurants. Plaintiff received the list of BKLs on December 16, 2008.

16 Robertson Decl. ¶ 5. Based on a review of this list, Plaintiff’s counsel was able to identify an

17 additional seven BKLs at which Mr. Castaneda has encountered similar barriers over the past two

18 years. Decl. of Miguel Castaneda In Supp. of Pl.’s Opp’n to Def.’s Mot. to Dismiss ¶ 3;

19 Robertson Decl. ¶ 8. In addition, of the approximately 200 individuals Plaintiff’s counsel have

20 interviewed, approximately 83 individuals have encountered barriers similar to those encountered

21 by Mr. Castaneda at one or more BKLs, and those individuals have encountered similar barriers

22 at a total of over 40 of the 92 BKLs. Robertson Decl. ¶ 7.

23

24

25

26

1

Defendant has moved to stay discovery pending resolution of its Motion to

27 Dismiss. See Def. Burger King Corp.’s Notice of Mot. and Mot. for Stay of Certain Disc.

Pending Ruling on Mot. to Dismiss Compl. (Docket No. 37). A hearing on that motion is 28 scheduled for next Monday, January 12, 2009.

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1

ARGUMENT

2 I. Standard of Review.

3

Plaintiff brings his claims under the ADA and state civil rights laws to remedy barriers to

4 access for individuals who use wheelchairs. Because this is a civil rights case, the Complaint is

5 to be liberally construed. Holley v. Crank, 400 F.3d 667, 674 (9th Cir. 2005) (“We liberally

6 construe civil rights complaints.” (citation omitted.)).

7

BKC moves pursuant to Rules 12(b)(1), 12(b)(6), 12(e) and 12(f) of the Federal Rules of

8 Civil Procedure. See Def. Burger King Corp.’s Notice of Mot. and Mot. to Dismiss (“Def.’s

9 Mot.,” Docket No. 28) at 2.

10

Defendant relies on Rule 12(b)(1) for its arguments relating to standing, CAFA, and

11 supplemental jurisdiction, and therefore references material outside the pleadings. See Def.’s

12 Mot at 2; Def.’s Mem. at 2 & n.1. While this is technically correct, see, e.g., Corrie v.

13 Caterpillar Inc., 503 F.3d 974, 980 (9th Cir. 2007), with respect to standing, the question is legal

14 rather than factual: Given that Defendant concedes that Plaintiff has standing as to the two

15 restaurants named in the Complaint, see Def.’s Mem. at 1, is it appropriate, prior to class

16 discovery, to hold -- as a matter of law -- that the proposed class cannot include BKLs visited by

17 other class members but not by Plaintiff, without giving Plaintiff the opportunity to demonstrate

18 the numerous common questions of law and fact he shares with these putative class members?

19

Defendant moves to strike Plaintiff’s class allegations pursuant to Rule 12(f) on the

20 grounds that they do not meet the commonality, typicality and adequacy requirements of Rule

21 23(a)(2), (3) and (4). See Def.’s Mot. at 2; Def.’s Mem. at 11-14. “[M]otions to strike are

22 generally regarded with disfavor because of the limited importance of pleading in federal

23 practice, and because they are often used as a delaying tactic.” Greenburg v. Life Ins. Co. of N.

24 Am., No. 08-03240-JW, 2008 WL 5396387, at *1 (N.D. Cal. Dec. 18, 2008) (internal citations

25 omitted). “Accordingly, such motions should be denied unless the matter has no logical

26 connection to the controversy at issue and may prejudice one or more of the parties to the suit.

27 . . . When considering a motion to strike, the court ‘must view the pleading in a light most

28 favorable to the pleading party.’” Id. (internal citations omitted).

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1

Finally, Defendant moves to dismiss Plaintiff’s state law claims pursuant to Rule

2 12(b)(6). In considering such a motion, “[a]ll allegations of material fact in the complaint are

3 taken as true and construed in the light most favorable to the plaintiff.” Williams v. Gerber

4 Prods. Co., --- F.3d ---, 2008 WL 5273731, at *2 (9th Cir. Dec. 22, 2008). To survive a motion

5 to dismiss, Plaintiff’s complaint must plead “enough facts to state a claim to relief that is

6 plausible on its face” and that “raise a right to relief above the speculative level.” Bell Atlantic

7 Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 1974 (2007), quoted in Williams, 2008

8 WL 5273731, at *3.

9 II. It Would Be Improper to Dismiss Claims Relating to Restaurants Mr. Castaneda Has Not Visited.
10 A. Rule 23 -- Not Article III -- Will Dictate the Scope of Class Claims.
11 Plaintiff Miguel Castaneda brings this putative class action challenging common barriers
12 to individuals who use wheelchairs or scooters at approximately 92 BKLs in California. Mr.
13 Castaneda has encountered these common barriers in a total of nine BKLs and intends to
14 continue to patronize those and other Burger King restaurants. There is thus no question -- and
15 Defendant does not contest -- that Mr. Castaneda has Article III standing to bring this case.
16 Defendant argues that Mr. Castaneda does not have standing to bring claims concerning
17 restaurants that he has not visited. This argument misses the point. The claims in this case
18 concerning restaurants that the named Plaintiff has not visited are not based on his individual
19 standing, but rather on the standing of the class as a whole. Whether this is proper is judged by
20 the requirements of Rule 23, not Article III of the United States Constitution.
21 “Whether or not the named plaintiff who meets individual standing requirements may
22 assert the rights of absent class members is neither a standing issue nor an Article III case or
23 controversy issue but depends rather on meeting the prerequisites of Rule 23 governing class
24 actions.” 1 Alba Conte and Herbert B. Newberg, Newberg on Class Actions § 2:7 (4th Ed.,
25 updated 2008). Here, the question is not whether Mr. Castaneda has individual standing as to the
26 restaurants he has not visited, but rather whether his claims are sufficiently similar to those of
27

28

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1 individuals who encountered discrimination at those restaurants to support class certification and,

2 ultimately, an injunction requiring BKC to bring those restaurants into compliance.

3

The Ninth Circuit addressed this question in Armstrong v. Davis, 275 F.3d 849 (9th Cir.

4 2001). In that case, a handful of prisoners with various disabilities represented a class

5 challenging accommodations and physical barriers at facilities around the state where parole-

6 related proceedings took place. Id. at 854, 858-59. The district court had entered a system-wide

7 injunction; on appeal, the defendants argued that any relief should have been limited to the

8 named plaintiffs, as those plaintiffs “failed to demonstrate standing for ‘each type of relief

9 sought.’” Id. at 860, 867. The Ninth Circuit held that when considering the scope of relief, it

10 was the standing of the entire class that mattered.

11

[W]hen a class is properly certified, the injury asserted by the named plaintiffs at

the standing stage of our inquiry is asserted on behalf of all members of the class.

12

Accordingly, although in a class-action lawsuit, as in any other suit, “the remedy

must . . . be limited to the inadequacy that produced the injury in fact that the

13

plaintiff has established,” the “plaintiff” has been broadened to include the class

as a whole, and no longer simply those named in the complaint.

14

Id. at 871 (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996).) In this case, if a class is properly

15

certified, this Court will be empowered to order relief as to any noncompliant restaurants

16

encompassed within the class definition.

17

The precise issue raised by Defendant here was addressed in Lucas v. Kmart Corp., No.

18

99-cv-01923-JLK, 2005 WL 1648182 (D. Colo. July 13, 2005). In that case, the plaintiffs sought

19

to certify a class under Title III of the ADA challenging barriers to wheelchair-users at

20

approximately 2,100 Kmart department stores nationwide. Kmart argued that the named

21

plaintiffs did not have standing to challenge barriers in stores they had not visited. The court

22

rejected that argument and held, in certifying the nationwide class, that “Defendants’ objection

23

regarding representative Plaintiffs’ standing to assert claims on behalf of individuals who

24

patronized other Kmart stores is subsumed by my determination that the Rule 23(a) prerequisites

25

have been met.” Id. at *3. Similarly, Defendant’s standing argument here will be subsumed in

26

this Court’s Rule 23 analysis of the proposed class.

27

28

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1

B. None of Defendant’s Cases Support Its Effort to Restrict the Standing of Any

Eventual Class.

2

Defendant does not provide a single case that does what it is asking the Court to do here:

3

Dismiss from a putative class action facilities that Plaintiff has not patronized but as to which he

4

asserts he has claims sharing common issues of law and fact. Instead, Defendant cites a long line

5

of individual cases, that do not address the class action issues now before the Court. See Moreno

6

v. G & M Oil Co., 88 F. Supp. 2d 1116 (C.D. Cal. 2000) (“This is not a class action.”); Tyler v.

7

Kansas Lottery, 14 F. Supp. 2d 1220 (D. Kan. 1998) (“Plaintiff is not bringing this case as a class

8

action.”); see also Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) (individual case), Skaff

9

v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007) (same), Pickern v. Holiday

10

Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002) (same), Moyer v. Walt Disney World Co., 146

11

F. Supp. 2d 1249 (M.D. Fla. 2000) (same).

12

Defendant also relies on two decisions from the District of New Jersey. Both of these

13

decisions held that there is no individual standing as to restaurants that an individual plaintiff has

14

not patronized. Clark v. McDonald’s Corp., 213 F.R.D. 198, 226, 230 (D.N.J. 2003); Clark v.

15

Burger King Corp., 255 F. Supp. 2d 334, 343-44 (D.N.J. 2003). In both cases, however, the

16

court held that it was premature to resolve the question of the scope of an eventual plaintiff class

17

action. See McDonald’s, 213 F.R.D. at 226; Burger King, 255 F. Supp. at 345.

18

Ultimately, Defendant offers no cases supporting its argument that the class Plaintiff

19

seeks to certify will not have standing to challenge restaurants Plaintiff has not visited.

20

III. Plaintiff’s Class Allegations Should Not Be Stricken.

21

Because Defendant concedes that Mr. Castaneda has Article III standing, the next step

22

will be to consider whether class certification is appropriate, that is, whether Mr. Castaneda’s

23

claims are common to and typical of the class he seeks to represent. Given that almost no class

24

discovery has taken place, this analysis is premature at this juncture; Plaintiff intends to file a

25

motion to certify the class as quickly as possible once he has had the chance to take reasonable

26

class discovery. However, based on the fact that this case is almost identical to a number of

27

28

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1 cases certifying classes under Title III and related California state law, it is clear that Mr.

2 Castaneda has alleged sufficient commonality and typicality to defeat a motion to strike.

3

A. It Is Premature to Assess Class Certification.

4

Plaintiff filed this case on September 10, 2008 and, by Order of this Court, discovery

5 started on November 11, 2008. (Docket No. 18.) Although Plaintiff served his first set of

6 written discovery three days later, he has, to date, received very limited information. Robertson

7 Decl. ¶¶ 2-5. In the absence of class discovery and a motion by Plaintiff for class certification,

8 Defendant’s motion to strike is premature. See, e.g., Baas v. Dollar Tree Stores, Inc., No. C 07-

9 03108 JSW, 2007 WL 2462150, at * 3 (N.D. Cal. Aug. 29, 2007) (holding that a motion to strike

10 or dismiss class allegations was premature when brought before class discovery had commenced

11 and before the plaintiffs had moved for class certification); Beauperthuy v. 24 Hour Fitness USA,

12 Inc., No. 06-0715 S C, 2006 WL 3422198, at *3 (N.D. Cal. Nov. 28, 2006) (holding that the

13 defendant’s motion pursuant to Rule 23(d)(4) was “an improper attempt to argue against class

14 certification before the motion for class certification has been made and while discovery

15 regarding class certification is not yet complete.”).

16

B. Plaintiff’s Class Allegations.

17

Plaintiff alleges that BKL restaurants contain similar barriers to individuals who use

18 wheelchairs or scooters. Complaint ¶¶ 2, 25. He makes a series of detailed allegations

19 concerning BKC’s extensive control over the physical conditions and operations of these

20 restaurants. For example, he alleges that many of these restaurants were built according to

21 BKC’s designs, id. ¶¶ 25, 28-31, that BKC “exercises substantial control over . . . the

22 development, design, alteration, remodel, maintenance and operation” of the restaurants, id. ¶ 26,

23 and that the restaurants are required to be operated in conformance with Burger King’s “Manual

24 of Operating Data,” containing detailed requirements for the design and operation of the BKLs,

25 id. ¶ 32. The facts alleged by Plaintiff are very similar to those that supported class certification

26 in a number of Title III class actions in this district and elsewhere. They are thus more than

27 sufficient -- at the pleading stage -- to support class certification here. Defendant’s motion to

28 strike the class allegations should be denied so that class discovery can proceed.

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1

C. The Class that Plaintiff Alleges Is Very Similar to Many Certified Classes.

2

“A number of courts have held that where people who use wheelchairs encounter the

3 same types of barriers at a number of commonly-owned or affiliated public accommodations,

4 commonality is established and class certification is appropriate.” Moeller v. Taco Bell Corp.,

5 220 F.R.D. 604, 609 (N.D. Cal. 2004) (citing Colo. Cross Disability Coal. v. Taco Bell Corp.,

6 184 F.R.D. 354, 359-60 (D. Colo. 1999); Access Now, Inc. v. Ambulatory Surgery Ctr. Group,

7 Ltd., 197 F.R.D. 522, 526 (S.D. Fla. 2000); and Arnold v. United Artists Theatre Circuit, Inc.,

8 158 F.R.D. 439, 449 (N.D. Cal 1994)).

9

The class certified in Moeller was virtually identical to the class Plaintiff seeks to certify

10 here: Four plaintiffs who had visited a handful of Taco Bell restaurants in California represented

11 a statewide class of customers who used wheelchairs and scooters challenging barriers in

12 approximately 220 Taco Bell corporate restaurants under the ADA, Unruh, and the CDPA.

13 Moeller, 220 F.R.D. at 605, 607. Like Defendant here, Taco Bell argued that, because each of its

14 stores was different and because their differing ages invoked different legal standards, there was

15 no commonality. Id. at 609-10, compare Def.’s Mem. at 11. The court rejected both of those

16 arguments, noting that “[t]he ‘unique architecture’ argument has been rejected by a number of

17 courts in disability cases” and that the different legal standard for older restaurants was “a

18 question common to the class.” Moeller, 220 F.R.D. at 609-10.

19

Moeller relied to a great degree on an earlier case in this district certifying a very similar

20 class involving a chain of theaters. In Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D.

21 439 (N.D.Cal 1994), four people with disabilities sought to certify a statewide class challenging

22 barriers at over seventy theaters. That court held that the class satisfied the commonality

23 requirement because, “[f]rom the fact that the same categories of design features are being

24 challenged in each theater, it follows that the legality of those features are legal issues common

25 to the claims of the members of all of the subclasses.” Id. at 449. Similarly, the putative class in

26 this case challenges the “same categories of design features” in each BKL restaurant.

27

The Arnold court held that the claims of the named plaintiffs were typical of those of the

28 class: “[I]n a public accommodations suit such as this one where disabled persons challenge the

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1 legal permissibility of architectural design features, the interests, injuries, and claims of the class

2 members are, in truth, identical such that any class member could satisfy the typicality

3 requirement for class representation.” Id. at 450. The court specifically wrestled with a question

4 similar to that raised by BKC’s Motion: “It is true that members of the class will each likely

5 have attended only certain of defendant’s theaters. This means that, in a sense, the proposed

6 class is divided into more than seventy subclasses,” one for each theater. Id. at 449. The court

7 concluded that step was not necessary, “since, even among the subclasses, there exist sufficient

8 common issues” to satisfy Rule 23(a)(2). Id. (emphasis in original).

9

A number of other courts have certified similar class actions, that is, cases in which a

10 handful of representative plaintiffs with disabilities challenge barriers in a large group of related

11 public accommodations -- either statewide or nationwide -- under Title III of the ADA. See, e.g.,

12 Colo. Cross Disability Coal., 184 F.R.D. at 363 (certifying statewide class of wheelchair-users

13 under Title III and Colorado state law challenging common barriers in approximately 40 Taco

14 Bell restaurants around that state); Lucas v. Kmart Corp., 2005 WL 1648182, at *3 (certifying

15 nationwide class of wheelchair-users under Title III challenging common barriers in

16 approximately 2,100 Kmart stores); id. 2006 WL 722163, at *6 (D. Colo. March 22, 2006) 17 (certifying for settlement purposes2 damages subclasses for seven states including California);

18 Ass’n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457, 460 (S.D. Fla. 2002) (certifying

19 nationwide settlement class of individuals with all disabilities challenging common barriers in

20 2,800 Amoco service stations under Title III); Ambulatory Surgery, 197 F.R.D. at 526 (certifying

21 nationwide Title III class of individuals with all disabilities challenging common barriers at 350-

22 400 medical facilities of various types located throughout the country); Access Now, Inc. v. AHM

23 CGH, Inc., No. 983004-CIV-GOLD-SIMONTO, 2000 WL 1809979, at *1, *6 (S.D. Fla. 2000)

24 (same); Access Now, Inc. v. Claire’s Stores, Inc., No. 00-14017-CIV, 2002 WL 1162422, at *3

25

26

27

2

The Supreme Court has held that, in the context of a request to certify a settlement

28 class, the court must conduct a thorough analysis to reassure itself that the proposed class satisfies Rule 23. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619-20 (1997).

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1 (S.D. Fla. May 7, 2002) (certifying settlement class under Title III challenging common barriers

2 at 2,200 retail stores nationwide).

3

It is true that the stores at issue in Moeller and Lucas, for example, were all corporate-

4 operated stores while the BKL restaurants at issue here are all leased. This fact at most simply

5 introduces additional -- common -- questions of law and fact shared by the class. In reality, BKC,

6 by its own admission, plays a standardizing role that underscores both the commonality of the

7 barriers encountered by the class and the superior effectiveness of a class action in remedying

8 and preventing barriers to wheelchair-users in Burger King restaurants. See, e.g., supra at 5-6

9 (describing BKC leases, franchise agreements, an annual report and pleadings in other cases

10 asserting the uniformity of Burger King’s design and operation); see also Ambulatory Surgery,

11 197 F.R.D. at 526 (certifying class involving hundreds of facilities owned and operated by

12 different entities that participated in a common design and construction program).

13

In a number of other arenas, courts have certified classes of individuals with legal claims

14 involving varying facilities without requiring a named plaintiff with individual standing as to

15 each facility. In Parra v. Bashas’, Inc., 536 F.3d 975 (9th Cir. 2008), for example, the Ninth

16 Circuit reversed the district court’s refusal to certify a class challenging pay disparities in a chain

17 of 150 grocery stores operating under three trade names. Id. at 976-77, 979. In Dukes v. Wal-

18 Mart, Inc., 509 F.3d 1168 (9th Cir. 2007), the Ninth Circuit upheld the certification of a class of

19 female Wal-Mart employees brought by eight representative plaintiffs addressing gender

20 discrimination at 3,400 Wal-Mart stores nationwide. Id. at 1175. In none of these cases --

21 whether under Title III or another statute -- did the court require a named plaintiff with individual

22 standing at each of the hundreds or thousands facilities at issue, for example, 2,100 named

23 plaintiffs in Lucas, 2,800 named plaintiffs in Amoco, or 3,400 named plaintiffs in Dukes.

24

D. Defendant’s Cases Do Not Support Its Request to Strike Class Allegations.

25

1. Defendant Ignores All Recent Precedent Certifying Classes of

Individuals with Disabilities Challenging Common Barriers.

26

In requesting that this Court strike Plaintiff’s class allegations, Defendant relies primarily

27

on a handful of older -- and largely unpublished -- cases in which four courts in the Middle and

28

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1 Southern Districts of Florida refused to certify classes of individuals with disabilities bringing

2 claims under Title III of the ADA. Significantly, each of these cases was decided on the

3 plaintiff’s motion for class certification. See Access Now, Inc. v. Macy’s East, Inc., No. 99-9088-

4 CIV-JORDAN (S.D. Fla. Feb 15, 2001), slip op. at 1 (Def.’s Mem. Ex. A); Access Now, Inc. v.

5 Walt Disney World Co., 211 F.R.D. 452, 453 (M.D. Fla. 2001); Access Now, Inc. v. May Dep’t

6 Stores Co., No. 00-148-CIV-MORENO (S.D. Fla. Oct. 6, 2000), slip op. at 1 (Def.’s Mem. Ex.

7 B); Ass’n for Disabled Ams. v. Motiva Ent., LLC., No. 99-0580-CV-UNGARO BENAGES (S.D. 8 Fla. Oct. 18, 1999), slip op. at 5 (Def.’s Mem. Ex. C), cited in Def.’s Mem. at 12.3 These cases

9 do not support Defendant’s request to strike Plaintiff’s class allegations before class discovery.

10

Furthermore, Defendant does not cite any case more recent than 2001 and ignores a long

11 line of cases certifying Title III classes alleging similar barriers at a series of related facilities.

12 See supra at 13-15. In addition, starting around the time Defendant’s cases were decided, judges

13 in the Southern District of Florida granted motions to certify a series of classes far broader than

14 the class for which Plaintiff will seek certification. See Claire’s Stores, 2002 WL 1162422, at *3

15 (2,200 stores nationwide); Amoco, 211 F.R.D. at 460 (2,800 stores nationwide), Ambulatory

16 Surgery, 197 F.R.D. at 526 (350-400 medical facilities nationwide), AHM CGH, 2000 WL 17 1809979, at *1 (S.D.Fla. 2000) (same).4

18

2. Defendant Construes the Concept of “Same Legal Injury” Too

Narrowly.

19

Defendant’s assertion -- in connection with its standing argument -- that “named

20

plaintiff’s class representational standing is limited to representing the class of people who

21

suffered the same legal injury,” Def’s. Mem. at 8, simply underscores the fact that the question

22

23

3

Defendant also relies on Clark v. Burger King, 255 F. Supp. 2d at 343. See Def.’s

24 Mem. at 13. However, as explained above, the court in that case did not deny class certification,

25 but rather -- as Plaintiff requests here -- postponed that decision until such time as it received the plaintiffs’ motion for class certification. Burger King, 255 F. Supp. 2d at 345.

26

4

Plaintiff cited most of these cases -- as well as Moeller, 220 F.R.D. at 613-14 ,

27 Arnold, 158 F.R.D. at 458, and Lucas, 2005 WL 1648182, at *3 & 2006 WL 722163, at *6 -- in

28 his Reply Brief in Support of Motion to Compel Compliance with General Order 56 (Docket No. 17), see id. at 3-4 & n.1. Despite this, Defendant did not address any of them in its Motion.

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1 should be addressed through Rule 23 rather than Article III: The question of what constitutes the

2 “same legal injury” will be answered by the commonality and typicality inquiry under Rule

3 23(a)(2) and (3). In any event, Defendant’s attempt to limit “same legal injury” to injuries

4 suffered due to barriers only at the precise stores Plaintiff visited goes against the Ninth Circuit’s

5 instruction in Armstrong that “[w]hen determining what constitutes the same type of relief or the

6 same kind of injury, we must be careful not to employ too narrow or technical an approach.” Id.,

7 275 F.3d at 867.

8

Several courts have addressed this question in the context of Title III classes. For

9 example, in Arnold, the court addressed it under the rubric of typicality, see Fed. R. Civ. P.

10 23(a)(3), holding that four named plaintiffs who had patronized a handful of movie theaters had

11 claims typical of a class of theater patrons with disabilities challenging barriers at seventy

12 theaters: “these named plaintiffs possess the same interests, have suffered the same alleged

13 injuries, and rely on the same legal theories as the other members of the proposed class.” Id.,

14 158 F.R.D. at 450 (emphasis added). Similarly, the court in Ambulatory Surgery, in certifying a

15 nationwide class of individuals with all types of disabilities challenging barriers in hundreds of

16 medical facilities, held that, “the representative Plaintiffs have the same interests and suffer the

17 same injuries as the class members in that they are allegedly denied access to the same facilities

18 as the class members and discriminated against as the result of the continued existence of

19 physical barriers to access.” Id., 197 F.R.D. at 528 (emphasis added). Mr. Castaneda has

20 suffered the same legal injury as the class he hopes to represent: Denial of access to BKL

21 restaurants caused by physical barriers to customers who use wheelchairs.

22

Defendant also argues that Mr. Castaneda’s claims cannot be typical of those of the class

23 because the two stores listed in the complaint were built in the 1970s, when the new construction

24 provision of Title III, 42 U.S.C. § 12183(a)(1), was not yet in effect. Def.’s Mem. at 9 n.4. This

25 is incorrect.

26

As a substantive matter, both the ADA and California accessibility standards apply to

27 restaurants built in the 1970s. Under the ADA, in facilities built prior to January 26, 1993,

28 architectural barriers are required to be removed where it is “readily achievable” to do so.

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1 Moeller, 220 F.R.D. at 606 (citing 42 U.S.C. § 12182(b)(2)(A)(iv)). Under California law, “[a]ll

2 buildings constructed or altered after July 1, 1970, must comply with standards governing the

3 physical accessibility of public accommodations.” Id. at 607 (citations omitted). In any event,

4 for purposes of whether the putative class in this case should be certified, the application of

5 accessibility requirements to Defendant’s restaurants supports certification because it involves

6 questions of law and fact common to the class. See id. at 610.

7

Defendant’s argument on this point completely ignores these applicable standards and

8 instead cites to an ADA employment case for the proposition that an ADA claim may be “barred

9 because it predated the effective date of the ADA.” See Def.’s Mem. at 13 (citing Voytek v.

10 Univ. of Cal., No. 92-3465, 1994 WL 478805 (N.D. Cal. Aug. 25, 1994)). Under no

11 interpretation of the ADA are Mr. Castaneda’s claims “barred” because the restaurants in

12 question were built in the 1970s. Barriers must be removed from “existing facilities” where it is

13 “readily achievable” to do so, regardless of when they were built. 42 U.S.C.

14 § 12182(b)(2)(A)(iv). And unlike the situation in either Voytek or Colon v. League of United

15 Latin American Citizens, 91 F.3d 140 (5th Cir. 1996), cited in Def.’s Mem. at 14, the events

16 giving rise to Plaintiff’s claim all occurred within the last year, long after the effective date of the

17 Americans with Disabilities Act. See Complaint ¶ 41.

18

Defendant also relies on this Court’s decisions in Kakani v. Oracle Corp., No. 06-06493

19 WHA, 2007 WL 1793774 (N.D. Cal. June 19, 2007), and American Council of the Blind v.

20 Astrue, No. 05-04696 WHA, 2008 WL 4279674 (N.D. Cal. Sept. 11, 2008). In the former case,

21 this Court held that it would be inappropriate for plaintiffs with only California claims to

22 represent class members with claims under other states’ laws, and denied preliminary approval to

23 a class action settlement purporting to release other states’ claims. Kakani, 2007 WL 1793774,

24 at *2. In the present case, Mr. Castaneda has claims under the ADA and two California statutes,

25 and seeks to represent only a class with those very claims; no other states’ laws are at issue here.

26 Once the Kakani settlement was redrafted so as to release only California claims, this Court

27 approved it. Kakani v. Oracle Corp., Order Granting Preliminary Approval of Settlement at 2-3

28 (N.D. Cal. Aug. 2, 2007) (Robertson Decl. Ex. 8). With respect to Astrue, Defendant does not

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1 explain how a case addressing recipients of government benefits is more relevant than the on-

2 point Title III class action cases it fails to cite. Plaintiff here has alleged that common barriers to

3 wheelchair access occur in a chain of public accommodations; he respectfully suggests that the

4 decisions in Arnold, Moeller, Lucas and other cases cited above are more relevant. All hold that

5 typicality and adequacy exist under the circumstances alleged here.

6 IV. Plaintiff’s Complaint Satisfies Rule 8; No More Definite Statement Is Required.

7

Defendant’s request for a more definite statement relies on a mistake of fact and a glaring

8 omission of law.

9

Defendant asserts that Plaintiff failed to state when he visited the Pleasant Hill and

10 Pittsburg restaurants and that as a result, it cannot determine whether he suffered injuries within

11 the statute of limitations. Def.’s Mem. at 15. This is incorrect. Plaintiff alleges that he visited

12 both restaurants within the last twelve months. Complaint ¶ 41. Furthermore, the Ninth Circuit

13 has held that “when a plaintiff who is disabled . . . has actual knowledge of illegal barriers at a

14 public accommodation to which he or she desires access [and] seeks injunctive relief against an

15 ongoing violation, he or she is not barred from seeking relief . . . by the statute of

16 limitations . . ..” Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002).

17 Plaintiff has alleged that he has encountered barriers at the Pleasant Hill and Pittsburg stores and

18 that he intends to patronize Burger King restaurants in California in the future. Complaint ¶¶ 10,

19 42-43. His claims are not barred by the statute of limitations.

20

Defendant argues further that the allegations in the complaint do not provide sufficient

21 detail, and relies on the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S.

22 544 (2007). See Def.’s Mem. at 14-15. However, Defendant failed to cite the controlling Ninth

23 Circuit case applying the Bell Atlantic standard to a complaint under Title III of the ADA. In

24 Skaff v. Meridien North American Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007), the Ninth

25 Circuit concluded that allegations very similar to Plaintiff’s satisfy the Bell Atlantic standard. In

26 that case, the plaintiff had alleged that he “‘encountered numerous other barriers to disabled

27 access, including “path of travel,” guestroom, bathroom, telephone, elevator, and signage barriers

28 to access . . ..’” Id. at 836 (quoting the complaint). The Ninth Circuit held that this satisfied

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1 Rule 8’s pleading requirement, and rejected what it viewed as the defendant’s attempt to “impose

2 [a] heightened pleading standard upon ADA plaintiffs,” that is, one that would require them “to

3 plead the existence of accessibility barriers in specific detail and to support such pleadings with

4 evidence that the plaintiff encountered those barriers.” Id. at 841.

5

Plaintiff here provided a level of detail similar to that in Skaff, alleging that he had

6 encountered barriers that included “entry and restroom doors that were very difficult to open,

7 parking lots with insufficient or inadequate accessible parking spots, inaccessible restrooms,

8 narrow or steep sidewalks/ramps, queue lines that were too narrow for his wheelchair to

9 navigate, and soda machines and condiments that were difficult to reach.” Complaint ¶ 42.

10 These allegations are sufficient to satisfy Rule 8 of the Federal Rules of Civil Procedure; no more

11 definite statement is required.

12 V. Jurisdiction Is Appropriate over Plaintiff’s State Law Claims.

13

This Court has federal question jurisdiction of Plaintiff’s claims under the ADA. 28

14 U.S.C. § 1331. Plaintiff has asserted two independent grounds for federal jurisdiction of his state

15 law claims: Diversity jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C.

16 § 1332(d); and supplemental jurisdiction under 28 U.S.C. § 1367. See Complaint ¶ 6. Either of

17 these grounds is sufficient; thus, should this Court hold that CAFA jurisdiction is appropriate --

18 for example, because it is undisputed that another class action was filed within the past three

19 years asserting similar allegations -- it does not need to reach the question of supplemental

20 jurisdiction. On the other hand, should this Court conclude that supplemental jurisdiction is

21 appropriate to avoid both parties -- and two courts -- having to litigate two parallel class action

22 cases addressing the same barriers in the same restaurants under virtually identical accessibility

23 standards, it does not have to address the question of CAFA jurisdiction.

24

A. This Court Has Jurisdiction Under CAFA over Plaintiff’s State Law Claims.

25

Defendant apparently concedes that the prerequisites for jurisdiction under CAFA exist,

26 see 28 U.S.C. § 1332(d)(2), but argues that the required joinder of necessary and indispensable

27 parties would trigger the so-called “local controversy” exception to CAFA jurisdiction, thereby

28 requiring dismissal of the state law claims. Def.’s Mem. at 17-19.

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1

The local controversy exception requires the Court to decline to exercise jurisdiction

2 under CAFA when all of four conditions apply, including:

3

at least 1 defendant is a defendant (aa) from whom significant relief is sought by

members of the plaintiff class; (bb) whose alleged conduct forms a significant

4

basis for the claims asserted by the proposed plaintiff class; and (cc) who is a

citizen of the State in which the action was originally filed;

5

28 U.S.C. § 1332(d)(4)(A)(i)(II), and

6

during the 3-year period preceding the filing of that class action, no other class

7

action has been filed asserting the same or similar factual allegations against any

of the defendants on behalf of the same or other persons.

8

Id. § 1332(d)(4)(A)(ii). Defendant has the burden to prove that this exception applies, Serrano v.

9

180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007), which here requires it to show that both

10

of the subsections above are satisfied. Defendant cannot meet that burden.

11

1. Another Class Action Has Been Filed within the Past Three Years.

12

First, there is no question that Defendant cannot satisfy the requirement that, within the

13

past three years, “no other class action has been filed asserting the same or similar factual

14

allegations against any of the defendants on behalf of the same or other persons.” 28 U.S.C.

15

§ 1332(d)(4)(A)(ii). This case was filed September 10, 2008. On March 22, 2006 -- two and a

16

half years before this case was filed -- the “Complaint - Class Action” in Disability Advocates

17

and Counseling Group, Inc. v. Burger King Corp., 06-20716, was filed in district court for the

18

Southern District of Florida. Robertson Decl. Ex. 9. The plaintiffs there, as here, asserted a

19

putative class claim for violations of Title III on the basis of denial of equal access to Burger

20

King restaurants. Id. ¶¶ 26-27. The plaintiffs in Disability Advocates asserted claims against

21

BKC for all Burger King restaurants nationwide. Id. ¶ 21. Thus, that class action was filed

22

within the past three years, asserting the same factual allegations against the same defendant as

23 this case on behalf of many of the same persons.5

24

25

26

5

The Declaration of Thomas G. Archer in Support of Defendant’s Motion to

Dismiss (Docket No. 30) asserts that “[t]here were no class actions filed against Burger King 27 Corporation asserting claims under the ADA or any similar statute, or including factual

28 allegations similar to those made in this case, in the three year period preceding the filing of this action.” Id. ¶ 12; see also Def.’s Mem. at 17-18 (same). This is incorrect.

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1

The fact that the Disability Advocates case was never certified as a class action is

2 irrelevant. It is the filing of a class action complaint raising similar allegations that is the key

3 event under CAFA. The plain language of the statute requires, for the exception to apply, that

4 “no other class action has been filed.” 28 U.S.C. § 1332(d)(4)(A)(ii) (emphasis added). In the

5 cases addressing this provision, courts have cited simply to the filing of the complaint in other

6 class actions as being fatal to the local controversy exception. See, e.g., Summerhill v. Terminix,

7 Inc., No. 08-CV-00659 GTE, 2008 WL 4809448, *2 (E.D. Ark., Oct. 30, 2008); Brook v.

8 UnitedHealth Group Inc., No. 06-CV-12954 (GBD), 2007 WL 2827808, *4 (S.D.N.Y. Sept. 27,

9 2007); Caruso v. Allstate Ins. Co., 469 F. Supp. 2d 364, 370-71 (E.D. La. 2007). As a matter of

10 clear statutory interpretation, Defendant cannot satisfy the local controversy exception.

11

2. No Significant Defendant is a Citizen of California.

12

Because it is clear beyond dispute that another class action was filed within the past three

13 years -- and that BKC can thus not satisfy all of the requirements of the local controversy

14 exception -- this Court does not need to consider the question whether there is a defendant from

15 whom “significant relief is sought” who is a citizen of California. Should this Court consider the

16 question, however, it is clear that the only party from whom “significant relief” is sought is BKC,

17 and BKC does not challenge Plaintiff’s allegation that it is not a citizen of California. See

18 Complaint ¶ 11.

19

BKC argues that the franchisees are significant defendants and -- though not named -- are

20 necessary and indispensable parties under Rule 19. A party is necessary if either (1) the present

21 parties will be denied complete relief in the absence of the party to be joined, or (2) the absent

22 party will suffer some loss or be put at risk of suffering such a loss if not joined. See Fed. R. Civ.

23 P. 19(a). Here, the franchisees are not necessary parties.

24

There is no question, here, that “the court can[] accord complete relief among existing

25 parties,” Fed. R. Civ. P. 19(a)(1)(A), in the absence of the franchisees. “In conducting the Rule

26 19(a)(1) analysis, the court asks whether the absence of the party would preclude the district

27 court from fashioning meaningful relief as between the parties.” Disability Rights Action Comm.

28 v. Las Vegas Events, Inc., 375 F.3d 861, 879 (9th Cir. 2004). In that case, the Ninth Circuit held

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1 that meaningful relief under Title III could be granted against the lessees/operators of a public

2 venue -- in the absence of the owner -- by addressing the factors over which the lessees had

3 control. Id. at 879-80. Similarly, a Florida court has held that meaningful relief could be

4 afforded under Title III against a condominium association and hotel developer of a timeshare

5 hotel -- in the absence of either the unit owners or the operator of the rental program -- because

6 the latter “is subject to [the defendant’s] control and direction regarding [the relevant] policies.”

7 Access 4 All, Inc. v. Atlantic Hotel Condominium Ass’n, Inc., No. 04-61740, 2005 WL 5643878,

8 at *14 (S.D. Fla. Nov. 23, 2005). The court held that the defendant “cannot simply contract out

9 of ADA obligations” by asserting that another entity controlled the program at issue. Id.; see

10 also Celano v. Marriott Int’l Inc., No. 05-4004-PJH, 2008 WL 239306, at *8-9 (N.D. Cal. Jan.

11 28, 2008) (holding that the owners of a series of golf resorts were not necessary parties in a Title

12 III case challenging inaccessible golf carts because the defendant management company

13 controlled the selection of golf carts).

14

In this case, BKC is independently liable under both the ADA, see 42 U.S.C. § 12182(a),

15 and state law, see infra at 28-33. It cannot contract out of this liability. And it will be possible to

16 fashion meaningful relief here in the absence of the franchisees. BKC retains enormous control

17 over the design and operation of the Burger King restaurants it leases and franchises. Meaningful

18 relief in this case could take the form of an order requiring Burger King to reform its

19 standardized designs and policies to ensure compliance with the ADA and state law, and

20 requiring BKC to exercise the control it reserves to itself -- and often exercises -- over

21 franchisees to cause them to remedy noncompliant features of their restaurants. (See, e.g., supra

22 at 5-6.) And BKC is certainly in a position to afford meaningful compensatory relief under state

23 law. In light of BKC’s extensive control and resources, it would be speculative to conclude that

24 the franchisees are necessary before liability is assessed. “If during the remedy stage of this

25 litigation it appears [the franchisees] may be impacted, the[y] may be given notice and permitted

26 to intervene.” E.E.O.C. v. Lilja Indus. Const. Corp., No. C-92-1492 MHP, 1992 WL 532168, at

27 *2 (N.D. Cal. Dec. 16, 1992).

28

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1

It is also apparent that joinder is not required under Rule 19(a)(1)(B) as the franchisees

2 have not asserted their right to be joined. In the absence of such an assertion, it is improper for

3 Defendant to argue that they are necessary and indispensable. See In re County of Orange, 262

4 F.3d 1014, 1023 (9th Cir. 2001) (citing United States v. Bowen, 172 F.3d 682, 689 (9th Cir.

5 1999) (“[I]t is inappropriate for one defendant to attempt to champion the absent party’s

6 interests.”); see also Procurador de Personas con Impedimentos v. Municipality of San Juan,

7 541 F. Supp. 2d 468, 474-75 (D. Puerto Rico 2008) (holding that property owners and business

8 operators were not necessary parties in a wheelchair access lawsuit; cursory assertion of interests

9 in the defendant’s brief did not demonstrate that they have “sufficient interest to render them

10 necessary parties”).

11

Although BKC asserts that the franchisees will ultimately be responsible for any repairs

12 or damages, this is a matter between BKC and the franchisees and can be resolved in separate

13 litigation. It should not hinder Plaintiff’s rights to proceed in the venue of his choice if that

14 venue is appropriate. See In re County of Orange, 262 F.3d at 1022 (absent parties not necessary

15 under Rule 19 because defendant could seek reimbursement in separate action); Bank of Am.

16 Nat’l Trust & Savings Ass’n v. Hotel Rittenhouse Assocs., 844 F.2d 1050, 1054 (3d Cir. 1988)

17 (“A defendant’s right to contribution or indemnity from an absent non-diverse party does not

18 render that absentee indispensable pursuant to Rule 19.”).

19

B. This Court Should Exercise Supplemental Jurisdiction over Plaintiff’s State

Law Claims.

20

Plaintiff has asked this Court to exercise supplemental jurisdiction, pursuant to 28 U.S.C.

21

§ 1367, of his state law claims under Unruh and the CDPA. Defendant does not contest that

22

Plaintiff’s state law claims meet the basic prerequisite for supplemental jurisdiction, that is, that

23

they are “so related to claims in the action within such original jurisdiction that they form part of

24

the same case or controversy under Article III of the United States Constitution.” Id. Indeed,

25

Plaintiff’s ADA claims are, by definition, claims under Unruh and CDPA. Cal. Civ. Code

26

§§ 51(f); 54.1(d); see also Skaff, 506 F.3d at 845 n.13 (“Congress has provided us with

27

supplemental jurisdiction over state law claims that are part of the same case as ADA claims.”)

28

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1

Defendant asks this Court to decline supplemental jurisdiction based on subsection

2 1367(c)(1), which provides that the court “may decline to exercise supplemental jurisdiction” 3 where the case “raises a novel or complex issue of State law.”6 Id. (emphasis added).

4

As noted above, should this Court hold that it has diversity jurisdiction pursuant to

5 CAFA, it does not need to reach the question of supplemental jurisdiction.

6

Should the Court reach the question, Plaintiff urges the Court to accept supplemental

7 jurisdiction and reject Defendant’s argument for two primary reasons: (1) because of the

8 significant duplication and waste of judicial resources that would ensue were Plaintiff forced to

9 litigate two parallel wheelchair access class actions in state and federal court, addressing the

10 same restaurants under largely identical design standards; and (2) because the question of state

11 law on which Defendant’s argument relies will be resolved by the California Supreme Court long

12 before it becomes relevant to the present case, leaving no reason for delay or for the decline of

13 supplemental jurisdiction.

14

1. Declining Supplemental Jurisdiction Would Lead to Substantial

Duplication of Judicial Effort and Waste of Resources.

15

Supplemental jurisdiction -- which evolved out of the doctrine of pendant jurisdiction --

16

“‘is designed to enable courts to handle cases involving state-law claims in the way that will best

17

accommodate the values of economy, convenience, fairness, and comity.’” Satey v. JPMorgan

18

Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008) (quoting Carnegie-Mellon Univ. v. Cohill,

19

484 U.S. 343, 351 (1988)). The factors in subsection 1367(c) permit, but do not require, a court

20

to decline supplemental jurisdiction. Even where one of those factors exists, this Court retains

21

discretion to accept supplemental jurisdiction: “[h]aving identified that a claim falls into a

22

[section 1367(c)] category, the exercise of discretion ‘is informed by whether remanding the

23

24

25

6

Defendant also refers to subsections 1367(c)(3) and (4), but does not argue them.

See Def.’s Mem. at 20. Subsection 1367(c)(3) permits a court to decline supplemental

26 jurisdiction where it has “dismissed all claims over which it has original jurisdiction.” Since

Defendant concedes that this Court has jurisdiction over Mr. Castaneda’s ADA claims relating to 27 the Pittsburg and Pleasant Hill restaurants, this section does not apply. Subsection 1367(c)(4) is

28 a catch-all, permitting a court to decline jurisdiction where there are “other compelling reasons” to do so. Defendant does not identify any such reasons.

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1 pendent state claims comports with the underlying objective of most sensibly accommodating the

2 values of economy, convenience, fairness, and comity.’” LiveOps, Inc. v. Teleo, Inc., No. 05-

3 03773 MJJ, 2006 WL 83058, at *4 (N.D. Cal. Jan. 9, 2006) (quoting Executive Software N. Am.,

4 Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994) (internal citations omitted)).

5

In this case, the values of economy, convenience, fairness, and comity favor retention of

6 supplemental jurisdiction.

7

Central to the application of these values here is the fact that, should this Court dismiss

8 Plaintiff’s state law claims, Plaintiff will file those claims in state court and -- as here -- request

9 certification of a statewide class. The Ninth Circuit “frequently has upheld decisions to retain

10 pendent claims on the basis that returning them to state court would be a waste of judicial

11 resources.” Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1309 (9th Cir. 1992); see also

12 Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 787 (3rd Cir. 1995) (holding that it is

13 appropriate to take into account the fact that dismissal under section 1367(c) would result in

14 parallel proceedings in state and federal court).

15

The potential for waste and inefficiency if Unruh and CDPA claims are dismissed from

16 an ADA case and pursued in state court has led at least four courts to retain supplemental

17 jurisdiction. As one court explained, in considering the same claims as are at issue here:

18

[T]he competing principles of judicial economy and convenience weigh strongly

in favor of asserting supplemental jurisdiction. Plaintiff’s state and federal law

19

claim involve the identical nucleus of operative fact, and require a very similar, if

not identical, showing in order to succeed. If this court forced plaintiff to pursue

20

his state law claim in state court, the result would be two highly duplicative trials,

constituting an unnecessary expenditure of plaintiff’s, defendants’, and the courts’

21

resources.

22 Johnson v. Barlow, No. Civ S-06-01150 WBS GGH, 2007 WL 1723617, at *5 (E.D. Cal. June

23 11, 2007); see also Hannah v. W. Gateway Reg’l Recreation Park & Dist., No. CIV S-06-571

24 LKK/DAD, 2007 WL 2795769, at *2 (E.D. Cal. Sept. 25, 2007) (“[I]t would hardly be

25 economical or convenient to conduct a trial on all the elements of plaintiff’s ADA claim in

26 federal court but then require plaintiff to seek relief separately on the issue of damages in state

27 court”); Yates v. Belli Deli, No. C07-01405 WHA, 2007 WL 2318923, at *7 (N.D. Cal. Aug. 13,

28 2007) (“It would be inefficient to try the claims separately, so the exercise of supplemental

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1 jurisdiction is appropriate.”); Pinnock v. Solana Beach Do It Yourself Dog Wash, Inc., No.

2 06cv1816 BTM (JMA), 2007 WL 1989635, at *3 (S.D. Cal. July 3, 2007) (“To [decline

3 supplemental jurisdiction] would create the danger of courts rushing to judgment, increased

4 litigation costs, and wasted judicial resources.”).

5

2. The Question of State Law on Which Defendant Relies Will Soon Be

Resolved.

6

Defendant urges this Court to decline supplemental jurisdiction based on subsection

7

1367(c)(1), because the question whether intent is an element of an Unruh claim is currently

8

before the California Supreme Court. See Munson v. Del Taco, Inc., 522 F.3d 997 (9th Cir.

9

2008) (certifying the question to the California Supreme Court). As an updated California

10

Supreme Court docket shows, however, the matter is fully briefed on the merits, and a number of

11

amicus briefs were filed in late December, responses to which are due later this month. See

12

Docket, Munson v. Del Taco, Inc., No. S162828 (Robertson Decl. Ex. 12). It is thus likely that,

13

long before this Court will have to address the question of intent under Unruh in this case, the

14

California Supreme Court will have spoken definitively on the matter. Once Munson is decided,

15

there will be no novel or complex question of state law; rather, merely the routine application of

16

whatever standard the California Supreme Court establishes. See Munson, 522 F.3d at 999 (“We

17

will accept the decision of the California Supreme Court.”).

18

Ultimately, the question before the court in Munson will have very little effect on this

19

case. Most importantly, it will in no way be dispositive here. This is because the question in

20

Munson is limited to whether intent is required to obtain damages under the Unruh Act. See

21

Munson, 522 F.3d at 999 (Certifying question “[m]ust a plaintiff who seeks damages under” the

22

Unruh Act “prove ‘intentional discrimination’?” (Emphasis added.)). Even if intent is held to be

23

an element of an Unruh Act damages claim, Plaintiff can still (1) prove a violation of the ADA

24

and obtain injunctive relief, (2) prove a violation of Unruh and obtain injunctive relief, and

25

(3) prove a violation of the CDPA and obtain both injunctive relief and damages -- all without

26

proving intent. Intent is not required to prove a violation of the ADA, which violation will

27

entitle the class to injunctive relief. Munson, 522 F.3d at 1001; 42 U.S.C. § 12188(a). Nor is

28

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1 intent required to obtain injunctive relief under Unruh or the CDPA. Gunther v. Lin, 50

2 Cal.Rptr.3d 317, 336 (Cal. App. 2006). Finally, intent is not required to obtain damages under

3 the CDPA. Donald v. Café Royale, Inc., 266 Cal.Rptr. 804, 809 (Cal. App. 1990). On the

4 unlikely chance both that the California Supreme Court requires an intent element and Plaintiff is

5 unable to prove intent, most of this case remains unaffected.

6

For these same reasons, there is no need for a stay pending a decision in Munson.

7 Defendant bases its request for a stay on the fact that the Ninth Circuit stayed the Munson case

8 itself. See Def.’s Mem. at 21. However, that case was ripe for decision but for the question

9 currently before the California Supreme Court. See Munson, 522 F.3d at 1000 (district court had

10 granted summary judgment to the plaintiff, parties had stipulated to damages in lieu of trial, and

11 the defendant had appealed the question of intent). In contrast, there is much work to be done in

12 this case before the question of intent is before the Court.

13

As an initial matter, as explained in greater detail below, Plaintiff has pleaded sufficient

14 facts to satisfy the intent standard should the California Supreme Court adopt that standard. See

15 infra at 32-33. The next step in this case will be class discovery and Plaintiff’s motion for class

16 certification. Because the question of intent is a merits question, it will not be before the Court

17 in that motion. See Staton v. Boeing Co., 327 F.3d 938, 954 (9th Cir. 2003) (“[I]t is improper to

18 advance a decision on the merits to the class certification stage.”). Finally, as explained above, if

19 the class should be certified, the question of intent will still not be relevant until the remedies

20 phase and even then, Plaintiff will be able to prove up his ADA, Unruh, and CDPA claims for

21 injunctive relief with no need to address the question of intent.

22 VI. Plaintiff Has Properly Alleged Claims Under Unruh and the CDPA.

23

A. Plaintiff’s State Law Allegations.

24

Plaintiff alleges that the Burger King restaurants at issue here have numerous common

25 architectural barriers and discriminatory policies that deny putative class members full and equal

26 enjoyment of the goods and services of these restaurants, and that these barriers violate the ADA.

27 See, e.g., Complaint ¶¶ 1, 2, 16, 42. Because “[a] violation of the right of any individual under

28 the [ADA] shall also constitute a violation of” Unruh and the CDPA, Cal. Civ. Code § 51(f), see

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1 also id. § 54.1(d) (same), Plaintiff alleges that Defendant has violated these state statutes by dint

2 of its violations of the ADA. Id. ¶¶ 56, 58, 63, 65. Plaintiff further alleges that Defendant

3 “denie[d], or aid[ed] or incite[d] the denial of” rights secured under Unruh, and that Defendant

4 “den[ied] and/or interfer[ed]” with rights under the CDPA. Id. ¶¶ 57-58, 64-65.

5

Plaintiff’s Complaint provides specific factual allegations showing Defendant’s

6 responsibility for discriminatory policies and barriers at the BKL restaurants, including that

7 Defendant’s contracts with its franchisees require that Burger King restaurants be built, designed,

8 remodeled, repaired, and maintained in conformance with Defendant’s construction and design

9 plans, and specifications. Complaint ¶¶ 25-31, 34. These contracts also require that these

10 restaurants be operated in accordance with Defendant’s specifications and procedures, including

11 the “highly detailed requirements” of the MOD. Id. ¶¶ 32-33, 35. Thus, Plaintiff has

12 satisfactorily alleged independent legal bases for claims under the Unruh Act and CDPA.

13

Plaintiff further alleges that Defendant knew of the discriminatory policies and barriers,

14 and the effect of those policies and barriers on persons with disabilities, through several means:

15 (1) a 1997 settlement of an accessibility lawsuit brought against Defendant, which (among other

16 things) required it to survey all corporate restaurants in the United States and to provide its

17 franchisees with information concerning the ADA; (2) inspections of the restaurants at issue

18 here; and (3) a highly publicized settlement reached by the Department of Justice with the

19 Wendy’s restaurant chain, which made clear that the DOJ believed that inaccessible queue lines

20 -- such as those found in many of Burger King’s California Restaurants -- violated the ADA. Id.

21 ¶¶ 36, 39-40.

22

B. Plaintiff Has Alleged Both Independent and ADA-Based Violations of Unruh

and the CDPA.

23

In 1992, the California legislature amended Unruh and the CDPA to provide that “[a]

24

violation of the right of any individual under the [ADA] shall also constitute a violation of this

25

section.” Cal. Civ. Code § 51(f), see also id. § 54.1(d).7 Title III of the ADA prohibits disability

26

27

28

7

The Unruh Act is to be interpreted “in the broadest sense reasonably possible” in

(continued...)

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1 discrimination by entities -- such as BKC -- that lease or lease to restaurants and other places of

2 public accommodation. 42 U.S.C. §§ 12181(7)(B), 12182(a). Plaintiff alleges that BKC has

3 violated the ADA, and that these violations also constitute violations of Unruh and the CDPA.

4 Based on the plain language of Unruh and the CDPA -- providing that a violation of the ADA

5 “shall also constitute a violation of” these state statutes, Cal. Civ. Code §§ 51(f), 54.1(d) -- those

6 allegations state claims under Unruh and the CDPA. Defendant argues that, in addition to

7 establishing that Defendant violated the ADA, Plaintiff must also establish that Defendant is

8 independently covered by Unruh and the CDPA. Specifically, Defendant contends that Plaintiff

9 must allege that Defendant “denie[d], aid[ed] or incite[d] a denial, or ma[de] any discrimination

10 or distinction contrary to” Unruh, and that Defendant “denie[d] or interfere[d] with” rights

11 secured by the CDPA. Def.’s Mem. at 21-23.

12

First, as demonstrated above, Plaintiff has alleged that Defendant denied, aided, incited,

13 and interfered with rights secured under state law, and has provided detailed factual allegations

14 supporting those claims. Complaint ¶¶ 25-35, 57-58, 64-65. This is sufficient to defeat

15 Defendant’s motion to dismiss pursuant to Rule 12(b)(6).

16

Even assuming arguendo that Plaintiff had not made these specific allegations of

17 denying, aiding, inciting and interfering, and his Unruh and CDPA claims were based only on

18 Defendant’s ADA violations, this, too, would state a claim under these statutes.

19

The purpose of the 1992 amendment was to “provid[e] persons injured by a violation of

20 the ADA with the remedies provided by the Unruh Act (e.g., right of private action for damages,

21 including punitive damages).” Cal. Assembly Cmte. on Judiciary report on AB 1077, at 2 (Jan.

22 22, 1992); Cal. Senate Cmte. on Judiciary report on AB 1077, at 5 (June 9, 1992) (Robertson

23 Decl. Exs. 10, 11). Defendant’s assertion that a plaintiff injured by an ADA violation may not be

24 entitled to recover monetary relief under state law unless he shows that the defendant is

25

26

27

7(...continued)

28 order to “banish [discriminatory] practices from California’s community life.” Isbister v. Boys’ Club of Santa Cruz, Inc., 707 P.2d 212, 214 (Cal. 1985) (internal citations omitted).

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1 independently covered by Unruh or the CDPA is entirely inconsistent with the purpose of the

2 1992 amendment. An interpretation that

3

leaves a successful ADA plaintiff without a corresponding Unruh Act remedy

undermines the California legislature’s purpose in passing section 51(f) to provide

4

that a violation of the ADA is also a violation of the Unruh Act. The court

presumes that the California legislature did not intend section 51(f) to be a law

5

that is all bark and no bite.

6 Morgan v. Am. Stores Co. LLC, NO. 06 CV 2437 JM (RBB), 2007 WL 1971945, at *2 (S.D. Cal.

7 June 29, 2007).

8

This precise issue was before the court in National Federation of the Blind v. Target

9 Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). In that case, the plaintiffs brought suit under the

10 ADA, Unruh, and the CDPA based on the inaccessibility of the defendant’s website to blind

11 customers. The court held that the plaintiffs’ allegation that the website was inaccessible stated a

12 claim under the ADA. Id. at 956. The defendant argued that, notwithstanding the Court’s

13 determination that the plaintiffs had stated an ADA claim, they also had to establish that the

14 website was a “business establishments” under Unruh, and a physical space under the CDPA.

15 The court held that it need not reach these arguments because a violation of the ADA constituted

16 a violation of Unruh and the CDPA, and thus the plaintiffs had stated a claim under these statutes

17 even if the website was not a business establishment or a physical space. Id. at 957-58.

18

The holding in National Federation of the Blind demonstrates that the 1992 amendment

19 means what it says -- a violation of the ADA, by itself, constitutes a violation of Unruh and the

20 CDPA, and Plaintiff need not demonstrate that Defendant is otherwise covered by these state

21 laws. Indeed, the Ninth Circuit has unambiguously held that “[a]ny violation of the ADA

22 necessarily constitutes a violation of the Unruh Act.” Molski v. M.J. Cable, Inc., 481 F.3d 724,

23 731 (9th Cir. 2007) (emphasis added). As a result, in several cases, courts have held defendants

24 liable for damages under Unruh and/or the CDPA based solely on a showing of an ADA

25 violation, without requiring any additional proof that the defendants denied, aided, or incited the

26 violation. See, e.g., Hubbard v. Rite Aid Corp., 433 F. Supp. 2d 1150, 1170 (S.D. Cal. 2006);

27 Wilson v. Haria and Gogri Corp., 479 F. Supp. 2d 1127, 1141 (E.D. Cal. 2007); Haworth v.

28 Haddock, NO. 1:06-CV-1713-OWW-DLB, 2007 WL 3239564, at *2-3 (E.D. Cal. Nov. 2, 2007).

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1

Defendant, on the other hand, does not cite a single case holding that a plaintiff who

2 demonstrates that a defendant has violated the ADA has an additional burden of establishing that

3 the defendant denied, aided, or incited a violation to recover under Unruh or the CDPA. The

4 Brown case -- which Defendant edited to make it appear to have addressed the liability of lessors

5 under Unruh and the CDPA, see Def.’s Mem. at 23 -- in fact addressed a California statute

6 governing privileges afforded the news media and has nothing to do with the issues or statutes

7 before this Court. See Brown v. Kelly Broadcasting Co., 771 P.2d 406, 413 (Cal. 1989).

8

C. Plaintiff Has Properly Pleaded Discriminatory Intent.

9

Defendant incorrectly argues that Plaintiff’s Unruh8 claims should be dismissed for

10 failing to adequately plead discriminatory intent. This argument should be rejected.

11

As an initial matter, it is not clear that intent is a required element of an Unruh claim.

12 The question is currently before the California Supreme Court on referral from the Ninth Circuit.

13 See Munson, 522 F.3d at 999.

14

Even if the California Supreme Court holds that proof of discriminatory intent is an

15 element of an Unruh claim, Plaintiff’s allegations meet this standard. Here Plaintiff alleges that

16 Defendant knew of the impact on access of the various barriers at issue because, in the 1990s, it

17 had been sued based on these types of barriers, and the settlement of that lawsuit required

18 Defendant to survey its restaurants and provide ADA-related information and assistance to its

19 franchisees. Complaint ¶ 39. Notwithstanding this knowledge, Defendant designed and/or failed

20 to remove numerous and substantial barriers at the restaurants at issue here, and this constitutes

21 intentional discrimination. In addition, the court in Gunther held that some of the applicable

22 standards “are basically so intuitive and obvious . . . that it would be hard to believe that

23 noncompliance with them could be other than intentional” and that some barriers are “so obvious

24 as to implicate at least a prima facie case of discriminatory intent.” 50 Cal. Rptr. 3d at 321 &

25

26

27

28

8

It is undisputed that proof of discriminatory intent is not required for claims under

the CDPA. See Donald, 266 Cal.Rptr. at 809.

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1 n.6. Plaintiff has alleged a number of such barriers, including narrow queue lines, heavy doors,

2 and inaccessible restrooms and has alleged that they meet this standard. Complaint ¶¶ 42, 44.9

3

CONCLUSION

4

For the reasons set forth above, Plaintiff respectfully requests that this Court deny

5 Defendant’s Motion to Dismiss.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

9

Defendant’s argument relies almost exclusively on the recently-enacted

“Construction-Related Accessibility Standards Compliance Act.” (See Def.’s Mem. at 23-24.) 24 This reliance is misplaced. First, that Act is irrelevant to this case because it “appl[ies] only to

25 claims filed on or after January 1, 2009. Nothing in this part is intended to affect litigation filed before that date.” Cal. Civ. Code § 55.54(o). Further, Defendant relies on new section 55.53(f),

26 which states that a decision not to hire a state certified access inspector “shall not be admissible

to prove . . . lack of intent to comply with the law.” This section does not address the elements 27 necessary to prove an Unruh violation or to obtain damages and nothing in the Act suggests that

28 such evidence is a prerequisite to recovery of statutory minimum or actual damages under section 52(a).

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1

Respectfully submitted,

2

3

By: /s/ Amy F. Robertson

Amy Robertson (pro hac vice)

4 Dated: January 8, 2009

5 Bill Lann Lee – CA State Bar No. 108452 - blee@lewisfeinberg.com
6 Julia Campins – CA State Bar No. 238023 - jcampins@lewisfeinberg.com LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.
7 1330 Broadway, Suite 1800 Oakland, CA 94612
8 Telephone: (510) 839-6824 Facsimile: (510) 839-7839

9 Timothy P. Fox - CA State Bar No. 157750 - tfox@foxrob.com
10 Amy Robertson - pro hac vice - arob@foxrob.com FOX & ROBERTSON, P.C.
11 3801 E. Florida Ave., Suite 400 Denver, CO 80210
12 Telephone: (303) 595-9700 Facsimile: (303) 595-9705

13 Linda D. Kilb - CA State Bar No. 136101 - lkilb@dredf.org
14 DISABILITY RIGHTS EDUCATION & DEFENSE FUND 2212 Sixth Street
15 Berkeley, CA 94710 Telephone:(510) 644-2555
16 Facsimile:(510) 841-8645

17 Mari Mayeda - CA State Bar No. 110947 - marimayeda@earthlink.net P O Box 5138
18 Berkeley, CA 94705 Telephone: (510) 848-3331
19 Facsimile: (510) 841-8115

20 Antonio M. Lawson - CA State Bar No. 140823 - tony@lawsonlawoffices.com LAWSON LAW OFFICES
21 160 Franklin Street, Suite 204 Oakland, CA 94607
22 Telephone: (510) 419-0940 Facsimile: (510) 419-0948
23 Attorneys for Plaintiff
24

25

26

27

28

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1 GLYNN & FINLEY, LLP CLEMENT L. GLYNN, Bar No. 57117
2 ADAM FRIEDENBERG, Bar No. 205778 One Walnut Creek Center
3 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596
4 Telephone: (925) 210-2800 Facsimile: (925) 945-1975
5 E-mail: cglynn@glynnfinley.com afriedenberg@glynnfinley.com
6
GENOVESE JOBLOVE & BATTISTA, P.A. 7 MICHAEL D. JOBLOVE (admitted pro hac vice)
JONATHAN E. PERLMAN (admitted pro hac vice) 8 Bank of America Tower
100 Southeast Second Street, 44th Floor 9 Telephone: (305) 349-2300
Facsimile: (305) 349-2310 10 Email: mjoblove@gjb-law.com
jperlman@gjb-law.com 11

12 Attorneys for Defendant Burger King Corporation

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 MIGUEL CASTANEDA on behalf of
16 himself and others similarly situated

17

Plaintiff,

18

vs.

19 BURGER KING CORPORATION and BURGER KING HOLDINGS, INC.,
20
Defendants. 21

) Case No. CV 08-4262 WHA

)

) DEFENDANT BURGER KING

) CORPORATION’S REPLY

) MEMORANDUM IN SUPPORT OF ITS

) MOTION TO DISMISS

)

)

) Date:

February 12, 2009

) Time:

8:00 a.m.

) Before: Hon. William H. Alsup ) Courtroom: 9, 19th Floor

22

23

24

25

26

27

28 1

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1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS

Page(s)

INTRODUCTION……………………………………………………… 1

DISCUSSION…………………………………………………………..

3

A. PLAINTIFF’S CLAIMS AS TO RESTAURANTS HE HAS NOT VISITED MUST BE DISMISSED UNDER RULE 12(b)(1) FOR LACK OF STANDING…………………………. 3
1. Because Defendant’s Challenge to Plaintiff’s Standing Is Limited to the Face of the Complaint, Plaintiff May Not Reference Extrinsic Matters …………….………… 3

2. Plaintiff Must Have Individual Standing With Respect to Each Restaurant About Which He Wishes to Complain, Irrespective of Class Allegations…………………………. 4
3. Plaintiff’s Assertion that Defendant Has Not Cited Decisions that Dismissed for Lack of Standing Title III ADA Claims Against Restaurants the Named Plaintiff Failed to Visit Is Patently False………………………….. 7
4. Plaintiff’s Failure to Allege Specific Facts Showing that a Burger King Corporation Policy/Practice Caused Common Accessibility Violations Is Fatal to Plaintiff’s Standing as Against the Additional BKLs…………………………………………………….. 8
5. Plaintiff Lacks Standing to Assert Any Design and Construction Claim……………………………………… 12
B. PLAINTIFF’S CLASS ALLEGATIONS AS TO THE ADDITIONAL RESTAURANTS SHOULD ALSO BE DISMISSED UNDER RULE 23(d)……………………………… 12
C. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED PURSUANT TO RULES 8, 12(b)(6) AND 12(e)………………… 13
D. PLAINTIFF’S STATE LAW CLAIMS SHOULD BE DISMISSED ………………………………………………..…….. 14
1. Neither Unruh Nor the CDPA Impose Liability on Burger King Corporation Merely Due to Its Status as a Franchisor or Sublessor……………………………………. 14
2. Plaintiff Cannot Adequately Allege Discriminatory Intent as Required to State an Unruh Act Claim…………… 16
3. Plaintiff”s CDPA Action also Must Be Dismissed………… 17
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1 2 3 4 5 IV. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

E. THE COURT SHOULD DECLINE TO HEAR, OR, AT MINIMUM, STAY CONSIDERATION OF PLAINTIFF’S UNRUH AND CDPA CLAIMS ……………………………………. 18
F. CAFA DIVERSITY JURISDICTION IS ABSENT ………………...19 CONCLUSION………………………………………………………………. 20
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1

TABLE OF AUTHORITIES

2 Cases

Page(s)

3 Access Now, Inc. v. AHM CGH, Inc.,

4

2000 WL 1809979 (S.D. Fla. July 13, 2000)………………………………. 10

5 Access Now, Inc. v. Ambulatory Surgery Ctr. Group,

6

197 F.R.D. 522 (S.D. Fla. 2000)…………………………………………… 9

7 Access Now, Inc. v. Claire’s Stores, Inc.,

8

2002 WL 1162422 (S.D. Fla. May 7, 2002)……………………………….. 10

9 Alonzo v. Mr. Gatti’s Pizza, Inc.,

10

933 S.W.2d 294 (Tex. Ct. App. 1996)……………………………………… 11

11 Armstrong v. Davis,

12

275 F.3d 849 (9th Cir. 2001)………………………………………………. 5

13 Arnold v. United Artists Theatre Circuit, Inc.,

14

158 F.R.D. 439 (N.D. Cal. 1994)…………………………………………… 9

15 Ass’n for Disabled Ams., Inc. v. Amoco Oil Co.,

16

211 F.R.D. 457 (S.D. Fla. 2002)……………………………………………. 10

17 ASIS Internet Servs. v. Optin Global, Inc.,

18

2006 WL 2792436 (N.D. Cal. Sept. 27, 2006)……………………………. 17

19 Bates v. United Parcel Servs., Inc.,

20

511 F.3d 974 (9th Cir. 2007)…………………………………………………5, 12

21 Bell Atlantic Corp. v. Twombly,

22

550 U.S. 544, 127 S. Ct. 1955 (2007)…………………………………….. 16

23 Blum v. Yaretsky,

24

457 U.S. 991 (1982)…………………………………………………..…. 5, 6

25 Brewer v. Indymac Bank,

26

2008 WL 3863432 (E.D. Cal. Aug. 14, 2008)……………………….. 16, 17, 18

27 Brown v. Kelly Broadcasting Co.,

28

48 Cal.3d 711 (Cal. 1989)……………………………………………..

14

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1 Caruso v. Allstate Ins. Co.,

2

369 F. Supp. 2d 364, 370-31 (E.D. La. 2007) ………………………… 20

3 Clark v. Burger King Corp.,

4

255 F. Supp. 2d 334 (D.N.J. 2003)………………………………1, 5, 7, 8, 9, 11

5 Clark v. McDonald’s Corp.,

6

213 F.R.D. 198 (D.N.J. 2003)………………………………………7, 8, 12, 13

7 Colo. Cross Disability Coal. v. Taco Bell Corp.,

8

184 F.R.D. 354 (D. Colo. 1999)………………………………………… 9, 11

9 Coronado v. Cobblestone Vill. Cmty. Rentals,

10

163 Cal. App. 4th 831 (Cal. Ct. App. 2008)………………………………. 18

11 Cross v. Pacific Coast Plaza Invs. L.P.,

12

2007 WL 951772 (S.D. Cal. Mar. 6, 2007)…………………………… 15, 16

13 Dallas Gay Alliance v. Dallas County Hosp. Dist.,

14

719 F. Supp. 1380 (N.D. Tex. 1989)………………………………………. 7

15 Disability Advocates & Counseling Group, Inc. v. Burger King Corp.,

16

No. 06-20716 (S.D. Fla.) ………………………………………………... 20

17 Doe v. Mann,

18

285 F. Supp. 2d 1229 (N.D. Cal. 2003)……………………………………. 3

19 Donninger v. Pacific Nw. Bell, Inc.,

20

564 F.2d 1304 (9th Cir. 1977)………………………………………………. 10

21 Doran v. 7-Eleven,

22

524 F.3d 1034 (9th Cir. 2008)……………………………………………….. 10

23 Dukes v. Wal-Mart, Inc.,

24

509 F.3d 1168 (9th Cir. 2008)……………………………………………….. 10

25 E. Tex. Motor Freight Sys. v. Rodriguez,

26

431 U.S. 395 (1977)………………………………………………………… 10

27 Gen. Tel. Co. of Sw. v. Falcon,

28

457 U.S. 147 (1982)…………………………………………………………… 12

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1 Gould Elecs. Inc. v. U.S.,

2

220 F.3d 169 (3d Cir. 2000)…………………………………………………. 3

3 Gratz v. Bollinger,

4

539 U.S. 244 (2003)…………………………………………………………. 12

5 Gunther v. Lin,

6

144 Cal. App. 4th 223 (Cal. Ct. App. 2006)………………………………..15, 16

7 Harris v. Capital Growth Investors XIV,

8

52 Cal. 3d 1142 (Cal. 1991)…………………………………………....15, 16, 17

9 Haworth v. Haddock,

10

2007 WL 3239564 (E.D. Cal. Nov. 2, 2007)………………………………. 15

11 Hubbard v. Rite Aid Corp.,

12

433 F. Supp. 2d 1150 (S.D. Cal. 2006)…………………………………….. 15

13 Isbister v. Boys’ Club of Santa Cruz, Inc.,

14

707 P.2d 212 (Cal. 1985)………………………………………………….14, 15

15 Landis v. N. Am. Co.,

16

299 U.S. 248 (1936)………………………………………………………… 18

17 Lee v State of Or.,

18

107 F.3d 1382 (9th Cir. 1997)……………………………………………….. 5

19 Lewis v. Casey,

20

518 U.S. 343 (1996)…………………………………………………… 2, 6, 7, 8

21 Lowery v. Ala. Power Co.,

22

483 F.3d 1184, 1193 (11th Cir. 2007) …………………………………………20

23 Lucas v. Kmart Corp.,

24

2005 WL 1648182 (D. Colo. July 13, 2005)………………………………..9, 11

25 Lucas v. Kmart Corp.,

26

2006 WL 722163 (D. Colo. Mar. 22, 2006)………………………………….9, 11

27 Lujan v. Defenders of Wildlife,

28

504 U.S. 555 (1992)………………………………………………………… 4

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1 Mattera v. Clear Channel Comm., Inc.,

2

239 F.R.D. 70 (S.D.N.Y. 2006)………………………………………………19

3 McColm v. San Francisco Hous. Auth.,

4

2007 WL 1575883 (N.D. Cal. May 29, 2007)……………………………… 17

5 Moeller v. Taco Bell Corp.,

6

220 F.R.D. 604 (N.D. Cal. 2004)……………………………………………9, 11

7 Molski v. M.J. Cable, Inc.,

8

481 F.3d 724 (9th Cir. 2007)………………………………………………….15

9 Moreno v. G & M Oil Co.,

10

88 F. Supp. 2d 1116 (C.D. Cal. 2000)…………………………………………..7

11 Morgan v. Am. Stores Co.,

12

2007 WL 1971945 (S.D. Cal. June 29, 2007)………………………………. 15

13 Mortensen v. First Fed. Sav. & Loan Ass’n,

14

549 F.2d 884 (3rd Cir. 1977)………………………………………………….. 3

15 Nat’l Fed’n of the Blind v. Target Corp.,

16

452 F. Supp. 2d 946 (N.D. Cal. 2006)…………………………………….. 15

17 Neff v. Am. Dairy Queen,

18

58 F.3d 1063 (5th Cir. 1995)…………………………………………………. 11

19 Oliver v. GMRI, Inc.,

20

2007 WL 4144995 (S.D. Cal. Nov. 19, 2007)…………………………….… 18

21 Oliver v. KFC Corp.,

22

2008 WL 2756605 (S.D. Cal. July 14, 2008)………………………………. 19

23 Parra v. Bashas’, Inc.,

24

536 F.3d 975 (9th Cir. 2008)……………………………………………….. 10

25 Savage v. Glendale Union High Sch.,

26

343 F.3d 1036 (9th Cir. 2003)……………………………………………… 3

27 Skaff v. Meridian N. Am. Beverly Hills, LLC,

28

506 F.3d 832 (9th Cir. 2007)………………………………………………. 13

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1 Small v. Gen. Nutrition Cos.,

2

388 F. Supp. 2d 83 (E.D.N.Y. 2005)………………………………………. 7

3 Steckman v. Hart Brewing, Inc.,

4

143 F.3d 1293 (9th Cir. 1998)……………………………………………… 17

5 Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp,

6

594 F.2d 730 (9th Cir. 1979)…………………………………………………. 3

7 U.S. v. Days Inns of Am.,

8

1998 WL 461203 (E.D. Cal. Jan. 12, 1998).................................................... 11

9 U.S. v. Ritchie,

10

342 F.3d 903 (9th Cir. 2003)………………………………………………… 3

11 Urhausen v. Longs Drug Stores Cal., Inc.,

12

155 Cal. App. 4th 254 (Cal. Ct. App. 2007)………………………………. 18

13 Wilson v. Haria & Gogri Corp.,

14

479 F. Supp. 2d 1127 (E.D. Cal. 2007)…………………………………… 15

15 Wilson v. PFS, LLC.,

16

493 F. Supp. 2d 1122 (S.D. Cal. 2007)…………………………………… 15

17 Wolfe v. Strankman,

18

392 F.3d 358 (9th Cir. 2004)……………………………………………….. 3

19 STATUTES

20 8 U.S.C. § 1332(d) ……………………………………………………………….. 19

21 28 U.S.C. § 1332(d)(4)……………………………………………………… 19, 19-20

22 28 U.S.C. § 1332(d)(4)(A)(i)(II)………………………………………………… 19

23 42 U.S.C. § 2000e-5(f)(1)………………………………………………………… 10

24 42 U.S.C. § 12117………………………………………………………………... 10

25 42 U.S.C. § 12133………………………………………………………………... 10

26 42 U.S.C. § 12182(b)(2)(A)(iv)………………………………………………….. 12

27 42 U.S.C. § 12183(a)(1)………………………………………………………….. 12

28 42 U.S.C. § 12183(a)(2)………………………………………………………….. 12 vii

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1 42 U.S.C. § 12188(a)……………………………………………………………… 10 2 Cal. Civ. Code § 51(f)…………………………………………………………….. 16 3 Cal. Civ. Code § 52(a)…………………………………………………………….. 16 4 Cal. Civ. Code § 54.3…………………………………………………………….. 17 5 Cal. Civ. Code § 55.51…………………………………………………………… 16 6 Cal. Civ. Code § 55.53(f)…………………………………………………………. 16 7 8 RULES 9 Fed. R. Civ. P. 8…………………………….…………………………………… 13 10 Fed. R. Civ. P. 11………………………………………………………………… 4 11 Fed. R. Civ. P. 12(b)(1)………………………………………………………… 2, 3, 13 12 Fed. R. Civ. P. 12(e)……………………………………………………………… 13 13 Fed. R. Civ. P. 12(f)……………………………………………………………… 13 14 Fed. R. Civ. P. 19………………………………………………………………….. 19 15 Fed. R. Civ. P. 23…………………………………………………………….2, 6, 12, 13 16 17 OTHER AUTHORITIES 18 Conte and Newberg, Newberg on Class Actions § 2:7 (4th ed. 2008)…………….. 5-6 19 20 21 22 23 24 25 26 27 28
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1 I. INTRODUCTION

2

Plaintiff Miguel Castaneda’s Complaint purports to assert a state-wide class action under Title

3 III of the Americans with Disabilities Act (the “ADA”) and two California statutes as against every

4 Burger King® branded restaurant in California in which Burger King Corporation has any leasehold

5 interest (the “BKLs”). As Defendant Burger King Corporation explained in its motion to dismiss,

6 because claims under the ADA are site-specific in nature and class allegations add nothing to the

7 standing question, Plaintiff’s standing under both Article III of the U.S. Constitution and the ADA is

8 limited to the two named restaurants.

9

In response, Plaintiff claims that his lack of individual standing is irrelevant because it is “the

10 standing of the class as a whole” that controls. (DE 42 at 9). Tellingly, Plaintiff never mentions the

11 binding Supreme Court (and Ninth Circuit) decisions to the contrary that Burger King Corporation

12 cites. Plaintiff’s refusal to acknowledge that other courts have granted the identical relief sought by

13 Defendant in virtually identical circumstances speaks volumes. E.g., Clark v. Burger King Corp.,

14 255 F. Supp. 2d 334 (D.N.J. 2003) (dismissing for lack of standing all claims as to restaurants that

15 the named plaintiff had not visited, despite the presence of class allegations). Moreover, the only

16 published decision Plaintiff cites on this issue actually supports Defendant’s argument that 17 Plaintiff’s claims against the additional restaurants must be dismissed for lack of standing.1

18

Unable to distinguish Defendant’s authorities or cite any that endorse his theory, Plaintiff

19 invokes judicial efficiency as a reason to ignore his lack of standing. Judicial efficiency, however,

20 does not cure a lack of jurisdiction and does not allow Plaintiff to act as a pseudo-attorney general

21 by conducting a time consuming, expensive investigation into the conditions of all California BKLs,

22 the cost of which will be borne by the small independent business owners who operate the

23 restaurants.

24

25

1 Plaintiff’s opposition is replete with legal and factual omissions and misstatements and

innuendo undeserving of response. For example, Plaintiff claims that because, in privately settling

26 an ADA case in the District of Columbia more than 10 years ago, Defendant agreed to notify

franchisees of their obligation to comply with the ADA, any current access violations are somehow

27 within Defendant’s knowledge, and worse, intentional. (DE 42 at 4). This illogical contention is

diversionary, and the settlement agreement irrelevant. Moreover, Defendant’s leases expressly

28 advise its franchisee to comply with the ADA. (See, e.g., DE 30, Exs. C, F, § 5.7).

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1

Plaintiff argues alternatively that he must have standing to sue the additional restaurants,

2 because only that can explain the district court decisions that have, on occasion, certified some Title

3 III ADA class actions involving multiple locations. Those decisions are irrelevant because none 4 involved a challenge to standing on a motion to dismiss, as is the case here.2

5

Most importantly, in each of those cases the named plaintiffs identified and alleged that the

6 defendant had implemented a company-wide policy or specific design flaw that caused a common

7 accessibility violation at all locations. This distinction is critical, because only where a defendant’s

8 centralized corporate policy or practice causes a common violation can individual standing exist for

9 multiple unvisited locations. In such cases, the injury shared by the class members is caused by a

10 single unlawful policy rather than by separate accessibility violations committed by different store

11 operators at different locations.

12

Unlike those in the cases on which he relies, Plaintiff’s Complaint fails to identify any Burger

13 King Corporation policy that causes accessibility violations at its franchisees’ restaurants. For

14 example, in the two Taco Bell cases on which Plaintiff relies, Taco Bell Corporation allegedly

15 designed and constructed its corporate stores to include a queue line narrower than permitted by the

16 ADA. The instant case, to the contrary, is brought on account of restaurants that Burger King

17 Corporation does not operate, and Plaintiff has no factual basis to claim that Defendant has done

18 anything to make franchisees violate the ADA. Thus, Plaintiff’s standing is clearly limited to the

19 named restaurants, and all claims as to other BKLs must be dismissed under Rule 12(b)(1).

20

Plaintiff’s opposition similarly fails to confront the fact that his lack of standing as to

21 additional restaurants also requires that his class allegations as to additional restaurants be dismissed

22 pursuant to Rule 23. Again, Defendant has cited binding precedent that Plaintiff has been unable to

23 refute except by mischaracterizing the contents of his Complaint.

24

With respect to his state law claims, Plaintiff submits no decisions that refute either Burger

25 King Corporation’s argument that the Complaint fails to state a claim or its argument that

26 supplemental jurisdiction should be declined pending State Supreme Court resolution of the

27 2 Notably, the Supreme Court has reversed decisions for lack of standing without disturbing the
28 class that was certified. See Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996).
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1 unsettled questions as to intent. Moreover, Plaintiff’s objection to the applicability of the local

2 controversy exception to CAFA diversity jurisdiction should be overruled because the prior

3 complaint on which Plaintiff relies is insufficiently similar to this case.

4 II. DISCUSSION

5

A. PLAINTIFF’S CLAIMS AS TO RESTAURANTS HE HAS NOT VISITED MUST

BE DISMISSED UNDER RULE 12(b)(1) FOR LACK OF STANDING 6

1. Because Defendant’s Challenge to Plaintiff’s Standing Is Limited to the

7

Face of the Complaint, Plaintiff’s May Not Reference Extrinsic Matters

8

A Rule 12(b)(1) motion to dismiss for lack of standing is either “facial,” in which the inquiry

9 is limited to the complaint’s allegations, or “factual,” in which the court may look at extrinsic 10 evidence as well. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003); 11 Thornhill Pub. Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). A facial challenge

12 is appropriate when the primary standing issues are legal. Wolfe v. Strankman, 392 F.3d 358, 362 13 (9th Cir. 2004); see Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 892 (3rd Cir. 1977)

14 (factual attack “cannot occur until the plaintiff’s allegations have been controverted” in an answer).

15

Burger King Corporation’s motion to dismiss for lack of standing presents a “facial”

16 challenge based solely upon Plaintiff’s Complaint and the documents therein referenced. (See DE 17 29 at 4-11).3 Plaintiff agrees that the question of his standing “is legal rather than factual.” (DE 42

18 at 8). Accordingly, Plaintiff’s opposition must be limited to the Complaint and documents

19 incorporated by reference. See Savage, 343 F.3d at 1039 n.2 (non-moving party may submit

20 evidence outside the complaint only after “the moving party has converted the motion to dismiss into

21 a factual motion by presenting affidavits or other evidence”); Gould Elecs, Inc. v. U.S., 220 F.3d 22 169, 176 (3d Cir. 2000) (same); U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (documents

23 referenced in the complaint are considered part of the complaint for purposes of motion to dismiss).

24

Ignoring that governing standard, Plaintiff submitted two declarations consisting of

25 3 The few factual statements in the declaration Burger King Corporation submitted with its
26 motion either support its argument as to CAFA diversity jurisdiction (see DE 29 at 17-19), or refer to public records or documents Plaintiff referenced in the Complaint, and therefore do not convert
27 this to a factual challenge. Doe v. Mann, 285 F. Supp. 2d 1229, 1232 (N.D. Cal. 2003) (court hearing Rule 12(b)(1) motion “looks to the complaint and attached documents, as well as to facts
28 that are judicially noticeable or undisputed”).
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1 numerous hearsay statements and allegations that are nowhere to be found in the Complaint.4 It

2 would appear from these filings that Plaintiff acknowledges his pleading deficiencies and wishes to

3 amend the Complaint. The proper course of action is, of course, to seek leave to file an amended

4 complaint, not to submit affidavits describing additional allegations that are not in the operative 5 pleading.5

6

As the above decisions make plain, references to extraneous information must be ignored or

7 stricken. Accordingly, the Court should ignore or strike Plaintiff’s Declaration (DE 43) and Ms.

8 Robertson’s Declaration (DE 44), including the double hearsay within, as well as all references to

9 documents or other evidence not referenced in the Complaint. (DE 42 at 5-7).

10

2. Plaintiff Must Have Individual Standing With Respect to Each Restaurant

About Which He Wishes to Complain, Irrespective of Class Allegations

11

12

As Burger King Corporation explained in its motion, dismissal for lack of standing of

13 Plaintiff’s claims against BKLs other than the Pleasant Hill and Pittsburg restaurants is mandated by

14 long-settled legal principles: (1) Plaintiff bears the burden of establishing standing, Lujan v.

15 Defenders of Wildlife, 504 U.S. 555, 561 (1992); (2) the site-specific nature of Title III ADA claims

16

17

4 Two items are most objectionable. First, counsel claims that the allegations in the Complaint

are based on “information and belief” because counsel did not have access to Defendant’s leases,

18 franchise agreements, or designs prior to suit. (DE 42 at 5; DE 44 ¶¶ 1-7). If that were true, then

counsel would be admitting that the allegations were made with no basis in fact, in violation of Fed.

19 R. Civ. P. 11. In fact, Defendant met with Plaintiff’s counsel many times pre-suit and even provided

copies of its store designs. (DE 16, ¶ 3). Notably, the Complaint does not identify any purported

20 design flaws. Moreover, a simple Google search reveals that Defendant’s form franchise agreements

and leases, and store locations are available for purchase on the internet from many services. (Van

21 Horn Declaration, ¶¶ 2-5, Exs. A-C). Second, counsel’s suggestion that pre-suit, she could not

discern which of stores were BKLs is not accurate. Burger King Corporation agreed pre-suit to

22 provide counsel with this information for any restaurant counsel identified as having an accessibility

issue, and did, in fact, provide that information. (DE 16, ¶6). Significantly, this belies Plaintiff’s

23 current claim that he did not know before filing his Complaint which of the restaurants that he had

patronized were BKLs. (See DE 42 at 7). Moreover, despite having been able to learn which

24 restaurants were BKLs pre-suit merely by asking, now that Burger King Corporation has produced a

list of the BKLs, Plaintiff suddenly claims to have visited seven additional locations pre-suit. This

25 goes well beyond the allegations of the Complaint, as does counsel’s affidavit that asserts that

someone at her office or elsewhere (“we”) “estimate” that a number of individuals have encountered

26 “similar” identical barriers at an “approximately” number of unidentified BKLs. (DE 44, ¶ 7).

27

5 The additional allegations, even if true, would not alter the dispositive standing question --

whether Plaintiff’s standing is limited to the specific restaurants at which he claims to have

28 encountered access barriers before he filed the Complaint.

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1 limits a disabled person’s standing to those sites where he actually encountered access barriers, or at

2 least was deterred from visiting due to known barriers at that location, Clark v. Burger King Corp.,

3 255 F. Supp. 2d 334, 343-44 (D.N.J. 2003); (3) class allegations do not diminish the named

4 plaintiff’s burden to establish standing as to each claim asserted, Blum v. Yaretsky, 457 U.S. 991,

5 999-1002 (1982); and (4) because individual standing is a threshold inquiry, claims which no named

6 plaintiff has standing to assert must be dismissed prior to class certification in order to ensure that 7 the court does not exceed its jurisdiction. Id.; see also Lee v. State of Or., 107 F.3d 1382, 1390 (9th

8 Cir. 1997) (“Standing is a jurisdictional element that must be satisfied prior to class certification”).

9

Rather than attempt to distinguish the binding authorities, Plaintiff ignores them. Instead,

10 Plaintiff blithely – and wrongly – proclaims that individual standing is not a threshold issue in class

11 actions, and that the Court should proceed directly to a Rule 23 class certification analysis.

12

Not surprisingly, the few authorities Plaintiff cites in support of that proposition do not

13 support it at all. For example, Plaintiff claims that Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2000),

14 held that it is only “the standing of the entire class [and not the named plaintiff] that matter[s].” (DE

15 42 at 10). In fact, the court stated an entirely different proposition – that, after a putative class action

16 has been properly certified, class standing as a whole is relevant to the scope of injunctive relief. Id.

17 at 871. Armstrong also made clear that prior to class certification, as here, the plaintiffs must have 18 individual standing as to each claim asserted.6 See Bates v. United Parcel Servs., Inc., 511 F.3d 974,

19 987 (9th Cir. 2007) (standing of the class as a whole becomes relevant only after class certification).

20 Thus, Armstrong actually refutes Plaintiff’s contention that his class allegations dispense with the

21

22 6 In Armstrong, seventeen disabled prisoners brought a class action against the State of
23 California seeking a reformation of the State’s written policy and practice that prevented disabled prisoners and parolees from attending, communicating at, or comprehending parole revocation
24 hearings. Id. at 855, 867. After class certification and trial, the district court entered a permanent injunction supported by seventy-four pages of detailed factual findings as to why the State’s written
25 parole revocation notification and hearing process violated the ADA. On appeal, the State accepted the court’s comprehensive factual findings, “including those that support the district court’s standing
26 determination.” Id. at 860. The State then argued that the relief should have been limited to the named plaintiffs, because they lacked standing to pursue claims on behalf of other prisoners with
27 different injuries. Id. at 867. The Ninth Circuit disagreed, holding that the discriminatory policy amounted to a single wrong that the named plaintiffs and class members shared. Id. at 866-67.
28
5

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1 requirement that he have individual standing for each of the site-specific claims he wishes to assert.7

2

Importantly, Armstrong itself was quoting from, and applying, Lewis v. Casey, 518 U.S. 343

3 (1996), which, in turn, addressed -- and rejected -- the argument Plaintiff makes here. There, inmates

4 brought a class action against Arizona officials alleging unlawful deprivation of access to legal

5 research materials. Following class certification and trial, the district court granted statewide

6 injunctive relief that aided illiterate prisoners, non-English speakers, prisoners in lockdown, and the

7 inmate population at large, even though only one named plaintiff, who was illiterate, had established

8 actual injury. Lewis, 518 U.S. at 358. The Supreme Court accepted review to consider whether the

9 named plaintiffs’ injuries justified the scope of injunctive relief ordered. Id.

10

The Court began by observing that the “actual-injury requirement would hardly serve [its]

11 purpose….if once a plaintiff demonstrated harm from one particular inadequacy in government

12 administration, the court were authorized to remedy all inadequacies in that administration. The

13 remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff

14 has established.” Id. at 357. The Court then reaffirmed that this settled rule applies in class actions:

15

This is no less true with respect to class actions than with respect to other suits. That

a suit may be a class action adds nothing to the question of standing, for even named

16

plaintiffs who represent a class must allege and show that they personally have been

injured, not that injury has been suffered by other, unidentified members of the class

17

to which they belong and which they purport to represent.”

18 Id. (citations omitted) (emphasis added). In dissent, Justice Stevens posited that any individual

19 standing by the named plaintiff should be sufficient to confer standing on the plaintiff to pursue

20 similar claims on behalf of all class members. The Court expressly rejected this contention:

21

Justice STEVENS concludes, in gross, that Bartholic’s and Harris’s injuries are

sufficient to satisfy any constitutional standing concerns. But standing is not

22

dispensed in gross. If the right to complain of one administrative deficiency

automatically conferred the right to complain of all administrative deficiencies, any

23

citizen aggrieved in one respect could bring the whole structure of state

administration before the courts for review. That is of course not the law. As we

24

have said, ‘nor does a plaintiff who has been subject to injurious conduct of one kind

possess by virtue of that injury the necessary stake in litigating conduct of another

25

26

7 Likewise, the section of Newberg on Class Actions that Plaintiff quotes sets forth the

unremarkable proposition that once the named plaintiff has satisfied the threshold individual

27 standing requirement for all claims he asserts, then the issue of whether he may represent a class depends on satisfying Rule 23. Conte and Newberg, Newberg on Class Actions § 2:7 (4th ed. 2008).

28

6

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kind, although similar, to which he has not been subject.” 1
Id. at 358 n.6 (quoting Blum, 457 U.S. at 999) (emphasis in original) (italics added). Accordingly,

2 the Court held that the scope of the injunction could not extend beyond those changes designed to

3 remedy the named plaintiffs’ injuries. Id. at 358-59.

4 Finally, the Court rejected the argument Plaintiff Castaneda makes here that the standing

5 determination is replaced by the certification determination in class actions:

6

[O]ur holding that respondents lacked standing to complain of injuries to non-

7

English speakers and lockdown prisoners does not amount to a conclusion that the

class was improper. The standing determination is quite separate from certification

8

of the class. Again, Blum proves the point.”

9 Id. at 358 n.6; see also Dallas Gay Alliance v. Dallas County Hosp. Dist., 719 F. Supp. 1380, 1384

10 (N.D. Tex. 1989) (the limitations of Article III apply to class actions).

11

Here, Plaintiff repeats the losing argument from Lewis that standing should be dispensed in

12 gross, such that his visit to two restaurants automatically confers standing to bring all California

13 BKLs before the court for review. As Lewis and Blum (discussed in Defendant’s initial brief) make

14 plain, “that is of course not the law.” Thus, Plaintiff’s lack of standing to bring claims against the

15 additional BKLs requires that those claims be dismissed, notwithstanding his class allegations.

16

3. Plaintiff’s Assertion that Defendant Has Not Cited Decisions that Dismissed

for Lack of Standing Title III ADA Claims Against Restaurants the Named

17

Plaintiff Failed to Visit Is Patently False

18

Plaintiff also attempts to justify his standing to assert claims against additional restaurants by

19 arguing – falsely – that Defendant has not cited a single putative class action that dismissed for lack

20 of standing Title III ADA claims as to restaurants or stores the named plaintiff had not visited. In

21 fact, Burger King Corporation cited cases that did precisely that. In both Clark v. Burger King

22 Corp., 255 F. Supp. 2d 334, 343-44 (D.N.J. 2003) (cited in DE 29 at 5, 7, 8, 11, 13), and Clark v.

23 McDonald’s Corp., 213 F.R.D. 198, 230 (D.N.J. 2003) (cited in DE 29 at 5, 6, 7, 15), the court

24 dismissed Title III ADA claims as to the restaurants in the respective restaurant chains that Mr.

25 Clark had never patronized, precisely because his inclusion of class allegations was legally

26 insufficient to extend his standing, or the court’s jurisdiction, to restaurants he had not visited (and

27 which, accordingly, had not caused him injury). Similarly, in Small v. Gen. Nutrition Cos., 388 F.

28 Supp. 2d 83 (E.D.N.Y. 2005), the court dismissed for lack of standing the named plaintiff’s Title III 7

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1 ADA claims as to vitamin stores he had not visited pre-suit, despite the presence of class allegations.

2 And in Moreno v. G & M Oil Co., 88 F. Supp. 2d 1116, 1117-18 (C.D. Cal. 2000) (cited in DE 29 at

3 5, 6), the court denied the plaintiff’s request to file an amended complaint seeking to assert claims on

4 behalf of himself and others similarly situated as to 82 additional service stations owned by the

5 defendant.

6

Plaintiff suggests that the BKC and McDonald’s cases are not on point, because, after

7 dismissing claims as to restaurants Mr. Clark had not patronized, “the court held that it was

8 premature to resolve the question of the scope of an eventual plaintiff class action.” (DE 42 at 11).

9 To the contrary, the court made it clear that any eventual class would be limited to the restaurants

10 the plaintiff had visited pre-suit. McDonald’s, 213 F.R.D. at 226; BKC, 255 F. Supp. 2d at 342. The

11 court reserved ruling on the scope of the class only to await the filing of amended complaints

12 specifically identifying all restaurants the plaintiff had visited. McDonald’s, 213 F.R.D. at 233-34;

13 BKC, 255 F. Supp. 2d at 345. Thus, these cases make plain that plaintiff’s lack of individual

14 standing requires dismissal of all claims against the additional BKLs.

15

4. Plaintiff’s Failure to Allege Specific Facts Showing that a Burger King

Corporation Policy/Practice Caused Common Accessibility Violations Is Fatal

16

to Plaintiff’s Standing as Against the Additional BKLs

17

Plaintiff has failed to cite any apposite decision that supports his contention that Defendant’s

18 motion to dismiss for lack of standing should be denied. Instead, relying solely on cases considering

19 motions for class certification, Plaintiff argues that he must have standing to sue the additional

20 restaurants, because what else explains why classes have been certified in some Title III ADA cases 21 involving chain businesses that the named plaintiffs had never patronized.8

22

But there are important differences. In those cases, the defendant designed and/or operated

23 all of the restaurants/stores at issue, and the Plaintiff alleged either a specific design flaw or a similar

24 company-wide directive that caused a specific common accessibility violation at all of the business

25 locations. This is the critical distinction, because in the case of a company-wide ADA violation, the

26 8 The fact that Plaintiff needs to rely upon decisions that neither involve a motion to dismiss for
27 lack of standing nor even discuss in dicta the proposition for which they are asserted demonstrates the lack of merit of Plaintiff’s contention. Those “less than dicta” district court opinions are, of
28 course, of no precedential effect. Lewis, 518 U.S. at 352 n.2.
8

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1 named plaintiff and the entire class have suffered a shared injury from the same single wrong, even

2 though it manifests itself at numerous locations. See Blum, 457 U.S. at 1001 (named plaintiff’s

3 standing limited to representing class members at other facilities who were victims of same unlawful

4 policy with same type of claim); Clark v. Burger King Corp., 255 F. Supp. 2d at 343 (noting that

5 named plaintiff may have had standing as against restaurants he had not visited had he alleged

6 implementation of a specific corporate policy that violated the ADA).

7

For example, in both Moeller v. Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004) and Colo.

8 Cross Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 356 (D. Colo. 1999) (DE 42 at 14), the

9 complaints not only alleged that the multiple restaurants the named plaintiffs visited contained an

10 identical ADA barrier in their queue lines, but also that Taco Bell Corporation itself had designed

11 and constructed that flaw into every company-owned and operated Taco Bell® restaurant. See

12 Moeller, 2003 WL 25743634, ¶¶ 7-18, 29-44, 46 (N.D. Cal. 2003). Taco Bell Corp. logically chose

13 not to challenge plaintiffs’ standing. See 220 F.R.D. at 615 (“in this case the class members, rather

14 than challenging individual actions taken by the defendant against each of them separately, all

15 challenge the same actions [that] affect all class members in almost precisely the same way [making

16 this] a paradigm of the type of action for with the [Rule 23](b)(2) form was created”).

17

In Lucas v. Kmart Corp., also brought by Plaintiff’s counsel, the plaintiffs alleged centralized

18 policies and practices, including a “display policy” and a “stocking policy” that created barriers at

19 all corporate owned and operated stores nationwide. See 2005 WL 1648182, at *1 (D. Colo. July 13, 20 2005); 2006 WL 722163, at *2 (D. Colo. Mar. 22, 2006).9 In Arnold v. United Artists Theatre

21 Circuit, Inc., 158 F.R.D. 439, 445-46 (N.D. Cal. 1994) (DE 42 at 13-14), the court certified a class

22 including theaters that no named plaintiff had attended, where the complaint alleged a company

23 policy pursuant to which every theater constructed post-ADA violated a specific requirement by

24

25

26

9 Significantly, in Kmart, the only one of Plaintiff’s certification cases where standing was

apparently raised, plaintiff, represented by the Fox & Robertson firm, argued that standing existed

27 with respect to unvisited stores precisely because they were challenging Kmart’s “policies and

practices that cause[d] barriers to individuals with mobility impairments,” and not the “specific

28 physical barriers” themselves. (See Van Horn Dec., ¶ 6, Ex. D.)

9

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1 placing all wheelchair spaces in the back row.10 Thus, these cases included both an expressly-

2 identified access barrier present throughout the defendant’s stores and a company-wide practice or 3 policy that caused that access barrier.11

4

Finally, Plaintiff cites two Ninth Circuit employment discrimination cases to show that

5 “courts have certified classes of individuals with legal claims involving varying facilities without

6 requiring a named plaintiff with individual standing as to each facility.” (See DE 42 at 15, citing 7 Parra v. Bashas’, Inc., 536 F.3d 975 (9th Cir. 2008) and Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th

8 Cir. 2008)). These cases are inappropriate. First, both assert Title VII claims, which the Supreme

9 Court has previously characterized as involving “class” wrongs by their very nature. See E. Tex.

10 Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 405 (1977) (“suits alleging racial or ethnic

11 discrimination are by their very nature class suits, involving classwide wrongs”). Moreover, both

12 do, in fact, assert company-wide discriminatory policies affecting a broad class of employees. In a

13 more analogous Title VII situation involving multiple locations where no company-wide policy

14 existed, the Ninth Circuit has denied class certification. See Donninger v. Pacific Nw. Bell, Inc., 564 15 F.2d 1304 (9th Cir. 1977) (denying class certification as to all six of defendant’s locations where

16 each office had a separate affirmative action program with “decentralized enforcement” and the 17 named plaintiffs represented only three of the six locations.12

18

19

10 See also Access Now, Inc. v. Ambulatory Surgery Ctr. Group, 197 F.R.D. 522, 526 (S.D. Fla.

2000) (complaint alleged that all of the defendants were parties to a unique services agreement that

20 included a common program of construction, design, and building code/ADA compliance review

designed by the same group of advisors, which resulted in identical structural and operational

21 barriers at every location). Notably, Ambulatory Surgery is contrary Ninth Circuit law in that it

certified a class that included every type of disability despite the fact that the named plaintiffs did 22 not represent all types of disabilities. See Doran v. 7-Eleven, 524 F.3d 1034, 1044 n.7 (9th Cir.

2008).

23

11 The final group of ADA cases on which Plaintiff relies certified classes for settlement

purposes only, making them even less authoritative. Again, they appear to have involved corporate

24 owned stores and/or company-wide policies or practices. See, e.g., Access Now, Inc. v. Claire’s

Stores, Inc., 2002 WL 1162422, at **1-3 (S.D. Fla. May 7, 2002) (class certification and settlement

25 limited to stores with nationwide design and construction flaws resulting in exclusionary practices

and structural barriers); Ass’n for Disabled Ams., Inc. v. Amoco Oil Co., 211 F.R.D. 457, 463 (S.D.

26 Fla. 2002); Access Now, Inc. v. AHM CGH, Inc., 2000 WL 1809979, at *3 (S.D. Fla. July 12, 2000). 12 Moreover, reliance on such cases must be tempered by the fact that the grant of standing

27 under Title III of the ADA is significantly narrower than that granted by either Title VII or Titles I,

II and VI of the ADA. Compare 42 U.S.C. § 2000e-5(f)(1) and 42 U.S.C. §§ 12117, 12133 with 42

28 U.S.C. § 12188(a).

10

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1

In recognition of the need for a common policy/practice to avoid dismissal, Plaintiff

2 stretches to reach the additional BKLs by conclusorily asserting, solely on “information and belief,”

3 that Burger King Corporation provided prototypes, plans and other assistance to its franchisees in

4 connection with the construction of their restaurants. (See DE 1 ¶¶ 27-29). The crucial allegation,

5 however, is missing – that there is something in those practices, policies, prototypes or plans that 6 caused a violation of disability access laws.13 The absence of such crucial factual allegations is the

7 precise reason why this case is different from the other cases in which classes were certified despite

8 the fact that the named plaintiffs had not visited all of the defendant’s locations.

9

Plaintiff likewise argues that his allegations that Defendant provides its franchisees with a

10 “standardized” operations manual that teaches how to properly prepare a hamburger and keep the

11 restrooms clean, demonstrate that Burger King Corporation maintains a high level of control over

12 the independent franchisees. (DE 42 at 5). This is nothing more than a back-door attempt to

13 mislead the Court into believing that the franchised restaurants are actually company operated, like

14 the stores in the Taco Bell and Kmart cases, and to unwittingly impose franchisor liability under the

15 ADA, something that courts repeatedly have rejected. See Neff v. Am. Dairy Queen, 58 F.3d 1063 16 (5th Cir. 1995) (franchisor not liable under ADA as “operator” because it does not have authority

17 over the discriminatory action); U.S. v. Days Inns of Am., 1998 WL 461203 (E.D. Cal. Jan. 12, 1998)

18 (same); Alonzo v. Mr. Gatti’s Pizza, Inc., 933 S.W.2d 294 (Tex. Ct. App. 1996) (franchisor cannot 19 be held liable for ADA violations where it neither owns nor operates the facility).14

20 13 Plaintiff’s representation that he needed to make the allegations in paragraphs 23-36 of his
21 Complaint on “information and belief” because he did not have access to relevant documents (DE 42 at 5) is wrong. First, as counsel informed the Court during the hearing on Plaintiff’s so-called
22 Motion to Compel Compliance with General Order No. 56 (DE 8), Burger King Corporation voluntarily provided certain documents, including prototypical store designs, to Plaintiff’s counsel
23 pre-suit. (DE 41 at p. 8, ll. 16-19). Defendant’s franchise agreements and leases, moreover, are publicly available. (Van Horn Dec., ¶¶ 4,5).
24 14 Plaintiff also contends he has adequately alleged “common barriers.” (DE 42 at 11-15). This
25 contention grossly overstates the Complaint, which does not include a single allegation that supports the claim that common barriers exist at all BKLs. In fact, nowhere in his Complaint does Plaintiff
26 identify a single “common” barrier among Burger King® restaurants, nor could he since he has failed to visit them. (See DE 1 ¶¶ 41, 42). Moreover, Plaintiff fails to trace their cause to an
27 unlawful policy or practice. This is especially important given the fact that the restaurants Plaintiff seeks to sue are independently operated, “were built at various times and markedly differ from one-
28 another in their construction and configuration.” Clark, 255 F. Supp. 2d at 343 n.11.
11

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1

In short, while it is possible to conceive of a case where a named plaintiff has alleged injury

2 from a discrimination policy sufficient to allow him to withstand a motion to dismiss premised upon

3 his failure to have suffered injury at all stores or restaurants identified in a Title III ADA action, this

4 is not such a case. As the governing case law Defendant has cited makes plain, Plaintiff’s class

5 allegations have “added nothing to the question of standing,” and his claims against the additional

6 BKLs must be dismissed.

7

5. Plaintiff Lacks Standing to Assert Any Design and Construction Claim

8

Burger King Corporation explained in its initial brief that Plaintiff does not possess a claim

9 under the ADA relating to the design or construction because both named restaurants were designed

10 and constructed prior to the enactment of the ADA’s design and construction requirement. (DE 29

11 at 9 n.4, 13-14). Plaintiff responds by stating that even though constructed pre-ADA, these two

12 restaurants are still subject to the barrier removal if “readily achievable.” (DE 42 at 17-18).

13

Plaintiff misses the point. Title III of the ADA permits private plaintiffs to assert three

14 different types of claims: (i) claims based on the failure to comply with ADA standards in

15 connection with the original design and construction of the building (see 42 U.S.C. § 12183(a)(1));

16 (ii) claims based on the failure to comply with ADA standards in connection with subsequent

17 alterations of the building (see 42 U.S.C. § 12183(a)(2)); and (iii) claims based on the failure to

18 remove architectural barriers in existing facilities, where doing so is “readily achievable” (42 U.S.C.

19 § 12182(b)(2)(A)(iv)). Plaintiff’s Complaint purports to assert all three types of claims. (See DE 1

20 at 11). However, Plaintiff does not personally possess a Section 12183(a)(1) design and

21 construction claim -- even at Pleasant Hill and Pittsburg. Having failed to suffer any injury from a §

22 12183(a)(1) violation, Plaintiff lacks standing as to such claims and they should be dismissed.

23

B. PLAINTIFF’S CLASS ALLEGATIONS AS TO THE ADDITIONAL

RESTAURANTS SHOULD ALSO BE DISMISSED UNDER RULE 23(d) 24
The fact that Plaintiff lacks standing to assert claims as against additional BKLs requires

25 dismissal of the class allegations against those BKLs as well under Rule 23(d). Gratz v. Bollinger,

26 539 U.S. 244, 263 n.15 (2003); Bates v. United Parcel Servs, Inc., 511 F.3d 974, 986-87 (9th Cir.

27 2007). Plaintiff ignores this, and essentially argues that class allegations should never be dismissed

28

12

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1 at the pleadings stage. To the contrary, it is settled dismissal on the pleadings prior to discovery or a

2 Rule 23 motion is appropriate where the flaws in the class claims are apparent. See Gen. Tel. Co. of

3 Sw. v. Falcon, 457 U.S. 147, 160 (1982) (approving dismissal of class allegations where issues were

4 “plain enough from the pleadings”); Clark v. McDonald’s Corp., 213 F.R.D. at 205 n.3 (collecting 5 cases dismissing class allegations under Rule 23 at the pleadings stage).15

6

Put simply, just as Plaintiff lacks standing, his claimed injury differs from those of putative

7 class members who visited the restaurants that Plaintiff did not patronize. As a result, Plaintiff

8 cannot satisfy the commonality, typicality and adequacy of representation requirements under Rule

9 23 as to the additional BKLs. (See DE 29 at 11-14). Therefore, class claims relating to those

10 additional restaurants must be dismissed.

11

C. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED PURSUANT TO

RULES 8, 12(b)(6) AND 12(e)

12

13

Plaintiff misapprehends Defendant’s arguments regarding the sufficiency of his allegations.

14 Burger King Corporation has not argued that Plaintiff’s vague description of the access barriers that

15 he claims to have encountered was not sufficient. (See DE 42 at 19). What Defendant protests is

16 Plaintiff’s failure to “identify which barriers he confronted at which restaurant.” (DE 29 at 15). In

17 that respect, the Complaint is so broadly worded that it is impossible to discern which of the listed

18 barriers Plaintiff encountered at which restaurants. (See DE 1 ¶ 42). Accordingly, Skaff v. Meridian 19 N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007), actually supports dismissal in this instance.

20

Clark v. McDonald’s Corp., which, as here, involved multiple restaurants, is also instructive.

21 There, the court dismissed the complaint in part because the complaint failed to distinguish those

22 restaurants that were alleged to have violated the ADA from those that were not, and failed to state

23 which violations existed at each of the restaurants alleged to violate the ADA, leaving the defendant

24 “to guess which of its … restaurants are alleged to violate the ADA and how so.” 213 F.R.D. at

25 15 Although Plaintiff’s opposition characterizes Defendant’s motion to dismiss class allegations
26 relating to those restaurants he has not visited as a Rule 12(f) motion to strike (which motions Plaintiff says are disfavored) (see DE 42 at 8), Defendant’s motion actually is brought under Rule 23
27 (see DE 29 at 11, citing Rule 23(d)(1)(D).) Indeed, all of the cases cited herein that dismiss class allegations do so under either Rule 23(c) or Rule 23(d)(1)(D).
28
13

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1 234-35. Accordingly, the Complaint should be dismissed under Rule 12(b)(6).16

2

D. PLAINTIFF’S STATE LAW CLAIMS SHOULD BE DISMISSED

3

1. Neither Unruh Nor the CDPA Impose Liability on Burger King Corporation

Merely Due to Its Status as a Franchisor or Sublessor 4
Unlike the ADA, which makes the landlord an additional party responsible for curing

5 accessibility violations caused by a facility’s operator, liability under California’s statutory disability

6 scheme is based on the actions of the party. To be liable under Unruh, a party itself must engage in

7 intentional discrimination. Similarly, to be liable under the CDPA, a party itself must have denied or

8 interfered with access (although there is no intentional discrimination requirement). Nonetheless,

9 Plaintiff insists that any leasehold interest Burger King Corporation may have in a restaurant renders

10 it liable under Unruh and CDPA for any accessibility violation created by the third party operators.

11 Plaintiff asks this Court to do what the California Supreme Court has prohibited California

12 courts from doing in construing California statutes: imply terms employed in one place that are

13 excluded in another. Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711, 725 (Cal. 1989). Plaintiff

14 attaches significance to the fact that the California Supreme Court’s opinion in Brown did not deal

15 specifically with the interplay between Unruh and the CDPA with the ADA. The California

16 Supreme Court, however, did not so limit its directive to courts interpreting any statute:

17

If the Legislature had intended subdivision 3 [of Section 47 of the Civil Code dealing

18

with a privileged publication or broadcast] to apply to the new media as such or to

communications on matters of public interest, the Legislature could have used the

19

same clear language as subdivisions 4 and 5 [of Section 47 relating to privileges

afforded public journals and to fair and true reports]. 20
Brown, 48 Cal.3d at 725 (citations omitted). The Supreme Court observed: “The omission from

21 subdivision 3 of any reference to public journals, coupled with such a reference in subdivision 4,

22 suggests the Legislature did not intend subdivision 3 to provide a special privilege to

23 communications by the news media based on their status.” Id. at 724 (emphasis added). Similarly,

24

25 16 Plaintiff improperly attempts to add by affidavit seven more restaurants that he purportedly
26 just now remembered having visited prior to filing the Complaint. (See DE 43). If, following dismissal Plaintiff is permitted to amend, it should be issued instructions to include with any
27 proposed amended complaint a list of all BKLs that Plaintiff claims to have visited prior to filing his original Complaint, the dates on which such visits occurred, and the access violations that Plaintiff
28 claims to have encountered at each listed restaurant. Clark v. McDonald’s, 213 F.R.D. at 234.
14

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1 the California Legislature’s omission from Unruh and the CDPA of the ADA’s status based liability

2 categories demonstrates that the Legislature did not intend to impose liability on franchisors or 3 sublessors based on their status as opposed to their actions.17 Plaintiff’s opposition brief is unable

4 find any support that would allow the Court to amend the clear language of either Unruh or the

5 CDPA to impose status based liability on a franchisor such as Burger King Corporation.

6

Plaintiff erroneously argues that the “precise issue” raised by Burger King Corporation’s

7 motion to dismiss was decided in its favor in Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp.

8 2d 946 (N.D. Cal. 2006). First, in National Fed’n of the Blind, the plaintiff brought an action against

9 Target based on Target’s actions – plaintiff did not seek to impose liability on a party based on that

10 party’s status as a franchisor or sublessor. Moreover, Nat’l Fed’n of the Blind was decided before 11 Gunther v. Lin, 144 Cal. App. 4th 223 (Cal. Ct. App. 2006), and, accordingly, the Court did not have

12 the benefit of the California court’s interpretation of its own laws. Nor was the issue of status-based

13 liability raised in any of the other decisions cited. See Hubbard v. Rite Aid Corp., 433 F. Supp. 2d

14 1150 (S.D. Cal. 2006) (pre-Gunther case that failed to address whether a party could be liable

15 merely as a result of its status as sublessor); Haworth v. Haddock, 2007 WL 3239564 (E.D. Cal.

16 Nov. 2, 2007) (post-Gunther case in which plaintiff obtained a default and the defendant was not a

17 franchisor or sublessor but the owner/operator of the restaurant); Molski v. M.J. Cable, Inc., 481 18 F.3d 724 (9th Cir. 2007) (defendant was owner/operator rather than a franchisor/sublessor and court

19 did not address Gunther or status based liability); Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d

20 1127 (E.D. Cal. 2007) (suit against franchisee of a Jack-in-the-Box and not the franchisor awarding

21 summary judgment to the plaintiff in which the court was sharply critical of Gunther and chose to

22 ignore the California court’s pronouncement regarding intent). Two subsequent cases specifically

23 declined to follow that opinion. See Wilson v. PFS, LLC., 493 F. Supp. 2d 1122, 1126 (S.D. Cal.

24

25

17 Rather than substantively address the California Supreme Court’s rules of statutory

construction as set forth in Brown, Plaintiff quotes from the Court’s 1985 opinion in Isbister v. Boys’

26 Club of Santa Cruz, Inc., 707 P.2d 212, 214 (Cal. 1985), where it held that the Unruh should be

interpreted “in the broadest sense reasonably possible.” Of course, nowhere in Isbister does the

27 Court hold that courts may re-write a statute. Moreover, just six years later, the same court held that

an Unruh plaintiff must plead and prove intentional discrimination. Harris v. Capital Growth

28 Investors XIV, 52 Cal. 3d 1142, 1175 (Cal. 1991).

15

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Case3:08-cv-04262-WHA Document58 Filed01/29/09 Page25 of 30

1 2007) (also rejecting the path taken by Wilson v. Haria & Gogri Corp., and instead, granting motion

2 to dismiss because “Plaintiff’s state law claims are more appropriately resolved by state courts in

3 light of Gunther and because novel and complex matters of state law are ‘better left to the California

4 courts”). See also Cross v. Pacific Coast Plaza Invs. L.P., 2007 WL 951772, at *5 (S.D. Cal. Mar.

5 6, 2007)); Morgan v. Am. Stores Co., 2007 WL 1971945, at *3 (S.D. Cal. June 29, 2007) (quoting

6 Cross, 2007 WL 95172, at *5). Clearly, in light of Gunther and Harris v. Capital Growth Investors

7 XIV, 52 Cal.3d 1142 (Cal. 1991), the best course is to dismiss Plaintiff’s Unruh Act claim.

8

2. Plaintiff Cannot Adequately Allege Discriminatory Intent as Required to

State an Unruh Act Claim

9

As fully set forth in Burger King Corporation’s initial memorandum, Plaintiff is required to

10

plead and prove that Burger King Corporation intended to discriminate against Plaintiff to state a

11

cause of action pursuant to Section 52, which imposes liability on those that “den[y], aid[ ] or incite[

12

] a denial, or make any discrimination . . . .” Cal. Civ. Code §§51(f), 52(a). The California Supreme

13

Court has held that Section 52 requires a plaintiff to plead and prove discriminatory intent. Harris,

14 52 Cal.3d at 1175; Gunther, 144 Cal. App. 4th 223, 227.18

15

As previously discussed, Plaintiff fails to identify any specific policies, practices,

16

procedures, or barriers created by Burger King Corporation or how such policies, practices,

17

procedures, or barriers of Burger King Corporation intentionally discriminated against Plaintiff or

18

anyone else. Further, Plaintiff fails to allege which, if any, barriers existed and which applicable

19

access standards were violated.

20

The Supreme Court has rejected the type of conclusory and formulaic allegations found in

21

Plaintiff’s Complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007);

22

23 18 The California Legislature recently acknowledged the “intent” element when it enacted the
24 “Construction-Related Accessibility Standards Compliance Act (the “Compliance Act”), Cal. Civil Code at § 55.51 et seq., which provides that the failure to hire a certified access specialist “shall not
25 be admissible to prove that person’s lack of intent to comply with the law.” Cal. Civ. Code §55.53(f)(emphasis added). Section 55.51 states that the Compliance Act “shall apply to any
26 construction-related accessibility claim.” Cal. Civ. Code §55.1 (emphasis added). The reason why the California Legislature found it necessary to specifically reference “lack of intent” in a statute that
27 took effect on January 1, 2009 is obvious: the Legislature was acknowledging the already existing intent requirement necessary to state an Unruh claim. Any other reading of Section 55.53 renders
28 the pertinent language superfluous and meaningless.
16

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Case3:08-cv-04262-WHA Document58 Filed01/29/09 Page26 of 30

1 Brewer v. Indymac Bank, 2008 WL 3863432, at * 1 (E.D. Cal. Aug. 14, 2008). Where “plaintiffs do

2 not explain what allegedly wrongful conduct of defendants caused [plaintiffs’ injury]”, the complaint

3 should be dismissed. Id. at *2-3. This is especially true here where the documents referenced in the

4 Complaint directly contradict the allegations of the Complaint. Indeed, Plaintiff’s opposition brief

5 does not address, much less explain, how Burger King Corporation could have intentionally (or

6 unintentionally) discriminated against Plaintiff (or anyone else for that matter) or denied or

7 interfered with his or anyone else’s access to any BKL restaurant given that it affirmatively requires

8 its franchisees to “promptly observe and comply with all present and future laws” and requires that

9 all “[a]lterations and/or additions to the Premises if required [must comply with ] the American

10 Disabilities Act of 1990.” (DE 30 Exs. C, F). Plaintiff’s formulaic and conclusory allegations are

11 not sufficient to withstand Burger King Corporation’s motion to dismiss. As the Ninth Circuit has

12 held, courts “are not required to accept as true conclusory allegations which are contradicted by

13 documents referred to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 14 (9th Cir. 1998); see also ASIS Internet Servs. v. Optin Global, Inc., 2006 WL 2792436, at * 6 (N.D.

15 Cal. Sept. 27, 2006)(same).

16

Clearly, Plaintiff’s Unruh Act claim must be dismissed given that he is unable to “plead and

17 prove intentional discrimination in public accommodations in violations of the terms of the Act.”

18 Harris, 52 Cal. 3d at 1175; cf McColm v. San Francisco Hous. Auth., 2007 WL 1575883, at *19

19 (N.D. Cal. May 29, 2007) (in granting motion for summary judgment, Judge Hamilton held that

20 Unruh claimant “provide[s] absolutely no detail or description regarding the basis for the

21 allegation”). “Rule 8(a) requires parties to make their pleadings straightforward, so that judges and

22 adverse parties need not try to fish a gold coin from a bucket of mud” that is Plaintiff’s Complaint.

23 Brewer, 2008 WL 3863432, at *1.

24

3. Plaintiff’s CDPA Action also Must Be Dismissed

25

Plaintiff also fails to state a claim under the CDPA. Although the CDPA does not require

26 intentional discrimination, whether a party is liable under the CDPA is determined by its actions and

27 not on its status as a franchisor or sublessor: “Any person or persons, firm or corporation who

28 denies or interferes . . . .” Cal. Civ. Code §54.3(a)(emphasis added). Given that Burger King 17

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Case3:08-cv-04262-WHA Document58 Filed01/29/09 Page27 of 30

1 Corporation did not operate any BKL in California and that it affirmatively requires franchisees to

2 comply with all disability access laws, Burger King Corporation has not denied or interfered with

3 Plaintiff’s access or the access of anyone else. Further, to state a claim for damages under the

4 CDPA, “an individual must take the additional step of establishing that he or she was denied equal

5 access on a particular occasion.” Urhausen v. Longs Drug Stores Cal., Inc., 155 Cal. App. 4th 254,

6 262 (Cal. Ct. App. 2007)(emphasis added). Because the Complaint itself only references two BKLs

7 that Plaintiff allegedly visited, Plaintiff admittedly has not been denied equal access at any other

8 BKL restaurant under any set of circumstances. Accordingly, at a minimum, the Court should

9 dismiss Plaintiff’s CDPA claim as to these restaurants where he could not possibly have been denied

10 access. The Court also should dismiss Plaintiff’s CDPA claim for damages as to the two restaurants

11 that the Complaint conclusorily alleges he visited, because Plaintiff fails to allege how he was

12 denied access at these two restaurants and on what “particular occasion” he allegedly was denied

13 access. Id.

14

Finally, “to state a cause of action for violation of sections 54 or 54.1 based on a structural or

15 architectural barrier, the existence of the barrier must be in violation of a separate provision of law

16 relating to structural access standards.” Coronado v. Cobblestone Vill. Cmty. Rentals, 163 Cal. App.

17 4th 831, 845 (Cal. Ct. App. 2008). In addition to failing to identify which barriers denied him access

18 at any of the BKL restaurants, Plaintiff completely fails to identify any “separate provision of law

19 relating to structural access standards” that these unnamed barriers violated. Accordingly, Plaintiff’s

20 CDPA claim should be dismissed. As with his Unruh Act claim, Plaintiff has wholly failed to

21 satisfy his pleading requirements and has asked this Court and Burger King Corporation to “fish a

22 gold coin from a bucket of mud.” Brewer, 2008 WL 3863432, at *1.

23

E. THE COURT SHOULD DECLINE TO HEAR, OR, AT MINIMUM, STAY

CONSIDERATION OF PLAINTIFF’S UNRUH AND CDPA CLAIMS 24
The parties are in agreement that Plaintiff’s most substantial monetary claim -- for automatic

25 punitive damages amounting to $4,000 per encounter with accessibility violation under Unruh -- is

26 the subject of conflicting law, some of which issues are presently before the California Supreme

27 Court. (See DE 42 at 19-20). Accordingly, this Court should decline to exercise supplemental

28

18

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Case3:08-cv-04262-WHA Document58 Filed01/29/09 Page28 of 30

1 jurisdiction pursuant to 28 U.S.C. § 1367. See Oliver v. GMRI, Inc., 2007 WL 4144995, at *3 (S.D.

2 Cal. Nov. 19, 2007). Alternatively, principles of fairness and comity dictate that this Court stay or

3 dismiss these claims. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).

4

Plaintiff responds by arguing that the California Supreme Court proceeding to resolve the

5 certified question “will be resolved soon” and that it “will have very little effect on this case” in any

6 event. (DE 42 at 26-27). To the contrary, it is impossible to predict when the matter will be

7 resolved, especially since responses to amicus briefs are not yet even due. (See DE 42 at 27; DE 44,

8 Ex. 12). Moreover, a strong likelihood remains that the California Supreme Court ruling will not

9 resolve the issues raised here, which are not identical.

10

Additionally, proceeding without a governing standard will clearly prejudice Burger King

11 Corporation in its defense of such vague claims. Respectfully, this Court should follow the lead of

12 the only case to address this issue since the Ninth Circuit certified the question, and dismiss the state

13 claims. Oliver v. KFC Corp., 2008 WL 2756605 (S.D. Cal. July 14, 2008).

14

F. CAFA DIVERSITY JURISDICTION IS ABSENT

15

The recently-enacted Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), requires a

16 federal court to decline to exercise jurisdiction over any class action that qualifies for exemption

17 from the law under the “local controversy exception.” 28 U.S.C. § 1332(d)(4). Plaintiff’s Response

18 does not dispute that this case satisfies the first two prongs of the four-part test: (1) more than 2/3 of

19 the putative class members are citizens of California, and (2) their principle injuries were incurred in

20 California. (See DE 42 at 21). The applicability of the third prong, the presence of a significant

21 defendant who is a California resident, see 28 U.S.C. § 1332(d)(4)(A)(i)(II), turns on the question of

22 whether the franchisee operators of the BKLs at issue are indispensible parties who must be joined

23 under Fed. R. Civ. P. 19, which is discussed in some detail in Burger King Corporation’s opening

24 papers. (See DE 29 at 17-19). Plaintiff argues that at least some relief can be provided in the

25 absence of the franchisees, relying upon Burger King Corporation’s “extensive” resources. (DE 42

26 at 23, emphasis added). Plaintiff ignores the important – and dispositive – question of whether the

27 franchisees’ rights will be prejudiced if this case proceeds without them. (See DE 29 at 18-19,

28 collecting cases). Moreover, because absent parties such as the franchisees must be considered 19

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Case3:08-cv-04262-WHA Document58 Filed01/29/09 Page29 of 30

1 when applying the CAFA “significant defendant” test, and because the franchisees clearly as

2 “indispensible” parties under Rule 19, the third prong of the CAFA “local controversy exception”

3 test is satisfied. See Mattera v. Clear Channel Comm., Inc., 239 F.R.D. 70 (S.D.N.Y. 2006).

4

The final prong of the exception is that “no other class action has been filed against the

5 defendants in the preceding three years asserting the same or similar claims.” 28 U.S.C. §

6 1332(d)(4)(A). The parties dispute whether or not this prong has been met. Plaintiff argues that

7 such an action has been filed, because on March 22, 2006, less than three years before this action

8 was filed, a disability rights group in Florida filed a putative class complaint against Burger King

9 Corporation under the ADA. (See DE 42 at 21, citing Disability Advocates & Counseling Group,

10 Inc. v. Burger King Corp., No. 06-20716, in the Southern District of Florida). Plaintiff conclusorily

11 alleges that the Florida action asserts “the same factual allegations against the same defendant” (DE

12 42 at 21), but provides no analysis in support of that conclusion. Moreover, the only guidance

13 provided by the cases that Plaintiff cites on the question of whether another complaint’s allegations

14 are sufficiently similar or “assert the same factual allegations” as the case at bar, is that three cases

15 filed against their insurers by Louisiana homeowners whose properties were damaged by Hurricane

16 Katrina, all of which purported to assert claims on behalf of a class of insured homeowners under

17 Louisiana’s Valued Policy Law, “undoubtedly assert similar factual allegations.” Caruso v. Allstate

18 Ins. Co., 369 F. Supp. 2d 364, 370-31 (E.D. La. 2007).

19

The case at issue here (“DAC”) differs from the case at bar in important respects. In DAC,

20 the plaintiffs had only visited company-operated restaurants all located in Florida, while in this case

21 the Plaintiff has only visited franchised restaurants located in California. DAC sought only

22 injunctive relief under the ADA, while this case seeks significant damages under Unruh and CDPA

23 as well. Finally, although the DAC was originally filed as a putative class action, plaintiffs’ first

24 action was to file an amended complaint that withdrew all class claims. (Van Horn Dec., Ex. E).

25

26

27

28 20

DEFENDANT BURGER KING CORPORATION’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

Case3:08-cv-04262-WHA Document58 Filed01/29/09 Page30 of 30

1

Burger King Corporation respectfully submits that DAC is not sufficiently similar to this

2 case to prohibit the application of the local controversy exception. CAFA was enacted to protect

3 interstate defendants from “certain abusive practices by plaintiffs’ class counsel” who filed multiple

4 class actions in multiple states to avoid federal jurisdiction. See Lowery v. Ala. Power Co., 483 F.3d 5 1184, 1193 (11th Cir. 2007) (citing CAFA §2, 119 Stat. at 5). Here, such concerns do not apply.

6 IV. CONCLUSION

7

For the foregoing reasons, Defendant requests that this Court dismiss Plaintiff’s Complaint

8 and provide such further relief as set forth in Defendant’s motion and supporting memorandum.

9

10 Dated: January 29, 2009 11 12 13 14 15 16 17 18

GENOVESE JOBLOVE & BATTISTA, P.A. Michael D. Joblove (pro hac vice) Jonathan E. Perlman (pro hac vice) Bank of America Tower, 44th Floor 100 S.E. Second Street Miami, Florida 33131
GLYNN & FINLEY, LLP Clement L. Glynn Adam Friedenberg One Walnut Creek Center 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596

19

By

s/Adam D. Friedenberg

20

Adam D. Friedenberg Attorneys for Defendant Burger King

21

Corporation

22

23

24

25

26 27 2000-491/574 v. 3

28 21

DEFENDANT BURGER KING CORPORATION’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

 
 Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page1 of 17

1 Bill Lann Lee – CA State Bar No. 108452 Julia Campins – CA State Bar No. 238023
2 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800
3 Oakland, CA 94612 Telephone: (510) 839-6824
4 Facsimile: (510) 839-7839 Email: blee@lewisfeinberg.com
5 Email: jcampins@lewisfeinberg.com

6 Timothy P. Fox – CA State Bar No. 157750 Amy Robertson (pro hac vice)
7 Fox & Robertson, P.C. 104 Broadway, Suite 400
8 Denver, CO 80203 Telephone: (303) 595-9700
9 TTY: (877) 595-9706 Facsimile: (303) 595-9705
10 Email: tfox@foxrob.com Email: arob@foxrob.com
11 [Additional Counsel Listed Below]
12 Attorneys for Plaintiffs
13

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

17 MIGUEL CASTANEDA, KATHERINE CORBETT, and JOSEPH WELLNER on
18 behalf of themselves and others similarly situated,
19 Plaintiff,
20 vs.
21 BURGER KING CORPORATION,
22 Defendant.
23
24

) Case No. CV-08-4262 WHA ) ) FIRST AMENDED COMPLAINT ) ) ) [CLASS ACTION] ) ) ) ) ) ) ) )

25

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA]

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page2 of 17

1

INTRODUCTION

2

1. Burger King is a national corporation with approximately 90 restaurants in the

3 State of California that it leases and/or subleases to franchises. Although Burger King

4 promises to treat its customers as “Kings” and encourages its customers to “Have it your way,”

5 Burger King treats customers who use wheelchairs and scooters as commoners who must have

6 it Burger King’s way or not at all. This proposed class action alleges that Burger King has

7 violated federal and state laws by denying customers who use wheelchairs and scooters access

8 to restaurant services by imposing architectural or design barriers and discriminatory policies

9 or practices.

10

2. These unlawful barriers include inaccessible parking lots, entry and restroom

11 doors that are too heavy, queue lines (the lines that customers wait in to order) that are too

12 narrow for wheelchairs, inaccessible dining areas, and inaccessible restrooms. The

13 discriminatory policies and practices include failing to maintain the accessibility of restaurants,

14 and requiring franchisees to operate, build and remodel their restaurants in a manner that

15 violates accessibility laws and regulations.

16

3. This complaint seeks injunctive relief to remove these barriers, and correct the

17 discriminatory policies and practices, so that Plaintiffs and the class they represent can have

18 full and equal enjoyment of Burger King restaurants. The complaint also seeks statutory

19 minimum damages to compensate customers for these barriers to access.

20

4. Burger King restaurants in California are inaccessible to customers who use

21 wheelchairs or scooters notwithstanding that persons with disabilities have been guaranteed

22 equal access to restaurants and other facilities for almost 20 years by federal law, and for

23 almost 40 years by California state law. Moreover, after being sued for access violations a

24 decade ago, Burger King promised to survey and fix accessibility barriers in its restaurants. It

25 did not do so.

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1

JURISDICTION AND VENUE

2

5. Plaintiffs’ claims arise under Title III of the Americans with Disabilities Act, 42

3 U.S.C. § 12181, et seq., (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code, § 51, et seq.

4 (“the Unruh Act”), and the California Disabled Persons Act, Cal. Civ. Code, § 54, et seq. (the

5 “CDPA”).

6

6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

7 §§ 1331, 1332 and 1343, and pursuant to its supplemental jurisdiction over Plaintiffs’ claims

8 brought under the laws of the State of California. In addition, the matter in controversy here

9 exceeds $5,000,000 and there are members of the proposed class who are citizens of states

10 different from Defendants. Therefore, this Court has diversity jurisdiction over the claims of

11 the class pursuant to 28 U.S.C. § 1332(d)(2).

12

7. The Court may grant declaratory and other relief pursuant to 28 U.S.C. §§ 2201

13 and 2202. Money damages alone are inadequate, and Plaintiffs and class members suffer and

14 will continue to suffer irreparable injury.

15

8. Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).

16

INTRADISTRICT ASSIGNMENT

17

9. This action arises in part in Contra Costa County and thus is properly assigned

18 to the San Francisco Division.

19

PARTIES

20

10. Plaintiff Miguel Castaneda is and has been at all times material hereto a resident

21 of the State of California. Plaintiff Castaneda is a person with incomplete quadriplegia who

22 uses a wheelchair for mobility. He has a disability within the meaning of the ADA, 42 U.S.C.

23 § 12102(2)(A), and a physical disability as that term is defined in applicable California law,

24 including California Government Code section 12926. Plaintiff Castaneda has patronized

25 Burger King restaurants in California in the past and intends to continue to patronize those

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -3-

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1 restaurants in the future.

2

11. Plaintiff Katherine Corbett is and has been at all times material hereto a resident

3 of the State of California. Plaintiff Corbett is a person with post polio syndrome who uses a

4 wheelchair for mobility. She has a disability within the meaning of the ADA, 42 U.S.C.

5 § 12102(2)(A), and a physical disability as that term is defined in applicable California law,

6 including California Government Code section 12926. Plaintiff Corbett has patronized Burger

7 King restaurants in California in the past and intends to continue to patronize those restaurants

8 in the future

9

12. Plaintiff Joseph Wellner is and has been at all times material hereto a resident of

10 the State of California. Plaintiff Wellner is a person with incomplete quadriplegia with spinal

11 stenosis who uses a wheelchair for mobility. He has a disability within the meaning of the

12 ADA, 42 U.S.C. § 12102(2)(A), and a physical disability as that term is defined in applicable

13 California law, including California Government Code section 12926. Plaintiff Wellner has

14 patronized Burger King restaurants in California in the past and intends to continue to

15 patronize those restaurants in the future.

16

13. Defendant Burger King Corporation (“Burger King”), a corporation

17 incorporated under the laws of Florida, with its principal place of business at 5505 Blue

18 Lagoon Drive, Miami, Florida 33126. Burger King franchises, leases (or leases to), and

19 operates fast food hamburger restaurants, principally under the Burger King brand, in

20 California.

21

14. This action concerns the more than 90 Burger King restaurants in California that

22 Burger King leases to or from other entities (“BKL Restaurants”).

23

CLASS ACTION ALLEGATIONS

24

15. Plaintiffs Castaneda, Corbett, and Wellner seek to maintain this action as a class

25 action under Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure. The

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -4-

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1 class consists of all individuals with manual and/or mobility disabilities who use wheelchairs

2 or electric scooters and who were denied during the liability period, or are currently being

3 denied, on the basis of disability, full and equal enjoyment of the goods, services, facilities,

4 privileges, advantages, or accommodations in any BKL Restaurant.

5

16. The class identified in paragraph 15 is believed to consist of at least several

6 thousand members who are dispersed across the State of California. Joinder of all of such class

7 members in this lawsuit is impracticable.

8

17. There are numerous questions of law and fact common to the class, including

9 without limitation, the following:

10

a. Whether Burger King’s BKL Restaurants are “public accommodations”

11

under the ADA;

12

b. Whether Burger King’s BKL Restaurants are “business establishments”

13

under the Unruh Act;

14

c. Whether Burger King’s BKL Restaurants are “places of public

15

accommodation” or “places to which the general public is invited” under

16

the CDPA;

17

d. Whether Defendant in its BKL Restaurants denies the full and equal

18

enjoyment of its goods, services, facilities, privileges, advantages, or

19

accommodations to people who use wheelchairs in violation of the

20

ADA;

21

e. Whether Defendant in its BKL Restaurants denies full and equal

22

accommodations, advantages, facilities, privileges, or services to people

23

who use wheelchairs, in violation of the Unruh Act;

24

f. Whether Defendant in its BKL Restaurants denies full and equal access

25

to accommodations, advantages and facilities to people who use

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -5-

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1

wheelchairs, in violation of the CDPA;

2

g. Whether alleged violations of the ADA create independent violations of

3

the Unruh Act and the CDPA;

4

h. What measures are legally required to bring Burger King’s BKL

5

Restaurants into compliance with the ADA, the Unruh Act and the

6

CDPA; and

7

i. Whether the design features at issue in this case -- which exist at many

8

BKL restaurants -- violate state or federal law.

9

18. The Plaintiffs’ claims are typical of the claims of the members of the class.

10 They -- like all other members of the class -- use a wheelchair or scooter for mobility and claim

11 that Burger King has violated the ADA, the Unruh Act, and/or the CDPA by failing to make

12 the BKL Restaurants accessible to the class of people who use wheelchairs or scooters.

13

19. Plaintiffs will fairly and adequately protect the interests of the class because

14 they have retained counsel with extensive experience in litigation, including class action

15 litigation, and because Plaintiffs have no interests that conflict in any way with those of the

16 class.

17

20. This action may be maintained as a class action pursuant to Rule 23(b)(2)

18 because Burger King’s violations of the ADA, the Unruh Act, and the CDPA are applicable to

19 all members of the class. Therefore, an injunction requiring compliance with the ADA, the

20 Unruh Act, and the CDPA is appropriate and the primary relief sought is injunctive relief.

21

21. This action may be maintained as a class action pursuant to Rule 23(b)(3)

22 because the many questions of law and fact that are common to class members clearly

23 predominate over individual questions affecting members of the class. The common issues of

24 law and fact relate to issues central to the case, such as whether Burger King’s BKL

25 Restaurants are public accommodations and business establishments, whether removing or

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -6-

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1 widening the narrow queue lines, lowering counters, and remedying other barriers, as well as

2 modifying Burger King’s policies and practices and other measures, are required to comply

3 with the ADA, Unruh Act, and/or the CDPA.

4

22. Judicial economy will be served by maintenance of this lawsuit as a class action

5 in that it is likely to avoid the burden that would be otherwise placed upon the judicial system

6 by the filing of numerous similar suits by people with disabilities in the State of California.

7

23. Maintaining this lawsuit as a class action will also avoid the risk of inconsistent

8 outcomes if class members were forced to bring individual actions in various forums.

9

24. There are no obstacles to effective and efficient management of this lawsuit as a

10 class action by this Court.

11

STATEMENT OF FACTS

12

25. Burger King leases or leases to more than 90 restaurants in California. On

13 information and belief, and as described below, it also operates or controls those restaurants, in

14 whole or in part.

15

26. These BKL restaurants influence how the approximately 500 other Burger King

16 restaurants in California are operated.

17

27. Some or all of the BKL Restaurants, on information and belief, were built

18 according to one of a limited number of architectural design prototypes developed by Burger

19 King. As such, the discriminatory design features encountered by Plaintiffs, as described and

20 alleged below, recur in the BKL Restaurants.

21

28. In addition, on information and belief, Burger King exercises substantial control

22 over some or all of the BKL Restaurants, including control over the development, design,

23 alteration, remodel, maintenance, and operation of such restaurants.

24

29. For example, on information and belief, Burger King has entered into

25 development agreements requiring construction of some or all of the BKL Restaurants in

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -7-

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1 accordance with Burger King’s latest designs.

2

30. On information and belief, Burger King has provided building plans and

3 specifications used to construct some or all of the BKL Restaurants.

4

31. On information and belief, Burger King’s construction teams have aided in

5 designing and building some or all of the BKL Restaurants.

6

32. On information and belief, some or all of the BKL Restaurants were

7 contractually required to be, and were, remodeled in conformance with Burger King’s

8 construction and design plans and specifications.

9

33. On information and belief, some or all of the BKL Restaurants engaged in

10 “re-imaging” programs, performed in accordance with Burger King’s designs and

11 specifications.

12

34. On information and belief, some or all BKL Restaurants are required to comply

13 with Burger King’s Manual of Operating Data (“MOD”), which contains official mandatory

14 restaurant operating standards, specifications and procedures.

15

35. On information and belief, the MOD contains highly detailed requirements for

16 the operation, design, signage, interior decor, equipment systems, and various other items in

17 Burger King restaurants.

18

36. On information and belief, some or all Burger King’s BKL Restaurants are

19 required to be repaired and maintained in accordance with standards established and controlled

20 by Burger King.

21

37. On information and belief, by contract, the employee training programs in some

22 or all of Burger King’s BKL Restaurants must conform to training standards and procedures

23 prescribed by Burger King.

24

38. On information and belief, Burger King conducts scheduled and unscheduled

25 inspections of some or all of the BKL Restaurants to ensure that they are being operated in

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -8-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page9 of 17

1 compliance with the various operational and other requirements set forth herein.

2

39. Since January 26, 1992, the date when the ADA regulations governing

3 alterations went into effect, some or all of the BKL Restaurants have undergone alterations, as

4 that term is used in the ADA, that affected, or could have affected, the usability of part or all of

5 those restaurants.

6

40. Since July 1, 1970, the date when California state access regulations went into

7 effect, some or all of the BKL Restaurants have undergone alterations, structural repairs and/or

8 additions, as those terms are used in California law, including without limitation Cal. Health &

9 Safety Code § 19959.

10

41. In 1997, Burger King settled Day v. Republic Foods, Inc., No. 95-1317CV

11 (D.D.C.), a case in which the U.S. Department of Justice submitted an amicus brief in support

12 of the plaintiff. The Day case alleged violations of the ADA parallel to those alleged in this

13 complaint. The settlement required Burger King to survey and remedy ADA violations in its

14 corporate-owned restaurants throughout the country, to notify franchisees of their obligation to

15 comply with the ADA, to provide franchisees with a survey instrument to survey their

16 restaurants, and to give franchisees training materials and free technical assistance in bringing

17 their restaurants in compliance with the ADA. Burger King therefore knew or should have

18 known of the requirements of the ADA and its failure, to that date, to comply with those

19 requirements.

20

42. In addition, in the 1990s, the Department of Justice reached a highly publicized

21 settlement with the Wendy’s restaurant chain, which made clear that the Department of Justice

22 believed that inaccessible queue lines -- such as those found in many of Burger King’s BKL

23 Restaurants -- violate the ADA, and required Wendy’s to make its queue lines accessible.

24

43. Plaintiff Castaneda has patronized several Burger King restaurants in California,

25 including Burger King restaurants located at 677 Contra Costa Boulevard, in Pleasant Hill, and

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -9-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page10 of 17

1 2162 Railroad Avenue, in Pittsburg within the last twelve months. The Pleasant Hill and

2 Pittsburg restaurants, on information and belief, are leased to and/or from Burger King.

3

44. At these restaurants, Mr. Castaneda has encountered numerous barriers to

4 access, including for example entry and restroom doors that were very difficult to open,

5 parking lots with insufficient or inadequate accessible parking spots, inaccessible restrooms,

6 narrow or steep sidewalks/ramps, queue lines that were too narrow for his wheelchair to

7 navigate, inaccessible seating areas, and drink machines and condiments that were difficult for

8 him to reach.

9

45. These barriers to access have denied Mr. Castaneda full and equal access to, and

10 enjoyment of, the goods and services of Burger King, and have been frustrating and injurious to

11 Mr. Castaneda’s dignity.

12

46. Plaintiff Corbett has patronized several Burger King restaurants in California,

13 including Burger King restaurants located at 6021 Central Avenue, in El Cerrito, and 4200

14 International Boulevard (or East 14th Street), in Oakland within the last twelve months. The El

15 Cerrito and Oakland restaurants, on information and belief, are leased to and/or from Burger

16 King.

17

47. At these restaurants, Ms. Corbett has encountered numerous barriers to access,

18 including for example entry and restroom doors that were very difficult to open, queue lines

19 that were difficult for her wheelchair to navigate, parking lots with inaccessible parking spots,

20 inaccessible restrooms, inaccessible counters, and drink machines and condiments that were

21 difficult for her to reach.

22

48. These barriers to access have denied Ms. Corbett full and equal access to, and

23 enjoyment of, the goods and services of Burger King, and have been frustrating and injurious to

24 Ms. Corbett’s dignity.

25

49. Plaintiff Wellner has patronized several Burger King restaurants in California,

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -10-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page11 of 17

1 including a Burger King restaurants located at 2415 North Texas Street, in Fairfield within the

2 last twelve months. The Fairfield restaurants, on information and belief, is leased to and/or

3 from Burger King.

4

50. At this restaurant, Mr. Wellner has encountered numerous barriers to access,

5 including for example entry doors that were very difficult to open, a queue line that was too

6 narrow for his wheelchair to navigate, inaccessible seating, and drink machines and condiments

7 that were difficult for him to reach.

8

51. These barriers to access have denied Mr. Wellner full and equal access to, and

9 enjoyment of, the goods and services of Burger King, and have been frustrating and injurious to

10 Mr. Wellner’s dignity.

11

52. Other potential class members report encountering similar barriers at BKL

12 restaurants, including but not limited to barriers to accessible parking; doors that are difficult to

13 get to or to open; narrow queue lines; counters, drink machines and condiments that are hard to

14 reach; inaccessible seating; and inaccessible restrooms.

15

53. On information and belief, Burger King has engaged in intentional

16 discrimination, including but not limited to:

17

a. designing, constructing, implementing and maintaining policies,

18

practices, procedures and barriers that discriminate against members of

19

the putative class with knowledge of such discrimination and/or

20

b. designing, constructing, implementing and maintaining policies,

21

practices, procedures and barriers that are sufficiently intuitive and/or

22

obvious as to constitute intentional conduct; and/or

23

c. failing to act in the face of the substantial likelihood of harm to class

24

members’ rights protected under federal and state law.

25

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -11-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page12 of 17

1

FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

2

54. Plaintiffs reallege and incorporate by reference the allegations set forth in the

3

remainder of this Complaint as if fully set forth herein.

4

55. Title III of the ADA provides that “No individual shall be discriminated against

5

on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

6

privileges, advantages, or accommodations of any place of public accommodation by any

7

person who owns, leases (or leases to), or operates a place of public accommodation.” 42

8

U.S.C. § 12182(a).

9

56. Burger King’s BKL Restaurants are leased to or from Burger King

10

57. Burger King’s BKL Restaurants are places of public accommodation. 42 U.S.C.

11

§ 12181(7)(B).

12

58. Burger King has discriminated against Plaintiffs and members of the proposed

13

class on the basis of disability. Burger King’s discriminatory conduct includes but is not

14

limited to:

15

a. Discriminatory exclusion and/or denial of goods, services, facilities,

16

privileges, advantages, accommodations, and/or opportunities;

17

b. Provision of goods, services, facilities, privileges, advantages, and/or

18

accommodations that are not equal to those afforded non-disabled

19

individuals;

20

c. Failing to design and/or construct restaurants built for first occupancy

21

after January 26, 1993 so that they are readily accessible to and usable by

22

individuals with disabilities;

23

d. Failing to make alterations in such a manner that, to the maximum

24

extent feasible, the altered portions of the restaurants altered after

25

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -12-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page13 of 17

1

January 26, 1992, are readily accessible to and usable by individuals

2

with disabilities, including individuals who use wheelchairs and

3

scooters;

4

e. Failing to make alterations in such a manner that, to the maximum

5

extent feasible, the path of travel to the altered area and the bathrooms

6

and drink machines serving the altered area, are readily accessible to and

7

usable by individuals with disabilities;

8

f. Failing to remove barriers, including but not limited to queue lines,

9

counter height, door weight, parking accessibility, to individuals with

10

disabilities where it would be readily achievable to do so;

11

g. Failing to make reasonable modifications in policies, practices, and/or

12

procedures as necessary to afford the goods, services, facilities,

13

privileges, advantages, and/or accommodations to individuals with

14

disabilities; and/or

15

h. Utilizing standards or criteria or methods of administration that have the

16

effect of discriminating on the basis of disability, or that perpetuate the

17

discrimination of franchisees who are subject to common administrative

18

control.

19

59. As such, Burger King discriminates and, in the absence of the injunction

20 requested herein, will continue in the future to discriminate against Plaintiffs and members of

21 the proposed class on the basis of disability in the full and equal enjoyment of the goods,

22 services, facilities, privileges, advantages, accommodations and/or opportunities of Burger

23 King’s BKL Restaurants in violation of Title III of the Americans with Disabilities Act, 42

24 U.S.C. § 12181 et seq. and/or its implementing regulations.

25

60. Burger King’s violations of the ADA have harmed and will continue to harm

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -13-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page14 of 17

1 Plaintiffs and members of the proposed class in the future.

2

61. Pursuant to the remedies, procedures, and rights set forth in 42 U.S.C. § 12188,

3 Plaintiffs pray for judgment as set forth below.

4

SECOND CLAIM FOR RELIEF

(Unruh Civil Rights Act and the Unruh Act’s Incorporation of the ADA)

5

62. Plaintiffs reallege and incorporate by reference the allegations set forth in the

6

remainder of this Complaint as if fully set forth herein.

7

63. Burger King’s BKL Restaurants are business establishments and, as such, must

8

comply with the provisions of the Unruh Act, Cal. Civ. Code, § 51, et seq. (“the Unruh Act”).

9

64. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled to

10

full and equal accommodations, advantages, facilities, privileges, or services in all business

11

establishments of every kind whatsoever within the jurisdiction of the State of California. Cal.

12

Civ. Code, § 51(b).

13

65. The Unruh Act also provides that a violation of the ADA, or of California state

14

accessibility regulations, is a violation of the Unruh Act. Cal. Civ. Code, § 51(f).

15

66. Burger King has violated the Unruh Act by, inter alia, denying, or aiding or

16

inciting the denial of, Plaintiffs’ and class members’ rights to the full and equal

17

accommodations, advantages, facilities, privileges, or services offered at Burger King’s BKL

18

Restaurants.

19

67. Burger King has also violated the Unruh Act by denying, or aiding or inciting

20

the denial of, Plaintiffs’ and class members’ rights to equal access arising from the provisions

21

of the California state accessibility regulations and the ADA.

22

68. Pursuant to the remedies, procedures, and rights set forth in Cal. Civ. Code § 52,

23

Plaintiffs pray for judgment as set forth below.

24

25

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -14-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page15 of 17

1

THIRD CLAIM FOR RELIEF

(California Disabled Persons Act and the CDPA’s Incorporation of the ADA)

2

69. Plaintiffs reallege and incorporate by reference the allegations set forth in the

3

remainder of this Complaint as if fully set forth herein.

4

70. Burger King’s BKL Restaurants are places of public accommodation and/or

5

places to which the general public is invited and, as such, are obligated to comply with the

6

provisions of the CDPA, Cal. Civ. Code, § 54, et seq.

7

71. The CDPA guarantees, inter alia, that persons with disabilities are entitled to

8

full and equal access, as other members of the general public, to accommodations, advantages,

9

facilities, and privileges of covered entities. Cal. Civ. Code § 54.1(a)(1).

10

72. The CDPA also provides that a violation of the ADA, or of California state

11

accessibility regulations, is a violation of the CDPA. Cal. Civ. Code § 54.1(d).

12

73. Burger King has violated the CDPA by, inter alia, denying and/or interfering

13

with Plaintiffs’ and class members’ right to full and equal access as other members of the

14

general public to the accommodations, advantages, or facilities of Burger King’s BKL

15

Restaurants.

16

74. Burger King has also violated the CDPA by denying and/or interfering with the

17

Plaintiffs’ and class members’ rights to equal access arising from the provisions of the

18

California state accessibility regulations and the ADA.

19

75. Pursuant to the remedies, procedures, and rights set forth in California law,

20

including Cal. Civ. Code §§ 54.3 and 55, Plaintiffs pray for judgment as set forth below.

21

RELIEF

22

WHEREFORE, Plaintiffs respectfully request:

23

1. That this Court assume jurisdiction.

24

2. That this Court certify the class identified in paragraph 15.

25

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -15-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page16 of 17

1

3. That this Court certify Plaintiff Castaneda, Plaintiff Corbett, and Plaintiff

2 Wellner as representatives of this class.

3

4. That this Court declare Defendant to be in violation of Title III of the Americans

4 with Disabilities Act, 42 U.S.C. § 12181, et seq. the Unruh Civil Rights Act, Cal. Civ. Code

5 § 51, et seq. and the California Disabled Persons Act, Cal. Civ. Code, § 54, et seq.

6

5. That this Court issue an injunction ordering Defendant to comply with the

7 statutes set forth herein.

8

6. That this Court award minimum statutory damages, defined as $4,000 per

9 incident of discrimination under Unruh and $1,000 per incident of discrimination under the

10 CDPA, to Plaintiffs and members of the proposed class for violations of their civil rights under

11 state law.

12

7. That this Court award Plaintiffs’ reasonable attorneys’ fees and costs pursuant to

13 federal and California law.

14

8. That this Court award such additional or alternative relief as may be just, proper

15 and equitable.

16

DEMAND FOR JURY TRIAL

17

Plaintiffs demand a jury on all issues which can be heard by a jury.

18

19 Dated: March 6, 2009
20
21
22
23
24
25

Respectfully submitted,
By: /s/ Bill Lann Lee Bill Lann Lee (State Bar No. 108452) Julia Campins (State Bar No. 238023) LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Tel: (510) 839-6824 Fax: (510) 839-7839 blee@lewisfeinberg.com

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -16-

Case3:08-cv-04262-WHA Document72 Filed03/13/09 Page17 of 17

1

jcampins@lewisfeinberg.com

2

Timothy P. Fox (State Bar No. 157750)

Amy Robertson (pro hac vice)

3

FOX & ROBERTSON, P.C.

104 Broadway, Suite 400

4

Denver, CO 80203

Telephone: (303) 595-9700

5

TTY: (877) 595-9706

Facsimile: (303) 595-9705

6

tfox@foxrob.com

arob@foxrob.com

7

Linda D. Kilb (State Bar No. 136101)

8

DISABILITY RIGHTS EDUCATION &

DEFENSE FUND

9

2212 Sixth Street

Berkeley, CA 94710

10

Tel: (510) 644-2555

Fax: (510) 841-8645

11

lkilb@dredf.org

12

Mari Mayeda (State Bar No. 110947)

P O Box 5138

13

Berkeley, CA 94705

Tel: (510) 848-3331

14

Fax: (510) 841-8115

marimayeda@earthlink.net

15

Antonio M. Lawson (State Bar No. 140823)

16

LAWSON LAW OFFICES

160 Franklin Street, Suite 204

17

Oakland, CA 94607

Tel: (510) 419-0940

18

Fax: (510) 419-0948

tony@lawsonlawoffices.com

19

Attorneys for Plaintiffs

20

21

22

23

24

25

26 FIRST AMENDED COMPLAINT [CASE NO.CV-08-4262 WHA] -17-

 
 Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page1 of 10

1 GLYNN & FINLEY, LLP CLEMENT L. GLYNN, Bar No. 57117
2 ADAM FRIEDENBERG, Bar No. 205778 One Walnut Creek Center
3 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596
4 Telephone: (925) 210-2800 Facsimile: (925) 945-1975
5 E-mail: cglynn@glynnfinley.com afriedenberg@glynnfinley.com
6 GENOVESE JOBLOVE & BATTISTA, P.A.
7 MICHAEL D. JOBLOVE (admitted pro hac vice) JONATHAN E. PERLMAN (admitted pro hac vice)
8 Bank of America Tower 100 Southeast Second Street, 44th Floor
9 Telephone: (305) 349-2300 Facsimile: (305) 349-2310
10 Email: mjoblove@gjb-law.com jperlman@gjb-law.com
11

12 Attorneys for Defendant Burger King Corporation

13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA
15

16 MIGUEL CASTANEDA on behalf of himself and others similarly situated
17 Plaintiff,
18 vs.
19 BURGER KING CORPORATION and
20 BURGER KING HOLDINGS, INC.,

21

Defendants.

22

) Case No. CV 08-4262 WHA ) ) DEFENDANT BURGER KING ) CORPORATION’S ANSWER AND ) AFFIRMATIVE DEFENSES ) ) [CLASS ACTION] ) ) ) ) )

23

Defendant Burger King Corporation, by and through the undersigned counsel, hereby

24 answers Plaintiffs’ Amended Complaint, and alleges as follows:

25

26

27

28

- 1 -
DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page2 of 10

1

ANSWER TO INTRODUCTORY ALLEGATIONS

2

1. Burger King Corporation admits that it leases or subleases approximately 90

3 restaurants to franchisees in California. Burger King Corporation admits that Plaintiffs’ proposed

4 class action alleges that Burger King Corporation has violated state and federal accessibility laws in

5 connection with the mobility impaired. The remaining allegations of the paragraph are denied.

6

2. Denied.

7

3. Admitted that the complaint seeks injunctive relief and statutory minimum damages.

8 The remaining allegations in this paragraph are denied.

9

4. Denied.

10

ANSWER TO JURISDICTION AND VENUE ALLEGATIONS

11

5. Admitted that Plaintiffs purport to assert such claims. The remaining allegations in

12 this paragraph are denied.

13

6. Denied.

14

7. Denied.

15

8. Admitted that venue is proper here with respect to Plaintiffs’ ADA claims against

16 restaurants that are located in this district. The remaining allegations in this paragraph are denied.

17

ANSWER TO INTRADISTRICT ASSIGNMENT ALLEGATIONS

18

9. Admitted as to Plaintiffs’ claims against restaurants located in Contra Costa County.

19 The remaining allegations in this paragraph are denied.

20

ANSWER TO ALLEGATIONS CONCERNING PARTIES

21

10. Defendant is without information or knowledge sufficient to form a belief as to the

22 truth of the allegations of paragraph 10 and on that basis denies them.

23

11. Defendant is without information or knowledge sufficient to form a belief as to the

24 truth of the allegations of paragraph 11 and on that basis denies them.

25

12. Defendant is without information or knowledge sufficient to form a belief as to the

26 truth of the allegations of paragraph 12 and on that basis denies them.

27

13. Defendant denies that it operates restaurants in California. The remainder of this

28 paragraph is admitted. - 2 -

DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page3 of 10

1

14. Defendant admits that Plaintiffs seek to have this case certified as a class action with

2 respect to the BKL Restaurants in California, but denies that certification is appropriate and

3 otherwise denies the allegations in the paragraph.

4

ANSWER TO CLASS ACTION ALLEGATIONS

5

15. Admitted that Plaintiffs purport to maintain a class action. The remainder of this

6 paragraph is denied.

7

16. Denied.

8

17. Denied.

9

18. Denied.

10

19. Denied.

11

20. Denied.

12

21. Denied.

13

22. Denied.

14

23. Denied.

15

24. Denied.

16

ANSWER TO STATEMENT OF FACTS

17

25. Admitted that Defendant has leases or subleases with franchisees with respect to

18 approximately 90 restaurants in California. The remainder of this paragraph is denied.

19

26. Denied.

20

27. Denied.

21

28. Denied.

22

29. Denied.

23

30. Admitted that in some instances, Defendant has provided conceptual drawings to

24 franchisees which their architects and engineers may use to create building plans that are required to

25 comply with all applicable accessibility laws.

26

31. Admitted as to some BKL restaurants.

27

32. Admitted that in some instances, franchisees were contractually required to remodel

28 their stores in accordance with Defendant’s current image, i.e., color scheme, lighting scheme, - 3 -

DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page4 of 10

1 trademarked logo signage and the like. Admitted that Defendant had the contractual right to

2 disapprove any remodeling plans created by franchisees’ professionals that did not comply with

3 Defendant’s image or specifications. The remaining allegations in paragraph 32 are denied.

4

33. Admitted that in some instances, franchisees were contractually required to remodel

5 their stores in accordance with Defendant’s current image, i.e., color scheme, lighting scheme,

6 trademarked logo signage and the like. Admitted that Defendant had the contractual right to

7 disapprove any remodeling plans created by franchisees’ professionals that did not comply with

8 Defendant’s image or specifications. The remaining allegations in paragraph 33 are denied.

9

34. Admitted.

10

35. Admitted that the MOD contains requirements for the operation, signage, and

11 equipment of a Burger King® restaurant. The remaining allegations in paragraph 35 are denied.

12

36. Admitted that the franchisee-operators of the BKLs are contractually required to

13 comply with all applicable laws and with certain standards proscribed by Defendant. The remaining

14 allegations in paragraph 36 are denied.

15

37. Admitted that Defendant provides certain training with respect to food service. The

16 remaining allegations in paragraph 37 are denied.

17

38. Admitted that Defendant conducts inspections of BKL Restaurants to determine

18 whether the restaurants are being operated in accordance with Burger King® system standards. The

19 remaining allegations in paragraph 38 are denied.

20

39. Defendant admits that some of the BKLs have undergone alterations that may have

21 affected the usability of part or all of such restaurant(s). The remaining allegations of the paragraph

22 are denied.

23

40. Defendant admits that some of the BKL Restaurants have undergone alterations,

24 structural repairs and/or additions since 1970. The remaining allegations of the paragraph are

25 denied.

26

41. Admitted that Defendant entered into a settlement agreement in 1997 with respect to

27 ADA claims that Patricia Day asserted as against some restaurants in the District of Columbia as set

28 forth in paragraph 41. Denied that the alleged violations parallel those alleged in this case. Denied - 4 -

DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page5 of 10

1 that by virtue of the Day complaint or settlement agreement, Defendant knew or should have known

2 that BKLs in California failed to comply with the ADA.

3

42. Defendant is without knowledge, recollection or information sufficient to form a

4 belief as to the truth of the allegations in paragraph 42 and therefore denies same.

5

43. Defendant is without knowledge or information sufficient to form a belief as to the

6 restaurants Castaneda claims to have visited and his allegations in that regard are therefore denied.

7 Admitted that Burger King Corporation leases or subleases the Pleasant Hill and Pittsburg

8 restaurants to franchisees who maintain and operate them.

9

44. Denied.

10

45. Denied.

11

46. Defendant is without knowledge or information sufficient to form a belief as to the

12 restaurants Corbett claims to have visited and his allegations in that regard are therefore denied.

13 Admitted that Burger King Corporation leases or subleases the El Cerrito and Oakland restaurants to

14 franchisees who maintain and operate them.

15

47. Denied.

16

48. Denied.

17

49. Defendant is without information or knowledge sufficient to form a belief as to the

18 restaurants Wellner claims to have visited and his allegations in that regard are therefore denied.

19 Admitted that Burger King Corporation leases or subleases the Fairfield restaurant to franchisees

20 who maintain and operate it.

21

50. Denied.

22

51. Denied.

23

52. Defendant is without information or knowledge sufficient to form a belief as to what

24 “other potential class members report,” and the allegations in paragraph 52 are therefore denied.

25

53. Denied.

26

ANSWER TO FIRST CLAIM FOR RELIEF

(Americans with Disabilities Act)

27

28

54. Defendant reincorporates its response by reference to its responses set forth in the

- 5 -

DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page6 of 10

1 remainder of its answer.

2

55. Plaintiffs merely state legal conclusions which require no response and the provisions

3 of the ADA speak for themselves.

4

56. Admitted that Defendant leases or subleases the BKLs to franchisees.

5

57. Admitted.

6

58. Denied.

7

59. Denied.

8

60. Denied.

9

61. Denied.

10

ANSWER TO SECOND CLAIM FOR RELIEF

(Unruh Civil Rights Act and the Unruh Act’s Incorporation of the ADA)

11

12

62. Defendant reincorporates its response by reference to its responses set forth in the

13 remainder of its answer.

14

63. Admitted that the franchisees that operate the BKL Restaurants are required to

15 comply with certain provisions of the Unruh Act. The remainder of this paragraph is denied.

16

64. Plaintiffs merely state legal conclusions which require no response and the Unruh Act

17 speaks for itself.

18

65. Plaintiffs merely state legal conclusions which require no response and the Unruh Act

19 speaks for itself.

20

66. Denied.

21

67. Denied.

22

68. Paragraph 68 contains no allegation, and therefore no response is due. Defendant

23 denies that Plaintiffs are entitled to judgment in their favor.

24

ANSWER TO THIRD CLAIM FOR RELIEF

(California Disabled Persons Act and the CDPA’s Incorporation of the ADA)

25

26

69. Defendant reincorporates its response by reference to the responses set forth in the

27 remainder of its answer.

28

70. Admitted that the BKL Restaurants are places of public accommodations and/or

- 6 -

DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page7 of 10

1 places to which the general public is invited. Admitted also that the franchisees that operate the

2 BKL Restaurants are required to comply with certain provisions of the CDPA. To the extent

3 Plaintiffs intend to allege something more, such allegation is denied.

4

71. Plaintiffs merely state legal conclusions which require no response and the CDPA

5 speaks for itself.

6

72. Plaintiffs merely state legal conclusions which require no response and the CDPA

7 speaks for itself.

8

73. Denied.

9

74. Denied.

10

75. Paragraph 75 contains no allegation, and therefore no response is due.

11

ANSWER TO ALL ALLEGATIONS

12

76. All other allegations not specifically admitted are hereby denied.

13

AFFIRMATIVE DEFENSES

14 First Affirmative Defense

15

Named Plaintiffs lack standing to challenge barriers in restaurants they did not visit prior to

16 the filing of the initial complaint.

17 Second Affirmative Defense

18

The putative class lacks standing to challenge barriers in restaurants some or all Plaintiffs did

19 not visit prior to the filing of the initial complaint.

20 Third Affirmative Defense

21

Plaintiffs’ claims are moot.

22 Fourth Affirmative Defense

23

Plaintiffs’ claims are barred by the applicable statutes of limitation.

24 Fifth Affirmative Defense

25

This Court lacks supplemental jurisdiction over Plaintiffs’ state law claims.

26 Sixth Affirmative Defense

27

This Court lacks diversity jurisdiction over Plaintiffs’ state law claims under the “local

28 controversy” exception to the CAFA, 28 U.S.C. § 1332(d)(4)(A). - 7 -

DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page8 of 10

1 Seventh Affirmative Defense

2

Plaintiffs have failed to state a claim under Unruh and the CDPA as against Defendant.

3 Eighth Affirmative Defense

4

Plaintiffs’ claims are barred for failure to join necessary or indispensable parties, namely the

5 franchisees who maintain and operate the BKLs.

6 Ninth Affirmative Defense

7

Plaintiffs’ claims are barred because, with respect to any particular architectural element of

8 any restaurant that departs from accessibility guidelines, the restaurants have provided “equivalent

9 facilitation” in the form of alternative designs and technologies that provide substantially equivalent

10 or greater access to and usability of the facility.

11 Tenth Affirmative Defense

12

Plaintiffs’ claims are barred because the claimed violations are “de minimis,” and non-

13 actionable because they do not materially impair Plaintiffs’ use of an area for an intended purpose.

14 Eleventh Affirmative Defense

15

Plaintiffs’ claims are barred because the barrier removal(s) Plaintiffs seek pursuant to the

16 ADA in restaurants built before January 26, 1993 are not “readily achievable,” or easily

17 accomplishable and able to be carried out without much difficulty or expense within the meaning of

18 42 U.S.C. § 12181(9).

19 Twelfth Affirmative Defense

20

Plaintiffs’ claims are barred because the modifications Plaintiffs seek are not “alterations”

21 within the meaning of the ADA or Title 24 and/or they do not trigger an “alteration” legal standard,

22 including because the modifications sought will be disproportionate in cost or cost in excess of 20%

23 of the entire “alteration.”

24 Thirteenth Affirmative Defense

25

Plaintiffs’ claims are barred because the alterations made by the franchisee operators of the

26 restaurants are sufficient in that they satisfy the “to the maximum extent feasible” standard. 28

27 C.F.R. § 36.402(a)(1); 42 U.S.C §12183(a)(2).

28 - 8 -
DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page9 of 10

1 Fourteenth Affirmative Defense

2

The Complaint does not satisfy the requirements of Fed. R. Civ. P. 23(a) and 23(b).

3 Fifteenth Affirmative Defense

4

Plaintiffs’ claims that the restaurants were designed in violation of the ADA or Title 24 are

5 barred to the extent the restaurants were designed and constructed prior to the effective date of the

6 ADA, Title 24, or their regulations.

7 Sixteenth Affirmative Defense

8

Defendant has made good faith efforts to comply with the ADA, the Unruh Act, and the

9 California Disabled Persons Act, including providing appropriate alternative access.

10 Seventeenth Affirmative Defense

11

Plaintiffs have failed to mitigate their damages, if any.

12 Eighteenth Affirmative Defense

13

Plaintiffs’ claims under the CDPA and Unruh Act are barred to the extent that they interfere

14 with Defendant’s compliance with laws and regulations that are equally applicable to all persons.

15 Nineteenth Affirmative Defense

16

The imposition of statutory minimum damages in this matter would violate Defendant’s

17 Eighth Amendment protection against excessive fines in violation of the California Constitution and

18 the United States Constitution.

19 Twentieth Affirmative Defense

20

The imposition of punitive damages in this matter would violate Defendant’s right to due

21 process of law in violation of the California Constitution and the United States Constitution.

22 Twenty-First Affirmative Defense

23

Defendant is not legally responsible for property that is not within its possession, custody or

24 control.

25

WHEREFORE, Defendant Burger King Corporation respectfully requests that judgment be

26 entered in its favor and for an award of costs, attorneys’ fees, and such other relief as the Court

27 deems appropriate.

28 - 9 -
DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

Case3:08-cv-04262-WHA Document73 Filed03/26/09 Page10 of 10

1

Respectfully submitted,

2 Dated: March 26, 2009

3

GENOVESE JOBLOVE & BATTISTA, P.A.

Michael D. Joblove (pro hac vice)

4

Jonathan E. Perlman (pro hac vice)

Bank of America Tower, 44th Floor

5

100 S.E. Second Street

Miami, Florida 33131

6

GLYNN & FINLEY, LLP

7

Clement L. Glynn

Adam Friedenberg

8

One Walnut Creek Center

100 Pringle Avenue, Suite 500

9

Walnut Creek, CA 94596

10

11

By: s/Jonathan E. Perlman

Michael D. Joblove

12

Jonathan E. Perlman

13

Attorneys for Defendant Burger King

Corporation

14

15
2000-491/812
16

17

18

19

20

21

22

23

24

25

26

27

28 - 10 -
DEFENDANT BURGER KING CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

 
 Case3:08-cv-04262-WHA Document138 Filed07/29/09 Page1 of 34

1 Bill Lann Lee – CA State Bar No. 108452 Andrew Lah – CA State Bar No. 234580
2 Julia Campins – CA State Bar No. 238023 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.
3 1330 Broadway, Suite 1800 Oakland, CA 94612
4 Telephone: (510) 839-6824 Facsimile: (510) 839-7839
5 Email: blee@lewisfeinberg.com Email: alah@lewisfeinberg.com
6 Email: jcampins@lewisfeinberg.com

7 Timothy P. Fox – CA State Bar No. 157750 Amy Robertson (pro hac vice)
8 Fox & Robertson, P.C. 104 Broadway, Suite 400
9 Denver, CO 80203 Telephone: (303) 595-9700
10 TTY: (877) 595-9706 Facsimile: (303) 595-9705
11 Email: tfox@foxrob.com Email: arob@foxrob.com
12 [Additional Counsel Listed Below]
13 Attorneys for Plaintiffs
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

18 MIGUEL CASTANEDA, KATHERINE CORBETT, and JOSEPH WELLNER on
19 behalf of themselves and others similarly situated,
20 Plaintiffs,
21 vs.
22 BURGER KING CORPORATION,
23 Defendant.
24
25

) Case No. CV-08-4262 WHA (JL) ) ) PLAINTIFFS’ NOTICE OF MOTION ) AND MOTION FOR CLASS ) CERTIFICATION; MEMORANDUM ) OF POINTS AND AUTHORITIES IN ) SUPPORT OF MOTION FOR CLASS ) CERTIFICATION ) ) Date: September 17, 2009 ) Time: 8:30 a.m. ) Judge: William H. Alsup ) )

26

27

28

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [CASE NO.CV-08-4262 WHA (JL)]

Case3:08-cv-04262-WHA Document138 Filed07/29/09 Page2 of 34

1

NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION

2

PLEASE TAKE NOTICE that on September 17, 2009, at 8:30 a.m., in Courtroom 9 of

3 the United States District Court for the Northern District of California, San Francisco Division,

4 located at 450 Golden Gate Avenue, San Francisco, California, 94102, the Honorable William

5 H. Alsup presiding, Plaintiffs will, and hereby do move the Court, pursuant to Federal Rule of

6 Civil Procedure 23, for certification of the following Class.

7

All individuals with disabilities who use wheelchairs or electric scooters for

mobility who, at any time on or after April 16, 2006, were denied, or are

8

currently being denied, on the basis of disability, full and equal enjoyment of

the goods, services, facilities, privileges, advantages, or accommodations of

9

California Burger King-leased restaurants.1

10

This motion is made on grounds that the proposed Class is sufficiently numerous that

11 joinder is impracticable; there are questions of law and fact common to the Class; the named

12 Plaintiffs’ claims are typical of the Class claims; and the named Plaintiffs will adequately

13 represent the Class. Fed. R. Civ. P. 23(a). Certification under Federal Rule of Civil Procedure

14 23(b)(2) is appropriate because Defendants have acted and/or refused to act on grounds that are

15 applicable to the class as a whole, thus making appropriate class-wide injunctive and

16 corresponding declaratory relief.

17

This motion is based on the accompanying memorandum of points and authorities;

18 deposition testimony by the proposed Class representatives; declarations of 48 putative class

19 members; declarations of counsel submitted concurrently with this motion; documents

20 produced pursuant to the parties’ discovery; such oral argument as may be heard by the Court;

21 and all other papers on file in this action.

22

Plaintiffs further request that the Court appoint the named Plaintiffs Miguel Castaneda,

23 Katherine Corbett, and Joseph Wellner as class representatives, and the law firms of Fox &

24 Robertson, P.C.; Lewis, Feinberg, Lee, Renaker & Jackson, P.C.; Disability Rights Education

25 and Defense Fund; Law Offices of Antonio Lawson; and Mari Mayeda as class counsel

26 pursuant to Rule 23(g).

27 1 The restaurants subject to this lawsuit are identified in Ex. 2 to the Declaration of
28 Ashley Boothby, filed concurrently with this motion.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [CASE NO.CV-08-4262 WHA (JL)]

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1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

2

TABLE OF CONTENTS

3 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4 II. STATEMENT OF THE ISSUES TO BE DECIDED . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 III. LEGAL CONTEXT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6

A. The Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

7

B. The California Unruh Act and CDPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

8 IV. FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

9

A. Plaintiffs and the Proposed Class Share a Common Experience of

Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

10

1. Entrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

11

2. Queue Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

12

3. Condiment and Drink Dispensers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

13

4. Dining Rooms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

14

5. Restrooms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

15

6. Parking Lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

16

B. Defendant Burger King Corporation’s Centralized Control Creates a

17

Common Experience of Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18

1. Background of Defendant Burger King Corporation . . . . . . . . . . . . . . 8

19

2. Burger King’s Centralized Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

20

a. Burger King’s Centralized Control over the Initial

Construction of BKLs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

21

b. Burger King’s Centralized Control over Alterations

22

to BKLs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

23

c. Burger King’s Centralized Control Over the Operation

of BKLs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

24

d. Burger King Monitors Compliance with and Enforces Its

25

Centralized Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

26

e. Burger King’s Access Surveys . . . . . . . . . . . . . . . . . . . . . . . . 14

27 V. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [CASE NO.CV-08-4262 WHA (JL)]

i

Case3:08-cv-04262-WHA Document138 Filed07/29/09 Page4 of 34

1 2 3 4 5 6 7 8 9 10 11 12 VI. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

B. The Proposed Class Meets the Requirements of Rule 23(a) . . . . . . . . . . . . . . 17 1. The Proposed Class Is so Numerous that Joinder Is Impracticable . . . 17 2. There Are Questions of Law and Fact Common to the Proposed Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 a. Common Experience of Discrimination . . . . . . . . . . . . . . . . . 18 b. Centralized Decision Making . . . . . . . . . . . . . . . . . . . . . . . . . 19 c. Common Questions of Law and Fact . . . . . . . . . . . . . . . . . . . . 20 3. Named Plaintiffs’ Claims Are Typical of the Claims of the Class . . . 21 4. Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 5. The Proposed Class Counsel Will Adequately Represent the Class . . 23
C. The Proposed Class Is Proper Under Rule 23(b)(2) . . . . . . . . . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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1

TABLE OF AUTHORITIES

2 FEDERAL CASES

3 Access Now, Inc. v. AHM CGH, Inc.,

2000 WL 1809979 (S.D. Fla. Jul. 12, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

4

Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd.,

5

197 F.R.D. 522 (S.D. Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18-19

6 Access Now, Inc. v. Claire's Stores, Inc.,

2002 WL 1162422 (S.D. Fla. May 7, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

7

Alexander A. ex rel. Barr v. Novello,

8

210 F.R.D. 27 (E.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

9 Am. Council of the Blind v. Astrue,

2008 WL 4279674 (N.D. Cal. Sept. 11, 2008) . . . . . . . . . . . . . . . . . . . . . . . . 15, 19-20

10

Amchem Prods, Inc. v. Windsor,

11

521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

12 Anderson v. Dep't of Pub. Welfare,

1 F. Supp. 2d 456 (E.D. Pa. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

13

Armstrong v. Davis,

14

275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21

15 Arnold v. United Artists Theatre Circuit, Inc.,

158 F.R.D. 439 (N.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

16

Ass'n for Disabled Ams., Inc. v. Amoco Oil Co.,

17

211 F.R.D. 457 (S.D. Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

18 Bacal v. Southeastern Pa. Transp. Auth.,

1995 WL 299029 (E.D. Pa. May 16, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

19

Bates v. United Parcel Serv.,

20

204 F.R.D. 440 (N.D. Cal. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18, 22

21 Bautista-Perez v. Holder,

2009 WL 2031759 (N.D. Cal. July 9, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15

22

Berlowitz v. Nob Hill Masonic Mgmt., Inc.,

23

1996 WL 724776 (N.D. Cal. Dec. 6, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 25

24 Blackie v. Barrack,

524 F.2d 891 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

25

Botosan v. Paul McNally Realty,

26

216 F.3d 827 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

27 Boulet v. Cellucci, 107 F. Supp. 2d 61 (D. Mass. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28

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1 Bragdon v. Abbott,

524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2

Californians for Disability Rights, Inc. v. Cal. Dep't of Transp.,

3

249 F.R.D. 334 (N.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24

4 Ceaser v, Pataki,

2000 WL 1154318 (S.D.N.Y. Aug. 14, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

5

Civic Ass'n of the Deaf of New York City, Inc. v. Giuliani,

6

915 F. Supp. 622 (S.D.N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

7 Colo. Cross-Disability Coalition v. Taco Bell Corp.,

184 F.R.D. 354 (D. Colo. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

8

Duprey v. Conn. Dep't of Motor Vehicles,

9

191 F.R.D. 329 (D. Conn. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

10 Eisen v. Carlisle & Jacquelin,

417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

11

Guckenberger v. Boston Univ.,

12

957 F. Supp. 306 (D. Mass. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

13 Haley v. Medtronic, Inc.,

169 F.R.D. 643 (C.D. Cal. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

14

Hanlon v. Chrysler Corp.,

15

150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18

16 Hanon v. Dataproducts Corp.,

976 F.2d 497 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

17

Henrietta D. v. Giuliani,

18

1996 WL 633382 (E.D.N.Y. Oct. 25, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

19 Jorgensen v. Jack in the Box Rests.,

No. C95-0406 SAW (N.D. Cal. Feb. 28, 1997) . . . . . . . . . . . . . . . . . . . . . . . . 16, 21, 25

20

Kathleen S. v. Dep't of Pub. Welfare,

21

1998 WL 83973 (E.D. Pa. Feb. 25, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

22 Leiken v. Squaw Valley Ski Corp.,

1994 U.S. Dist. LEXIS 21281 (E.D. Cal. June 28, 1994) . . . . . . . . . . . . . . . . . . . 16, 25

23

Lightbourn v. County of El Paso,

24

118 F.3d 421 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

25 Lucas v. Kmart Corp.,

2005 WL 1648182 (D. Colo. July 13, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

26

Lucas v. Kmart Corp.,

27

2006 WL 722163 (D. Colo. Mar. 22, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

28

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1 Marcus v. Kan., Dep't of Revenue,

206 F.R.D. 509 (D. Kan. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2

McKay v. County Election Comm'rs for Pulaski County, Ark.,

3

158 F.R.D. 620 (E.D. Ark. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

4 Moeller v. Taco Bell Corp.,

220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

5

Molski v. Gleich,

6

318 F.3d 937 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

7 Nat’l Fed’n of the Blind v. Target Corp.,

582 F. Supp. 2d 1185 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 21, 25

8

Nat’l Org. on Disability v. Tartaglione,

9

2001 WL 1258089 (E.D. Pa. Oct. 22, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

10 Neff v. VIA Metro. Transit Auth.,

179 F.R.D. 185 (W.D. Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

11

Neiberger v. Hawkins,

12

208 F.R.D. 301 (D. Colo. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

13 Park v. Ralph’s Grocery Co.,

254 F.R.D. 112 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19, 25

14

Parra v. Bashas’, Inc.,

15

536 F.3d 975 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

16 Siddiqi v. Regents of the Univ. of Calif.,

2000 WL 33190435 (N.D. Cal. Sept. 6, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

17

Thrope v. Ohio,

18

173 F.R.D. 483 (S.D. Ohio 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

19 Xiufang Situ v. Leavitt,

240 F.R.D. 551 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

20

STATE CASES

21

Munson v. Del Taco, Inc.,

22

46 Cal. 4th 661 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

23 People ex rel. Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
24 FEDERAL STATUTES
25 42 U.S.C. § 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 20
26 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 19
27 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28

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1 42 U.S.C. § 12186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 42 U.S.C. § 12188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 STATE STATUTES 4 Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20 5 Cal. Civ. Code § 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7 Cal. Civ. Code § 54.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20 8 Cal. Civ. Code § 54.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9 Cal. Health & Safety Code § 19956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 10 Cal. Health & Safety Code § 19959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21 11 FEDERAL RULES 12 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 13 Adv. Comm. Notes, 28 U.S.C. App., p. 697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 14 FEDERAL REGULATIONS 15 28 C.F.R. § 36.211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 16 28 C.F.R. § 36.402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 21 17 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 21 18 Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A . . . . . . . . . . . . . . . . . . passim 19 STATE REGULATIONS 20 Cal. Admin. Code, tit. 24, § 2-611(c)(4) (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 21 Title 24 of the California Code of Regulations (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . passim 22 OTHER AUTHORITIES 23 Alba Conte & Herbert B. Newberg, Newberg on Class Actions . . . . . . . . . . . . . 17, 18, 22, 24 24 7A Charles Alan Wright et al., Federal Practice & Procedure § 1775-76 (2d ed. 1986) . . . . 24 25 26 27 28

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1 I. INTRODUCTION

2

Plaintiffs challenge common barriers to customers who use wheelchairs and scooters at

3 Burger King leased (“BKL”) fast food hamburger restaurants throughout California. Plaintiffs

4 allege that these barriers violate Title III of the Americans with Disabilities Act, 42 U.S.C.

5 § 12181 et seq. (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (“Unruh” or

6 “the Unruh Act”), and the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. (the

7 “CDPA”). Plaintiffs seek certification of a class and, ultimately, injunctive relief to bring the

8 BKL restaurants into compliance with these statutes and minimum statutory damages under

9 Unruh and the CDPA.

10

This case epitomizes the type of case for which class action treatment—and

11 certification under Rule 23(b)(2) in particular—is appropriate, as the architectural barriers at

12 the subject restaurants, and policies of Defendant Burger King Corporation (“Burger King”)

13 that result in such barriers, affect the named Plaintiffs and class members in the same manner

14 and are appropriate subjects for final, company-wide, injunctive relief. See Moeller v. Taco

15 Bell Corp., 220 F.R.D. 604, 608-13 (N.D. Cal. 2004); Arnold v. United Artists Theatre Circuit,

16 Inc., 158 F.R.D. 439, 449-51 (N.D. Cal. 1994). In addition, there are no individualized damage

17 issues, because each class member seeks the minimum statutory damages per offense under

18 Unruh and the CDPA, to which they are entitled without proof of actual damages. Moeller,

19 220 F.R.D. at 613; Arnold, 143 F.R.D. at 453.

20

This case is markedly similar to Moeller v. Taco Bell, in which the court certified a

21 class of mobility-impaired persons challenging common architectural barriers at approximately

22 220 fast food chain restaurants throughout California. There, as here, the class suffered a

23 common experience of discrimination from the presence of the same categories of architectural

24 barriers to access in the restaurants, including entrances to restaurants, barriers to equal access

25 in parking lots, queue lines, condiment and drink dispensers, dining rooms, and restrooms.

26 Moeller, at 609-10 (noting that plaintiffs were challenging “the ‘same categories’ of

27 architectural barriers at Defendant’s restaurants”). Like Taco Bell’s restaurants, Burger King’s

28 BKL restaurants contain common categories of barriers that discriminate against people who

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1 use wheelchairs and scooters.

2

II. STATEMENT OF THE ISSUES TO BE DECIDED

3

Whether Plaintiffs’ proposed class should be certified pursuant to Federal Rule of Civil

4 Procedure 23(a) and (b)(2)?

5

III. LEGAL CONTEXT

6

Although at this stage, the Court should not consider whether the party seeking class

7 certification is likely to prevail on the merits under the ADA, Unruh Act, or CDPA, Plaintiffs

8 provide a brief background of the statutes so as to inform the context of this matter. See

9 Bautista-Perez v. Holder, 2009 WL 2031759, at *4 (N.D. Cal. July 9, 2009).

10

A. The Americans with Disabilities Act.

11

Title III of the ADA prohibits disability discrimination by those who own, operate,

12 lease, or lease to places of public accommodation such as the BKL restaurants. 42 U.S.C.

13 §§ 12181(7)(B) (restaurants are places of public accommodation), 12182(a) (anti-

14 discrimination provision); see also Moeller, 220 F.R.D. at 606. Here, Burger King leases or

15 leases to all of the BKLs, so they are covered by this provision.

16

Pursuant to statutory mandate, the Department of Justice has promulgated Standards for

17 Accessible Design at 28 C.F.R. pt. 36, app. A (“DOJ Standards” or “DOJ Stds.”). See 42

18 U.S.C. § 12186(b) (statutory mandate). The DOJ Standards contain detailed design

19 specifications for public accommodations covering a variety of architectural elements,

20 including, for example, parking lots, accessible routes, and restrooms. See generally DOJ Stds.

21 These regulations are “entitled to deference.” Bragdon v. Abbott, 524 U.S. 624, 646 (1998).

22 The accessibility requirements of Title III and the DOJ Standards vary depending on the dates

23 that facilities were constructed or altered.2 In addition, Burger King must “maintain in

24

25

2 Facilities built after January 26, 1993, are required to be “readily accessible to and

usable by” individuals who use wheelchairs, and these facilities must comply with the DOJ

26 Stds. 42 U.S.C. § 12183(a)(1); 28 C.F.R. § 36.406(a). When facilities that were built before

that time are altered in certain ways after January 26, 1992, the altered portion and—to a

27 certain extent—the path of travel to the altered portion must comply with the DOJ Standards.

28 C.F.R. §§ 36.402(b)(2); 36.406(a). In facilities built prior to January 26, 1993 and not

28 altered since January 26, 1992, Burger King is required to remove architectural barriers where

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1 operable working condition those features of facilities and equipment that are required to be

2 readily accessible to and usable by persons with disabilities.” 28 C.F.R. § 36.211. The ADA

3 authorizes injunctive relief for violations of Title III. 42 U.S.C. § 12188(a)(2).

4

B. The California Unruh Act and CDPA.

5

Two state statutes prohibit discrimination on the basis of disability in the full and equal

6 access to the services, facilities and advantages of public accommodations. Cal. Civ. Code

7 §§ 51(b) (Unruh), 54.1(a)(1) (CDPA); see Moeller, 220 F.R.D. at 606. A violation of the ADA

8 also violates both statutes. See Cal. Civ. Code §§ 51(f), 54(c); Munson v. Del Taco, Inc., 46

9 Cal. 4th 661, 670-73 (2009).

10

All buildings constructed or altered after July 1, 1970 must comply with state standards

11 governing the physical accessibility of public accommodations. Moeller, 220 F.R.D. at 607

12 (citing Cal. Health & Safety Code §§ 19956, 19959). From December 31, 1981 until the

13 present, the standards have been set forth in Title 24 of the California regulatory code. Id.

14 (citing People ex rel. Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123, 134 (1983)). In addition

15 to setting forth design and construction standards, the California Standards, like the DOJ

16 Standards, require public accommodations to maintain in operable working condition those

17 features of facilities and equipment that are required to be accessible to and usable by persons

18 with disabilities. Cal. Code Regs. tit. 24, § 1101B.3 (2007) (the “California Standards” or

19 “Cal. Stds.”). A violation of a California Standard violates both the CDPA and the Unruh Act.

20 See Moeller, 220 F.R.D. at 607.

21

A prevailing plaintiff is entitled to statutory minimum damages of $4,000 for each

22 violation of the Unruh Act, or statutory minimum damages of $1,000 for each violation of the

23 CDPA. Cal. Civ. Code §§ 52(a) (Unruh), 54.3(a) (CDPA). “[P]roof of actual damages is not a

24 prerequisite to recovery of statutory minimum damages” under the CDPA and Unruh Act.

25 Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000). The putative class seeks

26 only the statutory minimum damages for each offense.

27

28 it is “readily achievable” to do so. 42 U.S.C. § 12182(b)(2)(A)(iv).

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1

IV. FACTS

2

Plaintiffs and the proposed class share a common experience of discrimination that

3 results from the consistent placement of architectural barriers at BKL restaurants. See Section

4 IV.A. Additionally, Defendant Burger King Corporation (“Burger King” or “BKC”), as the

5 lessor/sublessor and franchisor of those restaurants, exerts central control of the architectural

6 features of BKL restaurants. That central control—though unnecessary to establish Burger

7 King’s liability under the ADA and state law—supports class certification because it results in

8 the common experience of discrimination as well as giving Burger King the capacity and

9 control to remedy it. See Section IV.B.

10

A. Plaintiffs and the Proposed Class Share a Common Experience of

Discrimination.

11

12

Named Plaintiffs Miguel Castaneda, Katherine Corbett, and Joseph Wellner (“Named

13 Plaintiffs”) are among the more than 150,000 Californians who use wheelchairs or scooters for

14 mobility. See Moeller, 220 F.R.D. at 608 (citing census data). Plaintiffs have also submitted

15 the declarations of 48 putative class members (“Declarants”), who also use wheelchairs or

16 scooters for mobility. The Named Plaintiffs and Declarants allege a common experience of

17 discrimination demonstrating a consistent pattern of accessibility problems at Defendant’s

18 California BKLs.

19

1. Entrances.

20

Named Plaintiffs and Declarants have encountered common barriers at entrances to

21 BKL restaurants, including doors that were difficult or impossible for them to open. See

22 Castaneda Depo 30:15-33:2, 66:19-22, 73:24-74:8, 77:22-78:14, 83:19-84:2, 84:10-22, 90:4-7,

23 96:10-13, 96:22-23, 97:20-98:18, 103:14-16, 105:7-20, 110:20-111:9 (Ex. 1);3 Corbett Depo

24 142:16-144:6, 144:12-25 (Ex. 2); Wellner Depo 39:23, 44:7-14 (Ex. 3); Ex. 4, Column 1; see

25

26 3 Unless otherwise noted, all references to exhibit numbers throughout the brief refer to
27 Exhibits to the Declaration of Julia Campins, filed concurrently with this motion. For convenience, all deposition testimony in this brief is abbreviated as “[Witness’s Last Name]
28 Depo.” All declarations are abbreviated as “[Witness’s Last Name] Decl.”

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1 also First Amended Complaint, Dkt. #72, (“FAC”), ¶¶ 44, 47, 50, 58(f).4 This violation

2 prevents many class members from even entering restaurants independently, and it has also

3 caused them injury, both physical and emotional. See, e.g., Stiles Decl. ¶ 5 (Ex. 47) (“The

4 door has shut on my hand a couple of times, however, because I could not pull my wheelchair

5 through the doorway quickly enough. My hand gets bruised as a result of the door closing on

6 me.”); Sarfaty Decl. ¶ 5 (Ex. 45) (“On a number of occasions, the door has closed on me and I

7 have gotten stuck in the doorway. When this occurs, employees and other customers stare at

8 me, and I feel embarrassed.”); Castaneda Depo 32:21-33:1 (Ex. 1).

9

2. Queue Lines.

10

Named Plaintiffs and Declarants have encountered common barriers at BKL queue

11 lines (the lines that customers wait in to order), including lines that were too narrow for them

12 to traverse. Castaneda Depo 34:25-37:13, 66:24-25, 67:4-10, 96:25, 99:4-14, 103:14-17,

13 105:23-106:1 (Ex. 1); Corbett Depo 145:7-147:5 (Ex. 2); Wellner Depo 39:23-25, 46:12-47:25,

14 48:17-50:8 (Ex. 3); Ex. 4, Column 2; see also FAC ¶¶ 44, 47, 50, 58(f).5 Narrow queue lines

15 restrict disabled patrons’ access to the counter and thus their ability to order and receive their

16 food independently. See, e.g., Conklin Decl. ¶ 6 (Ex. 12) (“I got stuck in the line because it

17 was too narrow and I had to back out.”); Mayers Decl. ¶ 6 (Ex. 6) (“I waited to the side while

18 my cousin’s son ordered for me. This was a humiliating situation to be in. Waiting alone to

19 the side while everyone in the line filed past me made me feel like an observed zoo animal.”);

20 Corbett Depo 146:15-21 (Ex. 2).

21

3. Condiment and Drink Dispensers.

22

Named Plaintiffs and Declarants have encountered drink and condiment dispensers that

23 were difficult or impossible for them to reach. Castaneda Depo 37:14-38:3, 41:8-15, 66:23,

24 67:1-3, 73:24-74:10, 79:7-10, 90:10-11, 96:24-97:1, 98:25-99:3, 103:25-104:1 (Ex. 1); Corbett

25

26

4 Applicable design standards govern, among other things, the weight of and

maneuvering clearance at entry doors. Cal. Stds. §§ 1133B.2.4, 1133B.2.5.

27

5 Applicable design standards govern the width of accessible routes. DOJ Stds. §§

28 4.2.3, 5.5; Cal. Stds. §§ 1104B.5(5), 1118B.3.

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1 Depo 147:24-148:9, 150:15-19 (Ex. 2); Wellner Depo 39:25-40:2, 58:24-60:7 (Ex. 3); Ex. 4,

2 Column 3; see also FAC ¶¶ 44, 47, 50, 58(e).6 The inaccessibility of the drink and condiment

3 dispensers leads to an unequal dining experience for disabled patrons. See, e.g., Mayers Decl.

4 ¶ 7 (Ex. 36) (“We are trained from childhood to get things for ourselves at fast food places, but

5 at Burger King I am denied this option. The whole idea of fast food is that it is quick and

6 simple to get, but this falls by the wayside when I can’t even grab my own condiments.”);

7 Suttles Decl. ¶ 7 (Ex. 48) (“I don’t like to ask strangers to get things for me since I’m used to

8 doing things for myself, but I have no choice when I’m at Burger King alone.”). Mr.

9 Castaneda, for example, no longer buys drinks at BKLs unless he has a friend to help him,

10 because he spilled a drink all over himself after struggling with the inaccessible self-serve

11 drink dispenser at one BKL. Castaneda Depo 37:14-38:3 (Ex. 1); see also Jackson Decl. ¶ 6

12 (Ex. 28) (“Due to the position of the drink dispenser, I end up spilling soda on myself because

13 I can’t see when my cup is full.”).

14

4. Dining Rooms.

15

Named Plaintiffs and Declarants have experienced common barriers in BKL dining

16 rooms, including an insufficient number of designated accessible tables, and designated tables

17 that were inaccessible. Castaneda Depo 38:4-21, 41:4-7, 90:16-18, 96:24, 97:3, 98:19-23,

18 103:14-17, 106:2-8 (Ex. 1); Corbett Depo 148:10-149:13, 157:17-20 (Ex. 2); Wellner Depo

19 40:2-3, 50:24-56:15 (Ex. 3); Ex. 4, Column 4; FAC ¶¶ 44, 50.7 For example, it is often

20 difficult for people who use wheelchairs to find a place at a table in a BKL restaurant. See,

21 e.g., Rediske Decl. ¶ 8 (Ex. 42) (“The last time I ordered inside the restaurant, I could not

22 access a table in the dining area. As a result, I took my food outside and ate on the sidewalk. I

23 felt humiliated by the experience of having to sit alone on the sidewalk in order to eat my

24 meal.”); Belt Decl. ¶ 8 (Ex. 10) (“If I want to eat at the table with my family or friends, I have

25

26

6 Applicable design standards govern the reach ranges for self-service items. DOJ

Stds. §§ 4.2, 5.6; Cal. Stds. §§ 1104B.5(6), 1122B.4.

27

7 Applicable design standards govern the number of accessible tables required and the

28 dimensions of those tables. DOJ Stds. §§ 4.32, 5.1; Cal. Stds. §§ 1104B.5, 1122B.

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1 to be lifted up out of my wheelchair and placed into a seat.”); Wellner Depo 51:12-18 (Ex. 3).

2 When they do find a table that can partially accommodate them, they cannot fully utilize it and

3 are forced to be in the aisles. See, e.g., Allred Decl. ¶ 8 (Ex. 5) (“The other customers bump

4 into the back of my wheelchair when they try to get past me, and they don’t seem to

5 understand that I can’t scoot in closer to the table.”).

6

5. Restrooms.

7

Named Plaintiffs and Declarants have experienced common barriers at BKL restrooms,

8 including difficulty entering or exiting the BKL restrooms because the doors were difficult or

9 impossible to open. Castaneda Depo 41:16-21, 67:15-17, 84:3-9, 90:12-15 (Ex. 1); Corbett

10 Depo 149:19-150:2 (Ex. 2); Wellner Depo 40:3-5, 61:19-62:1 (Ex. 3); Ex. 4, Column 5; see

11 also FAC ¶¶ 44, 47, 50, 58(e).8 Named Plaintiffs and Declarants have also experienced

12 common barriers in the restrooms, including inadequate restroom stalls. Wellner Depo 62:16-

13 24, 63:21-64:1 (Ex. 1); Ex. 4, Column 5; see also, e.g., Thompson Decl. ¶ 9 (Ex. 49) (“When I

14 was in the stall with my wheelchair, I could not close the door. Because I did not have enough

15 privacy, I gave up and exited the restroom.”).

16

6. Parking Lots.

17

The Named Plaintiffs and Declarants have encountered barriers in the parking lots of

18 BKLs, including parking spaces and access aisles that are too narrow to permit persons who

19 use wheelchairs or scooters to unload from their vans, too few accessible spaces, parking lots

20 that have no, or inadequate, signage, and inaccessible routes to entrances. Castaneda Depo

21 30:4-32:16, 78:21-79:1, 90:4-9, 92:21-93:3, 96:10-19, 97:14-19, 110:3-15 (Ex. 1); Corbett

22 Depo 139:12-142:15, 144:12-23 (Ex. 2); Wellner Depo 39:21-23, 40:11-17 (Ex. 3); Ex. 4,

23 Columns 6 & 7; see also FAC ¶¶ 44, 47, 50, 58(f).9 The lack of accessible spaces is not merely

24 inconvenient, it is dangerous and inhibits access to the BKLs. See, e.g., Susan Douglas Decl. ¶

25 8 Applicable design standards govern most aspects of customer-use restrooms,
26 including the weight of doors, size of stalls, and position of amenities. DOJ Stds. §§ 4.16-.19, 4.22, 4.24, 4.26; Cal. Stds. § 1115B.
27 9 Applicable design standards govern the number and dimensions of accessible parking
28 spaces and access aisles. DOJ Stds. §§ 4.1.2, 4.6; Cal. Stds. §§ 1129B.

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1 4 (Ex. 17) (“I have had to park where I can take up two regular spaces. On occasion, a car will

2 park too close to my vehicle, making it impossible for me to extend my wheelchair ramp and

3 get into my vehicle. I have had to waive down a passerby and ask that passerby, a stranger, to

4 back my car out for me so that I could lower the ramp.”); Kilgore Decl. ¶ 4 (Ex. 32) (“When I

5 do get to use a handicapped space, the space is too narrow for me to get out of my vehicle if

6 there are cars parked in the adjacent spaces. My wife has had to pull out of the space and let

7 me out in the middle of the parking lot when there is a car parked next to us.”).

8

. . . . .

9

In encountering these barriers, the Named Plaintiffs and Declarants have all

10 experienced a loss of dignity. For example James Pinnix, a Vietnam War veteran whose

11 injuries in the war require him to use a wheelchair, states, “It is frustrating, despite my service

12 and sacrifices, to have to confront these barriers that make me feel like a second-class citizen.”

13 Pinnix Decl., ¶ 9 (Ex. 40). Others find that their experiences at BKLs counteract their efforts

14 to live independently and teach their children about the importance of living independently as a

15 person with disabilities. See, e.g., Marcell Decl. ¶ 6 (Ex. 35) (“I have tried to instill a sense of

16 independence in my daughter, . . . to teach her that she is a normal person like anyone else.

17 But when I have to do basic tasks for her like placing her order at a restaurant, I feel those

18 lessons I have tried to impart are undermined.”); Belt Decl. ¶ 8 (Ex. 10) (“I am over 80 years

19 old, and I have been independent most of my life. I do not want to rely on or burden others to

20 find suitable parking, open the door, place my order, get my drink, and help me to sit at a

21 table.”); Corbett Depo 184:32-185:10, 192:12-193:8, 213:19-24 (Ex. 2).

22

B. Defendant Burger King Corporation’s Centralized Control Creates a

Common Experience of Discrimination. 23

24

1. Background of Defendant Burger King Corporation.

25

Burger King is a highly-centralized company that sells hamburger and related fast food

26 products. Throughout the class period, Burger King has leased and/or leased to approximately

27 ///

28 ///

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1 96 restaurants in California (“BKLs”), with 93 current BKLs.10 All BKLs are franchised.

2 Although there are other California Burger King restaurants operated by Defendant’s

3 franchisees, in which Burger King has no leasehold interest, Plaintiffs seek class certification

4 only with respect to patrons of the BKLs. Because BKLs are franchised restaurants with

5 structures subject to Burger King’s leasehold interest, their operations and structure are

6 controlled by two main contracts: the Lease/Sublease and the Franchise Agreement.

7

2. Burger King’s Centralized Policies.

8

Through its centralized policies, Burger King has the power to control virtually every

9 aspect of a BKL, including the construction, alteration, and operation of these restaurants.

10 See FAC ¶¶ 27-38. This culture of centralized control and micro-management stands in stark

11 contrast to its delegation to BKLs of compliance with accessibility laws. Burger King

12 otherwise strictly enforces standards, but merely suggests compliance with accessibility laws

13 and regulations.

14

While centralized control is not a required element for either class certification (which

15 is largely established through the common discriminatory experiences described above) or

16 liability (which is established by Burger King’s leasehold interest in the BKLs), it

17 demonstrates that the class action device is the best way to address the barriers and other

18 violations encountered by putative class members throughout the BKL restaurants.

19

a. Burger King’s Centralized Control over the Initial

Construction of BKLs.

20

21

Burger King has substantial control over the initial construction of BKLs. For

22 example, a BKL franchisee that intends to construct a new restaurant must comply with Burger

23 King’s standard plans and specifications, and any deviations must be approved by Burger

24 King. See Boothby Decl., Ex. 1, Tbl. 1. For initial construction, Burger King instructs its

25

26

10 On September 10, 2006, there were 93 BKLs in operation. Since that date, 3

additional BKLs were opened or acquired by Burger King. Between September 2006 and

27 January 14, 2009, 2 BKLs closed, and 2 were converted from BKL to franchisee ownership.

To the best of Plaintiffs’ knowledge, there are thus 92 BKLs currently in operation. There are

28 therefore approximately 96 BKLs currently subject to this lawsuit. Ex. 53; Ex. 122.

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1 BKL franchisees that

2

construction of . . . new Burger King restaurant[s] shall be in a manner

authorized and approved by BKC. All signs, equipment, playground

3

equipment and design, landscaping, and furnishings to be used in the

restaurant shall meet BKC’s specifications, criteria, and performance

4

standards. BKC shall review the building type, site layout, signage, and

overall adherence to current building standards and identity, and may require

5

any reasonable modifications to any or all of those items at any time before

the restaurant opens for business.

6

7 See Ex. 87 at BKC003945; see also, e.g., Ex. 88 at BKC059409; Ex. 89 at BKC061781.

8

This control in many cases led directly to the construction of common barriers

9 experienced by putative class members. For example, at a time when the California Standards

10 required food service lines to be 36 inches wide,

11

12

11

13

b. Burger King’s Centralized Control over Alterations to BKLs.

14

Burger King also exercises centralized control over alterations to BKLs. This control is

15 derived both from the Lease/Sublease agreement and the Franchise Agreement.

16

Burger King’s lease agreements with BKL franchisees ensure that it also has control

17 over any post-construction alterations to BKLs. These agreements provide that the lessee shall

18 not at any time make any alteration, change, addition, or improvement without the prior written

19 consent of Burger King,12 and the franchise files maintained at Burger King’s headquarters are

20 replete with requests for and approvals and denials of legal clearance for remodels. See, e.g.,

21 Ex. 90 (issuing legal clearance 3362); Ex. 91 (request for approval 1985); Ex. 92 (request for

22 approval 1999); Ex. 93 (issuing legal clearance 2002); Ex. 94 (holding legal clearance 1995).

23 Indeed, BKL franchisees are punished for not complying with the legal clearance requirements.

24 See, e.g., Ex. 96. “[O]ne of the reasons the [Burger King] Law Department processes remodels

25 for legal clearance is to be sure that all work done on the properties is done in full compliance

26

27

11 See Cal. Admin. Code, tit. 24, § 2-611(c)(4) (1982) (Ex. 95).

28

12 See, e.g., Boothby Decl., Ex. 1, Tbl. 2 at Column 3; Ex. 86 at BKC 004297 (§ 5.3).

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1 with the Leases and/or any existing property restrictions and to avoid the Franchisees

2 performing remodels without BKC’s knowledge.” Ex. 97.

3

Through its standard franchise agreement, Burger King controls remodels of franchised

4 restaurants including BKLs. The standard term of a Burger King franchise agreement is 20

5 years, and the agreement obligates the franchisee to remodel the restaurant at the end of the

6 term in order to renew. Ex. 98 at 23. The remodel must reflect Burger King’s standard plans

7 and specifications. See Boothby Decl., Ex. 1, Tbl. 2 at Column 1. Failing to remodel is

8 grounds for default. See id. at Column 2.

9

c. Burger King’s Centralized Control Over the Operation of

BKLs.

10

11

Uniformity of restaurant operations is vital to Burger King’s success. According to its

12 most recent Form 10-K, “[a]ll of our restaurants must adhere to strict standardized operating

13 procedures and requirements which we believe are critical to the image and success of the

14 Burger King brand.” Ex. 98 at 6. Burger King takes a number of steps to ensure the

15 uniformity of BKL restaurant operations. This uniformity emphasizes Burger King’s

16 centralized control over both the structure and the operations of the BKLs.

17

First, “[e]ach restaurant is required to follow the Manual of Operating Data, an

18 extensive operations manual containing mandatory restaurant operating standards,

19 specifications and procedures prescribed from time to time to assure uniformity of operations

20 and consistent high quality of products at Burger King restaurants.” Id. Among other

21 requirements, the Manual of Operating Data (“MOD”) addresses “standard design, equipment

22 systems, color scheme and signage, operating procedures, hours of operation and standards of

23 quality for products and services.” Id. Thus, the MOD prescribes not only policies that are

24 strictly operational, but also policies that are architectural and structural and that interact with

25 the structure of the restaurants.13 Again, by way of example, inaccessible queue lines at many

26

27

13

28

(continued...)

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1 BKL restaurants result from a centralized policy concerning restaurant design promulgated by

2 Burger King in the mid-1980’s and

3

4

5

6

7

8

In addition, BKL franchisees must maintain restaurants in accordance with Burger

9 King’s repair and maintenance standards, and must implement a training program for

10 restaurant employees in accordance with training standards and procedures prescribed by

11 BKC. Ex. 98 at 14; Boothby Decl., Ex. 1, Tbl. 4. The Lease contains a provision requiring the

12 lessee/sublessee to maintain the building and other improvements in good condition and repair.

13 See, e.g., Ex. 82 at BKC005420 (§ 5.2). Burger King has invoked this provision to institute

14 inspection programs. See, e.g., Boothby Decl., Ex. 1, Tbl. 3 at Column 2; Ex. 99 (instituting

15 “inspection program” for Burger King to monitor BKL franchisee’s compliance with lease

16 provision).

17

d. Burger King Monitors Compliance with and Enforces Its

Centralized Policies.

18

19

Burger King takes steps to ensure that the above policies are followed. For example, it

20 “conduct[s] scheduled and unscheduled inspections of company and franchise restaurants

21 throughout the Burger King system.” Ex. 98 at 14; see also Ex. 100 (“Record of Visitation -

22 Training Visit”); Ex. 101 (email containing restaurant’s “mystery shop history,” “record of

23 visitation - general visit”). Burger King also has a set of “Minimum Acceptable Repair,

24 Maintenance, and Image Standards for Expansion Approvals, Conversions and FtoFs” and

25 mandates compliance with those standards. Franchisees are placed on warning for not

26

27 13

28

.

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1 complying with these minimum standards. See, e.g., Ex. 102 at BKC009361; Ex. 103; Ex.

2 104. Failure “to maintain the Restaurant in accordance with the Franchise Agreement and

3 BKC’s specifications and requirements” results in further discipline. See Ex. 103. Burger

4 King states unequivocally that it will take “whatever action it deems necessary to protect its

5 interests and the Burger King Burger King® [sic] brand.” Ex. 105.

6

Indeed, Burger King has sued franchisees to enforce its standards. For example, in

7 Burger King Corp. v. Shams, No. 06-20870 (S.D. Fla. Apr. 25, 2006) (Ex. 106), BKC sought

8 specific performance of a franchise agreement, based on the franchisee’s “failure to operate his

9 BURGER KING® Restaurants in accordance with the standards and specifications required by

10 BKC.” Id. ¶ 1. Among other alleged violations, the complaint alleged that the “[r]estrooms

11 [were] not clean and maintained.” Id.; see also, e.g., Complaint for Injunctive Relief and

12 Damages, Burger King Corp. v. Bru Corp., No. 07-21316, ¶ 59 (S.D. Fla. May 22, 2007) (Ex.

13 107) (alleging that the franchisee’s “failure to operate the Restaurant in accordance with

14 BKC’s standards relating to service, cleanliness, health, sanitation, repair and maintenance, as

15 well as operational requirements, is a breach of the Franchise Agreement.”). Eventually,

16 Burger King completes a walk-through to satisfy itself that the BKL is “back on track.” See

17 Ex. 108.

18

Burger King also conducts Facility Inspection Reports (FIRs) as part of contract

19 renewal, and requires BKL franchisees to conduct regular and periodic “Repair and

20 Maintenance reviews.” See, e.g., Ex. 109 at BKC012652; see also Dkt. #123 at 6; Ex. 110 at

21 BKC012440; Ex. 111 at BKC001029; Ex. 112 at BKC063485. These FIRs contain a

22 staggering amount of detail, from requirements regarding the “mansard roof” to requirements

23 that the tables and chairs be “free of rust.” See, e.g., Ex. 110; Ex. 113 at BKC008989.

24

The FIRs, however, omit virtually all accessibility requirements set forth in applicable

25 law and standards, including, for example, door force standards, queue line navigation, and

26 seating accessibility, just to name a few of the omissions. Id. Instead Burger King requires

27 BKL franchisees to hire engineers to submit ADA Compliance surveys in a prescribed form as

28 part of the FIR. See, e.g., Ex. 114 at BKC129862 (“Certificate of Inspection - Americans with

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1 Disabilities Act (page 27) must be completed for all BKL restaurants.”); Ex. 110 at

2 BKC012440(same); Ex. 111 at BKC001029 (same); Ex. 112 at BKC063485 (same). The

3 access laws state specific, objective standards. See supra nn. 4-9. In contrast, these surveys

4 contain no standards, do not mention the California statutes or standards, and require only the

5 conclusory assessment of whether the BKL is “[i]n substantial compliance with Title III of the

6 ADA and the ADAG.” See, e.g., Ex. 115 at BKC021075; Ex. 116; Ex. 117.

7

Significantly—and in stark contrast to Burger King’s reaction to violations of its other

8 procedures and design specifications, which, as set forth above, result in threats of default and

9 lawsuits—when Burger King receives a compliance survey indicating access violations, it

10 merely sends the franchisee a standardized letter encouraging the franchisee to rectify the

11 violations. See, e.g., Ex. 118; Ex. 119.

12

e. Burger King’s Access Surveys.

13

Burger King demonstrated its centralized control and ultimate control over the

14 accessibility of the BKL restaurants in its response to Plaintiffs’ pre-suit demand letter. After

15 the parties to this case began pre-suit negotiations, Burger King hired consultants and

16 commissioned accessibility surveys of the BKL restaurants. Dkt. #123 at 4.14 Indeed, Burger

17 King and its counsel worked with the consultants to develop and perform surveys and to

18 prepare the resulting “scope of work summar[ies]” outlining the feasibility of possible

19 remediation. Id. Only after all of this work was completed did Burger King send the scope of

20 work summary to the BKL franchisees nor did Burger King seek the consent or input of the

21 BKL franchisees; the BKL franchisees were not even given copies of the consultants’ survey

22 results of their own restaurants. Id. at 5. Thus, Burger King exercised its control to centrally

23 organize and compel uniform, California-wide surveys of all of its BKLs and alteration of the

24 restaurants in accordance with the results of those surveys. These surveys and subsequent

25 extensive communications regarding remediation also strongly suggest that many, if not all,

26

27

14 Defendant’s privilege log, although woefully inadequate, also suggests a high level

of control evident in Burger King’s surveys of these restaurants and subsequent remediation.

28 See Ex. 120.

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1 BKLs failed to comply with the access laws with respect to barriers giving rise to putative

2 class members’ common experience of discrimination.

3

. . . . .

4

Burger King exercises substantial centralized control over both the structure and the

5 operations of the BKLs. Although Burger King does have certain centralized accessibility

6 policies, enforcement of these policies sharply contrasts with the micro-management of the

7 BKLs outside of the context of disability access. Indeed, the policies are remarkable in their

8 lack of specificity. Such delegation has resulted in a common experience of discrimination for

9 individuals who use wheelchairs and scooters.

10

V. ARGUMENT

11

A. Introduction

12

The Court must determine whether the proposed class satisfies the four prerequisites of

13 Rule 23(a), as well as one of the three subsections of Rule 23(b). Hanlon v. Chrysler Corp.,

14 150 F.3d 1011, 1019, 1022 (9th Cir. 1998). Plaintiffs seek certification pursuant to Rule

15 23(b)(2) because Defendant has “acted or refused to act on grounds that apply generally to the

16 class so that final injunctive relief or corresponding declaratory relief is appropriate respecting

17 the class as a whole.” Fed. R. Civ. P. 23(b)(2).

18

In analyzing whether the class meets the prerequisites noted above, a court is to take

19 the substantive allegations of the complaint as true, and may also consider extrinsic evidence

20 submitted by the parties. Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975); see also

21 Am. Council of the Blind v. Astrue, 2008 WL 4279674, at *2 (N.D. Cal. Sept. 11, 2008) (citing

22 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974)). Although the Court is “at

23 liberty” to consider evidence that relates to the merits if such evidence also goes to the

24 requirements of Rule 23, Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992), the

25 Court, as noted above, may not consider whether the party seeking class certification has stated

26 a cause of action or is likely to prevail on the merits, Eisen, 417 U.S. at 178; Bautista-Perez,

27 2009 WL 2031759, at *4.

28

Plaintiffs will analyze each of the requirements of Rule 23(a) and Rule 23(b)(2)

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1 separately below. As an overview, however, numerous courts in the Ninth Circuit have

2 certified classes of individuals with disabilities challenging architectural barriers and/or

3 deficient policies. See Dkt. #69 at 7-8. These include, for example:

4

•

Armstrong v. Davis, 275 F.3d 849, 869-70, 879 (9th Cir. 2001) (affirming the

certification of a class of prisoners and parolees with sight, hearing, learning,

5

developmental, and mobility disabilities);

6

•

Park v. Ralph’s Grocery Co., 254 F.R.D. 112, 120-23 (C.D. Cal. 2008)

(certifying class of persons with mobility disabilities suing for alleged

7

violations of architectural accessibility requirements at a grocery store chain);

8

•

Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D.

334, 344-49 (N.D. Cal. 2008) (certifying class of persons with mobility and/or

9

vision disabilities suing due to barriers along outdoor designated pedestrian

walkways throughout the state of California which are owned and/or maintained

10

by the California Department of Transportation);

11

•

Nat’l Fed’n of the Blind v. Target Corp., 582 F. Supp. 2d 1185, 1199-1203

(N.D. Cal. 2007) (certifying class of persons with visual impairments suing for

12

alleged violations of accessibility requirements at online store);

13

•

Moeller v. Taco Bell Corp., 220 F.R.D. 604, 607-08, 613 (N.D. Cal. 2004)

(certifying class of persons with mobility disabilities suing for alleged

14

violations of architectural accessibility requirements at a fast food chain);

15

•

Bates v. United Parcel Serv., 204 F.R.D. 440, 448 (N.D. Cal. 2001) (certifying

nationwide class of hearing impaired employees of the defendant);

16

•

Siddiqi v. Regents of the Univ. of Calif., 2000 WL 33190435, at *11 (N.D. Cal.

17

Sept. 6, 2000) (certifying classes of deaf and hard of hearing students suing for

alleged violations of federal law);

18

•

Jorgensen v. Jack in the Box Rests., No. C95-0406 SAW, at 3 n.4, 7 (N.D. Cal.

19

Feb. 28, 1997) (Ex. 121) (certifying class of persons with mobility disabilities

suing for alleged violations of architectural accessibility requirements);

20

•

Berlowitz v. Nob Hill Masonic Mgmt., Inc., 1996 WL 724776 at *1, 5 (N.D.

21

Cal. Dec. 6, 1996) (certifying class consisting of all persons in California with

physical disabilities suing for alleged violations of architectural accessibility

22

requirements at a concert arena);

23

•

Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 460 (N.D. Cal.

1994), modified, 158 F.R.D. 439, 443, 460 (1994) (certifying a class of disabled

24

persons who used wheelchairs or who walked using aids suing for alleged

violations of architectural accessibility requirements of the ADA and the

25

CDPA); and

26

•

Leiken v. Squaw Valley Ski Corp., Nos. CIV. S-93-505 LKK, 1994 U.S. Dist.

LEXIS 21281, at *18-19 (E.D. Cal. June 28, 1994) (certifying a class of

27

physically disabled persons suing for alleged architectural barriers).

28 These cases are in accord with numerous decisions across the country certifying classes of

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1 individuals with disabilities challenging architectural barriers, transportation barriers, other

2 barriers, and/or discriminatory policies.15

3

B. The Proposed Class Meets the Requirements of Rule 23(a).

4

1. The Proposed Class Is so Numerous that Joinder Is Impracticable.

5

Rule 23(a)(1) requires that a class be so numerous that joinder of all members is

6 impracticable. Plaintiffs have submitted declarations from 48 putative class members who use

7 wheelchairs for mobility, have patronized California BKLs since 2006, and have encountered

8 similar accessibility barriers. These declarations alone demonstrate that the numerosity

9 requirement is met. 1 Alba Conte & Herbert B. Newberg, Newberg on Class Actions, § 3:5

10 (4th ed. 2002) (hereinafter “Newberg”) (“[T]he difficulty inherent in joining as few as 40 class

11 members should raise a presumption that joinder is impracticable, and the plaintiff whose class

12 is that large or larger should meet the test of Rule 23(a)(1) on that fact alone.”)

13

Further, “Plaintiffs do not need to state the exact number of potential class members,

14 nor is a specific number of class members required for numerosity.” Moeller, 220 F.R.D. at

15 608; Bates, 204 F.R.D. at 444 (citing Arnold, 158 F.R.D. at 448). A court may make common

16 sense assumptions to support a finding that joinder would be impracticable. Moeller, 220

17 F.R.D. at 608; Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 358 (D. Colo.

18 15 See, e.g., Lightbourn v. County of El Paso, 118 F.3d 421, 423, 426 (5th Cir. 1997);
19 Lucas v. Kmart Corp., 2005 WL 1648182 (D. Colo. July 13, 2005) (nationwide class) & 2006 WL 722163 (D. Colo. Mar. 22, 2006) (damages settlement sub-class); Alexander A. ex rel.
20 Barr v. Novello, 210 F.R.D. 27, 38 (E.D.N.Y. 2002); Access Now, Inc. v. Claire’s Stores, Inc., 2002 WL 1162422, at *3 (S.D. Fla. May 7, 2002); Ass’n for Disabled Ams., Inc. v. Amoco Oil
21 Co., 211 F.R.D. 457, 459, 466 (S.D. Fla. 2002); Marcus v. Kan., Dep’t of Revenue, 206 F.R.D. 509, 511, 513 (D. Kan. 2002); Neiberger v. Hawkins, 208 F.R.D. 301, 318-20 (D. Colo. 2002);
22 Nat’l Org. on Disability v. Tartaglione, 2001 WL 1258089, at *5 (E.D. Pa. Oct. 22, 2001); Access Now, Inc. v. AHM CGH, Inc., 2000 WL 1809979, at *5 (S.D. Fla. Jul. 12, 2000);
23 Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 530 (S.D. Fla. 2000); Bacal v. Se. Pa. Transp. Auth., 1995 WL 299029, at *8-9 (E.D. Pa. May 16, 1995);
24 Boulet v. Cellucci, 107 F. Supp. 2d 61, 63, 81 (D. Mass. 2000); Duprey v. Conn. Dep’t of Motor Vehicles, 191 F.R.D. 329, 339-42 (D. Conn. 2000); Neff v. VIA Metro. Transit Auth.,
25 179 F.R.D. 185, 196 (W.D. Tex. 1998); Anderson v. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 462 (E.D. Pa. 1998); Kathleen S. v. Dep’t of Pub. Welfare, 1998 WL 83973, at *2-3 (E.D. Pa.
26 Feb. 25, 1998); Guckenberger v. Boston Univ., 957 F. Supp. 306, 326-27 (D. Mass. 1997); Thrope v. Ohio, 173 F.R.D. 483, 486, 491 (S.D. Ohio 1997); Civic Ass’n of the Deaf of New
27 York City, Inc. v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y. 1996); Henrietta D. v. Giuliani, 1996 WL 633382, at *16 (E.D.N.Y. Oct. 25, 1996); McKay v. County Election Comm’rs for
28 Pulaski County, Ark., 158 F.R.D. 620, 626 (E.D. Ark. 1994).

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1 1999); 1 Newberg § 3:3 (“Where the exact size of the class is unknown but general knowledge

2 and common sense indicate that it is large, the numerosity requirement is satisfied.”).

3

The fact that a class is geographically dispersed, and that class members are difficult to

4 identify, supports class certification. Moeller, 220 F.R.D. at 608 (joinder impracticable where

5 class members are difficult to identify); Haley v. Medtronic, Inc., 169 F.R.D. 643, 648 (C.D.

6 Cal. 1996); 1 Newberg § 3:6. BKL restaurants are geographically dispersed from Eureka to

7 San Diego. Boothby Decl. Ex. 2; Ex. 4., Column 8. The proposed class therefore stretches

8 throughout the state of California. Class members, however, are difficult to identify. Both of

9 these factors support a finding that joinder in this case is impracticable.

10

Census figures demonstrate that there are approximately 151,580 non-institutionalized

11 people 16 years of age or older in California who use wheelchairs. See Moeller, 220 F.R.D. at

12 608 (citing census data). Burger King is one of the top three fast food hamburger chains in the

13 world. See Ex. 98 at 4. As a matter of common sense, then, the class in this case is large,

14 substantially exceeding the Named Plaintiffs and Declarants.

15

2. There Are Questions of Law and Fact Common to the Proposed

Class.

16

17

Rule 23(a)(2) requires that there be questions of law or fact that are common to the

18 class. The commonality standard under Rule 23(a)(2) “has been construed permissively” and

19 is “flexible.” Parra v. Bashas’, Inc., 536 F.3d 975, 978 (9th Cir. 2008). The requirements for

20 finding commonality are “minimal.” Hanlon, 150 F.3d at 1020; Bates, 204 F.R.D. at 445.

21 “Where the circumstances of each particular class member vary but retain a common core of

22 factual or legal issues with the rest of the class, commonality exists.” Parra, 536 F.3d at 978-

23 79; accord Moeller, 220 F.R.D. at 608-09; Bates, 204 F.R.D. at 445.

24

a. Common Experience of Discrimination.

25

“A number of courts have held that where people who use wheelchairs encounter the

26 same types of barriers at a number of commonly-owned or affiliated public accommodations,

27 commonality is established and class certification is appropriate.” Moeller, 220 F.R.D. 604,

28 609 (N.D. Cal. 2004) (citing Colo. Cross Disability Coal., 184 F.R.D. at 359-60; Access Now,

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1 Inc. v. Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 526 (S.D. Fla. 2000); Arnold,

2 158 F.R.D. at 449); see also, e.g., Park, 254 F.R.D. at 120-21; Lucas v. Kmart Corp., 2005 WL

3 1648182 (D. Colo. July 13, 2005). The proposed class here, like the certified classes in similar

4 cases, have suffered common experiences of discrimination.

5

Because plaintiffs challenge “the ‘same categories’ of architectural barriers at

6 Defendant’s restaurants,” the class satisfies the commonality requirement. Moeller, 220

7 F.R.D. at 609-10. This results from the fact that “[i]nadequate wheelchair accommodations” at

8 a chain “are very likely to affect all wheelchair-users in the same way . . . [and thus] the state

9 of such accommodations . . . , and the legal adequacy of those accommodations, are issues of

10 fact and law common to all of those disabled persons affected by them.” Arnold, 158 F.R.D. at

11 449.

12

This case presents the same scenario as Moeller and Arnold. Like the plaintiffs in those

13 cases, Plaintiffs here allege that Burger King’s discriminatory policies and barriers have a

14 similar impact on putative class members. Also like Moeller and Arnold, Burger King is

15 directly liable under the ADA for the access barriers that have created this common experience

16 of discrimination at BKLs. 42 U.S.C. § 12182 (prohibiting discrimination by “any person who

17 . . . leases (or leases to) . . . a place of public accommodation”).

18

b. Centralized Decision Making.

19

Questions concerning allegedly discriminatory policies, the lack of required policies,

20 and/or failure to enforce required policies also present factual and legal questions that establish

21 commonality. “[C]entralized decision-making is an additional factor weighing heavily towards

22 a finding of commonality, if it does not establish commonality outright.” Moeller, 220 F.R.D.

23 at 610. Sins of omission as well as sins of commission establish commonality. Centralized

24 control combined with a “fail[ure] to implement a practice or policy [] that satisfies [its]

25 obligations” can satisfy the commonality requirement. See, e.g., Am. Council of the Blind,

26

27

28

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1 2008 WL 4279674, at *4; Xiufang Situ v. Leavitt, 240 F.R.D. 551, 560-61 (N.D. Cal. 2007).16

2

Here, Burger King exercises significant centralized control over the BKLs. For

3 example: (1) Through its development, franchise, and lease agreements, BKLs must be built,

4 remodeled, and altered in accordance with Burger King’s design specifications, and any

5 deviations must be approved by Burger King; (2) Burger King monitors compliance with its

6 centralized policies and procedures through scheduled and unscheduled inspections, and by

7 conducting FIRs; (3) Burger King enforces compliance with its centralized policies and

8 procedures by threatening default and by filing suit; (4) Burger King has the power to survey

9 the BKLs for compliance with access regulations and attempt to address violations, as

10 demonstrated by the surveys it commissioned after receiving Plaintiffs’ demand letter; and (5)

11 Burger King has substantial control over the operations of BKLs by requiring that these

12 restaurants be operated in compliance with the MOD, Burger King training standards, and

13 Burger King repair and maintenance standards.

14

c. Common Questions of Law and Fact.

15

The similar experiences of the class members, together with Defendant’s centralized

16 policies, give rise to a number of common factual and legal questions, including:17

17

•

Do the common barriers experienced by putative class members violate the

ADA, Unruh and the CDPA?

18

•

Are the BKLs “places of public accommodation” under the ADA and/or

19

CDPA? See 42 U.S.C. §§ 12181(7)(B); Cal. Civ. Code § 54.1(a)(1).

20

•

Are the BKLs “business establishments” under Unruh? Cal. Civ. Code § 51(b).

21

22

16 See also, e.g., Lightbourn, 118 F.3d at 426 (defendants did not have policies in place

“direct[ing] local election officials to comply with [29 U.S.C. § 794] and the ADA” by making

23 polling places accessible); Tartaglione, 2001 WL 1258089, at *3 (allegation that defendant

failed to have policies ensuring that voters with mobility impairments had access to

24 neighborhood polling places was an allegation that defendant “engaged in a common course of

conduct on a classwide . . . basis”); Ceaser v. Pataki, 2000 WL 1154318, at *5-6 (S.D.N.Y.

25 Aug. 14, 2000) (holding that commonality requirement was met where there was a common

question as to whether the defendants’ failure to enforce and to assure compliance with various

26 statutory mandates violated Title VI.).

27

17 Because class members seek only the minimum statutory damages per offense,

damage issues for each class member are almost identical. See Arnold, 158 F.R.D. at 449; see

28 also Moeller, 220 F.R.D. at 610.

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1

•

Is Burger King liable for the violations of the ADA, Unruh and CDPA at the

BKL restaurants?

2

•

Do the 20-year remodels required by Burger King’s standard franchise

3

agreements constitute “alterations” under the ADA, Unruh Act and/or CDPA?

See 28 C.F.R. §§ 36.402(b)(2); 36.406(a); Cal. Health & Safety Code § 19959.

4

•

Have Defendant’s past or present design specifications violated the ADA,

5

Unruh Act and/or CDPA by setting forth specifications, such as too-narrow

queue lines, that violate these statutes?

6

•

Does the ADA, Unruh Act and/or CDPA require Defendant to have in place

7

practices and policies to ensure that BKLs are accessible to putative class

members?

8

•

If so, has Defendant, now or in the past, violated this requirement that the BKLs

9

be accessible to putative class members?

10

3. Named Plaintiffs’ Claims Are Typical of the Claims of the

Class.

11

12

Rule 23(a)(3) requires that the claims of the named Plaintiffs be typical of those of the

13 class. The Ninth Circuit does “not insist that the named plaintiffs’ injuries be identical with

14 those of the other class members, only that the unnamed class members have injuries similar to

15 those of the named plaintiffs and that the injuries result from the same, injurious course of

16 conduct.” Armstrong, 275 F.3d at 869; see also Nat’l Federation of the Blind, 582 F. Supp. 2d

17 at 1201. “[I]n a public accommodations suit . . . where disabled persons challenge the legal

18 permissibility of architectural design features, the interests, injuries, and claims of the class

19 members are, in truth, identical such that any class member could satisfy the typicality

20 requirement for class representation.” Arnold, 158 F.R.D. at 450; see also Moeller, 220 F.R.D.

21 at 611 (“The effect of these alleged barriers and policies is the same for the named plaintiffs as

22 for the class.”); Jorgensen, No. C95-0406 SAW, at 5-6 (Ex. 121) (“This and other physical

23 obstacles would, presumably, hinder the ability of persons with many types of mobility

24 disabilities from fully enjoying the goods and services offered by Defendants and would deter

25 mobility disabled persons from attempting to visit similarly unaccommodating Jack in the Box

26 restaurants.”).

27

Plaintiffs submit with this motion 48 declarations of members of the proposed class.

28 These declarations confirm that the three named Plaintiffs have suffered the same experience

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1 of discrimination as the members of the proposed class.

2

The named Plaintiffs, like members of the proposed class, all use wheelchairs or

3 scooters for mobility and have encountered discriminatory barriers and policies at Defendant’s

4 BKLs. The effect of these barriers and policies is the same for the Named Plaintiffs as for the

5 class: It impairs their ability to patronize Defendant’s restaurants. Named Plaintiffs challenge

6 these barriers under the same statutes and remedial theories as the class, thereby establishing

7 the typicality of the Named Plaintiffs’ claims.

8

4. Named Plaintiffs Will Fairly and Adequately Protect the Interests of

the Class.

9

10

The final requirement of Rule 23(a), adequate representation, requires that the proposed

11 representatives do not have conflicts of interest with the proposed class. Fed. R. Civ. P.

12 23(a)(4); Bates, 204 F.R.D. at 447. Adequate representation is usually presumed in the

13 absence of contrary evidence. 3 Newberg § 7:24.

14

The named Plaintiffs in this case do not have conflicts of interest with the proposed

15 class. All are members of the class that they seek to represent, all seek to remedy allegedly

16 discriminatory architectural barriers and policies, all have a history of advocating for the rights

17 of persons with disabilities, and all will vigorously prosecute this case on behalf of the class.

18

Outside of this litigation, the named Plaintiffs are all actively working toward enforcing

19 the rights of persons with disabilities. Mr. Castaneda is a rehabilitation coordinator for the

20 State of California, helping people with disabilities return to work. Castaneda Depo 5:6-18,

21 9:19-11:1 (Ex. 1). Ms. Corbett has, on several occasions, spoken at conferences on issues

22 relating to persons with disabilities. Corbett Depo 21:14-23:6 (Ex. 2). As the mother of a

23 child who uses a wheelchair, she desires that her daughter be able to eat in an accessible BKL

24 with her non-disabled friends. Corbett Depo 192:12-193:8, 213:19-24 (Ex. 2). Mr. Wellner is

25 active on the Solano County Public Authority Advisory Committee, which is an “advocacy go-

26 between between disabled seniors and in-home support services and social workers.” Wellner

27 Depo 20:16-25 (Ex. 3). They have all testified that their primary interest is in rectifying the

28 inaccessibility of Burger King restaurants. Castaneda Depo 58:5-15 (Ex. 1); Corbett Depo

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1 214:11-18 (Ex. 2); Wellner Depo 89:23-24 (Ex. 3).

2

5. The Proposed Class Counsel Will Adequately Represent the Class.

3

Rule 23(g) requires that class counsel adequately represent the interests of the class.

4 Plaintiffs’ counsel is qualified to represent the class. The law firms and organizations that

5 comprise proposed Class Counsel together possess extensive class action and ADA experience.

6 They have extensive experience litigating not just ADA class actions, but civil rights class

7 actions, pattern or practice cases, and individual ADA cases. Lee Decl. ¶¶ 5, 8, 10; Robertson

8 Decl. ¶¶ 11-21, 23; Kilb Decl. ¶¶ 10-12; Mayeda Decl. ¶¶ 4, 8. Plaintiffs’ counsel have been

9 certified as class counsel in many class actions under the ADA and other disability rights

10 statutes, including several prior class actions against fast food restaurants and chain stores.

11 Lee Decl. ¶ 5; Robertson Decl. ¶¶ 11-21; Kilb Decl. ¶¶ 10-12; Mayeda Decl. ¶¶ 4, 8. Indeed,

12 Fox & Robertson, Bill Lann Lee, Mari Mayeda, and Antonio Lawson were appointed litigation

13 class counsel, and subsequently settlement class counsel, in Lucas v. Kmart, 99-cv-01923-JLK

14 (D. Colo.), a nationwide class action challenging architectural barriers to access in over 1,400

15 Kmart stores across the country. After litigating the case for almost seven years, including

16 through Kmart’s bankruptcy, the parties reached a class-wide settlement covering all Kmart

17 stores in the United States and Puerto Rico. The settlement covered damages under certain

18 state laws, and resulted in extensive and ongoing injunctive relief, as well as $13 million in

19 monetary relief, the largest monetary recovery ever in this type of case. Robertson Decl. ¶¶

20 12-13.

21

Judge John L. Kane, who approved the settlement, remarked during the final

22 approval hearing, “I would say that anyone, whether a lawyer or a layman, who is interested in

23 class action litigation should examine the file in this case to see how a class action should be

24 handled. It is the best example I can think of.” Lucas, Reporter’s Transcript Final Approval of

25 Settlement Agreement (July 27, 2006), at 87, Robertson Decl, Ex. 1. He added, “The quality

26 of the briefs and the motions filed by both sides in this case has been exemplary. It has been of

27 the highest quality.” Id. at 88.

28

Proposed Class Counsel are familiar with the challenges of ADA class actions and have

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1 demonstrated their dedication to protecting the interests of class members. Additionally,

2 Plaintiffs’ counsel have vigorously litigated this case so far. Plaintiffs, for example, conducted

3 extensive pre-litigation factual research, discovered over 149,000 pages of documents from

4 Defendant, conducted hundreds of interviews and obtained declarations from 48 class

5 members, obtained approximately 5600 pages of documents from building departments, served

6 subpoenas on all BKL franchisees and worked to obtain documents from them. Lee Decl. ¶ 3.

7

C. The Proposed Class Is Proper Under Rule 23(b)(2).

8

Once a class has satisfied all four of the prerequisites of Rule 23(a), it must satisfy one

9 of the subsections of Rule 23(b). The class proposed herein satisfies Rule 23(b)(2) if Burger

10 King “acted or refused to act on grounds that apply generally to the class, so that final

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

12 whole.” Like the class in Lucas—addressing wheelchair access barriers in Kmart stores

13 nationwide—“[t]his case provides a paradigm for class certification under Rule 23(b)(2),

14 where the party opposing the class is alleged to have acted or refused to act on grounds

15 generally applicable to the class, and the relief sought seeks to compel compliance with civil

16 rights laws in a manner that will inure to the benefit of all members of the putative class.”

17 Lucas, 2005 WL 1648182, at *2. “Rule 23(b)(2) was designed specifically for civil rights

18 cases like this, where plaintiffs seek system-wide injunctive relief for a large class.”

19 Californians for Disability Rights, 249 F.R.D. at 345-46 (citing 2 Newberg § 4:11); see also

20 Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 614 (1997) (“Civil rights cases against parties

21 charged with unlawful, class-based discrimination are prime examples of Rule 23(b)(2)

22 classes.” (quoting Adv. Comm. Notes, 28 U.S.C. App., p. 697)); 7A Charles Alan Wright et al.,

23 Federal Practice & Procedure §§ 1775-76 (2d ed. 1986).

24

A class that seeks monetary relief as well as injunctive relief should be certified under

25 Rule 23(b)(2) if injunctive relief is the predominant form of relief sought by the class. Molski

26 v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003). Molski specifically addressed the question

27 before this Court: Whether the requirements of Rule 23(b)(2) are met when a class of persons

28 with disabilities challenges architectural barriers and seeks injunctive and monetary relief

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1 under the ADA, Unruh and CDPA. The Ninth Circuit held that injunctive relief was the

2 predominant form of relief sought by the class, and thus the class met the requirements of Rule

3 23(b)(2). Id. at 950. Courts have certified under Rule 23(b)(2) classes of persons with

4 disabilities seeking similar injunctive relief and statutory damages for alleged violations of the

5 ADA, Unruh, and CDPA, because such injunctive relief is incalculable. See, e.g., Park, 254

6 F.R.D. at 115, 123; Nat’l Fed’n of the Blind, 582 F. Supp. 2d at 1189, 1203; Moeller, 220

7 F.R.D. at 612-13; Arnold, 158 F.R.D. at 461-62; Leiken, 1994 U.S. Dist. LEXIS 21281, at *15-

8 16; Jorgensen, at 3 n.4 (Ex. 121); Berlowitz, 1996 WL 724776, at *1, 5.

9

VI. CONCLUSION

10

For the reasons set forth above, Named Plaintiffs request that this Court, pursuant to

11 Rules 23(a) and 23(b)(2), certify a class in this case.

12

13 Dated: July 29, 2009
14 15 16 17 18 19 20 21 22 23 24 25 26

Respectfully submitted,
By: /s/ Bill Lann Lee Bill Lann Lee (State Bar No. 108452) Andrew Lah (State Bar No. 234580) Julia Campins (State Bar No. 238023) LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Tel: (510) 839-6824 Fax: (510) 839-7839 blee@lewisfeinberg.com alah@lewisfeinberg.com jcampins@lewisfeinberg.com
Timothy P. Fox (State Bar No. 157750) Amy Robertson (pro hac vice) FOX & ROBERTSON, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Telephone: (303) 595-9700 TTY: (877) 595-9706 Facsimile: (303) 595-9705 tfox@foxrob.com arob@foxrob.com

27

Linda D. Kilb (State Bar No. 136101)

DISABILITY RIGHTS EDUCATION &

28

DEFENSE FUND

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Case3:08-cv-04262-WHA Document138 Filed07/29/09 Page34 of 34

1

2212 Sixth Street

Berkeley, CA 94710

2

Tel: (510) 644-2555

Fax: (510) 841-8645

3

lkilb@dredf.org

4

Mari Mayeda (State Bar No. 110947)

P O Box 5138

5

Berkeley, CA 94705

Tel: (510) 848-3331

6

Fax: (510) 841-8115

marimayeda@earthlink.net

7

Antonio M. Lawson (State Bar No. 140823)

8

LAWSON LAW OFFICES

160 Franklin Street, Suite 204

9

Oakland, CA 94607

Tel: (510) 419-0940

10

Fax: (510) 419-0948

tony@lawsonlawoffices.com

11

Attorneys for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [CASE NO.CV-08-4262 WHA (JL)]

26

 
 United States District Court For the Northern District of California

Case3:08-cv-04262-WHA Document150 Filed07/31/09 Page1 of 12

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 Miguel Castaneda,

No. C 08-4262 WHA (JL)

12

Plaintiff,

13

v.

DISCOVERY ORDER

14 Burger King Corporation, et al.,

15

Defendants.

________________________________/

16

17

Introduction

18

All discovery in this case has been referred by the district court (Hon. William H.

19 Alsup) pursuant to 28 U.S.C. §636(b). The parties submitted a joint statement regarding a

20 discovery dispute, and the Court ordered supplemental briefing on the nature of

21 Defendants’ contacts with putative plaintiffs in this as-yet uncertified proposed class action.

22 The matters before this Court are Plaintiffs’ motion for protective order re Defendants’

23 contacts with putative class members and Defendants’ motion to compel Plaintiff’s counsel

24 to provide putative class members’ names, addresses and telephone numbers. (Docket #

25 82)

26

The district court has jurisdiction under Title III of the Americans with Disabilities Act.

27 The class certification motion is to be filed by July 29, 2009, for hearing September 17,

28 2009. Non-expert discovery cut-off December 31, 2009, Jury trial April 19, 2010. The

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United States District Court For the Northern District of California

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1 district court on February 17, 2009 denied Defendant’s motion to dismiss for Plaintiff’s lack

2 of standing to assert claims with respect to Burger King restaurants he had not actually

3 visited.

4

The motions came on for hearing. Bill Lann Lee, LEWIS, FEINBERG, LEE, RENAKE

5 & JACKSON, P.C., appeared for Plaintiffs. ADAM FRIEDENBERG, GLYNN & FINLEY,

6 LLP, appeared for Defendants. The Court carefully considered the moving and opposing

7 pleadings and the oral arguments of counsel, the record in the case and the applicable law

8 and hereby denies Plaintiffs’ motion and grants Defendants’ motion.

9

Within one week of issuance of this order, Plaintiffs’ counsel shall provide the last

10 known address and telephone number of each witness disclosed in interrogatory responses

11 or on which Plaintiffs may rely to support their claims. Plaintiffs and their counsel are

12 directed not to interfere with BKC’s interviews of such witnesses. Plaintiffs’ motion for

13 protective order is granted in part. Defendant’s counsel are ordered to inform any persons

14 they contact that they represent Burger King and that the individual need not talk to counsel

15 if he or she does not wish to do so. Plaintiff’s counsel has no right to be present at any

16 such interview. Plaintiffs’ request for a stay of this order to apply to Judge Alsup to be

17 appointed as interim class counsel, is denied without prejudice. Plaintiffs may apply to

18 Judge Alsup for a stay.

19

Plaintiffs’ Position

20

Plaintiffs claim that they have not been able in this short period of time to ascertain

21 fully the scope of Burger King’s communications or the extent of harm to the class, but they

22 assert that Burger King’s counsel has not always given notice to the putative class

23 members that they are calling on behalf of Burger King, nor have they given notice to the

24 putative class members that they do not have to talk to Burger King, that speaking to

25 Burger King may be against their interest, or that they have the right to contact Plaintiffs’

26 counsel. See Pierce Decl,, ¶ 4; Barnes Decl., Exh. A. This confusion could result in putative

27 class members speaking with Defendant’s counsel thinking that they are speaking to

28 Plaintiffs’ counsel representing their interest. See Barnes Decl. ¶¶ 5-6. Furthermore, they

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United States District Court For the Northern District of California

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1 could be deterred from participation in the lawsuit, thereby harming the class’s interests

2 and injuring both parties’ and the Court’s access to relevant information.

3

“[E]ven before certification or a formal attorney-client relationship, an attorney acting

4 on behalf of a putative class must act in the best interests of the class as a whole.”

5 MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.12 (2009); Campins Decl., Exh. B

6 at 22; Trans. from Feb. 12, 2009 Hrg. (Dkt. 67) (“[O]ne of the most important things that

7 everybody ought to understand, that the plaintiff and plaintiff’s counsel owe a fiduciary duty

8 to every single class member.”). Class counsel therefore has a responsibility to protect a

9 class member’s interests. See Parrish v. Nat’l Football League Players Inc., 2007 WL

10 1624601 at *9, (N.D. Cal. 2007) (Alsup, J.). Moreover, even if there is not automatically a

11 fiduciary relationship between Plaintiffs’ counsel and putative class members, these

12 particular individuals have previously contacted Plaintiffs’ counsel in connection with the

13 litigation seeking information and advice. A relationship therefore has been formed, and

14 Plaintiffs’ counsel has ethical obligations to protect the interest of these individuals in this

15 litigation. Cf. Barton v. U.S.D.C. Cent. Dist. Cal., 410 F.3d 1104, 1111-12 (9th Cir. 2005).

16

Courts have supervisory authority pursuant to Federal Rule of Civil Procedure 23(d)

17 to regulate communications in order to protect the interests of class members. Fed. R. Civ.

18 P. 23(d) (court may issue orders that “require—to protect class members and fairly conduct

19 the action—giving appropriate notice to some or all class members . . . of any step in the

20 action”); see, e.g., In re School Asbestos Litig., 842 F.2d 671, 683 (3d Cir. 1988); Mevorah

21 v. Wells Fargo Home Mortg., Inc., 2005 WL 4813532 at *3 (N.D. Cal. 2005) (Patel, J);

22 Dondore v. NGK Metals, 152 F. Supp. 2d 662, 666 (E.D. Pa 2001); Pollar v. Judson Steel

23 Corp., 1984 WL 161273 (N.D. Cal. 1984) (Patel, J.).

24

Plaintiffs Claim their Proposed Limitations Are Reasonable and Lawful.

25

Burger King has invoked Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), an

26 employment discrimination case, in which the Supreme Court refused to prohibit plaintiffs’

27 counsel from communicating with members of the putative plaintiff class. Plaintiffs argue

28 that Gulf Oil is inapposite for several reasons. First, Plaintiffs seek to monitor, not prohibit,

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United States District Court For the Northern District of California

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1 Burger King’s communications with putative class members. Second, the Court in Gulf Oil

2 vacated a prohibition against attorneys contacting their own putative clients. Thus, the

3 communication permitted was consistent with protecting the interests of putative class

4 members. Plaintiffs here are seeking the same protection by monitoring communications

5 between defense counsel and putative plaintiffs. Third, Burger King is seeking to

6 communicate with individuals who may be members of a putative class whose interests are

7 adverse to its own commercial interest.

8

As noted above, Plaintiffs contend there is a significant threat of confusion and

9 coercion, because the putative class members may not understand the complicated nature

10 of their relationship to the litigation, and may not understand their rights. Moreover,

11 because Burger King to date has not been fully forthcoming to putative class members,

12 they may be confused about who represents their interests and whether they have the right

13 to refuse to speak with Burger King’s counsel.

14

It is undisputed that putative class counsel have a responsibility to protect the rights

15 of class members prior to class certification. See MDL § 21.12; Parrish, 2007 WL 1624601

16 at *9. One way of protecting the class is to regulate a defendant’s contacts by requiring that

17 the initial contact be in writing, with a copy to Plaintiffs. See Pollar v. Judson Steel Corp.

18 1984 WL 161273 (N.D.Cal., 1984), (Patel, J.) (issuing pre class certification TRO and

19 ordering corrective letter and notice to putative class members contacted by defendant).

20 Putative class members could then enlist Plaintiffs’ counsel’s presence for subsequent oral

21 communications. If the written communications are inaccurate, they can be brought to the

22 Court’s attention for immediate correction if the parties are unable to resolve any

23 controversy. Unlike most oral communications, a letter is more susceptible to monitoring

24 and effective corrective notice, see, e.g., Belt v. Emcare, Inc., 299 F.Supp.2d 664

25 (E.D.Tex. 2003) and is therefore the proper means for defendants to initiate communication

26 with putative class members.

27

28

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United States District Court For the Northern District of California

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1

Defendants’ Position

2

Defendants ask the Court to find that Plaintiffs’ refusal to make Rule 26

disclosures is without justification.

3

Judge Alsup ordered the parties to make initial disclosures no later than March 6,

4

2009. (Docket No. 68). Defendants argue that Plaintiffs have failed adequately to do so.

5

Plaintiffs have never sought relief from their disclosure obligations, and have shown no

6

legitimate reason for their refusal to comply with Rule 26 and Judge Alsup’s unambiguous

7

order. Instead, Plaintiffs merely argue, without apposite authority, that they may refuse to

8

comply because they prefer that BKC not contact non-parties who Plaintiffs believe may

9

ultimately be class members.

10

Defendants argue that putative class counsel have no attorney-client relationship

11

with such individuals prior to class certification. See, e.g., Babbitt v. Albertson’s Inc., 1993

12

WL 128089, *4 (N.D. Cal. 1993), (Hamilton, J.). Thus, this Court should order Plaintiffs to

13

disclose the names, addresses and telephone numbers of all individuals “likely to have

14

discoverable information” that Plaintiffs “may use to support [their] claims. . . .” Fed. R. Civ.

15

P. 26(a)(1)(A)(I).

16

17

Defendants argue that Plaintiffs cannot show good cause for entry of a

18

protective order

19

In the Joint Statement, Plaintiffs cite various cases holding that a court may restrict

20 defense contacts with potential class members upon specific evidence of misleading or

21 coercive conduct. Here, however, Plaintiffs have not made, and cannot make, the requisite

22 showing. As described in the declaration of Michael Trauben, BKC has merely asked the

23 witnesses: 1) to identify the restaurant(s) they visited; 2) whether they felt there were

24 barriers in existence at the restaurant(s); and 3) the nature of any such barriers. (Trauben

25 Decl. ¶ 6.) Such inquiries by BKC are appropriate. See, e.g., Bell v. Addus Healthcare,

26 Inc., 2007 WL 2752893, *1, 3 (W.D.Wash. 2007).

27

Defendants ask this Court to find that the protective order sought by Plaintiffs would

28 be improper. Id. at *3 (denying “order requiring Plaintiff’s counsel to be notified and be

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United States District Court For the Northern District of California

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1 present in the event that Defendant has further contact with putative class members” in the

2 absence of “sufficient evidence that [defendant] is abusing its right to contact putative class

3 members”); see also Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) (“the mere possibility of

4 abuses does not justify routine adoption of a communications ban. . . . in the absence of a

5 clear record and specific findings of need”); Parks v. Eastwood Ins. Services, Inc., 235

6 F.Supp.2d 1082, 1084 (C.D. Cal. 2002) (pre-certification contacts by defense with potential

7 class members permitted “except as needed to prevent serious misconduct”); Babbitt, 1993

8 WL 128089, *4 (N.D. Cal. January 28, 1993, Hamilton, J.) (Emphasis added) (denying

9 motion to preclude pre-certification contacts by defense counsel); Gerlach v. Wells Fargo &

10 Co., 2006 WL 824652, *7 (N.D. Cal. 2008) (Wilken, J.) (denying motion for corrective notice

11 where defense contacts “not sufficiently misleading or coercive to justify the relief sought”).

12 Defendants ask this Court to deny Plaintiffs’ request for a protective order.

13

Defendants ask the Court to order Plaintiffs to cease directing non-party

witnesses (putative class members) not to communicate with BKC.

14

BKC has learned that Plaintiffs’ counsel have contacted at least one of the subject

15

witnesses and instructed him not to speak with anyone representing BKC. (Trauben Decl. ¶

16

8.) Such tactics obviously interfere with BKC’s legitimate investigation, and corrupt the case

17

preparation process. BKC argues that it has a right to interview these witnesses; prior to

18

class certification, Plaintiffs have no right to prevent or interfere with such contacts. See,

19

e.g., ABA Model Rules of Prof’l Conduct R. 3.4(a) (lawyer shall not “unlawfully obstruct

20

another party’s access to evidence”); see also Model Rules of Prof’l Conduct R. 3.4

21

Notwithstanding Plaintiffs’ refusal to make initial disclosures, BKC has been able to

22

ascertain contact information for a small number of the witnesses. (Trauben Decl. ¶ 5.) cmt.

23

1 (purpose of Rule 3.4 is to secure “fair competition in the adversary system”); cf. CA Rules

24

of Prof’l Conduct R 5-310 (lawyer shall not “advise or directly or indirectly cause a person to

25

secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making

26

that person unavailable as a witness therein”). Thus, BKC requests that the Court enter an

27

order directing Plaintiffs and their counsel not to engage in such communications.

28

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Case3:08-cv-04262-WHA Document150 Filed07/31/09 Page7 of 12

United States District Court For the Northern District of California

1

Analysis and Conclusion

2

Rule 26 disclosures are required and there is no justification for the Court to

relieve Plaintiffs’ counsel of their obligation to disclose contact information for

3 putative class members as potential witnesses.

4

Judge Alsup ordered the parties to make initial disclosures no later than March 6,

5 2009. (Docket No. 68.) As shown in the Joint Statement, Plaintiffs have failed adequately to

6 do so. Plaintiffs have not previously sought relief from their disclosure obligations, and have

7 shown no legitimate reason for their refusal to comply with Rule 26 and Judge Alsup’s

8 unambiguous order. Instead, they argue, without apposite authority, that they may refuse to

9 comply because they prefer that BKC not contact non-parties who Plaintiffs believe may

10 ultimately be class members. The case law is unambiguous that potential class members

11 are unrepresented prior to class certification, as discussed in more detail below.

12 Consequently, Plaintiffs’ argument for withholding potential class members’ contact

13 information from Defendants is unjustified and Plaintiffs’ counsel must produce the

14 information to defense counsel. In addition, the Rules of Professional Conduct require that

15 class counsel not interfere with defense counsel’s contacts with putative plaintiffs.

16

17

Defense counsel is entitled to have precertification ex parte contacts with

putative plaintiffs, absent specific findings of deception, coercion or abuse. The

18 absence of an employer-employee relationship does not cancel Defendants’ right to

contact putative plaintiffs. Putative plaintiffs’ contacts with class counsel do not

19 constitute representation, although this may create a privilege for communications

between them.

20

The court in the Eastwood Parks case comprehensively reviewed California and

21

federal law regarding defendants’ counsel’s ex parte contacts with putative class members.

22

The court reasoned that the Second Circuit, state and federal district courts in California,

23

and a leading treatise conclude Rule 23 pre-certification communication is permissible

24

because no attorney-client relationship yet exists. Weight Watchers of Philadelphia, Inc. v.

25

Weight Watchers Int'l, Inc., 455 F.2d 770, 773 (2nd Cir.1972)(rejecting argument that “once

26

a plaintiff brought suit on behalf of a class, the court may never permit communications

27

between the defendant and other members”); Babbitt v. Albertson's Inc., 1993 WL 128089

28

(N.D.Cal.1993) (finding “putative class members in the instant action were not represented

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1 by class counsel”); Atari v. Superior Ct. of Santa Clara County, 166 Cal.App.3d 867, 212

2 Cal.Rptr. 773, 775 (1985) (holding that the trial court abused its discretion in approving a

3 precertification notice which permitted the two plaintiffs to contact potential class action

4 members but at the same time limited the corporation's equal access to the same

5 individuals;”Absent a showing of actual or threatened abuse, both sides should be

6 permitted to investigate the case fully”); Manual for Complex Litigation (Third) § 30.24

7 (1995) ( “Defendants ordinarily are not precluded from communications with putative class

8 members, including discussions of settlement offers with individual class members before

9 certification”).

10

The court observed that the U.S. Supreme Court has held parties or their counsel

11 should not be required to obtain prior judicial approval before communicating in a

12 pre-certification class action, except as needed to prevent serious misconduct. See Gulf Oil

13 Co. v. Bernard, 452 U.S. 89, 94-95 (1981) (Emphasis added). An order restricting

14 pre-certification communications must be based on “a clear record and specific findings

15 that reflect a weighing of the need for a limitation and the potential interference with the

16 rights of the parties,” or run the risk of imposing an unconstitutional prior restraint on

17 speech. Id. at 101.

18

The court cited examples of cases restricting Rule 23 pre-certification contact as

19 being situations where defendant's communication was misleading or improper. Impervious

20 Paint Industries v. Ashland Oil, 508 F.Supp. 720, 723 (W.D.Ky., 1981) (“In the course of

21 [defendant's] contact of class members, the copy of the class notice was presented along

22 with the oral legal advice which was specifically omitted from the notice prepared by the

23 Court”); Pollar v. Judson Steel Corp., 1984 WL 161273 (N.D.Cal.1984) (finding defendant's

24 notices could seriously prejudice the rights of absent class members by failing to disclose

25 material facts about the case).

26

27

The court concluded that there is no prohibition against pre-“opt-in” communication

28 with a potential plaintiff, unless the communication undermines or contradicts the court's

notice. If an undermining or contradictory communication is sent, the trial court can control

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United States District Court For the Northern District of California

1 the proceedings through sanctions, requiring payment for a curative notice, regulation of

2 future ex parte communications, or other appropriate orders. Any restrictive order should

3 make specific findings of actual or potential abuse or misconduct, and sanctions or

4 limitations on future communications should be narrowly tailored to avoid excessive

5 restraint on speech. Parks v. Eastwood Ins. Services, Inc. 235 F.Supp.2d 1082, 1084

6 -1085 (C.D.Cal.,2002), citing Gulf Oil v. Bernard, 452 U.S. at 101. (Emphasis added)

7

Plaintiffs seek to distinguish this case from the cases of Babbitt and Gerlach, where

8 the courts found that contacts between defense counsel and putative plaintiffs was

9 permissible. Plaintiffs argue that the plaintiffs in those cases were defendants’ employees,

10 that there was a pre-existing relationship and that this somehow justified the ex parte

11 contact, where in this case there was no pre-existing relationship between Defendants and

12 the putative plaintiffs and therefore no justification for pre-certification ex parte contact

13 between them. To the contrary, if anything, the fact that this is a disability access case, not

14 an employment discrimination case, with no employment relationship, obviates many

15 concerns for potential abuse or harassment. There is no danger that putative plaintiffs

16 could lose their jobs either because they cooperate with class counsel or because they

17 refuse to cooperate with defense counsel.

18

Plaintiffs seek to analogize this case to Belt v. Emcare, Inc., 299 F.Supp.2d 664

19 (E.D.Tex.,2003), but the facts are distinguishable. In the Belt case the court held that

20 defense counsel had issued a deceptive letter to prospective plaintiffs. There is no such

21 specific evidence of deception in this case. At most, Plaintiffs’ counsel claims that defense

22 counsel have failed to identify themselves clearly enough. Similarly, Plaintiffs cite other

23 cases where courts intervened, but in those cases the courts made specific findings that

24 the substance of defense counsel’s communications with absent class members were

25 deceptive or misleading. In re School Asbestos Litig., 842 F.2d 671, 683 (3d Cir.

26 1988)(requiring defendant to identify itself and its interest in the litigation in contacts with

27 prospective class members); Mevorah v. Wells Fargo Home Mortg., Inc., 2005 WL

28 4813532 at *3 (N.D. Cal. 2005) (Patel, J.) (making specific findings that defense counsel’s

communications with absent class members were misleading).

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1

Plaintiffs rely on Barton v. U.S.D.C. Cent. Dist. Cal., 410 F.3d 1104, 111-1112 (9th

2 Cir. 2005) to support their proposition that once a prospective client has contacted counsel

3 for the putative class, that an attorney-client relationship has been created that bans ex

4 parte contacts by opposing counsel. Plaintiffs’ reliance on Barton for this proposition is

5 misplaced. The court in that case found privilege for communications between attorneys

6 and prospective clients, even prior to the clients’ retaining the attorneys. However, the court

7 did not find that prospective clients in that case were legally represented and that therefore

8 opposing counsel were forbidden to have ex parte communications with them. The fact that

9 the putative class members in this case contacted Plaintiffs’ counsel may create a privilege

10 for their communications with class counsel. Plaintiffs alleged generally that defense

11 counsel have asked questions regarding putative plaintiffs’ communications with class

12 counsel, but never gave any specific examples. Defense counsel are admonished not to

13 inquire into the substance of any communications between Plaintiffs’ counsel and putative

14 plaintiffs, but the Court finds no basis for concluding that any such inquiries have already

15 occurred. Defendants are not asking for access to privileged communications here. There

16 is nothing in Barton which would bar ex parte contacts between defense counsel and

17 putative plaintiffs in this case.

18

Plaintiffs’ reliance on the holding in Dondore v. NGK Metals, 152 F.Supp.2d 662,

19 666 (E.D.Pa. 2001) is similarly misplaced. The court in that case forbade defense counsel

20 from contacting putative plaintiffs in a federal action who were also class members in a

21 state court tort litigation. The court applied Pennsylvania law which held that class

22 members were “parties” after the filing of the action but prior to class certification. This is

23 contrary to California law, which governs in this case, as discussed above: Atari v. Superior

24 Ct. of Santa Clara County, 166 Cal.App.3d 867, 212 Cal.Rptr. 773, 775 (1985)(“Absent a

25 showing of actual or threatened abuse, both sides should be permitted to investigate the

26 case fully”); see also Manual for Complex Litigation (Third) § 30.24 (1995) ( “Defendants

27 ordinarily are not precluded from communications with putative class members, including

28 discussions of settlement offers with individual class members before certification”).

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United States District Court For the Northern District of California

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1 Dondore has not been generally accepted - “[t]he weight of authority seems unwilling to

2 adopt the Dondore view.” Parks v. Eastwood Ins. Services, Inc. 235 F.Supp.2d at 1084.

3

Plaintiffs’ reliance on dicta in Moreno regarding the potential for pre-certification

4 abuse or harassment of absent class members by defense counsel is not on point in this

5 case. In Moreno, Magistrate Judge Chen of this district commented that depositions of

6 absent class members were ordinarily not permitted because of the potential for

7 harassment, but in fact Judge Chen permitted depositions to be taken of absent class

8 members who had submitted declarations. Moreno v. Autozone, Inc., 2007 WL 22882165,

9 at *1 (N.D. Cal. Aug. 3, 2007). In this case, Defendants seek only informal interviews, not

10 formal discovery of absent class members prior to class certification, much less their

11 depositions.

12

Summary

13

Defendants allege that Plaintiff’s counsel have refused to provide contact

14 information, which FRCP Rule 26 obliges them to provide, since the putative class

15 members are also potential witnesses. Plaintiffs should provide Defendants with contact

16 information for the putative class members, as required by Rule 26, as part of their initial

17 disclosures, since the putative class members are potential witnesses. Both parties are

18 permitted to take pre-certification discovery, including discovery from prospective class

19 members. Plaintiffs’ counsel have also allegedly advised putative class members not to talk

20 to Defendants’ counsel. If true, this would be a violation of pertinent codes of professional

21 conduct.

22

Defendant’s counsel have allegedly had improper contact with some putative class

23 members - not advising them that they are speaking to counsel for Burger King or that they

24 do not have to speak to counsel for Burger King. The Court has the power to impose

25 reasonable conditions on Defendants’ contact with putative class members. However, even

26 if the allegations are true, the conduct alleged is neither abusive nor coercive, nor does it

27 amount to serious misconduct, so there is no justification for either the Court or Plaintiffs’

28 counsel to monitor defense counsel’s interviews with putative plaintiffs.

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1

Plaintiffs’ counsel have no right to be present at any contact between Defendants’

2 counsel and putative class members. It is Plaintiff’s burden to show abusive or deceptive

3 conduct to justify the court’s cutting off contact, and they fail to do so. This is not an

4 employment case, where the Defendant may threaten or imply a threat to the job of a

5 plaintiff who cooperates with Plaintiffs’ counsel or refuses to cooperate with Defendant’s

6 counsel. This is an ADA access case, not an employment case; Defendants have no power

7 over these prospective plaintiffs.

8

Order

9

Within one week of issuance of this order, Plaintiffs’ counsel shall provide the last

10 known address and telephone number of each witness disclosed in interrogatory responses

11 or on which Plaintiffs may rely to support their claims. Plaintiffs and their counsel are

12 directed not to interfere with BKC’s interviews of such witnesses. Plaintiffs’ motion for

13 protective order is granted in part. Defendant counsel must identify themselves and advise

14 contacts that they need not speak with them if they do not want to do so. Defendants are

15 admonished not to inquire into the substance of communications between putative plaintiffs

16 and class counsel. Plaintiffs’ request for a stay of this order is denied without prejudice.

17 Plaintiffs may seek such a stay from Judge Alsup.

18

IT IS SO ORDERED.

19 DATED: July 31, 2009

20

__________________________________

21

JAMES LARSON

United States Magistrate Judge

22

23

24

25 G:\JLALL\CHAMBERS\CASES\CIV-REF\08-4262\Order 82.wpd

26

27

28

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REDACTED PURSUANT TO PROTECTIVE ORDER

1 GLYNN & FINLEY, LLP
CLEMENT L. GLYNN, Bar No. 57117

2 ADAM FRIEDENBERG, Bar No. 205778
One Walnut Creek Center

3 100 Pringle Avenue, Suite 500
Walnut Creek, CA 94596

4 Telephone:
Facsimile:

(925) 210-2800 (925) 945-1975

5 cglynn@glynnfinley.com

afriedenberg@glynnfinley.com
6

GENOVESE, JOBLOVE & BATTISTA, P.A.
7 MICHAEL D. JOBLOVE (admitted pro hac vice)

JONATHAN E. PERLMAN (admitted pro hac vice)
8 100 S.E. Second Street, 44th Floor

Miami, FL 33131

9 Telephone:

(305) 349-2300

Facsimile:

(305) 349-2310

10 mjoblove@gjb-law.com

jperlman@gjb-law.com
11

Attorneys for Defendant Burger King Corporation 12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 MIGUEL CASTANEDA, KATHERINE )
16 CORBETT, and JOSEPH WELLNER on )

17

behalf of themselves and others similarly situated,

) )

18

)

Plaintiffs,

)

19

)

20

vs.

) )

21 BURGER KING CORPORATION,

)

)

22

Defendant.

)

23 _

) ______________________________)

24

Case No. C 08-04262 WHA

DEFENDANT BURGER KING CORPORATION’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Date:

September 17, 2009

Time:

8:30 a.m.

Before:

Hon. William H. Alsup

Courtroom: 9

25

26

27

28

__________________________________________________________________________________ BKC’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

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REDACTED PURSUANT TO PROTECTIVE ORDER

1 2 I. 3 II. 4 5 6 III. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV.

TABLE OF CONTENTS
SUMMARY OF ARGUMENT………………………………………………… 1 FACTUAL BACKGROUND…………………………………………………… 3 A. The Burger King® Franchise System…………………………………… 3 B. Plaintiffs’ Class Claims…………………………………………….…… 5 ARGUMENT…………………………………………….……………………… 7 A. Plaintiffs Lack Standing to Assert Class Claims as Against
Restaurants They Have Not Visited……………………………………… 7 B. Class Certification Must Be Denied Because the Representative
Plaintiffs’ Title III ADA Claims and State Law Claims for Injunctive Relief Are Moot………………………………………..……… 10 C. Plaintiffs’ Have Failed to Satisfy Fed. R. Civ. P. 23……………………… 12 1. Class Certification Standards…………………………………….. 12
a. Plaintiffs Have Failed to Demonstrate Numerosity…..…… 12 b. Plaintiffs Have Failed to Demonstrate Commonality……… 14 c. Plaintiffs Have Failed to Show Typicality…………….…… 19 d. Plaintiffs Have Not Demonstrated Adequacy……………… 21 2. Plaintiffs Cannot Satisfy Rule 23(b)(2) Because Damages Predominate……………………………………………………… 22 a. Damages predominate because Plaintiffs lack
Standing………….…………………………………… 22 b. Damages predominate because Plaintiffs’
Injunctive claim is moot………………………………… 23 c. Damage predominate because Plaintiffs’
Damage claims require highly individualized proof……. 23 D, Plaintiffs’ Unruh and CDPA Claims Should Be Stricken
from the Class Definition ………………………………………………… 24 CONCLUSION…………………………………………………………………… 25

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1

TABLE OF AUTHORITIES

2 Access Now, Inc. v. Macy’s East, Inc.,

3

No. 99-9088-CIV-Jordan (S.D. Fla. Feb. 15, 2001)…..…..…..…..…..…..…. 16

4 Access Now, Inc. v. The May Dept. Stores Co.,

5

No. 00-0148-CIV-Moreno (S.D. Fla. Oct. 5, 2000)…………………………. 16

6 Access Now, Inc. v. S. Fla. Stadium,

7

161 F. Supp. 2d 1357 (S.D. Fla. 2001) …..….…..….…..….…..….…..….…. 18

8 Access Now, Inc. v. Walt Disney World Co.,

9

211 F. R. D. 452 (M. D. Fla. 2001) …..….…..….…..….…..….…..….…..…. 16

10 Alonzo v. Mr. Gatti’s Pizza, Inc.,

11

933 S.W.2d 294 (Tex. App. 1996) …..….…..….…..….…..….…..….…..…. 17

12 Am. Council of the Blind v. Astrue,

13

2008 WL 4279674 (N.D. Cal. Sept. 11, 2008) (Alsup, J.) …..….…..….…..… 20

14 In re Am. Med. Sys., Inc.,

15

75 F.3d 1069 (6th Cir. 1996) …..….…..….…..….…..….…..….…..….…..…. 19

16 Amchem Prods., Inc. v. Windsor,

17

521 U.S. 591 (1997) …..….…..….…..….…..….…..….…..….…..….…..….… 19

18 Arnold v. United Artists Theatre Circuit, Inc.,

19

158 F.R.D. 439 (N.D. Cal. 1994) .….…..….…..….…..….…..….…..….… 15-16,24,25

20 Ass’n for Disabled Ams., Inc. v. Motiva Enters., LLC,

21

No. 99-0580-CIV-Ungaro Benages (S.D. Fla. Oct. 18, 1999) …..….…..….…… 16

22 Bacon v. Honda of Am. Mfg., Inc.,

23

370 F.3d 565 (6th Cir. 2004) …..….…..….…..….…..….…..….…..….…..….… 14

24 Barilla v. Ervin,

25

886 F.2d 1514 (9th Cir. 1989) …..….…..….…..….…..….…..….…..….…..….. 10

26 Bates v. United Parcel Svc., Inc.,

27

511 F.3d 974 (9th Cir. 2007)……………………………………………………. 12

28 Brown v. Kelly Broadcasting Co.,

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REDACTED PURSUANT TO PROTECTIVE ORDER

1

48 Cal. 3d 711 (Cal. 1989) …..….…..….…..….…..….…..….…..….…..….….. 25

2 Celano v. Marriott Int’l, Inc.,

3

242 F.R.D. 544 (N.D. Cal. 2007) …..….…..….…..….…..….…..….…..….….. 13

4 Clark v. Burger King Corp.,

5

255 F. Supp. 2d 334 (D.N.J. 2003) …..….…..….…..….…..….…..….…..….… 7,8

6 Clark v. McDonald’s Corp.,

7

213 F.R.D. 198 (D.N.J. 2003) …..….…..….…..….…..….…..….…..….…..….. 7,8

8 Colo. Cross-Disability Coal. v. Taco Bell Corp.,

9

184 F.R.D. 354 (D. Colo. 1999) …..….…..….…..….…..….…..….…..….…... 16,18

10 Colon v. League of United Latin Am. Citizens,

11

91 F.3d 140 (5th Cir. 1996) …..….…..….…..….…..….…..….…..….…..….… 20

12 Deitz v. Comcast Corp.,

13

2007 WL 2015440 (N.D. Cal. July 11, 2007)…………………………………. 24

14 Deukmejian v. CHE Inc.,

15

150 Cal. App. 3d 123 (Cal. Ct. App. 1984) …..….…..….…..….…..….…..….. 25

16 Doran v. 7-Eleven, Inc.,

17

524 F.3d 1034, 1040 (9th Cir. 2008) …..….…..….…..….…..….…..….…..…. 23

18 Drimmer v. WD-40 Co.,

19

2009 WL 2519188 (9th Cir. 2009) …..….…..….…..….…..….…..….…..….…. 24

20 E. Tex. Motor Freight Sys., Inc. v. Rodriguez,

21

431 U.S. 395 (1977) …..….…..….…..….…..….…..….…..….…..….…..…..…. 21

22 Feezor v. De-Jesus dba 7-Eleven,

23

439 F. Supp. 2d 1109 (S.D. Cal. 2006) …..….…..….…..….…..….…..….…….. 11

24 Garcia v. Johanns,

25

444 F.3d 625 (D.C. Cir. 2006) …..….…..….…..….…..….…..….…..….…....…. 18

26 Garza v. Gruma Corp.,

27

2009 WL 2136930 (N.D. Cal. July 16, 2009)………………………………….. 12

28 Gaston v. Exelon Corp.,

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REDACTED PURSUANT TO PROTECTIVE ORDER

1

247 F.R.D. 75 (E.D. Pa. 2007) …..….…..….…..….…..….…..….…..….…...…. 14

2 Gen. Tel. Co. of S.W. v. Falcon,

3

45 U.S. 147 (1982) …..….…..….…..….…..….…..….…..….…..….…..…...…. 8,12,20

4 Gratz v. Bollinger,

5

539 U.S. 244 (2003) …..….…..….…..….…..….…..….…..….…..….…..….…. 12

6 Green v. Borg-Warner Protective Servs. Corp.,

7

1998 WL 17719 (S.D.N.Y. Jan. 16, 1998) …..….…..….…..….…..….…..……. 13

8 Grove v. De La Cruz,

9

407 F. Supp. 2d 1126 (C.D. Cal. 2005) …..….…..….…..….…..….…..….….…. 11

10 Hall v. Burger King Corp.,

11

1992 WL 372354 (S.D. Fla. Oct. 26, 1992) …..….…..….…..….…..….…..……. 19

12 Hanlon v. Dataproducts Corp.,

13

976 F.2d 497 (9th Cir. 1992)……………………………………………………. 12

14 Harris v. Costco Wholesale Corp.,

15

389 F. Supp. 2d 1244 (S.D. Cal. 2005) …..….…..….…..….…..….…..….……. 10

16 Hartman v. Duffey,

17

19 F.3d 1459 (D.C. Cir. 1994) …..….…..….…..….…..….…..….…..….…..……. 14

18 Hickman v. Mo.,

19

144 F.3d 1141 (8th Cir. 1998) …..….…..….…..….…..….…..….…..….…..….. 11,23

20 Hubbard v. 7-Eleven,

21

433 F. Supp. 2d 1134 (S.D. Cal. 2006) …..….…..….…..….…..….…..….….. 10-11,23

22 Hubbard v. Twin Oaks Health and Rehab. Ctr.,

23

408 F. Supp. 923 (E.D. Cal. 2004)……………………………………………….. 10

24 Independent Living Res. v. Or. Arena Corp.,

25

82 F. Supp. 698 (D. Or. 1997) …..….…..….…..….…..….…..….…..….…..…..… 11

26 Jimenez v. Lakeside Pic-N-Pac,

27

2007 WL 4454295 (W.D. Mich. Dec. 14, 2007) …..….…..….…..….…..….….. 14

28 Jorgensen v. Jack in the Box Rest.,

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REDACTED PURSUANT TO PROTECTIVE ORDER

1

No. C95-0406 SAV, slip. op. at 5-6 (N.D. Cal. Feb. 28, 1997) …..….…..….…... 20

2 Kakani v. Oracle Corp.,

3

2007 WL 1793774 (N.D. Cal. June 19, 2007) (Alsup, J.) …..….…..….…..…... 20-21

4 Kanter v. Warner-Lambert Co.,

5

265 F.3d 853 (9th Cir. 2001) …..….…..….…..….…..….…..….…..….…..…... 22

6 In re LDK Solar Secs. Litig.,

7

255 F.R.D. 519 (N.D. Cal. 2009) …..….…..….…..….…..….…..….…..….….. 12

8 LeGrand v. N.Y. Transit Auth.,

9

1999 WL 342286 (E.D.N.Y. May 26, 1999) …..….…..….…..….…..….…..…. 13

10 Linney v. Cellular Alaska Partnership,

11

151 F.3d 1234 (9th Cir. 1998) …..….…..….…..….…..….…..….…..….…..…. 22

12 Love v. Johanns,

13

439 F.3d 723 (D.C. Cir. 2006) …..….…..….…..….…..….…..….…..….…..…. 14

14 Lujan v. Defenders of Wildlife,

15

504 U.S. 555 (1992) …..….…..….…..….…..….…..….…..….…..….…..….…. 7

16 Mazus v. Dep’t of Transp.,

17

489 F. Supp. 376 (M.D. Pa. 1979), aff’d in relevant part,

18

629 F.2d 870 (3d Cir. 1980) …..….…..….…..….…..….…..….…..….…..….…. 13,24

19 Moeller v. Taco Bell,

20

220 F.R.D. 604 (N.D. Cal. 2004) …..….…..….…..….…..….…..….…..….……. 14

21 Moeller v. Taco Bell,

22

2003 WL 25743635 (N.D. Cal. Feb 23, 2004) …..….…..….…..….…..….…...…. 15

23 Molski v. Gleich,

24

318 F.3d 937 (9th Cir. 2003) …..….…..….…..….…..….…..….…..….…..…..… 22

25 Moreno v. G & M Oil Co.,

26

88 F. Supp. 2d 1116 (C.D. Cal. 2000) …..….…..….…..….…..….…..….…...….. 7

27 Moyer v. Walt Disney World Co.,

28

146 F. Supp. 2d 1249 (M.D. Fla. 2000)…………………………………………… 7

___________________________________________v_______________________________________
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1 Neff v. Am. Dairy Queen Corp.

2

58 F.3d 1063 (5th Cir. 1995) …..….…..….…..….…..….…..….…..….…..….…. 16,17

3 Nelsen v. King,

4

895 F.2d 1248 (9th Cir. 1990)…………………………………………………… 22

5 Parr v. L & L Drive-Inn Restaurant,

6

96 F. Supp. 2d 1065 (D. Haw. 2000) …..….…..….…..….…..….…..….…...….. 11

7 In re Paxil Litig.,

8

218 F.R.D. 242 (C.D. Cal. 2003) …..….…..….…..….…..….…..….…..…..….…. 23

9 Pickern v. Best Western Timber Cove Lodge Marina Resort,

10

194 F. Supp. 2d 1128 (E.D. Cal. 2002) …..….…..….…..….…..….…..…...….…. 11

11 Pickern v. Holiday Quality Foods Inc.,

12

293 F.3d 1133 (9th Cir. 2002) …..….…..….…..….…..….…..….…..….….….…. 10

13 Singh v. 7-Eleven, Inc.,

14

2007 WL 715488 (N.D. Cal. Mar. 8, 2007) …..….…..….…..….…..….…..….…. 17-18

15 Smith v. Univ. of Wash. Law School,

16

233 F.3d 1188 (9th Cir. 2000) …..….…..….…..….…..….…..….…..….…….…. 23

17 Sosna v. Iowa,

18

419 U.S. 393 (1975) …..….…..….…..….…..….…..….…..….…..….…..…….…. 10

19 Tucker v. Phyfer,

20

819 F.2d 1030 (8th Cir. 1987) …..….…..….…..….…..….…..….…..….….….…. 10

21 U.S. v. Days Inns of Am., Inc.,

22

151 F.3d 822 (8th Cir. 1998) …..….…..….…..….…..….…..….…..….…..….…. 17

23 U.S. v. Days Inns of Am., Inc.,

24

1998 WL 461203 (E.D. Cal. Jan. 12, 1998) …..….…..….…..….…..….…..….…. 17

25 Urhausen v. Longs Drug Stores Cal., Inc.,

26

155 Cal. App. 4th 254 (1st Dist., 2007) …..….…..….…..….…..….…..….…….… 23

27 Valentine v. Sec’y of HHS,

28

542 F. Supp. 76 (N.D. Cal. 1982) …..….…..….…..….…..….…..….…..…..….…. 10

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1 Valentino v. Carter-Wallace, Inc.,

2

97 F.3d 1227 (9th Cir. 1996)……………………………………………………… 12

3 Voytek v. Univ. of Cal.,

4

1994 WL 478805 (N.D. Cal. Aug. 25, 1994), aff’d on other grounds,

5

77 F.3d 491 (9th Cir. 1996) …..….…..….…..….…..….…..….…..….…..….…. 20

6 Statutes

7 U.S. Constitution, Art. III………………………………………………………….

10

8 Americans with Disabilities Act, 42 U.S.C. § 12181 et seq…..….…………….. .. passim

9 42 U.S.C. § 12181(9)…………………………………………………………………….….18

10 42 U.S.C. § 12183(a)(1) …..….…..….…..….…..….…..….…..….…..….…..….…..….… 20

11 42 U.S.C. § 12188(a)(1)………………………………………………………………… 10

12 Fair Labor Standard Act, 29 U.S.C. § 201 et seq……………………………………… 17

13 ADAAG…………………………………………………………………………………… 7,25

14 California’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. …..….…..….…..….. 3,24,25

15 California Disabled Persons Act, Cal. Civ. Code, § 54 et seq. …..….…..….…..… passim

16 Cal. Code Regs, tit. 24, § 101.17.11(4) (2003) …..….…..….…..….…..….…..….…...…. 7,19

17 Cal. Civ. Code § 52(a) …..….…..….…..….…..….…..….…..….…..….…..….…..….… 25

18 Cal. Civ. Code § 54.3(a) …..….…..….…..….…..….…..….…..….…..….…..….…..….. 25

19 Cal. Civ. Code § 55.56………………………………………………………………… 23,24

20 Cal. Labor Code §§ 204, 510, 1194……………………………………………………… 17

21 Cal. Building Code………………………………………………………………………. 19

22 Rules

23 Fed. R. Civ. P. 23…..….…..….…..….…..….…..….…..….…..….…..….…………….1,12,14

24 Fed. R. Civ. P. 23(a)……………………………………………………………..… 12,15,18,25

25 Fed. R. Civ. P. 23(a)(1) …..….…..….…..….…..….…..….…..….…..….…..….…... 12

26 Fed. R. Civ. P. 23(a)(4) …..….…..….…..….…..….…..….…..….…..….…..….…..…. 21

27 Fed. R. Civ. P. 23(b)……………………………………………………………………...12,25

28 Fed. R. Civ. P. 23(b)(2) …..….…..….…..….…..….…..…..….…..……....

3,22,23,25

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1 Fed. R. Civ. P. 23(g)(1)(iv) …..….…..….…..….…..….…..….…..….…..….…..…..…. 21 2 Fed. R. Civ. P. 23(g)(1)(C) …..….…..….…..….…..….…..….…..….…..….…..…...…. 22 3 Advisory Committee Note to Rule 23(g)(2) (2003 amendments) …..….…..….…...….. 21 4 Other Authorities 5 Senate Rules Committee, Bill Analysis, of S.B. 1608 (Aug. 12, 2008)…………………… 23 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 Statutes 2 “Construction-Related Accessibility Standards Compliance Act (the “Compliance Act”), 3 California Civil Code at § 55.51 et seq. ........................................................................................ 4 28 U.S.C. § 1367 ............................................................................................................................... 5 California Disabled Persons Act (“CDPA”), Cal. Civil Code § 54 .................................................. 6 Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d) ............................................................. 7 Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et. seq..................................... 8 Unruh Civil Rights Act, Cal. Civ. Code § 51.................................................................................... 9 Rules 10 Fed. R. Civ. P. 19(b).......................................................................................................................... 11 Fed. R. Civ. P. 19(c).......................................................................................................................... 12 Fed. R. Civ. P. 23 .............................................................................................................................. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 I. SUMMARY OF ARGUMENT

2

Three mobility-impaired Representative Plaintiffs, after visiting only a few Burger

3 King® restaurants, seek certification of class claims against Burger King Corporation (“BKC”),

4 alleging that every franchised Burger King® restaurant in California that BKC leases to

5 franchisees [the “BKLs”] contains common violations of federal and state accessibility laws.

6 Class certification should be denied, for three independent reasons. First, Plaintiffs lack

7 standing to represent a state-wide class because (i) they have not been subjected to

8 discrimination at all of the BKLs, and (ii) they cannot identify a single central BKC policy that

9 actually caused access barriers to exist during the putative class period at the independently-

10 operated franchised restaurants in California. Second, Plaintiffs’ individual claims for

11 injunctive relief are moot, given that the restaurants they claim to have visited are compliant

12 with both the ADA and California law. Third, Plaintiffs’ claims otherwise fail to satisfy the

13 “rigorous” standard of Fed. R. Civ. P. 23.

14

It is well-settled that Title III ADA claims are site-specific. Accordingly, as this Court

15 noted in its ruling on BKC’s motion to dismiss, absent a corporate policy that causes system-

16 wide common violations, an ADA plaintiff’s standing is limited to claims against the locations

17 where he/she allegedly suffered discrimination. Thus, in denying BKC’s motion to dismiss, this

18 Court stated that even though Plaintiffs’ allegations did not “pinpoint the exact common policy

19 or design features allegedly giving rise to the violations at the 90 stores with particularity,”

20 discovery would be permitted to proceed in order to give Plaintiffs a fair chance to show at

21 certification that a BKC “discriminatory policy or design or decision” caused similar

22 accessibility barriers at all BKLs. (Docket No. 69 at 8, 9-12). This Court explained, “[t]his is

23 not to say that plaintiff will be able to satisfy Rule 23 at the class certification stage. It is only

24 to say that there is enough pled to allow discovery on the class issues so that plaintiff will have

25 a fair chance to develop his Rule 23 motion.” (Id. at 8).

26

Now, despite the benefit of extensive discovery, Plaintiffs fail to show that BKC has any

27 “common offending policies” that are causing common accessibility barriers to exist at the

28 BKLs today. Indeed, the sole “policy” Plaintiffs could muster was a sketch of a 30-inch

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1 minimum width for queue lines in an Equipment Location Plan (not a building plan) that pre-

2 dated the ADA and was discarded many years ago. To bolster this solitary “policy” argument,

3 Plaintiffs filed declarations attesting to “narrow” queue lines at a number of specific BKLs. 4 Incredibly, as many as 50% of those BKLs have never had a queue line.1 Notwithstanding the

5 faulty memory (to be kind) of Plaintiffs’ witnesses, including the named Plaintiffs, it is

6 undisputed that this so-called “evidence” of a policy requiring a 30-inch minimum width queue

7 line was replaced more than 15 years ago, and Plaintiffs have offered no evidence that any of

8 them actually encountered a queue line implementing that so-called policy. Nor could they.

9

Plaintiffs’ inability to identify any “discriminatory policy or design or decision” also

10 demonstrates both that Plaintiffs lack standing to assert claims as against the 86 restaurants they

11 have not visited (as such standing requires a common policy) and that Plaintiffs cannot satisfy

12 the commonality, typicality, and adequacy prerequisites for class certification.

13

Plaintiffs nonetheless argue that this case should be certified because it purportedly is

14 identical to Moeller, Corbett et al. v. Taco Bell.2 It is not. In that case, Taco Bell Corp.

15 conceded the existence and use of a policy that admittedly resulted in current accessibility

16 violations throughout California. Additionally, Plaintiffs sued Taco Bell Corp. only with

17 respect to its corporate-run stores. Obviously, Taco Bell Corp. controls all aspects of its own

18 corporate restaurants, including accessibility, a factor on which this Court relied in granting

19 class certification in that case. Here, by contrast, Plaintiffs have sued BKC only with respect to

20 leased franchised restaurants, as to which BKC has only limited veto rights granted by contract,

21 not the control of an owner/operator such as Taco Bell Corp. In other words, Taco Bell Corp.

22 itself caused there to be access barriers in all its corporate stores. BKC has not done so.

23

In addition, Plaintiffs’ claims for injunctive relief under federal and state law are moot,

24

25 1 It is impossible to be precise, because many of the declarants fail to specify where they 26 allegedly encountered specific access barriers. In any event, BKC has filed herewith a motion to
strike the declarations as a sanction for Plaintiffs’ failure to provide the requisite Rule 26 27 disclosure information with respect to these witnesses. (See Docket No. 169). Magistrate Judge
Larson held that the information was withheld by Plaintiffs “for no legitimate reason.” (Docket 28 No. 150 at 5, 7).
2 Ms. Corbett is a named Plaintiff both here and in the Taco Bell case. Moreover, the Fox & Robertson law firm that represents the Plaintiffs here is lead counsel in that case as well.

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1 because all ten of the BKLs where they allegedly encountered access barriers indisputably are 2 compliant with California and federal disability access laws.3 Since Plaintiffs have no “live”

3 claims for injunctive relief to assert, certification of claims for injunctive relief must be denied

4 and Plaintiffs’ ADA claims must be dismissed.

5

Plaintiffs’ remaining claims are exclusively for damages under Unruh and the CDPA –

6 significant damages. Plaintiff Castaneda’s individual claim alone appears to exceed $700,000.

7 Moreover, there is a wide disparity between the amounts of the damages claims – one declarant

8 appears to claim entitlement to $2.5 million (Docket No. 140-6 at 48-51), while another to

9 “only” $416,000 (Docket No. 140-2 at 12-13). Thus, the damages at issue are substantial, are

10 non-common, and clearly are a motivating factor in bringing this action in California. As a

11 result, Plaintiffs’ damages claims are not merely “incidental” to their claims for injunctive relief,

12 and their request for certification of an injunction class under Rule 23(b)(2) necessarily fails.

13

Nor can Plaintiffs show that they possess Unruh and CDPA damages claims against

14 BKC. Unruh and the CDPA authorize suits only against a person/corporation who “denies, aids

15 or incites a denial [of rights], or makes any discrimination” against a disabled person. These

16 state laws, which require active conduct, differ from the ADA, under which landlords can be

17 liable for injunctive relief based solely on a tenant’s discriminatory conduct. Because the

18 uncontroverted record evidence is that BKC’s policies foster – rather than deny – full access to

19 disabled patrons, the Court should deny certification of Plaintiffs’ state law damages claims.

20 II. FACTUAL BACKGROUND

21

A. The Burger King® Franchise System

22

BKC is a franchisor of quick-service hamburger restaurants (see Docket No. 30, ¶ 2),4 not

23 “a highly-centralized company that sells hamburger and related fast-food products,” as Plaintiffs

24 falsely allege. (Docket No. 138 at 8). Contrary to Plaintiffs’ erroneous assertion that BKC

25 “operates or controls” more than 90 of the California restaurants, in whole or in part (see Docket

26 No. 72, ¶ 25), BKC has never operated any restaurants in California. (Docket No. 30, ¶ 2). All

27
28 3 See the Declaration of Kim Blackseth (“Blackseth Decl.”), filed herewith, Ex.1. 4 Docket No. 30 is the Declaration of Thomas G. Archer submitted in Support of Defendant’s Motion to Dismiss.

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1 of the 690 California Burger King® restaurants are operated and maintained by independent

2 franchisees, pursuant to franchise agreements and, in some cases, leases. (Id., ¶ 3).

3

The construction dates of the BKLs vary from 1974 to 2008. (See Declaration of Thomas

4 G. Archer in Opposition to Plaintiffs’ Motion for Class Certification (“Archer Decl.”), filed

5 herewith, Ex. 1). Eighty-eight were constructed before the ADA became effective as to newly-

6 constructed buildings in January 1993. (McGrory Decl., ¶ 9). Eight predate the 1982 effective

7 date of the applicable state standards. (Id.) Each also has a unique alteration history, resulting in

8 significant individual variations in terms of structure, design, facilities and accommodations.

9 (McGrory Dec., ¶ 8; Blackseth Decl., Ex. 1). Significantly, and unlike other ADA cases such as

10 Taco Bell, construction alterations to the BKLs were not based upon centralized construction

11 plans developed by BKC. (McGory Decl., ¶ 10). Moreover, BKC’s Operations (“OPS”) Manual

12 is devoted to operational issues like how to prepare menu items (such as “WHOPPER®

13 Sandwiches” and “French Fries”), which it describes in detail. (See Declaration of Frank

14 Massabki (“Massabki Decl.”), filed herewith, Ex. B [2006 OPS Manual, Table of Contents]

15 (BKC 15598-99)). It references accessibility issues only generally, for example, by stating the

16 need to have compliant “handicap stall and ramps,” without specifying the requisite dimensional

17 measurements of these features. (See id., Ex. A at Tab 3 (BKC 15205)). BKC’s other system

18 documents, such as conceptual drawings, are for informational purposes only. (McGrory Decl.,

19 ¶ 4). Franchisees are required to hire their own construction managers, contractors and architects

20 to create actual blueprints and plans for the restaurants and to assure that they comply with

21 applicable building codes and accessibility laws. (McGrory Decl., ¶ 2; Blackseth Decl., Ex. 1; 22 Docket No. 148, Exs. A-E).5

23

BKC enters into two separate agreements with the franchisees who lease the BKLs: a

24 franchise agreement and a lease agreement. (See Docket No. 30, ¶ 3; Docket No. 148, ¶¶ 4, 13).

25 Both documents are standardized, such that their terms are substantially the same with respect to

26

27 5 Docket No. 148 is the Declaration of Thomas G. Archer submitted in Support of BKC’s
28 Motion to Add Franchisees/Lessees as Additional Defendants Under Rules 19(a) and 21. Exhibits A-E to that Declaration contain the operative sections from the leases for each of the five BKLs identified in the Amended Complaint.

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1 each franchisee, except for financial terms such as rent. (Docket No. 148, ¶¶ 4, 13).

2

The leases place all responsibility for the condition of the premises, including the cost of

3 any repairs or alterations, squarely on the franchisee. (See Docket No. 148, ¶¶ 4, 5, 12, Exs. A-

4 E, § 5.2). Franchisees further agree to make reasonable alterations necessary to reflect BKC’s

5 then-current image, also at their own cost and expense, and BKC has the right to approve such

6 alterations. (Id., Exs. A-E, § 5.3). Moreover, before making significant alterations, the

7 franchisees must: (i) have plans and specifications drawn up by qualified architects or engineers;

8 and (ii) obtain the approval of “all governmental authorities having jurisdiction.” (Id., Exs. A-E,

9 § 5.3). BKC does not provide sample design plans for remodels. (McGrory Decl., ¶¶ 2, 4, 5).

10 The leases require the franchisees to obtain all necessary licenses and to comply with all

11 applicable laws and regulations governing their restaurants, expressly including access laws:

12

§ 5.7 LICENSE AND LAWS. Lessee shall, at its own cost and expense,

promptly observe and comply with all present and future laws, ordinances,

13

requirements, orders, directions, rules and regulations (referred to generally as

“regulations”) of governmental authorities . . .[including] compliance with

14

governmental regulations [including] alterations and/or additions to the Premises

if required under the Americans With Disabilities Act of 1990… 15

16 (Docket No. 148, Exs. A-E, § 5.7) (emphasis added).

17

B. Plaintiffs’ Class Claims

18

The Amended Complaint identifies only five BKLs that have been visited by the three

19 named Plaintiffs, all of which are located in the San Francisco Bay area. Mr. Castaneda alleges

20 visits to BKLs in Pleasant Hill and Pittsburg. (Docket No. 72, ¶ 43). Ms. Corbett alleges visits

21 to BKLs in El Cerrito and Oakland. (Docket No. 72, ¶ 46). Mr. Wellner alleges only a visit to a

22 BKL in Fairfield. (Docket No. 72, ¶ 49). Mr. Castaneda’s deposition and a previously-filed

23 declaration identified 7 additional BKLs he claims to have visited, including 2 (Fairfield and

24 Oakland) also visited by the other named Plaintiffs, bringing the total number visited by the

25 Representative Plaintiffs to 10. (See Docket No. 43, ¶ 3). Each BKL allegedly visited by the

26 named Plaintiffs predates the ADA and its design and construction requirements. (See Archer

27 Decl., Ex. 1). Eight of these ten BKLs also pre-date the 1982 publication of extensive state

28 accessibility standards. (Id.; Blackseth Decl., Ex. 1).

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1

Plaintiffs claim that the named Plaintiffs’ visits to these few BKLs are sufficient to

2 support class certification, because BKC purportedly has a policy requiring franchisees to

3 construct and maintain BKLs with queue lines that are narrower than applicable accessibility

4 standards. (See Docket No. 138 at 10, 11-12). The only evidence Plaintiffs offer of the

5 existence of any such policy is (i) a drawing of a sample front counter area used in a 1984

6 Equipment Plan layout (Pltf. Ex. 124) and a page from a 1991 Operations Manual that reflected

7 the pre-ADA view that disabled patrons would prefer to proceed directly to the front counter to

8 place their orders rather than waiting in a queue line (Pltf. Ex. 123). BKC dutifully changed that

9 page of its Operations Manual and any similar drawings more than fifteen years ago, after the 10 ADA was enacted. (McGrory Decl., ¶ 12; see also Massabki Decl., Ex. D).6

11

Plaintiffs then attempt to bolster this anemic evidence of a “policy” by relying on

12 allegations and declarations asserting, without measurements, the existence of “narrow” queue

13 lines at numerous restaurants. (See Am. Compl. ¶¶49, 50). However, at least half of the cited 14 restaurants have never had a queue line at all. (See Blackseth Decl., Ex. 1).7

15

Moreover, Plaintiffs’ own pre-suit investigatory surveys of BKLs thoroughly refutes any

16 claim that any non-compliant queue lines resulted from this purported pre-ADA “policy,” either

17 at any time during the class period or today, as Plaintiffs’ own surveys show that the BKLs have

18 queue lines that are at least 36 inches wide. (See Massabki Decl., Exs. E, F, G). Additionally,

19 the franchisee-operators of those BKLs where Plaintiffs or their declarants supposedly have

20 encountered queue line violations have submitted declarations attesting that their restaurants

21 either have never had queue lines of 30 inches or less, or have never had queue lines at all. (See,

22 e.g., Docket Nos. 174 through 179). Finally, BKC’s expert, Kim Blackseth, recently visited the

23 ten BKLs where Representative Plaintiffs claim to have experienced “difficulties,” and he too

24

25 6 To the extent that Plaintiffs object to the use of this drawing in a nationally circulated

26

instruction manual, on the grounds that it allegedly did not comply with standards applicable only in California (see Docket No. 138 at 10), that objection is obviated by the express reference

27

on the page to the fact that it reflected the “minimum” space required, coupled with the franchisees’ obligation to hire their own professionals knowledgeable of locally-applicable

28

requirements to prepare actual building plans. (See Pltf. Ex. 123; Docket No. 148, Exs. A_E). 7 Moreover, as previously mentioned, BKC has filed a motion to strike these declarations. (See

Docket No. 169).

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1 found none to have a width of less than 36 inches. (Blackseth Decl., Ex. 1).

2

Plaintiffs alternatively allege that they share a “common experience of discrimination”

3 that “results from the consistent placement of architectural barriers at BKL restaurants.” (Docket

4 No. 138 at 4). Plaintiffs then posit a laundry list of ADAAG standards, as the alleged “common”

5 barriers. (Docket No. 138 at 4-8). Although ADAAG and Title 24 define barriers as specific

6 dimensions of elements (see Blackseth Decl., Ex. 1), Plaintiffs submit no measurements to prove

7 that any violations exist. Moreover, Plaintiffs’ allegations of “difficulties” with doorways,

8 parking spaces, and dining room seating -- based on the same dubious testimony as that relating

9 to queue lines -- is not tied to any BKC policy and therefore renders this case indistinguishable

10 from those finding a lack of standing to maintain class claims. Indeed, it is undisputed that there

11 is no BKC central policy with respect to any item complained of by Plaintiffs, as BKC

12 indisputably does not provide specifications on the weight of doors, the height of condiment and

13 drink dispensers, the dimensions of dining room tables, or the number or width of parking

14 spaces. (McGrory Decl., ¶ 13). BKC directs this Court to the accompanying Declaration of Jim

15 McGrory, which details BKC’s role in the construction and alteration process at the BKLs.

16 III. ARGUMENT

17

A. Plaintiffs Lack Standing to Assert Class Claims as Against Restaurants

They Have Not Visited

18

19

Before a class action may be certified, representative plaintiffs must first demonstrate that

20 they have standing to assert the proposed class claims. Lujan v. Defenders of Wildlife, 504 U.S.

21 555, 561 (1992). Title III ADA claims generally are site-specific for standing purposes. Moreno

22 v. G & M Oil Co., 88 F. Supp. 2d 1116, 1117-18 (C.D. Cal. 2000); Moyer v. Walt Disney World

23 Co., 146 F. Supp. 2d 1249 (M.D. Fla. 2000); Clark v. Burger King Corp., 255 F. Supp. 2d 334, 24 343-44 (D.N.J. 2003); Clark v. McDonald’s Corp., 213 F.R.D. 198, 229-30, 235 (D.N.J. 2003).8

25

This Court held in its order denying BKC’s motion to dismiss that, although the Ninth

26 Circuit has not ruled on the issue, public accommodation disability claims are not site specific if

27 the discrimination allegedly suffered is the result of a discriminatory corporate policy or decision

28

8 BKC reincorporates its argument from its motion to dismiss papers. (See Docket Nos. 29, 58).

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1 or design of the defendant. (Docket No. 69 at 8-9, quoting Clark v. Burger King Corp., 255 F.

2 Supp. 2d at 343 n.11 (“if . . . [BKC had] implement[ed] a corporate policy violative of the ADA,

3 Clark may have standing as to restaurants he has yet to visit”) and Clark v. McDonald’s Corp.,

4 213 F.R.D. at 221, 230 (“rejecting class claims but explaining that ‘[h]ad plaintiffs alleged, for

5 example, that McDonald’s and its franchisees adhered to a company-wide policy [contrary to the

6 ADA] . . . then one could imagine why injunctive relief - against the defendants as a class 7 might be appropriate to redress such violations.’”) (ellipses original)).9 As this Court explained,

8 where a centralized discriminatory policy or design is the cause of the barriers at all locations,

9 then the named plaintiffs and class members who visited other locations were harmed by a single

10 legal injury, i.e., the unlawful policy. (See Docket No. 69 at 8, 10).

11

This Court ruled that, because Plaintiffs had alleged “a policy of barriers at Burger King

12 restaurants discriminatory to individuals in wheelchairs,” the complaint should not be dismissed

13 at the pleading stage, even though “[i]t is true that the pleadings do not pinpoint the exact

14 common policy or design features allegedly giving rise to the violations at the 90 stores with

15 particularity.” (Id. at 8). Instead, the Court ordered Plaintiffs to proceed with discovery, stating

16 that, at class certification, it would hold Plaintiffs to the higher burden of pinpointing a specific

17 BKC “discriminatory policy or design or decision” that actually caused similar accessibility

18 barriers at all BKLs. (Id. at 8-12). As the Court explained, “[t]his is not to say that plaintiff will

19 be able to satisfy Rule 23 at the class certification stage. It is only to say that there is enough

20 pled to allow discovery on the class issues so that plaintiff will have a fair chance to develop his

21 Rule 23 motion.” (Id. at 8).

22

Now, despite having received the benefit of extensive discovery, which Plaintiffs tout in

23 seeking to justify the adequacy of proposed class counsel, Plaintiffs still cannot show that BKC

24
25 9 In Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 157-58 (1982), the Court held that proof that the named plaintiff was discriminated against on the basis of race was not sufficient to justify the
26 inference that such discriminatory treatment was typical, that one incident evidenced a policy of ethnic discrimination, or that any such policy was typical of the defendant’s other employment
27 practices, as is required to bridge the “wide gap” between an individual’s claim of discrimination and a class impacted by his otherwise unsupported allegation that the company has a policy of
28 discrimination. Id. The Court held that only “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a [broader] class. . . .” Id. at 159 n.15 (emphasis added). (See, infra, at Rule 23 discussion).

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1 has any “common offending policies or design characteristics” that would cause common

2 accessibility barriers to exist at all BKLs today. This is because, in contrast, BKC’s actual policy

3 has consistently been to require compliance with federal and state accessibility standards at all

4 restaurants. As noted, the only “policy” alleged by Plaintiffs is their misplaced reliance on the

5 use of a drawing of a counter area with a “minimum” 30-inch queue line in a 1980s Equipment 6 Plan layout abandoned more than 15 years ago.10 Plaintiffs also allege problems with

7 entranceway doors, parking spaces, and the height of soft drink dispensers, but tie none of these

8 alleged barriers to any BKC policy. In fact, Plaintiffs cannot do so, as BKC does not impose

9 specifications with respect to any of these items of complaint. (McGrory Decl., ¶ 13).

10

BKC’s actual policy of requiring compliance with accessibility standards is pervasive. It

11 is reflected in its leases with the franchisees for the BKLs, which state that the franchisee must

12 ensure that its restaurant complies with accessibility laws (see Docket No. 148, Exs. A-E); in

13 BKC’s Operations Manuals, which state that franchisees must “comply with all laws affecting

14 disabled guests, including the [ADA] and similar state laws,” (see Massabki Decl., Ex. A), and in

15 other system documents. BKC even requires franchisees to provide an architect’s certification of

16 ADA compliance whenever they complete certain major remodels of a restaurant. (McGrory

17 Decl., ¶ 11; Exs. 1, 2).

18

BKC’s anti-discrimination policy is also reflected in conceptual drawings. Over the

19 years BKC has created many versions of design sketches to demonstrate the myriad ways that a

20 property of any size or shape could achieve the critical “look and feel” elements of the then-

21 current Burger King® image, i.e., its approved color schemes, signage, parapet, and similar

22 elements. (McGrory Dec., ¶ 2; Massabki Decl., Ex. C). Even though they are merely

23 informational, BKC ensures that all concept sketches fully comply with ADA standards.

24 (McGrory Decl., ¶¶ 2, 6). Indeed, for approximately 12 years, BKC has retained a nationally

25 recognized accessibility consulting firm to review its conceptual drawings to ensure ADA

26

27 10 Plaintiffs’ statement that BKC “required” a 30-inch queue line is simply false. Both drawings
28 make plain that the 30 inches referenced was a “minimum.” Additionally, consistent with industry practice at that time, direct access to the counter was also provided to the mobility impaired through a 42-inch entranceway that by-passed the queue line. (See Plfs. Ex. 123).

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1 compliance. (McGrory Decl., ¶ 6). BKC’s concept drawings, like BKC’s leases and Operations

2 Manual, typically remind the franchisees yet again that they must ensure that final construction 3 plans comply with all accessibility standards. (McGrory Decl., ¶ 6).11

4

Plaintiffs have made no showing that a BKC policy or design causes common barriers to

5 exist -- either today, as is necessary for injunctive relief under the ADA or state law -- or during

6 the proposed class period for Plaintiffs’ state law damages claim. Absent that showing, Plaintiffs 7 lack standing to assert claims as to the 86 BKLs they have not visited.12

8

B. Class Certification Must Be Denied Because the Representative Plaintiffs’

Title III ADA Claims and State Law Claims for Injunctive Relief Are Moot

9

10

It is black letter law that Article III requires a “live” controversy between the parties at all

11 times, including “at the time [a] class action is certified.” Sosna v. Iowa, 419 U.S. 393, 402

12 (1975). Mootness can be raised at any time by the parties or by the court sua sponte. Barilla v.

13 Ervin, 886 F.2d 1514, 1519 (9th Cir. 1989). Moreover, mootness is an absolute defense to class

14 certification. Valentine v. Sec’y of HHS, 542 F. Supp. 76, 78 (N.D. Cal. 1982); Tucker v. Phyfer,

15 819 F.2d 1030, 1034 (8th Cir. 1987) (dismissing claims for mootness sua sponte in response to

16 class certification motion).

17

Claims by private plaintiffs under Title III of the ADA are limited to injunctive relief. 42

18 U.S.C. § 12188(a)(1); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 (9th Cir.

19 2002). Accordingly, “the fact that the alleged barrier has been remedied renders the issue moot”

20 and requires dismissal of the ADA claim. Hubbard v. 7-Eleven, Inc., 433 F. Supp. 2d 1134,

21

22 11 Plaintiffs submit, as their sole evidence of actual barriers, enigmatic statements such as “I
23 found it difficult to negotiate the queue line at one restaurant;” and “I found it difficult to use

the drink dispenser at a restaurant.” (See Docket No. 170-171, Exs. A, F, L). However, the 24 applicable access standards are defined in terms of specific measurements dependent on the

dates of the plaintiffs’ visits. (Blackseth Decl., Ex. 1). And many disabled persons will have 25 difficulty negotiating facilities that fully comply with accessibility standards. See Harris v.

26

Costco Wholesale Corp., 389 F. Supp. 2d 1244, 1249 (S.D. Cal. 2005) (testimony of plaintiff that he “believes the store did not have sufficient accessible parking spaces” and that he had

27

“difficulty” reaching the ATM card reader in the checkout lane, was rejected as legally insufficient); Hubbard v. Twin Oaks Health and Rehab. Ctr., 408 F. Supp. 923, 930 (E.D. Cal.

28

2004) (declaration inadmissible due to failure to include measurements of alleged barriers). 12 Plaintiffs’ lack of standing also results in a lack of the commonality, typicality, and adequacy

required for class certification. (See infra at Rule 23 discussion).

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1 1145 (S.D. Cal. 2006).13 Similarly, remediation requires dismissal of state law claims for

2 injunctive relief, to the extent injunctive relief sought is for removal of the same barriers.

3 Hubbard, 433 F. Supp. 2d at 1145.

4

BKC recently retained Kim Blackseth Interests, one of the foremost consultants on

5 California and ADA building accessibility standards, to review the Representative Plaintiffs’

6 claims and survey each of the ten restaurants they claim to have visited, to determine whether

7 they currently comply with federal and state access laws. The Declaration of Kim Blackseth

8 submitted herewith demonstrates that all ten of these BKLs are fully compliant with federal and

9 state accessibility standards. (See Blackseth Decl., Ex. 1).

10

Moreover, because the claims relate to permanent structural items, e.g., queue rails,

11 dispensers, grab bars, tables, door closers, sidewalks and parking lots, they are unlikely to recur.

12 Accordingly, the “likelihood of repetition” exception to the mootness doctrine is not applicable.

13 See Hickman v. Mo., 144 F.3d 1141, 1144 (8th Cir. 1998) (upholding dismissal on mootness

14 grounds where the “defendants’ compliance with the ADA, including structural changes such as

15 installation of ramps, pull and grab bars, and chair lifts, is far more than a mere voluntary

16 cessation of alleged illegal conduct” where the defendants would be “free to return to [their] old

17 ways”) (citations omitted); Independent Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 771

18 (D. Or. 1997) (holding, in Title III ADA access case, that when “the challenged conditions have

19 been remedied, then these particular claims are moot absent any basis for concluding that [the]

20 plaintiffs will again be subject to the same wrongful conduct by [the] defendant”).

21

Additionally, as Plaintiffs admit (see Docket No. 138 at 9, n.10), three of the restaurants

22 that were BKLs during the proposed class period either closed or converted to a different form of

23 ownership before Plaintiffs’ initial complaint was filed: #910 in Lemon Grove, #2132 in

24 Glendale, and #5150 in Los Alamitos, California. (See Docket No. 138 at 9 n.10; Pltfs’ Exs. 53,

25 122). Another (#2215 in Tifton) closed shortly after the complaint was filed. (Id.) Five

26

27 13 See also Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1087 (D. Haw. 2000); Pickern v.

28

Best Western Timber Cove Lodge Marina Resort, 194 F. Supp. 2d 1128, 1130 (E.D. Cal. 2002); Feezor v. De-Jesus, 439 F. Supp. 2d 1109, 1111 (S.D. Cal. 2006); Grove v. De La Cruz, 407 F.

Supp. 2d 1126, 1131 (C.D. Cal. 2005).

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1 additional former BKLs have closed during 2009: BKLs #1572 and 6028 in San Jose, #2202 in

2 Yuba City, #3316 in Big Bear Lake, and #5869 in Hayward. (See Archer Decl., ¶ 3).

3 Accordingly, injunctive relief is no longer available as to those restaurants, and they must be

4 excluded from any ADA class. Hubbard, 433 F. Supp. 2d at 1145.

5

C. Plaintiffs’ Have Failed to Satisfy Fed. R. Civ. P. 23

6

Plaintiffs’ lack of standing is fatal to the proposed class claims. The Supreme Court has

7 specifically noted that a named plaintiff’s lack of standing, when addressed under Rule 23’s

8 rubric of adequacy of representation, typicality, and commonality, results in a failure to satisfy

9 Rule 23. Gratz v. Bollinger, 539 U.S. 244, 263 n.15 (2003); see also Bates v. United Parcel Svc., 10 Inc., 511 F.3d 974, 986-87 (9th Cir. 2007) (noting relationship between standing and adequacy).

11 Moreover, Plaintiffs otherwise fail to meet the rigorous standard of Rule 23.

12

1. Class Certification Standards

13

Plaintiffs bear a “strict” burden of establishing each requirement of Rule 23(a) and one

14 requirement of Rule 23(b). Hanlon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992);

15 Garza v. Gruma Corp., No. C 07-02092 JW, 2009 WL 2136930, at *2 (N.D. Cal. July 16, 2009).

16 Courts considering a class certification motion must conduct “a rigorous analysis” into whether

17 these prerequisites have been met. Falcon, 457 U.S. at 161; Valentino v. Carter-Wallace, Inc.,

18 97 F.3d 1227, 1233 (9th Cir. 1996). In conducting that analysis, “judges are at liberty to, and

19 indeed must, consider evidence relating to the merits if such evidence also goes to the

20 requirements of Rule 23.” In re LDK Solar Secs. Litig., 255 F.R.D. 519, 525 (N.D. Cal. 2009).

21

a. Plaintiffs Have Failed to Demonstrate Numerosity

22

Rule 23(a)(1) requires that a class be so numerous that joinder of all members would be

23 impracticable. Plaintiffs’ only evidence of numerosity is (1) a citation to census data admitted in

24 the Moeller v. Taco Bell case that there are approximately 151,580 non-institutionalized

25 California residents aged 16 or older who use wheelchairs (see Docket No. 138 at 18), and (2) 48

26 declarations from putative class members, which are of dubious veracity and are subject to a

27 pending motion to strike (see Docket No. 169).

28

It is well-established that census data cannot, by itself, establish class numerosity; it must

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1 be tied to actual discrimination. For example, in Celano v. Marriott Int’l, Inc., 242 F.R.D. 544,

2 549 (N.D. Cal. 2007), the court rejected the plaintiffs’ reliance on census data and statistics as

3 “too ambiguous and speculative to establish numerosity” where the plaintiffs asked the court to

4 infer that many mobility impaired individuals who did not currently play golf would like to do

5 so, and would like to do so at Marriott courses, but “provide[d] no insight into how many

6 disabled people who would like to play golf, at Marriott courses, are deterred from doing so 7 because of the absence of single-rider carts.” Id. 14

8

Similarly, here, Plaintiffs ask the Court to infer, merely from the raw number of mobility

9 impaired California residents, that a large number of wheelchair-bound patrons enter each of the

10 90-some BKLs, and have encountered barriers at those restaurants. No evidence supports this

11 assumption, and it is counter-intuitive, especially given the fact that 61% of Burger King®

12 customers use the drive-thru. (Archer Decl., ¶ 9).

13

BKC has filed herewith a motion to strike Plaintiffs’ declarations because Plaintiffs

14 withheld the contact information for the declarants for, in Magistrate Larson’s words “no 15 legitimate reason,” until well after the class discovery deadline expired. (Docket No. 150 at 5).15

16 Accordingly, these declarations cannot be used to establish numerosity. Moreover, even if

17 allowed, they show on average visits by less than two disabled persons for each of the BKLs

18 referenced. (See Docket No. 170, Exs. A, F, L). This is far less than what is necessary to

19 establish a class for each restaurant whose joinder is so numerous as to be impracticable.

20

21

22 14 See also Mazus v. Dep’t of Transp., 489 F. Supp. 376, 378 n.3, 387-88 (M.D. Pa. 1979), aff’d

23

in relevant part, 629 F.2d 870, 875-876 (3d Cir. 1980) (denying class certification for lack of numerosity because plaintiffs relied on overly broad census data); LeGrand v. N.Y. City Transit

24

Auth., No. 95-CV-0333 JG, 1999 WL 342286, at *3-5 (E.D.N.Y. May 26, 1999) (numerosity not satisfied because the statistical data on number of pregnant women in company had no

25 relation to the number of such women who suffered pregnancy discrimination); Green v. BorgWarner Protective Servs. Corp., No. 96 CIV. 8740 (RPP), 1998 WL 17719, at *1-4 (S.D.N.Y.

26 Jan. 16, 1998) (census data unconnected to actual violation of rights cannot determine class). 15 The importance of BKC’s right to contact, or examine, these witnesses, is amply demonstrated

27 by the statements contained in the declarations. As discussed in BKC’s motion to strike, the

witnesses allege queue lines that are “too narrow” in ten restaurants that never had queue lines,

28 or from which queue lines had been absent for more than 5 years. (See Docket No. 160).

Whatever the cause of the affirmative misstatements in these declarations, they should be

stricken for failure to comply with Rule 26 and cannot be considered in determining numerosity.

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1

b. Plaintiffs Have Failed to Demonstrate Commonality

2

The Supreme Court in Falcon cautioned that there is:

3

a wide gap between (a) an individual’s claim that he has been denied a promotion

on discrimination grounds, and his otherwise unsupported allegation that the

4

company has a policy of discrimination, and (b) the existence of a class of persons

who have suffered the same injury as that individual, such that the individual’s

5

claim and the class claims will share common questions of law or fact.

6 457 U.S. at 157. The Court explained that to satisfy Rule 23’s commonality and typicality

7 requirements, much more than individual allegations of discrimination are necessary to sustain

8 an “across-the-board” attack, adding that “significant proof” that the defendant “operated under a

9 general policy of discrimination conceivably could justify” such a class Id. at 159 n. 15.

10

In Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006), the D.C. Circuit addressed the

11 showing that a class action plaintiff must make to “bridge the gap” in a gender discrimination

12 case. To show commonality, the plaintiffs were required to “‘make a significant showing’” that

13 “‘the members of the class suffered from a common policy of discrimination that pervaded’” the

14 decision-making process. Id. at 728 (quoting Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir.

15 1994)). The court affirmed the denial of class certification, because plaintiffs’ declarations “did

16 not require the District Court to infer the existence of a ‘common policy of discrimination’ that

17 affected the non-declarants as well.” Id. at 729.16

18

Plaintiffs have failed to show that BKC has a discriminatory policy that caused more than

19 90 restaurants throughout the state of California, operated by separate franchisees, to have access

20 barriers in violation of the ADA and California law. Nor can they.

21

Plaintiffs’ complaint and class certification motion are patterned on Moeller v. Taco Bell

22 Corp., 220 F.R.D. 604 (N.D. Cal. 2004). This case, however, lacks all of the critical ingredients

23 that supported class certification in that case. First, in Moeller, all of the restaurants subject to

24

25 16 See also Jimenez v. Lakeside Pic-N-Pac, LLC, No. CIV.A. 1:06-CV-456, 2007 WL 4454295,

26 at *10 (W.D. Mich. Dec. 14, 2007)(class action plaintiffs failed to show existence of standardized conduct or general policy); Gaston v. Exelon Corp., 247 F.R.D. 75, 83 (E.D. Pa.

27 2007) (court rejected plaintiffs’ assertion of commonality where they “failed to identify a policy,

28

practice, or procedure that is the root of the alleged harm for all class members”) (emphasis added). “Conclusory allegations and general assertions of discrimination are not sufficient to

establish commonality.” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004).

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1 the class certification motion were owned and operated by Taco Bell Corp. Indeed, Plaintiffs’

2 counsel in Moeller were careful to “seek class certification . . . only with respect to patrons of the

3 corporate restaurants.” Id. at 607 (emphasis added). In this case, by contrast, all of the BKLs

4 are operated by independent franchisees who are responsible for their own construction or

5 remodeling decisions. Second, in Taco Bell, the plaintiffs submitted direct evidence of a

6 company-wide design flaw: deposition testimony from Taco Bell’s corporate representative

7 admitting that all Taco Bell restaurants constructed over a 14-year period were constructed

8 pursuant to prototypes that violated standards for queue lines and dispensers, copies of defective

9 prototypes, and evidence that the resulting violations of access laws had never been corrected.

10 See Moeller v. Taco Bell, No. C 02-5849 MJJ, 2003 WL 25743635, at p. 14 (N.D. Cal. Feb 23,

11 2004). By contrast, the only alleged “design flaw” Plaintiffs here can submit is a sketch of a 30-

12 inch queue line on a page in an Operations Manual that pre-dates the ADA and an even older

13 drawing in an Equipment Plan layout with a “minimum” width of 30 inches that advises users to

14 check local standards. (Plfs. Exs. 123, 126). Not only do these fail to show a violation of access

15 laws per se, but Plaintiffs offer no evidence that either was ever used in a BKL.

16

Finally, in Taco Bell, Taco Bell Corp. constructed all restaurants using the defective

17 prototypes it had designed, from which no modifications were permitted. 220 F.R.D. at 610.

18 The Court held that this evidence of centralized decision-making weighed heavily towards a

19 finding of commonality. Id. Here, however, no such control exists. BKC makes design

20 sketches available to franchisees, but, contrary to Plaintiffs’ allegations (see Docket No. 138 at

21 9) does not require franchisees to use them, and expressly advises franchises they must ensure

22 their final plans comply with all laws, including the ADA. (McGrory Dec., ¶ 2, 4). Moreover,

23 unlike Taco Bell, BKC has no designs for use in connection with remodels or “retrofits.” 24 (McGrory Dec., ¶¶ 10, 11). Compare 220 F.R.D. at 610.17 The lack of a centralized corporate

25 policy likewise distinguishes this case from Arnold v. United Artists Theatre, Inc., 158 F.R.D.

26

27 17 The other cases on which Plaintiffs rely are similarly inapposite to the commonality

28

requirement of Rule 23(a) because each involved either corporate-owned stores, an across-theboard policy or lack of one, or the existence of the same barrier at multiple locations traceable to

a policy or action of a single defendant. (See Docket No. 138 at 16-17).

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1 439 (N.D. Calif. 1994) and Colo. Cross-Disability Coalition v. Taco Bell, 184 F.R.D. 354 (D.

2 Colo. 1999), and all other cases on which Plaintiffs rely.

3

This case is much more akin to Access Now, Inc. v. Walt Disney World Co., 211 F. R. D.

4 452 (M. D. Fla. 2001), in which the plaintiff, who had not been to all of defendant’s facilities,

5 nonetheless sought certification of a disability access class action as to defendant’s 15 hotels and

6 two theme parks. The court denied class certification for lack of commonality because plaintiffs

7 provided only “conclusory allegations” that the defendant’s policies violated the ADA, and

8 because “the facilities were each constructed at different times, some predating the ADA, some 9 built after the ADA, and some having been remodeled since the ADA.” Id. at 455.18

10

Moreover, cases discussing the question have repeatedly held that system controls such

11 as those implemented by BKC as franchisor, do not render it liable under the ADA; thus,

12 Plaintiffs’ arguments regarding BKC’s extensive system standards intended to protect the value

13 of its brand are of no moment. The leading case addressing the liability of franchisors under the

14 ADA is the Fifth Circuit’s opinion in Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th

15 Cir. 1995), in which the plaintiffs pointed to “numerous non-structural aspects” of various stores’

16 operations that they contended American Dairy Queen (“ADQ”) controlled, which the Fifth

17 Circuit held were irrelevant to the discriminatory conditions at the stores. Id. at 1067. Similar to

18 Plaintiffs’ assertions here, the Neff plaintiffs also relied on various provisions of the franchise

19 agreement that required ADQ’s “prior written approval.” The Fifth Circuit held that “this right,

20

21

22 18 See also Access Now, Inc. v. Macy’s East, Inc., No. 99-9088-CIV-Jordan (S.D. Fla. Feb. 15,

23 2001)(denying class certification for lack of commonality at Macy’s department stores) (attached as Exhibit A); Access Now, Inc. v. The May Dept. Stores Co., No. 00-0148-CIV-Moreno (S.D.

24 Fla. Oct. 5, 2000)(denying class certification for lack of commonality in ADA case where

plaintiff’s bare allegation of a corporate policy was unsubstantiated, the complaint alleged only 25 specific violations rather than a uniform policy and stores were constructed at different times)

26 (attached as Exhibit B); Ass’n for Disabled Ams., Inc. v. Motiva Enters., LLC, No. 99-0580-CIVUngaro Benages (S.D. Fla. Oct. 18, 1999)(denying class certification and granting motion to

27 dismiss class action in ADA case where plaintiff’s only “evidence” of a corporate policy was an

28

unsubstantiated allegation that the defendant’s conduct constituted a policy, and the only way to show the defendant’s alleged non-compliance with the ADA was to examine each gas station)

(copy attached as Exhibit C).

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1 which is essentially negative in character, cannot support a holding that ADQ ‘operates’ the . . . 2 store with respect to its removal of architectural barriers to the disabled.” Id. at 1068.19

3

Similarly, here, as in Neff, Plaintiffs rely on BKC Operations Manuals that do “not relate

4 to the modifications of the physical structure or accessibility.” Id. at 1068. As here, the Fifth

5 Circuit observed that the plaintiffs made no showing that the store operations manual

6 “prevented” the franchisee from complying with the ADA. Id. Further, notwithstanding that

7 ADQ and BKC had the right to terminate franchisees for breach of the franchise agreement, such

8 a right “does not grant [the franchisor] additional control over . . . modification[s] of the . . .

9 store[s] to increase [their] accessibility to the disabled beyond [the franchisors’] underlying

10 contractual rights with respect to such modifications.” Id. at 1068 n.11.

11

Most importantly, Plaintiffs here, as in Neff, have “not alleged or offered any . . .

12 evidence to show that [BKC] has withheld its consent to proposed modifications to” any of the

13 BKLs “designed to bring [them] into compliance with the ADA” or that BKC did anything that

14 “prevented” the franchisees “from complying with the ADA.” Id. at 1068-69; see Alonzo, 933

15 S.W.2d at 297 (no evidence that franchisor withheld written approval from franchisee to make

16 structural changes necessary to comply with ADA). Thus, Plaintiffs have failed to show that

17 BKC had a discriminatory policy that satisfies Plaintiffs’ burden of showing commonality.

18

This Court has invoked similar reasoning in holding that a franchisor is not an employer

19 of franchisee’s employees in an action brought under the Fair Labor Standards Act, 29 U.S.C.

20 §201, et seq., and the California Labor Code §204, 510, and 1194. Singh v. 7-Eleven, Inc., No.

21 C-05-04534 RMW, 2007 WL 715488 (N.D. Cal. Mar. 8, 2007). Notwithstanding the

22 franchisor’s ability to set store hours, its control over the delivery of services, its control over

23 food services, and its ability terminate the franchise agreement, this Court held that “[s]uch

24

25

26 19 See also U.S. v. Days Inn of Am., Inc., 151 F.3d 822, 826-27 (8th Cir. 1998)(franchisor’s review of building plans not sufficient to impose ADA liability); U.S. v. Days Inn of Am., Inc.,

27 No. Civ. S-96-260 WBS/GGH, 1998 WL 461203 (E.D. Cal. Jan. 12, 1998)(“negative veto”

28

inadequate to establish ADA liability); Alonzo v. Mr. Gatti’s Pizza, Inc., 933 S.W.2d 294, 296-97 (Tex. App. 1996)(retaining the right to set building standards and to veto proposed structural

changes is insufficient to show that franchisor “operated” store).

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1 policies are merely reflective of an inherent interrelation of operations between the two entities 2 and 7-Eleven’s goal of attaining conformity to certain operational standards and details.” Id. 20

3

At most, the record demonstrates that numerous and diverse franchisees made

4 individualized decisions relating to more than 90 restaurants dispersed throughout the State of

5 California over the course of many years. See Garcia v. Johanns, 444 F.3d 625, 632 (D.C. Cir.

6 2006) (affirming denial of class certification because of large number of geographically

7 dispersed decision-makers in discrimination case brought by Hispanic farmers). Given that

8 discriminatory decisions of various decision-makers within a single entity do not support the

9 commonality requirement of Rule 23(a), the alleged discriminatory construction and remodeling

10 decisions of nearly 60 different franchisees here clearly do not satisfy Plaintiffs’ burden of

11 showing that the commonality requirement of Rule 23(a) has been met.

12

Additionally, the applicable legal standards for each restaurant are different, warranting

13 case-by-case determinations. Some of the BKLs were built and occupied after January 26, 1993

14 (the enactment of the ADA), placing those stores under the more stringent “readily accessible”

15 standard. (See Archer Decl., Ex. 1). However, most of the stores were built prior to the

16 enactment of the ADA, and are governed under the less stringent, more fact-intensive “readily

17 achievable” standard. (Id.) Under that standard, barriers to access must be removed if doing so

18 is “readily achievable,” meaning removal “is easily accomplishable and able to be carried out

19 without much difficulty or expense.” 42 U.S.C. § 12181(9). What is “readily achievable” in one

20 store may not be in another. See Access Now. v. S. Fla. Stadium, 161 F. Supp. 2d 1357, 1371

21 (S.D. Fla. 2001) (“readily achievable is a fact-intensive inquiry”).

22

In addition, some of the pre-ADA stores have been remodeled since the enactment of the

23 ADA (see Archer Decl., Ex. 1), and may have certain elements that are subject to the more

24 stringent standard, depending on the nature and extent of the renovations -- implicating yet again

25 store-by-store fact determinations. In light of these material differences, Plaintiffs cannot

26

27 20 The court also distinguished Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354

28

(D. Colo. 1999), as being based upon a single, common flaw in the defendant’s queue line design in corporate-owned restaurants throughout the state. Taco Bell thus demonstrates the converse of

this patently uncertifiable class complaint against multiple restaurants.

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1 establish that their claims have common issues of law or fact to the proposed class claims.

2

The California statutes pose the same hurdles. The Title 24 in use today began in 1982.

3 The Title 24 accessibility standards were largely revised in 1984, 1986, 1987, 1989, 1994, 1996,

4 1998 and 2001. The 2007 California Building Code (“CBC”) became effective on January 1,

5 2008 for all alterations and new construction.

6

The applicable State standard for each restaurant depends largely on its construction date

7 and alteration history. If an alteration is made, the facility must comply with the edition of the

8 CBC in effect on the date of their last alteration, but only with respect to the functional areas

9 renovated, the path of travel to them and the sanitary facilities that support them, not the entire 10 facility. (Blackseth Decl., Ex. 1). These are inherently fact-intensive, store-specific issues.21

11

It is impossible for the Court to issue an order that would effectively address, across the

12 board, the multitude of alleged “accessibility barriers.” Certifying a class based on a plethora of

13 alleged varying accessibility violations scattered across more than 90 locations would require an

14 interminable parade of mini-trials, each focused on the individualized proof of accessibility

15 violations in each of these 96 stores. See Hall v. Burger King Corp., No. CIV. A.

16 890260CIVKEHOE, 1992 WL 372354, at *4 (S.D. Fla. Oct. 26, 1992) (class certification denied

17 where court would have to conduct “hundreds of mini-trials” to resolve numerous “discrete

18 factual issues”). Accordingly, Plaintiffs have failed to demonstrate commonality and the Court

19 should deny class certification.

20

c. Plaintiffs Have Failed to Show Typicality

21

“A class representative must be a part of the class and possess the same interest and

22 suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

23 625-26 (1997) (internal quotations omitted). Proof of typicality requires more than general

24 conclusory allegations. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996).

25

As discussed previously, Plaintiffs have suffered a different legal injury than the putative

26

27 21 Likewise, the CDPA does not consider a non-compliant architectural feature a violation of 28 the Act if it is necessary to comply with other existing laws. Cal. Civ. Code § 54 (West 2003).
The Court, therefore, has to examine the interplay of various state and local laws as applied to certain architectural features in certain localities.

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1 class members who allegedly encountered access barriers at the BKLs that the named Plaintiffs 2 have not visited.22 Thus Plaintiffs have not, and cannot, demonstrate either typicality or 3 adequacy of representation under Rule 23.23

4

Plaintiffs’ typicality cases are not helpful to their cause. Plaintiffs’ cases involved

5 uniform, company-wide, barriers resulting from centralized company policies (e.g., narrow

6 doorways in Jorgensen v. Jack in the Box Rest., No. C95-0406 SAW, slip. op. at 5-6 (N.D. Cal.

7 Feb. 28, 1997)). Plaintiffs complain of no such uniform barrier here, but rather give a laundry

8 list of alleged barriers, each of which could impact a particular person differently, or not at all.

9

Plaintiffs do not dispute that every restaurant identified in the Amended Complaint (as

10 well as the five additional restaurants Mr. Castaneda claims he has visited) was constructed in 11 the 1970s or 1980s, well before the ADA was in effect.24 (Archer Dec., Ex. 1). Because these

12 restaurants were constructed before the January 26, 1993 effective date of the ADA’s new

13 construction standards, (see 42 U.S.C. § 12183(a)(1)), the ADA’s design and construction

14 requirements are inapplicable. See Voytek v. Univ. of Cal., No. C-92-3465 EFL, 1994 WL

15 478805 (N.D. Cal. Aug. 25, 1994) (ADA claim barred because it predated effective date of

16 ADA), aff’d on other grounds, 77 F.3d 491 (9th Cir. 1996); Colon v. League of United Latin Am.

17 Citizens, 91 F.3d 140 (5th Cir. 1996) (courts lack jurisdiction when events predate ADA’s

18 effective date). Thus, Plaintiffs do not possess a new-construction claim in their own right.

19 Accordingly, they lack typicality as to a class that asserts such claims, and certification of such

20 claims must be denied. See Am. Council of the Blind v. Astrue, No. C-05-04696 WHL, 2008 WL

21 4279674 (N.D. Cal. Sept. 11, 2008) (Alsup, J.)(named plaintiffs could not represent a class

22 including Social Security programs in which no representative plaintiff participated, due to lack

23 of typicality); Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 1793774 (N.D. Cal.

24

25 22 The typicality requirement and the commonality requirement are related; therefore, the above

26

arguments against commonality are applicable here as well. Falcon, 457 U.S. at 158. 23 As stated above, where Plaintiffs lack standing, their claims by definition are not typical.

27 24 In its order denying BKC’s motion to dismiss, the Court acknowledged that this presented a

basis to deny class certification: “[i]f the facts ultimately reveal, for example, that plaintiff

28 visited no store subject to ADA’s new construction provisions, the effect thereof for class

certification will be considered at the appropriate time.” (Docket No. 69 at 12).

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1 June 19, 2007) (Alsup, J.) (representative plaintiffs who alleged claims under California law

2 were not adequate representatives of absent class members with claims under other states’ laws).

3 Plaintiffs’ claims also lack typicality because the 10 BKLs visited by the named Plaintiffs

4 represent only 3 of the 12 or more basic architectural types of buildings included among the 96

5 BKLs. (See generally McGrory Decl., ¶ 8). Finally, Plaintiffs lack typicality as to the state-wide

6 class that they propose because their claims relate solely to restaurants in the San Francisco Bay

7 area. Accordingly, Plaintiffs’ class certification motion should be denied for lack of typicality.

8

d. Plaintiffs Have Not Demonstrated Adequacy

9

Rule 23 also requires a showing that both the named plaintiffs and plaintiffs’ counsel

10 “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The

11 named Plaintiffs here are not adequate representatives for the class they propose, for the same

12 reasons that they lack commonality and typicality: (i) they lack standing to assert claims against

13 the majority of the BKLs in the proposed class; (ii) their claims for injunctive relief are moot;

14 and (iii) they are unable to assert design and construction claims, or claims as to the entire range

15 of architectural types of BKLs, because the BKLs they visited predated the ADA and represent

16 only 3 of the more than 12 architectural types at issue. Thus, their claims are not typical of the

17 claims of the class they seek to represent, and they, consequently, are not adequate class

18 representatives. See E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405-06 (1977)

19 (the “mere fact” that a plaintiff has alleged a discrimination claim does not ensure “that the party

20 who has brought the lawsuit will be an adequate representative” of other victims of

21 discrimination).

22

With respect to proposed class counsel, under Rule 23(g), the court must analyze “the

23 resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(iv).

24 Where, as here, numerous attorneys seek a joint appointment as class counsel, the Advisory

25 Committee Notes caution that “the court should be alert to the need for adequate staffing of the

26 case, but also to the risk of overstaffing or an ungainly counsel structure.” Advisory Committee

27 Note to Rule 23(g)(2) (2003 amendments).

28

Here, five separate law firms seek joint appointment as lead counsel. They have provided

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1 no information about how they propose to staff the case, how they will divide responsibilities for

2 various tasks, or about any fee-sharing arrangements among them. See Fed. R. Civ. P.

3 23(g)(1)(C) (court may require counsel to propose terms for attorneys’ fees and nontaxable

4 costs). This is exactly the type of “ungainly counsel structure” that the Advisory Committee

5 warned against, and raises substantial risks of duplication of efforts and a compounding of fees

6 and expenses that would waste class resources, as well as the potential for conflicts between

7 counsel and the class members with respect to the utilization of class resources.

8

2. Plaintiffs Cannot Satisfy Rule 23(b)(2) Because Damages Predominate

9

Certification under Rule 23(b)(2) is appropriate only where a “claim for monetary

10 damages is secondary to the primary claim for injunctive or declaratory relief.” Molski v. Gleich,

11 318 F.3d 937, 947 (9th Cir. 2003) (citations omitted). Where damages, rather than injunctive

12 relief, are the “essential goal” of the litigation, certification is improper. Id. at 950; Linney v.

13 Cellular Alaska Partnership, 151 F.3d 1234, 1240 (9th Cir. 1998); Kanter v. Warner-Lambert

14 Co., 265 F.3d 853, 860 (9th Cir. 2001) (“In Rule 23(b)(2) cases, monetary damage requests are

15 generally allowable only if they are merely incidental to the litigation”).

16

A damage claim is predominant, rather than secondary, where, inter alia: 1) the named

17 plaintiffs lack standing to pursue injunctive claims; 2) the injunctive claims are moot; or 3) the

18 damage claim would require individualized proof. Each circumstance exists here. Thus, the

19 Court must deny certification under Rule 23(b)(2).

20

a. Damages predominate because Plaintiffs lack standing

21

Where plaintiffs lack standing to pursue their injunctive relief claims, damages claims

22 predominate such that certification must be denied. See Nelsen v. King, 895 F.2d 1248, 1254-55

23 (9th Cir. 1990) (“where named plaintiffs lacked standing to assert their claims for injunctive

24 relief, the district court did not abuse its discretion in denying their motion for class certification

25 under 23(b)(2)”). Such is the case here. As shown above, the named Plaintiffs lack standing

26 because: 1) they point to no common policy or practice by BKC; and 2) the particular restaurants

27 they have visited are fully compliant with all applicable access standards. Consequently, only

28 their damages claims remain. Rule 23(b)(2) certification is therefore inappropriate.

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1

b. Damages predominate because Plaintiffs’ injunctive claim is moot

2

As shown, the 10 BKLs at issue are fully compliant with the ADA and state access laws.

3 Moreover, Plaintiffs cannot show a reasonable likelihood of recurrence. Hickman, 144 F.3d at

4 1144. Their injunctive claims are therefore moot; thus, their damages claims are necessarily

5 predominant. See Smith v. University of Washington Law School, 233 F.3d 1188, 1194-95, 1196

6 (9th Cir. 2000) (damages under 23(b)(2) “would hardly be incidental when the prospective relief

7 portion of the action had become moot”); Hubbard, 433 F. Supp. 2d at 1145; In re Paxil Litig.,

8 218 F.R.D. 242, 247-48 (C.D. Cal. 2003) (damage claims predominated, compelling denial of

9 certification, where “most of the allegedly offending conduct” had ceased). For this further

10 reason, certification is improper under Rule 23(b)(2), and must be denied.

11

c. Damages predominate because Plaintiffs’ damages claims require

highly individualized proof

12

13

Here, Plaintiffs’ Unruh Act claim requires proof that a construction-related statutory

14 violation denied full and equal access on a particular occasion. Cal. Civ. Code § 55.56(a). For

15 each alleged violation, Plaintiffs must show that a particular individual was denied entry as a

16 result of an unlawful barrier that the plaintiff personally encountered or of which plaintiff had

17 actual knowledge. Id. § 55.56(b); see also Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1040 (9th

18 Cir. 2008); Urhausen v. Longs Drug Stores Cal., Inc., 155 Cal.App.4th 254, 263 (1st Dist., 2007)

19 (“to maintain an action for damages . . . an individual must take the additional step of

20 establishing that he or she was denied equal access on a particular occasion”). Statutory

21 damages are recoverable for each particular occasion on which access is denied, and not for each

22 violation of construction-related accessibility standards at the site. Cal. Civ. Code § 55.56(e).

23 Moreover, a violation requires proof of difficulty, discomfort or embarrassment. Id. § 55.56(c).25

24

25 25 The applicable statute was effective January 1, 2009. Plaintiffs commenced this action before 26 that date, alleging violations at 2 restaurants, but added additional restaurants subsequently, and
seek to add many more by this motion. Because the applicable statutory amendments codified, 27 rather than changed, existing law, the above-referenced standards also apply to all restaurants
eventually included in this suit. See Senate Rules Committee, Bill Analysis, S.B. 1608, August 28 12, 2008 (“SB 1608 also codifies a standard for assessing statutory damages that reflects case
law allowing a person to sue and collect damages when the person is denied full and equal access”).

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1

Here, such questions are so individual-specific that class relief would be ineffective and

2 improper. As shown, damages are recoverable only upon proof that a particular individual

3 actually encountered, and was denied or deterred access by, a particular barrier. Cal. Civ. Code

4 § 55.56(e). If, for example, a class member visited a BKL with an allegedly non-compliant

5 restroom facility, but that individual never attempted to use the restroom, no damages would be

6 recoverable. Id. Thus, determining each violation for the purposes of statutory damages would

7 require a mini-trial for each occasion alleged by each class member. These are precisely the sort

8 of individualized determinations for which class relief is improper.

9

The class definition Plaintiffs propose, moreover, is not even limited to all disabled

10 Burger King patrons. Rather, Plaintiffs ask the Court to certify a class encompassing all mobility

11 impaired California residents. To ascertain which of these potential class members actually

12 visited Burger King, much less encountered a barrier, necessarily requires substantial

13 individualized proof. Such claims are not suitable for class relief. Drimmer v. WD-40 Co., 2009

14 WL 2519188, 3 (9th Cir. 2009) (claims requiring proof of individual damages not suitable for

15 class certification); Mazus, 257 F.R.D. at 572; Deitz v. Comcast Corp., No. C 06-06352 WHA,

16 2007 WL 2015440, at 6-7 (N.D. Cal. July 11, 2007). Thus, for this further and independent

17 reason, the Court should deny Plaintiffs’ motion.

18

D. Plaintiffs’ State Law Claims Should Be Stricken From the Class Definition

19

Plaintiffs seeks to include within their class definition claims against BKC under Unruh

20 and CDPA (in addition to Title III ADA claims), even though they have failed to show any basis

21 for liability under these statutes. Accordingly, the Unruh and CDPA claims should be stricken

22 from Plaintiffs’ class definition. See Arnold v. United Artists Theatre Circuit, Inc., 158 F. R. D.

23 439, 456-58 (N.D. Cal. 1994) (striking certain Unruh, CDPA claims from accessibility

24 discrimination class definition at certification, because such claims did not state a valid claim).

25

Unlike the ADA, which imposes strict liability upon lessors of public accommodations,

26 Unruh and the CDPA limit liability to those who actually make or incite discrimination. Thus,

27 Unruh states that whoever actually “denies, aids or incites a denial, or makes any discrimination

28

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1 . . .” may be sued. And the CDPA likewise limits liability to: “Any person or persons, firm or

2 corporation who denies or interferes . . . .” with access on account of disability. Cal. Civ. Code

3 § 54.3(a). See Deukmejian v. CHE Inc., 150 Cal. App. 3d 123, 133 (Cal. Ct. App. 1983) (§ 54

4 “requir[es] operators of such facilities to ‘open its doors on an equal basis’” to the physically

5 handicapped) (emphasis added).

6

Notably, when the California Legislature amended Section 51 to make ADAAG

7 standards actionable under Unruh and CDPA, the Legislature did not amend Sections 52(a) or

8 54(a) to add the “status”-based liability categories, including lessors, found in the ADA. Cal.

9 Civ. Code § 51(f). “‘It is a well recognized principle of statutory construction that when the

10 Legislature has carefully employed a term in one place and has excluded it in another, it should

11 not be implied where excluded.’” Brown v. Kelly Broadcasting Co., 49 Cal. 3d 711, 725 (Cal.

12 1989) (quotation omitted).

13

Nonetheless, Plaintiffs’ class certification motion seeks to hold BKC liable under Unruh

14 and CDPA merely because it is a lessor. As this Court did in Arnold, it should strike references

15 to the state law claims against BKC from the class definition. Arnold, 158 F. R. D. at 458.

16 IV. CONCLUSION

17

For all of the foregoing reasons, this Court should (1) find that Plaintiffs Castaneda,

18 Corbett and Wellner lack standing to assert claims as against restaurants other than the ten they

19 have identified as allegedly containing barriers; (2) find that Plaintiffs’ claims for injunctive

20 relief are moot; (3) find that Plaintiffs’ remaining claims for monetary relief predominate and

21 that the case is unsuitable for class certification under Fed. R. Civ. P. 23(b)(2) as requested; (4)

22 find that Plaintiffs have failed to satisfy the requirements of Fed. R. Civ. P. 23(a) and (b); and

23 (5) deny class certification in its entirety. BKC alternatively requests that the Court strike (a)

24 class allegations regarding damages; (b) class allegations regarding permanently closed or

25 converted restaurants; (c) class allegations regarding restaurants other than the ten visited by the

26 representative plaintiffs; (d) class allegations regarding restaurants of architectural types other

27 than those visited by the named Plaintiffs; and (e) class allegations regarding restaurants outside

28 of the San Francisco Bay area.

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1 Dated: August 21, 2009 2 3 4 5 6 7 8 9 2000-491-2188 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

GENOVESE JOBLOVE & BATTISTA, P.A. 100 Southeast Second Street, 44th Floor Miami, Florida 33131 Telephone (305) 349-2300 Facsimile (305) 349-2310
By:_/s/ Michael D. Joblove__________ Michael Joblove, Esq. Jonathan E. Perlman, Esq. Catherine A. Van Horn, Esq.
Attorneys for Defendants BURGER KING CORPORATION

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 Case3:08-cv-04262-WHA Document199 Filed09/03/09 Page1 of 21

1 Bill Lann Lee – CA State Bar No. 108452

Andrew Lah – CA State Bar No. 234580

2 Julia Campins – CA State Bar No. 238023

LEWIS, FEINBERG, LEE,

3 RENAKER & JACKSON, P.C.

1330 Broadway, Suite 1800

4 Oakland, CA 94612

Telephone: (510) 839-6824

5 Facsimile: (510) 839-7839

Email: blee@lewisfeinberg.com

6 alah@lewisfeinberg.com

jcampins@lewisfeinberg.com

7

Timothy P. Fox - CA State Bar No. 157750

8 Amy Robertson (pro hac vice)

FOX & ROBERTSON, P.C.

9 104 Broadway, Suite 400

Denver, CO 80203

10 Telephone: (303) 595-9700

TTY: (877) 595-9706

11 Facsimile: (303) 595-9705

Email: tfox@foxrob.com

12

arob@foxrob.com

13 Attorneys for Plaintiffs (additional counsel listed on signature page)
14

15

16

17 IN THE UNITED STATES DISTRICT COURT
18 FOR THE NORTHERN DISTRICT OF CALIFORNIA
19

20 MIGUEL CASTANEDA, KATHERINE
21 CORBETT, and JOSEPH WELLNER on behalf of themselves and others similarly
22 situated

23

Plaintiff,

24

vs.

25 BURGER KING CORPORATION,

26

Defendants.

27

) Case No. C 08-4262 WHA (JL) ) ) ) REPLY IN SUPPORT OF PLAINTIFFS’ ) MOTION FOR CLASS ) CERTIFICATION ) ) Date: September 17, 2009 ) Time: 8:00 a.m. ) Judge: William H. Alsup ) ) )

28

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [CASE NO. C 08-4262 WHA (JL)]

Case3:08-cv-04262-WHA Document199 Filed09/03/09 Page2 of 21

1 2 3
I. 4
II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
III. 24 25 26 27 28

TABLE OF CONTENTS

Page No.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Burger King’s Policy Failure Supports Class Certification . . . . . . . . . . . . 1
1. Burger King as a Lessor Is Liable for Access Violations at BKLs and Neff v. American Dairy Queen Corp. Is Irrelevant. . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Burger King May Not Delegate Its Duty to Ensure that BKLs Comply with Access Requirements. . . . . . . . . 2
3. Burger King’s Admitted Failure To Satisfy this Non-Delegable Duty Provides Ground for Class Certification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Plaintiffs Have Standing to Address the Classwide Claims . . . . . . . . . . . 4
C. Plaintiffs’ Claims Are Not Moot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
D. Plaintiffs Have Satisfied All of the Prerequisites for a Class Action . . . . . 8
1. This Case Is a Prototypical Class Action . . . . . . . . . . . . . 8
2. The Proposed Class Is So Numerous that Joinder Is Impracticable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. There Are Common Questions of Law and Fact . . . . . . . 10
4. Named Plaintiffs’ Claims Are Typical of Those of the Proposed Class . . . . . . . . . . . . . . . . . . . . . . 12
5. Proposed Class Counsel Will Protect the Interests of the Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6. The Proposed Class Satisfies Rule 23(b)(2) . . . . . . . . . . 13
E. Plaintiffs’ State Law Claims Are Valid and Should Be Certified . . . . . . 14
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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1

TABLE OF AUTHORITIES

2

Page No.

3 FEDERAL CASES

4 Access Now, Inc. v. AHM CGH, Inc.,

200 WL 1809979 (S.D. Fla. July 12, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

5

Access Now, Inc. v. Ambulatory Surgery Ctr. Group, Ltd,

6

197 F.R.D. 522 (S.D. Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

7 Access Now, Inc. v. Walt Disney World Co.,

211 F.R.D. 452 (M.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

8

American Council of the Blind v. Astrue,

9

2008 WL 4279674 (N.D. Cal. Sept. 11, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 10

10 Armster v. U.S. Dist. Court,

806 F.2d 1347 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

11

Arnold v. United Artists Theatre Cir., Inc.,

12

158 F.R.D. 429 (N.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 11, 14

13 Ass'n for Disabled Ams., Inc. v. Motiva Enters., LLC,

No. 99-0580 (S.D. Fla. Oct. 18, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

14

Bautista-Perez v. Holder,

15

2009 WL 2031759 (N.D. Cal. July 9, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 12

16 Bay Area Addiction Research & Treatment v. City of Antioch,

179 F.3d 725 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

17

Botosan v. Paul McNally Realty,

18

216 F.3d 827 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

19 Californians for Disability Rights, Inc. v. Cal. Dep't of Transp.,

249 F.R.D. 334 (N.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 10-11

20

Celano v. Marriott International, Inc.,

21

242 F.R.D. 544 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

22 Clavo v. Zarrabian,

2004 WL 3709049 (C.D. Cal. May 17, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

23

Colon v. League of United Latin Am. Citizens,

24

91 F.3d 140 (5th Cir. 1996) (unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

25 Cupolo v. Bay Area Rapid Transit,

5 F. Supp. 2d 1078 (N.D. Cal.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

26

Eisen v. Carlisle & Jacqueline,

27

417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 ///

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Case3:08-cv-04262-WHA Document199 Filed09/03/09 Page4 of 21

1 Envtl. Prot. Info. Ctr. v. Pac. Lumber Co.,

430 F. Supp. 2d 996 (N.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

3

528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4 Gen. Tel. Co. of Sw. v. Falcon,

457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5

Hanlon v. Chrysler Corp.,

6

150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

7 Johnson v. Kriplani,

2008 WL 2620378 (E.D. Cal. July 2, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

8

Lentini v. Cal. Ctr. for the Arts,

9

370 F.3d 837 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

10 Lightbourn v. County of El Paso, Tx,

118 F.3d 421 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

11

Lucas v. Kmart Corp.,

12

2005 WL 1648182 (D. Colo. July 13, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

13 Moeller v. Taco Bell Corp.,

220 F.R.D. 604 (N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

14

Moeller v. Taco Bell,

15

2007 WL 2301778 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

16 Nat'l Org. of Disability v. Tartaglione,

2001 WL 1258089 (E.D. Pa. Oct 22, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

17

Neff v. American Dairy Queen Corp.,

18

58 F.3d 1063 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

19 Pickern v. Pier 1 Imports (U.S.), Inc.,

457 F.3d 963 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

20

Rodriguez v. Hayes,

21

--- F.3d ---, 2009 WL 2526622 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

22 Staton v. Boeing Co.,

327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

23

Thomas Jefferson Univ. v. City of Antioch,

24

179 F.3d 725 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

25 United States v. Nobles,

422 U.S. 225 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

26

Voytek v. Univ. of Cal.,

27

1994 WL 478805 (N.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28 ///

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1 Xiufang Situ v. Leavitt,

240 F.R.D. 551 (N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2

STATE CASES

3

Munson v. Del Taco, Inc.,

4

46 Cal. 4th 661 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5 People ex rel. Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6 FEDERAL STATUTES
7 42 U.S.C. § 12182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12
8 42 U.S.C. § 12183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 STATE STATUTES
10 Cal Civ. Code. § 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
11 Cal Civ. Code. § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
12 Cal Civ. Code. § 54.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13 Cal. Civ. Code § 55.57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14
15 FEDERAL RULES
16 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

17 FEDERAL REGULATIONS

18 28 C.F.R. § 36.406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

19

OTHER AUTHORITIES

20

Alba Conte and Herbert B. Newberg,

21

Newberg on Class Actions § 2:7 (4th Ed., updated 2008) . . . . . . . . . . . . . . . . . . . . . . . . . 5

22

23

24

25

26

27

28

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1 I. Introduction

2

Plaintiffs established, in their Memorandum in Support of Motion for Class Certification

3 (Dkt. #138) (“Class Cert. Memo”) that: (1) the proposed class has common experiences of

4 discrimination at Burger King leased (“BKL”) restaurants, creating common issues of law and

5 fact; (2) Burger King leases all of the BKL restaurants, obligating it to ensure that BKLs comply

6 with the ADA and thus state law, and making it liable for violations of those statutes; and (3)

7 despite exercising control over virtually every aspect of the BKLs, Burger King has abdicated

8 virtually all responsibility for compliance with the ADA and state accessibility requirements to

9 franchisees, leading to a uniform failure to ensure accessibility by franchisees. These factors

10 demonstrate that class certification is appropriate.

11

Burger King’s Opposition (Dkt. #184) (“BK Opp.”) does not dispute the vast majority of

12 facts set forth in Plaintiffs’ opening brief. Instead, it focuses on three threshold defenses. First,

13 Burger King trumpets the fact that it makes very little effort to ensure that BKLs comply with

14 state and federal accessibility requirements in the mistaken belief that only a policy that

15 affirmatively requires violations of accessibility requirements makes it liable. Second, it argues

16 that Plaintiffs lack standing to challenge practices at restaurants they have not personally

17 patronized because the ADA is site specific. Third, it contends that its program of post-suit

18 attempted remediation has mooted the need for injunctive relief.

19

The ADA, however, imposes an affirmative obligation to prevent and remove barriers.

20 Because it leases BKLs, Burger King has a non-delegable duty to ensure that BKLs comply with

21 access requirements, and, as courts including this one have held, failing to have in place adequate

22 policies to ensure such compliance is itself a violation and presents a common question for the

23 class. With respect to standing, the Court has previously determined that the ADA is not site

24 specific. Nor is this case moot. But for these threshold defenses, Burger King largely does not

25 contest Rule 23(a) and (b)(2), making class certification appropriate.

26 II. Argument

27

A. Burger King’s Policy Failure Supports Class Certification.

28

It is undisputed that Burger King leases the BKLs. BK Opp. at 1. As a result, it is liable

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1 for any violations that exist in BKLs, whether those barriers are affirmatively required by its

2 policies or result from its failure to have in place appropriate policies. Burger King’s assertion

3 that it abdicates compliance duties to its franchisees is a concession of a common failure to

4 implement a legally required policy that supports class certification.

5

1. Burger King as a Lessor Is Liable for Access Violations at BKLs and

Neff v. American Dairy Queen Corp. Is Irrelevant.

6

The ADA imposes liability on any entity that “owns, leases (or leases to), or operates a

7

place of public accommodation.” 42 U.S.C. § 12182(a). Burger King leases the BKLs and is

8

accordingly liable under the ADA.1 Burger King relies heavily on Neff v. American Dairy Queen

9

Corp., 58 F.3d 1063 (5th Cir. 1995), but Neff is a red herring. The defendant in Neff was not a

10

lessor. To establish that the defendant was covered by the ADA, Neff tried to show that the

11

defendant franchisor “operate[d]” the facility. Id. at 1065. The Fifth Circuit examined the

12

franchise agreement and held that the defendant was not an operator. Id. at 1066-69. Here, in

13

contrast, Burger King indisputably leases these restaurants and is therefore liable for any

14

violations of the ADA.

15

2. Burger King May Not Delegate Its Duty to Ensure that BKLs Comply

16

with Access Requirements.

17

Burger King argues that its franchise agreement makes its lessee franchisees contractually

18 liable for accessibility compliance. BK Opp. at 5. But, it may not delegate to lessees its duty to

19 ensure that BKLs comply with the ADA. The U.S. Department of Justice, in its ADA Technical

20 Assistance Manual (“TAM”), states, “[A]ny allocation made in a lease or other contract is only

21 effective as between the parties, and both landlord and tenant remain fully liable for compliance

22 with all provisions of the ADA relating to that place of public accommodation.” TAM at

23 § III-1.2000 (emphases added), available at http://www.ada.gov/taman3.html.2 “[A] landlord has

24

25

1 As will be discussed below, because a violation of the ADA is automatically a violation

of both of the California statutes, any discussion of ADA violations applies equally to Plaintiffs’

26 state law claims. See infra Section II.E.

27

2 The TAM “must . . . be given substantial deference and will be disregarded only if

28

‘plainly erroneous or inconsistent with the regulation.’” Bay Area Addiction Research & (continued...)

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1 an independent obligation to comply with the ADA that may not be eliminated by contract.”

2 Botosan v. Paul McNally Realty, 216 F.3d 827, 833 (9th Cir. 2000). Indeed, Burger King itself

3 has previously admitted that “[t]he ADA . . . creates strict liability for injunctive relief against . . .

4 lessors, and lessees and leaves it to those parties to decide among themselves who caused the

5 violation.” Mem. of P&A in Supp. of Def. BKC’s Mot. to Dismiss (Dkt #29) at 21-22.

6

3. Burger King’s Admitted Failure To Satisfy this Non-Delegable Duty

Provides Ground for Class Certification.

7

8

Burger King’s failure to implement and enforce policies to ensure compliance where it

9 has a duty to comply provides a solid basis for class certification. As this Court held, in

10 American Council of the Blind v. Astrue, “‘it is sufficient for plaintiffs to allege that defendant

11 has failed to take action—i.e., failed to implement a practice or policy—that satisfies his

12 obligations’ to satisfy the commonality requirement.” 2008 WL 4279674, at *4 (N.D. Cal. Sept.

13 11, 2008) (quoting Xiufang Situ v. Leavitt, 240 F.R.D. 551, 560-61 (N.D. Cal. 2007)); see also

14 Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 344-49 (N.D.

15 Cal. 2008) (certifying class where plaintiffs pled lack of adequate policy regarding individuals

16 with disability, even though defendant argued that it had no centralized policy of discrimination,

17 but rather made individualized decisions).

18

Here it is undisputed that Burger King fails in many respects to meet its non-delegable

19 duty to comply with the ADA. For example, Burger King acknowledges that it has the “right to

20 approve whatever final plans the franchisee intends to use,” but admits that it “does not review or

21 approve plans for compliance with . . . accessibility laws.” McGrory Decl. (Dkt. #182) ¶¶ 4-5.

22 While franchisees “must adhere to strict standardized operating procedures and requirements” set

23 forth in the MOD, Campins Decl. Ex. 98 at 6, Burger King concedes that the MOD “references

24 accessibility issues only generally,” BK Opp. at 4. Finally, Burger King acknowledges that it

25 does not provide design specifications for many of the barriers reported by putative class

26

27

2(...continued)

28

Treatment v. City of Antioch, 179 F.3d 725, 732 n.11 (9th Cir. 1999) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).

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1 members. McGrory Decl. ¶ 13.

2

B. Plaintiffs Have Standing to Address the Classwide Claims.

3

Defendant premises the majority of its opposition on the argument—resuscitated from its

4 Motion to Dismiss—that the Named Plaintiffs do not have standing to assert claims against

5 Burger King for those BKLs they have not visited. E.g. BK Opp. at 7-10. This legal issue has

6 already been decided in Plaintiffs’ favor by this Court in denying the Motion to Dismiss. See

7 Dkt. #69 at 4-11. Burger King simply ignores this law of the case and reasserts the already-

8 rejected argument that “Title III ADA claims are site-specific.” BK Opp. at 1; see also id. at 7.

9

This Court has specifically held that “ADA standing is not necessarily site specific.” Dkt.

10 #69 at 8; see also id. at 6 (“Article III standing for ADA claims is not inherently site specific.”).

11 This Court ruled that “most district courts to have considered the issue [of common injuries in

12 the ADA] find that a plaintiff may challenge discrimination on behalf of a class where the

13 discrimination arises from a common policy or practice, or a common architectural design, at

14 multiple commonly owned or affiliated locations.” Id. at 7. It cited with approval language from

15 Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 429 (N.D. Cal. 1994), certifying a class

16 where the challenged “design features” are alleged to exist at “many if not all of defendant’s

17 theaters,” and “the legality of those features are legal issues common” to the class.” Dkt. #69 at

18 7 (quoting Arnold, 158 F.R.D. at 449). The conclusion that Title III claims are not site-specific

19 “simply recognizes that the specific injury under the ADA is not a specific barrier at a specific

20 site but instead the discriminatory policy or design or decision.” Id. at 8.

21

The injuries suffered by putative class members—like those in Arnold and the other cases

22 on which this Court relied, id. at 7 n.5—were caused by design features alleged to exist at many

23 if not all BKLs, the legality of which turns on common legal issues and various corporation-wide

24 factors. These factors include not only availability of resources, as in Arnold, but failure to

25 ensure required access, and extensive control over designs and alterations.3 Plaintiffs have thus

26

27

3 Burger King also misrepresents Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159 n.15

28

(1982), by adding the word “only” before the Supreme Court’s language, “[s]ignificant proof that (continued...)

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1 provided ample evidence of discriminatory policies, designs, and decisions that cause the

2 common barriers experienced by putative class members.

3

Burger King’s analysis is based on plucking out and restrictively interpreting the word

4 “policy” as used by this Court, but ignoring the words “or design or decision” that follow it. Dkt.

5 #69 at 8. For example, it states that “it is undisputed that there is no BKC central policy with

6 respect to any item complained of by Plaintiffs, as BKC indisputably does not provide

7 specifications on the weight of doors, the height of condiment and drink dispensers, the

8 dimensions of dining room tables, or the number or width of parking spaces.” BK Opp. at 7.

9 Although there is evidence that Burger King in fact provides such specifications,4 the policy in

10 question need not be one explicitly compelling non-compliance. Rather, common injuries for

11 standing purposes can be those that arise from policies—such as those demonstrated by Plaintiffs

12 here—that encourage or permit violations, or fail to ensure compliance with the accessibility

13 laws. Class Cert. Memo at 9-15; see also supra at 3 (citing Astrue; Californians for Disability

14 Rights). Again, because of Burger King’s non-delegable duty to comply with the accessibility

15 laws, its failure to implement adequate policies establishes common injury.

16

Moreover, “[w]hether or not the named plaintiff who meets individual standing

17 requirements may assert the rights of absent class members is neither a standing issue nor an

18 Article III case or controversy issue but depends rather on meeting the prerequisites of Rule 23

19 governing class actions.” 1 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 2:7

20 (4th Ed., updated 2008); see also Lucas v. Kmart Corp., 2005 WL 1648182, at *3 (D. Colo. July

21

22

3(...continued)

an employer operated under a general policy of discrimination conceivably could justify a

23 [broader] class.” BK Opp at 8 n.9 (second quote of Falcon); see Staton v. Boeing Co., 327 F.3d

938, 955 (9th Cir. 2003) (clarifying Falcon as permitting cases challenging policies or practices). 24

25

4 Indeed, by way of example Burger King insists that BKL franchisees only use

equipment from specific vendors, leases equipment to at least some of the BKL franchisees, and

26 insists that any changes to “products, equipment, uniforms, restaurant facilities, service format,
and Advertising” be approved by Burger King, which takes ownership over those ideas. See, 27 e.g., Campins Decl. Exs. 110 at 13452, 112 at BKC 63495; Boothby Supp. Decl. Exs. 2-4 at

28

67919, 85787, 113322. This last provision is part of a section of the Successor Franchise Agreement titled “Standards and Uniformity of Operations.” Id. Ex. 3 at 85787.

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1 13, 2005) (“Defendants’ objection regarding representative Plaintiffs’ standing to assert claims

2 on behalf of individuals who patronized other Kmart stores is subsumed by my determination

3 that the Rule 23(a) prer[e]quisites have been met.”). Because Plaintiffs have established that

4 they satisfy Rule 23, they have standing to represent the class.

5

C. Plaintiffs’ Claims Are Not Moot.

6

Burger King argues that the ten BKLs the Named Plaintiffs visited are currently in

7 compliance with the ADA and the California Building Code (“CBC”). This argument goes to the

8 merits and is improper for consideration at this juncture. Eisen v. Carlisle & Jacqueline, 417

9 U.S. 156, 178 (1974); Bautista-Perez v. Holder, 2009 WL 2031759, *4 (N.D. Cal. July 9, 2009).5

10

Burger King’s “‘voluntary cessation of a challenged practice,’” moreover, cannot moot

11 Plaintiffs’ claims unless “‘subsequent events [make] it absolutely clear that the allegedly

12 wrongful behavior could not reasonably be expected to recur.’” Friends of the Earth, Inc. v.

13 Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citations omitted, emphasis added).

14 Burger King has the “‘heavy burden of persua[ding]’ the court that the challenged conduct

15 cannot reasonably be expected to start up again.” Id. (citations omitted; alteration in original).

16 Burger King cannot meet that heavy burden.

17

First, Burger King’s mootness argument is based entirely on the reports of their expert,

18 Kim Blackseth, who states that he surveyed 10 of the 93 current BKLs last month, that is, after

19 the conclusion of Burger King’s alterations program. See Dkt. #162 at 2. These reports are thus

20 irrelevant to the common discriminatory experiences of class members during the vast majority

21 of the class period, from April 2006 to mid-2009.6

22

23

5 Similarly—and contrary to Burger King’s argument—Plaintiffs have no obligation to

prove their claims by submitting any measurements of the barriers at this juncture. The question 24 to be determined at this stage is not whether Plaintiffs will ultimately prevail on their claims, but

25 whether those claims are properly addressed on a classwide basis. See, e.g., Bautista-Perez, 2009 WL 2031759, at *7.

26 6 Irrespective of the relevance and merits of Mr. Blackseth’s reports, Plaintiffs urge the
27 Court to disregard these reports, as neither Mr. Blackseth nor his reports were disclosed to

28

Plaintiffs before the filing of Burger King’s brief, let alone by the July 1, 2009, close of class (continued...)

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1

Second, Plaintiffs seek injunctive relief protecting the class from future discrimination,

2 including a change in policies and future monitoring. See, e.g., First Amended Complaint

3 (“FAC”), Relief ¶ 5 (Dkt. #72). Burger King has provided no evidence that the barriers

4 experienced by Plaintiffs and their declarants will not recur in the future. Even “promised

5 improvements and policy changes do not moot a claim for injunctive relief.” Moeller v. Taco

6 Bell, 2007 WL 2301778, at *7 & n.13 (N.D. Cal. 2007) (citing cases).7 Frequent alterations and

7 remodels, among other factors, preclude mootness. Id. at *8. Here, Burger King generally

8 requires that a BKL undergo a significant remodel every 20 years. With over 90 restaurants at

9 issue, it is reasonable to infer that 4-5 BKLs are remodeled each year. Class Cert. Memo at 11.

10 Whatever the current state is of any BKL, an injunction is needed covering future remodels,

11 future acquisitions, maintenance, and monitoring. See Moeller, 2007 WL 2301778, at *8.

12

Third, Burger King’s failure to comply with the access laws until it was in litigation

13 negates any mootness, see Armster v. U.S. Dist. Court, 806 F.2d 1347, 1357 (9th Cir. 1986), as

14 does its persistent denial of responsibility, Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 430 F.

15 Supp. 2d 996, 1006 (N.D. Cal. 2006), and its failure to comply with the ADA despite an earlier

16 settlement addressing ADA violations, see FAC ¶ 41 (Day litigation).

17

Finally, Mr. Blackseth’s submissions to this court do not satisfy Burger King’s “heavy

18 burden” of proving current compliance. To take one very telling example, seven of the ten

19 restaurants about which he opines were built in the 1970s,8 and were thus governed by the

20 American National Standards Institute, Inc.’s ANSI A117.1-1961. People ex rel. Deukmejian v.

21

22

6(...continued)

discovery (see Dkt. #69 at 17). See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 969 n.5

23 (9th Cir. 2006) (exclusion of expert witness disclosed after scheduling deadline not abuse of

24 discretion).

25

7 See also Clavo v. Zarrabian, 2004 WL 3709049, at *4 (C.D. Cal. May 17, 2004)

(holding that implementing new policies did not moot ADA barrier claim); Cupolo v. Bay Area

26 Rapid Transit, 5 F. Supp. 2d 1078, 1084 (N.D. Cal.1997) (holding that voluntary remediation of

alleged ADA violations did not moot claims). 27

28

8 See Boothby Supp. Decl, Ex. 1 at 1-2 (build dates for stores 997, 1864, 1943, 2032,

2055, 2288, and 2505 were between 1977 and 1979).

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1 CHE, Inc., 150 Cal. App. 3d 123, 133-34 (1983). While admitting that “there were limited

2 access standards in place since 1970,” see, e.g., Dkt #183-2 at 1, Mr. Blackseth does not apply

3 them to the seven restaurants built during that decade.9

4

Ultimately, the question of compliance presents common questions of law and fact that

5 underscore the need for class certification.

6

D. Plaintiffs Have Satisfied All of the Prerequisites for a Class Action.

7

When Burger King’s legally and factually unsound challenges to liability, standing, and

8 mootness are eliminated, as they should be, what remains is a paradigmatic class action.

9

1. This Case Is a Prototypical Class Action.

10

As explained in depth in Plaintiffs’ Class Cert. Memo, this case is precisely the type of

11 case that courts routinely certify as a class action. See Class Cert. Memo at 16-17 & n.15.

12

Indeed, Burger King’s attempt to distinguish Plaintiffs’ cases by saying that Moeller v.

13 Taco Bell Corp., 220 F.R.D. 604 (N.D. Cal. 2004), and the other cases Plaintiffs cite involved

14 “corporate-owned stores, across-the-board policy or lack of one, or the existence of the same

15 barrier at multiple locations traceable to a policy or action of a single defendant,” BK Opp. at 15

16 n.17, succeeds only in describing this case to a “T” and underscoring the appropriateness of class

17 certification. Not only do the leased BKLs have the same status as corporate-owned stores, but

18 Plaintiffs have demonstrated an across-the-board policy of general instructions to comply with

19 the law, coupled with an across-the-board policy of failing to enforce those policies to ensure

20 compliance with the ADA. Class Cert. Memo at 9-15.

21

The existence of “the ‘same categories’ of architectural barriers” at multiple locations is

22 traceable to the above policies and actions. Moeller, 220 F.R.D. at 609-10 (citing Arnold, 148

23 F.R.D. at 449). Indeed, the link between Burger King and the BKLs is far closer than that in

24 many of the cases cited in Plaintiffs’ Class Cert. Memo. For example, in two of the cases

25 disabled residents were permitted to proceed as a class against the entity in charge of voting for

26

27

9 Dkt. #185-2 at 4 (store 977; “applicable building code” does not refer to ANSI-1961);

28

185-3 at 4 (store 1864, same); 185-4 at 4 (store 1943, same); 185-5 at 4 (store 2032, same); 1856 at 4 (store 2055, same); 185-7 at 4 (store 2288, same); 185-8 at 4 (store 2505, same).

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1 the inaccessibility of various polling places. See Lightbourn v. County of El Paso, Tx, 118 F.3d

2 421, 423-26 (5th Cir. 1997); Nat’l Org. of Disability v. Tartaglione, 2001 WL 1258089, at *1-5

3 (E.D. Pa. Oct 22, 2001).10 In none of these cases was there a single entity with total control and a

4 policy allowing discrimination. Yet, all were certified.

5

In the face of Plaintiffs’ extensive list of certified classes of individuals with disabilities

6 challenging access barriers, see Class Cert. Memo. at 16-17 & n.15, Burger King can only cite

7 four inapposite opinions from Florida district courts from 2001 or earlier, BK Opp. at 16 & n.18.

8 In Access Now, Inc. v. Walt Disney World Co., 211 F.R.D. 452 (M.D. Fla. 2001), the court noted

9 that “[t]he parties do not dispute that the Defendants’ facilities each possess a unique

10 architectural style.” Id. at 455 (emphasis added). Here, Plaintiffs do. Moreover, Plaintiffs have

11 alleged and documented common policies, designs, practices, and decisions, allegations not

12 sufficiently articulated in the Florida cases.11

13

2. The Proposed Class Is So Numerous that Joinder Is Impracticable.

14

Plaintiffs have presented (1) census figures demonstrating that there is a huge number of

15 people in California who use wheelchairs and scooters; (2) declarations of 48 putative class

16 members who all allege discrimination at California BKLs; and (3) evidence that Burger King is

17 a popular fast food restaurant, leading to the common sense conclusion that it has many patrons.12

18 Burger King does not dispute any of this information, except to challenge the declarations

19 generally. Even if the declarants misstated some of the facts of their experiences, which

20

21

10 Similarly, in Access Now, Inc. v. AHM CGH, Inc., 2000 WL 1809979 (S.D. Fla. July

22 12, 2000), the court certified a class of individuals with disabilities against “affiliated acute care hospitals, ambulatory surgical centers, specialty clinics, and medical office buildings.”
23

11 The other cases contain no analysis of the evidence offered of common policies, 24 designs, and decisions, so it is impossible to compare them to this case. Moreover, at least one

25 contains an erroneous understanding of the commonality requirement. See Ass’n for Disabled Ams., Inc. v. Motiva Enters., LLC, No. 99-0580 at *4 (S.D. Fla. Oct. 18, 1999) (BK Opp. Ex. C)

26 (stating that plaintiffs failed to show that common issues predominate).

27

12 A court may make common sense assumptions to support a finding that joinder would

28

be impracticable. Moeller, 220 F.R.D. at 608. Moeller held numerosity satisfied without a single declaration from absent class members.

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1 Plaintiffs deny, their mere existence demonstrates that there are a substantial number of mobility-

2 impaired patrons of BKLs who allege discrimination. At this stage, Plaintiffs need not prove that

3 such discrimination exists, but rather that the class of people alleging such discrimination is so

4 numerous that joinder is impracticable. See, e.g., Bautista-Perez, 2009 WL 2031759, at *7.

5

Burger King argues that the use of census figures is improper in the face of Moeller v.

6 Taco Bell, which relied expressly and heavily on census figures. 220 F.R.D. at 608 (citing

7 census data). Burger King cites Celano v. Marriott International, Inc., 242 F.R.D. 544 (N.D.

8 Cal. 2007), in which the court held that census data were insufficient to demonstrate numerosity

9 with respect to a class of individuals alleging barriers at Marriott hotel golf courses. Common

10 sense suggests that the number of hotel golfers is smaller than the number of fast food patrons.

11

Finally, Burger King argues that Plaintiffs must demonstrate that each BKL was visited

12 by a large number of individuals. BK Opp. at 13. This case does not seek individual subclasses

13 for each BKL, but rather seeks a class of all individuals who have patronized or been deterred

14 from patronizing BKLs throughout California.

15

3. There Are Common Questions of Law and Fact.

16

“All questions of fact and law need not be common to satisfy the rule [23(a)(2)]. The

17 existence of shared legal issues with divergent factual predicates is sufficient, as is a common

18 core of salient facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler

19 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Nor does Burger King refute any of the numerous

20 common questions in Plaintiffs’ Class Cert. Memo. See Class Cert. Memo at 20-21.

21

As demonstrated above, Burger King’s failure to develop, let alone enforce, a policy

22 ensuring required access is sufficient to establish commonality. See supra at 3 (citing, e.g.,

23 Astrue, 2008 WL 4279674, at *4). This is a complete answer to Burger King’s objection that

24 Plaintiffs have not shown a policy that caused the barriers alleged by Named Plaintiffs and

25 Plaintiffs’ declarants. See BK Opp. at 14. As in Californians for Disability Rights, certification

26 is appropriate where Plaintiffs have demonstrated that “the common question addressed by this

27 lawsuit is whether and to what extent [Defendant] has violated the ADA on a ‘systematic basis

28 for many years through the use of improper design guidelines and the failure to ensure

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1 compliance with even those deficient guidelines.’” 249 F.R.D. at 346; see also Access Now, Inc.

2 v. Ambulatory Surgery Ctr. Group, Ltd, 197 F.R.D. 522, 526 (S.D. Fla. 2000) (commonality

3 satisfied where loosely affiliated defendants “availed themselves of a common program of

4 construction, design, and building code/ADA review”). Furthermore, Burger King never

5 disputes that construction and alterations must be approved by Burger King, that Burger King

6 requires the restaurants to be consistent with its current image, and that Burger King has and

7 enforces repair and maintenance standards and monitors the restaurants’ compliance with all of

8 its standards. Class Cert. Memo at 9-15.

9

Burger King argues that the existence of the “readily achievable” standard obviates any

10 commonality. BK Opp. at 18. This argument was squarely rejected by Moeller, which held that

11 “the readily achievable issue ‘hinges, in part, on various corporation-wide factors such as the

12 availability of resources’ and thus presents a question common to the class.” 220 F.R.D. at 610

13 (quoting Arnold, 158 F.R.D. at 449). Burger King also suggests that certification is inappropriate

14 because the BKLs have a “unique alteration history, resulting in significant individual variations

15 in terms of structure, design, facilities and accommodations,” and because some restaurants lack

16 queue lines.13 BK Opp. at 6-7. Variation among facilities is insufficient to defeat commonality.

17 See, e.g., Moeller, 220 F.R.D. at 609 (“The ‘unique architecture’ argument has been rejected by a

18 number of courts in disability cases.”).14

19

20

13 Burger King appears to believe its queue line discussion impeaches Plaintiffs’

21 declarants’ credibility. It does not. Burger King states, without citation, that “as many as 50% of those BKLs [mentioned by declarants] have never had a queue line.” BK Opp. at 2. In support

22 of this argument, Burger King cites to only 3 out of 48 declarations of putative class members,

and these 3 declarants visited a total of 4 out of 96 —or 4%—of the BKLs. Boothby Supp. Decl. 23 ¶ 2. In support of its statement that “at least half of the cited restaurants [in the Complaint] have

24 never had a queue line at all,” BK Opp. at 6, Burger King relies on the declaration of an individual who surveyed the restaurants after Burger King’s alteration program. See, e.g.,

25 Blackseth Decl. Ex. 1 at 1 (Dkt. #180-9). In any event, the presence and absence of queue lines

is a merits issue and far more than queue lines are at issue in this litigation. See, e.g., Class Cert. 26 Memo at 4-8.

27 14 Moreover, Burger King has withheld from Plaintiffs a series of surveys demonstrating

28 the conditions in the BKL restaurants prior to its recent alteration program. Judge Larson granted

(continued...)

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1

4. Named Plaintiffs’ Claims Are Typical of Those of the Proposed Class.

2

Plaintiffs have suffered the same legal injury as the class: They have been harmed by

3 common architectural barriers for which defendant Burger King has non-delegable liability. The

4 fact that these barriers occur in restaurants built and altered at different times is not relevant for

5 typicality purposes. Plaintiffs’ claims, like those of all other class members, arise under 42

6 U.S.C. § 12182(a), which prohibits discrimination on the basis of disability in places of public

7 accommodation. “Discrimination” under that provision is comprehensively defined by the

8 provisions that follow it to include barriers in post-January 26, 1993 construction, id.

9 § 12183(a)(1), in post-January 26, 1992 alterations, id. § 12183(a)(2), and in existing facilities

10 where it is “readily achievable” to remove the barriers, id. § 12182(b)(2)(A)(iv); see Dkt. #69 at

11 5. Significantly, the question whether a barrier exists in any of these facilities is evaluated

12 against the same standards: the DOJ Standards for Accessible Design, 28 C.F.R. pt. 36, app. A.15

13 Even if the statutory basis were different, given the similarity of the discriminatory experiences,

14 Plaintiffs’ claims would be typical. See Rodriguez v. Hayes, — F.3d —, 2009 WL 2526622, at

15 *11 (9th Cir. 2009) (claims under different statutes not atypical, because class alleged to be

16 victims of same practice); see also Bautista-Perez, 2009 WL 2031759, at *7 (“[C]lass

17 certification does not require each class member to prosecute an identical legal theory. Instead, it

18 is sufficient to demonstrate a common set of operative facts.”).

19

The only cases Burger King cites as support for the proposition that “the ADA’s design

20 and construction requirements are inapplicable” to the Named Plaintiffs’ claims are cases in

21 which the alleged discriminatory events pre-dated the ADA. See Voytek v. Univ. of Cal., 1994

22 WL 478805 (N.D. Cal. 1994) (employment discrimination case); Colon v. League of United

23

24

14(...continued)

Plaintiffs’ motion to compel the surveys, see Dkt. # 162, but Burger King has indicated that it

25 will file objections to that ruling. Unless it produces the surveys, it cannot rely on the unaltered

conditions in the restaurants. Cf. United States v. Nobles, 422 U.S. 225, 239-40 (1975) (holding 26 that investigator could testify only if relevant portions of his report were produced).

27 15 See 28 C.F.R. § 36.406(a) (new construction and alterations required to comply with

28 the Standards); see also Johnson v. Kriplani, 2008 WL 2620378 (E.D. Cal. July 2, 2008) (“non-

compliance with [the Standards] can demonstrate a prima facie barrier” in a pre-1993 facility).

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1 Latin Am. Citizens, 91 F.3d 140 (5th Cir. 1996) (unpublished) (dicta that if the events had

2 preceded the passage of the ADA, the court would lack jurisdiction). Here, the events at issue

3 are the conditions of the BKLs throughout the proposed class period, not conditions pre-dating

4 the ADA.

5

5. Proposed Class Counsel Will Protect the Interests of the Class.

6

Confusing Rule 23(a)(4) with Rule 23(g), Burger King challenges the proposed class

7 counsel’s adequacy solely because of possible overstaffing.16 Burger King presents absolutely no

8 evidence supporting its allegation, and cites no case law denying the appointment of class

9 counsel simply because “five separate law firms” have worked on the case.17 Indeed, to the

10 extent there is any risk of such activity, such considerations are properly addressed at the stage at

11 which counsel request fees. See Fed. R. Civ. P. 23(h) and 2003 advisory committee notes

12 (discussing the award of “reasonable” attorneys fees). Proposed class counsel have demonstrated

13 their prompt and capable handling of the extensive discovery, motion practice, and client

14 management involved in this matter. Class Cert. Memo at 24. Proposed counsel have also

15 demonstrated their adequacy as class counsel. Class Cert. Memo at 23-24.

16

6. The Proposed Class Satisfies Rule 23(b)(2).

17

Burger King’s non-delegable duty, its denial of responsibility, and its failure to

18 implement effective policies demonstrates compellingly the need for injunctive relief in this case.

19 This makes the case appropriate for certification under Rule 23(b)(2), as Burger King has “acted

20 or refused to act on grounds that apply generally to the class, so that final injunctive relief or

21 corresponding declaratory relief is appropriate respecting the class as a whole.”

22

In opposition to Rule 23(b)(2) certification, Burger King argues standing and mootness,

23

24 16 Burger King’s only argument regarding the purported inadequacy of the Named
25 Plaintiffs relates to their alleged lack of standing. As explained above, see supra Section II.B,
that argument is without merit. Named Plaintiffs have no conflicts with the proposed class and 26 have demonstrated their desire to fight for its rights. Class Cert. Memo at 22-23.

27 17 Moreover, only two law firms seek appointment as lead counsel: Fox & Robertson,

28 P.C. and Lewis, Feinberg, Lee, Renaker & Jackson, P.C. Lee Decl. ¶ 2 (Dkt. #138-2); Robertson

Decl. ¶ 2 (Dkt. #138-3).

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1 neither of which has merit and both of which are addressed above. “[E]ven if the challenged

2 design features had been fully remedied in all of the [buildings] built or remodeled since 1982,

3 such ‘mootness’ would pose no obstacle to (b)(2) certification.” Arnold, 158 F.R.D. at 455.18

4

Burger King also argues that the damages claims, which arise under California law,

5 require highly individualized proof and present large damages amounts.19 Burger King does not

6 even attempt to address Moeller in this context, which certified an almost identical class for

7 classwide injunctive relief and statutory damages. Moeller, 220 F.R.D. at 612-13. This case

8 involves only statutory damages, which do not require an individualized analysis of the extent of

9 harm, but can rather be awarded based on a simple claims process. Arnold, 158 F.R.D. at 453.

10 Likewise, large amounts of damages do not render this case inappropriate for certification under

11 Rule 23(b)(2). Id. at 452. Instead, civil rights cases like this one present the “paradigm of the

12 type of action for which the (b)(2) form was created.” Id.; see Moeller, 220 F.R.D. at 612-13.20

13

E. Plaintiffs’ State Law Claims Are Valid and Should Be Certified.

14

Burger King argues that it is not liable under state law. This is a merits question that is

15 common to the class. Burger King is also wrong. California Civil Code Section 52 establishes

16 the liability of “[w]hoever denies, aids or incites a denial, or makes any discrimination or

17 distinction contrary to” the mandates of the Unruh Act. Similarly, California Civil Code Section

18 54.3(a) establishes the liability of any person or entity “who denies or interferes with admittance

19 to or enjoyment of the public facilities” covered by the CDPA, or who “otherwise interferes with

20

21

18 Bizarrely, Burger King argues that the proposed class definition is not limited to

Burger King patrons. BK Opp. at 24. It is unclear where it gets this understanding, as the 22 proposed class definition is for individuals who use wheelchairs and scooters who were or have

23 been denied full and equal enjoyment of California BKLs. Class Cert. Memo at “Notice.”

24

19 Burger King’s guesses as to damages amounts for select declarants are premature and

speculative.

25

20 Whether the class is ultimately entitled to statutory damages, and who among the class 26 is so entitled, are both merits issues. Moreover, Burger King’s citation of recent amendments to

27 the California Civil Code are irrelevant, as those amendments explicitly do not apply to this case and cannot be used to interpret the prior statute’s application here. Cal. Civ. Code § 55.57(a)

28 (“[N]o inference shall be drawn from provisions contained in this part concerning the state of the

law as it existed prior to January 1, 2009.”).

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1 the rights of an individual with a disability” guaranteed by that statute. Burger King asserts that,

2 because “Unruh and the CDPA limit liability to those who actually make or incite

3 discrimination,” those claims should be stricken from the class definition. BK Opp. at 24. The

4 expansive and sweeping statutory language is far broader than Burger King asserts. Regardless

5 of its scope, however, Plaintiffs have demonstrated that Burger King, at the least, exerts control

6 that “aids or incites” a denial of access. More importantly, whether Burger King has “aided,”

7 “incited” or “ma[d]e discrimination” by its actions and failures is question of law common to the

8 entire class.

9

Burger King also argues that the legislature’s failure to amend Civil Code sections 52(a)

10 and 54(a) precludes the finding that liable parties under the ADA are liable parties under the

11 Unruh and CDPA. BK Opp. at 25. Burger King does not bother even to cite, much less address,

12 the recent California Supreme Court decision squarely rejecting arguments almost identical to

13 this one. See Munson v. Del Taco, Inc., 46 Cal. 4th 661, 670-73 (2009) (rejecting argument that

14 non-amendment of Section 52 precluded strict liability for violation of ADA). The court held,

15

Section 52 authorizes a damages action against any person who “makes any

discrimination . . . contrary to Section 51.” By adding subdivision (f) to section

16

51, making all ADA violations—whether or not involving intentional

discrimination—violations of the Unruh Civil Rights Act as well, the Legislature

17

included ADA violations in the category of “discrimination” contrary to section

51, thus making them remediable under section 52. As the Lentini court

18

explained, quoting an earlier district court decision, “‘Because the Unruh Act has

adopted the full expanse of the ADA, it must follow, that the same standards for

19

liability apply under both Acts.’”

20 Id. at 672 (emphasis added) (quoting Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir.

21 2004)). Munson therefore compels the conclusion that, in addition to liability under the terms of

22 the Unruh Act itself, Burger King’s leasehold interest is also sufficient to establish liability under

23 the Unruh Act through the incorporation of the ADA.

24 III. CONCLUSION

25

For the reasons set forth above and in Plaintiffs’ Class Cert. Memo, Named Plaintiffs

26 request that this Court, pursuant to Rules 23(a) and 23(b)(2), certify a class in this case.

27 ///

28 ///

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1 Dated: September 3, 2009 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

Respectfully submitted,
By: /s/ Bill Lann Lee Bill Lann Lee (State Bar No. 108452) Andrew Lah (State Bar No. 234580) Julia Campins (State Bar No. 238023) LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Tel: (510) 839-6824 Fax: (510) 839-7839 blee@lewisfeinberg.com alah@lewisfeinberg.com jcampins@lewisfeinberg.com
Timothy P. Fox (State Bar No. 157750) Amy Robertson (pro hac vice) FOX & ROBERTSON, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Telephone: (303) 595-9700 TTY: (877) 595-9706 Facsimile: (303) 595-9705 tfox@foxrob.com arob@foxrob.com
Linda D. Kilb (State Bar No. 136101) DISABILITY RIGHTS EDUCATION & DEFENSE FUND 2212 Sixth Street Berkeley, CA 94710 Tel: (510) 644-2555 Fax: (510) 841-8645 lkilb@dredf.org
Mari Mayeda (State Bar No. 110947) P O Box 5138 Berkeley, CA 94705 Tel: (510) 848-3331 Fax: (510) 841-8115 marimayeda@earthlink.net
Antonio M. Lawson (State Bar No. 140823) LAWSON LAW OFFICES 160 Franklin Street, Suite 204 Oakland, CA 94607 Tel: (510) 419-0940 Fax: (510) 419-0948 tony@lawsonlawoffices.com
Attorneys for Plaintiffs

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

[CASE NO. C 08-4262 WHA (JL)]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

10

11 Miguel Castaneda,

No. C 08-4262 WHA (JL)

12

Plaintiff,

13

v.

14 Burger King Corporation, et al.,

ORDER GRANTING MOTION TO COMPEL DEPOSITION (Docket # 250)

15

Defendants.

________________________________/

16

17

Plaintiffs ask this Court to order Burger King Corporation (“BKC”) to produce

18 witnesses pursuant to Rule 30(b)(6), Federal Rules of Civil Procedure, addressing BKC’s

19 policies and procedures with respect to disabled access. On June 3, 2009, Plaintiffs served

20 on BKC their a notice of deposition pursuant to Rule 30(b)(6), requesting to depose the

21 persons most knowledgeable about (among other topics) BKC’s policies relating to

22 construction, alteration and maintenance of the restaurants at issue. The parties scheduled

23 the deposition with no objection from BKC concerning the topics. The deposition was then

24 rescheduled several times. When Plaintiffs contacted BKC to reschedule the deposition

25 following the Court’s decision on Plaintiffs’ motion for class certification, BKC took the

26 position that its policies were no longer at issue and that “[t]he remaining questions in the

27 case are whether the restaurants contain barriers that should be remedied.”

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1

Plaintiffs seek not only removal of barriers, but changes to the BKC policies that

2 permitted those barriers to occur. Under the plain language of Title III’s remedial provision,

3 should Plaintiffs prove violations of the statutes above, they are entitled to an injunction that

4 “shall include” both an order to bring the facilities into compliance and, where appropriate,

5 “shall also include requiring the . . . modification of a policy, . . . to the extent required by

6 this subchapter. 42 U.S.C. § 12188(b)(emphasis added). Contrary to BKC’s argument infra,

7 this remedial provision demonstrates that its policies are directly relevant to the merits of

8 the case.

9

Judge Alsup granted class certification as to ten BKC stores and otherwise denied

10 class certification (Docket # 226). In the order, Judge Alsup found that Plaintiffs had failed

11 to show evidence of any “common blueprint” used by BKC which created barriers to

12 access:

13

“ The only thing that comes close to a common blueprint concerns “queue lines.”

These are the lines in which customers wait to order. Drawings of sample front

14

counter areas in a 1984 equipment plan layout and a 1991 operations manual by

Burger King Corporation stated that queue lines should be a minimum of 30-inches

15

wide, which violated the California standards requiring queue lines to be a minimum

of 36-inches wide.3 The record shows, however, that many of the restaurants visited

16

by plaintiffs used layouts which did not have queue lines at all. No other feature,

such as door pressure, ramp placement, ramp angle, mirror placement, and so on

17

was centralized (Campins Exh. 123, 124, 126; Blackseth Exh. 1).” (Order, p. 7)

18

Plaintiffs do not identify any other policy, plan, or blueprint from Burger King

19

Corporation that even arguably called for a feature that would violate the ADA or

California standards, except to assert in passing that defendant’s “speed of service

20

standards,” which set maximum times within which customers must be served,

“exacerbate the access issues created by queue lines and condiment and drink

21

dispensers.” Plaintiffs do not, however, explain why this would be so.” (Order at p.7,

n.3)

22

23

In examining the feasibility of appointment of a special master, Judge Alsup stated:

24 “Appointing a special master would not solve the real problem — namely, that there is no

25 affirmative common corporate policy calling for access barriers at all 92 stores. Even a

26 special master would have to adjudicate all of the myriad issues. All would then be subject

27 to relitigation before the district judge under Rule 53(f). ” (Order at 19:28-20:3, emphasis

28 added).

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1

Plaintiffs ask this Court to distinguish Judge Alsup’s order as finding only that the

2 lack of a common blueprint or common offending policies at all 92 BKC stores precluded

3 broader certification, but made no holding that BKC policies or lack of policies affect any of

4 the 10 individual restaurants still at issue in this case.

5

Defendants ask this Court to conclude that BKC policies were relevant only to class

6 certification and thus no longer either relevant or discoverable. BKC argues that Judge

7 Alsup certified 10 separate classes for 10 separate trials, one for each of the ten

8 restaurants visited by one or more of the named Plaintiffs. Thus, BKC concludes that its

9 policies are no longer at issue; only the current conditions at the 10 restaurants as to which

10 Judge Alsup certified classes are at issue.

11

BKC concedes that the ADA permits injunctive relief requiring the modification of a

12 policy “where appropriate.” However, BKC interprets the class certification order to find

13 explicitly that class relief is proper only as to specific defects at particular restaurants.

14

Not surprisingly, the truth lies somewhere in between the two sides’ positions.

15

Judge Alsup in the class certification order found no common blueprint or common

16 policy affecting barriers to access, however that does not mean he found no evidence of

17 BKC policies creating barriers, just none that was universal to all 92 of the BKC restaurants

18 for which Plaintiffs sought class certification. There may very well be BKC policies which

19 affect barriers to access at the 10 restaurants for which Judge Alsup granted class

20 certification. Plaintiffs are entitled to discovery on policies affecting barriers to access at

21 those restaurants, as relevant to both liability and injunctive relief to prevent those policies

22 from continuing to create barriers to access at those 10 restaurants.

23

Accordingly, Plaintiffs’ motion to compel a deposition pursuant to Rule 30(b)(6)

24 Federal Rules of Civil Procedure is granted. BKC shall produce the witnesses or witnesses

25 for deposition as noticed by Plaintiffs.

26

27

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IT IS SO ORDERED.

2 DATED: November 17, 2009

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__________________________________

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JAMES LARSON

U.S. Magistrate Judge

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UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 Miguel Castaneda,

No. C 08-4262 WHA (JL)

12

Plaintiff,

13

v.

14 Burger King Corporation,

ORDER GRANTING PLAINTIFFS’ REQUEST FOR LEAVE TO SERVE ADDITIONAL INTERROGATORIES (Docket # 267)

15

Defendants.

________________________________/

16

I. Background

17

In this disability-rights class action, plaintiff Miguel Castaneda sues Defendant

18

Burger King Corporation (“Burger King” or “BKC”) on behalf of himself and others similarly

19

situated for violations of the Americans with Disabilities Act as well as state law. Plaintiff

20

alleges access violations at a subset of Burger King’s restaurants in California: those that

21

Burger King leases to or from other entities.

22

Plaintiffs bring claims under the Americans with Disabilities Act

23

(“ADA”), 42 U.S.C. § 12181 et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq.

24

(“Unruh”), and the California Disabled Persons Act, Cal. Civ. Code § 54 et seq. (the

25

“CDPA”). Architectural compliance with the ADA is evaluated against the Department of

26

Justice Standards for Accessible Design (“DOJ Standards”). 28 C.F.R. § 36.406(a). In

27

California, violation of Title 24 of the California Code of Regulations (“Title 24”) constitutes

28

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1 violation of Unruh and the CDPA. See, e.g., Arnold v. United Artists Theatre Circuit, Inc.,

2 866 F. Supp. 433, 439 (N.D. Cal. 1994).

3

Plaintiffs’ Amended Complaint (Docket No. 72) contends that Burger King

4 restaurants in California are not adequately accessible to the disabled. Plaintiff alleges that

5 the leased restaurants deny customers who use wheelchairs or scooters access to

6 restaurant services on account of architectural or design barriers or discriminatory policies

7 or practices. Those access barriers include inaccessible parking lots, entry and restroom

8 doors that are too heavy, queue lines that are too narrow for wheelchairs, inaccessible

9 dining areas, and inaccessible restrooms.

10

Plaintiffs request, pursuant to Federal Rule of Civil Procedure 33(a)(1), leave to

11 serve six additional interrogatories on Defendant Burger King Corporation (“BKC”)

12 requesting it to state its position(s) on relevant defenses and on “conventional building

13 industry tolerances for field conditions.” See 28 C.F.R. pt. 36, app. A § 3.2; see also Cal.

14 Code Regs. tit. 24 (2008), § 1101B.5.

15

II. Legal Standard

16

“Unless otherwise stipulated or ordered by the court, a party may serve on any other

17 party no more than 25 written interrogatories, including all discrete subparts.” Fed. R. Civ.

18 P. 33(a)(1). “Leave to serve additional interrogatories may be granted to the extent

19 consistent with Rule 26(b)(2).” Id. The court must limit the extent or frequency of discovery

20 if it finds that I) the discovery sought is unreasonably cumulative or can be obtained form a

21 source that is more convenient, (ii) the party seeking discovery has had ample opportunity

22 to obtain the information by discovery; or (iii) the burden or expense of the proposed

23 discovery outweighs its likely benefit, considering the needs of the case, the amount in

24 controversy, the parties’ resources, the importance of the issues at stake in the action, and

25 the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C)(I)-(iii).

26 “In practical terms, a party seeking leave to...serve more Interrogatories than are

27 contemplated by the Federal Rules...must make a particularized showing of what the

28

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1 discovery is necessary.” Archer Daniels Midland Co. V. Aon Risk Servs., Inc. of Minnesota,

2 187 F.R.D. 578, 586 (D. Minn. 1999).

3

III. Plaintiffs’ Additional Interrogatories

4

1. Proposed Interrogatory No. 25

5

Proposed Interrogatory No. 25 requests Defendant to provide its contention

6 concerning “conventional building industry tolerances” (outlined in Department of Justice

7 Standards) that relate to 65 basic measurements.

8

2. Proposed Interrogatory No. 26

9

Proposed Interrogatory No. 26 asks Defendant to identify areas where barrier

10 removals are not “readily achievable” within the meaning of the Americans with Disabilities

11 Act (“ADA”), 42 U.S.C. § 12181(9).

12

2. Proposed Interrogatory No. 27

13

Proposed Interrogatory No. 27 asks Defendant to identify areas where full

14 compliance with the provisions of the ADA are “structurally impracticable” within the

15 meaning of the ADA.

16

3. Proposed Interrogatory No. 28

17

Proposed Interrogatory No. 28 asks Defendant to identify areas where compliance is

18 “technically infeasible,” as provided by Department of Justice Regulations. DOJ Standards

19 § 4.1.6(1)(j).

20

4. Proposed Interrogatory No. 29

21

Proposed Interrogatory No. 29 asks Defendant to identify areas where Defendant

22 has used alternative designs or technologies to permissibly depart from the requirements of

23 the DOJ Standards.

24

5. Proposed Interrogatory No. 30

25

Proposed interrogatory 30 asks Defendant to identify any areas where an enforcing

26 agency has made a finding of “unreasonable hardship,” as provided by the provisions of

27 Title 24. See, e.g., Title 24 (2008) § 1129B.3, Exception 1.

28

IV. Discussion

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1

1. Proposed Interrogatory No. 25

2

Federal Rule of Civil Procedure 33 allows a party to serve up to 25 interrogatories.

3 Plaintiffs are free to serve Proposed Interrogatory No. 25 without leave of court.

4 2. Proposed Interrogatories Nos. 26-30

5

Plaintiffs have requested leave to propound five additional interrogatories for the

6 purposes of assessing Defendant’s proposed defenses.

7

In response to Plaintiffs’ requests, Defendant argues that Plaintiffs do not offer a

8 sufficient explanation for requesting more interrogatories than are provided for in Federal

9 Rule of Civil Procedure 33. Defendant further argues that Plaintiff’s requests are

10 “premature” because they have not alleged with particularity the locations and

11 measurements of the alleged deficiencies.

12

In the parties’ joint statement on the issue, Plaintiffs state that the information

13 requested will serve to narrow the disputed issues because it relates to Burger King Corp.’s

14 defenses. Burger King argues that it does not yet know what specific allegations Plaintiffs

15 make on accessibility issues at particular restaurants. Plaintiffs are conducting surveys of

16 the ten relevant restaurants during the week of November 16. Burger King contends that

17 only after the completion of that evaluation will BKC be able to determine whether it will

18 assert the listed defenses with respect to any of those claims. If the Court grants Plaintiffs

19 leave to propound the additional interrogatories, then Defendants ask that BKC’s

20 responses should not be required until 30 days following Plaintiffs’ submission to BKC of

21 their survey results.

22

Ultimately, Defendant’s response is based on the false premise that the only

23 violations at issue in this litigation are those that currently exist in the stores. Because the

24 class period goes back to April 16, 2006, and because class members are entitled to

25 damages for violations that have existed since that time, Plaintiffs are entitled to discovery

26 concerning these defenses back to that time.

27

Plaintiffs argue that Burger King knows the violations that existed: they took surveys.

28 See Docket No. 123 at 4. Presumably they will use those surveys to develop these

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1 defenses. Plaintiffs must be able to take discovery and prepare for ten trials in which these

2 defenses will be at issue.

3

Defendant’s position that the requested interrogatories cannot be answered before

4 Plaintiffs provide allegations of particular deficiencies is not well founded. If Defendant

5 contends that “unreasonable hardship,” “structural impracticability,” “technical infeasibility,”

6 or alternative designs prevent it from complying with the regulations of the ADA, then it

7 must provide answers so that Plaintiffs may assess these defenses.

8

V. Conclusion

9

Based on the arguments of the parties, the complexity of the case, and the

10 resources available to the parties, the burden imposed on Defendant by the additional

11 interrogatories does not outweigh the relevance or importance of the information requested.

12 This Court hereby grants Plaintiffs leave to serve Proposed Interrogatories Nos. 26-30.

13

IT IS SO ORDERED.

14 DATED: November 25, 2009

15

16

__________________________________

James Larson

17

U.S. Magistrate Judge

18

19

20 G:\JLALL\CHAMBERS\CASES\CIV-REF\08-4262\Order grant 267.wpd

21

22

23

24

25

26

27

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 Case3:08-cv-04262-WHA Document299 Filed02/11/10 Page1 of 19

1 Bill Lann Lee – CA State Bar No. 108452
Andrew Lah – CA State Bar No. 234580
2 Julia Campins – CA State Bar No. 238023
LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.
3 1330 Broadway, Suite 1800
Oakland, CA 94612
4 Telephone: (510) 839-6824
Facsimile: (510) 839-7839
5 Email: blee@lewisfeinberg.com

Mari Mayeda - CA State Bar No. 110947 P O Box 5138 Berkeley, CA 94705 Telephone: (510) 848-3331 Facsimile: (510) 841-8115 Email: marimayeda@earthlink.net

6 Timothy P. Fox - CA State Bar No. 157750
Amy Robertson (pro hac vice)
7 FOX & ROBERTSON, P.C.
104 Broadway, Suite 400
8 Denver, CO 80203
Telephone: (303) 595-9700
9 Facsimile: (303) 595-9705
Email: tfox@foxrob.com
10
Attorneys for Plaintiff
11

12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

MIGUEL CASTANEDA, KATHERINE

) Case No. C 08-4262 WHA (JL)

14 CORBETT, and JOSEPH WELLNER on

)

behalf of themselves and others similarly

)

15 situated,

) PLAINTIFFS’ MOTION FOR PARTIAL

) SUMMARY JUDGMENT AS TO

16

Plaintiffs,

) VIOLATIONS OF APPLICABLE

) DISABILITY ACCESS STANDARDS IN

17

vs.

) RESTAURANT NUMBER 2055

)

18 BURGER KING CORPORATION,

) Hearing Date: March 18, 2010

) Time:

8:00 a.m.

19

Defendant.

)

)

20

21

22

23

24

25

26

27

28

Case3:08-cv-04262-WHA Document299 Filed02/11/10 Page2 of 19

1

TABLE OF CONTENTS

2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

4

A. Construction and Alteration History of Restaurant 2055 . . . . . . . . . . . . . . . . . . . . 2

5

B. Defendant’s Accessibility Surveys of Restaurant 2055 . . . . . . . . . . . . . . . . . . . . . 3

6 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7 I. Applicable Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8
9
10
11 II.
12

A. Motion for Partial Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. The Americans With Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. The Unruh Civil Rights Act and the California Disabled Persons Act . . . . . . . . . 6 The Undisputed Facts Demonstrate that Plaintiffs Are Entitled to Partial Summary Judgment Concerning Certain Elements In Restaurant 2055 . . . . . . . . . 7

13

A. Accessibility Requirements Applicable to Restaurant 2055

on Which this Motion is Based . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 14

B. The Ramp to the Front Entrance Does Not Comply With

15

ANSI-61 or CBC-1994 Because it Does Not Have a Handrail . . . . . . . . . . . . . . . 8

16

C. The Slope of Accessible Parking Spaces and Access Aisles Was Out of

Compliance with Applicable Standards As Recently As August 2008. . . . . . . . . 8 17

18

D. The Maneuvering Clearance at the Men’s Restroom Was Out of Compliance with Applicable Standards As Recently As January 2009 . . . . . . . . . 9

19 E. The Force Required to Open the Women’s Restroom Door Was Out of

20

Compliance with Applicable Standards As Recently As January 2009 . . . . . . . . 10

21

F. The Toilet Stalls in the Men’s and Women’s Restrooms

Were Out of Compliance with Applicable Standards As

22

Recently As August 2008. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

23

G. The Lack of Accessible Seating Was Out of Compliance with Applicable

Standards As Recently As January 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

24

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

25

26

27

28

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1

TABLE OF AUTHORITIES

2 Cases

3 Bragdon v. Abbott,
524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4

Donald v. Café Royale, Inc.,

5

266 Cal. Rptr. 804 (Cal. Ct. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

6 Fortyune v. American Multi-Cinema, Inc.,

7

364 F.3d 1075 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8 Long v. Coast Resorts, Inc., 267 F.3d 918, 921-24 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

9 Moeller v. Taco Bell Corp.,

10

2007 WL 2301778 (N.D. Cal. Aug. 8, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7

11 People ex rel. Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484 (Cal. Ct. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

12

Sapp v. MHI Partnership, Ltd.,

13

199 F. Supp. 2d 578 (N.D. Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

14 United States v. AMC Entertainment, Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
15
Statutes 16

Title III of the Americans with Disabilities Act 17

18

42 U.S.C. § 12181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

19

42 U.S.C. § 12182(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

20

42 U.S.C. § 12183(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

21

42 U.S.C. § 12182(b)(2)(A)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

22

42 U.S.C. § 12188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

23 Unruh Civil Rights Act

24

Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

25

Cal. Civ. Code § 51(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

26

Cal. Civ. Code § 51(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

27

Cal. Civ. Code § 52(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28

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1 California Disabled Persons Act

2

Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3

Cal. Civ. Code § 54(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

4

Cal. Civ. Code § 54.1(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5

Cal. Civ. Code § 54.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

6 Cal. Health & Safety Code

7

§ 114276(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

8 § 19956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

9 § 19959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10 Regulations
11 Nondiscrimination on the Basis of Disability by Public Accommodations and
12 in Commercial Facilities, 28 C.F.R. pt. 36

13

§ 36.403(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

14

§ 36.406(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

15 Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app. A. . . . . . . . . . 5-6

16

§ 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

17

§ 3.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18

§ 4.1.2(5)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

19 § 4.1.3(18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

20 § 4.1.6(1)(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21 § 4.6.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
22 § 4.13.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
23 § 4.13.11(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
24 § 4.17.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25
Fig. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 26
Fig. 30(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 27

Fig. 30(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 28

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1 California Building Code, Cal. Code Regs., tit. 24, pt. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2

§ 404(p.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3

§ 419(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

4

§ 3103A(b)(4C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5

§ 3105A(b)(3)(A)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

6

§ 3105A(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

7

§ 3107A(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

8 § 3107A(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9 § 3107A(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 § 3304(i.1)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
11 § 3304(i.2)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12 § 3307(a.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13 § 3307 (e.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14
§ 3112A(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 15
Fig. 31-1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 16
Fig. 33-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 17

18

ANSI A117.1-1961: American National Standard Specifications for Making Buildings and Facilities Accessible to and Usable by, The Physically Handicapped . . . . . . . . . . . . . . . . . . . . 6, 7

19 § 5.1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

20 § 5.3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
21 Rules
22 Federal Rules of Civil Procedure
23 Rule 56(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
24 Rule 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
25
Rule 56(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4 26

27

28

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1

Exhibits to the Declaration of Amy F. Robertson

2 Exhibit 1 Declaration of Eric McSwain and photos MBK000142 and MBK000271

3 Exhibit 2 Current California BKL Restaurants

4 Exhibit 3
5 Exhibit 4
6 Exhibit 5
7 Exhibit 6
8 Exhibit 7
9 Exhibit 8
10 Exhibit 9
11 Exhibit 10
12 Exhibit 11
13 Exhibit 12
14

Expert Report of Kim R. Blackseth for Defendant Burger King Corp. and Exhibit 1 Burger King Corporation Facility Inspection Report CM Pacific, Inc., Bid JBI Bid UDC Survey dated August 27, 2008 UDC Survey dated January 5, 2009 Excerpts from the deposition of Kim Blackseth and Exhibits 272 and 278 Excerpts from the 1994 version of the California Building Code Excerpts from the Department of Justice Standards for Accessible Design Defendant Burger King Corp.’s Supplemental Response to Plaintiffs’ Third Set of Discovery Requests and “Burger King Corporation’s Tolerances Chart”

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. C 08-4262 WHA (JL)

Plaintiffs’ Motion for Partial Summary Judgment

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1

INTRODUCTION

2

Undisputed facts establish that the following elements of Burger King Restaurant 2055

3 were in violation of applicable federal and state accessibility standards during the relevant period

4 in this litigation:

5

! The ramp to the front entrance;

6

! The slope of the required accessible parking spaces;

7

! The force required to open the women’s restroom door;

8

! The maneuvering clearance at the men’s restroom door;

9

! The men’s and women’s toilet stalls; and

10

! The lack of accessible seating.

11

Plaintiffs hereby move for partial summary judgment establishing that those elements are

12 or were out of compliance with applicable disability access standards. While there remain fact

13 issues that must be resolved before an individual class member may make a claim for damages --

14 for example, whether the class member “was denied equal access on a particular occasion,”

15 Donald v. Café Royale, Inc., 266 Cal. Rptr. 804, 813 (Cal. Ct. App. 1990) -- Plaintiffs move

16 pursuant to Rules 56(a) and 56(d) of the Federal Rules of Civil Procedure for partial summary

17 judgment with respect to the undisputed questions of fact and law listed above. Rule 56(a)

18 permits a party to move for summary judgment “on all or any part” of his claim; Rule 56(d)(1)

19 permits the Court to determine what material facts “are not genuinely at issue.”

20

A ruling on Plaintiffs’ present motion will have the effect of narrowing the issues in the

21 trial relating to Restaurant 2055, currently set to begin on April 19, 2010.

22

BACKGROUND

23

This class action lawsuit -- at this juncture -- challenges barriers to individuals who use

24 wheelchairs and scooters at ten Burger King leased (“BKL”) restaurants in California. Plaintiffs

25 allege that these barriers violate title III of the Americans with Disabilities Act (“ADA”), 42

26 U.S.C. § 12181 et seq., and California’s Unruh Civil Rights Act (“the Unruh Act”), Cal. Civ.

27 Code § 51 et seq., and Disabled Persons Act (“CDPA”), id. § 54 et seq. Plaintiffs seek injunctive

28

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1 relief pursuant to the ADA, 42 U.S.C. § 12188, and injunctive relief and minimum statutory

2 damages under state law. See Cal. Civ. Code §§ 52(a) (Unruh) & 54.3(a) (CDPA).

3

On September 25, 2009, this Court certified ten subclasses, one for each of the ten BKL

4 restaurants now at issue, and scheduled trials for these subclasses throughout 2010 and early

5 2011. Order Granting Class Certification as to Ten Burger King Stores and Otherwise Denying

6 Class Certification (Docket No. 226) at 27-28. The class period in this case extends back to

7 April 16, 2006. Id. at 9. The first trial -- of Restaurant 2055 -- is scheduled to begin on April 19,

8 2010. Id. at 27. This motion addresses only this first restaurant.

9

As set forth below, both the ADA and California state law require that when a restaurant

10 or other public accommodation is constructed or altered, the construction or alterations must

11 comply with accessibility requirements applicable at that time. The undisputed facts on which

12 this Motion relies are: (1) the construction date and alterations history of Restaurant 2055; and 13 (2) accessibility surveys conducted by Defendant’s experts1 showing that specified architectural

14 elements at Restaurant 2055 did not comply with state and/or ADA requirements in effect when

15 that restaurant was constructed or altered.

16

A. Construction and Alteration History of Restaurant 2055.

17

Restaurant 2055 was built in 1977. Decl. of Amy F. Robertson (“Robertson Decl.”) Ex. 2

18 at 2. Defendant Burger King Corp.’s (“BKC’s”) expert, Kim Blackseth, determined that

19 alterations costing $230,000 occurred at Restaurant 2055 in 1997. Expert Report of Kim R.

20 Blackseth for Defendant Burger King Corp. (“Blackseth Report”), Ex. 1 at 3 (Robertson Decl.

21 Ex. 3). The 1997 alterations included alterations to the restrooms and parking lots as well as

22 dining room tables. BKC’s Facility Inspection Report for Restaurant 2055 required certain work

23 to be done on the restaurant, including that the entire parking lot be replaced, that the entire

24

25

1

Plaintiffs’ expert Eric McSwain surveyed all ten stores documenting ongoing

26 violations and evidence of previous violations. He submitted a declaration (Robertson Decl. Ex.

27 1), a 64-page exhibit detailing violations in the ten stores, and over 5,800 photographs taken during his ten surveys. In order to ensure that the facts on which Plaintiffs rely for summary

28 judgment are undisputed, however, Plaintiffs rely only on evidence from Defendant’s surveys.

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1 dining room decor package -- including table tops and chairs -- be replaced, and that the

2 restrooms be replaced. Id. at BKCPP000781, 783, 790, 793 (Robertson Decl. Ex. 4). The bid

3 documents in BKC’s files for the work show bids for “Rest Room Remodel” and significant

4 work in the parking lot, see Robertson Decl. Ex. 5 at BKCPP000850, 851, and bid documents

5 received from the franchisee show replacement of tables and seating. See Robertson Decl. Ex. 6

6 at COOK-MER-2055_2288-00096.

7

B. Defendant’s Accessibility Surveys of Restaurant 2055.

8

At various points in 2008 and 2009, BKC commissioned its nontestifying experts,

9 including Universal Designers and Consultants (“UDC”), to survey the ten restaurants to

10 investigate accessibility issues. See Docket No. 123 at 4. After BKC received these surveys, it

11 directed that the franchisees of the restaurants attempt to correct the violations identified in the

12 surveys. See Docket No. 200 at 4. The UDC surveys thus document the conditions in the

13 restaurants prior to the time these corrective alterations took place. The conditions in the

14 restaurants between April 16, 2006 and the time any violations were remedied are relevant to

15 determining whether class members who encountered barriers during that time are entitled to

16 recover damages pursuant to state law.

17

The parties disputed whether the UDC surveys were privileged. Following briefing to the

18 magistrate and objections,2 this Court held that the surveys were not privileged but that BKC

19 could withhold production of the surveys until 70 days before each trial. Order Denying Def.’s

20 Mot. for Stay Pending Appeal of Disc. Order (Docket No. 253) at 2. Based on this Order, on

21 February 8, 2010, Plaintiffs received three surveys relating to restaurant number 2055 in El

22 Cerrito, California, trial of which is scheduled to begin on April 19, 2010. The two UDC surveys

23 Plaintiffs reference herein are dated August 27, 2008 (the “August 2008 Survey,” Robertson 24 Decl. Ex. 7) and January 5, 2009 (the “January 2009 Survey,” Robertson Decl. Ex. 8).3 These

25 surveys show that there were specific -- and undisputed -- violations of accessibility standards

26

27

2

See Docket Nos. 103, 121, 123, 135, 142, 151, 154, 200, 239, 241-1.

28

3

Plaintiffs have highlighted the measurements in the surveys on which they rely.

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1 during the liability period as late as August 2008 or January 2009 at Restaurant 2055 prior to

2 corrective alterations.

3

In addition to the UDC surveys, BKC’s expert, Kim Blackseth, analyzed the alterations

4 history of the stores and then surveyed them on a number of occasions starting in mid-2009

5 through the end of that year. See, e.g., Blackseth Report, Ex. 1 at 1-4 (documenting visits to

6 Restaurant 2055 and alterations history of same). Although these surveys took place after the

7 attempted corrective alterations, Mr. Blackseth nevertheless found at least one ongoing violation

8 as late as August 2009 at Restaurant 2055.

9

The UDC surveys of Restaurant 2055 and Mr. Blackseth’s report relating to that

10 restaurant provide a number of undisputed facts demonstrating the existence of violations of the

11 ADA and/or state law in Restaurant 2055 that are appropriate for resolution on motion for partial

12 summary judgment.

13

ARGUMENT

14 I. Applicable Standards

15

A. Motion for Partial Summary Judgment

16

Summary judgment is appropriate where “the pleadings, the discovery and disclosure

17 materials on file, and any affidavits show that there is no genuine issue as to any material fact and

18 that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A plaintiff

19 may move for summary judgment in his favor “on all or any part” of his claim. Id. Rule 56(a).

20 “An interlocutory summary judgment may be rendered on liability alone, even if there is a

21 genuine issue on the amount of damages.” Id. Rule 56(d)(2); see also id. Rule 56(d)(1)

22 (permitting the Court, when not rendering judgment upon the whole case, to issue an order

23 “specifying what facts. . . are not genuinely at issue.”).

24

A number of courts have held that partial summary judgment is appropriate where a

25 plaintiff has demonstrated -- through undisputed facts -- violations of applicable accessibility

26 standards. See, e.g., Long v. Coast Resorts, Inc., 267 F.3d 918, 921-24, 926 (9th Cir. 2001)

27 (affirming in part district court’s decision granting partial summary judgment to plaintiffs based

28

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1 on an application of ADA accessibility standards to stipulated facts); Moeller v. Taco Bell Corp.,

2 2007 WL 2301778, at *2-3, *22 (N.D. Cal. Aug. 8, 2007) (granting partial summary judgment to

3 plaintiffs under ADA and California accessibility standards); United States v. AMC Entm’t, Inc.,

4 245 F. Supp. 2d 1094, 1101 (C.D. Cal. 2003) (granting partial summary judgment to plaintiffs

5 based on an application of ADA accessibility standards to undisputed dimensional information in

6 plaintiffs’ expert’s report); Sapp v. MHI P’ship, Ltd., 199 F. Supp. 2d 578, 583 (N.D. Tex. 2002)

7 (granting partial summary judgment to plaintiffs based on an application of ADA accessibility

8 standards to undisputed facts).

9

B. The Americans With Disabilities Act

10

Title III of the ADA prohibits disability discrimination by those who own, operate, lease

11 or lease to places of public accommodation -- such as Burger King restaurants -- “in the full and

12 equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of

13 that public accommodation. 42 U.S.C. § 12182(a). Title III requires differing levels of

14 architectural compliance depending on whether the restaurant was (1) built after January 26,

15 1993; (2) built before that time but altered after January 26, 1992; or (3) built before that time but

16 not altered. See generally Moeller, 2007 WL 2301778, at *5. The only standard at issue in this

17 motion is the second of these, the alterations standard. Restaurant 2055 was built in 1977, so the

18 new construction standard does not apply, and Plaintiffs are not moving pursuant to the third

19 standard, requiring barrier removal where “readily achievable” in unaltered facilities. 42 U.S.C.

20 § 12182(b)(2)(A)(iv).

21

In facilities built before January 26, 1993 but altered after January 26, 1992, the altered

22 portion4 must comply with the Department of Justice Standards for Accessible Design (“DOJ

23

24

4

In addition, the path of travel to the altered portion, and the restrooms that serve

25 the altered area must be brought into compliance, up to a cost of 20% of the overall cost of the

alteration. 42 U.S.C. § 12183(a)(2) (requiring path of travel and restrooms to comply if not 26 “disproportionate”); 28 C.F.R. § 36.403(f)(1) (deeming path of travel and restroom alterations

27 disproportionate if they exceed 20% of the cost of the original alteration); see also Blackseth Report, Ex. 1 at 4. In this Motion, Plaintiffs do not rely on the ADA’s path of travel

28 requirements.

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1 Standards” or “DOJ Stds.”),5 28 C.F.R. pt. 36, app. A. See 42 U.S.C. § 12183(a)(2); 28 C.F.R.

2 § 36.406(a).6 The DOJ Standards contain detailed design specifications for public

3 accommodations covering a variety of architectural elements, including, for example, parking

4 lots, food service lines, accessible routes, and restrooms. See generally id.

5

C. The Unruh Civil Rights Act and the California Disabled Persons Act.

6

Both the CDPA and the Unruh Act prohibit discrimination on the basis of disability in the

7 full and equal access to the services, facilities and advantages of public accommodations. Cal.

8 Civ. Code §§ 51(b) (Unruh) & 54.1(a)(1) (CDPA). All buildings constructed or altered after July

9 1, 1970, must comply with standards governing the physical accessibility of public

10 accommodations. Moeller, 2007 WL 2301778, at *6 (citing Cal. Health & Safety Code §§ 19956

11 & 19959). From December 31, 1981 until the present, the standards have been set forth in the

12 California Building Code (“CBC”), Cal. Code Regs., tit. 24, pt. 2. See Moeller, 2007 WL

13 2301778, at *6. Buildings constructed between July 1, 1970 and December 31, 1981 must

14 comply with the 1961 version of the American National Standards Institute, Inc.’s “ANSI

15 A117.1-1961: American National Standard Specifications for Making Buildings and Facilities

16 Accessible to and Usable by, The Physically Handicapped” (“ANSI-61”). People ex rel.

17 Deukmejian v. CHE, Inc., 197 Cal. Rptr. 484, 491 (Cal. Ct. App. 1983); see also Dep. of Kim

18 Blackseth (“Blackseth Dep.”) 52-53 and Ex. 272 (Robertson Decl. Ex. 9).

19

As Defendant’s expert acknowledges, if facilities are altered, they “have to comply with

20 the edition of the CBC in effect on the date of their last alteration.” Blackseth Report, Ex. 1 at 1.

21 The CBC requires that -- in addition to the altered area itself -- the path of travel to, and

22 restrooms that serve, the altered area be brought into compliance with the applicable version of

23

24

5

The Americans with Disabilities Act Architectural Guidelines (“ADAAG”) were

25 adopted by the DOJ as its Standards for Accessible Design. See Fortyune v. Am. Multi-Cinema,

Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). As a result, the DOJ Standards are often referred to as 26 the “ADAAG.”

27

6

The DOJ’s Title III regulations are “entitled to deference.” Bragdon v. Abbott,

28 524 U.S. 624, 646 (1998).

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1 the code. CBC § 3112A(a) (1994).7 However, the compliance requirement is limited to the area

2 of alteration only -- and does not extend to the path of travel or restrooms -- where the total cost

3 of the alterations falls below the valuation threshold8 and “the enforcing agency finds that

4 compliance with [the] code creates an unreasonable hardship.” Id., Exception 1. A project is not

5 eligible for this exception unless it applies to the enforcing agency and that agency makes the

6 required findings to grant the exception. See Blackseth Dep. 55-56.

7

A violation of the CBC constitutes a violation of both the CDPA and the Unruh Act. See

8 Moeller, 2007 WL 2301778, at *6. A violation of the ADA -- including a violation of the DOJ

9 Standards where applicable -- also constitutes a violation of both statutes. See Cal. Civ. Code

10 §§ 51(f) & 54(c).

11 II. 12 13

The Undisputed Facts Demonstrate that Plaintiffs Are Entitled to Partial Summary Judgment Concerning Certain Elements In Restaurant 2055.
A. Accessibility Requirements Applicable to Restaurant 2055 on Which this Motion is Based.

14

Restaurant 2055 was constructed in 1977 and thus must comply with ANSI-61. In

15 addition, as determined by Mr. Blackseth, the restaurant was altered in 1997 at a cost of

16 $230,000. Blackseth Report, Ex. 1 at 3. As a result, as acknowledged by Mr. Blackseth, these

17 1997 alterations “triggered the 1997 CBC and ADAAG Alteration standards in the area of

18 alteration, paths of travel, parking and restrooms.” Id., Ex. 1 at 4. These alterations were over

19 the valuation threshold, Blackseth Dep. 63-64, so the restrooms and path of travel were required

20 to comply without limitation.

21

In addition, the altered areas of the restaurant -- which, as demonstrated above, included

22 dining room tables, the parking lot, and the restrooms, see infra at 2-3 -- must comply with the

23 state and federal accessibility requirements in place in 1997. The version of the CBC applicable

24

25

7

Excerpts from 1994 CBC are attached as Exhibit 10 to the Robertson Declaration.

26

8

The valuation threshold is the amount of $50,000 in 1981, adjusted to the current

27

year based on the “ENR US20 Cities” average. CBC § 3112A(a), Exception 1 (1994). This

28 would be $122,000 in 2009. Blackseth Report Ex. 1 at 4.

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1 in 1997 was the 1991 Uniform Building Code as amended effective April 1, 1994. Robertson

2 Decl. Ex. 10. These standards are referred to herein as “CBC-1994.”

3

B. The Ramp to the Front Entrance Does Not Comply With ANSI-61 or CBC-

1994 Because it Does Not Have a Handrail.

4

A path of travel is considered to be a ramp if its slope is greater than one foot of rise in 20

5

feet of horizontal run, or five percent. CBC-1994 § 3307(a.1). Handrails are required at ramps

6

where the slope exceeds five percent. Id. § 3307(e.1).

7

The ramp at the front entrance to Restaurant 2055 slopes eight percent. Blackseth Dep.

8

77 & Ex. 278. Under the CBC, it is required to have handrails. CBC-1994 § 3307(e.1);

9

Blackseth Dep. 77 (“Under the CBC it would have been required to have handrails either way,

10

yes.”). The standards applicable when the restaurant was built also required a handrail on at least

11

one side. ANSI-61 § 5.1.2 (“A ramp shall have handrails on at least one side and preferably two

12

sides. . ..”) (copy provided as Ex. 272 to the Blackseth Deposition, Robertson Decl. Ex. 9).

13

This ramp did not -- when surveyed by Mr. Blackseth in August, 2009 -- have handrails.

14

Blackseth Dep. Ex. 278. Mr. Blackseth agreed that, “without handrails this is . . . a noncompliant

15

condition with the CBC.” Id. at 77-78.

16

C. The Slope of Accessible Parking Spaces and Access Aisles Was Out of

17

Compliance with Applicable Standards As Recently As August 2008.

18

Both the DOJ Standards and the 1994 CBC required that parking lots provide accessible

19 parking spaces and access aisles. DOJ Stds. § 4.1.2(5)(a);9 CBC-1994 § 3107A(a)(1) & A(b)(1).

20 The DOJ Standards limits slope and cross slope of accessible parking spaces to two percent in 21 any direction. DOJ Stds. § 4.6.3.10 The 1994 CBC limits the slope of accessible parking spaces

22 to 2.083%. CBC-1994 § 3107A(b)(4). The dimensional requirements of the DOJ Standards are

23 “subject to conventional building industry tolerances for field conditions.” Id. § 3.2. In its

24

25

9

Excerpts from DOJ Standards are attached as Exhibit 11 to the Robertson

Declaration. 26

10 There are two kinds of slope: “running slope,” which is slope parallel to the 27
direction of travel; and “cross slope,” which is perpendicular to the direction of travel. See DOJ

28 Stds. § 3.5 (definitions); CBC-1994 §§ 404(p.1) & 419(j) (same).

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1 discovery responses, BKC has stated that -- subject to such a tolerance -- slopes and cross slopes

2 of parking spaces and access aisles cannot exceed three percent. Def. Burger King Corp.’s

3 Supplemental Resp. to Pls.’ Third Set of Disc. Reqs. at 6-7 and attached “Burger King

4 Corporation’s Tolerances Chart” at 1 (“BKC’s Tolerance Chart,” Robertson Decl. Ex. 12).

5 Defendant’s August 2008 survey identified several violations of this requirement.

6

The August 2008 Survey recorded multiple slope measurements at the two accessible

7 parking spaces and one access aisle. Id. at BKCPP007716. In one accessible space, two of the

8 three running slope measurements exceeded three percent (3.3% and 4.1%); in the other, all three

9 running slope measurements exceeded three percent (5.4%, 3.3%, and 4.1%.) All three running

10 slope measurements in the access aisle exceeded three percent (4.2%, 3.6%, and 4.2%). Id.

11

Because, as Defendant’s expert has admitted, the parking at Restaurant 2055 was required

12 to be in compliance with the DOJ Standards and CBC standards applicable in 1997, and because

13 the evidence shows that the parking lot itself was redone in 1997, the accessible parking spaces

14 and access aisle were out of compliance when surveyed by UDC in August 2008.

15

D. The Maneuvering Clearance at the Men’s Restroom Door Was Out of

Compliance with Applicable Standards As Recently As January 2009.

16

Doors were required by the 1994 CBC to have at least 60 inches of clear floor space

17

perpendicular to the door on the pull side. CBC-1994 § 3304(i.1)(2)(B) & Fig. 33-2. The ANSI-

18

61 standard required that “[t]he floor on the inside and outside of each doorway shall be level for

19

a distance of 5 feet from the door in the direction the door swings. . .” ANSI-61 § 5.3.2. The

20

DOJ Standards require at least 60 inches where the door is approached from the front, and at

21

least 54 inches if the door is approached from the side and has a closer. DOJ Stds. § 4.13.6 &

22

Fig. 25. The men’s restroom door in Restaurant 2055 pulls open into the restaurant. See

23

Blackseth Report, Ex. 1 at 13, Fig. 3.3. It has a closer. See Robertson Decl. Ex. 1 (photographs

24 taken by Mr. McSwain in November, 2009).11 As such, Restaurant 2055 was required to have 54

25

26

11 Indeed, it is required by state law to have a closer. See Cal. Health & Safety Code 27
§ 114276(c)(1) (“Toilet rooms shall be separated by well-fitted, self-closing doors that prevent

28

(continued...)

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1 or 60 inches of clear floor space perpendicular to the men’s restroom door under the DOJ

2 Standards and 60 inches under the CBC and ANSI-61.

3

Prior to recent alterations in Restaurant 2055, there was a wall approximately 49 inches

4 from the face of the men’s restroom door. August 2008 Survey at BKCPP007720,

5 BKCPP007731 (Photos 2055-0031.jpg and 2055-0032.jpg); January 2009 Survey at

6 BKCPP007743, BKCPP007750 (Photo 2055-10.jpg). This condition violated section

7 3304(i.1)(2)(B) of the 1994 CBC and section 4.13.6 of the DOJ Standards. Although the wall

8 had been removed by the time Mr. Blackseth surveyed the restaurant, he agreed that if there were

9 a wall approximately 50 inches from the face of the restroom door, it would be a noncompliant

10 condition. Blackseth Dep. 66-68, 81.

11

Because, as Mr. Blackseth opined, the restrooms at Restaurant 2055 were required to be

12 in compliance with the DOJ Standards and the CBC standards applicable in 1997, and because

13 the evidence shows that the restrooms themselves were remodeled in 1997, the maneuvering

14 clearance at the men’s restroom door was out of compliance when surveyed by UDC in August,

15 2008, and January, 2009. It was also out of compliance with the ANSI-61 standard, applicable to

16 the store when built.

17

E. The Force Required to Open the Women’s Restroom Door Was Out of

Compliance with Applicable Standards As Recently As January 2009.

18

Both the DOJ Standards and the CBC limit the force required to open an interior door to

19

five pounds. DOJ Stds. § 4.13.11(2)(b); CBC-1994 § 3304(i.2)(1). In its discovery responses,

20

BKC has stated that -- subject to an applicable tolerance -- interior door force cannot exceed six

21

pounds. BKC’s Tolerance Chart at 2.

22

The August 2008 Survey recorded that the force required to open the women’s restroom

23

door was seven pounds. Id. at BKCPP007722. The January 2009 Survey recorded that the

24

required force was ten pounds. Id. at BKCPP07746.

25

26

27

11(...continued)

28 the passage of flies, dust, or odors”).

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1

Because, as Mr. Blackseth opined, the restrooms and path of travel at Restaurant 2055

2 were required to be in compliance with the DOJ Standards and CBC standards applicable in

3 1997, and because the evidence shows that the restrooms themselves were remodeled in 1997,

4 the force required to open the women’s restroom door was out of compliance when surveyed by

5 UDC in August, 2008, and January, 2009.

6

F. The Toilet Stalls in the Men’s and Women’s Restrooms Were Out of

Compliance with Applicable Standards As Recently As August 2008

7

The DOJ Standards require that toilet stalls be at least 60 inches wide and 56-59 inches

8 deep. Id. § 4.17.3 & Fig. 30(a).12 The 1994 version of the CBC required that there be 32 inches

9

of clear space between the side of the water closet and the far wall, and that the centerline of the

10

water closet be 18 inches from the near wall. Id. § 3105A(b)(3)(A)(ii) & Fig. 31-1A. Adding

11

these two requirements together, the stall was required to be at least 32 plus 18 or a total of 50

12

inches wide. The CBC also required 48 inches between the front of the water closet and the front

13

of the stall. Id.

14

The August 2008 Survey recorded that the men’s restroom had a clear floor space at the

15

water closet that was only 42¼ inches wide. Id. at BKCPP007721. That survey recorded that the

16

women’s restroom had a clear floor space at the water closet that was 51¾ inches deep and had

17

only 24 inches of clear floor space in front of the water closet. Id. at BKCPP007723. As such,

18

both toilet stalls were in violation of both the DOJ Standards and the 1994 CBC.

19

20

12 In alterations such as those at issue in Restaurant 2055, where it is technically

21 infeasible or prevented by application of the plumbing code, the alternate stalls depicted in Figure 30(b) may be used. See DOJ Stds. § 4.17.3, Exception. An alteration is “technically

22 infeasible” where

23

it has little likelihood of being accomplished because existing structural conditions would

24

require removing or altering a load-bearing member which is an essential part of the

structural frame; or because other existing physical or site constraints prohibit

25

modification or addition of elements, spaces, or features which are in full and strict

compliance with the minimum requirements for new construction and which are

26

necessary to provide accessibility.

27 DOJ Stds. § 4.1.6(1)(j). Because the stalls in both restrooms now comply, Blackseth Report Ex.
28 1 at 14, this exception does not apply here.

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1

Because, as Mr. Blackseth opined, the restrooms at Restaurant 2055 were required to be

2 in compliance with the DOJ Standards and CBC standards applicable in 1997, and because the

3 evidence shows that the restrooms themselves were remodeled in 1997, the toilet stalls in the

4 men’s and women’s restrooms were out of compliance when surveyed by UDC in August, 2008.

5

G. The Lack of Accessible Seating Was Out of Compliance with Applicable

Standards As Recently As January 2009.

6

The DOJ Standards require that at least five percent of all fixed or built-in seating or

7

tables be accessible. Id. § 4.1.3(18). The 1994 CBC required that dining areas have one

8

wheelchair seating space for every 20 seats. Id. § 3103A(b)(4C); see also id. § 3105A(l)

9

(requiring five percent of fixed seats to be accessible).

10

The August 2008 Survey recorded that none of the 88 seats were accessible. Id. at

11

BKCPP007719; see also January 2009 Survey at BKCPP007742 (zero out of 124 seats

12

accessible).

13

Because the evidence shows that all of the seating was replaced in 1997, it was required

14

to comply with the DOJ Standards and CBC standards applicable in 1997. The fact that there

15

was no accessible seating when the restaurant was surveyed in August, 2008, and January, 2009,

16

demonstrates a violation of applicable standards.

17

CONCLUSION

18

For the reasons set forth above, Plaintiffs respectfully request that this Court enter partial

19

summary judgment holding that the following elements were out of compliance with applicable

20

standards during the class period:

21

! The ramp to the front entrance;

22

! The slope of the required accessible parking spaces;

23

! The force required to open the women’s restroom door;

24

! The maneuvering clearance at the men’s restroom door;

25

! The men’s and women’s toilet stalls; and

26

! The lack of accessible seating.

27

28

Case No. C 08-4262 WHA (JL) Plaintiffs’ Motion for Partial Summary Judgment

Page 12

Case3:08-cv-04262-WHA Document299 Filed02/11/10 Page19 of 19

1 Respectfully submitted,
2 FOX & ROBERTSON, P.C.
3 By: /s/ Amy F. Robertson
4 Amy F. Robertson
5 Timothy P. Fox Fox & Robertson, P.C.
6 104 Broadway, Suite 400 Denver, CO 80203
7 Bill Lann Lee
8 Andrew Lah Julia Campins
9 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 1330 Broadway, Suite 1800
10 Oakland, CA 94612
11 Mari Mayeda P O Box 5138
12 Berkeley, CA 94705
13 Attorneys for Plaintiffs
14 Dated: February 11, 2010
15
16
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18
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22
23
24
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Case No. C 08-4262 WHA (JL) Plaintiffs’ Motion for Partial Summary Judgment

Page 13

 
 Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page1 of 14

1 GENOVESE, JOBLOVE & BATTISTA, P.A.

MICHAEL D. JOBLOVE (admitted pro hac vice)

2 JONATHAN E. PERLMAN (admitted pro hac vice)

100 S.E. Second Street, 44th Floor

3 Miami, FL 33131

Telephone: (305) 349-2300 4 Facsimile: (305) 349-2310

Email: mjoblove@gjb-law.com

5

jperlman@gjb-law.com

6 GLYNN & FINLEY, LLP

7

CLEMENT L. GLYNN, Bar No. 57117 ADAM FRIEDENBERG, Bar No. 205778

8

One Walnut Creek Center 100 Pringle Avenue, Suite 500

9

Walnut Creek, CA 94596 Telephone: (925) 210-2800

10

Facsimile: (925) 945-1975 Email: cglynn@glynnfinley.com

11

afriedenberg@glynnfinley.com

12 Attorneys for Defendant Burger King Corporation

13

14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 15

16 MIGUEL CASTANEDA, KATHERINE )

CORBETT, and JOSEPH WELLNER, on ) 17 behalf of themselves and others similarly )

18 situated,

) )

19

Plaintiffs,

) )

20

vs.

) )

21

) )

22 BURGER KING CORPORATION,

) )

23

Defendant.

)

____________________________________)

24

Case No. C 08-04262 WHA (JL)

DEFENDANT BURGER KING CORPORATION’S NOTICE OF MOTION, MOTION FOR PARTIAL SUMMARY JUDGMENT, AND MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time: Before: Location:

March 18, 2010 8 a.m. Hon. William H. Alsup Courtroom 9, 19th Floor

25

TO PLAINTIFFS MIGUEL CASTANEDA, KATHERINE CORBETT, and JOSEPH

26 WELLNER, and THEIR ATTORNEYS OF RECORD:

27

PLEASE TAKE NOTICE that on March 18, 2010, at 8:00 a.m., or as soon thereafter as the

28 matter may be heard by the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco,

_________________________________________________i ________________________________________________
Case No. C 08-04262 WHA (JL)
BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page2 of 14

1 California, Defendant Burger King Corporation (“BKC”) will bring on for hearing this motion for

2 partial summary judgment pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.

3

By this motion, BKC seeks partial summary judgment as to:

4

(i) Plaintiffs’ claims for damages under state accessibility statutes, because it is beyond

5 legitimate dispute that BKC, which does not operate the restaurants at issue, did not cause,

6 encourage, aid or abet discrimination against the disabled, as the statutes require for damages claims;

7 and

8

(ii) Plaintiffs’ claims under the Americans with Disabilities Act (the “ADA”) based on the

9 design and original construction of the restaurants, because it is undisputed that all ten restaurants

10 were designed and constructed prior to the January 26, 1993 effective date of the new construction

11 provisions of the ADA; accordingly, Plaintiffs cannot assert such claims against any of these

12 restaurants.

13

This motion is based upon this Notice of Motion and Motion and this Memorandum of Points

14 and Authorities and exhibits hereto, all orders, pleadings and papers on file in this action, and upon

15 such other matters of which the Court may take judicial notice or which may be presented to the

16 Court at the time of hearing.

17

18

19

20

21

22

23

24

25

26

27

28

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1 2 3 I. 4 II. 5 6 7 III. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IV. 27 28

TABLE OF CONTENTS
INTRODUCTION…………………………………………………………………… FACTUAL BACKGROUND……………………………………………………….. A. The Relationship Between BKC and the Franchisees/Lessees……………… B. The Class Certification Order……………………………………………….. DISCUSSION………………………………………………………………………. A. Standard for Summary Judgment…………………………………………… B. BKC Is Entitled to Summary Judgment as to Plaintiffs’
State Law Claims…………………………………………………………….. 1. Unruh and CDPA Claims for Damages May Only Be
Asserted Against Persons Who Engaged in or Fostered Discrimination……………………………………………… 2. BKC Has not Engaged in, Encouraged or Aided in Discrimination………………………………………………………. 3. The Amendments to State Law Providing That a Violation of the ADA Constitutes a Violation of State Law Confirm That Conduct That Causes or Aids Discrimination Is Required under the Unruh Act and the CDPA…………………….. 4. The Decision Not to Impose Strict Liability for Damages Against Anyone Who Has Any Interest in the Property Accords with Public Policy………………………………………… C. BKC Is Entitled to Summary Judgment on Plaintiffs’ Title III ADA “Design and Construction” Claims Because All Ten Restaurants Predate the ADA……………………………………………… CONCLUSION…………………………………………………………………….

PAGE 1 1 1 3 4 4 4
4 6
7
8
9 10

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BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

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1

TABLE OF AUTHORITIES

2 CASES

3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986)…………………………………

4 Botosan v. Fitzhugh, 13 F. Supp. 2d 1047 (S.D. Cal. 1998)…………………………..

5 Botosan v. Paul McNally Realty, 216 F.3d 827(9th Cir. 2000)……………………….

6 Brown v. Kelly Broadcasting Co., 771 P.2d 406 (Cal. 1989)…………………………

7 Celotex Corp. v. Catrett, 477 U.S. 317 (1986)………………………………………..

8 In re Christian S., 7 Cal. App. 4th 768 (Cal. Ct. App. 1994)…………………………

9 Independent Living Resources v. Or. Arena Corp., 982 F. Supp. 698 (D. Or. 1997),

10

supplemented on other grounds, 1 F. Supp. 2d 1159 (D. Or. 1998)………….

11 Jurcoane v. Superior Ct., 93 Cal. App. 4th 886 (Cal. Ct. App. 2001)……………….

12 Munson v. Del Taco, Inc., 208 P.3d 623 (Cal. 2009)………………………………..

13

14 OTHER AUTHORITIES

15 42 U.S.C. § 12182(a)…………………………………………………………………

16 42 U.S.C. § 12183(a)(1)………………………………………………………………

17 Fed. R. Civ. P. 56……………………………………………………………………..

18 Cal. Civ. Code §§ 51 – 51.15………………………………………………………….

19 Cal. Civ. Code § 51(f)…………………………………………………………………

20 Cal. Civ. Code § 52……………………………………………………………………

21 Cal. Civ. Code § 52(a)…………………………………………………………………

22 Cal. Civ. Code §§ 54, 54.1……………………………………………………………..

23 Cal. Civ. Code § 54(c)…………………………………………………………………

24 Cal. Civ. Code § 54.3………………………………………………………………….

25 Assem. Judiciary Rep. on Assem. Bill No. 1077 (1991-1992 Reg. Sess.) at p. 2…….

26 Sen. Com. On Judiciary, Rep. on Assem. Bill 1077 (1991-1992 Reg. Sess.),

27

as amended June 1, 1992, p. 5).........................................................................

28

PAGE 4 8 8-9 7-8 4 7
8 7 5, 8
5 5,9 4 1 7 1 5, 7 6 7 6, 7 7
7

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Case No. C 08-04262 WHA (JL)
BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page5 of 14

1 I. INTRODUCTION

2

BKC seeks summary judgment as to the statutory damages claims Plaintiffs have asserted

3 against BKC under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51 - 51.15 (the “Unruh Act”), and

4 the California Disabled Persons Act, Cal. Civ. Code § 52 (the “CDPA”). Both statutes provide that

5 damages are only available from defendants who have engaged in discriminatory conduct or have

6 encouraged or aided such conduct. No facts suggesting that BKC engaged in such conduct exist. To

7 the contrary, the evidence that BKC has always fully supported compliance with all accessibility laws

8 is uncontroverted. Indeed, BKC’s agreements with its franchisees require that they design, construct,

9 operate and maintain their restaurants in compliance with all applicable access laws. And it is beyond

10 legitimate dispute that, to the extent any class member has been subjected to an accessibility barrier

11 within the class period, the barrier was maintained by a franchisee, and not by BKC. Because it is

12 uncontroverted that BKC has not engaged in the discriminatory conduct prohibited by the California

13 statutes, BKC is entitled to judgment on Plaintiffs’ state-law damages claims, as a matter of law.

14

BKC also seeks summary judgment as to Plaintiffs’ claims that the restaurants were not

15 designed and constructed in compliance with Title III of the ADA, because it is undisputed that all ten

16 restaurants at issue were designed and constructed years before the ADA was enacted, and,

17 accordingly, were not required to comply with ADA standards.

18 II. FACTUAL BACKGROUND

19

A. The Relationship Between BKC and the Franchisees/Lessees

20

BKC is the franchisor of Burger King® restaurants selling hamburgers and related fast-food

21 items, approximately 600 of which are located in California. (Docket No. 226 at 2).1 BKC has never

22 operated any of the Burger King® restaurants located in California. (Docket No. 30 ¶¶ 2, 3).2 Instead,

23 all California Burger King® restaurants are operated and maintained by independent franchisees.

24

25 1 Where possible, BKC bases its recitation of the facts on factual findings made by the Court in

26

connection with its September 25, 2009 Order Granting Class Certification As To Ten Burger King Stores And Otherwise Denying Class Certification. (Docket No. 226).

27 2 Docket No. 30 is the Declaration filed on November 26, 2008 by BKC’s Director and Senior 28 Attorney Thomas G. Archer in support of BKC’s Motion to Dismiss.

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BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page6 of 14

1 (Docket No. 30 ¶ 3). This litigation relates to ten franchised California restaurants that BKC leased or

2 subleased to franchisees during the class period (the “BKLs”), each of which allegedly was visited by

3 a named Plaintiff and is the subject of a separate class certified by this Court. (Docket No. 226 at 2,

4 27).

5

BKC’s relationship with the franchisees/lessees of the BKLs is governed primarily by two

6 contracts – a franchise agreement and a lease agreement. (Docket No. 226 at 6).3 The contract

7 provisions setting out the responsibilities of BKC and the franchisees/lessees are substantially the 8 same with respect to the ten restaurants at issue. (Docket No. 226 at 6; Docket No. 148 ¶ 4).4

9 Pursuant to their leases, the franchisees/lessees are required, at their own cost and expense, to operate

10 the restaurants, to maintain the restaurants in good order, to obtain all necessary licenses and permits,

11 and to otherwise promptly observe and fully comply with all applicable laws and regulations,

12 including specifically the ADA. (Docket No. 226 at 8; Docket No. 148 ¶ 4, and Exs. A-E at §§ 5.1, 13 5.2, 5.7).5 Indeed, this Court previously recognized that the franchisees “operate and maintain the

14 facilities in question” and that the stores at issue are “under their control.” (Docket No. 226 at 27).

15

BKC required each of the franchisees/lessees to contract independently at their own expense

16 for local architectural and engineering services, to create their own blueprints and construction or

17 remodeling plans for their own restaurants, and to ensure that those plans and blueprints complied with

18 applicable building codes and accessibility laws. (Docket No. 226 at 6-8; Docket No. 148 ¶ 4 and Exs.

19 A-E at §§ 5.2, 5.3, 5.7). Upon request, BKC occasionally provides informational drawings that a

20 franchisee’s architects or engineers may use as a starting point in designing a new restaurant for the

21 franchisee. (Docket No. 226 at 6). However, even then, BKC expressly required the franchisees to

22 ensure that their final plans complied with all local government standards, including accessibility laws.

23
24 3 BKC is a mere sublessor to some franchisees and a direct lessor to others. (Docket No. 226 at 2). Subleases and leases are referred to collectively herein as “leases.”
25 4 Docket No. 148 is the Declaration filed by Mr. Archer on July 31, 2009 in support of BKC’s Motion
26 to Add the Franchisees As Additional Defendants.

27 5 The leases for the five BKLs expressly identified in Plaintiffs’ Amended Complaint were attached as

28

Exs. A-E of Mr. Archer’s July 31, 2009 Declaration. BKC’s standard Franchise Agreement was attached as Exhibit F.

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Case No. C 08-04262 WHA (JL)
BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page7 of 14

1 (Docket No. 226 at 6). As the Court previously noted, these drawings:

2

required no particular feature that would constitute an ADA violation. . . .

In other words, [BKC] insisted that the franchisees build out their stores in

3

compliance with disability laws and did not dictate the specifics.

4 (Docket No. 226 at 6-7). In fact, BKC’s drawings are reviewed for compliance with ADA

5 requirements by a nationally recognized accessibility consulting firm, and Plaintiffs, who received

6 copies of the drawings in discovery, have not claimed that any of them violate those standards.

7

BKC’s franchise agreements and other operational documents, such as its Operations (“Ops”)

8 Manuals and Image standards, require periodic upgrades and remodeling work to be done to the 9 restaurants. (Docket No. 182 ¶¶ 10, 11; Docket No. 183 ¶ 8).6 BKC does not provide informational

10 plans for remodels; instead, BKC requires the franchisees to develop any needed plans and to ensure

11 that such plans comply with applicable building codes and accessibility laws. (Docket No. 182 ¶ 10).

12 Moreover, in connection with such remodels, BKC requires the franchisees to provide BKC with a

13 registered architect’s or professional engineer’s certification confirming that, after completion of the

14 remodel, the restaurant complies with the ADA. (Docket No. 182 ¶ 11 and Ex. 2).

15

Consistent with the fact that the franchisees accept full responsibility for compliance with

16 accessibility laws, they indemnify BKC for any litigation-related costs or expenses that BKC might

17 incur relating to the conditions of their restaurants. (Docket No. 148, Exs. A-E, § VII).

18

B. The Class Certification Order

19

In its ruling on Plaintiffs’ class certification motion based on this evidence, this Court found

20 that Plaintiffs “failed to make the case the Burger King Corporation has any common offending

21 policies or design characteristics that called for common accessibility barriers at different restaurants.”

22 (Docket No. 226 at 14). The Court also rejected Plaintiffs’ newly-minted claim that BKC was liable

23 for accessibility violations at the leased restaurants because of BKC’s alleged “failure to enforce

24 compliance with accessibility standards” which the Court characterized as a claimed “failure of

25 oversight:”

26

27

28

6 Docket No. 182 is the Declaration of BKC’s Construction Manager Jim McGrory filed august 21, 2009 in opposition to Plaintiffs’ motion for class certification.

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BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page8 of 14

1

[I]t is no answer that Burger King Corporation may have nondelegable

liability [under the ADA] as a lessor. That is the easy part of the case.

2

The hard part, which cannot be escaped, is the extent to which the ADA

and state laws were violated in the first place, if at all.

3

4 (Docket No. 226 at 17). Thus, this Court distinguished between the question of whether a violation

5 existed and the question of who was liable if a violation existed. That distinction is crucial to a

6 determination as to whether BKC is entitled to summary judgment on Plaintiffs’ state law claims.

7 III. DISCUSSION

8

A. Standard for Summary Judgment

9

In considering a motion for summary judgment, the Court must determine if there are any

10 genuine issues of material fact that preclude judgment as a matter of law to the moving party. Fed. R.

11 Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination,

12 all reasonable inferences must be drawn in favor of the nonmoving party. Id. at 256. In order to

13 survive summary judgment, the non-movant must present more than “mere allegations.” Id. at 248.

14 Instead, the non-movant must come forward with specific factual evidence to establish the existence of

15 each element essential to his case on which he will bear the burden at trial. Celotex Corp. v. Catrett,

16 477 U.S. 317, 320 (1986). In other words, the non-movant must show, by affidavits or as otherwise

17 provided in Rule 56, that there are “genuine factual issues that properly can be resolved only by a

18 finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S.

19 at 250. Absent such a showing, the movant is entitled to summary judgment as a matter of law.

20

Here, BKC is entitled to summary judgment as to Plaintiffs’ state law claims because there is no

21 legitimate dispute that BKC has done nothing that violates or fosters a violation of those laws. BKC

22 also is entitled to summary judgment as to Plaintiffs’ ADA-based design and construction claims

23 because it is undisputed that they were designed and constructed years before the ADA was enacted

24 and therefore were not required to comply with the ADA’s new construction standards.

25

B. BKC Is Entitled to Summary Judgment as to Plaintiffs’ State Law Claims

26

1. Unruh and CDPA Claims for Damages May Only Be Asserted Against

Persons Who Engaged in or Fostered Discrimination 27

28

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Case No. C 08-04262 WHA (JL)
BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page9 of 14

1

The statutory schemes of the three disability access laws at issue in this litigation are similar:

2 each includes: (1) a section defining the acts that constitute the prohibited discrimination (the “rights”

3 section), and (2) a section identifying the parties who may be sued and the remedy against such

4 person(s) if a prohibited act of discrimination occurs (the “remedy” section).

5

The ADA’s rights section defines the discriminatory acts, in relevant part, as the failure to

6 design and construct new buildings, alter existing buildings, or remove architectural barriers from

7 existing buildings, when required to do so. 42 U.S.C. §§ 12183(a)(1), (2); 42 U.S.C. § 12182(a). The

8 specific architectural standards that such buildings must meet are set forth in an appendix to the ADA

9 called the ADA Accessibility Guidelines or “ADAAG.” Under the ADA’s remedy provision, a claim

10 for injunctive relief as to any such act of discrimination may be brought against “any person who

11 owns, leases (or leases to), or operates” the public accommodation at issue. 42 U.S.C. § 12182(a).

12 Accordingly, BKC does not contest Plaintiffs’ right to name it as a defendant on their ADA claims,

13 based on its status as a lessor, even though any accessibility violations that might exist would have

14 been caused by the franchisees/lessees that operate the restaurants, and not by BKC.

15

The Unruh Act defines the types of discrimination prohibited by it in Sections 51 through

16 51.15 of the Act, and expressly precludes businesses such as restaurants from discriminating on the

17 basis of disability in Section 51.5. See Cal. Civ. Code §§ 51 – 51.15. The separate “remedy” section

18 of the Act identified the parties that can be sued for violations of the Act. It expressly limits liability

19 to: “Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to

20 Section 51 [or] 51.5.” Cal. Civ. Code § 52(a).

21

Separate provisions describing the right not to be subjected to discrimination versus the

22 remedy applicable to such discrimination have existed since the Act’s enactment in 1905:

23

While section 51’s statement of the substantive scope of protections

afforded and section 52’s statement of the remedies available have both

24

changed over the course of time, section 51 has always provided

substantive protection against invidious discrimination in public

25

accommodations, without specifying remedies, and section 52 has always

provided remedies, including a private action for damages, for violations

26

of section 51.

27 Munson v. Del Taco, Inc., 208 P.3d 623, 626 (Cal. 2009).

28

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1

Similarly, the CDPA sets forth the right of the disabled to be free from discrimination,

2 including in restaurants, in Section 54 of the Act. Cal. Civ. Code §§ 54, 54.1. Like the Unruh Act, the

3 CDPA was drafted with a separate “remedy” section that identifies who can be sued for violations of

4 the CDPA in terms of their discriminatory actions: “Any person or persons, firm or corporation who

5 denies or interferes with admittance to or enjoyment of the public facilities as specified in Sections 54

6 and 54.1 or otherwise interferes with the rights of an individual with a disability under Sections 54 [or]

7 54.1.” Cal. Civ. Code § 54.3.

8

Thus, unlike Title III of the ADA, which imposes status-based strict liability for injunctive

9 relief against every person who owns, operates, or leases a place of public accommodation that

10 currently contains accessibility barriers, both California statutes impose damages liability only against

11 persons who have actually engaged in discriminatory conduct or have encouraged/aided such conduct.

12

2. BKC Has Not Engaged in, Encouraged or Aided in Discrimination

13

Here, no evidence exists to support a claim that BKC engaged in, encouraged, or aided in the

14 types of discriminatory conduct required to establish an Unruh or CDPA claim against BKC. It is

15 undisputed that, at all relevant times, all ten restaurants were possessed, operated and maintained by

16 franchisees -- not by BKC. It is also undisputed that the franchisees have always been contractually

17 obligated to ensure that the restaurant and its operations complied with all applicable accessibility

18 laws. (See Docket No. 226 at 6-8; Docket No. 148 ¶ 4 and Exs. A-E at §§ 5.2, 5.3, 5.7). Indeed, this

19 Court has already found that the franchisees, not BKC, operated and maintained the restaurants.

20 (Docket No. 226 at 2).

21

It also is undisputed that BKC did not require that the restaurants be built according to a

22 common architectural design or impose any common policies or other obligations on the

23 franchisees/lessees that constituted or required a violation of accessibility laws. (Docket No. 226 at 6-

24 8, 15-16). On the contrary, in the numerous documents governing the relationship between BKC and

25 the franchisees/lessees and their respective obligations – including but not limited to the franchise

26 agreements, the leases, the Ops Manuals, and the Image manuals and standards – BKC repeatedly

27 required that the franchisees/lessees comply with all applicable accessibility standards. (See, e.g.,

28 Docket No. 148 ¶ 4 and Exs. A-E at §§ 5.2, 5.3, 5.7; Docket No. 182 ¶¶ 10, 11; Docket No. 183 ¶ 8).

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Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page11 of 14

1

BKC even required franchisees that remodeled their restaurants to submit a compliance

2 certificate, signed by a California-licensed architect or engineer, certifying that the building as

3 remodeled complied with the accessibility laws. (Docket No. 182 ¶ 11 and Ex. 1). Accordingly, BKC

4 did not “deny, aid or incite a denial, or make any discrimination or distinction contrary to” Sections 51

5 or 51.5 of the Unruh Act, Cal. Civ. Code § 52(a), nor did BKC “deny or interfere with” any Plaintiffs’

6 “admittance to or enjoyment of” any Burger King® restaurant. Cal. Civ. Code § 54.3. Thus, even if

7 some of the restaurants failed to satisfy a state accessibility standard at some point in time, only the

8 franchisees -- and not BKC -- could be subject to liability under Unruh or CDPA for that failure.

9

3. The Amendments to State Law Providing That a Violation of the ADA

Constitutes a Violation of State Law Confirm That Conduct That Causes

10

or Aids Discrimination Is Required Under the Unruh Act and the CDPA

11

After the ADA was enacted, the California legislature amended the Unruh Act and the CDPA

12 to provide that “[a] violation of the right of an individual under the Americans with Disabilities Act of

13 1990 (Public Law 101-336) also constitutes a violation of this section.” Cal. Civ. Code §§ 51(f),

14 54(c). Significantly, the legislature inserted this language into the rights sections of the Unruh Act and

15 the CDPA, and not in the sections describing who may properly be sued and the remedies available.

16 The reason for this is self-evident -- the Legislature merely desired to ensure that Unruh and CDPA

17 incorporated ADAAG standards for each element of a public accommodation, to the extent that the

18 California Building Code, Title 24, did not impose a tougher standard. (Assem. Judiciary Rep. on

19 Assem. Bill No. 1077 (1991-1992 Reg. Sess.) at p. 2; Sen. Com. On Judiciary, Rep. on Assem. Bill

20 1077 (1991-1992 Reg. Sess.), as amended June 1, 1992, p. 5).

21

The legislature’s decision not to amend the statutes’ separate “remedy” sections to copy the

22 ADA’s status-based prescription for liability must be presumed intentional. Jurcoane v. Superior Ct.,

23 93 Cal. App. 4th 886, 894 (Cal. Ct. App. 2001) (courts must “presume the Legislature intended

24 everything in a statutory scheme, and … should not read statutes to … include omitted language”); In

25 re Christian S., 7 Cal. App. 4th 768, 776 (Cal. Ct. App. 1994) (“we are aware of no authority that

26 supports the notion of legislation by accident”). If the Legislature had intended to make landlords and

27 lessors liable for damages under state law based solely on their status, it “could have used the same

28 clear language” as it did in making violations of the ADA violations of state law. Brown v. Kelly

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1 Broadcasting Co., 771 P.2d 406, 413 (Cal. 1989) (“It is a well recognized principle of statutory

2 construction that when the Legislature has carefully employed a term in one place and has excluded it

3 in another, it should not be implied where excluded”). Thus, both the express language of the relevant

4 statutes and time-honored principles of statutory construction support the conclusion that the

5 amendment to the “rights” sections of the state laws, to include violations of the ADA as violations of

6 state law, was meant only to address what constitutes a violation of law, and not who can be sued for

7 that violation.

8

The California Supreme Court’s recent decision in Munson also mandates this conclusion. As

9 the Court noted, the provision making a violation of the ADA a violation of state law was added to the

10 “rights” section of the Unruh Act that defined the prohibited conduct, but did not change the section of

11 the law defining the remedy and the persons liable:

12

[S]ubdivision (f) of section 51 states only that an ADA violation is also “a

violation of this section,” i.e., of section 51. Section 51 does not, in

13

itself, establish any remedy for its violation. And section 52 does not

expressly state that its remedies apply to every “violation of section

14

51.” Instead, section 52 applies its remedies to any person who

“denies, aides or incites a denial, or makes any discrimination or

15

distinction contrary to Section 51.”

16 208 P.3d at 629 (emphasis added). Thus, the Court made clear that, although a violation of section 51

17 may not require proof of intentional discrimination, the addition of ADA violations to the list of

18 violations in section 51 did nothing to change the remedy set forth in section 52. Id. at 629-30.

19

4. The Decision Not to Impose Strict Liability for Damages Against Anyone

20

Who Has Any Interest in the Property Accords with Public Policy

21

Policy considerations also support the conclusion that damages claims cannot be asserted

22 against BKC in this case. Several courts have stated that it “makes sense as a matter of policy” in the

23 context of a remedial statute that provides only for injunctive relief, but not damages, to hold both the

24 landlord and the tenant responsible for ADA violations in leased premises. Botosan v. Fitzhugh, 13 F.

25 Supp. 2d 1047, 1054 (S.D. Cal. 1998). See also Independent Living Resources v. Or. Arena Corp.,

26 982 F. Supp. 698, 768 (D. Or. 1997), supplemented on other grounds, 1 F. Supp. 2d 1159 (D. Or.

27 1998) (“From an enforcement standpoint, making the landlord liable for the tenant’s violations

28 effectively enlists the landlord’s help in monitoring compliance on its premises”); Botosan v. Paul

________________________________________________8_________________________________________________
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Case3:08-cv-04262-WHA Document301 Filed02/11/10 Page13 of 14

1 McNally Realty, 216 F.3d 827, 833 (9th Cir. 2000) (noting “significant policy reasons” for prohibiting

2 owners of public accommodations from “contract[ing] away liability” by “leasing to smaller entities

3 for which ADA compliance would not be ‘readily achievable’”). Such status-based liability ensures

4 maximum compliance with accessibility requirements via injunctive relief without imposing a penalty

5 upon a party who was not responsible for the violation.

6

But it makes no sense, and establishes no useful incentives, for the law to compel someone

7 who did not engage in discrimination to pay damages. Such a result would be unfairly punitive, and

8 would constitute the imposition of an unlawful fine.

9

For all of these reasons, on the factual record before the Court, BKC is not liable for damages

10 to Plaintiffs under the Unruh Act or the CDPA for the barriers Plaintiffs claim to have encountered, as

11 a matter of law. Accordingly, the Court should enter summary judgment in BKC’s favor on Plaintiffs’

12 Unruh and CDPA claims.

13

C. BKC Is Entitled To Summary Judgment on Plaintiffs’ Title III ADA “Design and

Construction” Claims Because all Ten Restaurants Predate the ADA

14

15

Title III of the ADA contains three separate types of claims applicable to places of public

16 accommodation such as restaurants, depending upon when the buildings were built or remodeled. The

17 requirements for new construction are applicable only to buildings constructed after January 26, 1993.

18 See 42 U.S.C. § 12183(a)(1) (all buildings constructed after January 26, 1993 must be designed and

19 constructed in compliance with ADA standards).

20

In the First Claim for Relief in their Amended Complaint, Plaintiffs assert a “design and

21 construction” claim against BKC. (See Docket No. 72 ¶ 58c). The express language of the ADA’s

22 design and construction requirement specifies that it applies only to “buildings constructed after

23 January 26, 1993.” 42 U.S.C. § 12183(a)(1). Moreover, Plaintiffs concede that the new construction

24 standard does not apply to restaurants constructed prior to January 26, 1993. (Docket No. 299 at 5).

25

It is undisputed that all ten of the restaurants as to which classes have been certified were

26 constructed in the 1970s and 1980s, long before the ADA was enacted in 1990 and certainly well

27 before the January 26, 1993 effective date of the ADA’s “design and construction” requirement. (See

28

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1 Docket No. 183, Ex. 1).7 Because all of the buildings at issue were constructed well before January

2 26, 1993, the express language of the statute precludes any “design and construction” claims with

3 respect to these restaurants. Accordingly, BKC is entitled to summary judgment as to all “design and

4 construction” claims under the ADA, as a matter of law.

5

CONCLUSION

6

For the reasons set forth herein, BKC is entitled to partial summary judgment as to:

7

(i) Plaintiffs’ claims for damages under the California Unruh Civil Rights Act;

8

(ii) Plaintiffs’ claims for damages under the California Disabled Persons Act; and

9

(iii) Plaintiffs’ claims under the ADA based on the design and construction of the

10 restaurants.

11

Dated: February 11, 2010

12

GENOVESE JOBLOVE & BATTISTA, P.A.

13

Michael D. Joblove (pro hac vice)

Jonathan E. Perlman (pro hac vice)

14

Bank of America Tower, 44th Floor

100 S.E. Second Street

15

Miami, Florida 33131

16

GLYNN & FINLEY, LLP

17

Clement L. Glynn Adam Friedenberg

18

One Walnut Creek Center 100 Pringle Avenue, Suite 500

19

Walnut Creek, CA 94596

20

21

By: /s/ Michael D. Joblove _______

Michael D. Joblove (pro hac vice)

22

Attorneys for Defendant Burger King

23

Corporation

24 2000-491/#3592 v.1 25

26 7 Exhibit 1 to Docket No. 183 is a chart listing, among other things, the dates on which the BKLs at

27

issue were built. As this Court noted in its class certification order (Docket No. 226 at 7), 88 of the 96 restaurants that BKC leased to franchisees during the class period “were constructed before the ADA

28

became effective as to newly-constructed buildings in January 1993.” The ten restaurants as to which classes have been certified are among them.

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Case No. C 08-04262 WHA (JL)
BKC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

 
 Case3:08-cv-04262-WHA Document321 Filed02/25/10 Page1 of 19

1 Bill Lann Lee – CA State Bar No. 108452
Andrew Lah – CA State Bar No. 234580
2 Julia Campins – CA State Bar No. 238023
LEWIS, FEINBERG, LEE, RENAKER & JACKSON,
3 P.C.
1330 Broadway, Suite 1800
4 Oakland, CA 94612
Telephone: (510) 839-6824
5 Facsimile: (510) 839-7839
Email: blee@lewisfeinberg.com
6
Timothy P. Fox - CA State Bar No. 157750
7 Amy Robertson (pro hac vice)
FOX & ROBERTSON, P.C.
8 104 Broadway, Suite 400
Denver, CO 80203
9 Telephone: (303) 595-9700
Facsimile: (303) 595-9705
10 Email: tfox@foxrob.com

Mari Mayeda - CA State Bar No. 110947 P O Box 5138 Berkeley, CA 94705 Telephone: (510) 848-3331 Facsimile: (510) 841-8115 Email: marimayeda@earthlink.net

11 Attorneys for Plaintiffs

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14 MIGUEL CASTANEDA, KATHERINE CORBETT, and JOSEPH WELLNER on
15 behalf of themselves and others similarly situated,
16 Plaintiffs,
17 vs.
18 BURGER KING CORPORATION,
19 Defendant.
20

) Case No. C 08-4262 WHA (JL)

)

)

) PLAINTIFFS’ OPPOSITION TO

) DEFENDANT BURGER KING

) CORPORATION’S MOTION FOR

) PARTIAL SUMMARY JUDGMENT

)

) Hearing Date: March 18, 2010

) Time:

8:00 a.m.

)

)

)

21

22

23

24

25

26

27
Case No. C 08-4262 WHA (JL) Plaintiffs’ Opposition to Defendant Burger King Corporation’s
28 Motion for Partial Summary Judgment

Case3:08-cv-04262-WHA Document321 Filed02/25/10 Page2 of 19

1

TABLE OF CONTENTS

2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3

4 Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

5 I.
6

Complaints About Access Violations in Burger King Restaurants . . . . . . . . . . . . . . . . . . 2

7 II. 8

Defendant’s Response To Complaints Of Access Violations In Burger King Restaurants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

9 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10 I.
11

Summary Judgment Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

12 II. 13

Violations of the ADA Constitute Violations of Unruh and the CDPA Without Any Additional Showing That The Defendant Aided or Caused The Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

14 III.
15
16

As a Matter of Law, Even for CDPA and Unruh Claims That Are Not Premised On ADA Violations, Plaintiffs Need Not Establish Defendant’s Active Participation In Discriminatory Acts . . . . . . . . . . . . . . . . . . . . . . . . . 9

17 IV. There Are Disputed Issues of Material Fact as to Whether Defendant

Interfered with or Denied Rights Secured by the CDPA or Unruh,

18

or Aided or Incited a Denial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

19 V.
20

Plaintiffs Do Not Dispute That The Ten BKL Restaurants Currently At Issue Are Not Subject To The ADA’s New Construction Requirements . . . . . . . . . . . . . . . . . 14

21 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
22

23

24

25

26

27

28
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1

TABLE OF AUTHORITIES

2 Cases

3 Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4

Annamaria M. v. Napa Valley Unified School District,

5

2006 WL 1525733 (N.D. Cal. May 30, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

6 Botosan v. Fitzhugh,

13 F. Supp. 2d 1047 (S.D. Cal. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

7

Botosan v. Paul McNally Realty,

8

216 F.3d 827 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11

9 Castaneda v. Burger King Corp.,

--- F.R.D. ---, 2009 WL 3151168 (N.D. Cal. Sept. 25, 2009) . . . . . . . . . . . . . . . . . . . . . 9

10

Celotex Corp. v. Catrett,

11

477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

12 Clark v. Burger King Corp.,

02-cv-246 (JEI) (D.N.J., January 22, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

13

Day v. Republic Foods, Inc.,

14

95-cv-1317 (D.D.C. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

15 Degroote v. Burger King 9156,

02-cv-0800 (JFS) (S.D. Cal. April 26, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

16

Eastman Kodak Co. v. Image Technical Services, Inc.,

17

504 U.S. 451 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

18 Harris v. Capital Growth Investors XIV,

278 Cal. Rptr. 614 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

19

Harris v. Itzhaki,

20

183 F.3d 1043 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

21 Hodges v. El Torito Restaurants, Inc.,

1998 WL 95398 (N.D. Cal. Feb. 23, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

22

Michelle M. v. Dunsmuir Joint Union School District,

23

2006 WL 2927485 (E.D. Cal. Oct. 12, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

24 Munson v. Del Taco, Inc.,

208 P.3d 623 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 8, 9

25

Nicole M. v. Martinez Unified School District,

26

964 F. Supp. 1369 (N.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

27 Organization for the Advancement of Minorities with Disabilities v. Burger King,

99-cv-2302 (IEG) (S.D. Cal. Oct. 27, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28

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Motion for Partial Summary Judgment

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1 Spikes v. Burger King,

00-cv-00566 (AJB) (S.D. Cal., March 17, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2

Wong v. Sacca, Corp.,

3

01-cv-4289 (BZ) (N.D. Cal., Nov. 16, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4

Statutes

5

Title III of the Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

6

42 U.S.C. § 12183(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

7

Unruh Civil Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

8

Cal. Civ. Code § 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

9

Cal. Civ. Code § 51(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cal. Civ. Code § 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10

California Disabled Persons Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

11

Cal. Civ. Code § 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

12

Cal. Civ. Code § 54(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cal. Civ. Code § 54.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

13

14 Regulations

15 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
16 28 C.F.R. § 36.406(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
17

18 Rules

19 The Federal Rules of Civil Procedure

20

Rule 56(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

21

22

23

24

25

26

27

28
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1

INTRODUCTION

2

Plaintiffs, by and through their counsel, hereby submit their Opposition to Defendant

3 Burger King Corporation’s Motion for Partial Summary Judgment. Ignoring clear-cut authority

4 from the California Supreme Court as well as this Court, Defendant argues that Plaintiffs’ state

5 law claims under the California Disabled Persons Act (“CDPA”) and Unruh Civil Rights Act

6 (“Unruh”) should be dismissed because there are no facts establishing that Defendant aided,

7 participated in, or caused the access violations in the ten Burger King leased (“BKL”) restaurants

8 at issue here. Defendant’s Motion should be denied because:

9

• The California Supreme Court in Munson v. Del Taco, Inc., 208 P.3d 623, 634

10 (2009), and this Court in its class certification order in reliance on Munson, have both

11 definitively held that because the CDPA and Unruh have adopted the full expanse of the ADA,

12 all ADA violations -- whether or not involving intentional discrimination and whether or not

13 aided or caused by Defendant -- are also violations of the CDPA and Unruh as a matter of law.

14

• Even CDPA and Unruh claims that are not premised on ADA violations do not

15 require proof of a defendant’s active participation in discriminatory acts.

16

• Even assuming arguendo that Plaintiffs needed to demonstrate that Defendant

17 aided or caused a denial of rights secured by the CDPA and Unruh, this showing can be made

18 with evidence that Defendant failed to adequately respond to complaints of civil rights

19 violations.1 Here, the facts demonstrate that for many years, Defendant has received complaints

20 about access violations at franchised restaurants, but its response to these complaints has been

21 woefully inadequate.2

22

23

1

See, e.g., Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp. 1369, 1388-89

24 (N.D. Cal. 1997); Michelle M. v. Dunsmuir Joint Union Sch. Dist., 2006 WL 2927485, *7-8

(E.D. Cal. Oct. 12, 2006); Annamaria M. v. Napa Valley Unified Sch. Dist., 2006 WL 1525733, 25 *13 (N.D. Cal. May 30, 2006).

26

2

Defendant also argues that because the ten restaurants covered by the class

27 certification order in this case were all constructed prior to January 26, 1993, they are not

covered by the new construction provisions of the ADA. Plaintiffs do not dispute this argument. 28

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1

FACTS

2 I. Complaints About Access Violations in Burger King Restaurants.

3

Long before this case was filed, Defendant was sued numerous times based on alleged

4 violations of access requirements. For example:

5

• In 1995, a lawsuit was brought against Defendant and certain of its franchisees in

6

the District of Columbia alleging various violations of the ADA, including for

7

example inaccessible queue lines, noncompliant ramps, narrow doors, and

8

inaccessible restrooms (Day v. Republic Foods, Inc., no. 95-cv-1317 (D.D.C.

9

1995) (See generally Decl. of Timothy P. Fox (“Fox Decl.,”) Ex. 1).

10

• In 1999, a lawsuit was brought against Defendant and its franchisee in the

11

Southern District of California alleging various violations of the ADA, including

12

for example barriers involving parking, noncompliant ramps, entrances, a narrow

13

queue line, restrooms and accessible seating (Org. for the Advancement of

14

Minorities with Disabilities v. Burger King, no. 99-cv-2302 (IEG) (S.D. Cal. Oct.

15

27, 1999) (See generally Decl. of Ashley K. Boothby (“Boothby Decl.”) Ex. 1).

16

• In 2000, a lawsuit was brought against Defendant’s franchisee in the Southern

17

District of California, alleging various violations of the ADA, including for

18

example barriers involving the entrances, restrooms, and parking lot (Spikes v.

19

Burger King, no. 00-cv-00566 (AJB) (S.D. Cal., March 17, 2000) (See generally

20

Boothby Decl. Ex. 2).

21

• In 2001, a lawsuit was brought against Defendant’s franchisee in the Northern

22

District of California, alleging various violations of the ADA, including for

23

example barriers involving the parking lot, restroom doors and fixtures, service

24

counters, and lack of accessible outdoor seating (Wong v. Sacca, Corp., no.

25

01-cv-4289 (BZ) (N.D. Cal., Nov. 16, 2001) (See generally Boothby Decl. Ex. 3).

26

• In 2002, a lawsuit was brought against Defendant and certain of its franchisees in

27

the District of New Jersey, alleging various violations of the ADA, including for

28
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1

example barriers involving noncompliant ramps, lack of accessible parking

2

spaces, and restroom doors and fixtures (Clark v. Burger King Corp., Case no.

3

02-cv-246 (JEI) (D.N.J., January 22, 2002) (See generally Boothby Decl. Ex. 4).

4

• In 2002, a lawsuit was brought against Defendant and its franchisee in the

5

Southern District of California, alleging various violations of the ADA, including

6

for example barriers involving the lack of van accessible parking, noncompliant

7

ramps, heavy doors, lack of accessible seating, and high service counters

8

(Degroote v. Burger King 9156, no. 02-cv-0800 (JFS) (S.D. Cal. April 26, 2002)

9

(See generally Boothby Decl. Ex. 5).

10

Class members, too, have complained to Defendant about the accessibility of franchised

11 restaurants. For example, class member Karen Conklin testified that at some time prior to 2005,

12 she called a Burger King regional office to complain about the accessibility of a queue line at a

13 Burger King restaurant in Concord, California, but Defendant took no action on the queue line.

14 Dep. of Karen Conklin 99:7-25, 100:1-3 (Jan. 20, 2010) (Fox Decl. Ex. 2).

15 II. Defendant’s Response To Complaints Of Access Violations In Burger King Restaurants.
16 Defendant has the power to ensure that its franchised restaurants comply with access
17 requirements but has chosen not to do so. Indeed, Defendant exercises substantial control over
18 the design, modification and operation of its BKL restaurants. For example:
19 • A BKL franchisee that intends to construct a new restaurant must comply with
20 Defendant’s standard plans and specifications, and any deviations must be
21 approved by Defendant. See Docket no. 139-1, Tbl. 1.
22 • Through its standard franchise agreement, Burger King controls remodels of
23 franchised restaurants, including BKLs. The standard term of a Burger King
24 franchise agreement is 20 years, and the agreement obligates the franchisee to
25 remodel the restaurant at the end of the term in order to renew. Fox Decl. Ex. 3 at
26 23. The remodel must reflect Burger King’s standard plans and specifications.
27

28
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1

See Docket no. 139-1, Tbl. 2 at Column 1. Failing to remodel is grounds for

2

default. See id. at Column 2.

3

• Defendant prohibits BKL franchisees from making any alteration, change,

4

addition, or improvement without the prior written consent of Defendant, and the

5

files maintained at Burger King’s headquarters are replete with requests for and

6

approvals and denials of legal clearance for remodels at BKL restaurants. See

7

Docket no. 139-1, Tbl. 2 at Column 3; see also, e.g., Fox Decl. Exs. 4-5.

8

• Defendant requires that BKL franchised restaurants “adhere to strict standardized

9

operating procedures and requirements which we believe are critical to the image

10

and success of the Burger King brand.” Fox Decl. Ex. 3 at 6. Each BKL and

11

franchised restaurant “is required to follow the Manual of Operating Data

12

[“MOD”], an extensive operations manual containing mandatory restaurant

13

operating standards, specifications and procedures prescribed from time to time to

14

assure uniformity of operations and consistent high quality of products at Burger

15

King restaurants.” Id.; see also Dep. of Samuel Wong 38:18-25, 39:1-4 (Jan. 26,

16

2010) (Fox Decl. Ex. 6).

17

• To ensure compliance with these requirements, Defendant “conduct[s] scheduled

18

and unscheduled inspections of company and franchise restaurants throughout the

19

Burger King system.” Fox Decl. Ex. 3 at 14; see also Id. Ex. 7 (“Record of

20

Visitation - Training Visit”).

21

• Before and after a restaurant is remodeled, Defendant inspects the BKL restaurant

22

to make sure that the remodel conformed to Defendant’s requirements. Dep. Of

23

James Carberry (“Carberry Dep.”) 9:25 - 10:1-10 (Dec. 9, 2009) (Fox Decl. Ex.

24

8).

25

Although Defendant has the power to ensure that franchised restaurants comply with

26 access requirements, and notwithstanding the numerous and repeated complaints that it has

27 received about access violations in these restaurants, Defendant has refused to exercise its power

28
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1 to eliminate and prevent these violations. For example, Defendant acknowledges that it has the

2 “right to approve whatever final plans the franchisee intends to use,” but admits that it “does not

3 review or approve plans for compliance with . . . accessibility laws.” Decl. of Jim McGrory

4 (Docket no. 182) ¶¶ 4-5. While BKL franchisees “must adhere to strict standardized operating

5 procedures and requirements” set forth in the MOD, Fox Decl. Ex. 3 at 6, Burger King concedes

6 that the MOD “references accessibility issues only generally,” Docket no. 184 at 4. The

7 inspections it conducts before and after a BKL franchisee remodel do not cover access issues.

8 Carberry Dep. 23:7-9, 24:3-18, 31:19-25, 32:1-2 (Fox Decl. Ex. 8). And while Defendant

9 requires an architect to sign off on compliance with accessibility requirements with a “Certificate

10 of ADA Compliance” for remodels of both BKLs and corporate-owned stores, strikingly,

11 Defendant only actually verifies compliance when it comes to its corporate restaurants, but does

12 not verify these certificates for compliance at BKL remodels. Dep. of Ronald Hailend (“Hailend

13 Dep.”), 81-83 (Fox Decl. Ex. 9). Finally, Burger King acknowledges that it does not provide

14 design specifications for many of the barriers reported by putative class members. McGrory

15 Decl. ¶ 13.

16

Not surprisingly in light of Defendant’s completely inadequate response to the access

17 complaints it has received over many years, the types of violations that have been the subject of

18 these complaints -- including barriers involving noncompliant ramps, doors, queue lines, service

19 counters, seating, and restrooms -- were also found at the ten restaurants covered by this case.

20 See Fox Decl. Ex. 10 at, e.g., 1, 3-4, 6, 9, 10-12, 17, 24 (report prepared by Plaintiffs’ expert

21 after surveying the ten restaurants at issue for accessibility violations).

22

After the lawsuit was filed, Defendant required BKL franchisees to make accessibility

23 improvements, further demonstrating that it has the power to ensure that franchised restaurants

24 comply with access regulations. See Dep. of Willie Cook 38:1-6, 41:8-15, 78:11-15, 114:9-12,

25 115:2-4 (Dec. 14, 2009) (Fox Decl. Ex. 11); Dep. of Patricia Corcoran 27:3-8, 31:21-24, 49:1-5,

26 122:6-11 (Dec. 10, 2009) (Fox Decl. Ex. 12); Dep. of Sunil Gulati 57:5-14, 70:17-25, 71:1-12;

27

28
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1 82:20-25 (Dec. 16, 2009) (Fox Decl. Ex. 13); Dep. of Anthony Sacca 31:3-25, 33:7-18 (Jan. 28,

2 2010) (Fox Decl. Ex. 14).

3

ARGUMENT

4

As this Court previously ruled, a violation of the ADA constitutes a violation of the

5 CDPA and Unruh entitling a plaintiff to relief under those statutes, and as a matter of law, a

6 plaintiff need not also establish that a defendant acted intentionally or aided or caused the

7 violation. Further, even CDPA and Unruh claims that are not premised on ADA violations do

8 not require proof of a defendant’s active participation in discriminatory acts. Finally, even

9 assuming arguendo that a showing that a defendant aided or caused a violation was required

10 under the CDPA and Unruh, there are material issues of disputed fact precluding summary

11 judgment on this issue. For these reasons, Defendant’s motion should be denied.

12 I. Summary Judgment Standard.

13

Summary judgment is proper only if there are no genuine issues as to any material fact

14 and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c)(2);

15 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party seeking summary judgment

16 always bears the initial responsibility of identifying the evidence which it believes demonstrates

17 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. “[A]t the summary

18 judgment stage the judge’s function is not himself to weigh the evidence and determine the truth

19 of the matter . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, “[t]he

20 evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his

21 favor.” Id. at 255; see also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451,

22 456 (1992). Issues of credibility and intent should not be resolved on summary judgment.

23 Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999).

24 II. Violations of the ADA Constitute Violations of Unruh and the CDPA Without Any

Additional Showing That The Defendant Aided or Caused The Violation.

25

As relevant here, the rights secured by the CDPA and Unruh are set forth in sections 54

26

and 51 of the California Civil Code, respectively. After the enactment of the ADA, the

27

California Legislature amended those sections to provide that a violation of the ADA constitutes

28

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1 a violation of those statutes as well. See Cal. Civ. Code §§ 51(f) & 54(c). A violation of the 2 ADA does not require any showing that a defendant aided or caused the violation.3 As a simple

3 matter of logic, then, violations of the CDPA and Unruh that are premised on ADA violations

4 necessarily do not require a showing that a defendant aided or caused the ADA violation.

5

Defendant, however, argues that this is not the case. Defendant points out that the

6 California Legislature only incorporated the ADA into sections 54 and 51 of the CDPA and

7 Unruh, but did not also incorporate the ADA into the enforcement provisions of the CDPA and

8 Unruh, sections 54.3 and 52 respectively. As a result, Defendant asserts that the amendment had

9 no impact on these enforcement provisions, which generally provide a remedy against entities

10 that interfere with or deny rights under these statutes, or that aid or incite a denial. Def.’s Mot. at

11 7-8. Thus under Defendant’s interpretation, a plaintiff could demonstrate a violation of the

12 CDPA or Unruh by establishing an ADA violation, which would not require evidence that the

13 Defendant aided or caused the violation. However, if she did not also demonstrate that the

14 defendant aided or caused the violation, then she would have no remedy under state law.

15

Defendant’s argument hinges on the dubious proposition that the provisions of the CDPA

16 and Unruh describing the rights secured by those statutes are entirely independent from the

17 enforcement provisions of these statutes, and thus the amendment to sections 54 and 51 of the

18 CDPA and Unruh incorporating the ADA had no impact on the enforcement sections of those

19 statutes. Remarkably, the primary case on which Defendant relies for this proposition -- Munson

20 v. Del Taco, Inc., 208 P.3d 623 (2009) -- actually rejected this very argument and reached the

21 exact opposite conclusion.

22

23

24

25

3

Defendant does not dispute this point. See Def. Burger King Corp.’s Not. of

26 Mot., Mot. for Partial Summ. J. and Mem. Of P. & A. (“Def.’s Mot.”) (Docket no. 301) at 5 (“BKC does not contest Plaintiffs’ right to name it as a defendant on their ADA claims, based on

27 its status as a lessor, even though any accessibility violations that might exist would have been

caused by the franchisees/lessees that operate the restaurants, and not by BKC.”). 28

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1

Although Unruh claims usually require proof of intentional discrimination,4 ADA

2 violations do not, and the issue in Munson was rather whether an Unruh claim that was premised

3 on an ADA violation required proof of intentional discrimination. The California Supreme

4 Court considered and rejected the exact statutory interpretation argument raised by Defendant

5 here: that because the amendment expressly incorporated the ADA only into section 51 but not

6 section 52, the enforcement provision of Unruh, then the amendment had no impact on section

7 52 and even Unruh claims based on ADA violations still required proof of intentional

8 discrimination.

9

The Munson court rejected the argument that sections 51 and 52 operated independently

10 of each other:

11

[S]ections 51 and 52 have, throughout their history, functioned as an integral legal

scheme; section 51 has defined the civil rights of Californians to equal treatment in

12

public accommodations, and section 52 has established the liabilities of those who violate

such civil rights. Section 52 has always referred expressly to violations of section 51 and

13

provided remedies for those violations. As we said in Harris, section 52 “provide[s] an

enforcement mechanism for section 51.”

14

Id., 208 P.3d at 629.

15

The court also rejected the interpretation advanced by Defendant here because it would

16

result in violations of Unruh without a remedy: “The most natural reading of the statutory

17

language -- that section 52 provides remedies for all categories of discrimination prohibited

18

under section 51 -- is also the reading that best accords with the law's history.” Id. at 629-30

19

(emphasis added).

20

The court ultimately concluded that “[t]he Legislature’s intent in [amending Unruh] was

21

to provide disabled Californians injured by violations of the ADA with the remedies provided by

22

section 52. A plaintiff who establishes a violation of the ADA, therefore, need not prove

23

intentional discrimination in order to obtain damages under section 52.” Id. at 625.

24

25

26

27

4

See Harris v. Capital Growth Investors XIV, 805 P.2d 873, 891 (1991).

28

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1

Thus under the authoritative Munson opinion, a plaintiff that demonstrates an ADA

2 violation is entitled to the remedies set forth in the CDPA and Unruh, and need not prove that the

3 defendant acted intentionally, or aided or caused the violation, in order to obtain those remedies.

4

This Court has already rejected Defendant’s argument. In its class certification papers,

5 Defendant argued that Plaintiffs’ state law claims under Unruh and the CDPA should be stricken

6 because these statutes, by their terms, limit liability to those who actively make or incite

7 discrimination, in contrast to the ADA, which imposes strict liability upon lessors of public

8 accommodations. See Castaneda v. Burger King Corp., --- F.R.D. ---, 2009 WL 3151168, *18

9 (N.D. Cal. Sept. 25, 2009). Citing Munson, this Court rejected Defendant’s argument, holding

10 that “[b]ecause the Unruh Act adopted the full expanse of the ADA, the California Supreme

11 Court held that all ADA violations -- whether or not involving intentional discrimination -- were

12 violations of the Unruh Act as well.” Id. (emphasis in original).

13 III. As a Matter of Law, Even for CDPA and Unruh Claims That Are Not Premised On

ADA Violations, Plaintiffs Need Not Establish Defendant’s Active Participation In

14

Discriminatory Acts.

15

As set forth above, the enforcement provisions of the CDPA and Unruh provide a remedy

16 against entities that interfere with or deny rights under these statutes, or that aid or incite a

17 denial. Defendant asserts that the access violations at issue were caused by BKL franchisees,

18 that it was merely a passive actor, and therefore it is not liable under these state statutes because

19 it did not interfere with or deny rights under these statutes, or aid or incite a denial. Def.’s Mot.

20 at 5-7. As set forth above, CDPA and Unruh claims premised on ADA violations do not require

21 a showing that a defendant aided or caused the violation. Further, even CDPA and Unruh claims

22 that are not based on ADA violations do not require a showing that the defendant was an active

23 participant in the violation.

24

Numerous courts have held that an entity that owns or leases a public accommodation,

25 but played no role in creating access violations at the public accommodation, nevertheless is

26 liable under the CDPA and/or Unruh for those violations.

27

28
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1

For example, in Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000), a disabled

2 plaintiff who attempted to visit a realty office that had no designated accessible parking brought

3 suit under the ADA and Unruh against the trustees of the trust that owned the property on which

4 the realty office was located, and the lessees of the office. The lease on the property assigned

5 responsibility for compliance with all laws to the tenant, and the trustees argued that as a result,

6 they were entitled to summary judgment on the plaintiff’s claims. Id. at 830. Despite the fact

7 that there was no evidence that the trustees played an active role in creating the access violation,

8 the district court denied summary judgment and awarded the plaintiff statutory damages under

9 Unruh, and the Ninth Circuit affirmed. Id. at 835; see also Botosan v. Fitzhugh, 13 F. Supp. 2d

10 1047, 1051-54 (S.D. Cal. 1998) (holding that plaintiff stated claims under the CDPA and Unruh

11 against a landlord despite the fact that lease allocated all responsibility for complying with the

12 law to the tenant).

13

Similarly, in Hodges v. El Torito Restaurants, Inc., 1998 WL 95398 (N.D. Cal. Feb. 23,

14 1998), the court considered whether “the current owner of a building can be held liable [under

15 the CDPA] for the previous owner’s failure to make the restaurant accessible.” Id. at *3. The

16 court held that in order to effectuate the purpose of California’s accessibility requirements, a

17 current owner must be liable for a previous owner’s access violations. Otherwise “businesses

18 would be able to circumvent California's accessibility requirements through sham sales and

19 transfers.” Id. This would seriously undermine access laws. In Hodges, for example, if the

20 plaintiff could only sue the previous owner, “it is unlikely that plaintiffs could obtain money

21 damages. Furthermore, because [the previous owner] no longer has control over the building,

22 plaintiffs could not achieve the ultimate goal of the various state laws at issue-an accessible

23 restaurant. It is therefore clear that the best way to effectuate the goals of California’s

24 accessibility laws is to hold the current owners of buildings liable for existing violations.” Id at

25 *4.

26

27

28
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1

Nor was this an unfair result. Prior to purchasing the restaurant, the current owner in

2 Hodges could have demanded that the previous owner bring the building into compliance with

3 access requirements. Id.

4

These cases demonstrate that Defendant’s argument that it is not liable under the CDPA

5 or Unruh because it allegedly did not actively participate in creating the access violations is

6 simply wrong as a matter of law. The landlords in the Botosan cases did not actively participate

7 in creating the access violations at issue and yet they were found to be proper defendants under

8 the CDPA and/or Unruh. Even more telling, the current owner in Hodges could not possibly

9 have participated in creating the access violations in the restaurant prior to its acquisition of the

10 building, yet it too was found liable under the CDPA.

11

As discussed in Hodges, the position advocated by Defendant -- that entities are only

12 liable under the CDPA and Unruh for access violations which they actively participated in

13 creating -- would substantially weaken California access statutes. In this case, for example,

14 while Defendant claims not to have been responsible for the access violations and points the

15 finger at BKL franchisees, the franchisees can turn around and assert that the violations were

16 actually the fault of the contractors who performed the work.

17

Further, again as forewarned in Hodges, there would be an incentive for companies to

18 avoid liability under the CDPA and Unruh through sham transactions. For example, a restaurant

19 chain could use an undercapitalized company to build a restaurant, purchase it from that

20 company, and then claim that it was not responsible for access violations in the restaurant

21 because it was not an active participant in creating the violations.

22

Finally, contrary to Defendant’s claim that it would be “unfairly punitive” to hold it

23 responsible for damages,5 doing so would give it an incentive to do what it has always had the

24 power to do, and what it should have done long ago: make sure its franchised restaurants

25 comply with access requirements. For many years, it has had in place detailed and effective

26

27

5

Def.’s Mot. at 9.

28

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1 policies that ensure, for example, that hamburgers in franchised restaurants are cooked at the

2 right temperature, and that the correct color schemes are used when a franchised restaurant is

3 remodeled. Fox Decl. Ex. 3 at 6, 14. It is entirely in keeping with California access laws that

4 Defendant apply the same diligence to ensuring that franchised restaurants are accessible to

5 persons with disabilities.

6 IV. There Are Disputed Issues of Material Fact as to Whether Defendant Interfered

with or Denied Rights Secured by the CDPA or Unruh, or Aided or Incited a Denial.

7

Even assuming arguendo that with respect to CDPA and Unruh claims not premised on

8

ADA violations, Plaintiffs must show that Defendant interfered with or denied rights under these

9

statutes, or aided or incited a denial, there are disputed issues of material fact precluding

10

summary judgment on this issue.

11

Several courts have held that an inadequate response to complaints of civil rights

12

violations constitutes an intentional interference or denial of rights under Unruh. See, e.g.,

13

Nicole M. v. Martinez Unified School Dist., 964 F. Supp. 1369, 1388-89 (N.D. Cal. 1997)

14

(holding that “an inadequate response to complaints of sexual harassment as a denial of” rights

15

secured by Unruh); Annamaria M. v. Napa Valley Unified School Dist., 2006 WL 1525733, *13

16

(N.D. Cal. May 30, 2006) (same); Michelle M. v. Dunsmuir Joint Union School Dist., 2006 WL

17

2927485, *7-8 (E.D. Cal. Oct. 12, 2006).

18

In Michelle M., for example, the plaintiff’s son was sexually harassed by another student

19

at a high school. Id. at *1. Although by the time the plaintiff’s family complained to the

20

defendant school district the harassment had stopped, the school district had previously received

21

similar complaints about the harassing student, but had responded inadequately to the

22

complaints. Id. at *1-2, 8. The court denied the defendant’s request for summary adjudication,

23

holding that the inadequate response to the harassment complaints constituted an intentional

24

denial of rights secured by Unruh. Id. at *7-8.

25

Here, Plaintiffs have presented substantial facts that Defendant received complaints about

26

the accessibility of Burger King restaurants, and that it inadequately responded to these

27

complaints.

28

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1

The facts submitted by Plaintiffs establish that since at least 1995, Defendant has been

2 repeatedly sued for violations of access regulations in California and elsewhere, including

3 violations identical to those found in the ten restaurants at issue here.

4

Further, Plaintiffs have submitted facts showing that Defendant’s response to these

5 complaints has been woefully inadequate.

6

For example, Plaintiffs have submitted facts establishing that Defendant had the power to

7 ensure that franchised restaurants complied with access requirements. Defendant has in fact

8 used its power to ensure compliance with non-accessibility requirements by, for example,

9 conducting inspections of franchised restaurants on a regular basis. Indeed, after this lawsuit

10 was filed, Defendant demonstrated its power to ensure compliance by requiring the franchisees 11 of the restaurants at issue here to bring their restaurants into compliance with access regulations.6

12

Despite the fact that Defendant had the power to ensure that BKL restaurants complied

13 with access requirements, it largely failed to do so, at least prior to the filing of this lawsuit. For

14 example:

15

• Defendant has the “right to approve whatever final plans the franchisee intends to

16

use,” and yet it “does not review or approve plans for compliance with . . .

17

accessibility laws.” McGrory Decl. (Docket no. 182) ¶¶ 4-5.

18

• While BKL franchisees “must adhere to strict standardized operating procedures

19

and requirements” set forth in the MOD, Fox Decl. Ex. 3 at 6, Defendant

20

concedes that the MOD “references accessibility issues only generally,” Docket

21

no. 184 at 4.

22

• The inspections Defendant conducts before and after a remodel at BKL

23

restaurants do not cover access issues. Carberry Dep. 23:7-9, 24:3-18, 31:19-25,

24

25

6

See Dep. of Willie Cook 38:1-6, 41:8-15, 78:11-15, 114:9-12, 115:2-4 (Dec. 14,

26 2009) (Fox Decl. Ex. 11); Dep. of Patricia Corcoran 27:3-8, 31:21-24, 49:1-5, 122:6-11 (Dec. 10, 2009) (Fox Decl. Ex. 12); Dep. of Sunil Gulati 57:5-14, 70:17-25, 71:1-12; 82:20-25 (Dec.

27 16, 2009) (Fox Decl. Ex. 13); Dep. of Anthony Sacca 31:3-25, 33:7-18 (Jan. 28, 2010) (Fox

Decl. Ex. 14). 28

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1

32:1-2 (Fox Decl. Ex. 8). Additionally, while Defendant requires an architect to

2

sign off on compliance with accessibility requirements with a “Certificate of

3

ADA Compliance” for remodels of both BKLs and corporate-owned stores, it

4

only actually verifies compliance when it comes to its corporate restaurants.

5

Hailend Dep. 81-83 (Fox Decl. Ex. 9).

6

• Finally, Defendant acknowledges that it does not provide design specifications for

7

many of the barriers reported by putative class members. McGrory Decl. ¶ 13.

8

From these facts, a fact finder could conclude that Defendant responded inadequately to

9 complaints of access violations in franchised restaurants, thus precluding summary judgment.

10 V. Plaintiffs Do Not Dispute That The Ten BKL Restaurants Currently At Issue Are Not Subject To The ADA’s New Construction Requirements.
11 Plaintiffs’ Amended Complaint sought class certification as to more than 90 leased
12 Burger King restaurants in California. Because some of these restaurants were constructed after
13 January 26, 1993, the operative date for the ADA’s new construction provisions, the Complaint
14 alleged violations of these provisions.
15 The class actually certified by the Court covers ten BKL restaurants, none of which was
16 constructed after January 26, 1993, and had Defendant conferred with Plaintiffs prior to filing its
17 Motion, Plaintiffs would have stipulated that the ADA’s new construction provisions are
18 inapplicable to these ten restaurants. Nor is this fact material to the litigation, because Plaintiffs
19 allege that Burger King has made alterations at the restaurants such that the alteration provisions
20 of the ADA apply to these stores,7 as Plaintiffs are prepared to prove at trial.
21

22

23

24

25

26

27

7

See 42 U.S.C. § 12183(a)(2); 28 C.F.R. § 36.406(a).

28

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1

CONCLUSION

2

For the reasons set forth above, Plaintiffs respectfully request that Defendant’s Motion be

3 denied.

4

5 Respectfully submitted,

6 FOX & ROBERTSON, P.C.
7 By: /s/ Timothy P. Fox
8 Timothy P. Fox
9 Amy F. Robertson Fox & Robertson, P.C.
10 104 Broadway, Suite 400 Denver, CO 80203
11 Bill Lann Lee
12 Andrew Lah Julia Campins
13 Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 1330 Broadway, Suite 1800
14 Oakland, CA 94612

15 Mari Mayeda P O Box 5138
16 Berkeley, CA 94705

17 Attorneys for Plaintiffs

18 Dated: February 25, 2010

19

20

21

22

23

24

25

26

27

28
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 Case3:08-cv-04262-WHA Document324 Filed02/26/10 Page1 of 21

1 GENOVESE, JOBLOVE & BATTISTA, P.A.

MICHAEL D. JOBLOVE (admitted pro hac vice)

2 JONATHAN E. PERLMAN (admitted pro hac vice)

100 S.E. Second Street, 44th Floor

3 Miami, FL 33131

Telephone: (305) 349-2300 4 Facsimile: (305) 349-2310

Email: mjoblove@gjb-law.com

5

jperlman@gjb-law.com

6 GLYNN & FINLEY, LLP

7

CLEMENT L. GLYNN, Bar No. 57117 ADAM FRIEDENBERG, Bar No. 205778

8

One Walnut Creek Center 100 Pringle Avenue, Suite 500

9

Walnut Creek, CA 94596 Telephone: (925) 210-2800

10

Facsimile: (925) 945-1975 Email: cglynn@glynnfinley.com

11

afriedenberg@glynnfinley.com

12 Attorneys for Defendant Burger King Corporation

13

14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 15

16 MIGUEL CASTANEDA, KATHERINE )

CORBETT, and JOSEPH WELLNER, on ) 17 behalf of themselves and others similarly )

18 situated,

) )

19

Plaintiffs,

) )

20

vs.

) )

21

) )

22 BURGER KING CORPORATION,

) )

23

Defendant.

) )

24 ____________________________________)

Case No. C 08-04262 WHA (JL)

DEFENDANT BURGER KING CORPORATION’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO RESTAURANT #2055

Date: Time: Before: Location:

March 18, 2010 8:00 a.m. Hon. William H. Alsup Courtroom 9, 19th Floor

25

Defendant Burger King Corporation (“BKC”), by the undersigned, submits this Memorandum

26 of Points and Authorities and the accompanying Declaration of Catherine Van Horn (“Van Horn

27 Decl.”) in Opposition to Plaintiffs’ Motion for Partial Summary Judgment as to Restaurant No. 2055.

28 - 1 -
_________________________________________________________________________________________________
Case No. C 08-04262 WHA (JL)
BKC’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO RESTAURANT #2055

Case3:08-cv-04262-WHA Document324 Filed02/26/10 Page2 of 21

1

TABLE OF CONTENTS

2

PAGE

3 I. INTRODUCTION…………………………………………………… 1

4 II. BACKGROUND FACTS…………………………………………… 2

5

A. Plaintiffs’ Claims……………………………………………. 2

6

B. The Applicable Law………………………………………… 3

7

C. Plaintiffs’ Motion for Partial Summary Judgment……….. 4

8 III. DISCUSSION………………………………………………………… 5

9

A. Summary Judgment Standard………………………………. 5

10

B. Plaintiffs Are Not Entitled to Partial Summary Judgment

Because There Are Questions of Material Fact With

11

Respect to Whether the So-Called “1997 Alterations” to

12

The Restrooms, Parking Lot and Dining Area Actually

Occurred……………………………………………………….. 7

13

C. Plaintiffs Are Not Entitled to Summary Judgment as to

14

State-Law Standards Because There Are Questions of Fact

15

As to Whether the Cost of the Alteration to the Storage

Area Was Sufficient to Trigger the CBC’s “Path

16

of Travel” Requirements……………………………………. 10

17

D. Plaintiffs Are Not Entitled to Partial Summary Judgment

18

Because their Claim That Violations Existed in 1997 Is

Directly Contradicted by a 1998 Certificate from an

19

Independent Professional Certifying That the Restaurant

20

Complied with Applicable ADA Standards…………………. 11

21

E. The Entry of Partial Summary Judgment That Certain

Restaurant Elements Are “Out of Compliance” with

22

Accessibility Standards Would Be Improper Here Absent

23

Consideration of Context and Applicable Defenses………… 12

24
25 26 IV.

F. Plaintiffs Are Not Entitled to Partial Summary Judgment Because Claims Based on a 1997 Alteration Are Time Barred……….. 14
CONCLUSION………………………………………………………… 17

27

28 i
_________________________________________________________________________________________________
Case No. C 08-04262 WHA (JL)
BKC’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO RESTAURANT #2055

Case3:08-cv-04262-WHA Document324 Filed02/26/10 Page3 of 21

1

TABLE OF AUTHORITIES

2 CASES

PAGES

3 Access Now, Inc v. Ambulatory Surgery Ctr. Group, Ltd.,

4

No. 99109 Civ, 2001 WL 617529 (S.D. Fla. May 2, 2001)……………… 3,6

5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)……………………… 5

6 Bragdon v. Abbott, 524 U.S. 624 (1998)………………………………………… 3

7 Celotex Corp. v. Catrett, 47 U.S. 317 (1986) …………………………………… 5-6

8 Cherry v. City College of San Francisco, No. C 04-04981 WHA,

9

(N.D. Cal. Jan. 31, 2006)…………………………………………………. 3,4,6,12

10 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001)……. 15

11 Garcia v. Brockway, 526 F.3d 456, 460 (9th Cir. 2008) (en banc),

12

cert. denied sub nom Thompson v. Turk, 129 S. Ct. 724 (2008)………….. 16

13 Gatto v. County of Sonoma, 120 Cal. Rptr. 2d 550 (Cal. Ct. App. 2002)………… 14

14 Maldonado v. Harris, 370 F.3d 945 (9th Cir. 2004)…………………………….. 14

15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)………… 5

16 Mitchell v. Sung, 816 F. Supp. 597 (N.D. Cal. 1993)…………………………….. 14

17 Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133 (9th Cir. 2002)………….. 14,15

18 Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622 (D. Md. 2002)…………….. 15,17

19 U.S. v. AMC Ent., Inc., 245 F. Supp. 2d 1094 (C.D. Cal. 2003)………………… 13

20 OTHER AUTHORITIES

21 42 U.S.C. § 1988(a)……………………………………………………………… 14

22 42 U.S.C. § 3604(f)(3)(C)……………………………………………………….. 16

23 42 U.S.C. §§ 12181 et seq. ……………………………………………………… 2

24 42 U.S.C. § 12182(b)(2)(A)(iv)…………………………………………………. 3,15

25 42 U.S.C. § 12183(a)…………………………………………………………….. 15

26 42 U.S.C. § 12183(a)(1)…………………………………………………………. 3,16

27 42 U.S.C. § 12183(a)(2)…………………………………………………………. 3,8

28 ii
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1 42 U.S.C. § 12188(a)(1)…………………………………………………………. 15 2 28 C.F.R. Part 36 App. A……………………………………………………….. 3 3 28 C.F.R. Part 36 App. A § 2.2………………………………………………… 3,6 4 28 C.F.R. Part 36 App. A § 3.2…………………………………………………. 3,6 5 28 C.F.R. § 36.402(b)…………………………………………………………… 7 6 28 C.F.R. § 36.402(b)(1)……………………………………………………….. 7 7 28 C.F.R. § 36.403(b)……………………………………………………………. 8 8 28 C.F.R. § 36.403(f)…………………………………………………………… 7 9 Fed. R. Civ. P. 56(a)…………………………………………………………….. 5 10 Fed. R. Civ. P. 56(c)…………………………………………………………….. 6 11 Cal. Civ. Code § 51 ………………………………………………………………. 2,14 12 Cal. Civ. Code § 54……………………………………………………………….. 2,14 13 Cal. Civ. Proc. Code § 335.1………………………………………………………..6,14 14 CBC § 3112A(a) (1994).............................................................................................8,11 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 I. INTRODUCTION

2

Plaintiffs ask this Court for summary adjudication that certain elements at Burger King®

3 Restaurant #2055 in El Cerrito, California, “are or were during some portion of the class period out of

4 compliance with applicable disability access standards.” (Pltf. Motion [Docket No. 302] at 1).

5 Specifically, Plaintiffs assert that surveys conducted by BKC’s non-testifying accessibility consultants

6 in 2008 and 2009, after this lawsuit was filed, demonstrate “that specified architectural elements at

7 Restaurant 2055 did not comply with state and/or ADA requirements in effect when that restaurant

8 was constructed [in 1977] or altered [in 1997].” (Docket No. 302 at 2).

9

Plaintiffs’ motion must be denied because the purportedly undisputed facts on which it is based

10 not only are highly disputed, but, upon closer examination, are not “facts” at all.

11

Plaintiffs’ motion fails as to their federal law claims, first, because their assertion that certain

12 1997 restaurant alterations triggered federal accessibility requirements is contradicted by the

13 deposition testimony of the franchisee operating the restaurant, that any such changes were part of a

14 required “re-imaging” that did not implicate accessibility requirements. Moreover, the documents

15 Plaintiffs submit as “evidence” that the restaurant was altered in 1997 cannot provide such evidence,

16 as they pre-date the claimed alterations. Plaintiffs’ assertion that non-compliant “alterations” were

17 made in 1997 also is refuted by an independent architect’s certification that the restaurant was fully

18 compliant with federal requirements in January 1998, immediately after Plaintiffs’ claim such

19 alterations occurred. Accordingly, there are clear issues of fact precluding summary adjudication of

20 Plaintiffs’ federal law claims, including whether the restaurant was altered in 1997, whether any such

21 alterations triggered federal accessibility requirements, and, if so, whether the restaurant remained

22 “out of compliance” from 1997 until 2008, when BKC’s consultants first surveyed the restaurant.

23

Plaintiffs’ motion for summary adjudication under state law fares no better. The state law

24 requirements on which Plaintiffs rely are triggered when the cost of post-construction alterations to the

25 restaurant exceed a certain annually-adjusted dollar amount. However, Plaintiffs’ only “evidence” of

26 the cost of the 1997 re-imaging is pre-construction estimates that provide no evidence of the actual

27 cost of any alterations and, therefore, fail to show that state accessibility standards were triggered. In

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1 addition, as set forth in BKC’s summary judgment motion (Docket No. 299), even if Plaintiffs could

2 show that state law accessibility standards were violated, they still would not be entitled to judgment

3 as a matter of law against BKC on those claims, because they cannot show that BKC discriminated

4 against them, as required by state law.

5

Thus, there are numerous disputed issues of material fact that preclude summary judgment in

6 favor of Plaintiffs, including questions as to the scope of the 1997 re-imaging; whether the 1997 re-

7 imaging constituted an “alteration” under federal or state law; the actual cost of the 1997 re-imaging

8 and whether that cost was sufficient to trigger state-law accessibility requirements; and whether BKC

9 can be held liable under state law for the alleged failure of a franchisee to meet accessibility

10 requirements. Additional disputed facts include whether construction industry tolerances or defenses

11 such as equivalent facilitation and technical infeasibility preclude liability; and whether Plaintiffs have

12 addressed all of the elements on which they carry the burden of proof.

13

Finally, Plaintiffs’ motion suffers from a fundamental defect that Plaintiffs cannot overcome:

14 All of the claims on which Plaintiffs seek summary judgment are time-barred. Accordingly, Plaintiffs’

15 motion for partial summary judgment must be denied.

16 II. BACKGROUND FACTS

17

A. Plaintiffs’ Claims

18

In this lawsuit, three mobility-impaired plaintiffs assert, individually and on behalf of ten

19 certified classes, that ten Burger King® restaurants that BKC leases to independent franchisees

20 contain access barriers that discriminate against individuals who use wheelchairs and scooters for

21 mobility. (See Docket No. 302 at 1; Docket No. 72). Although BKC does not operate these

22 restaurants, Plaintiffs have sued BKC for these alleged barriers, claiming disability discrimination

23 under Title III of the federal Americans With Disabilities Act (the “ADA”), 42 U.S.C. §§ 12181 et

24 seq., and two California state statutes, the Unruh Civil Rights Act (the “Unruh Act”), Cal. Civ. Code §

25 51 and the California Disabled Persons Act (the “CDPA”), Cal. Civ. Code § 54. (Id.)

26

27

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1

B. The Applicable Laws

2

Title III of the ADA imposes three different accessibility standards on places of public

3 accommodation such as restaurants, depending on the age and construction history of the building:

4 (i) “new construction” standards applicable to buildings constructed after January 26, 1993, 42 U.S.C.

5 § 12183(a)(1); (ii) an “alteration” standard applicable to pre-existing buildings “altered” in certain

6 ways after January 26, 1992, 42 U.S.C. § 12183(a)(2); and (iii) a “barrier removal” standard imposing

7 an on-going obligation on buildings constructed before January 23, 1996, to remove access barriers

8 when doing so is “readily achievable,” even if the area containing the barrier has not been altered, 42

9 U.S.C. § 12182(b)(2)(A)(iv). The specific accessibility standards applicable to newly constructed and

10 altered buildings are set forth in regulations promulgated by the Department of Justice, commonly

11 referred to as the DOJ Standards or “ADAAG” (the Americans With Disabilities Act Access

12 Guidelines). See 28 C.F.R. Part 36 App. A. These standards are entitled to deference when

13 determining whether the ADA has been violated, see Bragdon v. Abbott, 524 U.S. 624, 646 (1998),

14 and, in the words of this Court, provide “safe harbors” for public accommodations that comply with

15 them. Cherry v. City College of San Francisco, No. C 04-04981 WHA, at 7 (N.D. Cal. Jan. 12, 2006)

16 (Van Horn Dec. Ex. “F”).

17

However, the mere failure to meet a specific DOJ Standard does not, by itself, constitute a

18 violation of the ADA, because, among other things, “[d]epartures from particular … requirements …

19 are permitted where the alternative … will provide substantially equivalent or greater access.” 28

20 C.F.R. Part 36 App. A § 2.2. The standards also “are subject to conventional building industry

21 tolerances for field conditions.” 28 C.F.R. Part 36 App. A § 3.2; see also Access Now, Inc v.

22 Ambulatory Surgery Ctr. Group, Ltd., No. 99109 Civ, 2001 WL 617529, at *3 (S.D. Fla. May 2,

23 2001). Accordingly, “[s]ailing outside” the “safe harbors” provided by the DOJ Standards may “put[]

24 a ship at risk, but does not necessarily sink it” because tolerances or”[s]ubstantial equivalence may

25 allow clear sailing.” Cherry, supra (Van Horn Dec. Ex. “F”) at 7 (holding that plaintiffs bear the

26 burden to show that any asserted discrepancy from DOJ Standards exceeds acceptable tolerances

27 because “the standards expressly include such tolerances as part of the dimensional specifications

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1 themselves”). See also Cherry, supra, Order Re: Parties’ Motions in Limine (Van Horn Dec. Ex. “G”)

2 at 2-3 (stating that, with respect to existing facilities, “ADAAG is only a guide” and “the Court can

3 take into account the degree of the violation of ADAAG when determining whether an item is a

4 barrier to access in existing facilities, or not”).

5

Detailed state accessibility standards have been set forth in Title 24 of the California Building

6 Code (“Title 24” or the “CBC”) since January 1, 1982. Those standards have been repeatedly

7 amended; therefore, buildings subject to those standards must comply with the version in effect at the

8 time they were constructed or altered. (Docket No. 302 at 6). Buildings constructed between July 1,

9 1970 and January 1, 1982 were required to comply with the 1961 version of the American National

10 Standards Institute Standards (“ANSI-61”). (Id. at 6). The ANSI-61 Standards, which contain only

11 five pages of general guidelines, lack the specificity of the DOJ and CBC Standards. (See Van Horn

12 Decl. Ex. “A”).

13

C. Plaintiffs’ Motion for Partial Summary Judgment

14

Plaintiffs’ summary judgment motion relates to only one of the ten restaurants at issue in this

15 case, Restaurant #2055 in El Cerrito, California. Plaintiffs assert that the results of investigatory

16 surveys of the restaurant conducted by an accessibility consultant at BKC’s request in 2008 and 2009

17 demonstrate that six specific elements of the restaurant were in violation of applicable accessibility 18 laws during the class period. (Docket No. 302 at 3-4).1 Although Plaintiffs seek summary

19 adjudication that six specific violations existed during the class period, Plaintiffs do not base that

20 request on the results of the surveys conducted by BKC’s accessibility consultant. Nor do Plaintiffs

21 claim that any of these alleged violations constitute access barriers that must be removed under the

22 ADA’s “readily achievable” standard. Instead, Plaintiffs claim that it is undisputed that violations

23 existed in the listed areas during the class period because alterations allegedly made to the restaurant

24 in 1997 failed to comply with the ADA and CBC “alteration” requirements in effect at that time.

25

26 1

The specific elements that Plaintiffs claim were “out of compliance” with applicable standards

during the class period are: the slope of accessible parking spaces, the path of travel to the front

27 entrance, the dining area seating, the doors to both restrooms (one based on the force to open and the other based on the maneuvering clearance), and the toilet stalls in both restrooms. (Docket No. 302 at

28 1, 12).

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1 (Docket No. 302 at 5).

2

Plaintiffs base their claim that the restaurant underwent “alterations” sufficient to trigger

3 federal and state “alteration” standards on: (i) a building permit issued in 1997 for expansion of a 4 storeroom and new signage, listing the estimated cost of the permitted work as $230,000;2 (ii) a report

5 of an inspection of the restaurant by BKC, known as a Facility Inspection Report or “FIR,”

6 recommending that the parking lot, restrooms and dining room tables be “replaced;” and (iii) two bid

7 proposals collectively providing estimates of the costs for a restroom remodel, parking lot repairs and

8 the replacement of tables and chairs. (Docket No. 302 at 2-3; Robertson Dec. [Docket No. 300] Exs.

9 3-6). None of these documents demonstrate that any alterations to the parking lot, the restrooms or the

10 dining room tables or chairs were actually completed. In fact, Plaintiffs have submitted no evidence

11 whatsoever that any of the alleged alterations to the restrooms, the parking lot or the dining area

12 actually occurred. Nonetheless, Plaintiffs assert that these documents demonstrate that “[t]he 1997

13 alterations included alterations to the restrooms and parking lots as well as dining room tables”

14 (Docket No. 302 at 2) and that each of these “altered areas of the restaurant” therefore were required

15 to “comply with the state and federal accessibility requirements in place in 1997.” (Docket No. 302 at

16 7).

17 III. DISCUSSION

18

A. Summary Judgment Standard

19

It is well-settled that summary judgment may not be granted where there are “genuine factual

20 issues that properly can be resolved only by a finder of fact.” Anderson v. Liberty Lobby, Inc., 477

21 U.S. 242, 250 (1986); Fed. R. Civ. P. 56(a). In determining whether there are genuine issues of

22 material fact that preclude judgment as a matter of law to the moving party, the Court must view the

23 motion in the light most favorable to the non-movant, must accept the non-movant’s evidence as true

24 and must draw all reasonable inferences in favor of the non-moving party – here, BKC. Matsushita

25 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson, 477 U.S. at 256. The

26

27 2

Plaintiffs do not submit the building permit at issue, but instead rely on a summary of the

building permit history for the El Cerrito restaurant included in a report prepared by BKC’s testifying

28 expert Kim Blackseth.

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1 burden of showing the absence of any “genuine issues” is imposed on the moving party. Celotex

2 Corp. v. Catrett, 47 U.S. 317, 323 (1986) (citing Fed. R. Civ. P. 56(c)).

3

That determination is unusually straight-forward here, given Plaintiffs’ failure to demonstrate

4 that any alterations to the restaurant’s parking lot, restrooms or dining area actually took place in 1997,

5 as Plaintiffs claim. Absent those alleged alterations to public areas of the restaurant, Plaintiffs cannot

6 demonstrate that those areas of the restaurant were required to meet the ADA or CBC standards in

7 effect in 1997. (See Docket No. 302 at 5, expressly limiting their motion to the “alteration” standard).

8 Moreover, Plaintiffs neglected to advise the Court of an independent certification attesting that the

9 restaurant complied with applicable ADA standards in January 1998. (See Van Horn Dec. Ex. “B”).

10 That certification directly contradicts Plaintiffs’ assertion that the alleged 1997 alterations resulted in

11 the existence of violations ten years later, during the class period. (See Docket No. 3 02 at 2).

12

Even without those defects in Plaintiffs’ motion, the entry of summary adjudication that

13 specific restaurant elements were “out of compliance” with applicable standards during the class

14 period would be improper, for several reasons. First, as discussed above, a mere failure to comply

15 with an accessibility standard does not, by itself, constitute a violation of accessibility laws, both

16 because the regulations expressly permit the use of alternative guidelines. See Cherry, supra (Van

17 Horn Dec. Ex. “F”) at 7-8. Accordingly, as discussed infra, the determination that a restaurant

18 element violates accessibility laws cannot be made based on raw measurements, divorced from

19 consideration of the context in which the alleged violation arose, the amount of the variation from

20 regulatory standards, and consideration of any applicable exceptions, defenses or tolerances, including

21 the question under state law of whether the defendant before the Court committed the alleged

22 violation. See, e.g., 28 C.F.R. Part 36 App. A §§ 2.2, 3.2; Access Now, 2001 WL 617529, at *3;

23 Cherry, supra (Van Horn Dec. Ex. “F”) at 7-8; (Van Horn Dec. Ex. “G”) at 2-3.

24

Finally, both the federal and the state “alterations” standards on which Plaintiffs base their

25 motion are subject to a two-year statute of limitations. See Cal. Civ. Proc. Code § 335.1 (discussed

26 below). Because the “alterations” at issue here allegedly were completed in 1997, those claims have

27 been time-barred for more than a decade. Accordingly, Plaintiffs’ motion must be denied.

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1

B. Plaintiffs Are Not Entitled to Partial Summary Judgment Because There Are

Questions of Material Fact With Respect to Whether the So-Called “1997

2

Alterations” to the Restrooms, Parking Lot and Dining Area Actually

Occurred 3

Plaintiffs readily admit that, because Restaurant #2055 was built in 1977, before the ADA was 4

enacted, the “new construction” standard applicable to buildings constructed after January 26, 1993 do 5

not apply to this restaurant. (Docket No. 302 at 5). Plaintiffs also expressly state that they are not 6

seeking summary judgment based on the ADA’s “barrier removal” standard. (Id.) Instead, Plaintiffs’ 7

motion for summary judgment under federal law relies solely on the “alteration” standard imposed by 8

the ADA upon existing buildings that were altered after January 26, 1992. (Id.) However, Plaintiffs 9

misstate that standard in two very significant ways. 10

First, in order to constitute an “alteration” under this standard, the alteration must be a “change 11

… that affects or could affect the usability of the building or facility or any part thereof” and therefore 12

includes remodeling, renovation, rehabilitation, reconstruction, historic restoration, and changes or 13

rearrangement of structural parts or elements of the plan configuration of walls and full-height 14

partitions. 28 C.F.R. § 36.402(b); 28 C.F.R. § 36.402(b)(1). Normal maintenance, reroofing, painting 15

or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not considered 16

to be “alterations” unless they affect the usability of the building. 28 C.F.R. § 36.402(b)(1). Under 17

this standard, none of the work reflected on building permits issued in 1997 – with the possible 18

exception of the expansion of the storage area – constitutes an “alteration.” (See Docket No. 300 at 19

Ex. 3). 20

Second, under the ADA, if a building has been altered during the applicable time period, “the 21

path of travel to the altered portion, and the restrooms that serve the altered area must be brought into 22
compliance” if not “disproportionate.” (Docket No. 302 at 5 n.4).3 However, Plaintiffs omit the 23

crucial, express distinction made by the statute that limits the applicability of this so-called “path of 24

25

26 3

In general, alterations necessary to provide a path of travel to an altered area are deemed to be

“disproportionate” when the cost of the alterations to the path of travel exceed 20% of the cost of the

27 main alteration. See 28 C.F.R. § 36.403(f) (also listing costs that can be considered in making such determinations).

28

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1 travel” requirement to those instances where “the entity is undertaking an alteration that affects or

2 could affect usability of or access to an area of the facility containing a primary function.” 42 U.S.C.

3 § 12183(a)(2)(emphasis added). A “primary function” is a “major activity for which the facility is

4 intended” such as the dining area of a cafeteria or restaurant, but does not include employee restrooms

5 or lounges, locker rooms, storage rooms, and similar areas. 28 C.F.R. § 36.403(b). Since “storage” is

6 not considered to be a “primary function” of a quick-service restaurant, id., the 1997 expansion of the

7 storage area – even if it did constitute an “alteration” – would not have triggered this “path of travel”

8 requirement. 42 U.S.C. § 12183(a)(2).

9

Plaintiffs similarly rely on the “alteration” standards imposed by the applicable state laws.

10 (Docket No. 302 at 6). Under the CBC, when an area of an existing building is altered, both the

11 altered area itself, and the path of travel to, and restrooms that serve, the altered area, must be brought

12 into compliance with the version of the CBC in effect at the time, if the cost of the alteration exceeds

13 an annually-adjusted valuation threshold and no exceptions, such as unreasonable hardship, apply.

14 (Docket No. 302 at 6-7; CBC § 3112A(a) (1994)). Like the federal “path of travel” requirement, the

15 CBC “path of travel” requirement does not include an obligation to upgrade a facility’s parking area at

16 the time an “alteration” is made.

17

As previously discussed, Plaintiffs claim that the third-party franchisee operator of the

18 restaurant made “alterations” sufficient to trigger these standards in 1997 (Docket No. 302 at 2) based

19 solely on (i) a building permit for a storage room extension at an estimated cost of $230,000, (ii) an

20 FIR report from BKC requesting that the franchisee repair or upgrade certain features of the restrooms,

21 the parking lot and the dining room décor; and (iii) two bid proposal forms by which the franchisee

22 sought to obtain estimates as to the costs of the repairs listed in the FIR. (Docket No. 302 at 2-3). All

23 of these documents were created before any alleged “alterations” to the restaurant took place.

24 Therefore, none of them constitute evidence that any such alterations were actually completed. Nor

25 can they demonstrate the actual cost of any such alterations.

26

For example, what Plaintiffs characterize as a “determination” by BKC’s expert that alterations

27 costing $230,000 were made to the restaurant (Docket No. 302 at 2) is, in fact, simply an entry in the

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1 building permit history for the restaurant referring to a 1997 building permit for a “storeroom

2 addition” and signs with an estimated cost of $230,000. (See Docket No. 300 at Ex. 3 at Blackseth

3 000015). A third party franchisee’s request for permission to construct a “storeroom addition” clearly 4 does not constitute evidence that the parking lot, restrooms or dining area was altered.4 Likewise, not

5 only do the “bid documents” on which Plaintiffs rely suggest that no such work was ever completed,

6 they instead demonstrate the converse. The first “bid document” was dated January 23, 1997 and was

7 based on “plans … dated 10-22-96.” (Docket No. 300 at Ex. 5 at BKCPP 000850). That bid

8 apparently did not mature into a construction contract, as it was not signed and the work listed on it

9 had not been completed at the time of the FIR, which is dated February 25, 1997. (See Docket No.

10 300 at Ex. 4 at BKCPP 000781). Moreover, the only logical inference that can be drawn from the

11 February 25, 1997 FIR is that BKC had repeatedly asked this franchisee to complete the work listed in

12 the FIR, without success, as it indicates that it was a revision of an inspection report dated July 18,

13 1996, and that the July 18, 1996 report “supercede[d]” an earlier report dated March 17, 1995. (Id.)

14 Moreover, the only “bid document” dated after the February 25, 1997 FIR is for a “Seating & Décor

15 Quotation,” and totaled only $15,283. (Docket No. 300 at Ex. 6). It is not signed or accepted,

16 indicating that it, too, failed to mature into a contract.

17

Thus, none of the documents on which Plaintiffs rely constitute evidence that any of the work

18 to the parking lot, restrooms or dining area that Plaintiffs characterize as the “1997 alterations” ever 19 took place.5 Moreover, the franchisee of this restaurant, Willie Cook, testified that the only work done

20

21 4

Moreover, a resolution issued by the city’s Design Review Board approving this “storage

22

expansion” and other “cosmetic and sign changes” including a “change in roofing material” demonstrates that the permit did not include any alterations to the parking lot, restrooms or dining

23

area, as it expressly stated that the work being approved did not involve any change in the number of restaurant seats, that changes to the balance of the restaurant “are minimal” and that no substantial

24 change was being made to the site plan or landscaping or circulation (traffic) pattern for the restaurant. (Van Horn Decl. Ex. “D”).

25 5

The building permit history also compels the conclusion that no alterations were made to the

26 parking lot, restrooms or dining area in 1997, as it does not include any permits or permit applications

dated in or around 1997 for alterations to the parking lot, the restrooms, or the dining area, nor does it

27 include any permits for the construction of a drive-through or any of the other “big-ticket” items

mentioned in the FIR and bid documents on which Plaintiffs rely. (See Docket No. 300 at Ex. 3 at

28 Blackseth 000015).

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1 to the restaurant during 1997 and 1998 was a “reimaging,” which he defined as “bringing a building

2 décor, equipment up to current Burger King specifications.” (Van Horn Decl. Ex. “C” at 10, 23-24).

3 He further testified that the 1997-98 reimaging was “essentially a décor package.” (Id. at 119-20). He

4 expressly distinguished a “reimaging” from a “remodeling” by explaining that: “Reimaging involves

5 bringing equipment and décor packages up to current standards. Remodeling could mean any major

6 structural changes to the building.” (Van Horn Decl. Ex. “C” at 31).

7

Despite questioning Mr. Cook extensively about alterations allegedly made to the restaurant

8 during 2008 and 2009, Plaintiffs’ counsel never asked him what changes were made to the restaurant

9 during 1997 or 1998, nor did they show him the documents on which they rely here, or ask whether

10 the parking lot, restrooms or dining area of the restaurant were altered in 1997. Rather than seek - or

11 provide - testimony from the franchisee with the most knowledge of any alterations that might have

12 been made to the restaurant, Plaintiffs instead seek summary judgment based on rank speculation and

13 the mischaracterization of documents created before the supposed alterations purportedly took place.

14

Thus, at minimum, there are disputed questions of fact as to whether such alterations occurred

15 that preclude Plaintiffs’ claims for summary judgment under the ADA and CBC “alterations”

16 standards as to those restaurant elements. Moreover, the absence of evidence that those purported

17 alterations took place defeats Plaintiffs’ claims that those areas of the restaurant were required to meet 18 DOJ Standards in effect in 1997.6

19

C. Plaintiffs Are Not Entitled to Summary Judgment As to State-Law

Standards Because There are Questions of Fact as to Whether the Cost of the

20

Alteration to the Storage Area Was Sufficient to Trigger the CBC’s “Path of

Travel” Requirements 21

Plaintiffs’ claim that elements of the restaurant are or were “out of compliance” with state law 22

is based on their conclusion that a $230,000 alteration to the restaurant in 1997 implicated the CBC’s 23

“path of travel” requirement and therefore required that the restrooms and the path of travel to the 24

altered area be brought into full compliance with state accessibility laws. (Docket No. 302 at 7). 25

Here, as above, Plaintiffs have failed to carry their burden of demonstrating the existence of 26

27 6

Plaintiffs have expressly disclaimed any reliance on the ADA’s path of travel requirements.

28 See Docket No. 302 at 5 n.4.

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1 undisputed facts showing that any alterations to the restaurant actually were completed in 1997,

2 because the documents on which they rely all are pre-construction documents. (See Docket No. 300

3 at Exs. 3-6). Moreover, Plaintiffs are not entitled to summary judgment on their state law claims even

4 if we assume, arguendo, that the alteration to the storage area reflected on the 1997 building permit

5 was completed in 1997, as Plaintiffs sole evidence of the cost of that alteration – the cost estimate

6 listed on the building permit – does not constitute undisputed evidence of the cost of the completed

7 alteration. As a result, Plaintiffs also have failed to demonstrate the existence of undisputed facts

8 showing that the factual predicate necessary to trigger the CBC’s “path of travel” requirement has

9 been met. See CBC § 3112A(a) (1994) (reflecting the valuation threshold necessary to trigger the

10 “path of travel” requirements).

11

Finally, even if we assume, arguendo, that the cost of the assumed alteration was sufficient to

12 trigger the CBC’s “path of travel” requirement, the only restaurant areas that would have needed to be

13 brought into compliance with the 1997 CBC standards based on that alteration would be the restrooms,

14 as the ramp to the front door that Plaintiffs complain of (Docket No. 302 at 8) does not serve the

15 storeroom that was remodeled (see Docket No. 302 at 6-7, admitting that the “path of travel”

16 requirement in CBC § 3112A(a) (1994) required only that the “path of travel to, and restrooms that

17 serve, the altered area” were required to be brought into compliance with the then-effective CBC

18 requirements). Accordingly, the alleged expansion of the storage area did not require any alterations to

19 the dining area, the parking lot or the ramp to the front door.

20

Thus, Plaintiffs have failed to meet their burden of demonstrating the existence of undisputed

21 facts showing that they are entitled to judgment as a matter of law on their state law claims.

22

D. Plaintiffs Are Not Entitled to Partial Summary Judgment Because Their

Claim that Violations Existed in 1997 Is Directly Contradicted by a 1998

23

Certificate from an Independent Professional Certifying That the Restaurant

Complied with Applicable ADA Standards

24

25

Plaintiffs’ summary judgment motion is based on the theory that alterations made to the El

26 Cerrito restaurant in 1997 failed to comply with applicable standards for alterations, and that those

27 violations continued at least until the beginning of the class period in April 2006. (Docket No. 302 at

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1 1, 3, 12). That claim is flatly contradicted by an ADA Certificate of Inspection signed by a California-

2 licensed independent architect on January 28, 1998, certifying that Restaurant #2055 in El Cerrito is

3 “In substantial compliance with Title III of the ADA and the ADAAG.” (Van Horn Decl. Ex. “E”).

4 At minimum, this certificate raises a genuine issue of fact that precludes summary judgment on each

5 of Plaintiffs’ grounds for partial summary judgment.

6

E. The Entry of Partial Summary Judgment That Certain Restaurant Elements

Are “Out of Compliance” with Accessibility Standards Would Be Improper

7

Here Absent Consideration of Context and Applicable Defenses

8

Even if Plaintiffs could show that the so-called “1997 alterations” actually took place, and that

9 they triggered the “path of travel” requirements, they still would not be entitled to partial summary

10 judgment because it is impossible to conclude, in a vacuum, that an allegedly “out of compliance”

11 element constitutes an actual barrier to access that resulted in discrimination against a disabled person.

12

As discussed above, this Court previously analyzed in detail the question of whether a mere

13 failure to meet a specific accessibility standard was sufficient to support a finding that the accessibility

14 laws have been violated, concluding that, because the applicable regulations both contemplated the

15 possible reliance on other guidelines and expressly incorporate construction industry tolerances, the

16 mere failure to meet a standard does not, without more, constitute a violation of accessibility laws.

17 (See Sec. II.B, infra). Instead, the Court concluded that, at a minimum, the plaintiff bore the burden of

18 showing that any alleged failure to comply with standards exceeded applicable tolerances. Id.

19

Plaintiffs here have failed to carry their burden of showing that the six elements on which they

20 seek summary adjudication exceeded applicable tolerances. On the contrary, Plaintiffs do not even

21 discuss any tolerances that might be applicable to four of the six elements: (i) the ramp to the front

22 door (Docket No. 302 at 8); (ii) the maneuvering clearance for the door to the men’s restroom (id. at 9-

23 10); (iii) the toilet stalls in the men’s and women’s restrooms (id. at 11); and (iv) the dining area

24 seating (id. at 12). Accordingly, based on this Court’s own precedents, Plaintiffs have failed to carry

25 their burden as to these elements.

26

With respect to the two allegedly “out of compliance” elements as to which Plaintiffs do at

27 least mention a potentially applicable tolerance, they have failed to carry their burden of showing that

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1 the purported tolerances on which they rely are the correct tolerances. The “tolerances” on which

2 Plaintiffs rely came from a chart of “Acceptable Measurements” submitted by BKC in response to a

3 discovery request from Plaintiffs. (See Docket No. 300 at Ex. 12). BKC objected to being required to

4 opine as to the acceptable tolerances for the 65 restaurant elements included in that discovery request

5 on the grounds that “the question of the maximum acceptable deviation from a standard that would

6 qualify as a conventional building industry tolerance for field conditions is the subject of expert

7 testimony.” (Id. at Ex. 12 at 6-7). Moreover, BKC’s expert, Kim Blackseth, testified during his

8 deposition that he had seen a draft of BKC’s chart but had not commented on any of the proposed

9 tolerances contained in that chart. (Van Horn Decl. Ex. “F” [Blackseth Dep. at 181-82]).

10

The scope of conventional building industry tolerances is properly a subject of expert

11 testimony. Accordingly, by relying on the non-expert opinion of BKC’s counsel, rather than

12 submitting expert testimony as to the proper tolerances, Plaintiffs have failed to carry their burden of

13 showing that the alleged deviations from accessibility standards exceed applicable tolerances. See

14 U.S. v. AMC Ent., Inc., 245 F. Supp. 2d 1094, 1097 n.9 (C.D. Cal. 2003) (stating that the defendant’s

15 counsel was not competent to provide evidence as to measurements and tolerances).

16

The mere existence of a measurement that allegedly is “out of compliance” also does not

17 necessarily result in liability because there are a number of defenses that could apply to the various

18 measurements, including the question of whether an equivalent facilitation exists and is acceptable and

19 the question of whether a given alteration would be technically feasible.

20

Finally, for the reasons discussed in BKC’s summary judgment motion, BKC is not liable for

21 any violations of state law because it has not discriminated against Plaintiffs or aided others in doing

22 so. Given that fact, and the lack of any other defendants in this litigation, Plaintiffs are not entitled to

23 summary judgment as to liability under state law.

24

Thus, there are questions of fact as to whether the alleged failures to comply with federal or

25 state standards constitute violations of applicable accessibility laws, that cannot be resolved on the

26 meager record Plaintiffs have submitted to the Court. For this reason, too, Plaintiffs’ summary

27 judgment motion must be denied.

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1

F. Plaintiffs Are Not Entitled to Partial Summary Judgment Because Claims

Based on a 1997 Alteration Are Time Barred

2

3

Finally, Plaintiffs would not be entitled to summary judgment as to whether certain restaurant

4 elements were “out of compliance” even if they could solve all of the problems with their motion

5 discussed above, because any claims based on alterations that were completed in 1997 would be time-

6 barred.

7

The Ninth Circuit has expressly recognized that “[a] plaintiff has no cause of action under the

8 ADA for an injury that occurred outside the limitations period.” Pickern v. Holiday Quality Foods

9 Inc., 293 F.3d 1133, 1137 (9th Cir. 2002). However, the ADA itself does not contain a statute of

10 limitations. Id. at 1137 n.2. In such cases, courts are directed to apply the most analogous state law

11 limitations period. Id. See also 42 U.S.C. § 1988(a); Maldonado v. Harris, 370 F.3d 945, 954 (9th

12 Cir. 2004) (applying the California personal injury statute of limitations in a discrimination action

13 brought under Section 1983 of the Civil Rights Act). Most federal courts faced with this question

14 under the ADA have applied the personal injury statute of limitations recognized by the state in which

15 they sit. 1 AMDISPCM § 4:171 (listing cases). Similarly, as noted by the Ninth Circuit in Pickern,

16 “[m]ost district courts [in California] have applied California’s … limit for personal injury actions to

17 federal disability discrimination claims brought in California.” Pickern, 293 F.3d at 1137 n.2

18 (assuming without deciding that the California limitations period for personal injury actions applied to 19 Title III ADA claims).7

20

California currently has a two-year statute of limitations for personal injury claims, see Cal.

21 Civ. Proc. Code § 335.1, which the Ninth Circuit has expressly held to be applicable to discrimination

22 claims brought under Section 1983 of the Civil Rights Act. See Maldonado, 370 F.3d at 954. See also

23 Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1136 n.8 (9th Cir. 2001) (citing cases

24

25 7

Neither of the two California state laws most analogous to the ADA (the Unruh Civil Rights

Act, Cal. Civ. Code § 51, and the California Disabled Persons Act, Cal. Civ. Code § 54.1) include

26 their own statute of limitations. Accordingly, both state and federal courts in California previously have held that the California personal injury statute of limitations also applies to discrimination claims

27 made those statutes. See, e.g., Mitchell v. Sung, 816 F. Supp. 597 (N.D. Cal. 1993); Gatto v. County of Sonoma, 120 Cal. Rptr. 2d 550 (Cal. Ct. App. 2002).

28

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1 holding, but not itself deciding, that California’s personal injury limitations period applied to a

2 disability discrimination claim brought under Section 1983). Since the ADA is an anti-discrimination

3 civil rights statute like Section 1983, and both statutes apply to discrimination claims based on

4 disability, the same statute of limitations logically should apply to both statutes. See Pickern, 293 F.3d

5 at 1137 n.2. Accordingly, California’s two-year statute of limitations period for personal injury claims

6 applies to Title III ADA claims brought in California federal courts.

7

The only remaining question, then, is when that two-year limitations period begins to run.

8

With respect to claims under the ADA for a failure of existing facilities to remove architectural

9 barriers under 42 U.S.C. § 12182(b)(2)(A)(iv), the Ninth Circuit has recognized that, because public

10 accommodations have an on-going obligation to remove architectural barriers when doing so is readily

11 achievable, a disabled person who is aware of such barriers, and is deterred from patronizing the

12 establishment because of the failure to remove such barriers within the limitations period, his claim for

13 barrier removal is not time-barred. Id. at 1136-37. This conclusion is based on the express language

14 of the ADA providing that a disabled person need not engage in a futile gesture (such a patronizing a

15 store with a known barrier) when that person has actual notice of the barrier. See Pickern, 293 F.3d at

16 1136; 42 U.S.C. § 12188(a)(1). See also Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622, 630 (D.

17 Md. 2002) (holding that there is no statute of limitations issue with respect to a claim based on a

18 failure to remove barriers because “the Bank has a continuing duty to meet the existing facilities

19 standards”).

20

However, with respect to claims based on the “new construction” and “alterations” provisions

21 of Title III of the ADA, both found in 42 U.S.C. § 12183(a), the alleged violation is based on an action

22 that occurred at a specific point in time. See Speciner, 215 F. Supp. 2d at 634 (finding that the

23 plaintiff’s “alterations” claim, which was “based upon action taken in 1994” was time barred).

24 Accordingly, the statute of limitations begins to run when the construction or alteration work at issue

25 is completed. Id.

26

The Ninth Circuit recently reached a similar conclusion in the context of a “construction”

27 claim under the Fair Housing Act (the “FHA”). In Garcia v. Brockway, 526 F.3d 456, 460 (9th Cir.

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1 2008) (en banc), cert. denied sub nom Thompson v. Turk, 129 S. Ct. 724 (2008), the Ninth Circuit held

2 that, under the FHA, which, like the ADA, prohibits the “failure to design and construct” facilities that

3 do not comply with accessibility standards, the statute of limitations for a “construction” claim is

4 “triggered at the conclusion of the design-and-construction phase, which occurs on the date the last

5 certificate of occupancy is issued.” Garcia, 526 F.3d at 466. The same conclusion would apply to a

6 “construction” claim under the ADA, since the operative language of the two statutes is virtually 7 identical.8

8

Moreover, in Garcia, the Ninth Circuit expressly rejected the application of any type of

9 “continuing violation” or “encounter” or “discovery” theory to extend that statute of limitations,

10 expressly distinguishing between a continuing violation, in which the violative acts are continuing,

11 and a continuing impact from a previous violation, in which the effect of the prior violation continues

12 to be felt long after the violation occurs. Id., 526 F.3d at 462-65 (holding that the statute of limitations

13 on a “failure to design and construct” violation begins to run when the discriminatory act occurs,

14 which is at the time of construction, and not when the violation is encountered or otherwise discovered

15 by a disabled person). Therefore, in Garcia, the Court held that the statute of limitations had run on

16 the plaintiffs’ claims, which were brought many years after the buildings at issue were constructed.

17

Because both the ADA and the FHA use the same “failure to design and construct” language to

18 describe the prohibited disability discrimination, the conclusion that the statute of limitations begins to

19 run at the conclusion of the construction period logically should apply to both Acts.

20

Similarly, and for the same reasons, the statute of limitations has expired with respect to any

21 alterations that were completed in 1997. Under the reasoning of Garcia, if the statute of limitations on

22 a construction claim begins to run when construction is completed, the statute of limitations on an

23 alterations claim similarly would begin to run when the alteration is completed. Indeed, that is exactly

24

25 8 The provision of the FHA at issue in Garcia applies to “multifamily dwellings,” while the ADA
26 applies to “public accommodations and commercial facilities.” 42 U.S.C. § 12183(a). However, the operative “failure to design and construct” language is otherwise identical. Compare 42 U.S.C. §
27 3604(f)(3)(C) (FHA) with 42 U.S.C. § 12183(a)(1) (ADA).

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1 what the district court held in Speciner, 215 F. Supp. 2d at 634 (finding ADA “alteration” claim

2 bassed on 1994 alterations to be time-barred based on state limitations period). Moreover, one of the

3 factors relied upon by the district court in Speciner in concluding that the “alterations” claims were

4 time barred also is present here – the passage of more than ten years since the completions of the

5 alterations at issue here has “resulted in the loss of detailed documentation and understandably

6 unreliable memories as to details” that have made it difficult to determine what work was actually

7 done during the course of the subject “alterations.” Id. at 633 n.13. Accordingly, here, Plaintiffs’

8 claims based on alterations completed in 1997 are time-barred and Plaintiffs’ summary judgment

9 motion based on those claims must be denied.

10 IV. CONCLUSION

11

For all of these reasons, Plaintiffs have failed to demonstrate the existence of undisputed facts

12 entitling them to partial summary judgment as a matter of law on their claims based on the alleged

13 1997 “alterations” to the El Cerrito restaurant. Accordingly, Plaintiffs’ motion must be denied.

14 Dated: February 25, 2010.

15

GENOVESE JOBLOVE & BATTISTA, P.A.

Michael D. Joblove (pro hac vice)

16

Jonathan E. Perlman (pro hac vice)

Bank of America Tower, 44th Floor

17

100 S.E. Second Street

Miami, Florida 33131 18

19

GLYNN & FINLEY, LLP Clement L. Glynn

20

Adam Friedenberg One Walnut Creek Center

21

100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596

22

23 By: /s/ Michael D. Joblove _______

24

Michael D. Joblove (pro hac vice)

25 26 2000-491/#3677

Attorneys for Defendant Burger King Corporation

27

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United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 MIGUEL CASTANEDA, KATHERINE

11

CORBETT, and JOSEPH WELLNER, on behalf of themselves and others similarly

12 situated,

No. C 08-04262 WHA

13

Plaintiffs,

14

v.

15 BURGER KING CORPORATION,

ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT

16

Defendant. /

17

18

INTRODUCTION

19

This is an ADA action alleging barriers to access on behalf of mobility-impaired

20 customers of restaurants leased by defendants. Ten classes have been certified — one for each

21 of the restaurants at which a named plaintiff allegedly encountered an access barrier — with

22 separate trials scheduled for each class. Plaintiffs and defendant now move for preliminary

23 approval of a stipulated settlement agreement that would resolve this action as to all ten

24 certified classes. The parties have reached a settlement that is sufficiently fair and reasonable

25 for damages claimants and absent class members that it should receive at least preliminary

26 approval. Accordingly, the joint motion for preliminary approval of the proposed settlement is

27 GRANTED.

28

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United States District Court For the Northern District of California

1

2

STATEMENT

3

Named plaintiffs, Miguel Castaneda, Katherine Corbett, and Joseph Wellner, use

4 wheelchairs or scooters for mobility. They brought this action to remedy alleged architectural

5 barriers to access at restaurants that defendant Burger King Corporation leases to franchisees in

6 California. The putative class sued for an injunction ordering defendant to adopt policies that

7 would ensure access for customers who used wheelchairs and scooters and to bring the leased

8 restaurants into compliance with the Americans with Disabilities Act, 42 U.S.C. 12101, Section

9 51 of the California Civil Code (the Unruh Civil Rights Act), and Section 54 of the California

10 Civil Code (the California Disables Persons Act). They also sought the statutory minimum

11 damages for each offense, which includes $4,000 for each violation. Plaintiffs alleged that a

12 violation occurred each time a patron visited a store and encountered an access barrier there.

13

Plaintiffs sought to certify a single class including patrons of all Burger King restaurants

14 in California leased by Burger King to franchisees. There were approximately 92 such stores.

15 A September 2009 order held that whether or not any particular store was ever out of ADA

16 compliance would have to be determined store by store and feature by feature, and therefore

17 certified a separate class for each of the ten individual restaurants where a named plaintiff

18 encountered alleged access barriers (Dkt. No. 226). Class members were required to opt-in to

19 be eligible to claim individualized statutory damages pursuant to the Unruh Act and the CDPA.

20 The deadline for persons to opt in as class members was March 1, 2010. Three hundred eighty-

21 two people opted in by the deadline. An additional 27 individuals contacted class counsel and

22 may or may not be damages claimants. The parties have agreed that these individuals shall be

23 sent damages notices and claims forms and shall be allowed to make valid claims for monetary

24 damages if they so choose.

25

The first trial — for the class of patrons of the Burger King restaurant located at 6021

26 Central Avenue, in El Cerrito — is scheduled to begin on April 19, 2010. Summary judgment

27 motions relating to that class were pending when the parties filed their joint motion for

28 preliminary approval of class settlement. The motion for preliminary approval was heard on

2

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United States District Court For the Northern District of California

1 March 18, 2010, on shortened time in lieu of the hearing on the parties’ cross-motions for

2 summary judgment which had been scheduled for the same day.

3

ANALYSIS

4 1.

BENEFIT TO CLASS MEMBERS.

5

The proposed settlement agreement provides for injunctive relief, including the

6 elimination of alleged accessibility barriers, the use of mandatory checklists with specific

7 accessibility items for remodeling, alterations, repairs and maintenance, and the monitoring of

8 compliance at the ten restaurants. The agreement requires three types of periodic access

9 surveys including (1) daily surveys conducted by tenant franchisee managers to ensure

10 frequently-changing elements remain in compliance such as that movable condiment dispensers

11 are kept within reach of persons in wheelchairs and that the path of travel to restrooms is not

12 obstructed, (2) mid-level surveys conducted every three years including items such as parking

13 lot restriping and restroom fixture, and (3) successor remodel surveys conducted whenever a

14 restaurant is remodeled, which occurs approximately once every 20 years. The proposed

15 settlement agreement provides for the Court to retain jurisdiction to enforce the terms of

16 settlement for six years after the settlement agreement has been finalized.

17

The settlement also provides for a cash payment of $5,000,000 to the named plaintiffs

18 and the 382 class members who opted in stating that they wished to pursue damages claims

19 before the deadline on March 1, 2010. Monetary awards to each claimant will be distributed

20 pro rata based on the total number of visits by each damages claimant to one of the ten

21 restaurants where he or she encountered a barrier, with a maximum number of six visits for

22 which each damages claimant can obtain recovery. Each of these damage claimants must

23 complete a claim form documenting his or her eligible visits. Payment for the costs of notifying

24 the class up to $15,000 and administering the settlement up to $50,000 shall be paid by class

25 counsel, while costs above those amounts shall come from the settlement fund. Nevertheless,

26 the parties estimate that even after such funds are deducted, each of the 385 claimants will

27 receive over $4000 per eligible visit up to six visits. The average recovery is approximately

28 $13,000 for each claimant (Fox Decl. ¶ 2).

3

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United States District Court For the Northern District of California

1

Plaintiffs estimated damages as high as $20,000,000 with respect to the ten certification

2 restaurants (Fox Decl. ¶ 8). Nevertheless, this assumed that plaintiffs could recover $4,000 per

3 visit to each restaurant by a class member, which would have been disputed at trial. The parties

4 say that on a per-class-member and per-facility basis, this settlement is the highest monetary

5 settlement ever in a disability access case involving public accommodation (Br. at 1). It is at

6 the least an adequate recovery in light of the risks of litigation.

7

The breadth of the release to be imposed on the absent class members is sufficiently

8 narrow. With respect to injunctive relief, the proposed settlement binds not only the damages

9 claimants but also absent class members including:

10

“all individuals with mobility-impairment disabilities who use

11

wheelchairs or electric scooters for mobility who, at any time on

12

or after April 16, 2006, were denied, or are currently being

13

denied, on the basis of their mobility-impairment disability, full

14

and equal enjoyment of the goods, services, facilities, privileges,

15

advantages, or accommodations of one or more of [the ten

16

restaurants].”

17

Absent class members who have not pursued damages claims release only non-monetary

18 claims relating to the accessibility of the ten restaurants based on conduct preceding final

19 approval of the settlement agreement. Given the scope of injunctive relief provided for on their

20 behalf by the proposed settlement, and the fact that they do not release any claims for monetary

21 damages, this is not an unreasonably broad release.

22

Damages claimants, by contrast, are required to release all damages relating to

23 accessibility at the restaurants including monetary damages if they do not submit a form opting

24 out of receiving a monetary award. The parties have agreed that if more than 30 damages

25 claimants opt out of the class, or if the aggregate claims of damages claimants who opt out

26 exceeds $500,000, defendant Burger King Corporation may declare the agreement null and

27 void.

28

4

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United States District Court For the Northern District of California

1

2 2.

ATTORNEY’S FEES AND INCENTIVE FEES.

3

The parties say that attorney’s fees will not come from the $5,000,000 in the damages

4 fund, but shall be paid separately by defendant. The parties have agreed that defendant Burger

5 King Corporation will not oppose a request of attorney’s fees and costs up to $2,500,000. In

6 addition, lead plaintiffs intend to apply for incentive payments to compensate them for time and

7 expenses. Generally, additional benefits to named plaintiffs beyond those received by the rest

8 of the class are disfavored. If a settlement is not good enough for named plaintiffs, it is usually

9 not good enough for the class. Nevertheless, that issue need not be resolved at this stage of

10 preliminary approval.

11

Class members must have an opportunity if they so choose to object to structuring the

12 attorney’s fees in this manner. The parties must file a motion for final approval of settlement

13 and a motion for attorney’s fees and any incentive payments for named plaintiffs no later than

14 MAY 17, 2010. This motion must be posted to the website established by class counsel. The

15 notices shall also be amended to inform class members that they have the right to object to the

16 structure and amount of attorney’s fees and incentive payments. This will give the class

17 members an opportunity to object to the amount of attorney’s fees and incentive payments if

18 they desire to do so.

19 3.

NOTICE TO CLASS MEMBERS.

20

The parties have submitted proposed forms of notices of injunctive relief as well as

21 notices to damages claimants. They propose to post short-form notices at the ten restaurants for

22 30 calendar days, use a case-specific website and toll-free phone number, and to send long-form

23 notices to advocacy groups. They also propose mailing notice to damages claimants to the last

24 known address of each damages claimant and potential damages claimant. The forms of the

25 proposed notices include an adequate summary of the proposed settlement to inform class

26 members of the terms of settlement.

27

28

5

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United States District Court For the Northern District of California

1

As noted above, the notices must be edited to inform class members that they have the

2 right to object to the structure and amount of attorney’s fees. On the first page of all notices,

3 the following must be added:

4

“Class counsel shall file with the Court an application for

attorney’s fees, costs, and incentive fees for the named plaintiffs

5

no later than May 17, 2010. You may view this application

online at www.burgerkingclassaction.net after May 17, 2010. If

6

you disagree with the amount or structure of these fees, you may

file a written objection or present oral objections at the Fairness

7

Hearing.”

8

The deadline for notice to issue shall be APRIL 1, 2010. The parties must file a motion

9 for final approval of settlement and a motion for attorney’s fees and any incentive payments for

10 named plaintiffs no later than MAY 17, 2010. Damages claimants shall have until JUNE 7, 2010,

11 within which to opt out of the monetary provisions of the settlement. Class members shall have

12 until JUNE 7, 2010, to submit objections to the settlement. If more than 30 damages claimants

13 opt out of the class, or if the aggregate claims of damages claimants who opt out exceeds

14 $500,000, defendant Burger King Corporation may declare the settlement null and void no later

15 than NOON ON JUNE 17, 2010. If it does so, it must immediately so inform the Court. A final

16 approval hearing shall be held on JULY 8, 2010, AT 8:00 A.M. The deadline for damages

17 claimants to submit claims forms shall be no later than AUGUST 13, 2010.

18 IT IS SO ORDERED.
19

20 Dated: March 18, 2010.
21
22

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28

6

 
 1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
7

8

United States District Court For the Northern District of California

9 MIGUEL CASTANEDA, on behalf of 10 himself and others similarly situated,

11

Plaintiff,

12

v.

13

BURGER KING CORPORATION and BURGER KING HOLDINGS, INC.,

14

Defendants.

15

/

16

No. C 08-04262 WHA
ORDER RE DEFENDANTS’ MOTION TO DISMISS; DEFENDANTS’ MOTION FOR A STAY OF CERTAIN DISCOVERY; PLAINTIFF’S MOTION TO COMPEL REMOVAL OF CONFIDENTIAL DESIGNATION

17

INTRODUCTION

18

In this disability-rights action, plaintiff Miguel Castaneda sued on behalf of himself and

19 others similarly situated for violations of the Americans with Disabilities Act as well as state

20 law. Plaintiff alleges access violations at a subset of Burger King’s restaurants in California:

21 those that Burger King leases to or from other entities. Well before the Rule 23 stage,

22 defendants move to dismiss the claims, inter alia, on the grounds that plaintiff lacks standing to

23 assert claims with respect to those stores he has not alleged personally to have visited.

24 Defendants also move to stay discovery into the class claims pending resolution of the instant

25 motion to dismiss. Finally, plaintiff has filed a motion to compel removal of defendants’

26 designation of certain discovery as confidential. For the reasons stated below, defendant’s

27 motion to dismiss is DENIED. Defendants’ motion for a stay is also DENIED. Plaintiff’s motion

28 to compel removal of confidential designation is GRANTED.

United States District Court For the Northern District of California

1

STATEMENT

2

For the purposes of this motion, the following well-pled facts will be taken as true.

3 Plaintiff, a resident of California, has incomplete quadriplegia and uses a wheelchair for

4 mobility. Burger King Holdings is the parent company of defendant Burger King Corporation.

5 Plaintiff alleges access violations at roughly 90 of Burger King’s approximately 500 restaurants

6 in California: those that Burger King leases to or from other entities (“leased stores”) (Compl.

7 ¶¶ 10–12, 23–24).1

8

Plaintiff alleges that the leased restaurants deny customers who use wheelchairs or

9 scooters access to restaurant services on account of architectural or design barriers or

10 discriminatory policies or practices. Those access barriers include inaccessible parking lots,

11 entry and restroom doors that are too heavy, queue lines (to order food) that are too narrow for

12 wheelchairs, inaccessible dining areas, and inaccessible restrooms. Plaintiff alleges that these

13 access barriers are a result of intentional discrimination against the putative class (Compl. ¶¶

14 1–2, 39–40, 44).

15

The complaint alleges that plaintiff has patronized “several” Burger King restaurants in

16 California, including a restaurant at 677 Contra Costa Boulevard in Pleasant Hill and one at

17 2162 Railroad Avenue in Pittsburg, both allegedly leased restaurants. Plaintiff encountered

18 access barriers such as those described above at those restaurants (Compl. ¶¶ 41–42).

19

Although the complaint does not purport to challenge a single, identical architectural

20 design or access policy at all of the (approximately) 90 leased restaurants, it alleges several

21 common characteristics among the leased restaurants. It alleges that some or all of those stores

22 were built according to “one or a limited number of architectural design prototypes developed

23 by Burger King.” It alleges that Burger King exercises substantial control over some or all of

24 the leased restaurants, including over the development, design, alteration, remodel, maintenance

25 and operation of those restaurants. Burger King, it avers, has entered into development

26 agreements requiring construction of some or all of the California restaurants, or the

27
1 The complaint initially named Burger King Holdings, Inc, as a defendant, but the claims against
28 Burger King Holdings, were dismissed without prejudice by stipulation, leaving only Burger King Corporation
as a defendant (Dkt. No. 26).

2

United States District Court For the Northern District of California

1 performance of “re-imaging” programs at those restaurants, in accordance with Burger King

2 designs; has provided building plans used to construct some or all of those restaurants; and has

3 provided construction teams to aid in designing and building some or all of those restaurants.

4 Finally, the complaint alleges that some or all of the leased restaurants are required to comply

5 with Burger King’s Manual of Operating Data (“MOD”), which contains official operating

6 standards and procedures (Compl. ¶¶ 25–34).

7

Plaintiff alleges that some or all of the leased restaurants have been altered since 1992,

8 when the ADA regulations regarding alterations went into effect. Plaintiff further alleges that

9 some or all of those stores have undergone alterations, structural repairs and/or additions since

10 1970, when California access regulations went into effect (Compl. ¶¶ 37–38).

11

Plaintiff brings this action on behalf of a putative class that includes all individuals with

12 manual and/or mobility disabilities who use wheelchairs or electronic scooters and who were

13 thereby denied access by the alleged barriers. The class is alleged to consist of “at least several

14 thousand members” dispersed across California (Compl. ¶¶ 13–14).

15

The complaint asserts three claims. The first claim asserts violations of the Americans

16 with Disabilities Act. 42 U.S.C. 12182(a). The second claim arises under California’s Unruh

17 Civil Rights Act. Cal. Civ. Code §§ 51 et seq. The third claim is for violations of California’s

18 Disabled Persons Act. Cal. Civ. Code §§ 54 et seq. The complaint seeks declaratory and

19 injunctive relief under the ADA, and minimum statutory damages for the two state claims.

20

Defendants now move to dismiss the complaint pursuant to Rule 12(b)(1), alleging a

21 lack of standing and lack of subject-matter (diversity) jurisdiction, as well as under Rule

22 12(b)(6) for failure to state a claim. In the alternative, defendants move for a more definite

23 statement under Rule 12(e) and move to strike the class allegations under Rule 12(f).

24

ANALYSIS

25

The party seeking to invoke the Court’s jurisdiction bears the burden of establishing

26 subject-matter jurisdiction. A jurisdictional challenge under Rule 12(b)(1) may be made either

27 on the face of the pleadings or by presenting extrinsic evidence. Warren v. Fox Family

28

3

United States District Court For the Northern District of California

1 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).2 “In a facial attack, the challenger

2 asserts that the allegations contained in a complaint are insufficient on their face to invoke

3 federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the

4 allegations that, by themselves, would otherwise invoke federal jurisdiction.” If the Rule

5 12(b)(1) motion is a facial attack, a district court must accept all allegations in the complaint as

6 true and draw all reasonable inferences in favor of the plaintiff. Wolfe v. Strankman, 392 F.3d

7 358, 362 (9th Cir. 2004). Defendants mount a facial attack, arguing that the ADA is inherently

8 “site specific” or that the complaint does not allege commonality with adequate specificity (see

9 Reply at 3).

10

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims

11 alleged in the complaint. See Parks Sch. of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir.

12 1995 ). All material allegations of the complaint are taken as true and construed in the light

13 most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 340 (9th

14 Cir. 1996). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

15 detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment]

16 to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements

17 of a cause of action will not do. Factual allegations must be enough to raise a right to relief

18 above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1255, 1264- 65 (2007).

19

1.

STANDING TO ASSERT THE CLASS CLAIMS.

20

Defendants challenge plaintiff’s standing to assert the ADA claims against all 90 leased

21 stores on a class-wide basis. Defendants contend that the claims should be dismissed for want

22 of jurisdiction because plaintiff lacks standing to allege access barriers at any of the leased

23 restaurants other than the two plaintiff specifically claims to have visited, and that the mere

24 allegation of class claims does not create standing to challenge barriers at all leased restaurants

25 in California.

26

Title III of the ADA forbids discrimination against disabled individuals in public

27 accommodations. 42 U.S.C. 12181–12189. As the Supreme Court has explained,

28
2 Unless otherwise indicated, internal citations are omitted from all quoted authorities.

4

United States District Court For the Northern District of California

1 “[Section]12182(a) sets forth Title III’s general rule prohibiting public accommodations from

2 discriminating against individuals because of their disabilities. The question whether petitioner

3 has violated that rule depends on a proper construction of the term ‘discrimination,’ which is

4 defined by Title III to include” various practices, including “a failure to make reasonable

5 modifications in policies, practices, or procedures, when such modifications are necessary to

6 afford such goods, services, facilities, privileges, advantages, or accommodations to individuals

7 with disabilities.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 681–82 (2001) (quoting Section

8 12182(b)(2)(A)(ii)). Discrimination is further defined to include, inter alia, “a failure to

9 remove architectural barriers . . . in existing facilities . . . where such removal is readily

10 achievable;” “a failure to design and construct facilities for first occupancy later than 30 months

11 after July 26, 1990, that are readily accessible to and usable by individuals with disabilities;”

12 and “with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an

13 establishment in a manner that affects or could affect the usability of the facility or part thereof,

14 a failure to make alterations in such a manner that, to the maximum extent feasible, the altered

15 portions of the facility are readily accessible to and usable by individuals with disabilities,

16 including individuals who use wheelchairs.” 42 U.S.C. 12182(b)(2)(A)(iv); 12183(a).3

17

Defendant contends that plaintiff cannot “create” standing as to non-visited restaurants

18 merely by making class allegations. Defendants insist that plaintiff’s standing is limited to

19 challenging barriers at those restaurants plaintiff actually visited, or at least those restaurants

20 plaintiff was actually deterred from visiting due to known violations at that specific location,

21 but not at the remaining 90 or so leased stores in California.4

22

23

24

3 As the Ninth Circuit has explained, “[a]n individual alleging discrimination under Title III must show

that: (1) he is disabled as that term is defined by the ADA; (2) the defendant is a private entity that owns,
25 leases, or operates a place of public accommodation; (3) the defendant employed a discriminatory policy or

practice; and (4) the defendant discriminated against the plaintiff based upon the plaintiff's disability by (a)
26 failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiff's

disability.” Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004).
27

4 The complaint specifically identifies two stores that plaintiff visited and encountered barriers.
28 Plaintiff subsequently submitted a declaration identifying seven additional stores plaintiff had visited which,

plaintiff explains, he only subsequently learned were also leased stores.

5

United States District Court For the Northern District of California

1

Article III standing for ADA claims is not inherently site specific. The “irreducible

2 constitutional minimum” of standing contains three elements: (1) the plaintiff must have

3 suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete

4 and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there must be

5 a causal connection between the injury and the conduct complained of; and (3) it must be

6 “likely,” as opposed to merely “speculative,” that the injury will be redressed by a favorable

7 decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). When a plaintiff seeks

8 injunctive relief, the plaintiff’s showing of legal injury must include establishing a sufficient

9 likelihood that he will again be wronged in a similar way. City of Los Angeles v. Lyons, 461

10 U.S. 95, 111 (1983). For ADA claims, however, “[a]llegations that a plaintiff has visited a

11 public accommodation on a prior occasion and is currently deterred from visiting that

12 accommodation by accessibility barriers establish that a plaintiff's injury is actual or imminent.”

13 Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir. 2008). Here, plaintiff seeks declaratory

14 and injunctive relief in the ADA claims and minimum statutory damages (as well as injunctive

15 relief) in the state claims.

16

As stated, the ADA proscribes not only discrimination resulting from a particular

17 physical barrier at a specific location but rather discriminatory practices — “policies, practices,

18 or procedures” that affect public accommodations and “failure[s] to design and construct

19 facilities for first occupancy . . . that are readily accessible to and usable by individuals with

20 disabilities.” As the Ninth Circuit recently explained, albeit in an individual action challenging

21 multiple access barriers a specific location rather than a class action spanning multiple

22 locations,

23

it is not an essential prerequisite of an ADA plaintiff's standing

that he prove that deterrence caused by previously encountered

24

violations was the reason that a particular violation was not

discovered and hence alleged in his complaint. Such an

25

individualized causal showing is not required because it is

ultimately misleading to conceptualize each separate

26

architectural barrier inhibiting a disabled person’s access to a

public accommodation as a separate injury that must satisfy the

27

requirements of Article III . . . . Given that an ADA plaintiff has

standing because of deterrence from returning in the face of

28

uncertainty, it is prudent to eliminate that uncertainty through the

judicial device of discovery, thus allowing the plaintiff to obtain

6

United States District Court For the Northern District of California

1

by formal means the information about the scope of the

defendant’s violations.

2

Doran, 524 F.3d at 1042–43 (emphasis added).

3

Although no Ninth Circuit decision specifically regarding the scope of ADA injury in

4

the context of class standing has been found, most district courts to have considered the issue

5

find that a plaintiff may challenge discrimination on behalf of a class where the discrimination

6

arises from a common policy or practice, or a common architectural design, at multiple

7

commonly owned or affiliated locations. As a decision in this district explained:

8

the specific theater design features challenged by plaintiffs are

9

ones . . . they allege exist or have existed in many if not all of

defendant’s theaters during the relevant period . . . . [I]it follows

10

that the legality of those features are legal issues common to the

claims of the members of all of the subclasses. In addition,

11

where, as here, plaintiffs challenge conditions at several sites, all

owned by a single corporate defendant, the legal standard applied

12

under the ADA to evaluate the adequacy of the accommodations

at each of the respective theaters is one that hinges, in part, on

13

various corporation-wide factors such as the availability of

resources.

14

Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994) (Henderson, J.)

15

(on a motion for class certification).5

16

This reasoning equally applies where the various stores are not commonly owned but are

17

affiliated in some other relevant manner such that the discriminatory practice derives from a

18

common source. For example, Access Now certified a class challenging practices at some 350

19

to 400 medical facilities, explaining that “[w]hile the Defendants herein are not jointly owned or

20

operated, they do share a unique link in the area of construction and building code (including

21

ADA guidelines) compliance through a services agreement. Pursuant to this voluntary

22

agreement, the Defendants have availed themselves of a common program of construction,

23

24
5 See also, e.g., Moeller v. Taco Bell Corp., 220 F.R.D. 604, 609 (N.D. Cal. 2004) (explaining, on a on
25 class certification motion, “[a] number of courts have held that where people who use wheelchairs encounter the
same types of barriers at a number of commonly-owned or affiliated public accommodations, commonality is
26 established and class certification is appropriate”); Lucas v. Kmart Corp., 2005 WL 1648182 (D. Colo. 2005)
(certifying nationwide class where “Plaintiffs sought injunctive relief to correct these centralized policies and
27 practices that created architectural and related barriers and impeded the ability of wheelchair-bound shoppers
from using or enjoying access to Kmart”); Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D.
28 354 (D. Colo. 1999) (similar); Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 197 F.R.D. 522
(S.D. Fla. 2000).

7

United States District Court For the Northern District of California

1 design.” Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 197 F.R.D. 522, 526–27

2 (S.D. Fla. 2000).

3

This order agrees: ADA standing is not necessarily site specific. The conclusion does

4 not abrogate the need to establish individual standing; rather, it simply recognizes that the

5 specific injury under the ADA is not a specific barrier at a specific site but instead the

6 discriminatory policy or design or decision. If an offending policy or design gave rise to more

7 than one violation, then reversing the policy should eliminate more than one barrier.

8

Here, the complaint alleges the existence of several common barriers among the leased

9 restaurants. It also alleges that those common barriers (at some or all of the 90 restaurants)

10 arise from various common policies or designs. As stated, the complaint alleges that some or

11 all of those stores were built according to “one or a limited number of architectural design

12 prototypes developed by Burger King.” It alleges that Burger King exercised substantial

13 control over some or all of the leased restaurants, including over the development, design,

14 alteration, remodel, maintenance and operation of those restaurants. Burger King allegedly

15 entered into development agreements requiring construction of some or all of the California

16 restaurants or the performance of “re-imaging” programs at those restaurants in accordance with

17 Burger King designs. Burger King also allegedly provided building plans used to construct

18 some or all of those restaurants and provided construction teams to aid in designing and

19 building some or all of those restaurants (Compl. ¶¶ 25–34).

20

It is true that the pleadings do not pinpoint the exact common policy or design features

21 allegedly giving rise to the violations at the 90 stores with particularity, but courts do not apply

22 a heightened pleading standard to ADA claims and the allegations here set forth the “grounds”

23 for an entitlement to relief on a class basis at more than a conclusory level. Indeed, few

24 decisions have been found denying a plaintiff who alleges such a common policy or practice the

25 opportunity to engage in discovery in order to prove his or her claim. This is not to say that

26 plaintiff will be able to satisfy Rule 23 at the class certification stage. It is only to say that there

27 is enough pled to allow discovery on the class issues so that plaintiff will have a fair chance to

28 develop his Rule 23 motion.

8

United States District Court For the Northern District of California

1

Contrary to defendants, Clark v. Burger King did not apply a different rule. It reasoned

2 that “[a]s to places Clark ha[d] yet to visit, absent any allegation that there exist[ed] (1)

3 particular commonality of construction, or (2) that BKC implement[ed] a corporate policy

4 violative of the ADA at Burger King restaurants, Clark clearly lack[ed] standing.” Clark v.

5 Burger King, 255 F. Supp. 2d 334, 343–44 (D.N.J. 2003). It simply found that the plaintiff had

6 failed to plead such commonality and therefore the plaintiff’s standing was limited to stores

7 actually visited. The decision cautioned, however, that “[i]f, on the other hand, there existed an

8 allegation that all Burger King restaurants are similar, in that they possess commonality of

9 architecture, or that they implement a corporate policy violative of the ADA, Clark may have

10 standing as to restaurants he has yet to visit.” Id. at 343 n.11. See also Clark v. McDonald's

11 Corp., 213 F.R.D. 198, 221, 230 (D.N.J. 2003) (similar; rejecting class claims but explaining

12 that “[h]ad plaintiffs alleged, for example, that McDonald’s and its franchisees adhered to a

13 company-wide policy [contrary to the ADA] . . . then one could imagine why injunctive

14 relief-against the defendants as a class-might be appropriate to redress such violations”).

15

Defendants also cite decisions regarding franchisee-franchisor relationships which have

16 rejected class claims. Those decisions, however, rejected the class claims at summary

17 judgment, not on the pleadings, and in all respects applied an inquiry consistent with that here

18 described. For example, a decision of the Fifth Circuit explained: “Neff argues that the terms

19 of the [franchise agreement] demonstrate that [the defendant] exercises sufficient control over

20 the San Antonio Stores to bring [it] within the scope of [the ADA’s public accommodation

21 provisions]. We hold that the relevant inquiry in a case such as this one is whether ADQ

22 specifically controls the modification of the franchises to improve their accessibility to the

23 disabled.” Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995) (addressing

24 whether the defendant “owns, leases (or leases to), or operates a place of public

25 accommodation” for purposes of Section 12182(a)). Although Neff ruled that the inquiry was a

26 legal rather than factual question because only the agreement’s effect under the ADA — not its

27 meaning — was disputed, the decision did not rule that the issue should be decided on the

28 pleadings, thus depriving the plaintiff the opportunity to have identified the agreement at the

9

United States District Court For the Northern District of California

1 Rule 23 stage. See also United States v. Days Inns of America, 1998 WL 461203 (E.D. Cal.

2 1998) (similar).

3

To be sure, at least one decision has described ADA claims as “site specific.” Moreno v.

4 G & M Oil Co., 88 F. Supp. 2d 1116 (C.D. Cal. 2000). The relevance of the decision is unclear.

5 In Moreno, the plaintiff “want[ed] injunctive relief for himself and others similarly situated

6 concerning [82] locations, based on Defendants’ common practice of noncompliance with

7 disability requirements.” The decision found that the plaintiff did have Article III standing as to

8 the site he had visited and proceeded to inquire whether the plaintiff could assert violations for

9 the other 82 sites at which he had not personally suffered discrimination. It concluded that the

10 ADA’s anti-barrier provisions are “site specific” and found that the plaintiff could not “assert

11 the rights of third parties at sites where he has suffered no injury.” The decision, however, had

12 framed the question as one of prudential rather than Article III standing and simply purported to

13 reject “a generalized grievance of similar barriers at other locations or [claims for] injuries

14 suffered by third parties at other locations.” Id. at 1116–17. In any event, insofar as the

15 decision found ADA claims to be inherently site specific — limited to specific barriers at

16 specific locations irrespective of the origin or circumstances of those barriers — this order

17 respectfully disagrees and will follow the weight of authority.

18

Defendants also rely on inmate cases such as Casey v. Lewis, 4 F.3d 1516 (9th Cir.

19 1993). Those decisions offer defendants no support; they simply hold that inmates suing to

20 enjoin a policy which has injured them may not also sue to enjoin other policies which have not

21 caused them injury. For example, Casey concluded that inmates who had standing to challenge

22 a prison policy “denying attorney-client contact visitation to prisoners housed in [certain]

23 lock-down units” lacked standing also to challenge a “policy prohibiting HIV-positive

24 individuals from obtaining employment in its food-service department.” Named plaintiffs had

25 been injured by the former policy; although one named plaintiff was HIV-positive, no named

26 plaintiff had been injured by the latter because no plaintiff had been denied, nor even expressed

27 interest in, a food-service job. Here, plaintiff challenges a policy which allegedly injured him:

28 a policy of barriers at Burger King restaurants discriminatory to individuals in wheelchairs; he

10

United States District Court For the Northern District of California

1 does not also seek to challenge a different policy discriminatory to other individuals with other

2 disabilities.

3

Finally, defendants cite several other decisions which are equally unpersuasive because

4 they arose on summary judgment and/or rejected individual, rather than class, claims for

5 reasons not entirely analogous to the issues here presented. See, e.g., Tyler v. Kansas Lottery,

6 14 F. Supp. 2d 1220 (D. Kan. 1998) (summary judgment; individual claims; plaintiff lacked

7 standing because had relocated to a new state); Moyer v. Walt Disney World Co., 146 F. Supp.

8 2d 1249 (M.D. Fla. 2000) (summary judgment; individual rather than class claim; plaintiff

9 lacked standing as to certain facilities because claims as to these facilities were inconsistent and

10 purely conjectural).

11

For all of these reasons, this order finds that the complaint adequately pleads the

12 existence of common discriminatory barriers or policies at the California-leased stores. As

13 explained below, discovery into the class claims should proceed immediately.

14

2.

ADDITIONAL CHALLENGES TO THE ADA CLAIM.

15

Defendants raise several further challenges to plaintiff’s ADA claim. First, defendants

16 move to dismiss the complaint under Rule 12(b)(6) for failure to plead the circumstances of the

17 ADA violation with adequate specificity. The motion to dismiss for want of adequate

18 particularity is unavailing; the pleadings adequately set forth the grounds for plaintiff’s

19 entitlement to relief. The Ninth Circuit has found the follow allegations to state an ADA claim:

20 “[d]uring the course of his stay at the Hotel, Plaintiff encountered numerous other barriers to

21 disabled access, including ‘path of travel,’ guestroom, bathroom, telephone, elevator, and

22 signage barriers to access, all in violation of federal and state law and regulation[.] The

23 facilities should be brought into compliance with all applicable code requirements.” Skaff v.

24 Meridien North America Beverly Hills, 506 F.3d 832, 840 (9th Cir. 2007). As explained,

25 plaintiff here pleads far more factual detail. The motion to dismiss is denied.

26

Second, defendants move for a more definite statement under Rule 12(e). As

27 defendants’ own authority recognized,

28

Rule 12(e) motions are disfavored and rarely granted. Cellars v.

Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D.Cal.1998).

11

United States District Court For the Northern District of California

1

The rule is aimed at unintelligibility rather than lack of detail and

is only appropriate when the defendants cannot understand the

2

substance of the claim asserted. Beery v. Hitachi Home Elecs.,

Inc., 157 F.R.D. 477, 480 (C.D. Cal.1993). “If the detail sought

3

by a motion for more definite statement is obtainable through

discovery, the motion should be denied.” Id.

4

Wilson v. PFS LLC, WL 3841517, at *2 (S.D. Cal. 2006). Defendants argue that plaintiff

5

should be required to provide a more definite statement because the complaint fails to plead

6

when plaintiff visited the restaurants named in the complaint, thus depriving defendants of any

7

statute-of-limitations defense (which must be pled in defendants’ answer and affirmative

8

defenses), and other similarly particularized facts. Insofar as defendants must respond to such

9

matters in their responsive pleading, they may do so generally in order to preserve the defenses

10

to the extent the facts ultimately support them. Such facts will be readily obtainable in

11

discovery; for the purposes of defendants’ motion on the pleadings, “the [c]omplaint is

12

sufficiently detailed to allow Defendants to understand the claim against them.” Wilson, WL

13

3841517, at *4.

14

Finally, defendants contend that the class claims should be dismissed or stricken

15

because plaintiff’s allegations fail to demonstrate commonality, typicality and adequacy.

16

Defendants argue that the complaint fails to establish commonality because it purports to cover

17

some 90 different restaurants, but those restaurants were built at different times, were of

18

markedly different configuration and were operated by different franchisees. Similarly,

19

defendants argue that plaintiff is an inadequate class representative or has atypical claims

20

because he suffered a different legal injury than individuals who may have visited the 88 stores

21

plaintiff has not visited. The two stores specifically identified in the complaint, defendants

22

explain, were constructed well before 1993, the effective date of the ADA’s new construction

23

provision, and therefore plaintiff himself has no design or construction claim even.

24

Rule 12(f) motions to strike are disfavored and generally should not be granted unless

25

the matter to be stricken clearly could have no possible bearing on the subject of the litigation.

26

Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004). Since we

27

have not yet reached the Rule 23 stage, these arguments are premature. Indeed, defendants

28

purport to raise a facial rather than factual challenge to jurisdiction limited to the adequacy of

12

United States District Court For the Northern District of California

1 the complaint, yet defendants would look beyond the pleadings for some purposes but not for

2 other purposes. Defendants emphasize that plaintiff lacks standing and/or that any commonality

3 pleadings must fail, among other reasons, because the two stores identified in the complaint

4 were constructed in the 1970s (prior to the ADA new-construction provision). Similarly, at the

5 hearing defendants emphasized that they have already provided the leases for the two stores

6 named in the complaint (but only those two) and argued that the leases themselves demonstrate

7 that the lessee, not Burger King, operated the stores and had responsibility for conformity with

8 the ADA (Br. at 2–3). Defendants, however, would have this order ignore plaintiffs

9 representation by declaration that it had visited leased stores other than those named in the

10 complaint. As stated, plaintiff has pled common offending policies or design characteristics.

11 Defendants offer no compelling reason why more should be required at the pleading stage and

12 why the class claims should be stricken without affording plaintiff the opportunity to disprove

13 defendant’s factual claims.

14

If the facts ultimately reveal, for example, that plaintiff visited no store subject to the

15 ADA’s new construction provisions, the effect thereof for class certification will be considered

16 at the appropriate time. It would be premature to determine at this stage whether, as a factual

17 matter, those allegations are true and, if so, the scope of any properly certified class.

18 Defendants motion to dismiss or strike the class claims is therefore denied.

19

3.

JURISDICTION OVER STATE CLAIMS.

20

As stated, in addition to its ADA claim, the complaint asserts claims under California’s

21 Unruh Civil Rights Act and California’s Disabled Persons Act. Cal. Civ. Code §§ 51, 54.

22 Unruh provides that “All persons within the jurisdiction of this state are free and equal, and . . .

23 are entitled to the full and equal accommodations, advantages, facilities, privileges, or services

24 in all business establishments of every kind whatsoever,” id. at § 51(b), and Section 52 provides

25 a damages action for violations of thereof. Section 51(f), in turn, expressly renders an ADA

26 violation a violation of Unruh: “[a] violation of the right of any individual under the Americans

27 with Disabilities Act of 1990 . . . shall also constitute a violation of this section.”

28

13

United States District Court For the Northern District of California

1

California’s Disabled Persons Act provides that “[i]ndividuals with disabilities or

2 medical conditions have the same right as the general public to the full and free use of the

3 streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals,

4 clinics, and physicians' offices, public facilities, and other public places.” Cal. Civ. Code §

5 54(a). The statute creates a damages action for both intentional and unintentional violations

6 thereof. Id. at 54.3(a); Munson v. Del Taco, Inc., 522 F.3d 997, 1002 (9th Cir. 2008).

7

Plaintiff urges supplemental as well as diversity jurisdiction over those claims.

8 Defendants contend that diversity jurisdiction fails under the Class Action Fairness Act, and

9 that supplemental jurisdiction should be declined because the Ninth Circuit recently certified an

10 issue potentially relevant to this case to the California Supreme Court.

11

The Judicial Improvements Act of 1990 provides that, with certain exceptions, “in any

12 civil action of which the district courts have original jurisdiction, the district courts shall have

13 supplemental jurisdiction over all other claims that are so related to claims in the action within

14 such original jurisdiction that they form part of the same case or controversy under Article III of

15 the United States Constitution.” 28 U.S.C. 1367(a). Those exceptions include the following:

16

The district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if--

17

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims

18

over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has

19

original jurisdiction, or

(4) in exceptional circumstances, there are other compelling

20

reasons for declining jurisdiction.

21 Id. at § 1367(c) (emphasis added).

22

In Munson v. Del Taco, 522 F.3d 997 (9th Cir. 2008), the Ninth Circuit certified the

23 following questions to the California Supreme Court:

24

1. Must a plaintiff who seeks damages under California Civil

Code section 52, claiming the denial of full and equal treatment

25

on the basis of disability in violation of the Unruh Act, Cal. Civ.

Code § 51, prove “intentional discrimination”?

26

2. If the answer to Question 1 is “yes,” what does “intentional

27

discrimination” mean in this context? For example, does

intentional discrimination mean [providing examples].

28

14

United States District Court For the Northern District of California

1 Id. at 999. The decision further explained that “this case raises difficult questions of California

2 law on which trial courts, both state and federal, are sharply divided.” Ibid. In fact, a conflict

3 had arisen between a prior Ninth Circuit interpretation of the state statute and a California Court

4 of Appeals decision rejecting that interpretation. See Oliver v. GMRI, Inc., 2007 WL 4144995,

5 at *3 (S.D. Cal. 2007) (explaining the background). The California Supreme Court has

6 accepted the matter for review but has yet to issue an opinion (Case No. S162818).

7

Here, the complaint’s second count asserts precisely such a claim, i.e., a violation of

8 Unruh by reason of a violation of the ADA, in addition to a violation Section 51(b) on its own

9 terms. As defendants emphasize, the only district court to be confronted with the question

10 following Munson declined to exercise supplemental jurisdiction over similar state law claims,

11 Oliver v. KFC Corp., 2008 WL 2756605 (S.D. Cal. 2008), and prior to Munson various

12 decisions declined to exercise supplemental jurisdiction over state disability-rights claims. See,

13 e.g., GMRI, 2007 WL 4144995, at *3 (collecting cases). The latter reasoned that the district

14 court would be bound to follow the extant Ninth Circuit interpretation of the provision whereas

15 a state court deciding the issue would be bound by a different rule. Ibid. Oliver v. KFC, for its

16 part, reasoned as follows:

17

As the Ninth Circuit has certified these questions to the California

Supreme Court . . . the mere presence of the question in this case

18

would not warrant, on its own, the Court’s refusal of

supplemental jurisdiction . . . . However, in combination with

19

other factors, the Court exercises its discretion to decline

supplemental jurisdiction here. Specifically, the Court dismissed

20

supra the ADA claim, which provided the only basis for original

jurisdiction. Furthermore, the state-law claims substantially

21

predominate over the ADA claim. Because there is no triable

question of fact concerning the unremedied conditions at KFC’s

22

restaurant, plaintiff cannot obtain injunctive relief, which is the

only remedy available under the ADA. Plaintiff's entitlement to

23

monetary damages (if any) arises exclusively under state law.

24 Id. at *7. Defendants argue that jurisdiction should not be exercised over the state claims under

25 Unruh and CDPA, or at a minimum, that consideration of those claims should be stayed

26 pending the California Supreme Court’s resolution of the matter.

27

Unlike in Oliver, the ADA claims here will proceed, and the state claims do not clearly

28 predominate over the federal claims. Moreover, plaintiff’s claim under the California’s

15

United States District Court For the Northern District of California

1 Disabled Persons Act may not be affected by the pending California Supreme Court ruling. If

2 need be, the Court can consider staying the state claims prior to ruling on any dispositive

3 motions, if the issue remains unsettled at that time and good cause is shown. The federal and

4 state claims, however, “form part of the same case or controversy,” and the presence of the state

5 claims poses no immediate conflict. This order therefore finds the exercise of supplemental

6 jurisdiction over the state claims appropriate for now.6

7

Finally, defendants argue that the complaint fails to state a claim under Unruh or

8 California’s Disabled Persons Act. Cal. Civ. Code §§ 51, 54. The basis for the attack is that

9 Unruh requires plaintiff to prove discriminatory intent and, defendants argue, the complaint

10 fails adequately to allege discriminatory intent. While the California Supreme Court is soon to

11 determine whether Unruh requires intentional discrimination, as stated California’s Disabled

12 Persons Act does not necessarily require such intent. Moreover, plaintiff has alleged

13 discriminatory intent (Compl. ¶ 44). Although intent is pled generally, defendants offer no

14 authority suggesting that intent must be pled with particularity. Defendants motion to dismiss

15 the state claims for failure to state a claim is therefore denied.

16

4.

DISCOVERY MOTIONS.

17

As stated, defendant moves to stay discovery relating to restaurants plaintiff did not

18 allege to have visited until it is established whether or not plaintiff has standing to assert those

19 claims. Because this order answers the question in the affirmative, the discovery motion is

20 DENIED as moot.

21

Plaintiff moves to compel removal of defendants’ designation of its list of the leased

22 stores as confidential. Plaintiff argues that all such information is publicly available and that

23 the confidential designation is a significant impediment to his ability to communicate with

24 potential class members and to the class members’ ability to determine whether their claims

25 have been tolled by the filing of this litigation. Defendants respond that disclosure of the

26 addresses would cause them competitive injury because competitors regularly review court

27 filings to determine the locations of Burger King properties owned by third properties, in order

28
6 Defendants’ claim regarding diversity jurisdiction therefore need not be addressed.

16

United States District Court For the Northern District of California

1 to gain control of the properties and use the sites for their own brands. Removal of the

2 confidential designation, defendants assert, would provide competitors with a roadmap of all

3 such California properties. Finally, defendants assert, the protective order adequately permits

4 plaintiff to share the lists with his attorneys, experts and potential plaintiffs so long as the

5 recipients agree not to publicly disclose the information.

6

The motion to remove the confidential designation is granted. As defendant admits,

7 public documents, including a publicly filed Memorandum of Lease, indicate whether a

8 particular site is leased rather than owned; defendants therefore seek to protect not the

9 underlying ownership information itself but rather only its compilation into a list of leased

10 restaurants for use in this lawsuit. Defendants provide only isolated and anecdotal evidence that

11 competitors are hunting for this information — but are unwilling to compile it from the public

12 records. As plaintiff emphasizes, to a certain degree the claim contravenes common sense:

13 when a lease terminates (or a property owner decides to sell), the owner/lessor has an economic

14 interest in advertising the property broadly. Even accepting defendant’s contention arguendo,

15 the list will provide at most a partial roadmap to competitors because it includes both properties

16 Burger King owns (and leases to third parties) and properties Burger King does not own but

17 leases from third parties. Importantly, defendant has identified no feasible way plaintiff could

18 timely notify all of the potential class members of this lawsuit with the confidential designation

19 in place. For all of these reasons, plaintiff’s motion is GRANTED.

20

CONCLUSION

21

For all of the above-stated reasons, defendants’ motion to dismiss and related motions

22 are DENIED. Defendants’ motion for a stay is also DENIED. Finally, plaintiff’s motion to

23 compel removal of the confidential designation is GRANTED. Discovery into the class claims

24 should proceed immediately and should be completed by July 1, 2009.

25

*

*

*

26

In essence, this combination of motions has been a maneuver to defeat class certification

27 in advance by denying all class discovery and insisting that plaintiff prove up his Rule 23

28 motion within the four corners of the pleading. This is topsy-turvy. At the Rule 23 stage,

17

United States District Court For the Northern District of California

1 plaintiff may or may not succeed. Some obstacles potentially would bar certification or narrow

2 a class to an injunction-only class. But plaintiff deserves a fair opportunity to examine the files

3 of defendant to find the common architectural plans and other common-source documents that

4 would be useful at the Rule 23 stage. This should not be decided as a matter of the pleadings.

5

6 IT IS SO ORDERED.
7

8 Dated: February 17, 2009. 9

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18

 
 Castaneda v. Burger King Corp., 259 F.R.D. 194 (2009)
259 F.R.D. 194 United States District Court,
N.D. California.
Miguel CASTANEDA, Plaintiff, v.
BURGER KING CORPORATION, et al., Defendants.
No. C 08–4262 WHA (JL). | Aug. 19, 2009.
Attorneys and Law Firms
*195 Bill Lann Lee, Andrew Lah, Julia Campins of Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Oakland, CA; Amy F. Robertson and Timothy P. Fox of Fox & Robertson, P.C., Denver, CO; Linda D. Kilb of Disability Rights Education and Defense Fund, Berkeley, CA; Mari Mayeda, Berkeley, CA; and Antonio M. Lawson, Lawson Law Offices, Oakland, CA, for Plaintiff.
Michael D. Joblove and Jonathan E. Perlman of Genovese, Joblove & Battista, P.A., Miami, FL; Clement L. Glynn and Adam Friedenberg of Glynn & Finley, LLP, Walnut Creek, CA, for Defendant.
Opinion
DISCOVERY ORDER (Granting Docket # 121, Denying Docket # 123)
JAMES LARSON, United States Magistrate Judge.
I. Introduction All discovery in this case has been referred by the district court (Hon. William H. Alsup) pursuant to 28 U.S.C. ¶ 636(b).
II. Discovery at Issue Plaintiffs filed a motion to compel production of documents or for permission to serve and receive responses to Interrogatory # 24; and Defendants filed a motion for an order compelling return of inadvertently produced privileged document. (Both motions were initiated in a Joint Statement filed at Docket # 103, then Plaintiffs’ motion to compel was renewed at Docket # 121. Defendants did not file a formal noticed motion to compel and for protective order, but their position is

stated in their document filed at Docket # 123, captioned “Defendant Burger King Corporation’s Opening Supplemental Brief In Opposition ...”). Attorney for Plaintiffs is Amy Robertson, (pro hac vice), FOX & ROBERTSON, P.C., Denver, Colorado; Attorney for Defendants is Michael D. Joblove, (pro hac vice), GENOVESE, JOBLOVE AND BATTISTA, P.A., Miami, Florida. There are two relevant motions before Judge Alsup: Burger King Corporation filed a Motion to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21, set for hearing September 10, 2009; Plaintiffs filed their Motion to Certify the Class, which is set for hearing September 17. Judge Alsup has not bifurcated or stayed any discovery on certification, merits and damages.
The Court carefully considered the moving and opposing papers and the record in this case and hereby grants Plaintiffs’ motion to compel production of documents and denies as moot the motion to propound Interrogatory # 24, since the information in the documents will hopefully suffice to answer the questions in Interrogatory # 24. The Court denies Defendants’ motion for return of inadvertently produced privileged document and for protective order, since the document is one of those which the Court is ordering Defendants to produce to Plaintiffs.
The Court notes that Defendants produced two documents under seal, one is the inadvertently produced document from the franchisee Joseph N. Rubin, the other is a survey for an entirely different restaurant. Defendants should inform the Court whether the second document was inadvertently produced to the Court.
III. Background Plaintiffs are suing Defendants for violating the Americans with Disabilities Act in their leased Burger King restaurants (“BKL’s”). There are 90 leased restaurants at issue out of 673 Burger Kings nationwide. Almost one year after Plaintiffs notified Burger King in January 2008 that their restaurants were out of compliance with the ADA, in December 2008 Burger King began *196 issuing work orders to make changes to the allegedly noncompliant restaurants. (Robertson declaration at Ex. 12–scope of work documents and verification punchlist, and consulting recommendations listing on Def. Privilege Log.)
Burger King would not provide Plaintiffs with a list of which were the leased restaurants, until after the remediation work had already begun. Consequently, Plaintiffs could only have either conducted surveys of all 673 Burger Kings to obtain the measurements of such things as ramp slopes and counter heights, wasting time and money on the 580 restaurants which were not leased
1

Castaneda v. Burger King Corp., 259 F.R.D. 194 (2009)
restaurants, or waited until Defendants gave them the list of leased restaurants, and then obtained these measurements, but only after the remediation work had been begun or even completed, in which case the measurements would have been useless to Plaintiffs. (Decl. Of Timothy Fox ISO Pltf MTC, dkt # 121–2 ¶ 3– 5).
Plaintiffs, by contrast, had, by May 28, 2008, sent Burger King all of the 31 surveys that Plaintiffs had done of Burger King restaurants in California. (Second Robertson Decl. Ex. 5) Burger King then informed Plaintiffs that only three of those restaurants were leased. (“BKL”) Later Burger King identified two more, for a total of five out of the 31 that Plaintiffs had surveyed, out of 90 total Burger King leased or “BKL” restaurants. Plaintiffs have no other way of obtaining this information, now that the restaurants’ are being brought into compliance. In order to establish the status of each of the 90 restaurants during the class period, Plaintiffs have only Defendants’ surveys to rely on.
IV. Legal Analysis
A. General Principles The scope of discovery under Rule 26 is broad; “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. If a party withholds otherwise discoverable material by claiming that it is privileged or should be protected as trialpreparation material, “the party must: (I) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A).
The work product privilege protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed.R.Civ.P. 26(b)(3)(A). Trial preparation materials are discoverable, however, “if: (I) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Id. The purpose of the work product doctrine “is the promotion of the adversary system by safeguarding the fruits of an attorney’s trial preparations from the opponent.” U.S. ex rel. Fago v. M & T Mortgage Corp., 242 F.R.D. 16, 19 (D.D.C.2007). See also United States v. Adlman, 68 F.3d 1495, 1501 (2d Cir.1995) (“The purpose of the doctrine is

to establish a zone of privacy for strategic litigation planning and to prevent one party from piggybacking on the adversary’s preparation.”).
[1] To the extent that the work product contains relevant, nonprivileged facts ... the party seeking discovery [must] show “adequate reasons” why the work product should be subject to discovery. However, to the extent work product reveals the opinions, judgments, and thought processes of counsel, it receives some higher level of protection, and a party seeking discovery must show extraordinary justification. In re Sealed Case, 676 F.2d 793, 809 (D.C.Cir.1982).
B. Surveys, Scope of Work Documents and Checklists Plaintiffs are asking for the surveys that Defendants’ consultants did before the remediation work, to obtain measurements and photographs, nothing else, no opinions, no advice, just the objective quantitative inches and feet and degrees of slope of the *197 restaurants during the class period, at the time when Plaintiffs are claiming the restaurants were out of compliance with the ADA. (See Plaintiffs’ Brief in Response at page 7— “Plaintiffs do not seek litigation strategies, interpretations, mental impressions, or evaluations, but merely objective facts: What were the measurements of relevant features? What was done to any relevant features?”)
Burger King argues that these documents are unquestionably privileged work product:
The work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), protects “ ‘from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.’ ” In re Grand Jury Subpoena (Torf), 357 F.3d 900, 906 (9th Cir.2004) (citation omitted). See also S.E.C. v. Schroeder, No. C07–03798, 2009 WL 1125579, at *6 (N.D.Cal. April 27, 2009); AMCO Ins. Co. v. Madera Quality Nut LLC, No. 1:04–cv–06456, 2006 WL 931437, at *14–15 (E.D.Cal. April 11, 2006). Documents qualify for protection under Rule 26(b)(3) so long as the documents are prepared (1) in anticipation of litigation or for trial (2) by or on behalf of a part Torf, 357 F.3d at 907 (citation omitted); AMCO, 2006 WL 931437, at *14–15 (citation omitted). The documents at issue easily satisfy these prerequisites.
(Def. Opening Supp. Brief at 8:23–9:10)
Plaintiffs argue that Burger King has waived the privilege by not listing the surveys on its privilege log. For reasons which will become clear, this Court does not rule on this question, but is willing to consider it at another juncture, if necessary. For the purposes of this motion, the Court
2

Castaneda v. Burger King Corp., 259 F.R.D. 194 (2009)
proceeds as if Burger King had not waived its privilege, but analyzes whether Plaintiffs have shown substantial need for the documents and that they could not obtain the relevant information contained in them, without undue hardship.
Burger King argues that it produced “Facility Inspection Reports,” “FIRS,” in response to Plaintiffs’ Interrogatory Number 23, which requested surveys. Plaintiffs reject these documents as essentially overview descriptions of various parts of a Burger King restaurant that evaluate compliance with BKC’s standards. They do not require or contain comprehensive measurements of the elements at issue. (Second Robertson Decl. At Ex. 1).
[2] [3] The Court may grant Plaintiff’s motion to compel Defendants to produce the surveys even if the documents are work product and therefore privileged, because documents can be privileged while the facts contained within them may not be. See Pltfs’ Mot. To Compel at 12–13; Advisory Committee Notes to Rule 26, 48 F.R.D. 487, 501 (1970) (“[O]ne party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable.”) Similarly, the attorney-client privilege “only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
In addition, a requesting party may obtain work product if the material is relevant, and the requesting party makes a showing of substantial need sufficient under FRCP 26(b)(3)(A)(ii) to defeat the work product protection. The rule requires that:
“the party shows that it has substantial need for the materials to prepare its case, and cannot, without undue hardship, obtain their substantial equivalent by other means.” (Id.)
Plaintiffs can’t do the surveys themselves now, because work has already started or even been completed on Defendants’ restaurants. This makes it impossible for Plaintiffs to obtain measurements for the restaurants. This is similar to the circumstances in Braun v. Lorillard, Inc., 84 F.3d 230, 235–236 (7th Cir.1996)(holding that “exceptional circumstances” existed to produce nontestifying expert’s test results where that test had destroyed the sample in question); Bank Brussels Lambert v. Chase Manhattan Bank. N.A., 175 F.R.D. 34, 44–45 (S.D.N.Y.1997) (holding “exceptional circumstances” existed where nontestifying accounting expert had access to company’s records immediately *198 after the discrepancy at issue was discovered, but before records may have been lost.)

[4] The Facility Inspection Reports (“FIRS”) are inadequate, showing only part of the information, what has already been done, nothing about what condition the restaurant was in during the class period. Plaintiffs also reject Burger King’s contention that information the Plaintiffs obtained from various Building Departments about work on the restaurants is adequate (BKC Opening Brief at 17). Plaintiffs reviewed those documents and discovered they did not contain measurements of BKL stores during the class period (Robertson Decl. at ¶ 40). Consequently, Plaintiffs show that they have both a substantial need for the documents and cannot obtain the information anywhere else, despite their previous efforts to obtain Defendants’ cooperation in conducting their own surveys prior to the remediation work.
Defendants rely on several cases for the proposition that Plaintiffs should not be allowed to “piggyback” on Defendants’ work product.
“The reach of the work product privilege is broad; ‘even factual portions of documents may be withheld, so long as the document as a whole was created in anticipation of litigation.’ ” Equal Rights Ctr. v. Post Props., Inc., 247 F.R.D. 208, 211 (D.D.C.2008) (quoting Gen. Elec. Co. v. Johnson, No. CIV.A.00– 2855 (JDB), 2006 WL 2616187, at *12 (D.D.C. Sept. 12, 2006)) (citing also Tax Analysts v. I.R.S., 117 F.3d 607, 621 (D.C.Cir.1997) (holding that “[a]ny part of a [document] prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine”)). See also Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1261–62 (3d Cir.1993) (rejecting, as overbroad, “argu [ment] that the work product doctrine should not apply to [consultant’s] report because it contained purely factual material.”) (citing U.S. v. Nobles, 422 U.S. 225, 238–39, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), and other authority).
(Def. Supplemental Opening Brief at 10:7–17)
The Equal Rights Center and Bally cases are distinguishable because in neither of them did the court find the requesting party had met its burden to show substantial need or exceptional circumstances.
In ERC, an ADA access case, the Court rejected Plaintiff’s argument in favor of obtaining attorneyconsultant reports:
ERC asserts that “the need for disclosure is clear” because “Post is in the process of altering the Subject Properties.” (Pl.’s Mem. at 14.) ERC further asserts that “[t]he data collected by Post and its consultants regarding the condition of the properties, to the extent that they document non-compliance with the FHA and ADA, will greatly reduce the burden and costs to the
3

Castaneda v. Burger King Corp., 259 F.R.D. 194 (2009)
litigants to inspect each of these properties again.” (Id. at 15.) Even if the Court accepts these arguments, and finds that Post’s alleged alteration of its properties and the costs of investigation constitute an “extraordinary justification” for disclosure, ERC would still fall short of meeting its burden. Rule 26 requires that a party show “substantial need for the materials” and that it cannot “without undue hardship, obtain their substantial equivalent by other means.” Fed.R.Civ.P. 26(b)(3)(A). As Post points out, ERC has not reviewed “any development and construction files or site plans and maps that have been offered at Post’s office since October 17, 2007” and has not “noticed any depositions of Post employees that may have knowledge of the changes Post has and has not made at its properties.” (Def.’s Opp’n at 12.) Equal Rights Center v. Post Properties, Inc. 247 F.R.D. 208, 212 (D.D.C., 2008)
In Bally, a case involving an allegedly defective commercial dishwasher, the court affirmed an OSHA Commission ruling that a plaintiff had failed to show substantial need:
[t]he Commission found that, even assuming OSHA had “substantial need” of the report, the agency had failed to establish that it could not obtain “substantially equivalent” materials without “undue hardship.” In this regard, the Commission made several factual findings. It found that since there was no evidence that Bally’s *199 precluded OSHA from conducting its own test on the dishwasher, OSHA could in fact have done so. The Commission rejected OSHA’s claim that it could not have tested the dishwasher because Bally’s had removed it from regular service, noting that OSHA could have requested Bally’s to retrieve the dishwasher for this purpose. It is undisputed that OSHA did not explore this possibility with Bally’s.
Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1256 (3d Cir.1993)
In this case, Plaintiffs have reviewed over 100,000 documents produced by Defendants, attempted to conduct their own surveys of the BKL restaurants, but were thwarted by Burger King, and noticed a 30(b)(6) deposition of Burger King on topics related to the state of compliance of the BKL’s during the class period in June,

which has been objected to and re-scheduled by Burger King. Plaintiffs have attempted in good faith to obtain this information on their own but now have no recourse but Burger King’s surveys, to assess the status of the 90 BKL restaurants during the class period, prior to remediation.
Burger King argues that Plaintiffs have waived any right to assert exceptional circumstances because they delayed seeking the surveys until now:
AT & T Corp. v. Microsoft Corp., No. 02–0164 MHP (JL), 2003 WL 21212614, at *6 (N.D.Cal. April 18, 2003) (citing Fed.R.Civ.P. 26(b)(3) and Hickman). “[W]hen a party argues that substantial need exists because of the passage of time, the party seeking discovery must make a showing that the passage of time was not caused by avoidable negligence on their part.” Garcia, 214 F.R.D. at 598 (citation omitted).
(Def. Opening Supp. Brief at 15:5–9)
In this case, the 90 BKL restaurants were at issue from early 2008 and yet Burger King would never allow Plaintiffs to survey them. The delay is not Plaintiffs’ fault.
C. Privilege Log and Plaintiffs’ Proposed Order Plaintiffs’ Proposed Order overreaches somewhat. It provides for Burger King to redact to delete opinion work product. That is legitimate. However, the proposed order also states that “Defendant has waived its privileges and must produce all documents covered by items 1707–1710, 1713–1717, and 1737–38 or else provide a compliant privilege log including:
“a. Document-by-document descriptions of items 1707– 1710, 1713–17, and 1737–38 including all of the information required by Judge Alsup’s Supplemental Order; and
b. All documents relevant to the assertion of the privileges themselves including, for example, any and all joint defense agreements.”
These last two provisions seem redundant. If this Court orders Burger King to produce the surveys, then why should it also have to concede that it waived privileges AND provide a Privilege Log?
Plaintiffs have shown the exceptional circumstances exception to the work product doctrine—that they have a substantial need for the documents and can’t obtain them or their equivalent anywhere else. That is not really a waiver of Defendants’ privilege. It merely overrides it, and only for the facts contained in the documents, not for the whole documents themselves or for any opinion work product contained in them.
4

Castaneda v. Burger King Corp., 259 F.R.D. 194 (2009)
D. Interrogatory 24 In the alternative, if the Court didn’t order Defendants to produce the surveys, Plaintiffs asked the Court for permission to propound Interrogatory Number 24, which would exceed the limit on Interrogatories in the Civil Local Rules. This asks for all the measurements of the 90 restaurants at issue. Defendants protest that the Interrogatory is impermissibly burdensome, contains subparts, and asks for thousands of bits of information. All these objections are remedied by Defendants’ producing the surveys.
Defendants plead hardship at the prospect of having to provide the information via answering another Interrogatory, Plaintiffs’ proposed Interrogatory 24. The Interrogatory is not a good alternative, when the Defendants could mitigate their own burden by producing the surveys, which would be responsive to Interrogatory 24 anyway, pursuant *200 to the Business Records Option of FRCP 33(d). The easiest path for everyone is for Defendants to produce the surveys and work order checklists.
E. Defendants request return of inadvertently produced privileged document. Defendants ask the Court to order Plaintiffs to return one of the surveys, which was inadvertently produced by the owner of one of the franchisee restaurants, Burger King # 3157, in Petaluma—(Declaration of Joseph N. Rubin). Mr. Rubin, the owner of Centennial Restaurants, LLC, the operator of Burger King # 3157, received a subpoena from Plaintiffs’ attorney Julia Campins and forwarded to his attorney, Stanley Rubin. He says in his Declaration that he “neglected to inform Mr. Stanley Rubin that I had previously entered into this Joint Defense Agreement with Burger King Corporation and neglected to provide Mr. Stanley Rubin with a copy of this Joint Defense Agreement.” Mr. Rubin the franchisee and Mr. Rubin his attorney produced the surveys and scopes of work to Plaintiffs’ attorney, Ms. Campins. He requests the return of the document at Bates Numbers CEN–03157–00002 through CEN–03157–00013.
Burger King argues it did not waive the work product

privilege by producing the survey to a third party, that is the franchisee, because Burger King and its franchisees have a Joint Defense Agreement. (Burger King Opening Brief at 15–16) Burger King has refused to produce the Joint Defense Agreement to Plaintiffs to verify its existence, but is willing to produce it to the Court for in camera review. Burger King did not list the Joint Defense Agreement on its Privilege Log, but that is probably legitimate if Plaintiffs didn’t make a formal discovery request for it. Plaintiffs sequestered the document, the survey inadvertently produced by the franchisee, but have refused to return it to Burger King voluntarily. The inadvertently produced survey itself would be produced, if the Court grants Plaintiffs’ motion to compel. If the Court grants Plaintiff’s motion to compel, then Defendants’ motion for return of inadvertently produced privileged document and for protective order would be moot.
V. Conclusion and Order This Court concludes that Plaintiffs have shown that the requested documents are relevant, that they have a substantial need for the factual information they contain, that they made a good faith effort to discover the information by other means, and that the information the documents contain cannot be obtained in any other way. Consequently, even though the documents themselves may be protected by the work product doctrine, the factual material within them is discoverable and Defendants shall produce the documents, redacted to remove opinions and legal strategies. The Court finds that Interrogatory 24 would be a cumbersome burdensome way for Defendants to provide the same information which is already available in the surveys, and that the surveys satisfy the business records option of Rule 33, Federal Rules of Civil Procedure, if Defendants were to respond to Plaintiffs’ request via interrogatory. Accordingly, Plaintiffs’ motion to compel production of the surveys in their motion to compel is granted, the motion to propound Interrogatory 24 is denied as moot, and Defendants’ motion for return of an inadvertently produced privileged document is denied.
IT IS SO ORDERED.
	  

5

 
 Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
264 F.R.D. 557 United States District Court,
N.D. California.
Miguel CASTANEDA, Katherine Corbett, and Joseph Wellner, on behalf of themselves and
others similarly situated, Plaintiffs, v.
BURGER KING CORPORATION, Defendant.
No. C 08-04262 WHA. | Sept. 25, 2009.
Attorneys and Law Firms
*559 Amy F. Robertson, Timothy P. Fox, Fox & Robertson PC, Denver, CO, Andrew Lah, Bill Lann Lee, Julia Campins, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Antonio Michael Lawson, Lawson Law Offices, Oakland, CA, Linda D. Kilb, Disability Rights Education/Defense Fund, Inc., Mari Mayeda, Attorney at Law, Berkeley, CA, for Plaintiffs.
Adam Friedenberg, Clement L. Glynn, Maureen Anne Rodgers, Glynn & Finley, LLP, Walnut Creek, CA, Jonathan Evan Perlman, Michael D. Joblove, Genovese Joblove & Battista PA, Miami, FL, Martin H. Orlick, Jeffer Mangels Butler & Marmaro, San Francisco, CA, for Defendant.
ORDER GRANTING CLASS CERTIFICATION AS TO TEN BURGER KING STORES AND
OTHERWISE DENYING CLASS CERTIFICATION
WILLIAM ALSUP, District Judge.
INTRODUCTION
The normal class in an ADA action proceeds against a single store on behalf of all disabled patrons using that store. The instant *560 action seeks to proceed against approximately 92 different stores throughout California on behalf of a class of all mobility-impaired patrons at all 92 locations. All of the stores are Burger King restaurants. Although the class claims would share Burger King Corporation as a common target, the physical differences among the 92 locations would predominate over the common issues, there being no common blueprint among them (or even among any subset of them). Whether or not any store was ever out of ADA compliance would have to be determined store by store, feature by feature, before turning to the easier question of whether defendant as the

franchisor/lessor, would have a duty to force the franchises to remediate. Therefore, such a large sprawling class will not be certified. Instead, separate classes will be certified against each of the ten individual restaurants where a named plaintiff encountered alleged access barriers.

STATEMENT

1. THE PARTIES. Defendant Burger King Corporation is a franchisor of restaurants selling hamburgers and related fast-food products. There are approximately 600 Burger King restaurants in California. Approximately 92 of these are leased by Burger King Corporation to the franchisees, which operate and maintain them.1 In some cases, Burger King Corporation itself leases the properties from a thirdparty, then subleases them to the franchisees; in other cases, Burger King Corporation owns the properties and leases directly to the franchisees (Campins Exh. 53, 7885, 122).

1

Ninety-six different corporate-leased Burger King

restaurants existed in California during the class period,

although, not at the same time due to stores closing and

opening. There are currently 92 operational stores in

the purported class.

Named plaintiffs, Miguel Castaneda, Katherine Corbett, and Joseph Wellner, are among the more than 150,000 Californians who use wheelchairs or scooters for mobility. They bring this action to remedy alleged architectural barriers to access at restaurants that Burger King Corporation leases to franchisees in California. The putative class seeks an injunction ordering defendant to adopt policies that would ensure access for customers who use wheelchairs and scooters and to bring the leased restaurants into compliance with the Americans with Disabilities Act, 42 U.S.C. 12101, Section 51 of the California Civil Code (the Unruh Civil Rights Act), and Section 54 of the California Civil Code (the California Disabled Persons Act). The putative class also seeks the minimum statutory damages per offense under the Unruh Act and the CDPA.

2. THE ADA AND CALIFORNIA STATUTES. The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1). This important statute recognizes that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full
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Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
participation, independent living, and economic selfsufficiency for such individuals.” 42 U.S.C. 12101(a)(8). Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, with respect to both the accessibility of their physical facilities and with respect to their policies and practices.
The ADA required the Department of Justice to issue regulations carrying out the non-transportation requirements of Title III. 42 U.S.C. 12186(b). Pursuant to this statutory mandate, the DOJ promulgated standards for accessible design, which were codified at 28 C.F.R. pt. 36, App. A. These regulations are “entitled to deference.” Bragdon v. Abbott, 524 U.S. 624, 646, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The DOJ standards contain detailed design specifications for public accommodations covering an exhaustive list of architectural elements including, among others, space allowance and reach ranges, accessible routes, parking lots and passenger loading zones, curbs, ramps, doors, ground and floor surfaces, food service lines, and restrooms. For example, the design specifications for ramps specify, among other requirements, their maximum slope and rise, their minimum clear width, the *561 minimum dimensions for landings at ramps’ tops and bottoms, and the requirements for handrails. Design specifications for bathrooms include detailed requirements for doors, toilet stalls, urinals, lavatory fixtures, mirrors, sinks, and more. Different design specifications apply depending on whether a bathroom is designed for a single user or has multiple stalls.
The accessibility requirements of Title III and the DOJ standards vary depending on the dates that facilities were constructed or altered. Facilities built after January 26, 1993, are required to be “readily accessible to and usable by” individuals who use wheelchairs, and must comply with the DOJ standards. 42 U.S.C. 12183(a)(3); 28 C.F.R. 36.406(a). When earlier-built facilities are altered in certain ways after January 26, 1992, the altered portion and to some extent the path of travel to the altered portion must comply with the DOJ standards. 28 C.F.R. 36.402(b)(2); 36.406(a). In facilities built prior to January 26, 1993, and not altered since January 26, 1992, architectural barriers must be removed where it is “readily achievable” to do so. 42 U.S.C. 12182(b)(2)(A)(iv). The determination of what is “readily achievable” turns primarily on the nature and cost of the barrier removal and the resources of the public accommodation involved, including “the overall financial resources of any parent corporation or entity.” 28 C.F.R. 36.104; 42 U.S.C. 12181(9). In addition, facilities must “maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and

usable by persons with disabilities.” 28 C.F.R. 36.211.
Turning to the California statutes, both the CDPA which was enacted in 1968, and the Unruh Act which was amended in 1987 to cover persons with disabilities, prohibit discrimination on the basis of disability in the full and equal access to the services, facilities and advantages of public accommodations. Cal. Civ.Code § § 51(b), 54.1(a)(1). A prevailing plaintiff is entitled among other relief to statutory minimum damages regardless of whether the plaintiff has suffered any actual damages. Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir.2000) (holding that “proof of actual damages is not a prerequisite to recovery of statutory minimum damages” under the Unruh Act and the CDPA). The putative class seeks the statutory minimum damages for each offense. This includes $4,000 for each violation of the Unruh Act and $1,000 for each violation of the CDPA. Plaintiffs can be expected to seek damages on the basis that a violation occurs each time a patron visits a store and encounters an access barrier there. Plaintiffs assert that the amount in controversy here exceeds five million dollars (Compl.¶ 6).
All buildings constructed or altered after July 1, 1970, must comply with state standards governing the physical accessibility of public accommodations. Cal. Health & Safety Code §§ 19956, 19959. From December 31, 1981, until the present, the standards have appeared in Title 24 of the California Code of Regulations. In addition to setting forth design and construction standards, the California standards require public accommodations to maintain in operable working condition those features of facilities and equipment that are required to be accessible to and usable by persons with disabilities. The California standards set forth a comprehensively detailed list of design specifications prescribing the minimum standards for all manner of architectural elements, which are similar but not identical to the requirements in the DOJ standards for the ADA.2 A violation of a California standard violates both the CDPA and the Unruh Act. A violation of the ADA also constitutes a violation of both California statutes. Cal. Civ.Code §§ 51(f), 54(c). It may be possible, however, for an accessibility barrier to violate the California statutes without violating the ADA.

2

For example, the DOJ standards require that if a ramp

run has a rise greater than six inches or a horizontal

projection greater than 72 inches, then it must have

handrails on both sides. The California standards, on

the other hand, require handrails if a ramp’s slope

exceeds a five percent gradient, except at exterior door

landings where it matches the DOJ standards. 28 C.F.R.

pt. 36, App. A at 4.85; Cal.Code Regs. tit. 24,

11133B.5.5.1 (2001).

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Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)

3. PLAINTIFFS’ CLAIMS. In the complaint, plaintiffs asserted that class certification was appropriate in this action *562 because the same discriminatory design features were imposed by Burger King Corporation on all 92 locations. They alleged that some or all of the stores were built according to “one or a limited number of architectural design prototypes developed by Burger King.” They alleged that Burger King entered into development agreements requiring construction of some or all of the California restaurants in accordance with Burger King’s latest designs, and that Burger King provided building plans and specifications. They alleged that Burger King’s construction teams aided in designing and building some or all of the locations. They averred that some or all of the restaurants were contractually required to be and were remodeled in conformance with Burger King’s construction and design plans and specifications (Compl.¶¶ 25-34). On the basis of these pleadings of common architecture, designs, construction, and policies, defendant’s motion to dismiss or strike the class claims was denied (Dkt. No. 69).

Put differently, the importance of a common set of blueprints calling for ADA violations addresses the need for a common method of class-wide proof. Otherwise, the trial must be litigated feature-by-feature and store-bystore on myriad questions of violation (or not). The Court’s own experience in other ADA mobility cases has been that the feature-by-feature analysis is highly sitespecific and consumes considerable resources per site. This would be further complicated in the case at hand by the unique issues of when and to what extent a facility was built or substantially renovated and what would or would not be “readily achievable,” clearly a site-by-site adjudication.

In their motion for class certification, plaintiffs have now

retreated from their allegations of common architecture,

designs, construction, and policies. As it turns out,

contrary to the original allegations, there has actually

been considerable variation among the 92 locations. There

was no common architectural design that caused the same

barriers of access across the 92 locations (Boothby Supp.

Exh. 1). Quite possibly each of the 92 stores violates the

ADA or California standards for accessible design in

some way or another, but the deviations from the long list

of modern disability design requirements will require a

store-by-store,

door-by-door,

mirror-by-mirror

adjudication. Again, this is due to the absence of any

common blueprint for the features subject to the ADA

standards, or any other form of common proof.

To be sure, some issues would cut across all 92 locations, for example, the relationship of Burger King Corporation

to the restaurant operators. Burger King Corporation’s relationship with the franchisees/lessees was governed primarily by two contracts-a franchise agreement and a lease agreement-as well as a development agreement for newly-constructed restaurants. Although not identical from store to store or year to year during the purported class period, the terms of the agreements generally reveal that Burger King Corporation reserved and exercised the power to approve plans and specifications for most aspects of the franchisees/lessees’ operations, and Burger King Corporation carried out inspections of restaurants to enforce acceptable standards of repair, maintenance, and image (Campins Exh. 58-86).
Although Burger King Corporation required that new restaurants be constructed, equipped and furnished in accordance with approved plans and specifications, the franchisees/lessees were required to contract independently at their own expense for architectural and engineering services, to create their own blueprints and construction plans for each of their restaurants, and to ensure that they complied with applicable building codes and accessibility laws.
Burger King Corporation provided new restaurants with a set of standard plans and specifications which were described as “generic masters” that “require[d] confirmation and revisions to comply with all local governmental standards.” These referenced the features subject to the ADA standards only generally without delving into requisite dimensional measurements or specifics of compliance requirements, and required no particular feature that would constitute an ADA violation. These types of details were left to the architects hired locally by each franchisee. *563 After each franchisee/lessee’s architect made necessary modifications, as required by governmental bodies and the particular configuration of the property on which the new restaurant was to be located, Burger King Corporation reserved the right to review the building type, site layout, signage, and overall adherence to current building standards and brand identity, and to require modifications (Campins Exh. 90-94, 96-98). In other words, Burger King Corporation insisted that the franchises build out their stores in compliance with disability laws and did not dictate the specifics.
The only thing that comes close to a common blueprint concerns “queue lines.” These are the lines in which customers wait to order. Drawings of sample front counter areas in a 1984 equipment plan layout and a 1991 operations manual by Burger King Corporation stated that queue lines should be a minimum of 30-inches wide, which violated the California standards requiring queue
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Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)

lines to be a minimum of 36-inches wide.3 The record shows, however, that many of the restaurants visited by plaintiffs used layouts which did not have queue lines at all. No other feature, such as door pressure, ramp placement, ramp angle, mirror placement, and so on was centralized (Campins Exh. 123, 124, 126; Blackseth Exh. 1).4

3

The ADA, which did not go into effect until after 1991,

also requires a minimum width of 36 inches for

wheelchair passage. 28 C.F.R. pt. 36, App. A. at 4.2.1.

4

Plaintiffs do not identify any other policy, plan, or

blueprint from Burger King Corporation that even

arguably called for a feature that would violate the

ADA or California standards, except to assert in

passing that defendant’s “speed of service standards,”

which set maximum times within which customers

must be served, “exacerbate the access issues created

by queue lines and condiment and drink dispensers.”

Plaintiffs do not, however, explain why this would be

so.

Eighty-eight of the 96 corporate-leased restaurants that existed during the class period were constructed before the ADA became effective as to newly-constructed buildings in January 1993, and eight predated the 1982 effective date of the California statutes. Corporate-leased Burger Kings were built in at least twelve general basic architectural styles, but none of these general styles has been shown to include any design details implicating features in violation of disability standards (Boothby Supp. Exh. 1). In other words, the extent to which there were violations or not at different restaurants even of the same general style would still need to be litigated storeby-store and feature-by-feature.
The franchise agreements required the restaurants to remodel at least once every twenty years. Each restaurant had a unique post-construction alteration history in terms of structure, design, facilities, accommodations, and times of alteration. Although Burger King Corporation retained the right to approve all alterations and punished franchises that remodeled without approval, it never provided sample plans for existing restaurants to use as mandates or guides when remodeling. When alterations to existing restaurants were made, they were not based on any centralized construction plans developed by Burger King Corporation. The lease agreements between Burger King Corporation and the franchisees/lessees put all responsibility for the condition of the premises, including the cost of any repairs or alterations, on the franchisees/lessees. Again, the agreements expressly

required that franchisees/lessees comply with applicable accessibility laws, including the ADA (Campins Exh. 98; McGory Decl., ¶¶ 2, 9-10).
The declarations of named plaintiffs and the 48 potential class members provide anecdotal allegations of six categories of accessibility problems at the corporateleased California Burger King restaurants. These include: (1) barriers at entrances to restaurants, including doors that were difficult or impossible to open; (2) queue lines that were too narrow to traverse in a wheelchair or scooter; (3) drink and condiment dispensers that were difficult or impossible to reach; (4) dining rooms where the declarants could not access tables in their wheelchairs or scooters; (5) restrooms with doors that were difficult or impossible to open and with inadequate stalls; and (6) parking lots with access aisles that were too narrow, inadequate signage, not enough accessible *564 spaces, and inaccessible routes to entrances (Compl.¶ 44).
Plaintiffs do not, however, limit the scope of the action to their six general categories, nor could they since their expert has not yet inspected all 92 locations. Experience has shown that after expert inspections are done, the list of arguable deviations from the ADA standards will be lengthy and will vary from location to location. Each of plaintiffs’ six general categories, moreover, subsumes multiple discrete issues. For example, entrance barriers subsume ramp angles, door pressure, door width, path of travel from parking lot to ramp, and so on. The specifics of each will vary from store to store.
In their motion for class certification, as stated, plaintiffs have retreated from the allegations in the amended complaint that Burger King Corporation imposed common architectural designs calling for access barriers across all 92 stores. Instead, they have fallen back to an argument that Burger King Corporation maintains substantial control over the leased restaurants through the development, franchise, and lease agreements, and that it has neglected to enforce centralized policies requiring the leased restaurants to comply with accessibility requirements. They aver that Burger King Corporation’s failure to affirmatively prevent and remove barriers-a nondelegable duty under the ADA-allowed accessibility barriers to arise at some or all of the 92 leased restaurants across California.
To be sure, the legal responsibility of Burger King Corporation for any accessibility violations that exist is a common issue across all 92 stores. If this were the only issue, class certification would be straightforward. But that simple issue cannot even be reached without first deciding the bone-crushing feature-by-feature and store-
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Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
by-store analyses required to establish whether and to what extent violations at each store exist in the first place.
4. CLASS CERTIFICATION. Although this order will certify ten separate classes of wheelchair patrons that correspond to the ten stores visited, it will not certify the broad class requested by plaintiffs. The three named plaintiffs aver that they personally experienced access barriers at ten different corporate-leased Burger King restaurants. Separate classes will be certified for each of the ten restaurants, as follows:
All individuals with mobilityimpairment disabilities who use wheelchairs or electric scooters for mobility who, at any time on or after April 16, 2006, and up to the date of the class notice, were denied, or are currently being denied, on the basis of their mobility-impairment disability, full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of [the particular restaurant applicable to that class].
Plaintiff Corbett will be appointed as class representative for the class of patrons who allegedly encountered barriers at the restaurant she averred that she visited, located at 6021 Central Avenue, in El Cerrito (Class 1). Plaintiffs Corbett and Castaneda will be appointed as joint class representatives for the class of patrons who allegedly encountered barriers at the restaurant they both averred that they visited, located at 4200 International Boulevard/East 14th Street in Oakland (Class 2). Plaintiffs Wellner and Castaneda will be appointed as joint class representatives for the class of patrons who allegedly encountered barriers at the restaurant they both averred that they visited, located at 2415 North Texas Street, in Fairfield (Class 3). Plaintiff Castaneda will also be appointed as class representative for each separate class of patrons who allegedly encountered barriers at a restaurant that he averred that he visited, including the restaurants located at 677 Contra Costa Boulevard, in Pleasant Hill (Class 4); 2162 Railroad Avenue, in Pittsburg (Class 5); 2440 Mahogany Way, in Antioch (Class 6); 1799 North Broadway, in Walnut Creek (Class 7); 972 El Camino Real, in South San Francisco (Class 8); 950 West A Street, in Hayward (Class 9); and 2757 Castro Valley Boulevard, in Castro Valley (Class 10).

ANALYSIS
1. DEFENDANT’S MOTION TO STRIKE DECLARATIONS AND EXCLUDE WITNESSES. Before turning to the main event, this order must first address a predicate matter. *565 When making their initial disclosures, plaintiffs provided to Burger King Corporation potential class members’ names, cities of residence, and a summary of the access barriers that they allegedly had encountered at specified Burger Kingleased restaurants. Plaintiffs did not, however, initially provide these potential class members’ contact information to defendant. Plaintiffs argued that because the potential class members had called plaintiffs’ counsel for information and advice about their rights in the action, Burger King Corporation should not be permitted to contact them except in the presence of plaintiffs’ counsel. Plaintiffs did not seek a protective order for the putative class members’ contact information but, instead, attempted to resolve their dispute with defendant over the matter through informal discussions.
Eventually, Burger King Corporation filed a motion to compel the potential witnesses’ contact information. After briefing and oral argument, Magistrate Judge James Larson held that, because case law is unambiguous that potential class members are unrepresented prior to class certification, plaintiffs’ argument for withholding their contact information was unjustified and the information needed to be produced. Judge Larson also held that plaintiffs’ counsel could not interfere with defense counsel’s contacts with these potential plaintiffs but did grant in part plaintiff counsels’ request for a protective order. He held that defense counsel must identify themselves to the potential plaintiffs when contacting them and advise them that they need not speak with defense counsel if they did not want to do so.
In accordance with Judge Larson’s ruling, plaintiffs provided the required contact information although by then the class certification discovery deadline had passed. Burger King Corporation did not seek to reopen discovery or continue the deadline for its opposition to class certification, which was due by August 21, 2009, about two weeks after plaintiffs disclosed the potential witnesses’ contact information.
Burger King Corporation claims that plaintiffs’ gamesmanship in turning over potential class members’ contact information prevented it from gathering important
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Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)

information in opposing plaintiffs’ motion for class certification. Burger King Corporation seeks to (1) strike all of the declarations that plaintiffs submitted in support of their motion for class certification, and (2) preclude any potential class member who was not “properly disclosed” from testifying at trial.5

5

Burger King Corporation also filed objections to all of

these declarations on September 15, 2009. These

objections should have been filed with its opposition to

plaintiffs’ motion for class certification rather than two

days before the hearing on the motion. This order, at all

events, does not depend on the portions of the

declarations to which defendant objects, and so does

not need to reach the objections.

Burger King Corporation notes that the case management order stated that all initial disclosures under FRCP 26 had to be “completed by March 6, 2009, on pain of preclusion under FRCP 37(c)” (emphasis added). Rule 37(c)(1) states:
If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless (emphasis added).
Burger King Corporation argues that plaintiffs’ failure to turn over the potential class members’ addresses was neither justified nor harmless and that exclusion is the proper remedy. It does not aver with specificity how it was prejudiced by the late disclosure, however, and its citations are distinguishable. Burger King relies primarily on Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir.2008), where the Ninth Circuit upheld the exclusion under Rule 37(c) of an expert witness at a police misconduct trial where his expert report had not been previously disclosed. Id. at 1213. Burger King Corporation also relies on Lee v. City of Novato, No. C 03-02542 WHA, 2004 WL 1971089 (N.D.Cal. Sept.7, 2004), which involved the exclusion of the plaintiff’s expert witness’s testimony where the plaintiff had failed to file the required expert report until the day the opposition expert report was due. This delay substantially harmed the defendant because it gave the plaintiff’s expert the *566 opportunity to review the opponent expert’s report and respond to its arguments in his opening report. Id. at *6.

[1] The potential harm from spring-loading an expert witness is worse than what happened here. Expert testimony involves scientific, technical, or specialized knowledge, and its late disclosure offers a greater possibility of harm to opposing parties than late disclosure of fact-witness testimony. Additionally, plaintiffs here were not late in disclosing the substance of the potential class witnesses’ declarations, only their contact information. This is therefore less egregious than withholding an expert report which contains the substance of an expert’s intended testimony. Unlike Torres, where the expert report was withheld until trial, and Lee, where the expert report was withheld until the same day that the opponent’s report was due, here plaintiffs still turned over the report weeks before Burger King Corporation’s opposition was due. To be sure, the Court is disappointed that plaintiffs’ counsel stiffed defendant in their disclosure obligations. Nonetheless, there has not been substantial harm to our defendant here. Striking the declarations of plaintiffs’ witnesses and precluding plaintiffs from relying on these witnesses in their class certification motion would be far too harsh.
2. WHY A RULE 23(B)(2) CLASS WILL NOT BE CERTIFIED AS TO ALL 92 STORES. Turning to the merits of whether class certification is appropriate, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather, whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Although a district judge may not investigate the likelihood of prevailing on the merits, he or she is at liberty to consider evidence relating to the merits if such evidence also goes to the requirements of Rule 23. The party seeking class certification bears the burden of showing that each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) are met. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508-09 (9th Cir.1992).
For a named plaintiff to obtain class certification, the district court must find: (1) numerosity of the class; (2) common questions of law or fact predominate; (3) the named plaintiff’s claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class. Additionally, plaintiffs here seek class certification under Rule 23(b)(2). Certification under Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to
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Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
the class as a whole ....”
There are several major obstacles to a 92-store class. First, there is a lack of commonality under Rule 23(a)(2). Because each location has unique facilities, there is neither a common core of salient facts regarding what accessibility barriers each restaurant’s patrons face nor a shared predicate legal issue of whether each restaurant’s facilities violates the ADA or California statutes.
Second, final injunctive relief under Rule 23(b)(2) is not appropriate for a 92-store class as a whole; it is only appropriate as to those stores where there are in fact statutory violations. With no common blueprint but with considerable variation among the architecture of all the locations, it appears highly unlikely that all 92 stores will be found to be in violation. This issue must be addressed before addressing any common issues such as Burger King Corporation’s responsibility as a lessor, and turns on a highly individualized and extremely detailed mirror-bymirror, door-by-door, ramp-by-ramp, detail-by-detail examination of each store. The issue also depends on when each store was built and/or renovated, which determines what ADA and California standards apply to that location, if any.
Third, Rule 23(b)(2) classes usually only seek injunctive or declaratory relief. Because the large statutory damages sought under the California statutes here predominate over the injunctive relief sought, Rule 23(b)(3) analysis is more appropriate instead.
*567 Finally, because every store may well be different under this examination, the claims of the named plaintiffs are not typical under Rule 23(a)(3) of a 92-store class as a whole. A plaintiff’s claim would, however, be typical as to the same store where that plaintiff encountered a barrier.
These four points are now considered in detail.
A. Lack Of Commonality. [2] A class has sufficient commonality under Rule 23(a)(2) if “there are questions of law or fact which are common to the class.” Rule 23(a)(2) does not require each member in a class to have identical factual and legal issues surrounding his or her claim, but it does require either a shared legal issue or a common core of salient facts. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998).
[3] Plaintiffs have failed to meet their burden under Rule 23(a)(2) because they have not shown either a common

core of salient facts-that Burger King Corporation created common barriers to access across multiple restaurant locations-or a shared legal issue-whether there were violations of the ADA or California statutes at each location. As already noted, any shared legal issues, such as Burger King’s legal responsibility for violations as a franchisor/lessor, are predicated on an initial determination of the entirely individual issues of whether there is liability at each store in the first place. The lack of commonality with regards to access barriers across multiple facilities weighs heavily against class certification especially where, as here, there is no affirmative centralized plan calling for the alleged barriers at different stores.
Before any common legal issues can be reached, each feature at issue in every store must be individually measured, and then a determination must be made as to whether that issue meets the DOJ and California standards. For example, under the DOJ regulations, the maximum force that may be required to open a hinged bathroom door is five pounds-force. 28 CFR pt. 36, App. A at 4.13.11. If bathroom mirrors are to be used by both ambulatory people and wheelchair users, then they must be at least 74-inches high at their topmost edge. Id. at A4.19.6. Every sink is required to be mounted with the counter or rim no higher than 34-inches, be a maximum of six-and-a-half inches deep, have knee clearance that is at least 27-inches high, 30-inches wide, and 19 inches deep, have pipes that are insulated or configured so as to protect against contact, have a clear floor space at least 30-inches by 48-inches in front of the sink, and have faucets with one of four acceptable designs. Id. at 4.24. Depending on the configuration of each location, potentially hundreds of measurements such as these will need to be made at each of the 92 restaurants, and then evaluated under both the DOJ and California standards before any legal issue common across different stores is reached.
In ADA cases, the retained experts of both parties inspect the premises at issue and prepare lists of arguable violations they encounter. Experience has shown that they will disagree on many items. They do not always agree even on the results of their measurements for particular fixtures and an adjudication must then be made to determine the proper method for measurement. When the cases are litigated, the disputes must be examined one-byone and site-by-site to sort out which expert is closest to the truth.
In support of a 92-store class action, plaintiffs invoke Moeller v. Taco Bell Corp., 220 F.R.D. 604, 605 (N.D.Cal.2004). Moeller held that certification of an
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Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)

injunctive class action was appropriate. It also involved mobility-impaired patrons bringing suit under the ADA, the Unruh Act, and the CDPA alleging that a chain of fast-food restaurants had barriers to access. In Moeller, however, Taco Bell conceded that all of the stores were built in accordance with centrally designed blueprints that resulted in common accessibility violations at all of the stores. All newly constructed Taco Bell restaurants in Moeller were built in accordance with prototypes designed by Taco Bell’s architecture and engineering department located at Taco Bell’s corporate headquarters and all large-scale retrofit projects were based on designs prepared by the same department. Furthermore, *568 all of the stores were owned and operated by Taco Bell, which admitted that it controlled all aspects of its own corporate restaurants including accessibility. Id. at 60910. As a result of Taco Bell’s common blueprint calling for designs in violation of ADA standards, it was possible in Moeller to show both a common locus of facts and to use a common method of proof of the existence of the same violations across all stores.
Here, by contrast, plaintiffs have sued defendant with respect to restaurants that defendant leased to third-party operators who were required to obtain their own blueprints and construction plans and to contract independently for architectural and engineering services. Although Burger King Corporation provided new restaurants with a general set of standard plans and specifications, these lacked the detail of blueprints and did not insist on features violating the accessibility statutes.
Significantly, plaintiffs have failed to make the case that Burger King Corporation has any common offending policies or design characteristics that called for common accessibility barriers at different restaurants. As stated, the closest plaintiffs can come to show any kind of accessibility barriers called for by common centralized policies are the two illustrations from 1984 and 1991 showing a minimum width for queue lines of 30 inches, instead of 36 inches as mandated by California law at the time.6 Of the six categories of accessibility problems alleged by plaintiffs, only one has any common method of proof-that queue lines were too narrow-and even that method would have to rely on faded evidence from a quarter-century ago that would have been superseded in many instances by the remodeling that was called for every twenty years, itself another fact question differing among the 92 locations.

6

The Court realizes that it denied plaintiffs’ motion to

continue the class certification hearing because of the

pendency in front of Magistrate Judge Larson of their

motion to compel additional discovery from defendant related to recent surveys and retrofits at the restaurants at issue in this action. To the extent that this discovery would have marginally buttressed plaintiffs’ argument, they should have diligently pursued their motion in sufficient time to support their class certification motion. Instead, they delayed bringing their motion to compel until its motion practice could not be completed in time, and failed to show substantial justification for their delay.
Plaintiffs also rely on Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D.Cal.1994), which certified a class where the challenged “design features” were alleged to exist at “many if not all of defendant’s theatres” and “the legality of those features are legal issues common” to the class. Id. at 449. By contrast, it is clear here that the franchisees/lessees made individualized decisions relating to 96 different restaurants across California over many years, and that their restaurants were built and remodeled at different times and in different architectural styles such that the same standards under the ADA, Unruh Act, and CDPA do not apply to them all. Unlike the decisions on which plaintiffs rely, proving the existence and cause of accessibility barriers at each of the corporate-leased Burger King restaurants in California would be too fact-intensive and individualized to be effectively addressed in a single class action.
Plaintiffs argue that even if defendant does not have any affirmative central policies which called for access barriers at all 92 stores, it would be sufficient if such barriers arose from defendant’s failure of oversight to ensure the individual restaurants’ compliance with accessibility laws. Plaintiffs have submitted evidence of defendant’s failure to enforce compliance with accessibility standards-a failure of oversight.
This does not come to grips with the real problem, namely, proving that each of the 92 stores were (and are) in violation of the disability laws in the first place. To get to the bottom of this threshold question, it would be necessary to have 92 trials within a trial. Each location would vary. One might have a door pressure violation, another a mirror-placement fault, another a ramp angle correction, another a path-of-travel violation-or perhaps all of these violations would occur at some other locations. Possibly some stores would be found to have no violations at all. It is hard to litigate even one location, there being so many specific features that *569 must be examined and evaluated. Litigating 92 in one case would be impossible without a common method of proof.
Therefore, it is no answer that Burger King Corporation
8

Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
may have nondelegable liability as a lessor. That is the easy part of the case. The hard part, which cannot be escaped, is the extent to which the ADA and state laws were violated in the first place, if at all.
B. Inappropriateness of Injunctive Relief to Class as a Whole. Certification under Rule 23(b)(2) is appropriate where the party against whom relief is sought has acted or refused to act on grounds generally applicable to a class of persons, thereby making appropriate declaratory or injunctive relief with respect to the class as a whole. American Council of the Blind, 2008 WL 4279674 at *4 (N.D.Cal.2008) (Judge Alsup). Class certification under Rule 23(b)(2) requires that the primary relief sought be declaratory or injunctive. The rule does not focus on the viability or bases of class members’ claims for declaratory or injunctive relief but only looks at whether class members seek uniform relief from a practice generally applicable to the class as a whole. Rodriguez v. Hayes, No. 08-56156, 2009 WL 2526622, at * 13 (9th Cir. August 20, 2009).
[4] As noted above, final common injunctive relief would only be appropriate as to those stores where there are in fact accessibility violations, and the relief would even then vary from location to location. The issue of the extent of any violations at each particular store must be addressed before any relief may be fashioned. That turns on a highly individualized and bone-crunching analysis of hundreds of details at each store.
Even after this determination, the actual injunctive relief ordered must be individually fashioned for each location. At one location, a bathroom mirror may need to be lowered. At another location, an automatic door may need to be adjusted to close more slowly. Another location might need to add more dining tables accessible to patrons in wheelchairs, and widen the access aisles next to designated accessible parking spaces to allow persons in wheelchairs to unload from their vehicles. Because every store will have different violations, any ordered injunctive relief will primarily need to be tailored store-by-store. There can be no “generally applicable” relief in this case as to patrons of all 92 stores.
A special master idea was proposed by plaintiffs’ counsel at the hearing as the solution to these problems. A special master, they say, could conduct site inspections of all of the leased restaurants and submit recommendations for bringing any access barriers into compliance with the ADA and California statutes. In Moeller v. Taco Bell Corp., such a procedure was ultimately stipulated to by

the parties and then ordered by the court after class certification was approved. Moeller, 220 F.R.D. at 605.
Rule 53(a), which governs the appointment of special masters, states in pertinent part that unless a statute provides otherwise, a court may appoint a master only to perform duties consented to by the parties, or to hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by “some exceptional condition.” At the hearing, defendant Burger King Corporation stated that it would not consent to the appointment of a special master. The appointment of a special master to aid in the factual determination of what injunctive relief is required at each of the 92 stores could only be pursuant to “some exceptional condition.”
Reference to a master “shall be the exception and not the rule.” Burlington Northern v. Department of Revenue, 934 F.2d 1064, 1071 (9th Cir.1991). “The use of masters is to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause, and not to displace the court.” La Buy v. Howes Leather Co., 352 U.S. 249, 256, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). “Litigants are entitled to a trial by the court, in every suit, save where exceptional circumstances are shown.” Id. at 258, 77 S.Ct. 309. “The Courts have tended to read Rule 53 narrowly, closely circumscribing the range of circumstances in which reference to a master is appropriate.” Burlington *570 Northern, 934 F.2d at 1071. The Supreme Court has held that the unusual complexity of an action, the length of time a trial would require, and congestion of a court’s calendar were not exceptional conditions which would warrant a reference to a master under Rule 53(b). La Buy v. Howes Leather Co. 352 U.S. 249, 258-59, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957).
Courts sometimes find “exceptional conditions” and appoint special masters to determine individualized issues of damages after class liability has already been established. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir.1996) (special master appointed to supervise taking of depositions of randomly selected class members to determine distribution of compensatory damages award); Cordoza v. Pacific States Steel Corp., 320 F.3d 989, 995 (9th Cir.2003) (master appointed to oversee funding of medical plan in ERISA case). In Burlington Northern, however, the Ninth Circuit reversed a district court’s finding of exceptional condition where an entire action was referred to a master. The district court in Burlington Northern had required the master to prepare and complete a draft report setting forth findings of fact and conclusions of law. The district court after a
9

Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
hearing could adopt, modify, or reject the report, receive further evidence, resubmit the report with instructions to the master, or “make the final determination as to the matters herein at issue.” The Ninth Circuit held that the “wholesale reference” of an action to a special master was an “inexcusable abdication of judicial responsibility and a violation of article III of the Constitution.” Burlington Northern, 934 F.2d at 1072.
[5] The appointment of a special master to determine not merely damages but liability, including the extent to which each of the 92 individual restaurants is in violation of accessibility requirements, would be an abdication of judicial responsibility. It would be an impermissible delegation of the Court’s duty to determine both issues of defendant’s liability and the extent of injunctive relief, not to mention statutory damages to class members, a separate concern. Appointing a special master would not solve the real problem-namely, that there is no affirmative common corporate policy calling for access barriers at all 92 stores. Even a special master would have to adjudicate all of the myriad issues. All would then be subject to relitigation before the district judge under Rule 53(f).
Nor is it an answer that the case might settle, mooting out many of the complexities, with a framework to bring all stores into compliance. The certification criteria must be applied on the assumption that the case will be litigated, not that it will be settled.
C. Damages Claims Predominate. The next problem with a 92-store class concerns the damage claims, namely the statutory damages per violation. As already noted, Rule 23(b)(2) usually involves only injunctive and declaratory relief, not damages. The Ninth Circuit has held that Rule 23(b)(2) class treatment is appropriate if the value to plaintiffs of the injunctive relief sought predominates over any compensatory or punitive damages sought. Molski v. Gleich, 318 F.3d 937, 950-51 (9th Cir.2003). In Molski, the Ninth Circuit held that there is no bright-line rule for determining predominance. Rather, courts should look at the facts and circumstances of each action in an effort to determine the plaintiffs’ intent in bringing the suit. Id. at 951.
Here, plaintiffs are seeking injunctive relief as well as the statutory minimum damages under the Unruh Act and the CDPA. Burger King Corporation argues that plaintiffs’ damages claims predominate because their claims for injunctive relief under the ADA and California law are moot. Burger King Corporation argues that this is because the ten leased restaurants visited by the named plaintiffs

are currently in compliance with the ADA and California Code.
Burger King Corporation, however, relies solely on the self-serving declaration of its expert witness, who avers that all ten restaurants were fully in compliance as of August 2009. It points to Hubbard v. 7-Eleven, Inc., 433 F.Supp.2d 1134 (S.D.Cal.2006), where defendant 7Eleven’s motion for summary judgment was granted in an ADA suit because *571 the architectural barrier alleged by the plaintiff had been remedied, rendering the issue of injunctive relief moot. Id. at 1145.
The present action is not at the summary judgment stage, however, but at the class certification stage under Rule 23. A district court must conduct a rigorous analysis of the moving party’s claims to examine whether the requirements of Rule 23 are met but should only consider evidence that relates to the merits if such evidence also goes to the requirements of Rule 23. Hanon, 976 F.2d at 509. A court should not consider whether the party seeking class certification is likely to prevail on the merits. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). At this point, there is a factual dispute between the parties over whether barriers to access exist at the corporate-leased restaurants in question. It would be improper at the class certification stage to determine this issue on the merits.
Even though plaintiffs’ claims for injunctive relief are not moot, the large value of the monetary damages sought in this case relative to the value of any injunctive relief is most troubling as to whether we could proceed under Rule 23(b)(2) (not to mention dispensing with notice to absent class members). The “minimum statutory” damages per offense under the California statutes are $4000 per offense under the Unruh Act, and $1000 per offense under the CDPA. A separate violation may occur every time a person visits a restaurant and encounters an accessibility barrier or is deterred from going to a restaurant due to the existence of an access barrier thereor at least so plaintiffs can be expected to argue. Some of the potential class members say they have visited the restaurants at issue on a weekly basis or more over the class period, resulting in many dozens of violations and potentially entitling them to hundreds of thousands or even millions of dollars in “minimum statutory” damages each (Suttles Decl. ¶ 3; Hodge Decl. ¶ 3; Donley Decl. ¶ 3). As stated, the complaint seeks in excess of five million dollars (Compl.¶ 6).
[6] The value of such substantial damages likely predominates over the value of the injunctive relief sought and will require an individual-by-individual determination
10

Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
as to who visited which stores and how many times. For that reason, class certification is more appropriately analyzed under Rule 23(b)(3) instead of Rule 23(b)(2). Under Rule 23(b)(3), questions of law or fact common to the class must predominate over questions affecting the individual class members, and on balance a class action must be superior to other methods available for adjudicating the controversy. It seems clear that any common issues across all 92 stores would not predominate over the issues that would be unique to each location, for all of the feature-by-feature reasons explained above.
Furthermore, the Ninth Circuit has held that “[b]y its terms, Rule 23 makes manageability an issue important only in determining the propriety of certifying an action as a (b)(3), not a (b)(2), class action.” Elliott v. Weinberger, 564 F.2d 1219, 1229 (9th Cir.1977), aff’d in pertinent part and rev’d in part sub nom., Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Under Rule 23(b)(3), a consideration of the enormous likely difficulties that would accompany managing a single class of all 92 stores would weigh heavily against certification.
D. Lack Of Typicality. The typicality requirement of Rule 23(a)(3) is satisfied when “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” A plaintiff’s claims are typical if they are “reasonably coextensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. “In a public accommodations suit ... where disabled persons challenge the legal permissibility of architectural design features, the interest, injuries, and claims of the class members are, in truth, identical such that any class member could satisfy the typicality requirement for class representation.” Arnold, 158 F.R.D. at 450.
[7] Because as explained at length above, the individual restaurants did not share common architecture, plans, remodels, policies, or barriers to access, named plaintiffs here *572 have suffered different injuries than those suffered by purported class members who encountered different access barriers at other corporate-leased Burger Kings that the named plaintiffs did not visit. Their statewide claims therefore do not satisfy the typicality requirement of Rule 23(a)(3).
3. WHY TEN SEPARATE RULE 23(B)(3) CLASSES WILL BE CERTIFIED AS TO THE TEN STORES

VISITED BY THE NAMED PLAINTIFFS. [8] On the other hand, every store visited by a named plaintiff is deserving of its own stand-alone class under Rule 23(b)(3). Rule 23(b)(3) certification is more appropriate here than Rule 23(b)(2) certification because the value of the potentially large damages claims predominate over the value of injunctive relief sought for each restaurant-wide class for the same reasons explained above with regards to a potential 92-store class. Molski, 318 F.3d at 949.
A. Commonality and Predominance. Burger King Corporation does not dispute that plaintiffs have established Rule 23(a)(2) commonality for each separate class of patrons of the individual restaurants visited by the named plaintiffs because every patron of a particular restaurant faces identically alleged access barriers. The analysis under Rule 23(b)(3) “presumes that the existence of common issues of fact or law have been established pursuant to Rule 23(a)(2).” In contrast to the less stringent standard of Rule 23(a)(2), class certification under Rule 23(b)(3) is proper when common questions present a significant portion of the case and can be resolved for all members of the class in a single adjudication. Hanlon, 150 F.3d at 1019-22. All mobilityimpaired patrons of a particular restaurant who use wheelchairs face identical facilities and identical access barriers. Their common interest in assuring that all the features at the particular restaurant are in compliance will predominate over any individual differences among them. Addressing any barriers at each store with injunctive relief lends itself to a single adjudication.
B. Typicality. The named plaintiffs here, like members of each proposed class they represent, all use wheelchairs or scooters for mobility and by definition have encountered the same allegedly discriminatory barriers at the same particular store. Burger King Corporation does not dispute the typicality of the named plaintiffs as to classes of patrons of the restaurants that the named plaintiffs have visited. Therefore, their claims satisfy the typicality requirement of Rule 23(a)(3).
C. Numerosity. Plaintiffs have presented census figures demonstrating that there are more than 150,000 people in California who use wheelchairs and scooters, as well as declarations from 48 putative class members who allege encountering
11

Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
access barriers at corporate-leased Burger Kings in California. They also have presented evidence that Burger King is a popular fast food restaurant and argue that the “common sense conclusion” is that its corporate-leased restaurants have many mobility-disabled patrons.
Burger King Corporation argues that census data are insufficient to establish numerosity by itself, relying on Celano v. Marriott International, Inc., 242 F.R.D. 544, 549 (N.D.Cal.2007). Celano held that census data alone was “too ambiguous and speculative to establish numerosity” with respect to a purported class of mobilityimpaired individuals who did not currently play golf but would like to do so at Marriott golf courses. Plaintiffs here by contrast rely on a combination of census data, declarations from numerous potential class members, and evidence of Burger King’s popularity. For these reasons, this order finds that plaintiffs have satisfied their burden required by Rule 23(a)(1).
D. Adequacy of Representation. Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. Determining whether the representative parties adequately represent a class involves two inquiries: (1) does the named plaintiff and counsel have any conflicts of interest with other class *573 members, and (2) will the named plaintiff and his or her counsel act vigorously on behalf of the class? See Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978). The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. “[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977).
Burger King Corporation does not contest the named plaintiffs’ adequacy to represent store-wide classes limited to the stores which each of named plaintiff actually visited. Burger King Corporation does challenge proposed class counsel on the grounds that five separate law firms seek joint appointment as lead counsel. The Advisory Committee Notes to the Federal Rules of Civil Procedure caution that “the court should be alert to the need for adequate staffing of the case, but also to the risk of overstaffing or an ungainly counsel structure.” Advisory Committee Note to Rule 23(g)(2) ( 2003 amendments).
As stated in prior cases, from over 35-years of practice and presiding, the undersigned is convinced that it is best

to have only one law firm as class counsel. This will greatly reduce the inevitable duplication of effort that flows from two or more firms. The commentaries recognize this as well. See, e.g., Third Circuit Task Force on the Selection of Class Counsel Final Report, at 96 (2002) (noting that multiple counsel carry the danger of duplication of fees, and courts should scrutinize staffing arrangements and intervene by removing class counsel if in the best interests of the class). Only when there is a special need for another firm should extra counsel be added. In re: Merck & Co., Inc. Securities Litigation, 432 F.3d 261, 267 n. 4 (3rd. Cir.2005) (“If plaintiffs believe that more than one law firm is necessary, they must demonstrate to the Court’s satisfaction the need for multiple lead counsel”).
By OCTOBER 9, 2009, AT NOON, plaintiffs shall submit a memorandum and declaration, under seal and ex parte if need be, explaining why anyone other than Bill Lann Lee and his firm Lewis, Feinberg, Lee, Renaker & Jackson, P.C., should be appointed as class counsel.
With respect to any potential attorney’s fees application, please be aware of the following guidelines. One or possibly two lawyers are all that are usually needed at a hearing, depending on the difficulty and importance of the issue. One or possibly two lawyers plus one legal assistant are usually all that are needed in taking a deposition, fewer in defending, again depending on the difficulty of the witness or subject. Two lawyers, a legal assistant and an IT assistant are all that is needed at trial. If, however, the other side uses more than those benchmarks, then plaintiffs may usually do likewise. Current time records must be kept so that the lodestar can be tabulated by project, timekeeper, hourly rate, and time spent. The overall number of timekeepers should be kept to a small, efficient core group of lawyers and legal assistants, all of whom are up to speed, with only rare instances of bringing in extra timekeepers, such as, for example, to staff an emergency motion. Using summer associates and externs is almost always inefficient so, if they are used, their time should be reduced in accordance with professional billing judgment. Again, however, if the other side objects, we will examine the other side’s staffing structure and usually allow plaintiffs the same latitude employed by the opposition.
E. Plaintiffs’ State Law Claims. Burger King Corporation argues that plaintiffs’ state law claims under the Unruh Act and the CDPA should be stricken from the class definition due to failure to state a valid claim. Burger King Corporation argues that the Unruh Act and the CDPA, by their terms, limit liability to
12

Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
those who actively make or incite discrimination in contrast to the ADA which imposes strict liability upon lessors of public accommodations.
[9] Burger King Corporation’s interpretation of the California statutes is incorrect. A violation of the ADA also constitutes a *574 violation of both the Unruh Act and the CDPA. Cal. Civ.Code § § 51(f), 54(c). The California Supreme Court has explicitly held that a plaintiff seeking damages for ADA violations under the Unruh Act is not required to prove intentional discrimination. Because the Unruh Act adopted the full expanse of the ADA, the California Supreme Court held that all ADA violations-whether or not involving intentional discrimination-were violations of the Unruh Act as well. Munson v. Del Taco, Inc., 46 Cal.4th 661, 672, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009).
4. WHY ADDITIONAL PARTIES WILL BE ALLOWED THROUGH PERMISSIVE JOINDER ON CONDITION THAT THEY ABIDE BY THE EXISTING SCHEDULE. Burger King Corporation moves to add as additional defendants the franchisees/lessees who operate the restaurants at issue in this litigation. It argues that the franchisees are “necessary” parties under Rules 19(a) or, in the alternative, that the Court should use its discretion to add the additional defendants “on such terms as are just” under Rule 21. District courts have considerable discretion under Rule 21 in determining whether additional parties should be included in a pending action. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir.1980).
[10] Burger King Corporation’s motion to add the franchisees/lessees is late. The case management order in this litigation previously set a deadline of March 6, 2009, to seek leave to add new parties. Burger King Corporation should have moved to bring these defendants into the action months ago. Nevertheless, this order will grant permissive joinder under Rule 20 of those franchisees/lessees who operate the ten restaurants for which classes will be certified on the conditions that old and new defendants do not seek to reopen discovery and live with the existing schedule and so long as new defendants are added and appear prior to dissemination of class notice.
Rule 20 provides: “Persons ... may be joined in one action as defendants if: (a) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (b) any question

of law or fact common to all defendants will arise in the matter.” Here, the franchisees/lessees operate and maintain the facilities in question and, under the terms of their lease agreements with Burger King Corporation, must indemnify Burger King Corporation for any accessibility violations that occur. Plaintiffs do not dispute that the franchisees/lessees are jointly and severally liable with Burger King Corporation for any violations, or that the claims against them do not arise out of the same transactions and occurrences. The joinder of the franchisees/lessees, furthermore, will be useful in efficiently effecting any necessary injunctive relief at the stores under their control. Burger King Corporation’s motion will be denied as to the franchisees/lessees who operate and maintain the other 82 stores for which plaintiffs sought class certification. Because those stores are not included in any certified class, the addition of their franchisees/lessees is unnecessary.
5. HOW CASE MANAGEMENT FOR THE TEN SEPARATE CLASSES WILL PROCEED. For the reasons stated above, the Court hereby certifies separate classes under Rule 23(b)(3) for each of the ten stores where named plaintiffs allegedly encountered access barriers. The large amount of the “minimum statutory” damage claims and their value to absent class members require that counsel give careful consideration as to how notice should be disseminated so that absent class members will have the maximum opportunity to recover their damages. Because of the possible risk of cutting off legitimate claims, consideration will need to be given whether to implement a procedure whereby such damage claims should be extinguished only for claimants who affirmatively opt-in to the class.
The trial already set for APRIL 19, 2010, AT 7:30 A.M., shall be devoted solely to Class Number 1 and the store located at 6021 Central Avenue, in El Cerrito.
A second trial is hereby set for MAY 3, 2010 AT 7:30 A.M., and shall be devoted only to *575 Class Number 2 and the store located at 4200 International Boulevard/East 14th Street in Oakland.
A third trial is hereby set for JUNE 7, 2010, AT 7:30 A.M., and shall be devoted only to Class Number 3 and the store located at 2415 North Texas Street, in Fairfield.
A fourth trial is hereby set for JULY 6, 2010, AT 7:30 A.M., and shall be devoted only to Class Number 4 and the store located at 677 Contra Costa Boulevard, in Pleasant Hill.
13

Castaneda v. Burger King Corp., 264 F.R.D. 557 (2009)
A fifth trial is hereby set for AUGUST 2, 2010, AT 7:30 A.M., and shall be devoted only to Class Number 5 and the store located at 2162 Railroad Avenue, in Pittsburg.
A sixth trial is hereby set for SEPTEMBER 7, 2010, AT 7:30 A.M., and shall be devoted only to Class Number 6 and the store located at 2440 Mahogany Way, in Antioch.
A seventh trial is hereby set for OCTOBER 4, 2010, AT 7:30 A.M., and shall be devoted only to Class Number 7 and the store located at 1799 North Broadway, in Walnut Creek.
An eighth trial is hereby set for NOVEMBER 1, 2010, AT 7:30 A.M., and shall be devoted only to Class Number 8 and the store located at 972 El Camino Real, in South San Francisco.
A ninth trial is hereby set for DECEMBER 6, 2010, AT 7:30 A.M., and shall be devoted only to Class Number 9 and the store located at 950 West A Street, in Hayward.
A tenth trial is hereby set for JANUARY 3, 2011, at 7:30 a.m., and shall be devoted only to Class Number 10 and the store located at 2757 Castro Valley Boulevard, in Castro Valley.
A final pretrial conference is hereby set at 2:00 P.M. for the MONDAY ONE WEEK BEFORE EACH TRIAL DATE, said conference to be limited solely to the store pertaining to that trial.
In prior ADA cases, the Court has observed that counsel, even in class cases, sometimes try to gamble on postponing as long as they can the expense of inspections and expert reports and if and when there is no settlement seeking extensions. All expert reports on all stores in question are due on DECEMBER 31, 2009, as per the case management order (Dkt. No. 68). Please make sure
	  

the experts personally visit and inspect each store in question, and take photographs to help resolve the inevitable fact disputes that will arise between the experts. Please do not try to cut corners and merely critique the other side’s expert or rely on the other side’s “survey” evidence (though such evidence may well be received). Extensions will not be granted to do expert reports that should have been done under the generous case schedule set earlier in the case.
CONCLUSION
For the reasons stated above, the ten classes identified above are hereby GRANTED and Bill Lann Lee and his firm Lewis, Feinberg, Lee, Renaker & Jackson, P.C., are appointed as class counsel. The motion to certify is otherwise DENIED. On or before OCTOBER 15, 2009 AT NOON, the parties are requested to jointly submit proposed forms of notice that will advise class members of each of the ten certified classes, among other things, of the damages sought, of their rights to intervene in this action, opt out, submit comments, and contact class counsel, as well as a plan for notice dissemination. Defendant’s motion to add franchisees/lessees is GRANTED IN PART as to the franchisees/lessees which own the ten restaurants for which classes are being certified on the conditions that defendants abide by the existing schedule and so long as new defendants are added and appear prior to dissemination of class notice. The motion to add additional defendants is otherwise DENIED. Defendant’s predicate motion to strike declarations and exclude witnesses is DENIED.
IT IS SO ORDERED.
	  
	  

14

 
 Case3:08-cv-04262-WHA Document340 Filed03/09/10 Page1 of 24

1 Bill Lann Lee – CA State Bar No. 108452 Andrew Lah – CA State Bar No. 234580
2 Julia Campins – CA State Bar No. 238023 LEWIS, FEINBERG, LEE,
3 RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800
4 Telephone: (510) 839-6824 Facsimile: (510) 839-7839
5 Email: blee@lewisfeinberg.com

Michael D. Joblove (pro hac vice) Jonathan E. Perlman (pro hac vice) GENOVESE JOBLOVE & BATTISTA, P.A. 100 SE Second Street, 44th Floor Miami, FL 33131 Telephone: (305) 349-2333 Facsimile: (305) 349-2310 Email: mjoblove@gjb-law.com

6

Timothy P. Fox - CA State Bar No. 157750 Amy F. Robertson (pro hac vice)

[Additional Counsel Listed Below]

7 FOX & ROBERTSON, P.C. 104 Broadway, Suite 400

Attorneys for Defendant Burger King Corporation

8 Denver, CO 80203

Telephone: (303) 595-9700

9 Facsimile: (303) 595-9705

Email: tfox@foxrob.com

10

[Additional Counsel Listed Below]

11

Attorneys for Plaintiff Classes

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

16 MIGUEL CASTANEDA, KATHERINE CORBETT, and JOSEPH WELLNER on
17 behalf of themselves and others similarly situated,
18 Plaintiffs,
19 vs.
20 BURGER KING CORPORATION,
21 Defendant.
22

Case No. C 08-4262 WHA (JL)

JOINT NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF STIPULATION AND SETTLEMENT AGREEMENT

Date: Time: Courtroom: Judge:

March 18, 2010 8:00 am 9 Hon. William Alsup

23

24 NOTICE IS HEREBY GIVEN that on March 18, 2010, at 8:00 a.m., or as soon thereafter

25 as the matter may be heard in the above-entitled Court, Plaintiff Class Representatives Miguel

26 Castaneda, Katherine Corbett, and Joseph Wellner (―Plaintiffs‖) and Defendant Burger King

27 Corporation (―BKC‖) will and hereby do move the Court as follows:

28

1. To preliminarily approve the Settlement Agreement (―Settlement‖ or ―Settlement

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

- 1 -

CASE NO. C 08-4262 WHA

Case3:08-cv-04262-WHA Document340 Filed03/09/10 Page2 of 24

1 Agreement‖) (attached to the Proposed Preliminary Approval Order (―Proposed Order‖) as

2 Exhibit A) between Plaintiffs, on behalf of themselves and the ten Classes certified by the Court

3 in its Order of September 25, 2009, and Defendant BKC, by and through their respective counsel.

4

2. To set dates for the submission of any objections to the Settlement Agreement, as

5 well as any opt-outs to the monetary provisions of the Settlement Agreement.

6

3. To set a final approval hearing.

7

4. To authorize the dissemination plan concerning injunctive relief described below,

8 and to approve the short- and long- form Notices of Injunctive Relief attached to the Proposed

9 Order as Exhibits B and C, respectively.

10

5. To authorize the dissemination plan concerning monetary relief described below,

11 and to approve the proposed notice concerning monetary relief (attached to the Proposed Order as

12 Exhibit D).

13

This motion is based on the Settlement Agreement, the Memorandum of Points and

14 Authorities filed herewith and in support of this Motion, the Declarations of Bill Lann Lee and

15 Timothy Fox in Support of the Joint Motion for Preliminary Approval of Settlement Agreement,

16 and all other papers filed in this action.

17 Dated: 18

March 9, 2010

LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.

19

By:

/s/

Bill Lann Lee

20

Andrew Lah

Julia Campins

21

LEWIS, FEINBERG, LEE,

RENAKER & JACKSON, P.C.

22

1330 Broadway, Suite 1800

Oakland, CA 95612-2519

23

Telephone: (510) 839-6824

Facsimile: (510) 839-7839

24

Timothy P. Fox

25

Amy F. Robertson

FOX & ROBERTSON, P.C.

26

104 Broadway, Suite 400

Denver, CO 80203

27

Telephone: (303) 595-9700

Facsimile: (303) 595-9705

28

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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
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Mari Mayeda P O Box 5138 Berkeley, CA 94705 Telephone: (510) 848-3331 Facsimile: (510) 841-8115
Attorneys for the Plaintiff Classes

By:

/s/

Michael D. Joblove (pro hac vice)

Jonathan E. Perlman (pro hac vice)

GENOVESE JOBLOVE &

BATTISTA, P.A.

100 SE Second Street, 44th Floor

Miami, FL 33131

Clement L. Glynn Adam Friedenberg GLYNN & FINLEY, LLP One Walnut Creek Center 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596

Attorneys for Defendant Burger King Corporation

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1

TABLE OF CONTENTS

2

3 I. HISTORY AND STATUS OF THE CASE ....................................................................... 2

4

A. Applicable Statutes.................................................................................................. 2

5

B. History of this Litigation ......................................................................................... 3

6 II. TERMS OF THE PROPOSED SETTLEMENT ................................................................ 6

7

A. Injunctive Relief...................................................................................................... 7

8

B. Damages .................................................................................................................. 8

9

C Attorneys Fees and Costs and Costs of Administration of

the Settlement.......................................................................................................... 9

10

III. THE PROPOSED SETTLEMENT MERITS PRELIMINARY

11

APPROVAL...................................................................................................................... 10

12 IV. THE PARTIES’ PROPOSAL CONCERNING POTENTIAL

DAMAGES CLAIMANTS............................................................................................... 15

13

V. THE PROPOSED NOTICE SATISFIES DUE PROCESS AND

14

SHOULD BE APPROVED .............................................................................................. 15

15 VI.

CONCLUSION ........................................................................................................... 17

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

3

FEDERAL CASES 4

Adderley v. National Football League Players Association,

5

2009 WL 4250792 (N.D. Cal. Nov. 23, 2009).................................................................. 13

6 Burns v. Elrod, 757 F.2d 151 (7th Cir. 1985)............................................................................................. 15
7

Churchill Village, L.L.C. v. General Electric,

8

361 F.3d 566 (9th Cir. 2004)............................................................................................. 15

9 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) .......................................................................................................... 15
10

Lucas v. Kmart,

11

No. 99-cv-01923-JLK (D. Colo. 2006) .........................................................................11, 13

12 Young v. Polo Retail, LLC, 2006 WL 3050861 (N.D. Cal. Oct. 25, 2006)................................................................... 10
13

14 STATE CASES
15 People ex. rel. Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123(1983)................................................................................................ 2
16

17 FEDERAL STATUTUES

18 The Americans with Disabilities Act ............................................................................................2, 3

42 U.S.C. § 12181 ............................................................................................................... 2

19

42 U.S.C. § 12188(a) .......................................................................................................... 2

42 U.S.C. § 12205 ........................................................................................................... 2, 9 20

21 STATE STATUTUES

22 The California Unruh Civil Rights Act .................................................................................2, 12, 13

Cal. Civ. Code § 51 ............................................................................................................. 2

23

Cal. Civ. Code § 51(b) ........................................................................................................ 2

Cal. Civ. Code § 52(a) ................................................................................................ 2, 8, 9

24

Cal. Civ. Code § 52(c)(3) .................................................................................................... 2

25 The California Disabled Persons Act ..........................................................................................3, 11

Cal. Civ. Code § 54 ............................................................................................................. 2

26

Cal. Civ. Code § 54(a) ........................................................................................................ 2

Cal. Civ. Code § 54.3(a) ..................................................................................................... 2

27

Cal. Civ. Code § 55 ............................................................................................................. 2

28

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1 FEDERAL REGULATIONS

2 The Class Action Fairness Act 28 U.S.C.A. § 1715(d) ...................................................................................................... 17
3 Department of Justice Standards for Accessible Design, 28 C.F.R. pt. 36, app A ..................... 2, 5
4

5 STATE REGULATIONS

6 Title 24 of the California Code of Regulations ............................................................................... 2

7

RULES

8

The Federal Rules of Civil Procedure

9

Rule 23(c)(2) ..................................................................................................................... 15

Rule 23(e)................................................................................................................ 1, 10, 15

10

11 OTHER AUTHORITIES

12 Alba Conte & Herbert B. Newberg, Newberg on Class Actions (4th ed. 2002) ........................... 10

13 Manual for Complex Litigation (Third) (1995) ............................................................................ 10

14 Manual for Complex Litigation (Fourth) (2004) .......................................................................... 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINT MOTION

2

FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

3

The Plaintiffs, on behalf of themselves and the ten Classes of restaurant patrons certified

4 by the Court, have reached a settlement agreement with Defendant Burger King Corporation

5 (―BKC‖) that provides for (a) injunctive relief, including the elimination of alleged accessibility

6 barriers, the use of mandatory checklists with specific accessibility items for remodeling,

7 alterations, repairs and maintenance, and the monitoring of compliance over six years; (b) a cash

8 payment of $5,000,000 to the Named Plaintiffs and the 382 members of the Classes who

9 contacted Class counsel on or before March 1, 2010, stating that they want to pursue damages in

10 this case (―Damages Claimants‖) (with individual payments averaging approximately $13,000);

11 (c) an agreement by BKC not to oppose a motion by Class counsel for an amount for attorneys’

12 fees and costs not to exceed $2,500,000; and (d) dismissal of the pending interlocutory appeal of

13 the Court’s certification order and an agreement by Defendant to toll the statute of limitations for

14 possible further litigation of claims of individuals who visited Burger King® leased (―BKL‖)

15 restaurants not certified for class treatment.

16

BKC does not admit liability and continues to maintain that BKC has not violated any

17 accessibility laws, but has entered in to this Settlement Agreement in the interest of bringing this

18 litigation to conclusion on reasonable terms.

19

This Settlement ensures that the ten Burger King® restaurants (―Restaurants‖) it covers

20 are accessible to Class Members. In addition, on a per-class-member and per-facility basis, it is

21 the highest monetary Settlement ever in a disability access case involving public

22 accommodations. For these and other reasons discussed below, Class counsel believes that this

23 Settlement -- negotiated at arm’s length with the assistance of a third party neutral after several

24 years of investigation and one-and-a-half years of hard-fought litigation -- to be a fair, adequate,

25 and reasonable resolution of the claims against Defendant. Accordingly, pursuant to Federal Rule

26 of Civil Procedure 23(e), the parties jointly request that the Court (i) preliminarily approve the

27 Settlement of this litigation; (ii) approve three notices of the proposed Settlement, consisting of a

28 short-form notice suitable for posting concerning the injunctive relief provided by the proposed

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1 Settlement (Exhibit B), a longer form further explaining injunctive relief (Exhibit C), and a notice

2 addressing the monetary relief provided by the proposed Settlement (Exhibit D); (iii) authorize

3 dissemination of these notices in the manner described below; (iv) set deadlines for Class

4 Members to object to the Settlement Agreement, and for Damages Claimants to opt out of the

5 monetary provisions of the Settlement Agreement; and (v) set a fairness hearing to provide Class

6 Members an opportunity to object and, should the Court see fit, for entry of final approval of the

7 proposed Settlement Agreement and the petition of Class counsel for an award of attorneys’ fees

8 and costs.

9 I. HISTORY AND STATUS OF THE CASE.

10

A. Applicable Statutes

11

The relief provided in the Settlement Agreement is authorized by the following statutes.

12 Title III of the ADA prohibits disability discrimination in places of public accommodation. 42

13 U.S.C. § 12181 et seq. The specific design criteria required by Title III are set forth in the

14 Department of Justice Standards for Accessible Design (―DOJ Standards‖). 28 C.F.R. pt. 36, app.

15 A. Title III is enforceable through a private right of action for injunctive relief; there is no federal

16 damages remedy for private plaintiffs. 42 U.S.C. § 12188(a)(1) & (2). Prevailing plaintiffs are

17 entitled to attorneys’ fees and costs. Id. § 12205. Under California’s Unruh Civil Rights Act,

18 Cal. Civ. Code § 51 et seq. (―Unruh‖ or ―the Unruh Act‖), and Disabled Persons Act, Cal. Civ.

19 Code § 54 et seq. (the ―CDPA‖), plaintiffs may also sue for injunctive relief to require

20 compliance with California’s access standards, set forth in Title 24 of the California Code of

21 Regulations (―CBC‖). See, e.g., Cal. Civ. Code §§ 51(b), 52(c)(3), 54(a), 55 (prohibiting

22 disability discrimination in public accommodations and providing injunctive remedy); People ex.

23 rel. Deukmejian v. CHE, Inc., 150 Cal. App. 3d 123, 133-34 (1983) (holding that Cal. Civ. Code

24 § 54 required compliance with standards promulgated pursuant to Cal. Gov’t Code § 4450, that is,

25 Title 24 of the Code of Regulations). In addition to injunctive relief, Unruh and CDPA also

26 provide a private right for actual damages for disability discrimination. Cal. Civ. Code § 52(a),

27 54.3(a). An award of attorneys’ fees and costs is also authorized by state law to the prevailing

28 party. Id.

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1

B. History of this Litigation

2

Prior to the filing of this case, Class counsel spent more than a year investigating possible

3 access violations at California Burger King® restaurants. (Decl. of Timothy P. Fox (―Fox Decl.‖)
4 ¶ 2). On September 10, 2008, Plaintiff Miguel Castaneda filed this action on behalf of himself
5
and similarly situated wheelchair and scooter users against BKC for both injunctive relief and 6

7 damages. He alleged that BKC was liable under Title III, Unruh and the CDPA, for unlawful

8 barriers to access at approximately 92 BKL restaurants throughout California. The Complaint

9 alleged that BKC is directly liable as a lessor/sublessor of these restaurants, and that BKC, in any

10 event, exercised control over the construction, alteration, repair and maintenance, and operation
11 of these restaurants. (See generally Dkt. #1). BKC’s Answer denied all allegations and asserted
12 numerous affirmative defenses. (See generally Dkt. #73)
13 On November 26, 2008, BKC filed a Motion to Dismiss Plaintiff’s Complaint. (Dkt.
14
15 #28). After a hearing on February 12, 2009, the Court denied BKC’s Motion. (Dkt. #69).

16

On March 6, 2009, pursuant to stipulation, Plaintiff amended his complaint to add two

17 new named Plaintiffs, Katherine Corbett and Joseph Wellner. (Dkt. #70). On March 9, 2009, the
18 Court granted the order allowing Plaintiff’s amendment. (Dkt. #71). 19
On September 25, 2009, the Court granted class certification as to the ten restaurants 20
where the Named Plaintiffs personally reported access barriers, but otherwise denied class 21 22 certification. (Dkt. #226). On October 16, 2009, the Court ordered that notice of the class action
23 be issued to the Classes, and approved notices that informed Class Members that if they did not

24 opt out of the case, they would be bound by any determinations concerning injunctive relief.

25 (Dkt. #252 at 1). The notices also informed Class Members that if they wanted to participate in
26 any monetary recovery obtained in this case, they would be required to opt in and must do so no
27 later than March 1, 2010. Id. at 2. In response to the notices, 382 Class Members (inclusive of
28

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1 the Named Plaintiffs) opted in by informing Class counsel that they wanted to pursue monetary

2 relief through this class action (―Damages Claimants‖), and 13 people opted out. Fox Decl. ¶ 5.

3

In addition, prior to class certification, 6 people contacted Class counsel stating that they

4 had encountered access barriers at one or more of the 10 Restaurants covered by the certification
5

Order, but failed to contact Class counsel after that Order to confirm that they want to pursue 6

7 monetary relief through this case. Following notice and class certification, another 21 people left

8 a voice message for Class counsel stating that they had encountered access problems at Burger

9 King® restaurants but did not identify which Burger King® restaurants they had visited.

10 Together these 27 people will be referred to as ―Potential Damages Claimants.‖ Class counsel
11 has been unsuccessful in its attempts to contact the Potential Damages Claimants to determine
12 whether they encountered access barriers at a covered restaurant during the relevant period, and
13 whether they want to opt in for the purposes of pursuing monetary relief through this action. (Fox
14
15 Decl. ¶ 5).

16

The Court set trial dates for each of these ten Classes, starting April 19, 2010 and

17 occurring every two to four weeks thereafter through January 3, 2011. (Dkt. #226 at 27-28). The

18 Court also designated several of Plaintiffs’ counsel as Class counsel. (Id. at 28-29; see also Dkt.

19 #252). Plaintiffs filed an interlocutory appeal from the class certification order, which the Court
20 of Appeals eventually granted on February 10, 2010.
21

22

Between the filing of the case and January 31, 2010, the parties conducted extensive

23 discovery. Plaintiffs obtained and reviewed over one hundred thousand pages of documents from

24 BKC and over fifteen thousand pages of documents from third parties. (Fox Decl. ¶ 4). Plaintiffs

25 also took multiple depositions. In addition to the depositions of Named Plaintiffs taken earlier, 26 Defendant BKC took the deposition of ten Damage Claimants. The discovery is outlined below, 27

28

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1 at footnote 2.1 In addition to the discovery conducted prior to the close of discovery, the Court
2 has permitted Defendant BKC to take further depositions of remaining Damage Claimants prior
3 to trial. (Dkt. # 310).
4 Plaintiffs retained experts who prepared reports for use at trial on the following subjects:
5 surveys of the restaurants for compliance with the Department of Justice Standards and the
6
7 California Building Code; specific topics relevant to such compliance; the cost of remediation of
8 certain elements; and an analysis of BKC’s financial status.2 One of Plaintiffs’ experts conducted
9 detailed accessibility surveys of each of the ten BKLs, with each survey averaging three to five
10 hours. (Fox Decl. ¶ 6). Defendant BKC retained an expert who also prepared a series of expert
11 reports.3 12
13 1 Plaintiffs obtained information about the following subjects (among others) through documentary and interrogatory discovery: the construction and alterations history of the
14 restaurants; any involvement by BKC in the construction and alteration of the restaurants; surveys of the restaurants; and BKC’s operations, construction and maintenance policies. (Decl. of Bill
15 Lann Lee (―Lee Decl.‖) ¶ 2) Plaintiffs obtained information about BKC’s relationship to tenants with respect to
16 construction, alterations, repair and maintenance, and operations by taking the depositions of the following BKC employees: James Carberry (Senior Construction Manager, Dec. 9, 2009); Ronald
17 Hailend (Senior Director of Construction, Dec. 18, 2009), Robert Andrews (Franchise Business Leader (―FBL‖), Dec. 1, 2009), Stephen Thomas (FBL, Dec. 2, 2009), and Samuel Wong (FBL,
18 Jan. 26, 2010). (Id. ¶ 3) Plaintiffs took the depositions concerning barriers and remediation of the following tenant
19 operators of the ten BKL restaurants for which the Court granted class certification: Willie Cook (Huntington Restaurants, Inc., Dec. 14, 2009), Patricia Corcoran (Scarborough Restaurants, Inc.,
20 Dec. 10, 2009), Sunil Gulati (Gluba Holdings, LLC; Dec. 16, 2009), Anthony Sacca (Sacca Corp., Jan. 28, 2010), Ravi Batra (Ravind Enterprises, Jan. 20, 2010), Myrna Schultz (Strategic
21 Restaurants Acquisition Co., Dec. 21, 2009), David Hairston (Sarah Wade Corp., Jan. 21, 2010), and Rakesh Patel (Hart Foods, Inc., Jan. 22, 2010). Plaintiffs also prepared the declarations of 48
22 individuals in support of the motion for class certification. (Id. ¶¶ 4, 7; Dkt. #138). Defendant took the following depositions of Named Plaintiffs and Damage Claimants:
23 Miguel Castaneda (Jan. 28, 2009), Katherine Corbett (June 9, 2009), Joseph Wellner (June 23, 2009), Florence Ashford (Jan. 15, 2010), Beverly Bryant (Jan. 27, 2010), George Butler (Jan. 27,
24 2010), Karen Conklin (Jan. 20, 2010), Lisa Kilgore (Jan. 22, 2010), William Showen, Julie Siddall (Jan. 28, 2010), Cheryl Smith (Jan. 19, 2010), Ruby Taylor (Jan. 25, 2010), and A. Tony
25 Walsh (Jan. 22, 2010). (Id. ¶ 5). 2 Defendant took the depositions of Plaintiff experts Eric McSwain (Jan. 29, 2010) and
26 James L.E. Terry (Feb. 2, 2010). (Lee Decl. ¶ 6). 3 Plaintiffs took the deposition of Defendant expert Kim Blackseth (Feb. 1, 2010). In
27 addition, Plaintiffs took the deposition of third party architect Robert DeGrasse (Jan. 12, 2010). (Lee Decl. ¶ 6).
28

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1

The parties began discussing settlement of the claims of the ten certified Classes after

2 certification, devoting substantial time to such discussions after the parties completed discovery.
3 (Lee Decl. ¶ 9). The parties carefully structured the settlement negotiations. The parties initially 4
agreed to a preliminary, unmediated negotiation on January 7, 2010 to discuss injunctive relief, 5
and reached agreement on the structure and essential elements of injunctive relief, with the parties 6
7 to work out details later. (Id. ¶ 10). The parties then agreed to a mediated negotiation on January

8 27, 2010 to discuss monetary relief. (Id. ¶ 11). Retired California Supreme Court Justice Edward

9 Panelli served as the mediator. (Id.). The parties and BKC’s insurer met for most of the day on

10 January 27th. (Id.) Settlement negotiations continued after the January 27th mediation. (Id.)

11 Throughout settlement negotiations, injunctive relief and damages were kept completely
12 separate. (Id.) Further, the parties did not discuss attorneys’ fees and costs until after the issues
13
of injunctive relief and damages were resolved. (Id.) 14

15

Ultimately, the parties eventually reached agreement on damages and fees in an amount

16 that had first been proposed by the mediator. (Id. ¶ 12). Both parties have been represented

17 throughout these negotiations by counsel with substantial experience in both disability rights and

18 class action litigation. (See Dkt. #138-2 ¶¶ 5-7; 138-3 ¶¶ 11-25).

19 II.
20
21

TERMS OF THE PROPOSED SETTLEMENT. The terms of the Proposed Settlement Agreement are set forth in the Settlement

22 Agreement, a copy of which is attached as Exhibit A to the Proposed Preliminary Approval

23 Order. The following summarizes the principal terms of the Settlement:

24

A. Injunctive Relief

25

After this lawsuit was filed, BKC surveyed the ten BKLs and instructed its tenant

26 franchisees to remediate barriers that were found during the surveys. (Fox Decl. ¶ 6). After this
27 remediation work was completed, Plaintiffs’ expert again conducted extensive surveys of each of
28

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1 the BKLs. (Id.). These surveys established that the remediation work done in response to this

2 lawsuit had greatly enhanced the accessibility of the BKLs. (Id.). The proposed Settlement
3 Agreement requires BKC to arrange for remediation of remaining items. (See Settlement 4
Agreement ¶ 6 and Ex. A). 5
To ensure that access is maintained, the Settlement Agreement requires three types of 6
7 periodic access surveys geared to the frequency and type of access barriers that typically arise in

8 restaurants (Id. ¶ 7):

9

(1) Daily surveys conducted by tenant franchisee managers that focus on ensuring that

10

frequently-changing elements remain in compliance. For example, during these

11 surveys, managers make sure that movable condiment dispensers are kept within
12 reach, and the path of travel to restrooms is not obstructed by high chairs or other
13
items. (See id. ¶ 7.1.1). 14

15

(2) Mid-level surveys conducted every three years. These surveys target elements that

16

change less frequently than those found in daily surveys, including, for example,

17

parking lot re-striping and restroom fixtures. (See id. ¶ 7.1.2 and Ex. C).

18

(3) Successor remodel surveys, which are comprehensive surveys conducted when a

19 restaurant is remodeled, approximately once every 20 years. (See id. ¶ 7.1.3 and Ex.
20 D).
21

22 BKC will produce to class counsel on a periodic basis the mid-level and remodel survey forms for

23 monitoring. (See id. ¶ 8).

24

The parties have also agreed to a dispute resolution process in which disputes that the

25 parties cannot resolve can be brought to the Court for resolution during the term of the Settlement 26 Agreement. (See Id. ¶ 11). 27

28

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1

B. Damages

2

Pursuant to this Court’s orders, the only people eligible for monetary awards under the

3 Settlement are the three Named Plaintiffs and those members of the ten certified classes who
4 opted in to pursue damage claims by March 1, 2010. (See Dkt. #252 at 1; Settlement Agreement
5
¶¶ 3.4, 9.3). Likewise, these are the only Class Members releasing their damage claims. 6

7 (Settlement Agreement ¶ 17.2). Individuals who did not opt in to seek a monetary award in this

8 case are not releasing any damage claims in this Settlement. While Damages Claimants are

9 required to release all damages relating to accessibility at the Restaurants (id. (including release

10 of ―statutory, actual, compensatory, consequential, special, emotional harm or punitive
11 damages‖)),4 they have the right to opt out of the monetary provisions of the Settlement if they 12
wish to pursue claims on an independent basis in lieu of what the Settlement provides. (Id. ¶ 10). 13
In addition, Paragraph 10.4 of the Agreement (the ―Blow Up Provision‖) gives BKC the right to 14
15 declare the Agreement null and void if the number of Damages Claimants who opt out of the

16 Class exceeds 30, or consists of Damages Claimants whose claims, in the aggregate, exceed

17 $500,000. (Id.)

18

In addition to payments to Damages Claimants, discussed below, the money from the $5

19 million fund may be used for two other purposes: (a) Payment for the costs of notifying the class
20 of the Settlement, and administering the Settlement, to the extent that those costs exceed $15,000
21 22 and $50,000 respectively.5 Costs up to these amounts will be paid by Class Counsel. (b)

23 Payments, if any, to the Named Plaintiffs who brought and pursued this case, in an amount to be

24 determined by the Court, based upon declaration evidence and such other proof as the Court may
25 4 The damages available under § 52(a) of the Unruh Act are commensurately broad. They are ―actual damages and any amount to be determined by a jury but in no case less than four thousand
26 dollars.‖ 5 Based on estimates they have obtained from claims administrators, and the cost of issuing
27 notice to the class after the certification order, Class counsel do not expect these costs to exceed these amounts, see Fox Decl. ¶ 12, but if they do, the remainder will be paid from the damages
28 fund.

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1 require. (Settlement Agreement ¶ 9.2.2). If there are any funds remaining after disbursements to

2 Damages Claimants and towards these other obligations, they will be donated to Disability Rights
3 Advocates, a non-profit organization located in Berkeley, California, devoted to ensuring 4
accessibility for the disabled. (Id. ¶ 9.6) 5
Monetary awards will be distributed pro rata based on the total number of eligible claims 6
7 for all Damages Claimants, with a maximum of six (6) visits for which an individual Damages
8 Claimant can obtain recovery. (Id. ¶ 9.5.1).6 For example, if (a) the amount of the fund

9 remaining after disbursements for costs and to Named Plaintiffs is $4.9 million; (b) there are 350

10 Eligible Claimants, and (c) the sum of all Qualifying Visits for all Eligible Claimants (with no
11 single Class Member eligible for more than six visits) is 1,200, then the amount that an Eligible
12 Claimant would recover for a Qualifying Visit would be ($4.9 million / 1,200), or $4,083.33 per
13 Qualifying Visit. Under this scenario, an Eligible Claimant seeking recovery for one Qualifying
14
15 Visit would receive $4,083.33, and an Eligible Claimant seeking recovery for six or more

16 Qualifying Visits would receive $24,499.98. (Id. ¶ 9.5.2).

17

C. Attorneys Fees and Costs and Costs of Administration Of the Settlement

18

The parties have agreed that Class counsel may seek an award of attorneys’ fees and costs

19 in an amount not to exceed $2,500,000, and that BKC will not oppose such request. The
20 attorneys fees and costs awarded will not come from the $5 million Damages Fund. (Id. ¶ 12.1).
21

22 Under 42 U.S.C. § 12205 and California Civil Code § 52(a), Class counsel are entitled to request

23 statutory fees and costs. Should the Court preliminarily approve the proposed Settlement

24 Agreement, Plaintiffs intend to apply for such an award with their application for final approval

25 of the Settlement. In addition, as set forth above, Class counsel will pay the costs for a claims 26

27 6 Named Plaintiffs shall be eligible for monetary payments under the same criteria and
28 procedures as other eligible claimants. (Settlement Agreement ¶ 9.3.9).

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1 administrator up to $50,000, and for providing notice to the class up to $15,000, with costs in

2 excess of these amounts to be paid from the damages fund. (Id. ¶¶ 9.2.1, 14.4).

3 III. THE PROPOSED SETTLEMENT MERITS PRELIMINARY APPROVAL 4

5

Preliminary approval is an initial assessment of the fairness of the proposed settlement

6 made by a court on the basis of written submissions and presentations from the settling parties.

7 Newberg on Class Actions summarizes the preliminary approval criteria as follows:

8

If the preliminary evaluation of the proposed settlement does not disclose grounds

to doubt its fairness or other obvious deficiencies, such as unduly preferential

9

treatment of class representatives or of segments of the class, or excessive

compensation for attorneys, and appears to fall within the range of possible

10

approval, the court should direct that notice under Rule 23(e) be given to the class

members of a formal fairness hearing, at which arguments and evidence may be

11

presented in support of and in opposition to the settlement.

12 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11:25 (4th ed. 2002)

13 (―Preliminary Court Approval‖) (quoting Manual for Complex Litigation (Third) § 30.41 at 237
14 (1995)). 15
The purpose of the preliminary approval process is to determine whether the proposed 16
settlement is within the range of reasonableness and thus whether notice to the Class of the terms 17 18 and conditions and the scheduling of a formal fairness hearing is worthwhile. 4 Newberg on
19 Class Actions § 11:25 (4th ed. 2002) (―Preliminary Court Approval‖); see also Young v. Polo

20 Retail, LLC, 2006 WL 3050861, at *5 (N.D. Cal. Oct. 25, 2006) (same).

21

Here, the proposed Settlement satisfies the preliminary approval requirements. Class

22 counsel believe that the proposed Settlement is an excellent result, reached after hard-fought

23 litigation and negotiation, shortly before trial, and with assistance of a skilled and experienced
24
mediator. (Lee Decl. ¶¶ 9-13). 25

26

First, the Settlement will provide substantial injunctive relief to the Class. As this Court

27 is aware, as a result of this litigation, BKC has already enhanced accessibility at the Restaurants.

28 (Fox Decl. ¶ 6). Additionally, under the Settlement, BKC has committed to ensuring additional

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CASE NO. C 08-4262 WHA

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1 accessibility enhancements, and the parties have negotiated injunctive relief that ensures that

2 Restaurants remain in compliance with applicable accessibility requirements. See supra pp. 11-
3 12. 4
Second, Plaintiffs’ counsel believe the monetary Settlement obtained in this disability 5
access case is the largest ever on a per-class member and per-facility basis, and will provide Class 6
7 members who opted in to submit damages claims that will provide substantial recovery. As of the

8 date of the close of the opt-in period, 382 Class Members have opted in. The average recovery is

9 approximately $13,000 for each Damages Claimant. (Fox Decl. ¶ 5, 9). By comparison, the

10 largest monetary recovery obtained in a disability access class action was in Lucas v. Kmart, No.
11 99-cv-01923-JLK (D. Colo. 2006). (Id. ¶ 10). In Kmart, the average monetary recovery for
12 members of the California sub-class was $6,058.88, of which approximately $2,300 was in the
13 form of a gift card. (Id.). Further, in Kmart the average recovery per covered facility was
14
15 $95,404.09; here, that average is $500,000 per covered restaurant. (Id.).

16

Third, Plaintiffs’ counsel believes that the Settlement represents a reasonable discount

17 from any estimate of the damages that the class could recover at trial. Although Plaintiffs believe
18 that they have strong claims against BKC, they recognize that there is always substantial litigation 19
risk. Additionally, Plaintiffs recognize that there are particular risks that might lower the amount, 20
if any, ultimately awarded to Class Members after trials and appeals. Such risks include: (1) 21 22 possible unwillingness or inability of Class Members to testify at trial in San Francisco; (2) the
23 jury’s possible failure to credit evidence of the existence of barriers; (3) the jury’s possible failure

24 to credit the number of visits to which a Class Member testifies; (4) uncertainties regarding

25 recovering for ―deterred‖ visits;7 (5) the possibility that novel legal issues may be reversed on
26
27 7 From pleadings filed by BKC in discovery and related matters, Plaintiffs understand that BKC intended to challenge drive-thru visits as not qualifying as visits for the purposes of recovery.
28 Additionally, BKC expressed its disagreement with Plaintiffs’ claim that each visit in which a

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1 appeal; and (6) the years-long delay in receipt by Class Members of monetary relief during the

2 pendency of appeals, even if the appeals were ultimately denied.

3

Plaintiffs understand that this Court would like to analyze the relationship of the

4 Settlement amount to a damages calculation, and therefore provide a brief description of their
5

current understanding of the damages the Class would be entitled to. Plaintiffs note that this 6

7 calculation is particular to this litigation alone and is tied to the particular facts and circumstances

8 of this litigation and these ten Restaurants.

9

Number of Class Members—Pursuant to this Court’s Orders (Dkt. #226, 252), the

10 parties disseminated notice to potential Class Members, alerting them to the certification

11 regarding the ten certified Restaurants and the procedures for opting into the damages case and
12 out of the injunctive relief case. (Lee Decl. ¶ 8). The deadline for Class Members to opt in was
13
March 1, 2010, and 382 Class Members opted in to the damages Class. (Fox Decl. ¶ 5). 14

15

Determination of Number of Class Visits—To determine the average number of visits

16 per month, Plaintiffs conducted extensive interviews with 60 Damages Claimants. (Id. ¶ 7).

17 Based on these interviews, Plaintiffs estimate that Class Members visited a certification restaurant
18 slightly less than once every two months on average. (Id.). 19
Damages Period—Plaintiffs used a 30-month damages period, from April 2006 (the 20
beginning of the limitations period) through September 2008 (when Defendant began remediating 21 22 its restaurants). Plaintiffs assumed for the purposes of calculating a reasonable, conservative
23 settlement, that a jury may only compensate the Class Members for visits prior to September

24 2008.

25

Conservative Damages Estimate—Based on these assumptions, estimated damages with

26 respect to the ten certification Restaurants total approximately $20 million. (Fox Decl. ¶ 8).
27 Damage Claimant encounters unequal access entitles that Class Member to $4000 in statutory
28 damages under the Unruh Act. (See Dkt. #284 at 1, 13).

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1 Thus, the Classes are recovering approximately one-quarter of the amount to which Plaintiffs

2 estimate they may be entitled if every Damages Claimant was awarded full damages for every

3 claimed visit to a covered Restaurant. (Id. ¶ 8-9). Plaintiffs believe that the monetary recovery
4 obtained through this Settlement is a reasonable discount for time, litigation risk, and the other
5
risks outlined above. (Lee Decl. ¶ 13). 6

7

BKC believes the results obtained in the Settlement are more than could be achieved had

8 the claims been fully litigated: (a) BKC believes it is not liable under state law for damages

9 because the Restaurants are independently operated and because BKC neither engaged in,

10 fostered nor aided any of the alleged discrimination; (b) a large number of opt-in Claimants did
11 not personally encounter barriers, as required by the Unruh Act and CDPA; (c) the opt-in
12 Claimants did not encounter barriers in the quantity of visits contended; (d) a number of
13 Claimants’ contentions are not credible and (e) certification of damage classes was inappropriate
14
15 given the individualized nature of the proof required.

16

Fourth, the distribution plan is fair to the class. (Fox Decl. ¶ 11). As in Kmart, the Class

17 Members will be compensated for each visit to a covered restaurant during the class period.

18 Imposing a maximum on the number of visits for each claimant represents a fair balance between
19 a distribution that closely approaches reality and one that protects Class Members from possibly
20 illegitimate claims. (Id.). A similar – though lower -- maximum was approved in the Lucas v.
21
22 Kmart settlement. (Id.). (Kmart settlement capped the number of eligible visits at two).

23

Fifth, Plaintiffs assert that compensating the named plaintiffs for the hours they spent

24 representing the Class is fair and reasonable. Named Plaintiffs will participate in the damages

25 distribution in the same way as any other Class Member; they are not seeking incentive payments
26 as class representatives, a practice that the Court disfavors. See, e.g., Adderley v. Nat’l Football
27 League Players Ass'n, 2009 WL 4250792 (N.D. Cal. Nov. 23, 2009). Rather than incentive
28

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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CASE NO. C 08-4262 WHA

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1 payments, the proposed distribution plan provides that the Court -- in its discretion -- may order
2 compensation for the Named Plaintiffs based on their level of active participation in the case, and 3 set the amount. Id. at *8 (approving compensation). 4
Finally, Plaintiffs believe that the provision for attorneys’ fees and costs is fair in that 5
Class counsel have agreed to a ceiling on their petition for an award of fees and costs that the 6 7 Court will ultimately determine. (Lee Decl. ¶ 14). As discussed above, the ceiling was 8 negotiated by the parties only after the essential elements of injunctive relief and the amount of
9 damages were negotiated. (Id. ¶ 12). See, e.g., Manual for Complex Litigation (Fourth) § 21.7 at 10 335 (2004) (―Separate negotiation of the class settlement before an agreement on fees is generally 11
preferable.‖). In litigating this matter, Class counsel have taken very substantial risk and have 12
aggressively investigated and litigated the matter for over three years, spending thousands of 13
hours investigating and prosecuting the case.8 (Lee Decl. ¶ 14). Counsel, moreover, intend to 14 15 exclude time devoted to the restaurants that the Court did not certify for class treatment in its
16 September 2009 order. (Id.). As noted above, the fees application will also include a request for
17 most, if not all, the expenses of Settlement Administration. 18
19
20
21
22
23
24
25
26
27
28

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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CASE NO. C 08-4262 WHA

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1 IV. THE PARTIES’ PROPOSAL CONCERNING POTENTIAL DAMAGES

2

CLAIMANTS

3

As discussed above, there are 27 Potential Damages Claimants, individuals who had

4 contacted Class Counsel who may or may not be Damages Claimants. See supra p. 8. The
5

Parties propose to send Damages Notices and Claims Forms to all of these individuals at their last 6

7 known addresses with instructions to the Claims Administrator to attempt to locate individuals

8 whose notices are returned. Any of these individuals who make a valid claim will be bound by

9 the monetary provisions of the Agreement; any individuals who do not respond will not be bound.

10 V. THE PROPOSED NOTICE SATISFIES DUE PROCESS AND SHOULD BE
11 APPROVED
12 Under Federal Rule of Civil Procedure Rule 23(e)(1), the court ―must direct notice in a
13 reasonable manner to all class members who would be bound by a propos[ed settlement].‖ Class
14
15 members are entitled to receive ―the best notice practicable‖ under the circumstances. Burns v.

16 Elrod, 757 F.2d 151, 154 (7th Cir. 1985)(citing Fed. R. Civ. P. 23(c)(2)). Notice is satisfactory

17 ―if it generally describes the terms of the settlement in sufficient detail to alert those with adverse

18 viewpoints to investigate and to come forward and be heard.‖ Churchill Vill., L.L.C. v. Gen.
19 Elec., 361 F.3d 566, 575 (9th Cir. 2004) (internal citation omitted). Moreover, notice that is
20 mailed to each member of a settlement class ―who can be identified through reasonable effort‖
21
22 constitutes reasonable notice. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974).

23

The notice standard is satisfied here. The parties propose that the Court approve two

24 separate notices to be sent by an independent Claims Administrator.

25

Notices of Injunctive Relief. The parties propose to use the means the Court has

26 previously determined is best calculated to reach each Class Member who is affected by the
27 injunctive relief of the proposed Settlement. After the Class was certified, this Court approved a
28

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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CASE NO. C 08-4262 WHA

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1 notice plan projected to reach the maximum number of Class Members through mailing long-

2 form notices to individuals known to Class counsel, posting of short-form Notices at the ten
3 restaurants for 30 calendar days, use of a case-specific website and toll-free number, and sending 4
long-form notices to advocacy groups. (See Dkt. #261). The parties believe this notice plan 5
remains appropriate for providing Injunctive Notice to the Class. The Injunctive Notices (the 6
7 proposed long- and short- forms of which are attached to the Proposed Preliminary Approval

8 Order as Exhibits B and C) describe the terms of the Settlement; set forth the procedure for

9 comments and objections; provide specifics on the date, time, and place of the final Settlement

10 approval hearing; enable Class Members to exercise their rights and make informed decisions
11 regarding their views of the fairness, adequacy and reasonableness of the proposed Settlement;
12 and provide information as to how to obtain additional information regarding this litigation and
13 the entire Settlement Agreement (including providing the website for the class action as well as
14
15 the address of the Clerk’s Office).

16

Notice to Damages Claimants. Because the March 1, 2010 opt-in deadline for damages

17 has passed, the identity of Damages Claimants is known. The parties propose an additional notice
18 of the damages Settlement to Damages Claimants. The parties propose that the Claims 19
Administrator send the Damages Notice by first-class U.S. mail to the last known address of each 20
Damages Claimant and Potential Damages Claimant. The Damages Notice (the proposed form of 21 22 which is attached to the Proposed Preliminary Approval Order as Exhibit D) describes the terms
23 of the Settlement; sets forth the procedure for comments, objections and exclusions; provides

24 specifics on the date, time, and place of the final Settlement approval hearing; enables Class

25 Members to exercise their rights and make informed decisions regarding their views of the
26 fairness, adequacy and reasonableness of the proposed Settlement, and provides information as to
27 how to obtain additional information regarding this litigation and the Settlement Agreement.
28

PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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1

The deadlines set forth in the Settlement Agreement are triggered by the Notice Deadline,

2 which is the deadline set by the Court for Notice to issue as described herein. The parties propose

3 the following schedule:
4 Notice Deadline: March 29, 2010 or 10 days after the entry of the Order granting
5
preliminary approval of the Settlement, whichever is later. 6

7

Deadline to submit Objections to the Settlement, and for Damages Claimants to Opt

8 Out of the Monetary Provisions of the Settlement: Sixty days after the Notice Deadline.

9

Deadline for Defendant to Declare Settlement Null and Void Based on “Blow Up”

10 Provision: Ten days after the deadline for Damages Claimants to opt out of the monetary

11 provisions of the Settlement.
12 Final Approval hearing: June 15, 2010,9 or eighty days after the Notice Deadline set by
13
the Court, whichever is later, or as soon thereafter as the Court may set the hearing. 14

15

Deadline for Damages Claimants to submit Claims Forms: Ten days after the Final

16 Approval hearing.

17 VI. CONCLUSION

18

For the reasons set forth above, the parties respectfully request that the Court grant the

19 Proposed Preliminary Approval Order filed herewith.
20

21

22

23

24

25

26

27 9 The Final Approval hearing cannot be held prior to June 15, 2010, based on the notice
28 requirements of the Class Action Fairness Act. See 28 U.S.C.A. § 1715(d).

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1 Dated: March 9, 2010 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
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.

By:

/s/

Bill Lann Lee Andrew Lah Julia Campins LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 95612-2519 Telephone: (510) 839-6824 Facsimile: (510) 839-7839

Timothy P. Fox Amy F. Robertson FOX & ROBERTSON, P.C. 104 Broadway, Suite 400 Denver, CO 80203 Telephone: (303) 595-9700 Facsimile: (303) 595-9705

Mari Mayeda P O Box 5138 Berkeley, CA 94705 Telephone: (510) 848-3331 Facsimile: (510) 841-8115
Attorneys for the Plaintiff Classes

By: :

/s/

Michael D. Joblove Jonathan E. Perlman GENOVESE JOBLOVE & BATTISTA, P.A. 100 SE Second Street, 44th Floor Miami, FL 33131
Telephone: (305) 349-2333
Facsimile: (305) 349-2310

Clement L. Glynn Adam Friedenberg GLYNN & FINLEY, LLP One Walnut Creek Center 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596 Telephone: (925) 210-2809 Facsimile: (925) 945-1975

Attorneys for Defendant Burger King Corporation

- 18 -

CASE NO. C 08-4262 WHA

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

United States District Court For the Northern District of California

10 MIGUEL CASTANEDA, KATHERINE

11

CORBETT, and JOSEPH WELLNER, on behalf of themselves and others similarly

12 situated,

No. C 08-04262 WHA

13

Plaintiffs,

14

v.

15 BURGER KING CORPORATION,

ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

16

Defendant. /

17

18

INTRODUCTION

19

This class settlement is said by the parties to be the largest ever on a per class member

20 basis and per facility basis in a disability case involving public accommodations. This is an

21 ADA class action alleging barriers to access on behalf of mobility-impaired customers of

22 restaurants leased by defendants. Ten classes were certified — one for each of the restaurants

23 at which a named plaintiff allegedly encountered an access barrier — with separate trials

24 scheduled for each class. Plaintiffs and defendant now move for final approval of a stipulated

25 settlement agreement that would resolve this action as to all ten certified classes. Additionally,

26 class counsel moves for an award of attorney’s fees in the amount of $2,274,187.86, and costs

27 and expenses in the amount of $225,138.87. Lead plaintiffs Miguel Castaneda, Katherine

28 Corbett and Joseph Wellner also request compensation for their services to the class. For the

United States District Court For the Northern District of California

1 reasons explained below, the proposed settlement is fair, reasonable, adequate and in the best

2 interests of the class, and final approval of the proposed settlement is GRANTED.

3

STATEMENT

4

Named plaintiffs, Miguel Castaneda, Katherine Corbett, and Joseph Wellner, use

5 wheelchairs or scooters for mobility. They brought this action to remedy alleged architectural

6 barriers to access at restaurants that defendant Burger King Corporation leases to franchisees in

7 California. The putative class sued for an injunction ordering defendant to adopt policies that

8 would ensure access for customers who used wheelchairs and scooters and to bring the leased

9 restaurants into compliance with the Americans with Disabilities Act, 42 U.S.C. 12101, Section

10 51 of the California Civil Code (the Unruh Civil Rights Act), and Section 54 of the California

11 Civil Code (the California Disables Persons Act). They also sought the statutory minimum

12 damages for each offense, which includes $4,000 for each violation. Plaintiffs alleged that a

13 violation occurred each time a patron visited a store and encountered an access barrier there.

14

Plaintiffs sought to certify a single class including patrons of all Burger King restaurants

15 in California leased by Burger King to franchisees. There were approximately 92 such stores.

16 A September 2009 order held that whether or not any particular store was ever out of ADA

17 compliance would have to be determined store by store and feature by feature, and therefore

18 certified a separate class for each of the ten individual restaurants where a named plaintiff

19 encountered alleged access barriers (Dkt. No. 226). Class members were required to opt-in to

20 be eligible to claim individualized statutory damages pursuant to the Unruh Act and the CDPA.

21 The deadline for persons to opt in as class members was March 1, 2010. Three hundred eighty-

22 two people opted in by the deadline. An additional 27 individuals contacted class counsel and

23 may or may not be damages claimants. The parties have agreed that these individuals shall be

24 sent damages notices and claims forms and shall be allowed to make valid claims for monetary

25 damages if they so choose.

26

Summary judgment motions relating to the first class scheduled for trial — the class of

27 patrons of the Burger King restaurant located at 6021 Central Avenue, in El Cerrito — were

28 pending when the parties filed their joint motion for preliminary approval of class settlement.

2

United States District Court For the Northern District of California

1 Preliminary approval was granted on March 18, 2010. A deadline for class members to opt out

2 of the settlement for injunctive relief was June 7, 2010.

3

Additionally, class members could opt in to receive monetary damages by March 1,

4 2010. Each damages claimant had to complete a claim form documenting his or her eligible

5 visits to one of the ten restaurants where he or she encountered a barrier to access. Monetary

6 awards to each damages claimant will be distributed pro rata based on the total number of visits

7 by each damages claimant with a maximum number of six visits for which each claimant may

8 obtain recovery. Class members who did not opt in to receive damages claims did not release

9 their rights to pursue such claims separately even if they did not opt out of the injunctive relief

10 settlement.

11

ANALYSIS

12

Three issues are addressed in this order. First, this order will explain why the pending

13 settlement is fair, reasonable and adequate under FRCP 23(e) and Hanlon v. Chrysler Corp.,

14 150 F.3d 1011, 1026 (9th Cir. 1998) (setting forth the factors to be considered when evaluating

15 class action settlements). Second, this order will explain why the lead plaintiffs should be fairly

16 compensated for their time and effort in this litigation. Third, this order will provide the basis

17 for why the awarded attorney’s fees are reasonable.

18 1.

THE SETTLEMENT AGREEMENT IS FAIR, REASONABLE, AND ADEQUATE.

19

Having scrutinized the terms of the settlement agreement, proposed plan of distribution,

20 and adequacy of notice to class members, and having considered the motion for final approval

21 of the settlement agreement, the declarations submitted therewith, oral argument by counsel,

22 and all other documents of record in this matter, this order holds that the settlement agreement

23 is in the best interests of the class and is fair, reasonable and adequate under the factors set forth

24 in Hanlon.

25

No class members have opted out of the injunctive relief settlement. No objections to

26 the settlement have been filed. The settlement agreement provides for injunctive relief,

27 including the elimination of alleged accessibility barriers, the use of mandatory checklists with

28 specific accessibility items for remodeling, alterations, repairs and maintenance, and the

3

United States District Court For the Northern District of California

1 monitoring of compliance at the ten restaurants. The agreement requires three types of periodic

2 access surveys including (1) daily surveys conducted by tenant franchisee managers to ensure

3 frequently-changing elements remain in compliance such as that movable condiment dispensers

4 are kept within reach of persons in wheelchairs and that the path of travel to restrooms is not

5 obstructed, (2) mid-level surveys conducted every three years including items such as parking

6 lot restriping and restroom fixture, and (3) successor remodel surveys conducted whenever a

7 restaurant is remodeled, which occurs approximately once every 20 years. The settlement

8 agreement provides for the Court to retain jurisdiction to enforce the terms of settlement for

9 four years after the settlement agreement has been finalized: July 12, 2014.

10

The settlement also provides for a cash payment of $5,000,000 to the named plaintiffs

11 and the 382 class members who opted in stating that they wished to pursue damages claims.

12 Monetary awards to each claimant will be distributed pro rata based on the total number of

13 visits by each damages claimant to one of the ten restaurants where he or she encountered a

14 barrier, with a maximum number of six visits for which each damages claimant can obtain

15 recovery. Each of these damage claimants must complete a claim form documenting his or her

16 eligible visits. Payment for the costs of notifying the class up to $15,000 and administering the

17 settlement up to $50,000 shall be paid by class counsel, while costs above those amounts shall

18 come from the settlement fund. Nevertheless, the parties estimate that even after such funds are

19 deducted, each of the 385 claimants will receive over $4000 per eligible visit up to six visits.

20 The average recovery is approximately $13,000 for each claimant (Fox Decl. ¶ 2).

21

Plaintiffs estimated damages as high as $20,000,000 with respect to the ten certification

22 restaurants (Fox Decl. ¶ 8). Nevertheless, this assumed that plaintiffs could recover $4,000 per

23 visit to each restaurant by each class member without limitation to the number of visits, which

24 would have been disputed at trial. The parties say that on a per-class-member and per-facility

25 basis, this settlement is the highest monetary settlement ever in a disability access case

26 involving public accommodation (Br. at 1). It is at the least an adequate recovery in light of the

27 risks of litigation.

28

Accordingly, final approval of the settlement and plan of allocation shall be GRANTED.

4

United States District Court For the Northern District of California

1 2.

ATTORNEY’S FEES AND INCENTIVE FEES.

2

Attorney’s fees will not come from the $5,000,000 in the damages fund, but shall be

3 paid separately by defendant. The parties agreed that defendant Burger King Corporation will

4 not oppose a request of attorney’s fees and costs up to $2,500,000. As noted above, class

5 counsel moved for an award of attorney’s fees in the amount of $2,274,187.86, and claim costs

6 and expenses in the amount of $256,947.93. They seek a total of $2,500,000 for fees and

7 expenses. Class counsel claim a lodestar in this matter of $1,188,519.10. They seek a

8 multiplier of just under two.

9

The class notices informed class members that they had the right to object to the

10 structure and amount of attorney’s fees. Class counsel’s motion for fees was also posted to the

11 website established by class counsel since May 17. No objections were received.

12

Class counsel therefore seeks fees and costs of approximately 33% of the total amount

13 to be paid by defendant. This is more than the 25% benchmark that the Ninth Circuit has

14 established for percentage-of-the-fund cases. However, the monetary damages in this

15 settlement — although quite substantial — are only part of the relief obtained for class

16 members. As noted above, the settlement also provides for injunctive relief at the ten

17 restaurants in question to eliminate accessibility barriers. Additionally, the monetary recovery

18 of approximately $13,000 on average to damages claimants is very good.

19

Considering the foregoing, the request for attorney’s fees is reasonable and well-

20 justified. Accordingly, the request for attorney’s fees and costs of $2,500,000 is GRANTED.

21 .3. COMPENSATION FOR LEAD PLAINTIFFS.

22

Lead plaintiffs Miguel Castaneda, Katherine Corbett and Joseph Wellner seek

23 compensation for the hours they spent representing and working on behalf of the class. They do

24 not seek incentive fees or payments in a fixed dollar amount.

25

Mr. Castaneda claims out-of-pocket travel expenses of $450, plus $350 for caregiver

26 fees so that he could attend court hearings, the pre-disposition meeting, and a deposition. He

27 estimates that he spent about 111 hours working on this case, including reviewing and

28 commenting on litigation documents, responding to discovery requests, working with class

5

United States District Court For the Northern District of California

1 counsel to prepare this case for trial, preparing for and attending his deposition, and meeting

2 with class counsel regarding the settlement agreement. These activities required him to miss

3 three-and-a-half days of work (Castaneda Decl. at 1–6).

4

Ms. Corbett claims out-of-pocket expenses of $295. She estimates that she spent about

5 100 hours representing the class (Corbett Decl. at 4–5).

6

Mr. Wellner estimates he spent about 30 hours performing work as a named plaintiff.

7 He does not claim additional out-of-pocket expenses (Wellner Decl. at 3–4).

8

Generally, additional benefits to named plaintiffs beyond those received by the rest of

9 the class are disfavored. If a settlement is not good enough for named plaintiffs, it is usually not

10 good enough for the class. Nevertheless, named plaintiffs should be compensated for their out-

11 of-pocket expenses. Accordingly, Mr. Castaneda is awarded $1800 and Ms. Corbett is awarded

12 $1295, in addition to the class settlement. Mr. Wellner shall be awarded $1000 in addition to

13 the class settlement.

14

CONCLUSION

15

Accordingly, it is hereby ordered as follows:

16

1. The Court hereby finds that the settlement is fair, reasonable, and adequate as to

17 the class, plaintiffs and defendants, that it is the product of good faith, arms-length negotiations

18 between the parties, and that the settlement is consistent with public policy and fully complies

19 with all applicable provisions of law. The breadth of the release to be imposed on the absent

20 class members is sufficiently narrow. Absent class members who have not opted in to pursue

21 damages claims release only non-monetary claims relating to the accessibility of the ten

22 restaurants based on conduct preceding final approval of the settlement agreement. They do not

23 release any claims for monetary damages. The final settlement is therefore approved.

24

2. The notice as mailed to all class members fairly and adequately described the

25 proposed settlement, the manner in which class members could object to or participate in the

26 settlement, and the manner in which class members could opt out of the class, was the best

27 notice practicable under the circumstances, was valid, due and sufficient notice to all class

28 members, and complied fully with the Federal Rules of Civil Procedure, due process, and all

6

United States District Court For the Northern District of California

1 other applicable laws. A full and fair opportunity was afforded to class members to participate

2 in the proceedings to determine whether the proposed settlement should be given final approval.

3 Accordingly, this order holds that all class members who did not exclude themselves from the

4 settlement by filing a timely request for exclusion are bound by this settlement order and

5 judgment.

6

3. The Court retains continuing jurisdiction over the class action, named plaintiffs,

7 the class, and defendant for four years (until July 12, 2014) from the date of entry of this order

8 in order to supervise the implementation, enforcement, construction and interpretation of the

9 revised settlement agreement and this order.

10

4. The Court hereby awards Plaintiff's Counsel attorneys’ fees and costs of $2.5

11 million, to be paid separately by defendants, one-half now and the other half when the fund is

12 completely wound up.

13

5. Damages claimants who opted in to receive monetary damages prior to the

14 deadline of March 10, 2010, have until August 13, 2010, to complete, sign, and submit their

15 claim forms for shares of the damages fund.

16

6. Named plaintiff Castaneda is awarded $1800, Named Plaintiff Wellner is

17 awarded $1000, and Named Plaintiff Corbett is awarded $1295 for compensation for their out-

18 of-pocket expenses in this action.

19

20

IT IS SO ORDERED.

21

22 Dated: July 12, 2010. 23

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

24

25

26

27

28

7

 
 Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 1 of 32
CLOSED,E−Filing,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:08−cv−04262−WHA

Castaneda v. Burger King Corporation et al Assigned to: Hon. William Alsup Referred to: Magistrate Judge James Larson Case in other court: Ninth Circuit, 09−17210
Ninth Circuit, 10−15310 Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 09/10/2008 Date Terminated: 07/12/2010 Jury Demand: Plaintiff Nature of Suit: 446 American with Disabilities − Other Jurisdiction: Federal Question

Miguel Castaneda on behalf of himself and others similarly situated

represented by Amy F. Robertson Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: arobertson@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Lah Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: alah@lewisfeinberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Antonio Michael Lawson Lawson Law Offices 7700 Edgewater Drive Suite 255 Oakland, CA 94621 510−419−0940 Fax: 510−419−0948 Email: tlawson@lawsonlawoffices.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: blee@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Campins Campins Benham−Baker, LLP 935 Moraga Road, Suite 200 Lafayette, CA 94549 415−373−5333 Fax: 415−373−5334 Email: julia@campinsbenhambaker.com LEAD ATTORNEY

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 2 of 32

ATTORNEY TO BE NOTICED

Linda D. Kilb Disability Rights Education and Defense Fund, Inc. 3075 Adeline Street Suite 210 Berkeley, CA 94703 510−644−2555 Fax: 510−841−8645 Email: lkilb@dredf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mari Mayeda Attorney at Law PO Box 5138 Berkeley, CA 94705 510−917−1622 Fax: 510−841−8115 Email: marimayeda@earthlink.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Fox Civil Rights Education & Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org ATTORNEY TO BE NOTICED

Plaintiff
Katherine Corbett on behalf of herself and all others similarly situated

represented by Amy F. Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Lah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Antonio Michael Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Campins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda D. Kilb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 3 of 32

Plaintiff
Joseph Wellner on behalf of himself and all others similarly situated

Mari Mayeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy F. Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Lah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antonio Michael Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Campins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda D. Kilb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mari Mayeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy P. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Burger King Corporation

represented by Adam Friedenberg Glynn & Finley, LLP One Walnut Creek Center 100 Pringle Avenue Suite 500 Walnut Creek, CA 94596 925−210−2800 Fax: 925−945−1975

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 4 of 32

Email: afriedenberg@glynnfinley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clement L. Glynn Glynn & Finley One Walnut Creek Center 100 Pringle Avenue, Suite 500 Walnut Creek, CA 94596 925−210−2800 Fax: 925−945−1975 Email: cglynn@glynnfinley.com ATTORNEY TO BE NOTICED

Jonathan Evan Perlman Genovese Joblove & Battista PA Miami Tower 100 S.E. 2nd Street 44th Floor Miami, FL 33131 305−349−2300 Fax: 305−349−2310 Email: jperlman@gjb−law.com PRO HAC VICE ATTORNEY TO BE NOTICED

Maureen Anne Rodgers Littler Mendelson 333 Bush Street 34th Floor San Francisco, CA 94104 415−439−6254 Fax: 415−707−2077 Email: mrodgers@littler.com ATTORNEY TO BE NOTICED

Michael D Joblove Genovese Joblove & Battista PA Miami Tower 100 S.E. 2nd Street 44th Floor Miami, FL 33131 305−349−2300 Fax: 305−349−2310 Email: mjoblove@gjb−law.com PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
Burger King Holdings, Inc. TERMINATED: 11/24/2008

represented by Adam Friedenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Evan Perlman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael D Joblove (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 5 of 32

Miscellaneous
Strategic Restaurants Acquisition Company II, LLC

represented by Martin H. Orlick Jeffer Mangels Butler & Mitchell LLP Two Embarcadero Center, Fifth Floor San Francisco, CA 94111−3824 415−398−8080 Fax: 415−398−5584 Email: mho@jmbm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Miscellaneous
Kurt A Franklin Specially Appearing Plaintiffs from Newport v. BKC (Case No.: 10−4511 (EMC))

represented by Kurt A. Franklin Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−777−3200 Fax: 415−541−9366 Email: kfranklin@hansonbridgett.com ATTORNEY TO BE NOTICED

Date Filed 09/10/2008
09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/15/2008 09/18/2008 09/22/2008 09/24/2008 10/23/2008
10/28/2008

# Docket Text
1 CLASS ACTION COMPLAINT and DEMAND FOR JURY TRIAL against Burger King Corporation, Burger King Holdings, Inc. ( Filing fee $ 350, receipt number 34611023273.). Filed byMiguel Castaneda. (sis, COURT STAFF) (Filed on 9/10/2008) (Entered: 09/12/2008)
Summons Issued as to Burger King Corporation, Burger King Holdings, Inc.. (sis, COURT STAFF) (Filed on 9/10/2008) (Entered: 09/12/2008)
2 Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act. (sis, COURT STAFF) (Filed on 9/10/2008) (Entered: 09/12/2008)
3 SUPPLEMENTAL ORDER TO ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE re 2 SCHEDULING ORDER−ADA (Attachments: # 1 Standing Order)(sis, COURT STAFF) (Filed on 9/10/2008) (Entered: 09/12/2008)
CASE DESIGNATED for Electronic Filing. (sis, COURT STAFF) (Filed on 9/10/2008) (Entered: 09/12/2008)
4 CLERK'S NOTICE Scheduling Hearing. Case Management Conference set for 2/12/2009 11:00 AM. Case Management Statement due by 2/5/2009. (dt, COURT STAFF) (Filed on 9/15/2008) (Entered: 09/15/2008)
5 NOTICE of Appearance by Timothy P. Fox (Fox, Timothy) (Filed on 9/18/2008) (Entered: 09/18/2008)
6 MOTION for leave to appear in Pro Hac Vice, Amy F. Robertson, Esq., ( Filing fee $ 210, receipt number 34611023619.) filed by Miguel Castaneda. (Attachments: # 1 Proposed Order)(sis, COURT STAFF) (Filed on 9/22/2008) (Entered: 09/23/2008)
7 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE (whalc2, COURT STAFF) (Filed on 9/24/2008) (Entered: 09/24/2008)
8 MOTION to Compel Compliance with General Order 56 and Request for Expedited Consideration filed by Miguel Castaneda. Motion Hearing set for 12/4/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order, # 2 Declaration of Amy F. Robertson)(Robertson, Amy) (Filed on 10/23/2008) (Entered: 10/23/2008)
9 ORDER SETTING HEARING ON PLAINTIFF'S DISCOVERY DISPUTE [re 8 MOTION to Compel Compliance with General Order 56 and Request for Expedited Consideration filed by Miguel Castaneda]. Signed by Judge William Alsup on

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 6 of 32

10/29/2008 10/29/2008 10/30/2008
10/30/2008
10/31/2008 10/31/2008 11/06/2008
11/06/2008 11/07/2008 11/10/2008
11/12/2008 11/21/2008
11/21/2008 11/21/2008 11/21/2008 11/21/2008 11/24/2008

10/28/2008. (whasec, COURT STAFF) (Filed on 10/28/2008) (Entered: 10/28/2008)
10 AMENDED ORDER SETTING HEARING ON PLAINTIFF'S DISCOVERY DISPUTE. Signed by Judge William Alsup on 10/29/2008. (whasec, COURT STAFF) (Filed on 10/29/2008) (Entered: 10/29/2008)
Set/Reset Hearings: Discovery Hearing set for 11/10/2008 03:00 PM. (sis, COURT STAFF) (Filed on 10/29/2008) (Entered: 10/30/2008)
11 MOTION for leave to appear in Pro Hac Vice, Jonathan E. Perlman, Esq., ( Filing fee $ 210, receipt number 34611024964.) filed by Burger King Corporation, Burger King Holdings, Inc.. (Attachments: # 1 Proposed Order)(sis, COURT STAFF) (Filed on 10/30/2008) (Entered: 10/30/2008)
12 MOTION for leave to appear in Pro Hac Vice, Michael D. Joblove, Esq., ( Filing fee $ 210, receipt number 34611024963.) filed by Burger King Corporation, Burger King Holdings, Inc.. (Attachments: # 1 Proposed Order)(sis, COURT STAFF) (Filed on 10/30/2008) (Entered: 10/30/2008)
13 ORDER by Judge William Alsup granting 12 Motion for Pro Hac Vice of Michael D. Joblove. (dt, COURT STAFF) (Filed on 10/31/2008) (Entered: 10/31/2008)
14 ORDER by Judge William Alsup granting 11 Motion for Pro Hac Vice of Jonathan E. Perlman. (dt, COURT STAFF) (Filed on 10/31/2008) (Entered: 10/31/2008)
15 Memorandum in Opposition re 8 MOTION to Compel Compliance with General Order 56 and Request for Expedited Consideration filed byBurger King Corporation, Burger King Holdings, Inc.. (Friedenberg, Adam) (Filed on 11/6/2008) (Entered: 11/06/2008)
16 Declaration of Michael D. Joblove in Support of 15 Memorandum in Opposition filed byBurger King Corporation, Burger King Holdings, Inc.. (Related document(s) 15 ) (Friedenberg, Adam) (Filed on 11/6/2008) (Entered: 11/06/2008)
17 Reply to Opposition re 8 MOTION to Compel Compliance with General Order 56 and Request for Expedited Consideration filed byMiguel Castaneda. (Robertson, Amy) (Filed on 11/7/2008) (Entered: 11/07/2008)
19 Minute Entry: Motion Hearing held on 11/10/2008 before William Alsup (Date Filed: 11/10/2008) re 8 MOTION to Compel Compliance with General Order 56 and Request for Expedited Consideration filed by Miguel Castaneda. (Court Reporter Margo Gurule.) (dt, COURT STAFF) (Date Filed: 11/10/2008) (Entered: 11/14/2008)
18 ORDER RE DISCOVERY (whalc2, COURT STAFF) (Filed on 11/12/2008) (Entered: 11/12/2008)
20 NOTICE of Voluntary Dismissal of Defendant Burger King Holdings Inc Without Prejudice by Miguel Castaneda (Attachments: # 1 Proposed Order Dismissing Without Prejudice Defendant Burger King Holdings Inc)(Campins, Julia) (Filed on 11/21/2008) (Entered: 11/21/2008)
21 MOTION for Leave to File Excess Pages for Motion to Dismiss Plaintiff's Complaint filed by Burger King Corporation. (Glynn, Clement) (Filed on 11/21/2008) (Entered: 11/21/2008)
22 STIPULATION re 21 MOTION for Leave to File Excess Pages for Motion to Dismiss Plaintiff's Complaint by Burger King Corporation. (Glynn, Clement) (Filed on 11/21/2008) (Entered: 11/21/2008)
23 Proposed Order re 21 MOTION for Leave to File Excess Pages for Motion to Dismiss Plaintiff's Complaint by Burger King Corporation. (Glynn, Clement) (Filed on 11/21/2008) (Entered: 11/21/2008)
24 STIPULATION and [Proposed] Order to Extend Time to Respond to Plaintiff's Complaint and Setting Briefing Schedule for Defendants' Motion to Dismiss by Burger King Corporation. (Glynn, Clement) (Filed on 11/21/2008) (Entered: 11/21/2008)
25 STIPULATION AND ORDER TO EXTEND TIME TO RESPOND TO PLAINTIFF'S COMPLAINT AND SETTING BRIEFING SCHEDULE FOR

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 7 of 32

11/24/2008 11/24/2008 11/26/2008 11/26/2008
11/26/2008
12/09/2008
12/12/2008 12/17/2008 12/18/2008 12/19/2008 12/19/2008

MOTION TO DISMISS (whalc2, COURT STAFF) (Filed on 11/24/2008) (Entered: 11/24/2008)
26 ORDER DISMISSING WITHOUT PREJUDICE DEFENDANT BURGER KING HOLDINGS, INC. (whalc2, COURT STAFF) (Filed on 11/24/2008) (Entered: 11/24/2008)
27 ORDER GRANTING 21 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO EXCEED PAGE LIMITS FOR MOTION TO DISMISS (whalc2, COURT STAFF) (Filed on 11/24/2008) Modified on 11/25/2008 (sis, COURT STAFF). (Entered: 11/24/2008)
28 MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) filed by Burger King Corporation. Motion Hearing set for 1/29/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Friedenberg, Adam) (Filed on 11/26/2008) (Entered: 11/26/2008)
29 Brief re 28 MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) filed byBurger King Corporation. (Attachments: # 1 Exhibit A−D)(Related document(s) 28 ) (Friedenberg, Adam) (Filed on 11/26/2008) (Entered: 11/26/2008)
30 Declaration of Thomas G. Archer in Support of 28 MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) filed byBurger King Corporation. (Attachments: # 1 Exhibit A−C, # 2 Exhibit D−F)(Related document(s) 28 ) (Friedenberg, Adam) (Filed on 11/26/2008) (Entered: 11/26/2008)
31 Transcript of Proceedings held on 11−10−08, before Judge WILLIAM ALSUP. Court Reporter/Transcriber Margaret "Margo" Gurule, Telephone number 415−504−4204. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/6/2009. (mng, COURT STAFF) (Filed on 12/9/2008) (Entered: 12/09/2008)
32 Certificate of Interested Entities by Miguel Castaneda (Campins, Julia) (Filed on 12/12/2008) (Entered: 12/12/2008)
33 Consent MOTION for Extension of Time to File Opposition and Reply Briefs and to Reset Oral Argument filed by Miguel Castaneda. (Attachments: # 1 Affidavit Declaration of Amy F. Robertson, # 2 Proposed Order Proposed Order)(Robertson, Amy) (Filed on 12/17/2008) (Entered: 12/17/2008)
34 Certificate of Interested Entities by Burger King Corporation (Friedenberg, Adam) (Filed on 12/18/2008) (Entered: 12/18/2008)
35 ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION TO EXTEND DEADLINES FOR OPPOSITION AND REPLY BRIEFS AND TO RESET ORAL ARGUMENT by Judge Alsup granting 33 Motion for Extension of Time to File (whalc2, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/19/2008)
Set/Reset Deadlines as to 28 MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 8 of 32

12/29/2008 12/30/2008 12/30/2008 12/30/2008 12/31/2008 12/31/2008 12/31/2008 01/08/2009
01/08/2009 01/08/2009
01/08/2009 01/08/2009 01/08/2009

12(b)(1), 12(b)(6), 12(f), 12(e)) MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)). Responses due by 1/8/2009. Replies due by 1/29/2009. Motion Hearing set for 2/12/2009 08:00 AM. (sis, COURT STAFF) (Filed on 12/19/2008) (Entered: 12/22/2008)
36 STIPULATION Stipulated Protective Order by Burger King Corporation. (Glynn, Clement) (Filed on 12/29/2008) (Entered: 12/29/2008)
37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint filed by Burger King Corporation. Motion Hearing set for 2/12/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Glynn, Clement) (Filed on 12/30/2008) (Entered: 12/30/2008)
38 Brief re 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint filed byBurger King Corporation. (Related document(s) 37 ) (Glynn, Clement) (Filed on 12/30/2008) (Entered: 12/30/2008)
39 Declaration of Thomas G. Archer in Support of 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint filed byBurger King Corporation. (Related document(s) 37 ) (Glynn, Clement) (Filed on 12/30/2008) (Entered: 12/30/2008)
40 ORDER RE DEFENDANT'S MOTION FOR A STAY OF CERTAIN DISCOVERY [re 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint filed by Burger King Corporation]. Signed by Judge William Alsup on 12/31/2008. (whasec, COURT STAFF) (Filed on 12/31/2008) (Entered: 12/31/2008)
41 ORDER APPROVING STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS (whalc2, COURT STAFF) (Filed on 12/31/2008) (Entered: 12/31/2008)
Set/Reset Deadlines as to 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint. Responses due by 1/8/2009. Motion Hearing set for 1/9/2009 01:30 PM. (sis, COURT STAFF) (Filed on 12/31/2008) (Entered: 01/02/2009)
42 Memorandum in Opposition re 28 MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) filed byMiguel Castaneda. (Robertson, Amy) (Filed on 1/8/2009) (Entered: 01/08/2009)
43 Declaration of Miguel Castaneda in Support of 42 Memorandum in Opposition,, to Defendant's Motion to Dismiss filed byMiguel Castaneda. (Related document(s) 42 ) (Robertson, Amy) (Filed on 1/8/2009) (Entered: 01/08/2009)
44 Declaration of Amy Farr Robertson in Support of 42 Memorandum in Opposition,, to Defendant's Motion to Dismiss filed byMiguel Castaneda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Related document(s) 42 ) (Robertson, Amy) (Filed on 1/8/2009) (Entered: 01/08/2009)
45 Memorandum in Opposition re 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint filed byMiguel Castaneda. (Campins, Julia) (Filed on 1/8/2009) (Entered: 01/08/2009)
46 Declaration of Julia Campins in Support of 45 Memorandum in Opposition to Defendant's Motion for Stay filed byMiguel Castaneda. (Attachments: # 1 Exhibit A)(Related document(s) 45 ) (Campins, Julia) (Filed on 1/8/2009) (Entered: 01/08/2009)
47 ORDER RE DEFENDANT'S MOTION FOR STAY OF CERTAIN DISCOVERY [re 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 9 of 32

01/08/2009 01/12/2009
01/22/2009 01/26/2009 01/26/2009 01/26/2009 01/26/2009 01/26/2009 01/26/2009 01/27/2009 01/27/2009
01/29/2009 01/29/2009

Complaint filed by Burger King Corporation]. Signed by Judge William Alsup on 1/8/2009. (whasec, COURT STAFF) (Filed on 1/8/2009) (Entered: 01/08/2009)
Set/Reset Deadlines as to 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint. Responses due by 1/22/2009. Replies due by 1/29/2009. Motion Hearing set for 2/12/2009 08:00 AM. (sis, COURT STAFF) (Filed on 1/8/2009) (Entered: 01/09/2009)
48 Transcript of Proceedings held on 11/10/08, before Judge WILLIAM H. ALSUP. Court Reporter/Transcriber Margaret "Margo" Gurule, Telephone number 415−504−4204. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/9/2009. (mng, COURT STAFF) (Filed on 1/12/2009) (Entered: 01/12/2009)
49 Declaration of Julia Campins in Support of 45 Memorandum in Opposition (Supplemental Declaration) filed byMiguel Castaneda. (Attachments: # 1 Exhibit B)(Related document(s) 45 ) (Campins, Julia) (Filed on 1/22/2009) (Entered: 01/22/2009)
50 MOTION to Compel Removal of Confidential Designation filed by Miguel Castaneda. Motion Hearing set for 2/12/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Robertson, Amy) (Filed on 1/26/2009) (Entered: 01/26/2009)
51 Proposed Order re 50 MOTION to Compel Removal of Confidential Designation by Miguel Castaneda. (Robertson, Amy) (Filed on 1/26/2009) (Entered: 01/26/2009)
52 Declaration of Amy F. Robertson in Support of 50 MOTION to Compel Removal of Confidential Designation filed byMiguel Castaneda. (Related document(s) 50 ) (Robertson, Amy) (Filed on 1/26/2009) (Entered: 01/26/2009)
53 Declaration of Shahreen Salam in Support of 50 MOTION to Compel Removal of Confidential Designation filed byMiguel Castaneda. (Related document(s) 50 ) (Robertson, Amy) (Filed on 1/26/2009) (Entered: 01/26/2009)
54 Declaration of Julia Campins in Support of 50 MOTION to Compel Removal of Confidential Designation filed byMiguel Castaneda. (Related document(s) 50 ) (Campins, Julia) (Filed on 1/26/2009) (Entered: 01/26/2009)
55 STIPULATION re 50 MOTION to Compel Removal of Confidential Designation by Miguel Castaneda. (Campins, Julia) (Filed on 1/26/2009) (Entered: 01/26/2009)
56 STIPULATION AND ORDER SHORTENING TIME RE PLAINTIFF'S MOTION TO COMPEL REMOVAL OF CONFIDENTIAL DESIGNATION. Signed by Judge William Alsup on 1/27/2009. (whasec, COURT STAFF) (Filed on 1/27/2009) (Entered: 01/27/2009)
Set/Reset Deadlines as to 50 MOTION to Compel Removal of Confidential Designation, 28 MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)) MOTION to Dismiss For Lack of Subject Matter Jurisdiction And Failure To State Any Claims Upon Which Relief Can Be Granted, And Alternatively, Motion To Strike And For A More Definite Statement (FRCP 12(b)(1), 12(b)(6), 12(f), 12(e)). Responses due by 2/6/2009. Replies due by 2/10/2009. Motion Hearing set for 2/12/2009 08:00 AM. (sis, COURT STAFF) (Filed on 1/27/2009) (Entered: 01/28/2009)
57 STIPULATION and [Proposed] Order to Extend Time for Defendant to File Its Reply in Support of its Motion to Stay Certain Discovery by Burger King Corporation. (Rodgers, Maureen) (Filed on 1/29/2009) (Entered: 01/29/2009)
58 Reply Memorandum 28 in Support of Motion to Dismiss filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 1/29/2009) Modified on 1/30/2009 (sis, COURT STAFF). (Entered: 01/29/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 10 of 32

01/29/2009 01/30/2009 02/02/2009 02/05/2009 02/06/2009 02/06/2009 02/06/2009 02/10/2009 02/12/2009
02/12/2009
02/18/2009
03/06/2009 03/09/2009 03/13/2009 03/26/2009 04/14/2009

59 Declaration of Catherine A. Van Horn 28 in Support of Defendant's Motion to Dismiss filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 1/29/2009) Modified on 1/30/2009 (sis, COURT STAFF). (Entered: 01/29/2009)
60 STIPULATION AND ORDER TO EXTEND TIME FOR DEFENDANT TO FILE ITS REPLY IN SUPPORT OF ITS MOTION TO STAY CERTAIN DISCOVERY (whalc2, COURT STAFF) (Filed on 1/30/2009) (Entered: 01/30/2009)
61 Reply to Opposition re 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint filed byBurger King Corporation. (Friedenberg, Adam) (Filed on 2/2/2009) (Entered: 02/02/2009)
62 JOINT CASE MANAGEMENT STATEMENT filed by Miguel Castaneda. (Robertson, Amy) (Filed on 2/5/2009) (Entered: 02/05/2009)
63 NOTICE of Change of Address by Timothy P. Fox (Fox, Timothy) (Filed on 2/6/2009) (Entered: 02/06/2009)
64 Memorandum in Opposition 50 to Plaintiff's Motion to Compel Removal of Confidentiality Designation filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 2/6/2009) Modified on 2/9/2009 (sis, COURT STAFF). (Entered: 02/06/2009)
65 DECLARATION of Thomas G. Archer 50 in Opposition to Plaintiff's Motion to Compel Removal of Confidentiality Designation filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 2/6/2009) Modified on 2/9/2009 (sis, COURT STAFF). (Entered: 02/06/2009)
66 Reply Memorandum re 50 MOTION to Compel Removal of Confidential Designation filed byMiguel Castaneda. (Fox, Timothy) (Filed on 2/10/2009) (Entered: 02/10/2009)
67 Minute Entry: Initial Case Management Conference held on 2/12/2009 before William Alsup (Date Filed: 2/12/2009), Motion Hearing held on 2/12/2009 before William Alsup (Date Filed: 2/12/2009) re 50 MOTION to Compel filed by Miguel Castaneda, 37 MOTION to Stay Certain Discovery Pending Ruling on Motion to Dismiss Complaint filed by Burger King Corporation, 28 MOTION to Dismiss, And Alternatively, Motion To Strike And For A More Definite Statement filed by Burger King Corporation. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 2/12/2009) (Entered: 02/12/2009)
68 CASE MANAGEMENT SCHEDULING ORDER: Discovery due by 12/31/2009. Class certification motion must be filed by 7/29/2009. Jury Trial set for 4/19/2010 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Motions due by 2/11/2010. Pretrial Conference set for 4/5/2010 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 2/12/2009. (whasec, COURT STAFF) (Filed on 2/12/2009) (Entered: 02/12/2009)
69 ORDER RE DEFENDANTS' MOTION TO DISMISS; DEFENDANTS' MOTION FOR A STAY OF CERTAIN DISCOVERY; PLAINTIFF'S MOTION TO COMPEL REMOVAL OF CONFIDENTIAL DESIGNATION by Judge Alsup denying 28 Motion to Dismiss; denying 37 Motion to Stay; granting 50 Motion to Compel (whalc2, COURT STAFF) (Filed on 2/18/2009) (Entered: 02/18/2009)
70 STIPULATION AND [PROPOSED] ORDER ALLOWING THE FILING OF A FIRST AMENDED COMPLAINT by Miguel Castaneda. (Attachments: # 1 Exhibit A: First Amended Complaint)(Campins, Julia) (Filed on 3/6/2009) (Entered: 03/06/2009)
71 STIPULATION AND ORDER ALLOWING THE FILING OF A FIRST AMENDED COMPLAINT (whalc2, COURT STAFF) (Filed on 3/9/2009) (Entered: 03/09/2009)
72 AMENDED COMPLAINT against Burger King Corporation. Filed byMiguel Castaneda. (Campins, Julia) (Filed on 3/13/2009) (Entered: 03/13/2009)
73 ANSWER to Amended Complaint and Affirmative Defenses byBurger King Corporation. (Perlman, Jonathan) (Filed on 3/26/2009) (Entered: 03/26/2009)
74 Letter from Amy F. Robertson re: Discovery. (Robertson, Amy) (Filed on 4/14/2009) (Entered: 04/14/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 11 of 32

04/15/2009 04/15/2009
04/17/2009
05/01/2009 05/04/2009 05/04/2009 05/08/2009 05/29/2009 06/01/2009
06/04/2009 06/12/2009
06/12/2009
06/12/2009 06/12/2009 06/12/2009 06/12/2009
06/12/2009

75 ERRATA re 74 Letter re: Discovery by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit 2)(Robertson, Amy) (Filed on 4/15/2009) (Entered: 04/15/2009)
76 ORDER SETTING HEARING ON PLAINTIFF'S DISCOVERY DISPUTE [re 74 Letter filed by Joseph Wellner, Miguel Castaneda, Katherine Corbett]. Signed by Judge William Alsup on 4/15/2009. (whasec, COURT STAFF) (Filed on 4/15/2009) (Entered: 04/15/2009)
77 REQUEST to Withdraw 74 Letter, 76 Order, 75 Errata and Vacate Hearing Set for April 21, 2009 filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Robertson, Amy) (Filed on 4/17/2009) Modified on 4/17/2009 (sis, COURT STAFF). (Entered: 04/17/2009)
78 Letter from Adam Friedenberg re Discovery. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Friedenberg, Adam) (Filed on 5/1/2009) (Entered: 05/01/2009)
79 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge William Alsup on 5/4/2009. (whasec, COURT STAFF) (Filed on 5/4/2009) (Entered: 05/04/2009)
CASE REFERRED to Magistrate Judge Magistrate Judge James Larson for Discovery (wh, COURT STAFF) (Filed on 5/4/2009) (Entered: 05/04/2009)
80 ORDER re 78 Letter filed by Burger King Corporation. Signed by Judge James Larson on 5/8/09. (jlsec, COURT STAFF) (Filed on 5/8/2009) (Entered: 05/08/2009)
81 NOTICE of Appearance by Andrew Lah (Lah, Andrew) (Filed on 5/29/2009) (Entered: 05/29/2009)
82 Statement Joint Statement of Plaintiffs and Defendant Regarding Communications with and Contact Information for Putative Class Members by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Campins, Julia) (Filed on 6/1/2009) (Entered: 06/01/2009)
83 NOTICE AND ORDER. Signed by Judge James Larson on 6/4/09. (jlsec, COURT STAFF) (Filed on 6/4/2009) (Entered: 06/04/2009)
84 Brief re 82 Statement Supplemental Memorandum Regarding Defendant's Communications with Putative Class Members filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 82 ) (Lee, Bill) (Filed on 6/12/2009) (Entered: 06/12/2009)
85 Declaration of Julia Campins in Support of 84 Brief filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 84 ) (Campins, Julia) (Filed on 6/12/2009) (Entered: 06/12/2009)
86 Declaration of Christopher Barnes in Support of 84 Brief filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit A)(Related document(s) 84 ) (Lee, Bill) (Filed on 6/12/2009) (Entered: 06/12/2009)
87 Declaration of Billie Pierce in Support of 84 Brief filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 84 ) (Lee, Bill) (Filed on 6/12/2009) (Entered: 06/12/2009)
88 NOTICE by Miguel Castaneda, Katherine Corbett, Joseph Wellner re 86 Declaration in Support Notice of Manual Filing of CD (Lee, Bill) (Filed on 6/12/2009) (Entered: 06/12/2009)
89 *** FILED IN ERROR. PLEASE SEE DOCKET # 92 . *** Brief re 82 Statement Regarding Communications With and Contact Information For Non−Party Witnesses filed byBurger King Corporation. (Related document(s) 82 ) (Friedenberg, Adam) (Filed on 6/12/2009) Modified on 6/16/2009 (ewn, COURT STAFF). (Entered: 06/12/2009)
90 Declaration of Michael Trauben in Support of 89 Brief filed byBurger King Corporation. (Related document(s) 89 ) (Friedenberg, Adam) (Filed on 6/12/2009) (Entered: 06/12/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 12 of 32

06/15/2009 06/15/2009
06/17/2009 06/17/2009 06/17/2009 06/18/2009 06/18/2009
06/18/2009 06/18/2009 06/22/2009 06/22/2009 06/24/2009 06/24/2009
06/30/2009 06/30/2009 07/02/2009 07/02/2009

91 EXHIBIT A re 86 Declaration in Support filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 86 ) (sis, COURT STAFF) (Filed on 6/15/2009) (Entered: 06/15/2009)
92 Brief re 82 Statement Regarding Communications With and Contact Information For Non−Party Witnesses CORRECTION OF DOCKET # 89 filed byBurger King Corporation. (Related document(s) 82 ) (Friedenberg, Adam) (Filed on 6/15/2009) (Entered: 06/15/2009)
93 Declaration of Christopher Barnes in Support of 84 Brief (Supplemental Declaration) filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 84 ) (Lah, Andrew) (Filed on 6/17/2009) (Entered: 06/17/2009)
94 Declaration of Ashley Boothby in Support of 84 Brief (Declaration of Ashley Boothby) filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 84 ) (Lah, Andrew) (Filed on 6/17/2009) (Entered: 06/17/2009)
95 Declaration of Carolyn Safford in Support of 84 Brief (Declaration of Carolyn Safford) filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 84 ) (Lah, Andrew) (Filed on 6/17/2009) (Entered: 06/17/2009)
96 MOTION to Seal Document 90 Declaration in Support filed by Burger King Corporation. (Friedenberg, Adam) (Filed on 6/18/2009) (Entered: 06/18/2009)
97 Proposed Order re 96 MOTION to Seal Document 90 Declaration in Support Granting Defendant Burger Kind Corporation's Motion To File Documents Under Seal by Burger King Corporation. (Friedenberg, Adam) (Filed on 6/18/2009) (Entered: 06/18/2009)
98 Declaration of Michael Trauben in Support of 92 Brief REDACTED AND FILED UNDER SEAL filed byBurger King Corporation. (Related document(s) 92 ) (Friedenberg, Adam) (Filed on 6/18/2009) (Entered: 06/18/2009)
99 CERTIFICATE OF SERVICE by Burger King Corporation re 98 Declaration in Support, 96 MOTION to Seal Document 90 Declaration in Support, 97 Proposed Order (Friedenberg, Adam) (Filed on 6/18/2009) (Entered: 06/18/2009)
100 ORDER by Judge James Larson Granting Motion to Seal Document 96 Motion to Seal Document. (jlsec, COURT STAFF) (Filed on 6/22/2009) (Entered: 06/22/2009)
101 FILED UNDER SEAL Declaration of Michael Trauben in Support of 92 Brief filed byBurger King Corporation. (Related document(s) 92 ) (sis, COURT STAFF) (Filed on 6/22/2009) (Entered: 06/22/2009)
102 Minute Entry: Discovery Motion Hearing held on 6/24/2009 before Chief Magistrate Judge James Larson (Date Filed: 6/24/2009). (Court Reporter Sarah Goekler) (ls, COURT STAFF) (Date Filed: 6/24/2009) (Entered: 06/24/2009)
103 Statement of Issues Re: Plaintiffs' Motion to Compel Survey and Remediation Information, and Defendant's Motion to Compel Return of Inadvertently Produced Privilege Documents and for Protective Order by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Robertson, Amy) (Filed on 6/24/2009) (Entered: 06/24/2009)
104 CLERKS NOTICE Motion Hearing set for 8/5/2009 09:30 AM in Courtroom F, 15th Floor, San Francisco. (wh, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
105 MOTION for Leave to File Declarations Related To Joint Statement On Discovery Dispute filed by Burger King Corporation. (Attachments: # 1 Exhibit A)(Friedenberg, Adam) (Filed on 6/30/2009) (Entered: 06/30/2009)
106 MOTION Administrative Motion for a Briefing Schedule re 103 Statement, filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Proposed Order)(Campins, Julia) (Filed on 7/2/2009) (Entered: 07/02/2009)
107 Declaration of Julia Campins in Support of 106 MOTION Administrative Motion for a Briefing Schedule re 103 Statement, filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 106 ) (Campins, Julia) (Filed on 7/2/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 13 of 32

07/06/2009
07/06/2009 07/06/2009 07/07/2009 07/07/2009 07/08/2009 07/08/2009
07/08/2009 07/08/2009
07/09/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009
07/15/2009 07/15/2009

(Entered: 07/02/2009)
108 Memorandum in Opposition re 106 MOTION Administrative Motion for a Briefing Schedule re 103 Statement, (BKC's Response to Plaintiffs' Motion for a Briefing Schedule on the Parties' Cross−Motions to Compel) filed byBurger King Corporation. (Joblove, Michael) (Filed on 7/6/2009) (Entered: 07/06/2009)
109 ORDER by Judge James Larson Granting 105 Motion for Leave to File (jlsec, COURT STAFF) (Filed on 7/6/2009) (Entered: 07/06/2009)
110 ORDER by Judge James Larson Re: Briefing Schedule 106 Motion Granting (jlsec, COURT STAFF) (Filed on 7/6/2009) (Entered: 07/06/2009)
111 Declaration of Joseph N. Rubin in Support of 103 Statement, Defs. Motion to Compel filed byBurger King Corporation. (Related document(s) 103 ) (Rodgers, Maureen) (Filed on 7/7/2009) (Entered: 07/07/2009)
112 Declaration in Support of 103 Statement, Defs. Motion to Compel filed byBurger King Corporation. (Related document(s) 103 ) (Rodgers, Maureen) (Filed on 7/7/2009) (Entered: 07/07/2009)
113 Letter from Bill Lann Lee re Administrative Motion for Briefing Schedule re Motions to Compel. (Lee, Bill) (Filed on 7/8/2009) (Entered: 07/08/2009)
114 MOTION for Reconsideration re 110 Order on Motion for Miscellaneous Relief, 103 Statement, 108 Memorandum in Opposition, filed by Burger King Corporation. Motion Hearing set for 8/5/2009 09:30 AM in Courtroom F, 15th Floor, San Francisco. (Joblove, Michael) (Filed on 7/8/2009) (Entered: 07/08/2009)
115 Letter from Michael D. Joblove Requesting Court Consider Defendant's Response to Plaintiffs' Motion for a Briefing Schedule on the Parties' Cross−Motions to Compel. (Joblove, Michael) (Filed on 7/8/2009) (Entered: 07/08/2009)
116 AMENDED ORDER re 113 Letter filed by Joseph Wellner, Miguel Castaneda, Katherine Corbett, 110 Order on Motion for Miscellaneous Relief, 106 MOTION Administrative Motion for a Briefing Schedule re 103 Statement, filed by Joseph Wellner, Miguel Castaneda, Katherine Corbett. Signed by Judge James Larson on 7/8/09. (jlsec, COURT STAFF) (Filed on 7/8/2009) (Entered: 07/08/2009)
117 ORDER by Judge Larson granting 114 Motion for Reconsideration (jllc1, COURT STAFF) (Filed on 7/9/2009) (Entered: 07/09/2009)
118 Consent MOTION for Leave to File Documents Under Seal filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Proposed Order)(Lah, Andrew) (Filed on 7/15/2009) (Entered: 07/15/2009)
119 Declaration of Andrew Lah in Support of 118 Consent MOTION for Leave to File Documents Under Seal filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 118 ) (Lah, Andrew) (Filed on 7/15/2009) (Entered: 07/15/2009)
120 NOTICE by Miguel Castaneda, Katherine Corbett, Joseph Wellner Notice of Manual Filing of Documents Submitted Pursuant to Motion to File Documents Under Seal (Lah, Andrew) (Filed on 7/15/2009) (Entered: 07/15/2009)
121 MOTION to Compel filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. Motion Hearing set for 8/19/2009 09:30 AM in Courtroom F, 15th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Amy F. Robertson in Support of Plaintiffs' Motion to Compel with Exhibits, # 2 Affidavit Declaration of Timothy P. Fox in Support of Plaintiffs' Motion to Compel, # 3 Proposed Order)(Robertson, Amy) (Filed on 7/15/2009) (Entered: 07/15/2009)
122 Declaration of Julia Campins in Support of 121 MOTION to Compel filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 121 ) (Campins, Julia) (Filed on 7/15/2009) (Entered: 07/15/2009)
123 Memorandum in Opposition 121 (Opening Supplemental Brief in Opposition to Plaintiffs' Motion to Compel Survey and Remediation Information, and in Support of BKC's Motion to Compel Return of Inadvertently Produced Privileged Documents and for Protective Order filed by Burger King Corporation. (Joblove, Michael) (Filed on

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 14 of 32

07/15/2009
07/15/2009 07/16/2009 07/16/2009 07/17/2009 07/17/2009 07/17/2009 07/17/2009 07/17/2009 07/17/2009 07/20/2009 07/22/2009 07/29/2009
07/29/2009

7/15/2009) Modified on 7/16/2009 (sis, COURT STAFF). (Entered: 07/15/2009)
124 Declaration of Jonathan E. Perlman in Support of 123 Memorandum in Opposition, (BKC's Opening Supplemental Brief in Opposition to Plaintiffs' Motion to Compel Survey and Remediation Information, and in Support of BKC's Motion to Compel Return of Inadvertently Produced Privileged Documents and for Protective Order) filed byBurger King Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F Part 1, # 7 Exhibit F Part 2, # 8 Exhibit F Part 3, *** # 9 Exhibit F Part 4, # 10 Exhibit F Part 5 FILED IN ERROR. DOCUMENT REMOVED PER ORDER # 225 . *** , # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I)(Related document(s) 123 ) (Joblove, Michael) (Filed on 7/15/2009) (Attachment 9 replaced on 9/28/2009) (ewn, COURT STAFF). (Attachment 10 replaced on 9/28/2009) (ewn, COURT STAFF). Modified on 9/28/2009 (ewn, COURT STAFF). (Entered: 07/15/2009)
147 FILED UNDER SEAL− Accessibility Survey by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (sis, COURT STAFF) (Filed on 7/15/2009) (Entered: 07/31/2009)
125 MOTION to Continue Class Certification Briefing and Hearing filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Proposed Order)(Campins, Julia) (Filed on 7/16/2009) (Entered: 07/16/2009)
126 Declaration of Julia Campins in Support of 125 MOTION to Continue Class Certification Briefing and Hearing filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 125 ) (Campins, Julia) (Filed on 7/16/2009) (Entered: 07/16/2009)
127 ORDER REGARDING MOTION TO CONTINUE. Signed by Judge Alsup on July 17, 2009. (whalc2, COURT STAFF) (Filed on 7/17/2009) (Entered: 07/17/2009)
128 *** FILED IN ERROR. PLEASE SEE DOCKET # 130 . *** MOTION Administrative Motion to Remove Confidential Document From Docket filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 7/17/2009) Modified on 7/20/2009 (ewn, COURT STAFF). (Entered: 07/17/2009)
129 Proposed Order re 128 MOTION Administrative Motion to Remove Confidential Document From Docket by Burger King Corporation. (Rodgers, Maureen) (Filed on 7/17/2009) (Entered: 07/17/2009)
130 MOTION Administrative Motion to Remove Confidential Document From Docket CORRECTION OF DOCKET # 128 filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 7/17/2009) (Entered: 07/17/2009)
131 Memorandum in Opposition re 125 MOTION to Continue Class Certification Briefing and Hearing filed byBurger King Corporation. (Joblove, Michael) (Filed on 7/17/2009) (Entered: 07/17/2009)
132 Declaration of Jonathan E. Perlman in Support of 131 Memorandum in Opposition to Plaintiffs' Administrative Motion to Continue Class Certification Briefing and Hearing filed byBurger King Corporation. (Attachments: # 1 Exhibit "A")(Related document(s) 131 ) (Joblove, Michael) (Filed on 7/17/2009) (Entered: 07/17/2009)
133 ORDER DENYING MOTION TO CONTINUE. Signed by Judge Alsup on July 20, 2009. (whalc2, COURT STAFF) (Filed on 7/20/2009) (Entered: 07/20/2009)
134 ERRATA re 121 MOTION to Compel by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Robertson, Amy) (Filed on 7/22/2009) (Entered: 07/22/2009)
135 MEMORANDUM in Opposition re 123 Memorandum in Opposition, 121 MOTION to Compel Survey and Remediation Information, and Support of BKC's Motion to Compel Inadvertently Produced Privileged Documents and for Protective Order filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Second Declaration of Amy F. Robertson in Support of Plaintiffs' Motion to Compel)(Related document(s) 123 , 121 ) (Robertson, Amy) (Filed on 7/29/2009) (Entered: 07/29/2009)
136 MOTION to Seal Document filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Proposed Order, # 2 Declaration of Andrew Lah in Support

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 15 of 32

07/29/2009 07/29/2009
07/29/2009 07/29/2009 07/29/2009 07/29/2009 07/29/2009
07/29/2009 07/29/2009 07/30/2009 07/31/2009 07/31/2009

of Administrative Motion to File Documents Under Seal)(Lah, Andrew) (Filed on 7/29/2009) (Entered: 07/29/2009)
137 NOTICE by Miguel Castaneda, Katherine Corbett, Joseph Wellner Notice of Manual Filing of Documents Submitted Pursuant to Motion to File Documents Under Seal (Lah, Andrew) (Filed on 7/29/2009) (Entered: 07/29/2009)
138 MOTION to Certify Class filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. Motion Hearing set for 9/17/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order, # 2 Declaration of Bill Lann Lee in Support of Appointment of Class Counsel, # 3 Declaration of Amy F. Robertson in Support of Appointment of Class Counsel, # 4 Declaration of Linda D. Kilb in Support of Appointment of Class Counsel, # 5 Declaration of Mari Mayeda in Support of Appointment of Class Counsel)(Lee, Bill) (Filed on 7/29/2009) (Entered: 07/29/2009)
139 Declaration of Ashley Boothby in Support of 138 MOTION to Certify Class filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 138 ) (Campins, Julia) (Filed on 7/29/2009) (Entered: 07/29/2009)
140 Declaration of Julia Campins in Support of 138 MOTION to Certify Class filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit 1−22, # 2 Exhibit 23−27, # 3 Exhibit 28−30, # 4 Exhibit 31−33, # 5 Exhibit 34−36, # 6 Exhibit 37−56, # 7 Exhibit 57−72)(Related document(s) 138 ) (Campins, Julia) (Filed on 7/29/2009) (Entered: 07/29/2009)
141 EXHIBITS re 140 Declaration in Support, Exhibits 73−97 filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit 98−99, # 2 Exhibit 100−106, # 3 Exhibit 107−113, # 4 Exhibit 114−121, # 5 Exhibit 122−126)(Related document(s) 140 ) (Campins, Julia) (Filed on 7/29/2009) (Entered: 07/29/2009)
142 Memorandum in Opposition 121 (Supplemental Brief in Opposition to Plaintiffs' Motion to Compel Survey and Remediation Information, and in Support of Its Motion to Compel the Return of Inadvertently Produced Privileged Documents and for Protective Order) filed by Burger King Corporation. (Joblove, Michael) (Filed on 7/29/2009) Modified on 7/30/2009 (sis, COURT STAFF). (Entered: 07/29/2009)
143 Declaration in Support of 142 Memorandum in Opposition, (of Michael Joblove in Support of BKC's Supplemental Brief in Opposition to Plaintiffs' Motion to Compel Survey and Remediation Information, and in Support of Its Motion to Compel the Return of Inadvertently Produced Privileged Documents and for Protective Order) filed byBurger King Corporation. (Related document(s) 142 ) (Joblove, Michael) (Filed on 7/29/2009) (Entered: 07/29/2009)
227 FILED UNDER SEAL− EXHIBITS 122−126 re 141 Exhibits, filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 141 ) (sis, COURT STAFF) (Filed on 7/29/2009) (Entered: 09/28/2009)
228 FILED UNDER SEAL− MEMORANDUM of Points and Authorities in Support of 138 Motion for Class Certification filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (sis, COURT STAFF) (Filed on 7/29/2009) (Entered: 09/28/2009)
144 ORDER by Judge James Larson Granting Order to File Documents Under Seal 118 Motion for Leave to File (jlsec, COURT STAFF) (Filed on 7/30/2009) (Entered: 07/30/2009)
145 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 filed by Burger King Corporation. Motion Hearing set for 9/10/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Joblove, Michael) (Filed on 7/31/2009) (Entered: 07/31/2009)
146 NOTICE by Burger King Corporation re 145 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 (NOTICE OF MOTION) (Joblove, Michael) (Filed on 7/31/2009) (Entered: 07/31/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 16 of 32

07/31/2009
07/31/2009
07/31/2009 08/05/2009 08/05/2009
08/05/2009 08/05/2009 08/05/2009 08/05/2009 08/18/2009 08/18/2009 08/18/2009 08/18/2009 08/19/2009 08/19/2009

148 Declaration of THOMAS G. ARCHER in Support of 146 Notice (Other), Notice (Other), 145 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 filed byBurger King Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 146 , 145 ) (Joblove, Michael) (Filed on 7/31/2009) (Entered: 07/31/2009)
149 Proposed Order re 146 Notice (Other), Notice (Other), 145 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21, 148 Declaration in Support,, by Burger King Corporation. (Joblove, Michael) (Filed on 7/31/2009) (Entered: 07/31/2009)
150 DISCOVERY ORDER. Signed by Judge James Larson on 7/31/09. (jlsec, COURT STAFF) (Filed on 7/31/2009) (Entered: 07/31/2009)
151 Reply to Opposition to Plaintiffs' Motion to Compel Survey and Remediation Information, and in Support of Its Motion to Compel the Return of Inadvertently Produced Privileged Documents and for Protective Order filed byBurger King Corporation. (Joblove, Michael) (Filed on 8/5/2009) (Entered: 08/05/2009)
152 Declaration of Jonathan E. Perlman in Support of 151 Reply to Opposition, to Plaintiffs' Motion to Compel Survey and Remediation Information, and in Support of Its Motion to Copmpel the Return of Inadvertently Produced Privileged Documents and for Protective Order filed byBurger King Corporation. (Related document(s) 151 ) (Joblove, Michael) (Filed on 8/5/2009) (Entered: 08/05/2009)
153 Proposed Order re 152 Declaration in Support, 151 Reply to Opposition, (Proposed Discovery Order Regarding Accessibility Surveys and Investigation Documents) by Burger King Corporation. (Joblove, Michael) (Filed on 8/5/2009) (Entered: 08/05/2009)
154 Reply to Opposition re 121 MOTION to Compel filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Robertson, Amy) (Filed on 8/5/2009) (Entered: 08/05/2009)
155 Declaration of Thomas G. Archer in Support of Order Sealing Exs. 123−126 to the Declaration of Julia Campins in Support of Plaintiffs' Motion for Class Certification filed byBurger King Corporation. (Attachments: # 1 Exhibit "A")(Joblove, Michael) (Filed on 8/5/2009) (Entered: 08/05/2009)
156 Proposed Order re 155 Declaration in Support, (to Seal Certain Documents) by Burger King Corporation. (Joblove, Michael) (Filed on 8/5/2009) (Entered: 08/05/2009)
157 MOTION for Leave to File Excess Pages for opposition to plaintiffs' motion for class certification filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 8/18/2009) (Entered: 08/18/2009)
158 Declaration of Maureen Rodgers in Support of 157 MOTION for Leave to File Excess Pages for opposition to plaintiffs' motion for class certification filed byBurger King Corporation. (Related document(s) 157 ) (Rodgers, Maureen) (Filed on 8/18/2009) (Entered: 08/18/2009)
159 Proposed Order re 157 MOTION for Leave to File Excess Pages for opposition to plaintiffs' motion for class certification by Burger King Corporation. (Rodgers, Maureen) (Filed on 8/18/2009) (Entered: 08/18/2009)
160 Memorandum in Opposition re 157 MOTION for Leave to File Excess Pages for opposition to plaintiffs' motion for class certification filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 8/18/2009) (Entered: 08/18/2009)
161 Minute Entry: Motion Hearing held on 8/19/2009 before James Larson (Date Filed: 8/19/2009). (Court Reporter Margot Gurule.) (wh, COURT STAFF) (Date Filed: 8/19/2009) (Entered: 08/19/2009)
162 ORDER by Judge James Larson Granting Motion to Compel Production of the Surveys 121 Motion to Compel, 123 Order Denying Motion to Propound Interrogatory 24 and Denying Motion for Return of an inadvertenly Producted Privileged

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 17 of 32

08/19/2009 08/20/2009 08/20/2009 08/20/2009 08/20/2009
08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009

Documents. (jlsec, COURT STAFF) (Filed on 8/19/2009) (Entered: 08/19/2009)
163 ORDER RE 157 REQUEST TO EXCEED PAGE LIMIT (whalc2, COURT STAFF) (Filed on 8/19/2009) Modified on 8/20/2009 (sis, COURT STAFF). (Entered: 08/19/2009)
164 Memorandum in Opposition re 145 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Declaration of Julia Campins in Support of Plaintiffs' Opposition)(Campins, Julia) (Filed on 8/20/2009) (Entered: 08/20/2009)
165 Ex Parte Application of Specially Appearing Proposed Indispensable Party−Defendant for Order Immediately Vacating the Hearing on Motion For Class Certification Pending Ruling on Joinder Motion filed by Strategic Restaurants Acquisition Company II, LLC. (Attachments: # 1 Proposed Order, # 2 Certificate of Service)(Orlick, Martin) (Filed on 8/20/2009) (Entered: 08/20/2009)
166 Declaration of Martin H. Orlick in Support of 165 Ex Parte Application of Specially Appearing Proposed Indispensable Party−Defendant for Order Immediately Vacating the Hearing on Motion For Class Certification Pending Ruling on Joinder Motion filed byStrategic Restaurants Acquisition Company II, LLC. (Related document(s) 165 ) (Orlick, Martin) (Filed on 8/20/2009) (Entered: 08/20/2009)
167 Declaration of Myrna Schultz in Support of 165 Ex Parte Application of Specially Appearing Proposed Indispensable Party−Defendant for Order Immediately Vacating the Hearing on Motion For Class Certification Pending Ruling on Joinder Motion filed byStrategic Restaurants Acquisition Company II, LLC. (Attachments: # 1 Exhibit A (BK #975), # 2 Exhibit A (BK #1549), # 3 Exhibit A (BK #1932), # 4 Exhibit A (BK #2555), # 5 Exhibit A (BK #2795), # 6 Exhibit A (BK #2867), # 7 Exhibit A (BK #3160), # 8 Exhibit A (BK #3546), # 9 Exhibit A (BK #3580), # 10 Exhibit A (BK #3827), # 11 Exhibit A (BK #4516), # 12 Exhibit A (BK #6755), # 13 Exhibit A (BK #9913))(Related document(s) 165 ) (Orlick, Martin) (Filed on 8/20/2009) (Entered: 08/20/2009)
168 Memorandum in Opposition re 165 Ex Parte Application of Specially Appearing Proposed Indispensable Party−Defendant for Order Immediately Vacating the Hearing on Motion For Class Certification Pending Ruling on Joinder Motion filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Campins, Julia) (Filed on 8/21/2009) (Entered: 08/21/2009)
169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed by Burger King Corporation. Motion Hearing set for 10/1/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
170 Declaration of Michael D. Joblove in Support of 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit A Part 1, # 2 Exhibit A Part 2, # 3 Exhibit A Part 3, # 4 Exhibit B, # 5 Exhibit C)(Related document(s) 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
171 EXHIBITS re 170 Declaration in Support, 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H)(Related document(s) 170 , 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
172 EXHIBITS re 170 Declaration in Support, 171 Exhibits, 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit I, # 2 Exhibit J, # 3 Exhibit K, # 4 Exhibit L, # 5 Exhibit M)(Related document(s) 170 , 171 , 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
173 Proposed Order re 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion by Burger King

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 18 of 32

08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009 08/21/2009
08/21/2009 08/21/2009 08/21/2009 08/22/2009 08/24/2009

Corporation. (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
174 Declaration of Wayne Burke in Support of 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit A Part 1, # 2 Exhibit A Part 2)(Related document(s) 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
175 Declaration of Ella Avery−Smothers in Support of 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
176 Declaration of Sunil Gulati in Support of 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
177 Declaration of Jay Patel in Support of 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
178 Declaration of Anthony Sacca in Support of 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
179 Declaration of Byron Crossen in Support of 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 169 ) (Joblove, Michael) (Filed on 8/21/2009) (Entered: 08/21/2009)
180 Declaration of Kim R. Blackseth 184 in Support of BKC's Opposition to Plaintiffs' Motion for Class Certification filed by Burger King Corporation. (Attachments: # 1 Exhibit 1 Part 1, # 2 Exhibit 1 Part 2, # 3 Exhibit 1 Part 3, # 4 Exhibit 1 Part 4, # 5 Exhibit 1 Part 5, # 6 Exhibit 1 Part 6, # 7 Exhibit 1 Part 7, # 8 Exhibit 1 Part 8, # 9 Exhibit 1 Part 9, # 10 Exhibit 1 Part 10)(Joblove, Michael) (Filed on 8/21/2009) Modified on 8/24/2009 (sis, COURT STAFF). (Entered: 08/21/2009)
181 Declaration of Frank Massabki 184 in Suppprt of BKC's Opposition to Plaintiffs' Motion for Class Certification filed by Burger King Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Joblove, Michael) (Filed on 8/21/2009) Modified on 8/24/2009 (sis, COURT STAFF). (Entered: 08/21/2009)
182 Declaration of James McGrory 184 in Suppprt of BKC's Opposition to Plaintiffs' Motion for Class Certification filed by Burger King Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Joblove, Michael) (Filed on 8/21/2009) Modified on 8/24/2009 (sis, COURT STAFF). (Entered: 08/21/2009)
183 Declaration of Thomas G. Archer 1854 in Support of BKC's Opposition to Plaintiffs' Motion for Class Certification filed by Burger King Corporation. (Attachments: # 1 Exhibit 1)(Joblove, Michael) (Filed on 8/21/2009) Modified on 8/24/2009 (sis, COURT STAFF). (Entered: 08/21/2009)
184 Memorandum in Opposition 138 to Plaintiffs' Motion for Class Certification filed by Burger King Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Joblove, Michael) (Filed on 8/22/2009) Modified on 8/24/2009 (sis, COURT STAFF). (Entered: 08/22/2009)
185 NOTICE by Burger King Corporation re 180 Declaration in Support,, 184 Memorandum in Opposition, of Filing Amended Exhibit "1" to Declaration of Kim Blackseth in Opposition to Plaintiffs' Motion for Class Certification (Attachments: # 1 DE 180 Declaration of Kim Blackseth, # 2 Exhibit 1 Part 1 − BK 977, # 3 Exhibit 1 Part 2 − BK 1864, # 4 Exhibit 1 Part 3 − BK 1943, # 5 Exhibit 1 Part 4 − BK 2032, # 6 Exhibit 1 Part 5 − BK 2055, # 7 Exhibit 1 Part 6 − BK 2288, # 8 Exhibit 1 Part 7 − BK 2505, # 9 Exhibit 1 Part 8 − BK 4039, # 10 Exhibit 1 Part 9 − BK 4075, # 11 Exhibit 1

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 19 of 32

08/25/2009 08/25/2009
08/25/2009
08/25/2009 08/25/2009 08/25/2009 08/25/2009 08/25/2009 08/27/2009
08/28/2009 08/28/2009 08/28/2009 08/31/2009 08/31/2009

Part 10 − BK 4516)(Joblove, Michael) (Filed on 8/24/2009) (Entered: 08/24/2009)
186 MOTION to Seal Document 170 Declaration in Support, 171 Exhibits, 183 Declaration in Support, 184 Memorandum in Opposition, 182 Declaration in Support, 181 Declaration in Support, 172 Exhibits, filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 8/25/2009) (Entered: 08/25/2009)
187 Proposed Order re 186 MOTION to Seal Document 170 Declaration in Support, 171 Exhibits, 183 Declaration in Support, 184 Memorandum in Opposition, 182 Declaration in Support, 181 Declaration in Support, 172 Exhibits, MOTION to Seal Document 170 Declaration in Support, 171 Exhibits, 183 Declaration in Support, 184 Memorandum in Opposition, 182 Declaration in Support, 181 Declaration in Support, 172 Exhibits, by Burger King Corporation. (Rodgers, Maureen) (Filed on 8/25/2009) (Entered: 08/25/2009)
188 ERRATA re 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion by Burger King Corporation. (Attachments: # 1 Unredacted Notice of Motion and Motion to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion)(Joblove, Michael) (Filed on 8/25/2009) (Entered: 08/25/2009)
203 FILED UNDER SEAL−EXHIBITS A,F & L re 170 Declaration in Support, filed byBurger King Corporation. (Related document(s) 170 ) (sis, COURT STAFF) (Filed on 8/25/2009) (Entered: 09/08/2009)
229 FILED UNDER SEAL− Memorandum in Opposition 138 Motion for Class Certification filed byBurger King Corporation. (sis, COURT STAFF) (Filed on 8/25/2009) (Entered: 09/28/2009)
230 FILED UNDER SEAL−DECLARATION of Thomas G. Archer in Opposition to 138 Motion for Class Certification filed byBurger King Corporation. (sis, COURT STAFF) (Filed on 8/25/2009) (Entered: 09/28/2009)
231 FILED UNDER SEAL−DECLARATION of James McGrory in Opposition to 138 Motion for Class Certification filed byBurger King Corporation. (sis, COURT STAFF) (Filed on 8/25/2009) (Entered: 09/28/2009)
232 FILED UNDER SEAL− Declaration of Frank Massabki in Support of 229 Opposition filed byBurger King Corporation. (sis, COURT STAFF) (Filed on 8/25/2009) (Entered: 09/28/2009)
189 Reply Memorandum re 145 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 filed byBurger King Corporation. (Joblove, Michael) (Filed on 8/27/2009) (Entered: 08/27/2009)
190 MOTION to Shorten Time for Hearing on Motion to Strike and to Alter Briefing Schedule filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 8/28/2009) (Entered: 08/28/2009)
191 Declaration of Adam Friedenberg in Support of 190 MOTION to Shorten Time for Hearing on Motion to Strike and to Alter Briefing Schedule filed byBurger King Corporation. (Related document(s) 190 ) (Rodgers, Maureen) (Filed on 8/28/2009) (Entered: 08/28/2009)
192 Proposed Order re 190 MOTION to Shorten Time for Hearing on Motion to Strike and to Alter Briefing Schedule by Burger King Corporation. (Rodgers, Maureen) (Filed on 8/28/2009) (Entered: 08/28/2009)
193 Statement of Non−Opposition re 190 MOTION to Shorten Time for Hearing on Motion to Strike and to Alter Briefing Schedule filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 190 ) (Robertson, Amy) (Filed on 8/31/2009) (Entered: 08/31/2009)
194 Reply Memorandum re 165 Ex Parte Application of Specially Appearing Proposed Indispensable Party−Defendant for Order Immediately Vacating the Hearing on Motion For Class Certification Pending Ruling on Joinder Motion filed byStrategic

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 20 of 32

08/31/2009 09/01/2009
09/01/2009 09/02/2009
09/03/2009 09/04/2009 09/04/2009 09/04/2009 09/09/2009
09/10/2009 09/10/2009 09/10/2009 09/11/2009 09/11/2009

Restaurants Acquisition Company II, LLC. (Attachments: # 1 Proof of Service)(Orlick, Martin) (Filed on 8/31/2009) (Entered: 08/31/2009)
195 CLERKS NOTICE Rescheduling Motion Hearing. Motion Hearing set for 9/17/2009 08:00 AM. (dt, COURT STAFF) (Filed on 8/31/2009) (Entered: 08/31/2009)
196 Declaration of Julia Campins in Support of 186 MOTION to Seal Document 170 Declaration in Support, 171 Exhibits, 183 Declaration in Support, 184 Memorandum in Opposition, 182 Declaration in Support, 181 Declaration in Support, 172 Exhibits, MOTION to Seal Document 170 Declaration in Support, 171 Exhibits, 183 Declaration in Support, 184 Memorandum in Opposition, 182 Declaration in Support, 181 Declaration in Support, 172 Exhibits, filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Proposed Order)(Related document(s) 186 ) (Campins, Julia) (Filed on 9/1/2009) (Entered: 09/01/2009)
197 ORDER RE EX PARTE APPLICATION FOR ORDER VACATING CLASS CERTIFICATION HEARING. Signed by Judge Alsup on September 1, 2009. (whalc2, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)
198 RESPONSE to re 197 Order, 165 Ex Parte Application of Specially Appearing Proposed Indispensable Party−Defendant for Order Immediately Vacating the Hearing on Motion For Class Certification Pending Ruling on Joinder Motion, 194 Reply Memorandum, 168 Memorandum in Opposition, by Burger King Corporation. (Joblove, Michael) (Filed on 9/2/2009) (Entered: 09/02/2009)
199 Reply Memorandum re 138 MOTION to Certify Class filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Supplemental Declaration of Ashley Boothby in Support of Plaintiffs' Motion for Class Certification)(Lee, Bill) (Filed on 9/3/2009) (Entered: 09/03/2009)
200 OBJECTIONS to re 162 Order on Motion to Compel, by Burger King Corporation. (Joblove, Michael) (Filed on 9/4/2009) (Entered: 09/04/2009)
201 Proposed Order re 200 Objection to Magistrate Judge James Larson's August 19, 2009 Discovery Order Regarding Privileged Surveys by Burger King Corporation. (Joblove, Michael) (Filed on 9/4/2009) (Entered: 09/04/2009)
202 ORDER TO FILE DOCUMENTS UNDER SEAL. Signed by Judge Alsup on September 4, 2009. (whalc2, COURT STAFF) (Filed on 9/4/2009) (Entered: 09/04/2009)
204 NOTICE by Burger King Corporation re 202 Order, 170 Declaration in Support, 171 Exhibits, 172 Exhibits, (of Filing Redacted Exs. A, F and L to the Declaration of Michael D. Joblove Pursuant to the September 4, 2009 Order to File Documents under Seal) (Attachments: # 1 Exhibit REDACTED EX. "A", # 2 Exhibit REDACTED EX. "F", # 3 Exhibit REDACTED EX. "L")(Joblove, Michael) (Filed on 9/9/2009) (Entered: 09/09/2009)
205 CLERKS NOTICE Rescheduling Motion Hearing. Motion Hearing set for 9/17/2009 02:00 PM. (dt, COURT STAFF) (Filed on 9/10/2009) (Entered: 09/10/2009)
206 Memorandum in Opposition re 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Lee, Bill) (Filed on 9/10/2009) (Entered: 09/10/2009)
207 Declaration of Andrew Lah in Support of 206 Memorandum in Opposition filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 206 ) (Lah, Andrew) (Filed on 9/10/2009) (Entered: 09/10/2009)
208 ORDER GRANTING DEFENDANT'S MOTION TO SHORTEN TIME by Judge Alsup granting 190 Motion to Shorten Time (whalc2, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/11/2009)
Set/Reset Deadlines as to 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion. Responses due by 9/10/2009. Replies due by 9/14/2009. Motion Hearing set for 9/17/2009 08:30 AM. (sis, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/14/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 21 of 32

09/14/2009 09/14/2009 09/14/2009 09/14/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/17/2009
09/18/2009
09/23/2009 09/23/2009 09/25/2009

209 ORDER DENYING EX PARTE APPLICATION OF THIRD PARTY STRATEGIC ACQUISITION COMPANY II, LLC by Judge Alsup denying 165 Ex Parte Application (whalc2, COURT STAFF) (Filed on 9/14/2009) (Entered: 09/14/2009)
210 Letter from Linda D. Kilb re Request for Reasonable Accommodation in Assignment of Counsel Tables for September 17, 2009 Hearing. (Campins, Julia) (Filed on 9/14/2009) (Entered: 09/14/2009)
211 Reply Memorandum re 169 MOTION to Strike Declarations and Exclude Witnesses; Memorandum of Points of Authorities in Support of Motion filed byBurger King Corporation. (Joblove, Michael) (Filed on 9/14/2009) (Entered: 09/14/2009)
212 Declaration of Michael A. Trauben in Support of 211 Reply Memorandum in Support of Burger King Corporation's Motion to Strike Declarations and Exclude Witnesses filed byBurger King Corporation. (Related document(s) 211 ) (Joblove, Michael) (Filed on 9/14/2009) (Entered: 09/14/2009)
213 OBJECTIONS to Evidence Submitted in Support of Motion for Class Certification by Burger King Corporation. (Rodgers, Maureen) (Filed on 9/15/2009) (Entered: 09/15/2009)
214 NOTICE by Burger King Corporation re 211 Reply Memorandum (Notice of Errata) (Joblove, Michael) (Filed on 9/15/2009) (Entered: 09/15/2009)
215 Letter from Maureen Rodgers to The Honorable William H. Alsup requesting hearing clarification from the Court. (Rodgers, Maureen) (Filed on 9/15/2009) (Entered: 09/15/2009)
216 CLERKS NOTICE Rescheduling Motion Hearing. Motion to Strike Hearing set for 9/17/2009 02:00 PM in Courtroom 9, 19th Floor, San Francisco. (dt, COURT STAFF) (Filed on 9/15/2009) (Entered: 09/15/2009)
217 Memorandum in Opposition 213 to Defendant Burger King's Objections to Evidence Filed in Support of Plaintiffs' Motion for Class Certification filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lee, Bill) (Filed on 9/15/2009) Modified on 9/16/2009 (sis, COURT STAFF). (Entered: 09/15/2009)
219 Minute Entry: Motion Hearing held on 9/17/2009 before William Alsup (Date Filed: 9/17/2009) re 145 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 MOTION to Add Restaurant Franchisees/Lessees as Additional Defendants under Rules 19(a) and 21 filed by Burger King Corporation, 138 MOTION to Certify Class filed by Joseph Wellner, Miguel Castaneda, Katherine Corbett. (Court Reporter Debra Pas.) (dt, COURT STAFF) (Date Filed: 9/17/2009) (Entered: 09/21/2009)
218 Transcript of Proceedings held on 9−17−2009, before Judge William H. Alsup. Court Reporter/Transcriber Debra L. Pas, CSR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/14/2009. (Pas, Debra) (Filed on 9/18/2009) (Entered: 09/18/2009)
220 MOTION for Leave to File A Supplemental Memorandum Concerning Case Management Issues filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Affidavit Declaration of Amy F. Robertson, # 2 Proposed Order)(Robertson, Amy) (Filed on 9/23/2009) (Entered: 09/23/2009)
221 ORDER DENYING 220 PLAINTIFFS' MOTION FOR LEAVE TO FILE A SUPPLEMENTAL MEMORANDUM CONCERNING CASE MANAGEMENT ISSUES. Signed by Judge Alsup on September 23, 2009. (whalc2, COURT STAFF) (Filed on 9/23/2009) Modified on 9/24/2009 (sis, COURT STAFF). (Entered: 09/23/2009)
222 ORDER OVERRULING DEFENDANT'S OBJECTIONS TO DISCOVERY ORDER DATED AUGUST 19, 2009. Signed by Judge Alsup on September 25, 2009. (whalc2,

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 22 of 32

09/25/2009 09/25/2009 09/25/2009 09/25/2009
09/29/2009
10/02/2009
10/02/2009 10/05/2009 10/06/2009 10/06/2009 10/07/2009 10/09/2009 10/09/2009

COURT STAFF) (Filed on 9/25/2009) (Entered: 09/25/2009)
223 ORDER 136 TO FILE DOCUMENTS UNDER SEAL. Signed by Judge Alsup on September 25, 2009. (whalc2, COURT STAFF) (Filed on 9/25/2009) Modified on 9/28/2009 (sis, COURT STAFF). (Entered: 09/25/2009)
224 ORDER GRANTING 186 DEFENDANT'S MOTION TO FILE DOCUMENTS UNDER SEAL. Signed by Judge Alsup on September 25, 2009. (whalc2, COURT STAFF) (Filed on 9/25/2009) Modified on 9/28/2009 (sis, COURT STAFF). (Entered: 09/25/2009)
225 ORDER GRANTING DEFENDANT'S MOTION TO REMOVE CONFIDENTIAL DOCUMENT FROM DOCKET by Judge Alsup granting 130 Motion (whalc2, COURT STAFF) (Filed on 9/25/2009) (Entered: 09/25/2009)
226 ORDER GRANTING CLASS CERTIFICATION AS TO TEN BURGER KING STORES AND OTHERWISE DENYING CLASS CERTIFICATION by Judge William Alsup [granting in part and denying in part 138 Motion to Certify Class; granting in part and denying in part 145 Motion ; denying 169 Motion to Strike]. (whasec, COURT STAFF) (Filed on 9/25/2009) (Entered: 09/25/2009)
233 NOTICE by Burger King Corporation re 225 Order on Motion for Miscellaneous Relief (of Filing Redacted Exhibit "F" to Jonathan E. Perlman's Declaration (Docket Nos. 124−9 and 124−10) Pursuant to September 25, 2009 Order Granting Defendant's Motion to Remove Confidential Document from Docket) (Attachments: # 1 Exhibit "F" Part 1, # 2 Exhibit "F" Part 2, # 3 Exhibit "F" Part 3, # 4 Exhibit "F" Part 4, # 5 Exhibit "F" Part 5, # 6 Exhibit "F" Part 6, # 7 Exhibit "F" Part 7)(Joblove, Michael) (Filed on 9/29/2009) (Entered: 09/29/2009)
234 MOTION for Leave to File A Motion For Reconsideration Pursuant to Local Rule 7−9 filed by Burger King Corporation. (Attachments: # 1 Defendant Burger King Corporation's [Proposed] Motion To Alter or Amend The Magistrate's August 19, 2009 Discovery Order and the September 25, 2009 Order Overruling Defendant's Objections To That Order, Due to Changed Circumstances, # 2 [Proposed] Order Granting Defendant's Local Rule 7−9 Motion For Leave To File a Motion For Reconsideration)(Friedenberg, Adam) (Filed on 10/2/2009) (Entered: 10/02/2009)
235 MOTION to Stay Pending Appeal of September 25, 2009 Discovery Order [Docket No. 222] Regarding Compelled Production of Privileged Surveys filed by Burger King Corporation. Motion Hearing set for 11/12/2009 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Friedenberg, Adam) (Filed on 10/2/2009) (Entered: 10/02/2009)
236 NOTICE OF APPEAL as to 222 Order by Burger King Corporation. Filing fee $ 455. Receipt No. 34611037361. (sis, COURT STAFF) (Filed on 10/5/2009) (Entered: 10/06/2009)
237 Copy of Notice of Appeal and Docket sheet e−filed to all counsel (sis, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)
238 ORDER MODIFYING DISCOVERY ORDER AND TO SHOW CAUSE by Judge Alsup granting 234 Motion for Leave to File (whalc2, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/06/2009)
247 USCA Case Number 09−17210 Ninth Circuit for 236 Notice of Appeal filed by Burger King Corporation. (sis, COURT STAFF) (Filed on 10/7/2009) (Entered: 10/15/2009)
239 RESPONSE TO ORDER TO SHOW CAUSE by Miguel Castaneda, Katherine Corbett, Joseph Wellner Re: Production of Surveys. (Attachments: # 1 Declaration of Timothy P. Fox, # 2 Declaration of Amy F. Robertson)(Robertson, Amy) (Filed on 10/9/2009) (Entered: 10/09/2009)
240 NOTICE by Miguel Castaneda, Katherine Corbett, Joseph Wellner Notice of Manual Filing re Plaintiffs' Ex Parte Memorandum Concerning Appointment of Class Counsel and accompanying declarations (Campins, Julia) (Filed on 10/9/2009) (Entered: 10/09/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 23 of 32

10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/13/2009 10/13/2009 10/13/2009 10/14/2009
10/14/2009 10/15/2009
10/15/2009
10/15/2009 10/15/2009

314 FILED UNDER SEAL− PLAINTIFF'S EX PARTE MEMORANDUM Concerning Appointment of Class Counsel filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (sis, COURT STAFF) (Filed on 10/9/2009) (Entered: 02/22/2010)
315 FILED UNDER SEAL− Declaration of Amy F. Robertson in Support of 314 Memorandum filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 314 ) (sis, COURT STAFF) (Filed on 10/9/2009) (Entered: 02/22/2010)
316 FILED UNDER SEAL− Declaration of Mari Mayeda in Support of 314 Memorandum filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 314 ) (sis, COURT STAFF) (Filed on 10/9/2009) (Entered: 02/22/2010)
317 FILED UNDER SEAL− Declaration of Brad Seligman in Support of 314 Memorandum filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 314 ) (sis, COURT STAFF) (Filed on 10/9/2009) (Entered: 02/22/2010)
318 FILED UNDER SEAL− Declaration of Linda D. Kilb in Support of 314 Memorandum filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 314 ) (sis, COURT STAFF) (Filed on 10/9/2009) (Entered: 02/22/2010)
319 FILED UNDER SEAL− Declaration of Bill Lann Lee in Support of 314 Memorandum filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 314 ) (sis, COURT STAFF) (Filed on 10/9/2009) (Entered: 02/22/2010)
241 MOTION for Leave to File [Proposed] Reply to Plaintiffs Brief on Order to Show Cause filed by Burger King Corporation. (Attachments: # 1 [Proposed] Reply to Plaintiffs Brief on Order to Show Cause Re Production of Surveys)(Joblove, Michael) (Filed on 10/13/2009) (Entered: 10/13/2009)
242 Proposed Order re 241 MOTION for Leave to File [Proposed] Reply to Plaintiffs Brief on Order to Show Cause MOTION for Leave to File [Proposed] Reply to Plaintiffs Brief on Order to Show Cause by Burger King Corporation. (Joblove, Michael) (Filed on 10/13/2009) (Entered: 10/13/2009)
243 MOTION to Continue to Permit Defendant to Respond to Plaintiffs' Proposed Forms of Notice and to Meet and Confer re: Joint Notice filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Proposed Order, # 2 Affidavit)(Lah, Andrew) (Filed on 10/13/2009) (Entered: 10/13/2009)
244 Memorandum in Opposition re 241 MOTION for Leave to File [Proposed] Reply to Plaintiffs Brief on Order to Show Cause MOTION for Leave to File [Proposed] Reply to Plaintiffs Brief on Order to Show Cause filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Robertson, Amy) (Filed on 10/14/2009) (Entered: 10/14/2009)
245 ORDER SETTING MEET AND CONFER RE PROPOSED FORMS OF NOTICE ON OCTOBER 15, 2009 by Judge Alsup denying 243 Motion to Continue (whalc2, COURT STAFF) (Filed on 10/14/2009) (Entered: 10/14/2009)
246 Statement re 226 Order on Motion to Certify Class, Order on Motion for Miscellaneous Relief, Order on Motion to Strike,,, Joint Statement (to be Supplemented) re: Proposed Forms of Class Member Notice by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 5)(Lah, Andrew) (Filed on 10/15/2009) (Entered: 10/15/2009)
248 Statement re 226 Order on Motion to Certify Class, Order on Motion for Miscellaneous Relief, Order on Motion to Strike,,, 246 Statement, Joint Statement re: Proposed Forms of Class Member Notice by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Lah, Andrew) (Filed on 10/15/2009) (Entered: 10/15/2009)
249 Statement re 248 Statement, Plaintiffs' Supplement to Joint Submission re Proposed Forms of Class Action Notice by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 10/15/2009) (Entered: 10/15/2009)
250 MOTION to Compel Joint Statement of Issues re Plaintiffs' Motion to Compel Rule 30(b)(6) Deposition filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Campins, Julia) (Filed on 10/15/2009) (Entered: 10/15/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 24 of 32

10/15/2009 10/16/2009 10/16/2009 10/19/2009 10/20/2009 10/20/2009
10/21/2009 10/21/2009 10/21/2009 10/21/2009 10/22/2009 10/30/2009 11/03/2009 11/04/2009 11/05/2009

251 MOTION to Compel Joint Statement of Issues re Plaintiffs' Motion to Compel Alteration Information filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Campins, Julia) (Filed on 10/15/2009) (Entered: 10/15/2009)
252 ORDER MODIFYING PROPOSED FORMS OF NOTICE AND APPOINTING CLASS COUNSEL. Signed by Judge Alsup on October 16, 2009. (whalc2, COURT STAFF) (Filed on 10/16/2009) (Entered: 10/16/2009)
253 ORDER DENYING DEFENDANT'S MOTION FOR STAY PENDING APPEAL OF DISCOVERY ORDER by Judge Alsup denying 235 Motion to Stay; granting 241 Motion for Leave to File (whalc2, COURT STAFF) (Filed on 10/16/2009) (Entered: 10/16/2009)
254 STIPULATION and Proposed Order Allowing the Filing of a Second Amended Complaint by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit A − Second Amended Complaint)(Campins, Julia) (Filed on 10/19/2009) (Entered: 10/19/2009)
255 Statement Re: Proposed Forms of Notice with Court's Modifications by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Lah, Andrew) (Filed on 10/20/2009) (Entered: 10/20/2009)
256 MOTION for Leave to File Motion for Reconsideration of 70−Day Portion of Order Denying Defendant's Motion for Stay Pending Appeal filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Plaintiffs' Proposed Motion, # 2 Declaration of Eric McSwain, # 3 Proposed Order)(Robertson, Amy) (Filed on 10/20/2009) (Entered: 10/20/2009)
257 ORDER DENYING LEAVE TO FILE SECOND AMENDED COMPLAINT. Signed by Judge Alsup on October 20, 2009. (whalc2, COURT STAFF) (Filed on 10/21/2009) (Entered: 10/21/2009)
258 ORDER DENYING LEAVE TO FILE MOTION FOR RECONSIDERATION by Judge Alsup denying 256 Motion for Leave to File (whalc2, COURT STAFF) (Filed on 10/21/2009) (Entered: 10/21/2009)
259 MOTION for Leave to File Motion for Reconsideation of the Court's October 16 Order Modifying Its September 25 Class Certification Order to Require an Opt−in Class filed by Burger King Corporation. (Attachments: # 1 [Proposed])(Joblove, Michael) (Filed on 10/21/2009) (Entered: 10/21/2009)
260 Proposed Order re 259 MOTION for Leave to File Motion for Reconsideation of the Court's October 16 Order Modifying Its September 25 Class Certification Order to Require an Opt−in Class by Burger King Corporation. (Joblove, Michael) (Filed on 10/21/2009) (Entered: 10/21/2009)
261 ORDER DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION AND APPROVING PROPOSED FORMS OF NOTICE by Judge Alsup denying 259 Motion for Leave to File (whalc2, COURT STAFF) (Filed on 10/22/2009) (Entered: 10/22/2009)
262 Statement re 257 Order Joint Submission Re: Filing of Second Amended Complaint by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 10/30/2009) (Entered: 10/30/2009)
263 ORDER by Judge James Larson Granting Motion to Compel Alteration Information 251 Motion to Compel (jlsec, COURT STAFF) (Filed on 11/3/2009) (Entered: 11/03/2009)
264 Letter from Plaintiffs to Magistrate Judge Larson re: Joint Statements Concerning Pending Discovery. (Lee, Bill) (Filed on 11/4/2009) (Entered: 11/04/2009)
265 AMENDED NOTICE OF APPEAL by Burger King Corporation from September 25, 2009 Discovery Order [Docket No. 222] compelling production of privileged documents and subsequent orders altering or modifying original discovery order [docket nos. 238, 253, 258]. Filing fee $ 455. Appeal Record due by 12/7/2009. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Rodgers, Maureen) (Filed on 11/5/2009) (Entered: 11/05/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 25 of 32

11/05/2009 11/06/2009 11/17/2009 11/25/2009 12/03/2009 12/07/2009
12/10/2009
12/11/2009 12/14/2009 12/14/2009 12/15/2009 12/21/2009
12/21/2009 12/23/2009

266 RECEIVED: Civil Appeals Docketing Statement forwarded to 9th Circuit US Court of Appeals by Burger King Corporation re 265 Amended Notice of Appeal, (Attachments: # 1 Representation Statement)(Rodgers, Maureen) (Filed on 11/5/2009) (Entered: 11/05/2009)
267 Statement [Joint] of Issues Re: Plaintiffs' Request for Leave to Serve Six Additional Interrogatories by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Robertson, Amy) (Filed on 11/6/2009) (Entered: 11/06/2009)
268 ORDER by Judge James Larson Granting Motion to Compel Deposition 250 Motion to Compel (jlsec, COURT STAFF) (Filed on 11/17/2009) (Entered: 11/17/2009)
269 ORDER GRANTING PLAINTIFFS' REQUEST FOR LEAVE TO SERVE ADDITIONAL INTERROGATORIES re 267 Statement filed by Joseph Wellner, Miguel Castaneda, Katherine Corbett. Signed by Judge James Larson on 11/25/09. (jlsec, COURT STAFF) (Filed on 11/25/2009) (Entered: 11/25/2009)
270 NOTICE by Miguel Castaneda, Katherine Corbett, Joseph Wellner Plaintiffs' List of Expert Issues (Robertson, Amy) (Filed on 12/3/2009) (Entered: 12/03/2009)
271 MOTION for Extension of Time to Complete Discovery Plaintiffs Administrative Motion for Leave to Take Additional Depositions and a Limited Extension of the Non−Expert Discovery Cut−Off filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Affidavit Declaration of Amy F. Robertson, # 2 Proposed Order)(Robertson, Amy) (Filed on 12/7/2009) (Entered: 12/07/2009)
272 Memorandum in Opposition re 271 MOTION for Extension of Time to Complete Discovery Plaintiffs Administrative Motion for Leave to Take Additional Depositions and a Limited Extension of the Non−Expert Discovery Cut−Off filed byBurger King Corporation. (Attachments: # 1 Exhibit A − Declaration of Michael D. Joblove in Support of Defendant Burger King Corporation's Response to Plaintiffs' Administrative Motion for Leave to Take Additional Depositions and a Limited Extension of the Non−Expert Discovery Cut−off)(Joblove, Michael) (Filed on 12/10/2009) (Entered: 12/10/2009)
273 Letter from Amy F. Robertson re: Docket No. 271. (Robertson, Amy) (Filed on 12/11/2009) (Entered: 12/11/2009)
274 OBJECTIONS to re 269 Order, of Magistrate Judge James Larson dated November 25, 2009 re additional interrogatories by Burger King Corporation. (Rodgers, Maureen) (Filed on 12/14/2009) (Entered: 12/14/2009)
275 Declaration of Adam Friedenberg in Support of Defendant Burger King Corporation's Objections to Magistrate Judge James Larson's November 25, 2009 Discovery Order [Docket No. 269] re additional interrogatories filed byBurger King Corporation. (Rodgers, Maureen) (Filed on 12/14/2009) (Entered: 12/14/2009)
276 ORDER RE MOTIONS TO TAKE ADDITIONAL DEPOSITIONS AND EXTENDING NON−EXPERT DISCOVERY CUT−OFF by Judge Alsup granting 271 Motion for Extension of Time to Complete Discovery (whalc2, COURT STAFF) (Filed on 12/15/2009) (Entered: 12/15/2009)
277 *** FILED IN ERROR. DOCUMENT REMOVED PER ORDER # 278 . *** ORDER DENYING DEFENDANT BURGER KING CORPORATION'S OBJECTIONS TO NOVEMBER 25 DISCOVERY ORDER. Signed by Judge Alsup on December 21, 2009. (whalc2, COURT STAFF) (Filed on 12/21/2009) (Main Document 277 replaced on 12/22/2009) (ewn, COURT STAFF). Modified on 12/22/2009 (ewn, COURT STAFF). (Entered: 12/21/2009)
278 ORDER TO REMOVE DOCUMENT FROM ECF (DKT. NO. 277). Signed by Judge Alsup on December 21, 2009. (whalc2, COURT STAFF) (Filed on 12/21/2009) (Entered: 12/21/2009)
279 ORDER DENYING DEFENDANT BURGER KING CORPORATION'S OBJECTIONS TO NOVEMBER 25 DISCOVERY ORDER. Signed by Judge Alsup on December 23, 2009. (whalc2, COURT STAFF) (Filed on 12/23/2009) (Entered: 12/23/2009)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 26 of 32

12/24/2009
12/29/2009 01/14/2010 01/20/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010
02/05/2010

280 MOTION for Leave to File a Motion for Reconsideration Pursuant to Local Rule 7−9 filed by Burger King Corporation. (Attachments: # 1 Exhibit [Proposed] Unopposed Motion for Reconsideation of December 23 Order Denying Burger King Corporation's Objections to November 25, Discovery Report, # 2 Proposed Order Granting Defendant's Local Rule 7−9 Motion for Leave to File a Motion for Reconsideration)(Joblove, Michael) (Filed on 12/24/2009) (Entered: 12/24/2009)
281 ORDER GRANTING DEFENDANT BURGER KING CORPORATION'S MOTION FOR RECONSIDERATION AND GRANTING IN PART OBJECTIONS TO NOVEMBER 25 DISCOVERY ORDER by Judge Alsup granting 280 Motion for Leave to File (whalc2, COURT STAFF) (Filed on 12/29/2009) (Entered: 12/29/2009)
282 MOTION Plaintiffs' Administrative Motion for Clarification Concerning the Court's December 29, 2009 Order re 281 Order on Motion for Leave to File filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Declaration of Timothy P. Fox)(Fox, Timothy) (Filed on 1/14/2010) (Entered: 01/14/2010)
283 ORDER RE PLAINTIFFS' MOTION FOR CLARIFICATION OF DECEMBER 29 ORDER by Judge Alsup granting in part and denying in part 282 Motion (whalc2, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
284 MOTION for Extension of Time to Complete Discovery and To Take Individualized Discovery As To Opt−In Plaintiffs filed by Burger King Corporation. Motion Hearing set for 2/18/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)
285 Declaration of Adam Friedenberg in Support of 284 MOTION for Extension of Time to Complete Discovery and To Take Individualized Discovery As To Opt−In Plaintiffs filed byBurger King Corporation. (Attachments: # 1 Exhibits A−C)(Related document(s) 284 ) (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)
286 Declaration of Maureen Rodgers in Support of 284 MOTION for Extension of Time to Complete Discovery and To Take Individualized Discovery As To Opt−In Plaintiffs filed byBurger King Corporation. (Attachments: # 1 Exhibits A−D)(Related document(s) 284 ) (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)
287 Declaration of Michael D. Joblove in Support of 284 MOTION for Extension of Time to Complete Discovery and To Take Individualized Discovery As To Opt−In Plaintiffs filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 284 ) (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)
288 Proposed Order re 284 MOTION for Extension of Time to Complete Discovery and To Take Individualized Discovery As To Opt−In Plaintiffs by Burger King Corporation. (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)
289 MOTION To File Document Under Seal filed by Burger King Corporation. (Rodgers, Maureen) (Filed on 2/5/2010) (Entered: 02/05/2010)
290 Proposed Order re 289 MOTION To File Document Under Seal by Burger King Corporation. (Rodgers, Maureen) (Filed on 2/5/2010) (Entered: 02/05/2010)
291 CERTIFICATE OF SERVICE 287 by Burger King Corporation (Rodgers, Maureen) (Filed on 2/5/2010) Modified on 2/9/2010 (sis, COURT STAFF). (Entered: 02/05/2010)
292 MOTION to Shorten Time For Hearing on Motion To Extend Discovery Cut−Off and To Take Individualized Discovery As To Opt−In Plaintiffs filed by Burger King Corporation. (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)
293 Declaration of Adam Friedenberg in Support of 292 MOTION to Shorten Time For Hearing on Motion To Extend Discovery Cut−Off and To Take Individualized Discovery As To Opt−In Plaintiffs filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 292 ) (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)
294 Proposed Order re 292 MOTION to Shorten Time For Hearing on Motion To Extend Discovery Cut−Off and To Take Individualized Discovery As To Opt−In Plaintiffs by Burger King Corporation. (Friedenberg, Adam) (Filed on 2/5/2010) (Entered: 02/05/2010)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 27 of 32

02/05/2010 02/08/2010 02/11/2010 02/11/2010 02/11/2010 02/11/2010
02/11/2010
02/11/2010 02/12/2010 02/12/2010 02/12/2010 02/12/2010 02/12/2010 02/12/2010

313 FILED UNDER SEAL− EXHIBIT A re 287 Declaration in Support, filed byBurger King Corporation. (Related document(s) 287 ) (sis, COURT STAFF) (Filed on 2/5/2010) (Entered: 02/19/2010)
295 TENTATIVE ORDER GRANTING DEFENDANT'S MOTION TO EXTEND DISCOVERY CUT−OFF AND TO TAKE INDIVIDUALIZED DISCOVERY AS TO OPT−IN PLAINTIFFS. Signed by Judge Alsup on February 8, 2010. (whalc2, COURT STAFF) (Filed on 2/8/2010) (Entered: 02/08/2010)
296 Memorandum in Opposition re 284 MOTION for Extension of Time to Complete Discovery and To Take Individualized Discovery As To Opt−In Plaintiffs filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 2/11/2010) (Entered: 02/11/2010)
297 Declaration of Bill Lann Lee in Support of 296 Memorandum in Opposition to Motion to Extend Discovery Cut−Off and to Take Individualized Discovery filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 296 ) (Lah, Andrew) (Filed on 2/11/2010) (Entered: 02/11/2010)
298 Proposed Order re 296 Memorandum in Opposition to Motion for Extension of Time to Complete Discovery and To Take Individualized Discovery by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 2/11/2010) (Entered: 02/11/2010)
299 MOTION for Partial Summary Judgment as to Violations of Applicable Disability Access Standards in Restaurant Number 2055 filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. Motion Hearing set for 3/18/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Robertson, Amy) (Filed on 2/11/2010) (Entered: 02/11/2010)
300 Declaration of Amy F. Robertson in Support of 299 MOTION for Partial Summary Judgment as to Violations of Applicable Disability Access Standards in Restaurant Number 2055 filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibits 1−5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibits 9−12)(Related document(s) 299 ) (Robertson, Amy) (Filed on 2/11/2010) (Entered: 02/11/2010)
301 MOTION for Partial Summary Judgment and Memorandum of Points and Authorities filed by Burger King Corporation. Motion Hearing set for 3/8/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Joblove, Michael) (Filed on 2/11/2010) (Entered: 02/11/2010)
302 ERRATA re 299 MOTION for Partial Summary Judgment as to Violations of Applicable Disability Access Standards in Restaurant Number 2055 [to add Notice of Motion] by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Robertson, Amy) (Filed on 2/12/2010) (Entered: 02/12/2010)
303 Reply Memorandum re 284 MOTION for Extension of Time to Complete Discovery and To Take Individualized Discovery As To Opt−In Plaintiffs filed byBurger King Corporation. (Friedenberg, Adam) (Filed on 2/12/2010) (Entered: 02/12/2010)
304 Declaration of Adam Friedenberg in Support of 303 Reply Memorandum filed byBurger King Corporation. (Attachments: # 1 Exhibit A)(Related document(s) 303 ) (Friedenberg, Adam) (Filed on 2/12/2010) (Entered: 02/12/2010)
305 Renotice motion hearing (Motion for Partial Summary Judgment and Memorandum of Points and Authorities) filed byBurger King Corporation. Motion Hearing set for 3/18/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Joblove, Michael) (Filed on 2/12/2010) (Entered: 02/12/2010)
307 USCA Case Number 10−15310 Ninth Circuit for 265 Amended Notice of Appeal, filed by Burger King Corporation. (sis, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/16/2010)
308 ORDER of USCA − Appellee's motion to file combined reply is granted; Appellant's motion for extension of time to file reply is granted; appellee's motion to dismiss this appeal for lack of jurisdiction is granted; appellant's alternative motion to construe appeal as petition for writ of mandamus is granted; accordingly, petition is denied as to

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 28 of 32

02/12/2010 02/16/2010 02/17/2010
02/18/2010 02/18/2010 02/19/2010 02/23/2010 02/25/2010 02/25/2010
02/25/2010 02/26/2010 02/26/2010
03/03/2010 03/03/2010

265 Amended Notice of Appeal, filed by Burger King Corporation (sis, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/16/2010)
309 ORDER of USCA − The court grants the petition for permission to appeal the District Court's order granting in part and denying in part class action certification as to 265 Amended Notice of Appeal, filed by Burger King Corporation (sis, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/16/2010)
306 ORDER REGARDING INTERLOCUTORY APPEAL. Signed by Judge Alsup on February 16, 2010. (whalc2, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/16/2010)
310 FINAL ORDER GRANTING DEFENDANT'S MOTION TO EXTEND DISCOVERY CUT−OFF AND TO TAKE INDIVIDUALIZED DISCOVERY AS TO OPT−IN PLAINTIFFS by Judge Alsup granting 284 Motion for Extension of Time to Complete Discovery; finding as moot 292 Motion to Shorten Time (whalc2, COURT STAFF) (Filed on 2/17/2010) (Entered: 02/17/2010)
311 ORDER GRANTING DEFENDANT BURGER KING CORPORATION'S MOTION TO FILE DOCUMENT UNDER SEAL by Judge Alsup granting 289 Motion (whalc2, COURT STAFF) (Filed on 2/18/2010) (Entered: 02/18/2010)
USCA Appeal Fees received $ 455 receipt number 34611042549 re 265 Amended Notice of Appeal, filed by Burger King Corporation (sis, COURT STAFF) (Filed on 2/18/2010) (Entered: 02/22/2010)
312 RESPONSE to re 306 Order (The Parties' Joint Response to the Court's Order Regarding Interlocutory Appeal, Notice of Settlement in Principle, and Motion to Revise Existing Scheduling Orders) by Burger King Corporation. (Joblove, Michael) (Filed on 2/19/2010) (Entered: 02/19/2010)
320 ORDER RE PARTIES' MOTION TO REVISE EXISTING SCHEDULING ORDERS. Signed by Judge Alsup on February 23, 2010. (whalc2, COURT STAFF) (Filed on 2/23/2010) (Entered: 02/23/2010)
321 Memorandum in Opposition re 301 MOTION for Partial Summary Judgment and Memorandum of Points and Authorities filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Fox, Timothy) (Filed on 2/25/2010) (Entered: 02/25/2010)
322 DECLARATION of Timothy P. Fox in Opposition to 301 MOTION for Partial Summary Judgment and Memorandum of Points and Authorities filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Attachments: # 1 Exhibits 1−2, # 2 Exhibits 3−4, # 3 Exhibits 5−14)(Related document(s) 301 ) (Fox, Timothy) (Filed on 2/25/2010) (Entered: 02/25/2010)
323 DECLARATION of Ashley K. Boothby in Opposition to 301 MOTION for Partial Summary Judgment and Memorandum of Points and Authorities filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Related document(s) 301 ) (Fox, Timothy) (Filed on 2/25/2010) (Entered: 02/25/2010)
324 Memorandum in Opposition 299 to Plaintiffs' Motion for Partial Summary Judgment as to Restaurant #2055 filed by Burger King Corporation. (Joblove, Michael) (Filed on 2/26/2010) Modified on 3/1/2010 (sis, COURT STAFF). (Entered: 02/26/2010)
325 Declaration of Catherine Van Horn in Support of 324 Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment as to Restaurant #2055 filed byBurger King Corporation. (Attachments: # 1 Exhibit "A", # 2 Exhibit "B", # 3 Exhibit "C", # 4 Exhibit "D", # 5 Exhibit "E", # 6 Exhibit "F", # 7 Exhibit "G")(Related document(s) 324 ) (Joblove, Michael) (Filed on 2/26/2010) (Entered: 02/26/2010)
326 ORDER REQUESTING UPDATE ON STATUS OF SETTLEMENT. Signed by Judge Alsup on March 3, 2010. (whalc2, COURT STAFF) (Filed on 3/3/2010) (Entered: 03/03/2010)
327 Joint MOTION for Extension of Time to File Response/Reply as to 321 Memorandum in Opposition, 324 Memorandum in Opposition for Summary Judgment filed by Burger King Corporation, Miguel Castaneda, Katherine Corbett, Joseph Wellner.

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 29 of 32

03/03/2010
03/03/2010 03/04/2010 03/05/2010 03/05/2010
03/05/2010
03/05/2010 03/08/2010 03/08/2010 03/08/2010 03/08/2010 03/09/2010 03/09/2010

(Joblove, Michael) (Filed on 3/3/2010) (Entered: 03/03/2010)
328 Proposed Order re 327 Joint MOTION for Extension of Time to File Response/Reply as to 321 Memorandum in Opposition, 324 Memorandum in Opposition for Summary JudgmentJoint MOTION for Extension of Time to File Response/Reply as to 321 Memorandum in Opposition, 324 Memorandum in Opposition for Summary Judgment by Burger King Corporation, Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Joblove, Michael) (Filed on 3/3/2010) (Entered: 03/03/2010)
329 ORDER GRANTING EXTENSION OF TIME TO FILE REPLIES by Judge Alsup granting 327 Motion for Extension of Time to File Response/Reply (whalc2, COURT STAFF) (Filed on 3/3/2010) (Entered: 03/03/2010)
330 RESPONSE to re 326 Order Requesting Update on Settlement by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 3/4/2010) (Entered: 03/04/2010)
331 NOTICE of Joint Submission of Settlement Agreement by Miguel Castaneda, Katherine Corbett, Joseph Wellner (Fox, Timothy) (Filed on 3/5/2010) Modified on 3/8/2010 (wsn, COURT STAFF). (Entered: 03/05/2010)
332 MOTION to Stay re 331 Notice (Other) PARTIES' JOINT STIPULATION AND MOTION TO STAY PENDING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, TO SCHEDULE PRELIMINARY APPROVAL HEARING, AND TO REVISE EXISTING SCHEDULING ORDERS filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lee, Bill) (Filed on 3/5/2010) (Entered: 03/05/2010)
333 Proposed Order re 332 MOTION to Stay re 331 Notice (Other) PARTIES' JOINT STIPULATION AND MOTION TO STAY PENDING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, TO SCHEDULE PRELIMINARY APPROVAL HEARING, AND TO REVISE EXISTING SCHEDULING ORDERS MOTION to Stay re 331 Notice (Other) PARTIES' JOINT STIPULATION AND MOTION TO STAY PENDING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, TO SCHEDULE PRELIMINARY APPROVAL HEARING, AND TO REVISE EXISTING SCHEDULING ORDERS by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lee, Bill) (Filed on 3/5/2010) (Entered: 03/05/2010)
334 MANDATE of USCA − Judgment of this Court, entered 02/05/10, takes effect this date as to 265 Amended Notice of Appeal, filed by Burger King Corporation (wsn, COURT STAFF) (Filed on 3/5/2010) (Entered: 03/08/2010)
335 CLERKS Letter Spreading Mandate to Counsel (wsn, COURT STAFF) (Filed on 3/8/2010) (Entered: 03/08/2010)
336 ORDER RE SCHEDULE FOR PENDING MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT by Judge Alsup granting in part and denying in part 332 Motion to Stay (whalc2, COURT STAFF) (Filed on 3/8/2010) (Entered: 03/08/2010)
337 Joint MOTION to Stay re 336 Order on Motion to Stay Filing of Reply Memoranda of Law in Support of Parties' Respective Motions for Summary Judgment filed by Burger King Corporation. (Joblove, Michael) (Filed on 3/8/2010) (Entered: 03/08/2010)
338 Proposed Order re 337 Joint MOTION to Stay re 336 Order on Motion to Stay Filing of Reply Memoranda of Law in Support of Parties' Respective Motions for Summary Judgment by Burger King Corporation. (Joblove, Michael) (Filed on 3/8/2010) (Entered: 03/08/2010)
339 ORDER TO STAY FILING OF REPLIES IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT by Judge Alsup granting 337 Motion to Stay (whalc2, COURT STAFF) (Filed on 3/9/2010) (Entered: 03/09/2010)
340 Joint MOTION for Settlement, MOTION Preliminary Approval of Stipulation and Settlement Agreement filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. Motion Hearing set for 3/18/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Declaration of Timothy P. Fox, # 2 Declaration of Bill Lann Lee)(Fox, Timothy) (Filed on 3/9/2010) (Entered: 03/09/2010)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 30 of 32

03/09/2010 03/18/2010
03/19/2010 03/19/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010 05/17/2010

341 Proposed Order re 340 Joint MOTION for Settlement MOTION Preliminary Approval of Stipulation and Settlement Agreement by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Fox, Timothy) (Filed on 3/9/2010) (Entered: 03/09/2010)
344 Minute Entry: Motion Hearing held on 3/18/2010 before William Alsup (Date Filed: 3/18/2010) re 340 Joint MOTION for Settlement MOTION Preliminary Approval of Stipulation and Settlement Agreement filed by Joseph Wellner, Miguel Castaneda, Katherine Corbett. Final Approval Hearing set for 7/8/2010 08:00 AM. (Court Reporter Lydia Zinn.) (dt, COURT STAFF) (Date Filed: 3/18/2010) (Entered: 03/19/2010)
342 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT by Judge Alsup granting 340 (whalc2, COURT STAFF) (Filed on 3/19/2010) (Entered: 03/19/2010)
343 ORDER RE FORM OF APPLICATION FOR ATTORNEY'S FEES. Signed by Judge Alsup on March 19, 2010. (whalc2, COURT STAFF) (Filed on 3/19/2010) (Entered: 03/19/2010)
345 MOTION for Settlement Motion for an Award of Attorneys' Fees and Costs filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. Motion Hearing set for 7/7/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Lah, Andrew) (Filed on 5/17/2010) (Entered: 05/17/2010)
346 Declaration of Bill Lann Lee in Support of Motion for Final Approval and Motion for an Award of Attorneys' Fees filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) (Entered: 05/17/2010)
347 Declaration of Mari Mayeda in Support of Motion for an Award of Attorneys' Fees filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) (Entered: 05/17/2010)
348 Declaration of Amy Robertson in Support of Motion for Final Approval of Settlement and an Award of Attorneys' Fees filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) (Entered: 05/17/2010)
349 Declaration of Richard Pearl in Support of Motion for an Award of Attorneys' Fees filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) (Entered: 05/17/2010)
350 Joint MOTION for Settlement Motion for Final Approval of Class Action Settlement filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. Motion Hearing set for 7/8/2010 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Lah, Andrew) (Filed on 5/17/2010) (Entered: 05/17/2010)
351 Declaration of Miguel Castaneda in Support of 350 Motion for Final Approval filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) Modified on 5/18/2010 (wsn, COURT STAFF). (Entered: 05/17/2010)
352 Declaration of Katherine Corbett in Support of 350 Motion for Final Approval of Class Action Settlement filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) Modified on 5/18/2010 (wsn, COURT STAFF). (Entered: 05/17/2010)
353 Declaration of Joseph Wellner in Support of 350 Motion for Final Approval of Class Action Settlement filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) Modified on 5/18/2010 (wsn, COURT STAFF). (Entered: 05/17/2010)
354 Declaration of Claudia Center in Support of 350 Motion for Final Approval of Class Action Settlement filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) Modified on 5/18/2010 (wsn, COURT STAFF). (Entered: 05/17/2010)
355 Declaration of Laurence Paradis in Support of 350 Motion for Final Approval of Class Action Settlement filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) Modified on 5/18/2010 (wsn, COURT STAFF). (Entered: 05/17/2010)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 31 of 32

05/17/2010 05/17/2010 06/15/2010
07/07/2010 07/09/2010 07/12/2010 08/05/2010
08/06/2010 08/27/2010 10/26/2010 10/26/2010 11/01/2010 11/02/2010 12/07/2010 03/09/2011

356 Declaration of Lance Blair in Support of 350 Motion for Final Approval of Class Action Settlement filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) Modified on 5/18/2010 (wsn, COURT STAFF). (Entered: 05/17/2010)
357 Proposed Order re 350 Joint MOTION for Settlement Motion for Final Approval of Class Action Settlement, 345 MOTION for Settlement Motion for an Award of Attorneys' Fees and Costs by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Lah, Andrew) (Filed on 5/17/2010) (Entered: 05/17/2010)
358 NOTICE by Miguel Castaneda, Katherine Corbett, Joseph Wellner re 350 Joint MOTION for Settlement Motion for Final Approval of Class Action Settlement, 345 MOTION for Settlement Motion for an Award of Attorneys' Fees and Costs Plaintiffs Update on Objections and Opt−Outs to Settlement, and Supplement to Their Motion for an Award of Attorneys Fees and Costs (Attachments: # 1 Declaration of Timothy P. Fox in Support of Plaintiffs Update on Objections and Opt−outs to Settlement, and Supplement to Their Motion for an Award of Attorneys Fees and Costs, # 2 Supplemental Declaration of Lance P. Blair Regarding Notice and Claims Administration)(Fox, Timothy) (Filed on 6/15/2010) (Entered: 06/15/2010)
359 AMENDED DOCUMENT by Miguel Castaneda, Katherine Corbett, Joseph Wellner. REVISED SETTLEMENT AGREEMENT AND EXHIBITS. (Lah, Andrew) (Filed on 7/7/2010) (Entered: 07/07/2010)
360 Minute Entry: Settlement approved. Motion taken under submission. Court to prepare order.Motion Hearing held on 7/8/2010 before William Alsup (Date Filed: 7/9/2010). (Court Reporter Kathy Wyatt.) (sis, COURT STAFF) (Date Filed: 7/9/2010) (Entered: 07/09/2010)
361 ORDER GRANTING MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT by Judge Alsup granting 345 Motion for Settlement; granting 350 Motion for Settlement (whalc2, COURT STAFF) (Filed on 7/12/2010) (Entered: 07/12/2010)
362 ORDER of USCA − Pursuant to the stipulation of the parties, this appeal is voluntarily dismissed. This order served on the district court shall act as and for the mandate of this court; as to 265 Amended Notice of Appeal, filed by Burger King Corporation. USCA No. 10−15310 (wsn, COURT STAFF) (Filed on 8/5/2010) (Entered: 08/06/2010)
363 CLERKS Letter Spreading Mandate to Counsel. USCA No. 10−15310 (wsn, COURT STAFF) (Filed on 8/6/2010) (Entered: 08/06/2010)
364 NOTICE of Change of Address by Andrew Lah (Lah, Andrew) (Filed on 8/27/2010) (Entered: 08/27/2010)
365 MOTION to Relate Case filed by Kurt A Franklin. (Franklin, Kurt) (Filed on 10/26/2010) (Entered: 10/26/2010)
366 Proposed Order re 365 MOTION to Relate Case by Kurt A Franklin. (Franklin, Kurt) (Filed on 10/26/2010) (Entered: 10/26/2010)
367 Statement of Non−Opposition to Motion to Relate Case to Newport v. Burger King Corporation, Case No. 10−4511 by Burger King Corporation. (Rodgers, Maureen) (Filed on 11/1/2010) (Entered: 11/01/2010)
368 ORDER by Judge William Alsup granting 365 Motion to Relate Case. Case 10−4511 now related to 08−4262. (sis, COURT STAFF) (Filed on 11/2/2010) (Entered: 11/02/2010)
369 NOTICE of Change of Address by Linda D. Kilb : NOTICE OF CHANGE OF ADDRESS FOR DREDF (Kilb, Linda) (Filed on 12/7/2010) (Entered: 12/07/2010)
370 MOTION to Relate Case UNOPPOSED ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED filed by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Campins, Julia) (Filed on 3/9/2011) (Entered: 03/09/2011)

Case: 3:08-cv-4262 As of: 06/11/2019 10:12 AM PDT 32 of 32

03/09/2011 03/09/2011 03/14/2011 06/16/2011
07/18/2011

371 Declaration of Julia Campins IN SUPPORT OF UNOPPOSED ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED filed byMiguel Castaneda, Katherine Corbett, Joseph Wellner. (Campins, Julia) (Filed on 3/9/2011) (Entered: 03/09/2011)
372 Proposed Order GRANTING ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED by Miguel Castaneda, Katherine Corbett, Joseph Wellner. (Campins, Julia) (Filed on 3/9/2011) (Entered: 03/09/2011)
373 ORDER RELATING CASE. Signed by Judge William Alsup on 3/14/11. (bjtS, COURT STAFF) (Filed on 3/14/2011) Modified on 3/15/2011 (wsn, COURT STAFF). (Entered: 03/14/2011)
374 Transcript of Proceedings held on May 27, 2011, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan, RPR, CRR, CSR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 7/7/2011. Redacted Transcript Deadline set for 7/18/2011. Release of Transcript Restriction set for 9/14/2011. (Sullivan, Katherine) (Filed on 6/16/2011) (Entered: 06/16/2011)
375 ORDER APPROVING VALLABHAPURAPU STIPULATED PROTECTIVE ORDER SUBJECT TO STATED CONDITIONS. Signed by Judge Alsup on July 18, 2011. (whalc2, COURT STAFF) (Filed on 7/18/2011) (Entered: 07/18/2011)

 
 09-17210

Court: Case Title:
Appeal From:
Date Filed:
Case Number: Case Type: Case Subtype:

This docket is current through 01/05/2010.
US COURT OF APPEALS FOR THE NINTH CIRCUIT
MIGUEL CASTANEDA, ET AL v. BURGER KING CORPORATION, ET AL
U.S. DISTRICT COURT FOR NORTHERN CALIFORNIA, SAN FRANCISCO
10/07/2009
CASE INFORMATION 09-17210
APPEALS
CIVIL
PRIVATE

Nature of Suit: Key Nature of Suit:

3446 AMERICANS W/DISABILITIES ACT-OTHR APPEALS (030) LOWER COURT INFORMATION

District: Lower Court Docket Number: Trial Judge(s): Court Reporter(s):
Date Filed: Date Order/Judgment: Date NOA Filed: Date COA Received:

0971-3 3:08-CV-04262-WHA WILLIAM H. ALSUP, U.S. DISTRICT JUDGE MARGO GURULE, PRO TEM COURT REPORTER SAHAR MCVICKAR DEBRA PAS 09/10/2008 09/25/2009 10/05/2009 10/06/2009

09-17210

Current Case(s): Relationship:
RELATED
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:

OTHER CASES

Lead Docket: 09-17210

Member Docket: Start Date:

-NAMES

10/13/2009

End Date: --

MIGUEL CASTANEDA PLAINTIFF - APPELLEE JULIA CAMPINS 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC SUITE 1800 1330 BROADWAY OAKLAND, CA 94612-2519 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203 LINDA D. KILB 510-644-2555 DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. 2212 6TH STREET BERKELEY, CA 94710 ANDREW LAH 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC SUITE 1800 1330 BROADWAY OAKLAND, CA 94612-2519 ANTONIO MICHAEL LAWSON 510-419-0940 LAWSON LAW OFFICES 209 160 FRANKLIN STREET OAKLAND, CA 94607 BILL LANN LEE, ESQUIRE 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC STE. 1800 1330 BROADWAY OAKLAND, CA 94612-2519 MARI MAYEDA 510-917-1622 MARI MAYEDA, ATTORNEY AT LAW P.O. BOX 5138

09-17210
Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone:

BERKELEY, CA 94705 AMY FARR ROBERTSON 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203
KATHERINE CORBETT PLAINTIFF - APPELLEE JULIA CAMPINS 510-839-6824 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 LINDA D. KILB 510-644-2555 ANDREW LAH 510-839-6824 ANTONIO MICHAEL LAWSON 510-419-0940 BILL LANN LEE, ESQUIRE 510-839-6824 MARI MAYEDA 510-917-1622 AMY FARR ROBERTSON 303-595-9700
JOSEPH WELLNER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED PLAINTIFF - APPELLEE JULIA CAMPINS 510-839-6824 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 LINDA D. KILB 510-644-2555 ANDREW LAH 510-839-6824 ANTONIO MICHAEL LAWSON 510-419-0940 BILL LANN LEE, ESQUIRE 510-839-6824 MARI MAYEDA 510-917-1622 AMY FARR ROBERTSON 303-595-9700

09-17210
Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type:

BURGER KING CORPORATION DEFENDANT - APPELLANT CLEMENT LEO GLYNN, ESQUIRE 925-210-2800 GLYNN & FINLEY, LLP ONE WALNUT CREEK CENTER SUITE 500 100 PRINGLE AVENUE WALNUT CREEK, CA 94596 ADAM FRIEDENBERG 925-210-2800 GLYNN & FINLEY, LLP ONE WALNUT CREEK CENTER SUITE 500 100 PRINGLE AVENUE WALNUT CREEK, CA 94596 MICHAEL D. JOBLOVE 305-349-2300 GENOVESE JOBLOVE & BATTISTA PA SUITE 4400 BANK OF AMERICA TOWER, 44TH FLOOR 100 SE SECOND ST. MIAMI, FL 33131 925-210-2800 JONATHAN E. PERLMAN, ESQUIRE 305-349-2300 GENOVESE JOBLOVE & BATTISTA PA BANK OF AMERICA TOWER, 44TH FLOOR 100 SE SECOND ST. MIAMI, FL 33131 925-210-2800 MAUREEN A. RODGERS 925-210-2800 GLYNN & FINLEY, LLP ONE WALNUT CREEK CENTER SUITE 500 100 PRINGLE AVENUE WALNUT CREEK, CA 94596
STRATEGIC RESTAURANTS ACQUISITION COMPANY II, LLC DEFENDANT

09-17210 ENTRY #: 14
13 12 11 10

DOCKET PROCEEDINGS

DATE: 01/05/2010

DESCRIPTION: FILED ORDER MEDIATION (PWS): ON JANUARY 5, 2010, A TELEPHONE CONFERENCE WAS HELD WITH CIRCUIT MEDIATOR PETER W. SHERWOOD. THIS CASE IS HELD IN ABEYANCE UNTIL MARCH 12, 2010. ON OR BEFORE MARCH 5, 2010, COUNSEL FOR APPELLANT IS REQUESTED TO CONTACT THE CIRCUIT MEDIATOR TO REPORT ON THE STATUS OF THE CASE. THE BRIEFING SCHEDULE PREVIOUSLY SET BY THE COURT IS VACATED. [7183814] (AF)

01/04/2010

FILED (ECF) APPELLANT BURGER KING CORPORATION UNOPPOSED MOTION TO EXTEND TIME TO FILE A REPLY UNTIL 01/19/2010. DATE OF SERVICE: 01/04/2010. [7182122] (MDJ)

12/28/2009

FILED (ECF) APPELLEES MIGUEL CASTANEDA, KATHERINE CORBETT AND JOSEPH WELLNER MOTION FOR MISCELLANEOUS RELIEF [MOTION TO FILE COMBINED REPLY AND RESPONSE]. DATE OF SERVICE: 12/28/2009. [7176566] (AFR)

12/24/2009

FILED (ECF) APPELLEES MIGUEL CASTANEDA, KATHERINE CORBETT AND JOSEPH WELLNER RESPONSE TO MOTION (MOTION (ECF FILING) ,MOTION (ECF FILING) MOTION TO STAY LOWER COURT ACTION). DATE OF SERVICE: 12/24/2009. [7175386] (AFR)

12/24/2009

FILED (ECF) APPELLANT BURGER KING CORPORATION RESPONSE TO MOTION (MOTION (ECF FILING) ,MOTION (ECF FILING) MOTION TO DISMISS THE CASE). DATE OF SERVICE: 12/24/2009. [7175384] (MDJ)

09-17210 9
8 7 6 5 4

12/22/2009

FILED ORDER MEDIATION (EPM): THE MEDIATION PROGRAM OF THE NINTH CIRCUIT COURT OF APPEALS FACILITATES SETTLEMENT WHILE APPEALS ARE PENDING. SEE FED. R. APP. P. 33 AND NINTH CIR. R. 33-1. THE COURT HAS SCHEDULED A TELEPHONE SETTLEMENT ASSESSMENT CONFERENCE, WITH COUNSEL ONLY, ON JANUARY 5, 2010, AT 11:00 A.M. PACIFIC (SAN FRANCISCO) TIME/2:00 P.M. EASTERN TIME, TO DISCUSS WHETHER THIS CASE IS APPROPRIATE FOR PARTICIPATION IN THE MEDIATION PROGRAM. THE BRIEFING SCHEDULE PREVIOUSLY SET BY THE COURT IS RESET AS FOLLOWS: APPELLANT SHALL FILE AN OPENING BRIEF ON OR BEFORE FEBRUARY 24, 2010; APPELLEES SHALL FILE AN ANSWERING BRIEF ON OR BEFORE MARCH 24, 2010; APPELLANT MAY FILE AN OPTIONAL REPLY BRIEF ON OR BEFORE APRIL 7, 2010. [7172139] (AF)

12/11/2009

FILED (ECF) APPELLEES MIGUEL CASTANEDA, KATHERINE CORBETT AND JOSEPH WELLNER MOTION TO DISMISS THE CASE. DATE OF SERVICE: 12/11/2009. [7160469] (AFR)

12/10/2009

ADDED ATTORNEY MAUREEN A. RODGERS FOR BURGER KING CORPORATION, IN CASE 09-17210. [7158623] (EL)

12/10/2009

FILED (ECF) NOTICE OF APPEARANCE OF MAUREEN RODGERS FOR APPELLANT BURGER KING CORPORATION. DATE OF SERVICE: 12/10/2009. [7158585] (MAR)

12/04/2009

FILED (ECF) APPELLEES MIGUEL CASTANEDA, KATHERINE CORBETT AND JOSEPH WELLNER RESPONSE TO MOTION (MOTION (ECF FILING) ,MOTION (ECF FILING) MOTION TO STAY LOWER COURT ACTION). DATE OF SERVICE: 12/04/2009. [7151696] (AFR)

12/02/2009

FILED (ECF) APPELLANT BURGER KING CORPORATION URGENT MOTION TO STAY LOWER COURT ACTION. DATE OF SERVICE: 12/02/2009. [7149453] (MDJ)

09-17210 3 2
1

10/09/2009

FILED (ECF) APPELLANT BURGER KING CORPORATION CIVIL APPEALS DOCKETING STATEMENT (FORM 6). DATE OF SERVICE: 10/09/2009. [7090032] (AF)

10/07/2009

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: YES. THE SCHEDULE IS SET AS FOLLOWS: CADS DUE BY ATTORNEY CLEMENT LEO GLYNN, ATTORNEY DUE ON 10/05/2009. TRANSCRIPT DUE FOR ORIG CLERK USDC, SAN FRANCISCO ON 12/04/2009. CERTIFICATE OF RECORD DUE 12/11/2009. APPELLANT BURGER KING CORPORATION OPENING BRIEF DUE 01/20/2010. APPELLEE MIGUEL CASTANEDA, APPELLEE KATHERINE CORBETT AND APPELLEE JOSEPH WELLNER ANSWERING BRIEF DUE 02/19/2010. APPELLANT'S OPTIONAL REPLY BRIEF IS DUE 14 DAYS AFTER SERVICE OF THE ANSWERING BRIEF. [7087118] (GR)

10/07/2009

ADDED ATTORNEY ANTONIO M. LAWSON FOR KATHERINE CORBETT JOSEPH WELLNER MIGUEL CASTANEDA, IN CASE 09-17210. [7087074] (GR)

 
 09-80158

Court: Case Title: Appeal From: Termed: Date Filed:
Case Number: Case Type: Case Subtype:

This docket is current through 03/03/2010. US COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL CASTANEDA, ET AL v. BURGER KING CORPORATION U.S. DISTRICT COURT FOR NORTHERN CALIFORNIA, SAN FRANCISCO 02/10/2010 10/13/2009 CASE INFORMATION
09-80158 APPEALS 23(F) PETITION PRIVATE (PET PERM APPEAL)

Key Nature of Suit:

APPEALS (030) LOWER COURT INFORMATION

District: Lower Court Docket Number: Trial Judge(s): Court Reporter(s): Date Filed: Date Order/Judgment: Date COA Received:

0971-3 3:08-CV-04262-WHA WILLIAM H. ALSUP, U.S. DISTRICT JUDGE DEBRA PAS 09/10/2008 09/25/2009 10/09/2009

Current Case(s): Relationship:
RELATED
Name:
Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:

OTHER CASES

Lead Docket: 09-17210

Member Docket: Start Date:

-NAMES

10/13/2009

End Date: --

MIGUEL CASTANEDA, ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED PLAINTIFF - PETITIONER BILL LANN LEE, ESQUIRE 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC STE. 1800 1330 BROADWAY OAKLAND, CA 94612-2519 JULIA CAMPINS 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC SUITE 1800 1330 BROADWAY OAKLAND, CA 94612-2519 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203 LINDA D. KILB 510-644-2555 DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. 2212 6TH STREET BERKELEY, CA 94710 ANDREW LAH, ESQUIRE 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC SUITE 1800 1330 BROADWAY OAKLAND, CA 94612-2519 MARI MAYEDA 510-917-1622 MARI MAYEDA, ATTORNEY AT LAW P.O. BOX 5138 BERKELEY, CA 94705

Attorney: Attorney Phone: Firm Name: Firm Address:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone:

AMY FARR ROBERTSON 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203
KATHERINE CORBETT, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED PLAINTIFF - PETITIONER BILL LANN LEE, ESQUIRE 510-839-6824 JULIA CAMPINS 510-839-6824 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 LINDA D. KILB 510-644-2555 ANDREW LAH, ESQUIRE 510-839-6824 MARI MAYEDA 510-917-1622 AMY FARR ROBERTSON 303-595-9700
JOSEPH WELLNER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED PLAINTIFF - PETITIONER BILL LANN LEE, ESQUIRE 510-839-6824 JULIA CAMPINS 510-839-6824 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 LINDA D. KILB 510-644-2555 ANDREW LAH, ESQUIRE 510-839-6824 MARI MAYEDA 510-917-1622 AMY FARR ROBERTSON 303-595-9700

Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone:

BURGER KING CORPORATION DEFENDANT - RESPONDENT ADAM FRIEDENBERG 925-210-2800 GLYNN & FINLEY, LLP ONE WALNUT CREEK CENTER SUITE 500 100 PRINGLE AVENUE WALNUT CREEK, CA 94596 CLEMENT LEO GLYNN, ESQUIRE 925-210-2800 GLYNN & FINLEY, LLP ONE WALNUT CREEK CENTER SUITE 500 100 PRINGLE AVENUE WALNUT CREEK, CA 94596 MICHAEL D. JOBLOVE 305-349-2300 GENOVESE JOBLOVE & BATTISTA PA SUITE 4400 BANK OF AMERICA TOWER, 44TH FLOOR 100 SE SECOND ST. MIAMI, FL 33131 925-210-2800 JONATHAN E. PERLMAN, ESQUIRE 305-349-2300 GENOVESE JOBLOVE & BATTISTA PA BANK OF AMERICA TOWER, 44TH FLOOR 100 SE SECOND ST. MIAMI, FL 33131 925-210-2800

ENTRY #: 10 9 8
7 6

DOCKET PROCEEDINGS

DATE: 03/03/2010

DESCRIPTION: ADDED ATTORNEY ANDREW LAH FOR KATHERINE CORBETT JOSEPH WELLNER MIGUEL CASTANEDA, IN CASE 09-80158. [7251819] (MA)

03/03/2010

COURT CORRECTION: TERMINATED ANDREW LAH (DUPLICATE RECORD) FOR JOSEPH WELLNER, KATHERINE CORBETT AND MIGUEL CASTANEDA IN 09-80158 [7251812] (MA)

02/10/2010

ORDER FILED (WILLIAM C. CANBY AND RONALD M. GOULD) DISABILITY RIGHTS LEGAL CENTER AND DISABILITY RIGHTS ADVOCATES??? OPPOSED MOTION FOR LEAVE TO BECOME AMICI CURIAE IS GRANTED. THE BRIEF SUBMITTED ON OCTOBER 21, 2009 IN SUPPORT OF THE PETITION FOR PERMISSION TO APPEAL IS ORDERED FILED. THE COURT, IN ITS DISCRETION, GRANTS THE PETITION FOR PERMISSION TO APPEAL THE DISTRICT COURT???S SEPTEMBER 25, 2009 ORDER GRANTING IN PART AND DENYING IN PART CLASS ACTION CERTIFICATION. SEE FED. R. CIV. P. 23(F); CHAMBERLAN V. FORD MOTOR CO., 402 F.3D 952 (9TH CIR. 2005) (PER CURIAM). WITHIN 14 DAYS AFTER THE DATE OF THIS ORDER, PETITIONER SHALL PERFECT THE APPEAL IN ACCORDANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 5(D). [7227626] (WL)

11/10/2009

FILED (ECF) RESPONDENT BURGER KING CORPORATION CORRECTED ANSWER TO 1292B PETITION. DATE OF SERVICE: 11/10/2009. [7125647]--[COURT UPDATE: CORRECTED DOCKET TEXT.11/10/2009 BY MA] (AF)

11/05/2009

FILED (ECF) RESPONDENT BURGER KING CORPORATION RESPONSE OPPOSING MOTION (BRIEF SUBMITTED FOR REVIEW (ECF FILING) ,MOTION (ECF FILING) ,MOTION (ECF FILING) MOTION TO BECOME AMICUS). DATE OF SERVICE: 11/05/2009. [7120866] (AF)

5

11/04/2009

FILED (ECF) RESPONDENT BURGER KING

CORPORATION ANSWER TO 1292B PETITION. DATE OF

SERVICE: 11/04/2009. [7119726] (AF)

4

10/29/2009

FILED ORDER MOATT: (CP) THE COURT GRANTS

RESPONDENT???S MOTION FOR EXTENSION OF TIME

UNTIL NOVEMBER 4, 2009, TO FILE AN ANSWER TO THE

PETITION FOR PERMISSION TO APPEAL PURSUANT TO

FEDERAL RULE OF CIVIL PROCEDURE 23(F). THE

ANSWER IS DUE NOVEMBER 4, 2009. THE AMICUS

BRIEF IN SUPPORT OF PETITIONERS AND MOTION FOR

LEAVE TO FILE THAT BRIEF BY THE DISABILITY

RIGHTS LEGAL CENTER ARE REFERRED TO THE PANEL

THAT WILL DISPOSE OF THIS PETITION AFTER

NOVEMBER 4, 2009. [7113140] (DAF)

3

10/21/2009

FILED (ECF) RESPONDENT BURGER KING

CORPORATION MOTION TO EXTEND TIME TO FILE A

RESPONSE UNTIL 11/04/2009. DATE OF SERVICE:

10/21/2009. [7103518] (AF)

2

10/21/2009

SUBMITTED (ECF) AMICUS BRIEF FOR REVIEW AND

FILED MOTION TO BECOME AMICUS CURIAE.

SUBMITTED BY DISABILTIY RIGHTS LEGAL CENTER,

DISABILITY RIGHTS ADVOCATES, THE IMPACT FUND.

DATE OF SERVICE: 10/21/2009. [7103509] (SP)

1

10/09/2009

FILED ON 10/09/2009 ORIGINAL AND 4 COPIES OF

PETITION FOR PERMISSION TO APPEAL PURSUANT TO

RULE 23(F). SERVED ON 10/09/2009. [7093595] (HC)

 
 Court: Case Title: Appeal From: Date Filed:
Case Number: Fee Status: Case Type: Case Subtype:

This docket is current through 05/12/2010.
US COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL CASTANEDA, ET AL v. BURGER KING CORPORATION U.S. DISTRICT COURT FOR NORTHERN CALIFORNIA, SAN FRANCISCO 02/10/2010
CASE INFORMATION
10-15310 PAID APPEALS CIVIL PRIVATE

Nature of Suit: Key Nature of Suit:
District: Lower Court Docket Number: Trial Judge(s): Court Reporter(s): Date Filed: Date Order/Judgment: Date NOA Filed:

3446 AMERICANS W/DISABILITIES ACT-OTHR APPEALS (030) LOWER COURT INFORMATION
0971-3 3:08-CV-04262-WHA WILLIAM H. ALSUP, UNITED STATES DISTRICT JUDGE DEBRA PAS 09/10/2008 09/25/2009 11/05/2009

Prior Case(s): Docket No.:
09-17210
09-80158
Name:
Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name:

OTHER CASES

Judge Panel: --
--

Date Filed: 10/07/2009 10/13/2009
NAMES

Date Disposed: 02/05/2010
02/10/2010

Disp. Code: DENIED JUDGE ORDER GRANTED - JUDGE ORDER

MIGUEL CASTANEDA, ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED PLAINTIFF - APPELLANT JULIA CAMPINS 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC SUITE 1800 1330 BROADWAY OAKLAND, CA 94612-2519 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203 LINDA D. KILB 510-644-2555 DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC. 2212 6TH STREET BERKELEY, CA 94710 ANDREW LAH, ESQUIRE 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC SUITE 1800 1330 BROADWAY OAKLAND, CA 94612-2519 BILL LANN LEE, ESQUIRE 510-839-6824 LEWIS FEINBERG LEE RENAKER & JACKSON, PC STE. 1800 1330 BROADWAY OAKLAND, CA 94612-2519 MARI MAYEDA 510-917-1622 MARI MAYEDA, ATTORNEY AT LAW

Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone:

P.O. BOX 5138 BERKELEY, CA 94705 AMY FARR ROBERTSON 303-595-9700 FOX & ROBERTSON, P.C. SUITE 400 104 BROADWAY DENVER, CO 80203
KATHERINE CORBETT, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED PLAINTIFF - APPELLANT JULIA CAMPINS 510-839-6824 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 LINDA D. KILB 510-644-2555 ANDREW LAH, ESQUIRE 510-839-6824 BILL LANN LEE, ESQUIRE 510-839-6824 MARI MAYEDA 510-917-1622 AMY FARR ROBERTSON 303-595-9700
JOSEPH WELLNER, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED PLAINTIFF - APPELLANT JULIA CAMPINS 510-839-6824 TIMOTHY PATRICK FOX, ESQUIRE 303-595-9700 LINDA D. KILB 510-644-2555 ANDREW LAH, ESQUIRE 510-839-6824 BILL LANN LEE, ESQUIRE 510-839-6824 MARI MAYEDA 510-917-1622 AMY FARR ROBERTSON 303-595-9700

Name: Type: Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone: Attorney: Attorney Phone: Firm Name: Firm Address:
Firm Phone:
ENTRY #: 6

BURGER KING CORPORATION DEFENDANT - APPELLEE ADAM FRIEDENBERG 925-210-2800 GLYNN & FINLEY, LLP ONE WALNUT CREEK CENTER SUITE 500 100 PRINGLE AVENUE WALNUT CREEK, CA 94596 CLEMENT LEO GLYNN, ESQUIRE 925-210-2800 GLYNN & FINLEY, LLP ONE WALNUT CREEK CENTER SUITE 500 100 PRINGLE AVENUE WALNUT CREEK, CA 94596 MICHAEL D. JOBLOVE 305-349-2300 GENOVESE JOBLOVE & BATTISTA PA SUITE 4400 BANK OF AMERICA TOWER, 44TH FLOOR 100 SE SECOND ST. MIAMI, FL 33131 925-210-2800 JONATHAN E. PERLMAN, ESQUIRE 305-349-2300 GENOVESE JOBLOVE & BATTISTA PA BANK OF AMERICA TOWER, 44TH FLOOR 100 SE SECOND ST. MIAMI, FL 33131 925-210-2800

DATE: 03/30/2010

DOCKET PROCEEDINGS
DESCRIPTION: FILED ORDER MEDIATION (PWS): THE BRIEFING SCHEDULE PREVIOUSLY SET BY THE COURT IS VACATED. THE ASSESSMENT CONFERENCE PREVIOUSLY SCHEDULED FOR APRIL 5, 2010, IS CANCELED. ON OR BEFORE JUNE 28, 2010, COUNSEL FOR APPELLANTS IS REQUESTED TO CONTACT THE CIRCUIT MEDIATOR BY EMAIL (PETER_SHERWOOD@CA9.USCOURTS.GOV) OR BY FAX (415-355-8566) TO REPORT ON THE STATUS OF THE CASE. [7283867] (AF)

5

03/08/2010

FILED ORDER MEDIATION (EPM): THE MEDIATION

PROGRAM OF THE NINTH CIRCUIT COURT OF APPEALS

FACILITATES SETTLEMENT WHILE APPEALS ARE

PENDING. SEE FED. R. APP. P. 33 AND NINTH CIR. R. 33-1.

THE COURT HAS SCHEDULED A TELEPHONE

SETTLEMENT ASSESSMENT CONFERENCE, WITH

COUNSEL ONLY, ON APRIL 5, 2010, AT 11:00 A.M.

PACIFIC (SAN FRANCISCO) TIME TO DISCUSS WHETHER

THIS CASE IS APPROPRIATE FOR PARTICIPATION IN

THE MEDIATION PROGRAM. [7256033] (AF)

4

02/22/2010

RECEIVED NOTIFICATION FROM DISTRICT COURT RE:

PAYMENT OF DOCKET FEE. AMOUNT PAID: USD 455

DATE PAID: 02/18/2010. [7241293] (EL)

3

02/17/2010

FILED (ECF) APPELLANTS MIGUEL CASTANEDA,

KATHERINE CORBETT AND JOSEPH WELLNER

MEDIATION QUESTIONNAIRE. DATE OF SERVICE:

02/17/2010. [7234422] (AFR)

2

02/10/2010

DOCKETED CAUSE AND ENTERED APPEARANCES OF

COUNSEL. SEND MQ: YES. THE SCHEDULE IS SET AS

FOLLOWS: FEE DUE FROM APPELLANT MIGUEL

CASTANEDA, APPELLANT KATHERINE CORBETT AND

APPELLANT JOSEPH WELLNER ON 02/10/2010.

MEDIATION QUESTIONNAIRE DUE BY APPELLANT

MIGUEL CASTANEDA, APPELLANT KATHERINE

CORBETT AND APPELLANT JOSEPH WELLNER DUE ON

02/17/2010. APPELLANT MIGUEL CASTANEDA,

APPELLANT KATHERINE CORBETT AND APPELLANT

JOSEPH WELLNER OPENING BRIEF DUE 05/28/2010.

APPELLEE BURGER KING CORPORATION ANSWERING

BRIEF DUE 06/28/2010. APPELLANT'S OPTIONAL REPLY

BRIEF IS DUE 14 DAYS AFTER SERVICE OF THE

ANSWERING BRIEF. [7227991] (RT)

1

02/10/2010

FILED ORDER (WILLIAM C. CANBY AND RONALD M.

GOULD) IN CASE NUMBER 09-80158 ON 2-10-2010:

DISABILITY RIGHTS LEGAL CENTER AND DISABILITY

RIGHTS ADVOCATES' OPPOSED MOTION FOR LEAVE TO

BECOME AMICI CURIAE IS GRANTED. THE BRIEF

SUBMITTED ON OCTOBER 21, 2009 IN SUPPORT OF THE

PETITION FOR PERMISSION TO APPEAL IS ORDERED

FILED. THE COURT, IN ITS DISCRETION, GRANTS THE

PETITION FOR PERMISSION TO APPEAL THE DISTRICT

COURT'S SEPTEMBER 25, 2009 ORDER GRANTING IN

PART AND DENYING IN PART CLASS ACTION

CERTIFICATION. SEE FED. R. CIV. P. 23(F);

CHAMBERLAN V. FORD MOTOR CO., 402 F. 3D 952 (9TH

CIR. 2005) (PER CURIAM). WITHIN 14 DAYS AFTER THE

DATE OF THIS ORDER, PETITIONER SHALL PERFECT

THE APPEAL IN ACCORDANCE WITH FEDERAL RULE OF

APPELLATE PROCEDURE 5(D). [7227968] (RT)

 
 Case: 09-80158 10/21/2009 Page: 2 of 4 DktEntry: 7103509
Amici curiae, Disability Rights Legal Center, Disability Rights Advocates, and the Impact Fund (collectively “Amici”) respectfully submit this motion for leave to file an amicus brief in support of Plaintiffs pursuant to Fed. R. App. P. 29. Plaintiffs do not oppose the filing of this brief.
INTEREST OF AMICI Each of the Amici offers the Court a unique perspective on the impact of the district court’s decision on people with disabilities and public interest class actions. Amici are non-profit public interest organizations extensively involved in class actions, including class actions for people with disabilities. All of the amici share an interest in ensuring that people with disabilities can effectively vindicate their civil rights through class actions and that public interest law firms that conduct impact litigation can capably work to this end. Amici’s interests have been directly affected by the district court’s decision, which hinders these goals. The Disability Rights Legal Center (DRLC) is a non-profit organization dedicated to promoting the rights of people with disabilities and to heightening public awareness of those rights by providing legal and related services. DRLC accomplishes its mission through many programs, including its Civil Rights Litigation Program that engages in impact litigation on behalf of people with disabilities. DRLC handles countless disability rights cases, including class actions challenging discrimination by government, business, and educational institutions.
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The Impact Fund is a nonprofit foundation that provides funding, training, and co-counsel to public interest litigators across the country. It is also a California State Bar Legal Service Trust Fund Support Center, providing services to legal services projects across the state. In its funding role, The Impact Fund reviews requests for grants to cover expenses of complex litigation and frequently assists firms in finding financing, co-counsel, or other resources necessary to bring significant litigation. It offers training programs, advice and counseling, and amicus representation to nonprofit organizations regarding class actions and related issues. It also litigates class cases, including disability discrimination cases.
Disability Rights Advocates (DRA) is a non-profit legal center whose mission is to ensure dignity, equality and opportunity for people with all types of disabilities throughout the U.S. and worldwide. Making facilities throughout the country accessible to individuals with disabilities through negotiation and litigation, including class action litigation, is one of DRA’s primary objectives.
REASONS WHY FILING AN AMICUS BRIEF IS DESIRABLE Amici’s brief is relevant and desirable, because it presents argument and statistical evidence regarding the harmful effects that the district court’s decision will have on the civil rights of people with disabilities and the ability of public interest law firms to conduct impact litigation. See Fed. R. App. P. 29(b)(2). Because this brief would serve the “classic role” of “bring[ing] relevant matter to
2

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the attention of the Court that had not already been brought to its attention by the parties,” Amici’s motion should be granted. See Fed. R. App. P. 29 Advisory Comm.; Funbus Systems, Inc. v. Cal. Pub. Util. Comm’n, 801 F. 2d 1120, 11241125 (9th Cir. 1986) (citations omitted); see also Neonatology Assocs. v. Commissioner, 293 F.3d 128, 132-133 (3d. Cir. 2002) (Alito, J.) (discussing standards for acceptance of amicus briefs). Amici here – non-profit public interest organizations extensively involved in class actions, including class actions for people with disabilities – offer the Court relevant argument and data regarding the real-time effects that the district court’s decision will have on the civil rights of people with disabilities and public interest law firms that are not addressed in Plaintiffs’ Petition for Permission to Appeal. Amici will therefore provide a distinct and relevant analysis of the issues presented in the petition.

CONCLUSION

For the foregoing reasons, Amici respectfully request that the Court grant their motion to file the attached amicus curiae brief.

Dated: October 21, 2009

___s/ Shawna L. Parks_______________ SHAWNA L. PARKS DISABILITY RIGHTS LEGAL CENTER

3

Case: 09-80158 10/21/2009 Page: 1 of 15 DktEntry: 7103509
Case No. 09-80158
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MIGUEL CASTANEDA, KATHERINE CORBETT, AND JOSEPH WELLNER, ON BEHALF OF THEMSELVES
AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs - Petitioners,
v. BURGER KING CORPORATION
Defendants - Respondents.
On Appeal from the United States District Court For the Northern District of California, San Francisco Division
Civil Action No. C 08-4262 WHA
BRIEF OF DISABILITY RIGHTS LEGAL CENTER, DISABILITY RIGHTS ADVOCATES AND THE IMPACT FUND AS AMICI CURIAE IN
SUPPORT OF PETITIONERS
Paula D. Pearlman (SBN 109038) Shawna L. Parks (SBN 208301) Disability Rights Legal Center 919 Albany Street Los Angeles, CA 90015 (213) 736-1031 Attorneys for Amici Curiae

Case: 09-80158 10/21/2009 Page: 2 of 15 DktEntry: 7103509
CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Amici state that they are private 501(c)(3) non-profit organizations, that they are not publicly held corporations or other publicly held entities, and that they have no parent corporations. No publicly held corporation or other publicly held entity owns ten percent (10%) or more of any Amicus organization.

Case: 09-80158 10/21/2009 Page: 3 of 15 DktEntry: 7103509
TABLE OF CONTENTS
I. Amici Statement of Interest.............................................................................1 II. Introduction and Summary of Argument ........................................................2 III. Argument .........................................................................................................2
A. The District Court’s Decision Is Contrary To the Purpose and Intent of The Americans with Disabilities Act ................................2 1. The District Court’s Decision Significantly Undermines The Goals of the Americans with Disabilities Act .............3 2. The District Court’s Decision Constitutes A Significant Departure From Relevant Case Law in This Area .............................................................................5
B. Damages Do Not Predominate Simply Because Of The Presence Of Minimum Statutory Damages......................................7
C. The Court’s Ruling that A Subset of Plaintiffs’ Counsel Should Represent the Class Will Harm Public Interest Law Firms’ Ability to Conduct Impact Litigation ...................................8
IV. Conclusion .....................................................................................................10

Case: 09-80158 10/21/2009 Page: 4 of 15 DktEntry: 7103509
TABLE OF AUTHORITIES CASES Arnold v. UA Theatre Circuit Inc., 158 F.R.D. 439 (N.D. Cal. 1994) ............. 5, 6, 7 Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000).................................8 Californians for Disability Rights v. California Dep’t of Transportation,
249 F.R.D. 334 (N.D. Cal. 2008) ................................................................5, 6 Colorado v. Cross-Disability Coalition, 184 F.R.D. 354, 359-360 (D.
Colo. 1999) ......................................................................................................5 Matthews v. Jefferson, 29 F.Supp.2d 525 (W.D. Ark. 1998) ....................................4 Moeller v. Taco Bell Corporation, 220 F.R.D. 604 (N.D. Cal. 2004).............. 5, 6, 7 Molski v. Gleich, 318 F. 3d 937, 949-950 (9th Cir. 2003)..........................................7 Munson v. Del Taco, Inc., 208 P.3d 623 (Cal. 2009) ................................................8 Park v. Ralph’s Grocery Co., 254 F.R.D. 112, 120-121 (C.D. Cal. 2008) ...... 5, 6, 7 Presta v. Peninsula Corridor Joint Powers Bd., 16 F.Supp.2d 1134 (N.D.
Cal. 1998) ........................................................................................................4 Shultz By and Through Shultz v. Hemet Youth Pony League, Inc., 943 F.
Supp. 1222, 1225-26 (C.D. Cal. 1996)............................................................4 STATUTES Americans with Disabilities Act, 42 U.S.C. § 12101 ...................................... passim Unruh Civil Rights Act ..........................................................................................7, 8 OTHER AUTHORITIES 135 Cong. Rec. S4984, 4986 .....................................................................................3 Henry Rose, Class Actions and the Poor, 6 PIERCE L. REV. 55, 62 (2007)...............7 Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L. REV. 1, 131
(2004)...............................................................................................................9 RULES Rule 23(b)(2)..........................................................................................................5, 7

Case: 09-80158 10/21/2009 Page: 5 of 15 DktEntry: 7103509
I. Amici Statement of Interest Amici are non-profit public interest organizations extensively involved in
class actions, including class actions for people with disabilities. The Disability Rights Legal Center (DRLC) is a non-profit organization
dedicated to promoting the rights of people with disabilities and to heightening public awareness of those rights by providing legal and related services. DRLC accomplishes its mission through many programs, including its Civil Rights Litigation Program that engages in impact litigation on behalf of people with disabilities. DRLC handles countless disability rights cases, including class actions challenging discrimination by government, business, and educational institutions.
The Impact Fund is a nonprofit foundation that provides funding, training, and co-counsel to public interest litigators across the country. It is also a California State Bar Legal Service Trust Fund Support Center, providing services to legal services projects across the state. In its funding role, The Impact Fund reviews requests for grants to cover expenses of complex litigation and frequently assists firms in finding financing, co-counsel, or other resources necessary to bring significant litigation. It offers training programs, advice and counseling, and amicus representation to nonprofit organizations regarding class actions and related issues. It also litigates class cases, including disability discrimination cases.
Disability Rights Advocates (DRA) is a non-profit legal center whose
1

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mission is to ensure dignity, equality and opportunity for people with all types of disabilities throughout the U.S. and worldwide. Making facilities throughout the country accessible to individuals with disabilities through negotiation and litigation, including class action litigation, is one of DRA’s primary objectives. II. Introduction and Summary of Argument
The district court’s decision in this matter will harm the ability of people with disabilities to vindicate their civil rights and the ability of public interest law firms to conduct impact litigation. First, the district court’s decision significantly undermines the Americans with Disabilities Act’s (ADA) goals of addressing inaction that discriminates against people with disabilities and providing people with disabilities relief on par with other minorities. Second, the district court incorrectly held that damages predominate over system-wide injunctive relief simply because of the presence of a claim for minimum statutory damages. Finally, the district court’s holding that narrowed the scope of firms representing the class will impede public interest law firms’ ability to conduct impact litigation. For these reasons, and as explained below, Amici respectfully request that the Court grant Plaintiffs’ petition. III. Argument
A. The District Court’s Decision Is Contrary To The Purpose and Intent of The Americans with Disabilities Act.
2

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1. The District Court’s Decision Significantly Undermines The Goals of the Americans with Disabilities Act.
The district court’s ruling is contrary to a central premise of the Americans with Disabilities Act (“ADA”), namely that inaction can be just as harmful to people with disabilities as affirmative conduct intending to discriminate. Congress intended that the ADA provide “a clear and comprehensive national mandate” with “enforceable standards” for the elimination of discrimination against people with disabilities in “critical areas” including access to public accommodations. 42 U.S.C. § 12101(b)(1)(2). Moreover, Congress specifically acknowledged as discriminatory the “failure to make modifications to existing facilities and practices.” See 42 U.S.C. § 12101(a)(2).
Indeed, the ADA’s legislative history is clear that it was intended to address inaction that results in discrimination. As Senator Harkin explained, “Discrimination made illegal under the ADA includes harms – such as segregation, exclusion, or denial of benefits, services, or other opportunities that are as effective and meaningful as those provided to others – resulting from actions or inactions that discriminate by effect as well as by intent or design.” 135 Cong. Rec. S4984, 4986. Similarly, the Committee on Labor and Human Resources stated that “Discrimination also includes harms resulting from the construction of transportation, architectural, and communication barriers and the adoption or
3

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application of standards and criteria and practices and procedures based on thoughtlessness or indifference. . . .” S. Rep. No. 116, 101st Cong., 1st Sess., at 6 (1989).
As courts have noted: “Combating discrimination as it affects persons with disabilities requires recognizing, as Congress did in crafting the ADA, that often the most damaging instances in which rights of persons with disabilities are denied come not as the result of malice or discriminatory intent, but rather from benevolent inaction when action is required.” Presta v. Peninsula Corridor Joint Powers Bd., 16 F.Supp.2d 1134, 1136 (N.D. Cal. 1998); see also Matthews v. Jefferson, 29 F.Supp.2d 525, 532 (W.D. Ark. 1998) (ADA addresses inaction and thoughtlessness); Shultz By and Through Shultz v. Hemet Youth Pony League, Inc., 943 F. Supp. 1222, 1225-26 (C.D. Cal. 1996) (finding “discriminatory inaction”). The district court thus overlooked not only Burger King’s (BKC) extensive common control, but also the scenario of inaction that Congress recognized as a form of pervasive discrimination the ADA was meant to remedy.
Additionally, Congress intended for the ADA to put disability rights on par with civil rights protection for other insular minorities. Unlike people who have experienced discrimination on the basis of other categories such as race, color, sex, national origin, or age, people with disabilities had no legal recourse to redress widespread discrimination and prejudice. 42 U.S.C. § 12101(a)(4). The ADA was
4

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meant to fill this gap so that people with disabilities would not be trapped in the “inferior status” they have historically occupied in society. 42 U.S.C. § 12101(a)(6). The district court’s refusal to acknowledge the systemic discrimination in this matter undermines this purpose.
2. The District Court’s Decision Constitutes A Significant Departure From Relevant Case Law in This Area.
In light of the ADA’s intent, numerous courts have certified classes in cases that address systemic failures to correct architectural barriers at commonly held or affiliated public accommodations. As one court recognized, “Cases challenging an entity’s policies and practices regarding access for people with disabilities constitute the mine run of disability class actions certified under Rule 23(b)(2).” Californians for Disability Rights v. California Dep’t of Transportation, 249 F.R.D. 334, 344 (N.D. Cal. 2008). Indeed, a number of courts have held that where people with mobility disabilities encounter the barriers throughout commonly held or affiliated public accommodations, commonality is established. See e.g., Moeller v. Taco Bell Corporation, 220 F.R.D. 604, 609 (N.D. Cal. 2004); Colorado v. Cross-Disability Coalition, 184 F.R.D. 354, 359-360 (D. Colo. 1999); Arnold v. UA Theatre Circuit Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994); Park v. Ralph’s Grocery Co., 254 F.R.D. 112, 120-121 (C.D. Cal. 2008).
Furthermore, courts have held that inadequate guidelines and systemic
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failure to correct discrimination constitutes an issue common to the class sufficient to warrant certification under 23(b)(2). See Californians for Disability Rights, 249 F.R.D. at 344-346. Individualized assessments are inappropriate where injunctive relief against the controlling entity is sought, and no evidence of a centralized policy compelling discrimination is necessary. Id. at 344-345.
Other courts have held that despite differences in architecture from location to location, it is sufficient for commonality under 23(b)(2) that accessibility barriers at various locations affect all mobility-impaired persons in the same way. Park, 254 F.R.D. 112 at 121; see also Moeller, 220 F.R.D. 604; Arnold, 158 F.R.D. at 449. Specifically, they impede mobility-impaired persons who try to access the various locations. See Park, 254 F.R.D. 112 at 120. The district court’s decision constitutes a significant departure from previous cases law on this matter.
Moreover, this departure will have an extremely negative impact on the ability of people with disabilities to enforce their rights. People with disabilities typically are low-income, and therefore, often cannot afford to litigate their cases individually. Nationally, 21.4% of people with disabilities in the United States are below the poverty level. See U.S. Census Bureau, Table S1801 – Disability
6

Case: 09-80158 10/21/2009 Page: 11 of 15 DktEntry: 7103509
Characteristics, 2005-2007 American Community Survey 3-Year Estimates.1 As a result, people with disabilities have little or no resources to respond to the numerous legal problems they face. See Henry Rose, Class Actions and the Poor, 6 PIERCE L. REV. 55, 62 (2007). Class actions are therefore a crucial vehicle of change for people with disabilities. Id. at 62.
B. Damages Do Not Predominate Simply Because Of The Presence Of Minimum Statutory Damages.
When plaintiffs seek damages along with injunctive relief, the court will certify under Rule 23 (b)(2) based on the predominate form of relief sought by the class. Molski v. Gleich, 318 F. 3d 937, 949-950 (9th Cir. 2003). “In order to determine predominance, [courts] have focused on the language of Rule 23(b)(2) and the intent of the plaintiffs in bringing the suit.” Id. at 950. Here, there is undisputed evidence that Plaintiffs’ primary interest is injunctive relief.
In addition, when the damages in question are statutory minimum damages provided by the Unruh Act, courts have consistently considered those damages as incidental to injunctive relief. See Park, 254 F.R.D. at 122; Moeller, 220 F.R.D. at 613; Arnold, 158 F.R.D. at 461-462. These damages are incidental because the purpose of such damages is to remedy violations of plaintiffs’ civil rights with a
1 Available at http://factfinder.census.gov/servlet/STTable?_bm=y&geo_id=01000US&-qr_name=ACS_2007_3YR_G00_S1801&ds_name=ACS_2007_3YR_G00_, last visited October 20, 2009.
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minimum of proof. The California Legislature’s purpose behind the Unruh Act “was to provide disabled Californians injured by violations of the ADA with the [monetary] remedies.” Munson v. Del Taco, Inc., 208 P.3d 623, 624 (Cal. 2009). It was also to “create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary invidious discrimination by such establishments.” Id. at 626.
Moreover, because Plaintiffs’ request is for statutory damages under the Unruh Act it requires only the barest minimum proof. Indeed, “[p]roof of actual damages is not a prerequisite to recovery of statutory minimum damages under California’s Unruh Civil Rights Act.” Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000). Due to the non-complex standard of proof required, Plaintiffs can easily obtain the necessary evidence to prove that the civil right violation has occurred. By essentially forcing the class to choose between their remedies – minimum damages or injunctive relief – the district court’s decision undermines the purpose and intent of the California statutes.
C. The Court’s Ruling that A Subset of Plaintiffs’ Counsel Should Represent the Class Will Harm Public Interest Law Firms’ Ability to Conduct Impact Litigation.
Although not addressed by Plaintiffs’ petition, Amici are extremely concerned by the district court’s apparent presumption that only one firm, or a subset of requested firms, need represent the class. Amici are also concerned that
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DREDF – a well regarded nonprofit organization dedicated to the advancement of the rights of people with disabilities – was excluded by the district court as class counsel.2 This decision will have a chilling effect on beneficial cooperation between nonprofit legal groups and private law firms, and undermines the unique role that public interest organizations play in cases such as this.
Non-profits often look to private firm co-counsel to assist in taking on important, resource-intensive suits, such as class actions against corporate defendants. See Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L. REV. 1, 131 (2004). Even the most prominent public interest organizations, face constrained budgets that generally cannot support the large expenses associated with major litigation. Id. Attorney’s fees and cost awards may not be recovered for many years, if at all, and thus do not mitigate these expenses. Id.
The court’s decision is particularly troubling given the current gap in legal services in California. For example, a recent report from the California Commission on Access to Justice shows that currently there are more than 8,000 Californians living below 125% of the poverty line for every legal aid lawyer. See Action Plan for Justice, Report of the California Commission on Access to Justice,
2 The apparent presumption is in the district court’s Sept. 25 order. The exclusion of DREDF is in the district court’s Oct. 16 order, which was issued after the Oct. 9 Rule 23(f) petition was filed. Because the Oct. 16 order directly addresses the issue of class counsel appointment, which is an integral and required part of class certification, it is properly within the purview of this Court’s Rule 23(f) review.
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April 2007, at p. 32.3 This same report identified thousands of legal problems that

Legal Services Corporation agencies were unable to address in 2005, including

nearly 10,000 legal problems involving individual rights. Id. at p. 36. Class actions

brought by public interest organizations are often the most efficient way to address

systemic harms and increase access to representation for low-income Californians.

The district court’s decision to limit class counsel to only a subset of

plaintiff’s counsel denies clients the valuable synergy of nonprofit and private legal

skills that large-scale public interest litigation requires. Moreover, its decision to

exclude DREDF as class counsel undermines the important role of nonprofits in

such litigation, as such organizations frequently have the strongest contacts with

class members and the deepest ties to the community affected by the suit. This

Court should consider these serious implications in deciding whether to let the

district court’s decision stand.

IV. Conclusion

For the foregoing reasons, Amici respectfully request that the Court grant

Plaintiffs’ petition.

Dated: October 21, 2009

_____s/ Shawna L. Parks______________ SHAWNA L. PARKS DISABILITY RIGHTS LEGAL CENTER

3 Available at http://calbar.ca.gov/calbar/pdfs/reports/2007_Action-PlanJustice.pdf, last visited October 20, 2009.
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CERTIFICATE OF COMPLIANCE Pursuant to Rule 29(d) of the Federal Rules of Appellate Procedure, Amici certify that this amicus brief is 10 pages, which is no longer than one-half the maximum length authorized by the Rules for Plaintiffs’ principal brief.

Dated: October 21, 2009

____s/ Shawna L. Parks_______________ SHAWNA L. PARKS DISABILITY RIGHTS LEGAL CENTER

Case: 09-80158 10/21/2009 Page: 1 of 1 DktEntry: 7103509
9th Circuit Case Number(s) 09-80158

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CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

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I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format)

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CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

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Oct 21, 2009

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:
Michael D. Joblove Genovese Joblove & Battista PA Bank of America Tower, 44th Floor 100 SE Second Street Miami, FL 33131

Signature (use "s/" format) s/ Shawna L. Parks